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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Wyandotte county to foreclose a tax lien on real estate, which was subsequently consolidated with an action by Ella B. Adams, to foreclose a mortgage on the same real estate, as against Rudolph Snyder and others, including Harry B. Strauss, a purchaser of the property at a tax sale. Judgment was given in favor of Ella B. Adams, and the rights of the defendants were adjudicated. Harry B. Strauss, one of the defendants, alone appeals.
In the tax foreclosure proceeding brought by the county judgment was given on service by publication only, and Ella B. Adams, who owned a $7,000 mortgage on the property, intervened, asking that the judgment be opened up and she be let in to defend. This application was granted by the court, and from that judgment defendants appealed.
The judgment of the court as to the right of Mrs. Adams' to have the judgment opened up was rightly affirmed. (Wyandotte County Comm’rs v. Axtell, 134 Kan. 304, 5 P. 2d 1078.) While that action was pending Mrs. Adams brought an action to foreclose her mortgage against the makers of the note and mortgage as well as subsequent grantees, and Harry B. Strauss, the purchaser at the tax sale. Both of these actions were consolidated and tried, with the result stated. When Mrs. Adams intervened she deposited with the court $1,268.33 to cover the taxes and costs on the property in the tax proceeding. It appears that a mortgage was negotiated by S. J. Eisberg, the mortgage itself being executed by his son-in-law, Rudolph Snyder, and his wife. The mortgaged property had been in the possession of some member of the Eisberg family most of the time since 1913, and the ownership had shifted about from one to another of the relatives. S. J. Eisberg became the owner in 1913, and in September, 1920, conveyed it to his brother, S. N. Eisberg. In February, 1921, S. N. Eisberg conveyed the property to the Intercity Realty and Investment Company, of which S. J. Eisberg was president. In December, 1923, the investment company conveyed it to one Heimovics, and in the same month Heimovics executed a mortgage on the property for the sum of $3,000. On the date of that mortgage Rudolph Snyder, son-in-law of S. J. Eisberg, acquired the legal title to it, and within two months thereafter the $3,000 mortgage was assigned to S. J. Eisberg. Rudolph Snyder executed the mortgage in question to Mrs. Adams on July 14, 1925, and three days later S. J. Eisberg acknowledged satisfaction of the $3,000 mortgage. In June, 1928, Rudolph Snyder and wife conveyed the property to S. N. and M. J. Eisberg, brothers of S. J. Eisberg, subject to the encumbrances of record. As interest accrued on the mortgage to Mrs. Adams, she would notify S. J. Eisberg, and the interest payments were promptly made, except the one due when the principal sum became due; and when she informed S. J. Eisberg that the payment was due he requested an extension of the loan, but as Mrs. Adams needed the money she was unable to grant a renewal or extension of the loan. He then requested an abstract of title to the property, which Mrs. Adams had, in order to get a new loan from another, but it had been left in the hands of her agent, W. T. Miles, who had recently died, and his wife, who had possession of his papers, was away on a vacation and would not return until about September first. S. J. Eisberg obtained the abstract about that time, when he informed Mrs. Adams that he had bad news for her — ■ that the mortgaged property had been sold for taxes. She said to Mr. Eisberg, “You told me that you would keep the taxes paid,” and he replied: “You cannot always tell what a son-in-law is doing, and I didn’t know anything about it.” This interview occurred in October, 1930. Upon investigation Mrs. Adams found that the tax suit had been commenced on April, 1930, and a judgment of foreclosure entered June 19, 1930, and an order of sale issued; that a sale had been held on August 11, and that Harry B. Strauss appeared to have been a bidder. It also was shown that S. J. Eisberg was a bidder, and that Mrs. Strauss, who was a sister of the wife of M. J. Eisberg, was a successful bidder and one of the record owners by conveyance from Snyder. She appears to have been bidding for her husband, and she testified that S. J. Eisberg was a bidder at the sheriff’s sale. A sheriff’s deed was issued to Harry B. Strauss on December 16, 1930,' and was promptly recorded. Immediately thereafter Mrs. Adams filed her application to have the tax judgment opened up and she be let in to defend. After the decision on that question in this court the consolidated actions were tried. After the deed by the sheriff to Harry B. Strauss, the legal title holders, M. J. Eisberg and S. N. Eisberg, conveyed the property by quit-claim deed to Strauss. However, two months later these owners filed a motion in the tax case asking that the answer and cross petition of Mrs. Adams be stricken from the files.
The bid of Strauss at the tax sale was $1,700, which was $441.67 in excess of the taxes and charges due upon the property, and which was paid over to the sheriff. This excess was drawn down by M. J. Eisberg and S. N. Eisberg, holders of the legal title. It appears that Strauss paid the accruing taxes on the property after the sheriff’s deed was executed to him.
On the testimony the court held that there was collusion among the defendants named, including Strauss, the purchaser at the tax sale, to defeat the mortgage right of Mrs, Adams; that Strauss did not acquire a title to the property by virtue of the tax deed, and that he was not entitled to the return of any sum from the county by reason of his collusive purchase and the failure of title by reason of the purchase. It was adjudged that Mrs. Adams was entitled to receive the amount due on her note and mortgage, $8,280.33, and a decree of foreclosure of the mortgage was entered, it being decreed that if payment was not made within ten days an order of sale be issued and the property sold and from the proceeds thereof costs be paid, the judgment in favor of Mrs. Adams, and also that the amount advanced and deposited' by fyer with the court when she intervened in the tax case be returned to her. It was further adjudged that Strauss have judgment against M. J. Eisberg and S. N. Eisberg, in the sum of $441.67, which was the excess of the bid of Strauss at the sale and which the Eisbergs drew down from the clerk of the court.
In her petition Mrs. Adams charged fraud and collusion against the defendants in an attempt to defeat her mortgage lien by allowing the taxes to remain unpaid on the property and thus acquire a title to the same free from the lien of her mortgage. The facts and circumstances of the case, some of which have been related, fairly well establish the charge of collusion and fraud.
Strauss contends that there was error in the judgment; the other defendants, although personally served with summons, did not appear in the case to make a defense. The principal contention of Strauss is that the charge of collusion and fraud was not shown by sufficient competent evidence.
The facts and circumstances already set forth strongly tend to show collusion clear down to the purchase at the tax sale. It was a family affair, and all appear to have cooperated to the same end, that is, to defeat the mortgage, but only Strauss had the hardihood to defend against the charge and the inculpating facts and circumstances alleged and shown. The different steps of action and inaction manifestly point to the same purpose, the defeat of plaintiff’s mortgage, even to the care taken to have competition among themselves at the sale, thus giving it the appearance of innocence and validity. It is said that there is no direct evidence that defendants combined for the illegal purpose. Conspiracy to defraud cannot always be shown by direct evidence. Those engaged in a conspiracy to defraud rarely admit the common purpose, but in such cases circumstantial evidence suffices. When there is collusion, each of the parties charged evincing a knowledge and approval of the acts of the others, all in furtherance of the conspiracy, proof of the separate acts of several persons may be shown, and it has been said:
“The greater the secrecy that is observed relative to the object of such concurrence, and the more apparent the similarity of the means employed to effect it, the stronger is the evidence of conspiracy.” (5 R. C. L. 1104.)
In Rickel v. Cooperative Exchange, 113 Kan. 592, 215 Pac. 1015, it was said:
“It is well settled by the authorities that conspiracy, when charged either in a civil or a criminal case, may be proved by circumstantial evidence. It is proper to prove the charge by direct evidence, but as the direct evidence is ordinarily in the possession and control of the alleged conspirators, frequently the opposing party cannot obtain it. Hence, in actual practice, it is usually proved by circumstantial evidence, and where the charge'is made its tendency is to open rather a wide field of inquiry.” (p. 600.)
In Hutson v. Imperial Royalties Co., 135 Kan. 718, 13 P. 2d 298, it was said:
“Because of the very nature and character of a conspiracy it is seldom possible to prove it by direct evidence, and it is nearly always necessary to establish it by circumstantial evidence, which is universally recognized as the proper means of proof.” (p. 723.)
In this proceeding there was both action and inaction in the effort to carry out the wrongful purpose. In Beneke v. Bankers Mortgage Co., 135 Kan. 444, ,10 P. 2d 825, which involved a charge of conspiracy and fraud, it was said:
“It is true, as defendants say, mere conspiracy is not actionable. Harmful consequence of conduct pursuant to conspiracy is actionable. But silence and inaction in aid of fraud are conduct, as much as action and declaration to circumvent fraud are conduct. The fraud on the shareholder is admitted. There is no innocent holder of the original certificate. The company, in all fairness and good faith, owes it to the shareholder to do what it can to assist and to protect him, and collusion of the company’s directors and managers to oppress the stockholder and keep him remediless in effect makes them and the company parties to the fraud.” (p. 446.)
We think the evidence was sufficient to warrant the finding as to collusion among the defendants, and that by reason of the participation in it by Strauss, he did not acquire a title to the property by virtue of the sheriff’s deed to him. An examination of the proceedings satisfies us that there was no error in permitting the intervention of plaintiff in the tax suit and in sustaining her lien as against the tax sale and deed. A number of cases are cited by appellant as supporting the right of a purchaser at a tax sale, even if he is a relative of the defendant in the action. The principles announced in these authorities apply and are appropriate to innocent purchasers, but do not apply where the purchaser was a party to the conspiracy and fraud. The title holders of the property, as we have seen, conveyed it to Strauss and from then on the legal title was in Strauss, subject, of course, to tax liens and the mortgage lien of the plaintiff. It was a proper and just order made by the court that the money paid into the court by her as taxes and charges, $1,268.33, in order that she might intervene and set up and establish her right as a mortgagee, be returned to her. It was the duty of the owner to pay the taxes. The amount of the taxes has not been included in the judgment on the mortgage lien and could not be taken out of her judgment for the amount of her loan and lien. The contention by Strauss that he should have been allowed at least the taxes paid by him on the property subsequent to the sale and sheriff’s deed is not good. It appears that he had procured and held the legal title to the property, With possession and the right of redemption within eighteen months and all the profits to be derived therefrom. All the plaintiff received is the enforcement of her lien on the property. It is for Strauss, the title holder, to discharge taxes and mortgage liens if he desires to clear his title or to avail himself of the right of redemption. It appears the court did give him a judgment for the excess of his bid and payment over the amount of taxes and charges due on the property and which was taken down and appropriated by the Eisbergs, his grantors.
An examination of the entire record satisfies us that no error was committed by the court in the judgment rendered, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a proceeding in mandamus brought in the district court of Mitchell county, Kansas, by a resident of Nebraska, as guardian of an incompetent person, appointed as such by the county court of Lancaster county, Nebraska, against the probate judge of Mitchell county, Kansas, to compel him to issue a certificate of guardianship to the plaintiff and to direct the payment to him of the proceeds of two estates administered in the probate court of Mitchell county, in which the incompetent had already been found to be the sole heir.
• An alternative writ was issued and a motion of the probate judge to quash it was denied. Defendant then filed an answer admitting the filing in the probate court of an authenticated copy of the appointment and qualification of the plaintiff by the court of Lancaster county, Nebraska, and an application for a certificate of guardianship from the probate court, and for authority to receive the money and property belonging to the- incompetent from these estates, but denying that the incompetent, George Eberle, was or ever has been a resident of Nebraska, and the answer alleged he has continuously for the past fifty-three years been a resident of Mitchell county, Kansas, and further that because of his incompetency for more than a year past he had been unable mentally to make or effect a legal change of residence. The plaintiff moved for judgment on the pleadings. Pending the consideration of this motion the defendant offered evidence to show that the incompetent, George Eberle, was not a resident of Nebraska but was, and had been for many years past, a resident of Mitchell county, Kansas. Upon objection of the plaintiff the evidence was rejected and judgment was rendered for the plaintiff on the pleadings, and the peremptory writ was issued.
Two important propositions are presented for consideration. The first one is, Does the matter here sought to be directed and controlled by the writ involve the judicial discretion of the probate judge? If it does, then it cannot be controlled by mandamus. (R. S. 60-1701.)
“Mandamus being an extraordinary writ, with prerogative features, and not a writ of right, a strong case must be presented to coerce action by a judge, the presumption being that he has done his duty.” (38 C. J. 613.)
The application of the plaintiff nonresident to be appointed guardian in this state, on the strength of his appointment made in Nebraska, was doubtless under the provisions of R. S. 39-218, the first part of which is as follows:
“The foreign guardian of any such nonresident person may be appointed the guardian of such person by the probate court of the county wherein he may have any property, for the purpose of selling or otherwise controlling any property of such person within this slate. Such appointment may be made upon such guardian filing in the office of the probate judge of the county wherein there is any such property an authenticated copy of the order of his appointment; and he shall thereupon qualify like other guardians, except as hereinafter prescribed. . .
The exception referred to in the last sentence concerns the matter of dispensing with an additional bond. While the word "may” is used in the statute and not the word “shall,” yet in usual and ordinary construction it would seem to imply the appointment of such applicant was the thing intended to be done. No alternative is provided.- No provision is made for the appointment of another or different nonresident than the one certified as having been appointed there and having given bond. A resident would not, under the statute, be eligible for the appointment as guardian of a nonresident incompetent.
It is suggested in one of the briefs that the statute for similar purpose in case of a nonresident minor (R. S. 38-233) goes into greater detail and may assist in the determination of whether judicial discretion is involved. No one has pointed out any alternative or other feature on which the judge might properly exercise his discretion when such papers are properly presented for his action. His duty would appear to be none other than grant the application and make the appointment. Of course jurisdictional questions are always open, but they do not involve discretion, and it is judicial discretion that we are alone considering. Again, what did the defendant probate judge do? The record shows that all he did was to deny the application and appoint a local man guardian. There is no showing of any hearing or finding in the probate court as to George Eberle being an incompetent. That finding must have been taken or accepted from the Nebraska papers. It was held in the case of Adams v. Specht, 40 Kan. 387, 19 Pac. 812, that the appointment of a guardian for a minor was discretionary, but there it concerned the choice between the applicant and another person, as no doubt the Nebraska court used its discretion in selecting the plain tiff. This court said in the case just cited that such appointment was not subject to review on appeal.
The case of State, ex rel., v. Norton, 20 Kan. 506, is cited on this subject, it being a proceeding in mandamus to compel a probate judge to inquire into the sanity of a certain citizen who had been adjudged insane five years before and not restored, and the probate judge, having found and concluded that the records in his office showed the earlier finding of insanity and that it appeared to the court that she still remained insane, the petition was denied and it was held to involve judicial discretion and mandamus would not lie.
“The writ of mandamus may be granted to require a court to exercise its jurisdiction and proceed to a hearing, but it cannot be used to control the decision a court shall make nor require it to exercise judicial discretion in a particular way.” (Johnson v. Schoch, 84 Kan. 884, 115 Pac. 638.)
Without saying that judicial discretion might not be exercised in cases similar in character to this one, we do say that no judicial discretion had been exercised by the probate judge in the case before him and none was required by either the alternative or the peremptory writ as issued, and we therefore hold that mandamus will lie in this case.
The second proposition here involved is, whether the matter of the residence of the incompetent was necessary to give to the Nebraska court jurisdiction before full faith and credit could be given to its judicial proceedings in the courts of this state.
The alternative writ states, in harmony with the motion for it, that George Eberle, the incompetent, was a resident of Lancaster county, Nebraska, and the answer denied that allegation and especially alleged his residence to be in Mitchell county, Kansas. This issue of fact was definitely before the district court when judgment was rendered for plaintiff upon, the pleadings. It was also before the trial court of Mitchell county when the defendant offered to introduce evidence to show that the incompetent never was a resident of Nebraska. The court, on the theory of loyal adherence to the full-faith-and-credit clause of the constitution' of the United States (art. 4, sec. 1), rejected all evidence as to the residence of the incompetent, and rendered judgment for plaintiff on the pleadings. These rulings would have been eminently proper on any and all questions that were passed upon by the Nebraska court except those on which its jurisdiction depended. The findings of the Nebraska court, whether right or wrong, on all other questions than those on which its jurisdiction depended, are binding on the courts of a sister state, but unless that court in fact had jurisdiction of the case it was considering, its decrees and judicial proceeding have no binding force whatever. An order made by a court without jurisdiction is not entitled to recognition at home or full faith and credit in a sister state and can be attacked collaterally. It requires not only jurisdiction of the subject matter but also of the person. If it lacks either, it is not entitled to credit across the line, and jurisdictional questions can be raised at any time and by any party affected thereby. Suppose the finding of incompetency and appointment of a guardian had been made by a police court or a justice of the peace in Nebraska, it would not for a moment be entitled to credit across the state line nor at home, and any court where such order was presented not only could, but should, investigate as to the jurisdiction of the subject matter. The following ruling was made in Swehla v. Malone, 114 Kan. 712, 220 Pac. 299, which was a delinquent juvenile case:
“The judgment of the police court was open to collateral attack for lack of jurisdiction, and when its jurisdiction was challenged the absence of jurisdiction could be shown by extrinsic evidence.” (Syl. ff 3.)
For the same reason and with the same prudence and caution any court asked to give full faith and credit to an order or decree of a sister state should inquire as to its jurisdiction of the person. The decisions and findings of the courts of sister states are not binding on these two questions as on others, and all courts to which orders or decrees come for any purposes whatever are not only privileged to investigate, but it is their duty to determine whether the foreign court had jurisdiction of the subject matter and also of the person.
“. . . Where a court has jurisdiction of the subject matter of an action and has jurisdiction of the parties thereto, its orders and judgments as to all matters involved in the action are final and conclusive, unless corrected or modified on appeal. . . .” (Rennolds v. Guthrie, 103 Kan. 829, syl. ¶ 1, 177 Pac. 359.)
. . As between the states of the United States, the full-faith-and-credit clause of the constitution and the legislation thereunder does not preclude an inquiry into the question of jurisdiction of the first court to render the judgment sought to be enforced in the second state. If there was no jurisdiction, the judgment is not entitled to faith and credit. A recital of jurisdictional facts in the record does not conclude the point. ... If there was no jurisdiction over the person of the defendant, the action taken will not be entitled to recognition elsewhere.” (Goodrich on Conflict of Laws, p. 459.)
Appellee cites a case very similar in many respects, that of Trust Co. v. Allen, 110 Kan. 484, 204 Pac. 747, similar even to its originating in the same county in Nebraska and the appointment of a guardian by the same court in that county for an insane person, but different in that the guardian there appointed undertook by habeas corpus to enforce the right of the guardian to the custody and care of the insane person who was then with a stepson in Butler county, Kansas. A guardian had also been appointed in Kansas on the same day the appointment was made in Nebraska. Both parties presented their credentials as guardian, and permanent residence of the insane woman was alleged by each party to be in a different place. The trial court heard testimony as to her residence and decided in favor of the Butler county guardian, largely because it seemed to be for the best interest, comfort and convenience of the insane person. This court reversed that ruling and granted the writ in favor of the Nebraska guardian, solely because the permanent residence of the insane person was, and had .always been, in Nebraska. The second paragraph of the syllabus is as follows:
“The jurisdiction to appoint a guardian over the person and estate of a lunatic or person incompetent to manage his affairs, belongs exclusively to the state where such person has a permanent residence.”
Another habeas corpus case is cited in this connection, In re Wallace, 75 Kan. 432, 89 Pac. 687, where it was held:
“Where the jurisdiction of the court depends upon a fact which the court is required to ascertain and decide its judgment determining that the fact does exist is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding.” (Syl. ¶ 1.)
A study of the case shows it was not a finding as to jurisdiction of the person, but a question of fact concerning the age of a boy convicted and sent to the reformatory, the court sentencing him having found him to have been more than sixteen years of age, and in this case the father of the boy sought to set aside that judgment by showing the boy was less than fifteen years of age when convicted. The court held that the matter of his age was not only a jurisdictional fact but also a litigated fact. It was much like the litigated fact in the divorce case cited, Miller v. Miller, 89 Kan. 151, 130 Pac. 681, where the husband brought his action for divorce in Utah, alleging his residence in that state for the required length of time, viz., one year, and it was one of the facts necessary to be proved, and was held to have been conclusively determined and could not later be attacked collaterally in an ej ectment action. The same ruling was made as to another proceeding, in Larimer v. Knoyle, 43 Kan. 338, 23 Pac. 487, where an attempt was made to show that the affidavit and the publication notice for service on the defendant in a divorce proceeding were untrue. In the case of Tomlinson v. Tomlinson, 121 Kan. 206, 246 Pac. 980, both these matters last mentioned were included in the divorce decree, viz., the truthfulness of the affidavit for service on the defendant by publication and the residence of the plaintiff. Both facts that did not strictly concern the jurisdiction of the court because the court, approved the process for publication and the plaintiff by his own act in .filing his petition gave the court jurisdiction of himself, even if his statement as to residence might not have been correct when the court had found it to be correct. Another divorce case cited is McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546, where, in an action by the wife for alimony, the defense was that a decree of divorce had been granted the husband in Missouri. The Missouri decree was upheld by this court as against criticism and intimations of fraud, and it was said in the opinion:
“When jurisdiction has attached, the fraud of a party in procuring an irregular exercise of jurisdiction does not destroy jurisdiction, and nothing but want of jurisdiction is available on collateral attack.” (p. 39.)
The same rule prevails as to the necessity of the court of a sister county having jurisdiction of the person in all kinds of cases as applies to the courts of sister states before full faith and credit is entitled to be given to their judgments and decrees.
The following cases show conclusively the absolute want of jurisdiction unless the incompetent person, the minor or the deceased person in question was an actual and permanent resident of the state or county where the court is held, and judgments rendered or orders made without jurisdiction of the person are subject to collateral attack,-whenever and wherever attempted to be enforced:
“Jurisdiction to appoint a guardian over the person and estate of a lunatic belongs exclusively to the probate court of the county where such lunatic has a permanent residence.” (Foran v. Healy, 73 Kan. 633, syl. If 1, 85 Pac. 751.)
“The probate court of the minor’s residence is the only court which has jurisdiction to appoint a guardian of the estate of such minor.” (Jaggar v. Rader, 134 Kan. 570, syl. ¶ 3, 7 P. 2d 114.)
“The place of residence of the deceased at the time of his death is an essential, collateral, jurisdictional question of fact. This fact is not conclusively established by the appointment of an administrator, the issuance of letters of administration, the probating of a will, or by any other decision in reference to the estate of the deceased which a probate court may make; and, in a proper collateral action or proceeding, the true place of residence of the deceased at the time of his death may be shown for the purpose of disproving jurisdiction in the court assuming to administer the estate.” (Ewing v. Mallison, 65 Kan. 484, syl. ]J 3, 70 Pac. 369.)
“A probate court is without authority to appoint an administrator of the estate of a deceased person unless the deceased was a resident of the county of the court at the time of his death, and a decision of a probate court that the deceased was a resident of the county of the court at the time of his death is open to collateral inquiry for the purpose of showing a lack of jurisdiction to make the appointment.” (Dresser v. Bank, 101 Kan. 401, syl., 168 Pac. 672.)
“The fact that the earlier Ohio will had been admitted to probate and letters testamentary had been issued by the probate court of Marshall county and that no appeal from such order was made within one year or later, did not preclude the district court of Linn county from determining the essential, collateral, jurisdictional question of fact as to the place of residence of the testatrix at the time of her death. . . .” (Edington v. Stine, 135 Kan. 173, syl. If 2, 10 P. 2d 27.)
The district court should have heard the offered evidence as to the permanent residence of George Eberle, the incompetent, so as to know if the Nebraska court had jurisdiction of the person as well as of the subject matter and should not have rendered judgment on the pleadings when this jurisdictional question was at issue in them. Another matter mentioned in the briefs as being covered by the offered evidence is well discussed in Trust Co. v. Allen, supra, on page 490, which relates to the mental ability of an incompetent to have or exercise an opinion as to a desired 'change of residence.
The judgment is reversed and the writ is denied. The cause is remanded with instructions to hear evidence as to the permanent residence of the incompetent person so as to determine the question of jurisdiction of the Nebraska court over the person of the incompetent. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to foreclose liens’for labor and materials on an oil and gas lease. The liens of various claimants were allowed and there is no controversy with respect to them. The appellant Bennett was denied a lien and the correctness of that ruling is the only matter involved in this appeal.
Fred U. T. Smith was the owner of an oil and gas lease on real estate in McPherson county and entered into a contract with defendant Kightlinger for drilling a test well, whereby Smith was to furnish the casing and derrick and Kightlinger was to furnish the tools, labor, fuel and water for drilling and completing the well. In carrying out his part of the agreement, Smith entered into a contract with the appellant Bennett whereby Bennett agreed to furnish certain sizes and amounts of casing, and the necessary clamps and shoes, and to deliver said casing as required on the lease at his own expense. Smith agreed to execute an assignment of an undivided three-sixteenths interest in the entire lease to Bennett and deposit it in a Wichita bank for delivery to Bennett, under certain conditions, which were performed, and the assignment was delivered. Under the contract, Smith agreed not to permit liens to accrue and, in case any mechanic’s liens were filed, he agreed to release same in thirty days after filing, and if liens should be filed after such release, then Smith agreed to purchase the casing, shoes and clamps and to pay for the same within ten days after the filing of such additional lien or liens. If the well was a dry hole, Smith agreed to pull the casing and deliver it to Bennett. If the well was a commercial producer, Smith agreed to pull all casing not used in operation of the well and deliver it to Bennett and to pay Bennett for the casing not removed from the well. Before Bennett was required to deliver any casing, Smith was to give him a bond in the penal sum of $10,000 conditioned upon Smith’s performance. Smith gave Bennett a bond for $8,000, but Bennett, nevertheless, furnished the casing. The contract contained other provisions not necessary to be noticed here, and the following:
“The assignment of the three-sixteenths interest in the lease to Bennett shall provide that Smith retains the operation and further development of the lease; that Bennett’s share of all oil and gas produced and to be produced from said lease shall be subject to the payment of all further cost of operation and development.
“In case of production in the first well Bennett shall stand his proportionate share of the cost of all equipment placed in the well and used for the operation thereof, that is, he shall pay three-sixteenths (3/ie) part of such cost and no more, and he shall own all of said equipment in the proportion of a three-sixteenth (%e) interest therein, and when said equipment ceases to be used on the said lease it shall be sold and the proceeds divided. Bennett’s portion of the oil and gas produced from said lease shall never be liable for more than three-sixteenths (%c) part of the costs of operation and development.
“Until purchased and paid for by Smith, the entire legal and equitable title to all casing, shoes and clamps furnished by Bennett shall be and remain in Bennett.”
Upon trial, Bennett produced his proof as to the casing, clamps and shoes furnished by him and the amounts he claimed on account, that he had received the assignment of the lease, and that Smith had given him bond in the penal sum of $8,000. Other claimants produced their proofs, and the court rendered judgment against defendant Kightlinger and in favor of lien claimants for a total of $4,063.30, and against defendant Fred U. T. Smith and in favor of lien claimants for a total of $2,118.50, and made the same coordinate liens of equal priority upon Smith’s leasehold interest and upon the derrick, casing, machinery, supplies, etc., in, on or about or belonging to the leasehold. Bennett was refused a lien but given judgment against Smith, dependent on the amount of casing, etc., which was or could be returned to him, and the action was continued to determine the amount of such judgment.
Appellant’s contention, as stated in his brief, is:
“It is our contention that if equipment furnished to be used in the drilling of an oil or gas well, is of such kind and character that it may be taken by the lien claimants and sold in satisfaction of their liens, by the same token the person so furnishing such material is entitled to a lien for the value of the material so furnished.”
The contention, as stated, cannot be true, for it would permit an owner to participate with those who contracted with him. It was held in the Bridgeport Machine Co., v. McKnab et al., 136 Kan. 781, 18 P. 2d 186, that:
“Oil- and gas-lien laws, like other lien laws of this state, are purely statutory and as they confer special privileges they should be strictly construed, so that in determining to whom and for what a lien statute gives a lien a strict construction should generally apply, but after interpreting it to entitle a party to a lien for a particular article or thing, then a liberal interpretation should generally be given as to its enforcement so as to promote the object to be effected.”
The statute under which appellant claims, R. S. 1931 Supp. 55-207, recites:
“Any person . . . who shall under contract . . . with the owner of any leasehold . . . perform labor or furnish material, . . . shall have a lien.”
Here, by virtue of the contract upon which he relies for a lien, Bennett became an owner of an undivided interest in the leasehold. The contract provided that he was to furnish and deliver pipe for the interest he acquired, and while it provided for sale to Smith, under certain conditions, of a part or all of the pipe furnished, it likewise provided that the pipe was his until paid for. It also provided that Smith retain the operation and development of the lease and that Bennett’s share should be subject to the payment of all further cost of operation and- development, and that Bennett “shall stand his proportionate share of the cost of all equipment” and that when the equipment ceases to be used it shall be sold and the proceeds divided.
Under a strict construction of the statute, Bennett was not entitled to a lien; as an owner he could not contract with himself. A very similar controversy was involved in Fees v. Ritchey, 136 Kan. 221, 14 P. 2d 652, the syllabus of which is:
“Where the owner of an oil and gas leasehold contracts with a party to drill an oil and gas well and agrees to furnish the pipe necessary, and he rents the pipe from another party by conveying a three-thirty-seconds interest in the well to, him and agrees to buy the pipe if the well is a producer, and the well turns out to be a dry hole, the party who drilled the well has a lien on the pipe along with the other equipment on the leasehold, and the party from whom the pipe was rented has no lien.”
Appellant endeavors to distinguish that case from the present one in “that the owner of the leasehold did not purchase the pipe or casing, but that it was only rented, and the use of the casing was a mere temporary expedient and never became anything more. It was said in that case that the appellant was paid in full according to his agreement for the use of the casing.” The distinction attempted is not warranted by the facts. In this case, Bennett undertook to furnish casing for an interest in the lease and, while he undertook to make a sale contract in event of certain happenings, just as was done in the Fees case, he retained the title in himself until he was paid.
The trial court committed no error in adjudging that Bennett was not entitled to a lien on the leasehold and equipment, and the judg-r ment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for the recovery of money and asking that a certain claim be adjudged a lien on real estate. Judgment was for plaintiff. Defendant appeals.
The facts are as follows: On February 24, 1927, Marshall S. Cusick, together with his son, Perry I. Cusick, gave the Wayside State Bank a promissory note. On August 9, 1927, Marshall 'Cusick died testate with the note unpaid. By the terms of his will he left his widow a life estate in his real estate with remainder to their children. Rosa Cusick, his widow, was appointed executrix. On August 2, 1928, a claim was filed in the probate court of Montgomery county for the amount due on the note. It was allowed as a fifth-class claim. On November 24, 1928, the executrix filed a final report which gave notice of final settlement. On December 27, 1928, the probate court issued an order approving her final report, finding that the amounts were correct, that the administration of the estate had been fully completed, that all of the terms of the will had been complied with, and that there remained nothing to be done except to distribute the funds belonging to the estate, and that the sum of $139.64 in the hands of the executrix should be paid over to Rosa Cusick. On the same date Rosa Cusick obtained an order showing that she had made full and final distribution of the funds in accordance with the order previously made, and she was discharged. She did not pay any portion of the claim of plaintiff, as allowed by the court and provided for in the provisions of the will for the payment of debts of the deceased, but instead applied the money she had in her hands in making a distribution to herself.
The deceased at the time of his death owned the real estate described in the petition.
The action was based upon the theory that the action of Rosa Cusick in filing her final report without paying the claim of the Wayside State Bank and in appropriating the money in her hands to herself was unlawful and wrong, and that she is liable for unfaithful administration of the estate, and is liable to plaintiff on account of such unfaithful administration, as provided in section 22-1001 of the Revised Statutes of Kansas.
The district court overruled the demurrer to plaintiff’s evidence and rendered judgment in favor of plaintiff and granted plaintiff a lien for the satisfaction of said judgment upon real estate, which was owned by deceased, and ordered the sale of the property for the satisfaction of the indebtedness. A motion for new trial was filed and overruled.
This action was filed over two years after the order closing the estate was made. Appellant argues that the action is a collateral attack upon a final order of the probate court on account of fraud, and that before appellee would be entitled to judgment he must first prove that actual fraud existed; second, that the fraud must be extrinsic to the issues before the court when the judgment was granted; third, that the action must be begun within two years after the discovery of the fraud; and fourth, that the fraud was discovered when the publication notice was given in December, 1928, and the final order made a matter of public record in probate court on the 27th day of December, 1928.
It is the contention of appellee that the action is brought under the provisions of R. S. 22-1001. This section is as follows:
“If any executor or administrator shall unreasonably delay to raise money by collecting the debts and effects of the deceased, or by selling the real estate if necessary and if he can obtain an order therefor, or shall neglect to pay what he has in his hands, it shall be deemed unfaithful administration in such executor or administrator, and he shall be liable on his administration bond for all damages occasioned thereby.”
Should it be decided that the action was one upon a liability created by statute, the second subdivision of R. S. 60-306 would apply and plaintiff would have three years in which to bring his action, and this action was brought in time. Should it be decided that it was an action for relief on the ground of fraud the plaintiff had only two years and the action was barred. The elements of the right of action as set out in R. S. 22-1001 are unreasonable delay on the part of the executor to raise money and neglect to pay what he has in his hands.
The petition of plaintiff did not allege facts sufficient to state such a cause of action. The cause of action set out is a case of misrepresentation and fraud on the part of the executrix in that she “wrongfully, unlawfully and fraudulently” caused the order closing the estate to be made. Throughout the petition the words “wrongfully and fraudulently” were used in describing the conduct of defendant. Under these circumstances we have concluded that the action was one based on fraud, and that the two-year statute of limitations applies.
Plaintiff argues that even if this be true it did not discover the fraud until a short time before the action was brought. The trouble with that argument is that the closing of the estate was a matter of public record. Notice of it was given in the paper and plaintiff was bound by that notice. (See Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 216.)
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a life insurance policy. Plaintiff was the named beneficiary. The defendant company which issued the policy admitted it owed somebody. Another defendant claimed the proceeds of the policy under an assignment of it by the deceased insured, which assignment in its inception had also been executed by the plaintiff.
The material facts, in part, were these: In 1921 the Great Southern Life Insurance Company issued a life insurance policy for $2,000 to the late Ralph Y. Taylor, husband of this plaintiff. Taylor was an insurance solicitor. In 1925 Taylor was in the employment of the American Home Life Insurance Company, defendant, on a commission basis. His employer was accustomed to make advances to him on his prospective commissions. On April 4, 1925, Taylor borrowed $1,000 from his employer, giving his demand promissory note therefor, signed by himself and wife, plaintiff herein, and secured by an assignment of his $2,000 policy issued by the Southern company. Plaintiff joined in that assignment. This note was eventually paid, but the policy assigned for its security was not returned. It remained in the possession of the American Home Life Insurance Company until the death of Taylor, which occurred on May 20, 1931. At various times after the transaction of April 4, 1925, Taylor procured loans and advances of commissions from his employer. In some of these, notes were executed by Taylor and plaintiff.
In plaintiff's action to recover on the policy following the death of her husband, she impleaded the American Home Life Insurance Company, alleging that it claimed some interest in the policy, and prayed for an adjudication that it had no right to it or to the sum due under its terms.
The defendant, which issued the policy, answered, admitting the execution of the policy, and alleged that its face value was subject to certain deductions for a policy loan and for unpaid policy notes and the interest thereon, but liability in the sum. of $1,618.73 was acknowledged in favor of whomsoever the court should decide upon.
The American Home Life Insurance Company answered and filed a cross petition in which it alleged facts substantially as outlined above. It also pleaded a paragraph of the insurance policy which permitted the insured to change the beneficiary, and another paragraph which gave the insured the right to assign the policy.
It was further alleged that the policy was assigned, not only to secure the indebtedness of $1,000 stated above but also to secure any indebtedness owing by insured or plaintiff, or both of them, to this defendant—
“And to secure the payment of any advances which the said American Home Life Company might make from time to time to the said Ralph V. Taylor, now deceased, and to the said plaintiff, or either of them, and to secure the payment of any money which at their request might be thereafter loaned by said American Home Life Company to the said Ralph V. Taylor, now deceased, and Leota V. Taylor, or either of them, and that the said life insurance policy was to be a continuing security for the advancements or loans of money which might be made by the said American Home Life Company to the said Ralph V. Taylor, deceased, or to the said plaintiff herein, or either of them, at sundry and divers times in the future.”
This defendant also set out four notes executed by Taylor in its favor for $200, $200, $4,989.80 and $2,500, upon all of which an aggregate balance of $3,969.16 was still due, and that the life insurance policy was pledged and given as security for this amount. By an amendment to its answer this defendant set up some details of a transaction involving applications for insurance by three persons, George, Frederick and Herman Blau, on which Taylor had accepted premium notes amounting to $1,177.30, which he had discounted in the Leoti State Bank, deducted his commission and remitted the balance to defendant, but that these applicants had refused to submit to a requisite medical examination and had lodged a charge of fraud against defendant with the insurance department of the state of Kansas as the outgrowth of Taylor’s dealings with them, the exact nature of which defendant did not know at the time its answer and cross petition were filed because the insurance department had not yet determined what, if any, liability might be imposed on defendant on account thereof.
Plaintiff’s reply alleged that any indebtedness secured by the policy under the assignment to which she had assented was long since paid; that the policy had never been assigned to defendant for any other indebtedness owing by Taylor, nor to secure payment of future advances to him, nor to secure further loans to him or to plaintiff, nor to both of them; that neither Taylor nor plaintiff were indebted to defendant at the time of his death, and that any indebtedness owed or which might yet be due from Taylor or herself was fully secured by renewal commissions due or to become due and that these would pay in full any sum which might be owing to defendant as the net result of its dealings with Ralph V. Taylor.
Many other allegations of fact are set out at length in the pleadings, but the foregoing summary of the issues will sufficiently serve for this review.
The cause was tried before a jury. The burden of proof was placed on defendant and cross petitioner, the American Home Life Insurance Company. Its evidence, subject to objections of plaintiff touching its competency, tended to support the material allegations of its defense. One significant item of defendant’s evidence was a letter written by Taylor to the president of the defendant company, which contained the following:
“My Dear Mr. Metzger: “Kingman, Kan., October 10, 1927.
“. . . I will pay this week again the premium on two thousand dollars insurance that is assigned to your company to make my account safer.”
The jury returned a general verdict in favor of the American Home Life Insurance Company, and answered some special questions, as follows:
“1. Was the written assignment of the insurance policy involved in this action and dated May 12, 1925, executed and delivered by R. V. Taylor and the plaintiff to secure only the $1,000 note dated April 4, 1925? A. Yes.
“2. Was the policy of insurance on the life of R. V. Taylor issued by The Great Southern Life Insurance Company assigned to and delivered to The American Home Life Insurance Company about May 20, 1925? A. Yes.
“3. Was the policy mentioned above, left with and kept by The American Home Life Insurance Company until the date of the death of R. Y. Taylor? A. Yes.
“4. Did R. V. Taylor, from time to time, borrow money from The American Home Life Insurance Company while the policy was being held by said company? A. Yes.
“5. Did either R. V. Taylor or his wife, Leota V. Taylor, ever demand or request the return of the above policy at any time after May 20, 1925? A. No,
“6. Did R. V. Taylor and Leota Y. Taylor owe The American Home Life Insurance Company money in excess of the amount of the policy at the date of his death? A. Yes.
“7. Did the plaintiff, Leota V. Taylor, at all times know that the policy described in question No. 2 was deposited with and in the possession of The American Home Life Insurance Company from on or about May 20, 1925, up until the death of her husband, R. V. Taylor? A. Yes.
“8. Did Leota V. Taylor execute tire promissory notes and all of same described in the answer and cross petition of The American Home Life Insurance Company, and permit same to be delivered to said company? A. Yes.”
Plaintiff’s motions for judgment non obstante, and for judgment on the answer to special question No. 1, and for a new trial, were overruled; and judgment was entered for defendant.
Plaintiff appeals. The errors she assigns center about the question whether the appellee is entitled to receive the proceeds of Taylor’s insurance policy which it held as security for the amount of notes, advancements and borrowings Taylor had obtained from appellee, or whether its rights are limited to the terms of the original assignment of April 4, 1925. A related question is that of estoppel which may require no determination.
It is first suggested that the special findings of fact were inconsistent with the general verdict. In support of this point, attention is directed to special finding No. 1 where the jury- found that the assignment originally was only intended to secure the note for $1,000 dated April 4,1925. But that finding did not preclude consideration of the question whether the original conditions of the assignment were afterwards changed or modified by Taylor and the appellee. The facts were sufficiently pleaded to permit that defense; and certainly there was evidence to support it. Some probative significance inhered in the circumstances — the policy was retained by the appellee for several years after the $1,000 note was paid (special finding No. 3), plaintiff at all times knew of its retention (special finding No. 7), and neither Taylor nor plaintiff ever sought its return (special finding No. 5). There was also the evidentiary significance which the jury could justly attach to the language of Taylor in his letter to President Metzger, wherein he referred to this policy of insurance as being “assigned to your company to make my account safer.” What concern could President Metzger have in the fact that Taylor was about to pay the premium on the policy, as the letter stated, if Metzger’s company was not holding it to make Taylor’s account safer?
Plaintiff contends, however, that there was no specific allegation or specific proof of any subsequent assignment or repledge of the policy after the transaction of April, 1925. But the facts were sufficiently pleaded so that plaintiff joined issue thereon and did not demur thereto nor otherwise attack their sufficiency; and the evidence outlined above, and other evidence to which we will later refer made a prima fade case that the terms of the original assignment had been enlarged or a subsequent assignment or repledge had been made, and that Taylor had repeatedly acknowledged its existence, as in his letter to Metzger, dated at Kingman, October 10,1927.
Plaintiff complains of the introduction of evidence touching various conversations between Taylor and different officers of the appellee. Typical of these was the testimony of Hobbs, secretary of the defendant company. In part, it read:
“A. Mr. Taylor arrived in Topeka on a Sunday evening and called me out to my home and asked me if I could come down to his room at the hotel. ... He said he would like to talk to me before I went to the office Monday morning. I told him I would be at the hotel room Monday morning about eight o’clock. I was there and went up with him to his room, and he said that he desired to secure an additional loan of money from the company, and he asked me if I thought Mr. Metzger, the president of the company, would loan him any more money and I told him I didn’t think so. He then made the statement that I was acquainted with how much business he had on the books of the company at that time and he felt he had four or five more years of good active service and that the potential renewals created in this additional new business, that he thought he could write, together with the renewal commissions he already had on the books and with the insurance he assigned to the company to protect his indebtedness that he thought he would be safe in making him an additional loan.
“A. That was in September of 1930.”
Timely objection was made to this and other testimony of similar import, one ground of which was that it was not binding on plaintiff. But the code section which deals with the admissibility of testimony touching transactions with deceased persons places no ban on such testimony as that of Hobbs. Neither his negotiations with Taylor nor those of Metzger and Taylor were personal. Hobbs and Metzger were merely agents of the defendant, and their testimony was competent. (Carroll v. Chipman, 8 Kan. App. 820, 57 Pac. 979; Shawnee State Bank v. Royal Union Life Ins. Co., 127 Kan. 456, 461-2, 274 Pac. 132.) See, also, 21 A. L. R. 928 et seq.
Plaintiff complains of certain instructions, two of which fairly develop the trial court’s theory of this lawsuit:
“No. 9. When one person borrows money from another person and at the time of obtaining such loan gives to the lender security without designating what it secures, the presumption is that it was given to secure only the sum borrowed at the time the security was given; but this presumption may be rebutted by evidence that the borrower afterwards borrowed other sums of money and agreed that the security should be used to secure the later sums borrowed.
“No. 11. If R. Y. Taylor and his wife executed the assignment of the policy under the express agreement with The American Home Life Insurance Company that it was given to secure only the $1,000 note executed by plaintiff and her husband to the insurance company on April 4, 1925, then your verdict must be for the plaintiff for $1,618.73, unless you further find that there was a subsequent agreement by which the insured agreed that the policy should be used as security for further loans as elsewhere instructed."
It is plaintiff’s contention that the language in these instructions which we have italicized was not within the issues. We must hold otherwise. Indeed, plaintiff herself must have so construed defendant’s answer and cross petition, as may be noted in her reply, part of which we have outlined above in our summary of the pleadings. While challenging their relevancy, plaintiff’s counsel does not contend that these instructions are incorrect statements of law. We hold they were pertinent also.
Critical emphasis is laid by plaintiff upon the opening statement of counsel for appellee. He said: “The only fact to be proven, as I take it, is whether or not this assignment was made to cover future debts or obligations that he might have to the American Home Life.” This court has said that opening statements of counsel are not to be construed in narrow technical fashion. (Smith v. Insurance Co., 108 Kan. 572, 574, 196 Pac. 612.) They merely serve to give the jury a general outline of what the lawsuit is about. So construed, there was no prejudicial variance from that outline throughout the course of the trial of which plaintiff may justly complain.
Other objections to the judgment earnestly pressed in the brief for appellant have been carefully considered, but they suggest nothing to justify further discussion, nor can we discern anything in the entire record to arouse misgiving about the justice of the judgment presented for our review.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought first in the city court of Wichita, by W. H. Stanley and J. W. McOscar against H. H. Blair and The Texas Company, to recover $800 alleged to have been advanced by plaintiffs to landowners as rentals on oil and gas leases which plaintiffs allege were sold to and agreed to be paid for by Blair, when the purchase of the leases was made by him, and it is claimed that The Texas Company became liable therefor when the lands were subsequently sold by Blair to The Texas Company. In the city court a demurrer was sustained as to The Texas Company, and judgment was rendered against Blair for $800. An appeal was then taken to the district court where a trial was had, and the case was determined on a demurrer to plaintiffs’ evidence. W. H. Stanley, it appeared, procured leases from the individual owners of four different tracts of land and placed them in escrow in a bank to be delivered when certain rentals were paid to the landowners. Plaintiffs alleged and testified that the rentals were advanced by Stanley, and that when Blair purchased the leases from Stanley it was agreed that payment for the rentals should be made by him. After the introduction of plaintiffs’ evidence, defendants filed a demurrer thereto on the ground that the evidence failed to establish a cause of action against defendants. The court sustained the demurrer, and from that ruling this appeal is taken.
In the sale of the leases to Blair, the negotiations were carried on by Stanley with Blair, but it appears that J. W. McOscar had acquired a half interest with Stanley in the leases, and hence he was named as a plaintiff and is one of the appellants.
Negotiations were had for the sale of the leases in March, 1930. Blair was at Hugoton, near which the leased lands are situated, and Stanley resided in Wichita. Some negotiations were had over the telephone as to the leases, and on the following day Stanley went to Hugoton where they came to an agreement to sell the leases for $2.50 an acre, which was reduced to writing in the following terms:
“Purchase Agreement. The undersigned, W. H. Stanley, agrees to deliver to H. H. Blair, on or before the - day of -, 1930, valid oil and gas leases and assignments thereof to H. H. Blair, covering the following described acreage in Stevens county, Kansas, to wit: southwest quarter (S'W%) of section 6-34-35W, at $2.50; southwest quarter (SW%) of section 18-34-35W, at $2.50; south half (S%) of section 11-34-36W, at $2.50; northeast quarter (NE%) of section 17-35-35W, at $2.50. And it is hereby understood and agreed that certificates of title, statements of status of loans, and all other requirements necessary to complete title, are to be furnished with oil and gas leases and assignments, payment to be made upon approval of title by H. H. Blair. Providing W. H. Stanley can get leases out of banks which said banks are holding leases in escrow.
(Signed) W. H. Stanley.
Accepted (Signed): H. H. Blair, V. Kistler.”
Notwithstanding the written contract, plaintiffs offered testimony to the effect that in addition to the $2.50 an acre expressed in the agreement, there were statements by Blair that he was to pay rentals on the leases to the farmers for a year, amounting to $800, and further that The Texas Company had, by virtue of statements made by Blair, become liable to plaintiffs for rentals advanced by Stanley. It appears Blair had subsequently sold the leases to The Texas Company at a profit of twenty-five cents an acre. The testimony, however, fails to show that The Texas Company was a party to the contract between Blair and the plaintiffs or that it had assumed any obligation on the payment of rentals. It also failed to show that Blair was the agent of The Texas Company or was authorized to represent that company in the transaction. There was testimony that plaintiffs desired to have The Texas Company agree to make the payments, but it is clear that it did not nor did it in any way assume the payment of the rentals. There can be no question that the court rightly sustained the demurrer as to The Texas Companjn
As to Blair there was some testimony to the effect that statements made by him subsequent to the contract might be interpreted as expressing a purpose to pay for the rentals but, as to that, it may be said there was no consideration therefor.
Plaintiffs also alleged in their petition that in order to get the leases out of escrow, it was agreed between the parties that plaintiffs should pay the rentals, and defendants would pay them or the property would be reassigned to plaintiffs. Whatever may have been said by the parties in the negotiations for the sale, the contract was put in writing and, it being definite and complete, parties cannot add to, alter or vary the terms of that instrument. The contract quoted was reasonably clear and complete. The terms as to the property sold and the consideration to be paid for it were contractual in their nature and are conclusive upon the parties. There was no attempt to reform the contract, nor was there any charge of fraud or mutual mistake in making the written contract. The attempt to show or recover a greater consideration was without force, in that it necessarily operated to vary the terms of the written agreement, and justified the court in sustaining the demurrer to plaintiffs’ evidence. The negotiations over the telephone were followed by the making of the written contract in which the parties embodied the conditions of the transaction. In a contract for the sale of property the price to be paid is an essential feature of it, and where that is expressed in writing it is conclusively presumed that it contains the whole terms of the contract. In Threshing Machine Co. v. Francisco, 106 Kan. 704, 189 Pac. 981, in which a written contract for the sale of a threshing machine was involved, a defense was set up of an added oral warranty contemporaneously made, and of that and the necessity for a consideration to uphold the added provision, the court said:
“The pleaded oral contract of warranty, if made at the time the engine was ordered and purchased, was not good for the reason that it tended to vary the terms of the written contract. If the oral contract was made after the written order had been signed and after the engine had been purchased, it was not good because there was no consideration therefor, either pleaded or proved. (Citing cases.) Neither could the pleaded oral contract and agreement made at the time of the writing, dated November 9, 1915, be admitted to add to, alter, or vary the terms of that instrument.” (p. 709.)
In Hazelton v. Chaffin, 109 Kan. 175, 197 Pac. 870, it was said:
“Here the defense was a parol agreement at variance with the written contract. Such a defense is never permitted unless some species of fraud or mutual mistake is also pleaded and proved. Where there is neither plea nor proof of fraud or mutual mistake, it is conclusively presumed that the written contract contains the whole terms and the only terms of the contract; and a person who has thus obligated himself cannot defeat a recovery on such contract by parol evidence of matters at variance therewith. Were the rule otherwise the making of a written contract would be a vain and useless undertaking. This has always been the law in this state.” (p. 177.)
If there were any subsequent oral agreements by Blair as to the price to be paid for the leases, to uphold them it would be necessary to prove a consideration, and it is clear that no consideration was to be paid for the claimed agreements. In Tong v. McArthur, 121 Kan. 870, 250 Pac. 262, there was a sale of a barber shop, and the writing recited a specific consideration. It was claimed that the parties also had an oral contract to the effect that the defendant should not engage in business as a barber in the vicinity for a specified time. In holding that the alleged contract could not be proven, the court said, among other things :
“The writing between the parties, admitted at the opening statement to have been executed by defendant and received by plaintiff, says the entire consideration was given for the property sold as described in the writing. In the face of this writing it is not competent for plaintiff to show that this consideration also included compensation for ancillary parol agreements.” (p. 872.)
The judgment for defendants is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment sustaining a demurrer to plaintiff’s petition wherein it sought to state a cause of action for breach of a contract for the purchase of specified quantities of wire used in the construction of airplanes.
The propriety of the trial court’s ruling chiefly depends upon the binding force which should be attached to certain written instruments, the first of which was an order dated March 4,1929, executed by the authorized agent of defendant’s predecessor in interest. So far as presently material it reads:
“Purchase Order.
Travel Air Mfg. Co., Manufacturers of Travel-Air Planes.
Order No. 7512, Wichita, Kansas. Date 3/4 1929.
"To Belden Mfg. Co. . . . Chicago, III.:
“Kindly ship the following goods: . . .
“Please acknowledge this order and advise approximate shipping date.
25.000 feet 6 Airspeed’ landing light wire at $40.49 M ft.
60.000 feet 16 Airsport’ duplex navigation light wire at $26.60 M ft.
40.000 feet '# 16 Airspeed’ single navigation light wire at $10.07 M ft.
“Covering approximate yearly requirement, more or less.
Ship each 2 months 4,000 ft. item 1.
Ship each 2 months 10,000 ft. item 2.
Ship each 2 months 6,500 ft. item 3.
“The Travel Air Manufacturing Co.
“By B. W. Edwards.”
On March 12, 1929, plaintiff mailed to defendant’s predecessor in interest its written acknowledgment of the foregoing order, which in part read:
“Acknowledge :
“Belden Manufacturing Company, subject to terms on reverse side.
Their order No. Dated. Date entered by— As our order No.
7512 3/4/29 3/12/29 B 31333
“Sold to: Travel Air Mfg. Company, Wichita, Kansas.
“This is acknowledgment of your order, as we have entered it, and which is accepted subject to the following terms and conditions whether or not they are at variance with terms appearing in your purchase order.
“6. On orders for special materials, the right is reserved to ship and bill 10% more or less than the exact quantity specified.
“7. Order not subject to cancellation.
“Belden Manufacturing Company, Chicago.”
These instruments were attached to plaintiff’s petition with appropriate references thereto, and it was alleged that in conformity with the contract evidenced by them, between the dates of March 15 and September 3, 1929, inclusive, plaintiff made thirteen shipments of wire to defendant, itemized in the petition and aggregating 58,225 feet of wire, and defendant acknowledged receipt of them.
The petition also alleged that thereafter and on November 16, 1929, defendant requested plaintiff to temporarily discontinue shipments, and thereafter defendant requested plaintiff to cancel the balance of the order or to dispose of part of the merchandise to other parties, and plaintiff did dispose of 7,685 feet of the wire to third parties as requested by defendant, but at no time did plaintiff agree to release defendant from its contract. Plaintiff alleged that it repeatedly tendered the remainder of the merchandise contracted for, to wit, 61,860 feet of wire, and repeatedly requested instructions in respect thereto but without avail; and that defendant has repeatedly refused and still refuses to accept the balance of merchandise due under its contract.
Plaintiff also alleged that the contract price of the undelivered wire was $2,007.08; that the market value of the same at the time this action was begun was $108.83, and that plaintiff’s damage for breach of the contract was $1,898.25, for which sum and interest it prayed judgment.
The petition also contained certain allegations touching the intention of the parties and prayed reformation of the contract in conformity therewith, but that detail may require no consideration in view of what will presently appear.
The trial court sustained defendant’s demurrer to plaintiff’s petition, giving its reasons therefor as follows:
“That the written memorandum pleaded by plaintiff constitutes a requirement order, and is further of the opinion that the facts pleaded are not sufficient to entitle plaintiff to the relief prayed for.”
This ruling is assigned as error.
In its scrutiny of the instruments constituting the alleged contract, the trial court concluded that the first of these instruments was no more than a so-called requirement order, by which it appar ently meant that it was only an order for so much of the aggregate amount of wire specified therein as defendant might require in its business of building airplanes; that the order was merely an approximation of its requirements, which might vary from its text to any extent. The order did explain or qualify the specified amounts of the various kinds of wire by the words “Covering approximate yearly requirement, more or less.” Whether this addendum to the specified amounts of wire could be given such potent significance as to reduce the size of the order by one-half if it had been accepted by plaintiff may be doubted but need not be decided.
The order required that it be acknowledged. Plaintiff did acknowledge it, but only upon the qualified terms dictated by itself. Those of present significance were that plaintiff might vary the quantity to be supplied as much as 10 per cent from the specified items of the order, and it also imposed the important condition that the order was not to be subject to cancellation. The legal effect of plaintiff’s written acknowledgment was not that of an unqualified acceptance of defendant’s order, but merely that of a counter-offer which, in turn, the defendant had a right to accept or reject as it saw fit. (Hayes v. Possehl, 92 Kan. 609, 141 Pac. 559; Contracts, Restatement, A. L. I., § 60.)
The petition also alleged that at various times between March 15 and September 3 some thirteen shipments of wire were made by plaintiff and accepted and paid for by defendant; that in November, 1929, defendant requested plaintiff to postpone further shipments, and eventually defendant requested plaintiff to cancel the balance of the order. These allegations, which must be regarded as facts for the purpose of the demurrer, show that plaintiff’s counter-offer of March 12 was accepted by defendant. (Contracts, Restatement, A. L. I, §§ 29, 63, 72.)
It is therefore apparent that a binding contract was entered into between the parties, and as its terms were not ambiguous, they were in no need of reformation. The contract by its proposed and accepted terms was “not subject to cancellation.”
It follows that the judgment of the district court was erroneous, and the cause must be remanded with instructions to set aside its ruling on the demurrer, and for further proceedings consistent therewith.
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The opinion of the court was delivered by
Smith, J.:
This was an action for personal injuries due to an explosion of natural gas. Judgment was for plaintiff. Defendant appeals.
Defendant is engaged in the business of distributing natural gas for domestic consumption at Jewell City, Kan. The gas is transported across the country under a pressure of from 180 pounds to 230 pounds to the square inch. The distributing company, which is the defendant here, reduces the pressure at the city gates to about 5 pounds to the square inch. Before the gas is piped into the various devices about the city it is necessary to further reduce the pressure to a few ounces to the square inch. This is done by an instrument called a regulator. This is a device shaped something like a saucer. It is always installed somewhere between the point where the service pipe is attached to the supply line and the burner tips. The method of installing it is that the service pipe is laid to the place where the regulator is to be located, and there a pipe is run up and connected onto one side of the regulator. From the other side of the regulator a pipe is then run down to the bottom of the trench and from there into the building. It will be seen that there were two pipes leading into the regulator, one carrying gas under a pressure of about five pounds to the square inch and the other carrying gas under a pressure of a few ounces to the square inch. This regulator supported on these two pipes was about eighteen inches to two feet above the ground.
The explosion in question occurred at the rear of a restaurant which was supplied with gas by defendant. The supply line in this case was laid in the alley at the rear of the restaurant. This restaurant building in question does not extend to the alley, but has a space in the rear about seventy feet long and about twenty-five feet wide. The buildings on each side extend to the alley. This alley is a busy one, and it was well known in the city that trucks frequently back into this vacant space to turn around and drive into it to deliver goods to the restaurant. In the rear of this vacant space and about 14 feet north of the southwest corner of it and about five feet from the alley line stood a building used as an outside toilet. This building had been erected over a pit dug in the ground. This toilet was used by the members of the restaurant keeper’s family, his employees and customers.
The service line for the restaurant was attached to the supply line in the alley and laid in a trench just south of the toilet. The regulator was installed, as has been seen, about eighteen inches to two feet above the ground and just to the south and about a foot away from the toilet. About two weeks before the explosion, which is the basis of this action, a young lady started to use the toilet in question between 9 and 10 o’clock at night. Just before she entered the building she struck a match. An explosion occurred and the building caught fire. The fire department was called and succeeded in putting the fire out. An examination disclosed that the pipes leading into the regulator had been hit by a truck backing into it. This broke the connection on the alley side of the line and permitted gas to escape under a pressure of about five pounds to the square inch. The company was immediately notified of what had occurred, and two men were sent to the scene of the explosion. These men discovered what had happened and reported all the circumstances to the manager in charge of all operations and the superintendent of construction. The regulator was replaced in the same location in the same manner as it had been.
The record discloses that about two weeks after this explosion, and about two days before the injury sued on, the regulator was again hit by a truck and the connection broken on the side toward the alley.
• The plaintiff was a minor and was visiting his uncle, who was operating the restaurant in question. About two weeks after the fire just described, plaintiff, just about noon, retired to the toilet in question. While sitting on the seat there with his clothing partly removed he struck a match to light a cigarette. An explosion followed which wrecked the building and threw plaintiff through the closed door. He was burned from the hips to the lower ribs, his face and neck -were burned, the flesh on the inside of his lips, his ears and his hands and arms to the elbow were burned.
This action followed. The petition described the situation about as it has been set out here. The negligence pleaded was the manner and place of installing the regulator. The answer of defendant was a general denial. The jury returned a verdict for plaintiff and answered a special question, as follows:
“Q. 2. If you find for the plaintiff then state of what the negligence of the defendant consisted. A. Regulator should have been moved, public nuisance.”
Judgment was given accordingly.
The first point urged by defendant is that its motion for judgment on the pleading and opening statement should have been sustained. The argument is that it was admitted that the explosion occurred when plaintiff struck a match to light a cigarette. It is pointed out that it is against the law for a person in control of premises to permit a minor to smoke on premises controlled by him; that the smoking of the cigarette made plaintiff an accessory to the act of permitting the smoking, therefore the plaintiff was injured as the result of his own unlawful act and cannot recover. The trouble with that argument is that the record discloses that the uncle had told the boy not to smoke, and at the stage of the trial when the motion was made neither the pleadings nor the opening statement disclosed that the uncle even knew that the plaintiff smoked.
The other ground upon which defendant argues that the motion for judgment on the pleadings and opening statement should have been sustained is that they disclose that the alleged act of negligence was not the proximate cause of tlm injury.
The train of events is pointed out as follows: Placing the regulator, truck hitting regulator, gas escaping, match struck, injury. Defendant insists that the truck hitting the regulator was the proximate cause of the injury and that defendant had nothing to do with that. It argues that this act of the truck was an independent and inter- veiling cause from the act pleaded and found to be negligence, and that this excuses defendant from liability. But can this be said? The defendant was engaged in the business of transporting a highly dangerous and inflammable substance. Its duty was to so handle this substance as to protect the public from injury by an explosion. See Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032; Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Carlson v. Development Co., 103 Kan. 464, 173 Pac. 910, and House v. Wichita Gas Co., ante, p. 332, 20 P. 2d 479. Was this duty performed when the regulator was placed where it was placed and in the manner in which it was placed there?
Of course, if the truck had not hit the regulator this particular chain of events would not have occurred, but the event in the chain that involved a breach of duty was the placing of the regulator in a spot where it was a target for the trucks that used the alley and came into the area at the rear of the restaurant on business. In Walmsley v. Telephone Association, 102 Kan. 139, 169 Pac. 197, the court said:
“But the law does not say that if the particular injury arising from the negligence cannot be anticipated a recovery cannot be had. That some damage, some injury, would probably arise from the existing negligence, and that it could reasonably have been expected, is all that the law requires to justify a recovery.” (p. 143.)
See, also, Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320.
After the explosion, which is the basis of this action, the regulator was moved to a point near the building where there is no danger of its being hit by a truck. It cannot be said that defendant exercised due care in handling its dangerous substance by again installing the regulator where it was first installed, when, by the simple act of moving it, the recurrence of such an event could have been prevented.
In this case the defendant should have anticipated the very event that is the basis of this action. It had seen the regulator hit by a truck. It had seen that this would break the joint so that gas would escape. It had seen that the gas wopld seep through the soil to the toilet seat. It had seen that persons approaching or using the toilet struck matches. That these events should have been anticipated by defendant may be said because its managing officers had seen them happen two weeks before at this very place and under identical circumstances. In Early v. Burt, 134 Kan. 445, 7 P. 2d 95, this court quotes with approval the rule laid down in Corpus Juris:
“ ‘It is well settled that the mere fact that other causes, conditions or agencies have intervened between the defendant’s negligence and the injury for which recovery is sought is not sufficient in law to relieve defendant from liability. In other words, an intervening cause will not relieve from liability where the prior negligence was the efficient cause of the injury.’ (45 C. J. 926.)” (p. 452.)
In the syllabus to the opinion in the above case the court states the rule as follows:
“Where the prior or original negligence which produced the unsafe condition was the efficient cause of the injury, another and intervening cause will not generally relieve the defendant from liability.” (114.)
From what has been said we have reached the conclusion that the placing of the regulator in the position and condition in which it was placed was negligence; that this negligence was the proximate cause of the injury sued on, and that it could have reasonably been anticipated by defendant that an injury would result.
Defendant argues that since the regulator was on the land of the consumer and a part of the service line, and since it was inspected and passed by the city inspector, defendant was not liable for an injury resulting from the location and manner of installing the regulator. Here again the defendant is met by the rule that a company engaged in the transportation and sale of natural gas is bound to exercise a high degree of care to protect life and property. It appears that the regulator was the property of defendant. Its use was necessary on account of the particular type of distribution system that was operated in the city. The first explosion required prompt action on the part of the defendant that would have prevented the injury. The fact that the condition that caused the injury was on the service line does not excuse defendant from its duty to exercise a high degree of care. See Atkinson v. Wichita Gas Co., 136 Kan. 854, 18 P. 2d 127, and authorities there cited.
Defendant further complains of the admission of two bits of evidence which it claims should have been excluded. The first is testimony of the doctor who treated plaintiff. He was permitted to testify that plaintiff might have had tetanus, and later, that the burns might have caused stomach trouble or kidney trouble. Defendant argues that the admission of this testimony was error because it was speculation and not testimony of a fact. The defendant was not prejudiced by these questions and answers because the doctor testified a little later that none of these things had happened.
The other evidence, objection to which defendant urges should have been sustained, was with reference to a statement made by a person which plaintiff claimed to.be employed by defendant. The uncle of plaintiff was permitted to testify that after the injury a man who was an employee of defendant told him that the gas line was not in the proper place and was not properly fixed the first time and should not have been put in that way. Defendant argues that the statement was a declaration of an agent outside of his authority and not admissible against the employer. It is sought to bring the statement under the rule laid down in Stecher v. Southwestern Bell Tel. Co., 132 Kan. 362, 295 Pac. 709. In that case the action was to recover for injuries alleged to have been caused by a defective lightning arrester on a telephone. The important question in that case and the question upon which there was very little evidence was the condition of the lightning arrester. The statement of the employee was, “It is a wonder something hadn’t happened before. . . . There was something, missing.” This constituted almost the only evidence as to the condition of the lightning arrester. The court held the admission of the statement to be error. Admitting for the moment that the statement of the workman was inadmissible to bind the defendant, still in view of the overwhelming evidence in this case on the point on which the statement was offered it cannot be said that the evidence was prejudicial.
Defendant argues that the court gave erroneous instructions. One of those complained of is instruction No. 7: In that instruction the court told the jury:
“Natural gas is a highly inflammable and explosive commodity and any corporation or individual or company which distributes the same is required to exert a degree of care in the handling or distribution of the same commensurate with the danger involved thereby, in order to prevent any injury resulting from the escape of such gas, and if the owner or distributor of said gas failed to use care and caution commensurate with the danger involved in its handling and distribution, such handler or distributor is liable for all the natural and probable consequences which flow from such breach of duty.”
Defendant argues that this instruction is proper where the injury is the result of an explosion on a highway, or public place, but does not- apply to the facts in this case. It would be hard to imagine a case where this instruction would apply more aptly than it did in this case in view of all the surrounding circumstances.
Plaintiff urges that the giving of instruction No. 8 was error. In that instruction the court told the jury:
“It is not necessary that you find from the evidence that the defendant could or should have anticipated the particular injury of which plaintiff complains, but it is sufficient if from the situation and location of the gas regulator and the pipes exposed, the defendant could reasonably have anticipated that some injury might result from its regulator having been placed in such position, if you further find that the defendant had notice or knew of said regulator being so placed.”
This instruction was a proper one under the circumstances. See authorities already quoted on anticipating injury.
Defendant urges that the giving of instruction No. 9 was error. In that instruction the court told the jury that—
“If said regulator was negligently placed where it was placed, . . . the defendant would be liable for any injury to plaintiff that resulted from the negligent placing and maintaining of said gas regulator as a direct and proximate result of such negligence.”
We see nothing wrong with this instruction. There are objections to other instructions, but it is not deemed necessary to discuss them further in this opinion. Suffice it to say that the instructions covered the law of the case fully and fairly, and counsel fails to point out any particular wherein the law was incorrectly stated.
The jury answered a special question as follows:
“1. If you find for the plaintiff, how much do you allow him for: (a) Pain and suffering? A. $4,000. (b) Permanent injuries? A. $1,000. (c) Doctor bill? A. $61.25. {d) Nurse bill? A. $80. (e) Board and room? A. $30. (/) Loss of time? A. $180.”
Appellant filed a motion to set aside these answers as not being supported by any evidence. Special emphasis is place.d on the award for permanent injuries. The court ordered a remittitur of $500 for this item and defendant urges that there was no evidence to support even this amount. The record discloses that plaintiff had a disfigured ear and a scar on the wrist and other scars as a result of this explosion. Under these circumstances, we are not prepared to say that evidence, which shows these disfiguring marks, does not sustain an award of $500 for permanent injuries. The rule is laid down in Hardwick v. Railways Co., 114 Kan. 843, 220 Pac. 1043, where the court said:
“Of course rules for dealing with excessive verdicts are not altogether wanting; if on reading the record the conscience of the court is shocked at the verdict, a remittitur or reversal is ordered; but there is no uniform yardstick, nor hard and fast rule, by which the excessiveness of a verdict can be measured and determined as in ordinary mathematical calculations.” (p. 845.)
We see nothing in the answers to any of the questions that is not sustained by substantial evidence or that shocks the conscience of the court.
The defendant argues that a new trial should have been granted largely on account of some pictures of the scene of the explosion that were offered to show the surroundings. Since the jury saw the scene it is hard to see why a new trial should have been granted in order to permit another jury to look at some pictures of the scene.
After a careful examination of the record we have reached the conclusion that there was no error committed by the trial court.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
These were consolidated actions to recover on two insurance policies which covered an airplane hangar near Arkansas City which was destroyed by fire.
Plaintiff, Lee Lawson, owned the hangar; his father, plaintiff Nathaniel Lawson, had a mortgage on it. It had been purchased in Texas from the federal government by the Arkansas City chamber of commerce, transported from Texas, and reerected on leased premises near Arkansas City. It had a capacity to house twelve airplanes, with a work shop and repair annex attached thereto. It was insured in various amounts, aggregating $8,000, by different insurance companies. The insurance contracts of present concern, for $2,000 each, were effected in June, 1930. In consideration for this insurance plaintiff paid $8.80 in cash and gave his promissory note for $200 payable in seventy days. This insurance was negotiated between Lee Lawson and Walter Colvin, local agent and representative of defendant companies. Colvin accepted the note for $200, and it was agreed that he should hold the policies until the note was paid. Any other facts which may require attention will be stated as we proceed.
The hangar was totally destroyed by fire on July 6, 1930. Payment of the insurance was resisted by these defendants, and this action followed.
Plaintiffs’ respective petitions recited pertinent facts on which to predicate prima facie liability. Defendants filed separate answers in which they denied that Lee Lawson was the'owner of the hangar, and denied that he had any insurable interest in it. It was alleged that at the time the inshrance contracts were effected defendants were not aware that the hangar was on leased premises; that they did not know that the hangar was mortgaged by Lee Lawson to Nathaniel Lawson; that Lee Lawson did not perform the obligations to which he was bound by the terms of the policies and in consequence they never became effective.
Defendants’ answers admitted that shortly after the fire their agent was notified of the loss, but that formal proofs thereof had never been made by plaintiffs and that the submission of these had not been waived. It was also alleged that Lee Lawson had misrepresented and overstated the value of the haqgar and that defendants had relied thereon.
Defendants also pleaded certain paragraphs of the policies, which, among other matters, provided that the insurance contracts would be altogether void if the insured had concealed or misrepresented any material fact, or if the interest of the assured was other than unconditional and sole ownership, or if the insured building was situated on land not owned by the insured in fee simple. It was also alleged that Lee Lawson’s ownership of the hangar was only conditional; that the Arkansas City chamber of commerce had an interest in it, and that the title and ownership of the hangar was vested in one Thompson, lessor of the aviation field on which the hangar was situated.
Further allegations of the answers were that the premiums on the policies had never been paid; that the policies had never been delivered, and that defendants were not liable thereon.
These actions were begun on August 14, 1931, some thirteen months after the fire. The following day plaintiffs served notice on defendants to take the deposition of Lee Lawson in Arkansas City on August 25, 1931. Counsel for both parties appeared, and Lawson’s deposition was begun and continued until the following day, at which time it was completed.
The action came on for trial on April 22, 1932, before a jury. Lawson’s deposition was read over defendants’ objection. Other oral and documentary evidence was adduced at length by the parties. The jury returned verdicts for plaintiffs for the amounts of the policies in both cases. Motions for a new trial were overruled and judgments entered accordingly.
Defendants appeal, urging various errors which so far as practicable will be noted in the order of their presentation.
1. The first error urged relates to the admission of Lee Lawson’s deposition in evidence. They argue that while our code permits depositions of witnesses to be taken, it does not include parties. Under our practice, however, a party may be a witness, and, therefore, Lawson’s deposition was as regularly taken as if he had no interest in the litigation. (18 C. J. 611; 4 Jones on Evidence, 2d ed., p. 3620; 2 Bancroft’s Code Practice and Remedies, § 1163.) In this case it was peculiarly proper and prudent to take Lee Lawson’s deposition. He followed the dangerous vocation of an aviator; after the destruction of his hangar his vocation had taken him to Mexico for a number of months, and when his deposition was taken he was about to set out for California. Defendants argue that it was unfair to take Lawson’s deposition so quickly after beginning the action when counsel had not had sufficient time to familiarize themselves with the case so as to cross-examine him thoroughly. However, the trial did not occur for more than seven months after his deposition was taken, and not during that interval did they discover anything which they might have elicited from Lawson if his deposition had not been taken until some later date. The trial court’s ruling on this point was correct.
2. It is next contended defendants’ demurrer to the evidence should have been sustained. Various points are argued under this assignment, one of which is that by agreement of plaintiff and defendant’s agent, Colvin, the policies were retained by the latter, and were to be thus retained by him until Lawson had paid the note he had given for the balance of the premiums. Defendants argue from this arrangement that the policies were never delivered.
(a) That the instruments never did pass into the possession of plaintiffs was not in dispute; but whether the circumstances under which they were retained by defendants’ agent had the legal effect of no delivery is quite a different proposition. Plaintiffs’ note was accepted for the unpaid balance of the premiums. Defendants’ ' agent had authority to make that arrangement. The policies recited that they became effective according to their tenor on the dates of their execution. In his daily reports the agent had notified the companies of these particular risks he had obligated them to carry. Under such circumstances it was of no importance that there never was any manual delivery of the policies. (26 C. J. 58.) Indeed it has been held that where a contract of insurance is actually made the insured is bound although the contract itself had never been reduced to writing and no policy executed. (Wilson v. Insurance Co., 90 Kan. 355, 357, 358, 133 Pac. 715.)
(b) The next point urged in support of the demurrer to the evidence is based on the policy provisions that they should be void if the interest of the assured was other than unconditional and sole ownership, and likewise void if the assured had concealed or misrepresented any material fact pertaining to the subject of the contract. Answering the last point first, the record does not show that plaintiff Lawson concealed or misrepresented any material fact relating to the subject of this insurance. He advised the agent that the hangar was on leased ground, and the agent so informed his principals in his daily report. Lawson gave the agent his opinion that the value of the hangar was $12,000 or $13,000, and that he understood that it had cost the government $18,000. Mere opinion and hearsay do not constitute misrepresentation. However, de fendants assert that Lawson fraudulently concealed the fact that the chamber of commerce of Arkansas City had sold him the hangar for $800 on five yearly payments of $160, and that he had only paid two of them when the insurance was procured. This bald assertion is a good illustration of the old adage that a half truth is frequently more misleading than a statement which is wholly untrue. Lawson did obtain the hangar on the nominal financial terms just stated, but the principal consideration was that the chamber of commerce wanted to maintain an airport in charge of a practical aviator and airplane mechanic who could furnish the usual services and supplies pertaining to that line of business. Lawson possessed the requisite qualifications and undertook to operate the airport in accordance with the policy dictated by the chamber of commerce. Under these circumstances the significance of defendants’ assertion that he concealed the facts touching the cost of the hangar is reduced to zero. But it is insisted that Lawson’s ownership of the hangar was only conditional, that by the terms of his contract with the chamber of commerce his full title to the hangar was not to be complete until he had complied with “all the terms and conditions hereof,”'one of which read:
“Party of the second part, as a further consideration, agrees to keep in force and effect fire, lightning and tornado insurance on said hangar in the full insurable value thereof.”
The law appears to be settled that so far as relates to the enforcement of insurance contracts one who has purchased property on an executory contract, although its terms are not yet fully performed by him, is the sole and unconditional owner of it.
In Phoenix Ins. Co. v. Kerr, 129 Eed. 723, 66 L. R. A. 569, one of the defenses to the action on a policy of fire insurance covering an elevator which was burned was that the interest in the elevator of Kerr, the insured, was other than that of unconditional and sole ownership. On that point the court said:
“The purchaser of the property, who is in the possession of it under a contract whereby the former owner agrees to sell and the buyer absolutely binds himself to purchase and to pay an agreed price for the property, is almost universally held to be the unconditional owner of it under the clause under consideration, because the loss from any injury or destruction of the property falls upon him. If the owner has ageed to sell and the vendee has agreed to buy on definite terms, the purchaser is the sole and unconditional owner of the property within the true meaning of the clause upon this subject in insurance policies, because the vendor can compel the purchaser to pay for the property notwithstanding its injury or destruction, and hence t,o suffer the loss occasioned thereby.” (p. 726.)
In Dupreau v. Insurance Co., 76 Mich. 615, 5 L. R. A. 671, it was held:
“A vendee legally in possession under a part-paid land contract, who is legally obligated to pay the balance of the purchase price, and to keep the buildings on the land insured in favor of the vendor, may be said to be the entire, unconditional, and sole owner, within the meaning of a policy providing for such ownership, as a condition to the validity of the policy.” (Syl. H 2.)
See, also, Hankins v. Insurance Co., 96 Kan. 706, 153 Pac. 491; Plotner v. National Fire Ins. Co., 118 Kan. 234, 234 Pac. 959; Arkansas Insurance Co. v. Cox, 21 Okla. 873, 20 L. R. A., n. s., 775; Houseman v. Insurance Co., 78 W. Va. 203, L. R. A. 1917A 299, 303, 304; Anno. — Insurance—Conditional Sale, 38 A. L. R. 200 et seq.; 26 C. J. 174, 175; 14 R. C. L. 1058; Vance on Insurance, 444.
(c) It is also contended that the demurrer to the evidence was good because the hangar was located on ground not owned but merely leased by the insured. The evidence was indisputable that defendants were apprised of this fact, yet they chose to carry the risk. In such a situation they cannot defeat the policies by the mere inclusion of a paragraph in their printed texts that the want of a fee-simple title in the realty would defeat the insurance obligations they had undertaken. It is suggested that Thompson, lessor of the aviation field, is or may have been the real owner of the hangar. The basis for this contention was the testimony of Lawson, in which he said:
“As I understood, if I had gone away and left the hangar, it would have become Mr. Thompson’s.”
This evidence bore no significance on the question of Thompson’s interest in the hangar. While by the ancient rules of law any structure attached to the freehold became part of the realty and the property of the landlord, modern conceptions of law and justice have made vast inroads into that doctrine. In Farmer v. Golden Rule Oil Co., 130 Kan. 803, 287 Pac. 706, the action was for damages to real estate resulting from the removal of a filling station from the premises at the close of the five-year term of lease during which defendant had constructed the filling station. In affirming the judgment for defendant, Mr. Justice Burch, speaking for the court, said:
“As between landlord and tenant the law is extremely indulgent to the tenant with respect to removal of structures annexed for the purposes of the tenancy. (Wiggins Ferry Co. v. O. & M. Railway, 142 U. S. 396.) There is good authority that, under circumstances less cogent than those disclosed by the findings of fact, the law would imply right of removal (11 R. C. L. 1083).” (p. 805.)
In Ray v. Young, 160 Ia. 613, 46 L. R. A., n. s., 947, it was held that a frame building covering 30 by 50 feet of space, erected by a tenant on the leased property, which was placed on a cement foundation and was connected by a shed with the building on the lot when the lease was taken, and which was used as a garage and repair shop, could be removed by the tenant at the end of his term as a trade fixture if it could be done without injury to the freehold.
See, also, Frost v. Schinkel, 121 Neb. 784, where the right to remove trade fixtures attached to the freehold is exhaustively treated.
(d) We think that the hangar was in the nature of a trade fixture, and that Thompson, owner of the aviation field, had no interest in it. In justice to him it should be added that there was no evidence that he ever made any claim to the hangar. It was personal property, and so represented to defendants’ agent, and insured as such, and the printed paragraph dealing with a situation where the insured does not have fee-simple title to the realty had nothing to do with these contracts of insurance which covered this hangar. (Eisman v. Fire Insurance Co., 115 Kan. 80, 221 Pac. 1116; Note to Nance v. Oklahoma Fire Insurance Co., 31 Okla. 208, in 38 L. R. A., n. s., 426, 427-430.)
(e) The next ground of demurrer urged by defendants relates to plaintiff’s omission to submit formal proofs of loss. By the printed terms of the policies the insured was required to give immediate notice to the insurer in writing and follow that with a sworn statement of the pertinent facts within sixty days. This Lawson did not do. He did not have access to the insurance policies so as to be reminded of that requirement. But he did promptly advise defendants’ agent, Colvin, of the burning of the hangar. Colvin said:
“I will notify the companies at once. We should hear from them in a short time.”
Plaintiff testified:
“At the time I told Mr. Colvin these things, answering these questions, he was making notes of them — I did not at that time have the policies I had gotten through Mr. Colvin.
“At another time when I called at Mr. Colvin’s office, I met a man who was a state representative of one of the companies, with offices at Topeka, located in the Insurance building. I don’t remember his name — he asked me how the fire started and I told him I didn’t know; he stated he had been out past the field and saw the wreckage — he says it is a total loss, there is no question of that and I asked him if he came around to make the adjustment— he said that the company — it was turned over to an adjusting company, he didn’t tell me the name and stated I would no doubt hear from them in a short time — at a later date I called at Mr. Colvin’s office and asked him for the policies; he said he had returned them to the home office by instructions from the insurance company.
“I saw this state representative again on my return trip from Kansas City when I went to see the adjusting company; I stopped at Topeka and saw him in his office. I asked him for the policy. He said it had been returned to the home office. . . .
“Q. Did he (Colvin) ever tell you whether he had notified the companies or not? A. The second time I was up there he said he had.
“Q. Did you understand and believe from what he said and what the state agent said that it was necessary for you to make any further proof — any proof of loss in addition to what you had made?
“A. I did not think it was necessary to do anything further.”
Colvin, himself, testified:
“Q. After the fire, did you send back to your company these two policies Mr. Lawson has sued on here? A. I think I sent them back August 9, 1930.”
Under not dissimilar circumstances the omission of plaintiff to furnish formal proofs of loss has been held not to defeat the obligation of the insurer. In Williams v. Fire Insurance Co., 115 Kan. 578, 223 Pac. 1090, it was said:
“Defendant now contends plaintiffs did not comply with certain conditions of the policy. Having withheld the policy from plaintiffs after the fire, having denied all liability when plaintiffs were endeavoring to comply with the conditions of the policy, and having stood in its pleading on the facts that no contract of insurance was in existence when the fire occurred, defendant is not privileged to make the contention.” (p. 579.)
See, also, Wilson v. Insurance Co., 90 Kan. 355, 357,133 Pac. 715; and 26 C. J. 378.
Another equally effective answer to the point that the formal proofs of loss were not furnished inheres in the fact that when Lawson notified Colvin of the fire the day after it happened, Colvin assured him that the information he then supplied was “all that is necessary,” and that he would “notify the companies at once.” Apparently he did, for a state representative of the companies assured Lawson that the matter had been turned over to an adjusting company, and that no doubt he would hear from it in a short time. Such a course of conduct on'the part of defendants’ authorized agents, Colvin and the state representative, was bound to throw Lawson off his guard as to the necessity of performing any further requirement specified in the policies not accessible to him, and we think the insurer cannot be permitted to take advantage of plaintiff’s omission to supply formal proofs of loss under such circumstances. .
In Winchel v. National Fire Ins. Co., 129 Kan. 225, 229, 282 Pac. 571, it was said:
“Some contention is made that the receiver failed to make sworn proofs of loss as required by the contract. As shown, timely notice was given to the authorized agent of the defendant, who immediately notified the company. It is not denied that this notice was given and received, but it is said that sworn proofs of loss are something more than notice of the destruction of the building; but as the defendant denied all liability for any amount on grounds that the policy had been rendered void, a detailed statement of the loss would have been useless and unavailing. In the agreed facts defendant has stipulated that the insured house was entirely destroyed by fire, in which event the defendant had agreed to pay the entire amount named in the policy. A fuller account of the loss would have served no purpose as it might have done in case of a partial loss. A denial of liability because the policy was void upon other grounds in effect waived the right of the company for sworn proofs of loss.”
In 7 Cooley’s Briefs on Insurance, 2d ed., 5986, it is said:
“The question as to the effect of statements by an agent is largely one of agency. If a statement that no proofs or notice will be required, or that they need not be furnished within the specified time, is made by a duly authorized agent, the company will be bound, and a waiver of the policy requirements will arise.”
In the same volume, 5990, it is said:
“Any note by or conduct of the company which directly prevent the insured from complying with the conditions of his policy as to notice and proofs of loss or which induce him to believe that strict compliance will not be required will operate as a waiver of any default resulting from such acts or conduct.”
See, also, 7 Couch on Insurance, § 1560 et seq.
3. Other objections to the judgment will have to be summarily disposed of for sheer want of space and time for their discussion. Error does not appear in permitting Lawson do testify that in his several conversations with Colvin the latter did not say anything about proofs of loss, but did say, “That is all that is necessary. I will notify the companies at once.” No error arose in permitting Lawson to testify as to the value of the hangar. He was its owner, and it is elementary law that an owner is presumed to know its value and therefore may give such testimony. (1 Wigmore on Evidence, 2d ed., § 716.) The competency of plaintiffs’ witness Berry to give his estimate of the value of the hangar was clearly shown. Defendants themselves produced a witness qualified to give such .testimony and his evidence was not greatly at variance with that of plaintiffs’ witnesses touching the reproductive cost and value of the hangar. No error transpired in refusing to permit defendants’ agent Colvin to testify that he knew nothing about the cost or value of hangars, and that he relied on the information given him by Lawson. Were it otherwise the error would not be reviewable because of failure to bring the rejected evidence into the record as the code requires. (Elliott v. Oil Co., 106 Kan. 248, 251, 187 Pac. 692.) Other complaints concerning excluded evidence which was never' produced go out of the case under the same rule. Errors and criticisms of the instructions given and refused have been noted with due care, but nothing approaching the gravity of prejudicial error appears.
We have not failed to peruse with care the reply brief filed by defendants, but discern nothing therein to justify further discussion, or to raise any misgiving as to the correctness of the judgments. Both judgments are therefore affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The defendant was arrested and tried in the police court for an alleged violation of an ordinance of the city of Coffey-ville regulating pawnbrokers and dealers in secondhand goods.
The city had enacted its ordinance No. 756 regulating pawnbrokers. The first section of the ordinance defined the term “pawnbroker,” the second section fixed a license fee, the third section prescribed regulations for the conduct of business by pawnbrokers, the fourth and fifth sections are not important here, and the sixth section, fixing penalties for violations, reads as follows:
“Any pawnbroker who shall violate, fail, neglect or refuse to comply with any provision, regulation or requirement of this ordinance, shall upon conviction, in the police court, be fined not less than one hundred dollars, nor more than five hundred dollars, and each violation shall constitute a separate offense.”
Later ordinances No. 1725 and No. 2011 were enacted. Both of these ordinances amended section 3 of ordinance No. 756 so that dealers in secondhand goods were included within the regulations, which were somewhat expanded and enlarged. No effort was made to amend section 6 of ordinance No. 756 in any particular.
The defendant was arrested and tried on a complaint which charged him as a dealer in secondhand goods with having failed to comply with the requirements of ordinances Nos. 756,1725 and 2011. He was convicted in the police court and appealed to the district court, where he was tried by a jury. After the jury was impaneled and some evidence had been introduced, the defendant objected to the introduction of further evidence for the following reasons: (1) that the complaint charged no offense under the ordinances named in the complaint; (2) that the ordinances failed to provide any penalty for violation, and (3) that in so far as defendant is concerned, the ordinances are unconstitutional and void. The trial court sustained the objections and dismissed the complaint.
No question is raised as to the city’s right to appeal (R. S. 13-613).
While there is considerable argument in the briefs with reference to the titles to the original and amendatory ordinances and the sufficiency thereof, it is not necessary to discuss the questions raised. There is no contention that a penalty is prescribed for violation in so far as secondhand dealers are concerned, further than that the city argues it is fair and reasonable to “insinuate” into the penal provisions of the ordinance the secondhand dealer as well as the pawnbroker.
It was held in City of Wichita v. Wolkow, 110 Kan. 127, 202 Pac. 632, that the city has authority to legislate concerning regulation of the business of pawnbrokers and dealers in secondhand articles, and the city argues that because it was so held, under liberal rules of interpretation a secondhand dealer can be punished under the ordinances in question here. The city further argues that the titles to the amending ordinances included secondhand dealers, and that the amendments are sufficient under Decker v. City of Wichita, 109 Kan. 796, 202 Pac. 89; Hicks v. Davis, 97 Kan. 662, 156 Pac. 774, and Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274. The difficulty is not in the sufficiency of the amendments, but in the fact that the penalty provision, which applies solely to pawnbrokers, was not amended to include secondhand dealers. Our attention is directed to R. S. 21-112 and 21-113 fixing penalties for misdemeanors under conditions therein mentioned, but these sections refer to the criminal laws of the state and not to violations of city ordinances. As heretofore stated, the city was authorized to pass an ordinance regulating pawnbrokers and secondhand dealers under R. S. 13-423, and to fix a penalty for violation under R. S. 13-424, but there is no provision for penalty otherwise.
In this state we have no common-law crimes or offenses, but only such as are created by legislative provision — by statute or ordinance — and a court is powerless to impose a penalty unless the penalty has been denounced by statute or ordinance, and when a penalty is imposed it must be by virtue and under authority of such statute or ordinance, and if the statute or ordinance simply specifies what shall constitute an offense without fixing a penalty for violation, it is a nullity in so far as criminal or quasi-criminal proceedings under it are concerned. In 16 C. J. 68 the necessity of prescribing a penalty is thus stated:
“It has been held, in some of the oases that where an act is a crime solely by statute, and no penalty is prescribed in the statute, an indictment will be quashed, or a judgment arrested; or in other words, that a description, definition and denouncement of acts necessary to constitute a crime do not make the commission of such act or acts a crime unless a punishment is annexed, for punishment is as necessary to constitute a crime as its exact definition.”
And in discussing punishment or penalty in a city ordinance as essential to its validity, it is said in 43 C. J. 253:
“Under the general rule that in order to warrant a sentence upon conviction for the violation of a statute the statute must prescribe the punishment, any ordinance or by-law must prescribe the punishment for its violation in order to warrant conviction and sentence therefor. And it has been held that a police ordinance, likewise all amendments thereto, providing no penalty for its violation, is void.” r
In United States v. Seibert, 2 F. 2d 80, the second paragraph of the syllabus recites: '
“No legislative enactment makes act an offense, crime, or misdemeanor, unless statute so denominates it, or unless punishment therefor is expressly prescribed.”
It must be held that the ordinances in question prescribed no penalty for violation by persons charged as secondhand dealers, and so far as secondhand dealers are concerned are void.
The judgment of the trial court discharging the defendant was correct and is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
J. Luther Taylor was convicted upon a charge of embezzlement, and appeals.
In 1903 the defendant organized the Pittsburg Mortgage Investment Company and carried on the farm-loan business at Pittsburg and in neighboring states, taking many mortgages from borrowers and selling the same to investors until May, 1931, when the business affairs of the company passed into the hands of a receiver, with the consent of the defendant. From the organization of the investment company until it became' bankrupt in August, 1931, the defendant owned the majority of the stock in the company, and actually directed and controlled its business, supervising the manner in which its books were kept and directing the correspondence with investors to whom he had sold bonds. He undertook to collect the interest and principal on bonds sold by him to investors as they became due on the loans and to remit the money, when paid, to the investors. These funds, when received, were not kept apart as trust funds but-were deposited in a bank to the credit of the company in a common and single account, intermingled with other funds and checked out for all the purposes of the business. When an investor named Richard Johnson learned that mortgages owned by him had been paid sometime before and sought to obtain payment from defendant, defendant acknowledged that payments had been made at different times and had gone into the Pittsburg Mortgage Investment Company funds, had been checked out, and that the company was broke.
The prosecution followed, in which the jury found the defendant guilty, and the sentence was to hard labor in the state penitentiary for not less than one year nor more than five years.
In his appeal he assigns a number of errors, and the first one argued is the denial of his motion for a change of venue. This application was based on the ground of prejudice existing against him in Crawford county, which constituted the judicial district. Testimony was offered by affidavits to the effect that the defendant, as president and manager of the company, in the course of twenty-eight years had foreclosed a great many mortgages in different parts of the county and had incurred the ill will of many people; also, that two investment companies carrying on a similar business had failed a short time before the prosecution, and a great number of the citizens of the county suffered losses thereby, and that these enhanced the prejudice against the defendant, whose failure occurred near the same time, and witnesses testified that it would be impossible to have a fair and impartial trial of the defendant in the county. Two banks of the county had also failed a short time before the prosecution, and these failures intensified the prejudice against defendant.
Again, it was stated that defendant was a large landowner in the county, had been active in promoting the building of public cement roads near his lands with the result that defendant had incurred the ill will of others not so fortunate in securing locations, and the roads were even called the Taylor roads. There was much unfavorable comment expressed throughout the county against defendant.
It was further alleged that defendant and his sister had been involved in hotly contested litigation in the county as to the interest of each in the estates of their father and mother. This litigation had attracted general attention — people taking sides, one way or the other — and had caused bitter feeling among many of the inhabitants against defendant.
Another ground advanced is that the defendant had sponsored the education of Chinese boys in the schools at Pittsburg, and in the summer time had these boys do repair work on some of his property, which brought opposition of labor unions, one of which printed1 and distributed pamphlets denouncing defendant and accusing him of “coolinizing” American labor, and aroused strong feeling and prejudice against him. The county is largely an industrial one, and it is stated by witnesses that a great many of the people are members of labor unions and are strongly prejudiced against the defendant on the ground stated.
In support of his verified motion for a change of venue the defendant presented the affidavits of thirty-one citizens of the different townships, communities and cities of the county, alleging that prejudices existed against the defendant to such an extent that he could not have a fair and impartial trial in the county. The affidavits were from persons of almost every avocation, including doctors, farmers, merchants, state senator, state representative, former county commissioner, members of school board, postmaster, rural mail carrier, justice of the peace, and secretary of Masonic bodies. These were people who had an opportunity to know the public opinion of the people as to the defendant and of the existence of prejudice against him, and expressed the opinion that the defendant could not have a fair and impartial trial in Crawford county.
On behalf of the prosecution seventeen affidavits of citizens testified that they believed the defendant could have a fair and impartial trial in Crawford county. Most of these affidavits were formal in character without stating the specific grounds of their belief. Attention is called to the fact that the affidavits filed by the state were all from the city of Pittsburg, except two of them.
The court after the presentation of the affidavits and the arguments of the counsel on the application, took the matter under advisement until the following day. During the evening the court, on its own motion, prepared a list of one hundred persons residing in the city of Pittsburg and undertook to communicate with them by telephone on the question involved in the motion, the judge saying:
“I am going to ask you a question in the strictest confidence for my own information only. Your name will not be used in any way or revealed to any other person. Mr. J. Luther Taylor is asking to have his case sent to another county for trial on the ground that he believes that he cannot get a fair and impartial jury to try his case in this county. The question I want to ask you is: ‘Do you think that a fair and impartial jury can be obtained in this county for the purpose of trying Mr. Taylor?’ ”
The judge states that seventy-three of the one hundred citizens so selected answered the question, and of these fifty-one answered in the affirmative and twenty-two 'in the negative. The court stated to counsel that this information was used in connection with the affidavits in passing on the motion for a change of venue, which was denied.
In impaneling the jury five persons were excused for cause and nine were eliminated by peremptory challenges, the defendant using all the peremptory challenges which the statute allows. It is contended that the denial of the motion was error, and especially in the taking of the private and confidential testimony by the court on which its judgment was in part based. It is argued that a strong showing of prejudice was established by the proof of the defendant. This was shown by sworn evidence open to be controverted by the state by producing counter affidavits, and pointing out any weaknesses in the defendant’s proof by argument. Either party was at liberty to call attention to the fact that an affiant had much or little opportunity to know the state of mind of the public throughout the county as to prejudice against the defendant, and the court could be aided by argument showing that the affiants were relatives or partisans of the prosecution or of the defendant, and that little weight should be given to their testimony. This ■ can be shown where the affidavits are presented, the affiants for both parties identified and their statements analyzed and tested by counsel on each side. How could the defendant test the truth or weight of the evidence of witnesses privately called on the telephone by the judge who asked them to tell him in strictest confidence their opinion as to whether defendant could have a fair and impartial trial in the county?
The granting or refusing of a change of venue was a judicial question of importance and should have been presented and determined in an open and judicial way. It was to be decided on proof that was available, to be sifted and tested by the defendant in open court, and not on statements of persons not sworn but given in the strictest confidence under the assurance that their names would not be made known or revealed to any other person. The defendant could not even learn the names of these expert witnesses who expressed opinions to the judge — could not learn whether they were intelligent, had opportunity of ascertaining public sentiment on the question and were capable of drawing reasonable inferences - from what they had heard or seen. Experts should be sworn to be qualified before their testimony can be received. The mere fact that they assume to be experts does not warrant the reception of their opinions, and who can tell that the opinions given by them were not mere guesses. Yet these opinions were taken into consideration by the court in determining the right of defendant to a change of venue and to have a trial in a district free from the prejudice alleged to exist against him in -the district where the prosecution was pending.
The statute provides that a defendant is entitled to a change of venue where the minds of the inhabitants of a county are so prejudiced against him that a fair trial cannot be had, and the question is to be determined as provided in a later section of the criminal code. (R. S. 62-1318.) The procedure and the kind of proof to be applied on an application of that kind is set forth in a later section, namely, R. S. 62-1321:
“In the petition for a change of venue the applicant shall set forth the facts upon which the application is made, and the truth of the allegations in the petition shall be made to appear, by affidavits, to the satisfaction of the court. Notice of such application must be given to the county attorney, who may resist such application by counter affidavits.”
So we see that the decision of the court is to be based upon affidavits and counter affidavits. The proof is to be made under the sanctity of an oath, not upon mere street talk or unsworn statements of unidentified people whose names are not to be revealed to anyone. The court could have determined the application upon the affidavits presented if the proof satisfied it that it should be granted or refused on that proof. Its decision, in view of the large discretion vested in the court, might have been controlling. However, it appears that the court was not satisfied with the proof offered in the affidavits and it undertook to get additional proof in the unjudicial way mentioned and of a kind not authorized by the statute, and on these added statements the court reached a conclusion.
The state calls attention to the following provision as justifying the court in basing his decision on the views he obtained from persons over a telephone:
“Whenever it shall be within the knowledge of a court or judge that facts exist which would entitle a defendant to the removal of any criminal cause on his application, such judge or court may make an order for such removal without any application by the party for that purpose.” (R. S. 62-1322.)
That section has application in certain cases as, for instance, where a judge has been of counsel in the case, or by reason of his relationship to the defendant, or as a material witness in the case, or where all parties are in agreement that such prejudice exists in a county against the defendant that a change of the place of trial must be granted as a matter of course. But it will be noted that this is confined to the granting of a change without an application and does not provide that the court may refuse an application in this off-hand way. When there is an application which is contested, the statutory method of ascertaining the truth of the allegations in the petition must be followed. The truth of the allegations must-be determined on the proof prescribed by statute, and that is upon affidavits. It must be held that the procedure taken by the court was obvious error and therefore the judgment must be reversed.
There is a complaint that a motion to quash the information should have been sustained. An examination of the averments in the information satisfies us that it is sufficient to charge embezzlement.
Another complaint is made that there was error in permitting the state to amend the information after the defendant had entered his plea of not guilty. The amendment, it appears, was the striking out of an averment in the charge and the correction of a date and the word “a,” which we think could not have operated to the prejudice of the defendant and did not furnish cause for a continuance of the case.
In view of the fact that the case is to be retried, we will not review the claim that the evidence was insufficient to sustain a conviction. That question will be determined on testimony produced in the new trial and not on that taken on the first trial wherein the error was committed on the motion for a change of venue before any evidence was submitted. For the error mentioned, the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action brought in a justice of the peace court to confiscate as a common nuisance a certain automobile described in the complaint. The appellant Atlas Acceptance Corporation interpleaded and filed its answer alleging title and ownership of the automobile by reason of a chattel mortgage thereon. After trial and adverse judgment in the justice court, the cause was appealed to the district court. Trial in the district court was started on May 23, 1932, but owing to the failure of defendant Bud Bennell (shown by judgment of court to be known also as Benham and as Bennett) to appear, although duly subpoenaed as a witness, the hearing was continued to June 18,1932. On the latter date Bennell appeared, and the state announced it was ready to proceed but that the court stenographer was absent. It was agreed in open court between appellant and appellee that trial should proceed and that the court should consider the testimony to be taken the same as if reduced to writing by the stenographer. The trial proceeded to a conclusion, and thereafter the court rendered judgment finding the automobile was unlawfully used in transporting liquor from one place to another within Graham county, Kansas, and ordering that it be confiscated as a common nuisance and sold in the manner provided by law.
The appellant assigns as error (1) rendering of judgment in favor of the state and against the defendant; (2) allowing testimony of the state’s witnesses to be introduced in evidence when none of their names appeared on the complaint filed; (3) overruling motion for new trial; and (4) fixing bond for repossession of the automobile in event of appeal.
Appellant’s argument on its first assignment is predicated in large part on its own version of the testimony of the defendant Bennell, and particularly that part thereof where the appellant claims the witness Bennell stated he could not remember whether he had driven into Graham county with liquor in his possession or not, or what route he took from Wakeeney, where he first obtained the pint of whisky. After appellant had served his abstract and brief upon appellee, the appellee filed in the district court an application to amend the journal entry of judgment filed August 4, 1932, to show why certain of the evidence was not reduced to writing by the court stenographer, and served notice of the hearing thereof, and thereafter, on November 19, 1932, an amendment was made by journal entry duly signed by the district judge. Thereafter, and on the same day, the appellant’s abstract was presented to the trial court and the court was requested to execute and file in the office of the clerk of the district court a statement setting forth the court’s recollection of the substance of the testimony of the witness Benham (Bennell). This the trial judge did. The important part of the statement is as follows:
“That counsel then asked witness whether he had any of the liquors in his car after coming into Graham county, Kansas, and that the witness also answered this question in the affirmative.”
Although not strictly in point, the following quotation from Spencer v. McClenney, 104 Kan. 107, 178 Pac. 253, is instructive:
“The statute provides that in case of the death or disability of the stenographer before transcribing his notes, the trial judge may approve and sign a statement to take the place of a transcript (Gen. Stat. 1915, ¶ 7486). While the provision does not expressly cover the loss or destruction of the notes, the practice in such cases has been to make use of the best substitute that can be obtained, with the authentication of the trial judge. Inasmuch as a transcript made by the stenographer is subject to amendment and correction by the judge (Gen. Stat. 1915, 117478), it is the judicial approval that gives it its final authority, and in case of need a statement approved by the judge would serve as a sufficient substitute, in the absence of a specific statute covering the matter.” (p. 108.)
If there was any informality connected with appellee’s procuring the statement from the trial court, appellant cannot complain, for it devolved upon the appellant to procure an official transcript of all the evidence introduced, unless the necessity is avoided by agreement of counsel or is not necessary to a review. See Everett v. Everett, 110 Kan. 442, 204 Pac. 723, and cases cited therein.
It is further urged by appellant that the nuisance, if any, had been abated and had ceased to exist. There was testimony, however, that at the time the defendant Bennell was apprehended, there was a bottle and a separate cork in the automobile, and that there was a wet or damp spot on the floor covering which witnesses stated smelled like whisky. And another witness testified he saw the defendant’ Bennell in Hill City about an hour before he was apprehended and Bennell asked him if he knew where he could get something to cut some alcohol. The question of the testimony being disposed of, it appears that appellant’s first assignment has no merit. The lower court’s finding and decision is based on sufficient evidence.
The appellant’s second assignment of error, that names of witnesses were not indorsed on the complaint, is not good. The proceeding is civil and not criminal. (State v. Powell, 120 Kan. 731, 732, 244 Pac. 1053.) And if it were a criminal action, it was instituted on complaint in the justice court where indorsement of the names of witnesses is not required. (State v. Wood, 49 Kan. 711, syl. ¶ 5, 31 Pac. 786.)
There was no error in overruling the motion for a new trial.
Appellant's fourth assignment of error is based upon requirements made by the lower court with reference to its taking possession of the automobile, if appeal should be otherwise perfected. In view of this court’s holding that the automobile was properly confiscated, any error there may have been becomes immaterial.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This appeal is by the plaintiffs from an order of the trial court sustaining the demurrer of the defendants to the evidence of the plaintiffs and rendering judgment for defendants for costs in an action to set aside a will.
There are six assignments of error, but only the fifth and sixth are stressed, and they are as follows: “The findings and judgment of the court is contrary to the law and evidence in said cause,” and “The court erred in sustaining defendants’ demurrer to the evidence.”
A preliminary question is also urged that the burden of proof should be on the defendants to establish a prima facie case that the will was duly and legally executed and that it had been properly and legally probated. In connection with this question of burden of proof the plaintiffs moved the court for judgment on the pleadings and opening statements because of the failure of defendants to make out a prima facie case as to the execution and probate of the will. The trial court overruled this motion and placed the burden upon the plaintiffs. We find no error in these rulings because, while the petition attacks the validity of the will in many ways, yet it alleged its execution and admission to probate, and the answer specifically admitted both these allegations.
The grounds upon which plaintiffs seek to set aside the will are the mental incompetency of the testatrix, undue influence and want of independent advice.
The will in question was executed August 4,1931, by Mrs. Hattie Weary, a widow seventy-eight years of age, who died on the first day of December following. The plaintiffs are seven nieces and nephews of the testatrix, who are residents of the states of New York and Pennsylvania. They are all children of half brothers and half sisters of the testatrix. The defendants are Arthur J. Collins and Glen R. Sewell, as individuals and as executors of the estate. They were the president and cashier, respectively, of the National Bank of Sabetha, located at Sabetha, Kan., which was the place of their residence as well as that of the testatrix. After making provision for the payment of debts and funeral expenses the will bequeaths all the rest, residue and remainder of her property—
“. . . unto my two trusted friends, Arthur J. Collins and Glen R. Sewell, both of Sabetha, Kan., the same to be divided between them share and share alike. And in case either of the said Arthur J. Collins or the said Glen R. Sewell, or both of them, should precede me in death, then it is my will that the share of my property which would have gone to him or them, if living, under the terms hereof, shall go to and be vested in his or their heirs, devisees or legatees, as by law or by will provided, to the same effect as if he or they had taken the same while living. My residuary devisees and legatees above named are not related to me by blood or marriage, but inasmuch as I have no descendants or near relatives to whom I can leave my property, I make these provisions in their favor as my tried and true friends, and in grateful recognition of their helpful interest in and true service to me.”
These two beneficiaries were nominated as executors without bond, and were appointed by the probate court and qualified as such.
On the question of mental incompetency, a number of witnesses testified, giving it as their opinion that she was not mentally competent to make a will after the month of June, 1931, at which time she had been sick for about two weeks, but most of such witnesses stated that they base such conclusion upon her weak physical and mental condition and the fact that she was very childish, very forgetful, had a very poor memory and repeated statements, that she did not transact any business for herself, that she had told several of them that Mr. Sewell looked after all her business. One witness related an instance of soliciting her to duplicate the $65 contribution given by the ladies of the church to repair the parsonage, and she answered she would have to see Mr. Sewell first. She later told the witness that she would give $25, and that the witness might go to the bank and get it. She, the witness, went and got it. Another incident was about a donation to the Baptist church. She said that she was going to give $10, but that Mr. Sewell said she could give $25.
Two other witnesses testified concerning the building of her large dwelling house several years before her death, and that she did not go around the building to give directions, but Mr. Sewell was there very often. After she moved into the nicely furnished new home she was unable to tell the cost of some of the articles of furniture.
Two others related the incident of ladies looking at hats in a store, when one suggested to her the appropriateness of a certain hat for her, and she said she would have to go to the bank to see if she had enough money for it. She told many people that Messrs. Collins and Sewell did all her business. One said she was of a talkative, juvenile nature. She talked mostly about common things. She was fond of going. Would telephone and ask parties to take her with them on drives. Had neighbors and friends take her to church regularly. Was there the Sunday before her death. She was crippled in her lower limbs with rheumatism, and it was difficult for her to walk alone and more difficult to get in or out of a car.. After arranging by telephone for neighbors to take her somewhere, she would later telephone them about it. Was always ready to go when they called for her.
Her husband, who died seven years earlier than she, was a business man, and she never during their married life had to look after any business. These two defendants settled his estate and continued to look after her business and property. She telephoned the bank when she wanted a bill paid, and regularly recurring bills were paid by Mr. Sewell’s writing and signing checks therefor on her account at the bank. When she went to the bank on business, checks would be written for her and she would sign her name to them. She had a maid in her home, procured for her by Mr. Sewell. Mr. Sewell made out her tax statements and generally looked after her business affairs.
She knew about her relatives in New York and Pennsylvania and talked about them often, especially with one who had recently visited some of them back east. She talked to some of her neighbors, after her sister died, about having made a will in which she tried to make a distribution of her property among relatives of her husband as well as her own. She told Mr. Baldwin, who wrote the will, that she had no children or descendants of children, that she had some distant relatives in the east, but they were not very close relatives and didn’t mean much to her and she wanted her property to go to those who had helped her.
It was said in the case of Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274, that “to be counted by people as bright and brilliant enough to manage things” was not the test of testamentary capacity. This testator was shown to not recognize all the time the people he knew, that he omitted phrases in his talk, and his conversation was not connected and it was difficult to understand him.
“In order to possess the mental capacity to make a valid will, the law, based upon the experience of mankind and common sense, does not require that the testator possess the ability to manage or carry on a complicated business enterprise. If he possesses the mental capacity to know what property he has, and is able to make a disposition of his property with understanding and reason, knows the persons and objects of his bounty, and their condition and relationship to himself, and is able to dictate the items of the will himself, this is sufficient.” (Higbee v. Bloom, 108 Kan. 723, 733, 196 Pac. 1080.)
“The definition next in order of brevity is to the effect that where the testator knows his estate, the object of his affections, and to whom he wishes to give his property and understands the business in which he is engaged, he has sufficient capacity to make a will.” (28 R. C. L. 86.)
The mental condition of the testatrix in the case at bar was very much better and superior to that described in the case of Goode v. Cummings, 115 Kan. 516, 223 Pac. 317, where the will was upheld after being seriously attacked on the ground of mental incapacity.
“The settled rule in this state is that one who is able to understand what property he has and how he wants it to go at his death, is competent to make a will even though he may be feeble in mind and decrepit in body.” (Cole v. Drum, 109 Kan. 148, syl. ¶ 6, 197 Pac. 1105. See, also, Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586; Hoff v. Hoff, 106 Kan. 542, 189 Pac. 613; and Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849.)
We conclude that the showing of mental incapacity was not sufficient under all the facts and circumstances to require the setting aside of the will on that account.
There was no evidence as to undue influence except that which it is claimed can be properly inferred from the fact that these two beneficiaries, and especially one of them, Mr. Sewell, looked after the business affairs of the testatrix for the seven years she lived after her husband’s death, but there was nothing to show that they occupied a fiduciary relation with her. She was shown to have frequently asked advice of Mr. Sewell about business matters. She wanted her friends and relatives who visited her to meet these two friends. She manifested a strong inclination to follow Mr. Sewell’s suggestions as to certain expenditures. Advising as to religious or charitable contributions, the purchase of a hat and furniture, en gaging the services of a hired girl, and even looking after the building of the new dwelling, would not require or imply any confidential relationship.
An opportunity, of course, existed on their part to influence her greatly if they had so desired. The human and natural desire for gain and wealth must be conceded as normal and ordinarily existing. But human desire, motive and opportunity to exercise such influence will not alone authorize the inference that undue influence was in fact exercised. Neither will suspicion or the possibility of their having induced the making of the will favorable to them be enough to justify a finding of undue influence. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634.)
“The mere existence of confidential relations between a testator and a beneficiary under his will does not raise a presumption that the beneficiary has exercised undue influence over the testator and does not cast upon the beneficiary the burden of disproving undue influence. Those consequences follow only when the beneficiary has been actively concerned in some way with the preparation or execution of the will.” (Ginter v. Ginter, 79 Kan. 722, syl. ¶ 8, 101 Pac. 634.)
“To destroy the validity of a will undue influence must amount to coercion, compulsion or constraint which destroys the testator’s free agency and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own. . . .” (Ginter v. Ginter, supra, syl. ¶ 1.)
It was said in Colvin v. Colvin, 128 Kan. 691, 280 Pac. 763:
“It is correctly argued by the appellant that there is no presumption of the exercise of undue influence, even when a fiduciary relation exists as in this case, when the evidence affirmatively shows that she had independent counsel to advise her. On the other hand, the presumption is in favor of the validity of the will when it has been regularly admitted to probate in the proper court, as this will was admitted. So there is no question in this case as to any presumption being in favor of the plaintiffs, but, in fact, the presumption is against them and the burden of proof is upon them to establish by a preponderance of the evidence that there was in fact undue influence exercised over the mother by the son in the execution of the will.” (p. 696.)
It was held in Carlisle v. Baker, 123 Kan. 415, 256 Pac. 141:
“In a suit to set aside a will because of the alleged mental incapacity of the testator, and of the undue influence of the principal beneficiary, it is not error for the court to sustain a demurrer to plaintiffs’ evidence when such evidence, and all reasonable inferences to be drawn therefrom, considered most favorably to plaintiffs, fail to show such mental incapacity and fail to show any undue influence relating to the execution of such will.” (Syl. ¶ 2. See, also, Bell v. Skinner, 119 Kan. 286, 239 Pac. 965; and Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586.)
There is no evidence here to indicate that the business relationship these two defendants had with the testatrix ever reached the state of being such as might properly be termed confidential, nor the influence they may have had with her or over her being unduly used, in the making of the will or in other matters.
Appellant insists that the will is invalid because it was written and prepared by the sole or principal beneficiary who was the confidential agent of the testatrix without the benefit of independent advice, claiming that Mr. Baldwin, the attorney who prepared and wrote the will, was in the employ of the defendants, both individually and as officers of the bank, and, therefore, his work and advice was that of the defendants and for and in behalf of them. The evidence does not show just how or by whom Mr. Baldwin was requested to come to Sabetha and write the will of Mrs. Weary. It shows that when he reached Sabetha he went to the bank and Mr. Sewell took him to the home of Mrs. Weary and introduced them. Sewell then left the room and she and the attorney conferred at length. He went back to the bank with Mr. Sewell and there wrote the will himself on a typewriter in the bank, and Mr. Sewell drove him back to the home of the testatrix where the will was executed. Among other things concerning this matter Mr. Baldwin testified:
“At the time we were leaving her house after the will had been drawn and executed and just as Mr. Sewell and I were leaving, she placed her arm on his arm and said, ‘Now, you be sure to remember to pay Mr. Baldwin for this.’ Mr. Sewell was not in the room where the will was drawn at the time I drew the will. He was not there when I talked it over with Mrs. Weary. Just Mrs. Weary and myself. I first talked it over with Mrs. Weary. I had a portable typewriter there but it would not work. I got the information as to what should go into the will from Mrs. Weary. Mr. Sewell was not present. He was not in the room. He made no suggestion to me at any time as to what I should put in the will. I advised with her and she with me about this will.”
Many questions were asked him about his employment as attorney for the defendants and the bank, and the answers show he was not regularly retained by them or the bank but had been employed by them in quite a number of cases and for the examination of abstracts, but did not have all of their legal business.
The statute about independent advice is as follows:
“And provided jurther, That in all actions to contest a will, if it shall appear that such will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or wlio occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall be affirmatively shown that the testator had read or knew the contents of such will, and had independent advice with reference thereto.” (R. S. 22-214.)
It may be very seriously questioned whether either of the defendants in this case could1 be regarded as the sole or principal beneficiary as they were to share equally in the estate. (Kelty v. Burgess, 84 Kan. 678, 115 Pac. 583.) But passing that point, the evidence fails to show that the will was either written' or prepared by either of the beneficiaries and also fails to show that Mr. Baldwin was so under the control and supervision of them as to disqualify him as being able to give independent advice to the testatrix. This, together with the feature of the beneficiaries being confidential agents, as specified in the statute above quoted, which was adversely disposed of earlier in this opinion, makes the claim of the appellants as to the want of independent advice inapplicable to the facts in this case. (Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087.)
We think the demurrer to the evidence was properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling a motion to set aside a default judgment in an action on a note executed by defendants, John and Mary Riffel, and secured by a third mortgage on two eighties of land in Marion county; also on two matured interest coupons which pertained to another note executed by defendants secured by a first mortgage on the same property; and also on a commission note and second mortgage on the same land executed by defendants.
The original petition was filed on July 29, 1931. Summons was issued and served on defendants and answer day was August 24, 1931. On October 23, 1931, plaintiff, in the meantime having ac quired two matured but unpaid coupons pertaining to the note secured by the first mortgage and also having acquired the commission note and mortgage upon which default had also been made, filed a supplemental petition reciting these facts and praying for judgment thereon in addition to the amount prayed for in his original petition. Still later plaintiff recast its first and supplemental petitions into an amended petition which was filed on November 17, 1931. Alias summons was served, and answer day set for December 12, 1931.
Default judgment was entered on December 23, 1931, and foreclosure decreed according to the prayer of plaintiff’s amended petition. On January 3, 1932, at the same term of court, defendants filed a motion to set aside the default judgment on various grounds, some of which may require notice later in this opinion, but only two of these need be mentioned here:
(a) The notes and mortgages and coupons sued on had not been surrendered to tire court for cancellation when the judgment was entered.
(b) The decree provided that defendants should have eighteen months to redeem to be computed “from the date of the rendering of such judgment.”
Before defendants’ motion to set aside the default judgment was called for hearing, the notes, mortgages and coupons were filed in the office of the clerk of the court for cancellation. That fact was called to the court’s attention when the motion was presented. At the same time the court ordered immediate correction of the decree so that the redemption period should be computed “from the date of sheriff’s sale.” Then the motion to set aside the default judgment was denied, which ruling is the basis of this appeal.
It will be noted that ere the trial court ruled on defendants’ motion, the formality of surrendering for cancellation the instruments on which judgment was entered had been observed, and the error as to the time when the eighteen-months redemption period should begin had been corrected. Consequently those two points urged as grounds for setting aside the default judgment had evaporated.
Looking further into the contents of defendants’ motion, it is difficult to discern a solitary allegation which even looks like a defense to plaintiff’s action. And if no substantial defense was pleaded, certainly it was not only proper to overrule the motion but to sustain it would have unjustly hindered the plaintiff in the recovery of its due.
Defendants’ brief cites cases to the effect that the court has power within the term to amend its judgment. Quite true. Here it did amend it in respect to the only matter which required amendment. It is also urged that courts have very wide discretionary power to open up judgments “for the purpose of administering justice.” Undoubtedly so, but these general observations as to judicial power are no help to us in our scrutiny of the contents of defendants’ motion. What we are looking for is something that savors of a real defense of law or of fact to plaintiff’s action. It contributes 'nothing towards that discovery to say that defendants were ignorant people unlearned in the law and the procedure of courts. If that were a defense, nine-tenths of all the defendants who have been sued since the age of King Solomon could have invoked it. No matter how ignorant these defendants may be, they ought to be able to inform their attorney, so he could have set it down in this motion, just why they should not have to pay plaintiff’s demands. But all their counsel can urge in their behalf, in addition to the points noted and disposed of above', is that the original first mortgage was made to the Warren Mortgage Company and that concern assigned it to one McRoberts and that such assignment was recorded, and no further assignment of the mortgage or the note and coupons pertaining thereto has been recorded. From this fact defendants argue that they cannot be assured that the plaintiff bank now owns the matured coupons which it claims to own, and on which it formulated one of its causes of action. But plaintiff had possession of these instruments and had a right to sue on them. Moreover, the instruments are now canceled by this judgment, so defendants need have no further concern about them. No defense to plaintiff’s action appears from the facts that the assignment of the coupons and the second mortgage to plaintiff had not been recorded. Neither did plaintiff’s omission to serve summons on the Warren Mortgage Company or McRoberts suggest any defense. If issues had been joined between plaintiff and defendants and it had thereby been developed that those issues could not have been adjudicated without bringing in the mortgage company and McRoberts, of course that could have been done; but here nothing appears to justify their being served with process and brought into the action.
In a reply brief defendants call attention to the fact that our rule No. 28 was violated because the sheriff’s sale was confirmed on the same day the motion for confirmation was filed. But this breach of our rule did not suggest any defense to plaintiff’s action, •nor give any reason why the judgment should be opened. It would have given defendants a technical ground to object to the confirmation, but they did not raise any such objection in the court below, and of course they cannot now urge it here.
Nothing approaching an error of law nor suggesting a possibility of injustice in this case is made to appear, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action founded on the statutory liability of a bank director who assented to the receipt of a deposit when the bank was insolvent or in failing circumstances.
In brief the facts were these: Plaintiffs owned a farm near Cawker City. They authorized defendant Heinen to sell it for them. He did so and deposited the net proceeds, first in a Beloit bank, and later in the Commercial National Bank of Cawker City which was then insolvent and passed into receivership about three weeks later.
Defendant was and for many years had been a director of the Cawker City bank. Until three years prior to the bank failure defendant had resided in Cawker City. Then he moved to Beloit, since which time he seldom attended the quarterly meetings of the board of directors, but he frequently made more or less thorough examinations of the bank independently.
The infirmities which ruined the bank were mainly two: For several years the cashier, Fred J. Buist, had been forging notes of the bank’s customers. So cleverly did he do this that only by using a slightly different form of promissory note from the one in common use could he tell which were the forgeries. Of these spuri-, s ous notes some $53,593.12 were carried in the bank as part of its assets. On the other hand, by removing some of the loose-leaf de- ' positors’ ledger accounts and deceitful manipulation of the adding machine Buist had long concealed from the board of directors, and from this defendant, the true status of the total deposits. The bank had $41,000 of deposits in excess of what the bank’s accounts submitted to the bank examiner showed them to be. Defendant and the other directors accepted as correct the adding-machine totals, without discovering that the machine had been systematically manipulated to register a total of deposits so grossly at variance with the correct amount.
The cashier, whose cunning in these respects eventually landed him in the penitentiary, was brought back to Mitchell county to give testimony in this action:
“I never told him [defendant] any of the notes in the note case were forged. . . .
“I removed sheets from the ledger showing deposits, but never told the defendant or any of the directors about it. . . . These sheets were not out all the time. They were not there when the bank was examined. . . . The depositors’ sheets are arranged in alphabetical order. These sheets were removed and laid in front of the ledger tray, not in with the index sheets. The bank examiner never found them until I showed them to him at the last examination. That was the day the bank was closed.
“I had these individual depositors’ accounts hidden out, or part of them, for four or five years. They were not always the same sheets, as the sheets were changed.
“The way I got forged notes into the assets was if I removed some other notes from the assets-in place of it, I replaced it with the forged note. . . . One could not tell by looking at the bank that there was something wrong about it, not the way I handled it. ... No one could determine whether I paid it out on that or out on checks to some one else. No one could tell how much specific cash was used. ... I left them in when the directors were in. They could have found them all right. There wasn’t anything to be said about it. . . . If the directors had looked at it and counted it up they would have found it, but I would not class them as experts. An individual depositors’ ledger ordinarily consists of anywhere from 500 to 1,500 sheets, according to the size of the bank. They took my adding machine lists; they didn’t take my word for it. They didn’t add it themselves. The defendant never tried to add it up.
“The adding machine lists submitted to the directors would check against the depositors’ ledger. . . . There was submitted to the directors an adding machine list showing the total of all those accounts.
“. . . You understand the manipulation was in the adding machine, . . . It was an add and substract machine, I just substracted enough to make it balance without printing. ; . .
“The directors never ran the figures thems_elves. They took the, adding machine lists. . . . They .didn’t detect what I had done ST the .figures. It'wasn’t on the sheet.”
There was testimony tending to show that defendant- -visited--the bank quite frequently, every week or of tener; and that he .examined some of its affairs rather thoroughly; particularly-the-note case, and concerned himself about the low reserves of the bank. He testified:
“I . . . never suspected any of [the notes] had been forged ... I never suspected until the bank was closed that there were or ever had been forged notes in the bank. ...
“I did not know the date on which regular quarterly meetings were to be held. . . .1 made complaints to Buist for his not notifying me of the day when the meetings were to be held. . . .
“I don’t think I attended any quarterly meetings in the year 1928, and only one in 1929. I didn’t attend the only meeting in 1930, as I was under a doctor’s care. I was over there sometime after the October meeting.”
Touching the concealed shortage in the amount of deposits, defendant testified:
“The notes were not the only things I looked at. I looked over the ledger there and saw whether there was any reserve. I did not add up the amount of notes, nor the amount of deposits. I have never added any of them. I took the ledger sheet for it but did not add it. I never personally added them at any time. ...
"... I tried to ascertain how much the deposits were in the bank, took the total going down the list, got an exact total. I took what Buist had added up as the deposits, but did not add them up myself.
“. . . In addition to other things at these times I took this daily transaction record, which showed the amount of loans and discounts, the capital, surplus, undivided profits, and the amount of individual deposits, and time certificates. I looked through that book to find out what that was. I had no suspicion that the amounts were not correct.”
The jury returned a general verdict for plaintiffs and answered special questions, some of which read:
“Q. 6. Was the actual cash market value of the assets of the Commercial State Bank of Cawker City, Kansas, insufficient to pay its liabilities on February 28, 1930? A. Yes.
v' “Q. 7. Did J. B. Heinen, by himself, make frequent, full, thorough and complete examinations into the affairs of the Commercial State Bank of Cawker City, Kansas, for the year 1929 and the year 1930, up and till February 28, 1930? A. No.
“Q. 10. Did the defendant know either on February 28, 1930, or March 1, 1930, that the bank was insolvent? A. No.
“Q. 12. Did the defendant at any time before the closing of the bank have any knowledge that its books showed less deposits than it actually had? A. No.
“Q. 13. Was it reasonably possible for the defendant to have detected forged paper injfie note case? A. No.
6 "Q. 14. Was it reasonably possible for the defendant to know that the adding machine had been manipulated so as to show less amount of deposits than the bank actually had? A. Yes.”
Defendant’s motions to set aside the special findings, for judgment on the findings, and for a new trial were overruled; and judgment was entered in favor of plaintiffs.
Defendant appeals, assigning various, errors, which will be noted seriatim.
1. It is first urged that the trial court erred in overruling defendant’s motion to require plaintiffs to state and number their causes of action separately. The petition was formulated partly on two theories — 11) that defendant had committed a breach of duty in failing to remit the net proceeds of the sale of the farm to plaintiffs as soon as that transaction was completed, and (2) defendant’s breach of his statutory duty as director in permitting the bankto_receive the deposit of plaintiffs’ funds while.it was insolvent or in failing circumstances. The first of these theories was abandoned as the lawsuit progressed, but we cannot say that the jury were misled by that issue, since the court instructed the jury as follows:
“16. The plaintiff is seeking to recover in this action from the defendant by reason of the liability of the defendant as a director of the bank, and is not seeking to recover on account of any individual tort or wrong on the part of the defendant.”
However, we do think the trial court’s general instructions went to needless length and into needless detail touching the sale of the farm and the deposit of plaintiffs’ money in the Beloit bank before defendant transferred it to the Cawker City bank.
2. It is next urged that notwithstanding the trial court’s specific instruction No. 16, quoted above, the jury were permitted under the instructions to hold defendant liable for causes other than those under which the statutory liability is imposed.
The pertinent statute reads:
“It shall be unlawful for any president, director, manager, cashier, or other officer of any banking institution, to assent to the reception of deposits or the creation of debts by such banldng institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and it is hereby made the duty of every such officer, agent or manager of such banking institution to examine into the affairs of the same, and, if possible, know its condition. And upon failure of any such person to discharge such duty, he shall, for the purpose of this act, be held to have had knowledge of the insolvency of such bank, or that it was in failing circumstances. Every person violating the provisions of this section shall be individually responsible for such deposits so received, and all such debts so contracted: Provided, Any director who may have paid more than his share of the liabilities mentioned in this section may have the proper x-emedy at law against such other persons as shall not have paid then- full share of such liabilities.” (R. S. 9-163.)
“In all suits brought for the recovery of the amount of any deposits . . . the fact that such banking institution was so insolvent or in failing circumstances at the time of the reception of the deposit chai’ged to have been so received, . . . shall be prima facie evidence of such knowledge and assent to such deposit or creation of such debt on the part of such officer, agent or manager so charged therewith.” (R. S. 9-164.)
In addition to defining the duty of a bank director under the statutory provisions just quoted, the court gave an instruction (No. 6) formulated from the duties imposed upon a bank director by another section of the statute (R. S. 9-109), the penalty for breach of which is a fine or imprisonment or both. (R. S. 9-137.) It seems to us that while instruction No. 6 would have been a proper statement of law if this were a criminal prosecution, it had no place in this lawsuit, and quite possibly did tend to confuse the jury in this civil action to recover on the statutory liability imposed for breach of R. S. 9-163.
3. It is next contended that there was no evidence to support the jury’s special findings 7 and 14. So far as this pertains to finding 7^ we cannot assent to this contention. While there was abundant testimony as to the frequency of defendant’s partial examinations of the bank, the evidence was far from conclusive — at least a jury might so determine — that his examinations were sufficiently thorough to satisfy the requirement of R. S. 9-163 and thus enable him to avoid the civil liability imposed for breach of that section. And as to finding 14, neither the trial court nor this court should say as a matter of law that the evidence touching the deceitful manipulation of the adding machine and consequent falsification of the amount of deposits was so subtle that it was not reasonably possible for defendant to discover that the discrepancy of $41,000 existed. Counsel expatiate on the well-known accuracy of an adding machine. That, however, is not the point. If the falsity of the totals had actually been caused by some mechanical failure of the machine, probably no jury would hold defendant blameworthy or civilly liable. But the fault was not in the adding machine but in the deceitfulness of the cashier who operated it. This statute (R. S. 9-163) was enacted many years before the invention of the adding machine. And when enacted it must have been contemplated that depositors’ accounts should be carefully checked and added by bank directors to ascertain the true status of the bank’s liabilities and likewise to ascertain if the bank’s assets were sufficiently intact to meet those liabilities — in short, “If possible, to know its condition.” In Forbes v. Mohr, 69 Kan. 342, 76 Pac. 403, which, like the case at bar, was an action to recover from bank directors for their illegal assent to the reception of deposits while the bank was insolvent, it was held (among other matters) that a director of an insolvent bank was not excused from liability to a depositor under this identical statute because he relied upon the supposed honesty of the cashier. Counsel for defendant cite Scott’s Executors v. Young, 231 Ky. 577, where bank directors were exonerated from their failure to discover certain long-continued defalcations of a bank employee concealed by manipulating a bookkeeping machine. That court said:
“Though Mr. Escott [witness] says that it could have been discovered by a complete audit made by an expert accountant, this practice is not followed by country banks, and, in view of the examination made by them and the state bank examiners, and of the further fact that there was nothing in the conduct or habits of Vardaman [the delinquent employee] reasonably calculated to arouse their suspicion, we are not disposed to hold that the directors were guilty of negligence in failing to have such an audit made. Furthermore, it must not be overlooked that the directors and officers were themselves among the largest stockholders of the bank, and had their own interests to protect, as well as that of the other stockholders. Looking at the case from every angle, we are inclined to agree with the chancellor that the loss occasioned by the Vardaman shortage was not due to a failure on the part of the officers and directors to exercise ordinary care in the management and supervision of the bank.” (p. 583.)
However, this court has long held bank directors to a more exacting standard of duty.. In Forbes v. Mohr, supra, it was said:
“It was evidently the thought and purpose of the legislature to guard depositors from loss through the incompetency or criminality of officers chosen by directors by imposing upon such directors the burden of giving watchful care to the affairs of the bank, and by adding to their duties something more than care in the selection of president and cashier, to wit, the duty of keeping watch of their conduct by making an examination into the affairs of the bank with reasonable frequency and thoroughness. ... A director may not excuse himself from liability to a depositor by saying that he was relying upon the honesty of the cashier whom he had employed, and hence made no examination of the affairs of the bank; or that it would have been useless for him to make such examination because the peculations of the cashier were of such character, and carried on and concealed with so skillful a hand, that he, not being an expect, could not have discovered them.” (pp. 346, 348.)
In our opinion it would not do to say that while bank directors cannot escape responsibility by putting dependence on the assumed honesty of the bank cashier they are excusable for putting dependence on the assumption that he honestly operated the bank’s adding machine. However a jury might regard the question, it cannot be said as a matter of law that defendant could implicitly rely on the cashier’s honesty in the operation of the adding machine, especially when his deceitful manipulation of it had extended over a period of several years. The evidence, which included all the circumstances, was sufficient to justify the jury’s answers to questions 7 and 14.
4. It is next contended that defendant was entitled to judgment on the special findings. This argument is based on the finding that defendant did not know of the existence of $53,000 worth of forged paper in the bank’s assets. That finding of fact, while helpful to defendant, did not completely exculpate him. It is far from clear that a thorough examination of the bank’s condition at reasonable intervals would not have disclosed corresponding infirmities in the bank’s accounts necessitated by the long continued existence of this vast amount of forged paper in the assets of a village bank like that of Cawker City. The placing of each forged note in the assets would necessitate some corresponding entry of diminished cash, or some additional item of deposits to the credit of the person whose name was thus forged, or in some other manner the sum of the forged instruments would necessarily appear. That such systematic falsification of the bank’s assets and liabilities could continue for years without defendant discovering it is rather difficult to believe, and even if it was not reasonably possible for defendant to have detected the forged instruments in the note case (finding 13), that fact did not exonerate him of all negligence in discharge of his duty, under R. S. 9-163. It must be held that defendant was not entitled to judgment on the jury’s special findings.
5. Defendant does present a meritorious complaint against some of the instructions. Instruction No. 10 dealt with the liability of a director who has failed to make any examination of the bank’s affairs. Since there was no evidence of such utter failure to make any examination, this instruction was irrelevant if not altogether prejudicial.
6. A still graver objection is properly urged against instruction No. 4, which was as follows:
“4. Directors of a bank are presumed to know the financial condition of the bank, its general business as shown by the regular books and receipts and expenditures, and that is for the protection of the parties dealing with the bank. You are therefore instructed that J. B. Heinen conclusively is presumed to know what the records of the bank disclosed on March 1, 1930, or any other time when he was director of said bank.”
Neither the pertinent statute under which this action was predicated and as stated in instruction No. 16, quoted above, nor anything hitherto declared in our precedents, will support the rule of law stated in instruction No. 4. Certainly the Butler county bank cases, Ramsey Petroleum Co. v. Adams, 119 Kan. 844, 241 Pac. 433, and Ramsey v. Adams, 122 Kan. 675, 253 Pac. 416, cited by both parties, do not support such a rule. In the first of those the relevant point dealt with facts which constituted yrima jade evidence of bank directors’ neglect of duty. Prima jade evidence is quite a different thing from conclusive evidence, or a conclusive presumption. In the second of those cases the conclusive presumption of the bank director’s knowledge of the bank’s insolvent condition was invoked, because director Kramer had failed to make any examination of the bank. See Ferry v. Ramsey, 277 U. S. 88. Nothing in the evidence for plaintiff, given its largest credence, furnished any basis for a conclusive presumption that defendant knew or that he “conclusively is presumed to know” what the bank records disclosed on March 1, 1930, or at the time plaintiffs’ money was deposited in the bank. Instruction No. 4 was erroneous and prejudicial.
7. Appellant also complains because oUthe trial court’s refusal to give instructions to the jury as requested in several particulars. One of those refused would have told the jury that defendant would not be liable although he failed to attend the regular quarterly meetings of the board of directors if at other times he made frequent and thorough examinations of the bank. Instruction No. 7, which the court did give, and other pertinent instructions sufficiently covered this feature of the: case. Another instruction requested and refused dealt with the question of defendant’s liability in so far as the insolvency of the bank was caused by the large amount of forged notes in its assets. That point was sufficiently covered in the instructions given. We have already noted the trial court’s refusal to require plaintiffs to separately state and number their causes of action; and while the court did give instruction No. 16, quoted above, it would seem but just to have given defendant’s requested instruction No. 4, since the court’s general instructions extended to several pages, narrating at length the utterly inconsequential details of the sale of plaintiffs’ farm and of defendant’s unauthorized disposition of the proceeds in the Beloit bank, before transferring them to the-Cawker-City bank. Granting that defendant’s conduct in that respect was unauthorized, even reprehensive, it was not what he did with the money as agent of plaintiffs that subjected him to possible liability in this action, but his delinquency as director of the bank in permitting it to accept plain tiffs’ money while it was insolvent. The needlessly lengthy general instructions were so likely to plant in the minds of the jury an unfavorable impression of defendant’s conduct in handling plaintiffs’ affairs that something like defendant’s requested instruction No. 4 should have been given to avoid the probability of the jury’s being led astray.
8. Complaint is made against the rulings which excluded evidence in defendant’s behalf. He offered to show the reason why he so frequently failed to attend the regular quarterly meetings of the board of directors. Under the majority view in Ramsey v. Adams, supra, as affirmed in Ferry v. Ramsey, 277 U. S. 88, it was of no consequence why defendant failed to attend those directors’ meetings. Moreover, we must repeat, defendant’s liability did not turn on his breach of duty to attend the quarterly meetings or to perform any other duties prescribed in R. S. 9-109, but because of alleged breach of duty imposed by R. S. 9-163.
9. Other excluded evidence was that of other directors of the bank who did attend the directors’ meetings. Their testimony would have shown that they did not discover the forged notes nor the manipulation of the adding machine which falsified the amount of deposits. We cannot say that the exclusion of this evidence was erroneous. It would have been quite proper, of course, to show the correct way a bank director should examine a bank, so the jury could determine how closely defendant’s examinations conformed to good practice; or defendant might have produced experienced bank directors and have propounded a hypothetical question'to them touching defendant’s view of what the evidence showed concerning the extent and frequency of defendant’s method bf examining the bank, and thus have elicited their expert opinion whether such measure of thoroughness and frequency would have made it reasonably possible for defendant to have discovered th'e bank’s insolvent condition. (Shouse v. Consolidated Flour Mills Co., 132 Kan. 108, 294 Pac. 657.)
The foregoing concludes our review of the matters most urgently pressed on our attention in this appeal. Because of the manifest error in . instruction No. 4, which will necessitate a new trial, we have gone into some of the other errors assigned with greater detail, not because in themselves, separately considered, they would neces: ■sarily constitute reversible error, but to contribute what we may to their avoidance- in another trial.
The judgment is reversed, and a new trial is ordered. | [
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The opinion of the court was delivered by
Burcit, J.:
Plaintiff purchased of defendant a bond for $1,000 of a type- which defendant issued. The price was payable in installments. In May, 1929, she surrendered the bond and took two others for $1,000 each. On May 2, 1930, she brought an action for a declaratory judgment, first, that the bonds are void; or, second, if the bonds are not void, that she is entitled to surrender them on terms provided in the building and loan association statute. In either event, she would get back all her money with interest, some thing which is utterly incompatible with the contracts. The district court found for defendant and rendered judgment accordingly. Plaintiff appeals.
Defendant is a private corporation, organized in 1919, pursuant to subdivision 53 of chapter 125 of the Laws of 1911, authorizing organization of investment and loan companies with power to lend money on real estate, chattel or personal security. (R. S. 17-202, subdiv. 53.) In 1919 and previously, charters were procured on application to the charter board. If after investigation the board determined the undertaking was one for which a corporation could be formed, the application was granted. (R. S. 17-401 to 17-403.) Defendant’s charter stated the purpose for which the corporation was formed as follows:
“To loan money on real estate, personal and chattel security.”
In 1925 defendant amended its charter to read:
“This corporation is organized for profit, and the purposes for which it is formed are to loan money on real estate, chattels, or personal securities; to sell its bonds, secured by first mortgages on real estate.”
In 1925 and previously the law required charter amendments to be approved by the charter board. (R. S. 17-216.)
The original bond issued to plaintiff was dated March 11, 1925. The two bonds issued on surrender of the original bond were issued on May 7,1929. One bore that date, and the other bore the original date March 11, 1925. A copy of the face of the latter and a copy of the security provision of the privileges and conditions forming part of the instrument are appended to this opinion.
Before amendment of its charter defendant had engaged in the business of selling bonds of the general character of those issued to plaintiff. Since amendment of its charter defendant has continued to issue such bonds. Defendant’s interpretation of the law and of its charter has been acquiesced in by the state of Kansas. As will appear later, defendant’s business has been conducted under strict and constant state supervision and the state does not now question authority of defendant to issue and sell its bonds. Plaintiff dealt with defendant as having lawful authority to make the contracts in controversy, and plaintiff is forbidden to assert in this action, for any purpose, that the bonds are void for lack o.f a statute or for lack of a charter under which defendant could conduct its business of issuing such bonds. (Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123.)
The original bond had express provisions relating to surrender of the bond for stated cash surrender values at the end of each year beginning with the second year. While the bonds in controversy contain provisions for loan values and for surrender for paid-up bonds, contain nonforfeiture clauses applicable in case of default, and contain provisions for optional settlement at maturity, they do not provide for surrender for cash before maturity except in case of death or disability of the holder.
Arguments that plaintiff has privilege to surrender the bonds and that surrender and surrender value are governed by the building and loan association statute proceed from two premises — first, that the bond transactions'are essentially building and loan transactions; and second, that the building and loan statute was amended to classify financial agencies, operating as defendant operates, with building and loan associations for purpose of regulation, including withdrawal of funds.
It so happens there are nine other domestic corporations and nine foreign corporations doing the same kind of business in Kansas that defendant does. One of the foreign corporations, the' Investors Syndicate, of Minneapolis, Minn., has been doing business in the state since 1914. Plaintiff’s action having been brought to the attention of some of these companies, their attorneys asked and were given permission. to file briefs amid curice. The attorney-general was given leave to file a brief on plaintiff’s side. In a subdivision of a reply brief, headed “The Legal Status of the Bankers Mortgage Company,” plaintiff undertakes to make her position so clear it may not be misunderstood concerning the proposition that the bond transactions between plaintiff and defendant were essentially building and loan association transactions. The reply brief says:
“The business of this concern is that of a savings institution ... He [a bondholder] is not an ordinary creditor of the concern at all. That is a mere technicality; he is directly interested in the mortgages in which his funds are invested. . . . These bonds are receipts of an investment agency for the funds which it expects to invest for the benefit of these small investors.”
Defendant is a private corporation having a capital stock owned by stockholders. The certificates of stock issued to stockholders are in the usual form of such instruments. Plaintiff is not a holder actually or beneficially of any share of the capital stock of the corporation.
In the conduct of its business the company issues and sells what it calls guaranteed first-mortgage savings bonds. The name given the instruments is fairly descriptive. The instruments are properly called bonds because they are undertakings of the company to pay money. Payment of the money to the bondholder is secured— “guaranteed”- — by deposit with and assignment to the bank commissioner of the state of Kansas of first mortgages on real estate. The bonds are called savings bonds because an investor of moderate means may pay for a bond out of savings, in periodical installments.
Some of the bonds are or were called guaranteed first-mortgage, six per cent savings bonds. The reason for the interest characterization will appear from an illustration. An investor buys a bond for $1,000, payable ten years from date. During that period he pays only $720. His payments, with interest at six per cent compounded ' annually, amount to $1,000, the sum he receives at maturity of the bond. The eleven-year bonds in question are similar in character.
To conduct its business the company must have a central office and certain fixed assets. The company must have- in some form what corresponds to departments for discharge of its two chief functions, a selling department to sell bonds and a loan department to make loans on real estate. Conduct of the business embraces innumerable details. The company must pay salaries to officers and employees, commissions to agents, and expenses of various kinds. In case of foreclosure of mortgages, it may acquire certificates of sale and deeds of land, which become part of the assets of the company.
What are the directors of this corporation doing in conducting the business described? The answer is simple and obvious. They are trying to make money to pay operating expenses, to accumulate a surplus for safety, and to accumulate funds for distribution as dividends to stockholders. If the corporation accumulates a surplus from profits, the bondholder has no interest in the surplus. Whether the corporation makes or loses money, the bondholder’s rights are not affected. His interest is purely a fixed pecuniary demand. In case of default by the company, the bondholder recovers what is nominated in the bond, no- more and no less, and he gets that in any event, if the company is solvent or the security is intact. No bond is a receipt for anything but the initial payment. The money which a bondholder pays to the company becomes the company’s money. The company invests its own money in real-estate mortgages for its own benefit, and then, as owner, places the mortgages with a depositary to secure bondholders. The result is, the statements quoted from the reply brief of plaintiff concerning the relation of plaintiff to defendant force the facts and misapply the law, and the relation between the company and the bondholder is that of debtor and secured creditor.
The foregoing is sufficient to dispose of the contention that the transactions between plaintiff and defendant were essentially transactions between a shareholder of a building and loan association and the association. The fallacy of the contention will further appear in the discussion of the subject of statutory classification of defendant’s business with building and loan association business for the purpose of regulating withdrawal.
In determining the question of classification, the first building and loan association statute which needs to be considered is chapter 78 of the Laws of 1899. That statute provided for the incorporation of building and loan associations, for the adoption of by-laws by shareholders, and for election and qualification of officers and directors. Section 6 related to powers of the corporation and read as follows:
“The object of such corporations shall be the accumulation of a capital in money, to be derived from the payments by its members in periodical installments or otherwise, at such time and in such manner as shall be provided in the by-laws, and from the profits and accumulations arising from the investment of such payments. The capital so accumulated by any corporation created by virtue thereof shall not exceed in the aggregate and full ultimate value the sum of ten million dollars, and shall be divided into shares of equal value; the ultimate value of such shares shall not exceed one thousand dollars. Said capital may be issued in full-paid, prepaid, deposit or installment shares, in such amounts and at such times and in such manner as may be provided in the by-laws. Any such corporation may issue permanent or guarantee stock, for which the full par value shall be paid at the time of issue or in installments of five dollars per share, at the option of the purchaser, and upon which permanent stock a full dividend or a definite dividend may be paid, which dividend shall in no case exceed the per cent of profit acquired by all other classes or series of stock at the time such dividend is declared. The balance of profits (if any) and the principal paid on said stock shall not be paid to the holders of the same until all lawful claims of every other class of stock in its series, as expressed in the certificates of such other classes, and all other liabilities of such corporation, shall have been fully liquidated and paid. Payments of dues or installments on shares shall commence and date from the time provided in the by-laws. There shall be issued to every shareholder a certificate signed by the president and secretary of the corporation, and evidenced by its corporate seal, setting forth distinctly and clearly the class of stock for which he has subscribed, and the provisions in the by-laws relating to stock of the class, the interest which it may draw, and the withdrawal value which it may have at any time, and also the time when the said stock shall be withdrawable, and shall provide that a nonborrowing stockholder, on withdrawing after the end of the first year after becoming a stockholder, shall receive not less than ninety per cent of the amount of the money he has paid to the association, less his proportionate share of the net losses of the association during the time he was stockholder. . . .”
The statute provided for loans or advances to shareholders from accumulated capital; for forced retirement of shares; for voluntary withdrawal of shareholders; for payment of dividends from earnings of the association only; for payment of matured shares; and, in general, provided for organization and conduct of a type of building and loan association. Building and loan associations were placed under supervision of the bank commissioner.
The statute of 1899 was amended in 1911. The phraseology of section six was changed in some particulars. In the portion providing for issuance of “permanent or guarantee” stock, the words “or guarantee” were omitted. In the portion relating to payment for permanent stock, the word “monthly” was inserted before the word “installments.” In the portion relating to dividends on permanent stock, the words “per annum” were omitted, and the expression “all other classes or series of stock” was changed to “any other class or series of stock.” In the portion relating to what the shareholders’ certificates shall recite, the words “the interest which it may draw” were changed to “the dividend which it may draw.” The provision relating to what a withdrawing nonborrowing shareholder shall receive was changed to “and shall provide that a non-borrowing stockholder on withdrawing shall receive not less than the full amount of the dues he has paid to the association.” The provision for deducting losses was omitted.
In 1919 the section under consideration was amended by omitting the limitation of amount of capital stock. Amended as indicated, the section became R. S. 17-1006, which is still the law.
While the type of building and loan association indicated differs in many particulars from other private corporations and business associations, building and loan associations are corporations for profit accruing to shareholders from conduct of the business, and this is true whatever the method of issuing stock. As between share holders, the basic features of the original neighborhood building and loan club — membership and mutuality — still exist.
In 1911 a new section was added to the building and loan association law, which reads:
“The name ‘building and loan association’ as used in this act shall include: First, corporations formed for the purpose of receiving money from and loaning money to their members only. Second, corporations, associations, companies, copartnerships and individuals transacting the business of issuing or selling bonds, debentures, certificates, shares of stock or other papers by whatever names said instruments may be designated, whether said instruments are issued for money paid in advance or for money to be paid in installments, but with an intent, either implied or expressed, that the proceeds or accumulated installments thereof and thereon or any part thereof are to be with-drawable or repayable with accumulated profits at some future fixed or indefinite date of maturity: Provided, That all payments made in advance or in installments, or otherwise, on any of the foregoing instruments shall be subject to the same provisions for withdrawal or repayment as payments on building and loan association stock. . . .” (Laws 1911, ch. 131, § 12.)
The section closed with a proviso that it should not apply to companies engaged in banking or insurance. The first part of the section was modified in 1925 to read:
“That the term building and loan association, as used in the statutes of Kansas, shall be construed to include: First, corporations formed for the purpose of receiving money from and loaning money to their members . . .” (Laws 1925, ch. 127, § 6.)
It will be observed form of expression only was changed. Substance was not affected, and as thus modified the quoted portion of the section is still the law.
The amendment of 1925 made the building and loan association law apply generally to the corporations and other business associations named in the quoted portion of the original section, placed them under jurisdiction of the building and loan supervisor, and required submission of by-laws and plans of business to. the bank commissioner for approval; but no kind of business agency other than those specified in the original section was affected by the amendment.
Because the quoted portion of the section was enacted in 1911, received careful legislative revision in 1925, and has not since been changed, the legislature must have expressed itself precisely as it desired. The section applies first to building and loan associations proper. Then, the section applies (1) to corporations, etc.; (2) which issue bonds, etc.; (3) with a specified intention. The specified intention is that whether payments for bonds, etc., be made in ad vanee or in installments, the proceeds or accumulated installments are repayable or withdrawable with accumulated profits.
The statute is a building and loan association statute, not an investment and loan company statute, and there is no indication that business not reasonably classifiable with building and loan association business was arbitrarily forced into the same category with building and loan association business.
According to the usual and ordinary significance of the words, “accumulated profits” mean accumulations by the corporation of excess of value of returns over value of advancements in the conduct of the corporate enterprise. The bondholder contemplated by the statute does not accumulate anything. The company does the accumulating. It accumulates funds from bondholders and it accumulates earnings. When the bondholder gets bade money paid in advance or in installments, he also gets a share of what the corporation has earned, distributable as profits. He thus occupies a relation to the corporation similar to the relation between a building and loan association member and the association.
Section 6 of the law of 1899, and various other sections of the building and loan association law forming context of the section under consideration, make the meaning of accumulated profits perfectly clear, and there is no warrant for believing the legislature used the same words in distinctly different senses.
On the same day the 1911 building and loan association statute took effect, another statute took effect defining investment companies and regulating sale of the stocks, bonds, or other securities of such a company. (Laws 1911, ch. 133.) The act required the plan of business and the proposed contract of the company to be submitted to and approved by the bank commissioner before securities were offered for sale. Building and loan associations and some other business associations were excepted from operation of the statute.
Some light is thrown on the occasion for the building and loan association statute of 1911, including the expanded definition of building and loan associations, in the Kansas chapter of the book “History of Building and Loan in the United States”:
“The defective character of the law of 1899, resulting from its preparation by persons unfamiliar with Kansas conditions who tried to foist upon the state regulations developed elsewhere, naturally aroused opposition throughout the state. As Kansas had been overrun with ‘national’ associations, both within and outside its borders, romping over the state and issuing cutthroat contracts, the law, as a result of the pressure from associations within the state, was amended in many particulars. This, together with the desire of the legislature to make a good law, resulted in one that was not homogeneous.” (p. 397.)
The chapter from which the quotation was taken was written by Charles S. Elliott of the Capitol Building and Loan Association of Topeka.
The words “with accumulated profits” may not be excised from the definition section of the building and loan statute, and their force and effect may not be minimized. They characterize the class of corporations and other business associations brought within the terms of the building and loan association law. In what has been said all the accepted canons of statutory interpretation have been applied. They all lead to the same conclusion, and the result is, the legislature did not include corporations doing business according to the plan adopted by the Bankers Mortgage Company within the regulatory provisions of the building and loan association law.
The foregoing disposes of the merits of this controversy. However, plaintiff makes the contention that sale of bonds issued by the Bankers Mortgage Company and by the eighteen other companies doing business in the state on the same plan, is a bad thing for the people. Because of poor judgment respecting what they are able to buy, and because of the vicissitudes of this harsh world, many persons cannot mature their bonds or take advantage of even liberal nonforfeiture privileges in case of default. Even when bonds provide for cash surrender values, the bondholder does not get enough, or get what he ought to have soon enough, and the company is unjustly enriched. It would seem that notwithstanding the fact the company’s funds must be invested in long-time mortgages, the company should nevertheless make oil and water mix by keeping its assets so liquid anybody can get all his money back with interest any time he wants it. In any event, plaintiff contends her bonds are void as against public policy.
In 1913 the investment company law was amended, and in 1915 it was repealed by the speculative securities act, or blue-sky law, the purpose of which was stated to be to prevent unfairness, imposition and fraud in the sale of securities. This law- has been amended from time to time and, as amended, is still in force. The blue-sky law distinctly applied to the securities issued by the Bankers Mortgage Company. Since 1922 the Bankers Mortgage Company has conducted, its business under supervision of the blue-sky department, and the record shows the department has not hesitated to exercise its authority to supervise. ■
As indicated, since 1914 The Investors Syndicate has been selling its securities in this state. In March, 1922, on request made by the bank commissioner for instruction, the attorney-general wrote the following letter:
“In the matter of the rights and authority of the Investors Syndicate to transact business in the state of Kansas and sell its certificates as heretofore permitted by the charter board, have to advise you that I have given same extensive consideration, and am of the opinion that such permit to sell securities is not beyond the power of the charter board. That the granting of such permit did not contravene or violate the building and loan association laws of this state.
“Therefore, if the Investors Syndicate, and other similar corporations, can otherwise qualify, there is no inherent reason in the law why the charter board, on recommendation of your department, could not grant them permits to sell their securities in this state.”
The state, through its legal department, has not challenged, and does not now challenge, legality of the business of the Bankers Mortgage Company.
Plaintiff purchased her first bond in 1925, three days before the 1925 amendment of the building and loan association law took effect. The testimony of a witness for plaintiff is abstracted as follows:
“In the years 1924 and 1925 he was the secretary of the Kansas State League of Building and Loan Associations, and the duties of his office required him to meet and discuss with many people the condition of the investment business throughout the state of Kansas, and that he did travel over the state and did discuss financial and investment conditions with many people, and that there were many complaints in respect to the bonds of the Bankers Mortgage Company and other similar concerns. That he heard no complaints about any other kind of investment companies ,. . . That the affiant was a member of the legislative committee appointed by the Kansas State League of Building and Loan Associations, and that the state legislative committee, during the legislative session of 1925, employed ... [a] well-known attorney to prepare a bill to amend the building and loan statutes, and in pursuance of such employment said [attorney] did prepare a bill, which was after-wards introduced into the legislature and passed by the legislature, the same now being found as chapter 127 of the Laws of 1925.”
The necessary conclusion is that in 1925 the legislature must have carefully scrutinized the building and loan association law with special attention to bonds and other securities issued by corporations and other business associations, and when the legislature maintained the distinction between bondholders who share profits and those who do not and left the regulation of companies issuing nonprofit-sharing securities to the blue-sky department, the legislature knew exactly what it was doing.
In 1929 the blue-sky law was revised by an act which took effect on July 1,1929, a few months after plaintiff increased her investment from one bond to two. Provision was made for registration of certain classes of securities by making a certain showing. (R. S. 1931 Supp. 17-1227.) Subdivision 8 of the section related to bonds of the kind plaintiff then held. Having complied with the law, on September 16,1929, The Bankers Mortgage Company was authorized and empowered by the bank commissioner to proceed with sale of its single-payment bonds, coupon bonds, and guaranteed first-mortgage savings bonds.
The legislature fixes the public policy of this state, and the foregoing demonstrates its policy with respect to the investment business carried on in the state. This court does not sit as a superlegislature, and, without debating the subject, the court declines to proscribe the business of the Bankers Mortgage Company and of the companies doing similar business, on the ground such business is inimical to public policy.
The judgment of the district court is affirmed.
APPENDIX.
$1,000. . No. K-2949.
The Bankers Mortgage Company, Topeka, Kansas.
guaranteed first-mortgage savings bond.
Know all men by these presents, That the Bankers Mortgage Company, a corporation, duly organized and existing under and by virtue of the laws of the state of Kansas, certifies that in consideration of the payment of sixty dollars, and five dollars monthly in advance during the period of eleven years from date hereof, hereby guarantees to pay to Ruth Funk, of Moscow, Kan., or the recorded owner hereof, at the expiration of said period, upon presentation and surrender of this bond to the company at its office in Topeka, Kan., the sum of one thousand dollars, ($1,000).
This bond is subject to the privileges, terms and conditions as on the second, third, and fourth pages hereof, which are hereby referred to and made a part hereof, as fully as if set forth in the face of this bond.
In witness whereof, the Bankers Mortgage Company has caused this bond to be executed in its corporate name and its corporate seal to be affixed at Topeka, Kan., this 11th day of March, 1925.
The Bankers Mortgage Company,
Attest: J. A. Fleming, Secretary. By M. W. Cave, President.
PRIVILEGES AND CONDITIONS.
1. Security. This bond is the direct obligation of The Bankers Mortgage Company of Topeka, Kan., and is registered with the bank commissioner of the state of Kansas. Said company is required by the charter board of the state of Kansas, consisting of the attorney-general, the secretary of state and the bank commissioner, to keep at all times on deposit as collateral security, first mortgages on improved real estate in an amount at least 10 per cent in excess of its liabilities on this and all other like and outstanding bonds issued by it, less the amount of any loan made thereon.
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The opinion of the court was delivered by
Six, J.:
Following a mistrial where the jury was unable to agree on a verdict, Romane Douglas was convicted in his second trial by a jury of two counts of premeditated first-degree murder, K.S.A. 21-3401(a), and two counts of aggravated robbery, K.S.A. 21-3427. He was sentenced to two consecutive hard 50 sentences.
Our jurisdiction is under K.S.A. 22-3601(b)(l) (a conviction of an off-grid crime).
The issues arise from Douglas’ assertions on appeal that he is entitled to a new trial based on numerous errors below. We frame the questions for review as whether: (1) the State used a peremptoiy strike for a discriminatory purpose, thus violating Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); (2) the district court erred in refusing to instruct the jury on second-degree intentional murder and voluntary manslaughter as lesser included offenses of first-degree premeditated murder; (3) the prosecutor engaged in misconduct during closing arguments requiring reversal; (4) prior crimes evidence was improperly introduced by the State; (5) there was sufficient evidence to support Douglas’ convictions for premeditated first-degree murder; (6) the Kansas hard 50 sentencing scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (7) the district court abused its discretion in finding that the aggravating factors submitted in support of the two hard 50 sentences outweighed the mitigating factors.
Finding no error, we affirm.
FACTS
Because Douglas questions the sufficiency of the evidence supporting his convictions for premeditated murder, we expand the recitation of the facts.
In 1999, police searched Jesse Mejia’s house in Garden City in connection with warrants for cocaine and marijuana trafficking. Cash and jewelry were seized in the search. Mejia hired an attorney to represent him. In a settlement around October 1, Mejia received $10,000 and his jewelry, valued at $2,000. On September 29 and October 1, Mejia and Alfredo Martinez checked into rooms at the Knights Inn Motel in Wichita. Telephone records showed that on October 3, at 6:58 p.m., a call was made from Mejia’s motel room ' to Douglas’ cell phone number. There also had been three other calls from Mejia’s room to Douglas’ cell phone number that day.
On October 3, Mejia visited his former sister-in-law Terri Mejia around 7:20 p.m. Terri had been married to Mejia’s brother Rito, who was in custody at the El Dorado Correctional Facility. Rito was scheduled to call at 7:30 p.m., and Mejia wanted to talk to him. Mejia told Terri that he was going to Barry Sanders Park (a football field inside of McAdams Park) and would be back in about 20 minutes. Mejia apparently never returned.
That evening, at 9:17 p.m., the police found one Hispanic man lying on his stomach in the street with his arms above his head. He was bleeding from his left ear and left shoulder area and was not breathing. Shell casings were observed at tire foot of the victim. A rawhide glove was found nearby. A second Hispanic man was lying on his back, perpendicular to the curb. He was experiencing labored breathing. He had been shot in the back of the head. His left pants pocket was pulled out, exposing the white lining. An investigator testified that it appeared from a mark that a bullet had struck the curb near the body. Blood was also found near the strike mark. The victims, identified as Jesse Mejia and Alex Martinez, died from gunshot wounds.
Martinez’ maroon Camry was located near McAdams Park, about 2 blocks north and 2 blocks west of the area where the bodies were found. Officers found blood in various places inside the car, including the left rear seat. An investigator testified that he did not believe the blood stain would have been on the left rear seat of the Camry if someone was sitting in that seat. Bullet fragments were found in the front dash of the car. Additional blood samples were taken from the Camry’s exterior right rear quarter panel. Three Winchester 9 mm cartridge cases and traces of gravel were discovered on the right rear floorboard.
The police found two black leather jackets in McAdams Park. Blood was on both jackets. One jacket had a bullet hole in the right shoulder. Forensic testing revealed that Mejia’s DNA profile was consistent with the sample on one jacket, and Martinez’ DNA profile was consistent with the sample on the other jacket. A brown jacket was also found in Douglas’ car, a Suburban. Blood samples found on the brown jacket were consistent with Martinez’ and Mejia’s DNA profiles.
On October 5, 1999, Officer Richard Vickers was dispatched to a Wichita domestic disturbance call. Upon arrival, Vickers arrested Douglas for outstanding traffic offenses. Douglas requested permission to release some personal property to his mother. Vickers allowed him to do so. Douglas handed his mother a roll of money, which he said was a “couple hundred dollars,” and some jewelry.
When homicide investigator Detective Kelly Otis attempted to locate Douglas for questioning regarding the outgoing phone calls from the Knights Inn, he discovered that Douglas had been arrested. After being Mirandized, Douglas agreed to speak with Detective Otis. When first asked if he knew any Hispanic men, Douglas replied that he did not. Later in the interview, he recalled meeting a Hispanic man out on the street 3 or 4 days before his police interview. When asked about his activities on the weekend, Douglas initially told Otis that he had gotten drunk and did not remember what he had done. Later, Douglas said he had been at the house of a lady he knew as “Fire” for about 3 hours and then he drove around with a guy he knew as “Sweets.” According to Douglas, he and Sweets later went to the house of another friend, LaTonya Jennings. Douglas thought he had left Jennings’ house around 4:30 a.m. to go to his mother’s house, where he lived, to check on his son. Then, he returned to Jennings’ house.
Douglas eventually told Detective Otis that he remembered a call on his cell phone on Sunday (October 3) from a Hispanic man he called “S.A.” Douglas said he had seen S.A. the day before when they were stopped at an intersection. S.A. had asked Douglas if he could get some marijuana. Douglas told Detective Otis that he led S.A. to an area where he knew a guy that sold marijuana. Douglas thought he might have given his own phone number to S.A.
Douglas told the detective that S.A. called him the next day, wanting to buy a pound of “weed.” He initially said he gave S.A. the phone number of the dealer from the day before. Douglas’ caller ID showed that S.A. was calling from the Knights Inn. Douglas identified a photograph of Mejia as the man he referred to as “S.A.” He was not able to identify Martinez.
Douglas initially denied having been in McAdams Park on Sunday. Later in the interview, he said that he had met some Hispanic men at the park. He told Otis that S.A. had called him and said Douglas needed to be at the drug deal. According to Douglas, he drove his vehicle to McAdams Park and sat for awhile. Then, S.A. and another man arrived in a car. The dealer also arrived. Douglas said he attempted to leave after the three others met, but his car was out of gas. He told Detective Otis that he walked to the closest convenience store, got gas in a gas can, and took it back to his car. Then, he drove away. According to Douglas, the other men were gone when he returned to the park. Otis asked Douglas if someone could verify his story, and Douglas replied that a man that he knew as “Lez” or “Layez” was with him.
Small amounts of blood were found on Douglas’ shoes. Fluid tested from his right shoe was consistent with Martinez’ and Douglas’ DNA profiles. Blood tested from Douglas’ left shoe was consistent with Martinez’ DNA profile. When Detective Otis mentioned the blood, Douglas said there was no way that blood was on his shoes.
A gun was never located. In Mejia’s motel room, police found about $600 in a sock. There was no accounting for the other $5,400 that had been given to Mejia ($4,000 of the $10,000 had been paid to Mejia’s attorney). One of the police sergeants reported that the money Douglas gave his mother totaled about $200. The jewelry Douglas gave her was not the jewelry that had been returned to Mejia. Mejia’s jewelry was never found.
Defendant’s trial testimony
Douglas testified at trial. He said he went to a party with some friends at the Knights Inn on the night of October 2,1999. There, he met Mejia, who he knew as S.A., and Martinez. Martinez asked for some marijuana. Douglas told him that he knew someone who had some, and Douglas and Martinez exchanged phone numbers. Douglas said he would contact L.A., a man he had met in a liquor store 2 or 3 months before. Douglas knew L.A. sold marijuana because he had purchased marijuana from him two to four times. Douglas called Mejia and Martinez the afternoon following the party to ask them if they still wanted the marijuana. He also called L.A. Mejia and Martinez were to meet L.A. at McAdams Park at 8:30 p.m. to purchase one pound of marijuana. Later, Mejia and Martinez called Douglas to ask him to be at the park.
Douglas arrived at the park alone. While waiting, he parked his car and kept it running, but it ran out of gas. When Mejia and Martinez arrived, Douglas asked Mejia if they had a gas can. They did not. Douglas got into the back seat of their car, the Camry, and waited behind the driver’s seat until L.A. arrived. L.A. got into the car with the other three men. L.A. expressed concern that there were other people in the park, so Mejia drove around until L.A. directed him to pull over.
L.A. gave Martinez a plastic bag of marijuana. Douglas received a call on his cell phone. While he was on the phone, he heard the other three men start to argue. L.A. said something about the others being “informers.” Douglas hung up his phone. L.A. pulled his gun, shot Martinez, and then shot Mejia. Douglas quickly got out of the car and ran to some nearby apartments. He stayed there about 15 to 25 minutes before walking to the gas station. At the gas station, he saw a friend named Angela, who drove him back to his car.
. Douglas said he first gave the police different information in the interview because he was scared that if he told police he witnessed the crime, he would be accused of it. He also was scared of L.A.
DISCUSSION
First, we take up the Batson issue. Douglas contends that the State impermissibly used a peremptory challenge to remove the only African-American from the jury panel. He asserts that (1) the defense made a prima facie case of racial discrimination and (2) the State’s reason for removal was not racially neutral. Douglas’ counsel objected to the peremptory strike under Batson. The State gave its explanation for striking the juror. The district court accepted the State’s reason as racially neutral. In the alternative, the district court found that Douglas did not make a prima facie showing of purposeful discrimination.
Resolution of a Batson challenge to a peremptory strike by the State has presented a frequent appellate issue for this court. Whether a prima facie showing of a racially-based strike has been made is a question of law subject to plenary review. State v. Sledd, 250 Kan. 15, 21, 825 P.2d 114, cert. denied 506 U.S. 849 (1992). However, the district court’s decision about whether the State acted with discriminatory purpose is subject to an abuse of discretion standard of review. State v. Vargas, 260 Kan. 791, 794, 926 P.2d 223 (1996). We review the district court’s findings with deference. State v. Conley, 270 Kan. 18, 25, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
Here, the district court initially expressed doubt that Douglas presented a prima facie showing of racial discrimination. Nevertheless, the court heard the State’s reasons for striking the African-American from the jury panel and found that the State gave a race-neutral reason for tire strike. We have held that when the district court rules on the ultimate question of discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot. State v. Campbell, 268 Kan. 529, 534, 997 P.2d 726, cert. denied 531 U.S. 832 (2000). Because the district court considered the Batson issue, we will also do so.
The prosecutor explained that the juror was struck because he had a relative that lived in a nursing home in the crime scene area. During voir dire, the juror said that he traveled through the area once every 2 weeks to visit a family member in a nursing home. The State noted that it removed another juror because she said she lived near the area. In addition, the defense struck a Hispanic juror who said he lived near the area.
Douglas was black, and the victims were Hispanic. However, it appears that the State’s reason for striking the African-American did not relate to characteristics of any particular race. Other jurors that were familiar with the area were also struck. We find no abuse of discretion in the district court’s finding that the State’s justification for use of its peremptory challenge was racially neutral. See generally Vargas, 260 Kan. 791.
Jury Instructions
Douglas contends that the district court erred in failing to instruct the jury on second-degree murder and voluntary manslaughter as lesser included offenses of premeditated murder. Because Douglas requested the instructions, we are required to view the evidence in the light most favorable to him. He is entitled to an instruction on the law applicable to his theories for which there is supporting evidence. State v. Hayes, 270 Kan. 535, 541, 17 P.3d 317 (2001).
The district court found that the evidence did not support the lesser included offense instructions. We have said there is “[n]o duty to instruct the jury on a lesser included offense . . . where the evidence as a whole, viewed in the light most favorable to the defendant, could not reasonably support a jury verdict on the lesser included offense.” State v. Simkins, 269 Kan. 84, 90, 3 P.3d 1274 (2000). A review of the facts here supports the district court’s ruling.
At the jury instructions conference, Douglas’ counsel emphasized the voluntary manslaughter instruction. Counsel said:
“Specifically there was testimony under oath, this is defense’s case in chief, this perpetrator, . . . L.A., had a sudden quarrel with those individuals, Mr. Mejia. Mr. Martinez. And . . . that after this or during this quarrel that, the gun shots were fired. Of course, State’s theory is Mr. Douglas is the shooter, and I understand that and I recognize, and the jury could find, infer from all the evidence this was a sudden quarrel — that the circumstances were a sudden quarrel happened, that would be voluntary manslaughter; therefore, that instruction should be given.”
Noting that Douglas was charged with alternative counts of premeditated murder and felony murder, the district court (1) discussed whether lesser included offense instructions were necessary given the charge of first-degree premeditated murder; (2) noted that the State’s theory was that Douglas acted alone in killing the victims (Douglas’ theory was that L.A. killed the victims); (3) observed that if the jury believed Douglas’ testimony, it would find him guilty of felony murder or not guilty; and (4) found that Douglas’ testimony precluded second-degree murder or any form of manslaughter.
The juiy was given the following aiding and abetting instruction.
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of tire crime.
“This instruction relates to the allegations that the defendant aided another in committing or attempting to commit either aggravated robbery or sale of marijuana.” (Emphasis added.)
Douglas asserts that by giving an aiding and abetting instruction, the district court was required to give all instructions for his benefit that would have been afforded to the principal, referring to L.A., including second-degree murder and involuntary manslaughter.
Douglas fails to acknowledge that the aiding and abetting instruction did not apply to first-degree premeditated murder. We find no support for Douglas’ argument that by giving the aiding and abetting instruction, the district court was also required to instruct the jury regarding second-degree murder or voluntary manslaughter.
Douglas also contends that he presented evidence from which a rational juror could conclude that intentional, but not premeditated, murder occurred or that voluntary manslaughter based upon a sudden quarrel could have occurred. Intentional second-degree murder is the killing of a human being committed intentionally. K. S.A. 2001 Supp. 21-3402. Douglas does not point to any evidence that would support a conviction for intentional second-degree murder. Douglas’ defense theory was that shortly before the shooting, there was some sort of brief argument between L.A. and the victims. Douglas does not contend that he was involved in the argument. The evidence showed that Douglas was engaged in a drug deal with the victims. He met the victims at McAdams Park and got into the back seat of their car. After driving to another location, the victims were shot in the head and left in the street. The evidence suggested that bullets were again fired at the victims in the street. The evidence overwhelmingly points to premeditation. The evidence as a whole, viewed in the light most favorable to Douglas, could not reasonably support a juiy verdict on the lesser included offense of intentional second-degree murder. See Simkins, 269 Kan. at 90.
Douglas also argues that the district court should have given the voluntary manslaughter instruction under his theory of a sudden quarrel. Voluntary manslaughter is the intentional killing of a human being committed in the heat of passion or upon a sudden quarrel. K.S.A. 21-3403(a). However, his theory of defense never included being involved in a “quarrel” with the victims. The only evidence presented regarding a quarrel involved the victims and L. A. Hayes, 270 Kan. at 542 (noting that the “quarrel” was between the victim and another person, not the defendant). Thus, the evidence could not reasonably support a jury verdict on the lesser included offense of voluntary manslaughter.
Prosecutorial Misconduct
Douglas next contends that the prosecutor committed misconduct during closing arguments, warranting reversal. We disagree.
Douglas did not object to most of the prosecutor’s closing comments. The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we must decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, we must decide whether the remarks constitute plain error, that is, whether they are so gross and flagrant as to prejudice the juiy against the accused and deny him or her a fair trial. State v. Parker, 273 Kan. 56, Syl. ¶ 6, 41 P.3d 789 (2002).
First, Douglas takes issue with the prosecutor s following comment:
“Mr. Douglas was not aiding and abetting anyone. Mr. Douglas committed these murders by himself. And the evidence clearly establishes that.” (Emphasis added.)
Douglas made no objection. He argues on appeal that “[t]he prosecutor clearly wanted the jury to believe that the defendant had requested the aiding and abetting instruction, which he knew was incorrect.” As the State points out, the defense theory was that Douglas was in the Camry when Mejia and Martinez were shot, but that Douglas was not the shooter. The State reasons that the remarks were nothing more than a restatement of the State’s theory that Douglas acted alone in the murders. We agree.
Second, Douglas questions the following remarks to which he did not object:
“[If you believe every word that came out of Mr. Douglas’ mouth, then you’re pretty naive, because what he said doesn’t make any sense. . . . Mr. Douglas not only at best, he made up the name L.A., he came up with it, tried to pitch it to you folks, tried to do as best he could with you.
“. . . So, without me spending any more time on his story, which is quite frankly unbelievable, believe it if you want and find him guilty of felony murder during the course of a sale of marijuana because he set it up. If you believe him, he got the parties together, he participated in that if you believe him. It’s the State’s position that you should not believe anything he says.” (Emphasis added.)
Later, the prosecutor said, “One, [Douglas’] story is ridiculous and absurd and ludicrous.” Douglas’ counsel objected to that type of remark. The district judge sustained the objection, saying: “I’m ruling that you can categorize the defendant’s evidence without the use of those words. I will sustain the objection. The jury should disregard.” Then, without objection, the prosecutor said:
“Defendant’s story is unbelievable. It is absolutely, totally and completely unbelievable. Now, once we move past that, and so I don’t offend anybody I will move past that.”
Towards the end of closing arguments, the prosecutor said:
“[I]t is up to you to decide the weight and credit to give any particular witness or any piece of testimony, so you can judge what Mr. Douglas has decided to tell you and judge it for what it is worth. And I will call it what it is. It’s unbelievable. It is unbelievable. That’s what doesn’t make any sense.
“. . . I submit to you that you shouldn’t believe a word out of his mouth. And the reason you shouldn’t believe a word out of his mouth, and believe me folks, if you think that this is die first defendant that got up and said, I didn’t do —.” (Emphasis added.)
Douglas’ counsel objected on the basis that the prosecutor was talking about other cases that were not in evidence. The prosecutor then said, “Let me rephrase it so there is not a problem. Just because somebody says they didn’t do it, doesn’t mean they didn’t do it. That again is common sense. That is every day experiences with children or whatever else you have.” Defense counsel again objected, and the court overruled the objection.
Douglas relies solely on State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000), to support his contention that the prosecutor’s remarks prejudiced him and denied him a fair trial. In Pabst, we said: “When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely widi the juiy.” 268 Kan. at 507. There were numerous continued and pointed references to Pabst as a liar. We found prejudicial error. See 268 Kan. at 511.
Douglas suggests that the prosecutor’s comments on the believability of his testimony were akin to the prosecutor’s conduct in Pabst. He also contends that the prosecutor improperly interjected his own opinion when he said, “It’s the State’s position that you should not believe anything [Douglas] says.”
Here, it appears the prosecutor was attempting to show that Douglas’ version of the events was not practicable under the evidence presented at trial. At the end of closing arguments, the pros ecutor said, “And, again, I would argue to you that this is not me telling you this. It’s the evidence telling you this.” The prosecutor’s characterization of Douglas’ version of the facts as “unbelievable” did not rise to the level of the conduct in Pabst.
Further, when the prosecutor said Douglas’ “story is ridiculous and absurd and ludicrous,” the district court instructed the jury to disregard the statement. While such a comment appears improper, it did not deprive Douglas of a fair trial. We have said: “ ‘ “Improper remarks made by the prosecuting attorney in [the] summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable.” ’ ” State v. Zamora, 247 Kan. 684, 689-90, 803 P.2d 568 (1990) (quoting State v. Perales, 220 Kan. 777, 780, 556 P.2d 172 [1976]). Compare State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461 (1997) (ill will was found when prosecutor disregarded prior sustained objection and continued to refer to defendant and counsel as liars).
Finally, Douglas argues that the prosecutor impermissibly vouched for a State’s witness in the following statement, to which there was no objection:
“And you can judge by seeing Detective Otis and the type of work he does whether he told somebody or not, and I submit to you that Detective Otis didn’t lie to anybody. And absent that, doesn’t really matter, because the blood convicts Romane Douglas.” (Emphasis added.)
The prosecutor’s statement that “Detective Otis didn’t lie to anybody,” when placed in context, is unclear in its meaning. Near the end of closing arguments the prosecutor said, “In fact [the detective] can lie to a defendant, a suspect, and it is perfectly acceptable. . . . Detective Otis could lie to all of us in an interview, but he didn’t [about blood found on Douglas’ personal items].” In context, it appears the prosecutor was focusing on the importance of the blood evidence.
Under the facts here, the prosecutor’s comments neither prejudiced the jury against Douglas nor denied him a fair trial.
Prior Crimes Evidence
Douglas contends that the district court erred by allowing the State to introduce prior crimes evidence in violation of a pretrial motion in limine. We disagree.
While it is true that an order in limine excludes evidence that, if admitted, would tend to prejudice the jury, it is not true that a violation of the order always results in prejudice that cannot be cured. We employ a two-part test to evaluate alleged violations of a motion in limine: (1) Was there a violation of the order in limine and (2) if the order in limine is violated, did the testimony substantially prejudice the defendant? The burden is on the defendant to show substantial prejudice. State v. Galloway, 268 Kan. 682, 692-93, 1 P.3d 844 (2000).
Before the first trial, Douglas filed a motion in limine to prevent the introduction of prior convictions or bad acts. At the hearing on the motion, the district judge said:
“[T]he defendant’s criminal history is generally inadmissible, subject to a 60-455 motion, which we have none in this case. Really the only other basis would be if the defendant would take the stand and somehow open the door. So in general, the defendant’s prior criminal conduct, whatever it is, his prior criminal history is inadmissible in this case.” (Emphasis added.)
During opening statements, defense counsel told the jury that Douglas had met a drug dealer known to him as “L.A.” and that Douglas would call L.A. to get marijuana. Defense counsel also told the jury, “Douglas did some things in the past that he probably should not have done .... [W]hen he got the marijuana, at times would sell it to other individuals.” Clearly, Douglas first introduced prior crimes evidence to the jury. During direct examination, Douglas testified that he had met L.A. in a liquor store and that L.A. had asked if Douglas knew anyone trying to get some “weed.” Douglas told L.A. that he smoked weed and that if L.A. would give him his phone number, Douglas could get in touch with him when he needed some. When defense counsel asked Douglas if he had occasions to get marijuana from L.A., Douglas said, “Yes.” Douglas testified that over the course of 2 or 3 months, he got marijuana from L.A. two to four times. Douglas also testified that Martinez approached him at the party at Knights Inn and was looking for weed. According to Douglas, he told Martinez that he knew a source that could get him as much as a pound or more.
On appeal, Douglas complains that the State elicited prior crimes evidence during his cross-examination. On cross-examination, the prosecutor noted that L.A., and later the victims, asked Douglas “about getting marijuana.” Then the prosecutor inquired, “How many times has this happened to you before?”
Douglas’ counsel objected. A discussion followed out of the presence of the jury. Douglas’ counsel clarified that his objection was based on the previously filed motion in hmine. The prosecutor argued that it was Douglas who had testified about people approaching him for marijuana and that some latitude was warranted on cross-examination. The district court overruled the objection. It noted that Douglas had testified that L.A., who Douglas had never met before, approached Douglas and asked him if he wanted to buy marijuana and that Douglas had also testified that Mejia and Martinez, who Douglas had never met before, approached him and asked about marijuana. The district court found that “other people approaching” Douglas was “not even a bad act on the part of the defendant.” The district court also found that in light of Douglas’ defense, the question was not prejudicial. We agree.
Back in the presence of the jury, the prosecutor continued Douglas’ cross-examination without objection. Later in the cross-examination, the prosecutor asked if Douglas had ever brokered a drug deal before, like he had for Mejia and Martinez. Douglas replied that he had years ago. When asked if that was done with L.A., Douglas said, “No” and that he had not known L.A. then. Again, the defense made no objection.
The prosecutor’s inquiry on brokering “other deals” presents a close question on whether a violation of the motion in limine occurred. However, Douglas fails to show how he was prejudiced, given his direct testimony regarding his involvement in drug-related activity. His own version of events put him in the middle of a drug deal. In addition, we note that there was no contemporaneous objection to the question relating to other drug transactions. See State v. Johnson, 266 Kan. 322, 334, 970 P.2d 990 (1998).
Sufficiency of the Evidence
Douglas argues that there was insufficient evidence to support his convictions for first-degree premeditated murder. Again, we disagree. Our standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found Douglas guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
The record shows that Douglas scheduled a drug transaction with the victims. He met them in McAdams Park on the night of the murders. He got into the backseat of the victims’ car. At some point the car was driven to a secluded area where Mejia and Martinez were shot. The victims were later found in the street. Evidence suggested that the shooter fired additional shots at the victims. Blood was found on the backseat on the driver’s side of the victims’ car. Spent cartridges and gravel were found on the floorboard behind the passenger’s seat. The parking area at McAdams Park contained granular-looking soil. Forensic evidence showed that a shoe the size and style of Douglas’ left shoe could have made a footprint found in the parking area. The record shows that when police searched their database for anyone with the nickname “L.A.,” they found one person, and that person was incarcerated at the time of Mejia’s and Martinez’ murders.
A review of all the evidence, viewed in the light most favorable to the State, convinces us that a rational factfinder could have found Douglas guilty of premeditated first-degree murder beyond a reasonable doubt.
The Sentence
Douglas argues that the Kansas hard 50 sentencing scheme, K.S.A. 2001 Supp. 21-4638, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the United States Constitution, and tire Kansas Constitution Bill of Rights. This contention is controlled by State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
In Conley, we held that the Kansas hard 40 sentencing statute violates neither the Sixth Amendment right to jury trial, the Fourteenth Amendment Due Process Clause of the United States Con stitution, nor § 5 of the Kansas Constitution Bill of Rights. 270 Kan. 18, Syl. ¶ 3.
Aggravating and Mitigating Factors
Finally, Douglas objects to the district court’s finding that the aggravating factors were not outweighed by mitigating factors. During sentencing, the district court considered both aggravating and mitigating factors. We will not disturb the district court’s findings absent an abuse of discretion. See State v. Spain, 269 Kan. 54, 60, 4 P.3d 621 (2000). The district court found two K.S.A. 2001 Supp. 21-4636 aggravating factors: (1) Douglas knowingly or purposely killed more than one person, and (2) he committed the crime for the purpose of receiving money or other thing of monetary value.
Douglas presented four K.S.A. 21-4637 mitigating factors: (1) no significant history of prior criminal activity; (2) he was an accomplice to a crime committed by another person, and his participation was minor; (3) he acted under duress; and (4) he was young.
The district court found:
“As to mitigating factors, after reviewing all the evidence and the entire record that we have in this case, the Court is unable to find the existence of any mitigating circumstances; and even if the Court accepted all the mitigating circumstances offered by the defendant as valid, the Court would still find the aggravating circumstances are not outweighed by the mitigating circumstances.”
In reviewing the hearing transcript, it appears that the district court considered the mitigating factors presented and found that even if all the mitigating factors that Douglas presented were valid, the aggravating factors were not outweighed by them. We find no abuse of discretion.
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The opinion of the court was delivered by
Lockett, J.:
Defendant petitions for review from the Court of Appeals’ affirmance of his convictions of rape, aggravated indecent liberties with a child, and two counts of aggravated criminal sodomy and his sentence of 316 months’ imprisonment. Defendant claims (1) the trial court erred in finding that he failed to establish a compelling reason to require the victim to submit to an independent psychological examination; (2) the Court of Appeals erred in finding that a district court has no authority to order an independent physical examination of a victim in a criminal case; and (3) the trial court erred in admitting expert testimony.
The facts as set forth in the Court of Appeals’ opinion provide sufficient background in this case. Further facts are incorporated in the opinion as necessary.
“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 Ruller, but the interviews were not recorded. A.D. told Detective Ruller 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 [in a complaint attested to by the prosecuting attorney] 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 sohcitation 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.” State v. McIntosh, 30 Kan. App. 2d 504, 505-06, 43 P.3d 837 (2002).
The Court of Appeals affirmed McIntosh’s convictions. McIntosh filed a timely petition for review. We granted review solely upon the three issues briefed to this court. See K.S.A. 20-3018(c); Supreme Court Rule 8.03(a)(5)(c) (2001 Kan. Ct. R. Annot. 56).
DISCUSSION
Prior to trial, McIntosh filed a motion requesting both a physical and psychological examination of the victim, A.D. The trial judge denied the motion.
Psychological Examination
A trial court’s denial of a defendant’s motion to compel the victim, who is not a party in the State’s criminal action but is often referred to as the complaining witness or complainant, in a sex abuse case to undergo a psychological examination is reviewed for abuse of discretion. See State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979); State v. Bourassa, 28 Kan. App. 2d 161, 164, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000). The party who asserts the court abused its discretion bears the burden of showing such abuse. State v. Thompkins, 271 Kan. 324, 334-35,21 P.3d 997 (2001). “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, it cannot be said that the trial court abused its discretion.” State v. Doyle, 272 Kan. 1157, 1168, 38 P.3d 650 (2002).
In Gregg, this court was faced, as a matter of first impression, with whether the trial court abused its discretion in denying the defendant’s motion for the victim in a criminal case involving a sex crime to submit to a psychiatric examination. The victim in Gregg was an 8-year-old girl who was the sole witness to corroborate the charges against the defendant. The Gregg court first looked to other jurisdictions for guidance and noted that other jurisdictions fell into one of the following three categories: (1) The court has no inherent power to compel a psychiatric examination; (2) the defendant has an absolute right to an order compelling a psychiatric examination; and (3) the trial judge has the discretion to order a psychiatric examination of a complaining witness where compelling reason is shown. The court noted that the minority view was that the court had no inherent power to compel a psychiatric examination, while the majority of jurisdictions recognized that tire trial judge has discretion to order a psychiatric examination when a compelling reason exists. 226 Kan. at 485-87.
The Gregg court adopted the majority view, stating:
“We, too, adopt the ‘middle ground’ and hold a trial judge has the discretion to order a psychiatric examination of tire complaining witness in a sex crime case if the defendant presents a compelling reason for such examination. Even if a trial court finds a compelling reason for ordering the psychiatric examination, the further safeguard as to its admissibility remains.” 226 Kan. at 489.
The Gregg court, in finding that the trial court did not abuse its discretion in denying the defendant’s motion for psychiatric examination of the victim, relied upon the fact that the defendant in that case failed to put forth evidence as to (1) the victim’s mental instability; (2) the victim’s lack of veracity; (3) the victim’s having asserted similar charges against other men that were later proven to be false; or (4) other reasons why the victim should be required to submit to such an examination. 226 Kan. at 490.
In reaching its decision, the Gregg court quoted in length from Ballard v. Superior Court, 64 Cal. 2d 159, 49 Cal. Rptr. 302, 410 P.2d 838 (1966) (statutorily overruled by Cal. Penal Code § 1112 [West 1985]):
“ “We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness’ mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.’ 64 Cal. 2d at 17[6]-177, [].” Gregg, 226 Kan. at 489.
See State v. Rucker, 267 Kan. 816, 822, 987 P.2d 1080 (1999) (recognized trial judge has discretion to order psychological examination of victim in sex crime case if defendant presents compelling reason); State v. Lavery, 19 Kan. App. 2d 673, Syl. ¶ 1, 877 P.2d 443, rev. denied 253 Kan. 862 (1993); see Annot., 45 A.L.R. 4th, 310.
Unlike the California Legislature, the Kansas Legislature has not statutorily overruled the 22-year-old decision in Gregg. Thus, it can be said that the legislature approves of the court ordering such examinations. Cf. In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000) (when legislature fails to modify statute to avoid standing judicial construction of statute, legislature is presumed to agree with court’s interpretation).
The trial court in this case found:
“Here, the defense hasn’t put on any evidence or any reason whatsoever that would get to a level of compelling. The defense is more than free at trial to attack the findings of Horizons [John Theis], and they are more than free to attack Dr. Glover’s examination. But the fact that this defendant simply wants to have those findings verified is not a compelling reason to have a little eleven-year-old girl subjected to a psychological exam and particularly to a physical exam.”
Regarding this issue, the Court of Appeals stated:
“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 of 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, Me Intosh 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 of 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 Iris motion for an independent psychological evaluation of A.D.” McIntosh, 30 Kan. App. 2d at 507-08.
Before this court, McIntosh asserts the Court of Appeals erred because he did in fact state compelling reasons for an independent psychological examination, including mental instability and lack of veracity of the victim. McIntosh specifically cites to A.D.’s bed-wetting, diagnosis of attention-deficit disorder for which she never took her medication, behavioral problems at school, and resentment for the fact her biological father was not around, that were present prior to McIntosh’s moving into the home, as showing A.D.’s mental instability. In support of his claim that A.D. lacked veracity, McIntosh points out: (1) A.D. did not report her allegations until 2 months after McIntosh moved out of the home; (2) A.D. demonstrated friendly feelings toward McIntosh before and after the alleged abuse; (3) A.D. gave implausible, inconsistent, and continually inflated accounts of what allegedly happened between herself and McIntosh; and (4) the medical evidence was inconsistent with A.D.’s complaints of anal sodomy. Additionally, McIntosh claims that because A.D. was subjected to multiple psychological examinations, independent examination was necessary to determine (1) the validity of the State’s examining experts’ conclusions and (2) whether A.D.’s recollections had been altered by the multiple previous interviews.
Kansas courts have addressed similar assertions in other cases involving child victims of sexual abuse. See Rucker, 267 Kan. 822-23, (no abuse of discretion in denying defendant’s motion for independent psychological examination where defendant contended victim had been under psychological care related to alleged acts, nature of victim’s testimony was critical to defense, victim had psy chological motivations for malting the charge, and evidence would be relevant to issue of credibility of victim); Gregg, 226 Kan. at 490 (no abuse of discretion where no compelling reason for independent psychiatric examination was shown or alluded to; motion was “clearly fishing expedition embarked upon in the hope something damaging and admissible in the trial would be unearthed”); Lavery, 19 Kan. App. 2d 673 (no abuse of discretion in denying defendant’s motion for independent psychiatric examination where defendant contended and put forth evidence that victim was inappropriately exposed to sex and was using knowledge to falsely accuse, was unsupervised most of the summer, used foul language, was possibly molested by another man, and had told false story about killers in the school basement to neighborhood girls; trial judge had also noted there was episode of victim “ playing doctor’ ” with neighborhood children); State v. Blackmore, 15 Kan. App. 2d 539, 542, 811 P.2d 54, ajfd in part and rend in part 249 Kan. 668, 822 P.2d 49 (1991) (no abuse of discretion in denial of defendant’s motion for independent psychiatric examination where victim had been taken to health center for treatment of behavioral problems and had problematic behavior that consisted of hyperactivity, sleeplessness, bowel movements in his pants, and gagging himself at night until he vomited); cf. Bourassa, 28 Kan. App. 2d at 167 (abuse of discretion in denying defendant’s motion for independent psychological examination where defendant proffered evidence of victim’s mental instability, which involved recent charge that her father had sexually molested her, that she had mutilated two kittens the previous summer, and that she had tendency to soil herself; victim was taking Prozac and undergoing mental health counseling for behavioral disorders at time of motion; and victim’s sister contradicted victim’s testimony as to abuse).
The October 1999 psychological examination of A.D. performed by John Theis, a licensed clinical social worker, was videotaped and provided to the defense. McIntosh was able to cross-examine Theis and other State’s witnesses who interviewed A.D. In addition, McIntosh had the opportunity to put forth his own experts to testify as to whether Theis’ conclusions were accurate. We note that McIntosh did call Robert Barnett, a licensed clinical psychologist, as a witness to demonstrate to the jury that children are easily influenced during the interview process; that the most important interview is die first interview, which in this case was not recorded; that repeat interviews can affect the accuracy of the information conveyed; and that it is well understood that there are no behaviors or groups of behaviors that are exhibited by sexually abused children that are not also exhibited by children who are not abused.
The testimony of the individuals who interviewed and counseled A.D. did not reflect that there was an attempt to influence A.D.’s account of the events. In general, A.D.’s accounts of the abuse were consistent throughout all interviews and at trial. After reviewing the record, we affirm the Court of Appeals’ finding that the trial court did not abuse its discretion in finding that McIntosh did not establish a compelling reason for A.D. to submit to an independent psychological examination.
Physical Examination
In his motion requesting a physical examination of the victim, McIntosh relied for support upon Gregg, 226 Kan. 481, and K.S.A. 2001 Supp. 22-3212. At the hearing on the motion, defense counsel argued that the physical examination conducted by Dr. Reagan Glover was not “of a definite character to say that [A.D.] was sexually abused.” Defense counsel noted that there was no photographic record of the injuries sustained to A.D. Defense counsel asserted that under such circumstances McIntosh’s due process right to challenge the State’s physical examination evidence of the victim required an independent examination. The State noted that the defense failed to state the relevance of a physical examination conducted more than a year after the cessation of abuse. As stated previously, the trial court, relying upon Gregg, found that McIntosh also failed to meet his burden of establishing a compelling reason for an independent physical examination.
After his conviction, McIntosh asserted in his motion for judgment of acquittal or new trial that the trial court’s denial of his motion for physical examination denied him the opportunity to confirm or refute the findings of Dr. Glover. The motion was denied by the trial judge.
Before the Court of Appeals, McIntosh claimed the trial court’s denial of an independent examination of the victim infringed upon his due process rights under the United States and Kansas Constitutions. For support, McIntosh relied upon the Kansas Code of Civil Procedure, specifically K.S.A. 2001 Supp. 60-235, and Turner v. Com., 767 S.W.2d 557 (Ky. 1988). Furthermore, McIntosh asserted the standard for ordering the examination was “good cause” rather than “compelling reason.”
The State argued that K.S.A. 2001 Supp. 60-235 applied only to civil matters. The State maintained that the issue was not a constitutional question as McIntosh claimed, but an evidentiary ruling that is reviewed for abuse of discretion. The State asserted that following the reasoning set forth in Gregg regarding psychiatric examinations, McIntosh failed to set forth a compelling reason for an independent physical examination.
The Court of Appeals agreed with the State and held that K.S.A. 2001 Supp. 60-235 does not apply in criminal cases. McIntosh, 30 Kan. App. 2d at 507. The Court of Appeals also determined that tire decision of the trial court was subject to review for abuse of discretion because it involved an evidentiary ruling and not a violation of a constitutional right. The Court of Appeals did not, however, address the trial court’s denial of McIntosh’s motion for independent physical examination based upon the rationale for a psychiatric examination under Gregg. Instead, the Court of Appeals examined the statutes and determined that the district court did not have the authority to order an independent physical examination under K.S.A. 2001 Supp. 22-3212, which governs discovery in a criminal action and provides:
“(a) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph the following, if relevant: .... (2) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney ....
“(b) Upon request the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution.”
In reaching its conclusion, the Court of Appeals relied upon State v. Dressel, 241 Kan. 426, 738 P.2d 830 (1987). McIntosh, 30 Kan. App. 2d at 507. We note that the lack of jurisdiction was not argued to the district court, nor was the Dressel case cited by either party on appeal.
In Dressel, 241 Kan. 426, this court was faced with whether a trial court had the authority under K.S.A. 22-3212 to compel discovery from the complaining witness in a criminal case. The Dressel court concluded it did not. In Dressel, attempted felony theft and felony theft was alleged by Cargill, Inc. (Cargill). The defendants sought discovery of certain items from Cargill and sanctions for destruction of evidence. The district court noted that Cargill was not a party to the criminal case and, therefore, was outside its jurisdiction. The court denied tire defendants’ discovery motions and refused to impose sanctions. The court concluded that the defendants had the ability to obtain relevant records of a nonparty by use of subpoena.
On appeal, the Court of Appeals held that because Cargill had hired an attorney to assist in the prosecution pursuant to K.S.A. 19-717 and this attorney had knowledge and control of the items requested by the defendant, the items were subject to discovery under K.S.A. 22-3212. On petition for review, this court reversed the Court of Appeals and affirmed the trial court, noting that because Cargill was not a party to the criminal prosecution, the trial court did not have the authority to compel discovery from Cargill under K.S.A. 22-3212. 241 Kan. at 432. The court concluded that an attorney employed under K.S.A. 19-717 to assist the prosecutor is bound by K.S.A. 22-3212 to turn over items subject to K.S.A. 22-3212 that are within that attorney’s possession, custody, or control. 241 Kan. at 434.
In rendering its decision, the Dressel court stated:
“Failure to impose the discovery mandates of K.S.A. 22-3212 on a complaining witness does not foreclose discovery; it merely forecloses one method of discovery. Criminal defendants have the right to subpoena witnesses and to compel the production of documents. This right is statutorily provided by K.S.A. 22-3214 and was explicitly recognized by this court in State v. Humphrey, 217 Kan. 352, 361, 537 P.2d 155 (1975).” 241 Kan. at 432.
When determining that the district court did not have jurisdiction to subject the victim to a physical examination in this case, the Court of Appeals noted that K.S.A. 2001 Supp. 22-3212 fails to provide that an independent physical examination may be ordered but specifically provides for numerous others items that are subject to discovery. Therefore, pursuant to the maxim “expressio unius est exclusio alterius, which means The inclusion of one thing implies the exclusion of another,’ ” the Court of Appeals held K.S.A. 2001 Supp. 22-3212 precluded the district court from ordering an independent physical examination of the victim. McIntosh, 30 Kan. App. 2d at 510.
This reasoning assumes that K.S.A. 2001 Supp. 22-3212 sets forth every possible item subject to discovery in a criminal case. The Court of Appeals failed to note that this court specifically recognized the contrary in State v. Davis, 266 Kan. 638, Syl. ¶ 1, 972 P.2d 1099 (1999). The Davis court was faced with determining whether the district court had the authority to order the county attorney to mail documents to the defense that were clearly subject to discovery and under the control of the State. K.S.A. 2001 Supp. 22-3212 provides that the prosecutor must permit the defense to “inspect and copy, or photograph” the documents, but does not specifically provide that the county attorney must mail the documents. The Davis court held that the district court had the discretionary authority to order the county attorney to mail the documents.
In reaching its decision, the Davis court observed:
“K.S.A. 22-3212 is based on Fed. R. Crim. Proc. 16. See State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 (1972). The Federal Advisory Committee, in its notes on Rule 16, states:
‘[Rule 16] is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge’s discretion to order broader discovery in appropriate cases. For example, subdivision (a)(3) is not intended to deny a judge’s discretion to order disclosure of grand jury minutes where circumstances make it appropriate to do so.’ Federal Advisory Committee’s Notes on 1974 Amendment on Rule 16.
“Federal courts interpreting Rule. 16 have held that it is within tire sound discretion of the district judge to make any discovery order that is not barred by higher authority. See United States v. Campagnuolo, 592 F.2d 852, 857 n.2 (5th Cir. 1979); United States v. Sawyer, 831 F. Supp. 755, 757 (D. Neb. 1993).” Davis, 266 Kan. at 642-43.
See also United States v. Richter, 488 F.2d 170, 173 (1973) (“The Federal Rules of Criminal Procedure are intended to constitute a comprehensive procedural code for criminal cases in the federal courts. But even the rules themselves do not purport to set outer limits of the power of the court.”).
The text of K.S.A. 2001 Supp. 22-3212 is not all-inclusive. The fact submission to physical examinations is not specificallyprovided for under the statute does not mean the district court does not have the authority to order' the examination in a particular case. Therefore, the Court of Appeals erred in relying upon K.S.A. 2001 Supp. 22-3212 to divest the district court of tire authority to order a physical examination.
McIntosh’s best argument is that the Court of Appeals’ decision is inconsistent with this court’s decision in Gregg. Although the decision and reasoning of Gregg involved a psychiatric examination, Gregg is the logical point at which to begin in determining whether a district court in tins state has the authority to order a victim in a sex crime case to submit to a physical examination upon a defendant’s request. The reasoning of other jurisdictions that have addressed the issue of the more intrusive physical examination is also relevant.
In State v. Barone, 852 S.W.2d 216 (Tenn. 1993), the highest court in Tennessee was faced for the first time with this exact issue. Barone was convicted of two counts of aggravated rape and one count of aggravated sexual batteiy involving his minor daughter. On appeal, Barone contended the trial court erred in denying his motion to have the victim submit to a physical examination. The victim had been examined previously, just shortly after the abuse was reported.
In rendering its decision that the trial court had tire authority to order a victim to submit to a physical examination, the Barone court stated:
“We begin our analysis by observing that, as a matter of background, ‘the common law does not authorize a court to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law.’ State v. Smith, 260 So. 2d 489, 491 (Fla. 1972). Nor does there exist in Tennessee a statutory right to a compelled physical examination of a witness by a criminal defendant, either in the Tennessee Rules of Criminal Procedure or otherwise. It is also true that there are several state courts that, in the absence of such a statutory right, have held there is no constitutional or other basis for defense-demanded physical examinations of alleged sex-offense victims. See State v. Smith, 260 So.2d 489, 489-90 (Fla. 1972); State v. Holmes, 374 N.W.2d 457, 459 (Minn. App. 1985); State, ex rel. Wade v. Stephens, 724 S.W.2d 141, 143 (Tex. Crim. App. 1987).
“There are no reported cases in Tennessee addressing this issue. However, there are a number of Tennessee cases dealing with a defendant’s right to request a psychological examination of sex-abuse complainants. The analysis to be followed by a trial court in ruling on that type of request is set out in Forbes v. State, 559 S.W.2d 318, 321 (Tenn. 1977), where this Court followed the general rule when it stated:
‘We hold that in any case involving a sex violation, the trial judge has the inherent power to compel a psychiatric or psychological examination of the victim, where such examination is necessary to insure a just and orderly disposition of the cause. Such power should be invoked only for the most compelling of reasons, all of which must be documented in the record. This discretion should be exercised sparingly.’
“A number of state courts have determined that as in the case of psychological examinations, a trial court may exercise its discretion to order an involuntaryphysical examination of sex-abuse complainants when the defendant demonstrates a compelling reason for the examination. People v. Chard, 808 P.2d 351 (Colo. 1991); State v. DRH, 127 N.J. 249, 604 A.2d 89 (1992); State v. Ramos, 553 A.2d 1059 (R.I. 1989); State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903 (1992). The decision of a trial court judge to grant or deny a motion for an independent physical examination should not be reversed on appeal absent a manifest abuse of discretion. Lanton v. State, 456 So. 2d 873, 874 (Ala. Crim. App. 1984); 75 C.J.S. Criminal Law § 80 (1952).
“State courts have adopted a number of approaches to determining whether an accused sex-offender is entitled to a compulsory physical examination of a complainant. First is the material assistance inquiry, which requires a physical examination when it could lead to evidence of material assistance to the defendant. See Turner v. Commonwealth, 767 S.W.2d 557 (Ky. 1988). Second is the compelling need inquiry, which balances the defendant’s interest in the evidence against the burden the examination imposes upon the complainant. Some states include a factor-based balancing approach. See People v. Glover, 49 Ill. 2d 78, 273 N.E.2d 367 (1971); State v. Ramos, 553 A.2d 1059 (R.I. 1989); State v. Garrett, 384 N.W.2d 617 (Minn. App. 1986). Third is the exculpatory approach, which allows a defendant a physical examination only when the evidence likely to be obtained could absolutely bar his conviction. See People v. Nokes, 183 Cal. App. 3d 468, 228 Cal. Rptr. 119 (1986); State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989). Fourth is the medically deficient standard, which permits an examination only if the prosecutor’s examination failed to conform to proper medical procedures. See State v. Drab, 546 So.2d 54 (Fla. Dist. Ct. App. 1989), rev. denied, 553 So.2d 1164 (Fla. 1989). See also Note, A Fourth Amendment Approach to Compulsory Physical Examinations of Sex Offense Victims, 57 U. Chi. L. Rev. 873 (1990).
“Initially, we are satisfied that the Forbes rule of compelling need should be extended to physical examinations of sex-abuse complainants. We think the practice of granting such physical examinations should be engaged in with great care and only upon a showing of compelling need by the defendant. Other courts have observed, and we agree, that the highly intrusive nature of a physical exam raises the same concerns about emotional trauma, embarrassment, and intimidation to the child victim that are present with psychological examinations. People v. Chard, 808 P.2d 351, 355 (Colo. 1991). In addition, we think those concerns should be balanced against the likelihood of the examination producing substantial material evidence that will be beneficial to the defendant’s case. Id. We recognize that there is a delicate balance to be struck, and that the critical inquiry is whether the evidence sought by the defendant is of such importance to his defense that it outweighs die potential for harm caused by the invasion of the complainant’s privacy, including the prospect that undergoing a physical examination might be used for harassment of a prosecuting witness. See Turner v. Commonwealth, 767 S.W.2d 557, 559 (Ky. 1988).” 852 S.W.2d at 221-22.
We note that the result in Barone is not unique; other jurisdictions have also reached similar conclusions. See State v. Chard, 808 P.2d 351, 357 (Colo. 1991); People v. Visgar, 120 Ill. App. 3d 584, 587, 457 N.E.2d 1343 (1983); State v. D.R.H., 127 N.J. 249, 259-60, 604 A.2d 89 (1992); State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989);. However, there are other jurisdictions that refuse to recognize that a defendant could ever have the right to obtain an order for a victim to submit to a physical examination. See State v. Joyce, 97 N.C. App. 464, 467, 389 S.E.2d 136 (1990); State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144-45 (Tex. App. 1987); Clark v. Commonwealth, 262 Va. 517, 521, 551 S.E.2d 642 (2001).
Following the reasoning stated in Gregg and case law from other jurisdictions, we determine that where there is a compelling reason, the district court has the discretion to order a victim in a sex crime case to submit to an independent physical examination. We note that it is important for district courts to recognize that the victim in a criminal case is not a party to the action. •
This court must now determine whether the district court abused its discretion in denying McIntosh’s motion for independent physical examination. The factors from Gregg that establish a compelling reason for an independent psychological examination do not apply to the more intrusive physical examination. In addition, there is a notable distinction between psychological examiners and physical examiners. A psychological examiner is an expert witness specifically retained by the prosecution for the purpose of examining the victim. A physical examination, however, is usually conducted by a medical doctor and hospital staff. The standard of review over a trial court’s decision to grant or deny a motion for discovery is abuse of discretion. See Davis, 266 Kan. at 643-44; Gregg, 226 Kan. at 489; Bourassa, 28 Kan. App. 2d at 168.
The Rhode Island Supreme Court set forth factors that a trial court should consider in determining whether to grant a defendant’s motion for independent physical examination:
“(1) the complainant’s age, (2) the remoteness in time of the alleged criminal incident to the proposed examination, (3) the degree of intrusiveness and humiliation associated with the procedure, (4) the potentially debilitating physical effects of such examination, and (5) any other relevant considerations.” Ramos, 553 A.2d at 1062.
See also State v, Delaney, 187 W. Va. 212, 217, 417 S.E.2d 903 (1992) (in addition to factors set forth in Ramos, also consider emotional effects of examination on victim, probative value of examination to issue before court, and evidence already available for defendant’s use).
McIntosh argued the following reasons before the trial court as support for an independent physical examination being warranted: (1) Examination of Dr. Reagan Glover did not show sexual abuse was definite; (2) there was no photographic evidence of injuries sustained by A.D.; (3) independent examination was the best way to challenge the prosecution’s evidence; (4) denial of the examination was a violation of due process; (5) defendant was denied the opportunity to challenge the evaluation of Dr. Glover; (6) Dr. Glover found no physical evidence to corroborate A.D.’s claim of repeated anal sodomy; (7) A.D. delayed reporting the abuse until 2 months after McIntosh left the home; and (8) A.D.’s mother’s animosity toward McIntosh was the source of A.D.’s allegations.
Before the Court of Appeals, McIntosh took issue with the fact Dr. Glover was made aware of the purpose of the examination prior to conducting it and was guided through the examination by A.D.’s providing a histoiy of the events. McIntosh cited for the first time to a study that concluded that a diagnosis is often affected and changed when a histoiy of the examinee is given. Additionally, McIntosh cited studies and articles that he contended were are at odds with the testimony and conclusions of Dr. Glover. At trial, McIntosh did not present or attempt to present evidence to refute Dr. Glover’s conclusions.
The Court of Appeals noted in its decision that denying McIntosh an independent physical examination was not unfair because the objective results of the State’s examination of A.D. were available through discovery, McIntosh could have cross-examined Dr. Glover on the results of the examination, and McIntosh had presented experts who had reviewed Dr. Glover’s findings to refute those findings. McIntosh, 30 Kan. App. 2d at 510-11.
A.D. was 11 years old at the time of trial. The abuse was claimed to have begun within a couple of months of McIntosh moving into the home in December 1995. A.D. was 7 years old at the time. The abuse was alleged to continue until a couple of weeks before McIntosh moved out of the home in July 1999, when A.D. was 10 years old. The physical examination was performed on September 28, 1999. The complaint was filed against McIntosh in November of 1999, yet McIntosh failed to request an independent physical examination until September of2000. Thus, a year passed between the first examination which occurred only 2 months after the cessation of the alleged abuse and McIntosh’s request for a subsequent examination. McIntosh did not put forth an explanation for the delay, nor did he put forth any support to refute the natural assumption that signs of the physical abuse would be different, if not less evident, a year later.
Requiring an 11-year-old victim to submit to a physical examination would undoubtedly be humiliating and traumatizing. Me Intosh attempts to downplay the humiliation and trauma that A.D. would experience by noting that A.D. has already been examined by Dr. Glover. This assertion is not convincing. Since the cessation of abuse, A.D. has undoubtedly begun to heal both physically and mentally. An additional physical examination could only serve as a setback to the healing process and should only be granted upon a showing of compelling reason. In a situation such as this, where there has already been a physical examination performed, the argument that a second physical examination is necessaiy must be especially compelling. Factors that a court must consider in determining whether to grant a defendant’s motion for independent physical examination are (1) the victim’s age; (2) the remoteness in time of the alleged criminal incident to the proposed examination; (3) the degree of intrusiveness and humiliation associated with the procedure; (4) the potentially debilitating physical and emotional effects of such examination; (5) the probative value of the examination to the issue before the court; (6) the evidence already available for the defendant’s use; and (7) any other relevant considerations. The findings and testimony of the medical doctor who performed the prior physical examination for the State can, in most instances, be sufficiently challenged on cross-examination and through defense expert witness testimony.
McIntosh had the burden of proving the trial court abused its discretion. See Thompkins, 271 Kan. at 334-35. McIntosh did not meet this burden. Thus, the trial court did not abuse its discretion in finding that McIntosh failed to put forth a compelling reason for A.D. to submit to an independent physical examination.
Admission of Expert Witness Testimony
McIntosh contends the trial court erred in admitting over objection the testimony of John Theis, a licensed clinical social worker, that A.D. exhibited behavioral patterns consistent with a child who had been sexually abused.
Qualification of a witness as an expert and admission of expert witness testimony is within the broad discretion of the trial court. See State v. Heath, 264 Kan. 557, 573, 957 P.2d 449 (1998); State v. Rice, 261 Kan. 567, 589, 932 P.2d 981 (1997).
“Two requirements must be present before expert testimony is admissible at trial. First, the testimony must be helpful to the jury. Second, before expert scientific opinion may be received into evidence at trial, the basis of that opinion must be shown to be generally acceptable within the expert’s particular scientific field.” State v. Hodges, 239 Kan. 63, Syl. ¶ 1, 716 P.2d 563 (1986).
Expert conclusions or opinions are inadmissible where the normal experiences and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances. State v. Colwell, 246 Kan. 382, 389, 790 P.2d 430 (1990). The trial judge allowed Theis to testify over McIntosh’s objection. In denying McIntosh’s motion for judgment of acquittal or new trial on this ground, the trial judge relied upon State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989).
In Reser, this court addressed whether there was an adequate foundation to qualify a State’s witness as an expert on symptoms consistent with child sexual abuse. The State’s witness was a licensed clinical specialist with 12 years of experience in the area of mental health, had a master’s degree in social work, and had worldwide recognition in the field of child sexual abuse. The witness testified that sexually abused children have common patterns of behavior resulting from the trauma, including failing to report the abuse immediately. The witness testified that it was her opinion that the victim exhibited behavior consistent with a child who had been sexually abused. The Reser court looked to other jurisdictions in which expert testimony regarding characteristics of sexually abused children had been held proper to provide helpful information to the jury and concluded that the expert was “imminently qualified” as an expert to testify as to common patterns of behavior resulting from child sexual abuse and that this victim had symptoms consistent with those patterns. 244 Kan. at 315.
Before the Court of Appeals, McIntosh contended that there was no foundation for Theis’ testimony that A.D. fit the profile of a sexually abused child. McIntosh acknowledged that die Reser court had specifically approved this type of testimony but contended that in the 10 years since Reser, research demonstrates that such testimony is no longer generally accepted.
The Court of Appeals held:
“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 the 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, 689 P.2d 901.
“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), quahfied 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 quahfied expert.
“As a result, we follow our Supreme Court precedent in Reser and hold that quahfied 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 quahfied 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 quahfied expert on child sexual abuse. Accordingly, we find that Theis was quahfied 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 die profile of a sexually abused child.” McIntosh, 30 Kan. App. 2d at 520-21.
As the trial court and Court of Appeals correctly recognized, Reser controls. Many of the cases from other jurisdictions relied upon by the Reser court remain good law today. See Rodriquez v. State, 741 P.2d 1200 (Alaska App. 1987); State v. Radjenovich, 138 Ariz. 270, 674 P.2d 333 (Ariz. App. 1983); Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986); State v. LeBrun, 37 Or. App. 411, 587 P.2d 1044 (1978), rev. denied 286 Or. 149 (1979). We note, however, State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993) (child abuse expert testimony may not be offered to prove child has been sexually abused; such evidence may only be used to explain behavioral characteristics commonly found in child abuse victims to preempt or rebut inferences the child was lying; recognized there was no difference between expert testifying die child was abused and testifying that child exhibited behaviors consistent with sexually abused children), and State v. Michaels, 264 N.J. Super. 579, 599, 625 A.2d 489 (1993) (held child abuse expert evidence is admissible only for rehabilitation purposes, e.g., explaining traits often found in children who have been abused when trait may seem inconsistent with abuse).
McIntosh urges diis court to reconsider the holding in Reser. For support, McIntosh cites numerous articles and cases from other jurisdictions which have concluded diat such evidence should be inadmissible. McIntosh argues the identification of common characteristics associated with sexual abuse is unreliable and that some jurisdictions admit such evidence only to rehabilitate the victim.
On direct examination, Theis detailed the format he undeiwent in evaluating A.D. and the information obtained from the interview. Theis also testified on direct that there are common patterns of abuse among sexually abused children. Upon objection from the defense, the prosecutor contended Theis was qualified to testify to such because of his extensive training in dealing with sexually abused children and his performance of numerous sexual abuse examinations of children. The trial judge found Theis qualified to testify as to whether there are established patterns.
Theis stated that the common patterns of abuse include: nightmares, extreme guilt, social withdrawal, acting-out behavior, fire-setting, avoidance of school, aggressive behavior, inappropriate sexual acting-out, as well as other symptoms not specifically set forth. Theis then testified, over defense objection, that in interviewing A.D. he had observed behaviors that were “consistent with” a child who had been sexually abused. The behavior that Theis was referring to consisted of A.D.’s extreme nervousness when talking about the abuse, tearful and emotional breakdown, sleep disturbance, fear for her safety, distressing thoughts about the abuse, distrust of others, hypervigilance (anticipatory anxiety — worry about negative events happening again), feelings of guilt, and delayed disclosure.
It must be noted that Theis testified on cross-examination that the behaviors he had identified as being consistent with children who have been sexually abused are also capable of being seen in children who have not been abused. Additionally, McIntosh put forth Robert Barnett, a licensed clinical psychologist, to testify that it is well understood that there is no single behavior or group of behaviors that are exhibited solely in sexually abused children.
In cases involving sexual abuse, the evidence is often centered entirely upon the credibility of the victim and the alleged abuser. Theis’ testimony provided circumstantial support in favor of A.D.’s credibility by demonstrating that her behavior was not inconsistent with someone who had been sexually abused. Theis did not testify that in his opinion A.D. was abused. McIntosh, through testimony elicited on cross-examination and later in his case in chief, made the jury aware that the presence of such behaviors in a child victim does not prove sexual abuse. Although jurisdictions differ as to the allowance of such testimony, McIntosh does not state a significant reason for this court to exclude such evidence in Kansas.
The Court of Appeals did not err in finding that the trial court did not abuse its discretion in qualifying Theis as an expert for the purpose of testifying as to common behaviors among sexually abused children and allowing Theis to testify that A.D. exhibited behavior consistent with a sexually abused child.
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The opinion of the court was delivered by
Lockett, J.:
A workers compensation insurer, which had been notified that a civil action had been filed by its insured against a tortfeasor, appeals the district court’s denial of its motion to intervene in the civil action 5 months after the district court approved a settlement agreement between the insured and the tortfeasor. Three issues are raised: (1) Was the insurer’s notice of appeal timely filed, and (2) did the district court err in denying (a) the insurer’s motion to intervene and (b) the insurer’s motion to vacate judgment?
On April 9, 1999, Richard Smith sustained injuries as the result of being struck by a pick-up truck driven by Zachary Russell. At the time of the accident, Smith, 83 years old, was employed and working as a school crossing guard for the City of Norton, Kansas. In addition to his employment with the city, Smith also supervised the weight room at the high school in the evenings and did seasonal yard work for additional income.
Smith filed a workers compensation claim and received benefits from EMC Insurance Companies (EMC), the City of Norton’s workers compensation insurance provider, for injuries he sustained in the accident. On December 13, 1999, Smith filed a petition in Norton County District Court against Russell and Russell’s father Chuck (the Russells) for the damages he sustained as result of the accident. The petition alleged damages in excess of $75,000. Smith’s petition specifically referenced medical expenses of $5,000, loss of nearly half the use of his left arm, economic loss from his inability to work in his former vocations as crossing guard and weight room supervisor, and economic loss from other income-generating activities. EMC and the City of Norton were notified in writing of the filing of the action by Smith against the Russells on December 29, 1999. A copy of the petition accompanied the notice. EMC chose not to intervene.
On August 3, 2000, the parties to the civil action appeared in court for a hearing and requested that the district judge approve their settlement agreement. The following exhibits were admitted into evidence at the hearing: the accident report; the transcript of the deposition of one of Smith’s treating physicians; diagrams illustrating the injury to Smith’s left upper extremity and right knee; the medical evaluation performed by the defendants’ expert; a projection of wage figures from Smith’s employment in the weight room and from lawn mowing jobs; and jury verdict computer research showing a case value of at least $300,000. The medical evaluations admitted into evidence opined that Smith had lost 44 to 45 percent of the use of his left upper extremity, that Smith will have to permanently avoid the use of his left hand for movement above shoulder level and all lifting in that area, and that until his total right knee joint is revised, Smith will be unable to walk without support and for only short distances. Smith’s lost wages for supervising the weight room and seasonal yard work were listed as $43,748 ($5,948 for past employment and $37,800 for future employment [weight room-$42 per week; lawn care-$100 per week]).
Smith’s wife, Mildred Smith, testified at the hearing that prior to the accident Smith had been in good health. Mildred testified that she expected Smith to live “into his 90s,” stating that Smith’s father lived to be 96 years old and his mother lived to be 94 years old. Mildred testified that as a result of the accident, Smith is no longer able to drive or make repairs on the car, work on tire lawn or garden, remove snow, or make repairs or help around tire house. Mildred testified that as a result of the accident, “the strength of [their] companionship is gone,” citing to the fact that they used to travel and visit family. Mildred testified the amounts used in calculating Smith’s past and future lost income from his employment in the weight room and from lawn care jobs was correct.
The parties had agreed to settle in exchange for the policy limits of $100,000, allocating $75,000 for loss of consortium and $25,000 for wages lost from Smith’s employment in the weight room and from self-employment. In Mildred’s opinion, this allocation was reasonable. The parties informed the district judge that EMC was given notice of the filing of the petition and had not filed a workers compensation subrogation lien or notice of a lien.
By written journal entry, the Honorable Judge Charles E. Worden approved the settlement on August 3, 2000. Judge Worden found that based upon the family history and Smith’s general health at the time of the injury, Smith’s life expectancy was 93 years of age. The journal entry specifically allocated $75,000 to the loss of consortium claim and $25,000 to Smith’s lost wages from his employment in the weight room and self-employment. The journal entry also stated:
“9. The payments made herein do not duplicate benefits received in the past or to be received in the future from State Farm Insurance, Mr. Smith’s workers compensation case with EMC or the City of Norton, or any other source, past or future. The damages recovered are not duplicative of workers compensation payments and are not subject to the lien provisions of K.S.A. 44-504. Specifically, consortium payments are excluded by statute (K.S.A. 44-504 [b]) and wage replacements from other work is excluded by Wishon v. Cossman, 268 Kan. 99 (1999) because they do not duplicate benefits received from workers compensation.”
On January 5, 2001, EMC filed a motion to intervene and set aside the August 3, 2000 judgment. EMC alleged:
“II. Motion to Set Aside the Journal Entry.
“The employer believes that the Journal Entry was obtained through misrepresentation and misconduct. See K.S.A. 60-260(b)(3). Neither the plaintiff nor the defendant gave notice to the employer that the hearing was to be held on August 3, 2000, regarding the lien and settlement. A brief hearing was held before the court and the transcript of proceedings is attached hereto. There was no evidence given to the District Court that would support the plaintiff s contention that he had loss of services to his spouse in the amount of $75,000.00. There was no credible evidence to support the claimant’s contention that he had $25,000.00 worth of lost income after August of 2000.
“The courts will not permit the right of employers to be defrauded as in this case. Wishon v. Cossman, 268 Kan. 99, squarely addresses this issue. In that case the employer contended that plaintiffs will craft settlements to simply avoid the workings of K.S.A. 44-504(b), which mandates a lien. The Wishon court stated that K.S.A. 44-504(b) mandates notice, authorizes intervention, and provides for the District Court to supervise setdements so that the lien statute cannot be abused, as it was in this case. Wishon v. Cossman, 268 Kan. at 105.
“HI. Conclusion.
“The statute and the appellate court decisions allow for an intervention by the employer at this time. The employer was not put on notice of the August 3, 2000, hearing and the Journal Entry wherein the parties crafted a settlement that guts K.S.A. 44-504(b). Further, the District Court did not perform its function in properly supervising the settlement. There was no evidence to support the contentions made at the hearing.”
The Honorable Judge William B. Elliot was assigned to hear the motion. Following oral arguments, Judge Elliot denied the motion on March 8, 2001. EMC subsequently filed a timely motion for rehearing and reconsideration on March 16, 2001. On March 21, 2001, Smith filed a motion for K.S.A. 2001 Supp. 60-211(c) sanctions.
By memorandum decision filed April 20, 2001, EMC’s motion for rehearing and reconsideration was denied. In his memorandum decision, Judge Elliott noted that he was not rendering a decision on Smith’s motion for sanctions and that the issue would later be set for oral argument. EMC filed a notice of appeal on April 26, 2001.
By order dated July 20, 2001, the Court of Appeals dismissed the appeal on the grounds that the district court case was not final for purposes of appeal because sanctions are considered a part of tire entire case. Smith subsequently withdrew his motion for sanctions in the district court on October 30,2001. EMC filed a second notice of appeal on November 9, 2001. This court has jurisdiction by transfer on its own motion pursuant to K.S.A. 20-3018(b).
Timeliness of Notice of Appeal
An appellate court has the duty to question jurisdiction on its own initiative. If the record shows a lack of jurisdiction for the appeal, the appeal must be dismissed. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). Smith contends that EMC’s notice of appeal was not timely. Although Smith did not file a formal cross-appeal, we must address the issue because it is jurisdictional.
Smith contends a motion for attorney fees does not affect the finality of judgment, citing Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990), and Moriz Implement Co. v. Matthews, 265 Kan. 179, 189, 959 P.2d 886 (1998), as controlling. Smith asserts there is no difference between attorney fee issues granted under K.S.A. 40-256 (Snodgrass), pursuant to contract (Moritz), or under K.S.A. 2001 Supp. 60-211 (this case).
The Court of Appeals’ original order dismissed the case for lack of finality on the grounds that sanctions are considered a part of the entire case, relying upon Skahan v. Powell, 8 Kan. App. 2d 204, 205-206, 653 P.2d 1192 (1982), and Reed v. Hess, 239 Kan. 46, Syl. ¶ 3, 716 P.2d 555 (1986). After dismissal of the motion for sanctions, EMC filed a second notice of appeal. The Court of Appeals issued a show cause order pointing out that outstanding motions for attorney fees and costs do not affect finality of judgment, relying upon Snodgrass, 246 Kan. 371, Syl. ¶ 1. After reviewing EMC’s response to the show cause order, the Court of Appeals retained jurisdiction of the appeal.
In Reed, this court was faced with determining the status of pretrial sanctions for discovery violations. The Reed court held that monetary sanctions imposed under K.S.A. 60-237 in the form of civil penalties against defendants are interlocutory because they can be reviewed and corrected when final judgment is entered. 239 Kan. 46, Syl. ¶ 3; see Skahan, 8 Kan. App. 2d at 206 (order imposing monetary sanctions during pretrial discovery as provided in K.S.A. 60-237 is interlocutory).
In Snodgrass, this court was faced with whether a K.S.A. 40-256 motion for attorney fees was part of the merits of the underlying action. The Snodgrass court held that it was not, noting that attorney fees are regarded by the legislature as costs awarded to the prevailing party and not as compensation for the plaintiff s injury. 246 Kan. at 374; see Moritz Implement, 265 Kan. 189-90 (applied same reasoning as Snodgrass to provide that where judgment granting foreclosure did not specifically set forth attorney fees, parties are not later precluded from litigating the matter).
Smith’s motion for sanctions requested that attorney fees for the time spent responding to the motion to intervene and to subsequent motions be imposed as a sanction. Thus, our issue involves a K.S.A. 2001 Supp. 60-211 motion for sanctions, not a motion for attorney fees as Smith contends.
K.S.A. 2001 Supp. 60-211 sanctions can potentially be assessed at any point during a case and are necessarily tied to the facts of the case. A motion for K.S.A. 2001 Supp. 60-211 sanctions are to be decided prior to the case being final for puqposes of appeal. Therefore, EMC’s second notice of appeal was timely.
Denial of Motion to Intervene
EMC contends the district court erred in denying its motion to intervene pursuant to K.S.A. 44-504(a). Smith and the Russells argue that the district court did not err in denying EMC’s motion to intervene.
K.S.A. 44-504 provides:
“(a) When the injury or death for which compensation is payable under the workers compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured worker or the worker’s dependents or personal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.
“(b) In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, setdement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against the entire amount of such recovery, excluding any recovery, or portion thereof, determined by a court to be loss of consortium or loss of services to a spouse. The employer shall receive notice of the action, have a right to intervene and may participate in the action. The district court shall determine the extent of participation of the intervenor, including the apportionment of costs and fees. . . .
“(f) As used in this section, ‘compensation and medical aid’ includes all payments of medical compensation, disability compensation, death compensation, including payments under K.S.A. 44-570 and amendments thereto, and any other payments made or provided pursuant to the workers compensation act.” (Emphasis added.)
Pursuant to K.S.A. 44-504(b), EMC had a statutory right to intervene in this case. The statutory right to intervene, however, is not absolute.
“(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
“(c) Motion to intervene and practice in intervention. (1) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in K.S.A. 60-205. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene. . . .” (Emphasis added.) K.S.A. 60-224.
It is well established under Kansas law that K.S.A. 60-224(a) is to be liberally construed to favor intervention. Roberts v. Krupka, 246 Kan. 433, 443, 790 P.2d 422 (1990); McDaniel v. Jones, 235 Kan. 93, Syl. ¶ 5, 679 P.2d 682 (1984); Hukle v. City of Kansas City, 212 Kan. 627, 632, 512 P.2d 457 (1973); Farmers Group, Inc. v. Lee, 29 Kan. App. 2d 382, 386, 28 P.3d 413 (2001).
Intervention under K.S.A. 60-224(a) is a matter of judicial discretion. Mohr v. State Bank of Stanley, 244 Kan. 555, 561, 770 P.2d 466 (1989); McDaniel, 235 Kan. at 107; Farmers Group, 29 Kan. App. 2d at 385.
EMC’s motion to intervene and set aside judgment cited K.S.A. 44-504(b) as the basis for intervention. EMC’s memorandum in support of the motion asserted its motion to intervene was timely and that EMC was seeking to set aside the judgment because the journal entry approving settlement was obtained through misrepresentation and misconduct, citing K.S.A. 60-260(b)(3). Thus, EMC met the requirements of K.S.A. 60-224(c).
Because the right to intervene is statutory in this case and notice was provided, timeliness of the motion is the only other statutory requirement necessary for intervention to be granted. Thus, this court must consider whether the district court erred in denying EMC’s motion to intervene on the basis the motion to intervene was not timely filed as required by K.S.A. 60-224(a).
EMC asserts that the motion to intervene was timely and cited to Roberts, 246 Kan. 433, for support. In Roberts, the workers compensation insurer filed a motion to intervene in a medical malpractice action brought by the employee nearly 38 months after the action was filed. In Roberts, most of the defendant healthcare providers were dismissed from the case before or around approximately the same time as the insurer filed its motion to intervene. The Roberts court disagreed with the district court’s conclusion that tire motion was untimely, noting:
“There was no evidence the delay in filing prejudiced the plaintiff in any way. The situation herein is not one where late intervention would result in additional discovery or delay of trial. The intervenors’ only interest was in any recovery made and did not concern the issues between plaintiff and defendants. Had the intervenors come in at the beginning of the litigation, their role would have been one of passive attendance at discovery proceedings, hearings, etc. Their counsel would have just been one more individual to notice up as to proceedings. There is no indication in the record plaintiff or his counsel was unaware of the intervenors’ claims or that the delay in formal intervention affected, in any way, the handling of plaintiffs case. In fact, the evidence in this regard is to the contrary. Practically speaking, the intervenors had no reason to seek formal intervention until such time as recovery by plaintiff was approaching realization. They filed their motion on August 19, 1988. The trial was scheduled to commence September 20, 1988.
“Under the circumstances herein, we conclude the district court’s determination that the motion to intervene was not timely filed was arbitrary.” 246 Kan. at 443-44.
Roberts is distinguishable. EMC moved to intervene on January 5, 2001. Here, final judgment had been entered prior to EMC filing its motion to intervene. In order for EMC to bring a K.S.A. 60-260(b) motion for relief from judgment, EMC has to be a parly to the action. EMC was not a party. Thus, EMC’s only chance at setting aside the judgment was for it to file a motion to intervene in a case in which a journal entry approving the settlement had been signed 5 months earlier.
EMC cites no case to this court in which intervention was allowed post-judgment. Smith, however, provides the court with a Kansas case in which intervention was allowed following entry of judgment. Smith asserts that post-judgment relief is permitted only in extraordinary circumstances.
In Moyer v. Roard of County Commissioners, 197 Kan. 23, 415 P.2d 261 (1966), the Board of County Commissioners had defended its decision to deny rezoning of residential property to the district court and lost. The Board then announced that it would not file a motion for new trial or appeal the matter. Adjoining landowners had not intervened in the action, but their attorneys were allowed to sit at the counsel table and assist the Board’s at tomey. After being notified that the Board was not challenging the district court’s decision and within 10 days of the judgment, the adjoining landowners filed a motion in the district court to intervene and a motion for new trial. The Moyer court noted that it was clear that all parties knew the interest the adjoining landowners were claiming in the case and that their interest was similar to and being represented by the Board. The Moyer court held that the requirement of timeliness under K.S.A. 60-224(a) has no application when the right of intervention is claimed under K.S.A. 60-224(a)(2) until such time as adequate representation ceases. 197 Kan. at 27.
Unlike in Moyer, EMC did not file its motion to intervene during the 10-day period in which the district court had jurisdiction to grant a new trial or alter or amend judgment. See K.S.A. 60-259. The settlement in this case was approved by order of the district court on August 3, 2000. EMC did not file its motion to intervene or set aside judgment until January 5, 2001. The order approving settlement stated that the district court specifically retained jurisdiction to resolve any disputes pertaining to the status of benefits received from State Farm as duplicative. Although not relevant to our issue, State Farm subsequendy waived its personal injury protection Hen on November 1, 2000. A party has 30 days in which to appeal a final decision of a district court. K.S.A. 60-2102; K.S.A. 2001 Supp. 60-2103. The time for EMC to appeal expired September 4, 2000. EMC’s motion to intervene was also filed well after the time for appealing the judgment had expired.
In Frey, Inc. v. City of Wichita, 11 Kan. App. 2d 116, 715 P.2d 417 (1986), the Court of Appeals found that the district court did not have jurisdiction to entertain a motion to intervene filed more than 30 days after the time for appeal had expired. In that case, a notice of appeal was filed by an unincorporated homeowners association. The association was attempting to appeal from a trial court’s decision granting a landowner’s request for a change in zoning classification. The trial court’s decision had been entered on August 31, 1984. The notice of appeal was timely filed, having been filed on the 30th day (October 1, 1984) of the 30-day period in which to perfect the appeal. The association subsequently filed a motion to intervene pursuant to K.S.A. 60-224(a)(2) on October 31, 1984.
The Frey court found the notice of appeal invalid for two reasons: (1) when the notice of appeal was filed, the association was not a party to the action; and (2) an unincorporated association cannot be a party to a lawsuit. Because the notice of appeal was found invalid and the time for perfecting an appeal had passed, the court further reasoned that the trial court did not have a case pending before it when the subsequent motion to intervene was filed; therefore, the trial court did not have jurisdiction to entertain the motion to intervene. The Frye court then held that it did not have jurisdiction and dismissed the appeal. 11 Kan. App. 2d at 120-21.
Judge Elliott stated specific reasons why EMC was not entitled to intervene. He noted that Smith provided notice to EMC that he had filed a civil action against the Russells, as required by K.S.A. 44-504(b). K.S.A. 44-504(b) does not require that EMC be notified of subsequent proceedings in the case.
Judge Elliott determined that Smith’s petition put EMC on notice that Smith was seeking damages for economic loss from his inability to work in the weight room and at other nonduplicative income generating activities. EMC argues the petition did not indicate that nonduplicative damages were being sought. There is no requirement, however, that a potential subrogation lienholder be informed of the nature of the damages sought in the civil action. The insurer may intervene in the action to protect its interest. See Wishon v. Cossman, 268 Kan. 99, 105, 991 P.2d 415 (1999) (if employer is apprehensive about strength of its lien, it may intervene to protect it).
The district court’s decision also referenced the failure of EMC to file a subrogation lien. See Wishon, 268 Kan. at 101 (notice of Hen filed). EMC correctly points out that there is no statutory requirement that it file a notice of lien to be subrogated to recovery from a third party and that such subrogation and creation of a lien occurs automatically under K.S.A. 44-504(b). However, the district court did not state that EMC had to file a notice of lien. Instead, it used the failure of EMC to file a notice of such lien as evidence that EMC had failed to attempt to protect its interest in the case.
Judge Elliott also cited to EMC’s correspondence with Smith prior to and subsequent to Smith’s filing this action as indicating that, in addition to complying with statutory provisions, Smith had followed EMC’s instructions. In reaching this conclusion, the district court quoted the following from a June 18, 1999, letter from EMC’s counsel to Smith’s counsel.
“ ‘Mr. Smith’s true complaint is that he supposedly is incapable of doing his lawn mowing business. This is not our problem. If he is upset he is not getting paid for those lost wages, he needs to file third party action against the negligent driver.’ (Emphasis added.)”
From another letter from EMC’s counsel to Smith’s counsel on July 18, 1999, the court quoted:
“ ‘[B]e advised that I am the person that you need to contact regarding EMC’s subrogation interest. I will be handling the claim and all correspondence should be sent to my office until further notice.’ ”
The trial court also quoted from a December 22,1999, letter in which EMC’s counsel inquired as follows from Smith’s counsel:
“ ‘As an aside, has there been a third party claim filed? If so, what is the venue and docket number of the case? Obviously I will need to file our hen.’ ”
Based on this evidence, the district court concluded that there was no misconduct or misrepresentation. The court found that EMC had made a “deliberate, calculated and informed decision not to intervene.” Additionally, the court noted that EMC had failed to demonstrate that Smith would not be substantially prejudiced by the intervention.
EMC’s motion to intervene was filed outside the 10-day period for filing a motion for new trial or to alter or amend judgment and months after the time had expired for perfecting an appeal. Following the reasoning in Frey, once the district court found that there was no misconduct or misrepresentation, the district court did not have jurisdiction. Thus, this court does not have jurisdiction to consider the appeal.
Appeal dismissed.
Nuss, J., not participating.
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator s office against Kimberley K. Kellogg, of Leawood, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against respondent alleges violations of KRPC 1.5 (2001 Kan. Ct. R. Annot. 345), fees; KRPC 1.15 (2001 Kan. Ct. R. Annot. 376), safekeeping property; KRPC 1.16 (2001 Kan. Ct. R. Annot. 387), terminating representation; and KRPC 8.4(c) (2001 Kan. Ct. R. Annot. 437), misconduct. Respondent filed an answer basically denying the allegations in the complaint.
The complaint filed against respondent grew out of her representation of Lyle McLane, III, and John Michael Curtis in 1999. McLane complained of respondent’s failure to account for fees, lack of communication, and failure to represent him. Curtis complained of respondent’s failure to communicate and to provide an itemized accounting of her services. The investigation of the complaints ultimately resulted in the filing of the formal complaint.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on July 11, 2001, in the hearing room of the office of Disciplinary Administrator, Topeka, Kansas. Respondent appeared in person and by counsel, John H. Fields. As to the McLane complaint, the panel found, by clear and convincing evidence:
“2. On September 16, 1999, Lyle McLane, III, was arrested and held at the Johnson County Adult Detention Center. Thereafter, Mr. McLane’s father, Lyle McLane, Jr., retained the Respondent to represent his son. At dre time he retained the Respondent, Lyle McLane, Jr. executed a written fee agreement. Pursuant to the fee agreement, Lyle McLane, Jr. agreed to pay the Respondent a $20,000 flat fee, to be earned at a rate of $250 per hour. The agreement required Lyle McLane, Jr. to pay $2,000 initially. The agreement further established that the parties would schedule the remaining payments by September 27, 1999.
“3. On September 17, 1999, Lyle McLane, Jr. paid to the Respondent $2,000. Although the Respondent had not yet earned the fees, the Respondent did not deposit the $2,000 into a trust account.
“4. A few days’ later, Lyle McLane, Jr. terminated the Respondent. Thereafter, on October 14, 1999, Scott Wasserman provided written notification to the Respondent that she had been terminated and that he had been retained to take over tire defense of Lyle McLane, III.
“5. On December 29, 1999, Lyle McLane, Jr. requested that the Respondent provide him with an accounting of the $2,000 and with a refund of unearned fees. The Respondent failed to respond to Lyle McLane, Jr.’s requests.
“6. At some point, the Respondent attempted to reconstruct the time she spent on the McLane matter.
“7. On April 18, 2000, Lyle McLane, Jr. filed a written complaint with the Disciplinary Administrator. In his letter, Lyle McLane, Jr. complained that he had never received an itemized accounting of the Respondent’s time or a refund of unearned fees, as he had requested from the Respondent.
“8. The Respondent responded to Lyle McLane, Jr.’s complaint, asserting that she earned the $2,000 that had been paid to her.”
As to the Curtis complaint, the panel found, by clear and convincing evidence:
“9. On April 11,1999, John Michael Curtis, a high school teacher, learned that he was going to be charged with two felony counts of sexual misconduct involving a student. Thereafter, on April 12, 1999, Mr. Curtis hired the Respondent to represent him in the [defense] of that matter.
“10. To memorialize their fee agreement, Mr. Curtis executed a contract for services. The contract provided the following term regarding attorney fees: ‘Reasonable attorneys’ fee for all services performed by said attorney on behalf of clients and by reason of clients’ retention of said attorneys, said fee is now estimated to be $15-25,000 for which a partial retainer of $3000.00 is herewith paid. + 5000.00 to be paid on Thursday, Bondsman to receive 4000 of die 8000 for die bond.’
“11. On April 12, 1999, Mr. Curtis paid the to Respondent $3,000. Then, on April 16,1999, Mr. Curtis provided the Respondent with two checks: check number 2107, in the amount of $12,000, made payable to the Respondent and check number 2108, in the amount of $5,000, made payable to Bud Keys Bonding Company. Finally, on May 11, 1999, Mr. Curtis provided the Respondent with two additional checks: check number 2124, in the amount of $10,000, made payable to the Respondent and check 2125, made payable to Scott Weichmann, in the amount of $1,000. In sum, Mr. Curtis paid to die Respondent $31,000. Of the $31,000, $5,000 was paid to the bondsman, and $1,000 was paid to an investigator. As a result, Mr. Curtis paid to the Respondent $25,000 in attorney fees.
“12. On the advice of counsel, on April 19, 1999, Mr. Curtis married his girlfriend, Patricia. The Respondent and her companion served as the witnesses at the courthouse ceremony.
"13. During the first three weeks after the Respondent was hired, Mr. and Mrs. Curtis were satisfied with the legal services that the Respondent provided.
“14. After the first diree weeks of the Respondent’s representation, the Respondent routinely failed to return telephone calls and canceled meetings with Mr. and Mrs. Curtis. After having a conversation with Scott Weichmann in June, 1999, Mr. and Mrs. Curtis began to be concerned about the Respondent’s representation of Mr. Curtis. At that time, Mr. and Mrs. Curtis first requested that the Respondent provide an itemized accounting of the services the Respondent had provided.
“15. In August, 1999, after being unable to maintain sufficient contact with the Respondent, Mrs. Curtis scheduled an appointment with the Respondent. At the time of the appointment, the Respondent was not present in the office. In her stead, Ms. Kelly met with Mrs. Curtis. Ms. Kelly brought Mr. Curtis’ file to a conference room and met with Mrs. Curtis. Ms. Kelly examined the file to determine the status of the Respondent’s representation. At that time, Ms. Kelly told Mrs. Curtis that there was nothing in the file other than the documents Mr. Curtis provided the Respondent in April. Ms. Kelly was unable to tell Mrs. Curtis what had been done with the case since April, 1999.
“16. From October 14, 1999, through October 16, 1999, the Respondent attended a National Association of Criminal Defense Attorneys seminar in Las Vegas, Nevada. The Respondent billed Mr. and Mrs. Curtis for ten hours in attorney fees for ‘conferencing’ with other attorneys while at the seminar.
“17. During the second week of November, 1999, Mr. and Mrs. Curtis attempted to meet with the Respondent. However, a number of meetings were scheduled and then canceled by the Respondent. Eventually, Mr. and Mrs. Curtis met with the Respondent on the morning of November 11, 1999. During that meeting, the working relationship between Mr. Curtis and the Respondent broke down. At that time, Mr. Curtis terminated the Respondent and requested that he be provided with an itemized account of the time the Respondent spent working in his behalf. Additionally, Mr. Curtis asked for a refund of the unearned fees.
“18. The Respondent informed Mr. and Mrs. Curtis that their bill was not ready and that they should return at 4:30 p.m. to pick it up. Pursuant to the directions by the Respondent, at 4:30 p.m., Mr. and Mrs. Curtis returned to the Respondent’s office. At that time, the door was locked and no one answered the door. Mr. and Mrs. Curtis waited for the Respondent. Eventually, approximately 30 minutes later, the Respondent returned to the office. Inside the office, the Respondent found a copy of Mr. Curtis’ file, along with an itemized account. The Respondent then provided Mr. Curtis with the copy of his file and the itemized bill. The bill indicated that Mr. Curtis should received a refund of $5,038. However, the Respondent did not provide Mr. Curtis with a refund.
“19. At the hearing on this matter, the Respondent admitted that she did not malee contemporaneous time records detailing the work she did on the Curtis case. . . .
“20. Ms. Needham prepared the Curtis bill by examining the file and the daily calendar sheets. After she completed the bill, Ms. Needham provided the bill to the Respondent. Without examining the accuracy of the bill, the Respondent looked at the back page to determine the total amount earned. At the hearing on this matter, Ms. Needham testified as follows, when questioned by the Disciplinary Administrator:
‘Q. Now, is this the original bill that you — that you put together for the Curtises?
‘A. The original bill?
‘Q. Yes?
‘A. No. This is not — the bill they were given is not the original bill.
‘Q. Does the original bill still exist?
‘A. I do not believe so, no.
‘Q. How did you prepare the original bill for the Curtises?
‘A. The original bill was based on the sheets — the daily calendars that each employee kept. I would go through and put in each employee’s time as to how much time they spent on a case and what they did for that case. So that’s how it was generated.
‘Q. And does this bill, Exhibit L, differ in some respect from the first bill that you put together?
‘A. Yes, sir.
‘Q. How does it differ, generally?
‘A. Generally?
‘Q. Yes.
‘A. The original bill was a total of somewhere between 8 and $10,000. This bill is $19,962.
‘Q. How did you arrive at that figure?
‘A. I added on.
‘Q. Now, the original bill, did you give that to the respondent for her review?
‘A. She asked me how much the total bill was and I told her. She said, “That’s not good enough, I only want to give them $5,000 back.”
‘Q. Did you have any reaction to that?
‘A. I asked her how I was supposed to do that.
‘Q. Any response?
‘A. She said, “Add time.” I said, “Where?” She said that she had gone to a conference out of the city, that I should include time for that. That there was a lot of research that she had done, I should add that. But that was I to prepare a bill that only gave them, $5,000 back.
‘Q. Now, was there anything in the original notes that would indicate these out of town conferences and how much was to be billed for them?
‘A. No.
‘Q. Let’s go to some specific items on Exhibit No. L. For instance, 4-12 (sic), there’s a notation seven hours at $150 per hour. Where did you get that amount?
A. I added four hours. It was originally three.
‘Q. Did you do any research in the Curtis matter — or any research that was billed to the Curtises?
‘A. Yes.
‘Q. Do you know how much?
‘A. I have no idea.
‘Q. Okay.
‘A. I was working on an article that Ms. Kellogg wanted to have published. It was on sexual predators and I used that time against the Curtises. I mean, I put it on their bill.
‘Q. Was that — did that come about because you were — that you came up with it or did Ms. Kellogg?
‘A. She suggested it.
‘Q. By she you mean?
‘A. Ms. Kellogg, I’m sorry, yes, sir.
‘Q. Okay. Now, 4-15-99, does that entry differ from your original entiy, if you know? Did you add any time to that one is what I’m asking?
‘A. I’m sure that I did. I had to add essentially $10,000 to their bill — over $10,000. I figured that out on my calculator last night. That’s 66 hours that I had to add at $150 an hour.
‘Q. Where did you get those hours?
‘A. I would have added on. Again, because it’s research, it’s preparing for the case, it seemed — when I had to add on it seemed the safest way to add on time because it wasn’t something that could be verified.
‘Q. Were you ever, as an employee, aware of how Ms. Kellogg would have conducted research when she did any?
‘A. Other than working on her article for the NACDL I don’t know of any research she did.’
Ms. Needham also testified that the Respondent asked her to ‘pad’ the bill on at least one other occasion.
“21. Regarding the same subject, Danielle Kelly responded to the Disciplinary Administrator’s questions as follows:
‘Q. ... Now, prior to the preparation of Exhibit L, was there any discussion in the office concerning the Curtis bill?
‘A. Prior to it being done?
‘Q. Yes.
‘A. Yes. Kitty had been working on it for a while, I think for a couple of days. She had completed it. She told me that she had completed it, and diat Kimberley came in—
‘Q. Did you see the original bill that Ms. Needham had?
‘A. Yes.
‘Q. Or Ms. Hicks had?
‘A. Yes, mm-hmm. The original bill was around eight, $8,000 or $9,000. Kimberley came in to look at it. She looked, glanced at it, gave it back to Kitty and told her to redo it, she didn’t want to refund more than $5,000. Kimberley left shortly after that, and Kitty came to me and said, “How am I supposed to bill for $15,000 more?’ ”
“22. Finally, the Respondent testified on direct examination by her counsel as follows:
‘Q. Okay. Did you ever tell Kitty Hicks to make up or inflate any charges that went on to that bill?
‘A. Never.
‘Q. What did — there was a first draft, wasn’t there?
‘A. There may have been a — there was at least one first draft, I would say.
‘Q. All right. Do you have any recollection as to the approximate amount of that first draft?
‘A. No, I don’t have any.
‘Q. Was it $8,000 or $10,000?
‘A. That’s what I’ve heard everyone testify about, but I don’t know.
‘Q. Okay. And you just don’t have any idea one way or the other?
‘A. I don’t.
‘Q. Okay. What did you tell her after the first draft?
‘A. That it wasn’t complete, and that I didn’t believe that I owed them more than $5,000.’
On this point, the Hearing Panel finds Ms. Needham and Ms. Kelly’s testimony to be credible and finds the Respondent’s testimony to be not credible.
“23. In January, 2000, while working on billing, the Respondent asked Ms. McRoberts to ‘add more to’ various bills. When Ms: McRoberts asked the Respondent what she meant by ‘add more to it,’ the Respondent eventually explained to Ms. Roberts that she wanted her to ‘make something up.’
“25. The Respondent billed in quarter hour increments whether or not the time was spent. In a memorandum from the Respondent to her office staff dated April 6,1999, the Respondent stated:
We need to make sure that we keep track of time and expenses so that we can accurately bill the clients. I have found the easiest way for me to do so is to note the time (and expenses) on my daily calendar. We bill in lA hours. Phone calls are always a minimum of a 14 hour. A typed letter is at least V2 hour, a hand-written letter is 14 hour. . . .’
“26. On November 12, 1999, Mr. Curtis filed a complaint with Missouri authorities regarding the Respondent’s bill.
“27. It was not until December 10, 1999, that Mr. and Mrs. Curtis received a check in the amount of $5,038 from the Respondent. On that date, Mr. Curtis telephoned the Respondent’s bank to determine whether the Respondent had sufficient funds in her account to cover the check. The Respondent did not have sufficient funds in the account to cover the check. Mr. Curtis then went to the Respondent’s bank; the bank again verified that the Respondent did not have sufficient fund[s]. At that time, the bank stamped the check ‘NSF.’
“28. Mr. Curtis contacted the Johnson County District Attorney’s office regarding the bad check. Mr. Curtis was provided with information on how to begin the collection process. Mr. Curtis sent the Respondent the appropriate notice regarding tire bad check. Then, on December 17,1999, the Respondent provided Mr. Curtis with a cashier’s check in tire amount of $5,038. Mr. Curtis deposited the cashier’s check into his account.
“Trust Account
“29. In May, 1999, the Respondent opened a trust account at Premier Bank, account number 1083368. The Respondent opened the trust account with Mr. Curtis’ final payment, in tire amount of $10,000. . . .
“30. On December 10,1999, when Mr. Curtis presented die Respondent’s checkin the amount of $5,038 to her bank, the Respondent had only $4,330.70 in the account. The balance in the Respondent’s trust account fell below $5,038 on August 8,1999.
“31. From die inception of this case, the Respondent has provided diree explanations as to why the trust account check written to Mr. Curtis, received December 10,1999, was not paid by the bank. Initially, the Respondent indicated diat she did not know why die check was not paid. Then, during the Missouri proceedings, die Respondent testified that, because of die bank charges, there were insufficient funds in the account to cover the check. Finally, the Respondent reasoned that there were insufficient funds in die account because the Respondent made a math error having to do with a debit in the amount of $2,000. Certainly, die Respondent wrote a check in the amount of $2,000 in August, 1999. However, the Respondent never explained what she meant by ‘math error.’
“32. On September 18, 2000, die Respondent appeared before the Fee Dispute Committee for the Kansas City Metropolitan Bar Association regarding the Curtis fee. During die course of the hearing, the Respondent agreed to refund an additional $10,000 to Mr. and Mrs. Curtis. However, following the hearing, the Respondent refused to provide such a refund, asserting that she was ‘strong-aimed’ into making the agreement.
“33. On December 12, 2000, the Respondent issued a new invoice, claiming that Mr. and Mrs. Curtis were only owed $3,969.25, radier than die $5,038.00 previously refunded.”
The panel made the following conclusions of law:
“1. The Kansas Rules of Professional Conduct require that a lawyer’s fee be reasonable. See KRPC 1.5(a).
“2. The question of whether attorney fees are reasonable also arises in contexts outside the disciplinary arena. Recently, in Davis v. Miller, the Kansas Supreme Court reviewed whether the award of attorney fees in a suit for fraud and breach of warranty, arising from a postnuptial agreement, was reasonable. In that case, the Court stated, ‘[fjees which are not supported by “meticulous, contemporaneous time records” that show the specific tasks being billed should not be allowed.’ 269 Kan. 732, 748, 7 P.3d 1223 (2000) (quoting Case v. Unified School Dist. No. 233, Johnson Co., 157 F.3d 1243, 1250 (10th Cir. 1998).
“3. In this case, even if the Hearing Panel were to accept the Respondent’s testimony, she estimated the time she spent working on the Curtis matter. She did not have any meticulous, contemporaneous time records that show the specific tasks being billed to the Curtises. The fee charged to the Curtises, $19,962, is unreasonable because the Respondent has no credible evidence to establish that she earned the fee. Accordingly, the Hearing Panel concludes that the Respondent charged Mr. and Mrs. Curtis an unreasonable fee.
“4. In addition to failing to have meticulous, contemporaneous time records, the Respondent also violated KRPC 1.5 by billing her client for time she did not expend. Ms. Needham testified that the Respondent billed a quarter hour for telephone calls, whether or not a quarter hour was spent on the telephone call. Additionally, Ms. Needham testified that she billed Mr. and Mrs. Curtis for time the Respondent spent at a continuing legal education conference in Las Vegas and time that Ms. Needham spent researching information for an article that the Respondent was attempting to have published regarding sexual predators. Billing in this fashion was addressed in In re Scimeca, 265 Kan. 742, 962 P.2d 1080 (1998).
‘[Bjilling for quarter hours is not a violation if that time is spent on a client’s business. The violation is in not spending the time billed to tire client on the client’s business. Here, respondent clearly billed for time not spent in representing the client.’
Id. at 760. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.5 by billing for time that she did not spend on the Curtis matter.
“5. The Respondent violated KRPC 1.15 in several respects. KRPC 1.15 provides, in pertinent part, as follows:
‘(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
‘(d) Preserving identity of funds and property of a client.
(1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the State of Kansas with a federal or state chartered or licensed financial institution and insured by an agency of the federal or state government ....
(2) The lawyer shall:
(iii) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accountings to the client regarding them.
(iv) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.’
“a. KRPC 1.15(a) and KRPC 1.15(d)(1) require lawyers to deposit retainers into an appropriate trust account. In regard to Mr. and Mrs. McLane, the Respondent violated KRPC 1.15(a) and KRPC 1.15(d)(1) when she failed to deposit their retainer into a trust account. Additionally, the Respondent violated KRPC 1.15(a) and KRPC 1.15(d)(1) when she failed to deposit $15,000 of the $25,000 paid by Mr. and Mrs. Curtis into a trust account.
“b. Lawyers must also appropriately safeguard client property, pursuant to KRPC 1.15(a). In this case, the Respondent provided Mr. and Mrs. Curtis with a refund check in the amount of $5,038, on December 10,1999. At that time, Mr. Curtis contacted the Respondent’s bank to determine whether the check would clear tire Respondent’s account. Mr. Curtis was informed that the check would not clear the bank. By failing to keep Mr. and Mrs. Curtis’ unearned fees in the trust account, the Respondent failed to appropriately safeguard her client’s property in violation of KRPC 1.15(a).
“c. The Respondent converted approximately $10,000 of Mr. and Mrs. Curtis’ money to her own use. In so doing, the Respondent failed to safeguard her client’s property in violation of KRPC 1.15(a).
“d. Lawyers must maintain records of trust account funds. In this case, the disciplinary investigator requested that the Respondent provide him with complete trust account records. The Respondent informed the investigator that she was uncertain whether she would be able to provide the requested trust account information. The trust account statement from October, 1999, was never pro vided. The Respondent failed to maintain complete trust account records as required by KRPC 1.15(a) and KRPC 1.15(d)(2)(iii).
“e. Ms. Curtis testified that she began requesting an accounting of the Respondent’s time in June, 1999. However, it was not until after the Respondent’s representation was terminated, on November 11,1999, that the Respondent provided such an accounting. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(b) by not providing the requested accounting during June-November 1999.
“3. According to KRPC 8.4(c), engaging ‘in conduct involving dishonesty, fraud, deceit or misrepresentation’ constitutes professional misconduct. In this case, the Respondent engaged ‘in conduct involving dishonesty, fraud, deceit or misrepresentation’ when she directed Ms. Needham to fraudulently ‘add time’ to the Curtis bill.”
The panel applied the ABA Standards for Imposing Lawyer Sanctions (1991) and considered ABA Standard 3.0 in making its recommendation as to the discipline to be imposed against the respondent.
The panel found the following aggravating factors:
“Prior Disciplinary Offenses. The Respondent has previously been disciplined. In 1997 and 1998, the Respondent was found in violation of four disciplinary offenses in Missouri. Additionally, on April 21, 2000, the Kansas Supreme Court placed the Respondent on probation for two years for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 5.3, KRPC 8.4, and Kan. Sup. Ct. R. 207. In re Kellogg, 269 Kan. 143, 152,157-58, 4 P.3d 594 (2000).
“Dishonest or Selfish Motive. The misconduct in this case was motivated by dishonesty, selfishness, and greed. The Respondent decided that she did not want to refund more than $5,000 to Mr. and Mrs. Curtis. In order to effect the Respondent’s intentional ‘decision,’ the Respondent directed her staff to ‘pad’ the Curtis bill. As a result, the Respondent’s staff added between $10,000 and $12,000 in fees to the Curtis bill. It was a dishonest act to direct tire preparation of a false bill and it was a selfish and greedy act to retain unearned fees.
“Pattern of Misconduct. The evidence in this case clearly supports a finding that the Respondent engaged in a pattern of misconduct. The testimony from Ms. McRoberts establishes that the Respondent continued to ‘pad’ her bills after the Curtis case. Additionally, there is evidence that a pattern of misconduct relating to billing started before tire Curtis case. Ms. Needham testified that prior to ‘adding to’ the Curtis bill, tire Respondent previously directed her to ‘pad’ another bill. In addition, there was a similar finding made in the Respondent’s first disciplinary case. See In re Kellogg, 269 Kan. at 155. With regard to its conclusion that the Respondent violated KRPC 1.5 in the earlier disciplinary case, the Court stated:
‘The evidence clearly showed a billing statement that was grossly inaccurate and excused by respondent as being prepared by a third party. This is not a valid excuse. Although the fee dispute was resolved by the bar-sponsored fee resolution procedure, respondent’s actions clearly show a violation of KRPC 1.5 ... . The billing sent was excessive and contained admitted errors.’
"Multiple Offenses. By violating KRPC 1.5, KRPC 1.15, and KRPC 8.4(c), the Respondent engaged in multiple offenses.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. The Plearing Panel concludes that the Respondent’s testimony at the hearing was less than forthright and, as shown by the Findings of Fact, not credible on some issues.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent admits that she should have had sufficient funds in the trust account to cover the check. However, the Respondent has refused to admit any other wrongdoing in this case. Respondent has belatedly admitted in Defense Exhibit 48 that her internal procedures for her practice were less than perfect.
“Vulnerability of Victim. Mr. and Mrs. Curtis were particularly vulnerable. Mr. Curtis was a high school teacher charged with having committed multiple counts of felony child sexual misconduct.
“Substantial Experience in the Practice of Law. The Respondent was admitted to die practice of law in the state of Kansas in 1988. At the time of the misconduct in this case, the Respondent had been practicing law for eleven years.
“Indifference to Malang Restitution. The Respondent refuses to acknowledge that she owes any restitution to Mr. and Mrs. Curtis.
“Illegal Conduct. In this case, the Respondent padded’ her bill and refused to refund unearned fees. This conduct is tantamount to the conversion of Mr. and Mrs. Curtis’ property.”
The panel found one mitigating circumstance: the letters submitted by the respondent from her friends and clients indicating the respondent enjoys a good reputation in her community.
In addition to the above factors, the hearing panel considered Standards 4.12, 5.11, 5.12, 7.2, and 8.2 of the ABA Standards for Imposing Lawyer Sanctions.
The panel then made the following recommendation:
“RECOMMENDATION
“Based upon the findings of fact, conclusions of law, and factors in aggravation, as well as the standards cited above, the Hearing Panel unanimously recommends that Respondent be indefinitely suspended from the practice of law in the state of Kansas.
“Further, the Hearing Panel recommends that, in the event the Respondent applies for reinstatement, pursuant to Kan. Sup. Ct. R. 219, she be required to show that she has made appropriate restitution to Mr. and Mrs. Curtis, that she has a complete understanding of KRPC 1.15, and that she has acquired the management skills necessary to operate a law office.”
Respondent filed no exceptions to the report of the hearing panel and failed to appear before this court at the time of scheduled oral argument. The Disciplinary Administrator s office recommends that the respondent be indefinitely suspended from the practice of law in Kansas. Based upon the record before us, we agree with and adopt the panel’s conclusions and recommendations.
It Is Therefore Ordered that Kimberley K. Kellogg be and she is hereby indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion.
It Is Further Ordered that Kimberley K. Kellogg shall comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276) and that if she seeks reinstatement, she shall comply with Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
“The Respondent did not execute the fee agreement.”
“Although the Respondent did not sign the ‘Attorney’s Contract,’ a term of the contract provided, ‘[A]cceptance by attorneys of this contract shall be evidenced by commencement of performance of services.’ ”
“At the hearing on this matter, the Respondent testified that Mr. and Mrs. Curtis did not request an itemized accounting of their retainer until they terminated her on November 11, 1999. However, based upon all of the evidence, including the testimony of Ms. Needham, Ms. Kelly, Mrs. Curtis, and the Respondent, the Hearing panel finds the Respondent’s testimony on this point lacks credibility.”
“Ms. Kelly, a trained paralegal went to work for the Respondent in April, 1999. During her employment with the Respondent, Ms. Kelly worked primarily on domestic relations cases. Ms. Kelly resigned her position with the Respondent on January 28, 2000.
“The Respondent hired Ms. Needham in August 1998, on a part-time basis. At that time, Ms. Needham’s last name was Hicks. Additionally, Ms. Needham is commonly known as Kitty. Thereafter, on June 25, 1999, Ms. Needham began working for the Respondent on a full-time basis. During her tenure with the Respondent, Ms. Needham did the billing and worked on some domestic relations cases. Although Ms. Needham had no formal training as a legal assistant or paralegal, the Respondent billed Ms. Needham’s time as such. Shortly after Ms. Needham was asked to ‘pad’ the Curtis bill, Ms. Needham resigned her position with the Respondent.”
“Ms. McRoberts went to work for the Respondent during the later part of November, 1999, after the Curtis bill had been constructed and provided to Mr. Curtis. Ms. McRoberts was hired to handle the billing for the Respondent. Ms. McRoberts last day of employment came at the end of January, 2000.”
“It is important to note that the funds in the trust account, during the time in question, did not all originate from Mr. Curtis. On August 16,1999, the Respondent deposited $5,000 of someone else’s money into the trust account. Then, sometime in October, 1999, at least one deposit was made. Finally, on December 16, 1999, die Respondent deposited $927.50 into die trust account so diat the cashier’s check to Mr. Curtis would clear.” | [
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The opinion of the court was delivered by
McFarland, C.J.:
Tanner L. Green appeals his jury trial first-degree murder conviction. The sole issue is defendant’s claim that the admission of certain photographs of the deceased was erroneous as they were gruesome and prejudicial to the defendant.
FACTS
By virtue of the nature of the single issue, the recitation of the facts will be limited to those relevant to that issue. On March 27, 2000, Janice Vrendenburg was found dead in her Wichita home. She had suffered blunt force trauma to her head from at least 11 impact blows. Evidence at the scene indicated the weapon was a Sony “boombox.” Additionally, the victim’s head had been nearly severed from her body by 11 movements of a sharp object across her neck.
At trial the State sought to introduce a substantial number of slides taken at autopsy to establish the cause of death and assist the medical examiner in her testimony. Outside of the presence of the jury, the trial court conducted a hearing as to which slides would be admitted. Ultimately, eight slides were held to be admissible. Defendant objected thereto. The slides are described as follows, along with tire use made of each in the medical examiner’s testimony:
Exhibit 53: Slide of left side of victim’s face once the blood was cleaned away. The medical examiner (ME) used this slide to demonstrate the blunt force trauma to the victim’s skull which caused fracture patterns extending to the brain; the extent of force necessary to cause the trauma, and that such injury was consistent with being assaulted with a “boombox.”
Exhibit 54: Close-rrp of the injury to the left side of victim’s head. The ME used this slide to establish that the injury took the form of the object used (pattern type injury) and that the victim was struck numerous times.
Exhibit 55: Another view of the injury to the left side of the head near the hairline. The ME used this slide to establish the injury as being a tear (tissue bridging) as opposed to a cut and to establish hemorrhaging in the soft tissue, indicating that the victim was alive when she sustained this injury.
Exhibit 56: Left forehead at the hairline showing the loose areas of laceration and exposing the depressed skull fracture of the left frontal bone.
Exhibit 57: Photo of gloved hand pulling back the skin to show there is some undercutting or loosening of the scalp from the skull by the blunt force injury. From the direction of the undercutting, i.e., front to back, the ME opined the injury was inflicted front to back, similar to an injury sustained in a car accident from a windshield.
Exhibit 58: Back side of the victim’s head depicting injuries to the mid-back of the head and the right side back of the head. The head was shaved to depict the lacerations and abrasions.
Exhibit 61: Incised wound of the neck viewed from the right side of the body. The ME used this slide to establish the wound’s depth and location, and the likelihood that it was caused by a sharp knife being moved approximately 11 times across the area.
Exhibit 62: Incised wound of the neck viewed from a different angle. The ME used this slide to show the wound extended from the right side of the neck to the left side and into the vertebrae.
During the medical examiner’s testimony, a juror became ill and a recess was ordered. The juror fainted and, in falling, struck his head on a table. Medical assistance was provided. The juror advised the court: (1) he had a problem with the sight of blood; and (2) the blow to his head had caused a severe headache. An alternate juror was substituted for the incapacitated juror. Defendant moved for a mistrial, which was denied.
STANDARD OF REVIEW
In State v. Bell, 273 Kan. 49, 41 P.3d 783 (2001), we recently stated the well-established rules relative to the admission of photographs in homicide cases as follows:
“The admission of photographs in a homicide case is a matter within the trial court’s discretion, and the trial court’s ruling will not be disturbed on appeal absent the showing of an abuse of that discretion. State v. Verge, 272 Kan. 501, 515, 34 P.3d 449, 458 (2001). An abuse of discretion has occurred when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice. The admission of photographs in a murder case has rarely been held to be an abuse of discretion. State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001).
“Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. State v. Groschang, 272 Kan. 652, 667, 36 P.3d 231 (2001). Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. Deal, 271 Kan. at 493. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible. Groschang 272 Kan. at 667.”
Before proceeding, it should be noted that defendant also complains as to the admission of a photograph marked as Exhibit 33 which he lumps together with the slides taken at the autopsy. Exhibit 33, a photo of the victim’s head, was taken at the crime scene. This photo was admitted prior to the medical examiner’s testimony, and no objection was made to its admission. Clearly, there is no abuse of discretion in the admission of Exhibit 33.
We turn to the slides described by defendant as “autopsy” photographs. It is true that they were taken at the time of the autopsy, but they are not autopsy photographs, as we frequently use that term to designate photographs of bodies after invasive procedures during autopsy have been performed. Here, the many injuries to the body depicted in the slides are the result of what the victim’s killer did to her. The nearest to an invasive procedure being depicted is Exhibit 57, but that demonstrates a loosening of the scalp from blunt force injury. Invasive photos are admissible, but are subject to somewhat stricter tests when they show the injuries to the body inflicted by the autopsy procedure itself.
Defendant attempts to bolster his argument as to the slides being improperly admitted by arguing that the fainting juror proves his point. We disagree. The incident was unfortunate but is not significant to the determination of the issue before us.
This was an incredibly violent and gruesome homicide. At least 11 massive blows to the head were inflicted and did horrific damage to the face and skull. Additionally, near decapitation resulted from multiple sawing motions from a sharp object. Gruesome crimes result in gruesome photographs. Here, the trial court reviewed the proposed photographic exhibits, heard the medical examiner explain how her intended use thereof would assist in her testimony as to injuries inflicted and cause of death, and approved eight of the photographic slides for admission. Defendant does not even come close to establishing that the admission of the complained-of photographic evidence constituted an abuse of judicial discretion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a lawsuit brought by William S. Mynatt, Mynatt Truck & Equipment, Inc. (Mynatt Truck), a Kansas corporation, against David W. Collis and Ann M. Hughes, husband and wife. Highly summarized, the lawsuit was to recover money used by the two individuals for their own personal use and for punitive damages in favor of Mynatt and Mynatt Truck.
William Mynatt formed Mynatt Truck & Equipment, Inc., in 1988. Mynatt was tire president of Mynatt Truck and owned all 1,000 shares of common stock issued. Sometime in 1988, David Collis began working for Mynatt Truck as a mechanic. Mynatt promoted Collis to vice president and general manager in 1990.
On September 30, 1993, Mynatt sold Collis 250 shares of his common stock. Collis executed a promissory note in the amount of $12,500 to Mynatt in consideration for the shares. The promissory note granted Mynatt a security interest in Collis’ shares to guarantee the note.
At some point, Mynatt and Collis also formed a company called B&D Leasing to finance sales and make lease arrangements with customers.
From the time of his appointment as vice president and general manager in 1990 until March 1996, Collis was responsible for the review and approval of bills and for determining which general ledger account the bills were to be charged to when paid. Collis was also primarily responsible for opening company mail. Mynatt generally managed corporate sales, leaving responsibility of most of the other operations of Mynatt Truck to Collis. Mynatt and Collis were the only persons authorized to issue corporate checks from 1990 until March 1996. The vast majority of checks issued were signed by Collis. Mynatt only occasionally signed checks.
From 1990 through 1996, Collis routinely brought his two credit card statements and Hughes’ credit card statement to work and had Mynatt Truck pay the full balance due, even though the credit card transactions were, for the most part, personal charges. Collis admitted he customarily buried these personal credit card payments by coding them to legitimate business accounts. Mynatt Truck paid Collis’ personal credit card charges for such things as visits to a massage parlor, a Nordic Track exercise machine, shotguns and ammunition, boating supplies, and jewelry. Collis never discussed his practice of burying these charges with Mynatt or anyone else at Mynatt Truck and stated that it was not likely Mynatt could tell the payments were fraudulent by looking at the corporate financial statements.
Collis also issued corporate checks to himself, to his wife, and to cash for his own benefit. During the same time period, it was rare for Mynatt to get checks for cash or cash advances. Collis made a deposit on a Toyota Land Cruiser, purchased a Corvette, paid for a boat dock, and purchased a Kubota tractor and attachments for the tractor with corporate funds. Collis wrote corporate checks to pay for items Hughes purchased to decorate their home. Again, Collis buried these payments paid for with corporate funds by writing the checks to cash or coding the expenses to legitimate business accounts. Collis also engaged in other unauthorized business-swapping transactions where corporate customers Bill Curth, Ronan Roofing, and Arbor Care traded work on Collis’ personal residence in exchange for work performed on their vehicles at Mynatt Truck. Collis admitted all these practices were dishonest, fraudulent, and illegal.
In March 1996, Collis resigned as an officer and shareholder of Mynatt Truck, taking a company truck and tools with him. Collis formed Collis Equipment Company, a direct competitor with Mynatt Truck. In May or June 1996, Collis returned to Mynatt Truck and blacked out most of the information regarding his personal expenses on his credit card statements.
In March 1997, Mynatt and Mynatt Truck filed suit against Collis and Hughes. In the petition, Mynatt made an individual claim against Collis for amounts owing on the promissory note. Mynatt additionally asked the court to determine that certain real property titled in the names of Mynatt, Collis, and both of their wives was held in trust for Mynatt Truck, or alternatively sought a reformation of the deed to reflect ownership by the corporation.
Mynatt and Mynatt Truck together alleged that Collis wrongfully used or dissipated corporate assets to benefit himself and Hughes. Collis and Hughes generally denied the allegations and contended that Collis had been authorized to use corporate assets for his personal benefit. In addition, Mynatt and Mynatt Truck advanced claims against Collis for conversion and unjust enrichment, fraud, and breach of fiduciary duty. Mynatt Truck also sought judgment against Collis and Hughes for business loans advanced to Collis.
Collis filed a counterclaim alleging that Mynatt dissipated corporate assets of Mynatt Truck for his own benefit and failed to pay Collis for 55 days of vacation. Collis asserted that Mynatt used corporate funds to pay for personal expenses, an airplane, life insurance, personal- income taxes, legal and accounting fees, and family travel expenses. Collis also sought the dissolution and an accounting of B&D Leasing, the general partnership owned by Collis and Mynatt.
Prior to trial, Mynatt and Mynatt Truck asked for leave to seek punitive damages pursuant to K.S.A. 2001 Supp. 60-3703. Following a hearing, die district court granted leave to claim punitive damages.
A 7-day bench trial was conducted by Judge Leben in January and April 1999. The district court issued a memorandum decision summarizing its findings of facts and conclusions of law on March 16, 2001.
In its findings of fact, the district court specifically found:
“7. Although a variety of expenditures were made for the benefit of Collis’ wife, Ann, she was never an employee of Mynatt Truck. Although Collis indicated that she ran some errands for the company, he agreed that she rarely did so after 1992.
“8. Collis admits taking about $5,000 to $6,000 worth of tools with him when he left Mynatt Track. (At a later point in his testimony, during the second part of the trial — which took place about three months after the first part — Collis claimed he only took about $2,000 worth of tools when he left. This unexplained, significant difference is typical of his testimony. The court accepts the statement he made on this subject from the first day of his testimony, which was based on his earlier deposition testimony.)
“9. A Kubota tractor was purchased by Collis with company funds. It never had any business purpose. Collis took tire tractor home with him and still has it. Mynatt Truck paid approximately $12,000 for the tractor.
‘TO. On the Curth transaction, Collis admitted at one point in his testimony that he actually wasn’t sure that he ever ‘settled up with’ Mynatt regarding that transaction. Previously, he had testified that he had paid Mynatt about $2,500 in connection with the Curth transaction.
“11. Collis’ basic claim was that he had had a conversation with Mynatt in 1990 in which Mynatt had authorized the compensation over and above Collis’ salary that Collis took in the ensuing years. Collis’ own testimony, however, really didn’t support that claim. Collis testified that he and Mynatt had discussed Collis’ desire for a raise in 1990 and that Mynatt had told Collis that the company didn’t have enough money to give him a raise, but that Collis could ‘pad [his] expense account a bit.’ Even if that were true, padding the expense account ‘a bit’ would not have been authority for the wholesale expenditures made for Collis’ personal benefit. Collis’ recollections of this conversation with Mynatt varied in significant respects between his deposition and trial testimony and even within his trial testimony. The court recognizes that it is difficult for any witness to keep any story 100% straight over an extended period of time/ even if it is the truth. In this case, however, the changes and variances were significant and the court simply does not believe Collis’ version of these events.
“12. Collis agreed that he owed Mynatt Truck for a number of the checks written for his personal expenses, including all of those in category F on Exhibit HHHH. There is no logical reason why he should owe for these checks, in relatively modest sums, if, as he claims, Mynatt had authorized the taking of much larger sums as part of the ‘padding’ of his expenses or even a greater agreement designed to increase Collis’ compensation from Mynatt Truck.
“13. As examples of some of the checks written by Collis, check number 5283 was written to his wife for $4,500. Collis, in his own handwriting, coded that to the equipment inventory account on the general ledger of Mynatt Truck. Check number 5889 for $12,100.35 went to pay off Collis’ boat loan; Collis coded that to the equipment inventory account as well. Check number 6347 for $5,439.19 for down payment on a personal Toyota Land Cruiser was coded to the company’s parts inventory. Check number 6013 for $1,187.07 for an attachment for his tractor was coded to the company’s parts inventory.
“14. Mynatt Truck, with the concurrence of Mynatt and Collis, declared a $50,000 bonus for Mynatt and Collis in 1995. No bonuses were declared or awarded at any other time. Plaintiffs have credited this bonus against the amounts claimed against Collis; the court finds that this is an appropriate method for calculating the damages, while honoring the bonus agreement.
“15. Mynatt admits that he received cash that was not reported as income or included on the company’s books in four or five significant deals, all negotiated by Collis. Mynatt admits having received $12,000 cash on the Century Lumber deal, a transaction on which Mynatt has made some claims in this lawsuit.
“16. In late 1995, Mynatt and Collis had a meeting regarding a list of questionable checks that Collis had written on the company accounts. The checks written by Collis to purchase tire Kubota tractor and its attachments were included among those discussed. After the meeting, Mynatt wrote a check to himself on the company account for $17,000. He did this because Collis had taken the Kubota tractor for his personal use and Mynatt felt that a compensating payment should be made to himself.
“17. Some expenses of Mynatt’s wife, including gas expenses, were paid by Mynatt Truck. She did not do any work for the company, but did serve as a corporate director and was a guarantor of tire corporation’s debt.
“18. Although Collis now complains about various payments made by the corporation for Mynatt’s personal benefit, Collis was aware of virtually all of those expenses as they were made. Collis signed tire checks and coded tire payments for purposes of the corporation’s accounting records.
“19. Although Collis claims that his payment of large personal expenses with company funds was authorized, on at least three occasions he charged significant expenses against his own loan account on the corporation’s accounting ledgers. No satisfactory explanation for why this was done in three cases, but not in others, was given.
“20. After Collis left Mynatt Truck, he returned to the business, took his credit card statements, and blacked out most of tire information regarding his personal expenses.
“21. Collis agrees that he failed to ‘settle up’ with Mynatt regarding the Arbor-care transaction.
“22. Collis admitted that his paying for a Corvette through the corporation, when he already had another corporate vehicle, was not a proper corporate expense. (Later in his testimony, Collis took the opposite position. The court agrees with his admission.)
“23. Collis admitted that his subscription, paid for by the company, to Star Tech journal was improper, as that journal did not relate to the industry in which Mynatt Truck operated.
“24. The policy for all employees at Mynatt Truck — established by Collis — was that vacation time had to be used during each calendar year or it was lost. This was true for Collis as well as for other employees.
“25. Collis agreed that he owed the following:
• $8,933.37 plus interest of $1.24 per day after January 15,1999 on the promissory note given by Collis for his shares of Mynatt Truck;
• $10,000 for Mynatt’s interest in HRE stock;
• $17,100 for the pickup truck taken by Collis at the time of his resignation;
• $46,928.45 in credit card charges that were his personal expenses paid for by the corporation (admitted to once his claim that Mynatt had agreed that Collis could run virtually unlimited personal expenses through the corporation is rejected); and
• $2,074.62 in checks identified in category F on Exhibit HHHH.
“26. The court did not find Collis’ testimony to be credible for a number of reasons, some of which have been mentioned here. The court generally agrees with the discussion found in paragraphs 4 through 7 of plaintiffs’ proposed findings regarding Collis’ credibility.
“27. Mynatt never authorized the paying of large quantities of Collis’ personal expenses with corporate funds or the ‘burying’ of Collis’ personal transactions in the corporate books by coding them to non-personal account categories.
“28. Mynatt did pay some personal expenses with corporate funds, something that is not infrequent — in relatively modest amounts — in closely held corporations, its legality (or illegality) notwithstanding. Mynatt’s expenditures of this na ture did not approach the level of Collis’, however. Nor did Mynatt authorize the large-scale personal expenditures from corporate funds, which was mostly engaged in by Collis without Mynatt’s knowledge or consent.
“29. Collis engaged in several ‘trade-outs’ in which he obtained services from third parties for himself, personally, in exchange for equipment or services of Mynatt Truck. By this practice, Collis received personal benefits that were paid for by the company. Mynatt was aware of this practice in some instances, but not aware of it in others. Such transactions were not generally authorized. Thus, unless specific authority from Mynatt was shown, they should be considered unauthorized self-dealing by Collis.
“30. The Curth trade-out, which netted a value of $5,000 for Collis, was not authorized by Mynatt and Mynatt was unaware of it. The same is true for the Arborcare trade-out, which netted a value of $2,000 for Collis.
“31. The Ronan Roofing transaction, in which Collis received value of $6,800, was not authorized by Mynatt and Mynatt was unaware of it. Collis coded the payment to Ronan Roofing, in exchange for which he received services, to a Mynatt Truck repairs account.
“32. The trade-out with Bolivar Insulation was known to Mynatt and authorized by him. Collis testified that he shared a cash payment from Bolivar with Mynatt. Mynatt agreed that he received some cash payments. The court finds that Bolivar Insulation was one of them.
“33. Plaintiffs have presented a claim that Collis should reimburse checks written by him with respect to three categories. The first category, totaling $39,964.43, is for checks payable to cash; the second, totaling $17,883.33, is for checks written to purchase tools; the third, totaling $36,090.36, is for checks written to various third parties for Collis’ benefit. The court finds that plaintiffs have a valid claim under the first and third categories, but not the second. Collis has provided a sufficient explanation for the purchase of tools, which are certainly needed in the normal operation of the business, to justify substantial expenditures. The court has separately found, however, that Collis admitted taking $5,000 to $6,000 in company-owned tools with him when he left the company’s employment. Thus, the court finds damages of $5,000 with respect to the claim regarding tools in place of the $17,883.33 claimed by plaintiffs.
“34. As noted in the court’s legal conclusions, Collis, as a fiduciary, had the burden to prove the propriety of questioned transactions once a prima facie showing of impropriety had been made. Plaintiffs did so with respect to the transactions for which damages have been awarded and Collis did not adequately prove the appropriateness of his dealings. It may well be that some of the cash obtained by Collis was for legitimate purposes. In light of the large sums that Collis took from the corporation for illegitimate purposes, however, it cannot be presumed that these cash payments were proper. Collis has no records to support his claims that they were appropriate and plaintiffs rightly point out that Collis’ credit card charges for gas would have provided most or all of his appropriate gas reimburse ments. Collis’ other explanations for the checks for cash and to third parties are found insufficient to explain away the apparent improprieties of these transactions.
“35. No damages are awarded to plaintiffs with respect to the Century Lumber claim. Because no damages are awarded on it, the court will not recount in detail the convoluted nature of this transaction and claim. The court rejects any damage claim associated with this transaction because Mynatt admits having received $12,000 in cash (along with Collis) in connection with the underlying transaction; Mynatt Truck or B&D Leasing or both retain a claim against Century Lumber that has not yet been pursued. Further, no evidence was presented that tied Collis into tire apparent fraud in the transfer of title to the truck originally sold to Century Lumber by B&D Leasing. Given that this transfer of the truck title, free of the lien of either B&D Leasing or Mynatt Truck, was apparently fraudulent, substantial proof of Collis’ involvement would have been required. It simply was not present.
“36. No damages are awarded to plaintiffs with respect to the Kubota tractor transactions. Mynatt, in response to the Kubota tractor transactions, wrote a check to himself from the corporation in an equivalent amount to make up for Collis’ self-dealing on these transactions. Mynatt concluded at the time that the payment to himself equalized those disbursements. While Mynatt did not authorize the Kubota tractor transactions in advance, his payment of an equivalent amount to himself later constituted an after-the-fact ratification of the Kubota tractor payments.
“37. The court rejects plaintiffs’ claim for $13,481.19 in ‘questionable’ credit card charges or for $8,643.43 in credit card charges for ‘meals’ over a five-year period. Unlike the blacked out charges, the court does not find sufficient evidence of the impropriety of these transactions to require more-than-normal proof by Collis of the appropriateness of these transactions. Certainly some expense for meals, including on occasions when customers may have been entertained, would have been appropriate. Given the length of the time period involved in these claims, there is not a sufficient showing that these transactions were improper.
“38. The court rejects plaintiffs’ claim for $8,000 arising out of a loss on trade-in of a Winnebago. The court finds that plaintiffs failed to prove that this loss was caused by any improper or unauthorized act of Collis.
“39. The court rejects plaintiffs’ claim of damages related to an Army truck. Collis has stated that he will sign the title to the truck, which would obviate any damage claim. The court will include an order for Collis to sign the title and to cooperate in transfer of that vehicle to Mynatt Truck’s ownership.
“40. The court rejects plaintiffs’ claim of damages related to a Model A car. The court finds that plaintiffs failed to prove that this loss was caused by any improper or unauthorized act of Collis.
“41. Credit card charges directly for the benefit of Collis’ wife were made in the amount of $13,481.19. Plaintiffs should have recovery for those amounts, for which no corporate benefit was received.”
The district court found that Collis defaulted on the promissory note securing his interest in shares of Mynatt Truck common stock and awarded Mynatt damages of $8,933.37 plus interest of $1.24 per day after January 15, 1999. The court also found in favor of Mynatt in regard to monies given to Collis for an investment in Hydraulic Repair & Engineering, Inc. (HRE) stock and awarded Mynatt $10,000 in damages.
The district court awarded damages to Mynatt Truck in connection with its claims against Collis for conversion, unjust enrichment, fraud, and breach of fiduciary duty. In addition, tire district court found that Collis5 conduct constituted both willful fraud and breach of fiduciary duty and awarded Mynatt Truck $125,000 in punitive damages.
The district court awarded Mynatt $8,933.37 plus interest for the amount owing on the promissory note and $10,000 for his interest in HRE stock. The district court also awarded the following damages to Mynatt Truck:
“• $17,100 for the pickup truck taken by Collis at the time of his resignation;
“• $46,928.45 in credit card charges that were his personal expenses paid for by the corporation;
“• $13,481.19 in credit card charges for the benefit of Collis’ wife;
“• $39,964.43 for checks payable to cash;
“• $36,090.36 for checks written to various third parties for Collis’ benefit;
“• $13,800 for the unauthorized trade-outs with Curth, Ronan Roofing, and Arborcare;
“• $5,000 for tools taken by Collis when he left the company; and
“• $2,074.62 in checks identified in category F on Exhibit HHHH.”
In addition, the district court ordered Collis to take all reasonable and necessary steps to transfer ownership of an Army truck to Mynatt Truck. For purposes of calculating the interest due on damages, the district court found that the damages “were liquidated as of the dates suggested by plaintiffs.”
The district court found that Mynatt and Mynatt Truck failed to sustain the burden of proof as to claims in regard to a Kubota Tractor, checks written for tools, the Century Lumber claim, questionable credit card charges, credit card charges for meals, loss on the sale of a Winnebago, damages related to the purchase of a Model A car, and fraudulent conduct with respect to B&D Leasing. The court entered judgment for Collis on those claims.
The district court found in favor of Mynatt and Mynatt Truck on Collis’ counterclaims for vacation pay and for breach of fiduciary duty and, thus, did not award any damages to Collis. However, the court held that “so long as [Collis] remains a partner of B&D Leasing, he shall be entitled to access to the partnership records and to an accounting of its financial transactions.”
In their posttrial suggested findings of fact and conclusions of law, Collis and Hughes requested that the district court allow them to set off from the judgment against them the amount of a 1995 corporate distribution, any retained earnings of Collis at Mynatt Truck, and the amount of Collis’ corporate ownership interest in Mynatt Truck. Collis and Hughes suggested that Collis was entitled to receive $128,142, the amount of the corporate distribution to him reflected on an amended corporate K-l tax form for 1995.
After the district court entered judgment denying equitable set-off, Collis and Hughes once again asked the court to allow the equitable setoff in a motion to alter or amend. In addition, Collis and Hughes asked to be allowed to set off from the judgment in favor of Mynatt Truck monies they claimed Mynatt misappropriated from the corporation. Collis and Hughes also requested an amended journal entiy reflecting the satisfaction of the judgment pertaining to the promissory note. At the hearing on the motion, the court ordered amendment of the journal entry of judgment to show that Collis had satisfied his obligations under the promissory note. The district court denied Collis’ request for setoff, however.
An amended journal entry of judgment was filed on June 6,2001. On June 25, 2001, Collis and Hughes appealed the findings and rulings of the district court. Mynatt and Mynatt Truck filed a cross-appeal concerning the trial court’s admission of trial exhibits on July 16, 2001, but later moved to dismiss the cross-appeal. This court granted the motion to dismiss the cross-appeal. The remaining appeal was timely filed and comes before this court pursuant to a K.S.A. 20-3018(c) transfer.
I. EQUITABLE SETOFF
Collis and Hughes assert that the trial court erred by refusing to allow Collis an equitable setoff from the judgment against him, setting forth several reasons why the court’s decision was in error. Collis and Hughes ask this court to remand the matter to the district court for a determination of the proper amount of setoff.
An appellate court’s standard of review on a district court’s determination regarding the remedy of equitable setoff is one of abuse of discretion. See New Dimensions Products, Inc. v. Flambeau Corp., 17 Kan. App. 2d 852, Syl. ¶ 5, 844 P.2d 768 (1993) (“The denial of the remedy of setoff to a defendant who has violated the equitable ‘clean hands’ doctrine is within the discretion of the trial court.”); Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 793, 635 P.2d 1248 (1981) (quoting Taylor v. Taylor, 180 Kan. 213, 218, 303 P.2d 133 [1956]) (“a setoff as between judgments is within the discretion of tire court ... it will only be disturbed . . . where it appears that the setoff has operated to the prejudice of a third party without notice . . . and he complains”).
Collis and Hughes claim on appeal that the trial court should have allowed them to set off from the judgment against them the amount Mynatt misappropriated from Mynatt Truck. On appeal, however, Collis and Hughes no longer appear to claim that the district court should have allowed a setoff of the amount of the 1995 corporate distribution, Collis’ ownership interest in Mynatt Truck, or any retained earnings Collis might have in Mynatt Truck.
We also note that Collis and Hughes do not appear to challenge any of the district court’s findings of fact on appeal, but rather claim that the trial court erred as a matter of law. “ ‘Determinations of fact, unappealed from, are final and conclusive.’ ” Powell v. Simon Mgt. Group, L.P., 265 Kan. 197, 199, 960 P.2d 212 (1998) (quoting Justice v. Board of Wyandotte County Comm’rs, 17 Kan. App. 2d 102, 109, 835 P.2d 692, rev. denied 251 Kan. 938 [1992]).
A. Statute of hmitations
Collis and Hughes assert that although they may have been barred from recovering damages from a counterclaim due to the operation of the statute of limitations, the running of the statute of limitations did not preclude Collis from obtaining equitable set-off.
The interpretation and application of a statute of limitations is a question of law for which the appellate court’s review is unlimited. Likewise, the court’s review of conclusions of law is unlimited. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000).
The district court specifically found in favor of Mynatt and Mynatt Truck in regard to Collis and Hughes’ counterclaims. In its memorandum decision, the district court observed:
“Although Collis now complains about various payments made by the corporation for Mynatt’s personal benefit, Collis was aware of virtually all of those expenses as they were made. Collis signed the checks and coded the payments for purposes of the corporation’s accounting records.”
“Collis’ claims for breach of fiduciary duly against Mynatt are rejected for two reasons. First, with respect to virtually all of Collis’ claims or potential claims, they are time-barred. Collis signed almost all of die checks, coded transactions for accounting purposes, and supervised all accounting functions; he was well aware each time that Mynatt wrote a check or used company funds that went for a personal use. Second, given the deceitful conduct set forth here on the part of Collis, Collis’ knowledge of any wrongful conduct by Mynatt vis-a-vis the corporation, and the far greater scope of Collis’ wrongful conduct, the court finds that a direct action by Collis against Mynatt personally should not be allowed here as it would ‘interfere with a fair distribution of the recovery among interested persons.’ ”
Collis and Hughes contend that the district court erred in concluding that their counterclaims were barred by the statute of limitations rather than construing the counterclaims as requests for setoff. They assert that under K.S.A. 2001 Supp. 60-213(d), counterclaims are not time-barred when claimed as equitable setoff.
First, we consider whether the statute of limitations bars Collis and Hughes’ request for equitable setoff. This court has previously stated: “ ‘Statutes of limitation are usually considered to be remedial rather than substantive, in that the remedy only and not the right or obligation is barred. . . .’ ” Waechter v. Amoco Production Co., 217 Kan. 489, 519, 537 P.2d 228 (1975) (quoting Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 55, 402 P.2d 782 [1965]).
“ “When considering the effect of the running of the statute of hmitations this court is committed to the general doctrine, almost universally recognized by the courts and textwriters, that there is a substantial distinction between a claim asserted as a pure defense and one where affirmative relief is sought. Statutes of fimitation are not intended to affect matters asserted strictly in the defense of an action. [Citations omitted.]’
“As a general rule a setoff, counterclaim or cross-claim has the nature, characteristics and effect of an independent action or suit by one party against another. Accordingly, in the absence of a statute to the contrary, a demand pleaded by way of a setoff, counterclaim or cross-claim is regarded as an affirmative action in most jurisdictions, and therefore, unlike a matter of pure defense, is subject to the operation of the statute of hmitations. [Citations omitted.]” (Emphasis added.) Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 56, 402 P.2d 782 (1965).
Beginning in 1909, however, our legislature enacted statutes excluding cross-demands, counterclaims, and setoffs from the operation of the statute of hmitations under certain specified circumstances. See Rochester American Ins. Co., 195 Kan. at 57-58 (discussing L. 1909, ch. 182, § 102; G.S. 1949, 60-715; and K.S.A. 60-213[d] [Corrick]).
K.S.A. 2001 Supp. 60-213(d) states:
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or cross-claim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of hmitations if arising out of the contract or transaction set forth in the petition as the foundation of plaintiffs claim or connected with the subject of the action; but the two demands must be deemed compensated so far as they equal each other.”
The United States District Court for the District of Kansas has noted:
“In sum, the law of Kansas is that if the counterclaim is not brought before the running of the statute of hmitations, then the counterclaim cannot be used as an affirmative action. However, the counterclaim can still be used as a pure defense or as a set off against the plaintiff s claim if the claim, ‘(a) coexisted with the plaintiffs’ claim and (b) arises out of the “contract or transaction” on which the plaintiffs’ claim is based.’ ” Hatfield, v. Burlington Northern Railroad Co., 747 F. Supp. 634, 641 (D. Kan. 1990) (quoting Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 464, 562 P. 2d 1 [1977]).
Here, Collis and Hughes filed a counterclaim on April 14,1997, alleging that on various dates Mynatt had dissipated corporate assets of Mynatt Truck for his own benefit in breach of his fiduciary duties. An action for an alleged breach of fiduciary duty is governed by the 2-year statute of limitations of K.S.A. 2001 Supp. 60-513. Cornett v. Roth, 233 Kan. 936, 940-41, 666 P.2d 1182 (1983). The statute of limitations would act to bar any affirmative action by Collis against Mynatt for breach of fiduciary duty 2 years after “the fact of injury [became] reasonably ascertainable.” K.S.A. 2001 Supp. 60-513(a) and (b).
Collis admitted in his trial testimony that as early as 1990 he was aware that Mynatt had the corporation pay for some of his personal expenses. Collis did not become a shareholder in the corporation until September 30,1993; however, Collis was appointed vice president and general manager of the corporation in 1990. “Officers and directors of a corporation occupy a strict fiduciary relationship with respect to both the corporation and its shareholders. The same fiduciary standard applies as between directors.” Newton v. Hornblower, Inc., 224 Kan. 506, Syl. ¶ 8, 582 P.2d 1136 (1978). Collis could clearly bring an action for breach of fiduciary duty against Mynatt after he was made a corporate officer in 1990. After he was made a corporate officer, Collis knew that the corporation was paying for Mynatt’s personal expenses because he was responsible for the review and approval of bills and for determining to which general ledger account the bills were to be charged when paid. In the context of affirmative counterclaims, the district court correctly determined that the statute of limitations barred “virtually all of Collis’ claims or potential claims” with the exception of the “check Mynatt wrote to himself in late 1995 for $17,000 to offset the Kubota tractor payments made by Collis for Collis’ benefit.”
As for Collis and Hughes’ request for setoff, this court has stated that “even an outlawed claim may be used as a setoff if it (a) coexisted with the plaintiffs’ claim and (b) arises out of the ‘contract or transaction’ on which the plaintiffs’ claim is based.” Lightcap, 221 Kan. at 464. While the term “transaction” may encompass a contract, it is larger in scope and more comprehensive than “contract” and may relate to matters entirely in tort. United States Hoff man Machinery Corp. v. Ebenstein, 150 Kan. 790, 792, 96 P.2d 661 (1939), opinion adhered to on rehearing, 152 Kan. 198, 103 P.2d 788 (1940). Collis and Hughes’ claims generally can be said to arise out of the transaction on which Mynatt and Mynatt Truck’s claims were based; however, we must determine whether Collis and Hughes’ claims coexisted with the claims of Mynatt and Mynatt Truck.
Mynatt testified at trial that he began looking through corporate checks in approximately October or November 1995. Assuming that the fact of injuiy was reasonably ascertainable to Mynatt and Mynatt Truck at that time, an action for breach of fiduciary duty would accrue in October or November 1995 and remain viable until October or November 1997. As the district court noted, the only breach of fiduciary duty claim Collis could have possibly initiated against Mynatt accruing in late 1995 would be a claim in regard to the check Mynatt wrote to himself for $17,000 in compensation for the corporate funds Collis used for the Kubota tractor. Because both Collis and Mynatt could entertain claims “alive” from October or November 1995 through October or November 1997, we find that these particular claims coexisted. See Lightcap, 221 Kan. at 464.
Because Collis’ claim for breach of fiduciary duty coexisted with Mynatt and Mynatt Truck’s claim and arose from the same transaction which Mynatt and Mynatt Truck claimed in their petition, we conclude that Collis’ claims against Mynatt individually for breach of fiduciary duty were not barred by the statute of limitations for the purpose of obtaining a setoff from the judgment awarded to Mynatt.
B. Richards v. Bryan
Next, Collis and Hughes assert that the district court erred in interpreting Richards v. Bryan, 19 Kan. App. 2d 950, 879 P.2d 638 (1994), as providing an alternative basis for denying Collis’ request for setoff.
“ ‘This court’s review of conclusions of law is unlimited.’ [Citation omitted.]” Powell, 265 Kan. at 202.
Here, Collis and Hughes contend that Collis’ counterclaims were authorized by the test in Richards. They argue that the district court misinterpreted the “fair distribution of the recovery” prong of the three-part test set forth in that case, considering that prong a balancing test of the respective wrongdoing of the parties rather than as a directive to consider the effect of recovery on any other nonparty shareholders.
In response to Collis and Hughes’ assertion, Mynatt and Mynatt Truck argue that the Court of Appeals impermissibly exercised judicial legislation in Richards and urge this court to overrule that case. Alternatively, Mynatt and Mynatt Truck urge this court to uphold the district court’s determination that Collis’ counterclaims were impermissible because they would interfere with a fair distribution of recovery among all interested persons.
In their reply brief, Collis and Hughes contend that Richards was not a prohibited exercise of judicial legislation resulting in an expansion of K.S.A. 60-223a. They assert that because Mynatt relied on the trial court’s interpretation and application of Richards, Mynatt may not argue on appeal that the holding should be overruled.
At the hearing on Collis and Hughes’ motion to alter or amend, counsel for Mynatt and Mynatt Truck stated:
“But in our view, Your Honor, there are — it’s three-fold. Perhaps the most significant is that under the Richards v. Bryan case this court found specifically that the claim in Mr. Collis’ favor under the Richards v. Bryan case could not be sustained because it would interfere with a fair distribution of recovery among all interested persons, which is in violation of the Richards v. Bryan case. That is to say this Court made a specific express finding of fact which is fatal to that claim.”
Judge Leben denied Collis’ request for setoff, and stated:
“With respect to [Collis’ and Hughes’ request for set-off], I would say that I generally agree with each of the three rationales put forward by [counsel for Mynatt] in his responsive brief. I’ll comment on a couple of them. I’ve already dealt with the Richards v. Bryan issue in the memorandum decision. With respect to the mutuality issue, I also agree with [counsel for Mynatt] that there was not a claim presented in the pretrial order related to the K-l or against the corporation itself and, therefore, I do not believe that there is any mutuality which would be required for a set off. With respect to the last argument of a failure of proof, I agree with that as well and would add that my understanding of the evidence was that the amended K-l reflected transactions that had already occurred, not transactions that were about to occur. It was an amended K-l for a prior year and it does not seem logical to me that it would be an indication that there was some further payment remaining to be made by the corporation to Mr. Collis. Certainly if that were in fact the case, as is now alleged by the defendant, proof that was persuasive to me certainly was not presented at trial. That was not my understanding of the significance of that document from the evidence that was presented, and I think [counsel for Mynatt] is correct that this does represent a failure of proof on behalf of [Collis and Hughes], even if such a claim was properly presented in the pretrial order and did not run afoul of the Richards v. Bryan rule. So, that will be the ruling of the Court on that motion.”
Mynatt and Mynatt Truck did not argue before the district court that the Court of Appeals impermissibly exercised judicial legislation in Richards which should be overruled, and the district court never rendered a decision on it. To the contrary, Mynatt and Mynatt Truck relied on the district court’s use of the Richards test to support the argument that Collis and Hughes were not entitled to equitable setoff.
“A new legal theory may not be asserted for the first time on appeal or raised in a reply brief. [Citation omitted.]” Wood v. Groh, 269 Kan. 420, 434, 7 P.3d 1163 (2000). Generally, a party is not allowed to raise an issue on appeal not presented previously to the district court or inconsistent with the position taken before the district court. Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. ¶ 6, 522 P.2d 401 (1974); Pink Cadillac Bar & Grill, Inc. v. USF&G Co., 22 Kan. App. 2d 944, 955, 925 P.2d 452 (1996), rev. denied 261 Kan. 1086 (1997). None of the three exceptions to this general rule listed in In re Conservatorship ofMarcotte, 243 Kan. 190,196, 756 P.2d 1091 (1988), apply here. See Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 827, 934 P.2d 65 (1997) (finding that the issue of the coverage period of an insurance policy was not contested before the district court and consequently was not properly before this court on appeal). Because Mynatt and Mynatt Truck failed to raise this issue before the trial court, this court will not consider it for the first time on appeal.
The remaining issue for our consideration is whether the district court misinterpreted the “fair distribution of the recovery” prong of the three-part test, erring in its interpretation of Richards as providing an alternative basis for denying Collis’ request for setoff.
In Richards, Donald Richards purchased 49% of the stock of Bryan Travel Service, a Kansas corporation, in 1982. The other 51% of the stock was owned by Bryan World Tours, Inc. (Tours). Richards served as president and chief executive officer of Bryan Travel Service and served on its board of directors. The other three positions on board of directors were filled by stockholders, directors, and officers of Tours. Richards served as president and chief executive officer for the first year widiout drawing a salary, and then drew a salary of $2,000 per month with no increase until the conclusion of his employment. The board of directors never authorized a dividend or bonus.
Tours afforded financial backing to Bryan Travel Service through a series of loans made without Richards’ consent or knowledge and assessed interest against the loans. Bryan Travel Service was to repay the loans whenever there was any surplus cash flow. According to Richards, the loans were in reality capital contributions and the loan payments were disguised dividend payments for Tours.
In 1987, the board of directors of Bryan Travel Service became dissatisfied with Richards’ job performance and resolved to either ask him to resign or to terminate him. After his termination, Richards, the minority shareholder, filed suit against the majority shareholder Tours, its directors, officers, and shareholders, alleging fraud, breach of contract, and breach of fiduciary duiy.
The district court disposed of Richards’ claims through a grant of summary judgment, and Richards appealed. The Court of Appeals noted that at the heart of Richards’ fiduciary duty claim was the allegation that the defendants manipulated the financial papers of Biyan Travel Service to hide profits in order to avoid paying him additional compensation by way of dividends or bonuses. The Court of Appeals found that while Richards could bring an individual claim of injury for the termination of his employment, all other breach of fiduciary duty claims involved injuries to the corporation which should have been brought in a shareholders derivative action under K.S.A. 60-223a. However, the Court of Appeals noted:
“[A]n increasing number of courts [were] abandoning the distinction between a derivative and a direct action because the only interested parties [were] the two sets of shareholders. Furthermore, some courts have recognized that it is often difficult and futile to bring a derivative action against a closely held corporation. As explained by one authority, ‘[e]ven if a minority shareholder overcomes procedural hurdles in a derivative action, a strong disadvantage is that any recovery accrues to the corporation and hence remains under the control of the very parties who may have been defendants in the litigation.’ [Citation omitted.] For this reason, some courts permit oppressed minority shareholders to bring direct suits for breaches of fiduciary duties by the majority, even though the minority shareholders’ grievance is primarily based on damage to the corporation. [Citation omitted.]” Richards, 19 Kan. App. 2d at 962-63.
Relying in part on this court’s holding in Sampson v. Hunt, 233 Kan. 572, 584-85, 665 P.2d 743 (1983), that “ ‘directors have the power to control and direct the affairs of the corporation, and in the absence of fraud, courts will generally not interfere on behalf of a dissatisfied stockholder with the discretion of the directors on questions of corporate management, policy or business,’ ” (emphasis added) the Court of Appeals crafted a close corporation exception to the requirement that a minority shareholder bring a derivative action. 19 Kan. App. 2d at 964. Noting that Richards had presented substantial evidence of fraudulent inducement, the Court of Appeals opined that this court “would recognize an exception to the requirement that a minority shareholder bring a derivative action when frozen out of the management of a close corporation through oppressive majority conduct.” 19 Kan. App. 2d at 964.
The Richards court concluded that
“if a corporation is closely held, a court, in its discretion, may treat an action raising derivative claims as a direct action if it finds to do so will not (1) unfairly expose the corporation to a multiplicity of actions; (2) materially prejudice the interests of creditors in the corporation; or (3) interfere with a fair distribution of the recovery among all interested persons.” 19 Kan. App. 2d at 965.
Mynatt and Mynatt Truck argue that the district court’s determination that Collis’ claims for breach of fiduciary duty should not be allowed because it would “interfere with a fair distribution of recovery” constitutes a negative finding. They assert that such a finding cannot be disturbed absent a showing of arbitrary and capricious disregard of undisputed evidence.
“A negative finding by the trial court means the party with the burden of proof failed to meet that burden. An appellate court will not disturb such a finding absent proof of an arbitraiy disregard of undisputed evidence, or some extrinsic circumstance such as bias, passion, or prejudice.” In re Estate of Haneberg, 270 Kan. 365, Syl. ¶ 6, 14 P.3d 1088 (2000).
Collis and Hughes contend that the district court misinterpreted the third prong of the three-part test set forth in that case, incorrectly interpreting “a fair distribution of recovery” to mean a balancing test of the respective wrongdoing of the parties rather than as a directive to consider the effect of recovery on any other non-party shareholders. We find that the district court’s statements in the memorandum decision indicate that it applied an incorrect interpretation of the legal requirement of the third prong of the test. As such, the district court’s conclusions in regard to the third prong cannot be characterized as a negative finding.
The Richards court cited within the opinion the persuasive authority of the American Law Institute’s Principles of Corporate Governance: Analysis and Recommendations § 7.01(d), p. 733 (Tentative Draft No. 11, 1991). The American Law Institute subsequently adopted and promulgated § 7.01(d) on May 13, 1992, noting that although subsection (d) related to an issue infrequently faced by courts, the rule was “consistent with the trend of recent decisions.” A.L.I., Principles of Corporate Governance: Analysis and Recommendations § 7.01(d), Comment a. Comment e of § 7.01(d) states:
“Essentially, § 7.01(d) follows the position taken by the Ninth Circuit in Watson v. Button, 235 F.2d 235 (9th Cir. 1956), which found that the usual policy reasons requiring an action that principally alleges an injuiy to die corporation to be treated as a derivative action are not always applicable to the closely held corporation. The facts of Watson are illustrative: a multiplicity of actions could not have resulted in that case, because there were only two shareholders; creditors could not have been injured, because each shareholder had agreed to be individually liable for corporate debts; finally, and individual recovery would not have prejudiced the rights of any other shareholders. . . . Altiiough § 7.01(d) does not follow the fullest potential reach of Donahue to the extent of converting all intracorporate disputes that would be normally characterized as derivative actions into direct actions whenever the case involves a closely held corporation, it gives the court discretion to treat the action as direct if the policy considerations enumerated in Comment d are satisfied. In general, when a direct action is brought on behalf of the entire class of injured shareholders and the corporation’s solvency is not in question, there is less reason to insist that the action be brought derivatively. The court should then have equitable power to treat the action as direct if the corporation is closely held . . . .” (Emphasis added.) A.L.I., Principles of Corporate Governance: Analysis and Recommendations § 7.01(d), Comment e.
The American Law Institute’s comments appear to indicate that “a fair distribution of the recovery” requires a court to consider the effect of recovery on any nonparty shareholders as Collis and Hughes assert. Here, all interested shareholders were parties to the suit, and individual recovery would not have prejudiced the rights of any nonparty shareholders and thus would not have interfered with a fair distribution of the recovery.
However, even if we find the district court’s holding was a misinterpretation of the third prong, Collis and Hughes’ contentions ignore the obvious. In the case of a closely held corporation, the decision whether to allow a party to proceed with a direct suit in lieu of a derivative action is entrusted to the court’s discretion. Even if all three prongs of the test were met, the district court, in its equitable power and discretion, could deny Collis and Hughes the ability to proceed directly.
“[A] trial court’s reason for its decision is immaterial if the ruling is correct for any reason. [Citation omitted.]” KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997). Because Richards entrusts the decision of whether to allow a direct action involving a close corporation to the court’s discretion, the district court did not err in using that case as an alternative basis for denying Collis’ request for setoff.
C. Doctrine of strict mutuality
Next, Collis and Hughes argue that strict mutuality is not required for an equitable setoff and assert that the district court erred as a matter of law by relying on the lack of strict mutuality between the parties as a basis for denying equitable setoff to them. Collis and Hughes request a remand to the district court to determine the proper amount of setoff that should be allowed.
The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence a reasonable person might accept as sufficient to support a conclusion. See Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). An appellate court’s review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
At the posttrial hearing, the district court stated: “With respect to the mutuality issue, I also agree with [counsel for Mynatt] that there was not a claim presented in the pretrial order related to the K-l or against the corporation itself and, therefore, I do not believe that there is any mutuality which would be required for a set off.”
On appeal, Collis and Hughes do not challenge the district court’s finding that they did not make a claim against the corporation itself in the final pretrial order. Collis and Hughes assert, however, that the district court erred in failing to allow them an equitable setoff against the judgment granted to the corporation solely because the parties lacked strict mutuality. Collis and Hughes contend that under equitable principles, a court is not bound by the fiction of a corporate entity and, thus, argue they did not need to plead or prove veil-piercing for the court to evaluate their claim for setoff against Mynatt and Mynatt Truck.
The thrust of Collis and Hughes’ contention is that there is a well-recognized exception to the requirement of strict mutuality when a court’s equitable powers are invoked. They maintain that when equitable setoff is requested, a court cannot simply deny setoff based on lack of mutuality alone, but must proceed to consider the facts and circumstances of the case before denying setoff.
In support of their contention that the exception to strict mutuality is well-recognized, Collis and Hughes cite three foreign cases: Black & Decker Mfg. Co. v. Union Tr. Co., 53 Ohio App. 356, 4 N.E.2d 929 (1936); Poultry Growers v. Westark Prod. Cred., 246 Ark. 995, 440 S.W.2d 531 (1969); and Feucht v. Real Silk Hosiery Mills, Inc., 105 Ind. App. 405, 12 N.E.2d 1023 (1938).
Collis and Hughes also contend that the appellate courts of Kansas have recognized the equitable exception to strict mutuality in various contexts in Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 635 P.2d 1248 (1981); Atchison County Farmers Union Co-op Assn v. Turnbull, 241 Kan. 357, 736 P.2d 917 (1987); Taylor v. Taylor, 180 Kan. 213, 303 P.2d 133 (1956); Docking v. Commercial National Bank, 118 Kan. 566, 235 Pac. 1044 (1925); and in Pierce v. Security Co., 60 Kan. 164, 55 Pac. 853 (1899). They claim that in Carson tire Court of Appeals indicated that a court’s failure to consider equitable setoff based solely on a lack of strict mutuality would be error.
Mynatt and Mynatt Truck present a two-part argument in support of the district court’s decision not to allow Collis and Hughes a setoff. First, Mynatt and Mynatt Truck maintain that Kansas case law requires mutuality, i.e., that the judgments be between the same parties, for setoff. They contend that the Kansas cases cited by Collis and Hughes did not concern nonmutual claims. In support, they cite Alexander v. Clarkson, 100 Kan. 294, 164 Pac. 294 (1917); State ex rel. Stephan v. Commemorative Service Corp., 16 Kan. App. 2d 389, 823 P.2d 831 (1991); and Mohr v. State Bank of Stanley, 244 Kan. 555, 770 P.2d 466 (1989). Second, Mynatt and Mynatt Truck declare that even though an exception to the requirement of mutuality has not been specifically recognized in Kansas, should this court recognize the exception cited in Collis and Hughes’ brief, Collis would fail to pass its application.
In Atchison County Farmers Union Co-op Ass’n, defendant Turnbull sought to set off his co-op equity credit account against a debt he owed to die plaintiff co-op on an open account. Equity credits are not an indebtedness presently due and payable, but instead represent an interest to be paid at an unspecified later date determined by the board of directors. Thus, Turnbull sought to set off an unmatured interest against a presently due judgment.
The bylaws of the co-op specified that equity credit accounts could be retired for members attaining age 65 or moving their farm operation from the co-op’s territory. Turnbull argued that since he had not farmed since 1983, had not produced agricultural products since 1981, and had lost his home and all of his farmland, principles of equity required that he be allowed to set off his co-op equity credits against his debt. There, this court recited the applicable rules relative to the case:
“To allow a debt not maturing during an action to be set off against one already due would be to change the contract and advance the time of payment. Equitable setoffs of unmatured obligations may be allowed under special circumstances, such as insolvency of tire obligor or probable difficulty in collecting the obligation at maturity, but such setoffs are largely within the court’s discretion.” 241 Kan. at 361.
“An equitable setoff will be allowed when the party seeking it shows some equitable ground therefor, and it is necessary to promote justice, to avoid or prevent wrong or irremediable injustice, or to give effect to a clear equity of the party seeking it. There is some authority to the effect that the equitable grounds which will warrant overriding the statutory law have been limited to insolvency or nonresidence, but it is generally held that these are not the sole grounds. 80 C.J.S., Set-off and Counterclaim § 5.” 241 Kan. at 362.
The trial judge overrode the co-op’s bylaws and statutory law, adopting the principle of equitable setoff due to insolvency, and allowed Turnbull to set off his equity credits. On appeal, this court considered whether the trial judge could override statutory law (on cooperatives) and apply equitable principles, or whether the legislature had made a statement of public policy prohibiting the application of equity. Noting that “the granting or withholding of relief properly depends upon considerations of public interest,” this court found that the declared public policy of Kansas was to encourage cooperative marketing associations. This court thus held that the “trial judge could neither grant an equitable setoff to Turn-bull nor substitute his judgment for the Co-op’s board of directors.” 241 Kan. at 363.
Atchison County Farmers Union Co-op Ass’n involves mutual but not coexistent (presently due) debts. Because the question of nonmutual claims is not the focus of the decision, the case is not clearly on point.
Likewise, in Taylor v. Taylor, 180 Kan. 213, 303 P.2d 133 (1956), there was no question of mutuality of the parties because “certainly in an action for divorce and division of property there is mutuality of parties and of claims.” 180 Kan. at. 218.
Docking, 118 Kan. 566, was a case where the receiver of an insolvent bank sought to establish the priority of his claim on a deposit account set up by the insolvent bank at Commercial National Bank. Commercial National Bank argued that its right to set off the indebtedness of the insolvent bank against the deposit account superceded the right of the receiver to the funds. Again, this case involves priority of claims on a deposit account and does not directly concern the question of mutuality between parties requesting a setoff of judgments.
In Pierce, 60 Kan. 164, the court considered whether a stockholder in a Kansas corporation who was statutorily hable to corporate creditors could, by way of setoff or defense, extinguish his liability to a judgment creditor of the corporation because the corporation was indebted to him on claims and demands greater than the value of his stock that accrued before he became hable to the third party as a stockholder. Under the statute, any creditor could institute an independent action against any stockholder for enforcement of corporate debts up to the value of his or her stock. 60 Kan. at 166.
The Pierce court found that “[t]he claim of the stockholder is not a set-off in its technical legal sense, but it is an equitable defense which he is entitled to make.” 60 Kan. at 165. Whether the Pierce court was alluding to the lack of mutuality of the parties or pointing to the fact that the obligations did not arise from the same transaction is unclear. Because the Pierce court characterizes the claim of the defendant as an equitable defense, not a setoff, we decline to rely on Pierce as supporting the proposition that mutuality is not required for equitable setoff.
Carson, 6 Kan. App. 2d 776, the final Kansas case cited by Collis and Hughes, involved several lawsuits consolidated on appeal which arose after the herbicide Paraquat, manufactured by Chevron Chemical Co., failed to kill existing weeds after being applied to the no-till acreage of several farmers. In discussing the Carson case, the description of that case’s complicated procedural history has been simplified to focus solely on the issue important here.
The second part of the Carson appeal discussed district court case No. 77-C-4, where Donald Johnson brought suit against de fendants Chevron Chemical Company and Waits Homegas, Inc., the retailer and applicator of the herbicide. Waits counterclaimed against Johnson for the amount of the herbicide bill. Almost 2 years before the jury verdict, Johnson assigned to Collingwood Grain Company tire right to receive up to $50,000 of any proceeds awarded to him in the case after attorney fees were deducted. The jury awarded judgment to Johnson against Chevron in the amount of $28,350 and against Waits in the amount of $5,000. In addition, the jury awarded Waits $3,360 on its counterclaim against Johnson. After the verdict, Collingwood Grain filed a motion to intervene and asserted its right to priority in the judgments awarded to Johnson.
The district court held that Johnson’s assignment to Collingwood Grain was valid, denied setoff of Waits’ judgment against Johnson, and held that when Waits paid the judgment due, the proceeds should be forwarded to Collingwood Grain pursuant to its assignment. Waits appealed, asserting that the trial court erred in finding that no right of setoff existed.
The Court of Appeals refused to overturn the trial court’s denial of setoff, stating that it was “apparent from the record that the trial court was cognizant of the rule in Taylor and was exercising its discretion in ordering that there be no setoff.” 6 Kan. App. 2d at 793. The Court of Appeals noted that the trial court did not deny Waits’ request because the possibility of a setoff did not exist, but rather justified its decision based on the trial court’s discretionary power discussed in Taylor, which stated:
“ ‘It may be conceded that the mere fact that mutual judgments exist does not as a matter of right entitle a party to have one set off against that of tire other. It has often been held, however, that a setoff as between judgments is within the discretion of the court to which the application is made, that the court shall take into consideration the equities between the parties or those claiming under them with notice thereof, and that if the court to which the application is made allows the setoff, it will only be disturbed in a case such as is under consideration here where it appears that the setoff has operated to the prejudice of a third party without notice of the equities when an assignment has been made to him and he complains.’ [Taylor]180 Kan. at 218.
“ ‘The mere existence of mutual judgments, though rendered in the same court and about the same time, does not entitle a party to an order or judgment of setting one of them off against the other upon demand.
“ “Whether the power to set off judgments shall be exercised is to be determined in every case upon equitable considerations, and it will never be done where it will operate as an injustice or infringe upon the substantial rights of others.’ [Citation omitted.]” 6 Kan. App. 2d at 793.
Our review of Carson reveals that mutuality between Waits and Johnson was not in question and, thus, does not serve as justification for Collis and Hughes’ proposition that strict mutuality is not required.
We turn now to the Kansas cases cited by Mynatt and Mynatt Truck. In Alexander, 100 Kan. 294, the court considered whether an equitable setoff should be allowed where one party had assigned his interest in a favorable judgment from the litigation to a bank. First, the court noted: “There is no objection to an equitable proceeding to set off one judgment against another unless intervening rights are prejudiced thereby.” 100 Kan. at 297. Because a bank had acquired the assignment of Clarkson’s judgment against Alexander and it was subject to a lien, the court saw no way to allow a setoff. The Alexander court stated:
“ ‘The existence of mutual judgments does not entitle a party to have one set off against the other arbitrarily as a matter of right. Whether application for set-off is by motion or through a proceeding in equity, it is to be determined upon equitable considerations, and is only allowed when it will promote substantial justice. This was the ruling in Herman v. Miller, 17 Kan. 328, where it was said that “the exercise of that power is in a measure discretionary, and it will not be exercised in cases in which it would be inequitable so to do.” [Citations omitted.]
“ ‘The setting off of one judgment against another is not a legal right, but is a matter of grace, and the question whether a set-off should or should not be decreed rests in the sound discretion of the court to which the application is made. . . . The action of a court of law in granting or refusing a set-off is governed by the principles of equity and justice, and allowed only where good conscience requires it. It will never be permitted when the effect would be to deprive a party of his legal rights.” 100 Kan. at. 298.
“Before one judgment can be set off against another judgment there must be mutuality in those judgments and no contravening equities." 100 Kan. 294, Syl. ¶2.
Because the assignments of the judgments sought to be set off attached before the proceeding to set off the judgments had begun, the Alexander court found the judgments were not mutual and were never coexistent cross-demands in the hands of the parties. Thus, the court foreclosed the possibility of a setoff.
In Commemorative Service Corp., 16 Kan. App. 2d 389, the Court of Appeals held that an individual defendant in a breach of contract action involving the sale of burial markers on a preneed basis through nine cemetery corporations could not set off amounts owed to him by the new owners of the corporations from the damages award against him because the new owners were not parties to the action. The court found that the defendant “seeks a remedy which is not possible within the context of tire current litigation. The parties whom he contends he should be allowed to set off against are not parties to this action, and, obviously, he will have to seek another forum in which to assert those claims.” 16 Kan. App. 2d at 407.
In Mohr, 244 Kan. 555, Tri-County, a farm implement dealership, obtained a judgment against the State Bank of Stanley (Stanley Bank) for recovery on checks forged by James Lloyd, a co-owner of Tri-County who had embezzled money from the company. Stanley Bank based its claim for setoff on Kansas Bankers Surety Company’s (KBS) (surety for the bank) liquidated contract claim against Tri-County. The trial court denied Stanley Bank’s motion for setoff and Stanley Bank appealed. There, this court wrote:
“Stanley Bank claims a right of setoff based on claims of KBS, not Stanley Bank. KBS is not a party to this action. Both KBS and its assignor, John Deere, contested previous efforts to bring them into this litigation.
“In Alexander v. Clarkson, 100 Kan. 294, 299, 164 Pac. 294 (1917), which is cited by Stanley Bank, this court found that there could be no setoff because the two judgments involved were not mutual. Stanley Bank relies on Herman v. Miller, 17 Kan. 328, 332 (1876). In Miller this court said, ‘[A] party must be the absolute and beneficial owner of a judgment before he can have it off-set a judgment against him.’
“KBS is obligated to reimburse Stanley Bank for the judgment in favor of TriCounty; however, KBS is not a party to this action and its claims against TriCounty arise from its setdement with John Deere, not its role as surety for Stanley Bank. The judgment against Stanley Bank and the claims against Tri-County are not mutual for purposes of setoff. In addition, KBS’ claims against Tri-County were not matured at the time of Stanley Bank’s motion for setoff. . . . It was not an abuse of discretion for Judge Bouska in case No. 61,167 to deny Stanley Bank’s motion for setoff.
“At the hearing on the various motions, the attorney for KBS and Stanley Bank requested an evidentiary hearing on the factual issues raised by the motions. Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 635 P.2d 1248 (1981), is cited in support of the argument that an evidentiary hearing should have been held on the motion for setoff. In Carson, the trial court conducted a post-judgment hearing to determine the priorities in the proceeds of the judgment. The Court of Appeals did not address the issue of the appropriateness of an evidentiary hearing.
“In Carson, it was clear that mutual judgments were involved; therefore, the trial court found it necessary to conduct an evidentiary hearing.
“In the case at bar, it is clear, without any evidentiary hearing, that mutuality does not exist between Stanley Bank and Tri-County. Stanley Bank is not attempting to offset its own claim, but the claim of KBS, which is not a party to this action. In addition, even if there were mutuality, there is no judgment upon which to base a setoff. An evidentiary hearing was not necessary to malee such a determination.” 244 Kan. at 565-66.
From tire Kansas cases cited by the parties, we are able to synthesize the following general precepts are applied by Kansas courts. First, setoff requires mutuality, meaning that the same parties owe a sum of money to each other. There must be at least two distinct debts or judgments that have matured at the time of the motion for setoff. The entities indebted to one another must both be parties to the litigation. In addition, the parties’ judgments or debts must coexist, i.e., both must be determined, presently due, and owing at the time of setoff. A district court need not conduct a postjudgment evidentiary hearing unless it is clear mutual coexisting judgments are involved. Further, the party seeking equitable setoff must demonstrate equitable grounds for its application. The setoff must not prejudice intervening rights. Moreover, an equitable setoff will not be upheld on appeal where it contradicts public policy. Finally, equitable setoff is not a legal right, but is a matter of grace, and the question whether a setoff should be decreed rests in the sound discretion of the court to which the application is made.
Although the district court properly denied equitable setoff based on the lack of strict mutuality between the parties, it is clear from the record that the district court considered tire scope of the wrongful conduct of both parties and balanced the equities of both parties in coming to a decision. Collis and Hughes admit in their brief that the district court performed a balancing test of the respective wrongdoing of the parties. A party seeking equitable setoff must demonstrate equitable grounds for its operation. In its memorandum decision, the district court wrote that given the
“knowledge of any wrongful conduct by Mynatt vis-a-vis the corporation, and the far greater scope of Collis’ wrongful conduct, the court finds that a direct action by Collis against Mynatt personally should not be allowed here as it would ‘interfere with a fair distribution of the recovery among interested persons.’ ”
This statement is an indication that the district court did not find that Collis and Hughes had demonstrated equitable grounds for the application of the remedy of equitable setoff.
Mynatt and Mynatt Truck also maintain on appeal that (1) the unclean hands doctrine bars Collis from obtaining an equitable setoff; (2) Collis and Hughes cannot set off claims against Mynatt individually due to their failure to allege or prove a claim for alter ego or piercing the corporate veil; and (3) Collis and Hughes may not set off claims since the trial court did not find they were damaged. Because we are upholding the district court’s decision to deny equitable setoff for the reasons discussed above, we need not address the remaining assertions of Mynatt and Mynatt Truck.
II. PUNITIVE DAMAGES
Next, Collis asserts that the district court erred by granting punitive damages.
In Hawkinson v. Bennett, 265 Kan. 564, 605-06, 962 P.2d 445 (1998), this court detailed the proper standard of review in regard to an award of punitive damages. There, citing Smith v. Printup, 262 Kan. 587, 596, 938 P.2d 1261 (1997), we stated: “Prior to the enactment of K.S.A. 60-3701 and 60-3702, which places the calculation of the amount of punitive damages with the trial court instead of a jury, we applied an abuse of discretion standard when reviewing a punitive damages award. [Citations omitted.]” The Smith court further explained:
“ ‘Subject to the provisions of K.S.A. 60-3701, the standard of review remains one of abuse of discretion. We must first determine whether the provisions of K.S.A. 60-3701 have been applied by the trial court in setting the amount of punitive damages. Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion, which is another way of saying that the action of the trial court was arbitrary, capricious, or unreasonable. See Ensminger v. Terminix Intern. Co., 102 F.3d 1571 (10th Cir. 1996). We also have stated that ‘[wjhen determining the amount of punitive damages to be awarded under K.S.A. 1992 Supp. 60-3701, it is incumbent on the trial court to make sufficient findings of fact to afford meaningful appellate review thereof.’ [Quoting Gillespie v. Seymour, 253 Kan. 169, Syl. 1, 853 P.2d 692 (1993) ('Gillespie II.)]” 262 Kan. 597.
“Punitive damages, as well as actual damages, are proper where a breach of fiduciary duty is involved.” Newton v. Homblower, Inc., 224 Kan. 506, Syl. ¶ 13, 582 P.2d 1136 (1978).
“To warrant an award of punitive damages, a party must prove to the trier of fact by clear and convincing evidence that tire party against whom the damages are sought acted with willful or wanton conduct, fraud, or malice.” First Savings Bank, F.S.B. v. Frey, 29 Kan. App. 2d 436, 441, 27 P.3d 934 (2001) (citing Reeves v. Carlson, 266 Kan. 310, 313, 969 P.2d 252 [1998], and K.S.A. 60-3702[c]).
Without contesting the district court’s finding that Collis acted fraudulently and willfully, Collis and Hughes maintain that the district court failed to correctly apply K.S.A. 60-3702 in its determination of punitive damages.
Mynatt and Mynatt Truck maintain that the district court properly considered the list of seven factors in K.S.A. 60-3702(b) which a court “may” consider in awarding punitive damages.
First, Collis and Hughes contend that the punitive damage award should be reversed because the district court failed to consider the factors listed in K.S.A. 60-3702(b)(6) and (7). They argue that the district court did not look at these factors because the court did not set forth any findings regarding Collis’ financial situation or the effect of the $299,523.48 compensatory award plus the $125,000 punitive damages award on the financial situation of Collis.
K.S.A. 60-3702(b)(l) through (7) lists statutory factors that may be used in determining the amount of the punitive damages award.
“(b) At a proceeding to determine the amount of exemplary or punitive damages to be awarded under this section, the court may consider:
(1) The likelihood at the time of the alleged misconduct that serious harm would arise from the defendant’s misconduct;
(2) the degree of the defendant’s awareness of that likelihood;
(3) the profitability of the defendant’s misconduct;
(4) the duration of the misconduct and any intentional concealment of it;
(5) the attitude and conduct of the defendant upon discovery of the misconduct;
(6) the financial condition of the defendant; and
(7) the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplary and punitive damage awards to persons in situations similar to those of the claimant and the severity of the criminal penalties to which the defendant has been or may be subjected.”
We find that the district court properly considered the factors listed in K.S.A. 60-3702(b) when it made its determination regarding punitive damages. The memorandum decision of the district court stated:
“14. Even when punitive damages may be awarded, whether to award them remains discretionary with the court. If awarded, a series of factors as set forth in K.S.A. 60-3702(b) are to be considered in determining the amount of those damages.
“15. Here, consideration of those factors suggests a significant award of punitive damages. Collis knew tliat serious harm would result from his misconduct. He knew that his misconduct would result in substantial financial gain for himself to the detriment of Mynatt and Mynatt Truck. Collis intentionally concealed his misconduct from Mynatt and Mynatt Truck, using the trust he had been given (in being virtually the sole person handling accounting functions) to hide his deceit.”
In Smith, this court found:
“Punitive damages are in the nature of an equitable action. [Citation omitted.] The trial court must weigh the evidence presented to arrive at an award. In this case, the court carefully considered the provisions of K.S.A. 60-3701(b)(l)-(7). While the court does not make explicit the facts it found relevant for each factor, see e.g., Patton v. TIC United Corp., 859 F. Supp 509 (D. Kan. 1994), ajfd 77 F.3d 1235 (10th Cir.), cert denied 135 L. Ed. 2d 1049 (1996), it is clear that the decision was made with the statutory provisions in mind.” 262 Kan. at 600-01.
We find that even though the district court did not make an explicit statement of the facts relevant in its consideration of K.S.A. 60-3702(b)(6) and (7), the record reflects that the court considered all the statutory factors when making its determination regarding punitive damages.
Collis and Hughes further maintain that the punitive damages award constitutes an improper reward to Mynatt, the only other shareholder of Mynatt Truck, because he also engaged in inappropriate conduct toward the corporation. They argue that if the public policy in favor of punitive damages is to deter such inappropriate conduct, the contrary is accomplished by rewarding the majority shareholder’s wrongful conduct.
Mynatt and Mynatt Truck contend that the district court’s memorandum decision evidences its consideration of Mynatt’s conduct and assert that Collis’ own admissions at trial provide ample evidence of his willful or wanton conduct, fraud, or malice which justify the court’s punitive damage award.
Here, the district court stated:
“16. Plaintiffs have sustained substantial attorney fees in pursuing this action. Because of Collis’ actions in concealing his conduct, including the blacking out of records of his expenses and the concealment of other records, the expense in pursuing this action was significantly greater than it otherwise would have been. The court has reviewed the attorney fee billings of the plaintiffs.
“17. The court awards punitive damages in the amount of $125,000, which is the approximate amount of plaintiff s attorney fees and less than the maximum punitive damages that may be awarded under K.S.A. 60-3702(f). While the court recognizes that plaintiffs have had some attorney fee expenses after trial, so that this award will not completely pay plaintiffs’ attorney fees, it believes that it is a fair punitive damage award on the facts found here. Some of Mynatt’s own actions certainly encouraged sloppy, and sometimes illegal (with respect to the Internal Revenue Service), business practices at Mynatt Truck. While this does not excuse the conduct found here by Collis, it does militate somewhat against a higher punitive damage award.
“18. Plaintiffs have asked the court to specifically find that Collis’ liability arises out of his fraud or defalcation while acting in a fiduciary capacity. If our language has been reasonably clear thus far, we trust that the findings we have already announced here satisfy plaintiffs’ request. The court specifically finds that the damages awarded above for $46,928.45 in credit card charges that were Collis’ personal expenses paid for by the corporation; for $13,481.19 for credit card charges paid for the benefit of Collis’ wife; for $39,964.43 for checks payable to cash; for $36,090.36 for checks written to various third parties for Collis’ benefit; for $13,800 for unauthorized trade-outs; and for $2,074.62 for the checks for personal benefit as set forth in category F on Exhibit HHHH all arose out of Collis’ fraud or defalcation while acting in a fiduciary capacity.”
We have previously stated:
“ ‘Punitive damages are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his or her wrongful acts and that it is proper for the public to impose them upon the defendant. No right of action for punitive dam ages is. ever given to any private individual who has suffered no real or actual damage.’ [Citation omitted.]
As one commentator explains:
“ ‘Punitive damages may be contrasted with compensatory damages, special damages, contract damages, restitution, or equitable damages, which, in contrast to punitive damages, are measured by the difference in the position of the party after the wrong as compared to that party’s position before the wrong. These compensatory, special, contract, restitution or equitable damages are not intended to improve the position of the party injured or damaged as a practical consequence of their award.
“ ‘Indeed, punitive damages do not depend on the financial condition of the party wronged, but rather upon the financial wherewithal of the party at fault who has acted maliciously or oppressively. The amount of punitive damages is often said to be based upon tire sum that is perceived to punish or to deter tire offending conduct. That sum may depend upon the financial size and strengdr of the defendant, the degree of the community’s outrage, and other factors. Punitive damages, accordingly, may enrich the recovering party, who obtains a windfall to the extent that he is placed in a better position tiran he enjoyed before tire offensive conduct occurred.’ [Citation omitted.]” Smith, 262 Kan. at 602-03.
Here, the district court awarded punitive damages because Col-Ms’ liability arose out of his fraud or defalcation while acting in a fiduciary capacity. The district court did not find that Mynatt’s actions constituted a breach of his fiduciary duties; rather, it found his conduct “encouraged sloppy, and sometimes illegal .. . business practices.” The district court carefully considered the effect of the punitive damage award on both parties. The award did not improve Mynatt and Mynatt Truck’s position because it did not completely cover their attorney fees. The punitive damages awarded were in an amount less than the maximum punitive damages that could have been awarded under K.S.A. 60-3702(f). Further, it was appropriate for the district court to consider the amount of Mynatt and Mynatt Truck’s attorney fees in its punitive damages computation. “Attorney fees and costs of litigation may be taken into consideration in arriving at the amount of punitive damages in an appropriate case. [Citation omitted.]” Newton, 224 Kan. 506, Syl. ¶ 14. The district court apphed the provisions of K.S.A. 60-3701 and did not act arbitrarily, capriciously, or unreasonably in awarding punitive damages against Col lis. We therefore hold that the district court did not abuse its discretion in awarding punitive damages.
Affirmed.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator s office against the respondent, Steven S. Griswold, an attorney admitted to the practice of law in Kansas, whose last known registration address was in Leawood, Kansas, alleging violations of the Kansas Rules of Professional Conduct (KRPC) 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence); 1.4(a) (2001 Kan. Ct. R. Annot. 334) (communication); 3.2 (2001 Kan. Ct. R. Annot. 398) (expediting litigation); 5.5(a) (2001 Kan. Ct. R. Annot. 424) (unauthorized practice of law); 8.1(b) (2001 Kan. Ct. R. Annot. 433) (bar admission and disciplinary matters); and 8.4(a) and (d) (2001 Kan. Ct. R. Annot. 437) (misconduct). We disbar the respondent from the practice of law in the State of Kansas.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on March 26, 2002. Respondent failed to appear. The panel received exhibits into evidence and heard the testimony of Joyce Bums.
After hearing the testimony presented and the arguments of the Disciplinaiy Administrator, and after reviewing the exhibits admitted into evidence, the panel made the following findings of fact:
“1. . . . On October 13, 1989, the Missouri Supreme Court admitted the Respondent to the practice of law in the state of Missouri. Then, on May 1, 1996, the Kansas Supreme Court admitted the Respondent to the practice of law in the state of Kansas. The Respondent’s date of birth is November 3, 1963.
“2. In 1998, tire Respondent failed to pay the annual attorney registration fee, failed to comply with the continuing legal education requirements, and failed to pay the annual Kansas Continuing Legal Education Commission fee. Thereafter, on November 4, 1998, the Kansas Supreme Court suspended die Respondent from the practice of law in the state of Kansas. The Respondent’s license to practice law in the state of Kansas remains suspended.
“3. From 1995 through 2000, the Respondent repeatedly failed to timely comply with the annual licensing requirements and continuing legal education requirements for the state of Missouri. As a result, the Respondent’s license was not in good standing in Missouri.
“4. In 1997, Wes DeMarco retained the Respondent to handle a claim for back pay against a former employer. The Respondent failed to diligently prosecute the claim. Additionally, the Respondent failed to return Mr. DeMarco’s telephone calls and to keep Mr. DeMarco advised of the status of the claim.
“5. In 1999, the Reagan Car Finance, Inc., engaged the Respondent to file and prosecute garnishments. The Respondent failed to prosecute the garnishments with diligence. The Respondent failed to advise his client of the status of the matters and the Respondent failed to return telephone calls.
“6. The Respondent’s misconduct, stemming from his representation of Mr. DeMarco and Reagan Car Finance, Inc., was reported to the Missouri disciplinary authorities. During the disciplinary investigation, the Respondent failed to provide information as requested.
“7. On October 24, 2000, the Missouri disciplinary authority forwarded an Information to the Respondent’s last registration address. The Respondent failed to claim the certified letter containing the Information. As a result, the Missouri disciplinary authorities published notice to the Respondent. The Respondent failed to answer the Information and the Respondent failed to request a hearing on the matter.
“8. On March 28, 2001, the Missouri Supreme Court disbarred the Respondent.
“9. On February 14, 2002, the Disciplinary Administrator filed the Formal Complaint in this matter. Also on February 14, 2002, the Disciplinary Administrator forwarded two copies of the Formal Complaint to the Respondent. One copy was sent via certified mail and one copy was sent via regular mail. The copy sent via certified mail was returned marked unclaimed. The copy sent via regular mail was not returned.
“10. On March 4, 2002, the Disciplinary Administrator filed an Amended Notice of Hearing in this matter. The Amended Notice of Hearing stated that the Respondent was entitled to be represented by counsel, to cross-examine witnesses, and to present evidence. The Amended Notice of Hearing also stated the date and place of the hearing. Also on March 4, 2002, the Disciplinary Administrator forwarded two copies of the Amended Notice of Hearing to the Respondent. One copy was sent via certified mail and one copy was sent via regular mail. The copy sent via certified mail had not been claimed at the time of the hearing. The copy sent via regular mail was not returned.
“11. The Respondent failed to answer the Formal Complaint filed in this matter. Additionally, the Respondent failed to appear at the hearing.”
The panel noted that the Notice of Hearing, sent prior to the Amended Notice of Hearing, had included the incorrect hearing date and Hearing Panel.
The panel made the following conclusions of law:
“1. Kan. Sup. Ct. R. 211(d) and Kan. Sup. Ct. R, 215 governs service of process in disciplinaiy proceedings. Kan. Sup. Ct. R. 211(d) provides:
‘The Disciplinary Administrator shall serve a notice of hearing upon the respondent, respondent’s counsel, and the complaining parties. The notice shall state that the respondent is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence. The notice shall also state the date and place of the hearing and shall be served at least fifteen days in advance of the hearing date. . . .’
Kan. Sup. Ct. R. 215, provides, in pertinent part, as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on die attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 211(d) by sending a copy of the Amended Notice of Hearing to the Respondent’s last registration address more than fifteen days in advance of the hearing. The Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint via certified United States mail, postage prepaid, to the Respondent’s most recent registration address. Therefore, the Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“2. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ Based upon the evidence presented at the hearing, including Disciplinary Administrator’s Exhibits A and B, and pursuant to Kan. Sup. Ct. R. 202, tire Hearing Panel concludes that the Respondent engaged in misconduct and violated KRPC 1.3, KRPC 1.4(a), KRPC 3.2, KRPC 5.5(a), KRPC 8.1(b), KRPC 8.4(a), and KRPC 8.4(d).”
The panel stated in a footnote:
“It is important to note that the Missouri Supreme Court found that the Respondent violated Missouri Supreme Court Rules 4-1.3, 4-1.4(a), 4-3.2, 4-5.5(c), 4-8.1(b), 4-8.4(a), and 4-8.4(d). Missouri Supreme Court Rules 4-1.3, 4-1.4(a), 4- 3.2, 4-8.1(b), 4-8.4(d) are identical to KRPC 1.3, KRPC 3.2, KRPC 8.1(b), KRPC 8.4(a), and KRPC 8.4(d), respectively.
“The Kansas Supreme Court Rules do not contain a provision similar to Missouri Supreme Court Rule 4-5.5(c). That section provides that a lawyer shall not practice law in Missouri if the lawyer is subject to Rule 15 and, because of failure to comply with Rule 15, The Missouri Bar has referred the lawyer’s name to the chief disciplinary counsel of the Commission on Retirement, Removal and Discipline.’ However, the misconduct engaged in by the Respondent in that regard falls within KRPC 5.5(a).”
The panel further found:
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. DeMarco and Reagan Car Finance, Inc., the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ The Respondent failed to keep Mr. DeMarco and Reagan Car Finance, Inc., informed regarding the status of their cases. Additionally, the Respondent failed to return numerous telephone calls to Mr. DeMarco and Reagan Car Finance, Inc. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. Because the Respondent failed to make reasonable efforts to expedite litigation consistent with the interests of Mr. DeMarco and Reagan Car Finance, Inc., the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“6. KRPC 5.5(a) provides that ‘[a] lawyer shall not . . . practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.’ In this case, even though the Respondent was not an attorney in good standing in the state of Missouri, he continued to practice law. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a).
“7. The Respondent also violated KRPC 8.1(b). That rule provides:
‘[A] lawyer ... in connection with a disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from [a] disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.’
The Respondent failed to respond to requests from the Missouri disciplinary authorities during the disciplinary investigation. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b).
“8. KRPC 8.4 provides, in pertinent part, as follows:
‘It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(d) engage in conduct that is prejudicial to the administration of justice.’
The Respondent violated KRPC 8.4(a) and KRPC 8.4(d), as detailed below:
a. The Respondent violated KRPC 8.4(a) by violating KRPC 1.3, KRPC 1.4(a), KRPC 3.2, KRPC 5.5(a), and KRPC 8.1(b).
b. The Respondent engaged in conduct that was ‘prejudicial to the administration of justice,’ when the Respondent failed to provide diligent representation, when the Respondent failed to provide reasonable communication, and when he failed to expedite litigation consistent with the interests of his clients. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“9. Kan. Sup. Ct. R. 211(b) provides, in pertinent part:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).”
The panel made the following recommendations as to discipline:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. Additionally, the Respondent violated his duty to the legal profession when he failed to cooperate in the disciplinary investigation in Missouri.
“Mental State. The Respondent knowingly violated his duty to his clients and to the legal profession.
“Injury. The legal profession suffered an injury when the Respondent failed to cooperate in the disciplinary investigation.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when he failed to provide diligent representation and adequate communication to Mr. DeMarco and Reagan Car Finance, Inc.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4(a), KRPC 3.2, KRPC 5.5(a), KRPC 8.1(b), KRPC 8.4(a), and KRPC 8.4(d). As such, the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to file an answer in this case.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent had not previously been disciplined.
“Imposition of Other Penalties or Sanctions. The Respondent has been disbarred in the state of Missouri.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.41. That standard provides that:
‘Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.’
In this case, the Respondent failed to provide diligent representation and adequate communication to two clients. Thereafter, the Respondent failed to participate in the disciplinary process.
“Based upon the above findings of fact and conclusions of law and based upon the decision of the Missouri Supreme Court, the Hearing Panel unanimously recommends that Respondent be disbarred.”
We note that the respondent, having been notified of these proceedings, failed to respond or appear before this court. This failure to appear constitutes a violation of Supreme Court Rule 212(d) (2001 Kan. Ct. R. Annot. 263).
We conclude the panel’s findings are established by clear and convincing evidence and adopt the panel’s conclusions of law and recommendation of discipline.
It Is Therefore Ordered that the respondent, Steven S. Griswold, be and he is hereby disbarred from the practice of law in the State of Kansas in accordance with Supreme Court Rule 203(a)(1) (2001 Kan. Ct. R. Annot. 224) for his violations of the KRPC and Supreme Court Rules.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Steven S. Griswold from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that respondent comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to the respondent.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by certain heirs of George W. Newton against his widow, Julia Newton, and others, to partition land in Kansas.
On April 5, 1915, Hattie Newton Caldwell and Lora Newton Barrett filed their original petition against Julia Newton, seeking partition of land in Mitchell county, and after the subsequent pleadings of the parties were filed and the issues made up the case was continued several times. In the meantime, and on April 27, 1916, plaintiffs filed an amended petition, which contained additional allegations to the effect that the deceased had owned land in Florida, and that Harry J. Tick-nor was claiming exclusive right of possession and title thereto against the plaintiffs and wrongfully excluding them from the possession of the land, but there was no allegation that he claimed any right or interest in the Kansas land. The prayer of the amended petition was that the plaintiffs be adjudged the owners of certain undivided interests in and entitled to the joint possession of all the real estate mentioned and that the same be partitioned, with the exception of the tract in Florida. Ticknor was made a party defendant, and was personally served in Mitchell county. The court sustained a motion by Julia Newton to strike out that portion of the amended petition relating to the Florida land and Ticknor’s claim thereto, but overruled her demurrer to the petition; and at the same time sustained a demurrer to the petition by Ticknor, who alleged as grounds therefor that there was an improper joinder of causes of action and that the facts stated were insufficient to constitute a causq of action against him. It does not appear , upon which ground the court sustained the demurrer. Plaintiffs appeal from the judgments of the trial court on the motion and demurrer.
It is contended that as Ticknor had been brought into court by personal service in an action in which the plaintiffs were seeking equitable relief they were entitled to have the owner ship of the Florida land determined in the action, and, if the facts warranted it, to a decree requiring Ticknor to convey the Florida land to the plaintiffs. The motion and the demurrer raise substantially the same question, and that is: whether or not the averments in the plaintiffs' petition entitled them to ask any relief against Ticknor in the present action. It is true the action was for the partition of Kansas land, and equitable relief was asked against the widow and the administrator of the Newton estate, but Ticknor has no interest in that land and no concern as to the partition of the same among others. It is conceded that a court of equity which has acquired jurisdiction of a party who holds or claims title to land in another state may determine, equities in such land of a character that may be enforced by process operating against the defendant and not against the land. The transfer and disposition of land are governed by the law of the state in which it is situated, and a decree of a court or a deed made in pursuance of such decree, except by the party in whom the title is vested, is of no force or effect outside of the jurisdiction of the court rendering it. (Watkins v. Holman et al., 41 U. S. 25; Northern Indiana Railroad Co. v. Michigan Central Railroad Co., 56 U. S. 233; Corbett v. Nutt, 77 U. S. 464; Davis v. Headley, 22 N. J. Eq. 115.)
It is well settled that actions involving title and possession of real property are local in character and can be tried only in the state wherein the land lies, but it is equally well settled that, jurisdiction having been acquired, equitable relief may be afforded without regard to the location of the subject matter where it is enforceable against the person of the defendant. (Gordon v. Munn, 81 Kan. 537, 106 Pac. 286; Rank v. Miller, 85 Kan. 272, 116 Pac. 884; Meador v. Manlove, 97 Kan. 706, 156 Pac. 731; Fall v. Eastin, 215 U. S. 1.) Chses for such equitable intervention were stated by Chief Justice Marshall in Massie v. Watts, 10 U. S. 148, where he said:
“But where the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.” (p. 158.)
No cognizable equities of the character designated are set forth by the plaintiffs against Ticknor. It was not alleged that there was any contract involved for which enforcement was asked, nor any averment indicating that there was a trust to be executed, and no fraud is charged upon which relief might be founded. The only question involved in this proceeding against Ticknor is the title and right of possession to lands in Florida. As to him the plaintiffs allege that they are the owners of the land, and that he claims the title and exclusive right of possession to the same and wrongfully excludes them from any possession or rights in the land. The averments are appropriate to a local action of ejectment triable by a jury in the jurisdiction where the land lies.
In a case note in 69 L. R. A. 673, wherein many authorities bearing upon this question are collated, it is said:
“It follows that a court of equity of one state or country will not assume jurisdiction of a suit that in its essence involves merely the title or possession of land in another, and presents no ground of equitable intervention. In other words, if the action is one which, if it related to real property within the territorial jurisdiction, would be at law, and not in equity, a court of equity will not assume jurisdiction merely because, the property being beyond the territorial jurisdiction, a court of law cán not entertain an action in respect of it.” (p. 675. See, also, Note, 23 L. R. A., n. s., 924.)
The averments as tp Ticknor had no place in the action for the partition of land in Kansas in which he had no interest, and they did not state a cause of action against him triable in this state.
The judgment is affirmed. | [
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The opinion of the court was delivered by •
Johnston, C. J.:
This was an action of replevin brought by W. H. Cornwell to recover some live stock taken by The Farmers and Merchants National Bank of El Dorado, under a chattel mortgage. This is the second trial of the cause, an appeal having been taken from the judgment on the first trial. (Cornwell v. Moss, 95 Kan. 229, 147 Pac. 824.) At the last trial the jury found the plaintiff to be the owner of an undivided half interest in the property, valuing his interest at $383.50, and assessed damages in the sum of $671.50 because the bank wrongfully deprived plaintiff of the use of his property. The defendants appeal.
The relations of the parties and the facts giving rise to the plaintiff’s claim of ownership appear in the former opinion. (Cornwell v. Moss, supra.) Two questions are presented on this appeal: (1) Was the relationship between Phillips and the plaintiff in their farm enterprise a partnership, and (2) If there was such a partnership, can the plaintiff recover the usable value of the property wrongfully detained by the defendant bank.
In the former trial the jury made no special findings of fact. It does not appear how they arrived at their verdict that the plaintiff was the owner of a half interest; whether by virtue of the partnership contract with Phillips or through his purchase from Gann. On the appeal the cause was remanded for a new trial because evidence as to the prior mortgage was excluded, the court holding that the exclusion of this evidence would be material error if the jury had found (as they may have done) that Cornwell’s half interest was acquired through the purchase from Gann. In the last trial substantially the same issues were presented for determination as in the first and the verdict of the jury in the last involves a finding that a partnership existed between Phillips,, the owner of the unimprovel land, and the plaintiff who was to operate it.
On the contested issue of an equal partnership in the personal property there is testimony sufficient to sustain the finding of the jury. Evidence was produced to the effect that Phillips and the- plaintiff would carry on the farm operations as partners, each to furnish one-half of the personal property necessary to operate it, and each to have one-half the products of the farm or of that which resulted from the sale of personal property which they had upon the farm.
There is a contention that even if the partnership agreement was made the plaintiff failed to comply with it in respect to furnishing his share of the property used in operating the farm. It appears that the plaintiff furnished stock and implements of considerable value, and that Phillips also contributed considerable stock, the value of which is not fully shown. It is said that a mortgage upon the team of mules furnished by plaintiff was paid by Phillips, but there is testimony tending to show that in return for this payment plaintiff broke prairie, built fences, hauled material and performed other work for plaintiff outside of the partnership arrange ment. No controversy appears to have arisen between Phillip's and plaintiff as to compliance with the agreement that each should furnish one-half of the property necessary for operating the farm, and, therefore, there is little reason for or right in the defendant to raise that question. Quite a number of business transactions were had between Phillips and the plaintiff, including the division of the proceeds of the farm, and a complete settlement of all matters, including the payment made by Phillips on the mortgaged mules, was made, and a balance of $382 was found to be due to Phillips, which was paid. This settlement stands unchallenged between them. On the question of the plaintiff’s interest in the property involved, the verdict of the jury, based as it is on the evidence, must be deemed to be conclusive on this appeal.
The plaintiff being the owner of a half interest in the property, the question arises, Was he entitled to the usable value of the property wrongfully detained from him? It is contended that on account of the relationship of the parties, the usable value of plaintiff’s interest in the property is not recoverable, but the questions sought to be raised by the defendant on this issue appear to have been concluded by the decision in the former appeal. The issues in. the case are substantially the same as those involved in the review of the first judgment. In the former appeal the trial court instructed the jury that if the plaintiff was the owner and entitled to the possession of the property, or an undivided interest therein, and the defendant wrongfully deprived him of its possession, he would be entitled to recover the value of its use. On that appeal the defendant, in his brief, complained not of the rule of law stated in the instruction, but that the value fixed for the use was excessive. This complaint was examined and not sustained, the court saying:
“Where the property detained has a usable value in excess of the legal rate of interest, that is the ordinary measure of damages for the wrongful detention of personal property (34 Cyc. 1562), and this rule has been applied even where the amount allowed for its use for a short time has greatly exceeded the value of the property itself (Yandle v. Kingsbury, 17 Kan. 195).” (Cornwell v. Moss, 95 Kan. 229, 231, 147 Pac. 824.)
The questions as to the value of the use were directly involved in the former appeal, and were there determined, or might have been raised and determined therein. The rules laid down in the instruction’s then given became the law of the case in the subsequent trial, and from the record and decision on that appeal the trial court was warranted in assuming that the principles stated in the instructions given on the first trial might be safely stated and applied on the second trial. (Headley v. Challiss, 15 Kan. 602; Estes v. Zinc Co., 97 Kan. 774, 156 Pac. 758; 8 Cyc. 398; 4 C. J. 1093, 1100.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered a judgment for damages alleged to have been caused by the negligence of defendant’s agents and servants in moving certain freight cars against the' caboose, in which he was at the time, with such violence as to cause him serious injury. The action was under the federal employers’ liability act. The defendant appeals and assigns error in giving and refusing instructions and in overruling its motion for a new trial. The main contention, however, is that under the evidence it was error to instruct or find that the plaintiff at the time of the injury was engaged in interstate commerce.
Aside from this matter a careful examination of the record discloses no material error.
It is conceded that in order for the plaintiff to recover both parties must at the time of the injury have been engaged in interstate commerce. The salient facts of the case are that the plaintiff was a conductor of one of the defendant’s freight trains, from Wichita to Durand. On the morning of January 9, 1915, he arrived at Durand with his train containing about twenty-two cars, destined for Missouri, Texas and Louisiana. He registered in what is called the rest book, got lunch, went to his caboose and finished up his reports which took twenty or thirty minutes, and then went to bed in the caboose, as he had done for some fourteen years. At the expiration of eight hours and thirty minutes after arrival he was liable at any time to be called. About seven o’clock that evening he was called to leave with his train about eight-fifteen or eight-thirty. At about seven-fifteen or seven-twenty the collision occurred. He was required to report for duty thirty minutes before his train was to leave which that night would have been about seven-forty-five. When reporting for duty it was his task to go to the yard office, get the bills and other orders and get ready to go out on his run. When the collision occurred he was dressing preparatory to going and getting something to eat and then reporting for duty. Durand had very slight accommodations, and it had been and was the custom for train men to sleep in the caboose. There were interstate cars on the train that injured him. The collision occurred while making up the train on which the plaintiff was to run as conductor and which contained interstate cars.
The plaintiff testified that: “Thirty minutes before the train would go, I would go and get our orders and get-ready to go out. Our time begins at the time the train starts. The time it is called to leave.” The yardmaster had full charge as to making up trains and knew from the' registry where the plaintiff was and would have him called. The yard clerk called him on this occasion. He was one of the employees of the defendant and knew the plaintiff was staying in the caboose. The plaintiff was therefore an employee of the company, having come in and preparing to go out with an interstate train, although his pay would not begin until the starting of the return train. Was he at the time of the injury engaged in service in interstate commerce? The language of the act is:
“That every common carrier by railroad while engaged in commerce between any of the several states . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.” (Part 1, 35 U. S. Stat. at Large, ch. 149,•§ 1, p. 65.)
The test has been thus stated by the supreme court of the United States:
“Was the employe at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it.” (Shanks v. Bet., Lack & West. R. R., 239 U. S. 556, 558. See, also, Chi., Burlington and Q. R. R. v. Harrington, 241 U. S. 177, 180.)
To support his contention that he was within the terms of the act the plaintiff cites a list of decisions, each of which we have examined. Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, Missouri, K. & T. Ry. Co. v. United States, 231 U. S. 112; Second Employers’ Liability Cases, 223 U. S. 1, and N. Y. Central R. R. v. Carr, 238 U. S. 260, were cases so different from this as to the facts involved that their extended notice could avail nothing. The same may be said of Southern R. Co. v. Jacobs, 116 Va. 189; Findley v. Coal & Coke Ry. Co. (W. Va. 1915) 87 S. E. 198; and Bruckshaw v. Chicago R. I. & P. Ry. Co., (Iowa, 1915) 155 N. W. 273. The others we will refer to briefly. A fireman in the employ of an interstate railway carrier after inspecting, oiling, firing, and preparing his engine for an intrastate movement of a train containing some interstate cars was killed by a switch engine while he was attempting to cross the tracks between the engine and his boarding house. (Nor. Car. R. R. Co. v. Zachary, 232 U. S. 248.) The evidence tended to show that a train had come into a place in North Carolina from a point in Virginia; that a shifting crew were working the train so as to take two cars from it to be moved between two points in North Carolina by the engine on which the deceased was employed as fireman for the trip that was about to begin and had already prepared his engine for the purpose. In answer to the argument that his employment had not begun it was said:
“It seems to us, however, that his acts in inspecting, oiling, firing, and preparing his engine for the trip to Selma were acts performed as a part of interstate commerce, and the circumstance that the interstate freight cars had not as yet been coupled up is legally insignificant.” (p. 260.)
It was also said that assuming that when injured he was going to his boarding house it also appeared that he was shortly to depart upon his run, having just prepared his engine for the purpose and that he had not' gone beyond the limits of the railroad yard when he was struck.
“There is nothing to indicate that this brief visit to the boardinghouse was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear that the man was still ‘on duty,’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine.” (p. 260.)
It was held that there was at least evidence sufficient to go to the jury. The United States circuit court of appeals for the ninth circuit held in Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336, that a locomotive fireman in the employ of a railroad company engaged in interstate commerce ordered by' his superiors to report at a station to be transported to another station to relieve the crew of an interstate train and who, when approaching the station over a crossing was struck and killed through the negligence of other servants of the company also operating an interstate train was employed in interstate commerce at the time of his death. It was said in the opinion that the test is—
“What is its effect upon interstate commerce? Does it have the effect to hinder, delay, or interfere with such commerce? As applied to the present case, it is this: Was the relation of the employment of the deceased to interstate commerce such that the personal injury to him tended to delay or hinder the movement of a train engaged in interstate commerce? To that question we think there can be but one answer. Under the imperative command of his employer, the deceased was on his way to relieve, in the capacity of a fireman, the crew of a train which was carrying interstate commerce, and the effect of his death was to hinder and delay the movement of that train.” (p. 340.)
It seems that Lamphere was required to respond whenever ordered and that about seven-fifteen p. m. he was ordered to go from his home to the depot and there secure transportation and go on board a certain interstate train due at seven-forty-fiVe and proceed to another town and there relieve an engine crew which had been continuously employed more than .sixteen hours on an engine moving an interstate train. After receiving this order he hastened to the depot and had reached a crossing in the yards where the cars were cut out where the injury occurred. There is nothing showing when his pay began, but it is clear that he was acting in obedience to the order and engaged in carrying it out when the collision occurred. In United States v. Chicago, M. & P. S. Ry. Co., 197 Fed. 624, employees of a railroad company engaged in moving freight from an intermediate point on its line to another where it was taken up by regular trains for interstate shipments, were held to be employed in interstate commerce. It was also held that under the hours-of-service act brief periods allowed for meals should not be deducted from the time of service in order to break its continuity. In Chicago, K. & S. Ry. Co. v. Kindlesparker, 234 Fed. 1, it was decided by the circuit court of appeals for the sixth circuit that an engine withdrawn from the service for repairs and on being repaired again used to transport interstate commerce, though the repairs extended over several taionths, was not withdrawn from interstate commerce and that an employee injured while repairing it might sue under the federal employers’ liability act. It was pointed out that there is found in the decisions a marked distinction between injuries suffered by an employee engaged in repairing an instrument interstate in character and those received by an employee using or operating the same kind of an instrument while handling only intrastate traffic. ' It was said:
•“As to the repairer, his service partakes of the character of the instrumentality; as to the operative, his service partakes of the character of the traffic.” (p. 6.)
The case of Moyse v. Northern Pacific Ry. Co. et al., 41 Mont. 272, involved the question whether a freight conductor, required to be within call and expected to occupy the caboose of his train at night while awaiting the call to go on duty, and who had the right so to do and who so occupied it, was while so occupying it in the discharge of his duties though his pay stopped on his registering on arrival and would not begin until he was called to make his return trip, and it was held that he was in the discharge of his duties while so occupying the caboose. In the opinion, it was said:
“It is not at all conclusive that the pay of the plaintiff ceased when he registered in on his arrival at Butte. In the light of the evidence, under the contract of employment it was within the contemplation of both parties that he should hold himself subject to the order of the company after his pay had ceased; and it seems clear that a contract including a stipulation of this kind, express or implied, is hot open to any legal objection.” (p. 288.)
In Neil v. Idaho & Washington N. R. R., 22 Idaho, 74, the facts showed that a freight conductor had gone to the engine on the front end of his train consisting of about twenty cars of intrastate and interstate freight and had a conversation with his engineer and had given him his clearance card and was going back to his caboose Avhen he was struck by a SAvitch engine. He was unnecessarily walking on what was known as the scale track instead of walking on the space between the tracks and it was held that he was engaged in interstate commerce to the extent of getting his train ready for that purpose. It was said:
It seems to us that preparation was being made to have his train leave Spirit Lake, and that he was engaged in getting his train ready for the transportation of freight both within the state and beyond its boundaries, and that he was engaged in 'interstate commerce, within the méaning of that term as used in said act of Congress.” (p. 90.)
By the supreme court of Washington in Horton v. Oregon-Washington R. & Nav. Co., 72 Wash. 503, it was decided that a pumper at a pumping station for locomotives of a railroad engaged in both intrastate and interstate commerce who was furnished by the road with a small hand-car for going the two or .three miles from his home to the station, and who, while going to the station, was struck by-an interstate train, was in an employment having a substantial connection with interstate commerce and hence within the act. It was argued that the decedent Avas not actually and actively engaged in interstate commerce when killed, but the court said that he was going to the pumping station by means supplied by the master and was performing a necessary part of his employment in the manner contemplated by the master, and the situation was regarded as similar to that of Lamphere in his case against the Oregon Railroad and Navigation Company (196 Fed. 336). It was also remarked that if when the decedent was killed his place had not been supplied by another the movement of the train engaged in interstate commerce must have ceased and it was said that this demonstrated the real or substantial connection of his employment with such commerce.
In Easter v. Virginian Ry. Co., (W. Va. 1915), 86 S. E. 37, the plaintiff was a brakeman on a train employed in interstate traffic and was on the engine as the train entered the yard where he got off while it was moving slowly and waited until the caboose came up and then entered it for the purpose of washing and changing his clothing. After he had' completed his toilet he and a fellow brakeman started across the railroad yards and just as they approached the main track were struck by the tender of an engine running'backward down the track to the roundhouse. It was ruled that the brakeman was within the terms of the act, that the relation of master and servant does not necessarily terminate the instant the train reaches its destination in the yards or the servant ceases to labor, “but continues for a reasonable time thereafter to enable such employee to wash himself and change his soiled clothing, in the caboose provided with the conveniences therefor, before going to his lodging place; such being the custom of trainmen.” (Syl. ¶ 7.) It was further held that an hour was not, as a matter of law, an unreasonable time for proper preparations before leaving the train for his lodging place. In Peery v. Illinois C. R. Co., 123 Minn. 264, plaintiff was conductor of a freight train operated from Paducah to Fulton, about forty-five miles, and immediately back to Paducah the same day. The trains were almost wholly composed of interstate shipments. On the date of the injury he had taken an interstate train to Fulton and was returning without any interstate cars. It was said that his employment at the time was not independent of interstate commerce, that his daily routine related almost wholly thereto and that he was not injured while engaged in some work purely of intrastate character. In Graber v. Duluth, S. S. & A. R. Co., 159 Wis. 414, it was held that a brakeman, who, after finishing his regular duties after a run between two state points on a train which had some interstate cars in it, went to a saloon and from there started to cross over a train to go to the station and learn whether or not the conductor had any further orders for him and was injured while crossing such train, was employed in interstate commerce. It was held by the court of civil appeals of Texas, in C. R. I. & T. Rly. Co. v. Oldridge, 33 Tex. Civ. App. 436, that a brakeman who, in obedience to a custom claimed to exist, went to the railroad yard while his train was being made up and entered the caboose where he was injured, could not be deemed a trespasser or mere licensee, that his duties did not begin until his train was made up, the question of his status being for the jury. It appeared to be customary for the brakeman when called to go out on his run to go with his lantern and valise to the caboose while it was yet in the yards and before the train was made up and there wait for the conductor, although he had no duty to perform in making up the train and aside from the case of preparation, his work did not really begin until the train was fully made up. The action was not brought under the federal employers’ liability act. A brakeman employed by the day, while on his way from his house to the roundhouse to take out his engine, was injured and was held to be at the time in his employer’s service. Missouri K. & T. Rly. Co. of Texas v. Rentz, (Tex. Civ. App. 1914) 162 S. W. 959. The rule of another case was followed, that —
“ ‘He is to be deemed in the master’s service whenever present to perform his duty under the contract creating the relation of master and servant and subject to orders, although at a given moment he may not be engaged in the actual performance of any labor’.” (p. 960.)
In St. Louis South Western Ry. Co. v. Brothers, (Tex. Civ. App. 1914) 165 S. W. 488, an extra brakeman at all times subject to call and paid for his services from the time his trip was begun until his return was sent out on a train engaged in interstate commerce and while returning on a pass on another train of the defendant engaged in interstate commerce, was injured and was Held to be within the act. It was held by the supreme court of South Carolina in Sanders v. Charleston & W. C. Ry. Co., (S. Car. 1914) 81 S. E. 283, that a track laborer asleep on his bunk at night was within the terms of the act. It was said that “the law imputed t'o him actual service on the track, and extended to him the rights of such a worker.” (p. 283.) Thornbro v. Railway Co., 91 Kan. 684, 139 Pac. 410, is also cited the brakeman in that case being injured while uncoupling an interstate car.
. The plaintiff had not, like the decedent in the Zachary case, already begun the performance of any service for the company nor was he on his way to begin the performance of his duty like Lamphere, nor had he gone to his train like Neil, nor was he like Graber seeking his superior officer to see if any further orders awaited him, nor was he on his way to begin his duties like Rentz. He was certainly as well or as nearly within the act as Sanders, and possibly as well within it as the decedent in the Easter case or Moyse, whose cases were passed upon not by federal but by state courts.
But the national courts are the final arbiters as to national legislation and their decisions are necessarily controlling. In St. L. & San Francisco Ry. v. Seale, 229 U. S. 156, a yard clerk whose main duty was to examine, check and make a record of incoming and outgoing cars and labeling them as a guide to switching crews, was on his way through the yard to meet an incoming interstate freight train when struck and fatally injured. He was held to have been engaged in interstate commerce. Del., Lack. & West. R. R. v. Yurkonis, 238 U. S. 439, was an action to recover for injuries received while mining coal in a colliery of the defendant, such coal being intended for use as interstate commerce. He was held to be not within the statute. Coming to the most recent decisions, the case of Shanks v. Del., Lack. & West. R. R., 239 U. S. 556, involved the question whether or not an employee in a machine shop was, while taking down and putting up fixtures therein, engaged in interstate commerce. The court held that he was not, and after referring to the Pedersen, Seale, Zachary, Behrens and Yurkonis cases and others, said it was plain in view of the test laid down in the decisions cited that Shanks was not employed in interstate transportation or in keeping in qsable condition any instrument then in use in such transportation. A similar ruling was made in Chi., Burlington & Q. R. R. v. Harrington, 241 U. S. 177, concerning an employee en gaged in removing coal from storage tracks to coal chutes, such coal having come from another state and to be used on locomotives in interstate work. The circuit court of appeals for the seventh circuit in Pryor v. Bishop, 234 Fed. 9, considered a situation somewhat like the one now before us. The decedent was a member of a train crew in charge of an interstate freight train. Arriving at Forty-seventh street, Chicago, the engine was sent to the roundhouse and the cars left in charge of a switching crew, the caboose being left on a track in the yard. The conductor reported for the crew at the defendant’s office. The crew were then entitled to an eight-hour rest. The conductor and the two brakemen went to the caboose, where they cooked their meals and went to bed. There was no arangement in regard to this use of the caboose and the defendant was ignorant thereof. The caboose was expected to be used in interstate commerce next day or soon thereafter but had no definite scheduled starting time. The next train was called for six-fifteen the following morning, but did not leave until eight o’clock. But for the accident the crew in question would have been next in line for service. In order to be within call it was necessary to go to Landers, seven miles away, one means of which was to stay in the caboose and be included in a transfer train to Landers, which train was made up by other employees, and ran regularly every night for the purpose. While the caboose was included in this train it was at about twelve-fifty run into by an engine and the decedent was killed. Neither the transfer train nor the engine in question was at the time engaged in interstate commerce. Under the rules train crews were called from Landers an hour and a half before trains were scheduled to leave and were required to be on hand half an hour before leaving time. They were in a general way subject to call any time after the expiration of their eight-hour rest period; that is, they were not exempt from service. Often they would go to sleep at Forty-seventh street and wake up in Landers. As a rule they were taken to Landers. When stationed at Forty-seventh street they were usually called at the caboose or the office, unless they went away for their own purposes, in which case they were expected to leave their address for calling them. The court after a thorough review of the authorities held that the employee was not within the act. ' .
“If, however, he could he deemed to be in the employment of' the company at the time of the injury, nevertheless he was not then actually employed in interstate commerce. His actual employment at the time was holding himself ready in the city of Chicago to respond to a call for service.. That the call, when it came, would be for an interstate trip, does not make the waiting in Chicago an actual engagement in interstate commerce, within the terms of the federal act. . . ' ' . To hold that the decedent was, at the time of the injury . . émployed in interstate commerce, would practically make the defendant liable to him as engaged in interstate commerce at all times. Such is not the purpose of the act. The statute was enacted only with reference to those railroad employees who, while in the actual discharge of their duties in interstate commerce, are injured.” (pp. 14, 15.)
The difficulty of stating the precise meaning of the term “scope of employment” was recognized in Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, and it was said that “the act must not only be done in the time, but in .the pursuance of the objects of the employment, in furtherance of duty.” (p. 481.) Various phases of the term are determined in the following decisions, and cases therein cited: Martin v. Railway Co., 93 Kan. 681, 145 Pac. 849; Sipult v. Land and Grain Co., 94 Kan. 224, 146 Pac. 329; Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9. We have never gone to the extent of holding that an employee while preparing to start but before starting to work or to report for duty, was within this or synonymous terms. (See K. P. Rly. Co. v. Salmon, Adm’x, 11 Kan. 83.)
The supreme court in Second Employers’ Liability Cases, 223 U. S. 1, the circuit court in the Lamphere case, and this court in the Thornbro case referred to the test that the injury must at least have had the effect or tendency to hinder or delay the movement of a train engaged in interstate commerce. A switchman who helped make up the train testified: “We got it ready to go.out at 8:15.” The yardmaster ran the train back to Wichita, but there is nothing indicating any- delay caused by plaintiff’s injury.
The plaintiff being required to report for duty thirty minutes before the time his train was to start and his time to begin, it is difficult to see how it can be accurately said that while dressing and getting breakfast and before the' beginning of the thirty minutes time which, according to his testi mony, was to mark the beginning of his actual duties, < he was performing any duty for the company or engaged in interstate commerce. The time preceding the beginning of his actual duties was his own and for his use in any way he ..chose. The collision occurred not while he was momentarily or temporarily diverted from the duties of his employment, but before the performance of such duties had begun. It must be held, therefore, that he was not within the terms of the- act.
The judgment is reversed with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was one in statutory form to quiet the title to real estate. The plaintiff prevailed and the defendant appeals.
The defendant claimed title under a tax deed defective' on its face, and was scrambling for possession. The plaintiff claimed title under deeds from the heirs of Frank Sargent, the owner at the time of the tax sale, and claimed possession through its tenant, the Young Men’s Christian Association, which was placed in possession by Sargent. The question was whether or not the Young Men’s Christian Association was the plaintiff’s tenant. The secretary of the Young Men’s Christian Association was a member of the city council. He testified as follows;
“Now, do you say the Y. M. C. A. leased it from the City. A. Yes. sir.
“When? A. I could n’t say.
“Do you know that of your own knowledge? A. I do.
“Did you negotiate the leasing? A. I was present at the time, and presented the matter for the Y. M. C. A.
“Before the Council? A. Yes, sir, before the Council.
“They made a record of that? A. Yes, sir.”
The mayor of the city also testified that the city made arrangements with the Young Men’s Christian Association to occupy and use the building on the property in controversy. The record of the proceedings of the city council was not introduced in evidence, and motions were made to strike out the testimony referred to as not the best evidence.
The best evidence rule is an ancient one, and is well founded. It is to be applied, however, with discrimination. Ordinarily the official action of the governing body of a municipal corporation should be proved by the record, and the terms of written instruments should be proved by production of the writings. If, however, the precise terms of a record or of a written instrument are not material to the fact under investigation, production of the recotd or of the writing may be dispensed with in many cases. Thus in 2 Wigmore on Evidence, § 1246, it is said:
“(6) The mere fact that a person is owner of property, whether real or personal, is a distinct thing from the terms of the document or documents by which he has become owner; although instances may be supposed in which the relation of ownership involves so directly the terms of a specific deed that the rule of production applies. (7) The fact that a person occupies, the relation of tenant, as to a piece of land or its owner, is a distinct fact; for he may have become tenant by parol or by writing, and the tenancy is the result of the transaction, and is not the transaction itself. Nevertheless, so far as the terms of a written tenancy are drawn into the question, the rule of production begins to be applicable.”
Likewise, in 17 Cyc. 486, it is said:
“Where the relation of landlord and tenant exists by virtue of a written lease or other instrument, and the existence and terms of the tenancy lie at the foundation of the cause or are directly in issue, the written instrument constitutes the best evidence, and parol or other secondary evidence is excluded under the best evidence rule. But in other cases it is generally held that where the fact to be established is simply the existence of the tenancy as distinct from its terms, the best evidence rule does not apply, and, although there may be a lease or other written instrument defining the terms of the tenancy, the fact of the tenancy may be proved by parol without the necessity of producing the writing.”
In this instance the fact to be proved was attornment. The Young Men’s Christian Association held possession as a tenant of the owner, Sargent. After his death his heirs conveyed to the plaintiff, and the question was whether or not the Young Men’s Christian Association then acknowledged the plaintiff as its landlord. Any act of the tenant recognizing the plaintiff as the source of its continued right to possession, or as the owner to whom the obligations of a tenant were due, was sufficient to constitute attornment, and after attornment the possession of the tenant was the possession of the new owner.' (24 Cyc. 891.) Such recognition was properly provable in this instance by parol.
Following the suggestion closing the quotation from Wig-more on Evidence, it may be asked, how could it be definitely known that the city responded favorably to the Young Men’s Christian Association’s application and “leased” to it, as the witnesses said, without the contents of the record being before the court. The question brings up the subject of the production of documents collateral to the issue, which is discussed by Dean Wigmore as follows:
“In the great majority of instances where the terms of a document are not in actual dispute, it is inconvenient and pedantic to insist on the production of the instrument itself and ‘to forbid all testimonial allusion, however casual, to its terms: . . . ' But in any ease the misfortune of inconsistent precedents and the disadvantage of an obscure definition can be obviated by applying strictly that salutary doctrine of judicial discretion. Let the trial judge determine absolutely, and without review, the application of the principle to each case. Whether a document is ‘collateral’ is practically a question whether it is important enough under all the circumstances to need production; and the judge presiding over the trial is fittest to determine this question finally.” (2 Wigmore on Evidence, § 1253.)
Conceding the case to be one requiring proof by the best evidence, the record, which was not produced, the defendant is not entitled to a new trial. The record was not a private instrument which the defendant had no opportunity to read. It was a public record of the proceedings of the city council. If the characterization given those proceedings by the witnesses was not correct a telephone communication with the city clerk would have revealed the fact. No proof was offered at the hearing on the motion for a new trial that the proceedings of the city council were different from what the plaintiff claimed them to be, and no suggestion is made in the brief that the record, if produced, would contradict the secondary evidence in substance or legal effect. The relation of landlord and tenant between the city and the Young Men’s Christian Association was clearly proved, but a rule of evidence was not observed. The defendant’s proposal is to reverse the judgment and retry the case, not that a different result may be reached, but that the procedure may be formally correct. In this court prejudice to substantial rights is not presumed to result from a wrong ruling but must be made to appear affirmatively. (Morrow v. Inge, 89 Kan. 481, 131 Pac. 1184; Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019; Morris v. Blazer, 96 Kan. 466, 152 Pac. 767.)
The defendant’s tax deed was defective for failure to recite an assignment to the defendant of the tax-sale certificate on which it was based. The defendant says the judgment cuts off her right to demand and receive a tax deed containing proper recitals. This is the defendant’s own fault. She accepted the deed which the county clerk issued and placed it on record. She did not establish by any proof that she was entitled to a better deed, but if she were, the court could not aid her. It could not give her another deed, or reform the one issued. Her remedy was to apply to the county clerk for a corrected deed. (Baker v. Lane, 82 Kan. 715, 109 Pac. 182.) It rested with her to make this application or not, as she chose. She chose to stand on the deed issued to her, which the plaintiff had the right to attack.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover attorneys’ fees for securing convictions in a liquor prosecution.
From the petition it appears that the plaintiff, as attorney-general, successfully prosecuted R. J. Bland, Charles Dixon and Harry Brown for selling liquor. They were convicted on April 1, 1913, Bland on eleven counts and the other two on seven counts each. They were fined, sentenced to imprisonment and the costs taxed against them, and on appeal the judgment of conviction was affirmed as to each. (The State v. Bland, 91 Kan. 160, 136 Pac. 947.) After having been confined in jail a short time, and long before they had served their sentences, the parties were paroled by the district court— Dixon and Brown being released on April 6, 1914, and Bland about December 15, 1914 — the costs, including the statutory fees due the attorney-general, and amounting in the aggregate to $625, never having been paid.
The answer alleged that on April 6, 1914, prior to their release, the convicted parties each filed a bond approved by the clerk of the district court for the payment of all costs, taxed against him in the action, and-that on account of the nonpayment of the costs actions upon the bonds were then pending.
The plaintiff and the defendant each filed motions for judgment upon the pleadings, and from the judgment sustaining defendant’s motion and overruling that of the plaintiff the latter appeals.
In behalf of the plaintiff it is contended that the county became liable for the attorney’s fees in the cases named when they were not paid within one month after the convicted persons -were released from jail. The statute which provides that such fees shall be taxed as costs against the parties convicted has been upheld, and the amount of fees charged against the defendants in those cases and upon which a judgment against the- county is asked has been adjudicated. (The State v. Bland, supra.) The provision under which the recovery against the county is sought provides that if the prohibitory law is not enforced by the local authorities the attorney-general and his assistants may institute and conduct prosecutions for the violation of the act, and may do and perform any act which the county attorney might lawfuly do or perform, “and for such services he or his assistants shall receive the same fees that the county attorney would be entitled to for like services, to be taxed and collected in the same manner, except that in all cases where there shall be a conviction, and the attorney’s fees as provided for in this act shall not be paid by the defendant within one month after his release from jail, the county where such conviction is had shall then become liable to the attorney-general, or his assistant prosecuting such case, for a fee of twenty-five dollars upon each count upon which the defendant shall have been convicted.” (Gen. Stat. 3909, § 4378.) The attorney’s fees in the prosecutions hid not been paid when this action was begun, which was many months after the convicted persons had been released from jail.
The statute quoted plainly provides that the county shall become liable for the fees which have not been paid within one month after the convicted parties have been released from jail, but it is contended by the defendant that the release which was granted by the district court under the parole law (Gen. Stat. 1909, § 2468) is not the release contemplated in section 4378. The parole law provides that the court granting a parole shall require the person paroled to give security for the payment of costs unless he is insolvent or unable to pay them, or to furnish security for their payment,, and if unable to, pay or give security the costs shall be paid by the state or county, but that such payment shall not discharge the liability of the convicted party for the costs. Although the parole law is the later enactment, nothing in it purports to change the provisions of section 4378 making counties liable for the fees of the attorney-general and his assistants where the convicted party is released from jail. The parole statute provides for giving security for costs, and it appears that security for costs was given in the cases under consideration, but the liability of the county for the fees of the attorney-general depends upon the release from jail and not upon the ability of the convicted person to pay or furnish security for payment. One of the provisions deals with the duty of courts in granting paroles to persons convicted of criminal offenses generally, and, incidentally, the taking of security for costs where the parties are able to furnish it. The other provides for the prosecution of violations of the prohibitory liquor law by the attorney-general and his assistants when the county attorney is unwilling or unable to enforce the provisions of that act, and as an inducement for efficient enforcement the county is made liable for attorney’s fees if they are not paid within one month after the persons convicted are released from jail. Each act has a field of its own for operation, and nothing in the title or provisions of the parole law indicates a purpose to repeal or amend the act providing for the payment of the attorney-general for the services he has rendered. It is said that originally only county commissioners could order a release, and that a release by a district court, which is subject to revocation, could not be regarded as the release referred to in section 4378. So far as that statute is cohcerned it is immaterial from whom- the release is obtained or by whom it is ordered. Whenever the party convicted fails to pay the attorney’s fee within one month after his release the liability of the county attaches. It was evidently the purpose of the legislature that the officers should not be required to wait for their fees until the released parties should choose to pay nor until they could be realized from the security for costs which they might previously have given.
The judgment will be reversed and the cause remanded with directions to enter judgment in favor of the plaintiff.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a judgment denying plaintiff a divorce.
In a brief filed amici curiee we are asked to dismiss the action because of the death of the plaintiff, which occurred subsequently to the appeal, and because no property rights are involved in the action.
It appears from the record that the sole purpose of the action was to dissolve the marriage relation of the parties. No property rights of the parties or other persons were involved in the controversy; in.fact, nothing is involved but a mere status, and plaintiff’s cause of action, being personal to himself, every right he had with respect thereto is terminated, and his death abates the action. (Blair v. Blair, 96 Kan. 757, 760, 153 Pac. 544; 1 C. J. 169.)
While it is clear that the appeal must be dismissed, it is proper to say that we have examined the record, and the contention that the judgment should be reversed on the ground that the court erred in refusing a decree goes merely to the weight of the evidence, and there is no merit in the only point raised by the appeal.
It is dismissed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for fraudulent representations. A demurrer was sustained to the petition, and the plaintiff appeals.
The petition is too long to be printed here, and -no useful purpose would be subserved by printing it, or even by indicating all its features.
The plaintiff manufactures and sells roofing tile, and needs natural gas in its business. The defendant sells natural gas. They entered into a contract whereby the defendant agreed to supply the plaintiff with natural gas in sufficient quantities for all purposes legitimately required in the operation of its factory and additions thereto, at the price of three cents per thousand feet for a period of five years, and then at the price of four cents per thousand feet for another year. The plaintiff agreed to use the gas so supplied and to use all the gas essential for the conduct of its business. The price agreed on was offered by the defendant as an incentive to increase the plaintiff’s consumption of gas, and the plaintiff did enlarge and rebuild its plant, at an expense of $100,000, in consideration of the price offered. The contract was made in January, 1909. In the year 1911 the defendant entered into a conspiracy with the Kansas Natural Gas Company to raise the price of gas. The defendant falsely and fraudulently represented to the plaintiff that the supply of natural gas at the defendant’s command was inadequate to meet the needs of the plaintiff’s factory, that the supply of natural gas was rapidly approaching exhaustion, and that no other supply was available. These representations continued over a considerable period of time, were known by the defendant to be false, and were believed by the plaintiff, who was ignorant of their falsity. The plaintiff’s situation was serious. It had customers whom it was under contract to supply with large quantities of its product. It had large numbers of workmen in its employ. It had a valuable plant, which could not be put to other uses, and its very existence as a business enterprise was threatened. The defendant purposely and wrongfully reduced the supply of gas which it was furnishing, and by pressing its false representations on the plaintiff, and fraudulently promising a better supply for a short time only, the defendant induced the plaintiff to surrender its contract and to accept, a new one for gas at the price of seven cents per thoúsand feet; the new contract, however, to be terminable by the defendant on thirty days’ notice. Incidentally to its representation that the supply of gas was practically exhausted, the defendant advised the plaintiff to install oil burners, which it did at great expense, believing gas was no longer available for factory purposes. The defendant had no intention of bettering the supply of gas under the second contract, did not dó so, and in September, 1912, terminated the second contract. Thereafter, the defendant charged the plaintiff twenty cents per thousand feet for gas. The price was prohibitive, and in January, 1913, the plaintiff instituted an independent investigation of the gas supply. It found not only that gas was abundant, but that the defendant own'ed and controlled and had access to immense unused supplies. The details of the relations of the defendant to the Kansas Natural Gas Company and of the conspiracy between them, whereby the Kansas Natural Gas Company obtained a monopoly of gas production and was enabled to raise and to dictate the price of gas, were set out. Items of damage were pleaded to the amount of $79,500.
The petition stated a cause of action, and the demurrer was wrongfully sustained. In its brief-the defendant says the plaintiff was on the ground and knew the prevailing conditions with reference to the gas supply. The statement should be made in an answer. The petition discloses information which the plaintiff received from the defendant, but the petition alleges the information did not accord with the facts. The defendant says that if it had been anxious to secure a new contract, and intended to deceive the plaintiff, it would not have impressed on the plaintiff the fact that the benefits under the second contract would be temporary only. This argument should be made to the jury that tries the case. The defendant says the plaintiff voluntarily surrendered the old contract, voluntarily accepted the new one, and was not misled or defrauded. The petition very distinctly declares otherwise. The defendant says the plaintiff ought to have procured gas elsewhere to mitigate its damages, which is to say, the plaintiff ought not to have believed and relied on the representations of the defendant that other gas was not obtainable. The defendant says its advice to install oil burners is not actionable. The plaintiff does not sue for the consequences of bad advice. It sues for false representations that the gas supply was exhausted, whereby it was wrongfully induced to expend money to keep its plant going, one of the measures adopted being the installation of oil burners on the recommendation of the defendant. If this were not true the petition as a whole would not be demurrable because one item of the damages claimed is not recoverable. The defendant says conspiracy was not' well pleaded. It was well enough pleaded to require an answer.
The judgment of the district court is reversed and the cause is remanded with direction to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action for damages on account of certain slanderous statements made by defendant against plaintiff while the latter was a candidate at an informal election held in Cawker City to determine the popular choice for postmaster, pursuant to an arrangement between Congressman John R. Connelly and the candidates seeking his favor and recommendation for that appointment. •
The petition, in eight counts, alleged in substance that prior to that election and while the campaign was progressing, in the presence of various electors, the defendant had willfully and maliciously uttered and published false, scandalous and defamatory slanders concerning the plaintiff, as follows:
“Robert Good is dishonest.” “If Robert Good is as crooked in the post office as he was in the chautauqua business he won’t last six months.” “Robert Good simply stole the chautauqua blind and has been stealing right along, and I can prove it.” “Robert Good is an embezzler and I can prove it.” “If Good gets the postoffice and he is as dishonest in handling that business as he was the chautauqua business he'will not last long.” “Good is a thief and an embezzler and he ought to be behind the bars.” “Why he (Good) has that home up there that he got with money that he stole from the chautauqua association.” “Good is a thief and an embezzler and ought to be in the penitentiary.”
The defendant’s answer pleaded certain business transactions touching the purchase of a newspaper; the giving of certain notes by defendant and others to borrow money to buy the newspaper; that the paper was bought in the name of certain trustees and that plaintiff was to have it when he had fully paid the purchase price; that plaintiff had agreed to sell a newspaper owned by him in Jamestown and apply the proceeds on the notes; that he failed to do so, but bought a homestead residence instead; that he had falsely represented that he was the owner of the newspaper; that in disregard of his agreement with defendant and others he had made another contract with the former owner of the newspaper for its purchase, fraudulently attempting to supersede the trustees and signers of the notes; that plaintiff, as secretary and manager of the Lincoln Park Chautauqua Association, had induced defendant and others to guarantee the chautauqua expenses and had misrepresented its financial condition, and that it had become insolvent under plaintiff’s management; and that in 1912 plaintiff conducted another chautauqua and had induced defendant and others to guarantee the payment of certain of its expenses, and that he had violated his promise to satisfy these in order and that he had diverted the funds to other purposes and that the defendant and the other guarantors were being called on by creditors to pay upon their guarantee, and that plaintiff had never rendered a complete account of the chautauqua affairs.
Defendant also pleaded the plaintiff’s candidacy for the office of postmaster, and that such statements- as he had made concerning plaintiff (not admitting their form or substance as set forth in the petition) were made with full knowledge of the facts, without malice and - in good faith, canvassing the worth of character and qualifications of plaintiff for the office of postmaster, and that all he had said concerning plaintiff was true, and justified and privileged, and that—
“Believing and having good reason to believe that the plaintiff was an unfit and improper person to hold the office to which he aspired, he did, without malice, oppose the election of plaintiff as he felt in duty bound to do and did try to dissuade electors from voting for plaintiff and to vote for the successful candidate.”
Plaintiff filed an extended reply, making appropriate traverses,, and explaining and justifying his conduct in the newspaper deal; the purchase of his residence; his claim of ownership of the newspaper; his record as secretary and manager of the chautauqua and its financial affairs.
The cause was tried to a jury and a general verdict for plaintiff was rendered, awarding him $1500 as damages. Certain special questions were submitted in which the jury were asked to state whether defendant had called the plaintiff “a thief,” “embezzler,” “crooked,” “dishonest,” and the like. All of these were answered “yes.”
Other questions were submitted:
“Question 5. If any statements were made by defendant, were they made during the campaign for postmaster? Answer. Yes.
“Question 6. If any such statements were ever made, were they made or uttered in good faith for the purpose of inducing voters to vote for a particular candidate? Answer. No.”
From the judgment on the verdict defendant appeals, assigning error in the instructions, in the court’s refusal to submit a special question asked by defendant, and in the excessive verdict.
The court instructed the jury concerning express and implied malice as follows:
“5.' Slander is the malicious defamation of a person with respect to his or her character, trade, profession or occupation, by words or signs.
“6. Malice means a wrongful act done intentionally without just cause or excuse.
“7. The words must be uttered maliciously before a recovery can be had of the speaker.
“8. While ordinarily the words must have been uttered maliciously and it must so appear befpre a recovery,can be had of the speaker, yet you are instructed that the words falsely imputing to a party the commission of a crime are actionable per se., that is, actionable in themselves, and the law presumes that the party uttering them intended maliciously to injure the person concerning whom they were spoken unless the contrary appears from the evidence, occasion or manner of speaking them. Such malice so presumed is known as implied malice as distinguished from express malice.
“17. In an action for a slander punitive or exemplary damages can be allowed only when defendant is found to have been actuated by express malice. . Express malice is defined in paragraph 6 of these instructions.
“18. . . . but as to whether . . . you award any sum as punitive damages rests in your sound discretion, and you would not be compelled to award any sum as punitive damages even though you should find that the defendant did maliciously speak the words as alleged in the petition.”
It is contended that no distinction is here made between implied malice and express malice, and that this distinction was important because no evidence of actual damages was shown. We think the court’s instructions on this point were plain and sufficient. Moreover, the record discloses positive evidence
touching plaintiff’s actual damages. The plaintiff testified that many of the persons in whose hearing the defendant had uttered the slanderous statements concerning plaintiff had reported the defendant’s language to him:
“Q. State whether or not these discussions in your place of business were ever had with reference to the effect it had on the publishing of your paper?
(Counsel for defendant) : “Object to the question for the reason it is incompetent, irrelevant and immaterial and calls for a conclusion.
“The Court: Objection sustained.
“Q. You may state your feelings when these statements were made to you?
“A. I felt very much hurt and humiliated.
“A. My feelings as I stated were particularly a hurt feeling and one of deep humiliation, which made it almost impossible for quite a period of time, for me to meet those with whom I had-been associated.
“A. For quite a period of time it affected me very seriously in a mental way and affected my. ability to transact business to such an extent that at some times I even left the office and would go away by myself in order to' recover my usual state of mind and get control of my nerves.”
Damages of the sort testified to by plaintiff are about the only kind of damages that the victim of a slander would ordinarily sustain or would be able to prove; and unless the courts will redress the grievances of a slandered person on this kind of proof it might as well be judicially declared that slander is not an actionable wrong.' The jury found that the slanderous words were not uttered in good faith, and this, together with the general verdict, seems sufficient to cover the essential of express malice. '
Complaint is made of the court’s refusal to submit to the jury this question:
“If you find for the plaintiff, state how much, if any, you allow upon each separate cause of action.”
Here was no error. ' While rules of good pleading encourage the separate statement of technically' different causes of action, for-the convenience of the court, jury and litigants, so that plaintiff’s several allegations may be more readily traversed, admitted, denied, proved and disproved seriatim, yet m an action for slander it would serve no good purpose to catechise the jury on how much they assessed the defendant for calling the plaintiff a thief, how much for calling him an embezzler, how much for calling him dishonest, etc. (See Thompson v. Harris, 64 Kan. 124, 67 Pac. 456.) If the defendant be held to the same technical strictness which he invokes, his special question really involved eight questions in one, since there were eight causes of action pleaded. (Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83.) But it may be conceded without disturbing the result that the jury never did go through the eight specific and separate causes and allow so much on the first, so much on the second, so much on each, and add up the separate items to a total of $1500 as found by their verdict. Like sensible men they considered all the facts, and in the exercise of their best judgment awarded the plaintiff a sum within the total amount prayed for sufficient in their opinion to compensate him for his grievances. No court would permit a jury to be catechized in a personal-injury case on how much they allowed for each sprain, each bruise, each fracture, and the like, and no logical difference is discoverable here to justify a different practice.
Under the error assigned on the excessive verdict, the defendant contends that the statements were privileged because the plaintiff was a candidate for office. To be privileged under that rule (Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281) it should be made to appear that defendant uttered the statements in good faith, believing with good reason that they were true, and that he did so in a sincere effort to advise the electors what manner of man the plaintiff was who sought their suffrages. But the jury have foreclosed the possibility that the statements which he uttered concerning his opponent were made in good faith in a sincere effort to apprize the electors of defendant’s fitness for postmaster. Few men would consider an award of $1500 an adequate compensation for being subjected to such slanders as were uttered against this plaintiff in and about the community in which he resided. Certainly the verdict is not excessive, and since no substantial error is discernible, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant Nichols & Shepard Company appeals from a judgment quieting the plaintiffs’ title to certain land in Linn county. This land was a farm and was occupied by E. S. Proctor and his family as a homestead for a long time prior to the 1st day of February, 1912. About that time he and his family left the farm and moved to Kansas City. In April following Proctor and his wife conveyed the farm to the plaintiffs. In October, 1895, defendant Nichols & Shepard Company obtained a judgment against E. S. Proctor in the district court of Linn county for the sum of $1095.36, with interest, which judgment has been kept alive by executions. In the present action the plaintiffs sought to quiet their title to the land as against that judgment.
1. Was the land the homestead of E. S. Proctor and his family at the time of its sale to the plaintiffs ? The cause was tried by the court without a jury and the court found that the plaintiffs were the owners in fee simple and in the actual possession of the real property; that the judgment of Nichols & Shepard Company was not a lien upon the land, and that none of the defendants ha,d any interest, right, title, estate or lien, in or upon the real property or any part thereof.
Nichols & Shepard Company makes a strong argument to show that the land was not exempt from the lien of the judgment at the time of the sale to the plaintiffs. That question is one of fact to be established by the evidence. That fact was determined by the trial court and judgment was rendered.
The evidence to establish that the farm was the homestead of E. S. Proctor and his family at the time of the sale to the plaintiffs, was principally that of Proctor himself, who testified, in substance, that when he left the farm he expected and intended to return to, and reside upon it; that he considered the farm the permanent home of himself and his family; that he had no intention whatever of abandoning it as his homestead ; that he did not change his intention in any way until he .conveyed the property to the plaintiffs, and that it was his intention to educate his children in Kansas City. Under the decisions of this court, this evidence was sufficient to justify the court in finding that the farm was the homestead of E. S. Proctor at the time of the sale to the plaintiffs. (Coal Co. v. Judd, 6 Kan. App. 487, 50 Pac. 943; Moses v. White, 6 Kan. App. 558, 51 Pac. 622; Palmer v. Parish, 61 Kan. 311, 59 Pac. 640; McGill v. Sutton, 67 Kan. 234, 237, 72 Pac. 853; Elliott v. Parlin, 71 Kan. 665, 81 Pac. 500; Mercantile Co. v. Blanc, 79 Kan. 356, 99 Pac. 601.)
2. Evidence was introduced tending to show that the homestead had been abandoned. Although it can not be said that the evidence was contradictory, different minds might reasonably have drawn different conclusions therefrom. If taken alone, the evidence to establish that the farm was the homestead of Proctor and his wife was such as should convince any reasonable man that the homestead had not been abandoned. The evidence to the contrary, if considered alone, was such as would convince a reasonable man that the homestead had been abandoned. This makes the findings of the trial court conclusive in this court. (O’Neal v. Bainbridge, 94 Kan. 518, 146 Pac. 1165.)
The judgment is affirmed. | [
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Marquardt, J.-.
Cynthia L. Jennings appeals the trial court’s denial of her motion to modify custody and child support. We reverse and remand for an evidentiary hearing on the issues of custody and child support.
D. Keith Jennings and Cynthia were married in June 1982. G. was bom in December 1987 and is their only child. Keith filed for divorce in June 1997. The trial court ordered that G.’s temporaiy primary residential placement was to be with Cynthia.
The divorce decree, entered in January 1998, incorporated an agreement of the parties which gave them joint custody of G. Cynthia’s home was designated as G.’s primary residence. Keith was granted visitation on alternating weekends and during the summer. This arrangement continued until June 1999, when Keith filed a motion for primary residential custody of G. and alleged that Cynthia was subjecting G. to “ongoing emotional abuse” by involving G. in her anger with Keith.
In July 2000, the parties stipulated to a parenting plan which was accepted by the trial court. This order granted Keith primary residential custody of G. during the school year. Cynthia' was granted visitation during holidays and the summer.
In June 2001, Cynthia filed a motion to modify child custody and support. Cynthia alleged that the prior custody orders were entered by agreement and that proof of a change in circumstances was not required. She stated that G. wished to reside primarily with her. Cynthia also claimed that Keith had failed to fully cooperate with the parenting plan. Cynthia also filed a motion for appointment of a special master or guardian ad litem.
The trial court held that in order to modify the custody order, it must find there had been a material change in circumstances since the last mediated agreement. The trial court noted that while it was not disregarding G.’s wishes, a child’s preference did not establish a prima facie case for considering a change of his or her residential placement and Cynthia had failed to proffer sufficient evidence to establish a prima facie case for modifying the existing custody arrangement. The trial court denied Cynthia’s motions. Cynthia timely appeals.
Cynthia alleges that the issue of G.’s custody had never been tried to the trial court; therefore, she did not need to prove a material change in circumstances for the trial court to modify the custody. Cynthia cites Hill v. Hill, 228 Kan. 680, 620 P.2d 1114 (1980), to support her position.
When reviewing a trial court’s child custody determination, an appellate court utilizes an abuse of discretion standard. In re Marriage of Whipp, 265 Kan. 500, 502, 962 P.2d 1058 (1998).
The previous orders regarding G.’s custody were granted in what is equivalent to a default proceeding because the trial court never held a hearing on the issue. Where a custody order is entered in a default proceeding, and the facts are not substantially developed and presented to the trial court, the court may later admit and consider evidence as to facts existing at the time of the earlier order. Then, after the full presentation of the facts to the trial court, the court may enter any order which could have been made at the initial hearing even though no change in circumstances has occurred. 228 Kan. at 685. The Hill holding was later extended to apply to cases where a custody order is entered upon a written stipulation. See Anhalt v. Fesler, 6 Kan. App. 2d 921, 924, 636 P.2d 224 (1981).
If there is an agreement between the parties on a custodial arrangement, a presumption arises that such agreement is in the best interests of the child. See K.S.A. 2001 Supp. 60-1610(a)(3)(A). However, any agreement regarding the custody of minor children is always subject to the overarching power of the court to determine the best interests of the child. Nelson, Child Custody in 1 Practitioner’s Guide to Kansas Family Law at 6-22 (Leben ed. 2001).
Matters regarding custody of children are always subject to modification even though the parties enter into various written agreements or stipulations incorporated into either a divorce decree or other final order. Nelson, Child Custody in 1 Practitioner’s Guide to Kansas Family Law at 6-33. In fact, when a child’s custody is determined by stipulation or default, the custody determination may in fact be at odds with the best interests of the child. Johnson v. Stephenson, 28 Kan. App. 2d 275, 284, 15 P.3d 359 (2000), rev. denied 271 Kan. 1036 (2001).
When a custody issue is decided between the parents, the trial court must still decide the paramount issue of what is in of the best interests of the child. The trial court is in the best position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. Whipp, 265 Kan. at 506.
In the instant case, the trial court relied on Johnson when it made its decision. However, the Johnson court held that “[cjustody decrees are not always adjudicated, and when they are not, the res judicata policy underlying the material change in circumstances rule in K.S.A. 1999 Supp. 60-1610(a)(2) is not very persuasive.” 28 Kan. App. 2d at 284. Unlike Johnson, the trial court in the instant case did not make findings of fact and conclusions of law in its previous orders.
Here, the trial court noted that its previous orders regarding custody, visitation, and parenting plans were agreed upon by Keith and Cynthia as a result of mediation. The mediator’s job is to listen to the parties and bring the matter to consensus. A mediated custody agreement incorporated into a decree of divorce or other court order does not have the same effect as a court order that is issued after a hearing where evidence is presented and the trial court makes specific findings of fact.
Previously, the trial court adopted the mediation agreement and made it the order of the court but never held an evidentiary hearing on the issue. A trial court abuses its discretion when it finds that the petitioner must prove a material change of circumstances when no court hearing had ever been held on the issue of child custody and support.
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Marquardt, J.:
Kenneth Alan Jarvis appeals the inclusion of his juvenile conviction in his criminal history score and the trial court’s entry of an upward durational departure. We affirm Jarvis’ conviction, vacate his sentence, and remand for resentencing.
Jarvis was charged with two counts of rape, one count of aggravated indecent liberties with a child, and one count of sexual exploitation of a child. The victim was L.A., Jarvis’ stepdaughter, who was bom on February 28, 1981.
Pursuant to a plea negotiation, Jarvis entered a nolo contendere plea to one count of aggravated indecent liberties with a child and one count of sexual exploitation of a child. The State agreed to dismiss the rape charges and recommend a concurrent sentence on the aggravated range of the appropriate grid box. Prior to sentencing, the trial court gave notice that it intended to impose an upward durational departure because of the victim’s vulnerability and relationship with Jarvis.
The trial court determined that Jarvis’ criminal history was G and the offense was a severity level 3, which had an aggravated range of 64 months’ imprisonment under the sentencing grid. The trial court imposed an upward departure and sentenced Jarvis to 162 months’ imprisonment. Jarvis timely appeals.
Departure Sentence
Jarvis argues that the upward durational departure is unconstitutional. He relies upon 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).
The State argues that neither Apprendi nor Gould apply. The State relies on State v. Cody, 27 Kan. App. 2d 1037, 1038, 10 P.3d 789 (2000), rev'd 272 Kan. 564, 35 P.3d 800 (2001). The State contends that Jarvis’ sentence is constitutional under Cody because Jarvis waived his right to a jury trial and admitted the facts necessary for the trial court to impose the departure sentence.
Whether an upward durational departure sentence under K.S.A. 2000 Supp. 21-4716 is unconstitutional under Apprendi and Gould is a question of law subject to unlimited review. Cody, 27 Kan. App. 2d at 1038. In Cody, the defendant pled guilty to several drug charges, including the sale of illegal drugs. The trial court imposed an upward durational departure sentence because of the danger of harm or death to more than one person; his activities illustrated major chug activity; he was on probation for a drug offense at the time some of these crimes were committed; and his criminal activity was a threat to society. This court held that the facts to support an upward departure sentence were proven beyond a reasonable doubt by Cody’s admissions; therefore, Apprendi did not apply. 27 Kan. App. 2d at 1039.
In Cody, the Kansas Supreme Court overturned the Court of Appeals and held that an upward durational departure sentence is unconstitutional on its face. The court held: “[T]he fact that [Cody] admitted each of the elements of the offenses is in no way an admission that the sentencing factors used to increase his sentence were proved beyond a reasonable doubt.” 272 Kan. at 565.
Here, Jarvis pled nolo contendere and waived his right to a jury trial. At his plea hearing, Jarvis was not asked to either state the facts supporting the crime or to agree with the State’s recitation of the facts supporting his plea. However, in his motion for a departure sentence which was filed prior to sentencing, Jarvis attached a handwritten letter to the trial court in which he essentially admitted L.A.’s statement of the facts.
Jarvis also attached a copy of a letter from Irvin Penner, a licensed specialist clinical social worker who interviewed Jarvis. At sentencing, Penner testified that Jarvis admitted he fondled L.A. when she was 8 years old and started to have sex with her when she was 10 years old. Jarvis also admitted that he fathered L.A.’s child when she was 15 years old and continued to have sex with her after the baby was bom.
Under Gould, the Kansas Supreme Court held that upward durational departures are unconstitutional under Apprendi. Now, under the Cody decision, we are compelled to rale that the trial court erred in imposing an upward departure sentence for Jarvis.
Criminal History
Jarvis complains that his 1962 conviction for larceny should not have been included in his criminal history score because the crime was committed when he was 16 years old. On appeal, Jarvis argues that this conviction violates his equal protection rights.
Jarvis stated at sentencing that he was under the age of 18 at the time of the offense but did not allege that the inclusion of the conviction violated his equal protection rights. Jarvis stated that his criminal history category would be H instead of G if his 1962 conviction were excluded from his criminal history.
Normally, constitutional grounds asserted for the first time on appeal are not properly before the appellate court for review. State v. Conley, 270 Kan. 18, 30, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). There are three recognized exceptions to the rule: (1) The newly asserted theory concerns only a question of law based on proved or admitted facts and is determinative of the case; (2) consideration of the theory will serve the ends of justice or prevent the denial of fundamental rights; and (3) the judgment of a trial court is right for the wrong reason. 270 Kan. at 30-31.
G.S. 1961, 38-802(b) defined a “delinquent child” as a male less than 16 years old or a female less than 18 years old. A child is “delinquent” if he or she commits an act which, if committed by a male 16 years of age or older, or by a female 18 years of age or older, would constitute a felony offense. G.S. 1961, 38-802(b)(1). The statute was amended in 1965 and defined a “delinquent child” as a child less than 18 years of age who commits an act which, if committed by a person 18 years of age or older, would constitute a felony offense. L. 1965, ch. 278, sec. 1(b)(1).
Jarvis’ criminal histoxy included the 1962 conviction, which was an adult nonperson felony, and six misdemeanors. Juvenile adjudications decay under K.S.A. 21-4710(d)(4) if the current conviction was committed after the offender was 25 years old. Adult convictions do not decay. See K.S.A. 21-4710(d)(3).
Jarvis states that an Oklahoma case, Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972), supports his position. Like Kansas’ statute, the Oklahoma statute made the same age distinction between males and females for jurisdiction of the juvenile court. The Oklahoma court found that the State did not demonstrate a legitimate purpose for the disparity of age classification between males and females and held that the statute violated the Equal Protection Clause of the United States Constitution. The Tenth Circuit held that the ruling was not to be applied retroactively. 456 F.2d at 20.
Later, the Tenth Circuit cited Lamb in Radcliff v. Anderson, 509 F.2d 1093, 1094 (10th Cir. 1974), cert. denied 421 U.S. 939 (1975), and held that the Lamb decision was to be applied retroactively. In Bromley v. Crisp, 561 F.2d 1351 (10th Cir. 1977), cert. denied 435 U.S. 908 (1978), the Tenth Circuit considered the procedure to determine the proper relief when a conviction was challenged under Lamb. It determined that a conviction need not be set aside if the State establishes through an evidentiary hearing that the juvenile court would have certified the petitioner for treatment as an adult. 561 F.2d at 1356-57. This procedure was adopted by Oklahoma in Edwards v. State, 591 P.2d 313, 319 (Okla. Crim. 1979).
In Kelley v. Kaiser, 992 F.2d 1509, 1516 (10th Cir. 1993), the Tenth Circuit held that because the petitioner was denied an evidentiary hearing after applying the Edwards requirement, the State’s factfinding procedure was not adequate to afford a full and fair hearing on the certification issue. The court remanded the case to the trial court for an evidentiary hearing.
Although the issue was raised on appeal in In re Patterson, Payne & Dyer, 210 Kan. 245, 252, 499 P.2d 1131 (1972), the Kansas Supreme Court did not decide the issue because it had not been raised before the trial court. Kansas has not dealt with the issue of retroactive application of the statute, nor has it adopted the Oklahoma procedure.
Here, the State contends that Jarvis is not entitled to retroactive relief because the statute is substantive rather than procedural. It cites three cases, State v. Grimmett & Smith, 208 Kan. 324, 491 P.2d 549 (1971), State v. Coutcher, 198 Kan. 282, 424 P.2d 865 (1967), and State v. Augustine, 197 Kan. 207, 416 P.2d 281 (1966).
Coutcher and Augustine involved direct criminal appeals, one by the defendant and the other by the State, where the new statute enlarging the jurisdictional age limit to 18 years for males became effective during die pendency of the criminal proceeding of the male defendant. The defendants argued that the new statute should be applied and their cases transferred to juvenile court. In Coutcher, the trial court declined, but in Augustine, the trial court agreed. The appellate court rejected their arguments because it found that the new statute was a substantive change and, thus, applied prospectively. 198 Kan. at 289; 197 Kan. at 211. In those cases, the defendants were not claiming that their convictions or sentences were unconstitutional. The facts of Grimmett & Smith are similar in that the defendants challenged their enhanced sentences on a new offense because it was based upon prior convictions that occurred when they were 16 years old. Their sentences were affirmed.
Jarvis argues that his 1962 conviction was unconstitutional. He relies upon State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995), for support that his prior conviction cannot be used in a subsequent sentencing. In Delacruz, the Supreme Court agreed with the defendant that his uncounseled misdemeanor conviction could not be used to determine his criminal history under the Kansas Sentencing Guidelines Act because he served jail time. 258 Kan. at 136. However, Delacruz is distinguishable from the instant case because none of Delacruz’ disputed convictions took place while he was a minor.
We do not agree that Jarvis’ 1962 conviction was unconstitutional at the time it was rendered. Jarvis is not requesting that his 1962 conviction be vacated; his request is only that it not be used to calculate his criminal history. Jarvis claims that because the law was changed, the new law should be made retroactive.
When the law was changed, the legislature did not make it retroactive. The analysis in Augustine states:
“Whether an offense committed by a male person sixteen or seventeen years of age constitutes a delinquent or a criminal act depends upon the jurisdictional limits of the juvenile court. A change in those limits results in an offense either losing or acquiring the element of criminality. Therefore, we have no difficulty concluding that the enlargement of juvenile court jurisdiction to include sixteen- and seventeen-year-old males constituted a change in substantive law.” 197 Kan. at 210.
We hold that the change in the jurisdiction of the juvenile court in 1965 is not retroactive. The trial court did not err in including Jarvis’ 1962 conviction in his criminal history score.
Jarvis’ conviction is affirmed and his sentence is vacated. The case is remanded for resentencing. | [
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Wahl, J.:
Aaron Hatt appeals his sentence imposed following his conviction of two counts of forgery.
In June 2000, Hatt entered a plea of nolo contendere to two counts of forgery in cases Nos. 00 CR 424 and 00 CR 458. In return, the State agreed to dismiss the remaining charges in both cases.
Hatt’s presentence investigation (PSI) report showed he had nine prior convictions. He had a California burglary conviction in 1995, person felony, and Kansas theft, nonperson felony, and giving a worthless check, misdemeanor, convictions in 1996. The source of information regarding these three convictions was listed as the PSI report for the Kansas theft conviction in No. 96 CR 209. In addition, Hatt had convictions for two nonperson felonies and four nonperson misdemeanors. The source of information for these convictions was listed as either the court services officers or the district court record.
Prior to sentencing, Hatt filed an objection to his criminal history, stating his California conviction of burglary was a nonperson felony. The State responded that Hatt failed to object when the PSI report, including the California conviction, was filed in No. 96 CR 209 and the court could then take judicial notice of the earlier PSI report.
The trial court took judicial notice of the PSI report in the prior case and found Hatt’s criminal history score to be accurate. The court placed Hatt on probation for 18 months with an underlying sentence of 18 months’ imprisonment based on his criminal history score of C. Hatt appealed.
He argues the trial court erred in taking judicial notice of his PSI report filed for his 1996 conviction under K.S.A. 2000 Supp. 21-4714(f). He claims his California conviction for burglary should be categorized as a nonperson felony. Hatt further argues the trial court should have required the State to prove his California conviction was a person felony by a preponderance of the evidence pursuant to K.S.A. 21-4715(c).
Hatt claims K.S.A. 2000 Supp. 21-4714(f) and K.S.A. 21-47l5(c) are in conflict under the facts of this case. Interpretation of statutes is a question of law, and the appellate court’s review is unlimited. State v. Turner, 22 Kan. App. 2d 564, 565, 919 P.2d 370 (1996).
K.S.A. 2000 Supp. 21-4714(f) provides: “The court can take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993.”
According to Hatt’s PSI report for the current crimes, he had one juvenile adjudication in California for burglaiy coded as a person felony in 1995. This adjudication was listed in the PSI report filed for his earlier conviction of felony theft in No. 96 CR 209 in Geary County, Kansas.
Hatt failed to object to the categorization of person felony of the California conviction of burglary at the time of sentencing for No. 96 CR 209 under K.S.A. 21-4715(c), which provides:
“Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.”
Without an objection by Hatt, the PSI report was admitted and filed as a part of the record for No. 96 CR 209, and the trial court may take judicial notice of the report pursuant to K.S.A. 2000 Supp. 21-4714(f). Contrary to Hatt’s arguments, these two statutory provisions are not in conflict. The trial court did not err in taking judicial notice of Hatt’s previously filed PSI report instead of requiring the State to produce evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.
Hatt contends the inclusion of his California juvenile adjudication in his criminal history score violated the due process principles set out in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because a jury did not determine guilt beyond a reasonable doubt in his juvenile adjudication.
Apprendi held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a juiy, and proved beyond a reasonable doubt.” 530 U.S. at 490. Apprendi did not address the specific issue of the juvenile adjudications included in criminal history scores as “prior convictions.” The Kansas Supreme Court adopted the broad reasoning of Apprendi and held the departure statute allowing sentences beyond the presumptive sentence violated Apprendi and was unconstitutional on its face. State v. Gould, 271 Kan. 394, Syl. ¶ 3, 23 P.3d 801 (2001).
Hatt claims the Kansas Supreme Court has repeatedly held that juvenile adjudications are not prior criminal convictions, relying on State v. LaMunyon, 259 Kan. 54, 59, 911 P.2d 151 (1996). LaMunyon further stated that “[t]he mere fact that a juvenile adjudication is not a criminal conviction does not prohibit using a juvenile adjudication in calculating a criminal history score for purposes of sentencing an adult under the KSGA.” 259 Kan. at 59. The LaMunyon court concluded: “The defendant’s juvenile adjudications were constitutional even if he had no right to a jury trial in those proceedings. Because the juvenile adjudications were not constitutionally infirm, they may be used in calculating the defendant’s criminal history score under the KSGA.”’ 259 Kan. at 65.
Before oral arguments in this case, Hatt filed a letter of additional authority, citing United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). He also requests that this court take judicial notice of California statutes regarding juvenile adjudication procedure. We point out that while opinions from the Ninth Circuit Court of Appeals are instructive to this court, they are not binding authority on this court.
Tighe pled guilty to bank robbery, being a felon in possession of a firearm, and interstate transportation of a stolen vehicle. The district court applied the Armed Career Criminal Act to enhance his sentence, based on three previous convictions, including an Oregon juvenile adjudication.
On appeal, the Ninth Circuit Court of Appeals vacated his sentence, holding the use of Tighe’s 1988 nonjury juvenile adjudication to increase his maximum statutory penalty violated Apprendi. The majority acknowledged the language of Apprendi holding that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The majority also noted that Almendarez-Torres v. United States, 523 U.S. 224, 243, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), held the fact of the prior conviction was a sentencing factor and not a separate element of the crime charged in the indictment. Furthermore, in Jones v. United States, 526 U.S. 227, 249, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), the Court stated: “One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt arid jury trial guarantees.”
The Tighe court held that ApprendTs prior conviction exception must be limited to prior convictions that were obtained through proceedings that included the right to a jury trial. Juvenile adjudications that do not afford the right to a trial by jury do not fall within the exception.
Judge Brunetti wrote a forceful dissent from the Tighe majority:
“In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. Extending Jones’ logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.” 266 F.3d at 1200.
This rationale corresponds with the rationale and holding in LaMunyon that juvenile adjudications are constitutional even though no right to jury trial attaches to the proceedings and, therefore, they may be used to calculate the defendant’s criminal history score under the sentencing guidelines.
Hatt does not allege any violations of his due process rights in connection with his juvenile proceeding; accordingly, inclusion of his juvenile adjudication in his criminal history score does not violate either Apprendi or Gould.
Hatt asks this court to take judicial notice of the California statutory procedure for juvenile adjudications. The California statutes appear to be quite similar to our Kansas statutes, but even were we able to do so, it is not at all clear how taking judicial notice of them would aid Hatt’s argument.
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Per Curiam:
This is a severance of parental rights case. The district court severed the parental rights of the biological parents to both children in this case. The issues on appeal concern the denial of a motion for custody filed by the maternal grandmother requesting the district court to grant her custody of the children for the purpose of adoption under K.S.A. 38-1584.
We affirm.
The two issues on appeal are as follows:
I. Does K.S.A. 38-1584(b)(4) create a rebuttable presumption in favor of custody with a relative for purposes of adoption?
II. Who bears the burden of proof and the burden of producing evidence in regard to obtaining custody of the children for adoption?
The facts of this case are not in dispute.
On May 12, 1999, G.M.A. and S.R.A were found to be children in need of care for reasons not relevant here. Subsequently, the district court terminated both natural parents’ rights to the children. Neither parent has appealed this ruling.
On May 25, 2000, the maternal grandmother filed a motion asking for custody of the children. In the maternal grandmother’s motion she seeks custody for the purposes of adopting the children. After hearing evidence and argument from counsel, the district court found it would not be in the children’s best interests to be placed in the custody of the maternal grandmother and, therefore, denied her motion.
Rebuttable Presumption
The maternal grandmother first argues that the court erred in finding K.S.A. 38-l584(b)(4) does not create a rebuttable presumption in favor of giving custody to a relative, when the relative requests custody for purposes of adopting the subject child or children. She claims the court’s ruling, finding that it would not be in the best interests of the children, in effect eviscerates the language of the statute. We disagree.
K.S.A. 38-1584 reads in relevant part:
“(a) Purpose of section. The purpose of this section is to provide stability in the life of a child who must be removed from the home of a parent, to acknowledge that time perception of a child differs from that of an adult and to malee the ongoing physical, mental and emotional needs of the child the decisive consideration in proceedings under this section. The primary goal for all children whose parents’ parental rights have been terminated is placement in a permanent family setting.
“(b) Actions by the court. (1) Custody for adoption. When parental rights have been terminated and it appears that adoption is a viable alternative, the court shall enter one of the following orders:
(A) An order granting custody of the child, for adoption proceedings, to a reputable person of good moral character, the secretary or a corporation organized under the laws of the state of Kansas authorized to care for and surrender children for adoption as provided in K.S.A. 38-112 et seq., and amendments thereto. The person, secretary or corporation shall have authority to place the child in a family home, be a party to proceedings and give consent for the legal adoption of the child which shall be the only consent required to authorize the entry of an order or decree of adoption.
(B) An order granting custody of the child to proposed adoptive parents and consenting to the adoption of the child by the proposed adoptive parents.
(2) Custody for permanent guardianship. When parental rights have been terminated and it does not appear that adoption is a viable alternative, the court may enter an order granting custody of the child for permanent guardianship to a reputable person of good moral character. Upon appointment of a permanent guardian, the court shall discharge the child from the custody of the secretary.
(3) Custody for placement with a fit and uAlling relative. When parental rights have been terminated and it does not appear that adoption is a viable alternative, the court may enter an order granting custody of the child for placement with a willing relative who is a reputable person of good moral character. Upon an order of custody and placement with a fit and willing relative, the court shall discharge the child from the custody of the secretary.
(4) Preferences in custody for adoption or permanent guardianship. In making an order under subsection (b)(1) or (2), the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting such custody to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties.
“(f) If the secretary has documented to the court a compelling reason why neither custody for adoption nor custody for permanent guardianship nor custody for placement with a fit and willing relative are currently a viable option, the court may order custody to remain with the secretary for continued permanency planning and another planned permanent living arrangement.”
This is an issue of statutory interpretation and thus a question of law. Interpretation of a statute is a question of law, and this court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 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, 533, 17 P.3d 355 (2001).
“ In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]’ ” State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998) (quoting State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 [1998]).
The trial court in this case noted that under K.S.A. 38-1501 a proceeding under the Kansas Code for the Care of Children is civil in nature. The court went on to find that K.S.A. 60-413 provides the definition of a presumption and K.S.A. 60-414 the effect of a presumption. However, the legislature used the word “preference” rather that the word “presumption.” The court noted that in K.S.A. 38-1585 the legislature used the word “presumption,” indicating the legislature knew the difference between the two terms.
In In re R.P., 12 Kan. App. 2d 503, 749 P.2d 49, rev. denied 243 Kan. 779 (1988), this court reviewed a similar argument under the 1987 version of this same statute. K.S.A. 1987 Supp. 38-1584 read in relevant part:
“(3) Preferences in custody for adoption or long-term foster care. In making an order under subsection (c)(1) or (2), the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting such custody to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties.”
In In re R.P., one of the appellants was the child’s uncle. The trial court found that while the appellants were good prospective adoptive parents, it would not be in the best interests of the child to destroy the trusting and loving relationship the child had experienced over the 2 years the child had been with the foster parents. To do so would cause serious consequences and inflict great emotional pain upon R.P. The uncle argued the legislature did not intend for close emotional ties with the foster parents or other nonrelatives to change the statutory preference for placement with relatives, claiming the legislature had determined that placement of a child with suitable relatives is in the best interests of a child and a trial court lacked jurisdiction to determine otherwise.
This court disagreed, noting the language of K.S.A. 1987 Supp. 38-1584(a) emphasized the court’s duty was to act in the child’s best interests. The language of the statute remains unchanged in the current version.
“In 38-1584(c)(3), the legislature has expressed the policy that preference for adoption should be given to a relative of the child. This policy, however, must be balanced with the policy ‘to make the ongoing physical, mental and emotional needs of the child the decisive consideration.’ ” 12 Kan. App. 2d at 505.
In In re R.P., this court concluded the trial court had applied the statutoiy preference and such placement was a matter within the sound discretion of the trial court. 12 Kan. App. 2d at 505.
Other than some changes in the wording and numbering of statutory sections not relevant here, the statute remains unchanged from when In re R.P. was decided. Here, the maternal grandmother goes to great length to argue the legislature meant for the relative preference to operate as a presumption as it is defined under the rules of evidence. However, the maternal grandmother fails to produce any legislative or case law authority for this position. A long-standing rule of statutoiy construction states that when the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). Conversely, when the legislature fails to modify a statute to avoid a long-standing judicial construction of that statute, the legislature is presumed to agree with the court’s interpretation. Clanton v. Estivo, 26 Kan. App. 2d 340, 343, 988 P.2d 254 (1999).
Under K.S.A. 60-413 “[a] presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.” A “preference” has been defined as the act of preferring one thing above another, the choice of one thing rather than another, or the state of being chosen or preferred before others. See 33 Words and Phrases, Preference. A preference has also been defined as “the granting of precedence or advantage to one over others.” Webster’s II New Riverside University Dictionary 927 (1988). No authority indicates that tírese terms are synonymous.
Given that the legislature has used the word presumption in adjacent statutes in the Code for Care and Treatment of Children, yet used the word preference in K.S.A. 38-1584(b)(4) and the fact that the legislature has failed to modify the language in the statute for 13 years following the In re R.P. decision, the trial court was correct in that the statute does not create a rebuttable presumption in favor of placing the child with a relative. “It is presumed the legislature understands tire words it uses and intends to use those words in their common and ordinary meaning.” Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App. 2d 122, 136, 958 P.2d 1162, rev. denied 265 Kan. 886 (1998). While the court is to grant a preference to a relative seeking custody of the child for adoption purposes under K.S.A. 38-1584(b)(4) over other qualified applicants, there is no indication the legislature means “preference” to mean a rebuttable presumption. Further, as stated in In re R.P., the court must exercise this preference in light of the best interests of the child.
Burden of Proof
The maternal grandmother’s second argument is closely tied to her first. She argues that because the statute creates a presumption in favor of custody being given to a relative, it was therefore up to the opposing parly to come forward and show why the relative, in this case the maternal grandmother, should not have custody.
The trial court disagreed, relying on general rules of evidence that the party seeking a change bears the burden of proof and the maxim that where relevant facts he peculiarly within the knowledge of a party, that party has the burden of proving the issue.
There is no statutory guidance on who bears tire burden of proof in proceedings under K.S.A. 38-1584.
“ ‘Burden of proof means the obligation of a party to meet the requirements of a rule of law that the fact be proven either by a preponderance of the evidence or by clear and convincing evidence or beyond a reasonable doubt, as the case may be. Burden of proof is synonymous with ‘burden of persuasion.’ ” K.S.A. 60-401.
The determination of which party shall bear the burden of proof is a question of law, and, therefore, this court’s review is unlimited. See Glassman v. Costello, 267 Kan. 509, Syl. ¶ 2, 986 P.2d 1050 (1999). In most situations, the burden lies with the moving party, although not always (for example, a motion to suppress). In re Marriage of Gordon-Hanks, 27 Kan. App. 2d 987, 994, 10 P.3d 42 (2000). Our court has repeatedly held the burden of proving a change in custody is warranted rests upon the movant. Simmons v. Simmons, 223 Kan. 639, 642, 576 P.2d 589 (1978).
In this case, the maternal grandmother filed a motion under K.S.A. 38-1584 to be given custody of the children for the purposes of adoption. As the movant or proponent of the motion, she would ordinarily carry the burden of proof as to why she should be given custody. It is often said that the burden of proof rests with the party who, absent meeting his or her burden, is not entitled to relief, or upon the party that would be unsuccessful if no evidence were introduced on either side. Also, the burden of proof generally falls upon the party seeking a change in the status quo. 29 Am. Jur. 2d, Evidence § 158.
While there is no definitive statutory or case law answer to this question, we conclude the trial court’s decision is sound and is affirmed.
Standard of Proof
Last, the maternal grandmother argues the district court erred in finding the standard of proof was by the preponderance of the evidence. She claims that because K.S.A. 38-1584(b)(4) creates a rebuttable presumption in favor of the relative, then the standard for rebutting a presumption under K.S.A. 60-416 mandates that the party opposing the granting of custody to the relative must do so by clear and convincing evidence.
We conclude the district court’s reasoning is sound. In a civil case filed under K.S.A. 38-1501, the standard of proof is by a preponderance of evidence. Witschner v. City of Atchison, 154 Kan. 212, 215, 117 P.2d 570 (1941).
Affirmed. | [
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Lewis, J.:
This case borders on the bizarre. The appellants are Emporia Motors, Inc. (Emporia Motors); Davis-Moore Oldsmobile, Inc. (Davis-Moore); and Cormack Enterprises (Cormack), which we shall refer to collectively as “the Taxpayers.” The Taxpayers all filed for relief from tax grievances in their respective counties on forms provided by the Kansas Board of Tax Appeals (BOTA). Each county involved in the tax challenge had an opportunity to respond to the grievances and make recommendations. Both Riley and Sedgwick County indicated that the Taxpayers’ facts were true and correct, that relief should be granted, and that no hearing was requested. Sedgwick County stated that the exemption on the dent repair tools should be left to BOTA’s discretion. Lyon County, which is not a party to this appeal, stipulated to the facts in the application and informed BOTA that the exemptions requested had already been granted for tax years 1997 and 1998 and requested no hearing. The hearing was scheduled and rescheduled on a number of occasions. However, at the hearing, BOTA made inquiry of each county present as to whether it had an objection to the Taxpayers’ application. Sedgwick County’s counsel stated that the exemption should be granted to Davis-Moore. Lyon County’s counsel indicated relief had already been granted. Riley County waived its appearance.
The Taxpayers went into the hearing in a rather perfunctory manner, assuming the matter was essentially settled, that no one was opposing their applications, and that the grant of relief would simply be automatic. However, BOTA ignored the desires of all the parties and denied relief to each of the Taxpayers on the basis that the burden of proof had not been met.
In the case involving the Cormack request for exemption, BOTA ' stated:
“As noted earlier, the burden of establishing the tax exemption is on the party requesting the exemption. After reviewing the invoices provided by the applicant, the Board could find no evidence that some of the components had a retail cost when new of $250 or less. The invoices list the total price of the system, not an individual price for the parts of the system. The Board concludes that the request for an exemption must be denied.”
The journal entries involving the requests by Emporia Motors and Davis-Moore followed basically the same theory in denying the application for relief. While there were other issues involved, this appeal is limited to the issues on the request for exemption.
When the Taxpayers realized they had been misled into believing that the relief would be granted, they asked for further opportunity to appear and to explain and document their entitlement to exemption. BOTA denied that application. This appeal followed.
We reverse and remand.
BOTA orders are subject to judicial review pursuant to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. National Council on Compensation Ins. v. Todd, 258 Kan. 535, 538, 905 P.2d 114 (1995). The applicable scope of review of actions of state agencies is statutorily stated as follows:
“(c) The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(5) the agency has engaged in unlawful procedure or has failed to follow prescribed procedure;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary, or capricious.” K.S.A. 77-621(c).
Focusing on subsection (8) of the statute quoted above, we consider “unreasonable” to be an action taken without regard to the benefit or harm of all interested parties which is so wide of the mark that its unreasonableness lies outside the realm of fair debate. Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980). “An agency’s action is ‘arbitrary and capricious’ if it is unreasonable or ‘without foundation in fact.’ ” Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 475, 749 P.2d 21 (1988).
“BOTA is a specialized agency that exists to decide taxation issues, and its decisions should be given great weight and deference when it is acting in its area of expertise. However, if we find that BOTA’s interpretation is erroneous as a matter of law, we will take corrective steps.” In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999).
When construing tax statutes, statutes that impose a tax are to be strictly construed in favor of the taxpayer. Tax exemption statutes, on the other hand, are to be construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify. Presbyterian Manors, Inc. v. Douglas County, 268 Kan. 488, 492, 998 P.2d 88 (2000).
In the case at hand, BOTA denied the Taxpayers’ requests for exemption on the basis that the Taxpayers failed to present sufficient evidence that they were entitled to exemption. The burden of establishing exemption from taxation is on the one claiming it. Woman’s Club of Topeka v. Shawnee County, 253 Kan. 175, 189-90, 853 P.2d 1157 (1993).
We conclude that the manner in which BOTA conducted this hearing was unreasonable and arbitrary and should be set aside for that reason. We not only fail to understand BOTA’s action, but we question the action of Sedgwick County and Riley County in filing briefs attempting to support BOTA’s decision. In this case, those counties all conceded that the applications for tax relief contained adequate documentation to grant the exemption requests. Sedgwick County orally agreed that the exemption should be granted. Riley County stipulated to the facts before BOTA by indicating its assent to exemption on the grievance application. If this was not enough to lull the Taxpayers into a false feeling of security, BOTA did not question the adequacy of the documentation submitted or notify any of the parties that it was going to reject its stipulations. We hold that BOTA is required to provide parties with some degree of notice under these circumstances.
To agree that a party is entitled to relief, stipulate that its documentation is satisfactory, and then, without notice, change one’s position at the time of hearing strikes us as improper and unfair.
We are not saying that BOTA must accept every stipulation submitted to it by the parties to BOTA proceedings. However, when BOTA fails to question the adequacy of the documentation submitted or to give the parties any notice that it is electing to reject their stipulations, this, in our opinion, denies due process. Where a party has been led to believe that it need not provide exhaustive evidence because everyone agrees it is entitled to the relief requested, BOTA must notify the parties should it decide to reject the stipulations of the parties and conduct a full and complete hearing on the application.
BOTA’s decision is reversed, and the matter is remanded with orders to conduct a full and complete hearing on the requests for exemption by the Taxpayers.
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Lewis, J.;
Bichelmeyer Meats is a retail establishment which was operated by John Bichelmeyer from 1954 to 1975. In 1975, John’s sons, James and Joseph Bichelmeyer, took over the business and formed Bichelmeyer Meats, a corporation. In 1995, a fire destroyed their retail meat operation. The company had insurance and ultimately settled with the insurance company for around $349,000 in proceeds. The corporation, however, determined it was underinsured and that this was the fault of its insurance agent. It filed this lawsuit against its own insurance agents and others, alleging that the agents were negligent in providing inadequate insurance coverage. The trial court granted summary judgment in favor of defendants, and plaintiff appeals.
The summary judgment motion was decided under a joint stipulation of uncontroverted facts. According to those facts, John Bichelmeyer purchased some insurance products from an agent who later sold his business to William Lindquist, Sr. John continued to do business with Lindquist and purchased public liability insurance coverage on customers’ meat and workers compensation insurance. John never purchased property insurance on his building or business from Lindquist.
After James and Joseph Bichelmeyer took over the retail meat business, they did some insurance business with William Lindquist, Sr.’s son, Jack Lindquist, starting in 1992, when Jack took over his father’s business. The corporation also did business with Marino & Wolf, Inc., an insurance agency, which merged with William Lindquist and Sons.
In 1975, the corporation purchased its first insurance policy from William Lindquist and Sons, providing property coverage for its building. Over the next several years, the corporation continued to purchase its property coverage insurance from William Lindquist, Sr. Lindquist would come to the corporation’s place of business approximately two times a year. On one occasion, he would bring the policy along for renewal, and on the other he would purchase a ham for Christmas. The record indicates that at no time was William asked or told by Bichelmeyer Meats to appraise the property for insurance purposes. James Bichelmeyer indicated he would tell William he needed insurance, and “Bill would come with an insurance policy saying this is what he thought we needed.” James indicated he trusted William’s judgment and that he expected that William would determine the value of the property every time he sold the insurance.
In 1993, James asked the insurance agency to increase the limits on his insurance policy by $50,000 to cover customers’ goods. He also requested an increase in the contents coverage on personal property because he had read an article or two in trade magazines about reviewing your insurance policy coverage. In addition, he provided Lindquist with a specific amount of insurance he wanted along with a quote of $5,700 that he had obtained through another insurance company. James specifically requested the Linquists to provide the corporation with a similar policy for a lesser premium than $5,700. The Linquists acceded to this request, obtained a policy with the specific coverage and limits requested, and sold it to Bichelmeyer Meats at an acceptable premium. When that policy expired, Bichelmeyer renewed the policy without any changes in coverage. It was this renewal policy which was in effect at the time of the fire.
Bichelmeyer Meats contends it was underinsured at the time of the fire and that the insurance agents had a duty to provide adequate insurance coverage for the corporation.
There were two different trial judges involved in this action. At the beginning, Judge Carlos Murguia presided, and he denied a motion for summary judgment filed by the defendants. Soon thereafter, he was appointed to a federal judgeship, and a new trial judge took over.
The new trial judge was Judge R. Wayne Lampson. After Judge Lampson was assigned the case, Bichelmeyer Meats and Atlantic Insurance Company (Atlantic) entered into a joint stipulation of uncontroverted facts. Atlantic then filed a motion for summary judgment based on those facts. Marino & Wolf and the Lindquists also filed a second motion for summary judgment at the same time.
Judge Lampson held a hearing on the motions and granted summary judgment to the defendants. The trial court found that the defendants had no duty to provide adequate insurance without a specific request to do so.
This appeal followed.
Our standard of review in a case of this nature 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 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 summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy 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, summaiy judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
The plaintiff first argues that the “law of the case” doctrine requires that we reverse Judge Lampson’s decision to grant summary judgment. We do not agree.
The law of the case doctrine is generally described in 5 Am. Jur. 2d, Appellate Review § 605:
“The doctrine of the law of the case is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so. This rule of practice promotes the finality and efficiency of the judicial process. The law of the case is applied to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.”
A court retains an inherent power to review its own proceedings and to correct errors and to prevent injustice until a final judgment is entered even if the same issue is presented to a different judge of the same court in the same case. City of Wichita v. Rice, 20 Kan. App. 2d 370, 376, 889 P.2d 789 (1995). “Although factual issues may be particularly unsuitable for reconsideration, legal issues are more suitable.” 20 Kan. App. 2d at 376.
The law of the case doctrine does not apply under the circumstances shown. In McTaggart v. Liberty Mutual Insurance Co., 267 Kan. 641, 645, 983 P.2d 853 (1999), our Supreme Court affirmed the decision by a trial court to grant a second summaiy judgment motion after a previous motion had been denied. On appeal, it was argued that the previous ruling should not have been nullified by the second ruling. The Supreme Court disagreed and stated: “There is no question that a trial court retains control over its proceedings and has the power to correct errors or injustice until a final judgment is entered.” 267 Kan. at 645.
In this case, no final judgment was entered on the case at the time the first motion for summary judgment was denied. Under those circumstances, there is no question that Judge Lampson had the authority to grant the second motion for summary judgment. The purpose of summary judgment motions is to encourage judicial economy and to prevent unnecessary litigation. To apply the law of the case doctrine under the facts shown would be counter to that concept.
We hold the trial court did not err in granting the second motion for summary judgment even though a similar motion had earlier been denied by a previous trial judge.
Plaintiff next argues that Marino & Wolf and the Lindquists were insurance brokers and agents of Bichelmeyer Meats and that they were impressed with fiduciaiy duties which were violated. The existence or nonexistence of an agency relationship is a question of law for the court to decide. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24 (1992). The existence of a duly is a question of law and, as an appellate court, we have unlimited review on questions of law. Kennedy v. Kansas Dept. of SRS, 26 Kan. App. 2d 98, 100, 981 P.2d 266 (1999).
In response to the propositions set forth by the plaintiff, defendants insist they are independent insurance agents and that while they may have procured the requested insurance for Bichelmeyer Meats, there was no agency relationship between the parties whereby they agreed to determine the adequacy of the coverage. The uncontroverted stipulation of facts supports the defendants’ argument. The insurance that was in effect at the time of the fire was provided by the Lindquist agency only after it had been given the specific terms which the corporation wanted and had been asked to beat a quote of $5,700 for the premium. In response to this request, the insurance agency obtained a policy with the specific coverage and limits requested. Even though this initial policy had expired, it was renewed by the corporation with no changes in coverage and the same coverage and limits were in effect at the time of the fire.
We have no idea what the relationship was prior to the request for this particular insurance policy, but the uncontradicted stipu lation of facts indicates that in obtaining this particular policy, Bichelmeyer Meats did not request that the defendants procure them a policy with adequate coverage, only that the defendants provide them a specific policy for a lesser premium than quoted. Under those circumstances, we agree with the trial judge that the insurance agencies had no duty to advise Bichelmeyer Meats as to whether the coverage it requested was adequate.
The law is clear in Kansas that an insurance agent or broker who undertakes to procure insurance for another owes to the client the duty to exercise the skill, care, and diligence that would be exercised by a reasonably prudent and competent insurance agent or broker acting under the same circumstances. Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 683, 634 P.2d 133 (1981). This is nothing more than saying that an insurance agent has a duty to exercise care under the circumstances. The facts in this case show there was no specific type of agency agreement between the parties. There is no argument that an express agency was involved. An implied agency would only exist where it appears from the statement and conduct of the parties that the intention was to clothe the agent with such an appearance of authority and when the agency was exercised, it would lead others to rely on the person’s actions as being authorized by the principal. Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390-91, 710 P.2d 1297 (1985). The party asserting that an agency relationship exists has the burden of establishing the existence of the agency with substantial evidence that is clear and convincing in quality. Barbara Oil, 250 Kan. at 447-48. In this case, that burden was not satisfied.
There is a federal district court decision which illustrates the point involved in this action. In Hartman v. Great Central Ins. Co., 915 F. Supp. 250 (D. Kan. 1996), a commercial building was burned to the ground, and the plaintiff claimed that the defendants had failed to procure sufficient commercial insurance to protect it. The court held that Kansas does not recognize any duty to procure adequate business property insurance in the absent of the agent undertaking to procure such insurance and went on to say:
“Hartman simply has not come forth with sufficient evidence from which a reasonable jury could find that he had expressly delegated to Nash-Finch the authority to procure commercial insurance on his behalf or to assume any of the other delegable duties for which he sues. He does not cite any deposition testimony or written exhibits tending to show that he told a Nash-Finch representative to procure him commercial insurance in a requested amount, to determine his insurance needs, and the amount of insurance necessary to protect him in the event of a total loss, or to estimate the replacement value of his inventory and business personal property. There are no contracts, documents or other evidence of record from which to infer that the contractual relationship represented by the affiliation between Nash-Finch and Hartman expressly entailed Nash-Finch also procuring Hartman’s requested insurance, determining his insurance needs, valuing his property for insurance purposes, or advising him on insurance coverage.” 915 F. Supp. at 257-58.
The uncontradicted facts in this case do not show an agency relationship between the plaintiff and the defendants beyond the procurement of tire specific insurance and limits requested. There was no evidence that Bichelmeyer Meats had any understanding with tire defendants which would establish a duty to review the adequacy of insurance required. There was no conversation concerning the adequacy of the coverage or the value of the property insured. The plaintiff requested a specific policy, and the defendants provided it. There is no evidence that any other fiduciary duty existed between the parties. We hold there was no duty on behalf of the insurance agents to provide adequate coverage to Bichelmeyer Meats. The only duty imposed upon the insurance agents in this case was to provide the specific insurance requested, and they certainly did so.
Finally, Bichelmeyer Meats argues the trial court erred in granting summary judgment in favor of Atlantic concerning a coinsurance provision on its claim for lost business income. Bichelmeyer Meats argued that Atlantic was estopped to assert the coinsurance policy provision and that the provision was ambiguous. The trial court determined otherwise. We agree with the trial court.
Construction of an insurance policy is a question of law, and we may construe the policy and determine its legal effect without regard to the determination made by the trial court. State Farm Mut. Auto. Ins. Co. v. Lane, 25 Kan. App. 2d 223, 226, 961 P.2d 64, rev. denied 265 Kan. 886 (1998).
We have examined the coinsurance provision at issue and conclude that according to its unambiguous provisions, the total amount of business income loss was $15,730, which was paid by Atlantic to Bichelmeyer Meats.
Bichelmeyer Meats argues that Atlantic is estopped from asserting this coinsurance provision because it failed to comply with a 30-day provision for payment and notification as set forth in the insurance contract.
Briefly, Bichelmeyer Meats points to a provision in the policy which states: “We will pay for covered loss or damage within 30 days after we receive the sworn statement of loss.” Bichelmeyer asserts the payment was not made within 30 days of the sworn statement of loss and, as a result, Atlantic is estopped to assert the provision. We disagree.
The citation of the provision in the policy on which Bichelmeyer relies is misleading because it ehminates an “if’ clause. That clause reads that payment will be made within 30 days after the sworn statement of loss is received if: “(1) We have reached an agreement with you on the amount of loss” or “(2) An appraisal award has been made.”
The uncontradicted facts are that the parties were unable to agree upon the amount of the loss within 30 days. The claim was paid in a manner consistent with the unambiguous provisions of the policy, and any argument by Bichelmeyer to the contrary is totally without merit.
The coinsurance provision in this policy was not ambiguous and will be enforced as written.
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Lewis, J.:
In 1998, defendant Leonard Billings entered a plea of guilty on two separate occasions to charges of sale and possession of drugs. On each occasion, he was fortunate enough to be placed on probation. However, he promptly proceeded to violate probation in both cases, probation was revoked, and he was incarcerated. On appeal, he argues the trial court erred in revoking his probation.
We do not agree and affirm the decision of the trial court.
The basis of defendant’s appeal is that the trial court erred in failing to advise him of all of his constitutional rights during the revocation hearing. It is true the trial court did not advise defendant that he had the right to present evidence and cross-examine witnesses during his hearing, and this is the point on which defendant bases his appeal. The question we must decide is whether the trial court was required to advise defendant of those rights.
Initially, we note that there is no issue in this case as to whether a defendant has the right to present evidence and cross-examine witnesses during a probation revocation hearing. There is no question that defendant does have that right and, should he be arbitrarily deprived of that right, it would be a violation of his constitutional rights. The question presented here is whether the trial court was required to advise him that he had the right to present evidence and cross-examine witnesses.
Defendant was given a full probation revocation hearing and was represented by counsel during that hearing. Prior to the beginning of the hearing, defendant’s counsel advised the court that defendant would waive a hearing and stipulate that he had violated the terms of his probation. The trial judge specifically asked defendant if his attorney’s offers of waiver and stipulation were correct, and defendant replied that they were. The court then heard concluding argument from defendant himself and revoked defendant’s probation.
We find defendant’s argument totally lacking in logic. It is rather strange to hear one argue that although he stipulated to the evidence and waived the hearing, he should still have been advised of the right to present evidence and cross-examine witnesses at a hearing that would not take place because he had waived it. The lack of logic in defendant’s argument is sufficient in and of itself to affirm the trial court’s decision.
In this state, K.S.A. 22-3716 governs the procedures for revocation of probation. In State v. Rasler, 216 Kan. 292, 296, 532 P.2d 1077 (1975), the Supreme Court held that K.S.A. 22-3716 meets all the constitutional requirements for such proceedings. That statute provides in relevant part:
“[T]he court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged. The hearing shall be in open court and the state shall have the burden of establishing the violation. The defendant shall have the right to be represented by counsel and shall be informed by the judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant. The defendant shall have the right to present the testimony of witnesses and other evidence on the defendant’s behalf. Relevant written statements made under oath may be admitted and considered by the court along with other evidence presented at the hearing.” K.S.A. 21-3716(b).
The Supreme Court of the United States has determined that revocation of probation is not part of a criminal prosecution and, therefore, the full panoply of rights due a defendant in a criminal case is not applicable to a probation revocation proceeding. Gagnon v. Scarpelli, 411 U.S. 778, 786, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Minimum due process includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him or her, the opportunity to be heard in person and to present evidence and witnesses, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement by the factfinder as to the evidence relied on and reasons for revoking probation. The probationer also has a right to the assistance of counsel. Black v. Romano, 471 U.S. 606, 612, 85 L. Ed. 2d 636, 105 S. Ct. 2254 (1985). We have been unable to find any Kansas or United States Supreme Court decision that has required the trial judge to inform the accused violator that he or she has the right to call witnesses and present evidence in his or her own behalf, as well as a conditional right to confront and cross-examine the witnesses against him or her, before accepting a stipulation to violations of the term of probation.
Defendant has cited as his primary support the Maryland decision of Hersch v. State, 317 Md. 200, 209-11, 562 A.2d 1254 (1989). Defendant has also cited other decisions of a similar nature. We agree that these decisions do, to a certain extent, support the position taken by defendant, but we also point out they are not Kansas decisions and they are not binding on this court.
We conclude there is no requirement that a trial judge advise a defendant that he or she has the right to present evidence and cross-examine witnesses prior to allowing the violator to stipulate to the alleged violations. There is adequate protection of the due process rights of a defendant by providing him or her with an attorney, who should advise as to the due process rights that apply.
We also rely on the fact that continuing probation after a violation of the conditions of probation is an act of grace exercised by the sentencing judge and is granted as a privilege and not as a right. State v. Yura, 250 Kan. 198, 206, 825 P.2d 523 (1992). The Kansas Supreme Court has shown no indication that it will expand upon the procedures listed in K.S.A. 22-3716. See, e.g., State v. Lumley, 267 Kan. 4, 14, 977 P.2d 914 (1999). We also decline to expand upon those procedures.
Finally, we point out that defendant admitted violating the conditions of his probation and has advanced absolutely no argument to show how he was prejudiced by the failure of the trial court to specifically advise him of his due process rights. See State v. Borders, 255 Kan. 871, 881, 879 P.2d 620 (1994). Defendant had an opportunity to at least proffer what evidence he might want to show if he had the right to present witnesses and cross-examine witnesses and failed to do so. We see absolutely no prejudice to the substantial rights of defendant by the trial court’s rulings in this case.
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'The opinion of the court was delivered by
Porter, J.:
William Simmonds, the plaintiff, made a,written contract with Long & Sills to purchase 160 •acres of land, and deposited with them $150 as earnest- money and part payment on the purchase-price. The contract was dated December 14, 1906. By its terms possession, was to be given in sixty days, and time was made the essence of the contract. It was further agreed that if a good and sufficient deed and abstract could not be furnished the $150 earnest-money should be returned to Simmonds.
On February 18,1907, which was after the sixty days had expired, the owners of the land met plaintiff in the office of Long & Sills, and because a number of mortgages which were on the land could not be released, and because Silvius, one of the owners who was in possession of the land, refused to give possession, as agreed, the sale fell through. Plaintiff then demanded the return of his $150, under the terms of the contract. Long & Sills refused to pay it, and this .action was brought before a justice of the peace. It was afterward appealed to the district court and there tried. The court sustained a demurrer to the evidence of the plaintiff and rendered judgment against him for costs. These proceedings are brought to review the judgment.
The written contract described Long & Sills as agents, and they signed it as agents, but did not disclose therein the name of their principal. The demurrer to the evidence was based upon the cross-examination of' the plaintiff, who testified that he knew who owned the-land and that Long & Sills were merely agents for the owners; that he paid the money to them, and supposed the money was paid on the land. The trial court held that he had no cause of action against the defendants,, because he knew they were agents and who their principal was. On the trial R. O. Silvius, one of the owners, testified that he had never placed the land with Long & Sills for sale, although after the contract was entered into he ratified their action; that they never- paid him any of the money; that he understood the money in their hands was to be held by them until the deal was, closed, when they were to have $100 as commission,,, and. that the expense of making the sale and the cost of the abstract were to come out of the balance of the money in their hands.
The ruling of the trial court, it is said, is supported by the law declared in McCubbin v. Graham, 4 Kan. 397. In that case the defendant received a. 500-dollar bond merely as the agent of and for the use of Fleming, his principal, disclosing his principal at the time, and delivered the bond to him. The general doctrine was declared that the authorized acts of an agent are the acts of a principal; that where an agent receives money or property for his principal he is liable to his principal for the same, but not liable to the party from whom he received the money or property.
We-think that under the evidence in this case the defendants were not in a position to insist upon that doctrine, not because they failed to disclose the name of their principal, for the evidence shows that the plaintiff knew at the time who the owners of the land were and that the defendants were acting as agents, but for the reason that the evidence discloses that the defendants had no authority to receive the money for the owners of the land, nor did they have authority to bind the owners to give possession in sixty days, and because they never paid the money to the owners. The testimony of Silvius is that he never knew he was to give possession of the land in sixty days until after that time had expired. The facts are that defendants undertook to enter into a contract as agents for a principal without authority, and the principal refused to be bound. The law is well settled in such cases that where the proceeds received by the agent have not been turned over to the principal the agent is liable personally.
There is a class of cases holding that where a contract has been entered into by one who assumes to act as the agent of another, but who lacks the requisite authority, the contract may be stripped of what the agent had no right to put there, and if it still contains, apt words to charge him he is bound thereby. (Byars v. Doores’ Adm’r, 20 Mo. 284; Woodes v. Dennett, 9 N. H. 55; Moor v. Wilson, 26 N. H. 332; Wears v. Gove, 44 N. H. 196; Hegeman v. Johnson, 35 Barb. [N. Y.] 200; 1 A. & E. Encycl. of L. 1128.) Thus, in Byars v. Doores’ Adm’r, swpra, it was said that, where the agent signs his own name to a written contract as agent for a principal, yet if he fails to employ language which will exclusively bind the principal, or “if, rejecting the words which he had no authority to use, enough will remain to create a promise on his part, he will be personally liable on the contract.” . (Page 285.) The question was discussed at length in Hegeman v. Johnson, supra, where it was said, in respect to written contracts, that the rule is limited “to cases where the agent signs his own name, although he describes himself as an agent. This description, being surplusage, may be stricken out, and a personal obligation will remain.” (Page 207.)
It is true, as a general rule, that the remedy against, an agent who assumes to act for another without authority is an action for damages for the wrong done, and he is not personally bound by the terms of the contract unless it contain apt words to charge him. (Duncan, Sherman & Co. v. Niles, 32 Ill. 532; Hall v. Crandall, 29 Cal. 567; Wallace v. Bentley, 77 Cal. 19.) Stripping the contract here of those things which defendants had no authority to bind the owners of the land to perform, it would not be difficult to find remaining an agreement to return to the plaintiff the earnest-money. But, independent of anything in the contract itself that would bind the defendants, the law under such circumstances implies an agreement on their part to restore the money, because the contract which they assumed to have authority to make has failed and they have the money of the plaintiff in their hands. In Buller v. Harrison, 2 Cowp. (Eng. 1777) 565, Lord Mansfield said:
“In general the principle of law is clear that if money be mispaid to an agent expressly for the use of his principal, and the agent has paid it over, he is not liable in an action by the person who mispaid it; because it is just that one man should not be a loser by the mistake of another; and the person who made the mistake is not without redress, but has his remedy over against the principal. On the other hand it is just that, as the agent ought not to lose, he should not be a gainer by the mistake. And therefore, if after the payment so made to him, and before he has paid the money over to his principal, the person corrects the mistake, the agent can not afterward pay it over to his principal, without making himself liable to the real owner for the amount.” (Page 566.)
In that case it was held that an action for money had and received to the use of the person so paying it will lie against the agent. In the case at bar the bill of particulars upon which the case was tried was for money had and received.
In Wallace v. Bentley, 77 Cal. 19, it was held that the agent is not liable as principal on a contract signed by him without authority unless the contract contain apt words to charge him personally; but it was further said that he would be liable in an action to recover money paid under the contract by reason of his wrong in assuming to act without authority.
In Jefts & Wife v. York, 10 Cush. (Mass.) 392, it was held that where the money had not been paid .over to the principal the measure of damages was the amount retained by the agent, and that it could be recovered in an action for money had and received. To the same effect is Cox v. Prentice, 3 M. & S. (Eng.) 344, holding that where the account remains open, and no change of circumstances has taken place, the agent will not be relieved. Of course, where the account between the principal and agent has been settled and closed the agent is discharged. (Mowatt v. McLelan, 1 Wend. [N. Y.] 174.)
In Fowler & Co. v. Quall, 36 Kan. 507, the agent was held not liable on a contract similar to the one in the case at bar. But in that case, after the contract was signed, the parties came together and executed a new contract, and the agent paid the money to the principal in the presence of, and by the consent of, the purchaser. The principal, of course, was bound, and the agent was released from all liability.
But it is well settled also that there is no presumption that the agent has paid the money over to the principal, and the burden is upon him to show that he has done so, as well as to show that he had authority to act for the principal. (Shipherd et al. v. Underwood, 55 Ill. 475; Frankland v. Johnson, 147 Ill. 520; Gillaspie et al. v. Wesson, 7 Port. [Ala.] 454.)
There can be no question that when an assumed agent receives the consideration of a contract an implied promise to pay it back arises, if there is a failure of the contract, and an action may be maintained against him for money had and received so long as the money remains in his hands. In addition to the authorities cited, see: LaFarge v. Kneeland, 7 Cow. (N. Y.) 456; Russell v. Koonce, 104 N. C. 237; Shipherd et al. v. Underwood, supra; Cabot v. Shaw, 148 Mass. 459; 1 A. & E. Encycl. of L. 1129.
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The opinion of the court was delivered by
Benson, J.:
The plaintiff alleged that in a former action between the same parties the defendant had given testimony which was wilfully and corruptly, false, and had thereby obtained a judgment against the plaintiff, causing damages for which he prayed judgment. A demurrer to this petition was sustained, and of this ruling the plaintiff complains.
It was held, in Laithe v. McDonald, 12 Kan. 340, that where a party had obtained a judgment by wilful and corrupt perjury committed in the absence of the other party, who had exercised due diligence, - the judgment should be vacated in an action brought for that purpose under section 568 of the civil code, which provides that the district courts may vacate or modify their own judgments “for fraud practiced by the successful party in obtaining the judgment or order.” The case just referred to is cited by the plaintiff as sustaining his contention, but it does not. That was a direct attack upon the judgment to set it aside; by this action the plaintiff treats the judgment as valid, and seeks to recover damages suffered from it. Such an action can not be maintained. It is the judgment that causes the injury, and it is legally impossible that the losing party to a final adjudication should have an action against his successful adversary to recoup in damages for what he was thus adjudged to render. A judgment, unless set aside or reversed, marks the end of the controversy,' and not a mere pause in the litigation. It is possible that a miscarriage of justice may occur through perjury'in securing a judgment. It is also possible that damages, if they could be awarded in a new action, might be recovered through the perjury of the other party, and so each succeeding adjudication might be reexamined in a fresh action until the parties were exhausted. It will not do to open the door to such gen eral mischief in order to afford relief against the supposed hardships of a particular case.
While decisions upon the precise situation are not numerous, they are persuasive. In an action commenced in New York, to recover damages because of a judgment obtained by the alleged perjury of the defendant on a trial between the same parties in Connecticut, it was said in the opinion of Mr. Justice Spencer, after stating the evils that would result from the precedent if recovery were permitted:
“The old rule is the safest, that the parties must come prepared at the trial to vindicate themselves, and to detect the falsity of the testimony brought against them, if it be untrue; or they must take their chance of obtaining a new trial, by showing that they were surprised, and that they have detected the imposition.” (Smith v. Lewis, 3 Johns. [N. Y.] 157, 167.)
In a concurring opinion in the same case Mr. Chief Justice Kent observed:
.“It would be against public policy and convenience, it would be productive of endless litigation, and it would be contrary to established precedent, to allow the losing party to try the cause over again in a counter suit because he was not prepared to meet his adversary at the trial of the first suit. The general law of the land, and the rules of every superior court of competent jurisdiction, sufficiently provide against forcing a party to trial without giving him a due opportunity to prepare for his defense, and cases of surprise and injustice are generally redressed by the discretionary power of the courts in setting aside verdicts.” (Page 168.)
In addition to the power to set aside verdicts upon motion, referred to in the foregoing quotation, section 570 of our code provides that a new action may be maintained for that purpose. The plaintiff was not therefore-denied a remedy by due course of law, as he contends.
This question was presented in the supreme court of Maine in an early case. The plaintiff alleged that the defendants in a former action against him had recov ■ered by means of false testimony, and sued for damages ■caused by the judgment obtained through such perjury. The court said:
“But the judgment against the plaintiff, so long as it .remains in force, must be considered as true and just. He can not be permitted to aver the falsity of that j'udgment, as the ground for the recovery of damages. It constitutes in itself a clear and unequivocal denial of his allegations. He says that by the fraud and conspiracy of the defendants he has lost the land, but the j'udgment imports that it was properly rendered in the ordinary course of judicial proceedings. . . . The plaintiff himself presents the judgment as the cause of ’his injury, and the basis of his claim against all of the defendants. He does not seek to pass by it, ás res inter >alios acta, but in substance admits it to be binding upon him, though he contends it was unjustly obtained, and alleges that his damages have been caused by it.” (Dunlap v. Glidden & als., 31 Maine, 435, 437.)
The same result was reached in Wisconsin, and was '.stated in a clear and forcible opinion by Mr. Justice Whiton, wherein the principle was held applicable to the alleged perjury of a party in securing an adjudication by the officers of the federal land district, whereby the plaintiff had lost a tract of land. A demurrer to the declaration was sustained, and while the general 'proposition that damages caused through perjury were recoverable in a proper case was conceded, still it was held that the gist of that, action was not the perjury but the unjust recovery consequent upon it. It was said in the opinion:
“The reason why the suit can not be maintained is, not that the false statement was made on oath, but be- ■ cause it was testimony taken in the course of a judicial investigation, before a tribunal clothed with authority to decide the matters in controversy between the parties, and was taken in relation to the matter decided. 'Should the judgment recovered in this suit be permitted to stand, the case would present this anomaly: that while the land which was the subject of controversy between the parties would belong to the plaintiff in «error, the reason for the recovery against him in this suit would be the injustice of the order or decree of the officers of the United States by which it was awarded to him.” (Abbott v. Bohr, 3 Pinn. [Wis.] 193, 195.)
A like decision was made in New Hampshire. A trustee in the process, of foreign attachment had been discharged upon his oath, alleged to have been false. It was held that an action on the case for damages consequent upon the discharge so obtained would not lie. It was said:
“It is quite manifest that in this action the plaintiff seeks to try again the same question that was tried and decided in the former suit between the same parties. This, on well settled principles, he can not be permitted to do.” (Lyford v. Demerritt, 32 N. H. 234, 237.)
In a case recently decided in this court an effort was made in habeas corpus proceedings to retry an issue that had been determined between the same parties by the judgment of a court of competent jurisdiction in another state. Mr. Justice Porter said:
“All courts are likely to be deceived by perjured testimony, and to permit a defeated party to go to another court-foreign or domestic — and procure a retrial of the same issues on the ground that the successful party had fraudulently procured the former judgment upon false testimony would make litigation endless and judgments as unsubstantial as the stuff that dreams are made of.” (Bleakley v. Barclay, 75 Kan. 462, 470.) .
While the issue presented in this case is not the same,, the principle stated is quite applicable. (1 Freeman, Judg., 4th ed., §289; 1 Black, Judg., 2d ed., §296; Pico v. Cohn, 91 Cal. 129; note in 25 Am. St. Rep. 165.) The fact that the judgment was rendered in the same-court where this action was commenced can not affect the application of the rule. If maintainable here it could be brought in any court having jurisdiction wherein the defendant might be summoned.
Section 2307 of the General Statutes of 1901, cited as authority for this action, prevents the merger of the civil right in a criminal prosecution for a felony, but it does not create a remedy where none existed before the prosecution was instituted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The plaintiff prosecutes error from an order denying him a temporary injunction restraining-the defendant street-car company from locating its. track near the curbing on the side of a street in front of his property instead of in the center of the street.
Chicago avenue, or Douglass avenue, of which it is. merely an extension, runs east and west in the city of' Wichita and crosses the Arkansas river. West of the-, river the street is seventy-six feet wide from curb to curb. The space between the curbing and the property- ■ line on each side is occupied by a 16-foot brick sidewalk.. The plaintiff is the owner of certain lots on the north side of the street, the east line of which is seventy-two -feet west of the river-bank. On these lots stands a. livery-barn, which has a frontage of 100 feet, and two entrances from the street. Here the plaintiff conducts, a feed and sales business and practices the profession of a veterinary surgeon. The defendant operates a. street-car system under an ordinance of the city which requires tracks to coincide “as near as may be” with the-center of streets and avenues over which they may pass, unless otherwise directed by the city engineer. Formerly the ordinary traffic of Douglass avenue was carried over the river on a wooden bridge in the center of' the street, and the street-car tracks were laid on a, bridge built for the purpose north of the wooden bridge.. The county commissioners desired to replace the wooden bridge with one constructed of concrete, and to permit. this to be done the street-car bridge was moved farther ■ north — whether farther than is necessary need not now- be considered. As a result the street-car tracks were landed at the river-bank on the inside of the curbing on the north side of the street. The street-car company-then sought to bring the tracks to the center of the street by a leisurely curve which left some four or six feet of space between the curb and the track at the plaintiff’s east barn door, through which his business with the public is chiefly transacted. Cars pass the barn every six minutes, and a railroad track blocks access to it from the rear.
The plaintiff established with sufficient certainty that the street-car company was about to encroach upon the reasonable and ordinary use and enjoyment of the street to which he was specially entitled as an appurtenant to his individual property, and that as a consequence his business would suffer and his property would be depreciated in value. He further showed, though perhaps not so abundantly, that a sharper deflection of the track was practicable, and that it might, without difficulty, be brought to the center of the street soon enough to prevent obstructing the entrance to his barn. The case was disposed of on a demurrer to the plaintiff’s evidence. The evidence was ample to establish a cause of action as against a demurrer, provided injunction is the proper method of obtaining relief. Therefore the court must have taken the view that the plaintiff should have sought redress through an action for damages. The defendant argues here that the plaintiff has mistaken his remedy.
The decision in the case of Street Rly. Co. v. Nave, 38 Kan. 744, is quite conclusive in the plaintiff’s favor. In that case the company obtained permission from the city to construct its railway upon a certain street, within a given time. The time elapsed before the company took advantage of the privilege. Afterward it undertook to lay its tracks alongside certain buildings fronting on the street which had been constructed with special reference to carrying on the wholesale grocery- business. Goods were taken into and out of the buildings upon large transfer wagons backed with the rear wheels against the curbstone. Sometimes farm wagons were used, and the most convenient method of loading and unloading them was. by backing them crosswise of the street. Access to the buildings by the means and in the manner described would have been obstructed by the railway track. If the wagons were placed lengthwise of the street and loaded and unloaded over the sides, as it was possible to do, streetcars could pass them, but other wagons could not pass those which were standing without running upon the street-car track. The building of the railway was enjoined by the district court. This court held the building of the street-car track without authority from the city to be unlawful, the tracks themselves were treated as a nuisance, the resulting obstruction of access to the wholesale houses was held to inflict an injury upon the owners special and peculiar to themselves, independent of and differing from the general detriment to the public, and the judgment awarding an injunction was affirmed.
In the present case the railway company had no right to enter upon the street with its tracks and cars without authority from the city. (Street Rly. Co. v. Nave, 38 Kan. 744.) The provision of the license that tracks shall be laid in the center of the street as nearly as may be means of course as nearly as may be practicable. This grant can not be extended beyond its plain terms, and must be construed strictly against the grantee. (City of Wyandotte v. Corrigan, 35 Kan. 21.) Whenever the railway company departs from a practicable route in the center of the street it acts without authority and its conduct becomes unlawful. Ease, convenience and lessened expense in constructing or in operating the road are not factors to be considered. Slight and inconsequential deflections unintentionally made may not furnish ground for equitable inter ference, but a substantial deviation falls as completely outside the grant as if the tracks were laid upon a forbidden street, and a structure so located is a continuing nuisance which the public authorities or any one specially injured may enjoin.
“Ordinances authorizing obstructions upon the streets of a city, which would otherwise be nuisance^, are strictly construed and must be closely pursued. Any substantial variation from the terms of the grant or license is ultra vires.” (Walker v. Denver, 40 U. S. App. 464, 469.)
“Abutting property owners have the right to insist that a street-railway track be laid in the center of the street, as required by the ordinance authorizing the construction of the road, where such locatioh of the track is practicable.” (Kennedy v. Detroit Railway, 108 Mich. 390, syllabus.)
“The tracks 'of a street-car company should be laid as nearly as practicable in the middle, of the street. If the franchise does not indicate the precise position of the track, and it is not as nearly as practicable to the middle of the street, the track is an unauthorized obstruction, and the owner of the fee of the street may maintain ejectment against the company.
“The mere fact that it is more convenient to the traveling public to have the track on the side of the street, and that it obstructs travel a little less than it would do in the center of the street, is not a sufficient reason for not complying with the law.” (Finch v. Riverside etc. R’y Co., 87 Cal. 597, syllabus.)
“A railway constructed in a public street of a city, without authority of law, is a continuous obstruction, which amounts to a public nuisance.” (D. & S. R’y Co. et al. v. Den. City R’y Co., 2 Colo. 673, syllabus.)
“The rights of the owners of lots abutting on a public street, even though they do not include the fee of the street, are property rights, the invasion of which without authority by an electric railway may be prevented by injunction.
“Where there is an unauthorized obstruction of a public street, all the adjacent lot-owners who sustain a special injury therefrom can maintain a suit for injunction, and no other parties defendant are required than the alleged trespasser.” (Hart v. Buckner, 5 C. C. A. 1, syllabus.)
“A mandatory injunction to compel the removal of an electric-light pole may be granted when the pole is placed in front of the plaintiff’s property without necessity therefor, for the purpose of annoying him and to injure and depreciate the value of his property, and where its placing causes serious injury.
“Poles of an electric railway, if properly placed, do not give ground of complaint to an abutting owner, whether he owns the fee of the street or not.
/‘Poles of an electric railway must not be so placed as to interfere unnecessarily with the right of abutting owners to use and enjoy their property.” (Snyder et al. v. Street Railway Co., 105 Iowa, 284, syllabus.)
“The defendant company is in the street in front of the plaintiff’s premises without municipal consent. It and its employees are trespassers. They are disturbing the surface of the highway; committing a nuisance upon' it of a permanent and, according to the general belief, of a dangerous character. An abutting owner is not debarred from proceeding in such a case because there are other lot-owners on the same street who suffer in the same manner that he does. . . . The plaintiff has what may be called a general interest in the streets as a citizen, and he has a special interest in this street as an abutting owner who must use it as a means of access to his property. He has therefore a right to object to its obstruction by a mere wrongdoer.” (Thomas v. Inter-county St. Ry., Appellant, 167 Pa. St. 120, 125, 126.)
(See, also, Canastota Knife Co. v. Newington Tramway Co. et al., 69 Conn. 146; Hartford v. Hartford Street Ry. Co., 73 Conn. 327; Board of Comm’rs of St. Joseph Co. v. South Bend, etc., Street R’y Co., 118 Ind. 68; The Chicago, St. Louis & Pittsburgh Railroad Company et al. v. Eisert, 127 Ind. 156; Glaessner v. Anheuser-Busch Brewing Ass’n, 100 Mo. 508; Commonwealth v. Railway Co., 127 Pa. St. 278; Richi v. Chattanooga Brewing Co., 105 Tenn. 651.)
It is clearly unjust to property owners on one side of a street to obstruct access to their premises by lay Ing a railway track close to their doors when a practicable route in the center of the street is available and would entail no injurious consequences. The railway company is not the final judge of the practicability of the location of its tracks. The question is one of fact which may be judicially examined and determined as in other cases.
Since the cause must proceed to a final hearing it may be observed that the location of the railway company’s bridge may be called in question as one of the matters affecting the practicability of bringing the car tracks to the center of the street before they reach the plaintiff’s barn. The extent of the plaintiff’s right to use the street in front of his property — also the subject of dispute between the parties — may be noticed further.
Although the streets of a city from side to side and .from end to end are designed primarily for passing •and repassing, it is quite as lawful for persons and property to be temporarily at rest upon them as it is to be in motion. The defendant’s cars must stand still while taking on and discharging passengers. An abutting owner may deposit material on the street in front ■of his property for building purposes and keep it there until, with ordinary diligence in the prosecution of the work, it is consumed. Such an appropriation of the street is exceptional, and is justified on the ground of necessity; but a license for it may be implied in the absence of an ordinance expressly conferring the right. (Kansas City v. McDonald, 60 Kan. 481.) It is furthermore the law that the necessity which justifies temporary encroachment upon a public highway need not be absolute. It is enough if it be reasonable. This does not mean reasonable with reference to the peculiar situation of a particular person or business, but reasonable according to the usages of reasonable men, having due regard for the public convenience.
The opinion of Mr. Chief Justice Tilghman in the rase of The Commonwealth v. Passmore, 1 Serg. & R. (Pa.) 217, is frequently quoted. Passmore was an auctioneer who claimed the right to place goods in a public street and keep them there for the purpose of exposing them to sale. In denying the claim it was said:
“It is true that necessity justifies actions which would otherwise be nuisances. It is true also that this necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleasure. But inasmuch as fuel is necessary a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials may be placed in the str'eet, provided it be done in the most convenient manner. On the same principle, a merchant may have his goods placed in the street for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it. ... I can easily perceive that it is for the convenience and the interest of an auctioneer to place his goods in the street, because it saves the expense of storage. But I see no more necessity in his case than that of a private merchant. It is equally in the power of the auctioneer and the merchant to procure warehouses, and places of deposit, in proportion to the extent of their business.” (Pages 217, 219.)
In the case of O’Linda v. Lothrop, 38 Mass. 292, after justifying the right to use a street for the deposit of earth from a cellar, of material for the erection of a building, and the like, the court said:
“Much less is it a trespass occasionally to allow horses and carriages to stand in the street against or near a house. This is one of the appropriate uses of a highway. If this were to be deemed a trespass, very few of us would escape.” (Page 298.)
In the case of Henning v. Hudson Valley R. Co., 90 N. Y. App. 492, the opinion reads:
“It appears that the defendant’s track is laid within three feet of the curb on the plaintiff’s side of the street; that when a car is run over that track it extends over to within six or eight inches of such curb. From this it necessarily appears that whenever any one would drive up to the plaintiff’s premises his horse and vehicle would stand on the track and no car would pass without running over him. Thus one must be constantly on- the lookout to protect himself from that danger. Under such a situation no hitching-post or horse-block could be maintained opposite the plaintiff’s premises; no one could drive up to and stop before them with safety. Although -I will concede that the mere existence of the tracks and ties located there would not be a serious inconvenience to the use of such premises, yet the passage of cars over them, as so located, would be not only a constant source of danger whenever it was necessary to cross into or out from such premises but would be' a substantial prohibition against driving up and remaining in front of them. It would deprive such premises from the benefit of a very necessary and usual use of the highway. That such an obstruction in the highway would depreciate the market value of the plaintiff’s premises seems to me very clear. Such damage seems also to be peculiar to the premises in question, and. therefore special to the plaintiff. It is clearly ■different from that which the traveling public sustains by reason of such obstruction, and although being an unlawful obstruction in a public highway it is a public nuisance, yet, being located as it is, and operating as it does to substantially prohibit access up to the plaintiff’s premises in the manner above stated, it works as to him a special damage, which authorizes him to ask that the defendant be enjoined from continuing it.” (Page 494.)
Of course the plaintiff has no right to keep horses habitually lodged in the street, nor to use the street as 'an addition to his barn for the storage of vehicles.
“The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking to the convenience of the greater number, prohibits any such use of the public streets. The old cases said the king’s highway is not to be used as a stable-yard, and a party can not eke out the inconvenience of his own premises by taking in the public highway.” (Cohen et al. v. Mayor, etc., of New York, 113 N. Y. 532, 536.)
And the plaintiff has no right to use the street in front of his premises as a sort of equine hospital for the regular practice of his profession. But the plaintiff testified that women frequently come to his place of business in carriages who desire him to examine their horses on the street without obliging them to drive into the barn. Unless the demands of the traffic on this street be very imperious, who can say that its brief occupation on such an occasion is wrongful ? The right of access includes not merely the right of the plaintiff to go into and out of his barn, but the right to be accessible to patrons who come, who go, and who, without inconveniencing others, need to stop a short while outside; and it is perfectly obvious that exigencies will continually arise incidental to the maintenance ef the plaintiff’s barn and the conduct of his business rendering it entirely reasonable that he should use the street temporarily for all the purposes mentioned.
The plaintiff further shows that if the street-car track be laid as contemplated a horse or team can not with safety be driven out of the barn until somebody ascertains whether a street-car is coming and if there is time to cross the track ahead of it. This fact alone will authorize an injunction if the track ought to be in the center of the street.
It is suggested that plaintiff should use the west door ■of his barn, in front of which the track lies more nearly in the center of the street. The action is not ■one of condemnation, in which the plaintiff must be satisfied with facilities much diminished in consequence ef a lawful appropriation. The railway company is charged as a wrong-doer, and the plaintiff is under no obligation to rearrange his barn and reorganize his business to accommodate it in its illegal encroachment.
It is not very apparent why the city and the board of ■county commissioners were made parties, but an injunction ought to have been granted against the builders of the railway track.
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
Benson, J.:
The question to be decided is whether a judgment rendered in favor of the plaintiff on the pleadings was erroneous. The plaintiff, C. A. McAllister, sue'd O. W. Sparks and others to recover an amount claimed to be due upon a written contract for cleaning-and crushing zinc ore. From a copy of the contract attached to the petition it appears that the plaintiff agreed to sell to the defendants his crushing plant and leases for $10,200, but was to have the care- and custody of the mill for one hundred days, during which time he was to crush and clean ore furnished by the defendants from their own adjoining premises for $1 per ton, to be paid when the ore was sold. It was stipulated that the net profits of conducting the mill for that time should be applied on the consideration named; that $200 should be paid after applying these profits, and $500 every thirty days thereafter until the whole amount was fully paid. It was provided that if payments were not made within ten days after maturity, ' as agreed, or the defendants otherwise failed to perform; the contract, the plaintiff might “retain whatever sum may have been paid him, and withdraw said papers from escrow, in full satisfaction of said contract.” Another provision was:
“That said party of the first part is to execute such bills of sale, assignment and transfer of lease and make “a full and complete evidence of transfer of said property, which is to be placed in escrow, together [with] this contract, in the Bank of Joplin, at Joplin, Mo.”
Other stipulations provided that the property should be free from encumbrances at the time of delivery of possession, and that after the expiration of the one hundred days, and when the parties of the second part should take possession of the mill, they should keep it in good repair.
The petition averred the performance of all conditions of the contract on the part of the plaintiff, and stated that the plaintiff had milled 2088 tons of ore, which had been sold, and that the defendants had paid $1304.20 for such milling, leaving a balance due of $783.80, for which judgment was asked.
The answer, after a general denial, admitted the contract, the milling of ore thereunder, and that the amount had been paid, as alleged, and pleaded the performance of all conditions on the part of the defendants. It also alleged that the plaintiff did not own the property at the time he entered into the agreement to sell it, and that “the said defendants, after the contract was entered into, demanded of said plaintiff that he place in escrow [a] bill of sale, assignment and transfer of lease and evidence of transfer of said property as agreed in said contract, which the plaintiff failed, neglected and refused to do.” The answer further alleged that the cost of operating the mill while engaged in crushing ore for the defendants was $575; that defendants had paid $1304.20 for such work, and. prayed for the recovery of $729.20, the excess sc claimed.
The theory of the plaintiff is that the defendants forfeited their right to a conveyance of the mill and abandoned their claim thereto by failing to pay the balance due for milling the ore. The defendants pleaded that they would have made this payment if the plaintiff had deposited the title papers in escrow, as agreed. It appears that each party charges the first default upon the other, and neither party now asks to have the agreement for the transfer of the property specifically enforced.
The motion for judgment upon the pleadings should have been denied. The agreement to pay a certain price per ton for milling the ore and the agreement to sell the property were but related parts of an entire contract. The court can not say that one agreement would have been made without the other.
The contention of the plaintiff that he was not required to place the bill of sale and evidence of title in escrow until the expiration of the one hundred days can not be sustained. The agreement to deposit these papers with the contract fairly implies that it was to be done contemporaneously with the delivery of that instrument, or at least within a reasonable time thereafter. -The plaintiff was therefore in default before the defendants failed to make the payment which this action was brought to enforce. The petition did not allege a waiver of this condition or excuse for its nonperformance.
The defendants’ counter-claim might be considered analogous to a claim to recover money paid or property delivered upon a contract broken by an adverse party, and rescinded for such breach upon the election of the claimant. (Wright v. Dickinson, 67 Mich. 580; Vallentyne v. Immigration Land Co., 95 Minn. 195.) It is really a claim for damages (although that term is not used), limited by the prayer to the amount' of net profits in operating the mill, included in the payments that have been made. Such profits would have inured to the benefit of the defendants if the agreement had been performed, and the plaintiff can not base a right thereto on his own default.. The amount of such damages, however, if any, to be recouped or recovered under the pleading and proof, if the issue should be determined in favor of the defendants, is not material to the question here presented, and precise rules for the determination of such damages need not be stated. It is sufficient to say that there was an issue of fact to be determined before any judgment could properly be rendered for either party.
The defendants insist that their allegation that the plaintiff had no title when the contract was made was also a good defense. This contention can not be sustained. The plaintiff was only bound under this contract to have a good title at the time of delivery of possession.
The judgment is reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
The only question presented in this case is whether the first two executions issued were void. If these executions were void, the judgments, upon which the two following executions were issued, were dormant, and the executions neither received life from the judgments nor imparted life thereto. (Denny v. Ross, 70 Kan. 720.) If, however, the first two executions were only voidable, they were sufficient to prevent the judgments from becoming dormant.
While the issuing of one execution upon two separate judgments is irregular, it is the opinion of the court, but not of the writer, that if the execution is sufficient to identify the two judgments, .or if it contains sufficient recitals to indicate where the records of the judgments can be found and such records fully identify each judgment, the execution is not void. The first two executions recite that Dugan recovered two judgments against W. P. Harman and Lucy A. Harman, on a certain day, and before a certain justice of the peace, for the sum of $368.07, and the further sum of $6.23 as costs of the suit, with interest at the rate of 10 per cent, from April 9, 1898; that afterward Dugan duly filed an abstract of the judgment in the district court, and that there remained unpaid thereon the sum of $368.07, with interest. These recitals are sufficient to direct, any one seeking information about the judgments to the records of the clerk of the district court, as well as to the records of the justice of the peace, which, of course, would give him knowledge of all facts pertaining thereto.
The district court held that the first two executions did not sufficiently identify the two judgments upon which jointly the executions were successively issued, and in this the court erred. The order of the court quashing the two executions issued to the sheriff of Trego county is therefore reversed, and the case is remanded with instructions to deny such motion and to make an order confirming the sale, if the sale is otherwise found to be regular.- | [
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The opinion of the court was delivered by
Mason, J.:
William E. Jones, a resident of New York, died November 3, 1898, owning land in Kansas, which .he devised to David W. Jones and Jane E. Thomas. His will was admitted to probate in New York on January 13, 1899, and Hugh Williams was qualified as his executor. The devisees conveyed the land, April 18, 1906, by warranty deed, to Thomas Price. August 19, 1907, the executor applied to the probate court of the county in which it was situated for an order to sell it for the payment of debts and charges of administration, under the statute (Gen. Stat. 1901, § 2950) authorizing such procedure. His petition was granted, over the objection of the de visees and Price, who appealed to the district court, where the decision was affirmed. The appellants prosecute error, and make these contentions: (1) That the proceedings for the sale of the real estate were not maintainable because brought too late; (2) that the only evidence introduced to prove the indebtedness against the estate — an order of the New York surrogate court allowing it — was inadmissible against the devisees; (3) that Price was protected as an innocent purchaser.
The plaintiffs in error invoke the statute (Civ. Code, § 18, ¶ 6) requiring an action for relief concerning which no other provision is made to be brought within five years after the accrual of the cause of action. The case, however, does not fall within its terms, for the litigation which is begun by the filing of a petition in the probate court for the sale of real estate to pay the debts of a decedent does not constitute an action, but a special proceeding, or a part of a special proceeding. (Civ. Code, §§ 4, 5; Lanning v. Gay, 70 Kan. 353; 1 Cyc. 721; 1 Encyc. Pl. & Pr. 112; 1 Enc. L. & P. 1003, note 13.) The statute of limitation, not being made applicable to special proceedings by express enactment or by necessary implication, does not directly affect them. (Skidmore v. Romaine, 2 Bradf. [N. Y.] 122, 127, and cases cited in 25 Cyc. 1061.) Even a requirement that provisions of the code concerning the prosecution of a civil action shall be followed in special proceedings has been said not to “refer to provisions of the law designed to prevent the prosecution of actions because of delay in commencing them.” (Hartley v. K. & N. W. R’y Co., 85 Iowa, 455, 461.) In volume 18 of the Cyclopedia of Law and Procedure, at page 705, it is said:
“The general statutes of limitation do not as a rule apply to an application for the sale of a decedent’s real estate, although a contrary view has been asserted.”
The cases áre in substantial agreement in results, although not in reasons. The exceptional decisions referred to are those of the courts of Indiana, where the code definition of the word “action” is broad enough to cover what is called in our practice a “special proceeding.” But even there the statute does not run during the pendency of litigation against the administrator for the establishment of the claim. (Scherer v. Ingerman, Administrator, 110 Ind. 428.) The usual requirement made as to the time of beginning such- proceedings is thus stated in volume 11 of the American and English Encyclopaedia of Law, at page 1074:
“If no time is fixed by the statute, the courts generally hold that it must be made within a reasonable time, to be determined by the court under the circumstances of the case; and after such time has elapsed leave to sell will not be granted, whether the property is still in the hands of the heirs or devisees or has been sold and conveyed by them to third persons. Some courts have adopted a period, by analogy to the statute of limitations, or otherwise, after which an application will not be entertained, unless special circumstances are shown which excuse the delay, and no equities of third persons intervene.”
(See, also, to the same effect 18 Cyc. 707; 2 Woerner, Am. L. of Adm., 2d ed., § 465; 26 Am. St. Rep. 22, note.)
The question for determination is not how much delay would be sufficient if unexplained to defeat a proceeding of this kind, but whether the trial court was justified in finding that the delay in the present case was reasonable and therefore had no such effect. The indebtedness sought to be collected consisted of $2261.03 owing to Anna H. Jones and Thomas O. Jones, and $479.06 owing to Thomas O. Jones. The evidence tended to show these facts: William E. Jones was the executor of Ann Jones, under testamentary letters issued by the same court that afterward appointed'Hugh Williams as his executor. Anna H. Jones and Thomas O. Jones claimed that William O. Jones, as such executor, had received $3000 which it was his duty to pay to them. The only persons interested in resisting this claim were David W. Jones and Jane E. Thomas. On their behalf, and after consultation with David W. Jones and the husband of Jane E. Thomas, Hugh Williams, as executor of William E. Jones, employed counsel to contest the matter, and the resulting litigation which was conducted in connection with the settlement, of the William E. Jones estate lasted six years, and resulted, on March 8, 1907, in the claim being allowed in the sum of $2261.03. On June 5, 1907, the court, by an order made in the matter of the William E. Jones estate, allowed this sum as a demand against Hugh Williams as executor, and at the same time made the allowance of $479.06 in favor of Thomas O. Jones.
Why the litigation lasted so long is not explained,, but that it did so does not justify an inference of bad faith. Inasmuch as the principal claim against the estate of William E. Jones grew out of a question of' his conduct as executor of Ann Jones, it was natural if not necessary that its adjudication should be held in abeyance until the Ann Jones estate was settled. Until such settlement was made it could not be known how much if anything would have to be paid on the-claim, and until that was determined it was impracticable to institute proceedings to subject the real estate to its payment. No reason is shown why the smaller claim might not have been established sooner, but the executor clearly exercised good business judgment, in the interest of all concerned, in withholding proceedings to provide for its payment out of the real estate-until the entire amount necessary to be realized from, that source should be ascertained. The executor was. not bound to wait until the demands against the estate were passed upon before moving to create a fund for their satisfaction (Randel v. Randel, 64 Kan. 254), but, he was justified in doing so where otherwise he could not ascertain the amount for which the estate was to-be held. We think the trial court correctly decided that. under all the circumstances the delay in asking a sale of the real estate was excusable.
It is true that under some circumstances, where no administration has been had in this state, the claimant may himself bring an action here to sub j ect the real property of his deceased debtor to the payment, of his demand (McLean v. Webster, 45 Kan. 644), notwithstanding there may be personal property elsewhere sufficient for that purpose (Cooper v. Ives, 62 Kan. 395), and probably his right in that respect is unaffected by any proceedings or conditions existing in another jurisdiction (Plumb v. Bateman, 2 App. Cas. [D. C.] 156). "But he can not be regarded as sleeping upon his rights when his claim is in the course of investigation and adjustment in the state where it originated, in the orderly administration of his debtor’s estate.
The contention that the indebtedness of the William E. Jones estate was not sufficiently established can not be sustained. The transcript of the record of the sur-, rogate court showed that in the course of what is called a judicial settlement of the accounts of the executor (a proceeding that under the New York statute is conclusive only upon certain enumerated matters) the court “adjudged and decreed” that the estate was indebted to the claimants in the amounts stated. This language speaks for itself, and shows an allowance of the claims which is none the less effective because made while the court upon request of the executor was examining and passing upon his accounts. The order allowing the claim did not conclude the devisees (Black v. Elliott, 63 Kan. 211), but was admissible in evidence against them, and established a prima facie case, which they made no effort to overcome. This conclusion accords with the clear weight of authority, and, as we think, with the better reason.
“Although there is considerable conflict in the cases decided in other states with reference to the effect of the allowance of a claim by an administrator as afford ing the basis on which [a] sale of real estate may be ordered, the weight of authority seems to support the proposition that the allowance in probate is prvtna facie sufficient to authorize an order for the sale of the real estate, and that, while the heirs who are parties to the proceedings for the sale of real estate may on the hearing contest the validity of the claims already allowed in a proceeding to which the^ were not parties, yet it is not incumbent on the administrator to proceed in the first instance to prove up the claims for the payment of which he asks that real estate be sold. To cast any such burden upon him would be manifestly unjust. He is not the claimant, but is simply proceeding, in the administration of his office, to secure assets with which to pay claims which the cqurt may have already directed should be paid. As supporting the rule that the allowance of the claims by the probate court is .sufficient prima facie as against the heirs to authorize an order for the sale of real estate, see Hopkins v. Stout, 69 Ky. 375; Steele v. Lineberger, 59 Pa. 308; Mason v. Bair, 33 Ill. 194; Stone v. Wood, 16 Ill. 177; Beckett v. Selover, 7 Cal. 215, 228, 68 Am. Dec. 237; 2 Woerner, Adm. § 466. ... In the present case the allowance of the claims by, the probate court was proven, and defendants made no effort whatever to disprove or impeach the claims thus allowed. We think that, after the allowance of the claims was shown, it was for the defendants, if they desired to question the validity of any of the claims, to at least introduce some evidence of their invalidity, and thus overcome the prima facie case made by proof of allowance.” (Milburn v. East, 128 Iowa, 101, 106, 107.)
“The allowance of a claim against an estate by the administrator and the probate judge has the same effect as a judgment. But as the heirs are not bound by a judgment against the administrator, they are at liberty to dispute any claim so allowed, because the allowance has no higher effect than a judgment. If the allowed claims are made the basis on which to obtain an order to sell the real estate, the heirs are not precluded from contesting them as freely as though they had acquired none of the properties of a judgment ; for as to the heirs they are not yet res judicata. When a judgment or quasi-judgment has been recovered against an administrator or executor, and proceedings are taken to compel its payment by the sale of real estate, the majority of the authorities seem to treat it as prima facie evidence of the claim, and to require the heir to assume the burden of showing it to be unjust, while the minority insist that it is not admissible against the heirs, and that those holding such judgment must establish their demand as though no prior recovery or allowance thereof had been had.” (1 Freeman, Judg., 4th ed., § 163.)
(See, also, 18 Cyc. 510; 11 A. & E. Encycl. of L. 1084.)
The plaintiffs in error urge that at all events the, allowance of a claim against an executor is not even admissible in evidence in any other state than that in which it w'as made, because such order has no extraterritorial force whatever. This contention is based upon a line of decisions holding that a judgment against an administrator is of no effect against the representative of the estate of the same decedent who derives his authority from some other sovereignty. (See Braithwaite v. Harvey, 14 Mont. 208, and cases cited in a note thereto in 27 L. R. A. 101.) The reason for that rule is that there is no privity between the different administrators. Each has to do only with the property of the estate within his own jurisdiction, and a judgment against him binds only such property. Except by legislative permission he can neither sue nor defend in his representative capacity in the courts of another state. But our statute (Gen. Stat. 1901, § 3009) not only removes this disability, but also in express terms (Gen. Stat. 1901, § 2950) authorizes a foreign executor or administrator, where none has been appointed in Kansas, to sell real estate of the decedent situated in this state for the payment of debts in the same manner as though he had been appointed here. This provision establishes a connection betwreen the foreign administration and the domestic proceedings. It makes the real estate in this jurisdiction, so far as necessary for the payment of debts, assets of the estate as administered elsewhere. It places the order of the foreign court allowing a claim against the administrator upon the same footing with a similar order made in this state. Neither is conclusive against the heirs, but either is admissible in evidence against them.
What is really but a phase of the contention already discussed is the claim of the plaintiffs in error that the demands against the William E. Jones estate were barred because they were not exhibited and established within three years after the qualification of the executor. The statute does not require their establishment within that time — merely that a proceeding to that end shall be begun. (Clifton v. Meuser, 79 Kan. 655.) The evidence does not show when notice of the character of the demands and, of their presentation for the consideration and action of the court wias served upon the executor, but it must be presumed from their allowance that this step was taken within due time, and nothing was offered to rebut this presumption.
Price, the purchaser of the land, • stands upon n« better footing than the devisees. He knew that his grantors acquired title through the will of William E. Jones, and was presumed to know that under the law the property might' be charged with the payment of any indebtedness of Jones owing to a creditor who had not lost his remedy by.inaction. He had no right to regard the mere lapse of time as proof that no such indebtedness existed. He was bound at least to inquire whether a settlement of the estate had been had, and a pursuit of that inquiry would necessarily have advised him of all the facts.
The judgment is affirmed.
Graves, J., not sitting. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff in error insists that the transaction in which the certificates were deposited with Minturn, in trust for the secürity of the inter-pleading bank, amounted to a pledge of the certificates, and gave a right to them superior to any which could thereafter be acquired by an attachment issued in a .suit.against the pledgor.
The . Bank of Commerce claims that whatever right the Citizens’ bank may have acquired to the certificates, its right to the tangible property represented thereby was inferior to the lien acquired thereon by an actual seizure thereof by a writ of attachment in favor of one who had no knowledge or notice of the pledge.
We understand that when- personal property is pledged the pledgee acquires a right thereto which is superior to any right that can thereafter be given by the pledgor or be acquired by a subsequent attachment issued in an action against him. (22 A. & E. Encycl. of L. 867, 868, and notes; Bank v. Harkness, 42 W. Va. 156.) The assignment and delivery of the certificate constitutes a delivery of the property represented thereby. (22 A. & E. Encycl. of L. 856.) In the second edition of Jones on Pledges and Collateral Security, section 37, it is said:
“A delivery of a document of title, which serves to put the pledgee in possession of the goods, is equivalent to an actual delivery of them.”
This question was discussed and authorities were collected in the case of Bank v. Harkness, 42 W. Va. 156. (See, also, Continental Nat. Bank v. Eliot Nat. Bank, 7 Fed. 369.) The great weight of authority seems to be that this kind of delivery is sufficient to constitute a pledge. A completed pledge has the effect of depriving the pledgor of all control over the property, as far as the interest of the pledgee is concerned. He can neither sell nor encumber it so as to dispose of or impair the rights of the pledgee therein. It seems clear that what he can not do personally can not be done by a writ of attachment. Generally, the rule has been that an attachment takes only the interest which the owner has when the writ is levied. In our view, the interplea states substantially that the plaintiff’s attachment was levied upon personal property of the defendant Erwin which was pledged to E. W. Minturn, and was then in-the latter’s possession and being held in trust as collateral security for the payment of a debt due from Erwin to the interpleader. These facts, if true, would be sufficient to give the interpleader a- right superior to that of the attachment. The fact that the attachment creditor acted in good faith and without notice of the pledge is not important, as there is no law requiring pledges to be recorded. We conclude that the demurrer should have been overruled.
The judgment of the district court is reversed, with direction to overrule the demurrer to the interplea and proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiffs, Lynch & Co., brought an' ■action against the defendants, the Dillon company, to ■compel the performance of an oral agreement to make a lease of mineral land for mining purposes, and was' successful. A demurrer to the petition was • oyerruled, and it is claimed here that the petition states no cause ■of action for specific performance because of a lack of mutuality in the obligation and remedy of the parties.
The petition charges that in consideration of the payment of a certain royalty on the ore to bé mined the ■defendants agreed to make a lease of the land in controversy for a term of years ending in January, 1914, "the plaintiffs to work and mine the lots continuously, in good faith and in a miner-like manner; that the plaintiffs went into immediate possession of the lots and have occupied' them continuously for a period of more than three years — to the time of filing the petition; that •ever since taking possession the plaintiffs have mined the lots and in all other respects carried out in good .faith the terms of the contract; that the plaintiffs have installed machinery, erected improvements, sunk .shafts, run drifts and otherwise developed the property until it has become very valuable, and in so doing have •expended the sum of $30,000; that the defendants dispute the terms of the agreement and refuse, after repeated demands, to execute a lease for longer than one .year; and. that the plaintiffs have no adequate remedy .at law and will suffer irreparable injury unless the oral ■agreement be specifically enforced.
The defendants say the contract pleaded does not bind the plaintiffs to mine the property to the end of ■•the term; that the plaintiffs are at liberty to discontinue operations and abandon the lease at any time; and that a court of equity will not compel specific performance ■in a case where, because of a want of mutuality in obligation, the party seeking the relief may render the decree nugatory by the exercise of a discretion which he rightfully possesses. The principle invoked is one of' extensive application, but the defendants misinterpret the contract. It is well understood that whatever is. necessarily implied by the words used in a contract is as much a part of the contract as if it had been expressed in elaborate terms. The covenant to mine the' lots continuously can have but one rational meaning, and that is: continuously to the end of the term. The implication is as clear and certain as if the expanding-phrase had been expressly inserted. Besides this, correlative obligation sufficient to sustain specific performance may be implied from the situation of the parties and the circumstances surrounding the execution of the contract. (Wilbourn v. Bishop, 62 Miss. 341.) The judgment which has been rendered requires the written lease to provide in terms that the plaintiff' shall'work and mine the lots continuously during the life of the lease. Supported as it is by both the language employed and the evidence produced at the trial this interpretation of the contract is manifestly the true one, and no prejudice resulted to the defendants, by founding judgment upon it.
The defendants say the remedies of the parties were-not, when the oral agreement was made, and are not now, mutual, and hence that specific performance could not rightfully be decreed. Formerly it was said that, mutuality of obligation and of remedy must have existed at the time the agreement was concluded to make' specific performance available, and some courts still, adhere inflexibly to that rule. Many courts, however, have recognized the injustice of denying specific performance if the situation of the parties be such that, reciprocity exists at the time the remedy is invoked,. and. exceptions have been made until the exceptional doctrine has largely superseded the rule. Also, it was formerly said, and in some quarters is still maintained, that mutuality requires identity of remedy, and that both parties must be entitled to specific performance before a court of equity will proceed at the suit of either, but so many modifications of this rule have been found to be necessary to meet the demands of practical justice that it has gone the way of its companion. In a note at page 237 of the second edition of Pomeroy on the Specific Performance 'of Contracts it is said:
“I think it very clear that the rule was applied with much more strictness and severity in the older than in the later decisions; indeed, the rule, so far as it relates to the mutuality of the remedy alone, is evidently based upon no principles of abstract right and justice, but, at most, upon notions of expediency; and the arguments in its support are often mere repetitions of time-honored verbal formulas, which, when closely analyzed, are found to have little or no real force and meaning.”
This court is committed to the liberal view.
“The doctrine that there must be mutuality in the contract, and that it must be capable of enforcement at the suit of either party at the time it is entered into, so broadly pontended for by counsel for the plaintiff in error, and stated in equally broad terms in Fry on Specific Performance, § 443, is subject to so many exceptions and such important qualifications that it is doubtful whether a court would ever be warranted in declaring the law so broadly. There are many contracts, originally unilateral, capable of enforcement when accepted. Many other contracts afford one party a remedy by an action for the recovery of money, either upon a specific promise to pay or in an action for damages, while the other party may be entitled to a specific performance; still others, where the remedy of one party before any performance might be very inadequate, which are yet, after full performance on one side, capable of a specific enforcement against the other.” (Water-Supply Co. v. Root, 56 Kan. 187, 197.)
Take the facts of this case: The defendants put the plaintiffs in possession under the oral agreement. The plaintiffs are without fault, and show three years of faithful and sincere performance. The plaintiffs greatly enhanced the value of the property by the expenditure of large sums of money in improvements and in developmental work, and have placed themselves in a position to enjoy the very fruits of the contract which were in the contemplation of the parties when it was made. The parties appear to have been competent, there is nothing to indicate that the contract was not fairly concluded, and it seems to be reasonable and just in all its provisions. There is no way to estimate money damages which would adequately compensate the plaintiffs should they be compelled to vacate the premises. If equity has no remedy to prevent the defendants from confiscating to their own use this increment to the value of their land, from compelling the plaintiffs to sacrifice their expenditure of time and labor and money, and from cutting off the plaintiffs from the just profits of the venture, it is a very anemic system and needs to be recruited with a stock of robust, virile principles which will enable it to cope with fraud. Whatever the situation of the parties may have been at the beginning is of no consequence now. Their affairs have reached a stage where the plaintiffs’ claims appeal to conscience and are unopposed by any countervailing equity on the defendants’ side. The plaintiffs are not within the principle which denies specific performance to one who may, under the law or under the contract, decline to perform on his part the moment the decree is entered. They can not rightfully refuse to fulfil their agreement. Should a wrongful refusal occur the defendants would be entitled to redress, and doubtless either the law or equity would provide them a remedy. It may be that some form of injunction relief to prevent a breach of the contract would be awarded, or it may be that reparation in damages could be made. But the court has no occasion to anticipate culpable conduct on the plaintiffs’ part and speculate upon how the defend ants might protect themselves should they some time-need protection. It may be assumed that the plaintiffs, will obey the law and keep their promise. Manifestly it is just and equitable and will thwart a fraud now to-decree specific performance in the plaintiffs’ favor, and. manifestly it would be unjust and inequitable and would allow the perpetration of a fraud not to do so. That is sufficient. If scientific or other considerations, demand a formula governing the subject, whoever-needs can phrase one on that basis. So far as the matters just discussed are concerned the petition states a. cause of action for the relief sought.
Other objections to the petition are without merit. The oral agreement contemplated a valid lease and not. one void under the statute of frauds and perjuries.. It was decided long ago by this court that in an action. for specific performance the description of the premises, involved may be aided by extrinsic evidence. (Hollis v. Burgess, 37 Kan. 487; Bacon v. Leslie, 50 Kan. 494.)
The substantial dispute between the parties related, to the manner in which the royalty the defendants were to receive should be computed. The question was, Did' the defendants make the agreement alleged in the petition? This question was one of fact, and was fully-tried, the evidence of course being conflicting. A jury returned specific findings of fact sustaining the plaintiffs’ contention. The court itself then made findings of' fact of the same character as those returned by the-jury. These findings are supported by sufficient evidence, and there the controversy over the facts ends so - far as this court is concerned. It is not necessary to take up seriatim the assignments of error which seek to avoid the force of the findings of fact.
Certain mining rules and regulations of the defendant company were introduced in evidence. Some of' them related to matters consistent with the plaintiffs’" version of the contract, and the court held them to be-included in the léase. Others relating to the chief sub ject of controversy were held not to be incorporated. The defendants say the contract must have included -everything in these rules or nothing. Manifestly this is not true. The position of the court evidently was that nothing in the rules contrary to the express agreement of the parties could stand, which is true, but that the plaintiffs should be held to have assented to the other rules, either because the plaintiffs were chargeable with notice of reasonable regulations promulgated under the head lease or because such regulations were according to the custom of the district. All the rules and regulations which the court held to be included in the contract imposed restrictions upon the plaintiffs for the defendants’ benefit. If they should have been omitted the defendants can not complain, and the plaintiffs do not.
Other claims of error are not sufficiently grave to require comment, and the judgment of the district court is affirmed. | [
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Thé opinion of the court was delivered by
Benson, J.:
This action arose out of the following contract:
“This agreement, made and entered into this 9th day of May, A. D. 1905,- witnesseth, that M. L. George and I. H. McQuilkin, parties of the first part, and Jo-. seph Lane and F. H. Leonard, parties of the second part, hereby enter into a covenant that they will make a trade conveying the following-described property: M. L. George and I. H. McQuilkin agree to transfer a certain stock of groceries and grocery fixtures to said Joseph Lane and F. H. Leonard, and in payment of the same the said Joseph Lane and F. H. Leonard hereby agree to transfer to I. H. McQuilkin and M. L. George a' certain farm of 1996%oo acres in section 7, township 10, range 18, Jefferson county, Kansas, and the parties of the first part further agree to furnish a buyer who agrees to take a one-half interest in said grocery stock at a consideration of $1300.
(Signed) M. L. George.
‘I. H. McQuilkin.
Joe Lane.
F. H. Leonard.”
An exchange of the property was made by a conveyance of the farm and a transfer of the groceries as provided, but the defendants, George and McQuilkin, failed to produce a buyer for a one-half interest in the grocery stock at a consideration of $1300, as agreed, and after waiting fifteen days from the date of the transfer the plaintiffs, Lane and Leonard, notified them that unless they furnished such buyer the one-half interest in the goods would be sold, and that they would be held responsible for any damage. The goods were afterward sold at auction pursuant to this notice for $250, and this action was brought to recover the difference between that sum and the $1800, as stipulated in the contract, and the plaintiffs recovered.
The substantial errors alleged are in the instructions and rulings excluding evidence. The court instructed the jury that if the plaintiffs had performed the contract on their part by conveying the land (about which there was no question), and the defendants had failed to furnish a buyer within a reasonable time, without any fault of the plaintiffs, and the goods had been sold at a public auction advertised with reasonable diligence and conducted in good faith, after due notice to the defendants, then the plaintiffs were entitled to recover the difference between $1300 and the amount so received from the sale, adding thereto one-half the amount received from retail sales (which was but a few dollars); and that it was immaterial if the one-half interest was found to be worth more than the amount so realized. The court held that the measure of damages was the difference between the sum of $1300 and. the amount received at an auction sale fairly conducted after due notice.
In some cases where there is a refusal to accept and pay for goods ordered or purchased the seller may proceed in this manner and charge the buyer with the deficiency. In the view we take of this transaction, however, it is not necessary to determine the class of cases to which this rule is applicable, for in this case there was no sale or agreement to sell. The undertaking of the defendants was to transfer the stock and fixtures, and to furnish a buyer within a reasonable time for a one-half interest therein, in consideration of the con veyance of the farm, which was duly made. They have performed this- agreement in part and have failed in part. For this breach, if it was not waived, they are liable, not as purchasers, but for failing to find a purchaser.
In cases where the rule sanctioned by the district court applies it is said that if the vendee refuses to take the goods and pay for them the vendor has an election to rescind the contract and keep the goods, or to‘hold them for the vendee and sue for the price, or to proceed to sell them and charge the vendee with any deficiency that may remain after applying the proceeds to the purchase-money due. (Story, Sales, §436; Ackerman v. Rubens, 167 N. Y. 405.) The right to resell rests upon the theory that the goods belong to the vendee, subject to the payment of the price agreed upon, and the vendor is given the right to sell in order to collect the amount due. (Pollen v. Le Roy, 30 N. Y. 549; 2 Benj. Sales, § 1180, and American note 5.)
In this case the sale and agreement to sell were lacking; consequently there could not be a resale to collect the price. The plaintiffs’ loss naturally and proximately resulting from being deprived of that right to sell at that price was the difference between that amount and the value of the one-half interest which they were thus compelled to keep. This is the rule of damages in analogous transactions, and is simple and just in its application.
Damages are based on the theory of compensation for the loss suffered. A party is .entitled to recover on a breach of contract such damages as are the natural, direct and proximate result of the breach. (Johnson v. Mathews, 5 Kan. 118.) The amount to be recovered here should be the loss resulting to the plaintiffs from the failure of the defendants to produce a purchaser who would pay $1300 for the half interest. If the defendants, in the absence of this agreement, had, upon a sufficient consideration received at the time, agreed to find a purchaser for the plaintiffs’ goods who would pay a certain sum, and had failed to produce such a purchaser, the loss to the plaintiffs would not have been more than the difference between the sum to be received for the goods and their market value. This is the rule applied in transactions between principal and agent, where the latter has failed to make purchases that he was bound to make. (3 Suther. Dam., 3d ed., § 773; 2 Sedg. Dam., 8th ed., § 824; Bell et al. v. Cunningham, 28 U. S. 69; Whelan v. Lynch, 60 N. Y. 469.) The genera) measure of damages applied in case of a breach of contract to deliver merchandise is the difference between the purchase-price and the market value, together with interest (Lumber Co. v. Sutton, 46 Kan. 192), and this rule has been applied in cases of a sale. (Geiss v. Hardware Co., 37 Kan. 130.)
We conclude that the proper measure of damages in this case is the difference between the market value of the one-half interest in the goods and fixtures and the sum of $1300, for which they were to have been sold, together with interest thereon. The price received at the auction sale, the testimony showing that it was fairly' conducted, was competent evidence of market value, but not conclusive. (Brigham v. Evans, 113 Mass. 538; M’Combs v. M’Kennan, 2 W. & S. [Pa.] 216; Bigelow v. Legg et al., 102 N. Y. 652; Camp v. Hamlin & Barnum, 55 Ga. 259.) The defendants had •the right to show that the market value was greater than the amount received.
Evidence was offered tending to show that shortly after the exchange of the properties the plaintiffs verbally waived the agreement of defendants to produce a purchaser, and the jury were instructed in substance that such waiver was of no force unless there was an independent consideration therefor or by reason thereof the defendants had changed their position or condition in reliance upon it, to their loss or damage. It is contended that this instruction was erroneous because the parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights is a sufficient consideration. (Flegal v. Hoover et al., Appellants, 156 Pa. St. 276.) This may be done where there are mutual rights to be surrendered, but in this case the plaintiffs had executed the agreement on their part. The only remaining obligation of the contract was upon the defendants. A naked promise to release them, if made, was without consideration, and, unless acted upon so that some loss or injury would result to them if the promise were not kept, it was ineffectual to relieve them from liability. (Collyer & Co. v. Moulton and another, 9 R. I. 90; Moore v. Detroit Locomotive Works, 14 Mich. 266; 9 Cyc. 593.) The instruction of the court upon this subject was correct.
An erroneous measure of damages having been adopted, the judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
The facts recited in the statement leave no question of the want of jurisdiction in' school district No. 127 to levy any tax against the land or property detached therefrom and attached to school district No. 45. It is equally apparent that school district No. 127 did not make or attempt to make any levy of any tax on the property for the year in question. It also appears from the petition that school district No. 45 did legally levy a tax on the property, though at a higher rate than was extended on the tax-rolls and collected by the county treasurer.
The word “levy,” as applied to taxes, is used in various meanings; but, as applied to the determination of the amount or rate of taxes to be charged to the collective body of taxpayers, it is a legislative function, to be exercised only by the state or by some inferior political division thereof to which the power is delegated by the laws of the state. On the other hand, the duty of the county clerk to extend the levy upon the tax-rolls of the county is purely ministerial, and, unless a legal levy has previously been made, affords no warrant for the collection of a tax. (27 A. & E. Encycl. of L. 729, 730, and notes; 5 Words & Ph. Jud. Def. 4101, and cases there cited.)
It can not be said that the county clerk extended on the rolls a levy by school district No. 127 against the property in the strip attached to school district No. 45, as there was no such levy to extend. The county clerk, whatever was in his mind, simply extended upon the tax-rolls, against the property in the detached strip, a levy less in amount than had been legally made by school district No. 45. Neither his action in this respect nor the fact that a higher rate should have been ex tended, and collected can deprive school district No. 45 of the money which was lawfully collected for it. The mistake of the county treasurer in paying money which belonged to school district No. 45 to the treasurer of school district No. 127 gave no right to the latter to retain the same or to refuse the demand of school district No. 45 therefor. ■
The order and judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
These suits were commenced to set aside a conveyance on the ground of fraud. The proceedings upon three previous trials were considered in Vickers v. Buck, 60 Kan. 598, 65 Kan. 97, and 70 Kan. 584. All the plaintiffs are foreign corporations, and judgment creditors of C. C. Vickers. The court found that the conveyance of all the lands, except a homestead, was fraudulent, but refused to give judgment for any of the plaintiffs, for reasons now to be considered.
The defendants pleaded that the plaintiffs were doing business in this state without legal authority because they had not complied with the statutory requirements concerning foreign corporations, and that they had no legal capacity to maintain a suit in the courts, of this state. (Laws 1898, ch. 10; Laws 1901, ch. 125.) They. also pleaded a homestead exemption on one quarter-section of the lands in question. The court, found upon the first of these issues as follows:
“The Samuel Cupples Woodenware Company, the St. Louis Refrigerator & Wooden Gutter Company, the St. Louis Glass & Queenswáre Company [and the Buck Stove & Range Company], have each of them, ever since 1901, been sending traveling salesmen into-this state, who took orders from citizens of Kansas dealing in their products, and sent them to their respective houses at St-. Louis. If the orders were approved at headquarters, the goods were shipped to the customers in Kansas, and were paid for by them by remitting directly to the sellers at St. Louis.”
The court concluded that the corporations named in this finding had no right to maintain the suit until they complied with the statutes relating to foreign corporations doing business in this state, that they should have a reasonable time to do so, and allowed them five months for that purpose and continued the cause until the next term without entering judgment on the findings. At the expiration of this period the corporations, which were given this opportunity filed their written statement respectfully declining so to comply with the laws of this state, and protesting against the dismissal of their suits for their failure to do so, giving as their reasons that they were engaged exclusively in interstate commerce; that the court had no power to impose such conditions upon them; that such conditions, were in violation of the constitution and laws of the United States relating to interstate commerce; that their right to maintain the suits originated in interstate commerce between Vickers, residing in Texas, and citizens of states other than Kansas, and before- the passage of these statutes; and that chapter 125 of the Laws of 1901 was void as contravening the commerce clause of the federal constitution. They also moved for judgment on the findings upon substantially the same ground. Upon consideration of this, declination and motion the court, when the case was called for final judgment, dismissed the suits as to the corporations named, at their costs.
The court found that the Consolidated Steel & Wire Company had formerly transacted business in the same manner as the other corporations, but that it went out of business in 1901, and had not carried on any business anywhere since then. On the hearing of motions for a new trial and for judgment the defendants suggested that this corporation had been dissolved in November, 1899. The court upon competent evidence then made the further finding “that since the findings of fact were rendered in this case it has been suggested to the court and shown by legal proofs duly made herein that the Consolidated Steel & Wire Company has ceased to exist, and that said company is a defunct concern,” and ordered that the action be abated as to that party.
The court found that another plaintiff, the Galveston Rope & Twine Company, had been dissolved and its charter forfeited in the year 1896, and that previous to the forfeiture and before this suit was commenced it had sold and assigned the judgment pleaded in its name to one Homer, who had assigned it to the Galveston Rope Company. As a conclusion of law the court held that the Galveston Rope & Twine Company could not maintain the suit. A motion by the Galveston Rope Company to be substituted in the suit was filed August 3, 1906. It appears that the motion was considered at the trial when the findings were made, and in the judgment the suit was abated as to the Galveston Rope & Twine Company.
Aultman, Miller & Co., another plaintiff, was adjudicated a bankrupt in proceedings under the federal bankruptcy act, on April 28, 1903, and in July following all its assets, including the judgment set out in the petition, were assigned to the Aultman & Miller Buckeye Company, a corporation organized under the laws of Ohio. The latter company filed its petition for substitution in this suit May 23, 1906, to which the defendants answered alleging that this corporation was also doing business in Kansas without authority, and was without capacity to maintain the suit. They also pleaded the disability of Aultman, Miller & Co. by reason of bankruptcy, that there had been no revivor or substitution for more than one year after the adjudication, and objected to the substitution. The petition for substitution was granted subject to the right of th,e defendants to contest the right' of the petitioner to maintain the suit. At the trial the suit was held to be abated as to Aultman, Miller & Co. by reason of the adjudication in bankruptcy.
No complaint is made of the findings of fact except in respect to the homestead.
The case was made, signed and filed in the name of the original plaintiffs. In the petition in error the Galveston Rope Company appears as- successor to the Galveston Rope & Twine Company, and the Aultman & Miller Buckeye Company as successor to Aultman, Miller & Co. The corporations whose names were thus dropped do not otherwise appear in this court, and the corporations appearing in this court as their successors did not join in making the case for review here. For these reasons the defendants move to dismiss these proceedings, but in the view we take of the case it will, not be necessary to decide this motion.
The contention of the plaintiffs who were required to comply with "the statutes relating to foreign corporations, as a condition precedent to the entry of judgments in their favor, that they were not subject to the provisions of such statute because they were engaged in interstate commerce was decided against that claim in Vickers v. Buck, 70 Kan. 584. That decision is the law of the case. (Railway Co. v. Stone, ante, p. 7.)
The abatement of the suit as to the Consolidated Steel & Wire Company is complained of. Since this corporation had been dissolved in the year 1899 — a fact which is not disputed — it could not maintain the suit nor enforce a judgment. (MacRae v. Piano Co., 69 Kan. 457.) The defunct corporation could not be heard, for its voice was stilled in death, and it had no successor so far as the record discloses.
The Galveston Rope Company, which succeeded to the rights of the Galveston Rope & Twine Company before this suit was brought, was not a party to the suit, and the last-named corporation never had any interest in this suit, although commenced in its name. If it should be claimed that upon a showing of mistake in bringing .the suit in the wrong name an amendment or substitution should have been allowed, no suggestion of mistake was made; and thfe motion for substitution was not made until 1906, more than ten years after the suit was brought. A suit then in the name of the real party in interest would have been twice barred by limitation. To say nothing of any other ground, the denial of the motion after so great a lapse of time was within the discretion of the court, and will not be disturbed.
The court refused the petition of the Aultman & Miller Bu'ckeye Company, as the successor in interest of Aultman, Miller & Co., upon the ground that, more than one year having elapsed after bankruptcy, a revivor could not be allowed except by consent. (Civ. Code, § 433.) In Cunkle v. Interstate Rld. Co., 54 Kan. 194, following K. O. & T. Rly. Co. v. Smith, 40 Kan. 192, it was held that where several railroad companies had been consolidated under a new name the old companies ceased to exist, and, no motion having been made to substitute the successor or to revive the proceedings in its name until more than one year after the consolidation, the old companies had become defunct and a revivor could not be allowed against one of them without the consent of the new company. The statute construed and applied in these cases is section 40 of the code of civil procedure, which provided:
“In case of the death or other disability of a party, the court may allow the action to continue by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name o'f the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.”
The question here is.> whether bankruptcy is a- “disability” as that term is used in the statute, or whether it should be considered as “any other transfer of interest” within the meaning of the last sentence of the section quoted. The judgment held by the bankrupt company against Vickers was such property as passed to the trustee, and the trustee might, with the approval of the bankruptcy court, have been permitted to prosecute in his own name the suit pending thereon. (30 U. S. Stat. at L. p. 549, § 11c.) This statute is permissive. The trustee is not bound to prosecute actions that were commenced by the bankrupt unless ordered by the court in which he is appointed. It has been held that the' trustee may in such a case intervene. If he' does not, the action does not abate, but may be continued by-the bankrupt in his own name. The failure of the trustee to act does not release the defendant in such an action. His right to have the recovery paid to the proper party may be secured by subsequent steps in the action. (Griffin v. Mutual Life Insurance Company, 119 Ga. 664; Mayhew v. Pentecost, 129 Mass. 332.) This question was considered by the federal supreme court in an action involving similar provisions of the former bankruptcy act, and Mr. Chief Justice Waite in the opinion said:
“By section 5047, Revised Statutes, the assignee may prosecute or defend suits pending in the name of the bankrupt at the time of the bankruptcy, but there is nothing which renders it necessary for him to make himself a party on the record to- do what is 'thus allowed. . . . The true rule is stated in Eyster v. Gaff, 91 U. S. 521; Burbank v. Bigelow, 92 U. S. 179; Norton v. Switzer, 93 U. S. 355; Jerome v. M’Carter, 94 U. S. 734; M’Henry v. La Societe Francaise &c., 95 U. S. 58, and Davis v. Friedlander, 104 U. S. 570. These cases,' although' the bankrupt happened to be a defendant, establish the doctrine that under the late bankrupt law the validity of a pending suit, or of the .decree or judgment therein, was not affected by the intervening bankruptcy of one of the parties; that the assignee might or might not be made a party; and whether he was so or not, he was equally bound with any other party acquiring an interest pendente lite. It is no defense to the debt that the creditor has become a bankrupt; and if an assignee, after notice, permits a pending suit to proceed in the name of the bankrupt for its recovery, he is bound by any judgment that may be rendered.” (Thatcher v. Rockwell, 105 U. S. 467, 469.)
(See, also, 1 Rem. Bank. pp. 1010-1015.)
It does not follow, however, that if the court erred in holding that Aultman, Miller & Co. was defunct such error is fatal to the judgment. Adopting the argument of the plaintiffs that the bankruptcy and assignment by the trustee to the Aultman & Miller Buckeye Company should be treated as mere transfers of interest, and that the suit should have been allowed to proceed to judgment in the name of the old cómpany for the use of the new one, and treating the proceedings as having been so conducted, we must necessarily hold that the new company acquired no better rights in the litigation than its predecessor had. From the stipulation filed it appears that Aultman, Miller & Co. was doing business in Kansas without complying with our statutes relating to foreign corporations, precisely as the other companies were doing. It is true that the other companies were given an opportunity to comply with those provisions, but the successor of this company, instead of asking for the same privilege or intimating in any manner its wish to be included in the leave given to the others, moved for immediate judgment, and then joined in the petition in error with the other corporations which had' expressly declined to accept the privileges so offered and unites in the arguments made in this court that they could not legally be required to do so. Evidently it does not desire to comply with the condition offered.
The question relating to the homestead is not very material, as none of the plaintiffs can recover. In any event it was a question of fact, and, the evidence being conflicting, we can not disturb the finding. (Martin v. Hoffman, 77 Kan. 185.) The facts found support the conclusion reached. (Shattuck v. Weaver, post.)
We find no error in the proceedings affecting the substantial rights of any party. The judgment is affirmed. ,
Graves, J., not sitting. | [
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The opinion of the court was delivered by
Porter, J.:
These are actions in ejectment, brought, by E. T. Jones to recover two quarter-sections of land in Seward county. The petitions were in statutory-form. The answers admitted the possession of the defendants and denied the other averments. The actions were consolidated and tried as one. At the close of plaintiff’s evidence the court sustained a demurrer thereto, and gave judgment against him in favor of defendants. He brings error.
The land was school-land which was sold by the state in 1885 under regular school-land contracts. The plaintiff by assignment of the contracts became the owner of the land. He paid the annual instalments of interest and taxes until 1893, when he made default, and no payments were made thereafter. At the trial he offered proof that he was the owner of the certificates and had paid some of the instalments of' interest and taxes, and that in July, 1907, he tendered to the county treasurer the amount due on the contracts, which the treasurer refused to accept. Plaintiff testified that he had never been in Seward county from the time the contracts were assigned to him in 1886 until 1907; that the land was unoccupied at the time he purchased it, and had never been occupied since. He then offered in evidence the records of the office of the county clerk showing an attempt to forfeit his interest in the land. This evidence was offered on the theory that it showed defective and void proceedings. It consisted of copies of notices of default issued by the county clerk and served by the sheriff as a basis for forfeiture. The return showing the manner of service on each notice reads as follows:
“Received this notice this 13th day of June, 1899, and served the same by going upon the land within described and finding no person in possession, and, the premises having the appearance of being wholly abandoned, I posted a copy of said notice in a conspicuous place in the county clerk’s office at Liberal, Kan., June 18, 1899; the within-named C. W. Kuri and E. T. Jones can not be found in my county.”
• After the introduction of this evidence the plaintiff rested. The demurrer was sustained, not because of lack of proof, but on the theory that the plaintiff had destroyed his prima facie title by showing that his contract had been forfeited; in other words, that he had proved too much.
The determination of the question involves a consideration of the effect of chapter 873 of the Laws of 1907. At the time the act was passed it had been settled by numerous decisions of this court that where the notice issued by the clerk and the sheriff’s return failed to show legal service in one of the ways provided by the statute no forfeiture of school-lands based thereon was valid. If the notice itself was defective in a material matter, or the officer’s return failed to state facts showing a legal service, the proceedings were held void, and it was not competent to amend the notice or return by oral evidence or other proof. (Knott v. Tade, 58 Kan. 94; Furniture Co. v. Spencer, 59 Kan. 168; True v. Brandt, 72 Kan. 502; Phares v. Gleason, 73 Kan. 604; Spencer v. Smith, 74 Kan. 142.) In the last-named case Mr. Chief Justice Johnston, speaking for the court, said:
“The basis of a forfeiture is the notice and the return of service. It rests upon written evidence of official action, and is not left to thé uncertain recollection of officers who may be asked eight years afterward what steps toward a forfeiture were in fact taken. As was said in Knott v. Tade, 58 Kan. 94, jurisdiction must affirmatively appear, and ‘the notice and the return . . . are jurisdictional.’ (Page 96.) These are to be found in the county clerk’s office, and to them any interested party may look to determine the status of the land. An examination of the notices issued in this case, and the returns of service made thereon, would have disclosed to the purchaser as well as to the •officers or a proposed purchaser that the proceedings were invalid. The jurisdiction can not be supplied by •oral proof or an attempt in this proceeding to amend the returns made in the forfeiture proceedings.” (Page 146.)
Here the notice was in proper form, except that in ■addition to stating the amount of interest in default it stated that the principal itself was due. This defect was not material, for the statement with respect to the principal was mere surplusage. The return of the •officer, however, was defective under the rule declared in Knott v. Tade, 58 Kan. 94, and True v. Brandt, 72 Kan. 502, for the reason that it failed to state as a fact that no person was in possession. The statement that the premises appeared to be wholly abandoned added nothing to the return. The statute prescribes that where no one is in possession of the land the notice may be posted in the office of the county clerk, but there is no provision for such posting of the notice when the premises merely have the appearance of being abandoned. It is obvious that the forfeiture proceedings under the decisions referred to would have been held void. It is contended by defendants that plaintiff cured the defective return by offering proof that in fact the land was unoccupied; that the provisions of the law of 1907 render such proof competent; and, further, that under that act the notice and return themselves were prima facie evidence of legal service.
By the enactment of chapter 373 of the Laws of 1907 the legislature altered the rule of evidence as it stood at the time the decisions to which we have referred were made. The title to the act in question reads:
“An act relating to the forfeiture of the right and interest of certain purchasers in and to school-lands, prescribing the manner in which such forfeiture may be shown, and limiting the time within which actions may be brought by such purchasers to recover such lands, or for the determination of their interest therein.”
The preamble recites that school-lands in- various counties were sold to purchasers whose interests were subsequently declared forfeited and the lands afterward sold to new purchasers; that in many cases full and correct records have not been made by the county clerk and sheriff showing the proceedings upon which the forfeitures were based, and that these things prejudiced the rights of the new purchasers. Section 2 of the act provides:
“The return of the sheriff on any notice issued by the county clerk to the purchaser of school-lands of his default' shall not be held to show an insufficient or invalid service because of the omission of any recitals required by law to show legal service; but if, notwithstanding such omissions, such return shows that service of such notice was made by posting a copy thereof in the office, of the county clerk, such return shall be prima facie evidence, in any action or proceeding in any court in this state, that the persons upon whom such notice, was to be served could not be found in the county, that no person was in possession of the land described in the notice, and that a copy of such notice was posted in a conspicuous place in the office of the county clerk. Any statement in such return, other than that the notice was posted in the office of the county clerk, shall not destroy the prima facie effect as evidence of so much of the return as shows a posting of the notice in the office of the county clerk, unless such additional matter affirmatively shows that legal service was not made; and in that case, or in any case where the sheriff’s return fails tó show legal service, parol and other evidence may be introduced to prove that in fact legal service of the notice was made.”
A consideration of the entire chapter makes it- apparent that it was intended to apply only in cases where there had been an attempt to forfeit the rights of the original purchaser and the land had been sold to a new purchaser. There is nothing in the pleadings or the evidence in this case from which it can be inferred that the defendants claim such rights. The answer simply admits that they are in possession. The provisions of the new law, therefore, would not affect the case but for the fact that the plaintiff in his brief admits that defendants are in possession, claiming rights as new purchasers. The effect of the admission is to make the act of 1907 controlling. Section 2 of the act provides that if the sheriff’s return shows that the notice was posted in the office of the county clerk it shall be prima facie evidence of legal service, notwithstanding the omission of recitals required by law. Besides, plaintiff’s evidence supplied the omission by proof of the existence-of the very facts required to make the service valid. He had made out a prima facie case for himself when he proved the original contracts, that they were assigned to him, that he paid interest and taxes, and had tendered to the county treasurer the amount remaining due. When he went further and showed the proceedings purporting to forfeit his interests, that the notice, properly issued, was posted in the office of the county clerk, that the land was unoccupied and therefore no one was in possession, he established a prima facie showing of a valid forfeiture, which defeated his right to recover. The demurrer was, therefore, rightly sustained.
The plaintiff contends, however, that it was not competent for the legislature by the enactment of this later law -to change or alter his vested rights. He insists that the law as it stood at the time the original contracts were made became a part of the contracts. The answer is that nothing has been changed except a rule of evidence, and a vested right in that is something which the law refuses to recognize. (Sanders v. Greenstreet, 23 Kan. 425; Wheelock v. Myers, 64 Kan. 47, 51; 6 A. & E. Encycl. of L. 950; Cooley’s Const. Lim., 7th ed., pp. 405, 524.) The principle underlying the former decisions is that, as forfeitures are not favored, the original purchaser can not be deprived of his vested rights in the land except upon a showing of strict compliance with all the statutory requirements; therefore no presumption of regularity in the acts of the officers should be indulged for the purpose of establishing a forfeiture, and the written returns and records could not be amended by parol proof. It can not be doubted that it was within the power of the legislature' to change the rule of evidence and declare what should constitute a prima facie showing of legal service of the notice. (Mo. Pac. Rly. Co. v. Merrill, 40 Kan. 404; The State v. Sheppard, 64 Kan. 451.)
The wisdom or expediency of the change allowing the vested rights of the landowner to be forfeited on the naked presumption that the officers have performed their official duty, or upon amendments made to the written return resting on the uncertain recollection of witnesses years after the event, is a question. with which the courts have no concern. The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
David Bourke sold two horses to James J. Spaight, taking in payment a negotiable note, which he indorsed to R. J. Whalen. Whalen sued upon the note and Spaight resisted payment, alleging that he had rescinded the contract of purchase and restored the horses to Bourke because they had proved not to be ass -warranted and represented. Whalen recovered judgment, however, upon the ground that he was an innocent purchaser of the note. Spaight then sued Bourke,. alleging his version of the facts, and recovered the amount of. the Whalen judgment, including costs and. his attorney’s fee in that action.
Bourke prosecutes error, and contends that the former judgment was an adjudication against Spaight upon the issues raised in the second suit. There is no ground for such contention. The evidence, both record and oral, abundantly showed that in the first action the court, so far from deciding against Spaight his controversy with Bourke, denied him a hearing on that matter because it was not available as a defense against Whalen. Nor can it be said that the matter was one which might have been litigated in the former action. Spaight desired to litigate it there, but was refused the opportunity.
Bourke’s second contention is that the present action is upon the warranty, and . can not be maintained because before bringing it Spaight had elected to pursue an inconsistent remedy by restoring the horses and rescinding the contract. This action, however, does not affirm the validity of the note between the maker and the payee, but is brought for damages resulting from its having been transferred to an innocent holder, thereby compelling its payment notwithstanding its want of consideration. That such an action will lie is beyond question. (Nashville Lumber Co. v. Fourth National Bank, 94 Tenn. 374, and cases cited in note in 27 L. R. A. 519; Jones v. Crawford, 107 Ga. 318; Mader v. Cool, 14 Ind. App. 299; Osborne & Co. v. Ehrhard, 37 Kan. 413. See, also, Delaney v. Implement Co., 79 Kan. 126.)
A third contention'is that Spaight should not have been permitted to recover the expense he incurred in defending the action brought upon the note. The case last cited is conclusive to the contrary, ■ and renders further discussion unnecessary. (See, also, however, 1 A. & E. Encycl. of L. 355; 8 Cyc. 324; Bank v. Williams, 62 Kan. 431.)
Objections to the evidence are also made, but are found .upon examination not to be well taken. The judgment is affirmed. . | [
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The opinion of the court was delivered by
Johnston, C. J.:
Involved in this proceeding is the correctness of a ruling taking from the jury the question whether a chattel mortgage on a growing crop of wheat was valid and effective. It appears that L. E. Roberts rented from Mrs. L. Tea her farm in Oklahoma for the term commencing April '1, 1904, and ending September 1, 1905. One of the stipulations of the lease was that if the weather conditions were right Roberts should break up eighty-five acres of sod, and in any event should put in wheat all the broken ground on the place in the fall of 1904, giving the landow’ner a rental of one-third of the crop. Roberts put out the wheat crop, and later, on November 30, 1904, executed a mortgage on his share of the wheat. The crop matured, and when it was thrashed Ray Tea, the son of the landowner, sold the whole crop (including the share mortgaged) to T. V. Brown, who placed it in his elevator and mixed it with other wheat. When the mortgagee demanded the wheat Brown refused it, saying’ that the mortgage was not recorded in his county in Kansas and that he did not know that the wheat was mortgaged. In this action, brought for the conversion of the wheat, Reeves & Co. showed that the mortgage was executed in-accordance with the laws of Oklahoma and was duly recorded in the county where the wheat was grown. The court, however, sustained a demurrer to plaintiff’s evidence, on the sole ground that in the light of the evidence the description of the wheat in the mortgage was so indefinite that it could not be identified, and judgment was therefore given for the defendant, Brown. In the mortgage the property was described as follows:
“Two-thirds (%) of ninety (90) acres of growing wheat, all this wheat on Mrs. Tea’s fárm, one mile south and one mile west of city of Kiowa; on farm which is northeast quarter (%) of section No. 17, township No. 29, range No. 12, Woods county, Oklahoma. This instrument covers wheat in field, shock, stack, wagon, granary or wherever found, which said above-described property, at the date of these presents, is in possession of said parties of the first part.”
As will be observed, the mortgage on its face is a valid instrument. One containing a similar descrip tion of a growing crop was challenged for indefiniteness and held to be sufficient. (Muse, Spivey & Co. v. Lehman, 30 Kan. 514.) It is contended that the testimony in this case develops such uncertainty in the description as to make the mortgage invalid. If the testimony relied on for that purpose was admissible at all, its weight and effect were questions of fact for the determination of the jury. The plaintiff, it would seem, has good reason to complain of the admission of the testimony which it is said destroyed the validity of the mortgage. Tea, who sold the mortgaged wheat and held an adversary position toward the mortgagee, was called as a witness for plaintiff and was asked in relation to the sale and delivery of the wheat to the defendant.- On cross-examination, and over objection, the defendant was permitted to ask the witness how many acres of wheat there were on the Tea farm that year. His answers, although indefinite, were to the effect that Roberts had more than one hundred acres of wheat on the place. This testimony was not responsive to the testimony in chief, and the defendant was in this way permitted to make his defense that there were more than ninety acres of wheat on the place and therefore the mortgaged wheat was not separable from the other and could not be definitely ascertained. Except as to matters affecting credibility, the cross-examination should be confined to the subjects directly testified to by the witness. If a party desires to examine a witness on new and independent matters he must make the witness his own. (Sumner v. Blair, 9 Kan. 521; Pratt v. Broekett, 20 Kan. 201; Lawder v. Henderson, 36 Kan. 754; Wright v. Wright, 58 Kan. 525; Coon v. Railway Co., 75 Kan. 282.)
It is not necessary to determine whether prejudice resulted from the unwarranted latitude allowed in the cross-examination, as in any event the state of the evidence required the submission of the case to the jury. The description in the mortgage, as will be seen, pointed out that the property intended to be mortgaged was wheat growing in a particular county in Oklahoma, on a particular quarter-section, definitely described; that the wheat was on a particular farm, known as Mrs. Tea’s farm, located at a specified distance south and west of the city of Kiowa, and, further, that it was in the possession of the mortgagor. The suggestion that the clause “all this wheat on Mrs. Tea’s farm” should be read as all the wheat on Mrs. Tea’s farm, if justified, would leave no question as to the identity of the wheat; but in the absence of testimony tending to show that a mistake was made in expressing the intention of the parties that interpretation can not well be accepted. However, it may be that all the wheat on the farm was included in the mortgage. The mere fact that there may have been a little more or less than ninety acres does not necessarily destroy the validity of the mortgage. . It is true that the mortgage stated that there were ninety acres of wheat, but such a statement is ordinarily only an approximation. Sometimes it is expressed as about so many acres, and at other times as a given number of acres, “more or less.” According to the theory of the defendant no such mortgage could be' made valid without an accurate survey of the ground on which the crop was grown. If it be assumed that this part of the description was in fact erroneous, it would not .necessarily invalidate the mortgage. If other features of the description give third parties’ such information as will enable them by making reasonable inquiry to identify the mortgaged property, it is enough. (Waggoner v. Oursler, 54 Kan. 141; Dendy v. Bank, 76 Kan. 301; Rudolph v. Commission Co., 76 Kan. 789.)
The testimony of Tea does not undertake to give the exact acreage of the wheat. To one inquiry he answered : “Well, I could not say exactly, but there was about, I should judge, about one hundred, or may be a little more, acres.” In attempting to get at the num ber of acres in another way he was asked if Roberts broke out eighty-five acres of the new land, and his answer was: “He was supposed to.” As to the number of acres of old land, he was asked how many acres of land were in cultivation before the lease was made, and he answered: “About twenty acres, I think.” In reply to another inquiry as to the acreage he said: “Well, there was about — there was more than one hundred acres; I could not say positively, because the fences are'.riot .straight.” This testimony indicates that the witness was making no more than an estimate of the wheat acreage; and, besides, the jury might not have believed his testimony. He was an interested party, who had taken the wheat and thus laid himself liable for its conversion in case the mortgage should be upheld. The jury were not required to believe his testimony, although there were no other witnesses on the question of acreage, and the weight of his testimony and whether the wheat could be identified were jury questions. This case is wholly unlike that of Souders v. Voorhees, 36 Kan. 138, where the property described was six hundred bushels of growing corn located on a tract of land on which more than one thousand bushels were ■ growing. That case was disposed of on an agreed statement of facts which disclosed that no separation or identification was or could be made. Here the party was entitled to have tried by the jury whether it was possible to identify the mortgaged property. In Dendy v. Bank, 76 Kan. 301, it was said:
“The description which the mortgage gave of the cattle was defective. They were described as kept at a particular ranch, whereas they were in fact in another part of the county. Whether notwithstanding this partial misdescription the mortgage still gave sufficient information by which the cattle could with reasonable inquiry have been identified was a question for the determination of the jury.” (Page 303.)
So, here, the jury might upon the testimony to which they gave credence have determined that the mortgaged property could be ascertained and identified. It was therefore error to sustain the demurrer to plaintiff’s evidence.
The judgment is reversed and the cause remanded for further proceedings. | [
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Per Curiam:
Neither of the releases set up in the answer was accompanied by a certificate as provided in section 1 of chapter 365 of the Laws of 1903 where a release of a mortgage is made by the executor or administrator of the mortgagee of record, and the court properly held the release insufficient.
Section 4 of chapter 168 of the Laws of 1899 (Gen. Stat. 1901, § 4337) provides that where assignments have not been recorded “the payment of any interest or principal on the debts secured by such mortgages to the mortgagees or the assignees whose assignments appear last of record . . . shall be and constitute a complete defense to any action” thereon. But the finding of the court that Brown paid nothing in satisfaction of either principal or interest on the mortgage is a finding of fact upon conflicting testimony and can not be disturbed. This is a sufficient answer to the claim that the mortgage was satisfied, for, if there was no pay ment either on principal or interest, the provision from, which we have just quoted can have no application.
Counsel for the plaintiff in error, however, insist, that the acknowledgment of satisfaction itself constitutes a complete defense to any action, and that such is. the meaning of the' statute. Counsel have doubtless, overlooked the decision of the court in Mayse v. Williams, 77 Kan. 813, in which this section of the statute was construed to mean that the person paying-should only be entitled to credit for the amount paid.
The defense of the statute of limitations can not avail the defendant. The evidence fails to disclose of' what state the mortgagor, Kirkpatrick, was a resident when the cause of action accrued or where the owner and holder of the mortgage resided at that time, nor was there any attempt in the answer to bring the case within the rule declared in Bruner v. Martin, 76 Kan. 862.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action of ejectment. The plaintiff claims tó be the owner of the government title to the land in controversy, and the defendants claim it under a tax deed. The district court found the tax deed to be valid and entered judgment in favor of the defendants, to which the plaintiff excepted and prosecutes error.
In our view the validity of the tax deed is the only question which need be considered. The objections to this deed are: (1) The state tax for which the land was sold was in excess of the levy made by the state. (2) The grantee named in the deed was the agent of the owner of the land, and charged with the duty of paying the tax.
The land was sold for the delinquent tax of 1897. The tax deed was executed September 10, 1901. This action was commenced in the district court of Labette county in 1905. The deed, we assume, is fair on its face, as no claim is made that it is not. The presumption is, therefore, that it is valid and all the proceedings upon which it is based are in every particular regular and in compliance with the law. (Gen. Stat. 1901, § 7676.) To overthrow the deed it was shown that the amount of state tax levied on the land in question for the year 1897 was 4.1 mills on the dollar, while the levy for state purposes made for that year by chapter 269 of the Laws of 1895 was 3.7 mills, showing an apparent excess in the levy of .4 of a mill. 'íhis seeming dis-crepancy may be explained, however, as being the result of a practice which is not unusual or illegal in tax proceedings. It often happens that the state board of equalization, in order to equalize the amount of tax among the counties of the state, orders the commissioners of some county to increase the valuation in that county so that the property will produce what appears to be the just proportion of the tax due the state from such county. The county officers may comply with this order either by increasing the valuation of property over the county so it will produce the required amount under the levy made or by increasing the levy so that it will produce the necessary amount upon the valuation already made. (Gen. Stat. 1901, §§ 7609-7611; Geary County v. Railway Co., 62 Kan. 168; Railway Co. v. Miami County, 67 Kan. 434.) From this it will be seen that the difference between the amount of the levy for which the land was sold and that made by the state may have resulted from following a regular and in every way valid tax procedure. When a tax deed is valid on its face, and is assailed by evidence aliunde to show that some fatal omission was made in the antécedent proceedings, some affirmative proof should be presented tending to establish the supposed defect. The mere production of evidence which is as consistent with the validity of the deed as with its invalidity is not sufficient to overcome the presumption which obtains in its favor. We concur in the view of the district court as to this objection.
Whether or not the grantee named in the deed was the agent of the owner when the tax should have been paid is a question of fact, which was fully tried by the court upon the evidence presented, and we do not feel that its findings should be disturbed. The deed appears to be valid.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover for material and labor furnished toward the construction of a house, and to foreclose a mechanic’s lien. In 1905 Charles Weil, the owner of ground, entered into a contract with H. Croskey for the erection of a dwelling-house. In the course of the construction Croskey contracted'with the Wichita Planing Mill to furnish and place in the house a front door and stairway. After furnishing these and putting them in, the Wichita Planing Mill took the required steps to procure a subcontractor’s lien for a balance due under the subcon tract. The claim was assigned to the Wichita Sash & Door Company, and on July 7, 1906, that company brought this action against Croskey and Weil, asking for a personal judgment, against Croskey for the amount due and for a foreclosure of the mechanic’s lien on Weil’s premises. On October 25, 1906, Croskey and Weil both being, in default, the court rendered a personal judgment- against Croskey for $384.65, with interest from the time the claim was due, amounting to $405.75, and also adjudged the foreclosure of the lien.
On October 29, 1906, Weil filed a motion to set aside the judgment, giving as reasons for his default that the plaintiff had not filed an amended petition, as required by a former order of the court; that the judgment had been prematurely rendered; and, further, that he had a good defense to the action. After a hearing the court found that the judgment had been rendered under a misapprehension of the facts, and sustained the motion, but held that it might stand as against Croskey, who had not asked to have it vacated.
On November 12,1906, Weil answered with a general denial, and averred that the.material furnished for the door and stairway was defective, unseasoned, and inferior; that the work was not done in a workmanlike manner; that the door became warped and twisted so that the glass did not fit and was not properly supported; and that the newels and the baluster of the stairway shrank and became loose, and the stairway, being improperly supported, settled, to the damage of the answering defendant in the sum of $250. On February 27, 1907, Weil tendered and paid into court the sum of $375, and offered to confess judgment for costs up to that time, but the plaintiff declined the tender on the ground that it was insufficient in amount and also that this was not a case in which a tender could be made by the owner. A trial was subsequently had with a jury, and the verdict fixed the amount due at $290.40, .being the sum of $259.65, with interest thereon at 6 per cent, per annum from November 25, 1905, to November 25, 1907. After the verdict Weil was permitted to withdraw $84.60 of the deposit, the difference between the amount as originally tendered and the amount found in the verdict. The question of the lien upon the premises then came on for a hearing, and the court specially found that the necessary steps had been taken by the plaintiff to perfect a mechanics’ lien, but refused to enforce it because of the tender and deposit made by Weil. In an examination of the verdict rendered by the jury the court found that they had erred in awarding interest after the tender had been made, and therefore reduced the amount due to $279.20. It has been made to appear by the supplemental record that since the settling of the original record the court permitted Weil to withdraw the balance of the money tendered.
In behalf Of Weil it is contended that the court is without jurisdiction to hear this appeal because there is less than $100 in controversy. Although at one stage of - the proceedings the difference between the amount claimed by the plaintiff and that offered by Weil was less than $100, the plaintiff is nevertheless here claiming on the record that it is entitled to' a lien on Weil’s premises of more than $400. The court decided that the plaintiff was not entitled to a lien for any amount, and allowed the amount tendered to be taken down, so thatt the plaintiff has not only been deprived of the lien claimed but also of the amount tendered and paid into court by Weil. It is clear therefore that the amount in controversy is the full amount claimed against Weil’s property.
The first contention of the plaintiff is that the amount due under the subcontract was fixed by the personal judgment rendered against Croskey, the contractor, on October 25, 1906, which has never been set aside as to Croskey, and that therefore it was error to submit to the jury or to retry the issue of the amount due. It insists that when a subcontractor furnishes labor or material to a contractor at an agreed price,' or where there is a settlement between them of the amount due for the same, or where the subcontractor obtains a personal judgment against the contractor without fraud or collusion, the amount due and the extent of the lien is thereby fixed beyond the control of the owner.
It is true as contended that there is no privity of contract between the owner and the subcontractor. The contractor is the primary debtor, and ordinarily the accounting or adjudication of the amount due to the subcontractor is a matter of concern only to them. As between them there may be offsets, counter-claims, equities and defenses as to which the owner would have neither knowledge nor concern. The subcontractor may depend upon the personal liability of the contractor and claim no lien against the owner; but where a lien is claimed and sought to be enforced the owner is, of course, interested in the extent of the lien to be established against his property. To protect the owner the legislature has provided that he can retain the whole contract price until the expiration of the sixty days, within which such liens may be filed, and, further, that he can not be compelled to pay subcontractors in excess of the amount he. has agreed to pay the contractor. To prevent the enforcement of unjust liens against his property the statute provides that where an action is brought by a subcontractor, as in this instance, it'is the duty of the contractor to defend against the claims of every subcontractor, and that if he fails to make such defense the owner may make the same at his expense. (Civ. Code, § 635.)
In this instance the contractor did not contest the claim of the subcontractor, and under the rule of the statute • it was competent for the owner to defend against the claim set up by the plaintiff. Among other things he had the right to contest the extent of the lien that should be adjudged against the property.
Rut counsel for the plaintiff say that the question had already been determined by the personal judgment against the contractor and could not be retried so long as that judgment remained in force. Under some circumstances such a judgment should be regarded as a final determination of the amount due. While the judgment was not formally vacated, as it should have been, it was in effect set aside by the action of the trial court. The court proceeded as if the whole question was open for consideration. The jury were called, each party submitted testimony as to the amount due, and the question was as fully tried as if the judgment against Croskey had been specifically set aside. Croskey was a party to the action, and the other parties were as effectually bound by the subsequent proceedings in the case as if Croskey had resisted the payment of the plaintiff’s claim. Having tried out the question as if no judgment existed, no good purpose would be sub-served by sending the case back to enable the court to go through the empty form of vacating that judgment.
It is said the contractor was satisfied that the claim of the subcontractor was just and for that reason he did not desire to resist or to reduce the claim. The statute contemplates that the owner shall not be bound by the inaction or even by the agreement of the contractor with the subcontractor. He is expressly authorized to defend if the contractor does not, and therefore he may do so even if the unresisting contractor is satisfied or is in agreement with the subcontractor. The right as well as the extent of the defense that the owner-may make is illustrated in the case of Fossett v. Lumber Co., 76 Kan. 428. It was there decided that, although there is no privity of contract between the-owner and the subcontractor, the owner may set off damages sustained by him against the claim of the subcontractor. It was said:
“The owner may recoup damages against the contractor arising out of the failure of the latter faithfully to perform the contract, and without regard to the ab sence of specific terms in the contract providing for damages. He may show as against the contractor that the building was not completed, or not completed .in time, or that defective materials were used. Why should he not be permitted to show these counter-claims when it is sought to recover from him by one who has no contractual relations with him and who seeks to recover a debt due from the contractor?” (Page 444.)
A claimant is only entitled to a lien for the amount actually due for labor and material. The building and premises of the owner are not bound for more than is justly due to the claimant. The owner may, while making the defense as the statute authorizes, ask to have the claim reduced because of the defects or omissions in the .work performed or the materials furnished by the subcontractor. There was set up and properly submitted to the jury herein the question of damages sustained by the owner by reason of defective workmanship and material, and in the absence of the evidence it may be assumed that the amount of the plaintiff’s claim was reduced by this counter-claim. No error was committed in allowing the owner to contest with the subcontractor as to the amount due upon this claim nor as to the extent of the lien to be adjudged.
The court, however, after finding that a lien had been properly perfected, denied its enforcement because of the tender heretofore mentioned. As the plaintiff declined the offer and deposit it is in no position to claim any benefit from the same. Weil, however, insists that the tender operated to discharge the lien. No provision is made by statute for the release of a mechanic’s lien by a tender or deposit of money, but assuming that the court under its equitable powers may authorize the substitution of a cash deposit for a claimed lien and order the release of the lien, this can only be done where the deposit is received for that purpose and remains in the custody of the court. Here the court allowed the amount tendered and paid- in by Weil to be withdrawn, leaving the plaintiff without lien or deposit. The ac tion of the court characterizes the proceeding and indicates that Weil in asking for the money and the court in allowing it to be withdrawn did not regard the deposit as a substitute for the lien. The findings, however, show that the plaintiff was entitled to the lien on Weil’s premises for the amount found to be due, and to this extent the judgment must be modified.
The exception to the refusal to submit certain special interrogatories to the jury can not be sustained for the reason that application for the submission was not seasonably made.
The case is remanded to the district court, with directions to modify the judgment in accordance with the opinion herein. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiffs did not state a cause of action against the estate of L. B. Kendall, deceased. The debt for which the action .was brought was not one that accrued against the deceased in his lifetime, and was therefore not a legal demand against the estate. An administratrix may, of course, employ an attorney to assist her in the administration of the estate, or to prosecute or defend actions brought for or against the administratrix in her official capacity, but the obligation to pay for such services rests primarily upon the administratrix. By the employment she makes herself personally liable for the attorney’s fees, and is entitled to an allowance for moneys necessarily paid out for such services as expenses of administration. (Gen. Stat. 1901, § 2969.) To obtain compensation for their services in such a case the attorneys must look to the administratrix as an individual, and not in her representative capacity. The defendant therefore had no authority to bind the estate by her contract with the plaintiffs, and an action to enforce her contract will not lie against her in her capacity as administratrix. (Tucker v. Grace, 61 Ark. 410; Briggs v. Breen, 123 Cal. 657; Sullivan v. Lusk, 7 Cal. App. 186; Lusk v. Patterson, 2 Colo. App. 306; Barker v. Kunkel, 10 Ill. App. 407; Wait v. Holt, 58 N. H. 467; Garnett v. Car son, 11 Mo. App. 290; 18 Cyc. 249; 11 A. & E. Encycl. of L. 935.)
Plaintiffs contend, however, that the averments of' the petition can and should be regarded as setting forth a cause of action against defendant in her individual capacity. The defendant insists, on the other hand,, that the pleadings show that the action was brought against Mary K. Quinton in her representative' character, and that this is manifest in the title to the action, wherein she is designated as “administratrix,” and also in the body of the petition, where there is a detailed statement of her appointment as administratrix and of her qualification at a particular time, and a further statement that she thereafter entered upon the duties of' the office, in which capacity she is still acting. This is. followed, too, by an averment that Mary K. Quinton, “administratrix as aforesaid,” through her agent, employed the plaintiffs and agreed to pay them what the services were reasonably worth. It is the view of the court that the language referred to does not require a holding that the action is one against the defendant in her representative capacity. It is to be observed that the; petition does not in terms state that the defendant is sued as administratrix. In protecting the interests of the estate it was the duty of the defendant to employ attorneys, and plaintiffs may have spoken of her representative character by way of inducement to show that, the claim was just and one for which she could be reimbursed. Since the defendant is liable individually on the contract for such services, and not in her representative character, the reference to her as administratrix should be treated as deseriptio per sonsa. If the cause of action stated be one for which the estate is liable the added words, “administratrix of the estate of L. B. Kendall, deceased,” may be treated as descriptive of representative capacity, but if it be only enforceable against the defendant personally and not officially, as in this case, the added words should be regarded as descriptive of the person and may be rejected as sur plusage. (Keniston v. Little, 30 N. H. 318; Merritt v. Seaman, 6 N. Y. 318; L. H. and J. P. Rich, Exrs. v. Albert Sowles, Admr., 64 Vt. 408; Fitzhugh’s ex’or v. G. F. Fitzhugh, 11 Grat. [Va.] 300; Bennett v. Whitney, 94 N. Y. 302; Beevin’s Ex’ors v. French, 84 Va. 81; Baker v. Fuller, 69 Maine, 152; Glisson v. Weil, 117 Ga. 842; 3 Williams, Exec., 6th Am. ed., p. 2056 [*1941]; 18 Cyc. 978.)
As tending to show the liberal view taken in pleading and practice in somewhat analogous cases, reference may be had, first, to Railway Co. v. Mills, 57 Kan. 687, where a widow, entitled to maintain an action as widow against a defendant who caused the death of her husband, brought an action as administratrix, in which capacity she could not recover. In her petition she described'herself as widow as well as administratrix, and it was held that her averments in regard to her capacity as administratrix might be treated as surplusage, and also that she was entitled to recover as widow. Another case is Railroad Co. v. Menager, 59 Kan. 687, where' a landowner who was prosecuting an action against a railroad company for land taken as a right of way died. The action was then revived in the name.of both his administrator and his heir. The heir died, and the administrator then obtained a revivor in his individual name as successor to the heir. He was required to elect whether he would prosecute the action in his individual name or in his official capacity, and he erroneously elected to prosecute in his individual name; and after a trial, in which all of the facts were brought out, he was permitted to recover as administrator, notwithstanding the erroneous election.
The writer inclines to the opinion that under the averments of the petition the plaintiffs should be held to have brought their action against the defendant in her official capacity. When the court ruled that a cause of action was not stated against the defendant as administratrix plaintiffs were given an opportunity to amend. Instead of striking out the averments in the petition indicating that the action was against the official rather than the individual they chose to make a straddle by attempting to stand on the individual as well as the official leg, and thus secure a footing in court, whatever the ultimate decision might be. It would have been more fair to the district court to have indicated that they rested their right of recovery on the personal liability of the defendant. Plaintiffs can only recover from defendant in the capacity in which they sued, and looking at the caption as well as the averments in the body of the petition it would seem that plaintiffs could not much more plainly have indicated that the action was against the defendant in her official capacity than was done in this instance. The defendant met the issue tendered by answering as administratrix, but it did not occur to plaintiffs that they were entitled to judgment on the pleadings against the defendant as an individual; at least no motion for judgment was made.
The court being of the opinion, however, that a cause of action is stated in the petition, the judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Porter, J.:
This is an action to recover a commission for a sale of real 'estate which the plaintiff claims he negotiated as the agent of the defendant. The plaintiff is a real-estate broker, and resides at Winfield, Kan. The defendant is a resident of Iowa, and owns land in Cowley county. The petition set out the written correspondence between the parties which it is claimed constituted the contract, and alleged that the plaintiff had procured a purchaser able and willing to take the land upon the defendant’s terms, and that the defendant was unwilling to convey the land to the purchaser and refused to pay the plaintiff’s commission. The ■court sustained a demurrer to the petition, and the only question we have to consider is whether the correspondence of the parties resulted in a contract by which the ■defendant authorized the plaintiff to list his land for sale and bound himself to pay the plaintiff a commission in case the latter found a purchaser ready and willing to take the land on the defendant’s terms. .
All of the plaintiff’s letters to the defendant were written on letter-heads showing that the plaintiff was ■engaged in the business of real estate, loans and abstracts. The first letter was dated at Winfield, July 24, 1907. It was addressed to the defendant at Pella, Iowa, and is as follows:
“Dear Sir — We find by the records that you are the •owner of the S 1/2 of the SE % Sec. 10-33-5. We write to know if you will sell the eighty and what is the least ■cash it will take to buy it.
“We charge 5 per cent, for the $1000 and 21/2 per cent, all over that amount, so give us the price including the commissions.
“We often have inquiries for tracts of this size.
“Please let us hear from you by return mail, and ■oblige. Yours very truly,
M. E. Johnson & Co.”
The defendant replied:
“Pella, Iowa, July 27,. 1907, 5 p. m.
‘“M. E. Johnson & Co., Winfield, Kan.:
“Gentlemen — In reply to your letter of the 24th inst. I would say that my price on the S % of SE % 10-'33-5 Cowley county, Kansas, is $2000 net to me. I have it rented now and could not sell it without consent of parties who rent it, as to time possession could be given, ■etc.
“I understand this is a very nice 80, and it seems to '.me quite a cheap property at the figures named.
Yours truly, D. S. Huber.”
On August 10 the plaintiff wrote informing the de fendant that he had negotiated a sale of the land. His letter is as follows:
“Mr. D. S. Huber, Pella, Iowa:
“Dear Sir — We have your favor of the 27th ultimo in which you state that you will take $2000 net to you for the S % of the SE % of section 10, township 33 south, of range 5 east, Cowley county, Kansas.
“We have sold this land. You will please send us the abstract if you have one for this land, together with the enclosed deed properly executed.
_ “Send deed to us or the First National Bank of this city; as soon as the abstract is continued to date showing everything clear and the title is accepted by the purchaser we will send you check for the $2000.
“Trusting we may hear from you by return mail, we are, Yours very truly,
M. E. Johnson & Co.”
Receiving no reply, the plaintiff, on August 22, wrote the defendant the following letter:
“Mr. D. S. Huber, Pella, Iowa:
“Dear Sir — We just wired you, viz.: 'Have you executed and sent deed for land sold? If not, why?” We do not understand why you have delayed answering our communication some time ago.
“The lease and possession of the place we just sold, for you does not cut any figure to our sale, and all we care for is an assignment of whatever lease you have. Send deed at once, if you have not done so.
“Please give this your immediate attention and oblige. Yours very truly,
M. E. Johnson & Co.”
The defendant answered as follows:
“Pella, Iowa, August 23, 1907.
“M. E. Johnson & Co., Winfield, Kan.:
“Gentlemen — Upon my return to my office to-day, after an absence of some time, I find on my desk an accumulation of mail matter, and in with it your communications, and I hasten'to say to you just as soon as I can get to it I will give the business you refer to my attention, and let you hear from me in full.
“This is all I have any time for now.
Yours truly, D. S. Huber.”
Later Re again wrote the plaintiff, as follows:
“Pella, Iowa, September 3,1907. 11:20 a. m. “M. E. Johnson & Co., Winfield, Kan.:
“Gentlemen — I have concluded not to sell that land at the present time'. I have' heard from the parties that occupy it, and they will not be willing to leave the place for some time, having moved on it and greatly improved it, with the understanding that they were to occupy it indefinitely, and also to be given an opportunity to purchase, in case they chose to do st>.
Yours truly, D. S. Huber.”
This closed the correspondence on the part of the defendant. The plaintiff later wrote other letters urging the defendant to comply with the contract and explaining that he had accepted money on payment for the land, but they have no bearing upon the question at issue.
Did this correspondence result in a contract by which the plaintiff was authorized to list the land for sale on commission? The plaintiff’s first letter is susceptible of but one interpretation. In plain language it informs the defendant of the character of the plaintiff’s business, inquires whether the defendant will sell the land, and asks his lowest cash terms. It states the commission which the plaintiff expects to charge in case a sale is made, and, in effect, though not in express terms, asks authority to list the land for sale. In his answer the defendant states the net price at which he holds the land for sale. The further statement that the land was rented and he could not sell without the consent of the tenant as to time possession should be given can not be construed as a statement that the land was not for sale. The fair inference is that he meant to sell it on the terms stated, subject to the lease. In other words, if the purchaser could arrange with the tenant as to the time possession should be given it would be satisfactory to him. It is alleged in the petition that the purchaser which the plaintiff procured was willing to take the land subject to the terms of the lease, and, in the letter of August 22, which the defendant received before he refused to convey, he was informed that the matter of the lease and possession had been arranged. We have no-difficulty in determining that the first letter and the reply should be construed as a contract authorizing the plaintiff to find a purchaser for the land, the price to be $2000 cash, net, provided arrangements could be made with the tenant as to time possession should be given.
This is not a suit for the specific performance of a contract to sell, and we need not inquire whether the defendant could have been compelled under the contract to convey the land. It is an action by the agent to recover from his principal compensation for services rendered in procuring a purchaser willing to take the land at the terms stated. It was a matter of indifference to the plaintiff whether the defendant saw fit to convey the land or not. As between the parties to this controversy the defendant could change his mind and conclude not to sell, but if the plaintiff in the meantime had performed the services contracted for he would be entitled to recover his commission. In neither of defendant’s letters written after he was informed that the sale had been made does he repudiate the authority of the plaintiff to act for him. In his final letter refusing to convey he says: “I'have concluded not to sell that land at the present time.” He now makes the contention that there was no agency and no authority on the part of the plaintiff to act, and denies liability to the plaintiff for services rendered. This is inconsistent with the stand taken at the time he refused to be bound by the agreement. He is thus in the position of one who, after action has' been brought against him to recover upon a contract, seeks “to mend his hold” by placing his refusal upon a wholly different ground. (Sandefur v. Hines, 69 Kan. 168, and cases cited.) Having authorized the plaintiff to procure a purchaser, he might, so far as the plaintiff’s rights are concerned, refuse to convey because he desired not to inconvenience his tenant, or for any other reason, but he could not thus avoid his liability to the plaintiff for services rendered while the contract was in force.
It is urged that there was-no binding contract for the reason that in the letter upon which the plaintiff relies nothing was said as to the character of conveyance that would be made or who should furnish an abstract of title, and it is claimed that the contract which the defendant was asked to perform called for a warranty deed and abstract of title. These are all matters of detail which might have been provided for in the contract but which were not. In the absence of any provision the fair inference is that the defendant was to give a warranty deed and good title, but in any event he can take no advantage in this action of matters of this kind, for the reason that his refusal to convey was not based on any of these grounds. (Sandefur v. Hines, supra.) We conclude that the petition stated a cause of action and that the demurrer should have been overruled.
There is no merit in the contention of the plaintiff that the. court erred in striking from the petition certain averments with respect to the legal effect of the written correspondence and the understanding which the parties had with reference thereto. The correspondence speaks for itself.
The judgment is reversed, with instructions to proceed further in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Dawson, J.:
In 1911, J. B. Betts, a Topeka contractor, now deceased, entered into a contract with the Rock Island Railway Company to erect a railroad station for the latter at Waurika, Okla., and the defendant executed a surety bond conditioned that Betts would perform his contract with the railway company. The contract bound Betts to pay for all the materials used in the construction of the building.
The plaintiff furnished certain materials for which he was only partly paid. Betts died, insolvent, owing plaintiff a bal anee of $548.86. This action was brought to recover this sum from the defendant as surety. v
Plaintiff’s petition recited these facts and alleged that he furnished Betts material of the value of $2125 and later additional materials of the value of $735.87.
“Plaintiff further says that said material and labor were furnished between January 1, 1912, and August 1, 1912; that the total paid amount payable- thereon by said J. B. Betts was $2,860.87, leaving a balance due thereon August 1, 1912, of $548.86. . . . Plaintiff says that said sum of $548.86 .remains unpaid and has been due and payable ever since August 1, 1912; that said J. B. Betts died on or about the — day of April, 1913, leaving an insolvent estate.
“Wherefore, said plaintiff prays judgment,” etc.
Defendant then demurred to this petition. The demurrer was overruled without argument. How this came about is explained in a finding of the trial court :
“The court further finds that on the hearing of said demurrer no special argument was made, but it was submitted to the court on the statement of the attorney for plaintiff that it involved the same questions that were passed upon by the court in a previous case, wherein the same bond was the basis of the action by another material man who furnished material to the contractor for the same building, and that counsel for the defendant was not present when said demurrer was submitted to the court for decision.
“The demurrer to said petition was overruled by the court upon the merits of the allegation of the petition, assuming that the allegation was true, and that the sum of $548.86 was due on the contract of J. B. Betts to the plaintiff.”
Defendant then filed a lengthy answer setting up various defenses, reciting the failure of plaintiff to present his claim against Betts’ estate, that defendant had no knowledge of this claim so that it might have asserted it against the estate of' Betts, laches, the statute of limitations, the Oklahoma lien laws, etc.
Later, with leave of court, defendant withdrew this answer and refiled its demurrer, and from the decision of the trial court overruling it this appeal is taken.
There is no reversible error here. However carelessly the allegations touching plaintiff’s account and the payment made thereon were pleaded, there was a plain allegation that a balance of $548.86 was due and unpaid, and the defendant was not entitled to j udgment on demurrer. Apparently the pleader had intended first to state the amount payable, then the amount paid, and lastly the balance due. To shorten the pleading he changed the word “payable” to “paid” but failed to change the total price of the materials furnished to the sum paid thereon. The mistake of the pleader as to the amount.paid was transparent and could not have misled the defendant.
After this appeal was filed and defendant’s abstract and brief were served, counsel' for the plaintiif applied to the district court for leave to amend the petition by substituting the correct figures as to the sum of Betts’ payments. This after a hearing and over defendant’s objections was allowed. This also is urged as error, and it may be so conceded. A court never loses power to correct and complete its record, but when an appeal is taken it loses all power to alter the precise situation of the parties as it existed when the judgment appealed from was rendered. (2 Cyc. 976.) The case of Pierce v. Butters, 21 Kan. 124, which was presumed to warrant this practice, falls very far short of it.
But the clerical error in the petition was so obvious and unimportant that it did not need to be-amended, or it might be considered as -amended without formality. (Douglass v. McNamee, 70 Kan. 474, 78 Pac. 834.), Time was, perhaps, when trivialities like these would cause a reversal of the judgment, but the modern codes and the modern practice absolutely forbid it. (Civ. Code, § 581.)
The judgment is affirmed.' | [
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered against the city a judgment for damages for the death of his wife resulting from an injury caused by a defective street. The city appeals and complains of various rulings touching the petition and the evidence thereunder. There was a failure to state that the deceased, at the time of her death, was a nonresident, or that no personal representative had been appointed, but this was corrected by amendment which appears to have caused no material injury to the defendant. This made competent the testimony of the probate judge that no administrator had been appointed.
It is contended that a statement that the plaintiff lived two miles southwest of Bonner Springs had the effect of taking the residence beyond the boundaries of Wyandotte county. But consulting the map, as we have a right to do, we take-notice therefrom that this location would be in Wyandotte county, taking the original townsite as a point of departure. It is not to be presumed that the witness spoke with scientific accuracy, and two miles in a southwesterly direction from a large portion of the city of Bonner Springs as it existed at the time of the trial would be in Leavenworth county. The point does not seem to have been pressed upon the attention of the trial court, and in view of the permission to amend, and the evidence touching the appointment of an administrator in Wyandotte county, the proof must be held sufficient on the question of venue.
Some fault is found with the proof touching the location of the injury and the condition of the street, but the testimony was such that the jury were warranted in the conclusion reached in respect to these matters. The same must be said touching the question of contributory negligence.
It is insisted that the testimony failed to show that the death of the plaintiff’s wife was the result of the injury, but the testimony on this point, while not as clear and strong as in some cases, was sufficient to take the matter to the jury.
Finding no material error so far as the defendant is concerned the principal judgment is affirmed.
Plaintiff appeals from an order of the trial court assessing the costs to him, and contends that a written claim for damages was properly served by leaving it at the office of the city clerk. The petition contained no allegation touching this matter, and the proof was silent thereon, but upon a motion to retax the costs showing was made as indicated.
Section 1559 of the General Statutes of 1909 provides, among other things, that—
“No costs shall ever be recovered against such city in any action brought against it for any unliquidated claim which has not been presented to the city council to be audited, nor upon claims allowed in part, unless the recovery shall be for a greater sum than the amount allowed, with the interest accrued thereon.”
It was held under a similar statute in City of Atchison v. King, 9 Kan. 550, that costs could not be recovered unless the claim had been presented to the city council for its action, “and where there is no averment in the petition of such presentation, the plaintiff will not be allowed to prove that fact.” (Syl. ¶ 10.) In the opinion it was said:
“It is a general rule that the proof must be justified by the allegations of the pleadings. We do not see any reason why this is an exceptional case; nor are we referred to any authorities. . . . Generally, averments and testimony that will authorize a recovery of damages will authorize a recovery of costs; but where other facts are necessary to carry costs such facts must be alleged as well as proven. Whether defendant was liable for costs was an issuable fact which the city had a right to contest, and was entitled to notice that such fact would be relied on; and the only appropriate place for such a notice was in the petition. Without such an averment the evidence was improperly admitted. The language of the section referred to is that no costs shall be recovered against such city, etc., unless the claim has been presented to the city council. Under this law, and under the facts as presented, there can be no costs recovered by the plaintiff against the city; and as there is no provision that the city shall recover costs in such cases, the judgment should be for the amount of the verdict for the plaintiff, and no judgment for costs in favor of either party; and the case is remanded, with directions to modify the judgment in accordance with this opinion.” (p. 561.)
The foregoing decision was inferentially followed in City of Abilene v. Hendricks, 36 Kan. 196, 201, 13 Pac. 121, referred to and substantially followed in City of Enterprise v. Fowler, 38 Kan. 415, 416, 16 Pac. 703, and expressly followed in Food Scott v. Elliott, 68 Kan. 805, 806, 74 Pac. 609. Except as to cities of the first class under commission form of government . (Gen. Stat. 1909, § 1218), the statutes as "to the cities of the three classes are substantially the same. (Gen. Stat. 1909, §§ 1053, 1414, 1559.) In Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540, after citing the statute it was said:
“No attempt was made to comply with this statute, and for that reason no judgment could properly be rendered against the city for costs. (City of Atchison v. King, 9 Kan. 550; Fort Scott v. Elliott, 68 Kan. 805, 74 Pac. 609.)” (p. 104.)
The analogy suggested by counsel for plaintiff of the statutes concerning the recovery of costs in insurance cases is not sufficient to impair the rule thus settled by the authorities cited.
The judgment for costs therefore must be modified as indicated in City of Atchison v. King, supra. | [
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The opinion of the court was delivered by
Mason, J.:
In this case we held that, assuming that Noah Cameron made a valid contract to adopt. Rose L. Malaney as his daughter, and failed to do so, this gave her no claim against property conveyed by him to his son Huber, and inherited by another son (Allen N.) upon Huber’s death intestate. In the opinion it was said:
“It may be argued that if the promise to adopt the plaintiff [Rose L. Malaney] 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 partition and for rents and profits, and is founded upon the proposition that she owns an interest in the specific real estate involved.” (Malaney v. Cameron, ante, pp. 70, 72.)
In a petition for a rehearing the plaintiff urges that the character of her action should not prevent her recovery in this proceeding, but that she should be allowed to assert here any right she may have. We are not disposed to attach great importance to mere matters of form, but throughout this litigation the plaintiff has sought to reach the property conveyed away by Noah Cameron, and no other. A judgment for damages against his estate, to be made out of other property, has not been asked, and apparently is not now sought, for in the petition for a rehearing it is said that “practically all of the property to be ultimately affected by any recovery on behalf of appellant is involved in this suit now before the court.” Counsel for the plaintiff appears to interpret the opinion as intimating that by a different procedure she might be able to subject to the payment of her claim the real estate conveyed by Noah Cameron to Huber, and inherited from him by Allen. It was not the intention of the court to convey such a meaning. Possibly the plaintiff might have maintained an action against the estate of Noah Cameron, seeking a judgment to be made out of any property he owned at the time of his death; but we hold that the property which he had conveyed to his son Huber can not by any method be made liable to her claim. The argument to the contrary is that when Huber died intestate, leaving his brother Allen as his sole heir, this land under the statute was to be disposed of “in the same manner” as if his father (Noah), had outlived him, and died in its possession and ownership; that if the father had died owning the land the plaintiff could have subjected it to the payment of her claim; and therefore, as it is to be disposed of in the same manner as if that had happened, she has the same right now. The answer to this is that the father did not actually inherit the property, and could not do so after his death. His estate can not be augmented by the subsequent death of intestates from whom he would have inherited if still alive. In this state, upon equitable grounds, the share of one who inherits by reason of his descent from a deceased ancestor may be reduced by any indebtedness owed by such ancestor to the intestate (Head v. Spier, 66 Kan. 386, 71 Pac. 833), a matter as to which the courts elsewhere are divided (9 R. C. L. Ill). But the principle by which an inheritance is charged with a debt owed by an ancestor, descent from whom gives the heir his title, seems never to have been applied to an.indebtedness owed to any one other than the person from whom the property is inherited, and we do not think it can be so extended as to enable general creditors of a parent to rea,ch property inherited after his death by one of his sons from another. Whether in other connections an heir of a collateral relative is deemed to take directly or mediately, in the present situation the title to the land, in its course from-Huber Cameron to Allen N. Cameron, can not be regarded as passing through their father, Noah Cameron, in such sense as to render it subject to the payment of any claim for damages the plaintiff may have against his estate.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a member of a railway switching crew for damages for personal injuries inflicted by the movement of a freight car while he was between the rails of the track adjusting the car’s automatic coupling device. The plaintiff recovered and the defendant appeals.
The coupler was at the east end of the car. The car was the east one of three empties detached from a freight train which was to be broken up in the Salina yards. These cars stood on what was called the passing track. The remainder of the train, consisting of thirty-one cars, stood on the first track north of the passing track, called the back track. The two tracks were' connected by a cross-over which lay between the two parts of the train. The east car of the main portion of the train was four or five car lengths west of the nearest car of the other portion. A switch engine was attached to the west end of the main string. The switching crew consisted of John Anken, who was foreman, Harry Lennon and the plaintiff, who were switchmen, and the engineer and fireman. The entire train was to be moved eastward about a quarter of a mile, where a track called track No. 5 was to be utilized in breaking up the train. With the train in this situation, the foreman and switchmen were in the vicinity of the cross-over. The foreman directed the plaintiff to go on east and line up the switches, five in number, for track No. 5. The plaintiff started to do this, and the foreman walked along behind him, marking the detached cars on the passing track with chalk to show where they were to be set. Each man carried a lantern. They were both on the north side of the detached cars, and before the plaintiff reached the east end of the east car, the foreman completed his marking and turned back toward the west. The plaintiff went on, and went around the east end of the car to examine the knuckle and see if it would couple by impact. It was a part of his duty to do this. He found the knuckle closed, and went to the southeast corner of the car to open the knuckle with the lever provided for that purpose. The lever did not operate the knuckle, and he went between the rails to adjust it with his hands. While there the main portion of the train struck the empty cars and the plaintiff was knocked down. The two parts of the train did not couple, and the three empty cars passed over him and injured him.
The charge of negligence contained in the petition reads as follows :
“That the defendant, . . . while plaintiff was still in front of and at the east end of said east box car, did carelessly, negligently, recklessly and wantonly by the said switch engine, push, switch and propel with great speed, force and violence, said string of box cars upon the back track eastward and over and across the switch and into the west end of the three box cars standing upon the side track where plaintiff was at work, without any warning or notice to the plaintiff and without any signal from plaintiff and when said defendant, The Union Pacific Railroad Company, its agents, servants and employees, and the defendants, John Anken, Wm. Tozier, M. P. Weis and Harry Lennon knew, or in the exercise of ordinary care ought to have known that plaintiff was at the east end and in front of said box cars upon the said side track.”
The petition referred to a certain car as blocking signals from the foreman and switchmen to the engineer, but there is nothing in the record to indicate that the position of the. car had anything whatever to do with the accident.
The evidence was that the engineer was on the north side of his engine. It was Lennon’s duty to keep in sight of the engineer, and he had been left near the east end of the main string of cars, and on the north side of them, to transmit signals to the engineer. He did give the back-up signal to the engineer which caused the main portion of the train to be moved. Whether he merely transmitted a signal given him, or signaled the engineer on his own authority, was a disputed question. The foreman and Lennon testified that the plaintiff himself gave the signal to back up. The plaintiff testified he gave no signal, that it was not his duty to give a back-up signal or other signal for the engineer, and that his duty was to line up the switches, and then signal the foreman he had done so. Lennon testified as follows:
“It wasn’t our duty to stand still and not move toward track No. 5 until after Ivey had traveled the 1200 feet and lined up the switches. I never heard of any practice where a crew was to stand still and wait for a man to go 1200 feet on an occasion of that kind to line up switches.”
Lennon testified that after the plaintiff gave the back-up signal, he disappeared around the end of the car. The foreman, having his back toward the plaintiff at the time, did not see him go around the end of the car. After he had gone around the end of the car, while he was examining the coupler, trying to work the coupler with the lever, and then adjusting the coupler with his hands, he could not be seen by any of his associates. Knuckles ordinarily open when the lever is jerked. The purpose of the lever is to enable the switchman to stand outside the rails and throw the knuckle open. The plaintiff did not know that he would need to stand between the rails until he had gone out into the clear, had tried the lever, and had discovered that it did not open the knuckle. When the lever failed to work, all the plaintiff had to do was to reach in, pull up the safety lock and open the coupler, a work requiring but fifteen or twenty seconds of time. A number of witnesses testified to the following effect:
“According to the usual practice and the rules and custom in switching, if a man found that any work required his presence between the rails up near a car that might be moved he should step out in sight of the engineer or man whose duty it was to pass signals to the engineer and give him a signal to stop. If the engineer was already stopped he would give this signal anyway and it would mean to stay stopped.”
One of the witnesses said:
“I do not mean to tell the jury that every time a switchman saw a coupling closed he would have to signal the engineer to stop when he wasn’t going at all.”
The plaintiff did not ‘dispute this practice when called in rebuttal. The foreman testified that after he left the plaintiff and started west, he was looking over his switch list, and took his time. He was going to the west end of the detached empties to see if the cars coupled. If they did not, he would then see that the coupling was made. Had he reached the place, he would have given a slow signal. There was conflicting evidence relating to the speed of the main portion of the train when it struck'the detached cars.
The court stated to the jury the'claim of negligence substan-, tially in the language of the petition, and advised the jury that if they found the facts as the petition alleged them to be the verdict should be for the plaintiff. Besides instructing with reference to contributory negligence and assumed risk, the court instructed the jury as follows:
“The jury are instructed that your verdict must be for the defendant unless you find from the evidence that' some of the members of the switching crew knew or had reasonable cause to believe that the plaintiff was in a position of danger when the engine and the cars attached to it were switched into the three detached cars.”
The jury returned the following special findings of fact:
“1. Did defendant, through its engineer and fireman, Wm. Tozier and M. P. Weis, push the string of box cars eastward and into the west end of the three cars standing upon the sidetrack at a dangerous rate of speed. A. Yes.
“2. Did the defendant’s engineer and fireman push and back said string of box cars eastward and into the west end of the three cars standing upon the sidetrack, without any notice or warning having been given to plaintiff. A. Yes.
“3. Did the defendant’s engineer and fireman push the string of box cars eastward and into the west end of the three cars standing upon the side track without any signal from the plaintiff to do so? A. Yes.
“4. Did the defendant’s engineer and fireman push the train of cars eastward to a connection with the west end of the three cars on the side track without a slow signal from the foreman? A. Yes.
“5. Was the switch foreman Anken in the proper place for the performance of his duty when the coupling was made? A. No.
“6. If you answer the preceding question ‘No,’ state whether if the said Anken had been in his place of duty when coupling was made would he in the exercise of reasonable care have discovered that Ivey was adjusting coupling in time to warn him of danger? A. To some extent.
“7. Was the defendant guilty of any negligence causing the plaintiff’s injury? A. Yes.
“8. If you answer the preceding question ‘Yes,’ then state fully of what the defendant’s negligence consisted. A. The defendant was negligent inasmuch as he was not at his post of duty to give slow signal when coupling was made.
“9. If you answer question No. 7 ‘Yes,’ then state what employee of defendant was guilty of such negligence. A. Mr. Anken and Mr. Lennon.
“10. Did any member of the switching crew other than Ivey have any reasonable cause to believe that he was in a position of danger when the main string of cars was backed to couple with the three detached. cars? A. No.
“11. Did the engineer back up his train in response to a back-up signal given by one of the switchmen? A. Yes.
“12. What was the distance from the place where the three detached cars were standing on the passing-track to the last switch Ivey was directed to open in order to set the cars on track five? A. 1,000 or 1,200 feet.
“13. H'ow many switches was Ivey required to line up in order to set the cars on track five? A. Five.
“14. Was it required by the rules or the practices of the switching crew that the main string of cars should not be coupled onto the three detached cars until Ivey had lined up all the switches leading to track fivé? A. No.”
The defendant moved for judgment in its favor on the special findings, and the refusal of the court to render such judgment is assigned as error.
The special findings of fact acquitted the defendant of the negligence charged in the petition, and undertook to base liability on an omission which was not complained of, which was not submitted to the jury as a basis of recovery, and which, under finding No. 10, was not an actionable omission. The negligence charged in the petition was excessive speed and violence in making the coupling, without notice or warning to the plaintiff, and without signal from him, while he was at the end of the car performing a duty. The plaintiff testified, and testified again, that his duty in respect to giving signals consisted in signaling Anken that the switches were lined up, when the switches were lined up, and so excluded any duty on the part of Anken or Lennon to expect a signal from him before that time. He gave no stop signal indicating that he desired to work between the rails. Unless the plaintiff’s associates knew or ought to have known that he would be endangered by the coupling, they had no reason to give him notice or warning, and had no reason to moderate the speed or force attending the coupling, so far as he was concerned. They could ignore him and handle the train as they pleased without being guilty of negligence toward him, unless they ought to have anticipated danger to him. The petition was drawn on this theory. It was alleged that the plaintiff’s associates knew, or ought to have known, that the plaintiff was at the end of the car when the coupling was made. This allegation was inserted because no duty to him to await his signal or to warn him or to handle the train gently arose, unless they knew, or ought to have known, his situation. This is elementary law, and the court so instructed the jury, as it was bound to do. The jury were unable to say from the evidence that the plaintiff’s associates had any reasonable cause to believe that he was in a position of danger when the train was backed to make the coupling, and consequently returned the tenth finding of fact. The finding is well sustained by the evidence. When catechised with reference to who of the plaintiff’s associates was guilty of negligence, the jury named Anken and Lennon, in finding No. 9. This acquitted the engineer of negligence. He did not and could not know where the plaintiff was or what he was doing. The engineer simply obeyed Lennon’s signal, put the train ifi motion, and imparted to it whatever speed or force it had when the coupling was attempted. When asked to state in what the negligence of the defendant consisted, the jury did not say that the plaintiff’s associates should have waited for a signal from him, or that they should have warned him, or that the main body of the train bore down on the three cars with too great speed or violence. The jury said in finding No. 8: “He was not at his post of duty to give slow signal when coupling was made.” When asked who was guilty of “such negligence,” that is, who ought to have been at his post of duty to signal the engineer to slow down the train to make the coupling, the jury included Lennon with Anken. The jury got this supposed negligence from Anken’s testimony recited above, and not from the petition or from the court’s instructions. Had a charge of negligence of this kind been included in the petition, submitted to the jury and sustained by evidence, it would not have afforded a basis for the general verdict because of finding No. 10. Unless Anken and Lennon had reasonable cause to believe that the plaintiff would be imperiled if they did not give a slow signal, no occasion existed for doing so.
The sixth finding does not answer the question propounded and must be ignored. It was evidently phrased to avoid giving a truthful answer according to the evidence. The plaintiff’s evidence was positive and unequivocal that he was entirely out of sight of the other members of the switching crew. Other testimony was to the same effect. There was no testimony or circumstantial evidence to the contrary. The plaintiff himself said Lennon was at the place where it was his duty to stand and wait for signals. Because of the curve of the cross-over, the engineer could not see him or receive signals from him if he went nearer the empty cars on the south track. If the foreman had reached a position near the west end of the west car of the three empties, he would have watched the approach of the main string of cars from the west and north and would have given a slow signal to Lennon to be transmitted to the engineer. His attention would have been taken with these things and would not have been attracted in the plaintiff’s direction. But if he had looked toward the east he could not have seen the plaintiff at all. The plaintiff testified as follows:
“Q. When yon first went around and saw that knuckle you then for the first time discovered that it needed opening, did n’t you? A. Yes, sir.
“Q. And then you went out in safety in the clear and pulled on the lever and failed to open it? A. Yes, sir.
“Q. And not until you had done that did you yourself know that you were going to be in a position of danger, did you? A. No, sir.
“Q. And those men in the switching crew besides yourself were where they could n’t see what you were doing at all, were n’t they? A. I did n’t understand that question.
“Question read. A. Yes, sir.
“Q. Tozier and Weis were away up in the engine? A. Yes, sir.
“Q. Thirty car lengths away or more? A. Yes, sir.
“Q. Lennon was up around on the point of the curve, wasn’t he? A. I think he was up at Santa Fe Avenue.
“Q. Anyway he was away where he could n’t see you? A. Yes, sir.
“Q. And Anken was also upon the other side of the car so he couldn’t see you? A. Yes, sir.”
Since the jury, eváded returning a candid, answer and refused to say whether or not Anken would have discovered what the plaintiff was doing, the answer returned is nugatory.
None of the remaining findings qualifies findings Nos. 8, 9, and 10. The plaintiff argues that the quoted instruction was immaterial, that the jury could disregard it, and that this court should disregard it. The court does not regard the argument as sound, for reasons already stated. The plaintiff also undertakes to harmonize the findings of fact with the general verdict. It would unduly extend this opinion to meet the skillful argument in detail. The court regards findings Nos. 8, 9, and 10 as irreconcilable with the general verdict, and under the statute they control.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant on the special findings of fact. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant was convicted and fined in the police court of Kansas City, Kan., for carrying on the occupation and business of a laundry within the city without having obtained a license under the provisions of a city ordinance. The district court affirmed the conviction, and he appeals.
The appellant resided in Kansas City, Mo., and was in the employ of the Fern Laundry Company, a corporation located in and doing business as a steam laundry in Kansas City, Mo. Among the customers of the laundry company are people who reside in Kansas City, Kan. It was the custom of the laundry company to send the appellant with the company’s horse and wagon to Kansas City, Kan., to gather up the linen of its patrons, take it to the laundry, and when it was ready for delivery, return the same to its patrons and collect the charges. The appellant while so engaged was arrested for the violation of an ordinance of the city which provided that no person, firm or corporation, either as principal, officer, agent, servant or employee, shall carry on or operate within the city any calling, trade, or occupation therein specified, without first obtaining a license therefor. The ordinance fixed the occupation tax for the business of laundries as follows:
“Laundry Wagon. Any person or corporation conducting, pursuing or carrying on a laundry business by collecting or delivering laundry by means of a wagon or other vehicle, for each wagon or vehicle, $10.”
We construe the ordinance as imposing an occupation tax upon the laundry business, the amount of the tax against the business being determined by the number of wagons employed therein.
There are two reasons why we think the judgment convicting the appellant must be reversed. First, he was not carrying on the business of a laundry within the city and therefore was not within the terms or contemplation of the ordinance. The laundry was conducted in Kansas City, Mo. He was engaged solely in collecting and distributing articles to be laundered in Missouri. He had no place of business in Kansas City, Kan., but was simply using the streets for the lawful purpose of transporting from that city to the state of Missouri articles to be laundered and to return them to the owners when the service was completed.
Second, in the course of his employment the appellant was engaged in interstate commerce. The appellee insists that there was no commerce involved, or at least, that commerce was only incidental to the business, because there was no barter or sale of personal property. A number of decisions are cited in which “trade, barter, sale or transportation involving trade, barter or sale” are spoken of as constituting the elements of interstate commerce. In the appellee’s brief it is said:
“The contract between the laundry company and its customers is, that the company will take, wash and return the clothing. The trans action is for a personal service with reference to property owned by the-customer. No goods are sold by the company. They have nothing but their services to sell.”
It is seriously insisted that interstate commerce has been defined by the federal courts to involve only the transfer of the title to personal property and its transportation, and the business of transporting passengers or intelligence. But certain services are held to be commodities. In International Textbook Co. v. Pigg, 217 U. S. 91, it was held that teaching by correspondence, the business of imparting knowledge, is interstate commerce when conducted between residents of different states, because teaching is a service. In the case at bar there was a sale of service involving transportation between the homes of the customers in Kansas and the place where the service was performed in Missouri.
One of the cases relied upon by the appellee, which illustrates its attitude as regards the claim that appellant was employed in interstate commerce, is W. W. Cargill Co. v. Minnesota, 180 U. S. 452. In that, case Cargill owned a number of grain elevators located upon the rights-of-way of interstate railways. At these elevators' he purchased grain from citizens of Minnesota and shipped it in carload lots to points in other states, the grain being purchased for the express purpose of shipping as Cargill’s property to his terminal elevators in Wisconsin and Illinois. A statute of Minnesota required grain elevators operating in that state to pay a license fee. The court held that the statute imposing the license was valid for the reason that it had reference only to the business of the defendant at his elevators and warehouses in Minnesota, “in respect of business conducted at an established warehouse in the state between the defendant and sellers of grain.” (p. 470.) The Minnesota case does not support the contention of the appellee. If the laundry company were resisting the imposition of a license tax by the state of Missouri on its business conducted there, upon the theory that some, or a large part of its business was interstate, the Minnesota case would be an authority upholding the power of the state of Missouri to levy such a tax for the reason that the tax would be imposed in respect to a business conducted in an establishment located in Missouri. Or if a person conducting a laundry business in Kansas City, Kan., sought to avoid the license tax imposed by the_ordinance in question, by claiming that its customers resided in Missouri, the Minnesota case would uphold the authority of the city to levy such a tax in respect to the business actually carried on within the city. .
Undoubtedly there were some features of the business conducted by the laundry company which involved interstate transactions. The sending of its wagons into another state with agents to collect articles to be laundered, the transporting of the same to its place of business in Missouri, and returning the articles to the owners in Kansas after the work •had been completed, involved trade and intercourse. In Gibbons v. Ogden, 22 U. S. 1, Chief Justice Marshall said: “Commerce undoubtedly, is traffic, but it is something more; it is intercourse.” (p. 189.) Anything which can be bought and sold is a subject of commerce. (Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fedi 1, 17.) In International Textbook Co. v. Pigg, 217 U. S. 91, it was held that—
“Intercourse or communication between persons in different states through the mails and otherwise, and relating to matters of regular continuous business, such ’as teaching by correspondence, and the making of contracts relating to the transportation thereof, is commerce among the states within the commerce clause of the Federal Constitution.” (Syl.)
•When a resident of Kansas-contracts with an individual doing business in' Missouri; that the latter will mend a pair of spectacles for him, .and the one who engages to perform the service agrees to send into this state for the article which is to be. repaired, take it to his place of business in Missouri, and after the service has been performed, return it to the owner, the servant or agent of the individual in Missouri, while engaged in transporting the article to Missouri and returning it to the owner in Kansas is engaged in trade and intercourse between individuals of different states. The servant or agent of the one performing the service is not, while so engaged, carrying on the business of mending spectacles; that business is carried on in Missouri.
A wholesale grocer in Missouri who sells goods there to a retail dealer in Kansas, under a contract which requires him to .deliver them in Kansas, may send them by his own wagon to the customer’s place in Kansas. In such a transaction he, and of course his agents, are engaged in interstate commerce. His traveling men who solicit business in Kansas are not engaged in conducting a wholesale grocery in this state, nor can they be required to pay a local license tax. (Kinsley v. Dyerly, 79 Kan. 1, 98 Pac. 228, and cases cited in the opinion; Note 19 L. R. A., n. s., 297, 816.) Since the decision of Delamater v. South Dakota, 205 U. S. 93, an exception to the general rule exists'in the case of intoxicating liquors because of the provisions of the Wilson act and other recent acts of congress touching the control of such liquors.
Instances might be multiplied of cases involving transactions between citizens of different states whereby the owner of personal property in one state sends it to an individual, firm or corporation in another state to have some service or labor performed upon it there, and afterwards to be returned to the owner in Kansas. The collecting and transporting of the thing from one state to another, and the return of it after the labor and service has been performed, is trade and intercourse between citizens of different states.
While engaged in collecting articles to be laundered, or in returning them to the owners in Kansas after the labor and service had been performed in Missouri, the appellant, as the servant and agent of his employer, was not carrying on the laundry business in Kansas; and for that reason alone was not within the provisions of the ordinance which purports to levy an occupation tax upon persons carrying on such business within the state. If the ordinance were given the construction contended for by the appellee, grievous burdens might be imposed by one state by the enactment of laws and ordinances which would embarrass traffic, trade and intercourse between the citizens of different states.
It follows that the appellant is not amenable to the provisions of the ordinance, and his conviction for its alleged violation is void. The judgment will be reversed and the case remanded with directions that appellant be discharged. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs sued the defendant for the contract price of certain catalpa seedlings. The contract was in the form of a printed and written order and signed by the defendant. In the body of the text, in prominent capitals and above the defendant’s signature, were the words, “I Agree That This Order is Not Subject to Countermand,” On the margin, in plain type, it was printed:
“Our Agents are not authorized to vary from the printed terms hereof. Read the notice at the bottom of this blank.”
At the bottom of the blank, following the schedule of trees and seedlings ordered, was the following:
“The signer is notified that agents are- not authorized to promise to plant stock, collect pay for orders in advance, to promise time or privilege of countermanding.
“Read terms of Contract.
“Positively no Countermands Accepted or Conditional Orders Taken.”
The seedling stock was shipped to defendant. He refused to accept, and as the stock was perishable it was advertised and sold by plaintiffs at auction for a nominal sum, and the plaintiffs’ action is for the difference between the contract price and the sum realized by the sale plus necessary and pertinent expenses.
The defendant’s answer alleged that prior to signing the order it was expressly agreed between him and plaintiffs’ general agent that the order would be subject to countermand and cancellation by notifying the plaintiffs at any time before the trees were actually shipped; that defendant relied wholly dp on plaintiffs’ agent to write and prepare the order, and that he had no opportunity to read the order, and that defendant signed the order relying wholly upon these statements of plaintiffs’ agent and upon the agreement between him and the agent.
The answer also alleged :
“4th. That about the time of the signing of said order and- prior thereto and subsequent thereto said plaintiff and its agent were engaged in a general plan and scheme to cheat and defraud parties throughout the State of Kansas by false , and-fraudulent representations and as a part of such plan said agent made false and fraudulent representations that the prices for which said plaintiff was offering these .for sale was an exceedingly low price and was much lower than such trees could be bought or purchased for at any nursery or any market in the United States and plaintiff’s agent pretended to have a letter direct from plaintiffs which he purported to read from to the effect that said agent was not authorized to sell such trees after the end of that week for less than seven cents each and that when plaintiff advanced its price that said trees , would be two cents cheaper than like or similar trees could be bought or purchased at any nursery or at any place in the United States. That yearling speciosa catalpas would in three years develop into, fence posts and in five years to telephone poles and in seven.years to telegraph poles and railroad ties. That it would be necessary for said defendant to order five thousand in order to get one thousand inasmuch as plaintiff did not have sufficient catalpas with which to fill all orders. That plaintiff did no jobbing business and that they procured catalpa seed and raised all the stock at or near the City of Lawrence. That plaintiff’s agent had just purchased a half section of land in Ford county, Kansas, and that he intended to and was going to plant the whole of same in catalpa trees.
“5th. That all of said statements and representations were false and untrue and fraudulently made and that in truth and in fact the regular market price'of yearling speciosa catalpas such as plaintiff’s agent was selling and such as plaintiff shipped was from five to eight dollars per thousand and that plaintiff had a large stock and could fill defendant’s order for five thousand trees, that it would take said catalpas six to éight years to mature to fence posts and fifteen years to mature to telephone poles and eighteen to twenty years to mature railroad ties or télegraph poles, arid that plaintiff did not grow all its trees at or near Lawrence, Kansas, and that plaintiff’s agent did not have or purchase the half section of land in Ford County, Kansas, for the purpose of planting catalpa trees, and that said letter that said agent claimed to have and read from was false and fraudulent and fictitious and after selling said trees to said defendant, said agent continued to sell trees at-the same / price and that said agent read from said letter for the purpose of inducing defendant to purchase said-trees then and there.
“6th. That said defendant has never had or grown any catalpas and wris not familiar with the length of time it would take same to mature as aforesaid and did not know nor was familiar with the market price or the reasonable price of same and that he relied implicitly upon such said representations.
“7th. That afterward, when defendant t learned that said statements. were false and fraudulent and acting in accordance with said contract, defendant notified said plaintiff not to ship said trees on September 23rd, 1914, contermanded and cancelled said order.”
The cause was tried to a jury and a general verdict rendered for defendant. Certain special questions propounded by plaintiff were answered:
“Question 7. . . . State whether or not’ at the time of signing said order any misrepresentations in regard to said nursery stock were made to said defendant by A. L. Dye? Answer. Yes.
“Question 8. If you answer the last question in the affirmative, then state fully what such misrepresentations were? Answer. As to time it takes to grow fence posts, telephone and telegraph poles.”
Also certain questions submitted by defendant:
“No. 1. Did the plaintiff’s agent represent to the defendant that yearling-speciosa catalpas could not be bought for less than $20 per thousand? Answer 1. Yes.
“No. 2. . . . Did the plaintiffs’ agent know that speciosa seedlings could be obtained for less than $20 per thousand? Answer 2. Yes.
“No. 3. . . . Did not the plaintiffs’ agent know that speciosa seedlings could be obtained in the market for less than $20 per thousand? Answer 3. Yes.
“No. 4. Did plaintiffs’ agent make false misrepresentations to the defendant as to the value of yearling speciosa catalpas? Answer 4. Yes.
“No. 5. Did plaintiffs’ agent make false representations to defendant as to the length of time speciosa catalpa seedlings would develop into a size so that the same could be cut and used for a fence post, a telephone pole, or telegraph pole? Answer 5. Yes.
“Q. 6. . . . Did defendant rely upon said false representations in the signing of said order? Answer 6. Yes.
“Q. 7. Did the defendant have personal opportunity to examine or read the order in question? Answer 7. Yes.”
Considering the principal errors assigned in the order of their presentation, it does not seem that the plaintiffs were entitled to judgment on the special findings. - True, the question whether defendant had a fair opportunity to sign the order was answered in plaintiffs’ favor, but another good and sufficient defense — that of fraud and misrepresentation — was pleaded and apparently proved. It is elementary that a contract entered into through the fraud and misrepresentation of one of the parties and relied on by the other is voidable at the instance of the party defrauded. (Hart v. Haynes, 96 Kan. 262, 150 Pac. 530.)
Plaintiffs’ next complaint relates to the court’s instructions touching the measure of damages and of the jury’s special finding of market value of catalpa seedlings at Halstead, where the defendant resided. Unless some way is disclosed to overcome the findings of fraud and misrepresentation, these alleged errors are inconsequential. So, too, is the error urged as to the admission of oral evidence touching the privilege of countermanding the order. Counsel for plaintiffs are entirely correct in their contention that such evidence is ordinarily incompetent, since the plain terms of 'the contract were to the contrary, and they were not subject to oral contradiction unless indeed another controverted question in the case — defendant’s opportunity to read the contract — had been resolved in defendant’s favor. But the question whether defendant had a fair opportunity to' read the contract was itself an issue, and the trial court could not anticipate the jury’s finding concerning it, and therefore, it was not improper to admit the oral testimony as to the privilege of countermanding the order, when the court carefully guarded, as it did, the rights of plaintiffs in appropriate instructions. (4 Wigmore on Evidence, § 2430.) The instruction, in part, reads:
“On the other hand, if you believe that the defendant • was not induced to sign said order by reason of the said false and fraudulent statements of plaintiffs’ agent preventing the defendant from having a fair opportunity to read the said order' and you believe that defendant did not read or hear said order read before delivering and that said order was accepted by the plaintiffs before the defendant gave notice of countermanding or cancellation of said order, then the order and acceptance would become a binding contract and the defendant would be bound by all the terms and conditions of said written order and defendant would have notice of the limitation of the agent’s authority as contained in said order and notice of the statement in said order that no countermand would be accepted or conditional orders taken; and under the conditions above stated the defendant could not countermand his order after it had been accepted by the plaintiffs and defendant would be liable,” etc.
However dogmatically the rule is stated and reiterated in the decisions and textbooks that parol evidence is inadmissible to show the oral representations, negotiations and statements of contracting parties, leading up to their bargain, when later their contract is reduced to writing and signed by them, an invariable qualification of that rule is usually appended making an exception in all cases of fraud pleaded and proved. (Willard v. Ostrander, 46 Kan. 591, 26 Pac. 1017; McMullen v. Carson, 48 Kan. 263, syl. ¶ 2, 29 Pac. 317; 4 Wigmore on Evidence, § 2439.)
Nor would it be proper to hold that the representations and statements of the plaintiffs’ agent were mere “puffing,” or “dealer’s talk,” or expressions of opinion. The defendant was a farmer having neither knowledge nor experience in the growth of catalpa trees, and he might be expected to give entire credence to the statements of plaintiffs’ agent touching the market value and quick-growing qualities of catalpa, and to enter into a bargain with him on such representations and only because of his reliance on them. This observation is particularly true touching the agent’s representations as to the market price. Since the defendant had no knowledge of speciosa catalpa nor its market price, and its value or market price was not readily ascertainable, the plaintiffs’ agent was bound to tell him the truth about this matter within his peculiar knowledge, if he volunteered to tell defendant anything whatever about it.
While the rule is that statements of value or market price of familiar commercial commodities, like grain, wool and the like, are ordinarily mere matters of opinion (Graffenstein v. Epstein & Co., 23 Kan. 443; Burns v. Mahannah, 39 Kan. 87, 17 Pac. 319; 12 R. C. L. 281), yet the rule is otherwise where the value or market price is difficult of ascertainment, and where the vendor is familiar with such value, and the vendee is not. Where an unfamiliar kind of property is involved and the market value is not easily ascertained, representations as to its market value are usually considered statements of fact and not of opinion. And where a vendor knowingly and grossly misrepresents the true market value of such a commodity, and the purchaser is entirely ignorant of it and is induced to buy in reliance upon the vendor’s false statements as to its market value, the vendee may have a cause of action or a defense based thereon. (Murray v. Tolman, 162 111. 417; Kilgore v. Bruce, 166 Mass. 136; Picard v. McCormick, 11 Mich. 68; Maxted v. Fowler, 94 Mich. 106, 109; Stoll v. Well-born, [N. J. Ch. 1903] 56 Atl. 894; Conlan v. Roemer, 52 N. J. Law, 53; Bacon v. Frisbie, 22 N. Y. Supr. Ct. 26; 20 Cyc. 52, 53. See, also, Note, 35 L. R. A. 426-429.)
In Graffenstein v. Epstein & Co., supra, Mr. Justice Brewer, speaking for this court, recognized that the ordinary rule did not apply where the market value was not readily determinable. Ut was there said:
“So, also, where there are peculiar means of knowledge possessed by one and not open to the other, as where a dealer in precious stones trades with one inexperienced and ignorant of the values of such articles. Acquaintance with such values, or the tests of quality, is not acquired at once, of by the mere asking; it requires training and time. . . . and, indeed, generally, where the parties can not, by reasonable care and diligence, place themselves upon equal terms, the law casts a higher obligation to reveal the truth.” (p. 445.)
Again, in Speed v. Hollingsworth, 54 Kan. 436, 38 P'ac. 496, this court said:
“We are referred by the attorney of plaintiff below to Graffenstein vEpstein, 23 Kan. 443, and Burns v. Mahannah, 39 Kan. 87, as supporting the judgment rendered. In those cases the misrepresentations concerned the market price of an article of general commerce.. The market price was a'matter of public knowledge. But in both of those cases it was observed, that ‘there were no circumstances making it the' special duty of the seller to communicate the knowledge he possessed to the purchaser, and none giving him peculiar means of ascertaining the market price of th^ article sold.’ We have no disposition to extend the rule declared in those cases, and prefei to limit them to the facts disclosed therein.” (p. 441.) .
The rule that positive statements of value are mere “puffing,” or the lying talk in which dealers may indulge with impunity in their transactions with ignorant persons, is one which is subject to criticism, and is not universally followed. At all events, courts should steadily set their faces against the extension of its application. In a plain case of cheating, swindling, or gross duplicity, the rule of caveat emptor should have no application. (Nairn v. Eioalt, 51 Kan. 355, 32 Pac. 1110.)
This feature of the case was sufficiently covered by the instructions :
“10. The jury are instructed that if you believe from all the evidence that the market price of catalpa trees is a matter of public knowledge or could be ascertained by any one by reasonable effort and inquiry, then any false statements by the plaintiffs’ agent as to the market price would not be sufficient to avoid the plaintiffs’ contract, provided it was signed with a full opportunity to know its contents. . . . But if you believe from the evidence that the market price of such catalpa trees was not a matter of public knowledge or could not be ascertained by reasonable effort and inquiry . . . then in that event the defendant would not be bound by said written order, etc.
“11. The jury are instructed that false representations, in order to constitute a defense to a contract, must be statements as to past or existing facts and not merely statements of opinion or as to something to happen in the future, and any such statements of opinion or false statements of something to happen in the future are for the purpose only of showing circumstances to be considered by the jury for whatever they think they are worth as to the question of whether or not the plaintiffs’ agent made false representations to the defendant upon which defendant relied and which prevented defendant from having a full and fair opportunity to read-said order.”
Since we have seen that the false representations as to the market value were sufficient to avoid this contract, we need not enter the more debatable inquiry as to whether the false representations as to the quick-growing qualities of the catalpa seedlings were likewise statements of fact on which the vendee having no knowledge of catalpa might rely, or whether they were mere expressions of opinion, excusable as “puffing” or “dealer’s talk.” On the main point already covered it is clear that the plaintiffs can not prevail.
Counsel for plaintiffs conclude with a pessimistic and gloomy horoscope of the future if business men can not enforce written contracts according to their terms. But we are bound by the findings of fact.. From the time of Cicero until now it has been the law that fraud vitiates contracts — vitiates everything it touches, and through its perpetration no one acquires a right of action. “Nemo ex proprio dolo consequitur actionem.” However reputable a business firm the plaintiffs may be, the jury have found that their agent procured the defendant’s signature and assent to this contract through fraud and misrepresentation, and as no prejudicial error is disclosed, the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff purchased a promissory note made to and indorsed by A. E. Hostetler, who, upon suit being brought, alleged that he was not liable, having indorsed without recourse. When the note was purchased the first three lines on the back thereof were:
“A. E. Hostetler.
“Without recourse
“M. E. Long.”
The court permitted the payee to testify that he had written the words “Without Recourse” under his name. The plaintiff appeals and contends that this was error for the reason that the usual mode of indorsement without recourse is for the words to precede the signature and not to follow it, and that as between the indorser and a subsequent holder it is not competent for the former to show that he wrote them under his signature.
In this case an inspection of the original note which is before us is very persuasive that the handwriting in which the name of the payee and the subsequent words appear is the same, while the words “Without recourse” and the name of the next indorser, M. E. Long, bear no resemblance whatever •as to handwriting.
It would seem on principle that the payee’s , signature on the back of a note together with the words “without recourse” ought to have the same effect whichever words precede or follow. And to this effect are numerous authorities.
“The usual mode . . . is by adding to the signature . . . and it is immaterial whether these words follow or precede his signature.” (8 C. J. 369.)
In Corbett v. Fetzer, 47 Neb. 269, the first paragraph of the syllabus is:
“The words ‘without recourse’, following the name of the first, and preceding the name of the second indorser of a bill or note, may be shown by parol evidence to apply to the former instead of the latter.”
The opinion quotes (p. 273) from The President, &c., of the Fitchburg Bank v. Greenwood & another, 84 Mass. 434, the following language of Bigelow, C. J.:
“There is no rule of law which requires a party to limit or qualify his indorsement by any writing preceding his signature. ' Such qualification may and often does follow the name of the party. Text-writers of approved authority recognize this mode of limiting the liability of an indorser as regular and appropriate.” (p. 435.)
Goolrick v. Wallace, 154 Ky. 596, was very similar to the case before us, the words “without recourse” appearing between the signatures of two indorsers, and oral testimony was held competent to show that they, applied to the signature preceding them. The Kentucky statute quoted was in the identical words of ours, providing that a qualified indorsement may be made by “adding to the indorser’s signature the words ‘without recourse,’ or any words of similar import.” (Gen. Stat. 1909, § 5291. See Note, 134 Am. St. Rep. 993.)
Counsel calls attention to some language in Hatch v. Barrett, 34 Kan. 223, 231, 8 Pac. 129, touching The proper form of an ordinary indorsement without recourse, but this was used with reference to a written assignment coupled with an attempted qualification that it was to be without recourse, and with no reference to the relative position of the two words in an ordinary qualified indorsement.
“And where an indorser adds to his name the words ‘without recourse’, at the time of his indorsement, parol evidence is admissible that such is the.fact, although the paper is afterwards indorsed by another person and the indorsee takes it without knowing that the limitation is applicable to the first indorser.” (3 R. C. L. 1159.)
It appears, therefore, that the decisions as well as the negotiable instruments act (§ 45, Gen. Stat. 1909, § 5291) uphold the ruling of the trial court.-
The judgment is affirmed. | [
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The,opinion of the court was delivered by
Marshall, J.:
The plaintiff obtained judgment against the defendant for wrongfully causing the death of her husband, J. A. Murray. ,The defendant appeals.
The defendant operated a dam across Spring river near Lowell, in Cherokee county. The dam was used for impounding water to generate electricity, and was about thirty feet high and four hundred feet long. It held an effective head of water twenty-four feet high. The water operated eight large turbine wheels, and was released through eight openings in the dam. J. A. Murray drove á team and wagon into the stream at Dardene ford, and was drowned by a flood of water which the defendant had released through the openings in the ■ dam. This ford was ten miles below the dam, following the course of the river. The manner in which the water was re leased on the day of the accident was not disputed; but the evidence as to the effect of the release of the water was contradictory. The plaintiff alleged, and introduced evidence tending to prove, that J. A. Murray’s death was caused by the negligence of the defendant in releasing water from the dam, and by its failure to warn Murray of the approaching flood of water. Two defenses were set up — one a general denial, and the other contributory negligence on the part of Murray. The jury made findings of fact as follows:
“1. What is the distance by the river from the defendant’s dam in going to the ford in Oklahoma where the plaintiff’s husband was drowned? Answer: About ten miles.
“2. What was the distance in feet across the river at the ford when the river was at a fordable stage? Answer: About 240 feet.
“3. Did defendant operate its dam on the 26th day of February, 1914, in the usual manner? Answer: Practically so.
“4. If you find for the plaintiff in this action, then state what particular act or omission on the part of the defendant, its agents or representatives, caused the death of plaintiff’s husband.' Answer: Negligence by not giving warning or .signal of sudden rise of water.
“5. What was the time of day or hour that plaintiff’s husband was .drowned? Answer: From one to two o’clock p. m.
“6. If you find for the.plaintiff in this action, then state how the water was let out of the dam, which you find caused the death’of plaintiff’s husband. Answer: Through the turbines.
“7. What negligence, if any, do you find caused the death of plaintiff’s husband? Answer: By not giving warning.
“9. What is the distance from the Village Ford, mentioned in the testimony, to Lincolnville? Answer: About two miles.
“10. What is the distance from Lincolnville to the Dardene Ford in Spring Biver? Answer: About three miles.”
1. The defendant insists that the court erred in refusing to submit to the jury the eighth special question requested by the defendant, which question was as follows:
“8th. If you find witnesses Kelley and Overton who have testified by deposition, drove to the ford with loads of wood and decided the water was too deep to ford safely, then state the time of day this occurred.”
Witnesses Kelley and Overton testified, in substance, that they went to -the ford to cross it about noon; that they found the river rising and so high that they thought it not fordable; that they went away, and returned again about three o’clock in the afternoon; that on their return they learned that a man had'been drowned and saw the wheels of a wagon in the river; and that they did not see the wheels when at the ford about noon. The defendant’s contention of contributory negligence is based on the assumption that when Murray reached the ford the river was too high to be crossed with safety. Murray was familiar with the ford and knew when he could safely cross. The defendant contends that Murray either carelessly drove into the high water, or deliberately drove in, knowing that it was high. The defendant argues that if the jury had been requested to answer question number eight, the answer would have shown that the river was too high to ford when Murray reached it. The question assumes that there was no dispute about Kelley and Overton’s having reached the ford previous to the time that Murray undertook to cross the river, and assumes that Murray’s wagon was not in the river at the time Kelley and Overton first reached the ford. They may have been mistaken as to the time when they first arrived at the ford. They had no watch, and guessed at the time. Murray may have been drowned previous to that time. The assumptions contained in the question justified the court in refusing to submit it. If the question had been answered as the defendant probably anticipated, the answer would not have determined that the river was too high to ford with safety when Murray reached it. At best, such an answer would have been but the basis from which to argue that the water at the ford was then too high to be crossed. If the defendant desired the jury to determine whether or not the ford was dangerous when Murray reached it,’ a direct question to that effect should have been asked.
2. Defendant complains of the refusal of the court to give the following instruction concerning the evidence to establish contributory negligence:
“You must consider all the evidence offered by the plaintiff as well as by the defendant, for evidence introduced on the part of the plaintiff which tends to show that said J. A. Murray was guilty of negligence which contributed to his death, that is to be considered by you the same as though, it was introduced by the defendant, and is to be considered along with the evidence by the defendant.”
The complaint of the instruction given is:
“That the court did not tell the jury that they were to consider on this subject the evidence offered by the plaintiff as well as by the defendant, or that if there is evidence introduced on the part of the plaintiff which tends to show that Murray was guilty of negligence which contributed to his death, it was to be considered the same as if introduced by the defendant.”
The language used in one of the instructions given — “If it appears from the whole of the evidence that the plaintiff was guilty of contributory negligence,” — is as broad as that requested by the defendant. In another instruction on the question of contributory negligence, the court said to the jury, “You will have to take into consideration all the evidence introduced by both plaintiff and defendant,” and in still another instruction, that “whether the deceased was exercising such ordinary care, is a question for you to determine from all the evidence in the case.” The court gave the jury the substance of all that the defendant requested on this subject.
The defendant complains of the refusal of the court to give an instruction requested concerning the right of the defendant to maintain and operate the dam. On this matter the court instructed the jury as follows:
“7th. You are further instructed that the- defendant had a right to build, maintain and operate a power dam at Lowell, Kansas, ‘and the fact that it did build such dam and penned and held back large quantities of water and that it released water therefrom in quantities that might be dangerous would not alone make it liable for injuries provided it used a degree of care in so releasing such water commensurate with' the danger it had created, if any.’ ”
This was as the defendant asked that the instruction be given, except that the word “alone” was not in. the instruction requested. That word was ádded by the court. That change was the only one made. The defendant complains of the use «of the word “alone” in the instruction given. If that word had been left out, the instruction would have been misleading and probably erroneous, as against the plaintiff.
There was some evidence to show that the deceased was reckless. The defendant requested an instruction as follows:
“16. In determining whether plaintiff’s husband, J. A. Murray, was guilty, of negligence which contributed to his death in attempting to ford the river, you should take into consideration whether or not he was a man of a reckless character.”
The court embraced this matter in an instruction given to the jury in the following language:
“14th. And the question whether the deceased was so exercising such ordinary care is a. question for you to determine from all the evidence in the case. . . . The fact of his being a careful or prudent or a reckless disposition and, in fact, any fact disclosed by the evidence which tends to throw any light upon this question.”
The defendant complains of the refusal of the court to instruct that the plaintiff could not recover if Murray attempted to cross the river when it was not at a fordable stage. This goes to the question of contributory negligence, which was properly submitted to the jury in other instructions.
3. It was established and admitted on the trial that Murray was familiar with the ford and with the marks that indicated
■ the stage of the water. The defendant complains of the refusal of the court to instruct the jury that Murray was familiar with the water marks. This proposition was submitted to the jury in the following instruction:
“The evidence does not show that there was any witness who saw J. A. Murray, plaintiff’s husband, when he attempted to ford the river or who saw him drowned. Under these circumstances, in determining whether or not he was guilty of negligence which contributed to his death in attempting to ford the river, you will have .to take into consideration all the evidence introduced by both plaintiff and defendant* including evidence on the question as to whether or not he was familiar with the ford and with the marks or objects by which persons who were familiar with the ford determined when it was fordable or safe to attempt to ford the river.”
This instruction did not state that it was an established or admitted fact that Murray was familiar with the ford and with the marks which indicated the stage of the water; but the instruction did tell the jury that in determining whether or not Murray was guilty of contributory negligence the evidence of his familiarity with the ford and with the marks must be# taken into consideration.
4. The defendant complains of the number of times the court referred to the failure of the defendant to give notice of the release of water to those desiring to cross the river at any of the fords below the dam. This proposition was repeated a number of times in the instructions. The defendant insists that undue prominence was given to this matter and that the jury were misled thereby. The questions at issue could not have been correctly submitted to the jury without repeating the statement concerning the want of notice. These repetí tions in the instructions given were so framed that no undue prominence was given to that one fact.
5. Expert witnesses testified concerning the flow of the water below the dam. The court instructed the jury concerning-this evidence. The defendant complains of this instrution. Part of the instruction may be subject to criticism. Th& closing paragraph of the instruction was as follows:
“You are not bound to adopt their views nor to take their judgments or opinions as conclusive, and if improbable or unreasonable you may ignore the'* same, but should give their testimony such weight, under the conditions and circumstances existing, as in your judgment it is fairly entitled to receive at your hands.”
This gives a correct statement of the law concerning evidence of this character. The language quoted was such that it controlled and governed the language of which complaint is made. The instruction was not prejudicially erroneous'. •
6. The court instructed the jury concerning positive and negative testimony. The defendant insists that this instruction was erroneous. The instruction has been examined. It correctly stated the law, and there was evidence sufficient to justify the court in giving the instruction.
7. Another complaint is of the sixteenth instruction, a part of which was as follows:
“I instruct you, however, that while, as I have just said, negligence must be proved, it is the law of this state that it may be inferred, when the thing causing an injury or death is in the exclusive management and control of the one charged therewith, and the occurrence is such as. in the ordinary course of matters does not happen, if those having the management and control use proper care.”-
This instruction, if applicable at all, was applicable only to negligence in releasing the water. The instruction had nothing whatever to do with notice or warning. The jury found that the negligence of the defendant consisted in not giving warning. It can not be said that this instruction influenced the jury in reaching its verdict. The verdict was based on evidence that could not have been controlled by the instruction. -Even if the instruction was not applicable under the charge of negligence in releasing the water, and even if the verdict should have been set aside if it had been based on that negligence, yet it can not be said that the instruction in any way prejudiced the defendant.
' 8. The defendant complains of the formation of the jury, and says:
' “Six were regularly drawn prior to the term of court as provided by law. Of the others, two were summoned in the case of State v. Fava, and as to the other four there is nothing of record to show how they got on the jury list.”
There was nothing to show that these jurors were incompetent, prejudicial, or partial. Even if some of the jurors were improperly placed in the jury box, it does not appear that this affected any substantial right of the defendant* or that the defendant did not have fair treatment by the jury. In Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190, this court said:
“It appears that in calling the jury to the box, the clerk called the names of jurors from slips of paper on which the names were written, and when the name of an absent or excused juror was drawn, the slip was laid aside and the name not called. How this prejudiced the plaintiff does not appear. Neither does it appear that the jury was not a fair jury, nor that any particular juror was incompetent.” (p. 313.)
.The judgment should not be reversed on account of the manner in which the jurors were drawn.
9. The defendant contends that the court committed a number of other errors. These are that the instructions emphasized the danger connected with the defendant’s business; that in the instructions apparently no loophole was left unguarded through which the defendant might escape being mulcted in damages; that the verdict was contrary to the evidence; that the court erred in overruling the defendant’s motion for judgment on the special findings of the jury. Each of these complaints has been examined and no reversible error has been found in either of them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The petition alleged that the defendants were partners under the name of Scheetz Mercantile Company, that they were indebted to it upon an account for goods, ware's and merchandise sold to them at their instance and request, amounting to $878.97, an itemized statement of which account duly verified was attached; that the account was just, due, true and correct, that the defendants had not nor had either of them, though often requested so to do, paid this account or any part thereof and judgment against the defendants was prayed. Alice L. Scheetz filed her verified answer denying that she and T. J. Scheetz were or had been partners under the name of Scheetz Mercantile Company and denied that she was indebted to plaintiff in any sum of money whatever. Judgment was rendered against T. J. Scheetz alone and in favor of defendant Alice L. Scheetz for costs, and from this part of the judgment the plaintiff appeals.
The journal entry shows that the plaintiff objected to the introduction of any testimony as to the question of partner ship or the correctness of the account sued upon or Alice L. Scheetz’ liability thereon, for the reason that by the pleadings filed she admitted the correctness of the account ánd that the defendants purchased the goods from the plaintiff as alleged, and that the only defense she could make under her answer was payment.
“Thereupon the court finds that said defendant, Alice L. Scheetz, admits the purchase and sale of the goods as alleged and set up in plaintiff’s petition, and the correctness of the account, but held that the burden was upon said plaintiff to prove the partnership alleged in plaintiff’s petition, which ruling and judgment of the court requiring plaintiff to prove the partnership alleged in plaintiff’s petition was objected to by said plaintiff. Thereupon, said cause coming on for hearing upon, the question of partnership, a jury being waived, said cause is submitted to the court. And the court, having heard the evidence, finds that at the time of the purchase and sale of the goods, said defendants were not partners as alleged in plaintiff’s petition, and for that reason said defendant, Alice L. Scheetz, is not indebted to said plaintiff in any sum whatever, to which judgment and finding of the court said plaintiff at the time duly and legally excepted.”
The plaintiff invokes sections 2034 and 2037 of the General Statutes of 1915, providing that all contracts which by the common law are joint only shall be construed to be joint and several and that in cases of joint obligations and joint assumptions of copartners, or others, suits may be brought and prosecuted against any one or more of those who are so liable. It is argued that the answer of Alice L. Scheetz admits that she bought and received the goods, that the account is true and correct; that she had not paid for them. It will be observed that the allegation was that the defendants doing business as partners were indebted for goods sold to them. The denial went not only to the indebtedness but also to the partnership. Of course if Alice L. Scheetz was a member of the firm she would be liable as a partner for goods bought by the firm whether she participated in the transaction or not. The itemized account although not in the record was doubtless made out against the partnership, the existence of which was denied under oath. In this condition of the pleadings it was necessary for the plaintiff to prove that the goods were sold' the der fendants individually or that Mrs. Scheetz was liable because a member of the partnership in whose name the purchase was made. The mere allegation of the correctness of the account was not sufficient to obviate the necessity of proof as to these matters. In Hill v. Republic County, ante, p. 49, 160 Pac. 987, it was held that the failure to deny a verified account admits only its accuracy and not its legality. The verified denial of the partnership and of the indebtedness left the accúracy of the account as to its amount and as to the liability of the other defendant untouched but it amounted to a denial of its applicability to the personal or partnership liability of the appealing defendant.
It is argued that the denial of indebtedness is a mere denial of a legal conclusion and not an allegation of fact, and authorities to that effect are cited. But the petition set forth the facts as well as the conclusion of indebtedness. Besides conclusions are not in this state regarded as utter outlaws in pleadings. (Gano v. Cunningham, 88 Kan. 300,128 Pac. 372; Neosho County v. Spearman, 89 Kan. 106, 130 Pac. 677.) It was just as effective, sensible and proper to deny that she owed the plaintiff anything as to aver that it had not sold to her and she had not directly or indirectly bought of it the goods mentioned or any part thereof.
While the evidence is not brought up it is stated in the defendant’s brief that she successfully maintained that there was no partnership and that she did not order, receive or appropriate the goods or their proceeds. But at any rate the plaintiff did not avail itself of the opportunity to prove a liability; and we find no prejudicial error of which it can take advantage.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of assault with intent to maim, in violation of section 38 of the crimes act (Gen. Stat. 1909, § 2526), and appeals.
The court submitted to the jury four forms of verdict under the section referred to, which reads as follows :
“Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor for a term not exceeding ten years.”
The forms of verdict covered assault with intent to kill, assault with intent to maim, shooting with intent to kill, and shooting with intent to maim. The verdict returned reads as follows:
“We, the jury empaneled and sworn in the above entitled case, do upon our oath find the defendant, Joseph Johnson, guilty of assault with intent to maim W. A. Bettis, in violation of section 2526 of the General Statutes of Kansas, 1909, as charged and set forth in the information.”
The instructions were that section 38 requires the acts charged to be committed on purpose and of malice aforethought, and in all other respects the instructions were unimpeachable. The forms of verdict relating to shooting with intent to kill and shooting with intent to maim contained the words, “on purpose and of malice aforethought.” The forms relating to assault did not. It is said the court erred in submitting to the jury the forms of verdict relating to assault, and in rendering judgment on the verdict which was returned.
The evidence is not abstracted, and it is not claimed that section 38 does not, should the evidence warrant, authorize verdicts for assault with intent to kill and assault with intent to maim. The claim is that submission of the forms of verdict relating to assault with intent to kill and assault with intent to maim, created a misapprehension in the minds of the jury. The affidavits of some of the jurors were presented when the motion for a new trial was heard, to the effect that they intended to bring in a verdict finding the defendant guilty of an offense less serious than that specified in the verdict returned. The affidavits, which were couched in carefully used legal terms, were not receivable, because they flatly contradicted the verdict which was returned. Aside from the affidavits, no confusion or misapprehension on the part of the jury is discoverable, and under the very simple and clear but ample instructions of the court there was no cause for confusion or misapprehension. When the affidavits were offered, it was frankly stated that they were offered to show that the verdict returned was not the verdict of the jury. The contention now seems to be that, in the light of the affidavits, the court made some mistake in interpreting the verdict, or in entering judgment on the verdict. The affidavits add nothing to and take nothing from the verdict, and it is to be interpreted precisely as if the affidavits had not been filed.
It is said that the verdict is bad because it does not contain the words “on purpose and of malice aforethought,” and consequently does not show an offense under the statute. It is not necessary that a verdict of guilty under section 38 of the crimes act specify all the elements of the crime detailed in the information. The reference to that section (Gen. Stat. 1909, § 2526) and to the information, considered in connection with the remainder ' of the verdict, makes the -verdict perfectly definite and certain.
It is said the verdict is insufficient in that it does not specify the degree of the crime of which the defendant was found guilty. There are no degrees of the crime made punishable by section 38.
Complaint is made of an instruction, relating to evidence of the defendant’s previous good character. The court regards the instruction as sufficient.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment for damages caused by fire set out upon its right of way. The allegation was that the defendant’s servants and agents “while engaged in burning a fire guard along the line thereof, either upon or adjacent to said eighty acres of land, negligently allowed the fire so set out to escape and burn over the entire eighty acres of land and were negligent in setting out the fire at the time and that by reason of the negligence,” etc. In addition to the general verdict the jury answered special questions to the effect that the section men were negligent in setting out the fire on the right of way, such negligence consisting in “setting out more fire at one time than they were able to control.” It is contended that this is a departure from the negligence declared upon in the petition and that under the well-settled rule the former was in the minds of the jury left without evidential support, and that it was error to deny the defendant’s motion for judgment on the special findings. But we see no conflict between the charge that the section men neg ligently allowed the fire to escape and were negligent in setting it out and the finding that they set out more at one time than they were able to control. Fire is said to be a kind servant but a dangerous master, and anyone who attempts to handle an element so provocative of disaster should by the promptings of ordinary caution restrict his operations to such space as will not naturally involve its spread beyond his control.
Since the submission of the case it has been made to appear by stipulation that the motion for a new trial was withdrawn, and hence another alleged error complained of is eliminated.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter J.:
The action was to recover damages for injuries sustained in coming in contact with heavily charged and uninsulated wires which defendant maintained across a public liighway. Plaintiff recovered judgment and defendant appeals.
Upon the facts, the case is quite similar to the Wade case against the same defendant (Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28). Wade was killed by coming in contact with high voltage wires of the defendant, while he was engaged in attempting to lift them over the top of a derrick which he was assisting in moving along a public road. His widow recovered a judgment which was affirmed.
The plaintiff in the present case was assisting in moving a frame store building along a public road across which defendant maintained its line of. poles and wires. Two telephone wires and a ground wire which were nineteen feet above the road were suspended from one cross-arm; from another cross-arm were suspended two 33,000 volt wires which were twenty-three feet two inches above the roadway. The store building ■was moved on trucks which brought the highest part of the structure to a height of twenty-one feet three inches. Plaintiff was on the roof of the building attempting to raise, the telephone wires or the ground wire, and in some manner came too near one of the heavily charged wires just above the one lie was handling and received the .shock which caused his injuries. The wires carrying a voltage of 33,000 were uninsulated.
The principles of law, which for the most part control this case, were quité fully considered in the Wade case, supra, and it will be only necessary to review a number of alleged trial errors.
It is complained tffat the court erred in not sustaining a motion for judgment on the findings, because it is insisted the plaintiff recovered upon a theory that ordinary travel on the highway in question included the moving of houses which were higher than defendant’s wires. In this connection also it is insisted that much irrelevant testimony was admitted about moving houses and other structures, and particularly the moving of them along this highway previous to the time defendant erected its wires. In answer to special questions which defendant submitted the jury found that defendant’s wires were erected in 1909, that since that time three houses and one store building which were high enough for the wires to interfer with had been removed along there. The accident to plaintiff occurred in 1915.
Defendant places too narrow a construction upon plaintiff’s theory as to the use of the highway. The plaintiff’s evidence as to the use of the highway was not confined to houses, nor to store buildings; it embraced any and all kinds of structures customarily moved along public roads, such as buildings, derricks and other machinery high enough for these wires to interfere with them. The testimony in respect thereto was, of course, not confined to the time since defendant placed its wires across the road. It would hardly do to say that had the accident happened .only a month after defendant first placed its wires there no inquiry could be made as to the ordinary use of the road prior thereto for the purpose of charging defendant with notice of such use. The finding that only one store building had been moved is of no more importance than if the jury had found that only one store building painted the same color as the building in question had been moved. The finding that three houses and only one store building high enough to interfere with the wires had been moved along that road since 1909, when defendant’s wires were first placed there, covers but a part of the facts in evidence, and only a’ part of the circumstances relied upon by plaintiff, to show that defendant, should have anticipated the use of the highway for the purpose of moving such structures.
It is argued, however, that all the evidence shows conclusively that the moving of a building, such as the one in question, was not a common, ordinary use of the highway. “Common, ordinary use” is a relative expression the value of which can only be determined by comparisons. In a day’s travel along the country roads one may meet hundreds of vehicles drawn by horses, and see thousands of automobiles, without meeting or seeing a traction engine; but, if one meets a traction engine on a public road, it would be a mistake to assume that such engine was not making an ordinary use of the highway, or that it was not entitled to the same rights as other vehicles. A traction engine on the streets of Topeka is, comparatively speaking, an unusual sight, yet sometimes traction engines are seen on the streets, and however rarely this happens, their use of the public streets is a common and ordinary one. The court properly instructed the jury that “in determining the duty and ability of the defendant the term ‘travel’ is not to be given a narrow and restricted meaning, but should be held to embrace such a legitimate use of the road as may be made by persons having occasion to pass over them while engaged in any of the duties of life in that section or community.” There was evidence which justified a finding that before the wires were erected there had been, and there afterwards continued to be, such a common use of the highway in moving buildings, machinery and other structures, as would bring notice to the defendant that these high-voltage wires were a menace to human life, unless precautions were taken to insulate the wires or place them in such position that they would not interfere with the lawful use of the highway.
It may be conceded that there is a difference as regards houses. They are not constructed primarily for the purpose of being moved, while heavy machinery and traction engines are. The use of streets and highways for moving houses is so far extraordinary as to authorize municipalities having control of the highways to provide regulations for such use, prescribing, as ordinances in many cities do, the hours streets may be used for that purpose, and that owners of overhead wires shall first be notified and given an opportunity to raise their wires, and providing for payment of compensation to the owners for the injury or inconvenience suffered. These regulations are upheld, also, because of the inconvenience that might otherwise be suffered by the public through the interference with the business carried on by means of overhead wires. Where no public authority has undertaken to prescribe rules and regulations for the use of country roads in moving houses, we are aware of no reason why such use is not a lawful one.
A number of cases are cited by defendant which hold that the moving of houses on public streets is an extraordinary use of the highway, and that where such use will injure or destroy overhead wires which are lawfully maintained in the streets, injunction will lie at the suit of the owners of the wires to prevent interference therewith. Equity, in most cases, would find little difficulty in moulding its decree so as to permit the structure to be moved at a time and under such conditions as to safeguard the rights of the mover, the convenience of the public and the rights of the owners of the wires. Presumably the decisions are cited because the opinions contain declarations to the effect that the ipoving of a house on roads or streets is an extraordinary use, and the rights of the mover merely temporary and private as opposed to the rights of a public-utility company using the streets by virtue of a city franchise. (Frontier Telephone Co. v. Hepp, 121 N. Y. Supp. 460.) It is sufficient to say that this court in Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778 (approved in Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28) held it to be the duty of an electric-light company having its high-tension wires suspended across a street in a city to anticipate the moving of a building of greater height than the wires in that case were, and to take precautions to protect persons liable to be on such building and liable to be brought in contact with such wires.
There is a contention that it was error to exclude testimony offered to show a rule of defendant that upon notice to it the company would render assistance to persons desiring to move such structures under its wires. There would have been no error in admitting the testimony, but the defendant by the adoption of such a rule could not limit the right to use the highway for a lawful purpose.
One of plaintiff’s witnesses testified that it is impracticable to insulate wires which carry more than 6000 voltage, and we are asked, in view of the general knowledge of that fact, to take judicial notice thereof and to hold that the court should have sustained a demurrer to the evidence. But failure to insulate the wires was not the only negligence charged. It was charged that the wires were not placed high enough; and if it be true that it is wholly impracticable to insulate wires carrying more than 6000 volts, there was all the more reason why the defendant should have placed its wires higher or put them under-ground. The same witness, who qualified as ah expert with years of experience in the construction of high-tension, cross-country wires, testified as follows:
“We are never allowed to go below 25 feet and from that on up to 35 and 40 and up as high as -65 feet; we have never been allowed to go below 25 feet with any thing of high tension.”
He further testified that it was customary to construct high-tension wires with a raise where they crossed roads and after crossing to “drop down.”
There is a complaint of the refusal to allow defendant to introduce a model made to show the arrangement of defendant’s poles and wires. The accident, happened across the line in Missouri, beyond the jurisdiction of the court, and for this reason the court was not asked to send the jury to the place of the accident. In almost every one of a large- number of cases cited the court had admitted the model or photograph, and this was held not to be error. In one case cited (De Forge v. New York, &c., Railroad, 178 Mass. 59, which was an action to recover for personal injuries, it was held error to refuse to admit in evidence an X-ray picture showing plaintiff’s physical condition. The weight of authority holds that -the admission of models and photographs rests largely in the trial court’s discretion. A reproduction of the poles and wires in this case was constructed and set up in a room adjoining the courtroom. The judge of the court examined the model and came to the conclusion that it ought not to be admitted in evidence, and sustained plaintiff’s objection. The defendant contends that the model would have served to enable the jury to understand the testimony, and that its purpose was to show the relative position of the wires, the cross-arms, brackets, insulators and other parts of the construction of defendant’s lines where they crossed the highway. All these matters could be and were explained by the evidence of witnesses, and while the admission of the model would not háve been error, we think it can not be said that there was an abuse of discretion in refusing to admit it.
In stating the issues the court instructed that the petition charged the defendant with wanton negligence. The court refused to give an instruction requested by the defendant to the effect that there was no evidence of wanton negligence, and also refused a requested instruction that the word “wanton” means “reckless, wicked, willful.” It is insisted this was error. There is no question of punitive damages in the case; none was asked and none was allowed. If the plaintiff was not guilty of contributory negligence, then the question whether the negligence of the defendant should be characterized as gross and wanton or merely ordinary negligence, could not affect plaintiff’s right to recover. (See Jacobs v. Railway Co., 97 Kan. 247, 253, 154 Pac. 1023.) The court instructed that plaintiff could not recover at all if his own negligence contributed to his injuries; and the jury have absolved him from the charge of contributory negligence. For some purposes the court, in a number of cases, has recognized the degrees of negligence, slight, ordinary and gross or wanton; but in a case like the present one, where the only question is the measure of due care, the distinctions have been ignored. (Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346; Jones v. Railway Co., 98 Kan. 133, 135, 157 Pac. 399.) There was no error, therefore, in refusing to give the instructions requested.
The jury awarded plaintiff damages in the sum of $15,000. It is urged that the amount is excessive and shows prejudice and passion on the part of the jury. At the time of his injury plaintiff was twenty-two years of age, and his usual wages were from $2 to $2.50 a day. The argument is that after allowing $1000 for damages in addition to loss of earning power, the amount remaining, if invested at six per cent, would produce a sum far in excess of plaintiff’s probable earnings in the future. If this were the only consideration the amount would seem excessive; but the nature and the extent of plaintiff’s physical injuries as shown by the evidence must be taken into consideration. The effect of the electric current rendered him unconscious for ten days. A piece of his skull, which the testimony shows was four inches in length and nearly two inches wide, had to be chiseled out, which necessitated six operations, a silver plate being inserted in place of the portion removed. There were burns and scars on his body, and one hand was partially paralyzed; there was evidence that his injuries left him, to a large, extent, in a helpless condition physically. How much the. jury allowed for his pain and suffering does not appear, but it is clear that the evidence would sustain the allowance of a substantial sum for these alone. Under all the facts and circumstances, this court can not say thát the trial court should have granted a new trial on account of the amount of the verdict, or that it is excessive.
Other claims relate to the exclusion of testimony which was not produced at the hearing of the motion for a new trial under section 307 of the code. The nature of the testimony, so far as disclosed by the record, satisfies us that there was no error in excluding it.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the heirs of Albert M.' Houchin, deceased, against the grantees in a deed of real estate executed and delivered to them by Albert M. Houchin in his life time. The plaintiffs claimed the action was one to recover specific real estate, and demanded a jury trial. The defendants claimed the action was one to cancel the deed on the ground of undue influence. The district court took this view, but called a jury to determine the question of undue influence. Special findings were returned favorable to the defendants, which the court adopted, and judgment was entered accordingly. The plaintiffs appeal, and the principal error assigned is that the plaintiffs were denied a jury trial.
The petition covers more than eight pages of the abstract. It states that for many years before his death the defendants lived with Albert M. Houchin on the ranch conveyed by the deed, and in his home in the city of Medicine Lodge, as members of his household, and on terms of the closest and most confidential intimacy. Then follow allegations of undue domination by the defendants over the mind of Albert M. Houchin, and his susceptibility and subservience to such domination, resulting from causes stated in detail, and eventuating in the deed. The petition then contains the following allegations and prayer:
“Plaintiffs further state that upon the execution of the said deed in the manner aforesaid, the said defendants did gain complete control and possession of all of said real and personal property on said ranch-Plaintiffs state that said deed is not the deed of the said Albert M. Houchin as it purports to be and is utterly void and conveys no title to the defendants and is not the free and voluntary act .of the said Albert M. Houchin, but was made and delivéred by the said Albert M. Houchin in pursuance of and under the direction of the said defendants, for the sole and express purpose of fraudulently acquiring the title to said real estate by the means and in the manner above set forth; and that the defendants have no title whatever to the said real estate or any part thereof. . . . Plaintiffs further state that they are the sole and only heirs at law of the said Albert M. Houchin, and as such sole and only heirs at law are the owners of all the said real estate; that the said defendants have no right, title, estate or interest therein, and that the said purported deed of the said Albert M. Houchin should be cancelled, set aside and held for naught, and that these plaintiffs should be decreed to be the owners in fee simple of all of the said real estate.
“Wherefore, plaintiffs pray judgment against the said defendants, and each of them that said deed be set aside, annulled, concelled and held for-naught; that said defendants be declared to have no right, title or interest in or to said real estate or any part thereof; that the said plaintiffs be decreed to be the absolute owners in fee simple, of all of the said real estate, and that they have judgment against the defendants, and each of them, for the immediate possession of all of said real estate, for the costs of this action, and for all proper relief.”
While forms of action and the distinction between actions at law and suits in equity have been abolished, ahd a single remedy in the form of a civil action has been provided, by means of which any desired relief may be obtained, essential differences have not been obliterated and a jury is not demand-able as a matter of right in those civil actions which are grounded on equitable rights and in which equitable relief is sought.
The deed was made in February, 1914. Albert M. Houchin died in October, 1914. The petition was filed in January, 1915. Familiar characteristics of a petition in ejectment are wanting. While the petition stated that on execution of the deed the defendants gained complete control and possession of the ranch, it was not stated that the defendants were in possession, or that the plaintiffs were entitled to possession, or that the defendants unlawfully kept the plaintiffs out of possession. The first indication that the purpose was to recover specific real estate appeared in the prayer, and the prayer for immediate possession was inserted between the prayer for specific equitable relief and the prayer for general relief, as if the matter of awarding possession were an incident to a decree making a complete determination of the controversy.
Although the petition contained general allegations that the plaintiffs were owners of the land and that the defendants had no title to or estate or interest in the land, the specific allegations presented the facts on which the general assertions were based. The facts stated disclosed title in the defendants under a deed perfectly good unless and until set aside, and which could not be set aside unless under all the circumstances it were equitable to do so. Conceding the deed to be the product of undue influence, the court would not, under established principles, cancel it until an inquiry was instituted into the situation of the parties, the need, if any, to restore benefits received, and a variety of other matters upon which equitable relief by way of cancellation depends.
“Deeds or contracts procured by the exercise of undue influence are voidable only, and not void. They are capable of ratification, and are prima facie good and valid until successfully impeached. The party seeking to avoid an instrument so procured must seek his remedy in a court of equity, treating the influence to which he was subjected ás a species of constructive fraud. His remedy is not at law. But there is no doubt whatever that a court of equity has jurisdiction to annul, cancel, or set aside any deed or other grant obtained in this manner from a person who would not have executed it if left fre^ to make his own decision, provided a proper and timely application is made, and supported by due proofs, by the persons aggrieved. Thus, heirs or devisees may maintain a suit in equity to set aside a deed of land obtained from their ancestor by undue influénce practiced upon him.” (1 Black on Rescission and Cancellation, § 239.)
The plaintiffs’. right to possession and enj oyment of the land as owners depended on their right to have the deed canceled. What they desired was the verdict of a jury on their right to cancellation. That was a subject of equitable cognizance, and the request for a jury trial as in an action at law was properly denied. The principles involved are sufficiently illustrated in the following cases, several of them being cancellation cases: Maclellan v. Seim, 57 Kan. 471, 46 Pac. 959; Mills v. Hartz, 77 Kan. 218, 94 Pac. 142; Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530; Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147; Akins v. Holmes, 89 Kan. 812,133 Pac. 849; Kuhn v. Johnson, 91 Kan. 188, 137 Pac. 990; Appling v. Jacobs, 91 Kan. 793,139 Pac. 374.
The plaintiffs rely on the cases of Atkinson v. Crowe, 80 Kan. 161, 167, 102 Pac. 50, 106 Pac. 1052, and Gordon v. Munn, 83 Kan. 242, 111 Pac. 177. As the court said in the case of Akins v. Holmes, supra:
“In each of those cases the contest was between rival claimants to ownership, and the real issue was whether the title of the one party or the title of the other was such as to require an award of the property to its proponent. The court held'-that the form in which this issue was east should not control the method of trial, but that the essential nature of the controversy should determine whether or not a jury trial ought to be granted.” (p. 815.) 0
In this case the action was one by the heirs of a vendor, who stood in his shoes, to set aside his deed on the ground of undue influence practiced by the grantees. The right claimed by the plaintiffs and the wrong charged to the defendants characterize the action as one for cancellation. The essential nature, and indeed, as indicated above, the form of the action, a portion of the prayer of the petition being eliminated, are purely equitable.
It is said that the plaintiffs claimed under ah equitable title, that they were required by section 619 of the civil code to state the facts on which such title was based, and that if the short statutory form of petition‘in ejectment had been employed, no opposition to a jury trial would have been interposed. The facts stated in the petition did not disclose an equitable title. They disclosed a legal title, derived by operation of the statute of descents and distribution, enjoyment of which was frustrated by a deed procured by undue influence exercised over the mind of their ancestor. The purpose was not to settle disputed claims of heirship, but to remove an impediment to the enjoyment of inherited property. While the answer contained a general denial, and so as a matter of form put in issue the capacity of the plaintiffs to challenge the deed, the substantive issue was the voidable character of the deed, and the right to invoke the equitable remedy of cancellation. If the statutory form of petition in ejectment had been used, and a jury had been called on the theory the action was one at law, no doubt the court, when the statement of the case or the production of evidence disclosed the true equitable nature of the suit, would have exercised the power to determine the controversy for itself, as the court did in the replevin action under review in the case of Akins v. Holmes, 89 Kan. 812, 133 Pac. 849.
At the trial witnesses were permitted to testify to conversations with the deceased and conversations between the deceased and others, occurring both before and after execution of the deed, and relating to his business and personal affairs. In some of these conversations the deceased indicated his affection for the defendants and his feelings toward his relatives ; indicated his desire and his intention with respect to the ultimate disposition of this property; indicated the motives which had actuated him in making the deed; gave the details of the- transaction and the reasons for them, and otherwise revealed the operation of his mind with respect to the subject of the present litigation. In other conversations narrated by the witnesses, in which the defendant, Henry A. Goemann, participated, the deceased displayed unimpaired ability to exercise unrestrained control over his business and property. All this evidence furnished the basis for an inference respecting the mental subordination and constraint of the grantor at the time the deed was executed, and was rightfully received.
“The existence of undue influence or deception involves incidentally a consideration of the testator’s incapacity to resist pressure and his súsceptibility to deceit, whether in general or by a particular person. This requires a consideration of many circumstances, including his state of affections or dislike for particular persons, benefited or not benefited by the will; of his inclinations to obey or to resist these persons; and, in general, of his mental and emotional condition with reference to its being affected by any of the persons concerned. All utterances and conduct, therefore, affording any indication of this sort of mental condition, are admissible, in order that from these the condition at various times (not too remote) may be used as the basis for inferring his condition at the time in. issue. This use of such data is universally conceded to be proper. . . . Where the question is raised whether the testator signed the will under standingly .(usually in cases of alleged undue influence), the fact of a previous or subsequent understanding of its terms or of a satisfaction with them is relevant ... to show a comprehension of its terms at the time of execution; and subsequent ignorance or dissatisfaction could be used in the same way. The argument is equally applicable to the execution of deeds and other documents.” (3 Wigmore on Evidence, §§ 1738, 1739.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal, is brought to review the rulings in two cases that were consolidated and tried together. It appears that on July 5, 1910, W. A. Eppler sued Frank O’Neil before a justice of the peace in Ellis county and that a judgment was entered in Eppler’s favor. An action was brought by O’Neil in November, 1911, to enjoin the enforcement of the judgment obtained before the justice of the peace. On an appeal from the judgment denying the injunction it was determined by this court on July 5, 1913, that the Eppler judgment before the justice of the peace was absolutely void, there being no service and therefore no jurisdiction in the court that rendered the judgment. (O’Neil v. Eppler, 90 Kan. 314, 133 Pac. 705.) The mandate was entered in the district court on October 7, 1913. Thereafter on November 30, 1914, Eppler sued O’Neil in the district court of Trego county, setting up the account upon which he had sought judgment before the justice of the peace. The last item of the account was of the date July 4, 1909. On November 21, 1914, Edwin L. O’Neil, as the assignee of Frank O’Neil, brought an action against Eppler before a justice of the peace of Ellis county to recover for personal services rendered by Frank O’Neil for Eppler and certain expenses incurred during the performance of the services. It appears that these services were rendered and the expenses incurred from May, 1914, until July of that year. From a judgment rendered by the justice of the peace in that case an appeal was taken to the district court and by agreement of the parties this case and the one brought by Eppler on November 30, 1914, were consolidated and tried together in the district court of Trego county.
On that trial O’Neil contended that the account sued on by Eppler had been effectually barred by the statute of limitations before the action was begun. It appears that Eppler’s cause of action on the account accrued on July 5, 1909, and deducting the time O’Neil was absent from the state, about which there is no dispute, it appears that more than three years had elapsed when his suit on the account was instituted on November 30, 1914. His action is barred unless it is saved by the provisions of section 22 of the civil code, which provides:
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a pew action within one year after the reversal or failure.” (Civ. Code, § 22.)
That section has no application here because it appears that no action by Eppler was commenced until long after the limitation period was complete. It is true he filed a bill of particulars, but as no service was obtained no jurisdiction was acquired and, as the trial court held, the attempted action was a mere nullity which did not interrupt the running of the statute of limitations. The filing of a pleading and precipe is not the commencement of an action and it can not be regarded as commenced until valid service has been obtained upon the defendant. (Civ. Code, § 19; Insurance Co. v. Stoffels, 48 Kan. 205; 29 Pac. 479.) It is contended that the provision applies because the action brought by Eppler before the justice of the peace failed otherwise than on the merits, but the difficulty with the contention is that an action was never in fact commenced. As said in Denton v. Atchison, 76 Kan. 89, 90 Pac. 764:
“To get the benefit of this extension two things are essential: First, the action must have been commenced within due time; and, second, there must have been a failure otherwise than upon the merits after the general limitation of time had expired.” (p. 92.)
Other cases bearing upon the application' of this provision of the code are Smith v. Comm’rs of Bourbon Co., 43 Kari. 619, 23 Pac. 642; Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; McGlinchy v. Bowles, 68 Kan. 190, 75 Pac. 123; Parker v. Dobson, 78 Kan. 62, 96 Pac. 472.
It is insisted, however, that the barred account of 1909 can at least be set up against the claim or demand of O’Neil for services rendered and expenses incurred in 1914. Upon this claim the jury found that Eppler was indebted to O’Neil for a balance of $62.74 and it is insisted that under the provisions of section 102 of the civil code the demands should be deemed compensated so far as they equal each other. That section provides:
“When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set. up, neither can be deprived of the benefit thereof by the assignment or death of the. other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.”
The section has been considered in Bank v. Elliott, 97 Kan. 64, 154 Pac. 255, and Cooper v, Seaverné, 97 Kan. 159, 155 Pac. 11. Under the provision the cross-demands must coexist; that is, they must subsist in such a way that if one party had brought suit on his demand the other could have set up the demand he held against that of the plaintiff. There must be an overlapping of live demands in point of time. If the demand of one party becomes barred and is not subsisting as a cause of action when the demand of the other party comes into existence, the former demand is not available. On • the other hand if the demand of a party is a subsisting claim upon which he could maintain an action when and after the demand or cause of action arises in favor of the other party, the demand of either is available in an action brought against the other and the two demands must be deemed compensated so far as they equal each other. It appears that the three-year period of limitation applicable upon claims like those involved here had elapsed and the Eppler claim had become barred prior to May 25, 1914, when the first item in the O’Neil account was entered and before a right of action on any part of it had accrued. The district court correctly held that Eppler’s account was completely barred before O’Neil's account began to run and that, therefore, no part of the Eppler account could be set off against the demand of O’Neil upon which a recovery was had herein.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment overruling his demurrer to the defendant’s answer. The petition discloses that in January, 1904, the defendant subscribed for twenty shares, of one hundred dollars each, of the capital stock of the J. Dixon Avery Company, an Illinois corporation, for which stock the defendant agreed to pay the sum of two thousand dollars; that five hundred dollars was paid on this subscription; that the capital stock of the corporation was fifty thousand dollars, which was fully subscribed but not fully paid; that the corporation afterward became insolvent and was, on the 18th day of November, 1908, adjudged a bankrupt cy the United States district court for the northern district of Illinois; that on January 31,1911, an order was made in the bankruptcy proceeding, directing the stockholders to pay to the trustee in bankruptcy, on or before April 1, 1911, fifty per cent of the amount unpaid on their subscriptions, and authorizing and directing the trustee in bankruptcy, in default of such payment, to cause suit to be brought in any court of competent jurisdiction to recover one-half of the unpaid subscriptions ; that this order directed the defendant to pay to the trustee seven hundred fifty dollars; that no suit was commenced by the trustee against the defendant to recover this amount; and that on February 24, 1913, under an order of the court in which the bankruptcy proceeding was pending the claim against the defendant for the seven hundred fifty dollars was sold and assigned to the plaintiff in.this action.
The petition in the present action was filed January 27, 1915. The defendant’s answer pleaded both the three-year and the five-year statute of limitations. The demurrer to the answer presented this question: Was this action barred by the statute of limitations at the time it was commenced?
The plaintiff contends that his cause of action did not accrue until April 1, 1911, and that his action is founded on a contract in writing — the subscription for the stock. The defendant contends that the action is founded on an obligation created by statute.
When the J. Dixon Avery Company was declared a bankrupt it was the duty of the trustee in bankruptcy to collect the assets of the bankrupt’s estate and apply them in discharge of its debts. The defendant’s unpaid subscription to the capital stock of the bankrupt corporation was a part of the assets of that corporation. The order of the United States district court directing the trustee to commence an action against the defendant to recover the unpaid subscription could have been made at any time after the corporation was declared a bankrupt. An action could then have been maintained against the defendant to recover the amount of the unpaid subscription. Everything in this case is effectively disposed of by West v. Bank, 66 Kan. 524, 72 Pac. 252. There this court said:
“So long as a private corporation is a-solvent and going concern the statute of limitations does not begin to run on a stockholder’s subscription to its capital stock, to be paid at intervals upon the call of the hoard of directors, until a call has been made.
“When a private corporation becomes. insolvent and suspends active business, or when it closes its doors and ceases all its usual and ordi nary business, leaving debts unpaid, the statute of lirnitations begins to run at once on a stockholder’s subscription to its capital stock, to be paid at intervals upon the call of the board of directors, and then subject to call, even though no call be made. (Syl. ¶¶ 1, 2.)
“It' is established law in this state that when some preliminary action is an essential prerequisite to the bringing of a suit, and such action rests with the 'claimant, he can not defeat the operation of the statute of limitations by long and unnecessary delay in taking the antecedent step; and the statute will begin to run within a reasonable time after the party could, by his own act, perfect his right, which reasonable time will not, in any event, extend beyond the statutory time fixed for bringing the suit. This doctrine has been stated and restated, illustrated and illuminated, applied and reapplied, until it has become a truism.” (p. 527.)
Since West v. Bank, supra, was decided, the same principles have been declared in numerous cases decided by this court. More than six years elapsed between the day when the J. Dixon Avery Company was declared a bankrupt and the day when this action was commenced. Whether based on a contract in writing or on a liability created by statute, the action was barred by the statute of limitations.
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The opinion of the court was delivered by
DAWSON, J.:
This is one of a long series of lawsuits which has reached this court arising out of the financial troubles of Albert Sarbach, of Holton, deceased, and also of the partnership, L. Sarbach’s Sons, of which he was a member. On his death, in 1909, Carrie Sarbach was appointed administra trix of Albert’s personal estate, and also of his partnership estate. Some time later an action was commenced by the Linscott State Bank against the surviving partner of L. Sarbach’s Sons, and against Carrie, both as administratrix of Albert’s estate and of the partnership estate, founded on certain more or less meritorious claims amounting to $7596.75, for which the bank prayed judgment. A separate answer was filed by Carrie as administratrix of both estates. Judgment by compromise was rendered for $5000 against her as administratrix of the partnership estate. She paid this judgment, and over the objection of the Fidelity & Deposit Company, a creditor of Albert’s personal estate, the probate court allowed this item. This objecting creditor appealed to the district court, and the controversy there ranged about two main propositions — the right of this creditor of the personal estate to appeal from an allowance of the $5000 item against the partnership estate, and whether the original judgment for $5000 was rendered in good faith or through collusion between the Linscott State Bank and certain attorneys for the administratrix.
The trial court made certain findings of fact and conclusions of law:
“VIII. . . . Under the circumstances of the case, and with the knowledge which could be produced by said bank proving liability of L. Sarbach’s Sons for the payment of each of said two notes for $3000 and the fact that the trial court, in overruling defendant’s motion to exclude evidence had, after full argument of the question, decided that the amended petition in the case stated a cause of action against the defendants the said attorneys acted for what they believed to be for the best interests of the estate of L. Sarbach’s Sons in advising the compromise that was then made. They were not attorneys for said bank and did not act for or in the interest of said bank in advising said compromise, nor were they or either of them guilty of any fraud, collusion, negligence or other misconduct whatsoever.
“XII. The estate of Albert Sarbach is insolvent, and probably little, more will be paid creditors of the fifth class. There is a small balance in the partnership estate, after paying all partnership liabilities.
“XIII. The appellant, the Fidelity & Deposit Company of Maryland, is not a creditor of the estate of L. Sarbach’s Sons, but is a creditor of the estate of Albert Sarbach, deceased. . . . Second. Each and all of the payments made by said Carrie Sarbach, as administratrix and trustee of the estate of L. Sarbach’s Sons, pursuant to the said compromises mentioned in the foregoing findings of fact, and including the payment of five thousand dollars ($5000), made by her in satisfaction of the judgment recovered by the Linscott State Bank, were lawfully made by her, and she should be allowed credit therefor.
“Third. The Fidelity and Deposit Company of Maryland, not being a creditor of L. Sarbach’s Sons, had no appealable interest or right to appeal from the order and judgment of the probate court made upon the accounting of said Carrie Sarbach, as administratrix and trustee of the estate of L. Sarbach’s sons.”
Error is assigned (a) on the decision that the $5000 paid to the bank in accordance with the judgment was a legal claim against the partnership estate, and (b) on the ruling that the appellant, not being a creditor of the partnership estate, had no appealable interest in the probate court’s allowance of this judgment item.
Considering the latter question first, we have no doubt that the appellant had an interest in the proceedings in the probate court and an appealable interest from an adverse decision. Its interest in the probate court’s action was simple and easily understood. It was a creditor of Albert’s personal estate. That estate was insolvent. Whatever was left of the partnership estate after its lawful debts were paid would inure to the partners individually, and Albert’s estate would get his proper share as partner. When that share was distributed, the personal creditors could reach it. If personal creditors are compelled to stand aside without right to be heard while partnership assets are frittered away bn trumped-up claims, there is a discrepancy in the law which is highly discreditable to the administration of justice and one which we would be reluctant to admit.
Authorities on this subject are not numerous, but the statute is plain. Section 3522 of the General Statutes of 1909 provides :
“The probate court shall have jurisdiction to hear and determine all demands against any estate; and a concise entry of the order of allowance shall be made on the record of the court, which shall have the force and effect of a judgment.”
How is the court to hear and determine such demands ? By hearing only those who advocate the demands ? Shall the court limit the hearing of objections to those who have direct claims against the estate? Or in fairness and justice should not the court hear also the protest of those who are vitally interested, although indirectly, in the disposition of the assets? More broadly expressed, should not the court make the sifting of the truth — the merit of the claim — its principal concern and hear all who may be able to throw light on the subject regardless of their interest ?
Section 3587 of the General Statutes of 1909 provides that when an administrator desires to make final settlement of an estate he shall give four weeks’ notice, “to all creditors and all others interested in the estate.” (See, also, Gen. Stat. 1909, § 3490.) Who can possibly be meant by the words “all others interested in the estate” if not those having claims on the residue after direct creditors are satisfied? (11 R. C. L. 185.) Such claimants may not inaptly be designated and considered as intervenors by an analogy to the practice in equity. Certainly the statute is not using empty and futile words when it speaks of “all others interested in the estate.” One highly pertinent reason why creditors of the personal estate should be heard in the determination of claims against the partnership estate rests on the proposition that the probate court’s decision thereon will go for review to the district court charged with a presumption in favor of its regularity. (18 Cyc. 1213.) It will be noted, also, that the statute relating to appeals from the probate court (Gen. Stat. 1909, § 3624 et seq.) is very liberal, and it does not define who may be appellants. The same liberality as to appellants should be inferred as on the subject matter of such appeals. In 18 Cyc. 1209, it is said:
“The general rule that any party aggrieved by a judgment or decree may appeal therefrom and that in a legal sense a party is aggrieved by a judgment or decree whenever it operates on his rights of property, or bears directly upon his interests is applicable in proceedings for the settlements of administration accounts, and it follows as the converse of this general rule, that it is not the privilege of a party to appeal from a judgment or order rendered in such a proceeding, unless he is, either as ah individual, or in a representative capacity, aggrieved thereby, and that no one is in a legal sense aggrieved by such a judgment or order, unless it prejudicially affects his rights of property, or pecuniary interests, or those of others for whom he is, with relation to such proceeding, the duly constituted, representative.
“Legatees, distributees, or creditors of the decedent, when aggrieved by such a judgment or decree, may appeal therefrom.”
It seems clear, therefore, that a creditor of the personal estate who is dependent upon the personal estate’s share of the residue of a partnership estate for the satisfaction of his claim, has such interest in the partnership estate as will entitle him to resist the allowance of a questionable claim in the settlement of the partnership estate in the probate court, and to appeal from the decision of that court. (Davenport v. Hervey, 30 Tex. 308, 309.)
Turning next to what appears to be ,the controlling feature o'f this lawsuit, the appellant’s objections to the item in controversy and many others were heard by the probate court. That court rendered its judgment. Appeal was taken, and while the district court erroneously held that the appellant creditor had no appealable interest from the allowance of claims against the partnership estate, yet appellant’s grievance at its allowance was heard and determined. The district court heard the evidence touching the compromise judgment entered in the bank’s case against the partnership estate, heard the evidence as to the alleged collusion between the bank and certain of the attorneys for the administratrix, and made findings of fact— quoted in part above — fully exonerating counsel from any unprofessional or collusive conduct. These findings, based on sufficient oral testimony, conclude that , phase of the case on appeal. We would not say that the judgment in the bank case was conclusive before the probate court nor in the district court on appeal from the decision of the probate court. (Pearson and Wife v. Darrington, 32 Ala. 227, syl. ¶ 14; In re Yetter, 61 N. Y. Supp. 175.) Doubtless this judgment was not subject to collateral attack by the parties to that judgment. But the probate court might have disallowed the item therefor in the account of the administratrix if it considered that .the judgment was brought about by the fraud, collusion or negligence of the administratrix and her attorneys. A prudent course would have prompted the administratrix to have secured the approval of the probate court before consenting to a compromise judgment. We realize, however, that situations sometimes develop rapidly in a lawsuit and it is- necessary for litigants and their counsel to act quickly, and to trust that their course will later meet the approval of those entitled to review their conduct. We are constrained to hold, however, that the judgment made a prima facie claim for allowance in the pro bate court. (Gen. Stat. 1909, §§ 3518, 3519.) Here then was an item founded on a judgment presented to the probate court freighted with the presumption of its regularity and validity, further strenghtened by its approval and allowance by the probate court, and still later its merits investigated and approved by the district court. In such a situation the judgment.must be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
F. A. Andrews brought this action against the Union Pacific Railroad Company to recover for the loss of a portion of a shipment of corn and for an attorney’s fee.
On September 1, 1914, the plaintiff shipped from Rossville, Kan., 66,000 pounds of corn to a commission firm in Kansas City, Mo., the bill of - lading reading in part as follows:
“Consigned' to order of F. A. Andrews, destination Kansas City, Mo., county of -, notify Watkins Grain Company at Kansas City, Mo.,” etc. ’
The car arrived at the Union Pacific yards in Kansas City, Kan., on September 3, and the grain company sold the corn to another firm to be delivered at an elevator in Rosedale, Kan., and ordered the' defendant to transfer the car to that point. The defendant’s record of this order is as follows:
“Kansas City, Mo., 9-3-1914. .
“Received of Watkins Grain Company bill of lading and order for car 121,186. Ordered to Frisco. For Rosedale Elv. This order will be duly executed.
“(Stamp.) ; Union Pacific Railroad:
“Received Sept. 3, 1914, Kansas City, Mo.,
“F. D. Fox, Agent.”
The car was thereupon hauled across the state line into Missouri and transferred to the Frisco lines, over whose tracks it was hauled back again into Kansas to the elevator at Rosedale. The grain was there weighed and the car was found to contain but 61,220 pounds, making a shortage of 4780 pounds. On September 16, 1914, plaintiff’s agent mailed to the defendant’s agent -at Kansas City, Mo., a claim for this loss, giving the value as $66, and again on March 8, 1915, he delivered to the agent at Rossville, Kan., a written notice that he had suffered a loss of $64.95, in which he made a demand for damages in the sum of $60 only, and stated that if the same was not paid within thirty days suit would be brought for its recovery with a reasonable attorney’s fee. This action was commenced on April 17, 1915. At the trial the court instructed the jury upon the theory that chapter 240 of the Laws of 1911 was the governing statute, and that before the plaintiff could recover for his loss he must prove that he had made a demand upon the defendant for payment of the amount claimed, sixty days prior to the commencement of the action. The verdict was in favor of the plaintiff, awarding him damages in the sum of $60, with an attorney’s fee of $50, and in answer to special questions the jury stated that the demand for payment of the amount claimed was made upon defendant on or about September 16, 1914. The defendant appeals.
The statute which controls the disposition of the case depends upon the character of the shipment. If it is intrastate the Kansas statute governs, but if interstate it is controlled by the congressional act commonly designated as the Carmack amendment. That the shipment in question was interstate there can be no doubt. The consignment was from a point in Kansas to a point in Missouri. The shipment was taken across the state line to the place of consignment in another state, but the car was subsequently returned to an elevator in Kansas and there unloaded. The fact that the car was brought back into Kansas and unloaded there did not take away the interstate character of the shipment, nor would the character of the shipment have been changed even if a delivery liad been made before the car crossed the state line into Missouri. In Shipping Association v. Railway Co., 97 Kan. 235, 154 Pac. 1126, it was said:
“A shipment of goods consigned tea point in another state constitutes interstate commerce,. notwithstanding an actual delivery is made before a state line is crossed.” (Syl. ¶ 2.)
Other cases to the same effect are Leibengood v. Railway Co., 83 Kan. 25, 109 Pac. 988; Horse & Mule Co. v. Railway Co., 95 Kan. 681, 149 Pac. 436; and Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629.
Congress having legislated upon the subject of interstate shipments of this character, neither of the state statutes relied upon by the plaintiff is available. (Part 1, 34 U. S. Stat. at Large, ch. 3591, p. 595; Adams Express Co. v. Croninger, 226 U. S. 491.) The legislature of Kansas, however, did not intend that chapter 240 of the Laws of 1911 should be applied to interstate shipments as its application, was expressly limited to “transportation from one point in this state to another point in this state.” (§ 1.) Neither can the action be based on section 7107 of the General Statutes of 1909, which pro vides for the recovery of án attorney’s fee since the subject is covered by the Carmack amendment. The fact that the court submitted the case upon a statute not applicable and which required that a notice of the loss and a demand for payment should have been made sixty days prior to the beginning of the action, will not preclude a recovery for the loss actually sustained. Under the federal law the defendant is liable for any loss, damage or injury to property received by it for transportation. There was a loss of plaintiff’s corn shipped over defendant’s line, and the latter was given notice of the loss and a reasonable opportunity to pay it before the action was brought. It is true there was some confusion in the demands made by plaintiff upon the defendant. One was made on -September 16, 1914, and in that the loss was fixed at 4780 pounds for which $66 was asked. Another was made on March 8, 1915, claiming a loss of 4780 pounds of corn and the amount claimed for it was $64.95, but the amount demanded was only $60 and this was the amount awarded by the jury. The quantity of corn for which claim was made was the same in each demand, but there appears to have been doubt as to the value of the corn. In their special findings the jury stated that the demand was made on September 16, 1914, but this finding probably resulted from the instruction of the court which submitted the case under the act of 1911. It is manifest that this error did not operate to the prejudice of the defendant. There could have been no doubt as to the quantity of corn that was lost and very little as to its market price. The final demand was for $60 and ample time was given the defendant to pay the loss before the action was brought. Although the case was erroneously submitted under an inapplicable statute, we are satisfied that the error did not affect the substantial rights of the defendant, and the court is not warranted in reversing a judgment unless it affirmatively appears to have prejudiced the substantial rights of the complaining party. (Civ. Code, § 581; Akin v. Davis, 11 Kan. 580; Woodman v. Davis, 32 Kan. 344, 4 Pac. 262; Ft. S. W. & W. Rid. Co. v. Karracker, 46 Kan. 511, 26 Pac. 1027; Sutter v. Harvester Co., 81 Kan. 452, 106 Pac. 29.)
As the federal law supersedes state statutes on the subject, and the recovery is based on that law instead of section 7107 of the General Statutes of 1909 which provides that an attor ney’s fee may be allowed in certain cases, the court was not warranted in awarding an attorney’s fee. Even if the statute authorizing the allowance of an attorney’s fee should be treated as general in its application it could not be applied to recoveries under the federal statute. In recent decisions of the federal supreme court state regulations of this kind are held to be discriminatory and in conflict with the act of congress regulating interstate commerce. (Charleston & Car. R. R. v. Varnville Co., 237 U. S. 597; Atchison & Santa Fe Ry. v. Vosburg, 238 U. S. 56.)
The judgment of the district court awarding the plaintiff damages in the sum of $60 will be affirmed, but it will'be re-. versed as to the awarding of an attorney’s fee. | [
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The opinion of the court was delivered by
Dawson, J.:
The State Bank of Allen appeals from a judgment in which it was held liable for the face'value of a check drawn by a customer of the bank in favor of the plaintiff and which the bank declined to pay. The circumstances which were held to subject the bank to liability on the check may be briefly stated: The village of Allen is situated in a stock-raising district in the northern part,of Lyon county. A man by the name of Kelly was one of the local stock buyers. He needed funds with which to do business, and some years ago Kelly and William Hood, president of the bank of Allen, made an oral agreement by which Kelly was to go about the community purchasing live stock, and that he should issue checks on the bank of Allen in payment therefor, and the bank agreed to honor Kelly’s checks thus drawn. The cattle were to be shipped to the Kansas City live-stock market and the net proceeds to be credited to Kelly’s account, less interest at eight per cent on the sums of money thus used by Kelly, and less also the sum of three dollars per car of live stock, which the bank should receive for financing Kelly’s transactions. Pursuant to this arrangement Kelly prosecuted the business of stock buying throughout that community for several years. The bank honored his checks, and usually, but not invariably, exacted its toll of three dollars per car. It does not appear that it regularly or rigidly exacted interest on Kelly’s overdrafts, but it always paid his checks according to their mutual understanding except the check which is the subject of this lawsuit.
It appears that in 1915 the bank commissioner began to object to the bank’s method of transacting business with Kelly, and some slight changes were made in their mode of doing business. Thereafter the cattle were shipped to Kansas City in the name of- William Hood, president of the bank; and at one time Hood personally loaned Kelly $1000 ‡0 extinguish his overdraft and to give him some working capital. In a further effort to satisfy the bank commissioner, the bills of lading for the cattle shipped to Kansas City were attached to sight drafts drawn on the Kansas City consignee for the approximate value of the live-stock shipments, and Kelly was immediately credited by the bank with the sum of each sight draft thus drawn, so that under the new mode of bookkeeping between Kelly and the bank, his overdrafts would not be so large, nor so common, nor continue for several days at a time as was the case when the bank merely carried Kelly’s overdrafts until the returns on the shipments arrived from Kansas City. Kelly did not prosper in his stock-buying business, although it aggregated over $400,000 in volume during the years when the bank thus financed his transactions. When his cattle sales in Kansas City did not show a profit the bank did not exact its share of three dollars per car. One time the president of the bank told Kelly that he was paying too much for cattle, and Kelly asked him: “Are you going to quit me?” Hood replied: “No, ... I will not quit you.” Kelly said: “Whenever you get ready to quit, let me know in time'so that I can quit clear with the people.” Hood said: “I will give you plenty of time, we ain’t going to quit you.”
Thus the relations of Kelly and the bank continued until August, 1915, when Kelly bought twenty-seven cattle from the plaintiff and gave his check for $1880 on the bank of Allen in payment therefor in the usual manner. The cattle, or most of them, were shipped to, Kansas City in the name of William Hood, president of the bank, in the usual manner. Some of plaintiff’s cattle were traded for others which were shipped in their stead. The plaintiff deposited the check in an Emporia bank and in due course it was presented to the defendant bank where it was dishonored and protested. The bank informed the plaintiff that Kelly’s balance in the bank at that time was $905.70 and that if plaintiff would procure a check from Kelly for that sum it would pay it. The plaintiff declined and, having learned later of the arrangement outlined above, brought this action against Kelly and the bank and recovered judgment for the full amount and interest.
The bank appeals, and assigns error: (1) the bank’s ar rangement to pay Kelly’s checks was ultra vires and void; (2) no consideration; (8) incompetent evidence; (4) instructions given and refused; (5) that the special findings entitled defendant to judgment.
There is not much merit to the contention that the bank’s arrangement to pay Kelly’s checks was 'Ultra vires and void. Certainly the statute (Gen. Stat. 1909, § 498) which provides that the officer of a bank who pays out the bank’s funds on an overdraft is himself personally liable to the bank for such payment does not so declare. That statute simply adds an additional security to the bank for such payments. Chapter 88 of the Laws ,of 1915, which forbids banks to engage in trade or commerce, does not cover such transactions as those of Kelly and the bank. The bank was not buying and selling live stock. It was furnishing funds — loaning money — to Kelly to engage in this business, and this is one of the principal legitimate functions of banking. We do not understand that even the federal law or its administration puts an absolute ban on overdrafts. And the state bank commissioner’s circular letter an-' nouncing his intention to cooperate with the comptroller of the currency to restrict the allowance of overdrafts says:
“In future, no overdraft will be allowed with the consent of this department, and if upon any report or examination of any state bank operating under the laws of this state, it is disclosed that any overdraft or cash item has been allowed to continue for a period of ten days, such fact shall be considered evidence of unwise management and shall necessitate more frequent examinations.
“After March 1, 1915, any overdrafts or cash item that has been carried for ten days must be immediately charged from the bank’s assets.” ’ ,
It is obvious from the paragraphs just quoted that by the operative interpretation of the chief officer administering our state banking law overdrafts are not illegal, for certainly the bank commissioner did not thus intend to countenance infractions of a positive statute for intervals of less than ten days. The restriction and discouragement of overdrafts is wise supervision of banking and wise bank management, and ordinarily they are only to be tolerated when practiced with great prudence and within narrow limits (Laws 1915, ch. 92), but their absolute prohibition must await further action by the legislature; and an.undertaking by a bank to honor an over draft by paying the- check of a' regular customer of the bank for a purchase of cattle which are- assigned to the president of the bank and the proceeds of the sale of which are handled by the bank for its protection,- can hot be avoided on a specious plea of ultra vires nor by the fact that the bank commissioner disapproves the practice of allowing overdrafts. The prudence or lack of, prudence in the conduct of the bank concerns the bank commissioner, and the officers, stockholders and depositors of the bank. But the bank’s agreement to furnish funds to .its customer, Kelly, for legitimate business, concerns those for whose benefit the agreement was made, and the plaintiff was one-of the latter.. (Anthony v. Herman, 14 Kan. 494; Ballard v. Bank, 91 Kan. 91, 136 Pac. 935; Norman v. Rullman, 93 Kan. 791, 794, 145 Pac. 818; Bank of Garnett v. Cramer, 7 Kan. App. 461, 53 Pac. 534; German Nat. Bank v. Grinstead, 21 Ky. L. Rep. 674, 52 S. W. 951.)
Viewing this question from another angle, it should be noted that, pursuant to the arrangement between Kelly and the bank by which Kelly’s checks were to be honored, the title to plaintiff’s cattle passed to the president of the bank, and they were shipped in the latter’s name to Kansas City and the proceeds thereof went to swell the bank’s assets — to meet Kelly’s checks, of course — but nevertheless they became assets of the bank. In such a situation the bank could not escape its obligation to pay Kelly’s check for plaintiff’s cattle, even if its agreement with Kelly was ultra vires. In Cooper v. National Bank, 40 Kan. 5, 18 Pac. 937, it was said:
“It is claimed that because the defendant is a national bank it had no right to take this property and agree to turn back the proceeds to plaintiff, and that the cashier, in making this agreement, exceeded his authority. The bank took the property to secure its own claim; it was all personal property, and was not of more than twice the value of the claim to be secured; it received the property, secured its own claim, and then refused to account for the balance. We think if it had the power to take the property and secure its own claim, it ought to have power to pay back the balance to plaintiff. It would be a very strange proposition of law for the bank to receive property upon a chattel mortgage or an agreement to secure its own claim, and not be compelled to account for any balance remaining after its own claim was satisfied.” (p. 8.)
The case of Ballard v. Bank, supra, is not altogether like the present case, but is pertinent on the question of ultra vires, where it is said:
“It is suggested that the making of such an agreement was beyond the power of the president of a national bank, or of the bank itself. The contract was not immoral or forbidden, and even if when made it was invalid for want of capacity on the part of the officer or of the bank, it was so far carried out that a defense on that ground can not successfully be interposed. (See cases cited in Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123.) ” (p. 97. Plaster Co. v. Blue Rapids Township, 77 Kan. 580, syl. ¶ 2, 96 Pac. 68; City of Emporia v. Telephone Co., 88 Kan. 443, 452, 129 Pac. 187; Hanna v. Railway Co., 89 Kan. 503, 508, 132 Pac. 154.)
To summarize this phase of the case, the arrangement between Kelly and the bank was not illegal, though the statute fixes a personal liability on bank officers who pay overdrafts, nor although the bank commissioner requires overdrafts of more than ten days’ duration to be charged off. And if an agreement to pay overdrafts was ultra vires, the bank could not avoid its agreement to pay them when it had appropriated the consideration for the overdraft checks issued pursuant to such agreement.
The contention that there was no consideration for the bank’s agreement to pay Kelly’s checks needs little discussion. It was to receive three dollars per car for all live stock purchased and shipped by Kelly pursuant to the understanding between Kelly and the bank. That it did not always exact that sum is immaterial. It exacted that sum on about three hundred and fifty carloads. Kelly transacted about four hundred thousand dollars’ worth of business through the bank as a result of this arrangement. Such extensive dealings might well tend to stimulate and develop the bank’s general business. These considerations were sufficient. Moreover, the president of the bank took title to the cattle acquired from plaintiff and the bank kept control of the proceeds of the cattle within its own hands. This was another sufficient consideration.
The evidence to which defendant objects reads:
“Q. Mr. Kelly, I wish you would state to the jury whether the agreement that you testified to yesterday, as having been made with the Bank, in January, 1909, was ever changed or modified in substance?
“The defendant objected to the question for the reason that it called for -a conclusion of the witness and not a statement of a fact and is incompetent, irrelevant and immaterial, and is not proper rebuttal because fully covered in direct examination.
“Ans. It never was changed.”
Having proved the original contract and the conduct of the parties pursuant to it affirmative testimony that it was never changed was unnecessary; but one feature of the defense was that to comply with the requirements of the bank commissioner a change in the mode of business between Kelly and the bank was instituted. On that point the evidence of Kelly was competent as rebuttal, and it was introduced as such. Were it otherwise its introduction would not be fatal. (Civ. Code, §§ 141, 581.)
There was no error in the court’s refusal to instruct the jury to return a verdict for the defendant. We have examined the instructions given and refused, and we think those given fairly covered all phases of the controversy, but we discover nothing therein which needs discussion.
A scrutiny of the special findings does not show them to be inconsistent with the general verdict, and the first and most important of these rendered a judgment for the defendant impossible. It reads:
“Q. 1. At the time of the purchase of the Saylors cattle by Kelly and the issuance of the check in controversy, was there a contract between defendant Kelly and defendant The State Bank of Allen to the general effect that defendant Kelly should buy live-stock and draw checks upon the defendant Bank in payment therefor, and that the defendant ■Bank should pay said checks regardless of the state of the defendant Kelly’s account with said defendant Bank? A. Yes.”
Whether the bank was to pay all Kelly’s checks or only to pay so far as the return drafts for stock shipments would meet was a fair question for the jury and the general verdict has resolved it against the defendant. Nowhere do we find anything substantial or prejudicial on which to disturb this judgment, and consequently it is affirmed. | [
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The opinion of the court was delivered by
Porter, J. :
This action was brought under the workmen’s compensation law to recover for the benefit of the family of a policeman, who was killed while in the discharge of his duty. The court sustained a demurrer to the petition and the plaintiffs appeal.
Frank Griswold, the deceased, was a captain of the police force of the city of Wichita; he was killed by a pistol shot fired by some person who had broken into a store building in the nighttime, and whom he was attempting to arrest. The amount sued for is $3600, the maximum amount of recovery under the workmen’s compensation act, in view of the salary or earnings of the deceased during the year preceding his death.
The sole question to be determined is whether this action can be maintained under the compensation act. The exact question has never been decided by this court. In Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43, the action was by the widow for the benefit of herself and children to recover damages for the death of her husband, who was killed while working in an electric light and water plant controlled and operated by the city for profit. The city had not elected to come within the provisions of the compensation act, but it was contended that it was within the terms of the act by reason of having fifteen persons in the employ of its light and waterworks department. In order to show that fifteen persons were thus employed, it was necessary to include mere clerical employees in the office of the city clerk. It was held that to include such employees was not within the letter or spirit of the statute, because they were not engaged in the hazardous enterprise of operating the light and waterworks system. In the opinion it was said:
“Assuming, without deciding, that a municipal corporation like the defendant, if employing the requisite number of persons in such plant, should be deemed to he an employer within the meaning of the act in question, it must be held that the testimony failed to show that fifteen persons were thus employed.” (p. 281.)
The city in that case made no claim of exemption on the ground that in operating its electric light and water system it was exercising governmental instead of proprietary functions, and so the court found it unnecessary to determine that question.
The plaintiffs’ contention is that the compensation law, as originally adopted (Laws 1911, ch. 218) has been broadened in its scope by the amendment of 1913, in which the legislature extended its application to “county and municipal work.”Section 2 of chapter 216 of the Laws of 1913, so far as it applis to the question, reads:
“Application op 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 ex plosive 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 section amended section 6 of the original act by the addition of the words “county and municipal work.” Counsel for plaintiffs insist that the decision in the present case depends on whether the amendment is to be given a narrow or a broad construction by the courts. We have uniformly held it to be our duty to give to the compensation act a broad and liberal interpretation, for the purpose of carrying out its wise and beneficent purposes; but the court has also recognized its limitations in this respect. In Menke v. Hwuber, ante, p. 171, 160 Pac. 1017, it was said in the opinion:
“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 we have no right to extend its construction to cover enterprises and industries not within the scope and intent of the law.” (p. 175.)
The precise contention of plaintiffs is that the original act was broad enough to include workmen employed in building' and engineering work, whether the employer was a person, county or corporation, municipal or private; and therefore it is argued that when the legislature by the amendment of 1913 added the words “county and municipal work” the purpose must have been to extend the application of the law, and that by a liberal interpretation we should hold it was the intention to include all employees of the city whose work, for any reason, becomes especially dangerous. It may have been the intention of the legislature to remove any doubt that might exist as to the application of the act to county and municipal work “which is conducted for the purpose of business, trade or gain,” provided the nature of the work is such as to render it especially dangerous and hazardous .to life and limb of the workmen engaged therein. Whatever the purpose of the legislature in including the words “county and municipal work,” we think it is clear that the construing sections 2 and 4 of the act of 1913 together with the well known purpose and objects sought to be attained by the enactment of the compensation law, it was not the intention to extend the application of the law to the case of a policeman killed in the discharge of his duty. Section 4 of the act defines “workman” as follows:
“ ‘Workman’ means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, but does not include a person who is employed otherwise than for the purpose of the employer’s trade or business.”
The defendant is a city of the first class, governed by the commission act. The statute relating to appointive officers in cities of the first class under the commission form of government provides for the appointment of a captain of police and such assistants and other officers as the commissioners may deem necessary for the best interest of the city. The same section provides that “no such officer shall be appointed until his term and salary shall have been fixed by ordinance” (Gen. Stat. 1909, § 1304), and that the terms of all appointive officers shall expire with the term of office of the board appointing them. It has been held that a policeman in performing his duties is exercising the rights of sovereignty, and represents the state and not the city, inasmuch as the state requires the city'to appoint him, and because his duties are those of a public nature. In Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490, it was said :
“The police officers of a' city are not regarded as the servants or agents of the city; their duties are of a public nature; their appointment is made by the city as a convenient mode of exercising a function of government; their duties are to preserve the good order and provide for the safety of the people of the city.” (p. 656.)
In Haney v. Cofran, 94 Kan. 332, 146 Pac. 1027, it was said in the opinion:
“There is no end of authority that a policeman is a public officer, (citing cases). ... In many respects a policeman is a municipal officer, but in other and important respects the legislature and the courts have raised him out of the class of a mere subordinate or employee like a field man of a local department of health , (Jagger v. Green, 90 Kan. 153, 133 Pac. 174), or a cell-house man at the penitentiary (Jones v. Bot-kin, 92 Kan. 242, 139 Pac. 1198).” (p. 334.)
The primary purpose in the enactment of the compensation act has been considered in former decisions. In McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247, it was said:
“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.” (p. 366. See, also, Menke v. Hauber, ante, p. 171, 160 Pac. 1017.)
The theory is that the employer who obtains a profit from the labor of workmen may very easily add to the cost of the manufactured goods a limited amount'to cover the cost of compensation to the workmen injured in certain hazardous employments, and thus, without loss to himself, the burden may be distributed upon the consumers which constitute the public. Many good reasons might be suggested for including within the scope of the act workmen employed in hazardous enterprises by cities engaged in conducting a business for profit, .as electric-light or waterworks plants, because a city, like any private individual engaged in trade or business, could pass on to the public at large the burden by adding to the cost of the service. But where a city is engaged merely in the exercise of its governmental functions we think it clear that the workman, no matter how hazardous his employment, would not come within the spirit and purpose of the compensation act any more than the clerks and stenographers in the case of Udey v. City of Winfield, supra. So that even though a policeman be regarded as a workman in the employ of the city, and notwithstanding the performance of his duties places him at times in a dangerous and hazardous situation, still, the employer, the city, is not engaged in trade or business, and therefore a policeman is not within either the spirit or letter of section 2 of the act, which limits its application to persons employed for the purpose of the employer’s trade or business.
In operating electric-light and power plants and waterworks systems, cities are engaged in the exercise of their proprietary functions, while in enforcing the laws'of the state against crime they are exercising a purely governmental function. This proposition is so elementary as not to require ,the citation of authority.
One or two cases are cited from other courts construing compensation acts the language of which differs materially from our statute. It is not contended that any of the cases are directly in point, and a discussion of them would be of no benéfit. , "
There may be, as suggested in the brief of the defendant, good reasons why a policeman, sheriff or other police officer, in the discharge of his duties should be protected; but this presents a question for the legislature and not for the courts. The legislature might see fit to provide a pension for the family of a policeman killed in the discharge of his duties. It could not do so under the compensation law, without a very wide departure from the theory and purpose upon which that law was enacted, as expressly declared in the act itself.
The judgment sustaining the demurrer to the petition must be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by creditors to subject a fund to which they had contributed to the payment of their claims.
J. F. Keyser and his sons, W. D. and W. O. Keyser, were engaged in the hardware business at Wakefield. On July 22, 1911, J. F. Keyser died, leaving as his only heirs his widow, Maggie Keyser, the two sons mentioned, and two daughters who had not yet reached majority. On August 5, 1911, the widow was appointed administratrix of the estate, and on August 28, 1911, W. D. Keyser qualified as surviving partner, giving bond with G. A. Siemers and D. H. Faulkner as sureties. The property of the deceased consisted of little more than his interest in the partnership business. W. D. Keyser had put into the business about $700, and W. O. Keyser had contributed nothing except his services in carrying on the business for which wages were paid. The invoice of the stock of goods taken after the death of J. F. Keyser, showed that there were goods on hand of the value of $8342.22, cash $1378.03, notes aggregating $1173.50, and open accounts due the firm $1876.56, the entire stock and assets of the firm amounting to $12,770.31. The firm was then indebted to the extent of $6072.44. Sometime after W. D. Keyser took charge of the stock he paid off this indebtedness, but instead of selling the stock in bulk he conducted the business substantially as it had been done prior to the death of his father, and his brother W. O. Keyser continued to assist in carrying on the business as he had formerly done. Some new goods were purchased from time to time to take the place of those that were sold, and in transacting the business checks and other documents were signed sometimes in the old firm name and sometimes as Keyser & Sons. Mrs. Keyser and her daughter as well as the families of both sons were supported from the proceeds of the store. In July, 1913, W. D. Keyser gave notice that he would make a settlement of the partnership estate, and did file what purported to be a final account of his administration; but shortly afterwards he disappeared and settlement was not made. Mrs. Keyser, as administratrix of the estate of the deceased, also gave notice of a final settlement of the estate, which was not made. After the abandonment of the business by W. D. Keyser, Mrs. Keyser and her son W. O. Keyser executed an assignment of all the stock and assets of the firm to William Jevons as trustee for the creditors, and this instrument was signed by “W. O. Keyser,” “Maggie Keyser” and “Keyser & Sons by Maggie Keyser, a member of said partnership.” Under the assignment Jevons took possession of the store, sold goods, bought some new goods, and also collected outstanding accounts and paid debts. After he had been in possession of the property about two months the probate court directed the administratrix to take charge of the store and the assets of the estate, and thereupon Jevons surrendered possession of the goods and all of the assets of the business to her. An inventory was then made and a little later a sale of the goods was effected, the proceeds from which, with the cash on hand and open accounts, amounted to . $4851.60. From this amount the administratrix was directed to make a payment of $513.20 (but whether it was upon claims or fees is not disclosed) , leaving a balance of $4348.40. She was about to distribute this balance among the heirs of the deceased when this action was brought.
G. A. Siemers and D. H. Faulkner intervened in the action, claiming the rights of creditors. The surviving partner had induced them to sign a note with Keyser & Sons upon the representation that he desired to pay off the claims of the minor heirs. Instead of doing that, it is alleged that the surviving partner placed the money obtained upon the note in his banking account and drew it out from time to time in carrying on the hardware business. The Wakefield bank, in which the $1500 was deposited and from which it was drawn, also intervened with a view of obtaining an allowance for the same claim.
Upon the testimony the court, after allowing the claims of the creditors, held that the fund derived from the sale of the goods should be subjected to the payment of the creditors, and a receiver was appointed to make distribution. The claims of Siemers and Faulkner as well as that of the bank of Wakefield were denied; and these intervenors and the Keysers appeal from the judgment rendered.
It is contended that the surviving partner and those associated with him could not bind the estate for the goods purchased and the liabilities created after the death of J. F. Keyser. It is true, as the defendants contend, that death works a dissolution of the partnership, but the community of interest subsists in a way for the time necessary to wind up the partnership business. In section 344 of the seventh edition of Story on Partnership, it is said:
“Although, as to future dealings the partnership is determined by the death of one partner, yet for some purposes it may be said to subsist, and the rights, duties, powers and authorities of the survivors remain; so far as is necessary to enable them to wind up and settle the affairs of the partnership.”
The settlement of the partnership estate devolves primarily on the surviving partner where he' elects to undertake it, and if he does not, .then upon the administratrix of the estate. (Gen. Stat. 1909, § 3467.) It was the duty of the surviving partner who assumed the task in this case to wind up the business within a reasonable time and in the way most advantageous to those interested in the estate, and after paying the debts and the expenses of winding up the business, to distribute the assets among the surviving partners and the representative of the deceased partner. The surviving partner is vested with some discretion as to the manner of closing the business and the time to be taken for that purpose. He may continue the business long enough to close it up without sacrificing the assets and long enough to make an advantageous disposition of the stock. (Frey v. Eisenhardt, 116 Mich. 160.) The statute contemplates that considerable time may be necessary, as the bond required of the surviving partner provides that the partnership business shall be wound up and the debts paid and the surplus fund distributed within two years, unless a longer time is allowed by the court. (Gen. Stat. 1909, § 3468.) In some cases a bulk sale of merchandise may be the better method, while in others a sale of the goods in the usual . course of trade may be to the advantage of the interested par ties. In the latter case some articles may be purchased and added to the stock in order to make it more salable and to facilitate an advantageous disposition of the whole. When this is done in good faith the goods purchased as well as the reasonable expenses incurred in carrying on and winding up the business may be paid from the funds derived from the sale. (Central Trust & Safe Deposit Co., &c. v. Respass, 112 Ky. 606; Calvert v. Miller, 94 N. Car. 600; Hoyt v. Sprague, 103 U. S. 613.) The surviving partner is not warranted in unduly prolonging the business of the partnership, and if it be continued longer than necessary the representative of the deceased partner may obtain a remedy by applying to the court to secure a closing up of the estate and a distribution of the funds derived from it. In this instance the business was continued a long time — probably longer than was necessary to pay the debts and close up the partnership business. In speaking of a surviving partner it has been said :
“It is his duty to collect the claims as far as possible, to pay off the debts, to sell out the stock of goods to the best advantage; and, while he may continue the business for a short time, in disposing of the stock on hand, yet he is not authorized, without the consent of the representative of the deceased partner, to continue the firm business indefinitely, nor to embark in new enterprises. (Didlake, Administratrix, v. Roden Grocery Co. et al., 160 Ala. 484, 489.)
Here the business was continued with the acquiescence and cooperation not only of the surviving partners, but also of the widow, who was the legal representative of the deceased partner. The length of time necessary to wind up the partnership affairs in the way most conducive to the interest of all is not shown in the record. It was continued for some considerable time after the debts which were due when J. F. Keyser died had been paid. In one sense a new partnership was established which included all the interested parties. In buying goods and in transacting business it appears that the name of the old firm was used part of the time, and some of the time the name of Keyser & Sons was employed, and .the widow in executing the trust deed mentioned signed the name of Keyser & Sons and designated herself as a member of the partnership. Whether it be treated as an undue .continuance of the business by the surviving partner, or as a new partnership, it is clear that the creditors, whose goods and assets were put into the business and contributed to enlarge the fund, are entitled to be paid from the fund in preference to any of the partners or the representative of the deceased partner. Since all the interested parties, including the representative of the estate of the deceased partner, were engaged in the business when the goods were added to the stock, it is only equitable to pay first the debts contracted in the operation of the business, and which entered into and became a part of the fund that is to be distributed.
It appears that the two daughters of the deceased were minors when the debts in question were contracted, but their interests in the partnership estate were represented by their mother as administratrix, and as we have seen she participated in carrying on the business in which the indebtedness was incurred. If they have suffered any loss through improvident action or through improper administration, they can look to the bond given by the administratrix.
The intervenors, Siemers and Faulkner, are also entitled to the status of creditors "and to share in the fund. The note signed by them, and for the payment of which they had been obliged to provide, was cashed at the bank and the proceeds of it used in the partnership business. While the surviving partner induced them to execute the note in order that the proceeds might be used to pay the claims of heirs, the testimony clearly shows that the money obtained on the note was used in carrying on the partnership business. They are therefore entitled to prorate with the other creditors in the fund which is the subject of controversy. These intervenors instead of the bank are entitled to share in the fund as the bank had previously taken the obligation of these parties in place of the original note.
The judgment will be modified so as to allow the intervenors, Siemers and Faulkner, to share in the distribution of the fund with other creditors, and in all else the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a mandamus proceeding to compel the registration of rural high school bonds.
At an election held on May 26, 1916, it was determined to establish Rantoul High School No. 2 of Franklin county under the provisions of chapter 311 of the Laws of 1915, and to issue $10,000 worth of bonds of the district for the construction of a high-school building. The officers of the district executed the bonds and presented them to the state auditor for registration, but he declined to register them upon the ground that the location of the building was not definitely stated as the statute requires. In the petition for the location, which set forth the boundaries of the district and the amount of the bonds proposed to be issued, it was stated that the high school was to be located “within or close to the village of Rantoul.”
Is the statement sufficient? The statute provides that an election to establish a rural high school district and to vote bonds for the construction of a school building shall be held whenever a petition otherwise sufficient is presented to the board of county commissioners requesting it “to call a special election to vote on establishing and locating a rural high school and to vote bonds for the construction of a high-school building, the proposed location and the amount of' the bonds proposed to be stated in the petition,” etc. (Laws 1915, ch. 311, § 2.) It is contended that the location is to be fixed by the electors and not by the school board and that to comply with the statute the particular spot or piece of land upon which the building is to be erected must be stated. This strict interpretation of the term location in the connection in which it is used was rejected in Miely v. Metzger, 97 Kan. 804, 156 Pac. 753, where the statute in question was under consideration. The view taken was that the legislature did not intend that the precise spot on which the building was to stand should be stated in the petition but' that it would be enough if the municipality, district, neighborhood or locality within which the building was to be erected was stated. There the location stated in the petition was “within Ozawkie, Kansas,” which is an unincorporated village, and it was held that the proposed location was stated with sufficient definiteness to meet the purposes of the statute. Following this view it must be held that the bonds in question are no,t invalid because the location of the high school was not properly stated in the petition. Here the location is “within or close to the village of Rantoul.” The term close to is defined as near, very near and immediately adjoining. If the location named for a highrschool building is in a rural district which'has no definite boundaries the term within may be inappropriate. A village or hamlet in a rural community may be no more than a store, a school, a church and two or three residences, and in such a case a statement that a high school was to be located within or close to the village would be about as definite a designation as would be practicable without naming the particular spot on which the building was to rest/ In such a case to name a location close to a hill, mound or other well-known natural object or to the intersection of certain highways within the district would be reasonably definite. Likewise to name a location as “within or close to” the group of houses constituting the village of Rantoul appears to us to meet the requirements of the statute and it must therefore be held that there are no valid objections to the registration of the bonds. This being decided the state auditor will doubtless register the bonds and the formal issuance of the péremptory writ will be unnecessary.
Judgment for the plaintiff. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover for injuries caused by a fall from a runway in a building under process of construction by the defendant. It was alleged that in order to reach the inside of the building a runway or board walk was constructed by defendant over the opening or cellar at the rear of the building, consisting of two or three boards from six to eight feet long, one of which was two inches thick and six inches wide, on$ either two by ten or two by twelve laid flat and lengthwise over the opening, and between the two was laid a piece of planking called flooring one inch thick and six inches' wide; that while carrying a 24-foot plank over this runway one of the boards therein broke and the plaintiff was precipitated to the cellar; “that said board walk or runway 'was at said time wholly insufficient to support a man of the size of plaintiff while carrying a board or joist such as plaintiff was carrying at the time and weighing 150 pounds more or less; that all of said boards were old, weather-worn, rotten and weak; that they w.ere not .properly fastened at the ends and -were not fit or proper boards for the purposes for which they were being used at said time and place.”
In his opening statement cdunsel for plaintiff said:
“The evidence will show . . . when all of a sudden one of the boards on the runway broke and Mr. Case was precipitated to the cellar below on to some piping that was in the cellar.”
, The defendant, in his opening statement, said the evidence for the defendant would go to show the condition of the runway, the ¡manner in which it was used and the material of which it was constructed, and that the court would instruct that unless the jury should believe from the evidence that the defendant was negligent in the way the runway was constructed and the material that was used there they should find for the defendant. Plaintiff, among other things, testified:
“As I was going there, there was three boards down on the runway that I had to walk over; one was two by ten, or two by eight and the other was two by six or two by eight, and I do not know what the other was, but as I got in the center of that runway that plank broke with me and I fell into the cellar and cut my head here and broke three of my ribs and skinned my face.”
He could not state which board broke, but said that when he got in the center he just realized that he was going down and had a remembrance as he was going down he heard the boards breaking.
“Q. You are positive one of those boards broke and let you through there? A. Yes, sir. One of those boards broke; I could not say for sure which one it is.”
Another witness testified that when he reached the cellar he saw the piece of flooring broken, down by the plaintiff—
. “After the accident, I looked up from the alley and I could see two boards in the runway; they were two inches thick. All I could see after he fell, were two boards and I saw a broken board down where he was in the cellar. It was flooring that was laying right below Mr. Case, and it was broke. ... It was four inches wide and one inch thick.”
There was also testimony that the boards were a good deal worn, and that after the accident a’two-by-twelve-inch board was added; that the runway was made about twelve inches wider and was nailed to the floor. The j ury were instructed if they believed from the evidence that the runway was defective and that the construction thereof was insufficient, or that one of the boards was defective or insufficient for the use being made of it at the time, and by reason thereof it broke and occasioned the injury, that under certain conditions mentioned the plaintiff was entitled to recover. A general verdict was returned for $787.50 in favor of the plaintiff, and seven special questions were answered which have no significance except upon the possible question of contributory negligence in the general strength and use of the runway. The eighth question was:
“State fully, clearly and specifically the negligence of which defendant was guilty and upon which you rendered a verdict in favor of plaintiff. Answer: The runway to narrow.”
Defendant did not file a motion for new trial, but for judgment notwithstanding the general verdict, which was granted, and the plaintiff appeals.
, The only question involved is whether or. not this answer was so clear and specific a restriction of the negligence of the defendant to the mere width of the runway as to justify the action of the trial court. It is urged that narrowness may well be an insufficiency, and that under the allegations it was quite consistent for the jury to find that for a man carrying a board or joist weighing 150 pounds the runway was by reason of its meager width insufficient.
One witness testified that there were only two boards in the runway, each two inches thick, and that a piece of flooring was used as a brace from the floor to a door frame two or three feet from the runway, against which brace a man would be apt to fall if he fell off the east side of the runway, and that when witness got down cellar this brace was there, broken. ■ The answer would indicate that the jury took this view of the case and concluded that by reason of the narrowness of the walk, consisting of only two boards, the plaintiff fell therefrom against the brace, breaking it and carrying it down with him. The case was brought and presented on the theory that the walk or some part thereof broke and gave way, not that by reason of its narrowness the plaintiff fell therefrom.
When the finding, taken in connection with another, as in the case of Springer v. Railway Co., 95 Kan. 408, 148 Pac. 611, amounts to a statement of one of the conditions bringing about the injury, and other conditions are shown by the evidence and found by the jury, such finding does not necessarily conflict, with the general verdict. In Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105, the jury rested the negligence on insufficient light, and it was held that while the plaintiff did not. in so many words say that his fall was caused by the want of light it was deemed that there was room for the inference that, a better light would have enabled him to secure a better footing; but even there the petition alleged various forms of negligence, including insufficient light, and it was held that the-answer of the jury excluded other forms than the one mentioned therein.
When the finding clearly excludes all other elements than the-one specified therein the unvarying rule is that this element-alone may be considered as proved, and that all others alleged are deemed to be left unsupported. (Railway v. Roth, 80 Kan. 752, 104 Pac. 849; Plummer v. Railway Co., 86 Kan. 744, 121 Pac. 906; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999; Pullin v. Railway Co., 96 Kan. 165, syl. ¶ 2, 173, 150 Pac. 604,. See, also, Martin v. City of Columbus, 96 Kan. 803, 153 Pac 518; Keck v. Jones, 97 Kan. 470, 155 Pac. 950.)
In Roberts v. Railway Co., 98 Kan. 705, it was said:
“It is contended, however, that as other ¡grounds of negligence were-alleged by the plaintiff and a general .verdict was returned in his favor we should presume that these were established and furnished a basis for the verdict. The contrary of this contention is the rule. Such a finding in effect acquits the defendant of every charge of negligence stated in the petition or mentioned in the evidence, except the one specifically designated in the finding.” (p. 706.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff brought this action to recover damages in the sum of $3000 for injuries alleged to have been caused by the defendant’s negligence at a time when he was in its employ. Almost a year later an amended petition was filed which attempted to set up a cause of action under the compensation law. The prayer for relief was amended to ask compensation in the sum of $2496. The amended petition alleged that the accident was caused by the negligent act of one of defendant’s agents, and that the injury sustained caused the plaintiff mental pain and anguish; it asked that $100 be allowed for medical expenses and also asked for a reasonable attorney’s fee. The court overruled a motion to strike out these allegations. .A demurrer to the petition was also overruled, and the action proceeded to trial as a compensation case. In the opening statement it was admitted that defendant as well as plaintiff were subject to the provisions of the compensation act. The petition alleged that no written notice of the injuries had been given, but that defendant had actual notice thereof a few minutes after the injury was received and therefore was not prejudiced by plaintiff’s failure to give notice. The defendant objected to the introduction of any evidence and that was overruled. The jury returned a verdict in plaintiff’s favor for $1257. Judgment was entered upon the verdict and defendant appeals.
The plaintiff was injured on the afternoon of the same day he began working for defendant. He was to receive $2 per day for ten hours work. He was engaged in repairing switches in an overhead tram or cage, which hung suspended from a track. A switch immediately behind the cage was left open and as the cage started back one end dropped down' and plaintiff fell a distance of about fourteen feet, striking on a railroad track. He claimed that an eight-pound sledge hammer fell from the cage and struck him on the breast. He was given first aid treatment by Doctor Johnson, defendant’s house surgeon at the plant. Several weeks after his injury he went to see the superintendent of the defendant and asked what was going to be done about his injury. The superintendent sent him to see Doctor Johnson, who had charge of such matters. The doctor explained the workmen’s compensation law to him, told him it did not provide payment for his injury, but that defendant would compensate him according to its terms, and meanwhile if he would go back to work as soon as he was able he would be given employment at the same wages. He also explained to plaintiff that there was $36 due him at the rate of $6 per week. The plaintiff said he thought he was entitled to more than $6 per week, and refused to take compensation under the act because he thought the law did not allow enough. He never went back to the Armour plant after that.
The first and principal complaint of the defendant is that plaintiff should not be entitled to recovery because he refused to accept payment or settlement under the compensation law, but demanded more than compensation for incapacity to labor. It is said that the defendant was a,nxious and willing to abide by the compensation act and the plaintiff refused to be. bound by it; that he not only refused to accept the offer to pay him what the law allowed, but brought an action to recover damages for injuries sustained by the alleged negligence of the defendant, wholly ignoring the compensation act, which defines the rights and obligations of both parties. In this connection defendant insists that it was carrying out in good faith its established policy to abide by the provisions of the compensation act, and directs our attention to the records of the state, showing that it was among the first and largest employers of labor to come under the provisions of the act, and that it has never sought by litigation to defeat an employee claiming under the law. It is insisted that the case would not have been brought if the plaintiff had been willing to abide by the law and accept compensation according to its terms.
We fully agree with- the contention of the defendant, that one of the purposes of the compensation act was to do away with litigation between employer and employee in adjusting compensation for injuries received in the course of employment, and that the law fixes the scale of compensation for permanent as well as partial disability, leaving the only question to be determined the extent of incapacity resulting from the injury. The wise provisions of the law have in many cases not been carried out, and the responsibility for the failure of the law in this respect is attributable sometimes to an unwillingness of the employer to deal fairly with the .employee; sometimes to the tendency of an injured employee to exaggerate the extent to which his earning capacity has been decreased, and unfortunately it often results from the activity of persons who seek to enhance the amount of compensation and share in it. There is, however, often reasonable ground for a dispute between the employer and the employee as to the extent of his injuries and the effect it will have on his earning capacity. We do not believe that on the facts in this case the plaintiff should be barred of his right to maintain his action because' of his refusal to accept the compensation which Doctor Johnson told him the company was ready to pay. It is very clear from Doctor Johnson’s own testimony that he believed at the time he was talking to the plaintiff that the latter was not injured to such an extent that his earning capacity would be permanently affected. The plaintiff believed that his injuries were more-serious than the doctor thought they were, and that he would be permanently incapacitated to a partial extent. Doctor Johnson did not offer to pay him anything for permanent disability. His offer was to pay plaintiff half of his wages, or $6 per week, until he was able to come back to work, which the doctor believed would be in a short time. The plaintiff had a right to insist upon a settlement that would determine whether his disability was permanent, that is, how long it would probably continue, and the amount, if any, he was entitled to recover for such partial incapacity. Where the employer takes the position that there is no permanent disability, partial or otherwise, we see no reason why the employee may not maintain an action to have these questions determined, and at the same time refuse to accept payment offered for temporary disability. Perhaps plaintiff should have accepted the $36, but he was not obliged to do so. If he had accepted it, and the disagreement as to the duration of his disability remained unsettled, his acceptance would not have deprived him of the right to have the other question litigated. The duration of the incapacity'of the injured employee is one of the important facts to be determined, and must be settled “as other questions of fact” are determined. (Gorrell v. Battelle, 93 Kan. 370, 376, 144 Pac. 244.) The compensation act expressly provides that a workman’s right to compensation may, in default of agreement or arbitration, be enforced by action in any court of competent jurisdiction. (Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530; Halverhout v. Milling Co., 97 Kan. 484, 155 Pac. 916.) In this case there was a default of agreement or arbitration, and the reason for it as explained by the fact that Doctor Johnson, to whom the plaintiff was referred,' believed he was not partially injured to an extent that would be permanent, but on the other hand that in a short time he would be able to return to work fully recovered. The plaintiff believed the contrary. In Ackerson v. Zinc Co., supra, and in Halverhout v. Milling Co., supra, it was held that an attempt and failure by plaintiff to settle by arbitration is not a condition precedent to maintain an action. It necessarily follows that under the circumstances of this case plaintiff’s refusal to accept the offer of Dr. Johnson should not bar the action.
The motions directed against the amended petition were well founded, and the court might have required plaintiff to recast the entire pleading. The averments as to negligence, mental pain and anguish, medical expenses and attorneys’ fees had no appropriate place in the petition. (McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247.) The case, however, was tried out as a compensation case; no evidence was admitted in proof of the extraneous matters, and the court charged the jury not to consider them.
Section 22 of the compensation law (Laws 1911, ch. 218, Laws 1913, ch. 216, § 6) requires that an injured employee shall present a claim for compensation within three months of the day he was injured, and expressly declares that the failure so to do shall be a bar. The evidence shows a full compliance with this provision. The claim is not required to be in writing. An oral demand is sufficient under the language of the statute. (Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431; Knoll v. City of Salina, 98 Kan. 428, 157 Pac. 1167.) The plaintiff went to the superintendent of defendant and asked what was to be done about paying him. He was referred to Doctor Johnson, to whom he presented a claim. The difficulty arises over the failure to allege Jn his petition that he had presented a claim. Since that was a condition precedent, he should have pleaded compliance. It would not do, however, to reverse the judgment and order a new trial merely to permit the petition to be amended so as to allege presentation of the claim. The claim was presented, and defendant had every opportunity to investigate the nature of plaintiff’s incapacity. We conclude that defendant was not prejudiced by the failure to sustain a demurrer to the petition, and the objection to the testimony.
The petition fails to disclose any facts upon which the average weekly earnings of the plaintiff could be computed. The statute provides that the average earnings are to be computed on the average rate per week which the workman was being remunerated for the fifty-two weeks prior to the accident, and where this becomes impracticable, by reason of the shortness of the time during which the workman has been employed, then the compensation is to be based on the average weekly amount which, during the twelve months previous was earned by a person in the same grade or class of employment in the district where plaintiff was employed. Plaintiff had been at work but one day when he was injured, and the petition should have alleged what were the average weekly earnings of persons in the same grade or class of employment during the previous year. All the petition stated as to his earnings was:
“That said plaintiff was, on or about the 4th day of June, 1913, in the employ of said defendant, and had been in such employ for some time prior thereto without interruption and received as compensation for his said services the sum of twelve ($12) dollars per week in said employment.”
This was, perhaps, sufficient to get past a demurrer; there was no motion to make more definite and certain, and the omission to plead the facts properly could not have prejudiced the rights of the defendant. We tfrink the testimony of defendant’s foreman as to the customary prices for labor in that kind of employment for a year or more, which he said ranged from $1.75 to $2 a day in the same line or class of employment, was sufficient evidence of the average wages paid in the same grade and class of employment for the previous year.
There was no error in sustaining an objection to the question asked of Doctor Gray. He testified to substantially the same facts embraced in the question and the offer of proof. Over defendant’s objection, Doctor Faust was permitted to testify that a working man, used to muscular labor, would have his usefulness impaired to a certain extent by. the condition he found in the bones of the plaintiff, and that there would be a limitation of action in the movement of the arms, especially in gripping in certain positions. It is complained that this was trenching on the functions of the jury as well as speculation bn the part of the doctor. Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30, is cited in support of the contention. In that case medical experts were permitted to testify, from conditions embraced in a hypothetical question, that a person was of unsound mind, which was held proper; but it was ruled not competent for them to give an opinion as to whether such person had sufficient mental capacity to make a certain deed of conveyance. All that the witness in the present case testified to was that certain physical conditions would tend to impair a workman’s usefulness to .a certain extent. The witness did not attempt to state his opinion as to the extent of such partial disability. We see no reason why expert evidence of physicians may not be offered in proof bf the fact that partial disability exists.
At the defendant’s request, the court instructed the jury to find for defendant, if they believed from the evidence that defendant tendered plaintiff compensation as fixed by the statute, “for the entire period for which he was incapacitated, totally or partially,” and that plaintiff refused to accept. It is said that the jury disregarded this instruction, and that it was based upon uncontradicted evidence. The contention is that the court did not intend to charge the jury that the tender should cover future incapacity, but only the period of incapacity up to the time of the tender. If such was the intention of the court, the instruction was wrong. As we have seen, plaintiff had a right to refuse the tender, if there whs a disagreement between him and the defendant as to his future incapacity. We think the court and the jury understood the instruction to refer to a tender of compensation for the entire period during which he was, in fact, incapacitated, either totally or partially.
There were some verbal inaccuracies in the language of the instructions as to the method by which the jury should determine the amount of compensation, but as a whole the in struetions followed substantially the provisions of the compensation law. Besides, the jury were not misled, since it appears they allowed the compensation at the lowest rate under the statute.
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The opinion of the court was delivered by
West, J.:
The grain company sued the elevator company for $655 damages for the alleged breach of a contract to deliver certain wheat. From an adverse judgment the plaintiff appeals.
July 24, 1914, the plaintiff bought of the defendant 5000 bushels of wheat. July 29 the defendant shipped 916 bushels, and August 6 1464 bushels, but did not ship the remaining 2620 bushels for the alleged reason that when it was ready and offered to ship the two cars containing this amount the plaintiff refused to receive them. This was on August 3. The rules of the Wichita board of trade adopted by the parties in their contract provide that to make' a valid tender a bill of lading must be proffered, and the court instructed accordingly, but also charged the jury that the law does not require an unavailing thing, and, therefore, if the defendant notified the plaintiff that it had the wheat and wanted to deliver it and was told that plaintiff would turn its drafts down and refuse to accept the wheat, and the defendant was able and willing to furnish it, a formal tender by bill of lading was not required. This was in accord with the well-settled doctrine that a tender or demand otherwise indispensable is no longer required when its futility is shown. (Chinn v. Bretches, 42 Kan. 316, 22 Pac. 426; Golden v. Claudel, 85 Kan. 465, 469, 118 Pac. 77; Sherwin v. Baxter, 86 Kan. 730, 121 Pac. 1128; Smethers v. Lindsay, 89 Kan. 338, 340, 131 Pac. 563; Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923.)
It is urged that as the defendant shipped a car after this refusal it can not assume the double attitude of having rescinded and performed its contract, and attention is called to the terms of the agreement that it was not to be completed' until all shipments were received, graded, weighed and accepted at destination. It is said that after the claimed breach by the plaintiff on August 3 the defendant could rescind or cancel for such breach or waive it and continue to ship, but that it could not do both. But it seems that the plaintiff received and paid for the early and the latter shipments, and we see no reason why it can justly blame the defendant for not doing what it told it not to do, or how the subsequent delivery and receipt of another car works any estoppel upon the defendant to claim the benefit of the alleged waiver of a useless tender.
In a cross-petition the defendant alleged a contract to buy of plaintiff 1250 bushels of oats at 41 cents a bushel, a failure to furnish, a market value of 48.5 cents and a loss of $93.75.
In the reply the plaintiff admitted the failure to furnish, a difference of four cents a bushel in market price and averred that it had credited the defendant on its account with the amount thereof, $50. The jury found the market value to have been 41 cents — j ust the contract price — and yet allowed $50 damages. This showed recklessness, and the allowance is not supported by the finding. While the plaintiff’s admission of the same amount of damage was coupled with the allegation that the $50* had been credited to the defendant, still in its motion for a directed verdict the plaintiff' offered a deduction of $93.75, the amount claimed — and hence it can not be said that the allowance of $50 was a matter of which the complaint could justly be made. In fairness to the plaintiff it should be said that it does not complain of this particular action on the part of the jury, but-justly refers to it as a matter for criticism.
Contrary to the evidence the jury found that the defendant shipped no- wheat to apply on the contract after August 4. But as it plainly appeared that wheat was not only thus shipped but paid for, no harm resulted from this peculiar finding.
Their answer that the defendant advised the plaintiff on August 4 that it was rescinding the contract is supported by evidence found in the counter-abstract.
Natural impatience is expressed touching alleged perjured testimony as to the offer and refusal of the cars on August 3. It is indeed difficult to read the record without being impressed that some one, when on the stand, was unmindful of the truth, but these lamentable exhibitions of human weakness are gen-, erally beyond the courts power to remedy after the jury and the trial court have settled the matter of credibility.
The defendant appeals from the refusal of the' court to render judgment on the findings for $167.68 loss on the wheat refused by the plaintiff. One finding was that had the plaintiff received this the defendant would have realized six and four-tenths cents a bushel more than was realized, making $167.68. There was evidence to support this, and no reason is suggested why the jury failed to follow with the logical result and award the defendant the amount they found it had been damaged. But in answer to an express question how much damage they allowed they answered "Nothing.” This is equivalent to finding that one party owes another a given sum but will not be required to pay anything. It was error not to enter judgment for the amount named, for the mere refusal of the jury to allow anything did not impair the force of their finding as to the actual damage.
This is the only material error found in the record, and the judgment is directed to be modified by adding thereto in favor of the defendant the sum of $167.68 and thus modified it will be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Action to foreclose a mortgage. A decree of foreclosure was entered, an attachment sustained, a receiver for the property appointed, and a personal judgment rendered against defendant Elizabeth Cunningham, who appeals.
The plaintiff, Johnson, is the assignee of S. I. Field, in whose favor the note and mortgage were executed by defendant Huffaker, the original owner of the land. Huffaker sold the land to E. R. Bailey, who conveyed it to Elizabeth Cunningham, a resident of Kansas City, Mo., and the latter subsequently executed an instrument purporting to convey to defendant Grace Cunningham, in whose name the legal title stood when the action was begun. The deed received by Elizabeth Cunningham, after mentioning a prior mortgage to the Warren Mortgage Company for $2400 to which the land was subject, contained also the following recital:
“Subject also to mortgage of $3354 given to Seward I. Field, dated Aug. 20th, 1912, and interest due thereon from date of mortgage,” etc.
The personal liability of Elizabeth Cunningham is grounded upon an agreement, alleged to have been made by her, both orally and in correspondence, covering a period from December, 1914, to July, 1915, between herself and Field, who was acting as the plaintiff’s attorney. It seems that before Bailey sold the land to Elizabeth Cunningham, Field had been negotiating with the former in reference to an extension of the mortgage, and an agreement had been drawn up which was never completed. This document, which was introduced in evidence, provided that upon payment of $873.40 upon the indebtedness, which by that time amounted to $4173.40, the balance of $3800 would be extended until December 1, 1915. After learning that the land had been transferred to Elizabeth Cunningham, Field began the correspondence mentioned. In his first letter to her, written December 14, 1914, he said in part:
“I understand that you are now the holder of this land, and as you know, I represent the holder of the second mortgage, which now amounts to something over $4000 with interest. I had agreed with Mr. Bailey that if this second mortgage is reduced to $3800 on or before January 1st, .we would extend it for' one year from December 1st, and what we wanted to know was this: Shall I correspond with you or with Mr. Bailey in reference to this mortgage? If I am to correspond with you, I will furnish you a statement of the amount due up to January 1st, and upon receipt of this amount, I will furnish you written renewal agreement, as above outlined, or, I will send the renewal agreement to Kansas City to a friend of mine, and you can call at his office and pay the amount and take it up.”
After writing several more letters Field received one dated December 30 from Elizabeth Cunningham, in which she made this statement:
“Yours of recent date at hand also telegram. The interest on the 1st mortgage also oh the second will be taken care of within the next few days. I did not know about the $60 interest on the 1st and am quite sure that Mr. Bailey thought it was all taken care of. However, he will be in the city to-morrow and I will take the matter up with him and see that it is paid at once.”
In her next letter a week later she said:
“I have sent the interest on the 1st mortgage to Mr. Suddock of Emporia, Kansas, for the Warren Mortgage Co., and will have the $373.40 sent yo.u this week.”
In answer to his many communications urging her to attend to the matter and avoid the necessity of foreclosure, she made the following statements in her various letters.
On January 19, 1915:
“Your telegram at hand. Will say in reply that I will send the $373.40 at an early date. It was impossible for me to send it before as I have been very sick for ten days and-not able to take care of my collections. Please hold this until Monday and I will be sure to meet it at that time.”
In another letter, March 8, she said:
“I am sorry I was not able to send the payment per my promise last week. Will be sure to send the above this week.”
Again, on March 28, she said:
“I have a man who I am quite certain of dealing with for the farm near Sharon and he will be out there this week. I will wire you so that you will be able to see him. He has plenty of money and will want to pay the full amount of your mortgage. I have been unable to pay the $374.00 for the extension as yet and am sure this deal will suit us much better.”
Again, on April 28:
“I hope you will not get impatient as I am sure I will be able to get your money sooner than you can by a foreclosure.”
Later she said:
“Yours of recent date and I will say in reply that I will be sure to take care of that mortgage in some manner next week. I have just closed a . deal here for a three story apartment building which brings $200.00 per month and a vacant corner which I have an offer on for cash. If I make this sale I do not want to sell the farm, and I will make a payment on the second & put what I still owe on the farm in a 1st & of course will then take up the full amount of your mortgage.”
On June 4:
“I will wire you one day next week when to expect me and I will either take up the full amount of 2d mortgage or make some satisfactory arrangements. I am sending the Warren Mtg. Co. $25.00 interest by this same mail.”
On July 12:
“I have some good land in North Dakota and would you consider a quarter of this land for your second mortgage. If you will consider same I will send you or bring you the full description of same and you can investigate it and I feel sure we can make a deal satisfactory to each of us.”
Finally, on July 21, she wrote:
“I appreciate your patience in this matter and I know I have made too many promises, but I have been doing my very best to take care of this and would have been able to have done so had the times been normal. I will do my best to make something go through soon.”
In a conversation with Field, who was threatening to bring foreclosure proceedings, had shortly after the correspondence began, Mrs. Cunningham told him that she had a large amount of money invested in the land in excess of the mortgage liens and that she was going to take care of it. She told him she was going to have money in about two weeks and asked him to wait that long on her, and she would pay the second mortgage. He agreed to wait on her and did wait that length of time and much longer. Persons who were present during a conversation between Field and Mrs. Cunningham testified that she promised to pay the Johnson debt if she was given two weeks time. One stated that she promised to pay the debt in two weeks from that time, and another testified that she asked Field for two weeks more time, and that Field agreed to give her the extension. The trial court held that Mrs. Cunningham was personally liable for the debt and the personal judgment against her gives rise to the principal controversy on this appeal.
The authority of Field to act for the plaintiff, Johnson, in the negotiations with Mrs. Cunningham and to make the extension agreement is challenged. His authority is hardly open to question by her. It is not questioned by Johnson, for whom he was acting, although the negotiations lasted a long time. Johnson accepted the benefits of the negotiations and agreements and appears in court claiming the benefits acquired through the action taken by his attorney. If there was any excess of authority by Field it was ratified by Johnson. Any act of his which Johnson might have authorized can be ratified. Ratification may be implied from circumstances and all the circumstances of the case showed acquiescence and ratification; and besides, Mrs. Cunningham herself dealt with Field throughout the transactions as with one having authority.
It is contended that an assumption of liability by Mrs. Cunningham was not shown, that the essentials of a contract were lacking in the correspondence, and that an oral agreement to pay a debt not her own is void under the statute of frauds. There was no assumption of the debt in the deed to Mrs. Cunningham, and if her agreement to pay is collateral and is a promise to become the guarantor of the debt of another, it must be evidenced by a writing in order to be valid. In the correspondence between the parties there is a very close approach to a valid and binding agreement. It indicates clearly a' purpose on her part not only to pay the $373.40 first spoken of, but also to take care of and pay the whole indebtedness secured by the second mortgage. There is a lack of definiteness, however, as to the time to which payment was to be postponed. When did the minds of the parties meet and the agreement become complete, so that for a specific time no action on the debt could have been maintained by the creditor ? While an extension followed the negotiations between the parties, it is difficult to find in the correspondence the necessary certainty as to the terms of the agreement and particularly as to the period for which an extension was granted.
However, the agreement is not to be regarded as a collateral one or a promise to pay the debt of another within the statute of frauds. The action taken and the promises’ made by Mrs. Cunningham were not taken and made to aid the debtor, the maker of the rióte and mortgage held by Johnson. Her purpose was to protect her investment in the land and not to become a surety or guarantor for the maker of the note and mortgage or for any one else. The promise having been made for her own benefit; that is, to protect her land from foreclosure, based on the new consideration of forbearance in the bringing of foreclosure proceedings, it is original and need not be in writing in order to be valid.
In Patton v. Mills, 21 Kan. 163, the distinction between an original and a collateral promise is drawn, and in quoting from page 26 of volume 3 of the sixth edition of Parsons on Contracts, it was said:
“ ‘It may, indeed, be stated as a general rule that, wherever .the main purpose and object of the promisor is not to answer for another, but tó subserve some purpose of his own, his promise is not within the statute,'' although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of ex-, tinguishing the liability of another.’ ” (p. 169.) , ¡
The rule applicable where there is an agreement to forbear the enforcement of a lien upon the promise of a third' party to' pay the debt where such third party has an interest , to protect or a purpose of his own to subserve, is stated thus:
“In those cases in which the owner or intending purchaser of property which is subject to a mortgage or other lien to secure a debt owing by a third person promises, in consideration of the mortgagee’s or other creditor’s forbearance to enforce his lien, to pay such debt, his oral promise will be regarded as original and not within the statute, even though the incidental effect of its performance may be the extinguishment of such third person’s debt, because in such cases the promisor has himself a direct personal interest in discharging the encumbran.ce, .and the payment thereof is simply the price he' undertakes to pay to accomplish his end.” (20 Cyc. 194.)
(See, also, Fears v. Story, 131 Mass. 47; Mitchell v. Beck, 88 Mich. 342; Stephen v. Yeomans, 112 Mich. 624; Fitzgerald v. Morrissey, 14 Neb. 198; Rogers v. Empkie Hardware Co., 24 Neb. 653; Prime et al. v. Koehler, 77 N. Y. 91; White v. Rintoul, 108 N. Y. 222; Kelley v. Schupp and another, 60 Wis. 76; 20 Cyc. 167, 168; 2 Words and Phrases, pp. 1253, 1254.)
The testimony is sufficient to show an oral agreement to assume and pay the entire debt, and supplemented as it is with the correspondence it must be regarded as sufficient to uphold the finding of the trial court. For her own benefit she requested forbearance for a fixed time and forbearance" from bringing suit was granted upon her agreement that she would pay the debt. This constituted a new contract and the forbearance is a sufficient consideration for her promise to pay the debt upon which her creditor had a right to sue. (9 Cyc. 338; 6 R. C. L. 659; Note, 19 L. R. A., n. s., 842.)
In her behalf it is insisted that Brant v. Johnson, 46 Kan. 389, 26 Pac. 735, is not in line with the view herein taken and is in effect a holding that the promise relied on is within the statute of frauds. Some language is used in the opinion written by the commissioner to the effect that if the original liability remains the new promise is necessarily collateral and within the statute. In that case, however, the promise relied upon was not an original undertaking based upon a new and independent consideration. It was collateral, without any consideration whatever, and the rule mentioned by the commissioner was not involved in the determination of the case. Here there was a new and superadded consideration for the promise moving between Mrs. Cunningham and the holder of the note and mortgage and her promise which was made to subserve her own purpose is to be regarded as an original undertaking and not being within the statute is not required to be in writing.
The judgment is affirmed.
Dawson, J., dissenting. | [
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The opinion of the court was delivered by
West, J.:
The defendants appeal from a judgment rendered under the workmen’s compensation act, and complains of the trial court’s findings touching the plaintiff’s total and partial disability, his probable earnings, and the amounts he is entitled to recover for total and partial incapacities, also the refusal of a new trial.
The plaintiff was injured on November '28, 1914. He was engaged in loading cars with sand, moving them with a pinch bar, and while tightening a brake on top of a car received an injury to his hand. A soft splint was applied, and afterwards a steel splint which was worn eight weeks, and thereafter a leather strap. The court found that his average earnings at the time of injury were $13.50 a week, that his probable weekly earnings would be $12 a week, his total disability forty-two weeks, and his partial incapacity thereafter eighty weeks; that he was entitled to recover one-half his average weekly earnings prior to the injury, $6.75, during his total disability, making $270, and $3 a week for partial disability for eighty weeks, $240. After giving the defendants credit for the amount already paid plaintiff, he was given a judgment for $420.40.
We discern no error in the findings relating to the periods of total and partial disability as there was evidence to justify these findings.
As to the amount of his probable weekly earnings, $12 a week, it is claimed that this finding is contrary to the evidence. The plaintiff testified that he had a boy’s job at Peet Brothers, about three months, averaging $10.50 a week. After that he ran a power punch for the same firm and made frames for small steel trucks, a task which favored his injured hand, and for this his wages averaged about $12 a week until about three weeks before he resigned on March 28, 1916, when they were increased to $16.50 a week; that while doing this work his wages were increased, but it was not heavy work. About March 31, 1916, he secured work in a roller mill as an overseer, not doing manual labor, a job paying about $6 a day, six days in the week; that his present $6-a-day position was temporary, but he expected to be transferred to another place at the same work. His own evidence, therefore, was to the effect that up to March 11,1916, he was earning $12 a week, then for a few days $16.50, and after taking the position in the roller mill $36 a week, which covered the time from April 3 to May 23, 1916, to which position he testified he wns to return after the trial. As it appears beyond question that long before the expiration of the eighty-week period the plaintiff was in fact earning much higher wages than when he was injured, it is impossible to see how the evidence justifies the finding complained of.
He complained that down to the time of the trial his right wrist pained him at times, that the movement was not as good as in his left wrist, and that it was not as strong as before the injury and there was a curvature or á bump on the second finger; he could not begin to do the work then that he used to do as an iron worker — his arm would not stand it. He quit the employment of Peet Brothers the 29th of March, voluntarily, because he had a position offered him where there was no manual labor attached.
The statute provides that—
“In the case of partial incapacity the payments shall be computed to equal, as closely as possible, fifty per cent of the difference between the amount of the ‘average earnings’ of the workman before the accident, to be computed as herein provided, and the average amount which he is most probably able to earn in some suitable employment or business after the accident, subject, however, to the limitations hereinbefore provided.” (Laws 1911, ch. 218, § 12, Gen. Stat. 1915, § 5906.)
' The allowance and $3 a week because of partial disability for the period of eighty weeks is attacked as against the evidence showing actual increased earnings. It is said that under such circumstances the $3 allowance would not be compensation but a penalty — a departure from the spirit of the compensation act. Section 11, however, of the statute already referred to, as amended by section 5 of chapter 216 of the Laws of 1913 '(Gen. Stat. 1915, § 5905), specifically provides that when partial incapacity for work results from inj ury periodical payments during such incapacity shall in no case be less than $3 a week. Section 1 of the act (Gen. Stat. 1915, § 5896) provides that the employer shall not be liable in respect to any injury “which does not disable the workman for a period of at least two weeks from earning full wages at the work at which he is employed.” The evidence was sufficient to justify the conclusion that the plaintiff would continue for the time found to be partially incapacitated from doing the work he was engaged in when injured. Counsel put the situation before us clearly and strongly:
“We present hfere a record where under the evidence of the plaintiff himself, if he is allowed to recover under the findings of the court, his wages from Christmas of 1915 to March 11, 1916, would be increased $1.50, from March 11, 1916, to March 29, 1916, an increase of $3.00 a week, and from April 3, 1916, to May 23, 1916, and continuing, an Increase of $25.50 a week. We say that assuming the findings of the court to be correct, the plaintiff, after the 29th of September, 1915, and up to Christmas of 1915, should receive but $1.50 a week. That from Christmas of 1915 to March 11, 1916, his payments should be but 75 cents a week. That from the 11th of March, 1916, he is not entitled to one penny, because under the facts his incapacity to earn wages wholly and totally ceased, and to allow him anything thereafter is to unjustifiably burden the industry with the payments to which the plaintiff is not entitled.”
In framing the present act the legislature was providing for payment on account of death or injury occurring in certain hazardous employments, with the general view of compensation at the ultimate expense of the public patronizing the industry in which the disaster occurred. Certain boundary lines must needs be fixed to make the act practicable. Instead of fifty per cent any other per cent could have been designated in case of total incapacity. A minimum of three dollars a week was prescribed, not because it would in each case be in accord with precise justice, but because as a general thing this was deemed a fair lower rung for the ladder of allowances. While aiming at a thing named compensation no way was found to avoid in every instance certain inequities or to provide in advance that judgments of courts might never turn out to be, in the light of subsequent developments, slightly excessive or slightly lacking in sufficiency. Although the method of settlement and adjustment should have been and was doubtless intended usually to be without resort to the courts, it seems to have been considered that in any case of partial incapacity the traffic, otherwise the public, could and should bear at least three dollars a week. While partially disabled, should a workman by some happy revolution of the wheel of fortune, by entering a profession or by obtaining a light but lucrative position, be placed beyond the need of the three-dollar allowance, no means has been provided for its detachment from the aggregate of his income. But this occasional plethora must be of comparatively short duration and no serious result can follow. The tendency to change occupations and better himself is characteristic of the American employee, and such advancement occurs more frequently here than in Europe where this class of legislation originated.
The error in the finding as to weekly earnings did not prejudice the defendant, for during the continuance of total disability it was without evil effect and thereafter without force. /
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is. an appeal from a decision of the district court in an action in partition. The principal facts may be briefly stated: Patrick Mackey and Bridget Mackey, his wife, in. their lifetime made an agreement for separation and division of their property, the legal title to all of which was and remained in Patrick. Bridget was given a residence property, in which she and her daughter, Jennie Mackey, the plaintiff, resided until the death of Bridget, intestate, in 1912. Jennie continued to reside thereat after Bridget’s death. Patrick had died intestate in 1909. Defendant Lora Mackey, a minor, is a daughter of Jennie’s deceased brother, and is a granddaughter of Patrick and Bridget. Jennie and Lora are their only heirs. After Bridget’s death, letters of administration were issued on her estate, which consisted of her equitable ownership of the residence and an inconsiderable amount of personal property. Bridget also left some debts due to Jennie, who lodged her claims therefor in the probate court.
Some time later Jennie commenced this action against Lora and Lora’s mother for the partition of the property of Patrick. Lora’s mother disclaimed. Lora’s guardian ad litem prayed that the residence property, the legal title to which was in her grandfather, Patrick, and the equitable title to which had been in her grandmother, Bridget, should also be partitioned; ;and she claimed rents for the time the plaintiff had exclusively •occupied the residence of Bridget after the latter’s death.
' The court partitioned all the property, and in an incidental accounting gave plaintiff credit for certain expenses in connection with the property, charged her with certain rents collected, and found that the plaintiff had excluded the defendant and should be charged with the rental value of the Bridget' property.
The plaintiff contends that the district court usurped the Jurisdiction of the probate court as to the residence property. We think not. The pending administration of Bridget’s personal estate did not necessarily bar the heirs from their right of immediate partition of the realty. (Raynesford v. Holman, 68 Kan. 813, 74 Pac. 1128; O’Keefe v. Behrens, 73 Kan. 469, 479, 480, 85 Pac. 555.) Cases there may be where partition is wisely deferred until the personal estate is settled, for it may happen that the realty may have to be heavily drawn upon to satisfy the claims against the personal estate. (30 Cyc. 198.) But even in such cases, it is not necessarily error to partition the realty, because it will not be relieved from satis fying the claims against the personal estate on that account. (Sample v. Sample, 34 Kan. 73, 77, 8 Pac. 248; Thomas v. Williams, 80 Kan. 632, 640, 63 Pac. 772; Rippe v. Weiters, 96 Kan. 738, 153 Pac. 536.) Moreover, in this case the claims against the personal estate had been determined and adjudicated ere the decree in partition was entered; and credits due the plaintiff from the personal estate were balanced against claims due from her for rental collections, etc., in the partition suit. T-his was entirely proper. It does not appear that there were any claims against Bridget’s estate except those of the plaintiff.
Again, it should be noted that the plaintiff does not show how the partition of the residence property prejudiced her (Civ. Code, § 581) nor how two partition suits — or partition of her father’s property in the district court and an administrator’s sale of her mother’s in the probate court — would have redounded to her advantage. It would have been more expensive at least.
Touching another point urged, which relates to the finding of the trial court that the plaintiff had excluded her cotenant, Laura, in the occupancy of Bridget’s residence, it may be conceded that such exclusion would never be presumed. (Cribb v. Hudson, ante, p. 65, 160 Pac. 1019.) But there was substantial evidence which tended to establish that fact, and the familiar rule as to trial court’s determination thereon must govern.
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OPINION ON REHEARING.
Per Curiam:
For sufficient reasons, a rehearing in this case (Gillies v. Linscott, 98 Kan. 78, 157 Pac. 423) was granted and a reargument ordered. Since then every phase of this controversy has been reconsidered, but the court can discern no way to disturb the judgment of the trial court, nor does it seem advisable either to amplify or modify our former opinion and judgment. | [
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The opinion of the court was delivered by
DAWSON, J.:
The board of county commissioners of Greeley county applies to this court for a writ of mandamus to require the state auditor to register a bond issue for $10,000 to pay for a county high-school building recently erected in Greeley county, pursuant to a special election called by the plaintiff board on May 15, 1916, and which was held on August 1, 1916. Greeley county for some years past has maintained a county high school under the acts of 1897 (Laws 1897, ch. 180, Gen. Stat. 1909, §§ 7785-7789) and 1903 (Laws 1903, ch. 433, Gen. Stat. 1909, § 7784) authorizing counties of less than six thousand population to establish and maintain county high schools.
The respondent auditor declines to register the bonds; and counsel for both parties have signed and filed the following stipulation:
“It is hereby stipulated and agreed by and between the parties hereto, that the sole and only questions involved in the above entitled action are as follows:
“First: Whether or not the board of county commissioners of Greeley county have authority under the provisions of sections 2078 to 2083 of the General Statutes of Kansas of 1909, to issue bonds for the purpose of erecting a county high school building for the use of a county high school legally established under the provisions of chapter 180 of the Laws of 1897, as amended by chapter 433 of the Laws of 1903, and Sections 7784 to 7789 inclusive of the General Statutes of Kansas of 1909.
“Second: It is further stipulated and agreed that the transcript leading up to the issuance of the bonds offered for registration shows a compliance with sections 7802 to 7806 of the General Statutes of Kansas of 1909, with the exception of the fact that no petition was ever presented to the board of county commissioners as provided in section 7803 and that the question was submitted at a special election held on the first day of August, 1916, instead of the general election in November, 1916.”
Section 2078 of the General Statutes of 1909, under which the plaintiff board proceeded to act, provides:
“The board of county commissioners of any county may determine, in their discretion, when the erection of any permanent building or buildings for the use of the county is necessary, and they shall also determine the cost of the erection thereof, and the same shall be entered on the journal, hut no tax shall be levied, bonds issued or other obligations incurred on account of the erection of such building or buildings, until after the question has been submitted to the electors of said county at some general election or at a special election held for that purpose,” etc.
It may well be doubted whether even the broad language of this statute would warrant us in saying that “any permanent building or buildings for the use of the county” would include a county high-school building, if this statute stood alone and was not affected by other specific enactments pertaining to county high-school buildings. We have been so accustomed in this state for half a century to consider the term “county buildings” to mean the court house, the poor house and the jail that an illustration of any other sort of county building within the meaning of this statute does not readily suggest itself. But this statute does not stand alone. There is another statute, and that is one which deals with the Specific subject of county high-school buildings, particularly in counties like Greeley. The county high school in Greeley county was established by virtue of chapter 180 of the Laws of 1897, which provided that in sparsely settled counties (having less than twenty-five hundred population) the county commissioners might enter into arrangements with the school district at the county seat for establishment of a county high school. As population in these sparsely settled counties increased, this act of 1897 was amended to provide that any county of less than six thousand population could establish a county high school in connection with the district school at the county seat. (Laws 1903, ch. 433, Gen. Stat. 1909, § 7784.)
By means of these statutes county high schools became common and familiar institutions, but as population continued to increase and the county-seat district schools came to need all their school accommodations for their own district pupils it was considered by the legislature that more adequate provision should be made for housing the pupils of these county high schools. To this end the legislature in 1907 enacted:
“Section 1. That any county which has established a county high school under the provisions of chapter 180, Session Laws of 1897, as amended by chapter 433, Session Laws of 1903, is hereby authorized and empowered to issue and sell bonds of the county for the purpose of erecting, furnishing and equipping a building for the use of the county high school of the county; provided, that no bonds shall be issued as provided for in this section until the same has been submitted to the electors of the county at a general election, or at a special election called for that purpose, and a majority of the voters voting upon the proposition shall have voted in favor of the same.
“Sec. 2. When a petition signed by twenty-five per cent, of the legal voters of the county, as shown by the latest official poll of the county, shall have been presented to the board of county commissioners of the county, asking that the question of issue of the bonds for the purpose named in this act be submitted to a vote of the people, it shall become the duty and is hereby made the duty of the board of county commissioners to make provisions to submit the question to a vote of the people; provided, that if a general election is to be held within six months after the receipt of the petition, the board of county commissioners shall submit the question at the next general election; otherwise, the board of county commissioners shall call a special election for this purpose, by giving not less than thirty days’ notice by publication in not less than four issues of a newspaper of general circulation in the county.” (Laws 1907, ch. 332, §§ 1, 2, Gen. Stat. 1909, §§ 7802, 7803.)
It will be observed that the acts of 1897, 1903 and 1907 form a complete and independent program for the establishment of county high schools and for housing high-school pupils in counties of less than six thousand population. These acts need no aid from the general statute (§ 2078 et seq.) authorizing boards of county commissioners to determine, at their discretion, the necessity for permanent county buildings and to call a bond election to provide funds therefor. And since the high-school acts provide their own procedure for setting in motion the processes by which a county high-school building may be procured, such processes are exclusive. One of these was the presentation of a petition to' the board of county commissioners “signed by twenty-five per cent, of the legal voters of the county.” No such petition was submitted, consequently the statutory basis on which the county board called the election was wanting. The election was therefore called without lawful authority and its résult is void.
We have sought diligently but without avail to escape this conclusion. The necessity of a petition and that it must sufficiently conform to statutory requirements has often been held to be a condition precedent to the validity of an election if the statute provided that the authority or duty to call the election depended upon the presentation of a petition to invoke the election machinery. (The State, ex rel., v. Comm’rs of Phillips County, 26 Kan. 419; The State, ex rel., v. Eggleston, 34 Kan. 714, 10 Pac. 3; The State, ex rel., v. Stock, 38 Kan. 154, 16 Pac. 106; The State, ex rel., v. Comm’rs of Rawlins Co., 44 Kan. 528, 24 Pac. 955.)
In Comm’rs of Wyandotte Co. v. Barker, 45 Kan. 699, 26 Pac. 591, where the county board had assumed to establish a public road and to levy special assessments against the property benefited thereby, the statute provided that whenever a majority of the resident land-holders should petition the county board, it was the duty of the board to proceed, etc. This court said:
“It would seem, on principle, that the requirement of this statute that a majority of the resident land-holders within the limit must sign the petition for improvement, is not only imperative and must be always complied with, but the power of the board to order the improvement can not be exercised unless the petition contains the names of that majority. The best reason for this is, because the statute says so, and if you once depart from the plain letter of the act, and say that five land-holders out of twenty-one can compel action by the board, then any number less than a majority may do so.” (p. 703.)
In 15 Cyc. 319, it is said:
“Statutes of this description usually make the presentation of a petition to some local authority the initial step for holding such election; and where a statute provides for the calling of a special local election to vote upon a proposition to determine some question, such as a subscription for corporate stock, an issue of bonds, the licensing and sale of spirituous liquors, whether live stock shall run at large, or the like, upon the presentation of a petition to a designated officer or authority, the presentation of such petition is a condition precedent to holding an election; and it must be signed by the number of qualified persons prescribed by the statute, otherwise the election will be void.”
How disastrous is the failure to comply strictly with necessary conditions precedent to official action may be noted in The State v. Bentley, 80 Kan. 227, 101 Pac. 1073, and cases there cited.
Another infirmity in the proceedings leading up to this proposed issue of bonds is urged. The action of the board of county commissioners calling the election was taken on May 16, 1916. The statute provides that if a general election is to be held within six months of the time when the board receives the petition, the proposition to issue, the bonds shall be submitted at the general election. The general election occurred on November 7, 1916, and consequently within six months. The bond election was held in conjunction with the regular primary election, August 1, 1916. If we could surmount the much graver difficulty with this bond issue already discussed, we might be disposed to hold that the purpose of this provision of the statute was in the interest of economy, and that the electorate were not to be bothered with a special bond election if they were to meet within six months in the ordinary exercise and discharge of their suffrage privileges and duties, and that the regular biennial primary would answer the purpose of this statute in that regard. But the want of the statutory petition to authorize the calling of the election being fatal to' all the subsequent proceedings, this latter point need not be positively decided.
We realize the unfortunate predicament in which this result leaves the parties interested, but neither the auditor nor this court can remedy it. It can do no harm, however, and it may help, to cite Lewis v. Comm’rs of Bourbon County, 12 Kan. 186, 216, 220, and the effect of the act of February 25, 1868 (Gen. Stat. 1868, ch. 84, p. 829).
(See, also, Bank v. Reilly, 97 Kan. 817, syl. ¶ 8, 827, 156 Pac. 747, and The State, ex rel., v. Deming, 98 Kan. 420, 423, 426, 158 Pac. 34.)
The writ is denied. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for divorce. Divorce was denied, but a division of property was made. The plaintiff appeals.
The court has experienced considerable difficulty in reaching a conclusion respecting the propriety of the action of the district court in denying the plaintiff a divorce. The evidence will not be discussed in detail. That in favor of the plaintiff established grounds for divorce recognized by the law of this state. With the policy of the law the courts have nothing to do. The defense, was not very vigorous. It consisted chiefly of half denials, explanations, palliations, and weak counter-charges. The plaintiff separated from the defendant and went to the city of Clyde, where he engaged in business. There can be no doubt that two letters written by the defendant to her husband after she found their matrimonial ship on the rocks, came from her heart and represented her true self. They admitted fault, expressed sorrow and begged pardon for ugly words, pleaded that she was but human clay, told of the emptiness of her home and her life, implored forgiveness, and expressed a longing desire for his return. The distressed wife’s yearning • cry for her husband to come home is, indeed, a moving thing. But there is sufficient in the record to indicate that had he returned it would not have been long until his wife’s- unfortunate disposition would have reasserted itself, and the same infelicitous condition of affairs, which had grown worse in later years, would have again confronted them. Perhaps, the defendant is helpless against her own unhappy temperament, and the cause may be largely pathological. It may be that the plaintiff feels, deep down in his inner consciousness, that his wife really loves him, and it may be he was more wearied and exasperated than wounded by her conduct. For a long time, at least, it was borne with much serenity. There are no findings of fact, and this court can do little more than speculate with reference to what determined the judgment. The evidence was chiefly oral. The court saw and heard the parties themselves, and applying the rules of appellate procedure, which are sound in principle and wholesome in result, this court is unable to say that the judgment is wholly without substantial foundation.
The division of property is quite as unsatisfactory as the order refusing a divorce. The defendant was charged, until further order, with the maintenance of the two children of the marriage, Ethel and Reynold, who were respectively-thirteen and ten years old at the time of the trial in April, 1915. The property divided was contributed and accumulated by both parties. It consists of a farm of 160 acres, a farm of 80 acres, a residence in Concordia, an interest in a clothing store in the city of Clyde, notes to the amount of $575, household goods and an automobile. The two farms are covered by a mortgage for $2500, and the plaintiff owes personal debts to the amount of $1370. The residence in Concordia was valued at $3000 and was given to the defendant. The plaintiff’s interest in the store at Clyde was valued at $4000, and was awarded to him. The household goods were given to the defendant and the automobile to the plaintiff, without valuation. The farm of 160 acres was given to the defendant, charged with $1300 of the mortgage, and the farm of eighty acres was given to the plaintiff, charged with the remainder of the mortgage. The plaintiff produced a real-estate agent as a witness who valued the larger farm at from $13,500 to $13,700, and the smaller farm at from $6500 to $6800. Another witness for the plaintiff valued the larger farm at $13,500 and the smaller farm at $6750. The defendant’s brother and another witness in her behalf valued the larger farm at $15,000 and the smaller farm at $5000. In the briefs each side recommends to this court the evidence of the other side. The plaintiff testified that the 240 acres of land were worth from $70 to $80 per acre. He was not asked to value the farms separately.
Taking the figures hiost favorable to the defendant, the net share apportioned to each party was as follows:
The defendant received:
Residence ...................................1. $3,000
Farm ..................................-...... 13,500
Total .................... $16,500
Less mortgage................;.'............... 1,300
Net value................................. $15,200
The plaintiff received:
Clothing-store interest ......................... $4,000
Farm ..............................,......... 6,800
Notes .............................. 575
Total ..................................... $11,375
Less: Mortgage ........................ $1,200
Debts ............................ 1,370
- 2,570
Net value................................. $8,805
On the evidence for the defendant, the account stands as follows:
The defendant received:
Residence ..................................... $3,000
Farm ........................................ 15,000
Total ..................................... $18,000
Less mortgage ............ 1,300
Net value................................. $16,700
The plaintiff received:
Clothing-store interest ......................... $4,000 .
Farm ........................................ 5,000
Notes ........................................ 575
Total ..................................... $9,575
Less: Mortgage ........................ $1,200
Debts ............................ 1,370
- 2,570
Net value................................. $7,005
The plaintiff testified that the land is worth from $70 to $80 per acre. If the farms are of equal value, and are worth $75 per acre, the account stands as follows:
The defendant received:
Residence ...................................... $3,000
Farm ......................................... 12,000
Total ..................................... $15,000
Less mortgage............■...................'.. 1,300
Net value.............. '$13,700
The plaintiff received:
Clothing-store interest ......................... $4,000
Farm ........................................ 6,000
Notes ...........'.............................. 575
Total ..................................... $10,575.
Less: Mortgage ........................ $1,200'
Debts ............................• 1,370
- 2,570
h{et value ................................. $8,005
Averaging these results, the defendant received more than $15,000 and the plaintiff less than $8000. What values the court deemed to be established by the evidence can not be known.
Years ago the defendant received from her relatives eighty acres of land. Afterwards half of the tract was sold for $900, and still later the remainder was sold for $2850. The funds derived from these sales were used and invested as common assets of the husband and wife. In the year 1909 the residence in Concordia was purchased for $2800 and title was taken in the wife’s name.
The plaintiff’s net income from his clothing store in Clyde was not shown, and the average net income from the two farms was not shown. The plaintiff’s physician testified, as follows:
“Have treated Mrs. Danielson professionally. I saw her this morning. She did not sleep any last night, and was extremely nervous. I treated her in the latter part of 1913. She was extremely nervous. That might be inherited, or it might be brought on from other causes. The majority of women after childbirth are nervous. She had some inflammation of the right ovary, and was lacerated some. She probably took treatments off and on for about six weeks. I have seen her occasionally since then. I think I treated her in February, 1915. Have probably seen her a dozen times within the last eight months or a year. In 1913 she was suffering from neurasthenia. I found her in the condition the majority of women are who have borne children. Her condition was no worse than the ordinary woman of that age. She improved under treatment. There was no more the matter with hér mind than you would find in any neurasthenic patient.”
The maintenance of the two children will be a financial burden on the defendant, but they can not be regarded as unqualified liabilities. The order respecting their maintenance may be changed at any time. The plaintiff carries life insurance for their benefit to the amount of $2500. The court’s purpose, at the conclusion of the trial, was to give the defendant a life estate in the larger farm, with the remainder in fee to the two children. Discovering that this could not be done, judgment was rendered as indicated, but the defendant immediately deeded the farm awarded her to the children, reserving a life estate to herself.
The statute reads as follows :
“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 he 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 either of them, as may he 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 said parties, and in such case the order of the court shall vest in the parties a fee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other.” (Civ. Code, § 668.)
A division of property under a statute of this character depends on the peculiar circumstances of the case. Some of the things to be considered, in addition to those specified in the statute, are the age, health, earning capacity, and future prospects of each party. The question here is not simply whether or not the district court was too liberal in its allowance to the defendant, but whether or not the division was so manifestly inequitable and unjust that this court should interfere. All the facts considered, the court concludes to let the division of property stand.
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 of mandamus to compel the prison board to grant the plaintiff a parole. A motion to quash the alternative writ was sustained, and the plaintiff appeals. The question is whether or not it becomes the mandatory duty of the prison board to grant'a parole if the statutory conditions have been complied with..
. The plaintiff was convicted of the crime of assault with intent to kill, and was sentenced to imprisonment for a period of from one to ten years. The substantive part of the petition follows:
“Plaintiff further alleges that during the time he has been so confined in the said penitentiary he has obeyed all rules and regulations of said institution, and that no charge of misconduct has been brought against him, and that he had never been confined in any penitentiary or convicted of any felony prior to the conviction herein mentioned; that he has served the minimum time fixed by law for the crime for which he was convicted, and that he has duly made application to the above-named defendants as a board of parole, to be paroled from said institution, and that he has produced to said board satisfactory evidence that arrangements have been made for his honorable and useful employment while upon parole in some suitable occupation, and that a proper and suitable home, free from criminal influence has been provided for him upon his release from said penitentiary on parole; but that notwithstanding said facts the said prison board have arbitrarily and illegally refused to grant the same.”
The indeterminate sentence law (Gen. Stat. 1909, §§ 6837-6845, Crim. Code, §§ 272a-272i)- looks to the rehabilitation , of persons imprisoned in the state penitentiary as law-abiding and useful members of society. To this end, the judge, before whom a prisoner was tried, and the county attorney, are required to furnish information relating to his disposition, character, associates, surroundings, and career, and other matters tending to throw light on whether or not he is capable of again becoming a good citizen. The prison board is required to adopt disciplinary regulations which will conduce to the welfare of prisoners, prevent them from returning to criminal courses, secure their reformation, and make them self-sustaining. A complete physical, mental and moral diagnosis of each prisoner is made when he enters the penitentiary, and the result is entered on a register kept for that purpose. On this register subsequent minutes-are made from time to time, showing-the method of treatment employed, improvement or deterioration in character, alterations affecting situation and standing, and other pertinent facts. (Gen. Stat. 1909, § 6840.)
The statutory grant of authority to parole reads as follows:
“The said prison board shall have power to establish rules and regulations under which prisoners within the penitentiary may be allowed to go upon parole outside the penitentiary building and inclosure, but to-remain while on parole in the legal custody and under the control of the prison board, and subject at any time to be taken back within the inclosure of said penitentiary. Provided, That no parole shall be granted in any case until the minimum term fixed by law for the offense has expired. And full power to enforce such rules and regulations and to retake and reimprison any inmate so upon parole is hereby conferred upon the warden, whose order, certified by the clerk of the prison, with the seal of the penitentiary attached thereto, shall be a sufficient warrant for the officer named in it to authorize such officer to apprehend and return to actual custody any conditionally released or paroled prisoner, and it is hereby made the duty of all officers to execute said order the same as ordinary criminal process. Provided, That no prisoner shall be released on parole until the said prison board shall have made arrangements, or shall have satisfactory evidence that arrangements have been made, for his honorable and useful employment while upon parole in some suitable occupation, and also for a proper or suitable home, free from criminal influence.” (Gen. Stat. 1909, § 6841.)
Section 6842 provides that no petition or other form of application, for either a parole or for final discharge, shall be entertained. Section 6845 provides that all paroles shall be approved by the governor before they become effective, and that no prisoner shall be eligible to be paroled who has airead;/ served two terms in any penitentiary. Section 6842 provides that a prisoner who, in the opinion of the warden, has' served six months of his parole acceptably, and given evidence of his trustworthiness, shall, if not incompatible with the welfare of’ society, be certified by the warden to the prison board for final discharge. The prison board considers the case and decides whether or not final discharge shall be recommended. If made, the recommendation ■ is made to the governor. If he approve, he commutes the sentence, to take effect at once, or at such time as he may think best. Section 6844 provides for retaking paroled prisoners who have become delinquent.
The plaintiff’s contention is that a parole is a reward which may be earned by complying with the statutory conditions. If the reward be thus earned, it can not be denied so far as the prison board is concerned and he is entitled as a matter of absolute right to have a parole go to the governor for his approval or disapproval. This contention is based on certain decisions of the Kentucky court of appeals interpreting the statute of that state (Acts, 1910, ch. 16) relating to the parole of convicts: Wilson v. Commonwealth, 141 Ky. 341; Board of Prison Comm’rs v. Smith, 155 Ky. 425; Board of Prison Comm’rs v. De Moss, 157 Ky. 289.
Section 1 of the Kentucky statute states that the board of penitentiary commissioners shall have power to parole persons confined in the penitentiary, to retake paroled prisoners under named conditions and when in the opinion of the board the welfare of the prisoner or of society demands, and to discharge finally. Section 2 reads in part as follows:
“No person so confined shall be eligible to parole, or entitled to the provisions of this act, until he shall have served the minimum term of imprisonment provided by law for the crime for which he was so committed, except prisoners committed for life, who shall have actually served five years; nor unless he shall have been obedient to the rules and regulations of the institution in which he is confined for at least nine consecutive months next preceding the date of his parole; nor until he shall have secured, or there shall have been secured for him, some respectable employment with some responsible person or concern at a compensation sufficient to render him self-sustaining. (Acts, Ky. 1910, ch. 16.)
Section 8 relates to final discharge, and contains a provision which reads as follows:
“But nothing in this act shall be construed as entitling such paroled prisoner to such final discharge, except at the discretion of the said board.”
In the decisions referred to the court made a point of the fact that “discretion” was expressly reserved to the prison board in section 8, but not in section 2. The substantial grounds of the decision were, however, that uplift rather than punishment is the chief purpose of detention, that this purpose may be furthered by offering a reward for good conduct in the form of an enlargement of liberty, and that section-2 guarantees to the convict his reward for good behavior.
In the case of Wilson v. Commonwealth, supra, it was said:
“When the act thus provides that no person shall be eligible to parole except on certain conditions, it necessarily means that those who comply with the conditions shall be eligible to parole. The act, therefore, defines who shall be paroled and does not commit to the commissioners arbitrary power, but imposes on them the duty to parole the prisoners whom the act declares eligible to parole, and this duty the board of prison commissioners may be required in a proper state of case to perform. Manifestly the standard fixed by these sections is so unmistakable in meaning and specific in character, as to enable the convict to know what his conduct must b'e to entitle him to the parole or discharge, and also to enable the board to know what will entitle him to either.” (p. 351.)
With great respect for the court of appeals of the state of Kentucky, this court is constrained to say that it does not feel at liberty to use the method employed in reaching the foregoing conclusions. The provision of section 1 of the Kentucky statute, whereby a paroled prisoner may be rearrested and reconfined when, in the opinion of the board, the welfare of the prisoner or the welfare of society demands, was ignored in the discussion. While the word “discretion” was not used, as wide a latitude was allowed the board as in section 8, and the difference between discretion to parole a prisoner on one day and discretion to reimprison him . on the next day does not seem very substantial. There is no express language in the act stating it to be the duty of the prison board to parole any one, and limitations on the power of the board, whereby the cases of certain prisoners are entirely withheld from consideration, do not, under any familiar rule of interpretation or of logic, constitute a positive mandate to parole others. Doubtless early release from confinement is an inducement to good conduct, but conduct merely submissive to rules of prison discipline does not of necessity indicate reformation of character, any more than faithful attendance at church of necessity indicates moral and religious character. Although a person sentenced to a term of from one to ten years may have broken no prison rule, it may be quite incompatible with his own welfare and with the welfare of society to parole him at the end of one year.
Besides what has been said, the scheme of the Kansas stat-. ute is quite different from that of the Kentucky statute.. In the Kansas- statute, as in the Kentucky statute, there is no express direction to parole anybody, but the instances in which no parole shall be granted are not grouped and categorically stated. They are scattered throughout the act as provisos and independent prohibitions. These provisos and prohibitions are not inserted so that a prisoner may know just what he shall do to earn a parole, because the prison board is given authority to establish rules beyond those prescribed by the legislature, under which paroles may be granted. Because the prison board is given authority to regulate the granting of paroles in all cases- except those expressly reserved by the statute, the reservations were not made to enable the board to know what will entitle a prisoner to a parole. The matter of conformity to rules of prison discipline is not mentioned in the statute as a qualification for parole. A prisoner is not permitted by himself or others to bring up the subject of his parole, by petition or other form of application. After the prison board has concluded to parole, the governor has' authority to consider the case and to approve or disapprove.
The Kansas indeterminate sentence statute was enacted in 1903 and was among the earlier laws on the subject. The need for a more flexible and beneficial system of penal sanctions was clearly grasped, but a sufficiently extensive fund of definite and classified experience in the administration of such a system had not been accumulated to warrant the legislature in doing more than adopt the system and settle some of the more obvious details. The extreme rigidity of the old system was one of the very things to be demolished. The success or failure oí the new system depended on its administration, and this was committed, except for a few directions and limitations, to the invention, good judgment and discretion of the prison board, .the warden of the penitentiary, and the governor, all cooperating for the welfare of the delinquents and for the protection and welfare of society.
The court is already committed to the foregoing interpretation of the statute, which it still regards as sound. In the case of In re Howard, 72 Kan. 273, 83 Pac. 1032, it was held that under the indeterminate sentence act the extreme penalty is imposed, but provision is made for its mitigation. Concerning the subject of mitigation, the court said:
“There are no provisions in the law under which the appellant was sentenced entitling him to any reduction oí time for good behavior, as matter of right. There are provisions authorizing the prison board to establish rules and regulations under which prisoners may he allowed to go upon parole after the expiration of the minimum time for' which they were sentenced, and by which they may be discharged six months after being paroled, but these are all matters of favor to be determined by the prison board, the warden, the judge who passed sentence, and the governor.” (The State v. Tyree, 70 Kan. 203, 207, 78 Pac. 525.)
The expression “matters of favor” was used in opposition to the expression “matter of right.” In the highest and truest sense, parole and discharge, under the indeterminate sentence law, are not matters of favor at all. The state penitentiary is a great character clinic maintained for the welfare of society, to be secured through the detention, correction' and development of those sentenced to confinement there because of unsocial conduct. Whenever sufficient strength and probity of character are indicated, after the minimum period of detention has elapsed, the prison bounds are enlarged by parole, not as a matter of grace or even of reward, but because the proper degree of moral progress has been achieved, and as the next stage in the treatment administered. When, after six months, such progress has been made that the paroled offender may be trusted, with safety to himself and to society, to govern his own conduct according to his own motives, the purpose of his restraint has been accomplished, and he is discharged. The law, however, does not undertake to determine definitely the time when a parole or a discharge shall be granted, or to enumerate indicia of trustworthiness which shall be sufficient to require parole and discharge. These are subjects committed to the sound official judgment and discretion of those appointed to administer the law.
Such being the meaning of the statute, as the court understands it, the plaintiff’s petition stated no cause for the issuance of the alternative writ of mandamus, and the judgment of the district court quashing the writ is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The district court quashed an information which purported to charge the defendant with a violation of the truancy law. The material facts were all pleaded, and these showed that the defendant was a resident of School District No. 13, in Harvey county; that the annual school meeting had voted to have an eight months’ school beginning in September, 1915; that the defendant was the parent of a child eleven years old; that in April, 1916, while the district school was in session, the defendant took his child out of the public school—
“And said defendant and parent placed said child, Henry Will, in a private school taught by a competent instructor, which said private school is taught in the German language, which said private school is of but two months’ duration, but continuing up to and after the public school in said district No. 13 is dismissed for the year, and which said private school does not teach all of the branches of education and subjects required by law to be taught in a public school, in this, to-wit, that said private German school teaches only the following subjects: German reading, German grammar, German spelling, German writing, Bible history, and a small amount of arithmetic; thereby said child, Henry Will, became and was irregular in attendance at school, and thereby he became and was absent from school three or more consecutive days, and thereby he became and was habitually truant from school.”
Other recitals in the information need not be quoted. ' The state appeals, specifying error in sustaining the defendant’s motion to quash. The appellant’s brief states the question thus:.
“The contention of The State is that a private school, in order to be recognized as a private school and come within the contemplation of the statute, must be equal in all respects to a public school and must comply with all the statutory requirements prescribed for said public schools; that the intent of the legislature in creating public schools and authorizing private, parochial or denominational schools was to make education compulsory to the degree specified by law. If this contention is not correct, or substantially correct, then, perhaps, the motion to quash is good and the trial court, perhaps, should be sustained; otherwise should he' reversed.”
Prior to 1903 the truancy act provided:
“That every parent, guardian, or other person in the state of Kansas, having control of any child or children between the ages of eight and fourteen years, shall be required to send such child or children to a pub- lie school or private school, taught by a competent instructor, for a period of at least twelve weeks in each year, six weeks of which time shall be consecutive, unless such child or children are excused from such attendance by the board of the school district, or the board of education of the city in which such parent, guardian or person having control resides, upon its being shown to their satisfaction that such parent or guardian was not able, by reason of poverty, to clothe such child properly, or that such child’s bodily or mental condition has been such as to prevent his attendance at school or application to study for the period required, or that such child or children are taught at home in such branches as are usually taught in the public schools, subject to the same examination as other pupils of the district or city in which the child resides, or that he has already acquired the ordinary branches required by law, or that there is no school taught within two miles by the nearest traveled road.” (Gen. Stat. 1901, § 6420.)
The present statute reads:
“That every parent, guardian or other person in the state of Kansas having control or charge of any child or children between the ages of eight and fifteen years, inclusive, shall be required to send such child or children to a public school, or a private, denominational or parochial school taught by a competent instructor, each school year, for such period as said school is in session: Provided, That any child of the age of fourteen years or more who is able to read and write the English language, and who is actively and regularly employed for his own support or for the support of those dependent upon him, shall not be required to attend the aforesaid schools for a longer period or term than eight consecutive weeks in any one year: Provided, That any and all children that have received a certificate of graduation from the common schools of any county or certificate of admission to a high school in any city of the state of Kansas shall be exempt from the provisions of this act: Provided, That the children who are physically or mentally incapacitated for the work of common schools are exempt from the provisions of this act; but the school authorities shall have the right, and they are hereby authorized, when such exemption under the provisions of this act is claimed by any parent, guardian, or other person in the control or charge of such child or children, to cause an examination of such child or children by a physician or physicians employed for such purpose by such authorities, and if such physician or physicians hold that such child or children are capable of doing the work in the common schools, then such child or children shall not be exempt from the provisions of this act.” (Gen. Stat. 1909, § 7736.)
It will be noted that the earlier act, in specific terms, provided that the children excused from public school attendance if taught at home should be instructed “in such branches as are usually taught in the public schools, subject to the same examination as other pupils of the district or city in which the child resides,” etc.,
In the later act, which obviously was for the purpose of improving the truancy law and providing means for its enforcement through truancy officers, the significant language of the earlier act concerning the course of study imposed on home-taught pupils is left out. There must have been a reason for that. The act of 1903 (Laws 1903, ch. 423, Gen. Stat. 1909, § 7736 et seq.) enlarges as to the kind of schools which a child may attend to excuse him from public school attendance. They may be either “private, denominational or parochial,” but nothing is said as to the course of study in such schools. These schools must be taught “by a competent instructor, each school year, for such period as said school is in session.” May we not assume that the legislature knew what it was about when it provided in the earlier act that if the child were taught at home it must be in the common-school branches and that the child should be subject to examination as other district and city pupils might be. This provision would serve a useful and almost necessary purpose to prevent a mere pretense of home instruction to avoid the consequences of the truancy law. In the later act, it will be observed that home instruction is no longer an excuse for nonattendance in school, but the number and kind of schools to which he may be sent are enlarged. They may be either private, denominational or parochial. The legislature may well have believed that if such schools were taught by a competent instructor the sufficiency and scope of the course of study would necessarily follow to fully qualify the child for his future duties as a citizen. The argument for the appellant, which we concede is supported by some most respectable authorities, virtually asks the court to rewrite into the present statute language which the legislature struck out when it revised the law in 1903. This we can not do.
If the conclusion here reached discloses a defect in the law which is of serious consequence to the educational work of the state the remedy lies with the legislature. Presumably this defendant’s child attended the public school from September until April while the public school was in session. When the private school began its term he attended it instead of the public school. In such case the child was not a truant. So long as his parent kept him regularly in attendance in the one school or the other, for such term as the school was in session, the truancy act, as it now reads, is satisfied. Since the legislature has refrained from exercising control over the courses of study in these private, denominational or parochial schools further than to require them to be taught by competent instructors, it is too much to ask the state’s prosecuting officers or its courts to meddle with them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J:
The action is one of quo warranto to try the title to the office of mayor of the city of Arkansas City.
The plaintiff and the defendant were opposing candidates at the election held in April, 1916. The defendant received the certificate of election. The petition charged that a sufficient number of votes to change the result should not be counted for the defendant, for reasons which were stated. The court appointed Hon. T. A. Noftzger, of Wichita, as commissioner to take the testimony and report findings of fact and conclusions of law. The commissioner’s report follows:
“FINDINGS OF FACT.
“first.
“Arkansas City, a city of the second class, had adopted the commission form of government. A Mayor was to be elected for the city in April, 1916, and for the purpose of selecting a candidate, a primary election was duly held, at which the plaintiff and defendant, who were both eligible to hold the office, were chosen for candidates for Mayor.
“second.
“The returns, from the city election duly and regularly held on April 4th, 1916, duly and legally made, showed that the defendant received 1250 votes and the plaintiff 1240 votes. The defendant received his certificate of election, duly qualified as Mayor, assumed the duties of the office on April 17, 1916, and has ever since performed them, and has been receiving the salary pertaining to the office which is One Thousand Dollars a year, payable monthly.
“third.
“The city of Arkansas City has never had an ordinance providing for election contests.
“fourth.
“G. W. Branine was a legal and qualified elector of Arkansas City on April 4, 1916, and entitled to vote for Mayor at the election held on that day. The defendant made such representations to him that under the circumstances he believed, and was entitled to believe, the defendant would appint him Police Judge of Arkansas City if the defendant shoulc. be elected Mayor, and on this account Branine worked and voted for the defendant at the election. (Abstract, pages 15, 16, 157-164, 166-168, 182, 183, 194, 195, 204, 213, 214, 218 and 219.)
“fifth.
“Mose Branine and Roy Branine, who are sons of G. W. Branine, and Mrs. Mose Branine and Mrs. Roy Branine, who are daughters-in-law of G,. W. Branine, were legal and qualified electors of Arkansas City on April 4, 1916, and were entitled to vote for Mayor at the election held on that day and they voted for the defendant for mayor because they were informed and believed that G. W. Branine had been promised the office of Police Judge by the defendant, and if it had not been for the belief that this promise had been made, and carried out, they would not have voted for the defendant. (Abstract, pages 15-19.)
“sixth.
“C. F. Betts, Sr., was a legal and qualified elector of Arkansas City on April 4, 1916, and entitled to vote for Mayor at the election held on that day, voted for- the defendant because the defendant promised to appoint him Chief of Police of Arkansas City if the defendant should be elected Mayor. (Abstract, pages 49-102, 143, 144, 151-166, 170, 171, 174-182, 192-194, 200-203, 212, 213 and 219.)
“seventh.
“Mrs. C. F. Betts, Sr., was the wife, C. F. Betts, Jr., was the son, and Mrs. C. F. Betts, Jr., was the daughter-in-law of C. F. Betts, Sr. They were legal and qualified electors of Arkansas City on April 4, 1916, and entitled to vote for Mayor at the election held on that day, and they voted for the defendant by reason of the promise which the defendant had made to C. F. Betts, Sr., to appoint the latter Chief of Police of Arkansas City if the defendant should be elected. (Abstract, pages 82-94, 98, 99, 177.)
“eighth.
“C. C. Patterson was a legal and qualified elector of Arkansas City on April 4, 1916, and entitled to vote for Mayor at the election held on that day, and voted for the defendant because he was informed and believed that the defendant would appoint C. F. Betts, Sr., Chief of Police, and because he was a friend of C. F. Betts, Sr., and desired to assist him in his obtaining this office. (Abstract, pages 99-101.)
“ninth.
“Elmer Wright was a legal and qualified elector of Arkansas City on April 4, 1916, and was entitled to vote for Mayor at the election held on that day, and was a friend and supporter of the defendant. He did not intend to be present and would not have been present at the election held at Arkansas City April 4, 1916, if the defendant had not promised to appoint him to an office if the defendant should be elected Mayor. By reason of this promise on the part of the defendant Elmer Wright, who intended to be away from Arkansas City at the time of the election, re mained and attended the election and voted for the defendant. (Abstract, pages 102-110, 180-190, 204 and 205.)
“tenth.
“Ora J. Wilkinson was a legal and qualified elector of Arkansas City on April 4, 1916, and entitled to vote for Mayor at the election held on that day and voted for the defendant at the request of Elmer Wright because he was under obligations to Elmer Wright and was informed and believed that the election of the defendant would be- to Wright’s interest. (Abstract, pages 110 and 111.)
“eleventh.
“W. P. Richards and Mrs. W. P. Richards, his wife, who were legal and qualified electors of Arkansas City on April 4, 1916, and entitled to vote for Mayor at the election held on that day, voted for the defendant because the latter had promised them that he would retain one Willis White in office as Police Judge of Arkansas" City. (Abstract, pages 116-120, 205, and 206.)
“TWELFTH.
“The plaintiff has not proven by a preponderance of the evidence that the vote of any other person other than those above named, was influenced in favor of the defendant by any promise made directly or indirectly by the defendant.
“CONCLUSIONS OP LAW.
“first.
“The votes of G. W. Branine and C. P. Betts, Sr., must be deducted from the votes received by the defendant as shown by the returns because these votes were directly the result of illegal promises.
“second.
“The votes of Mose Branine, Roy Branine, Mrs. Mose Branine, Mrs. Roy Branine, Mrs. C. P. Betts, Sr., C. P. Betts, Jr., and Mrs. C. P. Betts Jr., should be deducted from the votes cast for the defendant. These votes were procured indirectly by legal or illegal promises made by the defendant, and these voters all had a direct interest in the promises.
“third.
“The vote of C. C. Patterson should be deducted from the votes cast for the defendant because it was directly procured by reason of an illegal promise made to C. P. Betts, Sr. The defendant is not entitled legally to any benefit derived directly from that promise.
“fourth.
“The vote of Elmer Wright should be deducted from the votes cast for the defendant because he would not have voted for the defendant if it had not been for an illegal promise.
“fifth.
“The vote of Ora J. Wilkinson should not be deducted from the votes received by the defendant because while he believed that Elmer Wright would be benefited by the election of the defendant, he did not cast his vote on account of the knowledge of any illegal promise made by the defendant nor really because of any illegal promise made by the defendant merely to procure the attendance of Elmer Wright at the elec- • tion. The latter was in favor of the election of Gibson at all times and no promise that Gibson had made him influenced his vote. He did not procure Wilkinson to vote for the defendant on account of any illegal promise.
“sixth.
“The votes of W. F. Richards and his wife should not be deducted from the votes cast for the defendant because it was not illegal for the defendant to promise them that he would retain Willis White in .office as Police Judge of Arkansas City,'as they had no particular interest in Willis White except as a friend or that interest which might, arise out of their desire to have a good Police Judge. It was not improper for the defendant to state his views on that question which was one of the legitimate questions involved in the campaign for Mayor.
“seventh.
“I find therefore, that eleven (11) votes should be deducted from the votes cast for the defendant, and the plaintiff adjudged elected Mayor of Arkansas City. He is entitled to the office and its salary.”
Each party challenges the findings of fact and conclusions of law adverse to him. If those which are adverse to the defendant be approved they determine the case. Being challenged, the commissioner’s findings are adyisory only. In the solution of doubtful questions of fact, some weight may be given them because the commissioner had the advantage of personal observation of the witnesses while they were undergoing examination. With this exception the court considers the evidence as though it had been taken by deposition. .
The fourth finding of fact is challenged, and the challenge raises the question of what was said in a conversation between the defendant and G. W. Branine, in which the appointment of Branine as police judge in case the defendant were elected was discussed. In the course of Branine’s testimony different versions of the conversation may be found, some much stronger than others, against the defendant. Portions of Branine’s cross-examination, considered alone, would indicate that the substance of the defendant’s statement was, “If I am elected, why, you come and see me.” Other evidence corroborates this view. There was circumstantial evidence tending to show that no promise whatever was made, and the defendant gave an account of the conversation which not only exculpated himself, but negatived use of any of the various expressions at tributed to him. To debate the question at length would unduly extend this opinion, and would serve no beneficial purpose. The court is satisfied that Branine favored the plaintiff’s candidacy, and made the fact clear to the defendant; that Branine solicited a promise of appointment as police judge in the event the defendant was elected; and that in this instance, as in other instances disclosed by the evidence, the defendant undertook to secure .votes and work for his election by the use of equivocal language, which would satisfy the person desiring appointment and secure the results which the defendant desired, but which would leave a margin for denying any “engagement,” “contract,” or “agreement.” Branine’s first recital of what the defendant said probably included a conclusion with respect to the effect of what was said. At the outset of his cross-examination he was startled, and for some time was disturbed, by being bluntly confronted with the proposition that he had sold his vote. The substance of the conversation is of course all that is material, and the court believes the defendant responded to Branine’s solicitation in terms approximately summarized in the following version of the conversation:
“Q. Did Mr. Gibson in that conversation use this language in substance, “If I am elected I will give you the office of Police Judge’? A. Well, he said- — I asked him for it.
“Q. Yes, and what did he say? A. He said, ‘If you will work for me and vote for me, that’s all right; and if I am elected Mayor, why, you come and see me.’ ”
The ninth finding of fact is challenged; The court accepts the following testimony of Elmer Wright as substantially accurate and substantially true:
“A. Well, I would have to say that I judge about a week, yes about a week, before election, he heard I was going away and he said, ‘Mr. Wright, I learn you are going away,’ and I said ‘Yes.’ He said, ‘Mr. Wright, you are one of the best workers I got; I can’t afford to have you go away. You understand now, the law don’t allow me to make any promises; that’s the only reason why I can’t give you a job right now, understand,’ he says, ‘I want you to stay and work for me.’
“Q. Did you say whether you would stay or not? A. I believe he said, ‘I want you to promise me and say that you will stay until after this election, for it’s going to be a close fight and I need your support.’
“Q. And did you stay? A. I did.
“Q. You had intended going away? A. I had.
“Q. And did you vote for Mr. Gibson in that election for Mayor. A. I did.
“Q. When you were talking to him about going away, did you tell him why you were going? A. I did.
“Q. Then he said you were one of his best workers? A. Yes.
“Q. What else was said there? A. I was one of his best workers and he could n’t afford to have me go, and ‘You understand,’ he said, ‘the law don’t allow me to make promises, understand me, Elmer, is the only reason why I can’t promise you a job right now.’
“Q. You understood by that that he would get you some position or place, if he was successful, and you stayed and worked for him? A. Well, it left that impression.
“Q. You felt that way about it? A. I did.
“Q. And relied upon it? A. Yes.
“Q. And by reason of that you stayed, when otherwise you would have gone away? A. Yes.
“Q. Was there anything said there about his having any jobs or ap- _ pointments to make? A. He did.
“Q. What did he say about that? A. He said in the conversation— don’t know whether it came before of after — he said he would have several good jobs after election.”
In this instance the defendant was the moving party. He sought the voter and procured the voter to change his plans, remain in Arkansas City, and vote and work for the defendant, by assurances of appointment to office, not a whit less clear and definite to the understanding because of the protest that the law permitted no promise to be made.
Other findings of fact adverse -to the defendant are sustained by the weight of the evidence.
Section 6 of article 5 of the constitution reads as follows:
“Every person who shall have given or offered a bribe to procure his election shall be disqualified from holding office during the term for which he may have been elected.”
The crimes act contains the following provisions:
‘Tf any person shall directly or.indirectly give or procure to be given, or engage to give, any money, gift or reward, or any office, place or employment, upon any engagement, contract or agreement that the person to whom, o,r to whose use, or on whose behalf such gift or promise shall be made, shall by himself or any other, procure, or endeavor to procure, the election of any person to any office, at any election by the electors, or any public body, under the constitution or laws of this state, the person so offending shall on conviction be adjudged guilty of bribery, and punished by imprisonment and hard labor for a term not exceeding-five years.
“If any person, by himself or any person employed by him, shall, by-gift or reward, office or employment, or by any promise, agreement or. security therefor, corrupt or procure or attempt to corrupt or procure any person who shall have or claim to have a right to vote at any election, to give or forbear to give his vote at such election, the person so offending shall on conviction be adjudged guilty of bribery, and punished as in the next preceding section is prescribed.” (Gen. Stat. 1909, §§ 2688, 2689.)
The corrupt practices act contains the following provision:
“Any person who shall directly or indirectly give or procure to be given or promise to give any money, gift or reward, or any office, place or employment, upon any engagement, contract, agreement or understanding that the person to whom or for whose benefit such gift or promise shall be made, shall, by himself or any other person, procure or endeavor to procure 'or work for the election of any person to any public office at any election, shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the penitentiary for not more than two years, or both.” (Gen. Stat» 1909, § 3283.)
Other statutory provisions deal in similar manner with, other branches of the same general subject, and there can be-no doubt respecting the public policy of this state with reference to the giving or promising of money, property, office, employment, or other reward or thing of value, to influence electors in the exercisé of their franchise. The books are full of' homilies which have been delivered by the courts on this subject. It is not necessary to indite a new one. This court has. already expressed itself, and it will be sufficient for present, purposes to bring forward some extracts from the opinion,, prepared by Mr. Justice Brewer, in the case of The State v. Elting, 29 Kan. 397:
“That a purchased vote given for an individual candidate for office, is not to be counted, is conceded. So also that a candidate for office who-purchases a vote therefor is not to have the office, is also beyond question. ... As a consequence of these rules it has been held, that a. candidate for an office to which is attached a fixed salary, who offer's to-the electors to discharge, if elected, the duties of such office at less than the stated salary, is not entitled to have counted for him any votes given in consideration of such promise. [Citing cases.] ... In the case-from 36 Wis., [The State, ex rel., v. Purdy, 36 Wis. 213] the court,, after referring to a number of authorities, uses this language:
“The doctrine which we think is established by the foregoing authorities, and which we believe to be sound in principle, is, that a vote given. for a candidate for a public office in consideration of his promise, in case he shall be elected, to donate a sum of money or other valuable thing to a third party, whether such party be an individual, a county, or any other corporation, is void.’
“We have no doubt of the correctness of this doctrine; and in view of the fact that the great danger which now lies in the path of free institutions is the use of money in elections, the scope of this healthful, doctrine should in no manner be limited or abridged by the'courts. The purity of the ballot-box should be insisted upon at all times and in all places. Only -in that way can be upheld and maintained the integrity, and therefore the permanence, of popular government. . . . When a candidate gives an elector personally money or property, there is a direct attempt to influence his. vote by pecuniary considerations. The expectation is that such vote will be controlled, not by the elector’s judgment of the fitness of the candidate for the office, but by the pecuniary benefit he has received. In other words, it is money and not judgment which directs the ballot; and so the election turns not on considerations of fitness or public good, but of private gain. Let such be tolerated, and elections will be simply the measure of the size of the candidates’ purses. In the closing and degenerate days of Rome’s august empire, preceding its immediate downfall, the imperial purple was sold at public auction to the highest bidder. Equally base and equally significant of present decay and impending down-fall would be the toleration of the private purchase of electoral votes. That which is wrong when done directly, is equally wrong when done indirectly. Salaries are paid by taxation, and when a candidate offers to take less than the stated salary, he offers to reduce pro tanto the amount of taxes which each individual must pay. If the candidate went to each elector and offered to pay one dollar of his taxes, that clearly would be direct bribery; and when he offers to take such a salary as will reduce the tax upon each tax-payer one dollar, he is indirectly making the same offer of pecuniary gain to the voter; so that those cases rest upon the simple proposition that the election of a candidate for office can not be secured by personal bribery offered directly or indirectly to the voter. ... A further question may arise when the offer of the candidate carries with it no pecuniary benefit to the voter. As, for instance, should a candidate for a county office offer to give if elected a portion of his salary for the erection of a public fountain; or, if a candidate for a state office should offer if elected to endow a chair in some college; here it may be said that the voter is in no way influenced by considerations of personal gain. He receives no money in hand, his taxes will not be reduced, and he may in no manner be pecuniarily benefited by the donation. This presents a case going still beyond those which have been decided, and yet very probably the same decision should control such a case, and for this reason: wrong considerations are thrown into the scale to influence the vote of the elector.. The theory of popular government is that the most worthy should hold the offices. Personal fitness — and in that is included moral character, intellectual ability, social standing, habits of life, and political convictions — is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent tends to weaken the power of personal fitness, should not be tolerated.- It tends to turn away the thought of the voter from .the one question which should be paramount in his mind when he deposits his ballot. It is in spirit at least, bribery, more insidious, and therefore more dangerous, than the grosser form of directly offering money to the voter.” (pp. 399-401.)
■ Applying the principles enunciated in the foregoing discussion to the facts of the present case, the votes of Branine, Wright, and Betts, sr. (finding No. 6) were void. If the consideration had been money, and the subject lay within the field of lawful contract, each of those voters could recover from the defendant in an action on an express “engagement,” “contract,” or “agreement.” Beyond this, however, the court will not palter with forms of expression devised to avoid disqualification to hold office or penal consequence, but which attain unlawful ends. Conceding that no engagement, in the strict contract .sense of the term, was entered into, because the defendant employed oblique phrases, he did in fact corrupt the minds of those voters to the same extent and by appealing to the same motives as if he had outspokenly and unreservedly bound himself. The method which he chose is merely a refinement on the old, coarse form of plain promise, 'and accomplished bribery in the sense in which the term is used in proceedings of this character.
The votes of the persons named in the fifth, seventh, and eighth findings can not be counted for the defendant. The law would be very impotent if it failed to follow corruption as far as it contaminates, and to deprive the instigator of every benefit accruing to him because of it.
The votes of C. C. Patterson (finding No. 8) and Elmer Wright (finding No. 9) were not challenged in the original petition. The evidence relating to those votes was taken by the commissioner in connection with the other evidence. Afterwards the court permitted the petition to be amended to' include charges that those votes, and some others not referred to in the original petition, were void and should not be counted for the defendant. The order permitting the amendment reserved for future determination its effect on the evidence already taken. The defendant objects to consideration of the charges contained in the amendment and seems to regard the amendment as not yet sanctioned. The amendment was specifically allowed. The reservation applied merely to such legal questions arising on the evidence as were properly determinable only at the final hearing, and was made in order that allowance of the amendment should not be taken as an indication of how such questions might be decided. The issue respecting Wright’s vote was fully tried, and the issue respecting Patterson’s vote appears to have been fully tried. The amendment was allowed on August 3, 1916. The commissioner’s findings were not filed until November 2. No application was made to him or to this court for permission to take additional evidence, and no showing of prejudice resulting from the amendment has been tendered. Therefore the objection to consideration of the amendment is overruled.
The court finds for the plaintiff. The judgment is that he is the duly elected mayor of Arkansas City and is entitled to exercise the rights and privileges and to enjoy the emoluments of such office; that the defendant be ousted from the office and the plaintiff be placed in possession thereof; that the plaintiff recover from the defendant the salary of the office appropriated by the defendant while acting as mayor, in the sum of-dollars; and that the plaintiff recover his costs. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff was the register of deeds of Republic county for the term included in the years 1911 and 1912. During that time he purchased a typewriter for the use of his office. He also found that several thousand old chattel mortgages, which had been recorded in his office, and which had accumulated since 1888, had not been indexed and destroyed by his predecessors in office as provided by statute. He indexed some twelve hundred chattel mortgages, preparatory to their destruction, and presented a bill against the county for $36 for this service. This was allowed and paid.
The plaintiff also indexed, preparatory to their destruction, all the other old chattel mortgages on file, some seven thousand eight hundred and five in number, and presented a bill against the county for this service, and likewise for the price of the typewriter. This bill was rejected. Whereupon plaintiff brought this action, alleging the pertinent facts.
The general verdict and judgment was against the plaintiff, and he appeals.
The plaintiff’s petition set out a copy of his verified claim against the county. Defendant’s answer was not verified. This, the plaintiff contends, entitled him to judgment under section 110 of the civil code. We think not. The correctness of the account goes as a matter of course when not denied under oath, but not the legality of the account. The purpose of the code section is to avoid unnecessary waste of time proving the accuracy of facts not seriously in dispute. (Alexander v. Barker, 64 Kan. 396, 67 Pac. 829.) “Defenses like illegality . . . may be alleged and proved without verifying the answer.” (Jewelry Co. v. Bennett, 75 Kan. 743, 745, 90 Pac. 246.)
The failure of the defendant to deny the plaintiff’s account, under oath, had the effect of admitting that the plaintiff had indexed the number of old mortgages as set forth in his account, and admitted that he had furnished one typewriter. Perhaps it also admitted that the charges for indexing and for the typewriter were fair and reasonable, although if the statutory fees were less than those sought to be exacted the failure to verify the defendant’s answer would not charge the county with a larger sum merely because it was claimed in the account. Nothing was said in Read v. Dodsworth, 95 Kan. 117, 147 Pac. 799, nor in Hayes v. Insurance Co., 98 Kan. 584, 158 Pac. 1107, which affects the present question.
The statutes (Gen. Stat. 1909, §§ 5240-5242) which provide for the return of satisfied chattel mortgages or their destruction and the destruction of all expired mortgages by the register of deeds in the presence of the board of county commissioners, prescribes the duty of the register of deeds as to chattel mortgages which fall into any of these classes within his term. Those which have been satisfied should be returned to the mortgagor. Those which have been satisfied but not returned because the mortgagor can not be found should be indexed and destroyed by the register in the presence of the county board. The third class, being those which have expired by reason of being on file five years and not renewed, should likewise be timely destroyed. All these duties devolve upon the register of deeds in their time and season. If such have not been timely done by his predecessors, he can not, of his own volition and industry, rake up all the old, outlawed and worthless chattel mortgages, which have accumulated through the official negligence of his predecessors for a generation, and make a legitimate bill against the county by indexing them. The county should not be called upon to pay for such service — at least not without a definite order of the county board or a contract with the board to that effect. Here the plaintiff contended that he had an implied contract with the board, founding it upon the board’s payment of his first bill and by his personal conversations with individual members of the board, and by their conduct. A most liberal instruction in plaintiff’s favor was given to the jury covering this phase of the case, and the general verdict is conclusive that no contract existed.
Touching plaintiff’s item for the typewriter, which he purchased for the use of his office, it would never do to sanction a claim like this. If the register of deeds may buy a typewriter for his office and charge the county therewith, every county officer could likewise buy whatever he might conceive to be necessary or convenient for his office, and charge the county therewith. In such a situation the financial managers of the county’s business, its county board, would be stripped of their authority, and no prudence on their part would or could control the county’s expenditures.
We perceive nothing further in this case which needs discussion, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
An action was begun to foreclose a tax lien on the land in controversy, summons was issued to the defendant and returned not served for the reason that the person named therein could not be found in the county. A proper affidavit was made and service by publication followed. Foreclosure was had and the land was sold. This action was brought to eject the defendant, who answered that at the time the foreclosure action was brought and at all times thereafter she was a resident of Wyandotte county, Kansas, and that such residence could have been easily ascertained as she had relatives living in Miami county; that no summons was served upon her and that she was not in court either personally or by attorney at any time during the pendency of the action. The answer was supported by her testimony, the court ruled in her favor, and the plaintiff appeals.
The question involved is whether or not the defendant could, for the reason suggested, attack collaterally the judgment rendered in the foreclosure case. It is claimed that because no actual service was made upon the defendant the court was without jurisdiction to foreclose the lien, that the judgment was void and she had a right in this action to avail herself of its invalidity. It seems to be conceded that the defendant should have been served personally, but it is argued that not having opened up the judgment by a direct attack she could not do so indirectly or collaterally. The statute provides that:
“If the defendants or either of them are non-residents, service may be made by publication, when there is filed with the- clerk an affidavit that such defendants to be served are non-residents of the state, or that the plaintiff with due diligence is unable to make personal service of summons upon said defendant or defendants.” (Gen. Stat. 1909, § 9521.)
It is urged that as the defendant was a resident service by publication gave the court no jurisdiction. It has been held that under a similar statute the judgment could not be attacked collaterally for any supposed irregularity which did not affect the jurisdiction of the court. (Pritchard v. Madren, 81 Kan. 38, 2 Pac. 691; English v. Woodman, 40 Kan. 412, 20 Pac. 262; McGregor v. Morrow, 40 Kan. 730, 21 Pac. 157.) In Williams v. Kiowa County, 74 Kan. 693, 696, 88 Pac. 70, it was said that the proceeding under the present statute is judicial and follows the course of civil proceedings generally. In Atchison County v. Challiss, 65 Kan. 179, 69 Pac. 173, in the course of the opinion it was said: “Nor could service by publication be obtained, because such constructive service is only provided in case of nonresidents of the state” (p. 181), but the question now presented did not arise in that case. Under the authority of Blair v. Blair, 96 Kan. 757, 153 Pac. 544, and cases cited, the affidavit and notice by publication gave the court jurisdiction, although as a matter of fact the plaintiff may have been a resident of Kansas, and having jurisdiction the judgment of the trial court in that case can not' be held to be void. In Davis v. Land Co., 76 Kan, 27, 90 Pac. 766, this court refused to follow the decision of another court that a “false affidavit can not confer jurisdiction.” (p. 30. See, also, Ogden v. Walters, 12 Kan. 282, 295; Caldwell v. Bigger, 76 Kan. 49, 90 Pac. 1095; Duphorne v. Moore, 82 Kan. 159, 107 Pac. 791; Morris v. Bobbins, 83 Kan. 335, 111 Pac. 470; Bell v. Bell, 97 Kan. 616, 156 Pac. 778.) ,
Whatever rights the defendant may have had or may still have under section 83 of the civil code it is impossible to escape the conclusion that in this action brought by the grantee of the purchaser at the foreclosure sale, she can not for the mere reason that she was not personally served in the foreclosure action successfully attack the judgment therein.
The judgment is reversed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs obtained judgment against the defendant for the face value of a fire insurance policy covering their business building and its contents. The defendant appeals, admitting its liability on the building but complaining of the judgment as to its liability on the personalty.
■ The pleadings and the plaintiffs’ evidence develop the facts : The plaintiffs, father and son, were partners in a mercantile business in South Mound, in Neosho county. The defendant issued to them a fire insurance policy in two items, $1200 on their business building and $2000 on their stock of merchandise. By the terms of the insurance policy the assured agreed to take an annual inventory and to keep a set of books showing a complete record of business transacted, including all purchases and sales for cash and credit, and further recited:
“Warranty to Keep Books and Inventories and to Produce them in Case of Loss.
"The following covenant and warranty is hereby made a part of this policy. \ . .
“3d. The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fire-proof safe at night, and at all times when the building mentioned in this policy is not actually open for business, or failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building.
“In the event of failure to produce such set of books and inventories for the inspection of this Company, this Policy shall become null and void, and such failure shall constitute a perpetúa! bar to any recovery thereon.”
The plaintiffs’ building and merchandise were burned in the nighttime and they notified the insurance company. The adjuster arrived at South Mound about ten days after the fire. He ascertained that the inventory and books had not been kept in the safe as the policy provided and that they had been destroyed by the fire. Crandon, sr., was absent from home. The adjuster talked with the son, who testified:
“Q. Did he at that time make any offer of settlement of the loss? A. Well, he said that he did n’t owe us anything only for the building.”
Crandon, sr., testified:
“He (the adjuster) come out to South Mound. I was not at home but learned he was there and he left word for me to meet him at Parsons the next morning which I did. My son, who was my partner, accompanied me to Parsons. We met Mr. Fort (the adjuster) at the Matthewson house hotel.
“Q. Did you then talk over the loss and the circumstances of it? A. I think so, yes, sir.
“Q. Was the matter of the manner in which you had kept your books discussed at the time? A. I think it was.
“Q. Were the invoices that you had taken at your last invoice also burned up in the building? A. They were.
“Q. These invoices and your books were not kept in the iron safe? ■A. No, sir.
“Q. Did you talk that all over with Mr. Fort at that time . . . ? State what was done and what was said in substance as nearly as you can . . . What offer of payment or settlement, if any, the adjuster of the company, 'Mr. Fort, made to you and your son at that time and place? A. He offered to make a settlement for $2200.
“Q. What did he say, if anything, Doctor, about the custom of the company to pay one-half? A. He said that he did not consider the company owed me anything only what the building was insured for, $1200, but in order to make a settlement he would give me $2200 for the total loss and I declined to accept that.
“Q. If anything was said at the time, Doctor, with regard to you and your son being willing to make, and offered to procure from the wholesale houses invoices to supply him with the information? A. He said that he did not care anything about those.”
The son testified:
“ Q. Did you afterwards meet the adjuster in Parsons? A. Yes, sir; the next day.
“Q. Who accompanied you to Parsons? A. My father.
“Q.. At that time, what if anything, did he say to you about adjusting the loss, or about any payment that he was willing to make? A. He said he really did not owe us anything but for the building, but he would give us 50% of the insurance on the stock, which insurance on the building and the stock he offered us $2200 and there was $3200.
“Q\ At that time and prior to that time had yon talked over the fact with him that the policy of insurance was burned up and that the invoices were also burned up? A. Yes, sir.
“Q. And had you prior to that time talked over the fact that the books and the invoices were not kept 'in an iron safe? A. We told him that they were not in there because they were burned up.
“‘Q. He knew all that? A. He certainly did.
“Q. Did you have any conversation with him at that time about procuring from the wholesale houses duplicate invoices? What was said on that subject? A. I told him we could get them and he said he was not asking for them.
- “Q. Is that the last time you saw the adjuster with regard to any settlement? A. Yes, sir.”
The above are the main features of the plaintiffs’ evidence. No evidence was offered by the defendant.
The defendant contended below and contends here that its liability was limited to the sum for which the building was insured and that it was altogether relieved from liability for the loss of the merchandise under the terms of the policy and the plaintiffs’ evidence. Counsel for the plaintiffs argue that the failure to keep the inventory and books of the business so that the insurance company could definitely ascertain the amount of the plaintiffs’ loss, according to the terms of the'policy, was waived by the defendant’s adjuster by the following acts and omissions on his part: (a) Notwithstanding he was informed when he came to South Mound that the inventory and books had not been kept in an iron safe he arranged to meet them next day at Parsons for the purpose of adjusting the loss; (b) His offer to pay $1000 of the insurance on the merchandise; and .(c) The company’s retention of the unearned portion of the premium on the insurance policy.
Neither of these nor all of them together can fairly be said to amount to a waiver. The son, who was a partner, was informed by the defendant’s adjuster on the latter’s first arrival in South Mound that the company denied liability on the merchandise. The father being absent, it was but natural and proper that the adjuster should wish to make an appointment with him for the next day. At their meeting next day the adjuster dealt with the plaintiffs frankly, and clearly informed them of the company’s nonliability for the loss of the merchandise, but offered to pay them $1000 thereon notwithstanding it was not liable under the policy. It is elementary that a person may voluntarily offer to settle and pay a part of a demand without prejudicing his position if the demand afterwards becomes the subject of a judicial controversy. Touching any unearned portion of the premium, if the plaintiffs are entitled thereto, that matter was also covered by the policy. It reads in part: “Upon demand of the assured the. unearned premium . . . shall be returned.” It does not appear that any demand for the return of any unearned portion of the premium was made, and aside from the clause just quoted, the policy does not seem to contemplate a return of unearned premium. Moreover the consideration was an entirety covering the building as well.as the'merchandise, and since it admits its readiness to pay the loss on the building it should not now be required to return any part of the consideration.
We find nothing in this case which even approaches a waiver of the plain and positive terms of the .insurance contract touching the* necessity that the inventories and books showing the state of the business should be kept in a fireproof safe so that they would be forthcoming for the inspection of the company if a fire loss was claimed on the merchandise. Disregard of this precautionary stipulation to keep the inventories and books of the business in a fireproof safe or otherwise so that they will not be destroyed by fire and so that the insurance company may verify the loss and avoid being imposed on by overinsurance defeats recovery. (Insurance Co. v. Knerr, 72 Kan. 385, 83 Pac 611; Insurance Co. v. Stahl, 72 Kan. 578, 83 Pac. 614; Hammond v. Insurance Co., 92 Kan. 851, 142 Pac. 936; Joffe v. Niagara Fire Ins. Co., 116 Md. 155, and cases cited; 19 Cyc. 761-764. See, also, citations in Note, 28 L. K. A., n. s., 338.)
Cases where the conduct of the insurance company was held to waive its policy clauses requiring inventories and books to be kept in fireproof safes and the like have been cited by the plaintiffs, but none of them rest on such shadowy grounds as are urged to support a waiver in the case at bar.
In Joffe v. Niagara Fire Ins. Co., supra, it was said:
“When there is no question about . . . the loss having been without the fault or negligence of the owner, courts naturally shrink from placing such an interpretation on a clause of this kind as will deprive the owner of a right to recover, by reason of a purely technical defense, if that can be properly avoided, but even then when the terms of the contract are clear and unambiguous, courts have no right to make new contracts for the parties, or ignore those already made by them simply to avoid seeming hardships. A review of the many decisions on this Iron Safe Clause will show a tendency in some instances to do more for the protection of the insured than they seemed ready to do for themselves, although, the clause has been very generally recognized as valid and' reasonable, and has been declared to be useful and desirable, not simply for the insurer but for the honest insured.” (p. 160.)
Some minor technical questions raised by the plaintiffs hardly need discussion. In a case so simple as the foregoing it would not do to dismiss the appeal because the abstract does not refer to the pages of the transcript. The attorney’s certificate at the conclusion of the abstract is sufficient. The transcript was completed on December 7, 1915, within seventeen days after judgment in the court below. Counsel for the defendant neglected to file it with the clerk of the district court as required by section 574 of the civil code until December 23, 1916,’ when their attention was called to the matter in plaintiffs’ brief. The abstract had been served upon counsel for the plaintiffs several months earlier, and it was filed in this court on April 18, 1916. It is not contended that the abstract is not sufficiently .complete for the purpose of review and an examination of the transcript discloses no discrepancy, nor can we discern how the belated filing of the transcript in this case prejudiced the plaintiffs in the slightest degree. It might well be otherwise if there was disputed testimony or any controversy over the facts. But we are bound to heed the admonitions of section 581 of the code which enjoins us to disregard technical errors which do not prejudicially affect substantial rights.
The cause is reversed and remanded with instructions to modify the judgment, and to reduce it to the sum of $1200. | [
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Rulon, C.J.:
J.T. appeals from an order which terminated his parental rights as the natural father of M.D.K. under K.S.A. 59-2136(h)(4) for failure to provide support to the mother during the 6 months prior to M.D.K.’s birth. We affirm.
D.K., M.D.K.’s mother, and J.T. began a romantic relationship in Februaiy 2000. D.K. became pregnant with M.D.K. in May 2000 during a 3-week period in which the couple was living together. J.T. did not assist D.K. with any bills during this cohabitation but purchased approximately $100 worth of groceries. J.T. became aware of D.K.’s pregnancy in June 2000. Initially, D.K. and J.T. discussed tire possibility of marriage. However, the relationship soured and ended in July 2000. M.D.K. was bom February 22, 2001.
Beginning in August 2000, D.K. lived with her parents, who supported her throughout her pregnancy. J.T. knew where D.K. lived and worked. From September 2000 to December 2000, J.T. called D.K. approximately once a month. D.K. often told J.T. to stop calling her. In December 2000, D.K.’s mother told J.T.’s mother that she would obtain a restraining order if J.T. continued to call. J.T. estimated he called D.K. approximately five times in the 6 months prior to M.D.K/s birth.
D.K. claimed she asked for financial assistance from J.T. on more than one occasion but was rejected. D.K. asserted that J.T. never asked if she needed anything and that she never refused support from J.T. J.T. testified D.K. made no requests for money and, instead, told him everything was going well and that she did not need anything. J.T/s mother also asked D.K/s mother if they needed anything and was told no. As we understand, J.T. was advised by legal counsel that he was not required to pay support until a court had issued a custody and support order.
At J.T/s urging, J.T/s parents bought D.K/s car from her for $8,000, in hopes of alleviating her financial difficulties. This amount was $245 more than D.K. owed on the car. In August 2000, J.T/s mother bought blankets and a picture frame for D.K., which J.T. delivered to D.K. J.T/s mother and grandmother also made a quilt for M.D.K., which was given to D.K. after M.D.K/s birth, along with some baby clothes.
J.T. held three jobs in the last 6 months of D.K/s pregnancy. From September to December 2000, he worked part-time at U.P.S. and at a retail store, making approximately $170 a week. At that time, J.T. was living rent free with his parents. In December 2000, J.T. began working full-time in Iowa, earning more than $1,200 per month. J.T. added M.D.K. to his work health insurance policy after M.D.K/s birth. J.T. did not inform D.K. of this coverage. J.T. also testified he bought clothes for M.D.K., but that he never delivered them.
About 4 days after M.D.K/s birth, J.T/s mother called D.K/s mother to inquire about the status of the baby but was not told of the birth. The action to terminate J.T/s parental rights was filed in July 2001. J.T. first sent financial support for M.D.K. in September 2001, then sent an additional payment in November 2001.
Following the termination of J.T/s parental rights, D.K/s parents (petitioners) became M.D.K/s adoptive parents with D.K/s consent.
To terminate parental rights in an adoption proceeding, the appellate court searches the record to determine whether substantial competent evidence exists to support the trial court’s findings of fact. It does not reweigh the evidence, substitute its evaluation of evidence for that of the trial court, or decide the credibility of the witnesses. The evidence is reviewed in the light most favorable to the prevailing party. In re Adoption of A.P., 26 Kan. App. 2d 210, 216, 982 P.2d 985, rev. denied 268 Kan. 886 (1999). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In re Adoption of Baby Girl S., 29 Kan. App. 2d 664, 29 P.3d 466 (2001) aff'd 273 Kan.71, 41 P.3d 287 (2002) (adopting Court of Appeals opinion).
K.S.A. 59-2136(h) provides in pertinent part:
“[T]he court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
“(4) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth.”
J.T. first argues that he provided D.K. with “substantial support” in the 6 months prior to M.D.K.’s birth.
As contemplated by K.S.A. 59-2136(h)(4), the term “support” does not include a requirement that “the father provide total support for the mother; however, support that is incidental or inconsequential in nature is not sufficient.” Such support “must be of some consequence and reasonable under all of the circumstances.” In re Adoption of Baby Girl S., 29 Kan. App. 2d at 667. This duty includes “not only the [common-law] duty of financial support, but also the natural and moral duty of a parent to show affection, care and interest toward his or her child.” In re Adoption of B.M.W., 268 Kan. 871, 873, 2 P.3d 159 (2000). Additionally, mere general offers of support are not sufficient. In re Adoption of Baby Girl S., 29 Kan. App. 2d at 668.
There is minimal evidence of support from J.T. in the 6 months prior to M.D.K.’s birth. J.T. primarily relies on his parents’ purchase of D.K.’s car as proof of support. The trial court found that the amount paid was “nothing more than return of net worth” and merely fair market value. As such, D.K. was not really in any better financial condition than she was prior to the sale.
The only other support possibly provided to D.K. during the relevant statutory period consisted of some blankets and a picture frame, which were delivered by J.T. in August 2000. Such items do not rise to the level of “some consequence” as required by K.S.A. 59-2136(h)(4). See In re Adoption of Baby Girl S., 29 Kan. App. 2d at 667.
J.T. argues the health insurance provided by him for M.D.K. should be considered as support for D.K. However, J.T. did not inform D.K. of the insurance and, furthermore, there was no insurance coverage until after the birth of M.D.K.
As far as nonfinancial support provided by J.T. during the statutory period, the record reveals such was essentially nonexistent. J.T. called D.K. approximately once a month from September to December 2000. These phone calls generally resulted in D.K. becoming physically upset.
J.T. further argues that he had reasonable cause for failing to provide the required support. J.T.’s basis for this assertion is that he was financially unable to provide support and that he was “thwarted” in his efforts to do so by D.K. and her mother.
This court has stated that in determining if a father has reasonable cause for failing to provide support to the mother for the statutory period, all relevant circumstances must be considered. In re Adoption of Baby Girl S., 29 Kan. App. 2d at 667. In making this determination, courts “must determine whether the natural father has pursued the opportunities and options which were available to carry out his duties to the best of his ability. [Citation omitted.]” In re Adoption of Baby Boy W., 20 Kan. App. 2d 295, 299, 891 P.2d 457 (1994).
“ ‘[W]here a trial court finds that a father’s reasonable efforts to provide for his child’s welfare failed because of interference by the mother, adoption agency, or adoptive parents, the statute should not operate to terminate his parental rights.’ [Citation omitted.]” In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 130, 912 P.2d 761, rev. denied 260 Kan. 993, cert. denied 519 U.S. 870 (1996). A mother’s refusal of assistance offered by the natural father is to be considered a factor in determining if the father provided support to the mother. In re Adoption of Baby Girl S., 29 Kan. App. 2d at 667. However, a “mother’s failure to act upon a general offer of assistance by not contacting the father and telling him what she specifically need[s] does not amount to interference or a refusal of financial help.” In re Adoption of Baby Boy W., 20 Kan. App. 2d at 299.
Importantly, “[germination of the natural father’s parental rights is appropriate where the father merely makes general offers of support.” In re Adoption of Baby Girl S., 29 Kan. App. 2d at 668. An “unwed father must act affirmatively during the mother’s pregnancy to protect his rights to the child.” In re Adoption of Baby Girl S., 29 Kan. App. 2d at 666.
Unquestionably, a “mother’s needs and requirements are a relevant circumstance in determining whether a natural father acted reasonably in failing to provide her with support.” In re Baby Boy N., 19 Kan. App. 2d 574, 588, 874 P.2d 680, rev. denied 255 Kan. 1001, cert. denied 513 U.S. 1018 (1994).
J.T. claims the amount of support provided was reasonable because “the best [he] could do was obtain the assistance of his parents.” This argument is not compatible with J.T.’s testimony. J.T. held three jobs during the 6 months prior to M.D.K.’s birth. From September to December 2000, J.T. was earning a minimum of $170 per week working part-time. At that time, he lived with his parents, who did not charge him rent. From December 2000 until sometime after M.D.K.’s birth, J.T. worked full-time in Iowa, earning more than $1,200 per month. J.T. admitted giving none of these wages to D.K. J.T. knew where D.K. lived and could have provided some level of financial help to D.K. but chose otherwise. Even if J.T. was misinformed by legal counsel regarding his obligation to support D.K., such improper legal advice does not excuse J.T. from his statutory duty to provide support to D.K. The uncontroverted evidence is that J.T. had the means to support D.K. at least at a minimal level and did not.
Finally, J.T. contends his attempts to support D.K. were hindered by interference from D.K. and D.K.’s mother. Specifically, J.T. cites D.K.’s requests for him to stop calling and D.K.’s threats to obtain a restraining order against him. In support of his argument, J.T. relies upon In re K.D.O., 20 Kan. App. 2d 559, 889 P.2d 1158 (1995). In K.D.O., this court found substantial competent evidence existed to support the trial court’s ruling that the father had reasonable cause for his failure to support. 20 Kan. App. 2d at 561. Such reasonable cause was based on the mother’s complete refusal of specific offers of support from the father. In contrast, by J.T.’s own admission, D.K. never refused an offer of specific support from J.T. This record reveals no specific offers of support were made in the 6 months prior to M.D.K.’s birth.
We conclude J.T.’s claim that he was “thwarted” in his attempts to support D.K. has no legal merit. There is a significant distinction between J.T. being hindered in efforts to contact D.K. and being unable to provide support. A father need only cariy out an available option to the best of his ability to maintain his rights, but he must act affirmatively. Here, J.T. had income and knew the mother’s address yet failed to send any support to D.K. A mother does not interfere with a father’s ability to support by avoiding contact and not making specific requests for assistance in response to general offers of support. Here the opportunity to affirmatively support D.K. existed, but J.T. ignored this opportunity.
This case is similar to In re Adoption of Baby Boy W. where the father called the mother after learning of the pregnancy and asked if she needed anything on a few occasions. The mother did not follow up on these offers. There was minimal contact between the parents after that. The father’s parents also made general offers of help, but neither the father nor his parents offered anything specific. The mother made no specific requests for assistance for fear of giving the father rights to the child. The father did send a $50 check to the mother late in the pregnancy, which the mother accepted. The trial court found the father had failed to support the mother without reasonable cause, and this court affirmed. 20 Kan. App. 2d at 296-300.
Upon reviewing all the evidence, viewed in the light most favorable to the petitioners, we conclude substantial competent evidence existed to support the trial court’s ruling that J.T. failed without reasonable cause to support D.K. in the 6 months prior to M.D.K.’s birth.
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The opinion of the court was delivered by
Mason J.:
A. K. Longren sued the Missouri Pacific Railway Company before a justice of the peace for damages occasioned by delay in the shipment of an aeroplane outfit. Judgment was rendered in favor of the plaintiff, the defendant making no appearance, save by the filing of an appeal bond. The district court, on motion of the plaintiff, ordered that the defendant file an answer setting out any defense relied on. The defendant declined to do so and judgment was rendered against it upon the plaintiff’s bill of particulars. It now appeals, asking a reversal on the sole ground that the court had no authority to require it to file an answer.
One who is sued before a justice of the peace is not required to file any pleading unless the plaintiff demands it, and then only if a set-off is claimed. (Jus. Civ. Code, § 71.) The defendant maintains that the district court on appeal exercises only such power as the justice possesses, and inas much as the justice of the peace could not have required the filing of an answer, the appellate court had no greater power in that respect. The statute on the subject reads:
“No notice of appeal shall be required to be filed or served, and the case shall be tried de novo .in the district court upon the original papers on which the cause was tried before the justice, unless the appellate court in the furtherance of justice allow amended pleadings to be made or new pleadings to be filed.” (Jus. Civ. Code, § 122.)
The defendant asserts that properly construed this language authorizes the court to “allow” additional pleadings, but 'not to require them. In an early case, arising under this statute, it was said: “The court then had power to require an answer to be filed, for though the language of the statute is ‘allow/ yet we think this grants something more than mere authority to consent.” (Sewing Machine Co. v. Redfield, 18 Kan. 555, 557.) The defendant maintains that the sentence quoted was dictum, inasmuch as the order for amendment which was under consideration had been made by consent, and that it is inconsistent with expressions of the court in two later cases. In one of them an order was made “allowing” a defendant to file an answer in a case appealed from justice court, and it was held that his omission to do so did not put him in default because he had not been required to plead. (Kuhuke v. Wright, 22 Kan. 464.) In the other, after an appeal had been taken from a judgment of a justice of the peace, the district court made an order allowing the plaintiff to file an amended petition, and giving the defendant thirty days to answer. The defendant failed to plead within the time specified and judgment was rendered against him by default, notwithstanding his request to be allowed to answer and to introduce evidence. This judgment was held to be erroneous for the reason that as the allegations of the original petition were in issue without any pleading by the defendant, he was required to answer only the new allegations of the amended petition; and as the original petition and the amended petition were substantially the same, no answer at all was necessary — “the defendant was not required to file an answer.” (Zeigler v. Osborn, 23 Kan. 464, 468.) We think the true construction of the statute is that indicated in the first case cited — that the district court may compel the filing of an answer.' This is in accordance with the general practice else where (24 Cyc. 727.) It is argued that the order in the present case for the filing of an answer was not “in furtherance of justice,” but was “a gratuitous exercise of tyrannical power.” No hardship can have resulted from a requirement that the defendant should disclose its defense before the trial was begun, and that was the substantial effect of the order, complained of. While the jurisdiction of the district court on appeal is in a sense limited by that of the court appealed from, the procedure in the two tribunals is not necessarily the same.. For instance, a jury of twelve is allowed on an appeal from a justice of the peace, whose jury consists of but six, and on an appeal from a police court, where a jury is unknown.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by William Keil, a minor, against C. M. Evans to recover damages for personal injuries.
The plaintiff, while riding his bicycle, was injured in a collision with defendant’s automobile at the intersection of Murdock avenue and. North Main street in the city of Wichita. Just before the’accident plaintiff and defendant were each approaching the intersection — the plaintiff from the north on Main street and the defendant from the east on Murdock avenue. Along the center of North Main street are two street-car tracks about five feet apart. As the plaintiff was about to cross Murdock avenue his view eastward was obstructed by a street car on his left, which had stopped at the north side of Murdock avenue,- and on account of passengers boarding the car he passed close to the west curb of. North Main street. He was traveling at the rate of six miles per hour, and had reached a place about ten feet from the north line of Murdock avenue and fifteen or twenty feet west of the tracks when he first saw the defendant’s automobile, which had then reached a point just east of the car tracks and a little ¡north of the center of Murdock avenue. As the defendant approached Main street he slackened his speed somewhat and, observing that the street car was standing still, he passed in front of it in a slightly curved course, first southwesterly, then northwesterly, traveling at the rate of twelve miles per hour. Plaintiff tried to stop his bicycle when he saw the approaching automobile, but the brake did not work well, and, although he undertook to clear the defendant’s automobile, which was then a few feet away, he was unable to turn far enough to avoid striking it. The collision occurred just after the defendant passed over the west track, and as a result the plaintiff was thrown to the pavement, receiving an injury to his skull. Each party alleged violations by the other of certain traffic regulations of the city of Wichita. The particular acts of negligence charged against the defendant were that he drove in a negligent, reckless manner, at an unlawful rate of speed, without sounding a horn or giving warning of any kind.' The answer of the defendant denied, negligence, and charged that plaintiff was lacking in care in riding his bicycle too near to the street car, and that if he had been following the traffic rules he would have been in a position to have seen the automobile in time to have avoided the collision, and further, that he had failed to keep a lookout for vehicles as ordinary prudence required. The jury returned a general verdict awarding plaintiff damages in the sum of $500, and also special findings to the effect that the defendant was negligent in running at an excessive rate of speed, namely, twelve miles per hour, and in not giving sufficient warning of his approach. On the question of care exercised by the plaintiff, the jury found that he saw the automobile when it was from twenty-five to thirty feet distant, that he was riding at the rate of six miles per hour, and that after observing the automobile he slackened his speed, tried to stop his bicycle, and turned to the left in an attempt to avoid a collision.
Complaint is made of the refusal of the court to 'give an instruction as to the negligence of plaintiff in riding a bicycle when the coaster brake on it was out of repair. It is not contended that the plaintiff was required to have his bicycle equipped with the latest and best appliances, but it is insisted that the coaster brake being defective prevented the plaintiff from back-pedaling and left him no way of stopping the bicycle unless the rider put his feet on the ground, and the plaintiff being a small boy could not reach the ground. An instruction on this subject was requested after the evidence had been closed, and it was refused by the court because the defendant had .not pleaded the use of the defective brake as a' ground of contributory negligence. He had alleged specific acts of negligence by the plaintiff, but no mention was made of using the bicycle with the defective brake. It appears that in the cross-examination of plaintiff he was asked if he had a coaster brake on his bicycle, and he replied that he had one but that it was not working well, and had been in poor condition for two months, and also that he had been aware of its condition. The instruction asked was objectionable in that it stated that if plaihtiff was riding his bicycle with a defective coaster brake and that the bicycle was not under control by reason of the defect the plaintiff was guilty of contributory negligence. It left out of consideration the age of the boy, his knowledge of the condition of the brake and the excitement or fear that might have been produced by the peril in which he was suddenly placed. One who acts in an emergency or in the face of imminent danger when there is little chance for deliberation is not held to the exercise of the utmost caution nor to the strict accountability required under more favorable circumstances. It is enough if he acts in good faith as a person of ordinary prudence would do under like circumstances. (McCallion v. Railway Co., 74 Kan. 785, 88 Pac. 50.) However, as the issue was not raised by the pleadings, the defendant was not entitled to have the issue submitted to the jury. Upon the refusal of the instruction application was made by the defendant to amend his answer so as to allege the use of the bicycle with a defective coaster brake as a ground of contributory negligence. It can hardly be said that the parties tried the case as if that issue was submitted for determination. The testimony, as we have seen, only came out incidentally on the cross-examination of the plaintiff, and the matter was not brought to the attention of the court until the request for an instruction on the subject had been refused. The introduction of a new issue at that stage of the proceedings and under the circumstances stated was a matter for the discretion of the court, and it is reasonably clear that the refusal can not be regarded as an abuse of discretion. It may be said, in this connection, that the court did give a general instruction to the effect that if plaintiff was guilty of negligence contributing to his injury he could not recover even if the negligence of the defendant was well established.
Complaint is made of instructions 13, 20 and 22, which referred to the rule that one placed in a dangerous position through the negligence of another without time to deliberate as to the safest course to pursue in order to avoid danger to himself, is not held to the-strict accountability required of one situated in more favorable circumstances, and that his action is not defeated if he does not adopt the most prudent course. It is said that the instruction as framed relieved the plaintiff from the duty to use ordinary care to extricate himself from the impending danger. The instructions taken together, however, make it clear that defendant and the jury must have understood that the plaintiff was held to the exercise of ordinary care under the circumstances, and that if he failed in that respect no recovery could be had. The language of the instructions criticised could not, we think, have misled the jury.
No substantial error is found in any part of the instructions, and we find no difficulty in holding that the evidence was sufficient to support the findings and verdict of the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Is rural high school district No. 1 of Stafford county within the operation of chapter 397 of the Laws of 1905 and the amendments thereto, known as the Barnes high-school law, and entitled to share in the benefits of that law?
For several years before June 24, 1915, school district No. 40, an ordinary school district, had been in existence and in- eluded within its boundaries thirteen sections of land in Stafford county. For some time it had maintained a high school in compliance with the requirements of the Barnes law, and had participated in,the funds raised under that law. After chapter 311 of the Laws of 1915, known as the rural high-school law, was enacted, and in pursuance of an election held on June 24, 1915, rural high-school district No. 1 of Stafford county was organized, and it comprises forty-five sections of land, thirty-nine and a half of which are in Stafford county and five and a half of them in Pratt county. The thirteen sections which formed school district No. 40 are included in the bounds of rural high school district No. 1. At the end of the school.year 1916, the principal of the rural high school made a report to the county superintendent as to the condition of the school and the work which had been done there. This report was accepted and approved by the county superintendent, and she thereupon certified that the plaintiff district and three others had maintained high schools with courses of instruction which entitled the pupils who complied with them to entrance to the freshman class of the State University, and that they measured up to the requirements of the Barnes law in that respect. At the same time she certified to the board of county commissioners an amount necessary for the maintenance of three high schools in Stafford county, but omitted rural high school No. 1 from the list upon the theory that it was not within the application of the Barnes law and was not entitled to its benefits. Accordingly the county commissioners declined to make a levy under the Barnes law for the support of the plaintiff. This proceeding was brought to compel these officers to provide for the maintenance of the plaintiff under the Barnes law, and the only question presented here is whether the plaintiff comes within the purpose and scope of that law.
The plaintiff was created in the manner provided by the rural law, is a distinct entity, and not in a class with ordinary school districts. If the electors in a prescribed territory vote to establish a rural high school, a school board is elected for the government of the schools, which has power to secure sites by donation, purchase or condemnation. The annual meeting of such organization is held on the day preceding the day on which school districts hold their meetings, and at such meeting a levy is to be made not exceeding four mills on the dollar of valuation upon all the taxable property in the district to pay teachers and the incidental expenses of thé rural high school, and to create sinking funds to meet its obligations. The levy, when made, is 'certified to the county.clerk, who directly extends it upon the tax roll and the treasurer is authorized to collect and pay over the taxes as is provided in the case of school districts. Any pupil in the district, who has completed the prescribed course for district schools, is eligible fo.r admission to the high school, and the rural high-school board may, with the approval of the county superintendent, provide for teaching any branches in' the course of study for elementary district schools. The tuition in the high school is to be free to all pupils residing in the high-school district, and, while nonresident pupils may be admitted on the payment of fees to be fixed by the board, they can never be admitted to the exclusion of a resident pupil. Adjacent territory may be added to the high school district, and thereafter such attached territory shall bear its full proportion of all expenses of the rural high school. The act under which the plaintiff and other rural high schools were'Organized was obviously intended as a substitute for township high schools. Previously the legislature had authorized the establishment of county high schools in the manner provided in section 7765 and the sections immediately following of the General Statutes of 1909. Later the Barnes -law was enacted under the statute mentioned, and still later by chapter 262 of the Laws of 1911 it provided for township high schools. The rural law was house bill No. 36, and was presented as an amendment of the township high-school law. Its terms indicated that it was not within the operation of the Barnes law, and the title of the original bill declared that the high schools formed under it should be exempt from the operation Of the Barnes law. The bill was modified and elaborated somewhat, but after providing for- the establishment of rural high schools, it repeals the two acts under which township high schools were maintained. It is clear, therefore, that it was intended as a substitute for the township high-school law, and was changed so that the organization should not be confined to a single township, but might include the territory of several townships or parts of townships in one or more counties.
There are a number of differences between such districts and ordinary school districts to which the Barnes law is made applicable. After forming an organization of its own, as the rural law prescribes, it is provided that it shall hold annual meetings on a day other than the one on which annual meetings of school districts are held. The rural school board makes a levy - of taxes on a fixed limit, which the county clerk is required to enter on the tax roll, while school districts do no more than to certify the amounts required for school purposes and the duty of making the levy is vested in the county commissioners. The tax is levied on all the property within the high school. district for the maintenance of the schools, while for high schools maintained under the Barnes law it is levied on all the property within the county. If it had been the intention of the legislature to maintain rural high schools from .the funds raised under the Barnes act, a levy on the property of the district for the same purpose was unnecessary. A rural high school district may be constituted of territory from more than one county. In such a case a levy may be made upon all the property within the district and the money derived from it expended for the benefit of the whole district, while under the Barnes law the fund raised is a county fund and can not be expended for the benefit of the people of a district outside of the county in which .the fund is raised. Provision is made for ordinary joint school districts (Laws 1911, ch. 272), but none is made for a rural high school district comprising territory in more than one county, one of which may be or may not be operating under the Barnes law. The tuition is to be free to all pupils resident in the rural high school district comprising the territory in two or more counties, but under the Barnes law a pupil outside of the county raising the. fund could not participate in its benefits. The provisions as to the course of study under the two laws do not coincide. Under the Rural law the course of study shall- be such as the rural high school board shall prescribe, with such modifications as the state board of education may deem to be necessary ■ to, promote the usefulness and efficiency of such schools (Laws 1915, ch. 311, § 9), while under the Barnes law two courses of study >are provided, both of which require four years work, namely—
“A college preparatory course, which shall fully prepare those who complete it to enter the freshman class of the college of liberal arts and sciences of the University of Kansas, and a general course, designed for those who do not intend to continue school work beyond the high school.” (Gen. Stat. 1909, § 7799.)
The length of the course required under the Rural law is not prescribed. It may be one or more years as the rural board may determine and it is not required that those who take it shall- be up to the standard which will admit them to the freshman class of the University of Kansas. Under the Rural law provisions may be made and money expended for teaching any branch belonging to the course of study in elementary district schools, while under the Barnes law it is provided that “no part of said general high-school fund shall ever be used for other than high-school purposes.” (Gen. Stat. 1909, § 7794.)
School district No. 40, whose territory was included in the rural high school district, abandoned its high school and its rights to share in the benefits of the Barnes law when the people of the district united in forming the new organization under the Rural law. It has no right to participate in the funds provided under the Barnes law unless it maintains a high school. This it has not done, and the fact that some of the pupils formerly attending high school are now in attendance at the rural high school does not change the rights of the latter under the law nor make it subject to the Barnes law. The features mentioned — and there are still others that might be pointed out — show that the legislature did not intend that rural high schools should be brought within the operation of the Barnes law nor participate in the fund provided under it.
The writ of mandamus asked for will therefore be denied.
Dawson, J., dissenting. . | [
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The opinion of the court was delivered by
Mason, J.:
L. Kendall brought replevin against E. L. Black and Willis G. Black. They gave a redelivery bond, signed only by themselves, reciting the taking of the property by the sheriff under an order of delivery, and continuing in these words:
“And whereas, the defendant E. L. Black and Willis Black desires a return of the said property to him.
“Now thereupon, we, the undersigned, hereby undertake to the plaintiff L. Kendall in the sum of Eighteen Hundred Dollars that the defendant E. L. Black and Willis Black will deliver said property to the said plaintiff if such delivery be adjudged, and will pay all costs and damages that may be awarded against him.”
A demurrer to the plaintiff’s evidence was sustained as to defendant Willis G. Black, but judgment was rendered against E. L. Black for the return of the property, or for $500 in case a return could not be had. An execution on this judgment having been returned unsatisfied, Kendall brought an action against Willis G. Black on the bond. A demurrer to the petition was overruled, and a demurrer to the answer was sustained. A judgment followed, from which the defend ant appeals, assigning error in the overruling of one demurrer and in the sustaining of the other. The petition alleged that Willis G. Black signed the redelivery bond as surety for E. L. Black. The answer denied this, and alleged that he signed it as a principal, and solely in order to protect his own possession of the property involved. The same question arises upon both specifications of error, namely: Did the redelivery bond bind Willis G. Black to perform such judgment as might be rendered against either or both of the defendants, or did it bind him merely to perform such judgment as might be rendered against himself, either alone or in conjunction with E. L. Black?
We think the trial court was correct in holding that the bond made each defendant liable for the default of the other. It is to be construed in the light of the circumstances in which it was given, so as to effectuate its purpose. (5 Cyc. 753; 4 R. C. L. 56.) No special significance is to be attached to the fact that the word “defendant” is used in the singular and the concluding word of each paragraph quoted is “him” instead of “them.” The signers expressly undertook that E. L. Black and Willis Black should deliver the property to the plaintiff if such delivery should be adjudged. If the instrument should be interpreted as binding each signer merely to perform such judgment as might be rendered against himself, the taking of it would have been an empty form, since that obligation rested upon him regardless of the giving of any bond. In a somewhat similar situation it was said in Waldrop v. Wolff & Happ, 114 Ga. 610: “Bryans and Waldrop need not have united in a common bond . . . each one having the right and privilege of giving a separate bond, if he had seen proper; but having chosen to unite in a common bond, thejr became subject to the general rule above referred to, that joint principals in a bond are sureties for each other.” (p. 614. See, also, Lutt v. Sterrett, 26 Kan. 561; 1 Brandt, Surety-ship Guaranty, 3d ed., § 48.)
The allegation of the answer as to the purpose for which the bond was signed raises no issue. The bond speaks for itself, and its legal effect is a question of law.
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 him for $231.19. The plaintiff was the defendant’s tenant. In their dealings each sold property to the other. This resulted in each having an account against the other. The plaintiff, in his petition, declared on the account due him, gave the defendant credit for certain items, and asked judgment for $392.46. The defendant’s answer set up a promissory note given by the plaintiff to the defendant, set out items due from the plaintiff to the defendant, and gave credit for most of the items which the plaintiff claimed were due him. The answer also alleged a settlement of the accounts and alleged that by that settlement it was determined that the plaintiff owed the defendant $70. The answer further alleged that there was $174.59 due the defendant on the promissory note, and asked that judgment be rendered for that amount, in the event that the court found that the settlement had not been made.
There was little dispute as to the items of the accounts. The ■ dispute was over indorsements on the promissory note and over the settlement. On these questions the evidence was conflicting. The trial was by the court, which determined these questions in favor of the plaintiff and rendered judgment accordingly. There was evidence tending to support the finding and judgment, and, under repeated declarations of this court, that finding and judgment must stand:
The judgment is affirmed. | [
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