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This memorandum opinion of the court was delivered by _
Dawson, J.:
This is an original proceeding in mandamus filed four days ago, in which the plaintiffs pray for a peremptory order directing the attorney-general to return forthwith to defendants certain letters, papers, telegrams, books, records and documents, belonging to the Poehler Mercantile Company, which the attorney-general took into his possession some two years ago, at a time when such property was produced for his examination in obedience to his subpoena, in an investigation being conducted by him touching certain violations of the antitrust law. All this property still remains in the attorney-general’s hands and he has declined to return it. A criminal prosecution under the antitrust law is pending in the Douglas county district court against the two individual plaintiffs, set for trial to-morrow, and plaintiffs allege that the documents, books, papers, etc., are being unlawfully retained by the attorney-general for use as evidence in that criminal case. They further allege,that they cannot prepare their defense until the attorney-, general is compelled to surrender this property- so that they may inspect the same and prepare their defense to any evidential matters contained therein to their prejudice.
This purpose to so use this property is virtually admitted by the attorney-general; but he contends that the matter is not controlled, or at least not fully controlled, by the decision of this court in The State v. Smithmeyer, 110 Kan. 172, 202 Pac. 638, because here at least some of the letters, documents, etc., which he retains are not merely evidence of the crime, but actually instrumentalities by which the unlawful combination in restraint of trade was effected, and that such parts of the documents, etc., which he retains have lost their character as property. The urgency of an immediate decision will not permit us to go into this subject in detail, nor to discuss the pertinent law at length, nor can this court, in mandamus, undertake to segregate what part of the plaintiff’s property should of right be returned, and what part, if any, may be merely instrumentalities of the alleged crime as to which plaintiffs can claim no property interest, nor should we in this summary proceeding consider the admissibility of any of the retained property as evidence in the criminal case.
But under the rule announced in The State v. Smithmeyer, supra, the attorney-general had no right to retain any property produced for his inspection under his inquisitorial subpcena, and so the order must be that he return forthwith to the plaintiff, the Theo. Poehler Mercantile Company, all its property in his hands, except such particular documents, etc., as he claims to be actual instrumentalities used in the commission of the crime or crimes for which the individual plaintiffs stand charged, and as to those retained by the attorney-general he is ordered forthwith to furnish to the plaintiffs copies of such alleged instrumentalities so that plaintiffs may be advised thereof and prepare' their defense accordingly.
The plaintiffs also ask for an ancillary writ of prohibition directed to the district court,'attorney-general, and county attorney, to enjoin them from proceeding with the criminal trial, and to direct that such trial be continued until the property involved herein is .returned to plaintiffs, and until they have an opportunity to examine the same and prepare their defense thereto. While the circumstances are unusual, the court does not deem the situation so singular and rare as to justify the use of so high and extraordinary a remedy as the writ of prohibition, and it is therefore denied. But the writ of mandamus for the immediate return of all the property to the plaintiff corporation is allowed, except as to that portion of it which may as actual instrumentalities of crime have lost its character as property, and as to all such instrumentalities retained by the attorney-general he is ordered forthwith, before proceeding to the trial in the criminal case in Douglas county against the individual plaintiffs, to furnish plaintiffs with copies of all documents, etc., so retained by him as such alleged instrumentalities. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff recovered a judgment against the Home National Bank for losses alleged to have resulted from the negligence and fraud of the latter bank in handling securities entrusted to it as a bailee. It appeals from that judgment.
The case was here on a former appeal and the grounds upon which a recovery was sought were set forth at length. (Bank v. Bank, 106 Kan. 303, 187 Pac. 697.) In that appeal it was determined that a national bank is liable for the negligent loss of property entrusted to it for disposition according to instructions whether the bailment be for a profit or merely for accommodation of its customers. It was further held that a failure of the defendant bank to follow directions in the recording of instruments and preservation of liens and the delivery of certain papers in violation of instructions by which the plaintiff lost its security would render the defendant bank liable for the loss occasioned by its negligence and fraud. In such a case it was held that the bailment alleged was incidental to the ordinary business of a bank and within its power; that it was liable for any loss occasioned by its failure to exercise care and diligence; that an action may be maintained against a national bank for damages resulting from malicious or negligent torts and in such a case the doctrine of ultra vires had no application.
The important questions under the issues joined were: Did the defendant bank accept the bailment? If so, did it act fraudulently or negligently in the discharge of the trust which it undertook, and if it did, what loss if any did plaintiff sustain as the result of its fraud or negligence? That the defendant undertook the trust is not open to dispute. Jasper Stewart owned a tract of land on which there were three liens: a first mortgage for $3,000, had been given by him to the Merriam Mortgage Company; a second one to Kirkpatrick for $865; and a third in the form of a deed in favor of plaintiff to secure an indebtedness of $3,040. A renewal of these mortgages was arranged for between the parties and new mortgages with the releases of the old were prepared and sent to the defendant bank which was doing business in the county where the mortgaged land was situated, with instructions to have the new mortgages and papers executed by the Stewarts and to file them in the order that would preserve the several liens as they had theretofore existed. The package of papers was received by the defendant bank and it proceeded to discharge the trust by filing the releases of the liens of record and the placing on record of the renewal mortgage to the Merriam company, and, while it procured the Stewarts to execute new mortgages to Kirkpatrick and the plaintiff, they were not placed on record. As the record then stood, Stewart owned the land subject only to the Merriam mortgage. The Kirkpatrick and plaintiff’s liens were withheld from the record until after Stewart had conveyed his equitable interest in the land to an innocent purchaser for $10,000, and as Stewart was insolvent the loss of the securities proved to be a complete loss. It appears that about a month elapsed between the recording of the releases and the transfer of the property by Stewart to the innocent purchaser, but the defendant bank not only withheld from the record the Kirkpatrick and plaintiff’s mortgages, but it also failed to notify plaintiff that the old mortgages had been released and that the new ones had not been placed of record. The jury found for the plaintiff on the ground that the defendant bank was grossly negligent in failing to follow the instructions of the plaintiff as to the handling of the papers and not performing the services which it undertook. It was also found that the reasonable market value of the land, apart from the liens thereon, was $10,000, and assessed plaintiff’s loss at $4,159.72.
The errors assigned by the defendant relate mainly to procedural rulings made in the course of the trial. There is complaint of the admission of the note executed by the Stewarts to the plaintiff on the ground that it did not correspond with the copy of the note attached to the petition. According to the copy attached it was given to the Security State Bank instead of the Security National Bank. Permission was given to plaintiff to amend the petition in this respect. It Appears that the bank which had been known as the Security State Bank had been nationalized and changed to the Security National Bank. Defendant had not moved to strike the copy from the petition on account of variance and did not ask for a continuance or time to meet the amendment. There was no doubt about the ownership and identity of the note, and no error in the admission of the testimony. Like objections were made to the reception of other notes, and there were other objections to their admission which are not deemed to be material.
Objection was made to a ruling admitting testimony to the effect that a certain deed was in fact a mortgage. Parol evidence is admissible for that purpose. (Moore v. Wade, 8 Kan. 380; Brinkerhoff v. Bank, 109 Kan. 700, 707, 205 Pac. 779.) The deed which was placed in the possession of the defendant and returned unrecorded was properly admitted in evidence. It tended to prove the negligence of the defendant.
There was another objection to the admission of a number of letters relating to negotiations for the extension and renewal of the mortgages. Some of these were from the defendant bank and from defendant McCutchan, attorney for the bank, and others, and they tended to show the relations of the parties, the cooperation of defendants in the transactions which brought about the loss of the securities and in some degree supported the contention that there was fraud and negligence in procuring the releases, in the handling of the papers and in the failure to preserve the liens according to instructions. No material error was committed in their admission.
There is a further contention that testimony as to the value of land was improperly received. One witness, a banker, expressed an opinion as to its value and it was said that he did not disclose such knowledge of the value of farm land as would qualify him to give an opinion. It was shown that he had given attention to the sales of farms in that vicinity, had taken mortgages on them and had spent nearly a day inspecting the land in question. It is not necessary to the qualification of a witness that he should be an expert appraiser of land to entitle his opinion to go to the jury. It is enough that he has had opportunity and means of learning the values of such property, had known of sales of similar property and has such acquaintance with the property in question as enables him to form an intelligent estimate of value. His qualification may be tested on cross-examination as to the means of his knowledge and his experience in the business to which the inquiry relates. We think the witness had knowledge and experience sufficient to warrant the admission of his testimony. Other evidence of witnesses as to value was received and likewise challenged, but the witnesses are deemed to have been qualified to aid the jury in determining the value of the property, and at least no material error was committed in receiving it.
There was a demurrer to the evidence but it is deemed to be sufficient to uphold the finding of gross negligence on the part of defendant bank, and the demurrer was properly overruled. There was no valid excuse for the action of defendant in surrendering the papers to McCutchan. Plaintiff had instructed the defendant by wire to deliver a draft for $51.08 to McCutchan to enable him to close the Merriam loan of which McCutchan had charge. Defendant claimed that this instruction warranted it in turning over to McCutchan not only the draft but all the other papers committed to its care. Obviously it carried no such import and the delivery of the releases and other papers was a clear violation of its duty, for which it is responsible.
There is a complaint of a comment by the court, at the time an inquiry was made of a witness as to the telegram to release the draft, to the effect that it did not recall any evidence which would authorize the bank to surrender the papers to McCutchan, but that it was for the jury to determine whether there was any such evidence. In fact there was no evidence of that kind and if there had been the court still left the determination of the question to the jury and hence there was no prejudicial error in the comment.
Another complaint relates to the instructions given and refused. One given was to the effect that national banks are liable for the negligent loss of property intrusted to them for the accommodation of customers without any consideration for keeping it, except a profit derived from their customers doing banking business with thém, and that if the defendant bank surrendered the papers in question contrary to the instructions received, and the plaintiff suffered damages by reason thereof, the defendant bank would be liable for the damages sustained. There was evidence upon which to base the instruction and it accords with the decision on the earlier appeal. (Bank v. Bank, supra.) Nor do we discover any error in the instruction to the effect that if the defendant bank turned over the papers to McCutchan without authority from plaintiff and he was negligent in handling the papers his negligence would be attributable to the defendant and it would be liable for any loss sustained by plaintiff through such negligence.
In one of the instructions the court told the jury that it was the duty of plaintiff to prove the insolvency of Stewart and that it acually suffered damage by reason of being unable to recoyer the indebtedness of Stewart to it. It is said that there is an absence of evidence on that score. The supplemental abstract that has been filed contains evidence tending to show that inquiry was made by plaintiff which developed that Stewart was without money or property out of which payment of his indebtedness to the plaintiff could have been enforced.
There is a further complaint that the court did not instruct the jury as to the various degrees of negligence. It has been held that in the absence of the fixing of statutory standards or degrees, the courts of this state do not recognize the classification of negligence into several degrees, and that negligence in a particular case is the failure to bestow due care and skill; that is, such care and skill as the particular circumstances of the case require. (Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346; Jones v. Railway Co., 98 Kan. 133, 157 Pac. 399; Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12.) The court properly advised the jury that negligence was the failure to use the care that a reasonably prudent person would have used under similar circumstances and that if the defendant violated the instructions of plaintiff in handling the papers, it would be negligence and that the plaintiff might recover any damages which resulted from such negligence.
We have examined the requests for instructions as well as those given and find no ground for reversal. Nor do we find any good ground for the complaint as to submission of special questions or the refusal of requests for more specific answers.
Finding no material error in the proceedings the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for compensation for personal injuries, sustained by the plaintiff in the course of employment by the defendants. The plaintiff recovered, and the defendants appeal.
The jury returned the following special findings of fact:
“Q. 1. What injury, if any, do you find plaintiff received to his first and second fingers and to his thumb of his left hand, by reason of the accident in controversy? A. (a) To his first finger? Lost entire finger, (b) To his second finger? Lost entire finger, (c) To his thumb? Lost at least 50% use of thumb.
“Q. 2. Do you find that the plaintiff is now suffering from any injury re-' suiting from said accident and the infection resulting therefrom, with respect to: (a) His thumb? A. Yes. (b) His third finger? A Yes. (c) His fourth or little finger? A. Yes. (d) His hand? A. Yes. (e) To his forearpa? A. Yes.
“Q. 3. Do you find that plaintiff’s hand, independent of the injury to the first and second fingers, is injured as a result of infection which was caused by the accident in controversy? A. Yes.
“Q. 4. Do you find that plaintiff sustained an injury to his hand, independent of the injury to his first and second fingers, of such a nature that he suffered therefrom a total incapacity to work for any length of time? If so, for how long did said total incapacity to work continue? A. Yes. Four months.
“Q. 5. After said total incapacity to work, if any, ceased, do you find that plaintiff then had a partial incapacity to work or to earn wages, caused by said injury or the resulting infection, independent of the disability caused by the loss of part of his first and second fingers? A. Yes.
“Q. 6. If you find that plaintiff has sustained such partial incapacity to work or earn wages: (a) Is such partial incapacity to work permanent? A. Yes. (b) If not permanent, how long will it continue? A. -. (c) What is the degree of said partial incapacity? A. At least 50%.
“Q. 7. Do you find that the defendant, O. W. Uhrich, denied ’to plaintiff any liability under the compensation act? A. Yes.
"Q. 8. Do you find that the defendant, O. W. Uhrich, advised the plaintiff that he would not consent to arbitrate plaintiff’s claim so long as he employed Mr. J. D. Brown as his attorney? A. Yes.
“Q. 9. Do you find that the defendant, within the meaning of these instructions, refused to consent, in writing, to arbitrate plaintiff’s claim for compensation? A. Yes.
“Q. 10. What expense do you find j;hat the plaintiff has incurred for medical attention and hospital bills during the 50 days which followed his accident? A. $166.
“Q. 11. What was the average week wage of a cutter for the year'prior to December 6, 1919? A. $22.50.
“Q. 12. State what per cent of the use of the left hand plaintiff still has. A. 25%.
“Q. 13. Is plaintiff’s earning capacity greater by reason of his left hand being in the condition that it now is, than if said hand had been amputated at the wrist? A. Yes.”
The court included in the judgment compensation for permanent partial disability, in addition to schedule compensation for loss of fingers. The amount was much greater than the schedule compensation for loss of a hand. The statute provides that loss of the use of a hand shall be considered equivalent to loss of the hand, and the defendants contend the plaintiff should not recover greater compensation for injury to a hand than for loss of the hand.
The plaintiff did not lose use of his hand. He still has twenty-five per cent of his normal use and, with the hand in the condition the injury and its sequelse left it, his earning capacity is greater than it would have been had his hand been amputated. The legislature anticipated such results of physical injury and, instead of providing that compensation shall be for some proportion of the schedule allowance for loss of a hand, it provided for compensation according to the method approved in the cases of Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861; Emry v. Cripes, 110 Kan. 693, 205 Pac. 598; and Anderson v. Oil & Refining Co., 111 Kan. 314, 206 Pac. 900.
The defendants contend they consented to arbitration. A letter written by the attorneys for the defendants did not express consent to arbitration, and the testimony of the plaintiff clearly negatived existence of any intention on the part of the defendants to arbitrate according to the statute. ■
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover a commission for procuring a purchaser of an oil lease. The plaintiffs prevailed and the defendant appeals.
The plaintiffs alleged in effect that about June 1, 1919, an oral agreement was made between thém by which defendant listed his property with the plaintiffs to find a- purchaser for oil land which included producing wells and some that were in process of drilling, not yet finished, together with, all equipment on the premises, for the price of $37,500. Plaintiffs were to receive 10 per cent commission of the selling price. It was alléged that they found a purchaser in the T-O-Kan Oil & Gas.Company, and brought the president, Wannamaker, and representatives of that company and the defendant together, and that an agreement to purchase the property was then made at the price named, $5,000 to be paid in cash and $5,000 every ten days thereafter until the whole price was paid. It was also alleged that there was an oral agreement between Wolford and the oil company to the effect that the representatives of the oil company should have time to confer with the directors of the oil company if they promptly took the matter up for determination, that the company accepted the offer within a reasonable time and notified the defendant of the acceptance. Prior' to that time and about June 19 the defendant informed the plaintiffs that he had changed his mind and would not complete the sale, as a new well had come in and he could sell the property for a larger sum. They therefore prayed judgment for $3,000. The evidence in the case was conflicting as to the terms on which the land was listed and as to whether an agreement between the seller and the purchaser was made and signed at the time of the negotiations. On the part of the plaintiffs the testimony of the representatives of the oil company is that they looked at the property, conferred with the defendant and agreed to buy it, and arranged with him that they would return east and secure the sanction of the purchase and raise the money, and for that purpose they had to have a meeting of the directors of the company, which could only be called on ten days’ notice. Irwin states that he drew up an article of agreement which was dictated by the defendant, to the effect that they would take the property at the price named, paying $5,000 in cash and the balance in installments of $5,000 every ten days, and that he typed the agreement which was signed by Wolford and the purchaser, one copy being given .to Wannamaker and the other to Wolford. He said he was unable to produce the copy because none was retained by him. It is not claimed that there was any time stated in the agreement for the completion of the sale, nor any understanding between Wolford as to the length of time given for the completion of the contract. He stated, however, that the understanding was that they were to go home and call a board meeting to pass upon the proposition, which would take at least ten days. The board meeting was held on the 24th of June. Wolford orally agreed, he said, with the purchasers to let them have time to call the meeting of the board, ratify the transaction and raise the money, and that the sale was made on these conditions.
On the other hand Wolford said that he never signed a contract of sale, and Wannamaker, who was the active representative of the purchaser, states none was signed by Wolford, that the writing drawn up by Irwin was turned over to him unsigned, and on his request it was signed by the plaintiffs, but not by the defendant. He says that Irwin told him that Wolford would not sign any agreement until the cash payment was made. He further testified that in the early part of July he came here to close up the transaction and learned that the deal had fallen through and that Wolford had sold the property to someone else. The board did decide on June 24 to purchase the property at the price asked by Wolford, and in a telegram Wannamaker asked Irwin to try and hold Wolford in line until they were able to come out here, indi eating that they did not have a binding agreement with Wolford. Schmidt, one of the plaintiffs’ witnesses, corroborated the plaintiffs’ claim in part and stated that they talked with Wolford about the time it would take to get a meeting of the directors and arrange for financing the proposition, and- he said they were led to believe that it was agreeable to Wolford that they should have that time. On the other hand Wannamaker 'testified that it was evident during the conference that Wolford would not bind himself unless he received a cash payment, and none was made. He further said that Irwin told him that they, the-brokers, would give an option of ten days on the property so that they might have time to submit the proposition to the other members of the board. McMonigle, another witness for the defendant, stated that Wannamaker asked Wolford for an agreement for a ten-days option, but Wolford refused to give such an option. He further testified that Irwin wrote an agreement giving a ten-days .option but that Wolford did not sign the agreement, and that he left the office while Irvin was writing it out. The general verdict was in favor of plaintiffs but the amount awarded did not accord with the theory or testimony of either plaintiffs or defendant as the amount was only $962.50. The following special findings were made:
“Q. 1. Did Hicks & Irwin, or either of them, close a contract with the T. O. Kan Oil & Ga§ Co. for the purchase of the Wolford property? Ans. No.
“Q. 2. If you answer the above in the - affirmative, then state the date when such contract was closed. Ans.
“Q. 3. On what date, if at all, was the.T. O. Kan Oil & Gas Co. able and ready to purchase the Wolford property? Ans. On or about June 24, 1919.
“Q. 4. On what date was Mr. Wolford notified, if at all, that the T. O. Kan. Oil & Gas Company was ready, able and willing to purchase his property? Ans. Not notified, withdrew his property from the market before June 24, 1919.
“Q. 5. Did the T. O. Kan Oil & Gas Co. enter into negotiations with Hicks & Irwin or with Wolford obligating such company to buy the Wolford property, or finally agreeing to buy same upon the terms offered, and if so, give the date. Ans. Negotiated with Hicks & Irwin, not obligated, finally agreed to purchase the property on June 24, 1919.”
As will be seen the general verdict does not accord with the special findings, and further, it is not consistent with the testimony. The evidence of the plaintiffs was that .under the listing contract, which was oral, they were to receive ten per cent of the selling price fixed at $37,500, which would have been $3,750. The defendant testified that he was to receive $35,000 net for the property and plaintiffs were to receive as commission all of the price paid in excess of that amount, which would have been $2,500. The jury, however, appears to have discarded the testimony of both parties, wandered into the realm of speculation and awarded plaintiffs $962.50, an amount not warranted by any of the testimony. There was no basis in the testimony for a quantum meruit award, and no reason for submitting that rule to the jury. There was a marked inconsistency, too, between the special findings and the verdict. Plaintiffs were entitled to the stipulated commission if they found a ■purchaser for the property on the terms fixed in the oral listing agreement. There was a direct conflict between the parties as to the terms of that agreement. Under either theory it was necessary for plaintiffs to prove that they had produced a purchaser ready and willing to take the property on the terms of the listing agreement, and that the oil company was ready and willing to purchase according to the terms of that agreement. It appears that the representatives of the proposed purchaser were not authorized to make a purchase or agreement of purchase and could not until authority was obtained from the board of directors of the oil company. A writing was drawn up by one of the plaintiffs, stating the terms on which a sale was to be made, but the evidence strongly tends to show that this paper was not signed by the defendant, and the jury has found that a contract for the purchase of the property was not made. In the 5th finding the jury state that while there were negotiations for a purchase, the proposed purchaser had not obligated itself at the negotiations to purchase and did not finally agree to make the purchase until June 24, 1919. That was twenty days after the negotiations were had, and much of the testimony is to the effect that only ten days were given to the oil company in which to decide whether a purchase would be made. Plaintiffs claimed that an agreement of sale was made with the purchaser, but the finding of the jury negatives that claim. Of course, if defendant agreed to give the oil company until the 24th of June to decide upon the purchase, or a reasonable time, and the purchaser was then ready and willing to purchase on the terms of the listing agreement, the defendant would be liable for the agreed commission. On the other hand, if the agreement, as so much of the testimony tends to show, was that only ten days were given to make the purchase, and as it was not made in that time, the defendant was warranted in treating the so-called option as ended and in selling the property to another. There is much in the evidence tending to show that defendant declined to accept .the purchaser or agree to sell until a cash payment was made, and Wannamaker, spokesman for the purchaser, so understood the attitude of the defendant, and :that the oil company had ■ not been and would not be accepted as a purchaser by the defendant until a payment of money was made.
The verdict we think is not supported by the testimony, and the findings are inconsistent with the result reached by the jury. The judgment is therefore reversed and the cause remanded with directions to set aside the verdict and grant a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
This is a continuation of Court of Industrial Relations v. Packing Co., 109 Kan. 629, 201 Pac. 418. There this court said:
“This is an original proceeding in mandamus to compel the Wolff Packing Company, hereinafter named the defendant, to put in effect a scale of wages to be paid by it to its employees and to establish hours of labor as ordered by the court of industrial relations, hereinafter named the plaintiff.” (p. 630.)
The former opinion disposed of a number of legal questions. This is an opinion in the same action and disposes of the questions that arise on the evidence.
1; The evidence, which was taken by A. L. Noble, of Wichita, who was by this court appointed commissioner to take the evidence and make findings of fact and conclusions of law, shows that the defendant was engaged in operating a packing plant in the city of Topeka for the purpose of slaughtering animals for food; that the defendant employed about 300 workmen in the operation of its plant; that a controversy arose between the defendant and its employees concerning wages, hours of labor, and certain conditions under which the employees worked; that a meeting of the employees was called for the purpose of voting on a proposition to strike on account of the controversy; that at the meeting thus called the employees voted to present the controversy to the plaintiff rather than to strike; and that thereafter a complaint was filed with the plaintiff. It is now insisted that the evidence does not show such an emergency as gives to the plaintiff jurisdiction to make any order on the complaint that was filed.
On the former hearing it was contended by the defendant that the pleadings did not allege that such an emergency existed as gave to the plaintiff the extraordinary power of regulating the wages to be paid by the defendant to its employees. This court in the syllabus to the former opinion said:
"The petition filed in this action alleged that such an emergency existed as justified the court of industrial relations in making an investigation.” (If 5.)
What was said in the former opinion is approved. The defendant’s plant is a small one, and it may be admitted that, if it should cease to operate, the effect on the supply of meat and food in this state would not greatly inconvenience the people of Kansas; yet, the plant manufactures food products and supplies meat to a part of the people of this state, and, if it should cease to operate, that source of supply would be cut off. The plant comes within the operation of the law, and the court of industrial relations has power to make the orders provided by law under the circumstances named in the statute. The petition alleged facts which showed that such an emergency as the law contemplates existed and gave to the plaintiff authority to inquire concerning the matters alleged in the complaint. The evidence established facts sufficient to give to the court of industrial relations authority to make proper orders thereunder.
Another matter that may be properly mentioned in connection with the discussion of this subject is that there is a presumption that the plaintiff made its order under proper circumstances. That presumption is not conclusive; it is rebuttable; yet, the presúmption exists and whatever weight it has must of necessity be placed in support of the order made by the court of industrial relations, although, in an action to compel compliance with an order of that court, the court trying the action must determine the matter for itself.
2. The plaintiff has filed a large number of exceptions to the report of the commissioner, both as to matters of fact and matters of law. The commissioner reported, as one of his conclusions of law, that the orders contained in paragraphs 1, 5, 6, 7, 8, 10, 12, 13, and 16 of the order of the plaintiff were made without jurisdiction and are unenforceable. This makes it necessary to set out those orders. The plaintiff ordered that—
“1. In this industry the principles of the open shop, as now and heretofore existing by agreement of the parties, are approved by the court and shall continue.
“2. Employees, whether organized or unorganized, shall receive wages as shown in schedules hereinafter set out.
“3. A basic working day of eight hours shall be observed in this industry; but a nine-hour day may be observed not to exceed two days in any one week without penalty: Provided, however, That if the working hours of the week shall exceed forty-eight in number, all over forty-eight shall be paid for at the rate of time and one-half; furthermore, in cáse a day in excess of the eight-hour day shall be observed more than two days in any one week, all over eight hours, except for said two days in said- week, shall be paid for at the rate of time and one-half, even though the working hours of the week may be forty-eight hours or fewer.
“4. No guarantee of time per week is specifically ordered; but sufficient work shall be offered to the regular employees in each and every month so that the monthly earnings of regular workers will be sufficient to constitute a fair wage under the Kansas industrial law, as heretofore defined by this court.
“5. The management of the industry shall, whenever possible, notify the workers in case the plant is not to operate the following day, by bulletins posted at the time clock prior to the closing hour, and if that be impossible, ■then by signal from the steam whistle the following morning, to make it unnecessary for workers to come to the plant when there will be no work.
“6. Hours of beginning work shall be set by the management and may be changed when necessary; but reasonable notice shall be given the employees of changes.
“7. The seniority rule as heretofore observed in the industry may continue.
“8. Reasonable rules and regulations in regard to conduct about the plant may be made from time to time as the same may be necessary, and reasonable notice of all such shall be given by posting at the time clock or personal notice to employees.
“9. Women workers shall receive the same wages as men engaged in the same class and kind of work.
“10. Toilets and dressing rooms used by the women workers shall be in charge of a woman.
“11. Piece-work rates shall be.paid in accordance with piece-work schedule herein set out.
“12. Minor details in regard to work and wages cannot be set out in an order of this court; but whenever differences arise at any time they should be taken up by the grievance committee of the employees and the management, and reasonable time shall be allowed for consideration and adjustment of the differences.
“13. The total working time for women employees, inclusive of overtime, shall not exceed fifty-four hours in any one week and not more than nine hours in any one day.
“14. Workers paid by the week or day, if employed within the plant and not within the office or sales department, shall be subject to hours of work and overtime as other employees under the terms of finding' No. 3 hereof.
“15. The temporary order heretofore made in this case shall stand and be complied with by the respondent company, beginning on the date of said temporary order and continuing until May 1, 1921, the date of this order.
“16. The respondent company shall, within a reasonable time, furnish a suitable room for its employees in which to eat their midday lunch, well ventilated and apart from those portions of the packing house in which the work of slaughtering animals and dressing and preparing the packing products are carried on, and apart from toilets and dressing rooms.
“17. The following schedule of minimum wages shall be paid by the respondent company to its respective employees, to wit: [The details of the schedule are immaterial.]
“18. The establishing of the above minimum-wage schedule shall not in any way be construed as restricting or preventing the respondent from paying a higher wage when the same is deemed advisable.
“19. In departments operating twenty-four hours a day and seven days a week, each employee therein shall be entitled to one day off each week. In other departments work performed on Sunday and legal holidays shall be paid for at the rate of time and one-half.
“This order shall take effect and be in force on the 1st day of May, 1921, and shall continue until changed by the court, or changed by agreement of the parties with the approval of the court.”
The conclusion of law reached by the commissioner was based on the fact that the complaint filed with the plaintiff did not allege anything to give the court jurisdiction to make orders concerning the subjects mentioned in paragraphs 1, 5, 6, 7, 8, 10, 12, 13, and 16 of the order. An examination of the complaint reveals that nothing was said concerning any of these matters.
The plaintiff urges that those matters were embraced within the complaint because they were embraced within the contract between the defendant and its employees and that a copy of the contract was attached to the complaint. The plaintiff also contends that the defendant waived its right to object to those parts of the order being put into effect because the defendant insisted on the contract being introduced in evidence and because the defendant, through its attorney, stated to the court of industrial relations that he was “authorized to make a proposal to the court, that it is -not prepared to accept the terms of the order of March 21, 1921, making the eight-hour day as the basic day, with time and one-quarter for the ninth hour and time and one-half thereafter, but as a counter proposal the Charles Wolff Packing Company proposes to adopt the forty-eight-hour week, meaning thereby that employees shall be paid the regular schedule for forty-eight hours’ work, and all time employed over forty-eight hours’ work shall be paid for at 'the rate of time and one-half; the employees, if working less than forty-eight hours, shall be paid at the regular schedule for the time actually engaged, but the company does not consent to the fixing of any guaranty of hours per week.” On the hearing before that court, the defendant unqualifiedly agreed to make the wages of women the same as those of the men for the same kind of work. That agreement was put into effect, and there is now no controversy about that portion of the order. Other than the agreement concerning the wages of women, it does not appear that the defendant submitted for the consideration of the plaintiff anything except what was contained in the complaint. An examination of the complaint reveals that the only questions named in it were wages and hours of labor.
Section 10 of chapter 29 of the Laws of 1920, the court of industrial relations act, reads:
“Before any hearing, trial or investigation shall be held by said' court, such notice as the court shall deem necessary shall be given to all parties interested by registered U. S. mail addressed to said parties to the post office of the usual place of residence or business of said interested parties when same is known, or by the publication of notice in some newspaper of general circulation in the county in which said industry or employment, or the principal office of such utility or common carrier is located, and said notice shall fix the time and place of said investigation or hearing. The costs of publication shall be paid by said court out of any funds available therefor. Such notice shall contain the substance of the matter to be investigated, and shall notify all persons interested in said matter to be present at the time and place named to give such testimony or to take such action as they may deem proper.”
The notice served on the defendant was a copy of the complaint with a copy of the contract between the defendant and its employees. Such a notice as is required by the statute was not given to the defendant concerning the subjects named in paragraphs 1, 5, 6, 7, 8, 10, 12, 13, and 16 of the order of the court of industrial relations, and the defendant did not voluntarily submit to an inquiry into those mattérs. It follows that the court had no jurisdiction to make any order concerning any of them. However, it should be stated that if, in the course of its investigation, matters that ought to be considered should come to the knowledge of the court, it may investigate them and make orders concerning them after taking the necessary steps to acquire jurisdiction.
3. The commissioner found and the evidence shows that for some time prior-to the making of the order by the plaintiff, the'defendant had been operating its plant at a loss, but the evidence does not show what was the cause of the loss. The order made by the court of industrial relations slightly raised the wages of the employees over the wages that were in effect at the time the order was made.
The stock of the defendant’s plant is largely held by the Allied Packers, a Delaware corporation with headquarters at Chicago, 111., operating six other meat-packing plants situated in eastern cities and in Canada. A portion of the proceeds arising from the defendant’s plant is paid over to the Allied Packers. How much does not appear.
Section 8 of chapter 29 of the Laws of 1920, the court of industrial relations act, provides that—
. “If either party to such controversy shall in good faith comply with any order of said court of industrial relations for a period of sixty days or more and shall find said order unjust, unreasonable or impracticable, said party may apply to said court of industrial relations for a modification thereof and said court of industrial relations shall hear and determine said application and make findings and orders in like manner and with like effect as originally. In such case the evidence taken and submitted in the original hearing may be considered.”
The court of industrial relations, in its opinion on which the order was based, said:
“Any order made by this court, after having been put into force and effect for a period of sixty days, may be reviewed at-the instance of'either party and -additional evidence introduced to show its practicability, its impracticability, its reasonableness or its unreasonableness. The order made in this case at this time will be made in view of that provision of the law. The business condi tions of the day are unusual and unstable, and sixty days or ninety days may bring about such changes as would require a revision of any order made herein.”
Laws and orders fixing rates for a period of time for public utilities have been sustained to determine their effect upon the revenue of such utility. (Wilcox v. Consolidated Gas Co., 212 U. S. 19, 55; Northern Pacific Ry. v. North Dakota, 216 U. S. 579; Lincoln Gas Co. v. Lincoln, 250 U. S. 256, 269.)
The defendant’s plant is being operated at a loss, and the order of the court of industrial relations increases the wages of its employees. Is the order invalid for that reason? The general schedule of rates charged by a public service corporation cannot be decreased by lawfully constituted regulating bodies when the business of that corporation, otherwise prudently and efficiently conducted, is being operated at a loss. This, so far as state regulation is concerned, is based on the fourteenth amendment to the constitution of the United States prohibiting any state from depriving any person of property without due process of law, and from denying to any person within its jurisdiction the equal protection of the law. Compelling a public service corporation to render service at a loss is a violation of the prohibitions contained in the fourteenth amendment; but rates and wages are not the same. Rates are compensation paid by those who desire the services of public service corporations for the services rendered by such corporations. Wages, for the purposes now under discussion, are that part of the cost of the finished product given to those who perform service in its production. Another way of distinguishing the two, is that rates are the prices paid to public service corporations for their finished product; wages are that part of the cost of the finished product given to those who perform service in its production.
"The operators of a packing plant cannot, by law, be compelled to sell the finished product of their plants at a price that will not allow them a fair return upon the investment, but that does not say that those operating the packing plant cannot be compelled by law to pay a living wage to their employees, notwithstanding the fact that the plant is being operated at a loss. An industry of any kind that cannot be operated except at the sacrifice of its employees ought to quit business. An industry ought not be permitted to recoup its losses out of the wages of its employees, where those employees are in such !i condition that they cannot prevent it. It may be argued that a laboring naan is not compelled to work for any particular employer, and that the laboring man can quit at any time and go elsewhere. So far as the law is concerned, this is true — he has an absolute right to go and seek work in some other place; but actually, and in fact, it is often impossible for a working man to quit the work in which he is engaged and readily find other work. Economic conditions are such that, most of the time, when a working man finds himself out of work, he must remain out of work for days, weeks, and months, during which time he and his family suffer. Many a working man cannot quit when he desires so to do. He must continue to work although his wages are not sufficient to properly feed and clothe himself and his family and educate his children. Public welfare demands that all industries that provide food, clothing, fuel, and transportation shall continue to operate because without their operation suffering must result; but public welfare likewise demands that the working man engaged in the production of the things that minister to the comfort of all, must be paid such compensation for his services as will enable him to live in the manner described in the court of industrial relations act.
The defendant is operating its plant at a loss. Why, does not appear from the evidence. At least, this court is unable to determine why, and for the purpose of this discussion, it is unnecessary to ascertain why. The plant may be badly located on account of transporation facilities. There may have been mismanagement. A part of the money arising out of the operation of this plant may have been taken by the' Allied Packers and used in the operation of the other plants conducted by them. It may have been that the loss was due to unstable conditions in live stock and meat markets prevailing during the time covered by the investigation of the court of industrial relations. The defendant contends that to prevent operating its plant at a loss, it must have its employees work for less than what the court of industrial relations has determined are living wages. In other words, the defendant is trying to prevent loss in its business by putting the loss on its employees. That should not be done if its employees are thereby compelled to work for less than living wages. If the plant cannot operate without so doing, it is only a question of a short time until it must stop. If the plant is badly located on account of transportation to its market or from the source of supply of its raw material, it ought to be moved to where these handicaps will not exist. If the loss is caused by managerial faults, they ought to be corrected. Recoupment of losses caused by either of these matters ought not to be brought about by compelling the working man to labor for less than a living wage.
The defendant should be compelled., to pay the wages fixed in the order made by the court of industrial relations, and should be compelled to establish the hours of labor there fixed, and should look elsewhere to recoup its losses and find the means of operating its plant at a profit.
A peremptory writ of mandamus will issue to compel the defendant to put into effect those parts of the order of the court of industrial relations numbered 2, 3, 4, 9, 11, 14, 15, 17, 18, and 19. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover a commission for the sale of the defendant’s farm, alleging a verbal agreement and understanding that he was to have two and one-half per cent commission, and thereafter a written contract to the same effect, a copy of which was set out. The petition alleged that the plaintiff found a purchaser ready and able to complete the deal but the defendant refused to perform his part, of the contract.
The answer denied such failure and refusal and alleged that the agreement was to pay a commission of $400 provided the trade was consummated, and there was a specific denial that the defendant signed the contract set up in the plaintiff’s petition, and an aver ment that just preceding the signing it was agreed that this sentence should be added, after which the contract was signed: “It is hereby agreed that no commission shall be collected until deal is consummated.” It was further alleged that the deal was never consummated; that the abstracts offered by the other party were not satisfactory to the defendant’s attorney, wherefore the defendant declined to convey. Also, that Marion Moore, whose land was to be given in exchange for the defendant’s, sued the latter for specific performance, and failed in the action.
The plaintiff testified that he was not present when the notation was placed on the contract and did not authorize anyone to place it there.
Moore testified that he was present when the contract was drawn up.
“After the signing of the contract, and about the time witness put up his abstracts in the bank, Stewart told witness that his wife had signed the deeds and he was ready to ‘come through with the deal.’ ”
He further testified that he was ready and willing at all times to comply with his contract with Stewart, and willing to make any corrections required in the abstracts.
“Moore signed the contract in Chetopa, and his wife signed it at Bluejacket, several days afterwards; at the time she signed it it had at the bottom the statement, mentioned above, that no commission was to be paid unless the deal was consummated; that he knew that statement was there when his wife signed the contract.”
Defendant Stewart testified that he told the plaintiff—
“ ‘About this commission, I will never pay a commission on this unless the trade goes through; sometimes a man don’t make these trades when he starts in,’ and he said that would be all right; he didn’t expect any commission unless the trade went through. This was the only arrangement I ever had with Gould about the payment of commission on the trade with Moore. That when the contract was drawn and signed in Craft’s office, Mr. A. R. Bell said to Mr. Gould, in substance, ‘The arrangement is that no commission is to be paid unless the sale is consummated, and I want that in the contract that Mr. Martin is drawing now.’ That Mr. Gould replied to Mr. Bell, ‘That is all right; that is what we agreed upon.’”
F. O. Martin wrote on the contract: “It is hereby agreed that no commission shall be collected until the deal is consummated.”
This was before the contract was signed.
A. R. Bell testified that “at the time Martin wrote those words on the contract the contract had not been signed by the parties.” Another witness testified that he heard the parties talking about this land trade.
“I made some remark about the commission, and Gould told me that he was getting, if I remember right, four hundred or four hundred -and fifty dollars of each of them, providing the deal stood up and the trade went through; he said, ‘Otherwise, you know, I don’t get anything.’ ”
The defendant requested nine instructions, including one to the effect that if the jury should find the defendant’s attorney in failing to approve the abstracts acted in good faith on account of imperfection in the title to such lands, and by reason of such disapproval the deal failed to go through, the verdict should be for the defendant. Another, that it was not the duty of Stewart’s attorney to call Moore’s attention to any defects in his title, or to return the abstracts to Moore for the purpose of giving him time to perfect his title; that if Moore,had agreed that the trade was to go through only in the event of the approval of the abstracts, he was bound by such agreement, and “inasmuch as fraud or mistake is not pleaded in this case, those are matters with which you have nothing to do.” These requests were all refused and the jury were told, among other things, that if they should find the contract was made for the consummation of the exchange, even though there may have been some defects in the title as shown by the abstracts offered by Moore, it was the duty of Stewart to return the abstracts and give reasonable time for their correction, and his refusal to do so when Moore was ready, able and willing to comply with the terms would entitle the plaintiff to recover, provided the jury found from the evidence that Moore had approved the title of Stewart’s lands and that Moore was financially responsible.
This instruction was also given:
“I may say to you that the written stipulation following the signatures on the contract, ... ‘It is hereby agreed that no commission shall be collected until deal is consummated’ is not a contract which was ever executed by the plaintiff, A. C. Gould, and is not binding upon him, the contract which plaintiff claims to have entered into between himself and the defendant must be proved, if at all, by something other than said written contract, and for the reason that the same appears upon a contract not signed by the plaintiff and below the signatures of the parties who did sign the contract.”
The jury returned a verdict in favor of the plaintiff for $563.25, and answers to eight special questions.
The defendant moved for judgment on the special findings, which motion was overruled, and the motion to set aside the judgment and grant a new trial was also overruled, and he appeals.
The main specifications of error are refusal to instruct the jury as requested, error in instructions given and denial of motion for judgment on special findings.
The defendant insists that the answers show the contract' was contingent on the' consummation of the deal which was not consummated; that Stewart’s attorney did not approve the abstracts of title and that it was error, to instruct that it was Stewart’s duty to make requirements and give time for them to be met; that as there was no fraud, or bad faith charged, the court erred in admitting evidence to prove them. Also, that the court erred in charging that the contract with the added stipulation was not binding upon the plaintiff.
The first instruction complained of presents the question whether or not when a landowner contracts with a real-estate agent to pay him a commission for finding a purchaser, he to pay only on condition that the deal shall be consummated, and then the purchaser tenders abstracts for land which the seller is to receive in consideration for his, which abstracts the latter’s attorney refuses to approve, the commission may be said to be earned. Ordinarily, the commission is earned when the agent finds a purchaser ready, able and willing to take the seller’s property on the terms offered. But a contract to pay a commission when such purchaser is found only in case the deal actually goes through is a different thing. We see nothing unlawful or immoral in such a contract. The theory of the defendant is that such was the contract in this case both orally between the plaintiff and the defendant, and written between the. defendant and the purchaser. If this be so, then it was not the duty of the defendant to have his counsel make requirements touching the abstracts to have them brought down to date and give reasonable time therefor, but he had a right, acting in good faith, to rely on his counsel’s advice and refuse to complete the deal when the abstracts tendered were such that his counsel refused to approve them. In Hollingsworth v. Colthurst, 78 Kan. 455, 96 Pac. 851, the contract provided that the vendor should furnish an abstract showing satisfactory title. It was held that the vendee was the party to be satisfied and that “it was immaterial that the title'was good if the vendee in good faith was not satisfied with it.” (syl.) In Herrell v. Neef, 80 Kan. 348, 102 Pac. 838, it was said in the opinion:
“The contract which the parties make governs. It might have provided that the abstract should be approved by the purchaser’s attorney or that it be satisfactory to the purchaser himself.” (p. 352.)
In Read v. Loftus, 82 Kan. 485, 108 Pac. 850, it was said:
“The parties by their contract agreed that the title should be made satisfactory to the plaintiff’s attorney. . . . That such a stipulation is valid and will be enforced is not an open question in this state. (Hollingsworth v. Colthurst, 78 Kan. 455.)” (p. 493.)
In Hodges v. Ferry & Co., 92 Kan. 21, 140 Pac. 102, the court quoted from Hollingsworth v. Colthurst, supra, to the effect that parties to a contract may lawfully stipulate that performance by one of them may be to the satisfaction of the other, and—
“ ‘If such a contract be made, the party to be satisfied is the judge of his own satisfaction, subject to the limitation that he must act in good faith.’ ” (p. 23.)
In Canaday v. Miller, 102 Kan. 577, 171 Pac. 651, the vendor agreed to make abstracts of title and perfect title to the satisfaction of, the vendee, who took the opinion of counsel who advised that the abstracts furnished were insufficient and that the title rendered was not marketable, and it was held that specific performance should not be decreed. In the opinion it was said:
“The abstracts and title were to be made and perfected to the satisfaction of the defendant. He is not satisfied with either. He took the opinion of able lawyers on both subjects, who advised him the abstracts are insufficient and the title is not merchantable. His dissatisfaction is not captious, nor arbitrary, nor feigned and under his contract he is not obliged to go further.” (Citing authorities.) (p. 578.)
As good faith is always requisite in such transactions as here involved, and as the defendant requested an instruction touching the good faith of his attorney in passing upon the abstracts, no error was committed in that portion of the charge touching the matter of good faith.
The court correctly charged that the written contract was not one executed by the plaintiff and was not binding upon him, and that the contract which he claimed was to be proved by something other than the written contract. But the reason given for this instruction: “That the same appears [that is the added stipulation] upon a contract not signed by the plaintiff and below the signatures of the parties who did sign the contract,” might be subject to the interpretation that the parties who signed the contract are not bound by the stipulation appearing after their signatures. To clear up any doubt in case the matter be tried again, it may be said that the location of signatures on a written contract does not determine the binding force of any provision or stipulation contained in such contract. (6 R. C. L. 640, §56; 13 C. J. 306; Ramey v. Thorson, 94 Kan. 150, 146 Pac. 315.)
The answers returned show that some of the questions involved were not well understood by the jury or at least not clearly answered, but it was not error to refuse judgment thereon. The court refused the requested instruction that if Moore submitted abstracts to Stewart, whose attorney examined and refused to approve them, he had a right to rely on the advice of such attorney and refuse to carry out the trade. Nothing like this in substance was given, and its refusal was error.
Other matters not of substantial merit are discussed in the briefs, but need not be considered now.
For the reasons indicated the judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
We have here to consider an unusual motion presented by the Kaw Valley Drainage District. The motion is for an injunction to prevent the defendants from obeying an order of this court entered June 15, 1917.
It may be remembered that the plaintiff filed an action in this court on May 3, 1913, to require the defendants to remove an interstate railway bridge near the junction of the Kaw and Missouri rivers on the alleged ground that it was an obstruction to the flow of water and tended to increase the hazard of floods at Kansas City. After four years’ time -was consumed in preparing this case for trial, a large trunkful of evidence and a mass of other documentary and probative matter was gathered by the litigants, at much needless cost to 'the taxpayers of the drainage district as well as to the defendants. This court found that plaintiff’s demand for the total destruction of the bridge was unreasonable (99 Kan. 188), and that the obstructive defects could be corrected as suggested by the evidence of competent engineering experts, as follows:
“By raising the entire bridge two and seven-tenths feet and removing the southeast approach within the harbor line, and removing the piling, the southeast cylinder piers, the girder span thereat, and the riprap down to fifteen feet under low water level, and by substituting steel sheet piling to protect the southeast concrete pier in lieu of the present riprap protection and by removing the latter, and' by removing all the present bridge structure extending from the southeast concrete pier to the southeastern shore and substituting therefor a new steel truss span approximately two hundred and fifty feet in length to rest upon the southeastern concrete pier and stretching without obstruction over a free waterway to the harbor line on the south eastern shore and to rest, there upon a suitable and durable abutment conforming to the plaintiff’s dike.”
It was therefore ordered—
“That the defendant owner of this bridge and L. S. Cass, Receiver, proceed forthwith to prepare plans for the reconstruction of the bridge in substantial conformity with the foregoing finding, and' when so prepared that the defendants submit the plans to the plaintiff board for its approval, and that thereafter upon the approval or disapproval of the plaintiff board the said plans be submitted to this court for approval, and that upon the approval of this court, the said plans shall be filed with the United States Secretary of War and the proper application be made for the requisite federal sanction to reconstruct the bridge, all of which the defendants are ordered to do, with diligence and good faith; and when the proper federal sanction is obtained, the defendants shall proceed with all convenient speed to reconstruct the bridge and to prosecute the work diligently until its completion. Reasonable allowance of time will be made, as may be necessary, for delays occasioned' without fault of defendants. . . .
“It is further ordered that the costs of this action be divided, plaintiff to pay half and defendants to pay half.
“It is further ordered that the jurisdiction of the cause be retained.”
Waiving a review by the United States supreme court of the federal questions involved, and which in a similar case had led to the defeat of the plaintiff in its attempts to enforce its similar order for the destruction of another interstate bridge less than a mile away (Kansas Southern Ry. v. Kaw Valley Dist., 233 U. S. 75), the defendants proceeded at once in good faith to comply with the order of this court. Their engineering plans, being prepared in accordance with the order of this court, were submitted to the plaintiff board for approval. That approval was denied. Defendants were compelled to return to this court for instructions. We' held that the plaintiff’s refusal was arbitrary and unreasonable and should be held for naught.
The defendants then submitted the plans to the War Department. The plaintiff made an ineffectual attempt before that department to prevent their approval. Consideration of the matter was necessarily deferred by the World War, but on April 6, 1920, the plans were approved by the proper officials of the War Department. Meantime the defendants were involved in financial troubles, partly owing to the greatly increased cost of labor and materials, and the War Department extended the time in which to commence the work of reconstruction.
On January 16, 1922, the plaintiff applied to the Secretary of War for the revocation of its former approval of the plans for the reconstruction of the bridge, and the whole matter was again patiently reviewed (see appendix to this opinion) and the revocation denied.
Now the plaintiff asks this court to enjoin the defendants from obeying our own order. Indeed, it goes further and asks us to order the total demolition of the bridge. We shall certainly grant nothing of the sort.
Moreover, these interminable maneuvers which only hinder and delay the reconstruction of the bridge to correct its interference with flood waters ought to have stopped long ago. They must stop now. If the defendants had been permitted to correct the defects of this bridge, without this persistent and protracted course of obstruction on the part of plaintiff, the flood menace of this bridge would have been, eliminated years ago. It could have been done at a cost of $80,000. Now, it is shown that it will cost $225,000.
This motion in all its phases is denied; the defendants are admonished to proceed with diligence to discharge their duty under the order of'this court issued June 15, 1917, and in the event that defendants are further hindered or delayed in the performance thereof, they may resort to this court for relief. Jurisdiction of the cause is retained.
APPENDIX.
WAR DEPARTMENT.
OFFICE OF THE JUDGE ADVOCATE GENERAL.
WASHINGTON.
J. A. G. 823. February 18, 1922.
MEMORANDUM for the Secretary of War.
Subject: Application of the Kaw Valley Drainage District for revocation of approval of plans for bridge over the Kansas River, Kansas City, Kansas.
The history of this case may be briefly stated as follows: The predecessor of the Kansas City Northwestern Railway Company constructed in 1903-1904 a bridge over the Kansas River, a navigable stream wholly within the boundaries of the State of Kansas, without having the plans of the bridge approved by the Secretary of War and the Chief of Engineers. The Kaw Valley Drainage Commission, incorporated under the laws of Kansas (General Statutes of Kansas, Ann., 1915, p. 7^3 et seq.), instituted suit in the courts of the State of Kansas to compel removal of the bridge as being a flood menace. The matter was decided by the Supreme Court of Kansas (99 Kans. 188, 161 Pac. 937). The court refused to order the removal of the bridge, but in an order entered June 15, 1917, directed its modification according to plans to be submitted for the approval of the Drainage District and the Supreme Court of Kansas, and thereafter to be filed with the Secre tary of War with proper application for the requisite federal sanction to reconstruct the bridge. .Plans of the bridge, prepared in accordance with this order, were subsequently disapproved by the drainage commission. Thereupon the Kansas Supreme Court in an order dated July 11, 1917, found that the disapproval was based solely upon grounds theretofore decided adversely to the plaintiff; that said disapproval was'arbitrary and unreasonable and should be held for naught. The court therefore approved the plans and directed that they be presented to the War Department and to the proper federal authorities in further compliance with its order of June 15, 1917. In compliance with this oi;der by application dated August 7, 1917, the plans were submitted to the Secretary of War for approval, and a public hearing was held by the district engineer at Kansas City on February 11, 1917. [1918?] Consideration of the matter was suspended during the World War, but it was again taken up in 1919 and on February 20, 1920, a special hearing was given to interested parties by the Secretary of War at his office. Immediately thereafter the Secretary of War requested a ruling of this office upon the question “whether the Secretary of War and the Chief of Engineers can approve these proposed modifications.” The matter was given careful consideration by this.office, and in a memorandum for the Secretary of War, 'dated March 8, 1920, the opinion was expressed that the Secretary of War and the Chief of Engineers had authority to approve the plans. This opinion was approved by the Secretary of War on March 16, 1920, and in accordance therewith the plans of the bridge were formally approved by War Department instrument signed by the Chief of Engineers, March 30, 1920, and by the Assistant Secretary of War, April 6, 1920. By the terms of the instrument the approval thereby given was to cease and be null and void, unless the actual work of reconstruction was commenced within one year and completed within three years .from the date of the instrument; but these dates were extended by the Secretary of War on February 16, 1921, to April 6, 1922, and April 6, 1924, respectively. It is understood that the Railway Company has not yet begun the reconstruction of its bridge but that it contemplates commencing the work prior to the expiration of the time limit.
Under date of January 16, 1922, the Kaw Valley Drainage District, through its Board of Directors, transmits to the Secretary of War an application for the revocation of the War Department instrument approving .the plans of this bridge and a request that the United States institute a suit for the removal of the bridge as an unlawful structure. In a memorandum addressed to the Secretary of War, February 11, 1922, the Chief of Engineers remarks as follows:
“So far as navigation is concerned, it was my conclusion when the approval of the plans was given, that the bridge was not an unreasonable obstruction to navigation then existing, and that there was no prospective increase of traffic on the river, and I know of no reason for changing this conclusion. The bridge serves an important interstate commerce, and I concur with my predecessor’s that under the circumstances the department would not be justified in inaugurating any procedure either for its alteration or removal. Moreover, it is believed' that the orderly administration of the public business requires that matters which have received such exhaustive consideration and repeated decision as this should be deemed settled, and not open to reconsideration and readjudication at the pleasure of those interested in them; otherwise the acts of the department will be kept perpetually unsettled^ and afloat. The Kaw Valley Drainage district has had ample opportunity to present its views relative to the phases of the case within the jurisdiction of the department, and I see no occasion for a further hearing. As a matter of courtesy, however, inasmuch as the action of the department in approving the plans for reconstructing the bridge is challenged on legal grounds, it is suggested that the papers might be referred to the Judge Advocate General for further consideration of this question. If he find no error in law, I recommend that the Kaw Valley Drainage District be advised that the department feels constrained to deny the application.”
The federal law applicable to this case is as follows: Section 9 of the River and Harbor Act approved March 3, 1899 (30 Stat. 1151) provides, in part:
“That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the. Secretary of War; Provided, That such structures may be built under authority of the legislature of a state across rivers and other waterways the navigable portions of which lie wholly within the limits of a single state, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced. . . .”
Section 12 of the same act provides (30 Stat. 1151), as amended, by the act of February 20, 1900 (31 Stat. 32):
“That every person and every corporation that shall violate any of the provisions of s'ections nine, ten, and eleven of this act, or any rule or regulation made by the Secretary of War in pursuance of the provisions of the said section eleven, shall be deemed' guilty of a misdemeanor, and on conviction, thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both suck punishments, in the discretion of the court. And further, the removal of any structures or parts of structures erected in violation of the provisions, of tke said sections may be enforced by the injunction of any circuit court exercising in any district in which such structures may exist, and proper proceedings to this end may be instituted under the' direction of the attorney-general of the United States.”
And section 18 of the act provides:
“That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge, now constructed, or which may hereafter be constructed, over any of the navigable waterways rff the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, i.t shall be the duty of the said secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes recommended by the Chief of Engineers that are required to be made, and shall prescribe in each case a reasonable time in wkich to make them. If at the end of such time the alteration has not been made, the Secretary of War shall forthwith notify the United' States district attorney for the district in which such bridge is situated, to the end that the criminal proceedings hereinafter mentioned may be taken. If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him wilfully fail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge shall be deemed a new offense, and subject the persons, corporation, or association so offending to the penalties above prescribed: Provided, That in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court either by the United States or by the defendants.”
The power of Congress to regulate the placing of obstructions in the navigable waters of the United States is based' upon the commerce clause of the Constitution (Const., Art. 1, Sec. 8, cl. 3)', and in the act cited supra Congress has prescribed that it shall be unlawful to place any of the structures therein mentioned, including bridges, in such waters until its consent to the building of such structure has been obtained, and until the plans for the same have been submitted to and approved by the Chief of Engineers and by the Secretary of War; but has further provided that in the case of waterways the navigable portions of which lie wholly within the limits of a single state, such structures’may be built under authority of the legislature of a state, provided the location and plans of such structure are submitted to and approved by the Chief of Engineers and by. the Secretary of War prior to the commencement of construction. A violation of the provisions of section 9 is by the terms of section 12 of the act made a misdemeanor, punishable upon conviction by fine or imprisonment, or in the discretion of the court by both such punishments, and in addition legal proceedings looking to the removal of such unlawful structures may be instituted in behalf of the United States.
It seems clear, although it has been questioned by complainants in this case, that there ws,s sufficient state authority for the original erection of this bridge by the railvay company. By act of October 31, 1868 (as found in General Statutes of Kansas, 1915, sec. 2328), it was provided that—
“every railroad corporation shall . . . have power . . .
“Fourth. To constmct its roads across «. . . any stream of water, watercourse . . ., which the route of its road shall intersect or touch.”
And in any event it-is veil-settled that authority to build a railroad implies power to construct necessary bridge’s. Union Pacific Railway Co. v. Hall, 91 U. S. 343; Hamilton v. Vicksburg, etc. Railway Co., 119 U. S. 280. As was pointed out by the court ii the latter case, two conditions must be deemed to be embraced within this implied pow>er, first, that the bridge shall be so constructed as to insure safety to the crossing of the trains, and be so kept at all times; second, that the bridge shall not interfere unnecessarily with navigation. The location and plans of the bridge not having been submitted to and approved by the Chief of Engineers and the Secretary of War in accordance with the provisions of section 9 of the act of March 3, 1899, it was a structure erected in violation of the provisions of section 9, whose removal might have been enforced under the provisions of section 12 of the Act. If found by the Secretary of War to be unreasonably obstructive to navigation, its alteration or removal might also have been effected under the provisions of section 18 of the Act.
Such action, however, is not mandatory, and in the view apparently that this bridge was not an unreasonable obstruction to navigation it was not interfered with by the federal authorities. As has been seen, its removal was, however, sought by the Kaw Valley Drainage Commission, not on the ground that it was an obstruction to navigation, but that it was a flood menace, which action resulted in an order of the court directing its reconstruction along certain lines. This action by the Supreme Court of Kansas, after a consideration of the pertinent state legislation, would appear to set at rest any question of state authority for the bridge when reconstructed in accordance with the order of the court; and as was pointed out by this office in its former memorandum, the fact that the original structure was built without federal approval of the plans did not operate to prevent the approval by the Chief of Engineers and the Secretary of War of plans covering the reconstruction of the bridge.
In a printed brief and argument submitted in support of its request for a reconsideration of the former action of the War Department in this case, the Kaw Valley Drainage District states as follows:
“The Secretary of War, in granting the approval complained of, appears to have based his action upon an opinion of E. A. Kreger, Acting Judge Advocate General, of date March 8, 1920, to the effect that the proposed alterations constitute a ‘reconstruction,’ and that permits for ‘reconstruction’ could be granted under the provisions of section 9 of the Act of March 3, 1899.
“The point as to whether or not the proposed alterations constituted a ‘reconstruction,’ and as to whether or not the Secretary of War and Chief of Engineers are authorized to approve the making of the proposed alterations, were not raised in the Supreme Court of Kansas. The judgment of that court merely requires:
‘The said plans shall be filed with the United States Secretary of War and the proper application be made for the requisite federal sanction to “reconstruct” the bridge.’
“The Kaw Valley Drainage District contends, that ‘the requisite federal sanction’ for the proposed alterations can be secured only through an Act of Congress, and that the War Department, under existing statutes, has no authority to authorize or consent to the proposed alterations of the present bridge. The validity of the approval given depends upon the correctness of the opinion of the Acting Judge Advocate General.”
The Kansas Supreme Court in the case referred to on page 1 of this memorandum considered the provisions of the federal Act of March 3, 1899, with respect to the placing of structures iff. navigable waters, and remarked with respect thereto:
“This statute is a specific recognition by Congress itself that, notwithstanding its paramount jurisdiction of the means and instrumentalities of interstate commerce, the bridging of navigable waters is likewise one of vital interest to the states, and that they also have a governmental concern as to proper bridging of such waterways.”
In using the term “requisite federal sanction” in its subsequent order, therefore, the court undoubtedly referred to the requisite application for approval by the Chief of Engineers and the Secretary of War of the location and plans of a bridge proposed to be reconstructed across a waterway whose navigable portion lay wholly within state limits. Obviously in the case of a bridge over such a waterway this was the appropriate method of obtaining such federal sanction.
This office remains of the view that the Secretary of War and Chief of Engineers had full authority to approve the location and plans of the bridge under the provisions of section 9 of the Act of March 3, 1899.
Complainants, - however,, still insist that it will be proper for the federal authorities to take action to compel the removal of this bridge, and indeed that, this is the imperative requirement of the law. On page 37 of their brief they say:
“The giving of the approval involved acquiescence in, perhaps more correctly, the approval of a criminal offense — a violation of the act of Congress of March 3, 1899. Courts refuse to aid suitors in cases where the granting of relief involves recognition, acquiescence in, or approval of fraudulent or criminal acts. Does not a similar rule apply as to administrative officers of both the state and federal government in the exercise of discretionary powers? Is not the approval of the plans for the proposed alteration of the bridge in controversy contrary to public policy. We admit that the rule to which we now refer permits a wrongdoer to remedy his wrong — but in this case the successors of the wrong-doer seek to perpetuate, to continue the wrong, with the assistance and approval of one of the highest officers of the United States.”
Referring to the provisions of section 12 of the Act of March 3, 1899, with respect to the consequences which may follow the construction of a bridge in violation of the provisions of section 9 of that act, this office in its former memorandum remarked:
“It will be noted that the consequence may be two-fold, a criminal prosecution for the act, and a civil action for the removal of the unlawful structure. It is obvious that the action of the Secretary of War and Chief of Engineers in approving the plans for the reconstruction could have no effect upon the criminal feature; the ‘misdemeanor’ having been committed the guilty party is subject to prosecution, providing, of course, that the prosecution is started within the limitation as to time pertaining to criminal prosecutions. However, the effect upon the civil action is entirely different. When the reconstruction is completed the old bridge, the unlawful structure, has ceased to exist and a new and different structure stands in its place. The purpose of the civil action, viz., the removal of the unlawful structure, will, have been accomplished by the reconstruction. The object upon which the civil action could act having ceased to exist, the right to bring the action ceases. The effect of the approval of the plans for the reconstruction is not to ‘legalize’ the old structure, but to bi’ing about its removal and place in its stead a new and different structure. No taint of the illegality of the old structure would be transmitted to the reconstructed structure, the latter standing on its own merits, and having beéii built according to law will be a lawful structure.” .
It is to be noted that the enforcement through appropriate legal proceedings under the provisions of section 12 of the Act of March 3, 1899, supra, of the removal of a structure built in violation of other provisions of the act, is not in the nature of a punishment. That is provided for in the penal portion of the section. It is rather in furtherance of the general purpose of the act, which is to preserve intact the navigable capacity of the navigable waters of the United States by regulating the nature of structures that may be placed therein and providing for the alteration or removal of such structures as may unreasonably obstruct navigation.
In the case of the bridge in question there appears never to have been any affirmative finding by the War Department that it was an obstruction to navigation. Had there been, it would have been the duty of the Secretary of War to proceed under the provisions of section 18 of the Act of March 3, 1899, supra, to bring about its alteration or removal. It is a matter of record that the Acting Chief of Engineers in an indorsement dated December 8, 1919, considered by this office when the matter was previously before it, pointed out that—
“The question of obstruction to navigation is discussed by the district and division engineers in the first and second indorsements hereon, and both in substance reach the conclusion that the bridge as it stands is not an unreasonable obstruction to navigation and that the proposed changes will tend to improve conditions. The division engineer thinks, however, that they are not necessary to render navigation through or under the bridge reasonably free, easy and unobstructed. I concur in their views on that subject.”
Clearly in such a situation it was not the duty of the Secretary of War to bring the matter to the attention of the Attorney General with a view to the institution of legal proceedings looking to the removal of the bridge.
No different situation exists to-day. The Chief of Engineers, acting within the scope of his jurisdiction, has assured the Secretary of War that a bridge built or reconstructed in accordance with certain plans will not be an unreasonable obstruction to navigation, and those plans have already been approved by the Secretary of War and Chief of Engineers. In this situation, so far as the War Department is concerned, there is no ground for the initiating of action looking to the removal of the bridge.
In addition to requesting revocation of the approval of the plans of this bridge, and the institution of a suit for removal, complainants request that no extension of time for the commencement or completion of the work under said approval be granted. As to this it is sufficient to say that the time 'limit for beginning construction does not expire until April 6, 1922. So far as this office is advised no request for extension is before the Department, and in the absence of such request it seems inappropriate to consider the matter at this time.
In conclusion, it may be well to remark briefly upon the legal effect of an approval by the Secretary of War and the Chief of Engineers, under the relevant statutes, of the plans of structures to be placed in or across navigable waters. On this point the case of Cummings v. Chicago, 188 U. S. 410, is illuminating. In that case the plaintiffs, citizens of Illinois, brought suit in the Circuit Court of the United States for the Northern District of Illinois, against the city of Chicago for the purpose of obtaining a decree restraining the defendant from interfering with the construction of a dock in front of certain lands owned by the plaintiffs and situated on the Calumet river, within the limits of that city. Plaintiffs alleged that they were proceeding under a permit issued by the Secretary of War under pertinent provisions of the Act of March 3, 1899, and that the defendant refused to recognize the permission thus given. Judgment was rendered for the defendant, and on appeal to the United States Supreme Court that judgment was affirmed. With respect to the effect of the Act of March 3, 1899, and the instrument issued thereunder by the Secretary of War the Supreme Court of the United States said: -
“The effect of that act, reasonably interpreted, is to make the erection of a structure in a navigable river, within the limits of a state, depend upon the concurrent or joint assent of both the National Government and the State Government. The Secretary of War, acting under the authority conferred by Congress, may assent to the erection by private parties of such a structure. Without such assent the structure cannot be erected by them. But under existing legislation they must, before proceeding under such an authority, obtain also the assent of the State acting by its constituted agencies.” (Italics supplied.)
To the same general effect are: Escanaba Co. v. Chicago, 107 U. S. 678; Willemette Bridge Co. v. Hatch, 125 U. S. 1; Lake Shore & Mich. Rwy. v. Ohio, 165 U. S. 365; Montgomery v. Portland, 190 U. S. 89.
This comment seems necessary because of the great weight which complainants appear to attach to the instrument whose revocation they seek and which is referred to in several places in their brief as a “permit.” The fact is that without the requisite state authority it is ineffectual. It is true that it is not the practice of the War Department to issue instruments of approval in cases of this nature unless there is a showing of state authority for the work, and such a showing appears in the present case; but the action of the War Department, has, of course, no binding effect upon the state, whose power in the matter is plenary and will not be interfered with by the federal government unless it come in conflict with the power vested in the federal government with respect to the protection, preservation and improvement of navigation.
This office, having found no error or [of] law in respect of the former action of the War Department in this case, shares the view of the Chief of Engineers that nothing is to be gained by affording the complainants a further opportunity to be heard, and joins in his recommendation that their application be denied.
J. A. Hull,
(seal) Feb. 21, 1922. Acting Judge Advocate General.
Approved Feb. 23, 1922.
J. M. Wainwright,
(seal) War Dept., Feb. 23, 1922. Assistant Secretary of War. | [
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The opinión of the court was delivered by
Mason, J.:
In 1916 a petition in ejectment was filed in the district court of Wyandotte county in the case of Walker Johnson against S. T. Hutcherson. In 1921 a supplemental petition was filed adding a claim of title under a tax deed executed September 16, 1920, the grantee in which conveyed the land to the plaintiff by a deed dated October 22, 1920, and recorded November 8, 1920. Answers were filed to both petitions. On April 23, 1921, the defendant suggested the death of the plaintiff and five days later moved for the dismissal of the action on the ground that the plaintiff had died February 15, 1920, and no revivor had been had. The motion was overruled and this appeal is taken from that order.
It was shown and admitted that Walker Johnson, who was the father-in-law of the attorney who brought and prosecuted the suit, and who lived in the same house with him, had died February 15, 1920. The attorney, however, filed his affidavit that this Walker Johnson was not the plaintiff; that the’ plaintiff was a resident of Kansas City, Kan., when the action was begun, but had since lived temporarily at Leavenworth and had spent a part of the time in Kansas City, Mo., St. Joseph and Omaha and possibly other places. One of the defendant’s attorneys filed an affidavit that he had made inquiries at Leavenworth and could not learn of any Walker Johnson having lived there — the city directories not containing the name. The city directories of Kansas City, Kan., showed but one person of that name — the one who died.
The affidavit of the plaintiff’s attorney offered but meager information as to the person whom he alleged to be the plaintiff. It did, however, contain the positive statement that the man who died was not the plaintiff. Moreover, the deed conveying the tax title to Walker Johnson was alleged to have been executed more than six months after the death of the Walker Johnson who was the father-in-law of the attorney who brought the suit, and it seems improbable on any theory that it would have been made to a dead man. The trial court, having overruled the motion to dismiss, must have found that the man who died was not the plaintiff, and we do-not-feel warranted in reversing its decision in that regard. No serious injustice can result to the defendant from this ruling. The disputed question of fact can be fully gone into upon the trial. If it is there proved that a person now living brought the action and is1 entitled to re cover the property it will follow that the motion to dismiss was rightly overruled. If such proof is not forthcoming then the defendant will prevail and will have suffered no injury beyond being required to meet the issue as to the plaintiff’s identity upon a full trial instead of having it determined in a summary way upon a mere motion.
A motion to require the defendant to make more definite an allegation of his answer, to the effect that the tax deed was invalid, by setting out the ground of invalidity, was sustained. The defendant complains of this ruling because it was made after the death of the plaintiff had been suggested, and also, because it was not well founded upon the merits. Our affirmance of the ruling on the motion to dismiss disposes of the first objection, and the fact that the defendant has already complied with the order to make his pleading more definite dispenses with the occasion to consider the other, if it would in any event be reviewable in this proceeding.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued for $8,322.10.for inner tubes furnished the defendant in May and June, 1919, claiming that the price was 35 per cent less than the price quoted in the .United States Tire Company’s list in effect on that date, with an additional 5 per cent discount if monthly bills were paid by the 10th of the month following the date of delivery.
The defendant admitted-receiving the tubes, but contended that the contract was at 35 per cent less than the quoted price of the company in effect when any order was given, less the additional 5 per cent discount already indicated.
By way of cross-petition it was claimed that under the contract the plaintiff was to furnish a heavier tube like a sample submitted and to stamp on each tube the name “Silverside” and also the name “The Motor Equipment Company”; that it was agreed that the contract of purchase and the business dealings between the parties should in all other respects be governed by the usual customs of the trade pertaining to a decline in price; also, that it was agreed that in case of a decline in price of inner tubes as shown by the United States Rubber Company’s price .list the plaintiff would protect the defendant against any such decline on tubes purchased under the contract and remaining on hands and in the possession of the defendant at the time of. such decline—
“And also on any stock of inner tubes purchased by the defendant from the plaintiff under said contract and sold by the defendant to its retail customers and remaining on hand and in the possession of any such retail customers at the time of such decline, it being’understood by plaintiff that the defendant obligated itself to protect its customers in like mánnér against any decline in price on any stock of inner tubes purchased of the defendant and remaining on hand in the possession of its customers at the time of any such decline in price; . . .”
That during the calendar year of 1919, it was the usual custom of manufacturers and wholesale and jobbing dealers of inner tubes to protect their customers against any decline in price of inner tubes remaining on hand and in the possession of the purchaser at the time of such decline; that under the contract the plaintiff delivered to the defendant during the months of March, April, May and June, 1919,, quantities of inner tubes, and during such time and subsequently, the defendant made payments and received credit as-shown by an itemized account attached, marked exhibit “A”; that the tubes delivered to the defendant after May 12, and during the remainder of May and during the month of June, 1919, were invoiced from the price list existing prior to May 12, while under the terms of the contract they should have been invoiced under the list existing in May subsequent to the 12th, and in June, the decline of 15 per cent having gone into effect May 12. An item of $190.69, appearing on exhibit “A,” was alleged to be for an overcharge of 5 cents per tube on all tubes after May 12. An item of $355.95 was alleged to be 15 per cent discount on tubes purchased after May 12, and items of $411.85 and $125.92 were for similar discounts on account of tubes sold to customers and held in stock by the customers on May 12. It was further alleged that on account of the plaintiff’s refusal to comply with its contract after June, the defendant was obliged to go on the open market and buy tubes, by which it lost $980.60. ■Items of $73.65 and $510.50 on exhibit “A” were alleged to cover defective merchandise, on account of which it was averred that the plaintiff owed the defendant $5,331.71. Further, that the defendant suffered damages in the sum of $10,000 on account of lightweight tubes it was compelled to use to supply the demands of its trade. Lastly, it was alleged that the plaintiff failed'to comply with its contract and place on the tubes the name “The Motor Equipment Company,” and the defendant lost thereby by way of advertisement $2,000. Judgment was prayed against the plaintiff for $17,331.71, with six per cent interest thereon from December 31, 1919, and the costs of this action.
The jury returned, a verdict for the plaintiff for $7,002.34, and made the following answers to special questions:
“Q. 1. Is it not a fact that the plaintiff would have continued to furnish the -defendant its requirements for tubes for the balance of the year 1919 at 35 per cent off of the United States Net Dealers List in effect in February, 1919, and an additional 5 per cent off if paid on or before the 10th of the following month? A. Yes.
“Q. 2. Is it not a fact that the plairftiff would have furnished the defendant’s requirements of tubes for the year 1919, if the defendant had paid therefor the contract price as contended for by the plaintiff? A. Yes.
“Q. 3. Is it not a fact that the plaintiff, on June 11th, 1919, delivered tubes to the defendant on orders of the defendant? A. Yes.
“Q. 4. Is it not a fact that the plaintiff delivered tubes to the defendant after the defendant had refused to pay for the same at the contract price as contended for by the plaintiff? A. Yes.”
This negative form of question has twice been outlawed by this court. (A. T. & S. F. Rld Co. v. Butler, 56 Kan. 433, 43 Pac. 767; McClintock v. Pyle, 91 Kan. 393, 137 Pac. 788.)
“Q. 5. If you allow the defendant any damages on account of the tubes that it bought from the Mansfield Tire & Rubber Company, then state how much you allow the defendant by reason thereof. A. None.
“Q. 6. If you find for the plaintiff, upon which cause of action do you so •find? A. First cause of action.”
The defendant appeals and complains of various rulings of the 'court touching the exclusion of evidence, the giving and refusing of instructions, and denying a new trial, special complaint being made of the exclusion of evidence in support of the $10,000 damage claim for failure to furnish tubes of the weight contracted for, and in support of defendant’s claim for $980.60 for loss of profits on special orders. It is also urged that the verdict returned is not in accord with the evidence under any theory whatever.
Touching the item of $411.85 on account of decline in price it was testified that a great many customers returned the goods that were shipped to them, and when asked for what reason, an objection was made and sustained; and when asked what customers said as to why they returned them, a similar ruling was made. The defendant then offered to prove that customers stated that their reason for returning them was they were light weight, which was obj ected to and the objection sustained. A paper, exhibit 19, being a statement of credit issued to the customers covering the decline in price, was shown. When it was offered in evidence, the witness on the stand said that he could not say it was correct in detail; that the items contained therein were made out by one of the employees; that the data was gathered from letters received from customers, and an objection to its introduction was sustained. Further offers were made and rejected. It appears from the counter-abstract that this exhibit 19 was an original letter sent to the plaintiff company; .that no letter was returned, to the knowledge of the witness. It is stated to have been a list of thirty-two customers and credits issued to each for fifteen per cent discount — $411.85. A letter from the defendant to the plaintiff, dated July 7, 1919, inclosing copies of credit memos issued to the defendant’s customers on account of decline in price totaling $125.92 was offered in evidence. Exhibits 41, 42, 43 and 44, debit memos sent plaintiff by the defendant on account of defective tubes returned by customers amounting to $496.92, were received in evidence. Exhibits 47 to 57, being copies of credits sent by defendant to customers representing fifteen per cent decline, were rejected. The defendant then offered -to show that these exhibits, representing credits actually given to the customers, totaled $125.92, which offer was refused. Another list of these credits, exhibit 20, appears in the counter-abstract. June 19, 1919, the plaintiff wrote the defendant, saying:
“We attach debit memo which you sent recently representing rebate on tubes in stock May 14th. As we have not agreed to protect any of our j obbers on price decline on Special brand tubes, no exception had been made. . . . If you will go over our correspondence . . . you will find that nowhere did we agree to sell you tubes and cover a price reduction . . , We are unable to make any concessions such as your deductions call for.”
Items of credit contained in letters or statements sent to the defendant’s customers would not- of themselves be competent evidence against the plaintiff, and an examination of the record on this point indicates that no material error was committed in respect thereto.
By the fourth paragraph of the sixth -instruction, the claim for damages on account of price decline was taken from the jury. This is complained of as erroneous in view of the testimony touching a reduction for decline. The plaintiff’s sales manager testified that he was especially instructed by the general manager; that he approached the defendant’s credit man on contracts for tubes and went into detail with him.
“And next came the price protection; I told him that that was usual and we would protect him within sixty days. That was what we was doing with all our accounts. He asked me about protection and I told him we would protect him for sixty days against price fluctuation.”
He testified that later he heard the general manager talking over the telephone with the sales agent: ‘T heard a quotation reiterated, thirty-five off of United States dealers- net list and five for cash,” that thereafter he perfected the deal and when a slight decline came he told his general manager: “Sam, I believe we are stuck.” The sales manager swore positively to such an agreement and also stated that May 12 or 13, he heard a conversation between the defendant’s tire buyer and the plaintiff’s business manager in which the former told the latter, he would “check up on the stock on hand, and the amount that was in the hands of the customers as reported by customers and send it to them with the debit,” to which the response was that “it would be taken care of.” In view of all this correspondence and conversation, the debit memos sent to the plaintiff were proper. It was error to take from the jury the question of price decline.
As to the claim of $10,000 damages on account of failure to furnish tubes of the agreed weight, the defendant argues that after the diminished weight was observed the plaintiff’s general manager agreed to go back to the heavier weight; that objections were sustained to testimony as to why customers returned the light tubes and as to the consequent damage. It appears that in May the plaintiff advised the defendant that no more heavy tubes would be made. Plaintiff’s counsel call attention to the fact that in response to their claim it was pleaded that the defendant unconditionally accepted the lighter weight tubes and did not attempt to rescind on account of them. It appears that the defendant sold practically all the tubes furnished, though it also appears that many of the lighter ones were returned to the defendant. Attempts to get a witness to state why these were returned resulted in objections being sustained as hearsay. The defendant’s credit man was asked to state how damage resulted from the light weight but was not permitted to answer, but we do not know what his answer would have been and hence cannot say that the ruling was erroneous. Finding no proper evidence of damage on account of weight we affirm the action of the trial court in taking this matter from the jury.
It is claimed that failure to stamp the tubes with the name “The Motor Equipment Company” was a breach of the contract, and that the court committed error in withdrawing this matter from the jury. It was contended that because the defendant had accepted and retained tubes without this stamp it could not be heard to com plain; also, that the defendant abandoned this claim during the trial. Attention is called to a colloquy between the court and one of defendant’s counsel during which the court asked what was the measure of damages, to which it was replied, “loss in advertising,” and counsel said witnesses would endeavor to give it a real value.
“Of course, that is a thing also that cannot be — Your Honor, cannot absolutely say that because 'they did not have their name on one tire, that they lost a dime or a nickel by that, but they can — men who know about that business can testify that failure to do this on a dozen tires or on a thousand tires, or on ten thousand tires, or whatever it was — they would probably sustain a damage of an average of a penny a tube or a nickel a tube or whatever they might.
“The Court: All right, but you say that the Motor Equipment Company was never on any of them?
“Mr. Campbell: Yes, sir.
“The Court: I think you have certainly waived it then, by taking them.
“Mr. Campbell: We had a contract for this year, 1919.
“The Court: I know, but you can’t say, we will go on and take these until we get to owing a lot of money, and then we will hold that money, on account of the various breaches of the contract. You can’t do that. There isn’t any such thing as excusing damages.”
It was finally announced that no ruling would be made at that time, and it seems that no subsequent ruling was made, but it also appears that no competent evidence was offered on this item and it is somewhat forcibly argued that the stamp of the name on the inside of a rubber tube would not afford much advertising after the outside tube had enclosed it. Under the condition shown by the record, we think there was no error in taking this item from the jury. • -
The court also withdrew the matter of loss of profits by reason of inability of the defendant to fill its orders. In its cross-petition the defendant set up a claim for $980.60 on this account alleging that it was unable to purchase its full requirements from other sources than the plaintiff. It was testified that the defendant made arrangements to buy of another tire company and efforts were made to buy of still another, and that in July, 1919, and the remainder of that year, private-brand tubes were hard to obtain and that it was impossible to get all it required, which was in the neighborhood of twenty-five to thirty thousand. ’ The defendant offered to show that certain orders had to be refused on account of inability to fill them and that a profit of $980.60 was thereby lost. This was objected to and the objection sustained. A list of customers from whom these orders were received was attached to the cross-petition, an aggregate of about 966 orders coming from two hundred customers. It is argued that this claim was for anticipated profits, and remote. It will be recalled the jury found that the plaintiff would have furnished the defendant’s requirement of tubes if the latter would have paid the contract price and that they refused to allow any damages on account of tubes bought from an outside company. There was testimony to the effect that there were tubes on the market which could have been stamped with very little trouble and expense. The acting general manager of the plaintiff testified that when the weight of the tubes was changed the plaintiff had about twenty thousand on hand ready to make up for anyone who wanted them. Under all the testimony touching this matter we find no material error in respect thereto, the claimed profits, even if proved, being speculative and uncertain. (Stewart v. Power, 12 Kan. 596; Railway Co. v. Thomas, 70 Kan. 409, 78 Pac. 861; Gas Co. v. Bailey, 77 Kan. 296, 94 Pac. 258; Artwein v. Link, 108 Kan. 393, 195 Pac. 877.) Had the tubes been bought to fill existing contracts, another rule might apply.
Complaint is made that the question of custom of the trade was not allowed to go to the jury, but was expressly withdrawn. It is contended that the custom as to protection against decline in price was properly shown by the defendant. But evidence was offered to prove an express contract, and around this matter a good deal of the controversy centered. It is also suggested by the defendant that under the terms of the contract providing for protection against decline what that meant could only be determined by the custom or practice in the tube trade. Much testimony was offered as to the meaning of “60-days protection.” Several witnesses did testify that the expression means that if the dealer has bought tubes at the price offered by manufacturers and there is a reduction in the list from which he has bought the merchandise on hand, on his stock unsold, bought sixty days prior to the reduction, he is credited or credit is given for whatever difference there is between the price paid and the amount of the decline, and one witness testified that it means that 'jobbers and retailers are to be protected in case of decline. In the correspondence between the parties the defendant’s letter to the plaintiff of February 24, 1919, said:
“This will confirm conversation with you this morning and agreement ... to furnish . . . requirements for automobile inner tubes for the year 1919, at 35% discount off of the United States Tire Co. net dealers list, in effect at the time that specifications for tubes are given; 5% additional discount for cash on the 10th of the month following delivery.”
The reply said:
“We confirm your understanding of 35% trade and 5% for cash . . .”
To this it was responded:
“No doubt but your intentions were to say, the current price list. In other words, if this list changes tomorrow, any specifications given after the change, the discount will be from the new list, and not from the present list.”
Also:
“Evidently this is an error as his letter read ‘from the current list’ and no doubt that is the way you would want it, the list in effect at the time of delivery of order.”
From the plaintiff:
“In case of an increase and there are goods due you, but undelivered, your order would not be effective but would be billed at the old list or the one effective when the order was taken.”
Replying to this, the defendant wrote:
“We believe that you are rather confused in your wording of this letter. It is our understanding that the discount will apply from the list in effect at the time which specifications are given froiri time to time. Kindly confirm this.”
The plaintiff’s reply said:
“The tubes are sold to you on an extremely short margin and we could not afford to sell them under the quotation we gave and in case of an increase we would have to go by same on -material on which delivery' dates had not been given.”
May 23, the defendant wrote:
“You sold ... on basis of a certain sample at 35% off of the United States Tire Co.’s price list at the time specifications for an order were given . . . I do not know what you mean by old prices. There is only one price at which we purchased the tubes from you and that was 35% off of the United States Tire Co.’s Net Dealers list price at the time specifications for an order were given to you, less 5% discount. ...”
June 27, the defendant wrote:
“Our contract with you is that we are to buy these tubes at 35% off the current U. S. dealers net list in force at the time specifications! are given. . . . We must know by July 1st, as to whether or not you intend to carry out your contract. ...”
To this, the reply said:
“We agreed to deliver to you your 1919 requirements of Special Brand tubes at the (present) price, not the current price as you seem to think. . . If you want to buy your tubes from us . . . you will have to pay us the present prices of tubes which is the same as it was when you placed your first order. ...”
So far as the record shows this seems to have ended the correspondence-on this subject which shows that the parties were not contracting with reference to a custom but were trying to contract for a specific discount in case of a decline in price. Hence, there was no error in excluding or withdrawing the matter of custom.
Complaint is made, that the jury were instructed that if they found the contract allowed five per cent discount for cash they should allow it only on tubes delivered from May 1 to May 11, inclusive. The defendant urges that the May invoice amounted to $3,809.35, and on June 10 it sent a check to the plaintiff for $2,670.41, the difference covering divers discounts including the one now under consideration — of $180.95, and that no objection was made to this item in the reply received from the plaintiff, the only objection being in relation to other matters; that “it kept the check all right but returned the debit memos, 'representing rebate on tubes in stock May 12th.’ ” Counsel say:
“If'plaintiff accepted the check of June 10th sent in settlement of the May account, made no question about the cash discount, and only kicked on the rebates because it claimed the contract was different from what the jury found it to be, it should be required to stand by its attitude then taken.”
The plaintiff replies that five per cent discount was to be allowed only in case payment was made before the 10th of the month following the delivery of the tubes. It says:
“Under this arrangement, the purchase price of the goods invoiced and delivered to appellant was due when the same were delivered. The trial court took this view. The payment on or before the 10th of the month, related only to the discount.”
It is argued that the undisputed evidence showed that the plaintiff was not paid for the May invoice, and therefore, the defendant was not entitled to the five per cent discount for the month of June, and the court could do nothing but take this item from the jury. The letter of May 23 contained this: . . less 5% discount if payment is made on or before the 10th of the month following the delivery of the tubes, . . .” To this letter we find no reply in the record, and, hence, it would’ seem that on this one point the parties agreed. If, therefore, for tubes sent in May payment was made June 10 the defendant was entitled to the discount. It is suggested that the correspondence shows that the account was still open, certain claims of credit being .unsettled on June 10. We think, however, that the contract was for five per cent off if paid by the 10th of the following month and that the June 10 remittance was intended by the defendant and accepted by the plaintiff as a payment for the May tubes so far as this discount was concerned — certain other claims of credit not being then disposed of — and hence, the item of $180.95 should have been allowed to go to the jury.
(Filed August 11, 1922.)
Finally, it is insisted that the verdict for $7,002.34 can by no stretch of the imagination be made consistent with the evidence, and divers figures and mathematics are presented to sustain this contention. The plaintiff, however, appears to find reasoning on this side of algebra and geometry to show the consistency between the evidence and the verdict but suggests that if we should find the trial court erred in one or more items, the judgment should stand as to the remainder. We have given this perplexing problem in figures as much consideration as we deem it entitled to and are not moved thereby to depart from the result reached by the triers of'fact save as already indicated.
Finding no material error except as to the two items of $411.85 and $180.95, the judgment is affirmed except as to those, and the cause is remanded with direction that unless the parties get together on such items a new trial as to them be granted. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff was injured while in the employ of the defendant construction company. He was working as a teamster at $50 a week for himself and team. He sued for $780 on account of total disability and $4,095 on account of 75 per cent partial disability for seven years. After filing a general denial, the defendants under an agreement with the plaintiff’s attorneys joined in a request for the appointment of a referee so the matter could be determined as soon as possible.
The order authorized the referee to make findings of fact and conclusions of law, subject to the approval of the court. These findings of fact were to the effect that the injuries caused a temporary total disability for thirty weeks, and would cause a permanent partial disability, and that the construction company had paid the doctors’ bills and hospital fees in the sum of $150. As conclusions of law the referee found that the plaintiff was entitled to receive $15 a week for 29 weeks or $435, and $12 a week for 368 weeks, or $4,635, a total of $5,067.
The defendants moved to set aside certain of these findings of fact and conclusions of law and to make certain others; and also moved for a new trial.
The plaintiff moved to amend the prayer of his petition and asked for partial disability for 8 years and further moved that the cause be recommitted to the referee to make additional findings of fact and conclusions of law.
Thereafter, the court ordered the plaintiff within ten days to offer additional testimony as to his earning capacity.
A number of witnesses were called before the court and testified touching the ability of the plaintiff to do various kinds of work. The plaintiff then moved that the court make an additional finding to the effect that on account of the injury he would be able to earn $5 a week for 8 years-from December 16, 1921; that the construction company had paid compensation for 10 weeks’ total disability in the sum of $150, and $70 for doctors’ bills and hospital fees; that the plaintiff had suffered permanent partial disability so that he would never be able to work as a teamster and in the future could do only light work which would permit him to sit in a chair and not have to strain his back in any way while doing his work. Also to modify a conclusion of law so that he would be entitled to $15 a week for 29 weeks, $435, and $12 a week for 416 weeks, or $4,992, and he would be entitled to the total $5,427 in a lump sum, less the $150 theretofore paid. The defendant moved for a new trial, which was overruled, and the court rendered judgment for the plaintiff in the sum of $5,067.
-Errors assigned are the refusal to' change the findings of fact and conclusions of law, the admission of testimony after the report of the referee, denial of a new trial and excess in the judgment.
In their brief the defendants urge that the plaintiff was entitled to only $6 a week for permanent partial disability and that a lump sum for that amount should have been reduced by 20 per cent.
As to the taking of testimony after the report of the referee was in, it will be observed that he was a referee and not an arbitrator. The action was begun directly in the district court and the ordinary matter of a reference was acquiesced in, and the referee reported as is usual in such cases. Thereafter the court had a right to accept, set aside, modify or hear testimony in the case as it saw fit, or refer the matter back to the referee to take such testimony. The matter was all within the control of the court and it had the power to discharge the referee, make a new reference or take cognizance of the case without the aid of the referee at all. (Cemetery Association v. Hanslip, 82 Kan. 20, 107 Pac. 785; Brown v. Railway Co., 83 Kan. 574, 112 Pac. 147; Humble v. Insurance Co., 85 Kan. 140, 116 Pae. 472; Holmes v. Holt, 93 Kan. 7, 142 Pac. 369; 23 R. C. L. 300-304.)
It is argued that the additional testimony was in itself incompetent. It seems that a number of men in different lines of business were permitted to testify that they had no employment they could offer the plaintiff. Two others testified that they had certain light jobs they could offer him at a small wage, and a railroad man testified that the plaintiff might hold the job of a flagman at a railroad crossing, but he did not indicate how he could hold it or who would employ him. Of course, testimony that divers and sundry men could not give the plaintiff employment was incompetent, and its reception opened a door which might let in entirely too much of the business world. Others who testified as to positions they could give him and what he would earn were properly heard.
It is argued that when the proper difference between what the injured party could have earned before and can earn after the injury is determined; only 60 per cent should be awarded. The theory seems to be that in this way the present value of the lump-sum allowance should be ascertained. We do not find, however, any express authority or requirement for this in the statute. Subdivision 19 of section 3, chapter 226, Laws of- 1917, thus reads:
“Provided, however, in case of partial disability not covered by schedule the workman shall receive during such period of partial disability not exceeding (8) eight years, 60 per cent of the difference between the amount he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury.” (See, Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861; Close v. Mining Co., 105 Kan. 257, 182 Pac. 392; Emry v. Cripes, 110 Kan. 693, 205 Pac. 598.)
Lastly, it is argued that the plaintiff recovered more than he prayed for, which seems to be true. He did ask to amend his petition and enlarge his prayer, but as the case will have to be further considered this matter can be properly attended to on the next trial. As there is nothing whatever in the report of the referee or the findings of fact by the court to show what the plaintiff was able to earn before and after the injury it is imposible to determine how much he should be awarded.
The judgment is therefore reversed and the cause remanded only for the determination of this matter and such judgment therein as may be required. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an award made under the workmen’s compensation act. While Margaret Crawn was in the employment of the Fowler Packing Company, she accidentally fell from one floor level to a lower one which resulted in a fracture of the left femur in the region of the hip joint, an injury so serious in its nature as to cause total permanent disability. The accident occurred April 14, 1919, and on December 11, 1919, the defendant paid her $50 as compensation, and she gave a receipt for the same. On January 28, 1920, another payment of $50 was made, and a receipt for the same was given. On April 6, 1920, an additional payment of $244.85 was made to her which was the amount due as compensation up to that time at the rate of compensation payable in such a case, based 'on her average weekly wages for the year preceding the injury.
A controversy arose as to the compensation due, and the plaintiff asked for the appointment of an arbitrator. At the request of the defendant the following questions, in substance, were referred to the arbitrator for determination:
1. Was the release given by the plaintiff a binding one?
2. Was there any mutual mistake of fact between the parties when the release was taken?
3. Was there any fraud or deceit on the part of the defendant in obtaining the release?
4. Was the plaintiff suffering from any mental disability when the release was signed?
5. Is plaintiff entitled to any additional compensation on account of her injury?
Evidence on the questions was submitted. After stating the nature of the injuries sustained, and that they had resulted in total permanent disability, the arbitrator found that plaintiff’s average weekly wages for the year preceding the accident were $16.57, that two payments of $50 each had been made and receipted for ás has been stated, and that a third payment had been made of $244.85. On the receipt of it, plaintiff had executed a release of all claims on account of her injury. It was further found that the amount paid was grossly inadequate for the injury sustained, and that the release was made under a mutual mistake of fact of both parties as to the nature and extent of plaintiff’s injuries, and was therefore not of binding force. There was a further finding that plaintiff had been taken to a hospital by the defendant and treated by a physician and surgeon employed by the defendant, and that all of the hospital, physician and surgeon’s bills, as well as for nursing and medicines, were paid by the defendant, and that the payments on that account exceeded the amount allowed by statute for these purposes. Plaintiff was awarded in a lump sum $855.70, less the amount which had been previously paid as compensation up to the time of arbitration, which amount was sixty per cent of her average weekly earnings, and she was also allowed for the eight-year period after the injury compensation at the rate of $9.95 per week. There was also a finding that there was no evidence of fraud or deceit practised in the settlement and no evidence as to the mental disability of the plaintiff when it was made. The court approved the award. The defendant contends that the release was valid and binding, and that the trial court erred in refusing to set aside the award.
The contention that there was no evidence of mutual mistake cannot be upheld. The evidence tends to show that both parties to the settlement proceeded on the theory that plaintiff had about recovered from her injury and would be able to return to work within a few days, and this is confirmed to some extent by the fact that the compensation agreed upon was the amount due up to the time of settlement. The defendant’s physician took plaintiff home from the hospital, told her that she had recovered from her injuries and all that she had to do thereafter was to learn to walk. Plaintiff told the agent of defendant, who made the settlement, that she was ready to go to work and thought she would be able to do so within a week or two. He stated to her that the doctor had said that she was all right and in good condition when he brought her home from the hospital, and he testified that the payment was made on the basis that she was then ready to go back to work. It is true, he also testified, that the release was taken as a full payment of her claim against the defendant. There is a controversy as to whether the terms of the release were read and understood by the plaintiff and she stated that she supposed she was signing a receipt for the accrued compensation as she had done when former payments were made. However that may have been, it is manifest from the evidence that all concerned were mistaken as to the nature of her injuries, and that plaintiff entertained the opinion given to her by the doctor of defendant that she had recovered and she rested in this opinion until an examination was made by three other doctors, which revealed the fact that her injury was permanent in character, and that she would be a cripple for life. There was not only mutual mistake of the parties, but the consideration for the release was grossly inadequate. It has been decided that:
“A mutual mistake as to the extent of existing injuries, is such a mistake as will justify setting aside a release of liability on account of those injuries. ... A release following an agreement as to compensation is no defense to an action under the Workmen’s Compensation Law where that agreement is based on a mutual mistake of fact, and provides for a grossly inadequate compensation.” (Weathers v. Bridge Co., 99 Kan. 632, 636, 637, 162 Pac. 957. See, also, Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9; Wolf v. Packing Co., 105 Kan. 317, 182 Pac. 395.)
It is further contended that the arbitrator was without authority to consider any question relating to the validity of the release. In providing for an arbitrator the person agreed upon by the parties was appointed by the court. The defendant, as we have seen, made a special request that certain questions other than the amount of compensation, should be referred to and determined by the arbitrator. Several of these questions related to the validity of the release, including whether it had been obtained by mutual mistake. Without objection evidence was presented on this issue, and also as to the adequacy of the consideration that had been given for the release. After asking for a reference and a determination of the question, the defendant is hardly in a position to challenge the authority of the arbitrator to determine it. It is contended by the defendant that the compensation act does not expressly give an arbitrator power to pass on the validity of a release, even if the parties expressly request a submission and determination of the question. It is insisted that only a court having general equity jurisdiction can cancel a settlement and release on the ground of mutual, mistake. The compensation act recognizes that questions relating to compensation, other than the amount of the same, may be referred to the arbitrator. After providing for the appointment of an arbitrator by consent, or upon the order of the court, it is provided:
“The consent to arbitration shall be in writing and signed by the parties £tnd may limit the fees of the arbitrator, and the time within which the award must be made, and unless such consent or order of appointment expressly refers other questions, only the question of the amount of compensation shall be deemed to be in issue,” etc. (Laws 1917, ch. 226, § 11.)
Any question touching the right of a workman to compensation which has been expressly referred may, therefore, be considered and determined by the arbitrator. The arbitrator is in a sense an arm of the district court and is subject to the supervision of that court, and his decision may be reviewed by it upon certain grounds. (Laws 1917, ch. 226, § 16.) He is vested with judicial authority and his decision is binding upon the parties unless it is modified or set aside upon review by the court. It is competent for the legislature to confer judicial power upon any tribunal or court inferior to the supreme court, and even if an arbitrator is regarded as an independent court, no reason is seen why he may not be vested with jurisdiction to hear and determine any question pertaining to the right of a workman to compensation which has been expressly referred to him in the order of appointment.
The decision and award of the arbitrator were brought before the trial court upon a motion to set them aside upon the grounds that the evidence did not establish that the settlement or release were made under a mutual mistake, and that there was no basis for holding them to be without binding force. The decision of the arbitrator was approved by the court, and judgment for plaintiff was accordingly given.
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The opinion of the court was delivered by
Mason, J.:
This is an action to obtain a construction of the will of Samuel S. Kincaid. Two nieces to whom specific legacies were bequeathed, and who were also named among the seven residuary legatees, died without issue before the testator, and the questions involved are as to the proper disposition of the shares of the estate which would have gone to them if they had survived him. The trial court decided (1) that the amount of their specific legacies should be paid in equal parts to their sister and two brothers (who are the plaintiffs herein) on the theory that what they were to receive from this source was intended as a part of a gift to a class composed .of the two brothers and the three sisters; and (2) that what they would have received as residuary legatees should be distributed among the other residuary-legatees named in the will in the same proportion as the general residue. One other legatee died before the testator, but he was survived by four children who take his share by representation (Gen. Stat. 1915, §11811), and for simplicity of statement the matter will be discussed as though he were still alive.
The plaintiffs, as already indicated, are the two brothers and the sister of the legatees who died. They appeal from the second part of the decision and contend that the shares these two would have received as residuary legatees (including-their specific legacies if the trial court shall be held to have erred in awarding this part of the estate to the plaintiffs) should be distributed as though Samuel S. Kincaid had died intestate. The defendants are the residuary legatees other than the two who died. They appeal from the first part of the decision and contend that they are entitled to all the property that would have gone to the two legatees who died, if they had lived.
The testator left neither wife nor children. Aside from a number of minor specific legacies which do not affect the matter in con- ’ troversy he left his whole estate to the three living children of a dead brother, James O. Kincaid, one of whose children also had died before the execution of the will, leaving a number of children for whom no provision was made; to the two children of his dead sister Sarah Bell; and to the five children of his dead sister, Rachel Rinehart. The provisions with reference to these nephews and nieces were contained in three subdivisions, designated as the fifth, sixth and seventh, each relating to one of the three groups and introduced by the words: “I give and bequeath to the [now living, in one instance] children of my [brother in one instance, sister in the others, the name being given in each case] twenty-five thousand dollars, to be divided among them as follows: ■. . .” The names of the individual beneficiaries were given and in none of the three groups were the shares, into which the $25,000 was divided, equal. The two subdivisions of the will which require interpretation read:
“Sixth. I give and bequeath to the children of my sister Rachel Rinehart Twenty-Five Thousand Dollars to be divided as follows:
“Benjamin K. Rinehart, of Castle Rock, Montana, is to have Twenty-Five Hundred Dollars ($2500) absolutely. But he is to have no share in the residue and remainder of my estate.
“Winfield Rinehart, of-, Colorado, is to have Twenty-Five Hundred '
($2500) Dollars absolutely, but he is to have no share in the residue and remainder of my estate.
“Mattie Rinehart, of Tucson, Arizona, is to have Sixty-Five Hundred Dollars ($6500) absolutely.-
“Frances Rinehart of Tucson, Arizona, is to have Sixty-Five Hundred Dollars ($6500) absolutely. It is further my will that if this legatee (who is now far gone with consumption) should die before my estate is distributed, that this Sixty-Five Hundred Dollars ($6500) be added to the share of her sister Mattie Rinehart to compensate her for the years of nursing and care she has bestowed on her sister during her sickness.
“Rachel L. (commonly called Dolly) Corbett of-, Kentucky, is to have Seven Thousand Dollars ($7000) absolutely, but is to have no share in the residue and remainder of my estate.”
“Ninth. I give and bequeath all the rest, residue and remainder of my estate wheresoever the same may be situated to William R. Kincaid, Minnie O. Freemyer, Thomas F. Kincaid, Thomas K. Bell, Mrs. M. E. Morse, Mattie Rinehart and Frances Rinehart, the same to be divided among them in the same proportion as their former bequests bear to the whole sum bequeathed them. Sixty-Three Thousand Dollars ($63,000).”
Í. The ordinary situation in which a legacy or devise is regarded as made to a class rather than to the individuals composing it (a • consequence being that on the death of one member before the testator his share goes to the other members and not to the residuary legatees or heirs) arises where a gift is made to a group of an uncertain number, the amount each is to receive not being determined. But even if the beneficiaries are named they may be treated as a class, if an intention to that effect is otherwise shown. (40 Cyc. 1473; 28 R. C. L. 260-267.) The tests are discussed and illustrative cases collected in a note in L. R. A. 1918B, 234. The effort of the court is of course to arrive at the probable intention of the testator from a consideration of all parts of the will. Here the beneficiaries are definitely ascertained and named, so that they are to be treated as individuals unless a different purpose is affirmatively shown elsewhere in the instrument. The fact that the testator begins the subdivision relating to each group by stating that he gives t-wenty-five thousand dollars ‘to the children of his dead brother or sister tends to show a collective treatment. But in our judgment this is overcome by the circumstances that the legatees are not only individually named, the amount each is to receive being stated, but are apportioned different ■ sums, indicating a plan not to treat them equally or merely as members of a group, but in accordance with what was regarded as appropriate in the case of each one considered individually. This view we think finds further support in these'additional provisions indicating a different treatment of the members of each group: In the case of the three children of James O. Kincaid two were to receive only the income of the $10,000 allotted to them, the principal at his death to go to their children, while the third was given $5,000 outright. In the case of the two children of Sarah Bell, the share of the daughter ($10,000) was to be invested by trustees for her benefit and if she died without issue the principal was to go to the son, to whom $15,000 was given outright. In the case of the five children of Rachel Rinehart three were explicitly cut off from any share in the residue and remainder of the estate, while the other two were named as residuary legatees and provision was made that if one of them died before the estate was distributed her share should go to the other, although the fact that' both died before the testator deprived this provision of practical effect.
2. A lapsed legacy ordinarily falls into the residue and inures to the benefit of the residuary, legatees! It is a rule of the English common law, however, which has met with considerable acceptance in this country, that on the death before -the testator of one of several residuary legatees (who do not take jointly or as members of a class) his share goes, not to the others, but to whoever would have inherited the property in case no will had been made.. (40 Cyc. 1952, note 59; 28 R. C. L. 338, 339, notes 1 and 2; note, 44 L. R. A., n. s., 811-813.) In one state the court has held to the contrary, but without discussing the cases by which the rule is supported. (Gray v. Bailey, 42 Ind. 349; Holbrook v. McClearey, 79 Ind. 167; West et al. v. West et al., 89 Ind. 529; see, also, Mann v. Hyde, 71 Mich. 278.) In two states the rule has been abrogated by statute. (Woodward v. Congdon, 34 R. I. 316, 323; In re Jackson, 28 Pa. Dist. 943.) Some cases cited in support of the rule are affected by distinctions between lapsed legacies and lapsed devises and some by a failure to make a distinction between a legacy which lapses because of death, which the testator may be regarded as having anticipated, and one which cannot be given effect because void in itself, a condition he can hardly be deemed to have taken into account. The rule has been severely criticised even by judges and text-writers who have felt constrained to follow it. (See, note in 31 Yale Law Journal, 782; also Waln’s Estate, 156 Pa. St. 194; Prison Ass’n v. Russell’s Admr., 103 Va. 563; 2 Jarman on Wills [Sweet’s 6th ed.], 1056-1058.) The grounds of' such criticism are indicated in these excerpts:
“. . . it was held in Skrymsher v. Northcote, 1 Swanst. 566, [1818] that a lapsed portion of a residuary bequest went to the next of kin, and not to the other residuary legatees, on the ground that the latter were given specific portions of the residuum, and could not take more by the intent of the will, and receiving the bequest in common and not jointly, there could be no increase by survivorship. The rule thus established does not commend itself to sound reasoning, and is a sacrifice of the settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, shown in the appointment of general residuary legatees, that his next of kin shall not participate in the distribution at all. The rule is in fact a concession to the set policy of English law, nowhere more severely asserted than in chancery, to keep the devolution of property in the regular channels, to the heir and next of kin, whenever it can be done. If the question were new in this state, speaking for myself I should not hesitate to reject the English rule as wrong in principle and subversive of the great canon of construction, the carrying out of the intent of the testator.” (Gray’s Estate, 147 Pa. St. 67, 74.)
“The English rule, as we said in Gray’s Estate, 147 Pa. St. 67, does not commend itself to sound reasoning, or'to the preservation óf the testator’s actual intent; but we found it recognized and accepted in our own cases before these particulars in its application arose, and we felt ourselves bound by it.” (Waln’s Estate, 156 Pa. St. 194, 197.)
“There is a well-known rule that where residue is given to tenants in common, and one of the tenants in common dies in the testator’s lifetime, the lapsed share does not go as an accretion to the gift to the other tenants in common, but it is held that there is an intestacy and the share goes amongst the next of kin. That is, there can be no residue of a residue. The arguments by which this rule was arrived at are perfectly intelligible and, one may say, plausible. Nevertheless I think that the effect of it is to defeat the testator’s intention in almost every case in which it is applied; but it is a rule by which I am undoubtedly bound.” (In re Dunster [1909], 1 Ch. 103, 105.)
In Aitken v. Sharp, [N. J. Eq.] 115 Atl. 912, the rule was recognized as binding upon the court by reason of prior decisions, but was held not to be applicable in the case there under consideration because in describing the property disposed of by the residuary clause the phrase was inserted: “including lapsed legacies.” Such a phrase has been said to be superfluous, inasmuch as lapsed legacies ordinarily fall into the residue. (Nickerson v. Bragg, 21 R. I. 296.) It might readily be interpreted as amounting merely to an express declaration by the testator that his meaning is just what the law would presume him to mean were the phrase omitted. In the opinion in the New Jersey case, however, it was said:
“Neither the industry of counsel nor my own examination have discovered any case in this state which decides that, where a testator, either by express words or plain implication, provides that gifts of the residue shall not lapse, but shall sink into or continue therein, the testator shall be regarded as dying intestate as to such gifts. I feel, therefore, at liberty to give effect to the intent of the testator regardless of the earlier English decisions above referred to. Taking the entire will into consideration, it is quite plain that the testatrix did not intend to die intestate as to any portion of her property. . She anticipated that some of her beneficiaries might die in her lifetime, and made provision for such event, and therefore in the third paragraph she not only gave to her residuary devisees and legatees all the rest, residue, and remainder of her estate, both real and personal, in certain proportions, but she expressly provided that such residue should include lapsed legacies.” (p. 915.)
This court has not heretofore had occasion to decide whether to follow the rule requiring the lapsed share of one of several residuary legatees to be treated as property undisposed of by the will. We might now avoid deciding that question by holding — as we think the facts justify — that in any event there áre special features of the will under consideration which would require a decision in favor of the surviving residuary legatees. One of them is the circumstance that the residue of the estate is larger than the part disposed of by specific legacies, which gives added force to the presumption that the testator refrained from giving all his property to the residuaries' only for the sake of the particular legatees. More important, however, is this consideration: Of the ten nieces and nephews to whom specific legacies were given, seven were also made residuary legatees. In the case of each of the other three the language relating to the specific legacy was followed by the express statement that the legatee “is to havé no share in the residue and remainder of my estate.” Although this provision might be open to interpretation as a mere express statement of what would be implied without'it, we regard it as showing affirmatively that the testator did not wish the three legatees referred to to receive more than the specific amount allotted to them. And from his expressly indicating that these three were to receive nothing from the residue it may be inferred that it was not his purpose that any unnamed heirs should be more favored in this regard. But while in our view these specific provisions of the will plainly show the testator intended that the three legatees who were not included among the residuaries should receive no more of his estate than the sums specifically set apart to them, we think if these provisions had been omitted the same purpose would have been sufficiently clear. We prefer to rest our decision upon the general principle rather than upon exceptional features of the particular case.
We regard the rule that lapsed shares of deceased residuary legatees shall be treated as intestate property as in direct conflict with the one to which this court is definitely committed — that the actual purpose of the testator, so far as it can be ascertained, must be given effect. The presumption against intestacy of any part of the estate is a means of carrying out this policy which is disregarded by taking lapsed legacies out of the residue for the benefit of those who would inherit from the decedent in the absence of a will. The reasons for allowing lapsed specific legacies to fall into the residue apply with equal force in favor of allowing all the residue to go to the surviving residuary legatees in the case of the death of one of them, instead of turning over a part of it to persons for whom other provision had been made, or who had not been referred to in the will at all. The statement sometimes made in support of the latter practice — that the share of a deceased residuary legatee cannot fall into the residue because it is itself a part of the residue — appears rather to play upon words than to point out any real difficulty. The result of these views is the approval of the ruling of the court distributing the residue of the estate among the residuary legatees who survived the testator.
3. It remains to determine the disposal of the amounts of the specific legacies to the nieces who died before the testator. The plaintiffs contend that if this money is not to be paid to them as being a part of a gift to a class of which they are members, then-it should be treated as undisposed of property and'descend according to the statute in case of intestacy. In support of this contention they invoke a rule which has been adopted by some state courts under which, where one to whom a specific legacy is given, and who is also a residuary legatee, dies before the testator without issue, the specific legacy as well as the share of the residue goes to the heirs. (40 Cyc. 1948, note 42, second paragraph from end; 28 R. C. L. 339, note 3; note, 44 L. R. A., n. s., 814; 1 Schouler on Wills, etc., 5th ed., § 519, note 7.) This rule is but an extension or special application of that already discussed and must fall with it. It appears to have originated in Craighead v. Given (Pa.), 10 S. & R. 351. Of the only two cases there cited (which were said to be directly in point) one arose upon the death of two of the four persons to whom the entire personal estate was given and the other upon the death of a residuary legatee to whom no specific bequest had been made. In the opinion it was said: “That the disposition of the residue contemplated a residue arising from the death of anyone, is inconsistent with the division of it among all the legatees. To bequeath to Eliza Semple [to whom a specific sum was left and who was also one of several residuary legatees] a portion of a residue happening in consequence of her own death, is a construction which can never be supported; yet such would be the fact if this be the just construction.” (p. 354.) We regard the reasoning as artificial — the making of verbal difficulties. The reduction of the number of those who are to share the residue does not affect the force of the grounds upon which a lapsed legacy is held to fall into it instead of becoming intestate property. However, if the .rule that lapsed portions of the residuary legacy go to the heirs should not only be accepted but also extended so as to apply as well to lapsed specific legacies to persons who are also residuary legatees, we think the special provisions of the will under consideration already referred to are sufficient to take the case out of the extension to the rule as well as the rule itself. The lapsed legacies, both specific and residuary, should therefore be distributed among the surviving residuary legatees in the proportion indicated in the will.
The cause is remanded with directions .to modify the judgment ’ in accordance herewith. The costs of the appeal as well as of the case in the district court may properly be regarded as a part of the expense of administration, and will be taxed against the executor, to be paid from the assets of the estate. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action, the plaintiffs, Richard M. More, B. H. Minch, John S. Ware, Thomas E. Martin, and William L. Martin, seek a judgment declaring them to be the owners of an undivided one-fourth interest in two oil and gas leases and requiring the defendant to account to the plaintiffs for all income and profits received from the properties. Judgment was rendered in favor of the defendant, and the plaintiffs appeal.
Extensive findings of fact were made. Those findings summarized the evidence on which the judgment was based. They, are too long to be reproduced in an opinion by this court. They will be summarized, but attention should be called to the fact that the findings are almost wholly of an evidentiary nature.
The findings showed that all the parties to this action resided in Bridgeton, N. J.; that Richard M. More, one of the plaintiffs, became acquainted with Harry Winters, an Allen county, Kansas, oil operator ; that Winters wrote to More at Bridgeton, concerning some oil properties that the former had for sale; that More and four of his coplaintiffs had a consultation in Bridgeton concerning the purchase of some of the properties named by Winters in his letter to More; that the consultation resulted in the plaintiffs sending the defendant to Allen county to investigate the properties named by Winters; that the defendant went to Allen county, made an examination of the properties, talked with Winters concerning them, returned to Bridge-ton, and reported to the plaintiffs; that they purchased one of the properties described, which will be hereinafter referred to as the More lease; that the defendant became associated with the plaintiffs in this lease and acquired an interest in it equal to that held by each of the plaintiffs; that an organization to develop the More lease was effected, and the defendant was made secretary and treasurer thereof; that the defendant took charge at Bridgeton of all the business there connected with the More lease for the parties interested; that operations were commenced on the lease; that after a time, matters not progressing in a satisfactory manner, Winters, who was also interested in the lease, and who was in control of operations in Allen county, requested that some of the plaintiffs come and look over the situation with him, and consult with him concerning further work on the lease; that the plaintiffs, together with the defendant, then held a consultation which resulted in the defendant being again sent to Allen county to render whatever assistance, counsel, and advice was possible to further the operation and development of the More lease; that the defendant had no authority to act in any matter outside of the More lease; that on examination, the defendant and Winters concluded it was advisable to stop operation on that lease, which was then producing oil; that Winters and the defendant entered into negotiations which resulted in the defendant’s purchasing an interest in what was known as the Rice and Daniels leases; that the defendant returned to Bridgeton and reported to the plaintiffs what had been done concerning the More lease, but at first did not say anything about purchasing an interest in the Rice and Daniels leases; that the defendant afterward told some of the plaintiffs that he had purchased an interest in the Rice and Daniels leases and described those leases; that the parties to whom the defendant talked desired to purchase a part of the interest that had been acquired by him in those leases, but he refused to sell; that as a result of subsequent negotiations between the plaintiffs and Winters, other oil properties adjoining the Rice and Daniels leases were purchased by the plaintiffs; that at the time the defendant purchased the interest in the Ricé and Daniels leases, those leases were undeveloped, but the Rice lease subsequently proved to be a very valuable property ; that, after it became known to the plaintiffs that the Rice lease was valuable, they demanded of the defendant that he turn over to them a proportionate share of the proceeds of the lease that had been received by him; that he refused to do so; and that this action was then commenced.
The ninth finding of fact concerned the authority given to the defendant on his last trip to investigate the More lease. The eleventh finding concerned the report made by the defendant to the plaintiffs and the negotiations for the purchase of other properties by the plaintiffs from Winters. The fourteenth finding was as follows:
“That there was no express contract either in writing or in parol between the plaintiffs and the defendant whereby the defendant was to do or perform any services for the plaintiff other than wefe connected with the ‘More lease’ aforesaid, and its operation and development, they, plaintiffs, paying the actual ex penses of defendant in making of before-mentioned trips to Kansas, and he, defendant, making no charge for his time, and in such regard no complaint was or is made by plaintiffs against the defendant.”
A motion to set aside these three findings was filed by the plaintiffs on the ground that the findings were contrary to the evidence, and were not supported nor sustained by it. That motion was denied.
1. Plaintiffs argue that the ninth, eleventh, and fourteenth findings of fact made by the court were not sustained by the evidence; that the court committed error in overruling the motion of'the plaintiffs to set aside those findings; and that the judgment of the court was contrary to the evidence. These present but one .question — the sufficiency of the evidence. Attention is again called to the evidentiary nature of the facts set out in findings made by the court. One complaint is that those findings were not supported by the evidence. One difficulty with the argument of the plaintiffs is that the findings of which they complain are largely recapitulations of the -evidence itself. Where this is not true, the findings complained of are supported by evidence. The plaintiffs’ argument is not good.
2. The real question presented by the plaintiffs is a question of law, and that question is: Could the defendant, while in the employ„ of and acting for the plaintiffs, on information received by him while so employed, acquire for himself another and entirely separate oil lease? There is no question about the inability of the defendant to acquire any interest in the More lease or benefit out of it advantageous to himself and detrimental to the rights of the plaintiffs, but that does not dispose of the question now being discussed. Here, the plaintiffs so far as the More lease was concerned were not in any way injured, and the defendant acquired no additional rights in it. It is true, however, that he obtained the information concerning the Rice and Daniels leases while he was acting for the plaintiffs in connection with the More lease.
Illustrations may be of some benefit. A man in'New York might desire to purchase a particular ranch in Greenwood county, Kansas, and might send an agent there to examine the ranch and purchase it, or decline to purchase it, as the judgment of the agent might determine. In the negotiations, the agent might learn from the owner that he owned another ranch in Wabaunsee county which he also desired to sell. The agent might examine the latter ranch and purchase it for himself. The principal certainly would have no right to call on the agent for a division of any profits made by him in the transaction.
A merchant in Chicago might buy a 'trainload of flour from a miller in Salina, and difficulty might arise. An agent might be employed and instructed to go to Salina and adjust the difficulty. While so doing, the agent might acquire information concerning another trainload of flour that could be purchased with profit at Wichita, and would do so. It cannot be said that the agent must account to the principal for the profits made by the agent in this transaction, nor that the agent must first communicate to the principal the information obtained.
The Prairie Oil & Gas Company may, and doubtless does, have men employed for the purpose of investigating oil fields everywhere for the benefit of the company. Such an agent, if he acquires information concerning an oil field, must give the company the benefit of that information. But, if the Prairie Oil & Gas Company should employ an expert specifically to go to Alberta in Canada and investigate a reported oil field, and the expert should go and, while investigating that field, should obtain from trappers and hunters information that would lead him to believe that a great oil field exists in Labrador, and he should faithfully report the result of his investigation of the reported field in Alberta, but should say nothing about Labrador, and should afterward go to Labrador, discover the oil field there, develop it and become immensely wealthy as a result, he could not be compelled to answer to the Prairie Oil & Gas Company for his profits in Labrador.
The following language is found in 1 Mechem on Agency, 2d ed., § 1214:
“Patents for inventions made by the agent, even though made during the agency, and even though the agent’s attention to the matter was the result of the knowledge or information acquired in the principal’s business, are not regarded as a fruit of the agency within the rules here being dealt with, and the principal cannot have them merely as the result of the relation. There must be an employment to make the inventions or a contract that the principal shall have them.”
2 C. J. 697 uses this language:
“It has been held that the mere fact that he [the agent] has contracted to sell articles for his principal does not preclude him [the agent] from selling similar articles for himself.” (See, also, Hitchhorn v. Brandley, 117 Iowa, 130; Butterick Pub. Co. v. Boynton, 191 Mass. 175.)
It may be argued that the plaintiffs and the defendant were partners, and that a stricter rule should be applied to the defendant than is found in the law of agency. In answer to such an argument, we quote from Latta v. Kilbourn, 150 U. S. 524, 549, as follows:
“It is well settled that a partner may traffic outside of the scope of the firm’s business for his own benefit and advantage, and without going into the authorities it is sufficient to cite the thoroughly considered case of Acts v. Ben-ham, 2 Ch. D. 1891, 244, 255, in which it was sought to make one partner accountable for profits realized from another business, on the ground that he availed himself of information obtained by him in the course of his partnership business, or by reason of his connection with the firm, to secure individual advantage in the new enterprise. It was there laid down by Lord Justice Lindley that if a member of a partnership firm avails himself of information obtained by him in the course of the transaction of the partnership business, or by reason of his connection with the firm, for any purpose within the scope of the partnership business, or for any purpose which would compete with the partnership business, he is liable to account to the firm for any benefit he may have obtained from the use of such information; but if he uses the information for purposes which are wholly without the scope of the partnership business, and not competing with it, the firm is not entitled to an account of such benefits.”
It is dealing directly with the subject matter of the agency or partnership and using information acquired while acting in the agency or partnership to its detriment and to the profit of the unfaithful agent or partner that is prohibited. Here, there was no authority to the- defendant to contract for or even to investigate oil leases for "the plaintiffs. If the defendant had purchased the Rice and Daniels leases for the plaintiffs, they would not have been bound by that purchase. He could'not bind them because he had no authority to do so. He was not authorized to investigate for them, and what he did was not in violation of his instructions, was not a violation of the rights of the plaintiffs, and did not injure them in any way. The defendant faithfully did what he was sent to do, and the plaintiffs cannot complain of his conduct in purchasing the Rice and Daniels leases.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This case involves, among other questions, the right of a person to go to the assistance of another who is assaulted, and the degree of force he may lawfully use in such defense.
John L. and Ray Teagarden, brothers, live upon and farm land belonging jointly to themselves and their mother. In September,-1919, they had been engaged with a gang of men threshing wheat. The men were quitting work for the day. Among them was Lee Burnett; twenty-one years of age, who was employed on the farm, and who is a relative of John L. Teagarden by marriage. He had come in from the field and was working upon an automobile near the barn. William S. Frew, who lived a short distance from the Teagarden home, drove in from the field on a hayrack with his son. He declined an invitation to stay for supper and said he would go home, but told his son that he would drive down to the barn and settle with Lee Burnett. He drove to the barn, jumped off the wagon, went to Burnett and accused the latter of telling falsehoods about him, which Burnett denied. Frew called Burnett many vile and insulting names. John Teagarden had then come in from the field, and was carrying a pitchfork on his shoulder. He inquired what the difficulty was, and Frew said that Burnett had been lying about him, and that he was there to straighten it up. Teagarden said he thought there was no occasion for trouble. Frew replied that he would not go home until he had settled with Burnett. Teagarden told him they were law-abiding citizens and wanted no trouble. Continuing his abuse of Burnett, Frew advanced in a threatening attitude toward him; Teagarden warned him not to strike Burnett. Frew struck Burnett in the mouth. The latter staggered back some distance but’did not-fall. The blow cut through Burnett’s lip, leaving a scar. Frew, who is left-handed, advanced again towards Burnett and was in the act of striking him when Teagarden struck Frew across the back and left arm with the broadside of the pitchfork, and the result was that one of the bones in Frew’s arm was broken. He started towards Teagarden, who warned him not to come any further or he would stick the fork in him. Then followed some friendly conversation between the two men. Teagarden told Frew he was sorry he broke his arm, and Frew said that the Teagardens had been good neighbors of his and had always treated him friendly. He got on his wagon and went home. His arm was placed in splints by a physician; six weeks later when the splints were removed the arm was found to be in a weakened condition; at the trial it was shown that there had not been a complete union of the fracture. This action was brought to recover damages for the injury. There was a verdict and judgment against Teagarden for $750, from which he appeals.
There is a complaint of the refusal to' admit certain testimony. Defendant offered proof to show that Frew had the general reputation in the community there of being a quarrelsome, dangerous and fighting man, and that this was known to the defendant; also, that a complaint was filed before a justice of the peace charging Frew with an unlawful assault and battery upon Burnett and that Frew entered a plea of guilty and paid his fine. The excluded evidence was produced on the motion for a new trial. The principle of self-defense applies where one resists by force an assault upon a relative or one whom he has a right to defend. (Dukes v. The State, 11 Ind. 557.) The evidence as to the reputation and character of the plaintiff was competent and should have been admitted. And the record of his plea of guilty in the justice court, we think, was admissible, but its exclusion could not have been prejudicial, in view of his admissions that he assaulted Burnett.
Complaint is made of the following instructions:
“I instruct you that an assault may be justifiable by one person upon another, when there is reasonable cause to apprehend a design on the part of the person assaulted to commit a felony or to do some great personal injury and there shall be immediate danger of such design being accomplished. Now, in this case, before you can find that the assault was justifiable on the part of the defendant, you must find from the preponderance of all of the evidence in the case, that there was reasonable cause by the defendant, to apprehend that the plaintiff designed to commit a felony or to do some great personal injury to Lee Burnett and that there was immediate danger of such design being accomplished, and unless you so find from the evidence, your verdiciTshould be for the plaintiff in such sum as you think proper from the evidence under these instructions. The defendant would also be liable to the plaintiff even if you find the assault was justifiable by the defendant, if the defendant used more force than was reasonably necessary to prevent a felony or to prevent the doing of great bodily harm to the said Lee Burnett.
“A felony is a crime punishable by imprisonment in the state penitentiary. The striking by plaintiff, of said Lee Burnett, was not a felony but a misdemeanor.”
“ ‘Great bodily harm’ means more than mere injury by the fist such as is likely to occur in ordinary assault and battery.”
The expressions, “great personal injury” and “great bodily harm” are used interchangeably, and mean the same'thing. Reading the instructions together, it is apparent that they took from Teagarden all defense unless he was able to show by a preponderance of the evidence that he had reasonable cause to apprehend a design on the part of plaintiff to commit a felony or to do “great bodily harm” tCr Burnett. The jury were told that plaintiff’s striking of Burnett was not a felony but a misdemeanor, and in effect, that since plaintiff, in his assault upon Burnett, was using only his fist, no great bodily harm could happen to Burnett; in substance, that defendant’s assault upon plaintiff could not be justified merely to prevent an ordinary assault and battery upon Burnett. This was error. The instructions wholly failed to take into account the fact that the defendant had the right to use reasonable means to prevent the occurrence of an ordinary assault and battery; they failed to take into account the position occupied by the defendant with respect to Burnett, who was not only a relative but a servant. Again, they charged as a matter of law that defendant would be liable notwithstanding the jury should find his afesault upon the plaintiff was justifiable, if he used more -force than was reasonably necessary. The wording of the instructions left the jury to infer that they might" consider what to them seemed from all the evidence to have been reasonably necessary to prevent the assault; while the correct rule is that the jury should consider from all the circumstances what reasonably seemed to the defendant necessary to prevent the assault.
In Sloan v. Pierce, 74 Kan. 65, 85 Pac. 812, an action to recover jdamages for an assault and battery, the defendant sought to justify ¡upon the ground that he had reason to believe and did believe that |it was necessary to protect his father from injury. It was held that 1 |‘a person’s conduct is to be judged by his situation as it reasonably ippears to him.” (Followed in Busalt v. Doidge, 91 Kan. 37, 136 Pac. 904.) The general rule is thus stated in 5 C. J. 752:
“One may use, in the defense of a third person, so much force as reasonably appears to be necessary, although, in fact, none is necessary, and he is not required to nicely gauge the proper quantum of force; nor is it necessary that the danger be actual if defendant had reason to believe, and did believe, that it was actual and imminent.”
Burnett was a relative as well as an employee, and Teagarden occupied the position of master of the gang of workmen, and had the right to use such force as reasonably seemed necessary to prevent the assault and battery of his servant.
“A servant may strike another in order to prevent an injury to his -master, or a master may come to the defense of his servant, if the servant was not the aggressor.” (5 C. J. 637.)
“Since the force to constitute an assault and battery must be unlawful, the relationship existing between the parties or the official capacity in which defendant acted may afford an excuse or justification, if the privilege is not abused and excessive force employed.” (5 C. J. 752.)
In Orton v. The State, 4 Greene (Iowa) 140, it was held that a master may do that to protect his apprentice which another person could not do without being an assailant or giving provocation for an assault. The general rule is that the person who interferes to defend one whom he has the right to defend may go to the same extent that the defended party would be entitled to go in the defense of himself. (State v. Herdina, 25 Minn. 161.)
The judgment is reversed and a new trial ordered'. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for a commission on the sale of real estate.
Issues were joined, and the cause was tried before 'a jury which returned a verdict for defendant. The plaintiffs moved to set the verdict aside on the ground that it was “wholly contrary to the evidence.” This was denied; judgment was entered for defendant, and plaintiffs appeal.
The plaintiff C. H. Ryan was a real-estate dealer in Brazilton, a village near Girard. The other plaintiff, Constant La Forge, was a farmer residing near Brazilton. The defendant, George Strong, a farmer by occupation, owned a ten-acre place in or near Girard and resided thereat, but was disposed to return to agricultural pursuits. One day in July, 1919, while Strong and La Forge were out in a wheat field assisting a farmer in threshing, Strong said to La Forge that he was thinking of going back to the farm if he could sell his town place at $6,000. La Forge told him that one John Dailey wanted to buy a place, and that Strong’s place would probably suit him. La Forge, although a farmer, occasionally made a deal in real estate, and very shortly after learning that Strong was inclined to sell his place at Girard he met Ryan, the Brazilton real-estate agent, and told him that Strong’s place was for sale, and suggested that Ryan get a commission contract from Strong to sell the place, and they made an agreement to divide any commission they might earn by effecting a sale. Accordingly Ryan called on Strong and obtained a written contract from him, dated July 22, 1919, appointing Ryan as Strong’s agent to sell the Girard place for $6,000 at the usual commission. At the time this contract was made, it was also agreed between Ryan and Strong that if the latter should sell the place himself there would be no commission to pay. The defendant Strong, called as a witness for plaintiff, testified that Ryan told him he had a man in view who would probably buy the property.
“Q. I will ask you if he advised you that Mr. Dailey would buy that place and advised you to go and see him A. Didn’t say he would buy it said he might buy it.
“Q. But he told you Mr. Dailey was in the market for a place? A. Yes, sir. . . .
“Q. What else was said, anything else? A. I asked Kim who it was he had on the string and he said it was John Dailey and told me where he lived and said I will tell you what you better do, he said you better go and see these people yourself because I don’t think it would do any good for me to go and see them, it might knock the sale of the property — spoke as though those people didn’t have much use for him.
“Q. Anything else said at that time? A. No, not as I remember just now, I don’t recall anything that was said.”
Within two or three days after having this conversation with Ryan, Strong called at Dailey’s place, but the latter was not at home. Strong talked with Dailey’s daughter and told her his price on the property. The daughter said that the Dailey family usually went to town on Saturday and that they would look at the property, .-and “maybe we could make a deal.” Dailey came to see Strong’s place the following Sunday, and shortly thereafter he bought the property.
From the foregoing, which is a summary of defendant Strong’s own testimony, it seems clear that Ryan established a prima facie case against Strong for a real-estate dealer’s commission. He had a valid contract of agency with Strong, and he gave Strong the name of his prospective purchaser, John Dailey, and made the. suggestion that Strong should go himself to see Dailey. That suggestion and Strong’s.action pursuant thereto were mere incidents in the strategy of salesmanship, and the fact that pursuant to Ryan’s suggestion Strong made the deal himself rather than intermediately through Ryan did not render Ryan in any wise less the conducive and procuring cause of the sale. (Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Dreisbach v. Rollins, 39 Kan. 268, 271, 18 Pac. 187; Plant v. Thompson, 42 Kan. 664, 22 Pac. 726; Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104; Port Huron Co. v. Wilber, 75 Kan. 175, syl. ¶ 2, 88 Pac. 892.)
In Jones v. Adler, 34 Md. 440, it was said:
“It is well settled, if the agent introduces or discloses the name of the purchaser, and such introduction or disclosure is the foundation upon which negotiations are begun and the sale effected, he will be entitled to commissions, and this too although in point of fact the sale may have been made by the owner. In other words, he cannot avail himself of the services, and by making a sale through information derived from the agent, deprive the latter of his commissions.” (p. 443.)
The plaintiffs, we think, are somewhat to blame for the erroneous result which was reached in the trial court — by dragging in an alleged partnership of Ryan and La Forge. The fact of that partnership was never communicated to Strong; La Forge had no contractual relations with Strong; and consequently nothing told Strong by La Forge touching Dailey as a prospective buyer, or told Dailey touching Strong’s inclination to sell, is of any. significance in fixing Strong’s liability to Ryan and La Forge for a commission. If Strong, when Ryan answered his question, “Who it was he had on the string?” had said something like this — “O, I know about Dailey myself ; I have him in mind; my friend La Forge told me about him some time ago and I plan to act on what he told me and try to effect a sale to Dailey without assistance from you,” that would have relieved Strong of any liability to Ryan for a commission on a sale to Dailey. But Strong gave no intimation to Ryan that he-had Dailey in mind as a prospective purchaser; he kept silent when frankness and fair dealing required him to speak, if in fact he had in mind to act on the information previously given him by La Forge.
La Forge appears in this lawsuit as plaintiff with Ryan, and the cause was partly tried, and certainly defended on the theory that Strong owed nothing to the two plaintiffs for La Forge’s services. To that extent, the defendant is correct. His liability grows out of his business relations with Ryan, and he owes nothing to either Ryan or La Forge for any information or services performed by-La Forge. That Ryan agreed to divide his commission with La Forge is a matter which concerns the alleged partners and them alone, and in another trial that matter should be definitely understood. It does appear, however, that the verdict and judgment were contrary to the evidence, and that a new trial should have been ordered.
Reversed, and remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this suit to quiet his title to some land in Osborne which was condemned in 1879 for railway sidetracks, depots, workshops, water station and stockyards. Plaintiff is the- successor in title to the fee holder of 1879, and the defendant is the successor of the railway corporation for whose use the property was condemned.
Notwithstanding the lapse of years and the general development of- that community, only a limited portion of the land condemned in 1879 has yet been used or needed for railway purposes — the usual hundred-foot strip for a right of way. During this long interim successive holders of the fee title have had uninterrupted use and enjoyment of the condemned land to within fifty feet of the center of the railway track. Encroaching to that limit there was built and maintained for many years (from 1885 to 1901) the stables and buildings of a county fair association which then owned the property. These structures have now been removed, but the present owner and plaintiff has a stockyard and scales worth $200 on the property involved herein. The plaintiff says “I brought this suit to find out if I did own it or didn’t.”
' Since the plaintiff holds the fee title he is of course the owner, nor did he need to bring any suit to quiet his title. (K. C. Rly. Co. v. Allen, 22 Kan. 285.) One whose property is subjected to condemnation for railway or other public uses is none the less the owner of the fee and holder of the ultimate title. He has what the law calls the servient estate. The party for whose use the condemnation was made has what is called the dominant estate. And while the fee holder, after condemnation and compensation, may not interfere with the rights of the holder of the dominant estate, yet as owner he may still continue to use the property for any purpose which does not frustrate the. public aims and ends for which the property was condemned. 'If gold, diamonds, or other minerals lay beneath. the main line of this railway within the hundred-foot limit now actually used for railway purposes, these minerals would belong to the plaintiff and he might mine for them so long as he did not interfere with the operation of the railway nor imperil the surface support. (Railroad Co. v. Schmuck, 69 Kan. 272, 76 Pac. 836.) If the railway at Osborne should be abandoned or relocated elsewhere than on plaintiff’s property the dominant estate would terminate and the defendant’s right acquired by condemnation would terminate and revert to the plaintiff.
It was not necessary for the condemnation commissioners in 1879 to limit the amount of land to be condemned for railway purposes to the actual acreage required at that time. In the exercise of their discretion they could look to the future and to the gradually expanding need for switch yards, sidings,.workshops and the like, and condemn such amount as seemed reasonable to them. Nor was this any hardship on the owner. He was paid for the land taken; and yet he and his successors in title down to and including the plaintiff have none the less enjoyed the possession, emblements and profits of most of the condemned property for all these years. Of course, so long as the railway company did not need all the property condemned, the successive fee-title holders were strictly within their rights in occupying and using it. But since they were within their rights in using and occupying the property, and because hitherto the defendant and its predecessors have not needed all the property condemned in 1879, there could be no such thing as adverse or inconsistent use, nor could there be adverse possession for fifteen years so as to found an independent title and thus bar the railway company of its rights acquired by condemnation. Before the fifteen years’ bar could give rise to. a right to exclude the defendant, it would be necessary to show that during that time the plaintiff had occupied the property to the prejudice of the defendant, that the defendant during that interval had needed the property for railway purposes but had been excluded therefrom by the plaintiff or his predecessors in title. It was not necessary for the railway company to make some pretended use of all the condemned property, to the exclusion of the successive fee-title holders, in order to preserve its rights. The defendant was not required to clutter up the outlying portions of the tract with old ties, rails or other junk merely to assert its dominant estate and discommode the owner of the fee. Such mere pretended use would have been an invasion of the rights of the fee-title holder, who always had and still has such rights of enjoyment, use and possession as do in no way impair or interfere with the proper, safe, convenient and efficient discharge of the defendant’s duties as a public carrier. In U. P. Rly. Co. v. Kindred, 43 Kan. 134, 136, 23 Pac. 112, it was said:
“In Railway Co. v. Allen, 22 Kas. 285, this court decided that where the railway company has only an easement, the' proprietor of the soil retains the fee of the land, and his right for every purpose not incompatible with the rights of the railway company. This rule .is recognized everywhere.- Although the abutting land-owners have cultivated and inclosed part of the right-of-way granted by congress, this possession cannot be considered as hostile or adverse. ... If the abutting land-owners own the fee of the right-of-way, they may use the land in any way not inconsistent with the paramount rights of the railway company; but such use will not give them adverse possession so as to confer title.”
In Railway Co. v. Burns, 70 Kan. 627, 629, 79 Pac. 238, it was said:
“The right acquired by a railroad company by condemnation proceedings for.right of way, depot grounds and terminal facilities dominates every right of possession, except as to the owner of the fee, and he may use only that portion which is not in immediate use by the company, and not necessary to the safe and convenient use of that which is in actual service.”
We recognize that this case is not necessarily controlled by those decisions which have had to deal with the rights of occupants of unused portions of the rights of way granted by congress to the Pacific railroads, like Railway Co. v. Watson, 74 Kan. 494, 87 Pac. 687, and Railroad Co. v. Davenport, 102 Kan. 513, 170 Pac. 993; and we note, also, that there are two opposing lines of authorities on the present question (2 C. J. 225; 1 R. C. L. 737, and citations); but when it is kept in mind that these condemnation proceedings are authorized not as a mere special privilege to the persons who form the railway corporation nor for its private profit, but are in fact an exercise of the state’s power of eminent domain to provide the public with a modern system of transportation and a modern commercial highway, it seems more logical to hold that rights acquired under such proceedings are not lost through lapse of time and nonuse, so long as the railway has a potential need of them, and where there has been in fact no adverse, hostile, inconsistent use nor prejudicial exclusion of the holder of the dominant estate. If. at some future time the hitherto unused property condemned in 1879 should be required for railway purposes, it would seem illogical to say that the state’s power of eminent domain would have to be reinvoked and that condemnation proceedings would have to be undertaken again. If the property in dispute is never needed for railway purposes, the plaintiff remains,not only the owner of the fee — but will continue as heretofore to possess and enjoy it. Under the circumstances, however, he has established no cause of action against the railway company.
Reversed and remanded with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Mason, J.:
In an action upon a negotiable note and real-estate mortgage securing it, the trial court held that the defendant (the mortgagor) was entitled to credit for payments made to and retained by the mortgagees after the note and mortgage had been assigned, because of the assignment not having been recorded. The plaintiff (the assignee) appeals from this ruling.
1. The defendant invokes the statute reading:
“In cases where assignments of real-estate mortgages are made after the passage of this act, if such assignments are not recorded, the mortgagor, his heirs, personal representatives, or assigns, may pay all matured interest or the principal debt itself prior to the recording of such assignment to the mortgagee, . . . and such payment shall be effectual to extinguish all claims against such mortgagor, his heirs, personal representatives, and assigns, for or on account of such interest or such principal indebtedness; and no transfer of any note, bond or other evidence of indebtedness, by indorsement or otherwise, where such indebtedness is secured by mortgage on real estate within this state, shall prevent or operate to defeat the defense of payment of such interest or principal by the mortgagor, his heirs, personal representatives, or assigns, where such payment has been made to the mortgagee or to the assignee whose assignment appears last of record under the provisions of'this act.” (Gen. Stat. 1915, § 6485.)
The plaintiff, Mary Allen, contends that the statute should be construed as applying only to mortgages securing nonnegotiable obligations. That interpretation has been given (Burhans v. Hutcheson, 25 Kan. 625) to a section of the mortgage act reading: “The recording of the assignment of a mortgage shall not be deemed of itself notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee.” (Gen. Stat. 1915, § 6466.) That provision, however, has relation only to the effect of the general recording act as applied to assignments of mortgages. It does not undertake to impose any new duty upon the assignee in that respect, but merely to limit or define the effect of a record made under the existing statute. The language of the statute now under consideration is explicit, its obvious purpose being to protect the mortgagor in making payment to his original creditor when no assignment of the mortgage has been recorded, and we cannot believe the legislature intended to exclude from its operation by implication mortgages securing negotiable notes, which form so large a proportion of the total number of real-estate mortgages given. It is only in the case of mortgages securing negotiable obligations that there is any particular occasion for such a statute, for where the obligation is nonnegotiable the debtor who has no notice of an assignment may make a valid payment to the original creditor. (19 R. C. L. 357. See, also, 27 Cyc. 1315.) The specific provision that “no transfer of any note, bond or other evidence of indebedness, by indorsement or otherwise,”, can hardly have been framed or adopted under the impression that it did not reach negotiable paper. It was said of this statute in a case where the mortgage secured a negotiable note:
“That act does not undertake to limit the methods by which real-estate mortgages may be transferred, and it does not provide that the failure to make a record of an assignment of a mortgage shall invalidate the security or the transfer. It was intended as a protection to mortgagors, and the only penalty prescribed for not recording the transfer is that all payments made by the mortgagor to the mortgagee or to any one who appeared to be the owner shall be credited to the mortgagor, although the assignee never received such payments. This was the view taken of the statute in earlier cases.” . (Anthony v. Brennan, 74 Kan. 707, 709.)
Under the statute'a transfer of the title to a note and mortgage may be had by an unrecorded assignment which will be effective for all purposes except that it will not prevent a payment to the mortgagee from operating as a discharge of the debt. (Middlekauff v. Bell, 111 Kan. 206, 207 Pac. 184.)
The plaintiff suggests that the uniform negotiable instruments act (Gen. Stat. 1915, ch. 82) having been adopted since the enactment of the statute here in controversy, should be deemed to supersede it to the extent of determining what is necessary to an effective transfer of title to a negotiable note and whatever security it carries. The law of negotiable instruments is not materially different now with respect to any feature affecting that matter from what it was when the statute relating to the recording of assignments of real-estate mortgages was passed. It is for the most part declaratory— essentially a codification of the law as it already existed, and plainly was not intended to amend by implication the statute relating to the recording of assignments of mortgages.
The rule is familiar that the maker of a negotiable note secured by mortgage is not protected in making payment to the mortgagee after assignment. (19 R. C. L. 358.) But among the decisions supporting that rule we find none involving a statute such as that we are now considering. In the plaintiff’s brief a number of cases are cited from Massachusetts, where at one time an act relating to the registration of land titles provided that assignments of mortgages on land should take effect only from their registration; but they do not discuss that statute, and in fact seem to have been decided before its enactment.
The situation is such that one or the other of two innocent persons must suffer loss through the misfeasance of the loan company. If it were not for the specific statute the loss would fall upon the defendant for neglecting the precaution otherwise required of him to see that his payments reached the then owner of the note. That statute, however, places the loss upon the plaintiff because of her neglect to record the assignment.
2. Before the execution of the mortgage in question the defendant, H. H. Waddle, applied to the mortgagees, J. L. Pettyjohn & Company, for a loan, and in his signed application was included the statement that he appointed them his attorneys to procure the loan from any person or corporation, followed by the words — “My said attorney being authorized by me to receive and transmit my funds for the payment of interest or principal on said loan as it may from time to time become due and payable.” The plaintiff regards this as conclusive proof that the mortgagees acted as the agent of the mortgagor in accepting the payments, and argues that the loss resulting from the retention of the money by them should therefore fall upon him. Whatever may have been the intention of the parties when the negotiations were begun the trial court found, and the evidence justified if it did not compel the finding, that the money was actually lent to Waddle by Pettyjohn & Company, and the mortgage made by him to them was later sold to the plaintiff, a transaction quite different from that with respect to which the agency was created. (Fitzgerald v. Realty Co., 106 Kan. 54, 186 Pac. 739.)
3. As the defendant from time to time paid the accruing interest to Pettyjohn & Company he received from them the corresponding coupons, upon the back of each was printed “Pay to the order of -,” followed by the signature of the company in writing. The plaintiff contends that this was sufficient to advise the defendant that the title to them had been transferred. If the indorsement had been made to the plaintiff — if her name had been inserted in the blank space — the contention might be sustained. (Walter v. Logan, 63 Kan. 193, 65 Pac. 225.) We do not regard the blank indorsement, however, accomplished by placing the payees’ signature on the back of the coupon, as giving notice of a transfer, especially in view of the fact that the coupons also bore the “paid” stamp of the Petty-john Company.
4. Complaint is made of the admission in evidence of entries in the books of Pettyjohn & Company, and of correspondence between the company and the defendant, and Goodyear v. Williams, 73 Kan. 192, 85 Pac. 300, is cited in support of the objection. The facts there presented were quite different from those of the present case. There the mortgagor made payments at a different place from that provided in the note to an apparent stranger to the transaction, and the evidence held to be inadmissible was relied upon as proof that he was the plaintiff’s agent. Here the payments were made to the mortgagee at the place appointed, and the issue was not that of agency in fact, but of the effect of the statute. If any incompetent evidence was admitted it could not have been prejudicial for the facts necessary to support the judgment were otherwise established.
5. The note, which was dated September 1, 1916, and due in five years, provided that .payments of $100 or multiples thereof might be made at the maturity of any semiannual coupon due as. late as March 1, 1917, on giving thirty days’ notice. The defendant paid $300 on the principal September 1, 1918, and $200 on September 3, 1919. It is suggested that the latter payment was not made at the time interest was due, and that thirty days’ notice was not given in either case. The statute authorizes the payment to the mortgagee of “all matured interest or the principal debt itself prior to the-recording of such assignment.” The authority of the mortgagee to accept the payments and thereby bind the assignee carried with it the authority to waive the slight delay in the payment and the giving of the thirty days’ notice that it was to be made, if such waiver was necessary.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a rehearing. The facts and questions of law are fully stated in the original opinion. (110 Kan. 458, 204 Pac. 534.) After reargument and reconsideration, the dissenting opinion is now adopted as the opinion of the court; but our former order reversing the judgment of the district court will stand with this modification: that our order for a new trial be withdrawn, and that judgment be entered for plaintiff for $200 and that the costs be taxed against him.
It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment sustaining a demurrer of the defendants to the petition. The action was dismissed as to the board of county commissioners.
The petition alleged that Lawrence L. Wilson, Grace E. Wilson, Ira B. Mueller, Max G. Wilson, and Dona F. Wilson were the owners and in possession of certain real property in Cowley county; that on the south and east sides of the land were high dense hedge fences; that public highways ran along the south and on the east sides of the land and crossed at the southeast corner; that the hedges obstructed the view of one road by those traveling on the other; that there was no orchard, vineyard, or feed lot at or near the southeast corner of the land; that the plaintiff was driving a horse and buggy east along the south side of the land; that when she reached the corner, an automobile coming from the north turned the corner and appeared directly in front of her horse; and that the horse became frightened and overturned the buggy, threw her out and injured her. She asked $5,000 damages for the injuries sustained by her.
The plaintiff argues that section 4825 of the General Statutes of 1915, chapter 288 of the Laws of 1915, and chapter 253 of the Laws of 1919 make these hedges a nuisance and make it the duty of the defendants to cut them, and argues that upon their failure so to do, they are liable for any damage caused thereby.
Section 4825 of the General Statutes of 1915 reads:
“That owners of real estate in any county in the state of Kansas shall keep all hedge fences along the public highway cut and trimmed down to not over five feet high, except trees not less than sixteen feet apart and hedges necessary as a protection to orchards, vineyards, and feed lots; said feed lots not to extend more than forty rods. All brush cut from said hedges shall be cleaned up and removed or burned.”
Chapter 288 of the Laws of 1915 reads:
“Under rules and regulations to be prescribed by them the board of county commissioners of each county in the state are authorized to cut all hedge fences within fifty yards of a railroad grade crossing, or abrupt corner in the road; and thereafter keep the same trimmed to a height not to exceed four feet. Except when used as protection to an orchard, vineyard, or feed lot, and cut all weeds in the public roads within fifty yards of any such railroad grade crossing, or public road crossing, or abrupt turn in the road, and thereafter keep the same cut so same shall not at any time be allowed to grow to a height exceeding three feet. And remove all bill boards, sign boards, and board fences exceeding four feet in height within fifty yards of any such railroad grade crossing or public road crossing: Provided, That where any board fence is removed another shall be constructed not to exceed four feet in height, in the place of the one removed, at the expense of the county: Provided further, That nothing in this act shall apply to signs placed by any state or county association for the purpose of imparting historical information or traveling directions. All expenses of the trimming of the said hedge fences, the cutting of weeds, and removal of fences and bill boards shall be paid from the general fund of the county.”
Chapter 253 of the Laws of 1919, as amended by chapter 51 of the Laws of 1920, reads:
“That in any county where the provisions of this act shall be adopted any owner or owners of real estate after having been given thirty days’ notice in writing either in person or to his or her duly authorized agent, shall be required to cut or cause to be cut all hedge fences situated on the land belonging to said person or persons which is located along the public highway, and shall cut or cause to be cut, weeds growing upon the public highway running by said land, and upon failure of said owner or owners to comply with these provisions, said owner ór owners shall be guilty of a piisdemeanor and shall be subject to a fine of not less than $25.00 nor more than $100.00: Provided further, That the road overseer of the district in which said land is located shall, upon the failure of said owner or owners to comply with the provisions of this act, cut or cause to be cut said hedge fences as provided herein; and cut or cause to be cut said weeds upon the highway as provided herein and the said road overseer shall in writing report to the county clerk of said county the cost of the cutting of said hedge or said weeds, and thereupon the county clerk shall enter these costs on the tax rolls against the said real estate and the same shall be collected as other taxes, and shall be paid over to the treasurer of the township in which said land is located.”
This law took effect January 29, 1920. The plaintiff was injured July 9, 1920.
Section 4825 of the General Statutes of 1915 and chapter 253 of the Laws of 1919 as amended by chapter 51 of the Laws of 1920 make it the duty of the defendants to trim the hedges along their property and provide a penalty for their failure so to do, but these statutes do not in terms declare the hedges nuisances nor say that the defendants shall be liable in damages for their failure to trim the hedges. Buildings, woodland, or tall crops 'would have obstructed the vision from one road to the other the same as the hedges, but it cannot be contended that such obstructions would render the owners of the land liable for accidents occurring at the crossing of the highways.
In Railroad Co. v. Justice, 80 Kan. 10, 191 Pac. 469, this court said:
“ ‘The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ ” (p. 20.)
Even if it be admitted that the high hedges were in part the cause of the accident which resulted in the plaintiff’s injury, it cannot be said that they were the efficient intervening cause of the accident. The horse was frightened by an automobile. That was what caused the accident. In Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416, it was held that a telephone guy wire extending into the public highway was not the cause of an injury to one who was riding in a wagon with her husband who was driving a span of mules that ran away and ran into the wire and thereby injured the plaintiff in that action. The latter case is closely parallel to the present one. The proximate cause of the injury to the plaintiff in this action was the frightening of her horse and not the condition of the hedges. (Railway Co. v. Bailey, 66 Kan. 115, 122, 71 Pac. 246; Norris v. Ross Township, 98 Kan. 394, 161 Pac. 582.) The petition did not state a cause of action against the owners of the land.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for an allowance under the workmen’s compensation act.
The-plaintiffs are the wife and children of the late John Henry Phillips who in his lifetime had been a miner and employed by the defendant for a short time during the year 1920. On August 8, the air compressor in defendant’s mine became defective, and the air became so foul that Phillips and his fellow miners had to be taken out of the mine twice during the day. Some of the workmen, including Phillips, were somewhat affected, temporarily at least, by the bad air. That night the defendant was ill at his home. About ten days later, a doctor was called, and he found that Phillips “was suffering pain and had a chill and some fever.” The doctor said he “could not ascertain the cause of his illness ... It might possibly be the bad air he had breathed in the mine ... he spit up substances ... in a smoky condition . . . attended Phillips about six times. ... An abscess formed and after-wards broke in the chest. ... He reported to the state board of health as abscess on the lungs . . . could not say what caused his death. It was due to formed abscess.” Phillips died on September 15, 1920.
The counter-abstract supplies the attending physician’s testimony in greater detail;
“Q. I wish you would state his condition a little more fully. Did he spit up anything? A. The first trip I made to the man, he did not, but the second trip, this abscess had broken and he was spitting up this matter.
“Q. Now, Doctor, was you able to ascertain the cause of this illness? A. No. . . .
“Q. You say that an abscess formed and afterwards broke in his chest? A. Yes, sir. . . .
“Q. Is that your judgment as to what caused his death? A. I could not say what caused his death. It was due from the abscess that caused his death. . . .
“By the Court: Doctor Jones, have you a judgment as to how long that abscess was there? A. I have not, no sir. I have no history of it and no way of diagnosing that.”
There was considerable evidence introduced on both sides, from which the trial court might possibly have found either way as to the main issue of fact; but among the findings which the trial court did make are these:
“3, The court further finds that there is not sufficient evidence to show that the death of said John Henry Phillips was caused by, or contributed to, by the breathing of the bad air on August 8, 1920. . . .
“6. That no notice of the alleged injury was ever given defendant, nor was any claim for compensation made upon the defendant until the service of summons in this action which was on the 12th day of November, 1920.”
Judgment for defendant was rendered pursuant thereto, and plaintiffs appeal.
They complain of the trial court’s refusal to find “what was the cause of the death of John Henry Phillips.” But surely that was not error. It was incumbent on the plaintiffs to prove to the satisfaction of the trial court that the death of Phillips flowed from an injury which he had received in the course of his employment in defendant’s mine. This they failed to do. The immediate cause of his death was the abscess; but the doctor who attended him could not tell what caused the abscess; and neither he nor either of the other two medical experts called as witnesses would concede more than a possibility that the bad air Phillips had inhaled on August 8 had caused the abscess, although two of them testified that it might possibly have aggravated an existing abscess. Since there was no convincing testimony that the abscess was caused or aggravated by the foul air of the mine, the trial court properly refused to trace Phillips’ injury and death to anything arising out of and in the course of his employment. What else may have caused the abscess and consequent death was not a primary concern.
Complaint is also made because the trial court refused to find whether Phillips was made sick by the bad air in the, mine and whether he ever recovered from such sickness. This criticism is ill-founded. The trial court did find:
“That some of said men, including Phillips, became affected to some extent on account of said bad air and said Phillips went home about four o’clock that, afternoon after being so hoisted from said mine and still felt some effects of said bad air. That on the following day and for some days thereafter, he remained at home and was in bed a part of the time and was up a part of the time and on the 18th day of August a physician was called and on his second visit, probably two or three days later, ascertained that the patient was suffering from an abscess on the lung, which abscess resulted in his death on September 15, 1920.”
It was not necessary that the trial court’s special findings of fact should follow the categorical outline submitted by counsel for plaintiffs. The court’s findings as made fully satisfied the mandate of the civil code. (Civ. Code, § 297; In re Appeal from, Survey, 106 Kan. 222, 187 Pac. 677; Alexa v. Alexa, 108 Kan. 38, 46, 193 Pac. 1083.)
In view of the foregoing, the correctness of the trial court’s finding that there was no notice given to the defendant of Phillips’ injury and that no claim for compensation had been made becomes immaterial.
The record discloses no prejudicial error and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This action was brought on the relation of the county attorney against the county commissioners and certain high-school districts to have chapter 247 of the Laws of 1921 declared unconstitutional and void, and a declaratory judgment, rendered touching the power and duty of the board of county commissioners regarding the Reno county high school; or if the chapter should be held valid, a declaratory judgment fixing “the official status of all members of the board of‘trustees, who live in the territory, which in legal effect will bear no part of the taxes for the support of the Reno county high school, and that their offices be declared vacant and that all their acts in making a levy of taxes 'shall be declared illegal and void,” and that the county treasurer be enjoined from apportioning any of the Reno county high-school fund to any other purpose than that for which it was collected and that such purpose be declared to be illegal and void, and that the county treasurer be ordered and directed to credit and rebate and repay the amount of all such taxes to the taxpayers as shown by the records of his office.
The petition alleged in substance that the accredited high schools of Reno county other than the Reno county high school authorized by the sessions of 1920 and 1921 increased the levies for school purposes; that the various boards of certain high schools had issued excessive amounts of bonds and erected costly and extravagant buildings, and increased the burden of taxation and certain high schools had made long contracts and increased salaries; that the tax laid for school purposes has greatly increased and in a majority of accredited high-school districts had become so excessive as to be a burden; that the county treasurer threatened to apportion the county high-school fund so that each accredited high school will receive such proportion thereof as its taxable property bears to the taxable property of the entire county; that the various school boards in the accredited high-school districts have made excessive levies, and if the accredited high-school districts should receive the amount apportioned to them under the provisions of the act of 1921, they would receive large sums in excess of their requirements; and if the act is valid the six members of the Reno county board of trustees will all reside in territory which will not actually contribute any part of the tax for the maintenance of the school and will have ceased to be residents of the territory in which such school is taxed, and are, therefore, by virtue of this act, out of office and all their acts void.
A demurrer to the petition was filed. The court reserved its ruling until after the introduction of the evidence.
It was testified that the tax valuation for 1921 was 1105,745,689; that the county high-school levy was “ten and eight-tenths cents on the hundred dollars — one and eighty [eight] one-huhdredths mills on the dollar”; that the county commissioners changed the county-commissioner districts of Reno county but did not change the residence of any of the trustees of Reno county high school with reference to their commissioner districts. It was admitted that the present trustees of the Reno .county high school were reelected before the passage of the act of 1921. It was testified that there are several school districts in Reno county that do not maintain a high school. There are twelve accredited high schools, including the county high school at Nickerson.
Both parties introduced their evidence and the cause was briefed and argued.
The trial court made findings of fact and conclusions of law to the effect that the title of the property of the Reno county high school at Nickerson is in the county and that such school must be supported and maintained by the entire county and not by any particular part; that the taxes involved were carried on the tax rolls as a county levy for Reno county high-school purposes and’ appear on the tax receipts as a county levy for the county high school; that this levy is carried on the tax rolls and shown on the tax receipts as a distinct levy for county high-school purposes in addition to the several and separate levies made for the ten rural and two city high-school districts, each of which was provided for by separate levies. It was found that the levy of ten and eight-tenth cents for county high-school purposes was arrived at by the county high-school commissioners notifying the county commissioners that they estimated they would need about $35,000 for the maintenance of the Reno county high school at Nickerson for 1921 and 1922; that the county clerk, to determine the rate of levy, took the assessed valuation of the parts or districts of the county outside of the rural high-school districts and city districts and estimated the-number of mills necessary to levy against the assessed valuation of such outside districts to raise the amount required for the county high schools and then levied such rate against the entire county; that by this method the county would collect approximately $79,-180.20 in excess of the amount needed by the Reno county high school, which is intended to be returned to the districts from which collected, “thus leaving less than three-sevenths of the territory of the county to furnish the taxes with which to support the Reno county high school.”
It was concluded as matters of law that the county high school is county property and its trustees county officers and that it is conducted for the benefit of the entire county and controlled by it, and that the levy should be against the entire county. The excess over $35,000 should be returned to those who paid it and the treasurer should be restrained from paying any of this money to the rural high-school or city districts. The demurrers therefore were overruled.
The defendants appeal and various assignments of error are made, but the chief question is the validity of the statute.
In the ordinance accepting the grant of land from congress provision was made for large tracts to be devoted to educational purposes. (Gen. Stat. 1915, §§ 95-103.) In the act of admission it was provided that sections 16 and 36 in every township be set aside to the state for the use of schools. Article 6 of the constitution enjoins upon the legislature to establish a uniform system of common schools “and schools of a higher grade.” A perpetual school fund is provided and higher institutions of learning are required. The old idea was to'give a child the benefit of a grade-school education or its equivalent and then if he wanted to go to college, have him enter a preparatory school. But it soon dawned on the minds of our educators that .local high schools are more convenient and desirable than some distant academy and so it was that in 1886, the legislature enacted chapter 147, “An act to authorize the establishment and maintenance of county high schools.” This act made it possible for a county of six thousand population or over, by a vote, to have a county high school. At the same session, acts were passed making provision for high schools in certain named counties. Two counties were specially provided for by the legislature of 1891, one by the legislature of 1893, and four by the legislature of 1895. In 1897, chapter 180 was enacted relating to the establishment of county high schools in counties of le^s than 2,500 population — authorizing the county commissioners to negotiate with the school districts at the county seat for a high school after a prescribed petition or election had been circulated or held. Special acts were also passed covering four named counties. In 1899, chapter 236 established a county high school at Nickerson, to be under the. Nickerson board of education, and provided that whenever the majority of the electors of Reno county should vote to establish “said county high school” the county commissioners should appoint a board of trustees. In 1901, divers high-school acts were passed including one for Elk county, and one providing for county high schools in Jewell, Phillips, Smith and Washington counties. In 1903, a still larger number of high-school acts were passed, including chapter 466, relating to the establishment of a Reno county high-school at Nicker-son and providing for the transfer to the county of certain grounds and buildings; also, chapter 432, amending the high-school act of 1886.
Chapter 397 of the Laws of 1905 (the Barnes act) provided that in every county with one or more school districts or cities of less, than 16,000 inhabitants which should have maintained high schools with certain courses of instruction, the county commissioners should levy a certain tax for the purpose of creating a general high-school fund. The treasurer was to pay such school districts a pro rata part of such fund “apportioned to the several school districts ac cording to the average daily attendance.” (§ 4.) Section 6 required the'county superintendent to certify to the county clerk and treasurer the average daily attendance in the several high schools each year. In 1907, section 6 was amended, requiring the county superintendent to certify the average daily attendance and the amount necessary to maintain the several county high schools. (Ch. 333.) Section 3 of chapter 281, Laws of 1917, provided that the county treasurer should apportion all moneys produced by the levy required by section 1 of the act, and remaining in his hands after the second semiannual payment had been made, as provided in section 2, “to the treasurer of the board of education of each city, the treasurer of each school district, anti the treasurer of each rural high-school district entitled to receive the same in proportion to the total number of days of actual attendance.”
We now come to the act (Laws 1921, ch. 247) around which this litigation revolves. The title is:
“An act relating to high schools in certain counties containing a county high school and also one or more cities, districts or parts of districts, each maintaining a high school in addition to the county high school, and providing for the apportionment and distribution of the funds for the support of said high schools. . . .”
Section 1 prescribes that hereafter in every county in which there is a county high school—
“And also one or more city high-school districts or other high-school districts or parts of high-school districts, each maintaining, in addition to the county high school, a high school accredited by the state board of education, the board of county high-school trustees, or the board of county commissioners in counties not having county high-school trustees, shall apportion the county high-school fund as levied and collected so that each such district shall receive such proportion of the county high-school fund as the taxable property of the county lying within such district bears to the taxable property of the entire county, and the county treasurer of such county is hereby authorized and directed to place to the credit of each high-school district coming under the provisions of this act such part of the county high-school fund as they shall be entitled to under the apportionment made by the board, and the remainder of the county high-school fund shall be for the support of the county high school; ...”
It was testified that there are eleven rural high schools in Reno county; that the tax valuation for 1921 was $105,745,689; that the county high-school levy was 1.08 mills. The court found that the title and ownership of the Reno county high school was in Reno county; that the levy made for the support and maintenance of the county high school was carried on the tax rolls and shown on the tax receipts as a distinct and separate county levy in addition to the levies made for the ten rural high schools and the two city high schools, provided for by separate levies; that the levy of 1.08 mills for county high-school purposes was arrived at by the county high-school commissioners notifying the county commissioners that they estimated there was needed for the county high school at Nickerson $35,000; that the county clerk took the assessed valuation of the parts or districts of the county outside of the rural high-school districts and city districts, and estimated the number of mills it would be necessary to levy against this assessed valuation of outside districts to raise the amount required for the county high school, and then levied that rate against the entire county.
“By this method the county will raise and collect approximately $114,180.20, which is $79,180.20 in excess of the amount needed for the use of the Reno county high school, which excess it is proposed and intended to return to the districts from which collected, thus leaving less than three-sevenths of the territory of the county to furnish the taxes with which to support the Reno county high school.”
Counsel contend that chapter 247 violates the uniform-and-equal-rate tax provision of the constitution. It is argued that the county high school was established by the county commissioners under the act of 1903; that it is the property of Reno county; that that act fixed the limits beyond which levies should not be made and provided that the county high school should be governed by the general laws except as otherwise provided; that another statute provides that the trustees should qualify and enter upon the duties of their office as other county officers; and that section 9298 of the General Statutes of 1915 provides that the tuition shall be free to all pupils residing in the county- — -from all of which it is concluded that the county high school is county property, the trustees county officers, and the school is conducted for the benefit of all the pupils in the county. It is pointed out that the act of 1886, as amended by chapter 211 of the Laws of 1909, required the county clerk to spread the county high-school levy and -collect all taxes the same as other county taxes. Further, that section 1, chapter 247 of the Laws of 1921, deals with but one fund, but not the county high-school fund already established by law for the support of a county institution;' that section 2 recognizes the existing and established county high-school tax and does not assume to change its character from a county tax to a district tax, and does not repeal the authority previously given to levy a county high-school tax. That to effect the purpose of the law, which is to relieve part of the county from a county tax and impose upon another part of the county the burden of maintaining a county institution, violates section 1 of article 11 of the constitution. Decisions are cited holding that if a tax is levied upon property it must be uniform throughout the territory to which it is applied. If it is said that all the property is subject to this county high-school tax then this violates section 4 of article 11, forbidding the diversion of a fund from its original purpose. Also, that if the act be regarded as a complete bill in itself authorizing a new tax it is unconstitutional because it is levied for two purposes instead of one — to support a county high school and to carry into effect the provisions of the act. That this effect would be to relieve part of the county from the maintenance of a county institution and put the full burden on only a part of the county. It is contended the act provides that the apportionment of the county high-school fund for other schools is clearly a diversion and violation of section 4; that under the act of 1903 the board of trustees of Reno county high school was authorized to levy taxes not in excess of one mill and any apportionment of such fund would be a diversion. It also said-that the act provides if a part of the high-school district is within the county, that district shall receive a portion of the county high-school fund, which would be a diversion of the fund from one county to another. Again, that if the act is valid, the Hutchinson board of education can use its share of the county high-school fund for the maintenance of grade schools or for any school purpose other than high-school purposes.
Finally, it is urged that the act cannot apply to Reno county for it is impossible to elect six trustees of the county high school and comply with the law which requires that two trustees be elected from each commissioner district; that the greater part of Hutchinson constitutes one county commissioner district all of .which is within the Hutchinson city high-school district, and as the act provides that no member of the board shall be elected who is a resident of another district, no trustee can be elected from the Hutchinson commissioner district.
A careful examination of the act and previous high school legislation demonstrates that this is a sort of climactic attempt to reconcile conditions which presented a confusing situation to the law makers. In keeping up with the local demands for county and rural-high schools, doubtless numerous acts concerning these institutions involved duplication in taxation and expense of maintenance. It appears that Reno county has eleven rural-high schools besides the county high school. These came about by virtue of divers enactments covering a considerable period of time, and the legislature undertook by chapter 247 to simplify matters in Reno and other counties similarily situated while in no wise diminishing the provision made for high-school instruction.
Of course, county high-school districts and rural high-school districts, like many other municipalities, are purely creatures of the legislature; not only subject to its creative power but its power to modify or dissolve. And so we find a large county with twelve high schools, not all governed by the same legislative provisions, and why might not the legislature take hold of this matter without violating any constitutional inhibition and systematize and minimize the burdens of the Reno county taxpayers? It is quite apparent that by the first section it was intended to make one high-school levy on the property of the county and so to apportion the fund that each high-school district should-receive its proper share thereof in the ratio which its assessable property bears to that of the entire county. There are some words inaccurately used in the section but it was once said by a very able judge: “There is no grammar in law,” and we' do not find enough lack of grammar in this section to destroy its significance and effect.
While no specific repeal by title of former statutes is declared, nevertheless this act is the last expression of the legislative will, before which all former conflicting expressions mast be deemed silent. There is no constitutional rule of statutory amendment and repeal which precludes the operation of this sensible and practical rule of giving effect to the latest expression of the lawmaking department of state government.
Touching the construction of the act, counsel for the plaintiff say:
“To carry into effect the provisions of the act is to disclose the whole and only purpose of the law, which is to relieve a part of the county from a county tax and impose upon another part of the county the burden of maintaining a county institution.”
Again:
“The effect of the provisions of the act is to release part of the county from the maintenance of a county institution and impose the full burden thereof upon only part of the county.”
Opposing counsel thus give their conception of the éffect and purpose of the act:
“It will be observed that the act is not an act for the support of the county-high school, but is an act for the support of all the accredited high schools in counties having a county high school. In effect it reduced the Nickerson school to the same rank as the other rural high schools of the county.”
Again:
“The Reno County High School is part of a system of high schools no longer necessary and completely obsolete. ... An examination of the title and body of the act shows clearly that there was to be raised a general high-school fund' apportioned among all the accredited high schools in the county.”
We must be governed by the natural meaning of the words used by the legislature. The title relates to “high schools in certain counties” and speaks of “providing for the apportionment and distribution of the funds for the support of said high schools.” Can this mean other than the accredited high schools of the county, Nickerson included? Then section 1 says the proper officers “shall apportion the county high-school fund as levied and collected so that each such district shall receive such proportion of the county high-school fund as . . .” This seems naturally to mean “each such high-school district” as no other kind was under consideration; also the “county high-school fund” must mean the one to be levied under this section for all “the said high schools” — not the one previously levied under the former statutes for the one county high school. The county treasurer is to credit “each high-school district coming under the provisions of this act” with such part of the county high-school fund as they shall be entitled to under the apportionment made by the board and “the remainder of the county high-school fund [the one here provided for — -not the former one] shall be for the support of the [Nickerson] county high school.”
Taking the title and the section together it must be concluded that the “county high-school fund” named in section 1 is the same thing as the “funds for the support of said high schools” named in the title. Otherwise there is so great a conflict and divergence that the title and the section cannot be reconciled and the act must fall for lack of meaning — a thing not to be considered so long as reasonable interpretation may render them harmonious. „
The legislature will soon be in session when proper provision may and doubtless will be made touching the residence, successorship and duties of the high-school trustees affected by this act, and we perceive no need for any determination of these matters now.
The situation as we view it is this: The county had numerous high schools with divers officers and needs calling for taxation. It also had one county high school. Thus there was an inevitable duplication of territory, taxation and expense. By chapter 247 the entire high-school system of this and counties similarily situated was put in a new and entirely different category and condition. None of these numerous high schools was to be crippled or destroyed, but all were to be provided for by one common county fund which was to be apportioned as indicated, so that, in effect, instead of eleven rural high schools and one county high school, this county was to have twelve rural high schools,, so provided for as to assessment and taxation that all duplication should be avoided. In dealing with such quasi municipalities a name is nothing and the legislature may freely change a county high school into a rural or a rural into a county high school. The entire matter and situation are wholly subservient to the wish and power of the legislature/ Some other questions are discussed which need no consideration or decision in this action and at this time.
The ruling is therefore reversed and the act is held valid. | [
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The opinion of the court was delivered by
Porter, J.:
In a motion for rehearing it is urged that appellant’s contention respecting the procedure in this court upon an appeal from a judgment of ouster under chapter 237, Laws 1911 (Gen. Stat. 1915, §§ 7603-7618), was not given sufficient consideration. In the original briefs the point was raised in the following language and without the citation of any authorities:
“Now as we understand proceedings of this character this honorable court retries this case, that is to say, this court passes upon questions of fact, as well as questions of law, and we respectfully submit that after reading all of this testimony, your honors must come to the conclusion that the testimony is insufficient to find this defendant guilty of willful misconduct in office.”
The statute provides that—
“In all appeals . . . the supreme court may receive further testimony, and may adopt any procedure, not inconsistent with this act, which it may deem necessary for a full and final hearing and determination of the cause; and said court, on appeal, shall either affirm the judgment of the lower court, or enter such final judgment as it deems that justice may require.” (Gen. Stat. 1915, § 7615.)
This statute is substantially the same as section 580 of the amended civil code, which reads:
“In all cases except those triable by a jury, as a matter of constitutional right, the supreme court may receive further testimony, allow amendments of pleadings or process, and adopt any procedure not inconsistent with this act which it may deem necessary or expedient for a full and final hearing and determination of the cause.” (Gen. Stat. 1915, § 7484.)
Section 580 was considered in the case of Hess v. Conway, 93 Kan. 246, 144 Pac. 205, and it was said in the opinion:
“This court cannot consider the new evidence. If it had a thought of doing so it would be obliged to grant the adverse party time to produce countervailing evidence, which might possibly include impeaching evidence. The appellants would then likely desire to make a showing in rebuttal. The result would be that the court would have before it for determination a case which the district court could not identify as one which it had decided, and so this court would be plunged into an exercise of original and not appellate jurisdiction.
“In the case of In re Burnette, 73 Kan. 609, 85 Pac. 575, the distinction between original and appellate jurisdiction was pointed out, as well as the lack of power on the part of the legislature to confer original jurisdiction on this court. The constitution creates the court as it creates the legislature, and that instrument, which both the court and the legislature must respect and obey, expressly limited the court’s original jurisdiction to proceedings in quo warranto, mandamus, and habeas corpus, and granted to the legislature no power to confer any but appellate jurisdiction.” (p. 248.)
The original opinion in the case at bar cited The State v. Lyons, 97 Kan. 588, 155 Pac. 936, an appeal by the state from a judgment refusing to oust a member of the board of county commissioners, which was affirmed solely upon the ground that there was sufficient evidence in the abstracts to sustain the material portions of each finding. In the present case it might well have been said, as it was said in the Lyons case:
“No useful purpose would be subserved by debating the matter, and the ordinary rules, long established and well understood, govern.” (p. 589.)
In Wideman v. Faivre, 100 Kan. 102, 163 Pac. 619, it was said:
“The supreme court’s jurisdiction is invariably and exclusively original or appellate. There is never a confusion or blending of both.” (Citing Hess v. Conway, supra, and other decisions.) (p. 108.)
In the original opinion we held that there was sufficient evidence to sustain the judgment of ouster. Nothing suggested in the petition for rehearing has altered our view of the matter anil the rehearing is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against him on three promissory notes made payable to the Thomas Ruddy Co., two for $1,500 each, one for $3,000, the first two of which were endorsed “Thomas Ruddy Co. by H. H. Ready for discount,” and the last of which was endorsed “without recourse, Thomas Ruddy Co. W. W. Blaker.”
The brief of the defendant states:
“In the amended answer of the defendant there are a number of defenses. To each cause of action the defendant alleged that H. H. Ready and W. W. Blaker were not officers of the Thomas Ruddy Company, a corporation; that H. H. Ready on the 18th day of February, 1918, was not an officer or in the employ of the Thomas Ruddy Company, and that he did not have the authority to sell, or to assign, or to negotiate, or to endorse notes or drafts or other evidence of indebtedness by the name of the Thomas Ruddy Company, and that he had no authority to sell or assign the notes sued upon in this action.
“In said answer it was further alleged that W. W. Blaker was not an officer, agent or employee of the Thomas Ruddy Company, a corporation, on the 18th day of April, 1918, and that he was not authorized to sign, endorse, sell, negotiate notes, drafts or -checks by the name of the Thomas Ruddy Company, and that the transfer of the notes sued upon were without authority and were.a forgery.”
As a further defense to the $3,000 note, the defendant alleged that the note wats given to be used by Thomas Ruddy Company as collateral security; that the defendant received no consideration therefor; that the note was not to be paid nor transferred; and that the defendant’s signature to the note was procured by fraud. The reply set out the consideration alleged to have been received by the defendant for the $3,000 note. Evidence was introduced; a demurrer to the evidence of the defendant was sustained; and the jury was directed to return a verdict in favor of the-plaintiff for the sum of all three notes. That was done, and judgment was rendered accordingly.
There was no question about the execution of the notes, about their transfer to the plaintiff before maturity, or that the plaintiff paid full value for the notes less a small discount. There was no evidence to show that the plaintiff, when it acquired the notes, had any notice of any defect in any of them. The two $1,500 notes were endorsed by H. H. Ready and the $3,000 note by W. W.Blaker for the Thomas Ruddy Company. H. H. Ready and W. W. Blaker each, at the times the notes 'were transferred to the plaintiff, produced written authority from the Thomas Ruddy Company, signed by its president, to endorse notes without recourse. The Thomas Ruddy Company recéived the proceeds arising from the sale of these notes. It was stipulated that the Thomas Ruddy Company and its successors and assigns did not have any interest in or claim to the notes. Depositions of the officers of the company were taken. That company had actual notice of this action and the subject matter thereof.
1. The principal matters complained of are the sustaining of the demurrer to the defendant’s. evidence, directing a verdict for the plaintiff, and rendering judgment thereon. The facts alleged in the answer concerning the transfer of the notes from Thomas Ruddy Company to the plaintiff were not shown. There was conflicting evidence concerning the consideration received by the defendant for the $3,000 note. Plaintiff’s evidence tended to show that there was a consideration for it, while the defendant’s evidence tended to show that it was an accommodation note. An accommodation note is good in the hands of one who holds it in due course. (Gen. Stat. 1915, § 6556.)
2. Much of the defendant’s brief is taken up , with complaints concerning the admission and exclusion of evidence. The defendant claims that he was not permitted to introduce competent evidence on his behalf, and that the plaintiff was permitted to introduce incompetent evidence. The defendant sought to introduce evidence to show that neither H. H. Ready nor W. W. Blaker was authorized by the Thomas Ruddy Company to endorse the notes. That evidence was-excluded. The rule is that a maker of a promissory note cannot ordinarily defeat it on the ground that the officer of the payee corporation who endorsed the note lacked authority to do so. (8 C. J. 716; Bank v. Bryan, 72 W. Va. 29, 41; Graham v. Troth, 69 Kan. 861, 77 Pac. 92; Greene v. McAuley, 70 Kan. 601, 79 Pac. 133; Cobe v. Hackney, 83 Kan. 306, 111 Pac. 458.) The Thomas Ruddy Company is the only one who can complain of the lack of authority of Ready or Blaker.
All the matters complained of have been examined and no substantial error is found in any of them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Overland-Reno Company asked a recovery against the indemnity company on the basis that a certain insurance policy issued by the defendant covers an automobile which was fraudulently obtained from it through a false and fictitious check, and that it was obtained in such a way as to constitute theft within the meaning of the insurance policy. In its petition plaintiff alleged that one E. C. Dolson came to its place of business and represented that he was in the market to purchase an automobile, wanted to buy a light car and that one of the agents of the plaintiff proceeded to show him a car. After some demonstration and negotiations Dolson concluded to purchase a roadster. He represented to the agent of plaintiff that he was a farmer living six miles from Hutchinson, he had the appearance of being a farmer, his statements were accepted as being the truth, and the check issued by him was received as genuine and without objection. The agent had no authority to accept anything but cash and was not authorized to accept a check in lieu of cash without the approval of the plaintiff. Dolson represented that he had a bunch of cattle in the stockyards in the east part of Hutchinson and was in a hurry to go and take care of them, and he did not return and complete the transaction until after the banks were closed for the day. The plaintiff did not learn there had been a sale until the day following the transaction when a member of the company took the check to the bank and deposited it, thinking .that it would go through the clearing. The check did not go through the clearing on that day which was Saturday, and he did not learn that it was fictitious and forged until Monday, the 19th of April, when he notified the sheriff and made every reasonable effort to ascertain the location of Dolson and the automobile, but without success. It is alleged in effect that the representations made by Dolson were false; were made for the purpose of unlawfully gaining the possession of the plaintiff’s automobile; that the check given was fictitious, forged and fraudulent; that the frauds were committed with no intention of purchasing the automobile, but for the unlawful purpose of depriving plaintiff of its property. It further alleged that upon discovery of the fraud, it notified the sheriff and made every effort to find Dolson and the automobile, but no trace of either was found. It alleged that three days after the theft it gave the defendant written notice that the theft had been committed, and subsequently rendered a sworn statement to it of the value of the property lost.
The question in the case is whether the obtaining of the automobile in the way described constituted a larceny under the contract of insurance? It provided insurance against theft, robbery or pilferage, excepting that committed by persons in the household service or employment of the assured. The plaintiff insists the term “theft,” as used, is equivalent to' larceny, and that as Dolson fraudulently gained possession of the automobile by a preconceived plan with the intention of depriving the owner of its property, a theft was committed. As will be observed the facts pleaded are quite similar to those involved in Motor Co. v. Insurance Co., 111 Kan. 225, 207 Pac. 205. That decision, which was made since the judgment in' this case was rendered, is controlling here. It was decided that—
“The prevailing rule is that any scheme whether involving false pretenses or other fraudulent trick or device whereby an owner of property is swindled out of it with the preconceived intent of the swindler not to pay for it, is classed as larceny and is punished accordingly.” (p. 226.)
In the syllabus of the case it was declared that—
“Under a contract of insurance issued to protect a dealer in automobiles against ‘theft, robbery or pilferage,’ the act of a swindler who deprived the insured of an automobile by means of a preconceived plan which involved impersonation, misrepresentation and fraud was a species of theft for which the insurance company was liable.”
Following that ruling the judgment of the trial court must be reversed. | [
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The opinion of the court was delivered by
Mason, J.:
The defendant was convicted of grand larceny, and appeals. He was charged in one count with stealing a lady’s suit worth $99.50, a- lady’s waist worth $6.75, and a wrist watch worth $6.75, and was found guilty of stealing property worth $75. The suit and'waist were stolen on the third floor of a department store and the watch on the first. The defendant contends that the evidence conclusively shows that the goods on the different floors were taken by at least two separate acts constituting distinct offenses, and on that account complains of the overruling of his motion to require the state to elect as to the taking of which -article the state would rely upon for conviction.
One witness for the state testified that she saw the defendant and a woman who accompanied him enter and leave the first floor by the street door and that they were in her sight during all the intervening time — about ten minutes. The jury, however, may have thought she was mistaken in part and that without her noticing it they may have visited the upper floor in the meantime. The defendant testified that he went to the store after he had eaten lunch, which was about one o’clock. The state’s witness already referred to said that he and the woman entered the store a few minutes after one. Another witness testified to seeing them on the third floor about one o’clock. This evidence justified a finding that all the goods were taken on the same visit to the store and there is no occasion to consider whether it would have made any difference if they had gone outside of the building in the interval between the taking of the goods on the different floors. In these circumstances the treatment of the taking of the several articles as constituting a single offense gives the defendant no just cause of complaint.
“Where several articles are taken from the same owner at or about the same time by the same thief, the better practice, in spite of the fact that there are technically several takings, is to regard the takings as a single offense, and to indict and punish but once. This is clearly the case when the goods are taken at the same time by one act of taking. But it is equally true where the goods, although taken at substantially the same time, are taken independently.” (25 Cyc. 61.)
“But a series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general fraudulent scheme,” (West v. Commonwealth, 125 Va. 747, 754.)
“From the great number and variety in the character- of the articles found, it is manifest that complainant [the defendant in the larceny prosecution] must have begun her thefts immediately after she entered the employ of the company, and that she continued them daily until the time of her arrest. . . . though the larceny is of several different articles, if they are taken in substantially the same transaction, their value may be aggregated, in order to make out a charge of grand larceny. . . . Each case must be determined upon its own special facts and circumstances. If, as it is said by some of the courts, the different asportations are prompted by one design, one purpose, one impulse, they are a single act, without regard to time.” (Ex parte Jones, 46 Mont. 122, 124-126.)
“The testimony indicates there was more than $50 worth of the property taken the night before. If they were taken that night, it would necessarily follow that they were taken in pursuance of one purpose and design, and not taken at different dates. The fact they were taken from different sections- of the store under, the circumstances of this case would not constitute different takings, and would support the proposition that they were taken in pursuance of one purpose, and, legally speaking, at the same time, so far as the doctrine of theft is concerned when applied to different takings.” (Wilson v. The State, 70 Tex. Crim. Rep. 631, 633.)
There was evidence that the stolep .goods were worth the amount alleged in the information. The defendant argues thajb the value found by the jury shows that the, verdict was the result of a compromise. .One witness-testified that there had been a depreciation in yalue — probably as much as 33% per-cent. A deduction of one-third from the total amount alleged would give in round numbers $75, and this was probably the basis of the amount returned in the verdict — at all events it may have been.'
It is suggested that some of the jurors;may have thought the defendant took the watch but not the suit or waist, while others may have thought he took the suit and waist but not the watch. The verdict indicated, that all of them must have believed he stole the suit, for that was necessary to bring the amount of the stolen property up to $75, or to. make the offense a felony. It is obvious, therefore, that no substantial prejudice could have resulted even if the contention of the defendant in this regard were otherwise sound.
2. Thé defendant , also complains of the refusal of a requested instruction regarding the effect of evidence of his previous good reputation, couched in the language of the fourth paragraph of the syllabus in The State v. Deuel, 63 Kan. 811, 66 Pac. 1037. The instruction was given substantially in the form asked except that it omitted the statement that such evidence “stands as a recommendation that he will speak the truth.” The language of the syllabus was evidently chosen to make clear the respect in which the instruction then under consideration fell short of what was required. Its use in that connection carried no implication that it is necessary to use the quoted words in charging the jury on the subject of the weight to be given to character evidence, and no such necessity exists. The jury were properly told that they should consider the testimony covering the defendant’s reputation for its bearing upon his credibility as a witness as well as upon the broader question whether there was reasonable doubt of his guilt. This was sufficient.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The question in this case is whether the holder of an insurance policy “against theft, robbery or pilferage” of his automobile may recover on such policy in a case where he was deprived of his car by a preconceived scheme of impersonation, misrepresentation and fraud. The facts were as follows:
A reputable mechanic in Arkansas City named Ben Cole, who was a member of the Boilermakers’ Union, employed by the Santa Fe railway, and who had money in the bank, was robbed of his union card and bank check book by a rogue named Montgomery who afterwards appeared' at the plaintiff’s place of business. Plaintiff was engaged in selling automobiles on easy -payments to Santa Fe workmen. Montgomery pretended that he was Ben Cole, and said he desired to purchase an automobile on periodical payments. He gave his name as Ben Cole, showed Cole’s union card and check book, and made a bargain to buy a car from plaintiff on payments, $100 cash, etc., and contracted in writing that the ownership of the car should remain in plaintiff and that the car would not be removed from Cowley county without plaintiff’s written consent. The swindler haggled with plaintiff until after banking hours, and then proffered a check for a hundred dollars drawn on Cole’s bank and signed in the name of Ben Cole. The plaintiff called the bank by telephone and was assured that Ben Cole had an account with it, and that Cole’S check was good for that sum. Led by these inducements, plaintiff parted-with the car and accepted the check. The swindler took the car, got his personal belongings from his boarding house, and hé and the car vanished.
Action on the insurance policy; judgment for plaintiff, defendant appeals.
Was plaintiff’s loss within the terms of the insurance policy? Our criminal law defines stealing and obtaining property by false .pretenses as distinct offenses, although the punishment for each is the same. (Gen. Stat, 1915, § 3467; Laws 1920, ch. 38, §§ 1, 2.) It may well be that in a prosecution for the crime narrated the strict rules of our criminal law would require that the swindler be charged with the latter offense rather than the former. But- it cannot be said that the contract of insurance was drawn to fit the narrow limitations of the Kansas crimes act. In the analogous case of Grain & Supply Co. v. Casualty Co., 108 Kan. 379, 195 Pac. 878, 16 A. L. R. 1488 and note, where the action was against a fidelity company to reimburse plaintiff “for such loss of money, securities and personal property . . . which the employer shall have sustained by reason of any act, or acts constituting larceny or embezzlement, committed by the employee,” it was held that acts constituting embezzlement were not to be construed under the strict rules of local criminal law, but that—
“The bond is to be interpreted in the light of its nature as a contract of insurance, in view of its purpose as such, and with a considerable degree of liberality in favor of the insured and against the insurer by reason of its having framed the contract. A risk fairly within its contemplation is not to be avoided by any nice distinction or artificial refinement in the use of words. The term 'embezzlement’ must be deemed to have been used in its general and popular sense rather than with specific reference.to the precise definition of the local statute.” (p. 382.)
The prevailing rule is that any scheme whether involving false pretenses or other fraudulent trick or device whereby an owner of property is swindled out of it with the preconceived intent of the swindler not to pay for it, is classed as larceny and is punished accordingly. Here the swindler - planned to fraudulently get possession of the plaintiff’s property with intent to deprive him of it without his consent. The swindler’s pretense that he was Ben Cole, and the exhibition of Cole’s union card and check bools, his delaying the deal until after banking hours, etc., were merely the means which he used to obtain possession of the car and deprive the owner of it. So, too, the taking of the car out of Cowley county was a fraudulent taking of possession with intent to deprive the owner of it. Plaintiff never freely consented to sell the automobile to any person except the real Ben Cole. He-never consented to part with his title without full payment. He never consented to anybody’s possession of the car except within the limits of Cowley county.
Under these circumstances, the plaintiff was deprived of his property by a species of theft, and such an offense is génerally so defined.
In 3 Bouvier (Rawle’s 3d Rev.) 3267, theft is thus defined:
“A popular term for larceny.
“It is a wider term than larceny and includes other forms of wrongful deprivation of property of another.
“Acts constituting embezzlement or swindling may be.properly so called.”
In 25 C. J. 657, the distinction is drawn between the closely allied crimes of obtaining property by false pretenses and larceny, but there, supported by many authorities, it is said:
“The distinction between the crimes of obtaining by false pretense and larceny lies in the intention with which the owner parts with the property. If the owner in parting with the property intends to'invest the accused with the title as well as the possession the latter has committed the crime of obtaining the property by false pretense. But if the intention of the owner is- to invest the accused with the mere possession of the property, and the latter with the requisite intent receives it and converts it'to hjs own use, it is larceny.”
Here it was perfectly plain that Montgomery’s fraudulent scheme to deprive plaintiff of the automobile was preconceived. This com .stituted larceny as defined in Corpus Juris, supra, and as defined in Bouvier, supra. In The State v. Woodruff, 47 Kan. 151, 27 Pac. 842, the defendant was convicted of stealing a mare. The evidence showed that he had preconceived the plan to deprive the owner of the animal, and he effected that object by going to the owner and telling him he had the toothache and wanted to hire the beast to ride to town, stating that he would return it at noon.. The owner consented and assisted in saddling and bridling the mare. The defendant made away with the mare’, and it was never found or recovered. This court said:
“Where a person obtains possession of a horse with the consent of the owner, by falsely and fraudulently pretending, that he wants to use him-a short time for a temporary purpose, and will return him to the owner at a specified time, when in fact he intends to and does wholly deprive the owner of the horse and appropriates him to his own use, there is such a taking and carrying away as to constitute the offense of grand larceny.” ' (Syl. ¶ 1.)
In The State v. Flaherty, 103 Kan. 393, 173 Pac. 919, the defendants were convicted of grand larceny. The evidence showed that they preconceived a plan to swindle George Roth, out of $5,350 by inducing him to bet that sum of money on a fake horse race. The money was received by an associate of defendants’, and the swindlers pursuant to their preconceived scheme converted it to their own use. This court said:
“It is argued that the statute does not embrace every act which was larceny at the common, law, and that it is not larceny to obtain possession of money by some trick, fraudulent device, artifice, or means, with the intention of stealing the same. This argument is not good. 17 R. C. L. 16 uses this language:
“ ‘Obtaining money under the pretense that it is to be bet on a race, and with the intent at the time to convert it to the bailee’s own use, the race being a mere sham to aid this purpose, is larceny.’ ” (p. 394.)
In Tredwell v. United States, 266 Fed. 350, it was held:
“If, at the time of lawfully coming into possession of property of another, the one to whom the property is intrusted has the intention of appropriating it to his own use, the crime thus committed is larceny.” (Syl. If 3.)
In Towns v. State, 167 Ind. 315, it was held that the soliciting and receipt of money, by defendant, at a church, with the intent to appropriate such money to his own use, falsely representing to the contributors that such money was to be used for a certain benevolent purpose, constituted the felonious elements of larceny.
To the same effect are: The State v. Brown, 25 Iowa, 561 (impersonation with intent to deprive owner of mare); People v. Morse, 99 N. Y. 662 (false pretenses with intention to deprive owner of money); Commonwealth v. Lawless, 103 Mass. 425 (impersonation of a soldier with intent to deprive uf bounty).
We have examined the case of Delafield v. London & Lancashire Fire Ins. Co., 164 N. Y. Supp. 221; 177 App. Div. 477, relied on by appellant. The reference to the insurance policy in both opinions is too brief to compare its terms with the one at bar, and the facts appear to have involved a bailment tp the swindlers with power to sell and their promise to pay a fixed sum for. the car after its sale by the bailee, etc. The court, appellate division, held:
“While this policy insures against ‘theft,’ it seems clear that it was not the intention of the parties to the contract of insurance to insure against larceny by trick and device; that is theft, the commission of which involves as an essential element, the deception of the insured, resulting in a surrender of the possession of his property. The term ‘theft’, as used in this policy, does not include all forms of larceny recognized by law. It does not include a larceny perpetrated as this was under the form and guise^ of a business transaction conducted by the insured himself.” (p. 480.)
It seems that this New York case may have had several features to distinguish it from the one before us; but whether it had or not, it does not persuade us to abandon the reasoning of our own analogous case first above cited, nor of the other cases which we have mentioned, nor does it shake our conviction that the case at bar was correctly decided; and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
'While C. A. Kessler was riding in an automobile belonging to and driven by Howard Shearhart the car was struck at a street crossing by the engine of a Missouri Pacific passenger train and Kessler was severely injured. He sued the federal agent who was in charge of the road and recovered a judgment, from which the defendant appeals.
1. The defendant asserts that there was no evidence that the railroad management was negligent in any respect. Four forms of negligence were alleged, and the jury specifically found that the defendant was guilty of all of -them: “Maintaining an improper crossing; maintaining obstructions on the right of way; approaching an obstructed crossing at excessive speed; failing to sound proper crossing signals.” There was evidence that the crossing was not maintained in conformity with the statute, but we find nothing to indicate that the collision was in any degree due to its defects. The petition charged that the view of the track from the street near the crossing was obstructed by unnecessary buildings, trees and fences. The plaintiff testified that his view of the approaching train was cut off by a section house on the right of way and by a curve in the track — that otherwise he could have seen up the track for a mile. This testimony practically took the other obstacles out of consideration in this aspect of the matter. The section house was a necessary and useful building. Its position on the right of way was a matter to be taken into account in connection with the obligation on the part of the railroad management to give signals and with regard to the question of contributory negligence, but we do not think it could alone constitute actionable negligence. (See Corley v. Railway Co., 90 Kan. 70, 71, 133 Pac. 555.) Therefore, the judgment could not be sustained upon either of the two grounds already discussed. Their elimination, however, does not warrant a reversal if either of the other two grounds of negligence is sustainable, and we think there was evidence to support both. Witnesses estimated the speed of the train at twenty to forty miles an hour. While other evidence tended to weaken this, the matter was one to be submitted to the jury, together with the question whether the rate found was in excess of what was reasonably prudent considering all the circumstances, including the distance of the crossing from the station — some 200 feet. Evidence of witnesses called by the plain tiff seemed to establish that the whistle was sounded as the train approached the station, but whether the conditions called for any further signal, and whether the bell was in fact rung, were questions properly submitted to the jury.
2. The defendant claims that the evidence conclusively established that the collision was due to the negligence of Shearhart, the driver of the automobile, which should be attributed to the plaintiff because the two were engaged in a common enterprise. There was evidence to this effect: The plaintiff and Shearhart were neighbors living near Edna. Each had a car. They frequently went to town together, sometimes in. one car and sometimes in the other. On the day of the accident Shearhart was going to town and asked the plaintiff to go with him. The plaintiff had some produce he wanted to take in, and accepted the invitation on that account. They reached Edna in the morning and stayed there until four or five o’clock in the afternoon, when they started home, the collision occurring while they were still in town. We do not think the evidence conclusively proved that the two were engaged in a common enterprise in such sense as to make the plaintiff chargeable with the negligence of Shearhart. That question was one,to be left (as it was) to the jury under proper instructions.
3. Under various assignments of error the defendant urges that judgment should be rendered against the plaintiff on the ground that his own personal negligence contributed to the injury. The rule is well settled that due diligence on the part of the driver of a vehicle requires him to assure himself that no train is approaching within a dangerous distance before attempting to cross a railroad, stopping for that purpose if necessary. The defendant takes the position that in the present situation the same obligation rested upon the plaintiff. We do not think it can be said as a matter of law that the plaintiff was negligent in failing to see to it that the automobile was stopped, assuming that to have been true of the driver.
4. -The plaintiff, however, was under a positive duty to take reasonable precautions for his own safety. Whatever else this may have involved, it required him to keep an outlook for a train, particularly on his side of the car, and to give the driver notice as soon as he discovered one. (Knight v. Railway Co., ante, p. 308, 206 Pac. 893; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744.) As the two drove south on the principal street toward the rail road, which crossed it at right angles, their view to the west, from which direction the train was coming, was cut off to a considerable extent by various obstructions, the last of which was the section house, situated at its nearest point approximately 125 feet west of the middle of the street and 19% feet north of the middle of the railroad track. This distance refers to the main part of the building — the house itself; a small porch, consisting of a floor and a roof supported by three posts extended several feet to the south, but could not completely cut off the view up the track. The plaintiff was on the front seat at the right of the driver. He testified that he was looking west all the while but saw the train for the first time when he was 10 or 12 feet from the track and at once called to the- driver to look out; that the reason he didn’t see it when he was 25 feet from the railroad was on account of the section house and a curve in the track. In one instance he spoke as though the train when he first saw it was but 100 feet away, but the effect of his whole testimony is that the distance was about twice that.
If the plaintiff’s account is correct this must be what happened: While he was 25 feet from the track he could and did see along-it to the west for 200 feet — the extent to which it was visible — but did not see the train because it was not yet within that distance; he kept on looking but the train did not come in sight — did not reach his field of vision along the track — until he was within 10 or 12 feet of the track, when owing to the imminence of the peril he could, do nothing more than to warn the driver. This version attributes what seems a most improbable speed to the train, but we cannot say it is impossible, or that if it is true the plaintiff was guilty of contributory negligence as a matter of law. Therefore judgment upon the evidence cannot be rendered against the plaintiff.
5. However, we think the defendant’s motion for a new trial should be sustained, for these reasons: The plaintiff’s case rests upon the theory that at a distance of 25 feet from the track he could only see a train approaching from the west if it was within 200 feet. He testified that at that distance he could see no further up the track because of the section house and because of the curve in the track. By a plat drawn to a scale the section house is shown to be about 125 feet west of the middle of the street and 19% feet north of the middle of the track. It is manifest that i-f these measurements are correct and they are supported by the other evidence, a train coming from the west could be seen in spite of the section house at a distance of something like 500 feet if the track is straight. There was no testimony as to just where the curve began, but the plat, which covers over 500 feet west of the street, does not show it. The plat of course i$ not to be regarded as infallible, but in the absence of 'any other actual measurements in conflict with it we do not think a judgment inconsistent with it should be allowed to stand, the matter being one capable of. exact determination. The jury in answer to a special question found that the occupant of an automobile when he was 25 feet north of the track had an unobstructed view along the track to the west for about 200 feet. In view of the issues involved this must be interpreted as meaning that when 25 feet from the track he could not see an approaching train until it wa,s within 200 feet of him. It cannot be said that the. finding was wholly without support in the evidence, for it corresponded with the plaintiff’s estimate, but it was in 'conflict with the plat, against which no actual measurements were offered. Moreover, the plaintiff’s statement was that at that distance the curve cut off the view, when there was no substantial evidence of a curve within that distance. A photograph was introduced, looking west from the crossing up the main track, showing a freight train approaching on the passing track to the south, the rear cars of which show a curve to the north. But the engine itself is standing about 200 feet west of the middle of the street, and while the length of the train of course cannot be closely estimated in such a picture it is evident that the curve does not begin for a considerable distance beyond the 200 feet fixed by the jury as the limit of vision from a point 25 feet north of the track. The special finding shows expressly that the jury reached a conclusion (which would necessarily have been implied from the general verdict) that was in conflict with the only actual measurements submitted, upon vital matters that are capable of being ascertained beyond any doubt. In this situation we cannot feel that the judgment should be allowed to stand.
6. The defendant submitted ten special questions. One of them called for the distance the occupant of an automobile could see. west up the track when he was distant from it 25 feet, 50 feet and 75 feet. The court treated this as three questions and refused to submit more than ten on that basis. The defendant then eliminated the^ question so far as concerned the 50 and 75 feet, and complains of being required to do so. The jury having fixed 200 feet as the limit of vision from a distance of 25 feet, their estimate of the limit from the other distances being necessarily less became practically immaterial for the purposes of this trial.
Questions that have been raised with respect to instructions given and refused are practically disposed of by what has already been decided under other assignments.
The judgment was for $20,000. The defendant urges that the amount is excessive, and it appears to be very large; but inasmuch as a reversal is ordered upon other grounds it is not necessary to rule upon this question.
The judgment is reversed and the cause is remanded for a new trial. | [
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Per Curiam:
In a motion for leave to file an additional petition for a rehearing, appellant urges that the action was barred by the statute of limitations.
Not so. The statute reads:
“Civil actions . . . can only be brought within the following periods.
“Fourth — Within one year: An action for libel, . . .” (Civ. Code, § 17.)
By the act of congress, approved March 8, 1918, it is provided:
“Sec. 205. That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have been secured prior to or during the period of such service.” (40 U. S. Stat. 443.)
The constitution of the United States provides:
“This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” (Art. VI.)
The alleged libellous article was published on April 25, 1918. Plaintiff’s petition alleged:
“That on the 22nd day of April, 1918, the plaintiff left his home in the County of Harper and duly enlisted in the service of the United States and was by the Government of the United States taken to Camp Funston and from there to France. That on or about the 12th'day of April, 1919, plaintiff was, by said government of the United States, duly discharged from the service of the United States and returned on or about said date to his home in the county of Harper, State of Kansas.”
The action was begun on March 9, 1920. The time the plaintiff was absent from home as a soldier in the service of his country cannot be ¡“included in computing any period now or hereafter to be limited by law for the beginning of any action by . . . any person in military service.”
So reads the supreme law of the land. It is too plain to require discussion. Rehearing denied. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to recover damages from the defendant for negligently killing Roe Kelly, the son of Pearl Kelly. Judgment was rendered for the plaintiff for $5,000, and the defendant appeals.
1. The first question presented arises on the trial statement of counsel for the plaintiff. The petition alleged that the defendant negligently drove his car at a very rapid rate of speed. Counsel for the plaintiff said:
“The evidence will show that about the time that this party stepped into Eighteenth Street that an automobile came down the street at a very' high rate of speed, something in excess of 35 or 40 miles an hour, in which automobile were various persons, and as they passed this party they_ hollered and whooped and waved their hands. The evidence will show that at that time somebody made a remark about this Eighteenth Street speedway, look out for your lives. The evidence will show that this party that had been at lodge then crossed Eighteenth Street and proceeded south.”
The following then occurred:
“Mr. Herrod: Just a minute. We move to strike out all the statements of counsel relative to that automobile, for the reason that it is prejudicial.
“Mr. Hubbard: I will show it is material, .and show how.
“Mr. Herrod: There is no contention on the part of counsel that that was the automobile that killed this boy.
“Mr. Hubbard: Suppose it is shown that Mr. Vucklich was racing this car, wouldn’t that be competent?
“Mr. Herrod: Certainly it would not. You have said this automobile has gone away from there.
“The Court: Overruled.”
There was no evidence to show that the defendant was racing his car at the time he struck Roe Kelly, but there was evidence to show that he was then running thirty-five or forty miles an hour. Under the allegation of the petition, it would have been proper to have introduced evidence to prove every fact stated by counsel to the jury. It was not error for the court to permit counsel for the plaintiff to make the statement.
2. Complaint is made of evidence introduced by the plaintiff to show the rate of speed at which the car was traveling at the time of the accident. A witness testified that the car was traveling about thirty-five or forty miles an hour. He saw the car and testified that he could judge of the rate of speed. He was cross-examined concerning how he arrived at his conclusion. That cross-examination disclosed that the witness reached his conclusion in the same manner that any other person would by looking at a car traveling on the street. In Miller v. Jenness, 84 Kan. 608, 114 Pac. 1052, this court said:
“The rate of speed of an automobile on a public highway is a matter of which the people generally in this country have some knowledge. It is not a matter exclusively of expert knowledge or skill. Where the rate of speed of such a vehicle is material in an action, any person of ordinary ability and means of observation who. may have observed the vehicle may give his estimate as to the rate of speed at which it was moving.” (Syl.)
3. The third question presented concerns the contributory negligence of Roe Kelly. The evidence showed that he was a large, healthy, energetic, quick, bright boy, seventeen years old, and was driving some pigs along the street after dark at the time he was killed; that one of the pigs was killed at the same time; and that he could have seen the automobile; but, from the evidence, it may be inferred that he did not see it because his attention was directed to the pigs he was driving. He may have been guilty of contributory negligence, but the court cannot say, as a matter of law, that he was negligent. That question was submitted to the jury. There was no error in so doing.
4. The defendant contends that there was no evidence to prove negligence on his part. This contention is -without foundation. There was evidence which tended to prove that he was driving his car thirty-five or forty miles an hour. That rate of speed on ,a street in a city was sufficient to warrant the jury in finding that he was negligent. ' ‘'
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Julia B. King brought this proceeding asking a writ of mandamus against Lorraine Elizabeth Wooster as state superintendent of public instruction, requiring her to approve the plaintiff’s account against the state for her services as secretary of the board of education from July 1, 1920, to September 9, 1920. The district court allowed the writ and gave judgment against the defendant for the plaintiff’s attorney’s fee. The defendant appeals.
The defendant seeks to justify her refusal upon the ground that the plaintiff was not entitled to compensation from the state because she did not have the qualifications required by the statute for election to the office of secretary of the board of education. The questions presented are: (1) Did a legal duty rest upon the defendant to approve the account even if it were admitted to be valid? (2) If so, could a refusal to approve it be justified by reason of the plaintiff’s title to the office being so defective that she was not entitled to the salary? (3) Did the plaintiff have the qualifications for the office specified by the statute? (4) Was the defect in her qualifications, if any, of such character as to deprive her of a claim for compensation for the time she filled the office? and (5) if the plaintiff was entitled to the writ asked, was the court warranted in allowing her also to recover damages?
1. The appropriation act covering the salary of the secretary of the board of education for the period including the year 1920 contains this provision:
“Any person to whom money is payable out of the appropriations provided for in this act shall file with the auditor of state an itemized account made in conformity with the statutes authorizing the expenditure, duly certified by his affidavit that such an amount is just, correct and due, and the expenditure was necessarily and actually made. Such an account shall be approved by the officer having charge of the appropriation. . . .” (Laws 1919, ch. 1, § 6.)
The clause making appropriátion for such salary is included in the same subdivision of the statute with those relating to the compensation of the superintendent of public instruction, assistant superintendent and various clerks and stenographers under the general subtitle “Superintendent of Public Instruction.” We think it clear that the account of the secretary of the board required to be approved before presentation to the auditor, and that the defendant was the proper person to approve it — the “officer having charge of the appropriation” within the meaning of the act, although she did not have control of its disposition. This view is in conformity with what has been and continues to be the practice.
2. The title to a public office can ordinarily be determined only in a direct action. The state auditor, however, may refuse to allow a claim for the compensation of a public officer on the ground that the claimant is disqualified to hold the office. (Bailey v. Turner, 108 Kan. 856, 197 Pac. 214.) But that ruling in the case cited was based upon the fact that the auditor is not a mere ministerial officer and may reject a demand which for any reason does not constitute a legal liability of the state. The defendant as the head of an executive department, however, did not occupy so favored a position in determining whether or not to approve the account of an officer therein. The principal purpose of such an approval is no doubt to identify the claimant as the person who has filled the place for the period covered. The department head is not required nor expected to pass üpon the claimant’s legal title to the office, although a court might refuse to compel by mandamus any step in the presentation or prosecution of a claim that for any reason was clearly without legal merit.
3. The statute enacted in 1915 authorizing the election of a secretary of the state board of education (of which body the defendant is ex officio a member and chairman) included this provision, which has been retained in the section as amended:
“The State Board of Education, shall elect a secretary, not a member of the board, who shall be an expert in education, a graduate of a four-year course of study of a university, college, normal school, or institution of like rank, and who shall have had not less than five years of experience in educational work as superintendent or supervisor.” (Gen. Stat. 1915, §8873; Laws 1919, ch. 256, § 2.)
The only objection made to the plaintiff’s eligibility is that she was not “a graduate of a four-year course of study of any university, college, normal school, or institution of like rank.” The evidence was that in 1890 the plaintiff was graduated from the state normal school at Emporia, which then gave diplomas upon the completion of a three-years course, a four-year requirement having been made between that time and the enactment of the statute under consideration; that later she taught school eight years, served as county superintendent six years and four months, and as principal of a ward school in Winfield for ten years; that she was later principal of the junior high school of that city, and when elected as secretary of the state board of education was serving in that capacity, and had also nearly completed the six-hours extension course of the state agricultural college, which she later finished; that in 1918 she completed the four-hours extension course of the state normal school at Pitts-burg ; and that she had studied medicine for a year and a half.
It therefore appears that while the plaintiff was not„ literally a graduate of a four-year course of study of any institution she had been graduated from the state normal school at a time when ifs diplomas were granted upon the completion of a three-year course, and that her later studies had been of such character and extent that they might well be regarded as more than the educational equivalent of an additional year as a part of a regular course leading to graduation. The board of education in selecting the plaintiff as its secretary must be presumed to have regarded her qualifications in this respect as substantially meeting the statutory requirements, and for an executive officer or a court to hold that their action was unwarranted would require a very strict and technical reading .of the statute; and even such an interpretation would not leave the title to the office open to collateral attack.
4. It has been said that “a statute prescribing qualifications to an office is merely directory, and although an appointee does not possess the requisite qualifications, his appointment is not therefore void, unless it is so expressly enacted.” (St. Louis County Court v. Sparks, 10 Mo. 118, 121.) Whether or not that statement should be accepted as a general rule, a distinction may well be made in this respect between a statute which specifically forbids a person of a particular class to hold an office and one which merely enumerates the qualifications to be possessed by the person chosen for the place. In the case already referred to (Bailey v. Turner, 108 Kan. 856, 197 Pac. 214) it was held that under a statute forbidding a' relative of the district judge to serve as court reporter, one who was so disqualified could not maintain a proceeding for the recovery of compensation for his services, and that the rule that a merely de facto officer cannot maintain an action for his salary is not limited to-cases where there is no adverse claimant. It was not determined, however, that in no instance could a person who had performed the duties of an office not claimed by any one else, but whose title thereto was defective, recover compensation therefor. On the con trary it was said: “If all that the occupant of an office lacked of a de jure title grew out of the fact (for illustration) that the official oath had not been administered to him [although such an oath is required not only by the statute but by the federal constitution], there might be good ground for holding him entitled to the salary.” (p. 859.)
We conclude that it was the duty of the defendant to approve the plaintiff’s account, and we place the ruling upon the ground that whether or not the plaintiff’s title to the office was so open to challenge that she might have been removed in a direct action, the defect was not such as to forfeit her right to compensation for the time during which she filled it or to justify the defendant in refusing to give the approval which was required in order to enable the state auditor to pass upon the validity of the claim.
5. The plaintiff’s claim has already been allowed and paid, and the consideration of the foregoing questions has been necessary only in order to determine whether the trial court was warranted in allowing the plaintiff to recover her attorney’s fee as damages. A state officer in the exercise of quasi-judicial power is protected “by being relieved of costs and damages, so long as he acts reasonably and in good faith, even although he should be wrong in his refusal,” but “should he act captiously or arbitrarily or unfairly, he becomes a wrongdoer, and subject to the liabilities of a wrongdoer.” (Cates v. Knapp, 104 Kan. 184, 186, 178 Pac. 447.) As already stated, the function of the defendant in respect to the plaintiff’s account was much narrower than that of the auditor in passing upon the validity. But the application of the same rule requires an affirmance of the judgment. There was testimony tending to establish these facts, which the trial court must be deemed to have found: The plaintiff was selected as secretary of the board of education in April, 1919, and took charge of the office on the first of the following July. Her selection was approved by the defendant who at the time knew of the extent of her educational qualifications and expressed herself to the effect that she was “substantially well qualified, even thpugh not technically.” The plaintiff served for nearly a year without objection being made by the defendant. In conversation on the subject the defendant expressed a desire and intention to relieve the plaintiff of her duties for reasons not connected with her educational qualifications.
This evidence warranted the inference, which, in support of the judgment, it must be assumed was drawn by the trial court, that the basis of the defendant’s refusal to approve the plaintiff’s account was not a belief that she lacked the legal qualifications, and was not of such character as to protect her from a judgment for damages for its refusal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a lienholder to recover dam- • ages for appropriation of personal property subject to the lien. The plaintiff recovered, and the defendant appeals.
The plaintiff sold to Bentrup and Harry Doyle certain cane, straw, and other property, and gave them a bill of sale in which the property was correctly described. The consideration was $1,650. Bentrup paid $500 in cash. Bentrup and Harry Doyle gave their note for $450, which Bentrup afterwards paid. Harry Doyle delivered to the seller a team of horses valued at $275. The balance of the consideration was represented by a note for $425, given by Harry Doyle, which contained the following provision:
“The condition of the sale of the cane, straw, and pasture, for which this note is given, is such that the ownership, title or right of possession does not pass from said W. H. Doyle, vendor, until this note, original or renewal, is paid, and that in case of nonpayment thereof, or the sale, incumbrance or removal of said propert3 from the vendee’s premises in Deerfield, Kan., without the written consent of the holder of this note, or in case such holder shall at any time deem himself or his debt insecure, he shall have the power to declare and make this debt wholly due and payable, to take possession of said property and hold the same or sell at public or private sale and apply the proceeds thereof to the cost of taking and sale, then toward the payment of this note,
This instrument was filed for record November 26, 1918. Harry Doyle gave to Bentrup a chattel mortgage on the property described in the bill of sale, to secure an indebtedness to Bentrup. Bentrup filed his mortgage for record December 6, 1918, and subsequently appropriated the property.
Bentrup contends the instrument, in form a title note, could not create a lien, because, as part of the same transaction, an outright bill of sale was given. Because the two instruments were part of the same transaction, they are to be construed together, as evidencing a sale and creating a lien. Bentrup also contends the title note was void as a lien instrument for. lack of a description of property. The instrument referred to the sale, in consideration of which it was given and, read with the bill of sale, was not open to the objection urged. The evidence was that Bentrup was privy to the giving of the title note as security for payment of part of the purchase price of the property, and he cannot assume the position of a stranger who became an innocent mortgagee.
There is nothing else of importance in the case, and 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 to recover on a beneficiary certificate issued by the defendant. The plaintiff, who was husband of the deceased member to whom the certificate was issued, prevailed, and the defendant appeals.
The cause was submitted on an agreed statement of facts and some supplementary testimony. A summary will be sufficient for the decision.
The defendant is a beneficiary society having local lodges. Beneficiary certificates are issued to members of local lodges by the grand lodge, which administers the beneficiary fund. The certificate sued on was issued to Grayce E. Gray, member of local lodge No. 131, at Sedan. She failed to pay assessment 6, for June, 1918, payable on or before June 28, and on June 29 she was reported to the grand lodge as suspended. On September 2, the financier of the local lodge wrote the suspended member a letter, giving her “lodge acct.” embracing assessments and dues for May, June, July, August, and September, aggregating $7.50, and stating, “If you send this by return mail, it can be fixed without an extra examination, but be sure and send it at once.” On September 7, the member paid $7.50 to the financier, who wrote up his books to show assessments and dues paid, and who, in the September report to the grand recorder, reported the member reinstated as of August 26. It was the duty of the recorder of the local lodge to make these reports, and the financier acted for him. On receipt of the report, and on September 26, the grand recorder wrote the local recorder that a good health certificate was due, because the member had been suspended more than thirty days, and less than three months. The letter concluded as follows:
“If you have a good health certificate for her, please forward it direct to this office at once, in order that we may get it in time to credit your return before the first of the month. If you do not have a good health certificate for her on hand, please fill out this enclosed blank in accordance with the facts, and have it signed by her, and forwarded to this office as above directed.”
. On September 28, the grand recorder again wrote the local recorder as follows:
“As we are obliged to close our books, and we do not have the good health certificate of Grayce E. Gray, we are obliged to strike her off. However, if we receive it in the next day or two, we will correct your return by entering her as reinstated. Otherwise, you can make your next report on your next beneficiary return of her reinstatement of date of August 26, providing the law is complied with in furnishing a good health certificate for her.”
No health certificate was furnished, and the member died on October 16. The local lodge held no meetings between May 1 and the date of the member’s death. No record was made on the local recorder’s books of either suspension or reinstatement of the member, and no vote of the local lodge on the question of reinstatement was taken. The money paid by the member in September was not returned to her, and was not tendered to anyone for her until after her death.
The constitution and laws of the grand lodge, in force when the certificate was issued and when the member’s death occurred, .are divided into articles and sections. In the 1915 compilation, sections are treated as paragraphs, and the paragraphs, beginning with the first, are numbered consecutively. References will be to paragraph numbers.
Paragraph 100, relating to the beneficiary fund, provides that no liability for payment of money from that fund shall arise by virtue of a beneficiary certificate during suspension of the member for nonpayment of assessments. Paragraph 117, relating to assessments, provides that regular monthly assessments are due and payable without notice; unless paid on or before the 28th of the month, the member and his beneficiary certificate are immediately, on default, ipso facto suspended; while so suspended, the member is barred of all rights as a member, his beneficiary is barred of participation in the beneficiary fund, and the rights of member and beneficiary can be restored only by complying with the laws relating to reinstatement. Paragraph 131, relating to records to be made by the local lodge officers of assessments and delinquencies, reads as follows:
“The Financier of each Subordinate Lodge shall keep a book wherein all assessments of the Beneficiary Fund shall be entered against each member holding a valid certificate; such entry shall be made bearing the date of not later than the 8th of the month for each assessment made as herein provided for each month. On the day succeeding the 28th day of said month he shall furnish the Recorder of the Lodge with the names of the members who are in arrears on assessment, and the Recorder shall mark on the certificate register book the Beneficiary Certificates of such members as suspended, affixing the dates thereto, and at the first stated meeting of the Lodge after the 28th day of any calendar month the Financier shall report to the Lodge the names of those members whose Beneficiary Certificates are suspended for nonpayment of such assessment or assessments, and the Recorder shall enter such report upon the minutes of such meeting; and all rights of membership of such delinquent members from the time of the delinquency shall then ipso facto cease and remain of no binding force and effect, but be suspended until, same are restored by compliance by such members and their Lodge with the laws of reinstatement hereinafter provided.”
Paragraph 132 reads as follows:
“The membership rights and the certificate of each member who has not paid the assessment or assessments for the calendar month on or before the 28th day of said month shall by the fact of such nonpayment, stand suspended, and no action on the part of the Lodge or any officer thereof shall be required as essential to such suspension; and from and after the date of such suspension, and in case of death thereafter of the member so suspended, then neither the beneficiary, nor the heirs at law of such member in case the beneficiary named be dead, shall have any right whatever to participate in the beneficiary fund of the Order, until such right shall be restored by the reinstatement of such certificate and membership by compliance with the laws of the Order with reference thereto on the part of such member and his Lodge.”
Paragraph 133, relating to reinstatement of a member* in the situation of the deceased, imposes several conditions on reinstatement. All assessments must be paid. A certificate of good health, in pre scribed form, must be furnished by the applicant for reinstatement at the time delinquent assessments are paid, and the certificate must be forwarded at. once to the grand recorder’s office. When these conditions have been complied with, and not before, the financier shall report to the local lodge; and when the grand recorder’s acknowledgment of receipt of the health certificate has been returned, a reinstatement vote shall be taken. The section proceeds as follows:
“Neither the payment of the money to nor the receipt thereof by the Financier or any other officer of the Lodge, in cases of suspension for delinquency existing more than thirty days and less than .three months, shall operate to work a reinstatement until the Lodge, at a stated meeting thereof, shall have affirmatively voted thereon. When all of these conditions have been complied with, the Beneficiary Certificate and rights of membership of such suspended member shall be held as renewed and in full force, and not before, and the record of the reinstatement shall be made on the minutes of the Lodge: Provided, That the failure of the Financier to report to the Lodge the payment of arrearages, or the failure of the Lodge to hold stated meetings as required by its by-laws, or to take affirmative action upon the matter of reinstatement, as hereinbefore provided, shall not be deemed a waiver by the Grand Lodge of the requirements of this section; and should such member die before such reinstatement, as specified in this section, his beneficiary, or heirs at law if the beneficiary named be dead, shall not be entitled to any portion of the Beneficiary Fund.”
The plaintiff contends the member never was suspended. This contention is based on an interpretation of paragraph 131. It is said the -expression “and all rights of membership of such delinquent members from the time of the delinquency shall then ipso facto cease,” means that suspension does not take place until all things which the paragraph directs to be done have been done. The plaintiff notes that this interpretation makes paragraph 131 incompatible with paragraph 132, and naively resolves the contradiction by saying the latter section is “an absolute nullity.” The plaintiff does not note that the proposed interpretation makes paragraph 131 incompatible with paragraph 117. By parity of reason, section 117 is a nullity, which seems rather absurd. The word “then” in paragraph 131 refers to the time last mentioned — the time of delinquency. So construed, the three sections are valid and harmonious, and failure to pay an assessment in due time operates, without more, to suspend.
The plaintiff contends that retention of money paid to secure reinstatement waived furnishing a certificate of good health. The letters of the grand recorder to the local recorder forbid such an inference. Immediately on receipt of notice of efforts toward rein statement, the grand recorder called for the certificate. On September 28, he notified the local recorder that the member was stricken off because no certificate had been furnished. The letter, however, expressed willingness to accept a certificate if received in a day or two, and beyond that, to accept a report of reinstatement as of August 26, on the October return, provided the certificate were furnished. Before time for making the October report, the member died. Under these circumstances, the grand lodge waived nothing except compliance with the law which required the certificate of good health to accompany payment of arrears, and merely indulged the member in opportunity to furnish the necessary certificate. The grand lodge was privileged to assume the member would complete reinstatement by furnishing the certificate and procuring a favorable vote of her lodge, and there was no occasion to return the money before it was advised reinstatement was definitely abandoned or had failed.
The financier and acting recorder of the local lodge advised the member that reinstatement could be “fixed without extrá examination,” if the money were forwarded at once. That was true. The law provides that, after suspension for three months, the member “must again be examined by the medical examiner of the lodge.” The financier did not write the member that a health certificate would not be necessary, and it would make no difference if he had done so. He was not official interpreter of the laws of the society, the law on the subject was plain, it formed part of the member’s contract, and she was charged with knowledge of it.
The financier testified that, when he learned a health certificate would be required, he so notified the member. The plaintiff testified the letter containing the notification was not received. The subject is unimportant. The contract was that, in case of suspension for more than thirty days and less than three months, a health certificate was indispensable to reinstatement.
The testimony of the financier was very unsatisfactory. The plaintiff accepts parts favorable to himself, and rejects the rest. One of the accepted portions was that the member was suspended so much of the time, the financier tried to save her insurance by “putting up” payments for her. Reinstatement could be effected within thirty days after suspension by simple payment of arrears. There is no stipulation or evidence that the grand lodge had ever suffered reinstatement of the member after suspension for more than thirty days, without requiring a health certificate, and there is no stipulation or evidence that the grand lodge knew anything about the financier’s practice of paying the member’s assessments. Therefore there was nothing on which to predicate either waiver or ratification.
The foregoing renders it unnecessary to discuss the subject of failure of the suspended member to complete reinstatement by securing a favorable vote of her lodge.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
W. E. Martin brought this action to enjoin George L. Lown from maintaining a dam or levee on his land which obstructed the natural drainage and flow of surface water and tended to throw it back upon plaintiff’s land. The parties owned adjoining farms which were separated by a highway. Martin’s land slopes slightly and the water flows on it eastward towards Lown’s land. There is a culvert across the highway in the low part of the ground. Just inside of his fence and at the edge of the highway Lown built an embankment for a distance of about three hundred feet north and south to a height of about two feet. This causes the surface water to back up on the land of plaintiff, covering, it is alleged, about sixty acres of it. But for this embankment it would flow through a culvert in the highway and on over the land of the defendant into the bed of the Wakarusa river. At some earlier time an embankment had been built, which was washed out and repaired from time to time. In 1920 it was rebuilt in front of the culvert and plaintiff began this action to enjoin its maintenance, under chapter 176 of the Laws of 1917. The court decreed that the defendant be enjoined from maintaining the dam. Motion for new trial was filed, and on that motion defendant sought to introduce additional testimony, namely, the levels taken by a proposed witness, but the testimony was refused. Defendant appeals.
One of the claims of defendant is that plaintiff had no legal capacity to maintain the action. It is argued that as a highway divided the farms of the parties and as an injunction would necessarily affect the highway, the state alone could bring the action. The action was hot brought for the protection of the highway as in the cited case of The State v. Nye, 85 Kan. 559, 117 Pac. 1014, but was brought to protect the rights of the plaintiff and prevent injury to his land. The statute on which it was brought provides;
“That section 4050 of the General Statutes of 1915 be amended to read as follows: Sec. 4050. A lower owner or proprietor shall not construct or maintain a dam or levee for the purpose of obstructing thé flow of surface water onto his land to the damage of the adjacent upper owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood water from such natural watercourse: Provided, That the provisions of this act shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city.” (Laws 1917, ch. 176.)
It is further contended that as the public road divides the lands of the parties, the defendant’s farm could not be regarded as adjacent to that of the plaintiff, within the meaning of the statute. The highway is only an easement and each owner holds the fee of the land to the center of the highway with the right to use it for all purposes not incompatible with its use as a highway. (Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603; McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870.) Besides, the ordinary meaning of the term “adjacent” as used in the act is lying close or near to, but not necessarily adjoining. As used it is not to be treated as the equivalent of adjoining or as applicable only to contiguous lands. (Board of Education v. Jacobus, 83 Kan. 778, 112 Pac. 612; City of Hutch inson v. Danley, 88 Kan. 437, 129 Pac. 163.) The lands involved were used for agricultural purposes, and the plaintiff being directly injuriously affected by the obstruction was entitled to bring the action and to ask that the maintenance of the obstruction be enjoined.
It is also contended that the decree for the removal of the obstructing embankment was a destruction of defendant’s property and operated to deprive him of vested rights without compensation or due process of law. Until a recent time the common-law rule had obtained under which surface water was treated as a common enemy which the lower proprietor might fight against in any way he chose and could obstruct or divert the flow of the water without liability on account of such obstruction or diversion. The legislature saw fit to change the rule and to provide that as to lands devoted to agricultural purposes the lower owner could not construct or maintain a dam or levee which would obstruct the flow of surface water to the damage of an upper owner. (Laws 1911, ch. 175, Gen. Stat. 1915, §§ 4050-4051; Laws 1917, ch. 176.) It was competent for the legislature to adopt the rule of the civil law and provide for the disposition of surface water so that its obstruction or accumulation should not operate to the injury of an adjacent owner. It is a general principle of the law that one must so use his own as not unnecessarily to injure others, and the statute in question was intended to give effect to this principle. (Minor v. Wright, 16 La. Ann. 151.) The obstruction of the natural drainage by the defendant, as disclosed b^ the evidence, not only caused injury to the plaintiff but it created a nuisance per se, one which the courts may properly enjoin.
There is a contention that as an embankment had been built prior to the enactment of the statute, the defendant had a vested right in it of which he could not be divested. An embankment appears to have been thrown up about twenty years ago by a prior owner and had been washed out and repaired a number of times, but for a number of years had not been repaired or kept in condition. In 1920 and just prior to the commencement of this action, the dike was rebuilt by the defendant. His action was a violation of the statutory rule which prohibits the maintenance as well as the building of such an embankment and which has heretofore been considered and enforced. (Thompson v. McDougal, 103 Kan. 373, 175 Pac. 157; The State v. Wright, 103 Kan. 584, 175 Pac. 381.) The provision against the maintenance of such dam was well within the legislative power and the decree enj oining the maintenance was not an invasion of the constitutional rights of the defendant.
On the motion for a new trial evidence of an expert was offered with a view of showing the levels of the lands of the parties, and that of some others in the vicinity, and also as to methods of draining the district. No reason is given why the evidence was not procured and produced at the trial or that due diligence had been used to procure it for the trial. It cannot be held that the court abused its discretion in refusing the evidence or in denying a motion for a new trial.
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The opinion of the court was delivered by
Mason, J.:
The probate court made an order for the division of the personal estate of a testator in a somewhat different proportion from that indicated in the will, the matter being. affected by sums given to beneficiaries after its execution. A few weeks later the court ordered the executor to distribute the amount then in his hands on final settlement in accordance with the prior order. The executor took an appeal from the second order to the district court, where the same result was reached, from which he again appeals.
The executor undertakes to excuse his failure to appeal from the first order on the ground that he did not have notice or knowledge of it in time to do so, and urges that for that reason it was void. If the contention otherwise had merit it would be enough to say that the journal of the probate court recites that he.was present and took part in the hearing upon which it was made. None of the persons really concerned in the matter — the heirs, devisees and legatees — are making any objection. The executor asserts that he has not money enough on hand to make the payments in the manner provided in the will. He testified that he always considered that the real estate would need to be sold or some means provided to get money enough for that purpose. The basis of distribution ordered by the court and acquiesced in by the parties in interest was binding on him. He complains 'of the costs in the district court having been adjudged against him personally. The appeal from the order of the probate court does not appear to have been for the benefit of the estate and we see no reason why it should bear the expense.
The judgment is affirmed and the mandate will be issued at once. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover a real-estate agent’s commission. A demurrer was sustained to the plaintiff’s evidence, and he appeals.
The plaintiff pleaded he was employed to sell the defendants’ land, and did sell it at the agreed price, whefeby he earned the stipulated commission. The proof was the plaintiff found a person whom he believed would buy, and solicited the defendants to sell. The defendants responded by telegram, which specified the conditions upon which the plaintiff might act. He was to contract a sale on definitely stated terms, and was to procure a deposit of 25 per cent of the price with the contract. The prospective purchaser read the telegram, said to the plaintiff he would deal on the basis of the telegram, and gave the plaintiff a check for a small portion of the price, to bind the deal until papers could be drawn. No contract of sale was concluded, no cash deposit of 25 per cent of the price was made, and the negotiations did not result in a sale. The plaintiff gave what he regarded as reasons why he did not or could not comply with the conditions of the telegram, and now insists, contrary to his pleading, that he should recover as if his employment were simply to find a purchaser ready, able, and willing to buy. The plaintiff had no employment or authority except that contained in the telegram, and he failed to establish the cause of action stated in his petition.
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin the issuance of bonds to pay for street improvements in the city of Nickerson, a city of the second class. The relief prayed for was denied, and the plaintiffs appeal.
The Christian church and the Baptist church are religious corporations owning property fronting on the street to be improved. The G. A. R. Hall Association and the I. O. O. F. lodge are corporations organized for benevolent purposes, and own property fronting on the street to be improved. The secular affairs of the religious corporations are controlled by a board of trustees, in whom title to all property of the corporation vests. The corporations as such have the general privileges of corporations to the extent necessary for transaction of ordinary affairs, and to the extent necessary to accomplish their corporate purposes. The benevolent corporations have similar privileges. Title to their property vests in the corporations, whose affairs are managed by boards of directors or trustees. The question is whether these corporations are resident property owners, within the meaning of the statute relating to street improvements in cities of the second class, the cost of which is chargeable to abutting property. (Gen. Stat. 1915, § 1764.) In strictness, residence is an attribute of natural persons, but a corporation is treated as a person and as a resident of a locality for many legal purposes, and the question is one of statutory interpretation.
This court has held that public corporations, in one case a county and in another a board of education, are not residents of taxing districts, within the meaning of the statute. (Osborne County v. City of Osborne, 104 Kan. 671, 180 Pac. 233; Dunsworth v. City of Hutchinson, 109 Kan. 538, 199 Pac. 89.) In the case of Kimmerle v. City of Topeka, 88 Kan. 370, 128 Pac. 367, it was held the Rock Island Railway Company was not a resident of the city of Topeka, and the corporation, being a unit, had no residence outside the city of Chicago, within the meaning of the statute. In the Osborne county case, three justices dissented, holding the locality of the corporate organization was at the county seat, and because the board of county commissioners had statutory authority to manage the business interests of the county, none of which is more important than protection of property from imposition of financial burdens, the corporation should be considered a resident of the county seat. In the Dunsworth case it was said:
“In committing the question whether or not a street should be paved to the resident owners of abutting property, and allowing no voice in the matter to nonresidents whose property would be affected in the same way "and be equally subject to assessment to pay for the cost, the legislature clearly intended a distinction based upon the different attitude toward the matter of one who in addition to his interest in the increased value of his holding would presumably be actuated by what may be described as personal considerations growing out of the fact of his residence. It is difficult to conceive these considerations as applicable to a corporation at all, and especially to a public corporation — a body existing for purely governmental purposes.” (Dunsworth v. City of Hutchinson, 109 Kan. 538, 539, 199 Pac. 89.)
It is not difficult to administer statutory precisions which do treat corporations as having local habitations. Perhaps the legislature made the distinction between residents and nonresidents in this statute, not on account of the intangible nature of corporations, but to avoid inconvenience and delay in initiating and consummating street-improvement enterprises. The court could not be charged with employing an inappropriate metaphor if it were to speak of the properties in question as church and lodge homes, to which members resort as the vital centers and seats of fellowship for purposes bearing a distinct relation to the civic life of .the community, and from which the spiritual and benevolent activities of the societies radiate. The interest of the corporations in inviting or opposing special assessments for improvement of the abutting street, and the power of their trustees to act in respect to such subjects, is unquestioned, and the court holds the corporations are resident property owners, within the meaning of the statute.
Counting these corporations as resident property owners, the petition which was the foundation of the improvement proceeding was not signed by a majority of those whose signatures were necessary to authorize the mayor and council to make the improvement.
The judgment of the district court is reversed, and the cause is remanded with direction to grant the injunction. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, in two counts, sued upon a written guaranty of John Todd, deceased, on two promissory notes executed by the Caney Glass Company, a corporation, one for $7,000 and the other for $5,000. One note was guaranteed by S.'M. Porter, John Todd, H. Bradley, and John Ziegenfuss, and the other one was guaranteed by S. M. Porter, John Todd, J. E. Stone, H. Bradley, and John Ziegenfuss. The plaintiff appéals from an order striking out certain allegations of his petition.
The first count of the petition declared on the- $7,000 note, and the second count on the $5,000 note. -The parts struck out of the first count were as follows:
“5. That at the time of the execution and delivery of each of said notes, it was the verbal understanding between plaintiff, said Glass Company, and the said endorsers and guarantors, Porter, Todd, Bradley, and Ziegenfuss, that said funds, the proceeds of said note, should be used by the said corporation for a considerable and indefinite period, and until repayment thereof should be actually demanded by plaintiff.
“6. Plaintiff further states that The Caney Glass Company, a corporation, for whose benefit said note was given in addition to the indebtedness mentioned in this petition, owed a large amount of other debts, partly in open account and partly evidenced by outstanding notes of the company; that on or about the 15th day of September, 1914, the plant belonging to said company at Caney, Kansas, was sold and the proceeds from said sale applied upon the payment of said indebtedness. That after said proceeds had been so applied, there yet remained a- large indebtedness against said company in addition to that evidenced by the notes referred to in this petition. That on or about the time of said sale and after it had been determined what the total obligations of said company were, Todd, Porter and Stone entered into a verbal agreement concerning the payment of said indebtedness and also concerning the payment of the indebtedness evidenced in the notes referred to in this petition; that it was mutually agreed at said time by the said John Todd, S. M. Porter and J. E. Stone that the balance of said outstanding indebtedness of the Caney Glass Company above referred to should be taken up and paid as the same should become due and payable and that the said Todd, Porter and Stone would each pay a one-third (%) of said remaining outstanding indebtedness. It was also agreed between said parties that the note in favor of J. E. Stone above referred to as exhibit “B” should not be paid until all of said other outstanding indebtedness had been paid; that said note should continue to draw interest at the fate mentioned in said note, but that the said J. E. Stone would not demand payment of said note and that said note should not be paid or any part thereof or the interest thereon until all of said other outstanding indebtedness had been paid according to the agreement above referred to. And it was also mutually agreed between said parties that after the other outstanding indebtedness had been taken up and paid, as above set out, that the note of J. E. Stone above referred to would be taken up and paid in full by the said S. M. Porter and John Todd.
“7. Plaintiff further states that the parties to said agreement, to wit: S. M. Porter, John Todd, and J. E. Stone, proceeded to, and did carry out said agreement, in this, to wit, that the said J. E. Stone proceeded to and did pay off upon the other outstanding indebtedness of said company after the time of said agreement about Five Thousand Two Hundred Forty and Forty-one Hundredths ($5,240.41) Dollars, and the said S. M. Porter paid thereon about Five Thousand ($5,000.00) Dollars and the said John Todd paid thereon about Four Thousand ($*4,000.00) Dollars, and that all of said indebtedness was cleaned up and the last payment made thereon on or about the 27th day of July, 1918; that in accordance with said agreement the said J. E. Stone did not demand'payment of said note, and no part or portion of said note was paid and no payment made thereon.
“8. Plaintiff further states that by reason of the facts above stated there was an understanding between the said J. E. Stone, S. M. Porter and John Todd, and there was an assurance given by the said John Todd to the said J. E. Stone that demand should not be made for the payment of said indebtedness, or suit brought thereon until such a time as the mutual accounts of said parties, above referred to, should be settled, and that the said J. E. Stone relied upon such assurance and understanding and'did not bring an action on said note, or present the same for payment until the time and times stated herein, and until the filing of this claim in the Probate Court, and that but for this agreement and understanding, above referred to, a demand would have been’ made for the payment of said indebtedness, and if said indebtedness had not been paid, suit would have been brought thereon immediately; that by reason of said facts, above stated, the said S. H. Barr, administrator of the estate of John Todd, deceased, is estopped, from setting up the statute of limitations as a defense in this action, and is estopped from setting up as a defense in this action to the payment of this indebtedness, that said agreement was verbal and was not in writing.”
The parts struck out of the second count of the petition were paragraphs three and four, part of paragraph five, and all of paragraph six. Paragraph three of the second count was as follows:
“That it was verbally understood by and between plaintiff and the other indorsers upon said note, to wit, said Porter, Todd, Bradley and Ziegenfuss that plaintiff would be repaid by said indorsers the amount of money which he had advanced in the payment of said note, and interest thereon, and that at numerous times, the exact dates of which plaintiff cannot give, said verbal understanding between said parties as to said indebtedness was affirmed, and the verbal promise of said indorsers to repay the same, verbally renewed, but plaintiff cannot give the words spoken nor the exact dates when spoken, but it was verbally agreed between said parties that the said money so advanced by the said plaintiff would not be repaid for a considerable and indefinite period.”
Paragraph four of the second count was substantially the same as paragraph six of the first count, and paragraph six of the second count was substantially the same as paragraph eight of the first count. From paragraph five of the second count were struck all allegations relating to the verbal agreement between J. E. Stone, John Todd and S. M. Porter. They were stockholders in the Caney Glass Company.
These allegations were made for the purpose of showing that the statute of limitations had not run on the plaintiff’s causes of action against John Todd. The question presented to this court is: Were these allegations properly struck out of the petition?
The purpose for which they were pleaded is immaterial. They were properly struck out if evidence could not be introduced to prove them. The defendant urges that the verbal agreements made at and previous to the time of signing the guaranties on the notes were properly struck out for- the reason that they altered, added to, modified, and contradicted the terms of the notes and the written guaranties thereon, and that the agreements made subsequently to the execution of the notes and the signing of the guaranties were unenforceable under the statute of frauds because they constituted agreements to pay the debts of another and were not in writing. A further objection urged against those later agreements is that they cannot be proved because they were not in writing as required by section 23 of the code of civil procedure.
The contention of the plaintiff is that each of the oral contracts was independent of the contracts contained in the notes and the guaranties thereon; that they were made upon sufficient consideration; and that therefore they can be proved. Whether or not the contracts made at the time the notes were executed and the guaranties signed were made upon sufficient consideration is wholly immaterial because the effect of these contracts is to change the terms of the contract set out in the notes and in the guaranties thereon. Those contracts cannot be proved under the well-established rule of law that the terms of written contracts cannot be altered, added to, changed, or varied by a parol agreement made at or prior to the time of the execution of the written contracts. (Bank v. Staab, 102 Kan. 369, 171 Pac. 3.)
The notes were the notes of the Caney Glass Company and evidenced debts of that company, but the guaranties signed by John Todd and the others with him were their obligations. Concerning these obligations the guarantors, with the holder of the notes, could make a subsequent binding oral agreement concerning the payment of the obligations evidenced by the written guaranties and not violate any provision of the statute of frauds, with this possible exception, that if the subsequent oral agreement were not to be performed within one year from its making, the agreement would be in violation of section six of the statute of frauds, section 4889 of the General Statutes of 1915. But, such an agreement would not stop the running of the statute of limitations because of section 23 of the code of civil procedure, which reads:
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
This then is the situation: Two oral contracts are pleaded for the purpose of tolling the statute of limitations; one of the contracts cannot be proved in any event, and the other one does not affect that statute.
It is argued that because the notes were made payable “on demand after date,” a cause of action could not accrue until demand for their payment was made. This argument is contrary to the weight of authority, which holds that a note payable on demand is due immediately, and that an action can be brought on it at once without demand other than suit. (8 C. J. 406.) Ruling Case Law uses the following language:
“Where an obligation to pay is absolute and present, the only element not fixed with certainty being the time of payment, as that is at the option of the creditor, and the debtor must be prepared eo instante, the statute begins to run at once. So though it has been held that the statute of limitation on notes payable on demand does not commence running until the day after that on which such notes bear date, yet the rule seems to be well settled that the statute begins to run at once from the date of the instrument, as payment can be immediately demanded, and an actual demand is not necessary to complete the cause of action, the commencement of a suit being a sufficient demand. Within the operation of this general rule are held to be notes payable ‘when called for,’ or ‘on demand after date,’ it being declared that the latter expression is analogous to the words ‘with interest after date’ and indicate no intention that the note is not payable immediately.” (17 B,. C. L. 769. See, also, 14 Ann. Cas. 808.)
The statute of limitations commenced, to run on these notes not later than the day after their date. At that time, an action could have been commenced to enforce their payment.
The allegations struck from the petition could not avoid the effect of the statute of limitations. The court did not commit error in striking those allegations out.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
On March 4, 1920-, the plaintiff sued the railway company, alleging that on March 5, 1918, he shipped over the railroad of the defendant two carloads of fat cattle from Belpre to Kansas City, Mo.; that twenty hours would have been a reasonable time, but that the defendant took thirty-nine in which to deliver them, thereby causing great shrinkage and loss of a day’s market and damage to the plaintiff in the sum of $683.39. April 1, 1920, the railway company filed a demurrer and July 20, 1920, the plaintiff filed an amended petition making the director-general a party and causing summons to be issued, and he was regularly served. To this amended petition the railway demurred and the demurrer was sustained. The director-general answered first by a general denial except as to matters specially admitted, and alleged, among other things, that the stock was shipped under a written contract con- taming a clause that the carrier should not be liable for any loss not caused by the negligence of the carrier. A copy of this contract was set out, and it contained a paragraph which provided that suit for damages should be instituted only within two years after the delivery of the property. To this a reply was filed consisting of a general denial and special denial of certain allegations.
December 10, 1920, the cause came on for trial. The director-general objected to the introduction of any evidence against him, which objection was overruled, and the trial resulted in a verdict for $668.50. The director-general filed a motion for a new trial and also a motion for judgment notwithstanding the verdict because he was not made a party for more than two years and four months after the- cause of action arose and because the petition' did not state a cause of action against him; these motions were overruled, and he appeals.
In his brief the appellant states: “The only question which the appellant presents to the court is whether the limitation prescribed in the contract should have been enforced by the court.” It is insisted tjiat the defensé arose out of the contract of shipment and not out of the statute of limitations; that the contract was one approved by the interstate commerce commission and is competent; that no cause of action was stated against the railroad company, and that when the defendant was called into court the contractual limitation had run.
The plaintiff presses the point that the suit was brought on the common-law liability and not on the written contract, and that the statute of limitation was nowhere pleaded and was not an issue at the trial and not thought of until the defendant objected to testimony under the amended petition, and counsel urge the rule that the statute of limitation cannot be invoked except as an affirmative defense, and argue that the action being brought on an implied contract, the three-year and not the two-year statute applies.
In the reply brief the defendant practically concedes that the statute is to be deemed waived unless pleaded, but urges that this is not a statutory limitation but a contractual one, and therefore need not be specially pleaded.
In Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, it was held that when a shipping contract contains a condition precedent to recovery, the shipper cannot recover without showing a compliance with such condition, and that this rule applies not only in a case in which it is made to appear during the trial that recovery is sought upon a shipping contract containing such condition, but also to a case in which such condition is set out as defensive matter by the carrier. There the suit was not ostensibly based upon the contract of shipment, but upon cross-examination of the plaintiff it was shown that the contract was in writing and contained a clause similar to the one now before us. The court said the clause was not one exempting the carrier from- common-law liability but one imposing a duty upon the shipper, and hence, he must show compliance therewith. “That in this case the shippers did not, in their bill of particulars, count upon this contract, or that the carrier did not plead it in defense, can make no difference.” (p. 175.)
The contract involved in Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629, contained a clause that no action should be maintained unless begun within six months after the injury. The shipment was, as here, interstate, and the clause was upheld. A similar provision was upheld in Miller v. Railway Co., 97 Kan. 782, 156 Pac. 780.
In Easdale v. Railway Co., 100 Kan. 305, 164 Pac. 164, a provision in an interstate contract limiting the shipper to six months time in which to begin an action was held to be one which the shipper could not waive, the theory - being that otherwise arrangements amounting to a preference might be upheld.
The actual facts were before the court regardless of the form of pleading and those facts show that the shipment was under a written contract containing a two-year clause which was not complied with by the shipper, hence in view of the decisions, both state and federal, the plaintiff cannot recover.
The judgment is therefore reversed and the cause remanded with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Porter, J.:
Cora Baker was a passenger in an automobile owned and driven by her brother on the public road from Augusta to Douglass. She received serious injuries as a result of a collision between the automobile and a truck used in the business of the defendant. She brought suit alleging that the truck belonged to the defendant; that the driver, Fred Howard, was in defendant’s employ, and that the collision occurred by reason of the negligent operation of the truck and the negligence of the company in using a truck with a defective brake. The answer was a general denial; also a verified denial that the driver was in the employ of the defendant, and alleged that the truck was owned and operated by an independent contractor. As a further defense it was alleged that certain negligence of the driver' of the automobile was imputed to the plaintiff. Issues were joined and there was a trial with a verdict in plaintiff’s favor for $3,860.42. The court reduced the verdict to $2,600, to which plaintiff consented. Judgment was rendered, and ■ the defendant appeals.
The plaintiff’s evidence was sufficient to sustain a finding that she was riding as a guest of her brother who owned the automobile, and that the collision occurred through the negligent manner in which the truck was driven and because the brakes were out of repair; that the brakes had been in that condition for a considerable length of time. There was evidence also to show 'the nature and character of her injuries and to support a finding that she was not guilty of contributory negligence.
The first assignment of error relates to the admission of testimony. Haney, a witness for plaintiff, testified that he was on the truck; the accident occurred about four miles north of Augusta. He was then asked:
“Q. Are you acquainted with Mr. Crowley, the boss? A. I worked for him for a while.
“Q. State whether or not he was the boss in charge of this car?”
The question was objected to as assuming a fact not proven and calling for a conclusion and opinion of the witness, and misleading. The objection was overruled.
“A. He was in charge of the gang, but Porter Parrish was over him. He was in charge of the gang for the day. Parrish was no't there.”
Regardless of the form of the question it may be said that the answer to the effect that Crowley was in charge of the gang could not have prejudiced the defendant. The same objections were made to the following question: “State whether or not he directed the operations of the truck?” The answer was: “He told the truck what to do that was on the works.”
It is insisted that the question was objectionable because the witness was not asked to state what Crowley did, but to state whether Crowley was in charge of the truck, which was one of the particular questions which the jury would be called upon to determine from the facts; not from the opinion of the witness. We think it was proper to show that Crowley was in charge of the gang riding on the truck and directed generally the operations of the truck. Upon cross-examination this witness testified that there were about thirty-five men on the truck; it had a trailer on it. Fred Howard was driving the truck; Wheeler owned it. “I did not say that the Magnolia owned the truck. The Magnolia had the truck hired. I don’t know who Howard was working for.”
Another witness testified that a few days before the accident they were on a grade out of town two or three miles from Augusta, “and this truck driver, his engine went dead, and as soon as it went dead, he said to put rocks under the wheels to stop it running down hill, and another occasion I saw him put it across the road to keep it from running down hill.” There was testimony showing that the truck was used for “company work,” hauling men and tools and stuff on the pipe line.
It is true the petition alleged that the truck belonged to the defendant and was driven by one of its employees, but the evidence shows that the truck was used in the company’s business, the work of which was under the control and direction of a foreman' of the company. For these reasons we think there was no error in overruling the demurrer to the evidence.
The evidence introduced by the defendant showed that the truck belonged to C. C. Wheeler, who was engaged in the truck business and doing contract work. The company agreed to pay him $20 a day for the truck and driver, and Wheeler was to furnish the gasoline. The contract was oral, and nothing more was said except that the company wanted the truck to go to its leases wherever the work was being done. The driver was to report to the bunk house and get the men in the morning, a mile west of Augusta. Sometimes Wheeler himself drove the truck; sometimes one driver, and sometimes another. The driver stayed at the place where the pipe line was being laid, and was sent for drinking water and to keep the tools gathered up. The tools were along the pipe line. Sometimes he was sent back to Augusta for something.
Porter Parrish, a witness for the defendant, testified that every morning when the weather was fit to work, the truck appeared in charge of some driver; the truck would leave the bunk house about seven o’clock in the morning. It would take from one to two hours to get out to the lease; the men started back generally about four-thirty ; the truck driver stayed out on the lease. All he did after he got there was to get drinking water and keep the tools gathered up.. “I think a few times Jie went back to Augusta for something.” Another witness for the defendant testified that his duties at the lease were to “pick up the tools and take them where the gang was; the tools left along the line. ... I loaded them on the truck; after they were loaded, the driver drove the truck; . . . when we wanted •water for the men I took the truck and went after it; I didn’t drive it.”
Crowley, who was boss of the gang on the morning of the accident, testified that Howard was not working for the defendant company; he was working for Wheeler. “I gave him no directions of any kind as to the way to pursue or the method to drive the car; the road was out there and he knows the way out and I didn’t have nothing to do with it. I had no directions over him, no more than to ask him to do something; he knew about the work he had to do. Whatever arrangements was made when'he was hired. All I could ask him to do was to go and get a barrel of water or something like that. ... It was Wheeler’s truck; Wheeler done the hiring and if he broke down, Wheeler went and got another truck without any bother at all.”
Fred Howard, who was driving the truck, was asked this question:
“Mr. Howard, you may state to the jury in driving this truck, who directed the operations of the truck and told you where to go and what to do and when?”
An objection was overruled.
“A. Well, the boss that had charge of the gang I had taken out; either George Crowley or Porter Parrish.”
Among the instructions given by the court was No. 4, which charged in substance that before plaintiff could recover she must establish by a preponderance of the evidence that her injuries were sustained as a result of the negligent or careless acts of the defendants or of some of its agents or employees, “and you must find in this case . . . that the driver of the' truck . . . sustained the relationship of an employee to the defendant before you can find the defendant liable in damages to the plaintiff.”
Instruction No. 5 reads:
“You are instructed that where a person hires or rents an automobile, or an automobile truck with a driver in charge for the purpose of transportation or conveyance and in consideration of the payment of a certain sum per day or per week for the time for which said automobile or automobile truck with the driver in charge is rented or hired, such person has a right to direct said driver as regards where to go, what route to take, when to start, when to return, and in so doing does not become charged in any responsibility or liability for the acts or negligence of the driver in charge of said car.” >
Instruction No. 6 reads:
“You are instructed that where a person hires or rents from another an automobile and driver thereof for the purpose of conveyance or transportation and gives directions to the driver, as to the place or places where he desires to be conveyed or transported and as to the time or times when such transportation or conveyance shall be done, but gives no special directions as to the mode or manner of driving, he is not responsible for the acts or negligence of the driver; and you are further instructed that under no circumstances can such person be responsible for the acts or negligence of the driver unless he interferes with, and controls by his own commands and requirements, the manner and method and mode of handling such automobile.”
Instruction No. 7 reads:
“If you believe from the evidence in this case that the defendant entered into an agreement with one C. C. Wheeler by the terms of which the said C. C. Wheeler, in consideration of a certain sum per day, to be paid to said Wheeler by the said defendant, was to furnish an automobile truck and driver to the defendant for the purpose of transporting defendant’s men and material from the City of Augusta, Kansas, to its leases and from its leases to the City of Augusta, Kansas, and that in pursuance of said agreement said C. C. Wheeler did furnish an automobile truck and driver, and that while said driver of said truck was engaged in said work of transporting the said defendant’s men or materials from Augusta to the leases of defendant, an injury was occasioned to the plaintiff as the result of a collision with said truck, then in that event plaintiff would not be entitled to recover as against the'defendant, and your verdict should be for the defendant.”
The defendant makes no complaint of the foregoing instructions which indeed are most favorable to the defendant; but does complain of instruction No. 8, which reads as follows:
“You are instructed that if you should find from the evidence that the defendant employed or hired a truck with driver from one C. C. Wheeler, and that under the terms of said hiring the defendant was to have general charge and control of the truck and driver and to direct generally the character and kind of work to be done, the time and manner of its doing, and to have full and complete control of the operation of the work that it should direct to be done by the truck and driver, then the defendant would be liable for any damages sustained as a result of the negligent acts of the driver, of said automobile when using it in the service of said company.”
It is insisted that the evidence furnished no basis sufficient to warrant the jury in drawing an inference that the facts stated in the instruction existed. On the contrary, we think the evidence justified an inference on the part of'the jury that, notwithstanding the defendant employed a truck hired from Wheeler, the defendant was to have general charge of the truck and driver; was authorized to direct generally the character and kind of work to be done, and had full and complete control of the operations of the work it might direct to be done by the truck and driver. There was evidence sufficient to justify a finding that the driver took his general orders from the boss or foreman of the gang of workmen; that is to say, that the foreman had general charge and control as to when and where the truck should go, and complete control of the work the defendant directed to be done. This instruction it will be noticed places emphasis on the fact, if proven, that the defendant controlled all the time the operations of the work performed by the truck and driver. It is well settled that the servant of A may for a particular purpose, or on a particular occasion, be the servant of B, though he continues to be the general servant of A and is paid by him for his work. 1 Labatt’s Master and Servant, 2d ed., §§ 52-57, cites the language of Mr. Chief Justice Cockburn in Rourke v. White Moss Colliery Co., L. R. 2 C. P. Div. 205:
“When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.” (p. 209.)
In the opinion in Standard Oil Co. v. Anderson, 212 U. S. 215, 220, it was said:
“One who employs a servant to do his work is answerable to strangers for the negligent acts or omissions of the servant committed in the course of the service. The plaintiff rests his right to recover upon this rule of law which, though of comparatively modern origin, has come to be elementary. But, however clear the rule may be, its application to .the infinitely varied affairs of life is not always easy, because the facts which place a given case within or without the rule cannot always be ascertained with precision. The servant himself is, of course, liable for the consequences of his own carelessness. But when, as is so frequently the case, an attempt is made to impose upon the master the liability for those consequences it sometimes becomes necessary to inquire who was the master at the very time of the negligent act or omission. One may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with' his own consent or acquiesence, to the service of a third person, so that he becomes the servant of that person with all the legal consequences of the- new relation.”
In Philadelphia & R. Coal & Iron Co. v. Barrie, 179 Fed. 50, 102 C. C. A. 618, it was held:
“Where defendant, a coal dealer, in delivering coal from its yards to customers, hired from another dealer a team and a driver in the latter’s general employ, paying a stipulated sum per hour for their services, and having full control and direction of the work and the method of its performance, the driver, while engaged in such work, was a servant of defendant, which was liable for an injury to a third person caused by the driver’s negligence in its performance.” (p. 51.)
(See, also, Scribner's Case, 231 Mass. 132; 20 N. C. C. A. 302, 304.)
It cannot be said as a matter of law that the negligence in this case was that of an independent contractor; that and the other questions submitted were for the jury to determine from a consideration of all the circumstances under which the truck was hired and used. If different inferences concerning the contract and use of the truck may be drawn from the testimony, the finding of the jury is controlling.
“In the case of an oral contract, if there is no material dispute in the testimony, whether the employee is an independent contractor may present a question for the court; but where the evidence is conflicting, or where different inferences may well be drawn from the testimony concerning the oral contract, the matter is one for the jury to determine.” (14 R. C. L. 79.)
The mere fact that the foreman of defendant neglected to exercise control over the manner and method in which the truck was driven along the highway, or that he neglected to see that the truck was equipped with brakes sufficient to control it, does not determine the question of whether the owner of the truck was an independent contractor; nor would that fact prevent the defendant from being liable for an injury to the plaintiff caused by the negligent manner in which the truck was equipped and controlled. Previous to the accident the company, through its foreman, knew that the truck was not properly equipped with brakes and for that reason, could not always be controlled. The duty the company owed to other travelers on the highway required it to insist that a truck employed in its business should be properly equipped with brakes and handled by a reasonably careful driver. There was no error in refusing to grant the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the couk was delivered by
Johnston, C. J.:
Tnis is an appeal in a compensation case in which verdict and judgment went in favor of the plaintiff.
Defendant complains of the amount awarded, insisting that the verdict and findings lave not sufficient support in the evidence. Plaintiff was a pumper at défendant’s oil plant and because of an alleged defect in the machinery his arm was caught therein and his body was carried around striking the ground at each revolution with the result that Ills arm was broken in six places, a number of ribs were broken and his body badly bruised. A fragment of the broken bones punctured his left lung, his throat and vocal chords' were injured and theknee and ankle of his right leg were so injured that they have been permanently weakened and stiffened. Plaintiff brought his action in two counts, one for common-law damages, and the other under the workmen’s compensation law. He demanded arbitration of the claim for compensation, but the demand was refused by the defendant. It is conceded that plaintiff and de fendant were both within the operation of the compensation law and that the claim is one that may be adjusted under that law. While the plaintiff set up a claim for damages the case was tried out on the theory of compensation and the rulings relating to the common-law feature are no longer material. The jury returned a verdict fixing the total compensation of the plaintiff at $7,433.63, and by answers to special questions indicated the amounts awarded for the several disabilities which resulted from the injuries sustained. The sum of $2,520 was allowed for the loss of his arm; $180 for total temporary disability; $150 for hospital treatment, including nursing; and for partial permanent disability other than the loss of his arm, $4,576 was awarded.
The judgment of the court was that the plaintiff recover in a lump sum $3,238.96 for the loss of his arm, total temporary disability, hospital and medical attention, unpaid installments past due for partial permanent disability, and $7.63 as interest. It was further adjudged that he recover $4,194.67 for partial permanent disability, other than that mentioned, payable in periodical installments at the rate of $47.66% per month, on the first day of each month until final payment was made.
The defendant contends that an excessive award of compensation was made. It is conceded that the allowance made for the loss of plaintiff’s arm, hospital and medical service was just and legal and there is little dispute or occasion for dispute as to the award of $180 for temporary total disability. The principal contention is that the allowance of $4,576 for partial permanent disability other than the loss of the arm was not supported by sufficient evidence and that, as this award exceeded what could have been allowed for total disability, it is unwarranted under the law fixing compensation for injured workmen. It is said that the theory of the compensation law is to allow a lower rate for partial than for total disability, and that contrary to the evident purpose of the legislature, the trial court allowed greater compensation than if the plaintiff had been totally disabled by his injuries. This feature of the law and what is called the illogical result of this interpretation, were challenged by counsel and considered by the court in two recent cases. (Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861; Emry v. Cripes, 110 Kan. 693, 205 Pac. 598.) Every contention advanced in this case was brought to the attention of the court and given careful consideration in those cases, and no reason is seen for plac ing a different construction on the statutory rules of computing compensation from that expressed in the cited cases. It was competent for the legislature to make classifications of disabilities and prescribe the rules to be applied in measuring the compensation for each class. The legislature prescribed a measure for certain scheduled disabilities, and a different rule for partial disabilities not scheduled. The fact that the application of these rules may seem to some to operate unjustly, requires a close scrutiny of the act to ascertain' the legislative intent, but affords no ground for the court to substitute rules different from those enacted by the legislature. If the practical operation of the law is found to bring disproportionate or unjust results, it may be assumed that the legislature will amend it, but this is a function which belongs alone to that body. As the act is written the court is constrained to follow the construction placed upon the rules for computing compensation in Stefan v. Elevator Co., supra, and Emry v. Cripes, supra. (See, also, Close v. Mining Co., 105 Kan. 257, 182 Pac. 392.)
In a cross appeal by the plaintiff, he complains of the refusal of the court to enter judgment in a lump sum on the verdict returned. The compensation act provides its own rules as to the compensation to be awarded and the nature of the judgment awarding it. Where an action to recover compensation is permissible, a jury is deemed to be waived, but one may be called if either party asks for it within ten days after the issues are joined. The findings of the jury when made are advisory so far as the character of the judgment is concerned. That is a matter within the discretion of the court. It is provided thai&wkey;
“TJhe judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for, periodical payments, as in an award,” etc. (Laws 1917, ch. 226, § 20.)
In the same section an exception is made to the effect that a lump-sum judgment shall not be rendered for an injury not ascertainable by an objective examination. Under the act the trial court was warranted in adjudging that payments for the partial permanent disability should be made periodically as in an award. (Raffaghelle v. Russell, 103 Kan. 849, 176 Pac. 640.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to compel the reconveyance of certain real estate, the cancellation and surrender of promissory notes, and of a mortgage given as security for the notes, and to cancel an agreement, all executed by the plaintiff through the alleged fraud and duress of the defendants. Plaintiff also asked that defendants be enjoined from transferring the property pending the action, and that, in case the relief asked could not be granted, he recover the actual damages sustained through the fraud and duress of the defendants. Judgment was given for plaintiff, and defendants appeal.
Upon the evidence about which there is practically no dispute the court made elaborate findings of fact. A summary of the special findings and undisputed evidence is that John W. Graves is a farmer about seventy-three years of age, who had reared a family of seven children, five of whom are still living, and one of whom is his daughter, Laura A. Reid, who is married to Frank M. Reid. Plaintiff’s first wife and the mother of his children died in 1908. He resides on a farm near Clifton in Washington county, and had transacted all of his banking business with the Citizens State Bank of Clifton. .Harry O’Brien is the cashier of that bank, and plaintiff had great confidence in him and trusted him to look after not only his banking business but also to advise hiip in his personal affairs, tod he had also entrusted him with the drawing up of practically all of his legal papers. On February 27, just before going on a journey to Arkansas to be married, he had prepared a deed purporting to convey the legal title of 120 acres of land to his daughter, Laura, in which he reserved the life estate in himself, but he did not sign or acknowledge the instrument at that time. On March 2, 1918, he was married to Allie Johnson, in Arkansas, and returned with her to his home near Clifton on March 4, 1918. She lived with him only about seven weeks and then returned to her former home in Arkansas and since that time she and plaintiff have not lived together as husband and wife. Within a week after plaintiff returned from Arkansas with his wife, he took the deed formerly prepared conveying the land to his daughter and signed and acknowledged the instrument before O’Brien, who was a notary public, and O’Brien took charge of the instrument and filed it for record. While the acknowledgment was. dated March 2, 1918, it was not in. fact made on that day, but was made after the return of plaintiff from Arkansas, and sometime between the 4th and 11th of March, 1918. The plaintiff did not direct the antedating of the acknowledgment, but it was done by O’Brien without the knowledge of plaintiff. This juggling of dates was subsequently used to terrorize the plaintiff on the theory that the change of dates constituted a crime, and that plaintiff could only avoid imprisonment in the penitentiary by the execution of the instruments involved in this action. Plaintiff had a disagreement with Frank M. Reid as to some alfalfa and silage grown on one of his farms. It was shown and found that on February 7, 1919, Frank M. Reid was indebted to the Citizens State Bank in the sum of $3,130.05, and also before that time the bank commissioner had ordered the bank to reduce this indebtedness. At that time Reid was unable to pay the indebtedness and was practically insolvent. On February 7, 1919, O’Brien telephoned to Elmer Graves, a son of plaintiff, to bring his father to the bank to attend to a business matter, and in response to the call plaintiff and his son went to the bank, arriving there about 2 p. m. O’Brien invited them into a private room of the bank and then informed them that Frank M. Reid had called at the bank that morning and had said to O’Brien that he had learned of the wrongful dating of the acknowledgment on the deed, that the dating back was a penitentiary offense, and that he intended to institute a prosecution against plaintiff and O’Brien for the crime. He had further stated that he had already employed two of the best lawyers in the state to conduct the prosecution and had arranged with plaintiff’s wife in Arkansas that she would send a lawyer to cooperate with the Kansas lawyers in sending' O’Brien and the plaintiff to the penitentiary unless the plaintiff would settle on the terms proposed' by Reid. O’Brien professed to plaintiff to be greatly excited about the danger he and plaintiff were in on account of the purposes and threats of Reid and because of these threats and the apparent excitement of O’Brien plaintiff, too, became agitated and fearful that he might be sent to the penitentiary. By reason of the confidence he had in the honor and integrity of O’Brien he strongly relied on his advice and judgment and when he told the plaintiff that an offense had been committed, which made them liable to imprisonment he believed him, although plaintiff did not know until that time that the acknowledgment had been dated back nor did he know that such an act. was a violation of'law, and a penitentiary offense. During the interview an attendant knocked at the door of the room and upon .being admitted informed O’Brien that Reid was in the bank and wished to see him. O’Brien told the attendant to show Reid in. When Reid -entered he assumed an angry attitude, slammed his hat and coat on the floor of the room, advanced in front of plaintiff, shook his fists in his face and said in substance, that he was there for blood and a fight to the finish and if plaintiff did not settle with him on his terms he would send plaintiff and O’Brien to the penitentiary. He said that he had lawyers employed and they would be there in a few hours if plaintiff did not make the proposed settlement. Because of the statements and threats plaintiff was put in great fear -and was led to believe that he would be put in prison if he did not settle. Reid then left the room, whereupon O’Brien advised plaintiff that Reid be brought back and asked the’terms upon which a settlement could be made. O’Brien then left the room and soon returned saying he had found Reid in a long distance booth of the telephone office, talking to someone in Atchison, and while he could not hear the conversation, he thought that he "was talking with Atchison lawyers, and he then insisted that plaintiff had better settle with Reid. Soon Reid returned to the conference and O’Brien then asked him to state his terms of settlement. Reid replied that if plaintiff would. accept his terms there would be no prosecution and the terms stated were that plaintiff* should take up Reid’s indebtedness at the bank of $3,130.05, make a deed conveying to Laura A.. Reid the farm of 120 acres, deliver certain named quantities of alfalfa and silage, give him a lease for a year of a tract of alfalfa land on terms that were named, and plaintiff, laboring under fear and duress and under the advice of O’Brien, agreed to accept Reid’s terms. It was then too late to complete'the papers as the conference had lasted from 2 p. m. until dark and it was arranged that plaintiff should return the next morning to execute them. jWLen he returned a deed to the farm that had been prepared was signed and acknowledged before O’Brien, and was left-with him for delivery, two notes were executed by plaintiff to the bank, one for $1,630.05 and the other for $1,500, both payable one year after date with interest at the rate of 6 per cent payable semiannually. A mortgage upon a farm of plaintiff was given to secure the payment of the notes, but by reason of his excitement and duress, plaintiff did not know that he had signed the mortgage until September 12, 1919. Another paper was executed by him and the Reids, called “final settlement agreement,” which recited that plaintiff was desirous of making full and final settlement with Laura A. Reid as to any estate that he might leave, and it was stipulated that in consideration of $3,130.05 paid by plaintiff, the delivery of two tons of alfalfa and twelve loads of silage, and a lease on alfalfa land, Laura A. Reid released and relinquished forever all claims she might have in plaintiff's estate, and that Frank M. Reid would drop all differences he had with plaintiff. All these papers were acknowledged before O’Brien. At this time plaintiff did not owe either of the Reids anything and he did not receive any consideration from either of them for the obligations and instruments which he was. fraudulently induced to sign. It was found that all were signed when he was unable to exercise his free will, that he was in a state of terror by reason of the threats that had been made and by being led to believe that he could only escape imprisonment in the penitentiary by settling upon the terms proposed. After the bank got the notes and mortgage and on September 15, 1919, O’Brien indorsed and delivered them to the Union State Bank of Clay Center, which gave the Citizens State.Bank a credit upon its books for $3,130.05. The Citizens State Bank never checked against the credit thus given in the Union State Bank, and the latter has never paid anything out of that fund, but the amount still stands there to the credit of the Citizens State Bank. Before indorsing and delivering the notes to the Union State Bank, O’Brien made an indorsement of the payment of six months’ interest on the notes and this was done without any payment having been made and without the direction or knowledge of the plaintiff. He did not know that the interest payment had been made or the amount charged to his account until after the commencement of the action. The action was begun on September 24, 1919, and summons was served on that day on the Union State Bank and other defendants, notifying them of the fraud and duress charged and of the relief demanded. Some other findings were made by the court as to the rental value of the land transferred, the life expectancy of plaintiff, and the value of the life estate of plaintiff in the land conveyed to his daughter. Plaintiff did not consult with counsel as to his rights or as to whether the antedating of the acknowledgment constituted a public offense and during all of the intervening time he had labored under the belief that he and O’Brien had committed a public offense and was under fear and duress by reason of the statements and threats made to him by Reid and O’Brien. As the Reids were attempting to sell the land conveyed, an order of injunction was made restraining them from disposing of it. It was further found that the Union State Bank was not a holder in due course of the notes transferred to it, and that they are still in the possession of that bank.
The court concluded and adjudged that within ten days the Reids should reconvey the land in question to plaintiff, that the Union State Bank should surrender into court the notes together with the mortgage, with a release of the mortgage, that the final settlement agreement should be surrendered for cancellation, and that by reason of the fraud and duress the notes, mortgage and agreements should be cancelled. It was also adjudged that plaintiff recover from the Reids, O’Brien and the Citizens State Bank, a judgment for $1,600, the value of the use of the land since the deed was executed, and for the further sum of $93.90 for the interest payments which had been charged to plaintiff’s account in the bank.
One contention of the defendants is that the evidence does not warrant a recovery by the plaintiff. The recital of the facts, only the substance of which has been given, reveals a cunningly devised plan to' defraud the unsophisticated plaintiff by the Reids, the Citizens State Bank and its cashier, O’Brien. They were actuated by different motives, and were seeking to accomplish different results, but used the same culpable means of securing them. The Reids sought to obtain the payment of a debt of Prank M. Reid to the bank, and the full 'title, including a life estate, in a valuable tract of land, as well as some other advantages of less value. The Citizens State Bank and O’Brien connived to secure the payment of an indebtedness to the bank of Frank M. Reid, who was insolvent. The loan made to him by the bank was in excess of the prescribed limitation, and the bank commissioner had brought pressure upon it to reduce that indebtedness, and it undertook to do so by the unconscionable means already stated. These parties seized upon the circumstances of the antedating of the acknowledgment to frighten the plaintiff into the belief that he had committed a crime and could only escape imprisonment in the penitentiary by yielding to their demands for the conveyance of the land to Mrs. Reid, the payment of the obligations of Mr. Reid, and giving him other property and .benefits and also to relieve the bank from its embarrassment by compelling plaintiff to pay an obligation which it held against an insolvent debtor. It may be said that not many would have been so easily lured into the baited trap that was set for plaintiff, but it appears that he was ignorant of the law relating to the conveyance of real estate, the acknowledgment of instruments by an officer, and the penalty prescribed'for false certificates in the acknowledgment of instruments of conveyance. Besides, he had full confidence in the intelligence; fidelity and honesty of O’Brien, who had been his trusted adviser in business matters for years. When O’Brien advised him that the law had been violated and that both were subject to imprisonment for the false statement as to dates in the acknowledgment he naturally accepted his statements as true, and believed that he was giving him honest advice. The pretended excitement and distress of O’Brien because of the imminent peril that both might be sent to the penitentiary if plaintiff did not appease Reid and comply with his demands, were well calculated to intimidate plaintiff and deprive him of his free will and that state of mind essential to the making of a valid contract. The evidence abundantly establishes the threats of Reid, the cooperation of O’Brien, the bank and Reid in the fraudulent scheme, and it is worthy of remark that no one of these parties denied the statements made by the plaintiff in his testimony or offered any testimony in explanation or exculpation of the frauds and wrongs offered in evidence by the plaintiff.
There is a'contention by defendants that the untruthful statement in the acknowledgment was a public offense, that plaintiff was equally guilty with O’Brien, the bank and Reid in concealing the crime through the making of the illegal contracts, and that plaintiff’s hands not being clean he has no right to set aside the illegal contracts or to ask the aid of a court of justice in vacating or enforcing any of the illegal acts. The contention is not tenable. The parties are not as defendants contend, in pari delicto. The statute does provide that anyone taking an acknowledgment who wilfully certifies that a conveyance was proved when no proof was made, or certifies falsely as to any material matter contained in a certificate of acknowledgment shall upon conviction be adjudged guilty of forgery in the second degree. (Gen. Stat. 1915, § 3500.) O’Brien, who placed the false statement as to dates in the certificate, may be liable to prosecution and punishment under the statute, if the act was-done wilfully, but the plaintiff had no part in making the false statement and, according to the testimony and findings, had no knowledge that a wrong date had been placed in the certificate until the time that he was terrorized and coerced into the execution of the written instruments. He was not on equal footing with the defendants, as he had not in fact committed a crime. Neither can the rulé be invoked that he should be denied relief because of the compounding or concealment of crime. The agreements made were not for any profits to plaintiff, but were extorted from him by overcoming his will. That which was done by him was without his consent. The agreements, having been made without his consent, were nullities, and therefore it may be said that he^had done nothing. The rule invoked by defendants can have no application to the circumstances of the case, and under the facts proven it is clearly within the power and duty of a court of equity to declare the contracts void and grant the relief asked.
There is a further contention that actual duress was not shown because the plaintiff was in possession of his faculties, was accompanied by an adult son, and was free to leave the bank at any time while the pressure upon him was exerted. The threat that he would be arrested and imprisoned and the consequent disgrace was sufficient to put him in fear and lead him to act contrary to his will and inclination. A case of duress is made out where there is a fear of
prosecution or imprisonment, expited by threats. In Thompson v. Niggley, 53 Kan. 664, 35 Pac. 290, it was held:
“Written securities, extorted by means of threats of prosecution for criminal offenses of which the party threatened was guilty in fact, but which were in no manner connected with the demand for which compensation was sought, may be avoided by the parties executing them, not only in the hands of the original payee, but of his assignees having notice of the circumstances under which such securities were taken.” (Syl.)
In Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807, it was held that where & father was coerced into executing a mortgage to secure the payment of the defalcation of his son by reason of threats of prosecution of the son for embezzlement, which amounted to duress, it would avoid the mortgage. It was held that the test in determin ing whether there was duress was not so much the means by which the father was compelled to execute the mortgage as it was the state of mind induced by the means employed, the fear which made it impossible for him to exercise his own free will. It' was further held that if the threats deprived the father of his free will the actual guilt or innocence of the son upon the criminal charge was not a material question in determining whether there was duress.
There is nothing "substantial in the contention that plaintiff did not restore or offer to restore that which he had received in the transaction. He had nothing of consequence to restore. It was a one-sided transaction in which all the benefits went to the defendants. The plaintiff did receive the final settlement agreement which, as we have seen, is a void instrument. Those who prepared it evidently had some misgivings as to the adequacy of the consideration for the deeds, notes and mortgage, and compelled the plaintiff to sign this agreement, reciting as a consideration that Laura A. Reid had agreed to relinquish all her rights in the estate of the plaintiff. She had no claims against him and no mention was made of the surrender of rights of inheritance. There was no purpose to subserve in tendering back the agreement, as the plaintiff had brought it into court and had asked to have its validity determined.
Nor is there any good ground for the complaint that Állie Johnson, to whom plaintiff had been married, was not made a party. She had taken no part in the transaction, and was not concerned with the question of fraud in the litigation nor with the relief asked. She wa,s in no sense a necessary party.
It is further argued that the Citizens State Bank should not be held responsible for the fraud perpetrated by the cashier. He acted for the bank and it did not disavow his act in either pleading or evidence, but took the fruits of the fraud and is still insisting that it is entitled to them. It was sufficiently shown that O’Brien was acting for that institution and that the bank cooperated with the Reids and O’Brien in the extortion.
It is further argued that the Union State Bank is a holder in due course. When the transfer was made a credit was given the Citizens State Bank, but no checks were ever drawn by it, and it was the manifest intention that none should be drawn. The notes and mortgage as well as the money represented by them were still in the hands of the Union State Bank when the action was begun and the fraud in the transaction had been fully revealed. When it was shown that the notes had been fraudulently procured and that the title of the Citizens State Bank that negotiated the notes, was defective, the burden was shifted to the Union State Bank to prove that it was the holder in due course. This burden was not met by the Union State Bank. We think the court was warranted in finding from the evidence that the bank was not a holder in due course. (Ireland v. Shore, 91 Kan. 326, 137 Pac. 926; Bank v. Bank, 100 Kan. 194, 164 Pac. 137.)
Some other- exceptions are mentioned by defendants, but we find nothing in them that is material or which requires special comment. The judgment rendered was within the power of the trial court, was well supported by the evidence, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff appeals from a judgment denying an injunction to restrain the defendants from carrying into effect an order made by the public utilities commission directing the plaintiff “to construct a siding to an elevator to be erected at Leoville, Kansas, the expense of the side track to be borne by the Chicago, Rock Island and Pacific Railroad Company with the exception of the grading which should be done by the citizens of Leoville, Kansas.”
1. The plaintiff contends that “the order of the public utilities commission and the judgment of the court in refusing relief therefrom are contrary to the evidence and facts.” This presents a question of fact. Leoville is a small village of about one hundred people, situated in an agricultural community producing wheat and cattle and other incidental farm products. By rail, Leoville is 2.77 miles southwest from the station at Dresden where there are also other railroad facilities, and by the public road is four and one-half miles from Dresden. Selden,. another station on the Rock Island, where there are sidetracks and a station, is 6.53 miles southwest of Leoville. Part of the public highway from Leoville to Dresden is rough. There are stores, a church, a blacksmith shop, and a garage at Leoville. The people of that village receive their supplies largely through Dresden and ship their products from that place. There was evidence to justify the court in finding the facts on which was based the order refusing the relief asked by the plaintiff, if the commission had jurisdiction to make the order that was made by it.
2. Another proposition urged is that “the order of the public utilities commission is unreasonable, oppressive, arbitrary and unlawful and if enforced will interfere with the operation of appellant’s railroad and trains and will be a direct burden on interstate commerce; it will deprive appellant of its property without due process of law and without just compensation and deny it the equal protection of the law, contrary to the constitution of the United States and of the state of Kansas.” This court has in several instances passed on questions similar to the one now presented.
In The State v. Railway Co., 76 Kan. 467, 92 Pac. 606, an order of the board of railroad commissioners, directing the Missouri Pacific railroad to operate separate passenger train service on the Madison branch of its railroad from the state line between Kansas and Missouri to Madison, was upheld.
In The State v. Railway Co., 81 Kan. 430, 105 Pac. 704, an order was upheld directing the Parsons Street Railway and Electric Company to construct a subway under the tracks of the Missouri, Kansas and Texas Railway in the city of Parsons as the place where the street railway desired to cross the Missouri, Kansas, and Texas Railway Company’s tracks.
In Railway Company v. Railroad Commissioners, 85 Kan. 229, 116 Pac. 896, this court upheld an order of the railroad commissioners directing the Missouri Pacific Railway Company to provide freight terminal points and facilities in Argentine and Kansas City, Kansas.
In The State, ex rel., v. Railroad Companies, 85 Kan. 649, 118 Pac. 872, the board of railroad commissioners had made an order directing the Chicago, Burlington & Quincy Railroad Company and the Chicago, Rock Island & Pacific Railway Company to build a connecting track at Norton or some convenient place. That order was upheld by this court.
The order of the public utilities commission in this case comes within the rules declared in these cases.
3. Another proposition argued is that ‘-‘the public utilities commission was without jurisdiction to hear and determine the complaint upon which its order was made.” This argument is based on the fact that section 8415 of the General Statutes of 1915 provides that an application for a sidetrack shall be made by the mayor and council of the interested city, or by the trustee of the township, and on the fact that, under section 8547 of the General Statutes of 1915, the public utilities commission had no authority to direct the plaintiff to build the siding to an elevator situated ' more than one-fourth of a mile from a regular way station on the plaintiff’s road. The application to the public utilities commission in the present case was made by eighty-four persons, resident property owners of the community of Leoville. If it was necessary that the application for the sidetrack be made by the mayor and councilmen of the city or the trustee of the township, the public utilities commission did not have jurisdiction to make the order directing the construction of such an improvement. Section 8415 is a part of the old railroad-commissioner law. A different provision is found in section 8341 of the General Statutes of 1915, in part as follows:
“Upon a complaint in writing made against any common carrier . . . by any taxpayer . . . that any regulation, practice or act whatsoever af fecting or relating to any service performed or to be performed by such -. . . common carrier for the public, is in any respect . . . unreasonably inefficient, insufficient, ... or that any service performed or to be performed by such . . . common carrier for the public is unreasonably inadequate, inefficient, unduly insufficient or cannot be obtained, the commissioners shall proceed, with or without notice, to make such investigation as they may deem necessary.”
In this case, the application to the public utilities commission asked that an order be made requiring the defendant to build a siding and a depot and that a building site for the purpose of erecting a grain elevator be granted on the siding. The complaint concerned the efficiency of the service rendered by the defendant to the public and gave the commission jurisdiction to inquire into the matters complained of and to make any proper order under section 8341. Under that statute, the commission had broad powers to hear complaints and make orders concerning the services rendered to the public by common carriers. But, another and later statute gives authority to the commission to order sidings built to elevators, as follows:
“Any person, firm or corporation desirous of erecting and operating, or who has erected a grain elevator for public use and convenience of not less than ten thousand bushels storage capacity or sheds for the handling of coal for public use and convenience, on lands adjacent to the right of way of any railroad company in this state, at or in the vicinity, and not to exceed more than one-fourth of a mile of any regular way station of such railroad, shall have the right to demand of such railroad company that it designate the location of a sidetrack over its right of way from the site of the said proposed elevator, or sheds, which it will agree to construct and connect with a switch, or with any sidetrack of such railroad at a point within a reasonable distance from such way station, and from the site of said.proposed elevator, or sheds, and that it designate the terms and conditions upon which it will construct, maintain and operate such sidetrack after the erection and completion of said elevator, or sheds.” (Gen. Stat. 1915, § 8547.) i
This statute was passed in 1915; section 8341 was passed in 1911. If there is any antagonism between the two, section 8547 must, control.
The order made by the public utilities commission was that the plaintiff construct a siding to an' elevator which, the evidence discloses, was to be owned by a corporation or a joint stock company. The place named for the construction of the siding was more than two miles from a regular way station. The statute did not give the commission power to order a siding at any place more than one- fourth of a mile from the regular way station. It follows that the commission did not have authority to order that a siding be constructed to the elevator that was afterwards to be built at Leoville.
The judgment is reversed, and the trial court is directed to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In a petition for rehearing defendants contend that the errors upon which a reversal was based were not of a prejudicial character. It is insisted that when it was held in the first opinion'that the execution and delivery of the memorandum of October 17, 1912, if attached to the deed which was an equitable mortgage and delivered with the intention of transferring the mortgagor’s interest in the land, it was sufficient to satisfy the statute of frauds, the case was practically determined in their favor.
The contention is that the substantial evidence showed the attachment of the original deed to the memorandum and also that it was executed and delivered with the- intention of converting the equitable mortgage into a transfer of title. While there was evidence strongly tending to support this contention, there is testimony tending to show that the memorandum was executed for another purpose and to meet the exigencies of another case. There was a question whether it was executed by the nephew in. payment of an indebtedness to his uncle and whether in fact there was any indebtedness to be canceled by a transfer of title or whether the indebtedness had been canceled by other negotiations and transfers between the parties. Added to these was the letter afterwards written by the uncle, which in some degree tended to show that he regarded the transfer as having been made to secure the indebtedness with interest within a fixed time, and when it was paid the property should .be transferred and belong to the nephew. - Then there was testimony of the execution by the uncle of a quitclaim deed purporting to transfer the land back to the nephew. Considering all the testimony, the court is still of the opinion that in the state of the evidence the instruction of the court to the effect that the only question for determination of the jury was whether the quitclaim deed was ever in fact executed and delivered by the uncle to the nephew, was material error. We adhere to the view expressed in the first opinion that the court was not warranted in instructing the jury ’that the judgment in the Nebraska court was conclusive as to the state of the accounts between uncle and nephew and as to the existing indebtedness of the nephew to the uncle, and that so far as the transfer of the land in question was concerned these matters were no longer in controversy and could not be considered in the action. The dealings of these parties as evidencing their intentions and whether there was an indebtedness which entered into the negotiations when the memorandum was executed, which it is claimed converted the equitable mortgage into a transfer of title, were important considerations in the case and should not have been taken from the jury. The case was ejectment, and while it had its equitable features they were not segregated nor reserved by the court for its own determination. The whole case was submitted to the jury upon the question of ownership of the land in controversy and as to whether the plaintiffs were entitled to its possession, and therefore it became necessary to fully instruct the jury upon the evidence bearing upon these questions.
In the argument upon the rehearing plaintiffs renew the contention that the memorandum of October 17, 1912, even if attached to the deed and delivered with the intention of transferring the title, was incomplete and insufficient to satisfy the requirements of the statute of frauds. Our view still is that if the instruments were attached so as to constitute a single instrument and were executed and delivered for the purpose mentioned, they would be sufficient to constitute a transfer.
It is further contended that they could not in any event have that effect unless there was a new and adequate consideration.- We think that if the debts were canceled as claimed or other rights surrendered by the uncle, there would be sufficient consideration for a transfer otherwise valid.
For the reason given in the first opinion the judgment of re- . versal will stand. | [
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The opinion of the court was delivered by
Mason, J.:
The,Central Trust Company sued Grant county upon thirty-four coupons <of a bond issued by the county in 1890 under the general statute authorizing counties and other municipalities to refund their indebtedness. (Gen. Stat. 1915, §§ 642-652.) The case was heard upon an agreed statement of facts. Recovery was denied upon all the coupons which were by their terms payable more than five years before the action was brought. The plaintiff appeals from this ruling.
The plaintiff invokes the rule that where a municipal obligation is payable only out of a particular fund the statute of .limitation does not begin to run thereon until the fund has been provided (17 R. C. L. 763; 25 Cyc. 1103), which it contends is applicable here. The cases announcing this rule and illustrating its application are quite fully collected in notes to the texts cited. Almost without exception they involve either warrants as distinguished from bonds or bonds affected by peculiar circumstances. In the leading and often cited case of Lincoln County v. Luning, 133 U. S. 529, the instruments sued upon were bonds and coupons, but because of default in meeting the interest the legislature had made a new provision for their payment, requiring the coupons to be registered and paid in the order of their presentation as money should be raised for the purpose. This gave them the character of warrants and made them subject to the same treatment. A warrant is an order on the treasury ordinarily payable as it is reached in turn and in one sense it does not mature until that time, even where by its terms the treasurer is directed to make payment by a specified date out of funds raised or appropriated for the purpose. (School District v. Bank, 63 Kan. 668, 66 Pac. 630.) This court has decided that the rule that the statute of limitation does not begin to run against municipal warrants which are payable in the order of their registration until a fund has been provided for their payment, does not apply to bonds and coupons. (Schoenhoeft v. Kearny County, 76 Kan. 883, 92 Pac. 1097.) The plaintiff undertakes to distinguish this case from that cited on the ground that here the statute provides for the levy of an annual tax to pay interest while there the statute was silent as to the method of payment. We do not regard the distinction as affecting the question before us. A statute which authorizes a municipality to issue bonds, without expressly providing means for their payment, by implication requires it to raise a sufficient amount by taxation to meet the interest as it falls due. “It cannot have been contemplated by the legislature that bonds should be issued on which a payment should be due before means could be provided to meet it. In the abs'ence of an express provision on the subject it could readily be inferred that the intention was for a tax levy to be made in time to prevent a default.” (The State, ex rel., v. Stewart, 107 Kan. 434, 436, 191 Pac. 269.) The statute here involved makes elaborate provision to insure the levy of a sufficient tax each year to pay the coupons at maturity, but if no tax should be levied at all, or the levy made should prove inadequate, there can be no doubt of the power of a court to compel a later levy or levies adjusted to the capacity of the municipality, such as finally to bring about a payment in full. It is true that a fund raised by taxation for another purpose could not be used to pay the coupons sued upon (Const., art. 11, §4), but this is equally true with respect to any public debt. The surplus of other funds, and moneys obtained otherwise than from taxes, could be so applied. (The State v. Butler County, 77 Kan. 527, 537, 94 Pac. 1004.) Nor is any objection apparent to a single levy being made "covering several series of bonds of the same character.
These excerpts from recent opinions appear to bear upon the point under consideration:
“It is insisted on behalf of the defendant in error that the statute of limitations is inapplicable to the case, and has never commenced to ’run against any of the coupons here involved for the reasons, as claimed by counsel, that the bonds . . . are not general obligations of the district, but are payable only out of a nonexisting ‘particular fund’ and ‘amount in effect, if not in terms, to a promise on the part of the district to pay the principal and interest of the bond at the dates therein mentioned, provided the fund out of which the payment is to be made shall have been collected.’ . . . They [the bonds in question] were required to contain, and did contain, an absolute promise to pay to the bearer of them certain sums of money at certain specified dates, with interest thereon at a certain specified rate, with appropriate interest and installment coupons annexed thereto. Neither on their face nor in the statute authorizing their issue is there any condition attached to their payment, nor, in our opinion, any provision in either from which any such condition can be implied. True, each bond recites that ‘all the said bonds and the interest thereon are to be paid by revenue derived from an annual tax upon the real property of the district,’ and that both such tax and the bonds are by the act under which the latter were issued made a lien upon all of the real property of the district; but that is very far from saying that the taxes so to be levied and collected should constitute a particular or special fund out of which only the principal and interest due upon the bonds should be paid.” (Rialto Irr. Dist. v. Stowell, 246 Fed. 294, 301, 302.)
“If it can be said that these bonds and coúpons were to be paid out of a ‘particular fund,’ within the meaning which plaintiffs seek to ascribe to the remarks of the Supreme Court in Lincoln County v. Luning, then it can be said with equal force that any municipal bond, for the payment of which the statute provides for the creation of a sinking fund or other fund to be raised by general taxation, without limiting the right to sue on the bonds before the fund is created, is a ‘particular fund,’ and hence, in any such case, the statute of limitations would not apply to a suit on the bonds, where the municipality had neglected to assess the taxes necessary to meet the bonds. But that would be contrary to the general rules that suit may be instituted on municipal bonds and coupons when they mature, and that the statute of limitations begins to run from the date when the cause of action accrues; it would also seem to be at variance with that line of federal authorities which hold that, before mandamus will issue to compel the assessment of a tax, a bondholder must obtain a judgment on the bonds. ... As the bonds and coupons in suit were payable at stated times, and as the statute which authorized their issuance provided, as the ultimate means for their pasunent, for the raising of money in the ordinary way, by the levying and collection of taxes, I am unable to perceive any reason why the general rule that a cause of action arises on such bonds and coupons at the dates of their maturity respectively, does not apply.” (Smythe v. Inhabitants of New Providence Tp., 253 Fed. 824, 830, 831.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs recovered judgment by default foreclosing a real-estate mortgage • given by John J. Main and Belle Main, his wife. Under that judgment, the property was sold, the sale was confirmed, and a sheriff’s deed was issued to the plaintiffs. Afterward, John J. Main filed an application, the prayer of which read:
“This defendant prays that the judgment hereinbefore set out may be vacated as void and rendered without jurisdiction; and that if such relief be denied, then the order of sale and order of confirmation heretofore entered in this cause be vacated; and for such other and further relief as to the court shall seem proper.”
The plaintiffs answered that application, trial was had, the application was denied, and John J. Main appeals.
Findings of fact and conclusions of law were made, as follows :
“1. On July 31st, 1917, plaintiffs' filed the original petition in this case, praying for a foreclosure of a mortgage given by John J. Main and his wife, to secure a note of $300.00, dated April 9th, 1913, upon which the defendants were in default for payment of interest, and on the same day summons was personally served by the sheriff upon the defendant John J. Main and Belle Main, his wife. No answer was filed by either of said defendants, and judgment by default was rendered September 17, 1917, as set out in the petition to vacate the judgment.
“2. Thereafter and on November 3rd, 1917, the sheriff sold at public outcry to plaintiffs the real estate involved in this action for the sum of $420.27, being the amount of the judgment of $342.00, plus delinquent taxes, court costs and sheriff’s fees.
“3. That on March 23rd, 1918, said sale was confirmed by order of the court, as set out in the petition to vacate the judgment.
“4. On October 2nd, 1918, the Probate Court of Shawnee County, Kansas, found the defendant, J. J. Main to be insane. A commission of examining physicians filed a report in said court wherein they stated ‘that the disease is of two years duration, dating from the first symptoms of this attack’; that he shows the effect of alcoholism and suffering from delirium tremens, with rational intervals. That on said date defendant was committed to the State Hospital at Topeka, Kansas.
“5. That on April 30th, 1919, he was paroled from said institution by the order of the superintendent, and on March 9th, 1920, was discharged as restored to sanity by order of the superintendeht of said institution.
“6. No guardian was at any time appointed for said J. J. Main.
“7. That on May 29th, 1919, the sheriff, in pursuance to the order of confirmation herein, deeded to plaintiffs the property foreclosed in this case, being Lot 135 and the North fifteen feet of Lot 137 on Polk Street in the City of Topeka.
“8. That at the time of said foreclosure sale and purchase by the plaintiff herein, said property was also subject to a first mortgage held by the Security Benefit Association in the sum of $1,000.00 upon which the defendants were in arrears for the payment of interest and the entire principal; and that said purchase by the plaintiffs upon said foreclosure sale was subject to such first mortgage. '
“9. That the value of said property at the time of the foreclosure sale was between the sum of $1,750.00 and $2,000.00. Subsequently to said sale the plaintiff repaired said property .and made valuable improvements thereon, considerably increasing the value of said property.
“10. Suit is now pending in this Court to foreclose the first mortgage held by the Security Benefit Association, and a personal judgment is sought against the defendant J. J. Main.
“conclusions of law.
“1. The judgment of foreclosure rendered herein was in all respects valid and legal and not subject to proceedings for vacating void judgments.
“2. That the property did not sell for so much less than its actual value at the time of the said sale that the said sale should be set aside for inadequacy of price.”
Three propositions are presented: That the service of summons on John J. Main was void; that the judgment rendered thereon was likewise void; and that the sale, confirmation, expiration of time for redemption, and the making of the sheriff’s deed were all during the period of his incapacity and therefore voidable on timely application. These propositions can be disposed of together.
The findings of the district court show that John J. Main was declared insane on October 2, 1918, and that the disease was of two years’ duration dating from the first symptoms of the attack. He argues that this finding establishes that he was insane two years previous to the adjudication by the probate court. That is not the effect of the finding of the district court. That finding shows that Main was insane on October 2, 1918, but it does not show that he was insane at any time prior thereto. Symptoms of an attack of insanity are not insanity. Main’s petition alleged that he was in a state of alcoholic dementia. Symptoms of alcoholic dementia are not equivalent to insanity. The foreclosure action was commenced, summons was served, judgment was rendered, order of sale was issued, sale was made, and the sale confirmed months before the probate court found that Main was insane. The period of redemption expired about seven months after the finding of the probate court. The summons, judgment, order of sale, sale, and confirmation were regular and cannot be avoided by Main in a proceeding of this character. After the confirmation, the only right he had was the right to redeem from the sale. During a part of the period of redemption, Jie was insane. On March 9,1920, he was discharged from the state hospital for the insane at Topeka, as restored to sanity. This proceeding was commenced on July 6, 1920. If Main had any right after having recovered his sanity, it was the right to redeem from the sale. That right he did not claim and did not attempt to exercise. A foreclosure case somewhat closely parallel to the one under consideration is Lundberg v. Davidson, 72 Minn. 49, the syllabus to which reads :
“The fact that the mortgagor or the occupant of the mortgaged premises has become insane does not suspend the power of sale in the mortgage, or render void a sale under it. If the power is exercised in bad faith, for the purpose of using such disability to gain an improper advantage of the mortgagor, the courts will set aside the sale. But if the mortgagee and the purchaser at the sale acted in entire good faith, and in ignorance of the disability of the mortgagor, the mere fact that the property was bid off for much less than its value, and that the mortgagor was insane at the date of the sale, and so continued until after the expiration of the time of redemption, will not of itself entitle the mortgagor to have the sale set aside, or to redeem from it, after thé expiration of the period of redemption allowed 'by statute, especially where the purchaser at the sale has entered into lawful possession of the premises, and made valuable repairs and improvements.” ■
Under the Lundberg case, Main would be denied the right to redeem from the sale in this action. No error appears.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued the defendant land company, The W. E. Stewart Farm Mortgage Company and W. E. Stewart, alleging that the land company was a nonresident with no office or place of business in Kansas; that the farm mortgage company was a Missouri corporation having its offices and principal place of business at Kansas City, Mo., and was a nonresident; that the defendant, W. E. Stewart, was a nonresident of Kansas; that the land company was engaged in the sale of Texas lands; that the mortgage company was organised by its stockholders and Stewart for the purposé of holding title to their lands and that Stewart was an officer and director of both corporations. The petition stated that just prior.to October, 1917, the defendants, for the purpose of inducing the plaintiff to purchase some of their Texas lands, through its officers and agents and Stewart personally, fraudulently represented to him that if he would purchase a certain tract of land containing forty acres he could raise three crops of broom corn thereon each year; that under the water rights and rights thereto to be conveyed to this plaintiff by them, the plaintiff could get water to raise such crops from the irrigation company whenever needed, and that he would not have to pay for the water rights until he had produced $10,000 worth of products on the land; that there was a rural route by his place, and that the land was worth $250 an acre, and the plaintiff could raise seventy-five bushels of corn an acre and in addition thereto could raise a winter crop; that relying on the truth of these representations, he made a written contract for the purchase of the land; that each and all of such representations were false and not intended to be carried out by the defendants and made for the purpose of inducing him to sign the contract, and the defefidants knew, or ought to have known, that such representations were false, and fraudulently made, and that he relied on them without knowing of their falsity and entered into the contract giving in cash and notes $10,000 for the land; and that he had been damaged in that sum, for which he asked judgment. He alleged that the defendants owned certain real estate in Kansas, title being held either in Stewart or the mortgage company, describing certain lands in Shawnee county.
The attorney for the plaintiff made an affidavit for publication, setting forth therein that the cause of action was based upon the deceitful and false representations by which the defendants secured from the plaintiff $10,000 in cash and notes for little or no consideration, and that he believed the claim was just and the plaintiff ought to recover substantially that amount; that the defendants and each of them were nonresidents of Kansas, and that the defendant corporations were foreign corporations organized under the laws of Missouri, but had been doing business in Kansas. Pursuant to this affidavit an attachment order was issued and an affidavit for service by publication was filed by the same attorney setting forth that this was an action brought under paragraph 78 of the civil code against a nonresident of the state and foreign corporations; that certain lands had been attached, describing them; that the plaintiff sought to sell them to satisfy his claim; and he averred that summons could not be had within this state.
On June 19, 1920, proof of service by publication was filed showing that constructive service by publication had been had. On August 23 judgment by default was taken against The W. E. Stewart Land Company, a corporation, The Stewart Farm Mortgage Company, a corporation, and W. E. Stewart. The journal entry recited that all the defendants, except W. E. Stewart, made default; that the plaintiff offered his evidence in support of his petition, and rested his case. The court found that due service had been had upon the Stewart mortgage company, the land company and W. E. Stewart, foreign corporations and nonresidents, by publication as provided by law, the proof of which was examined and approved. The court further found that the allegations of the petition were true and the plaintiff was entitled to recover as prayed for therein; that the defendants were indebted to the plaintiff in the sum of $11,950, with interest, and that the property should be sold to satisfy such claim, and it was therefore adjudged that The W. E. Stewart. Land Company, The Stewart Farm Mortgage Company and W. E. Stewart were each indebted to the plaintiff in the sum of $11,950; that the real estate of the defendants was duly and legally attached in this action and the same should be sold to satisfy the action. The cause-of action was ordered to be continued as to The W. E. Stewart Investment Company for further proceedings and trial.
On January 8, 1921, W. E. Stewart and The Stewart Farm Mortgage Company filed a petition to set aside the service by publication and the judgment rendered thereon. Among the allegations were the following:
“3. That in his petition and affidavit for attachment filed in this cause the plaintiff fraudulently, wrongfully and falsely alleged the joinder of your petitioners with The W. E. Stewart Land Company in respect to the facts and representations therein alleged to have been made to plaintiff.
“4. That neither W. E. Stewart nor any officer, agent or representative of The Stewart Farm Mortgage Company were present at the making of any of the alleged representations stated in the petition, and that neither your petitioner, W. E. Stewart nor any officer, agent or representative of The Stewart Farm Mortgage Company 'made any statements whatever in connection with the facts and representations therein alleged and neither of your petitioners have now or ever had any real or substantial interest in the pretended cause of action set out in said petition adverse to the plaintiff.
“6. That the plaintiff made all of said fraudulent, wrongful and false allegations for the purpose of causing to be issued out of this court an attachment of real estate of said W. E. Stewart in Shawnee County, as a mere pretense for constructive service by publication on all the defendants in this cause, and by such abuse of its process wrongfully attempted to confer jurisdiction upon this court, which otherwise it would not have.”
• After certain other allegations, came the prayer as follows:
“Whereupon your petitioners appearing specially for the purpose of this petition only ask this court to set aside the publication notice for service and the constructive service thereby secured, and that this court set aside the said judgment entered against your petitioners for want of jurisdiction in this court to render said judgment.”
This petition was properly verified and on January 14, 1921, W. E. Stewart and the farm mortgage company filed an amendment thereto as follows:
“And Now Comes, W. E. Stewart, and The Stewart Farm Mortgage Company, and by way of amendment to their motion and’ special appearance filed herein on January 8, 1921, say that inadvertently the allegation is made in said motion that the real estate described and mentioned therein was owned by W. E. Stewart; that in truth and in fact the legal title of said real estate is in the said W. E. Stewart, but he holds the same in trust for The Stewart Farm Mortgage Company mentioned in said affidavit; and these moving defendants so appearing specially and for the purpose only of this motion and amendment ask that said motion be considered as amended as herein stated.”
This amendment was supported by affidavit.
On January 22, 1921, the petition of W. E. Stewart and The Stewart Farm Mortgage Company came on for hearing. The attorney for the plaintiff objected to any evidence in support of the motion and moved the court to overrule the same for the reason that by these motions they had entered a general appearance in the cases, and the questions raised by the petition with reference to the facts alleged therein had been settled and the judgment rendered was res adjudicata of those facts.
On February 19, 1921, the court rendered judgment sustaining the objection to any evidence in support of the petition and overruled it. From this ruling the defendants, The Stewart Farm Mortgage Company and W. E. Stewart, appeal.
They assign as error the sustaining of the objection to the introduction of evidence and the overruling of the petition to set aside service by publication and the judgment rendered thereon. The three cases, Nos. 23,636, 23,637 and 23,638, involve the same questions and will be considered and determined together.
The defendants argue that as the statute provides for service by publication on nonresident owners and attachment only when they have property or debts owing them in this state, if they had no property or debts in fact they are not subject to the jurisdiction of our courts. While they concede the existence of the statutory ground against The Stewart Farm Mortgage Company, they contend the joinder of the other parties was baseless and therefore void.
The plaintiff refers to the grounds of the motion to set aside the judgment and says that the defendants by incorporating nonjurisdictional matters subjected themselves to the jurisdiction of the 'court. Further, that the attachment affidavit and affidavit for publication must now be taken as true, and their .verity cannot be inquired into since the court considered them as true and entered judgment on the strength thereof; that even if as a matter of fact the complaining' defendants had no property here this would not. render the judgment void, or, in other words, the untruthfulness of the affidavit could not have that effect. In Cohen v. Trowbridge, 6 Kan. 385, the motion to set aside the judgment was based on the grounds, among others, that the affidavit was defective, the publication notice was defective, and that the defendant had no interest in the property taken by the judgment. The court, speaking by Kingman, C. J., said:
“The fifth, sixth, seventh, and eighth grounds of his motion go to the merits of the case, and to questions of irregularity in the proceedings, other than jurisdictional ones; therefore, it must be held to be such an appearance as waived the defective notice of publication.” (p. 393.)
Life Association v. Lemke, 40 Kan. 142, 19 Pac. 337, is to the same effect. In National Bank v. Peters, 51 Kan. 62, 32 Pac. 637, holding that after the seizure of property and judgment and due service by publication, the judgment and proceedings are conclusive upon the parties to the action and their privies, it was said:
“If it were competent for Peters, in the proceedings to determine the priority of the attachment liens, to show by ex parte affidavits that he had no interest in the property attached by the bank which was seized and sold as his property, then Schaeffer had also the right to make proof in the same way, and show that he had no interest in the property seized and sold. The result would be, that upon ex parte affidavits in collateral proceedings, after seizure, judgment, and sale, such judgment and all proceedings thereunder might be set aside and vacated. If such were the law, attachment proceedings against non-residents might be wholly abortive.” (p. 69.)
In Frazier v. Douglass, 57 Kan. 809, 48 Pac. 36, the defendant undertook .to make a special appearance to set aside the service of summons, but in his affidavit he said he was the owner in fee of the land described and in possession, and that the plaintiff had no right or title thereto. The court said:
“Where a defendant alleges and submits to the court matters that are non-jurisdictional, he recognizes the general jurisdiction of the .court, and waives all irregularities which may have intervened in bringing him into court.” (p. 811.)
That a decree quieting title to real estate upon publication service is not void because the affidavit for publication is untrue was decided in Davis v. Land Co., 76 Kan. 27, 90 Pac. 766. The argument was made that the statute contemplated publication service on those only who are in fact nonresidents and cannot apply to residents, and the filing of false affidavits cannot confer jurisdiction, but it was held:
“Whether the defendant is a non-resident or not is a question of fact, which must be determined by testimony before constructive service can be completed; and the only evidence required by the statute to establish this fact is the affidavit prescribed by section 73 of the code. . . . When such an affidavit has been filed, and notice given as 'provided by section 74 of the code, . . . and the proceeding has been examined and approved by the court as required by section 75 of the code, . . . then jurisdiction exists. . . . The question whether the facts stated in the affidavit are true or not is immaterial until challenged in some recognized legal proceeding for the vacation of valid judgments.” (pp. 30, 31.)
In Barnett v. Insurance Co., 78 Kan. 630, 97 Pac. 962, ten years after a foreclosure had been taken against certain minors upon default, one of them who had become of age moved to vacate the judgment, one ground being that the petition did not state facts sufficient to constitute a cause of action. The motion was denied because the second ground constituted 'a general appearance and cured the defective service. That fraud practiced by a successful party must be collateral to the issues involved in the action on which the judgment is founded was decided in Garrett v. Minard, 82 Kan. 338, 108 Pac. 80, and it was held that the defendant in such a judgment taken by default could not have it set aside because the allegations in the plaintiff’s petition were untrue. The chief justice said in the opinion: “There would be no finality in a judgment and no end of litigation if the contrary view were taken.” (p. 341.)
In Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073, in his motion to set aside the judgment, the defendant undertook to appear specially to ask relief on the ground that he was "not liable on the note sued on, and it was held that he thereby placed himself in the same position as if he had appeared at the trial. (See, also, Gooden v. Lewis, 101 Kan. 482, 167 Pac. 1133.)
Here, in the petition to set aside the service and judgment, Stewart and the farm mortgage company allege that neither was present at the making of the alleged false representations set up in the petition and that neither of them had ever had any real or substantial interest in the cause of action and that the property in truth belongs to Stewart personally. In the amendment to the motion, they say the former allegation that the property belonged to Stewart was a mistake and that it in fact belongs to him in trust for The Stewart Farm Mortgage Company. The affidavit for publication was based on alleged false representations and the consequent procurement of $10,000 from the plaintiff, the nonresidence of the de-. fendants and the ownership of the property attached; and the court not only approved the service, but found that the allegations of the petition were true. So the petition to set aside the service and judgment presented the issúe as to the truthfulness of the petition and the affidavit for publication, and also the question as to who owned the property attached.
It is settled law in this state that a judgment is not void because obtained by false testimony, and that the judgment rendered on publication service is not void because the affidavit for publication was false. It is equally well settled that when a defendant moves to set aside the judgment on nonjurisdictional as well as jurisdictional grounds, he can no longer successfully claim that the court has no jurisdiction over him.
While, therefore, it is true as argued by the defendants that attachment can be had only when the debtor has property in this state, it is equally true when an affidavit, in proper form is presented and favorably passed on by the court, and a petition alleging fraud, nonresidence, and ownership of the property here is presented to and passed upon by the court and found to be true, and judgment thereupon rendered, the actual nonownership of such property or actual falsity of the affidavit does not render the judgment void. It is conceded the court had jurisdiction of one of the defendants, but the complaint is that by virtue of false affidavits and allegations, the complaining defendants were wrongfully j oined as parties. But the real effect of such allegations and affidavits together with the averments of the defendants’ motion was as already indicated.
The ruling of the trial court was in accordance with these settled principles, and is therefore affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
When St. John, a city of the third class and the county seat of Stafford county, was platted, one block, numbered 7, bore the designation “County Square.” A few years later the town company executed to the county a deed for the same tract, described therein as “block seven "in the original subdivision of the town of St. John, Kan., known as the ‘County Square.’ ” In 1920 the city caused the streets surrounding thip block to be paved, guttered and curbed, and to meet a part of the cost thereof made an assessment against it of 119,386.75. The assessment not having been paid the city presented to the county a claim for $3,101.88, being one-tenth of that amount, with interest for one year on the total at six per cent. Payment being refused, the city sued the county. A jury was impaneled and evidence introduced. The court directed a verdict for the plaintiff for the amount claimed, on which judgment was rendered, from which the defendant appeals.
Complaint is made of the rejection of evidence and of the refusal to submit the case to the jury. The judgment is obviously based upon the theory that under all the evidence produced by the defendant as well as that introduced by either party the plaintiff was entitled to judgment upon the facts established by public records, and if this view is sound the rulings referred to are correct or nonprejudicial.
1. The city relies upon Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 Pac. 788, where the county was held liable for the payment to the city of the amount of a paving assessment against the courthouse square. Here the county denies liability and undertakes to distinguish this case from that on the ground that it is not really the owner of the property against which the special tax is assessed and at all events has never occupied or used it. The county has a courthouse which is located upon another tract of which it is the owner. The square in controversy is used as a public park. It has been improved so as to be adapted to that purpose at the expense of individuals and voluntary associations and of the city. The city has expended and continues to expend consid erable money for labor in its care, and has passed an ordinance declaring it a public park and another penalizing injuries to the vegetation or improvements in public parks. The county at one time constructed (through a contractor) a cement walk around the square, paying three-fourths of the expense, the city paying the other fourth. The county also paid a part of the cost of a gutter along the sidewalk. At another time the county granted to á civic club permission to improve the square, which was acted upon by the erection of a fountain. In 1912 an order was entered on the commissioners’ journal in these words: “In view of the fact that the public square in the city of St. John belongs to Stafford County, the county commissioners in special session this ninth day of April, ordered the county clerk to make record of the fact said commissioners reserve the right to order out of the way any improvements that may have been or may be put in said public square and at the expense of the party or parties who make such improvements.”
The situation is not the same as that presented in Hurd v. Comm’rs of Harvey Co., 40 Kan. 92, 19 Pac. 325, and Jefferson County v. Oskaloosa, 80 Kan. 587, 102 Pac. 1095, in each of which cases land in a city was dedicated for a public park and the county merely took the formal legal title, the right of possession and control being normally in the city. Here the block was not dedicated as a public park, but specifically as a‘“county square,” and the deed placed no restrictions on the use to be made of it. Nothing further, unless an acceptance by the county, was required to vest in it the absolute ownership. “Any real estate . . . conveyed to any county shall be deemed the property of such county.” (Gen. Stat. 1915, § 2529.) Acceptance by the county is abundantly shown by the evidence already set out, especially by the order quoted in full. The circumstance that the deed recited a consideration of one dollar which was never actually paid is immaterial.' The fact that the county has not hitherto erected any building upon the square or made any use of it except as it may be regarded as participating in its maintenance as a public park does not affect the state of the title. The county having once acquired ownership could not divest itself thereof without a vote of the people, if, as seems clear, it is worth more than $5,000. (Gen. Stat. 1915, § 2548.) The constitutional provision exempts from taxation property used for county purposes, no reference being expressly made to ownership. (Art. 11, § 1.) But the statute in terms exempts all property belonging exclusively to a county. (Gen. Stat. 1915, § 11151, subdiv. 6.) Such exemption, in a sense, does not relieve the property from liability for special assessments for local improvements, but the statutory provision evidences a legislative policy against allowing it to be bold for a debt due the public even when not actually in use for county purposes, doubtless for much the same reason that the issuance of an execution against the county is forbidden. (Gen. Stat. 1915, § 25.35.) We conclude that the fact that use has not as yet been made of the square as a site for a building or other purpose specifically for the benefit of the county does not take it out of the rule declared in the Franklin county case.
2. The county also contends that the city, having proceeded against the property by levying an assessment against it, should be precluded from changing its course and attempting to hold the county personally liable by presenting a claim directly to it. The practice here followed is that adopted in the Franklin' county case. Where the property is owned by a county it seems entirely proper, if not necessary, that the proceedings up to the point of the sale of the land for nonpayment should be the same as in other cases, and that when the amount of the charge is ascertained and evidenced by an assessment, the duty of the commissioners is to provide for its payment.
The county further argues that in any event there is no justification for the amount for which judgment was here rendered— that unless liable at once for the entire amount of the charge against the block it should be held only for one-tenth thereof with interest at six per cent from the date of the presentation of the claim. Our view is that the county’s liability, except for being personal and not merely a charge against the property, is the same as that of a private owner — to pay the amount of the assessment against the property as it becomes due under the tax laws. The statute provides that where improvement bonds are issued under it the city clerk shall annually certify a list of the property liable “together with the respective amounts due on each of said tracts, . . . which amounts shall include the annual installments and interest on all unpaid balances for one year, at a rate not to exceed six per cent per annum; and such amounts so certified shall be collected as other taxes are collected.” (Gen. Stat. 1915, § 1976.) In this instance six per cent bonds were issued, one-tenth of the total maturing each year for ten years, and the assessment was required to be paid “in ten equal installments of one-tenth of said assessment each year for a period of ten years with interest at the rate of six per cent per annum for such period.” The first payment would therefore be one-tenth of the total assessment, with interest for one year on the whole amount — which is the sum claimed and allowed. If the county had offered to pay the entire sum at once a different question would be presented, but as it denied liability altogether the computation adopted seems to be the proper one.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Argonia Oil and Gas Company sold an outfit of drilling tools to Fred Wasson for $6,000, a bill of sale being executed in which he agreed to pay that sum, the company retaining a lien on the property as security. This action was brought to recover a balance of something over $2,000 alleged to be due on that contract. The amended petition also alleged that the same parties had entered into a written contract by the terms of which the de fendant was to do some drilling for the plaintiff on a specified tract, one-half of his compensation therefor to be applied on the amount he owed for the tools, but that after one well had been drilled the plaintiff had decided not to drill any others on the tract referred to. The defendant filed an amended answer alleging that he had sold the property he had purchased to Gilbert Jackson under an arrangement by which the plaintiff released him from all liability and agreed to look wholly to Jackson for payment. This issue has not yet been tried. The answer also set out that the parties intended the drilling contract to provide distinctly that the plaintiff was to drill at least three wells thereunder, and that the defendant was not to be required to pay for the property purchased except from the proceeds of the drilling, but through mutual mistake these matters were not clearly stated, the language used in this regard being ambiguous, on which account a reformation was asked. The court heard the case upon this issue, refused to reform the contract, and held that it was not ambiguous. The appeal is taken from these rulings and also from the striking of matter from the answer and the sustaining of a demurrer to a cross petition setting out a counterclaim.
1. The court found that the contract stated the real agreement between the parties. The defendant insists that the contrary was shown by the testimony of the plaintiff’s president, who represented it in the transaction. He testified that the plaintiff had a lease from one Safford on the land already referred to, one of the terms of which was that it was to drill three wells thereon, but after oil was struck this was changed; and that at the time the contract was made with the defendant the company expected to drill three more wells — that the common talk was that there would be three additional wells drilled, but there was nothing certain about it;-that the witness told the defendant they would make a contract and he could have a chance to pay for the tools out of the drilling of the wells. The existence of these facts is not inconsistent with the reservation by the plaintiff in its written contract with the defendant of a right to refrain from drilling more than one well. The court found specifically that the defendant read the contract before signing and signed it with full knowledge of all its contents. The question of mutual mistake was one of fact, on which there was a conflict in the evidence, and the decision of the trial court must stand.
2. We conclude also that the trial court was right in holding that the contract was unambiguous and gave the plaintiff the privilege of determining whether it should drill' more than one well. Upon this phase of the matter there is no occasion to do more than quote the instrument bearing thereon, as the question must be determined from a consideration of its precise language, and further discussion could throw little light upon its meaning:
"Said second party [the defendant] hereby agrees to drill three or more wells for oil at any place on [describing the tract] that the said first party [the plaintiff] may designate, . . . said first party covenants and agrees to employ the party of the second part to drill three or more wells on the premises above mentioned, provided he well and faithfully performs the terms and conditions of this agreement, and, provided further that said first party concludes to and does actually drill said wells (meaning and hereby intending to provide for said second party’s drilling all the wells to be hereafter drilled by said first party on the premises aforesaid, under the same terms and conditions herein provided for, so long as the company desires to drill thereon, and as long as said second party faithfully performs this contract),
3. The matter stricken from the answer consisted largely of the allegations that -the contract was ambiguous and did not express the real agreement of the parties. The court having held as a matter of law that the contract was not ambiguous, and having found as a matter of fact that it did express the agreement made, the allegations on these subjects served no further practical purpose and their elimination could not be prejudicial. The defendant argues that the oral agreement alleged by him, that he was not to be liable for the price of the tools except from the proceeds of the drilling, is not in conflict with the terms of the written contracts. We do not take that view. The bill of sale included an express promise to pay, and the language of the drilling contract regarding the number of wells to be drilled has already been quoted and interpreted. The unqualified written provision to pay the agreed price cannot by evidence of prior oral negotiations be converted into a promise to pay only from a particular source.
4. The other allegations stricken out were to the effect that Ramsey and Flickinger, to whom Jackson (without the knowledge of the defendant) had sold the tools, took them out of the state, and the plaintiff knew beforehand that the removal was to be made and could have prevented it, but took no steps to do so, and gave the defendant no notice regarding it. The fact that the plaintiff allowed the property on which he had a lien to be taken from the state would not affect the defendant’s personal liability, and the striking out of the allegations in that regard was not error.
5. The facts pleaded as a counterclaim, to which a demurrer was sustained, may be thus summarized: When the defendant sold the tools to Jackson he also assigned to Jackson his rights under the drilling contract, and Jackson assigned these rights to Ramsey and Flickinger when he sold them the tools. Ramsey and Flickinger completed the first well. The plaintiff notified them that it would drill no other wells, after having stated to them that it intended to and would drill at least two more. By this refusal they were damaged in the sum of $7,500. Some eighteen months after this suit was begun Ramsey and Flickinger assigned to the defendant their claim for such damages, which claim the defendant asserted ás a cross demand.
The plaintiff contends that a demand in favor of a defendant in order to be available as a counterclaim must have existed when the action was begun. An apparent diversity of opinion on that subject arises from statutory differences. The code provisions on the subject are classified in Pomeroy’s Remedies, §581. Many_ codes, perhaps most of them, contain substantially this section, adopted from that of New York:
“The counterclaim mentioned in the last section, must be one existing in favor of a defendant, and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action:
“1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action;
“2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.” (Pomeroy’s Remedies, § 583.)
Under such a statute two kinds of counterclaims are recognized. Because the express requirement of existence at the commencement of the action is made with respect to the second and not with respect to the first it is held that counterclaims of the first kind — those arising out of the same transaction or connected with the subject of the action — may be used in an action begun before they arise. (23 Standard Proc. 704-707, note 42.) Our code, however, (§ 98) designates as counterclaims- only those of the first kind as above classified, and calls those of the second kind (now amended to include torts as well as contracts) set-offs (§ 100), nothing being said in either case with regard to the cross demand having accrued before the commencement of the action. The reason for the rule referred to has no application under our statute and therefore the rule itself fails here, and counterclaims originating after the commencement of the action have been disallowed by this court. (Loan Co. v. Hutto, 48 Kan. 166, 29 Pac. 558; National Bank v. Hasie, 57 Kan. 754, 48 Pac. 22.) In order for a cross demand to have existed at the time an action was begun it is not enough that a third person should then have had a cause of action which he subsequently assigned to the defendant. The assignment constitutes an essential part of the cross demand. By another provision of the code, however, facts occurring after the action is brought can be set out only in a supplemental pleading, filed by leave of the court. (Gen. Stat. 1915, § 7037; Robertson v. Howard, 83 Kan. 453, 112 Pac. 162.) Moreover the usual view is that a claim against a plaintiff purchased by the defendant after he has been sued cannot be used as a cross demand in that action. (24 R. C. L. 833; 34 Cyc. 755-756; 23 Standard Proc. 723; Reynolds v. Thomas, 28 Kan. 578.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Solomon National Bank sued Lester Birch and Dallas U. Birch upon two negotiable notes executed by them to their own order and endorsed by them and by Felix Broeker. The defendants answered setting up that the notes were executed by them for stock in the Okla-Queen Oil Company and were procured from them by fraudulent representations as to its value; and also that the transaction was illegal because the sale was made in violation of the blue-sky law. (Gen. Stat. 1915, §§ 9458-9475.) Both issues were submitted to the jury, together with the question whether the plaintiff was a holder of the notes in due course. A general verdict was returned in favor of the defendants, on which judgment was rendered. The plaintiff appeals.
The plaintiff contends that it was entitled to a judgment by virtue of special findings of the jury to the effect that the plaintiff did not have actual notice or knowledge that the notes in question were obtained by fraud and did not purchase them in bad faith. These findings obviously acquit the plaintiff of either actual or constructive notice of any fraudulent representations having been made. The defendants correctly assert, however, that in order to constitute the plaintiff a holder in due course, so far even as concerns the question of fraud, it was necessary not only that it should have acquired the notes without actual notice of the fraud and without bad faith, but that also (1) the notes should have been complete and regular on their face, (2) the plaintiff should have become the holder before maturity, and (3) taken them in good faith and for value. (Gen. Stat. 1915, § 6579; Uniform Negotiable Instruments Act, § 52.)
1. When the notes were first brought to the plaintiff they bore no revenue stamps, but these were affixed at the time of the transfer by the person who negotiated the deal in behalf of the former holder. The defendants argue that because of this fact that the notes when acquired by the plaintiff were not “complete and regular on their face.” This contention is supported by Lutton v. Baker, 187 Iowa, 753, which is annotated in 6 A. L. R. 1701. The note cites cases of a contrary tendency and suggests that the decision appears possibly to have been influenced by an earlier view óf that court, since abandoned, that the omission of a stamp invalidated the instrument. We do not think the circumstance that a note was not stamped when it was executed, where a sufficient stamp is attached and canceled at the time of its transfer, prevents it from being then complete and regular on its face or precludes the transferee from becoming a holder in due course. We regard the terms complete .and regular as referring to the condition of the noté itself, with regard to its contents, execution (of which the affixing of a stamp is no part) and endorsement. The stamp is merely -evidence of the payment of a tax. Provisions of an act of congress ,that an instrument shall not be received in evidence without the required stamp are held by most of the courts which have considered the question (not including that of Iowa, however) to relate to federal and not to state procedure. When the omission to stamp an instrument was not fraudulent it does not invalidate the instrument, and may be remedied at any time, even after an action has been brought. (3 R. C. L. 923, 924; 8 C. J. 112, 113.) It is not suggested that the failure to attach stamps to the notes at the time of their execution was due to a purpose to defraud the government. Such suggestion could hardly be made in behalf of the defendants since the primary duty in that respect rested upon them. No question on-this or any other phase of the stamp matter was submitted to the jury, nor does it appear that the attention of the trial court was in any way directed to it.
2. That the notes as a physical fact came into the hands 'of the plaintiff on November 1 and 10; 1917,- and that a certificate of deposit, a cashier’s check and a draft which were returned to the bank as paid were then issued in exchange for them does not admit of substantial doubt. The records of the bank demonstrate that at least the forms of a purchase for value were gone through with at that time. If the plaintiff were not a purchaser before maturity in good faith and for value, this could only have been because the steps taken were only colorable — were, a rpere sham, although regular on their face — and this hypothesis we regard as negatived by the finding that the plaintiff did not purchase the notes in bad faith. If the plaintiff caused records to be made showing it to have been a purchaser before maturity and for value, when the fact was otherwise— if for instance it was merely acting in behalf of the Traders State Bank, of Salina, from which it acquired them, receiving them to hold for the benefit of that bank — it necessarily had knowledge of such facts that its action in takiüg the notes amounted to bad faith as the term is used in the statute. - (Gen. Stat. 1915, § 6583'; Uniform Negotiable Instruments Act, § 56.)
Whether the special findings require the conclusion that the plaintiff was a holder of the notes in due course with respect also to the defense of illegality in the violation of the blue-sky law is more debatable, because it might be argued that while the jury were of the opinion that the plaintiff did not have actual notice or knowledge that the notes were obtained by fraud they may have thought it did have actual notice' or knowledge of the violation of the blue-sky statute. This seems hardly possible as a practical matter and we think it irreconcilable with the finding that the bank did not purchase the notes in bad faith. Fraud or illegality in the inception of a note makes the payee’s title defective (Gen. Stat. 1915, § 6582; Uniform Negotiable Instruments Act, § 55) and throws upon the holder the burden of proving its acquisition in due course (Gen. Stat. 1915, § 6586; Uniform Negotiable Instruments Act, § 59). This the plaintiff could meet in the present case by showing both that it had no actual knowledge of an infirmity in the instrument or defect in the title, and that it had no knowledge of such facts that its action in taking it amounted to bad faith. (Gen. Stat. 1915, § 6583; Uniform Negotiable Instruments Act, § 56.) One is not a holder in due course if he takes the note (1) with actual knowledge of facts constituting a defense, or (2) with knowledge of such facts that his taking it was in bad faith. The absence of bad faith implies a want of knowledge of even such suspicious circumstances as would charge him with constructive notice of the existence of a defense, and as the greater includes the less it must also, and more strongly, imply a want of that fuller information which is characterized as actual knowledge. We conclude that the jury’s finding that the plaintiff did not purchase the notes in bad faith, in view of the matters already suggested, amounts to a decision that it was a holder in due course and therefore neither the fraud nor illegality in the inception of the notes constituted a defense against it.
The judgment is reversed and the cause is remanded with direction to render judgment for the plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action upon a promissory note for $3,000 executed by the defendant, F. E. Dillenbeck, to himself which he indorsed, and it was afterwards sold to the plaintiff bank. Verdict and judgment were given in favor of the defendant and the bank appeals.
The defendant alleged and offered proof to show that fráud was practised upon the defendant by one B. Laswell in obtaining the note. Defendant was induced by Laswell to execute the note and pay $300 in cash for shares of stock in an insurance company, which were to be subsequently issued and delivered. Laswell was not the agent of the insurance company, had no authority to sell its stock, no stock was ever issued to the defendant, and nothing was ever received by him for the note executed and the money paid. On October 4, 1917, the day after the execution of the note, Laswell sold, it to the plaintiff for $2,880. Instead of taking cash for the note, Laswell took a certificate of deposit of the bank for $2,880, payable to himself or order in current funds on the return of the certificate properly indorsed six months after date with interest at four per cent per annum. This certificate was transferred by Laswell, and after passing through a number of banks,' was paid by plaintiff on April 6, 1918. When the note was presented to defendant, payment was refused on the ground that the bank was not a holder in due course, but took it with notice of infirmities and in bad faith. On this issue the jury made the following special findings:
"1. Do you find that plaintiff purchased the note in suit:
a. For value? Ans. No.
b. Before maturity? Ans. No.
c. In due course? Ans. No. .
d. Without notice of infirmity? Ans. No.
“2. If you answer ‘d’ of question 1 in the negative, then state what notice of such infirmity it had. Ans. Because plaintiff took precaution to hold the money under his control until after maturity of note.
“3. Do you find the plaintiff bank had knowledge of such facts that its action in taking the note in suit amounted to bad faith? Ans. Yes.
“4. If you answer the last above question No. 3 in the affirmative, state fully the facts of which plaintiff had such knowledge: Answer fully. Ans. We find from the fact that the plaintiff held this money in said bank and under his control until after maturity of said note.”
The question involved is whether the plaintiff came into possession of the note without knowledge of the fraud in the inception of the note or without knowledge of such facts that its purchase amounted to bad faith. The court carefully and correctly instructed the jury as to the rules applicable in such cases. A jury in answer to a special question found that the note was not purchased in due course and without notice of infirmity, but in answer to other questions the jury gave the basis for that finding. It found that the notice of infirmity was established by the fact that the plaintiff held the purchase money of the note under its control until after the maturity of the note. In another question the jury was asked to state fully the facts which showed that the plaintiff took the note with knowledge of infirmity and in bad faith, and its answer was that it was shown by the action of the plaintiff in holding the money in the bank under its control until the maturity of the note. The so-called holding of the money under the control of the plaintiff must be interpreted as the only ground upon which knowledge of infirmity or bad faith in the purchase of the note is founded. The circumstance of paying for the note by the issuance of a certificate of deposit, does not warrant the inference drawn by the jury, and from the findings this is the only fact from which knowledge or bad faith was inferred. Payment made by the certificate of deposit as it was issued was as complete as if the money had been paid for the note. The certificate was negotiable in form and was subject to be transferred from hand to hand, the same as a negotiable promissory note. (3 R. C. L. 574.) It was not only transferrable, but was actually transferred by the depositor, and the bank had "no ground for resisting its payment when presented. It had no more control over the money due on the certificate than it would have had if it had indorsed and transferred a certificate of deposit issued by another bank which happened to come into its possession. If the certificate had not been negotiable, or if the fund had been set apart to be paid only to the one making the deposit, there would have been ground for the contention of defendant, but issued in negotiable form as it was, it did not warrant the inference drawn by the jury. One who purchases a promissory note for value before it is due, which is subject to defenses in the hands of the payee, is entitled to recover upon it -unless it is proved that he came into its possession with actual knowledge of the defenses or that he was guilty of bad faith in taking it. The circumstance upon which the jury rested its finding does not show actual notice or bad faith, or that the plaintiff is without the protection of a holder in due course.
The judgment is reversed, and the cause remanded with directions to enter judgment for the plaintiff.
West, J.: Dissenting. | [
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The opinion of the court was delivered by
Mason, J.:
The defendant appeals from a judgment in favor of the plaintiffs for commissions in negotiating sales of his lands. A reversal is asked upon the ground that the evidence did not support a finding that the sales were due to the efforts of the plaintiffs. The defendant relies upon the fact that the purchasers, as witnesses for the plaintiffs, testified that they knew of the defendant wishing to sell the property, and talked with him directly, before having any communication on the subject with the plaintiffs. That is not necessarily fatal to the judgment. The defendant admitted on the stand that he had listed the lands with the plaintiffs, but asserted that the prices named were net to him, there being no agreement that he was to pay a commission. There was evidence that one purchaser asked the defendant if he would take $80 an acre for a tract, and was referred to the plaintiffs; that the deal was closed at $100 an acre, the agreement for that amount being made by the buyer and one of the plaintiffs. The plaintiffs testified that they negotiated the sales. It was shown that they talked with'the purchasers on the subject before the deals were agreed to. The question whether they were the procuring cause of the sales was one of fact for the determination of the jury and the trial-court.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a father, to recover damages resulting from an injury sustained by his minor daughter, in a collision between the defendant’s automobile and a horse-driven cart in which the daughter was riding. The plaintiff prevailed, and the defendant appeals.
The error assigned is that the court declined to render judgment for the defendant on the following special findings of fact returned by the jury, which tell the story of the accident:
“1. Q. What kind of an animal was Frances Tucker driving on the day and at the time of the accident, and how old was it? A. Four-year-old mare.
“2. Q. Was such animal (a) Dangerous to drive? A. No. (b) Being driven for the purpose of breaking? A. Yes. (c) Unmanageable when startled? A. No.
“3. Q. Did Frances Tucker drive said colt out upon the public highway with plaintiff’s knowledge and consent? A. General consent.
“4. Q. Before he attempted to pass the colt and cart did defendant give signal of his intention to pass? A. Yes.
“5. Q. After the Tucker girl had notice of defendant’s desire to pass, by his tooting horn, did they give any of the road? If so,'how much? A. Not until after passing culvert, and gave half of beaten track.
“6. Q. As defendant tried to pass, did colt shy or turn, and throw one wheel of cart against fender of car? A. Don’t know.
“7. Q. At time of accident was defendant’s car entirely to the west of the beaten tracks of the road? A. No.
“8. Q. If jmu should answer question No. 7 in the negative, then state just where defendant’s car was with reference to the beaten tracks of the road? A.- On left beaten wheel track.
“9. Q. What was the width of the roadway where the accident happened? A. About 30 feet.
“10. Q. How far north of the culvert did the accident happen? A. About 20 feet.
“11. Q. Was the roadway where the accident happened fairly smooth so that the nature of the ground permitted turning out to allow car to pass? A. Yes.
“13. Q. If you should find the defendant, Mr. Lyons, guilty of any negligence, state fully what it was. A. By being too far to the right of the road.
“14. Q. At what rate of speed was defendant running his car: (a) When he drove onto the culvert? A. 12 to 15 miles, (b) At the time of the accident? A. 7 miles.
“21. Q. Was Frances Tucker in any way negligent? A. No.
“23. Q. Was Dorcas Tucker in any way negligent? A. No.”
The evidence has not been abstracted, and is not before the court. The defendant, however, injects into his argument such portions of the evidence and such inferences from the evidence as he considers favorable to himself. The court does not have before it for review a motion to set aside findings, or to set aside the general verdict. It is simply, a motion for judgment on special findings. Those findings are as conclusive on the defendant as the allegations of a petition to which a demurrer has been lodged, and the defendant is not authorized to discuss the testimony.
The statute reads as follows:
“Whenever any person traveling with any vehicle or conveyance on any road in this state shall overtake another vehicle or conveyance traveling in the same direction and shall by sound or call indicate to the driver thereof his or her desire to pass, it shall be the duty of the driver of the vehicle or conveyance in front, if the nature of the ground or the condition of his load will permit it, to promptly turn to the right of the center of the road and the driver of the vehicle or conveyance behind shall then turn to the left of the center of the road and pass by without interfering or interrupting, and the driver of said vehicle or conveyance passing shall not return to the center of the road until at least thirty (30) feet ahead of the vehicle or conveyance passed.” (Gen. Stat. 1915, § 507.)
The jury believed the driver of the cart should be excused from promptly turning to the right at signal of the defendant’s horn, because of the nature of the ground. It was necessary to cross the culvert first. The driver then complied with the law. The defendant did not comply with the law. While he turned to the left, he did not turn far enough to the left to pass without interfering with the cart, although the nature of the ground was such that he might have done so.
The defendant makes the remarkable assertion that the 8th finding means the right wheel of the automobile was on the left wheel track of the road. If that had been true, the accident would not have happened. If the findings were ambiguous, they would be interpreted in a manner to uphold, and not to destroy, the general verdict; but findings eight and thirteen make perfectly clear the nature of the defendant’s fault.
The defendant complains that his motion to make the petition more definite and certain was not sustained. He fails, however, to indicate that he was surprised or misled or prejudiced in any way, in making his defense.
The judgment of the district court is affirmed. | [
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Pierron, J.:
Brenda Swickard appeals the decision of the Workers Compensation Appeals Board (Board) affirming the decision of the administrative law judge (ALJ) to limit her permanent partial disability benefits to her functional impairment rating. Swickard claims die Board erred in concluding she was not entitled to an award based on work disability. We affirm.
In November 1994, Swickard began working as a certified nurses’ aide at Meadowbrook Manor (Meadowbrook) earning $7.40 per hour. Due to difficulty in finding transportation, she was unable to work the first day shift. She made an arrangement with the director of nursing that allowed her to work the second shift and arrive approximately an hour later than other employees.
In March 1995, Swickard injured her back while transferring a resident from a recliner to a wheelchair. Swickard continued to work for several days after the accident and received treatment from Dr. LyGrisse and Dr. Sparks as authorized by Meadowbrook. She also sought treatment from Dr. Scharenberg, her personal chiropractor.
Dr. LyGrisse and Dr. Sparks released Swickard to return to work under a light-duty restriction. Dr. Scharenberg recommended Swickard take a week off work. Approximately one week after the accident, Swickard informed Meadowbrook’s administrator, William Fisher, of Dr. Scharenberg’s advice and was given permission to take the time off. Swickard returned to Meadowbrook a week . later and discovered her name had been removed from the second-shift work schedule.
Fisher and the director of nursing informed Swickard that Meadowbrook could accommodate her medical restrictions if she worked a modified duty during the first shift. Jeanie Montgomery, the administrator of Meadowbrook, testified it was Meadowbrook’s policy to offer injured employees work on the first shift because more workers were scheduled, allowing an injured employee to work within his or her restrictions. Montgomery also testified injured employees worked the second shift only if an appropriate position was available. She testified an appropriate position had not been available for Swickard since she was hired as administrator in October 1995.
Swickard did not accept the offer because of her transportation problems. She testified she and her husband worked in cities other than where they resided and had only one car. She stated that because of her husband’s work schedule, she could not get to Meadowbrook during the first shift.
On April 17,1995, Meadowbrook sent a letter renewing its offer to work the modified duty during the first shift and indicated the offer was continuing. Swickard again turned down the offer and. in May, filed an application for a hearing with the Division of Workers Compensation.
Swickard’s back pain worsened and Dr. Sparks referred her to Dr. Amrani, an orthopedic surgeon. Dr. Amrani recommended surgery. Zurich Insurance Company (Zurich) did not authorize Dr. Amrani and referred her to Dr. Stein, a neurosurgeon. Dr. Stein believed surgery was not necessary and recommended physical therapy and epidurals. In September 1995, Zurich sent Swickard to Dr. Munhall, a physical rehabilitation expert, who released her in November to return to light-medium capacity work.
In December 1995, a preliminary hearing was held to determine a dispute over the authorization of medical treatment, the payment of outstanding medical bills, and temporary total disability benefits. The ALJ ordered Swickard to be examined by an independent physician. Dr. Brown, an orthopedic surgeon, conducted the examination and later became authorized to treat her condition. In April, Dr. Brown released her to return to work concluding she had reached her maximum improvement. He stated she did not require restrictions on bending or twisting activities, but was restricted from lifting 60 pounds occasionally and lifting 30 pounds frequently:
Meadowbrook sent a letter to Dr. Brown, along with a description of the duties of a nurses’ aide assigned to modified duty, asking him to designate which duties Swickard was capable of performing. Dr. Brown indicated Swickard was capable of performing all the duties listed. In May 1996, Meadowbrook telephoned Swickard and sent her a letter offering a modified work assignment at $7.40 per hour on the first shift until she was able to return to normal duties. Swickard again turned down the offer explaining her transportation problem. Montgomery testified Swickard stated she could not work first shift because the engine in the car had blown up.
Swickard went to Dr. Zimmerman, a medical consultant for the Social Security Administration, for an evaluation in preparation for the hearing. Dr. Zimmerman concluded Swickard had a 12% impairment rating as a result of the accident. He also recommended that Swickard be permanently restricted from lifting 20 pounds occasionally, 10 pounds frequently, and from bending and stooping activities.
The regular hearing was held in April 1997. The parties stipulated that Swickard’s accident occurred out of and in the course of employment and that she had a 9% impairment rating to tire body as a whole. Swickard testified she had not worked for any other employer since leaving Meadowbrook. She stated she applied for unemployment in March 1995 and told the unemployment personnel she was willing and able to work. Swickard testified she performed house cleaning and babysitting duties for her sister and applied with 4 separate employers since Dr. Brown released her but had not found employment. She also stated she requested employment during the second shift at Meadowbrook 3 or 4 times and looked for work in the paper every week.
The ALJ issued an award in September 1997, finding Swickard failed to attempt to perform the accommodated work offered by Meadowbrook and limited her recovery of benefits to her 9% functional impairment rating. Swickard appealed to the Board. The Board affirmed the award entered by the ALJ. Swickard appeals the Board’s decision.
Swickard argues the Board’s failure to enter an award for work disability is contrary to the uncontroverted evidence. Swickard claims Meadowbrook’s offer of accommodated employment on the first shift was not reasonable because Meadowbrook knew she only had transportation to work during the second shift. She argues she did not refuse the accommodated position, rather she was not capable of accepting it due to her transportation problem.
Meadowbrook and Zurich (respondents) contend the Board properly applied the presumption of no work disability because Swickard refused accommodated employment at a comparable wage. They argue the presumption applied because Swickard’s reason for refusing the accommodated position was unrelated to her physical impairments. Respondents claim Meadowbrook was not required to accommodate her transportation problem and she had not lost the capacity to earn comparable wages. They also contend Swickard’s failure to make an attempt to return to work and failure to obtain post-injury work demonstrate an attempt to take advantage of the workers compensation system.
The ALJ indicated the main issue in the case was whether Meadowbrook was required to offer accommodated work on a specific shift. The ALJ found Meadowbrook extended an offer of employ ment within Swickard’s medical restrictions at a comparable wage. The ALJ concluded Meadowbrook was not required to accommodate Swickard’s transportation problem and her failure to attempt the accommodated work implicated the principles set forth in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
In its final order, the Board stated it adopted the ALJ’s findings of fact and conclusions of law. It agreed Swickard’s refusal to accept an accommodated position invoked the Foulk principles. One Board member dissented, concluding the Foulk decision did not apply because Swickard was justified in declining the first shift position due to transportation problems and the evidence did not establish Swickard was attempting to take advantage of the system.
The Board’s findings of fact will be upheld if those findings are supported by substantial competent evidence. Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 317, 944 P.2d 179 (1997). On appeal, questions of law pertaining to workers compensation are subject to unlimited review. Brigham v. Dillon Companies, Inc., 22 Kan. App. 2d 717, 718, 921 P.2d 837 (1996), rev. on other grounds 262 Kan. 12, 935 P.2d 1054 (1997).
K.S.A. 44-510e(a) governs the award of permanent partial general disability benefits. Prior to 1993, this statute set forth a presumption against disability benefits if an employee engaged in work for wages comparable to the gross weekly wage earned by the employee at the time of the injury. See Copeland v. Johnson Group, Inc., 24 Kan. App. 2d at 312. Although the language in the applicable version of the statute has changed, the law surrounding the presumption has not. See Lowmaster v. Modine Mfg. Co., 25 Kan. App. 2d 215, 217, 962 P.2d 1100 (1998).
In Foulk, this court considered whether the presumption of no work disability applied to cases where the worker has the ability to engage in work at a comparable wage but does not do so. This court recently discussed the Foulk decision in Lowmaster v. Modine Mfg. Co.:
“In Foulk v. Colonial Terrace, an employee refused an employer’s offer of accommodated employment and then claimed that she was entitled to work disability. 20 Kan. App. 2d at 280. The employee argued that the presumption of no work disability does not apply if a worker has the ability to engage in such work but chooses not to do so. 20 Kan. App. 2d at 283.
“This court found that to construe K.S.A. 44-510e(a) in this manner would be unreasonable where the proffered job is within the worker’s ability and the worker has refused to even attempt the job. 20 Kan. App. 2d at 284. Further, this court found that the legislature clearly did not intend for a worker to receive compensation where the worker is capable of earning nearly the same wage as his or her pre-injury wage. 20 Kan. App. 2d at 284. More importantly, this court stated that ‘it would be unreasonable ... to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system.’ 20 Kan. App. 2d at 284." 25 Kan. App. 2d at 217.
In Copeland v. Johnson Group, Inc., this court expanded the Foulk decision stating:
“In attempting to harmonize the language of K.S.A. 44-510e(a) with the principles of Foulk, we find the factfinder must first make a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre- and post-injury wages based on the actual wages can be made. This may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.
“If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.” 24 Kan. App. 2d at 320.
In Cooper v. Mid-America Dairymen, 25 Kan. App. 2d 78, 82, 957 P.2d 1120, rev. denied 265 Kan. 884 (1998), this court stated that under Foulk and Copeland, where a claimant has the ability to earn wages but is not doing so, an inquiry must be made in the good faith of the claimant in seeking employment. “An effort that amounts to nothing more than a sham or token effort will not suffice.” 25 Kan. App. 2d at 82.
Evidence in the record indicates Meadowbrook offered Swickard employment at a comparable wage within her restrictions during a different shift. The testimony of Dr. Brown indicated Swickard was capable of performing all the duties required by the accommodated position. The testimony of other physicians also indicated Swickard was capable of returning to work under certain restrictions. Evidence in the record also indicates Swickard made some efforts to find a job after her injury but failed to do so.
Neither the Board nor the ALJ determined whether Swickard’s efforts in returning to Meadowbrook or finding new employment were made in good faith. Nevertheless, Swickard had the burden to overcome the presumption that she had no work disability. Swickard explained her transportation problem was due to the fact she and her husband only had one vehicle. Swickard refused to accept the accommodated employment, making no attempt to do the work. The Board, therefore, could properly conclude the policy considerations outlined in Foulk applied.
“Whether framed in terms of the ‘good faith’ test articulated in Copeland, or the policy considerations outlined in Foulk, the result is the same. An employee who is capable of accommodated work must, at a minimum, attempt to do such work. A mere refusal to do the work is insufficient to allow the employee to circumvent the provisions of K.S.A. 44-510e(a).” Lowmaster, 25 Kan. App. 2d at 219.
Evidence indicating Meadowbrook’s offer was unreasonable or made in bad faith is not uncontroverted as Swickard suggests. Montgomery testified it was Meadowbrook’s policy to offer injured employees a position on the first shift. She also stated injured employees worked the second shift, but only if an appropriate position was available. Further, Meadowbrook offered the accommodated work on several occasions.
The ALJ concluded Swickard failed to meet her burden to prove Meadowbrook’s offer of accommodated work was unreasonable or not made in good faith. “This court may not reweigh the evidence presented at the agency hearing or determine the weight and credibility of the witnesses’ testimony.” Copeland, 24 Kan. App. 2d at 316-17.
Swickard’s reason for not taking the proffered accommodated position was her transportation problem, which had nothing, to do with her physical ability to perform the work. Although the employer was required to offer reasonable accommodations to deal with her physical problems, it was not required to make unusual efforts to accommodate her transportation problems.
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Buchele, J.:
On July 22, 1990, Patricia Grimmett sustained injuries as the passenger in a one-car accident. The driver, Michael Burke, hit a light pole while allegedly driving under the influence of alcohol and/or drugs. On the date of the accident, Burke had picked up the car from Lewis Toyota in Topeka, Kansas, allegedly to deliver the car to S & W Auto Sales Co. (S & W) in Harrisonville, Missouri.
Grimmett filed suit to recover for her injuries against Burke, Lewis Toyota, and S & W (Grimmett I). S & W filed a motion for summaiy judgment, asserting that it had no liability because it did not have an ownership interest in the car and Burke was not its agent. The trial court granted S & W’s motion for summary judgment. Grimmett filed a motion to alter or amend the summary judgment decision, which the trial court denied. On October 1, 1992, Grimmett filed a notice of appeal of the summary judgment decision and order denying her motion to alter or amend.
On October 26,1992, the trial court granted Grimmett’s motion to voluntarily dismiss the case (Grimmett I) without prejudice. The appeal of the district court rulings granting summary judgment to S & W and denying Grimmett’s motion to alter or amend was dismissed by the trial court “with prejudice” on S & W’s motion on April 6, 1993.
On March 15, 1993, Grimmett refiled her suit against Burke, Lewis Toyota, and S & W, alleging the same claims made in Grimmett I. See Grimmett v. Burke, 21 Kan. App. 2d 638, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996). This case is hereafter referred to as Grimmett II.
S & W responded to Grimmett II with a motion to dismiss, asserting that the summaiy judgment decision in Grimmett I barred plaintiff from bringing the same claims in Grimmett II on the grounds of res judicata. In the alternative, S & W filed an answer to Grimmett II. The trial court denied S & W’s motion to dismiss, ruling that its orders granting S & W summaiy judgment and denying Grimmett’s motion to alter or amend were not final orders and, as such, Grimmett’s claims against S & W in Grimmett II were not barred by the doctrines of res judicata and collateral estoppel. The trial court ultimately granted S & W’s motion for summaiy judgment on the same grounds as its order in Grimmett I and also dismissed or granted summary judgment to the other defendants. Grimmett appealed. It is important to note that S & W did not cross-appeal the trial court’s denial of its motion to dismiss asserting the summary judgment granted in Grimmett I was res judicata. This court reversed the trial court’s decision granting summaiy judgment to S & W and remanded the case for a trial.
After the case was remanded to the trial court, S & W filed a motion for summary judgment, renewing its res judicata claim. The trial court reconsidered its earlier decision and granted S & W’s motion. Grimmett appeals.
We must first consider whether S & W is precluded from reasserting its res judicata defense because it failed to cross-appeal the trial court’s denial of its motion to dismiss. There is no direct authority on this question in Kansas.
We begin our analysis with the general rule that a decision of the trial court does not become a final decision until the period for appeal has run and the case has not been appealed or the case has been appealed and finally adjudicated. See K.S.A. 60-254(a); Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 872, 936 P.2d 297, rev. denied 262 Kan. 962 (1997). If an appeal is dismissed, the lawsuit has ended. Decisions of the trial court become final and conclusive unless corrected or modified on appeal. See Wirt v. Esrey, 233 Kan. 300, 308, 662 P.2d 1238 (1983).
A denial of a motion for summary judgment may be reviewed on appeal when asserted as a cross-appeal. See K.S.A. 60-2103(h). It is, of course, necessary that a cross-appeal be perfected in order to obtain appellate review of the adverse decision. Vaughn v. Murray, 214 Kan. 456, 462, 521 P.2d 262 (1974). If no cross-appeal is filed, the trial court’s undisturbed rulings would become a final decision when the case is finally adjudicated. Grimmett argues that S & W waived its right to raise the issue of res judicata upon remand to the trial court as it failed to cross-appeal the trial court’s previous denial of that issue.
In Grimmett II, the appellate court did not address the trial court’s ruling on S & W’s motion to dismiss on the issue of res judicata. The trial court’s decision granting summary judgment was reversed, and the case was remanded on other grounds. 21 Kan. App. 2d at 652-53. At that point, the case had not been finally adjudicated and was fully before the trial court.
The statute which deals with judgments upon multiple claims is K.S.A. 60-254(b). This statute provides the court with procedural latitude. Until a final judgment is entered, “the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” K.S.A. 60-254(b). The trial court retains the inherent power to review its own proceedings to correct errors or prevent injustices until a final judgment is entered. City of Wichita v. Rice, 20 Kan. App. 2d 370, 376, 889 P.2d 789 (1995); see generally Speer v. Dighton Grain, Inc., 229 Kan. 272, 279, 624 P.2d 952 (1981).
We conclude that S & W’s failure to assert a cross-appeal does not bar it from reasserting its res judicata defense upon remand because a final judgment had not been entered.
The next question is whether the trial court properly ruled that the summary judgment decision in Grimmett I was res judicata between the parties in Grimmett II. Application of res judicata is a question of law over which this court has plenary review. See City of Manhattan v. Huncovsky, 22 Kan. App. 2d 189, 191, 913 P.2d 227, rev. denied 260 Kan. 992 (1996). The Kansas Supreme Court has held that three factors must be present for the application of res judicata principles: (1) The first suit must have proceeded to a final judgment on the merits; (2) the parties must be the same or in privity; and (3) the suits must be based on the same cause of action. Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 397, 949 P.2d 602 (1997). See Lummus Company v. Commonwealth Oil Refining Company, 297 F.2d 80, 89 (2d Cir. 1961), cert. denied 368 U.S. 986 (1962) (quoting Comm’rs of Wilson Co. v. McIntosh, 30 Kan. 234, 238,1 Pac. 572 [1883]). “[A] question once clearly and fully decided with right of special and separate review may be res adjudicata, even though such decision was only an order upon a motion.” 30 Kan. at 240.
The Restatement (Second) of Judgments adopted the holding of Lummus, suggesting that unless a judgment is avowedly tentative, the preclusive effect of a judgment should be determined by considering: (1) whether the parties were fully heard, (2) whether the court supported its decision with a reasoned opinion, and (3) whether the decision was subject to appeal or, in fact, reviewed on appeal. Restatement (Second) of Judgments § 13, comment g (1980).
Since the Lummus decision and publication of the Restatement (Second) of Judgments, several federal circuits and state courts have relaxed the definition of finality for preclusion doctrine purposes. See, e.g., Wong v. Smith, 961 F.2d 1018 (1st Cir. 1992) (invoking res judicata); John Morrell & Co. v. Local Union 304A, 913 F.2d 544 (8th Cir. 1990) (invoking collateral estoppel); Siemens Medical Sys. v. Nuclear Cardiology Sys., 945 F. Supp. 1421 (D. Colo. 1996) (invoking collateral estoppel); Ossman v. Diana Corp., 825 F. Supp. 870 (D. Minn. 1993) (invoking collateral estoppel); Davis v. Davis, 663 A.2d 499 (D.C. 1995) (invoking collateral estoppel); Cunningham v. State, 61 Wash. App. 562, 811 P.2d 225 (1991) (invoking collateral estoppel); Carpenter v. Young, 773 P.2d 561 (Colo. 1989) (invoking collateral estoppel).
Clearly, plaintiff s claims in Grimmett I and Grimmett II were based on the same automobile accident and involved the same parties. In Grimmett I, the issue of S & W’s liability was conclusively determined by the trial court as evidenced by the court’s denial of Grimmett’s motion to alter or amend the summary judgment decision. In making its decision, the trial court provided a well-reasoned opinion articulating the uncontroverted facts and their associated legal conclusions. The parties filed memorandums in support of their positions and made oral arguments at a hearing on the summary judgment motion, demonstrating the opportunity to fully litigate the issue. Grimmett filed a notice of appeal for the summary judgment decision in Grimmett I. Although the trial court dismissed the appeal with prejudice on S & W’s motion, it was because Grimmett failed to prosecute the appeal.
We believe that preclusion doctrines should be applied when a party voluntarily dismisses a case after an adverse ruling has been made on a summary judgment motion. Summary judgment procedure, at least from the defendant’s point of view, would become a virtual nullity if plaintiffs could obtain “overs” by dismissing and refiling a case rather than fully litigating an adverse summary judgment decision through the appellate process. See Wong, 961 F.2d at 1020.
The Kansas Supreme Court in Stanfield, 263 Kan. at 396, found that Kansas law does not appear to differ significantly from the federal law regarding preclusion doctrines. Those principles have been stated by the United States Supreme Court in Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980):
“ ‘The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel. Under res judicata [or claim preclusion], a final judgment on the merits of an action precludes the parties or their privies from relitigating issues [or claims] that were or could have been raised in that action. Cromwell v. County of Sac, 94 U.S. 351, 352[, 24 L. Ed. 195 (1876)]. Under collateral estoppel [or issue preclusion], once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Montana v. United States, 440 U.S. 147, 153[, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979)].’ 449 U.S. at 94.
“ ‘The general principle announced in numerous cases [regarding issue preclusion] is that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue, and actually determined by them.’ Southern Pacific Railr’d v. United States, 168 U.S. 1, 48-49, 42 L. Ed. 355,18 S. Ct. 18 (1897).” 263 Kan. at 396-97.
Federal courts treat summary judgment as a judgment on the merits. 263 Kan. at 400. And federal courts recognize that courts need not apply the same definition of finality in applying preclusion doctrines as for appeal. 18 Wright, Miller & Cooper, Federal Practice and Procedure: Res Judicata § 4434 (1981).
A distinction can be made for different definitions for the finality requirement based upon public policy considerations that support res judicata and the single appeal rule. Res judicata is intended to protect parties from the cost and vexation of multiple suits on the same claim. The single appeal rule, on the other hand, was designed to discourage the piecemeal review of an action. Recause the underlying purposes of the two are vastly different, finality need not be defined the same for both. The Kansas Supreme Court recognized in 1883: “[T]here is a growing disposition to enlarge the scope of the doctrine of res adjudicata, and to place more regard on the substance of the decision than on the form of the proceedings.” McIntosh, 30 Kan. at 238.
We conclude a trial court’s decision on summary judgment satisfies the final judgment on the merits requirement for purposes of claim preclusion when the parties were fully heard, the decision is made with a reasoned opinion, and the ruling is subject to appeal or, in fact, reviewed on appeal. See Restatement (Second) of Judgments § 13, comment g (1980); McIntosh, 30 Kan. at 239. Although interlocutory when rendered, the trial court’s decision became final when the appeal was dismissed.
We are mindful that our decision here has the effect of reinstating a trial court decision that was reversed by this court. But, in Grimmett I, plaintiff had her day in court and the opportunity to pursue an appeal. For whatever reasons, she abandoned it. Voluntaiy dismissal and refiling a claim after an adverse ruling should not give a losing party a “fresh start” or “second opinion.” Failure to fully litigate, including appeal, should be construed as an acquiescence to the court’s decisions. The general rule which provides that once a party has contested an issue the parties are bound by the result of the contest and that matters once tried shall be forever settled between the parties should prevail. As the United States Supreme Court stated over 65 years ago:
“The predicament in which respondent finds himself is of his own making .... [W]e cannot be expected, for his sole relief, to upset the general and well-established doctrine of res judicata, conceived in the light of the maxim that die interest of the state requires diat there be an end to litigation — a maxim which comports widi common sense as well as public policy. And the mischief which would follow die establishment of a precedent for so disregarding this salutary doctrine against prolonging strife would be greater than the benefit which would result from relieving some case of individual hardship. [Citation omitted.]” Reed v. Allen, 286 U.S. 191, 198-99, 76 L. Ed. 1054, 52 S. Ct. 532 (1932).
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Larson, J.:
This appeal involves the question of the extent of insurance coverage for a nonresident who drives his vehicle into Kansas, parks it on private property, subsequently drives a Kansas resident’s motor vehicle, has an accident, and is injured. The question we must resolve is this; Does the Kansas Automobile Injuiy Reparations Act (KAIRA), K.S.A. 40-3101 et seq., require the insurer of the Kansas vehicle or the insurer of the nonresident’s vehicle to pay personal injuiy protection (PIP) benefits?
Facts
The facts are not in dispute. On June 30, 1998, John Morris was the owner of a 1996 Jeep Cherokee which was titled and registered in Missouri. Morris drove his vehicle into Kansas on the public highways and roads and parked it on private property in Ottawa, Kansas. Later on the same date, Morris was driving a 1995 Jeep owned by Philip Carmack when he was involved in an automobile accident in Kansas. At the actual time of the accident, Morris’ 1996 Jeep was still parked on private property in Kansas.
Morris’ 1996 Jeep was insured under a Missouri insurance policy issued by Progressive Classic Insurance Company or Progressive Northwestern Insurance Company (Progressive). Progressive is authorized and admitted to transact business in Kansas. However, Morris’ policy from Progressive does not contain a specific endorsement for PIP benefits because such is not required in Missouri. Whether Progressive was required to provide PIP coverage to Morris under the policy covering Morris’ 1996 Jeep at the time of the accident in this case is central to this appeal.
The 1995 Jeep owned by Carmack that Morris was driving at the time of the accident was insured under a policy issued by American Standard Insurance Company. Morris submitted a claim for PIP benefits to American Standard, but American Standard denied it had any obligation to provide coverage. American Standard claimed Morris was the owner of a motor vehicle for which insurance coverage was required in Kansas under the KAIRA and that American Standard was, therefore, not responsible for paying any benefits to him.
The trial court agreed with American Standard and granted its motion for summary judgment, from which Morris now appeals.
There is no question that Morris is entitled to PIP benefits from one insurer or the other. The question, therefore, is: Which one of the two carriers is required to provide such benefits?
Standards of Review
Resolution of this issue requires statutory interpretation of the KAIRA, which is an issue of law over which this court exercises unlimited review. In construing statutes, the intent of the legislature is paramount and is determined from a general consideration of the entire act, with effect to be given to every part of the act wherever possible. As far as practicable, it is the duty of the court to reconcile the various provisions of the Act to make them harmonious, consistent, and sensible. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
In determining legislative intent, the court may consider the history of the legislation, the purpose to be accomplished, and the effect the statute will have under the various constructions suggested. State v. Le, 260 Kan. 845, Syl. ¶ 3, 926 P.2d 638 (1996). “The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, Syl. ¶ 3, 552 P.2d 1363 (1976).
When a statute is susceptible to more than one construction, it should be given the construction which gives expression to its intent and purpose, even though such a construction may not be within the strict literal wording of the statute. Manzanares v. Bell, 214 Kan. 589, Syl. ¶ 15, 522 P.2d 1291 (1974). By the same token, when a statute is plain and unambiguous, the appellate court must give effect to the intent of the legislature as expressed instead of determining what the law should or should not be. West v. Collins, 251 Kan. 657, 661, 840 P.2d 435 (1992).
Statutory provisions
Numerous provisions of the KAIRA are relevant to the arguments of the parties and the reasoning of the trial court in this case. We begin with K.S.A. 40-3102, which sets forth the purpose of the KAIRA as follows:
“The purpose of this act is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided herein.”
To accomplish this purpose, the KAIRA provides for PIP benefits to be included in every policy of motor vehicle liability insurance. K.S.A. 40-3107(f). PIP benefits mean “the disability benefits, funeral benefits, medical benefits, rehabilitation benefits, substitution benefits and survivors’ benefits, required as provided in motor vehicle liability insurance policies pursuant to this act.” K.S.A. 1998 Supp. 40-3103(q).
K.S.A. 1998 Supp. 40-3104(a) states: “Every owner shall provide motor vehicle liability insurance coverage in accordance with the provisions of this act for every motor vehicle owned by such person” with certain nonrelevant exceptions. The Act’s policy of requiring all motor vehicles in Kansas to be insured is further revealed by K.S.A. 1998 Supp. 40-3104(b), which states: “An owner of an uninsured motor vehicle shall not permit the operation thereof upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act,” and by K.S.A. 1998 Supp. 40-3104(c), which states: “No person shall knowingly drive an uninsured motor vehicle upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act.” Penalties, including loss of driving privileges and criminal prosecution, are provided in the KAIRA for the failure to maintain the required insurance. K.S.A. 1998 Supp. 40-3104(g), (h), (i), and (j).
Of prime importance to the facts of this case is K.S.A. 40-3106, which specifically addresses nonresident motorists and includes a provision designed to increase compliance with the Act for those who operate vehicles in Kansas:
“(a) A motor vehicle owned by a nonresident shall not be operated in this state upon a highway or upon property open to use by the public, unless a motor vehicle liability insurance policy meeting the requirements of K.S.A. 40-3107, and amendments thereto, is in effect for such vehicle, or such nonresident has qualified as a self-insurer. . . . Whenever the privilege of a nonresident operating a motor vehicle in this state is suspended for failure of the owner to maintain financial security, in effect, the director shall report such violation to the motor vehicle administrator in the state wherein the vehicle is registered. . . .
“(b) Every insurance company authorized to transact the business of motor vehicle liability insurance in this state shall file with the commissioner as a condition of its continued transaction of such business within this state a form approved by the commissioner declaring that its motor vehicle liability policies, wherever issued, shall be deemed to provide the insurance required by K.S.A. 40-3107, and amendments thereto, when the vehicle is operated in this state.” (Emphasis added.)
The provisions of K.S.A. 40-3107, referencedin 40-3106, require policies to provide insurance to the person named and any other person, as insured, using such vehicle with the express or implied consent of such named insured, “against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of any such vehicle within the United States of America or the Dominion of Canada, subject to the limits stated in such policy:” K.S.A. 40-3107(b). Insurance policies covered by K.S.A. 40-3107 are also required to contain an agreement or endorsement that the insurance is provided in accordance with the coverage required by the Act, and shall, among other things, include personal injury protection benefits to the named insured, to persons operating the insured motor vehicle, and to passengers for loss sustained by any such person as a result of injury, not to exceed the limits prescribed for such benefits. K.S.A. 40-3107(d), (f).
Under the above provisions, K.S.A. 40-3106(a) made it unlawful for Morris to drive his 1996 Jeep into Kansas unless it was insured by a policy that complies with the obligations of K.S.A. 40-3107. And, by virtue of K.S.A. 40-3106(b), Progressive’s policy covering Morris’ Missouri-registered Jeep is deemed to provide the necessary insurance when the vehicle is operated in the State of Kansas.
An additional provision of the KAIRA, K.S.A. 40-3109, is also of prime importance. It relates to liability for payment by two or more insurers and provides that
“the insurer of the owner of a motor vehicle covered by a policy of motor vehicle liability insurance meeting the requirements of the act shall pay any personal injury protection benefits which are required to be provided by this act . . . sustained in this state by any other person while occupying such motor vehicle [provided] the injured person is not the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.” (Emphasis added.) K.S.A. 40-3109(a)(3).
Morris is the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under the KAIRA, but this fact alone does not resolve this case because of the “operated” wording of K.S.A. 40-3106.
Although Farm & City, 220 Kan. 325, Syl. ¶ 1, involved residents rather than nonresidents, that case explained: “The purpose of the Kansas automobile injury reparations act is to make personal injury protection insurance mandatory by requiring that every owner of a motor vehicle obtain first party coverage for personal injury protection benefits payable by his own insurance company.” Farm & City involved an owner of an insured automobile who died in an automobile accident while riding as a passenger in another insured automobile, and the philosophy of the KAIRA was stated in the following manner:
“Throughout the act it appears the legislature intended every owner of a motor vehicle to carry his own PIP insurance and to look to his own company for payment. Insurance is mandatory for each owner of a motor vehicle. In tire act the legislature made certain that every owner of a vehicle could obtain the required PIP insurance for it set up an assigned claims plan. See section 40-3116. Under sub-section (c) of section 40-3116 the legislature sought to require compliance with the mandatory insurance provisions by providing that if you fail to have a policy in effect and own a motor vehicle for which insurance is required you are not entitled to personal injury protection benefits.” 220 Kan. at 334.
Farm & City’s interpretation of K.S.A. 40-3109(a)(3) correctly focuses upon the issue of whether Morris is the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy was required under the Act, so that he would then be required to look to his own insurer (Progressive) rather than American Standard, notwithstanding the restrictive “operated” language of K.S.A. 40-3106.
The trial court’s decision
The trial court phrased the issue in the following manner: “[I]s a nonresident owner of an automobile parked in Kansas required to have vehicle liability insurance?”
The court quoted and found most applicable K.S.A. 40-3106(a) (the “nonresident operating a motor vehicle in this state” provision); K.S.A. 40-3106(b) (the provision respecting the contents of insurance policies issued by companies transacting motor vehicle liability insurance business in Kansas); and K.S.A. 40-3102 (stating the purpose of the act as “compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles”).
Because both parties had directed the court’s attention to Dreiling v. State Farm Mut. Auto. Ins. Co., 221 Kan. 851, 610 P.2d 611 (1980), the court noted that although Dreiling primarily found the obligation to insure was on the “resident” owner of a motor vehicle “registered in the State of Kansas,” it did provide some guidance. The court quoted the following provision from Dreiling:
“Registration of motor vehicles and the maintenance of liability insurance thereon are inexorably bonded together by the act. By so doing the likelihood of abidance with the act is greatly increased, as the display of current license tags provides visual evidence of compliance, and the absence of license tags or die display of outdated tags on a vehicle does not long go unnoticed.” 227 Kan. at 854.
The trial court admitted that Morris was correct in stating there was no requirement for every owner of every motor vehicle to be insured, but found that Dreiling made it clear that every owner of every motor vehicle “ ‘required to be registered in Kansas’ must maintain insurance on the vehicle during the period of registration.” The trial court also stated that it is clear our statutes prohibit a motor vehicle owned by a nonresident to be operated in this state upon a highway or upon property open to use by the public unless the owner maintains insurance on the vehicle.
The trial court was not impressed by Morris’ argument that a nonresident’s parked vehicle would no longer have an insurance requirement. Ultimately, the trial court concluded: “Like the residents of Kansas, plaintiff s legally licensed vehicle having been driven into the State was required to maintain the required insurance throughout the visit to our State.” With this finding, the trial court found in favor of American Standard and held Morris was obligated to look to his own motor vehicle insurance policy (Progressive) for payment of his PIP benefits.
Morris’ contentions
In arguing that American Standard was required to pay him PIP benefits instead of Progressive, Morris raises several points. Morris stresses that the coverage of K.S.A. 40-3107 is only required to be incorporated into out-of-state insurance policies under K.S.A. 40-3106(b) “when the vehicle is operated in this state.” He argues that this language of K.S.A. 40-3106(b) means exactly what it says and requires nothing more. He acknowledges Dreiling, but concludes that Dreiling is not dispositive because, while resident owners of motor vehicles, like Dreiling, are required to maintain insurance throughout the period of registration, nonresident owners of motor vehicles are only required to have such insurance meeting the requirements of K.S.A. 40-3107 when their motor vehicles are actually being “operated in this state upon a highway or upon property open to use by the public.” See K.S.A. 40-3106(a).
Morris notes that the KAIRA does not treat residents and nonresidents alike in all respects, see, e.g., 40-3109(a)(3) (allowing only resident pedestrians to recover for injury sustained through contact with an insured vehicle), and asserts that the hmiting language of K.S.A. 40-3106 is one such instance of treating residents and nonresidents differently.
The Kansas Insurance Department wrote a letter to American Standard expressing the opinion that because Morris was not operating his out-of-state vehicle at the time of the accident, he had no insurance obligation under K.S.A. 40-3106 at the time of the accident. This letter utilizes the restrictive construction of “operating” an automobile found in Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 635, 396 P.2d 264 (1964). Morris reminds the court that an administrative agency’s interpretation of the statutes it is charged with enforcing, though not binding, is entitled to judicial deference and is accorded great weight where not erroneous as a matter of law. See State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
Finally, Morris asserts that his interpretation of the KAIRA avoids the necessity of establishing whether the nonresident’s out-of-state vehicle was located in or outside of Kansas at the time of an unrelated accident in a separate vehicle (e.g., as where a nonresident’s spouse drives the nonresident’s own vehicle back out of Kansas to go home or to go to work while the nonresident uses another car here). He notes that the location of the out-of-state vehicle could be especially problematic in the Kansas City area, where many individuals routinely cross the state line between Kansas and Missouri on a daily or even more frequent basis.
American Standards’ contentions
American Standard notes that the KAIRA is to be liberally construed to achieve the legislative purpose of providing a means of promptly compensating persons for accidental injury arising out of the ownership, operation, maintenance, or use of motor vehicles. K.S.A. 40-3102; see Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, Syl. ¶ 1, 907 P.2d 891 (1995). To this end, American Standard encourages the court to look past the literal wording of K.S.A. 40-3106 to give effect to the intent and purpose of the legislation as stated in K.S.A. 40-3102. American Standard particularly emphasizes that K.S.A. 40-3102 clearly states that one of the purposes of the Act is to provide a means of compensation for bodily injury arising from “ownership” of motor vehicles. American Standard also points to the language of Farm & City, 220 Kan. at 334, that “[insurance is made mandatory for each owner of a motor vehicle” and that “it appears the legislature intended every owner of a motor vehicle to carry his own PIP insurance and to look to his own company for payment.” Because Morris was the owner of a motor vehicle operated/driven into Kansas and located in Kansas at the time of the accident, American Standard asserts that the legislature intended Morris to have his vehicle insured in accordance with K.S.A. 40-3107 and to look to his own insurance company for coverage.
American Standard agrees with the trial court’s analysis that the requirement for nonresident drivers to have insurance does not lapse just because the vehicle is not actually being driven at the time of an accident. American Standard asserts that its interpretation has the benefits of encouraging compliance with the Act and of treating resident and nonresident owners of motor vehicles (when the nonresident’s car is still located here and thus likely to be operated here again) in the same manner when they are involved in motor vehicle accidents — both would have to look to their own insurance company for coverage.
In response to Morris’ argument that American Standard’s interpretation creates the complication of having to litigate whether the nonresident’s vehicle was located in Kansas at the time the nonresident is involved in an accident, American Standard argues that Morris’ interpretation has its own factual complication of requiring a determination of whether a vehicle owned by a nonresident was actually being driven at the time of an unrelated accident. A nonresident’s family member, for instance, might have been driving the nonresident’s car in Kansas around the time the nonresident is borrowing or is a passenger in another vehicle involved in an accident — if so, then the nonresident’s car was being operated at the time of the accident and was required to be insured in accordance with K.S.A. 40-3107.
Finally, American Standard argues that its interpretation is required to avoid a violation of equal protection rights. American Standard did not raise any equal protection arguments in the district court, see State v. Shears, 260 Kan. 823, Syl. ¶ 8, 925 P.2d 1136 (1996) (constitutional grounds raised for first time on appeal not properly before the court). And, in any event, American Standard’s suggestion that Morris’ interpretation of KAIRA would violate the Equal Protection Clause is not convincing. Because the issue was not raised below, the proper interpretation of the statute should be decided on the basis of the statutory language and the intention of the legislature; there is no need to further discuss the constitutional issue.
Morris’ counterarguments
Morris counters American Standard’s primary arguments by stating, first, that the accident did not arise out of the ownership of Morris’ Missouri-registered vehicle but, instead, out of the operation of a separate vehicle insured by American Standard. And, second, regardless of the general statement of purpose in K.S.A. 40-3102, the language of K.S.A. 40-3106(b) specifically states the circumstance under which the out-of-state policy on a nonresident’s vehicle is deemed to provide the coverage of K.S.A. 40-3107 — and that is only “when the vehicle is operated in this state.” The Kansas Legislature does not have the authority, nor did it purport through the KAIRA, to require all owners of all motor vehicles everywhere to have KAIRA-compliant insurance at all times. Under its police power, a state may regulate travel upon its public highways; the right to operate a motor vehicle upon the public highway is a privilege rather than a natural right, and such privilege is subject to reasonable regulation. Manzanares, 214 Kan. at 600-01. Morris argues that whatever may be the actual constitutional limits of this police power, the Kansas Legislature chose to limit the requirement of KAIRA-compliant insurance to those instances where nonresidents operate their vehicles in Kansas, rather than to instances where the vehicle is simply located in this state with the potential of being operated here.
Kansas cases
The overriding policy of the KAIRA of requiring injured parties to first look to their own motor vehicle insurance coverage was set forth in Farm 1? City and need not be repeated. Additionally, Farm & City made clear the KAIRA’s policy of requiring that motor vehicle insurance coverage be maintained and of encouraging compliance with the Act by denying PIP benefits to those who fail to comply with the Act’s requirements.
There is no case directly on point regarding the precise issue in our case; however, both parties point to Dreiling, which we will discuss in more detail. The issue in Dreiling was whether a person who was injured while operating a borrowed car was entitled to PIP benefits under that car’s policy given that, at the time of the accident, such person owned a car registered in Kansas but one that was uninsured and inoperable. In concluding that the injured party was not entitled to PIP benefits under the policy covering the borrowed vehicle, the Kansas Supreme Court emphasized the fact that every owner of a motor vehicle is required to provide liability insurance in accordance with the Act and that, for any vehicle registered in Kansas, there must be in effect throughout the period of registration a policy of insurance in accordance with the Act. See K.S.A. 1998 Supp. 40-3118(a), (e).
The Dreiling opinion quoted at length from Farm & City, where the court discussed the policy of the Act that every owner of a motor vehicle must carry his or her own PIP coverage and should look to his or her own insurance company for payment. Because Dreiling was himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy was required under the Act, the court concluded that he was excluded by what is now K.S.A. 40-3109(a)(3) from recovering under the policy covering the borrowed car. Had Dreiling either canceled his registration and surrendered his tags, signalling his intention not to operate his car upon Kansas roads, or complied with the Act and purchased insurance for his vehicle, he would have been able to recover PIP benefits. Because he did not comply with the Act, he was not entitled to PIP benefits. The court noted that the Act provides various sanctions for noncompliance and stated that to allow Dreiling to receive PIP benefits under the circumstances would be to “subsidize noncompliance.” 227 Kan. at 855-56.
In comparing the philosophy of Dreiling to this case, the trial court here reasoned that, just as Dreiling was required to have in effect a policy of insurance throughout tire period of registration, Morris was required to have in effect a policy of insurance in accordance with the Act throughout his stay in Kansas. The trial court found it unbelievable that the legislature would intend that the requirement of insurance applicable to a nonresident motorist bringing a vehicle into Kansas and driving or parking it would lapse the moment it was stopped or off the public roads. Morris’ out-of-state registration was active and, having driven his car into Kansas, the trial court felt it only logical to assume that the intent remained to again operate the car upon Kansas roadways, even if only to return to Missouri. As such, the trial court logically believed that Morris was the owner of a vehicle for which insurance was required under the KAIRA and that he could not, therefore, recover PIP benefits from the insurer of the vehicle he was driving at the time of the accident.
Legislative History
In an attempt to gain additional insight, we have reviewed the legislative history of K.S.A. 40-3106.
K.S.A. 40-3106 was enacted with the passage of S.B. 918 (1974). See L. 1974, ch. 193, § 6. That bill also included various other additions and changes to Kansas’ no-fault automobile insurance law, now called KAIRA. See Manzanares, 214 Kan. at 591-97 (discussing the bill and its provisions). The legislative committee comments surrounding the bill focused mostly on the legislature’s intention to make the Act constitutionally sound in anticipation of review by the Kansas Supreme Court, which occurred in Manzanares. Manzanares was decided after the bill was made law and upheld the constitutionality of the Act. See Minutes of the Senate Committee on Commercial and Financial Institutions, January 30, 1974 (with attached Position Paper by the Kansas Trial Lawyers Association); Revised Supplemental Information on Senate Bill 918, as Reported by House Committee of the Whole, 1974 Session, by Legislative Research Department.
The Act was strengthened by H.B. 2490 (1977). One of the amendments made to the Act by H.B. 2490 was the addition to K.S.A. 40-3106(a) of the language “Whenever the privilege of a nonresident operating a motor vehicle in this state is suspended for failure of the owner thereof to maintain financial security, in effect, the director shall report such violation . . . .” L. 1977, ch. 164, § 2. H.B. 2490 also added many of the penalties currently found in K.S.A. 1998 Supp. 40-3104(h) applicable to residents and nonresidents, including a provision to suspend the driving privileges of a nonresident driver operating a motor vehicle in this state who is involved in an accident where it is revealed that the driver failed to have in effect the mandatory insurance. See K.S.A. 1998 Supp. 40-3104(h)(l)(C) and (D).
The comments surrounding H.B. 2490 noted that the bill was prompted by concern over the substantial number of motorists on Kansas’ highways who were driving without insurance. See Minutes of the Senate Committee on Commercial and Financial Institutions, March 17, 1977; Supplemental Information on HOUSE BILL 2490 as Amended by House Committee on Insurance, 1977 Session, by Legislative Research Department. The comments note that “the purpose of this bill was to tighten up enforcement of the automobile no-fault insurance laws,” including the use of added penalties for noncompliance. See Minutes of the Senate Committee on Commercial and Financial Institutions, March 17, 1977; Minutes of the House Committee on Insurance, February 23, 1977. Steven Wiechman, the acting Director of the Division of Motor Vehicles, was noted as commenting to the Senate Committee on Commercial and Financial Institutions that the bill was intended to make clear that “the insurance coverage required by law is continuous coverage.” See Committee Minutes, March 17,1977.
Analysis
As we analyze the specific arguments, which were well made by both parties, it is readily apparent that the nature and extent of our view of the overall policy of the KAIRA will, to a large degree, determine the result we reach. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997); In re Estate of Koch, 18 Kan. App. 2d 188, 215, 849 P.2d 977, rev. denied 253 Kan. 858 (1993). If we look only to the legislative choice of the word “operated” in K.S.A. 40-3106 and the interpretation of the term “operating” stated in Leiker, 193 Kan. at 635, Morris’ position can be sustained. (Leiker did not interpret 40-3106, but did construe the term “operation” in an insurance policy.) If, however, we look to the overall intent of the KAIRA, the wording of K.S.A. 40-3109(a)(3), the purposes of the act in K.S.A. 40-3102, and the overriding legislative desire of providing first-party insurance coverage, then the affirmance of the result reached by the trial court is required. We strongly believe the latter analysis and result is the one we must reach.
It is our responsibility to give effect to the intent of the legislature. The legislature intended that any vehicles operated in this state are to be covered by insurance in accordance with K.S.A. 40-3107.
When we look at the language of the entire Act and the background of the legislation described, it clearly requires continuous coverage and the use of penalties as a means of encouraging compliance with the act to decrease the number of uninsured drivers on Kansas roadways. K.S.A. 40-3106 requires nonresidents to have a compliant policy “in effect for such vehicle” while operating such vehicle in this state.
We share the trial court’s belief that the legislature intended for these policies of insurance to be and remain in effect and not to suddenly go “out of effect” during the periods when the vehicle might be stopped or parked in Kansas with the intention of being operated again on our roadways. The second sentence of K.S.A. 40-3106(a) speaks of “maintaining” financial security and states that “[w]henever the privilege of a nonresident operating a motor vehicle in this state is suspended for failure of the owner to maintain financial security, in effect, the director shall report such violation to the motor vehicle administrator in the state wherein the vehicle is registered.” This language implies that the legislature conceived of the insurance required for nonresidents as being maintained in an ongoing fashion, rather than only during periods of actual driving of the vehicle on a Kansas roadway.
When one looks to the wording of K.S.A. 40-3109(a)(3), it is clear to us that Morris is “the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.” This determination is not changed by the “operate” wording of K.S.A. 40-3106.
The trial court’s interpretation has a benefit to all drivers of vehicles by encouraging and compelling compliance with the KAIRA at any time that a vehicle is in this state and has the potential of being operated here.
The trial court’s interpretation treats resident and nonresidents in the same manner when they are involved in motor vehicle accidents while owning a car required to be insured under the KAIRA. Each must be required to look to their own insurance coverage.
Given the legislative history and legislative intent described earlier in this opinion, we hold the trial court reached the correct result.
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BUCHELE, J.:
McDonald’s Restaurant appeals a decision of the Workers Compensation Board (Board) holding Madie Redditt, widow of Raymond Redditt, was entitled to death benefits under K.S.A. 1998 Supp. 44-508(c)(2). Raymond died on November 16, 1995, due to personal injury by an accident arising out of and in the course of his employment.
Raymond and Madie Redditt were married on April 19, 1969, in the state of Tennessee. The couple first separated in 1972. At that time, Madie moved in with her mother who lived in Tennessee. They reunited briefly and then separated again in early 1973.
In March 1973, Madie filed for divorce in Memphis, Tennessee. At the time she filed for divorce, she was living with her mother. Shortly thereafter, Madie moved to Kansas City, Missouri, to live with her aunt. Raymond continued to five in Memphis. The last time they lived together as husband and wife was in March 1973.
From March 1973 through 1979, Madie lived with her aunt in Kansas City, Missouri. Occasionally, Madie would return to Tennessee to visit family. During these visits, she would also visit Raymond. In 1978, they discussed “getting back together” during one of her trips to Memphis. However, Madie left to go back to Kansas City to return to her employment. During the period 1973 to 1979, Madie did not seek support from Raymond.
From 1975 through 1979, Madie had sexual relations with two other men in addition to Raymond. On May 26, 1979, Madie gave birth to a son in Kansas City, Missouri. Madie testified the birth certificate was silent as to the identity of the father, because she had sexual relations with both Raymond and one of the other men during the time period she conceived. She is unable to determine which of the two men actually fathered her child.
After Jason’s birth in 1979, Madie left her job in Kansas City and moved back to Memphis to five with her .mother. After a brief period, she took up a separate residence in Memphis in 1979. Occasionally, she would have contact with Raymond in the early 1980’s. However, the two never again lived as husband and wife. The last possible physical contact she had with Raymond was in 1985, before he moved to Kansas City. The last voice contact Ma-die had with Raymond was a phone call in 1986. Raymond called her to discuss an issue concerning one of their children. Other than that one phone call, Madie had no contact at all with Raymond from 1985 until his death in November 1995. Madie had no involvement in making Raymond’s funeral arrangements.
The Board’s ruling raises two issues on appeal. First, the Board found that Raymond was the first party to leave the marital relationship and since Madie did not desert or abandon the marriage, she was entitled to the death benefits of $200,000 as the surviving spouse. Second, the Board ruled that since Raymond was the abandoning party to the marriage, it was not necessary to reach the issue of whether a mutual abandonment of the marital relationship fulfills the requirements for desertion or abandonment under K.S.A. 1998 Supp. 44-508(c)(2).
In determining eligibility for benefits, the Workers Compensation Act (Act) specifically defines “members of a family” in K.S.A. 1998 Supp. 44-508(c)(2) as the surviving legal spouse and children. The definition then provides a priority list if no such individuals exist. However, the Kansas Legislature has not given the surviving legal spouse an absolute right to benefits. K.S.A. 1998 Supp. 44-508(c)(2) provides in relevant part:
“In the meaning of this section, a surviving spouse shall not be regarded as a dependent of a deceased employee or as a member of the family, if the surviving spouse shall have for more than six months willfully or voluntarily deserted or abandoned die employee prior to the date of the employee’s death.”
In Kansas, proof of dependency by a surviving spouse is not required. In Brinkmeyer v. City of Wichita, 223 Kan. 393, 397, 573 P.2d 1044 (1978), the Kansas Supreme Court concluded that the 1974 amendments to K.S.A. 44-510b made no provisions for the payment of compensation to partially dependent spouses or children. The changes in the statute’s wording appeared to provide benefits only to “surviving spouses” and “wholly dependent children.” The Brinkmeyer court concluded that by enacting the 1974 amendments to K.S.A. 44-510b,
“the legislature intended not to deprive a partially dependent surviving spouse of the benefits available under the . . . act ....
“[A] surviving legal spouse is conclusively presumed to be wholly dependent upon the deceased workman, and is entitled to tlie benefits provided by the act for a surviving legal spouse, widiout proof of dependency.” 223 Kan. at 397.
Therefore, proving financial dependence or any other type of actual dependence Or support of the surviving spouse of the deceased employee is not necessary for the surviving spouse to still be entitled to benefits under the Act.
In Tisdale v. Wilson & Co., 141 Kan. 885, 43 P.2d 1064 (1935), the court faced an issue similar to the case at bar. The court con sidered whether the widow of a deceased worker had abandoned her husband, as addressed in R.S. 1923, 44-508 (1933 Supp.) and, thereby, excluded herself from receiving death benefits. The statutory provision concerning abandoning spouses has not substantively changed since 1933. R.S. 1923, 44-508 (1933 Supp.) defined “members of a family,” especially as to separation of husband and wife: “In the meaning of this section a widow shall not be regarded as a dependent of a deceased workman or as a member of the family, if she shall have for more than six months willfully or voluntarily deserted or abandoned him prior to the date of his death.”
The Tisdale court determined that in a case of established facts, the issue of whether an abandonment occurred is a question of law, and the court looked to several different sources to define abandonment.
“Webster’s New International Dictionary, 2d ed., defines abandonment as ‘Desertion by a husband or wife of his or her consort with the intention of creating a permanent separation.’
“Bouvier’s Law Dictionary, 3d ed., defines abandonment as follows:
“ ‘By Husband or Wife. The act of a husband or wife who leaves his or her consort willfully, and with an intention of causing perpetual separation.’
“19 C. J. 56 defines abandonment as used in connection with divorce proceedings as follows:
“ ‘Desertion or abandonment consists in the voluntary separation of one spouse from the other for the prescribed time without the latter’s consent, without justification, and with tire intention of not returning.’ ” 141 Kan. at 890.
The Tisdale court focused on the intentions of the parties regarding the marital relationship. The wife moved out of the family residence. However, the evidence indicated that several family members and their spouses were living with the wife and husband. The wife testified that she told the husband she would come back when he got a place for just the two of them. She also testified that the husband visited frequently, the couple talked about living together again, the separation was mutual, and he gave her money from time to time. In granting the surviving spouse benefits, the court found evidence that the wife intended the separation to be only temporary, and therefore she did not have the requisite intent to abandon the marriage. 141 Kan. at 890.
In the case at bar, the Board relied on Tatum v. Tatum, 736 P.2d 506 (Okla. 1982), for authority that since Raymond was the deserting spouse, Madie was not required to actively seek a reunion or reconciliation of the marriage to be eligible to receive benefits under the Act. In Tatum, the first wife (Florine) claimed to occupy the status of the surviving spouse under the workers compensation law although she was living alone at the time of her husband’s death by reason of desertion and the couple had been separated for over 6 years. The court rejected the contention raised by the second wife of a subsequent common-law marriage that the first wife lost her status as a deserted spouse by inaction and nonpursuit. The Tatum court affirmed the trial court’s finding that the first wife was the decedent’s deserted surviving spouse entitled by statute to benefits, but the court did not foreclose the possibility that a deserted spouse could lose death benefits. 736 P.2d at 508-09.
“A deserted spouse is not required to ‘dog’ her husband’s footsteps in an endless quest to achieve reunion. By his established lifestyle the husband revealed a predisposition to wandering, short-term employment, discontent with jobs and instability. Florine’s own job and die house she had purchased no doubt represented her only security. The law would indeed be both inastute and unrealistic if it expected a wife to abandon her only precious possessions in a fruitless quest after an errant husband who had given no indication of his desire to return and stay. Florine’s status as a deserted spouse was not lost either by inaction or non-pursuit. Affirmative acts, such as suing for divorce or separate maintenance, active resistance to reconciliation efforts, or cohabitation with another may be indicative of a changed character in the spousal relationship. They are all absent in this case. A legal change might also manifest itself through a formal separation agreement, refusal to join the spouse whenever the opportunity may arise, or some other outward recognition tiiat the marriage relationship had come to an end. Florine did none of diese tilings.” 736 P.2d at 508-09.
The Kansas Legislature, in its wisdom, has made it difficult for widows, widowers, and children to be precluded from benefits under the Act by providing that any member of the deceased’s family, whether wholly or in part dependent upon the employee at the time of the death, is entitled to benefits. However, by clarifying the ability of the surviving spouse to recover, the legislature has made it clear that surviving spouses who willfully or voluntarily deserted or abandoned the deceased employee for more that 6 months prior to the employee’s death shall not be entitled to benefits. K.S.A. 1998 Supp. 44-508(c)(2). This is sound public policy. Certainly there is no reason why an abandoning spouse who is intentionally separated from the deceased employee and has neither received nor sought any financial, emotional, or physical support from the deceased employee should upon the death of the employee receive benefits that are intended to compensate for what the deceased was providing or should have been providing.
The Board found that claimant left the marriage temporarily in 1972, and the parties reconciled after a brief separation. In March 1973, Raymond left the marital relationship to live with another woman. From that point forward, the couple never again lived together as husband and wife, and, specifically, the Board found the couple did not reconcile the marriage in 1979 or thereafter. The Board found the March 1973 departure made him “the first to leave the marital relationship.”
The Board in its majority decision recognized that under Kansas law an abandonment may be an actual abandonment by the claimant or a mutual abandonment by both parties:
“With proof of dependency not being deemed necessary to award a surviving spouse benefits under the Act and with the marriage between claimant and the decedent being a valid marriage at the time of death, the Appeals Board must examine the record to determine if the evidence points to an actual abandonment of the marital relationship by claimant or a mutual abandonment of the marriage by both parties.”
Having found that the “decedent was the first to leave the marital relationship,” as he left to five with another woman in 1973, the Board found him to be the abandoning party and did not address the issue of mutual abandonment. The Board’s decision rests upon a narrow interpretation of K.S.A. 1998 Supp. 44-508(c)(2) that only willful acts of a surviving spouse will foreclose awarding of death benefits. The Board relied upon Tatum, which we believe is factually distinguishable from the case at bar. In Tatum, there were clearly no signs, from the standpoint of the loyal wife, that the relationship had changed or other outward recognitions that the marriage had come to an end.
We believe that the Board’s decision that decedent departed from the relationship in 1973 should not, standing alone, be determinative of whether claimant is eligible for benefits as a surviving spouse in 1995. Whether there may have been a mutual abandonment of the marital, relationship through the passing of time must also be examined.
Other jurisdictions have found a mutual abandonment should deny a surviving spouse’s right to benefits. In Estate of Garcia v. Industrial Com'n, 156 Ariz. 39, 749 P.2d 948 (1988), the couple was married in 1976 and had a stormy first 2 years of marriage. During this period, the husband physically abused the wife. Then in 1978, after a particularly violent quarrel, the husband left the marital home and never returned. After a 5-year separation, the husband entered into a “marriage relationship” with another woman and fathered a child. Meanwhile, the wife had lived with two different men at two separate times during the separation. The husband was killed in an on-the-job accident, and the wife filed for death benefits. At that point, the couple had lived apart for approximately 7 years.
Except for a time limitation, the Arizona statute on death benefits for a surviving spouse is similar to its Kansas counterpart. Ariz. Rev. Stat. Ann. § 23-1064(A)(l) (1995) provides: “The following persons are conclusively presumed to be totally dependent for support upon a deceased employee: ... A wife upon a husband whom she had not voluntarily abandoned at the time of injury.” The Garcia court refused to award the wife any death benefits under a theory of mutual abandonment. The court relied on several facts in holding that the couple had accepted the separation and started a new life: (1) The couple had been separated for approximately 7 years before his death; (2) during this period, the husband had entered into an informal “marriage” relationship with another woman and fathered a child; (3) the wife had lived with two different men on two separate occasions during this separation; and (4) the husband provided no monetary or other sustenance to the claimant after the separation. 156 Ariz. at 41. The court stated:
“As one noted commentator explained, ‘[e]ven when the initial separation was involuntary and blameless, it may become converted over a long period of time into constructive desertion by the mutual acceptance of the separation and the deliberate assumption of new relationships.’ 2 A. Larson, Law of Workmens Compensation, § 62.43 (1987). In Brezickyj v. [Eastern R. R. Builders, Inc., 397 N.Y.S.2d 452, 59 App. Div. 2d 578 (1977)], the court refused to allow a surviving spouse to recover death benefits under a statute substantially similar to the one at issue here. The husband and wife had been involuntarily separated for twenty years, and the court concluded that, because each had countenanced the separation, there had been a mutual abandonment subsequent to the original involuntary separation. Id. 397 N.Y.S.2d at 453-54; see also, Larson at § 62.43. Under the facts presented here, this long separation, countenanced and recognized by both, clearly lapsed into an ignored marital status. See Brezickyj, at 454. We conclude, as did die Brezickyj court, diat this ignored marital status created a mutual abandonment between die claimant and the deceased. Id.
“The spirit and purpose of the workers’ compensation law compels such a result. The law is primarily social legislation designed to compensate workers and their dependents injured or killed in die course of their employment in order to prevent them from becoming public charges. See generally Stephens v. Textron, Inc., 127 Ariz. 227, 619 P.2d 736 (1980); Prigosin v. Industrial Comm’n, 113 Ariz. 87, 546 P.2d 823 (1976). There is no question here from the evidence presented diat the claimant has lived for at least seven years without the decedent’s support and as if the decedent had never existed. To find her eligible for death benefits in diis type of situation would be to provide support for her where none had been sought or received before.” 156 Ariz. at 41-42.
In Brezickyj v. Eastern R. R. Builders, Inc., 397 N.Y.S.2d 452, 59 App. Div. 2d 578 (1977), the court found a similar abandonment created over a period of 20 years. The couple was married in the U.S.S.R. in 1938. They were separated when the husband was conscripted and taken to Germany by the retreating German Army in 1944. The couple never saw each other again. The husband made his way to the United States where he found work until his death in 1964. The wife remained in the U.S.S.R. and had two children with another man.
The New York Workmen’s Compensation Board held the wife was the surviving wife of the decedent and entitled to benefits. The Brezickyj court reversed the Board’s decision and held the couple had mutually abandoned the marital relationship. The New York law in this area is substantially the same as Kansas law, except for the time limitation. To be eligible for death benefits in New York, the claimant must be a surviving wife who had not abandoned her husband. See N.Y. Workers’ Compensation Law § 16 (1-a), (2) (McKinney 1993). The Brezickyj court found, the original separation clearly did not meet the classic definition of abandonment which contemplates a voluntary separation by one party from the other without justification with the intention of not returning. 397 N.Y.S.2d at 453. The court stated:
“The separation, even if it began by compulsion, continued to subsist by apparent mutual consent. Faced with the grim realities of life and the ‘cold war’ between the Communist and Western Countries, the claimant and the decedent each began a new life. He sought and found gainful employment and sought and obtained permanent residence in this country. There is no evidence in this record that tire decedent ever provided any monetary or other sustenance to the claimant, although she claimed to have received some letters from him which she lost. She, on the other hand, began a new life with another man by whom she had several children. Their separation, countenanced and recognized by both, lapsed into an ignored marital status. Realistically, we must conclude that the parties created a mutual abandonment even though it was not voluntary in its inception.
“The board, in applying the very literal definition of abandonment, found that claimant was a surviving wife and therefore was entitled to tire death benefits. The Workmen’s Compensation Law is social legislation designed to secure to workers and their dependents compensation when they are injured or killed in tlie course of their employment, widiout regard to fault. Although it is true diat a surviving wife need not prove her actual dependency, it can hardly be said under die facts of diis case that die claimant was a dependent in any sense of die word. To find die claimant herein eligible for deadi benefits is to provide support for her, which decedent had not done for over 20 years.” 397 N.Y.S.2d at 453-54.
The current case presents a scenario where the parties had been separated over 20 years, living several hundred miles apart most of the time, and having no direct contact at all between 1986 and decedent’s death in 1995. Claimant had a child in 1979 and did not name a father on the birth certificate and testified that the child’s biological father could have been one of two men other than the decedent. Decedent had not provided claimant with financial support during the 10-year period before his death. The parties filed separate income tax returns. Claimant listed herself as “single” on credit applications and her child’s school records. The claimant was not involved in making decedent’s funeral arrangements.
We believe that the facts of this case require that a finding be made as to whether there was a mutual abandonment of the marital relationship. The Board acknowledged that mutual abandonment should be considered under K.S.A. 1998 Supp. 44-508(c)(2) but stopped short of doing so.
Abandonment is not a static concept and should not be determined from a single act. Although this case presents the existence of a legal marriage, consideration should be given to the parties’ conduct and circumstances over time to determine their intent. See Tisdale, 141 Kan. at 890; Tatum, 736 P.2d at 508-09. Mutual abandonment may result even though one party may have instigated the separation and be at fault for the parties’ estrangement.
We remand this case to the Board to address the issue of mutual abandonment under K.S.A. 1998 Supp. 44-508(c)(2).
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Gernon, J.:
This appeal involves the issue of whether, when property has been conveyed by a contract for deed, the “legal” title holder is hable for torts occurring on the property.
Helen Claypool contracted with Photographic Business Sales, Inc., (Photographic) to convey real estate on July 1, 1994. A fire occurred at the property on September 23, 1994. Lynn Graham, a tenant, suffered personal injuiy and loss of personal property in the fire.
Graham sued Helen Claypool, Billie Claypool, Robert Claypool, and Photographic. Helen Claypool moved for summary judgment, which the court granted. Graham appeals.
Helen’s motion for summary judgment attacked Graham’s basis for assessing liability for his injuries. Helen’s motion asserted that she had conveyed the property where Graham was injured prior to his injury, thus negating any basis for a duty of care.
In determining whether Helen should be granted summary judgment as a matter of law, the trial court was required to interpret the contract between Helen and Photographic. When construing a written contract on uncontested facts, an appellate court’s standard of review is de novo. Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1010, 894 P.2d 260 (1995). If the contract language is unambiguous, the appellate court must limit its review to the four comers of the document to determine the parties’ intent. Parsons v. Biscayne Valley Investors, Ltd., 23 Kan. App. 2d 718, 721-22, 935 P.2d 218 (1997).
The document here is unambiguous; therefore, this court is limited to examining its four comers to ascertain the parties’ intentions. The contract reads in pertinent part:
“On full payment of the sums of money set out above, including all expended by the Seller on account of taxes and special assessments and redemption from tax sales, the Seller shall convey said land to the said Buyer by deed duly acknowledged and approved, containing a covenant that the Seller is well seized of said land at the date hereof, and a covenant against encumbrances, and warranting title as of date hereof.”
In addition to establishing Photographic’s payment schedule, the contract gave Photographic the right to possession of the property and made Photographic responsible for insurance coverage after the current coverage lapsed.
In situations involving the sale of real estate using a contract for deed, this court has determined that the purchaser becomes the equitable owner of the realty, and the seller, although holder of the legal title, retains a secured interest in the property to protect future payments. See Century Savings Ass’n. v. C. Michael Franke & Co., 9 Kan. App. 2d 776, 778, 689 P.2d 915 (1984) (contract for deed constituted sale for due-on-sale clause in seller’s mortgage); Roberts v. Osburn, 3 Kan. App. 2d 90, 97, 589 P.2d 985, rev. denied 225 Kan. 845 (1979) (equitable owners under contract for sale held to be owners of real estate for operation of easement). In both Century Savings Ass’n and Roberts, the sellers placed the deed in escrow during the execution of the contract. Although Helen’s deed was not placed in escrow, the other contractual requirements are substantially similar to those in Century Savings Ass’n and Roberts. Consequently, Photographic should be considered the equitable owner of the property.
Kansas has not determined whether a legal owner is liable for tort claims while an equitable owner is in possession of the real estate. Research reveals one case from another jurisdiction very nearly on point. In Dubray v. Howshar, 884 P.2d 23 (Wyo. 1994), the Wyoming Supreme Court held the seller of real estate under an executory contract for deed not liable for a tort occurring on the real property. Analogizing the seller’s position in a contract for deed to that of a mortgagee, the Dubray court based its decision upon the theory that the equitable owner assumes all the risk, including the liability of ownership. 884 P.2d at 26-27.
The Dubray court also relied upon the Restatement (Second) of Torts to support its decision. 884 P.2d at 26. Restatement (Second) of Torts § 353 (1965) limits the seller’s liability to situations where the seller does not inform the buyer of known dangerous situations that the buyer could not discover or where the seller actively conceals the danger. Restatement (Second) of Torts § 352 (1965) protects a seller of land from liability to the buyer or others from conditions that existed at the time the buyer took possession.
Section 352 applies to protect Helen in this case because the condition which caused the fire existed at the time Photographic took possession. Neither of the limiting circumstances in § 353 apply. The contract for deed stated that the buyer purchased the property “as is” after having an opportunity to inspect both the interior and exterior of the property.
In determining that Helen bore no liability as the legal owner of the property, the trial court found that she had “conveyed the equitable title to the real estate while retaining the legal title only as a device to protect [her] interest in the event that the buyers default on the contract.” The trial court applied the principle of Dubray in reaching its decision.
Graham, on the other hand, provides no authority for his argument that the legal owners should continue to bear liability for property subject to conveyance under a contract for deed. His reasoning is unpersuasive in light of Dubray and the Restatement (Second) of Torts.
The seller of real estate under an executory contract for deed is not liable for torts occurring on the conveyed property unless the seller fails to inform the buyer of known dangerous situations that the buyer could not discover or the seller actively conceals.
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Lewis, J.:
This is an interlocutory appeal by the State of Kansas from an order of the trial court granting defendant’s motion to suppress evidence seized from his home.
On the date in question, at about 1:00 in the morning, Melanie Nielson called for the police to respond to her residence. Melanie lived in a home with defendant and apparently had been a resident of that home for some time. At times, defendant would get drunk and violent, and his violence was occasionally directed at Melanie. On one occasion, for example, defendant had shoved her down the stairs and, in the process, had pulled out a handful of her hair.
On this particular evening, Melanie called the police because she was “scared because defendant was acting crazy, going off.” In addition, defendant was drunk and was tearing up a roommate’s bedroom.
The police dispatcher advised Officer James Tilton and his partner to respond to Melanie’s call. In due time, they went to the front door of the house where they were confronted by defendant, who was angry and belligerent. Defendant ordered Officer Tilton and his partner off the premises in a profane diatribe. The police attempted to explain that they had a call about violence in the house and wanted to check it out. Defendant refused to allow them to do so.
The officers left and then came back and again confronted defendant because they heard him yell and scream at a female and needed to see if the female was okay. Again, defendant loudly and profanely ordered the officers to leave. Ultimately, defendant’s actions became so severe and so profane that he was arrested for disorderly conduct and taken to jail.
After defendant was removed, Officer Tilton stood at the door of the house, with Officer Jeff Eubank behind him. He began to ask the female occupant to present herself. In time, in response to his request, Melanie appeared and came outside of the home. Melanie and Officer Tilton discussed past instances of abuse by defendant, and Melanie advised Officer Tilton that defendant had done considerable damage to a roommate’s room in the house.
At some point in time, Officer Tilton asked if he could see the damage done in the house. Melanie said “yes” and opened the door, and Officer Tilton followed her in, with Officer Eubank following Officer Tilton. Officer Eubank believed that consent to enter had been granted to himself as well as Officer Tilton. He said he entered the house because, “ ‘I wasn’t going to let him [Officer Tilton] go into the residence by himself, mainly because of the safety issue.’ ” He later stated that he felt it was necessary to enter the house “for the safety of [Officer] Tilton.” Upon entering the house, Officer Eubank quickly discovered a hitherto unknown subject sitting in a chair in die living room. In the process of checking out this individual, Officer Eubank observed what he believed to be marijuana “roaches” in an ashtray. At some point in time, he picked up one of the roaches out of the ashtray and smelled it, confirming in his own mind that it was, indeed, marijuana.
The officers then attempted to obtain a consent from Melanie for a general search of the house. She refused to give this consent. As a result, the officers obtained a search warrant to search the dwelling based on the knowledge gained by Officer Eubank while he was in the house.
The search warrant was executed and yielded quantities of marijuana, LSD, drug paraphernalia, and no drug tax stamps. The trial court’s order of suppression bars the entry into evidence of all items seized under the search warrant. The order of suppression is based on the theory that Officer Eubank, who found die marijuana in plain view, was illegally in the house and that any evidence seized as a result of his being in the house was unlawful and should be suppressed. Melanie testified that while she had given Officer Til-ton permission to enter the house, she had not given Officer Eu-bank permission to enter the house.
In granting suppression, the trial court found that while Officer Tilton entered the house lawfully, Officer Eubank did not. The court’s order finds the following:
“2. The Court determined that there were two officers at the residence, one being Officer Tilton, whose entrance into the residence was lawful and at the request of the resident, Melanie Nielsen.
“4. The question involved in this case is whether Officer Eubank’s entrance into the home was with consent. The Court determined that his entrance into the home was without consent and, therefore, unlawful.
“5. The Court further found that there was no exigent circumstances sufficient to warrant Officer Eubank entering into and searching the living room without a warrant.”
We do not agree with the trial court’s decision. That decision permits the resident to invite one police officer into his or her house while denying permission to a backup officer to enter to protect the first officer. This rule would make a police officer’s job, already dangerous enough in entering an unknown residence, to be more hazardous than necessary.
The question before this court is whether a citizen may call the police to his or her home for protection and then grant only one police officer permission to enter the home while denying permission to the officer’s backup, who was there to look after the safety of the officer entering the house. We conclude the answer to this question is no. We hold that where there are two or more police officers at a scene, and they have been called to the scene by a resident of the house, and there are allegations of violent behavior in the house, the consent given to one officer to enter the house necessarily, as a matter of law, implies that there is equal consent for adequate backup officers to enter the house as well. Our rulé is designed to provide protection for police officers in a dangerous setting in situations where the entry of the backup officer is a minimal intrusion under the circumstances. When the resident of a dwelling invites one police officer into the dwelling, the entry of a backup officer under the same consent is, at best, a minimal intrusion upon the resident’s Fourth Amendment rights.
In reaching our decision, we do not question the findings of fact by the trial court. We note there is ample evidence in the record to indicate that Officer Eubank entered the house with permission. We are not, however, factfinders and accept as correct the facts as found by the trial court. Our decision is premised on the fact that Officer Eubank did not receive specific permission to enter the home but that, nonetheless, he did not unlawfully enter the dwelling.
Our concern in this case is officer safety. Melanie did not hesitate to call for police help in the early hours of the morning when defendant was committing acts of violence, and she did not hesitate to accept that help. In fact, she left the dwelling with the police officers, who took her to a safe haven where she would be protected from further violence. Despite the fact that she requested the pres ence of the police officers and despite the fact that she invited Officer Tilton into the house, we are asked to conclude that Officer Eubank had no right to be in the house. We believe that he did. Once Melanie invited Officer Tilton into, the house, she also impliedly invited such backup officers as might be necessary to protect the safely of Officer Tilton.
To accept defendant’s reasoning means that an officer might be required to enter a dangerous situation alone and without backup. A person whose behavior set in motion the involvement of the police will not be permitted to deny entrance of backup officers after having invited one officer into the home.
Under our constitutional system, the court must constantly balance the rights and privileges of citizens with the safety, of the public and the safety of those individuals who respond to a request for police assistance. If the intrusion into the constitutional rights of the citizen is minimal and the protection of the police officer is vital, then the rule announced in this opinion would apply.
Our Supreme Court recognized the validity of this balance test in State v. Deskins, 234 Kan. 529, 541-42, 673 P.2d 1174 (1983). The court was dealing with a roadblock at which drivers of automobiles were stopped without any evidence that they were violating the law. The court held the roadblock to be lawful and, in doing so, employed a balancing test, such as we employ in the instant matter:
“The governing principle of the amendment is that except in certain carefully defined classes of cases, a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. Camara, 387 U.S. at 528-29. Whether a warrantless search and seizure falls within these limited exceptions is determined by balancing the degree of legitimate governmental interests against the resulting intrusion of the particular law enforcement practice on individuals’ Fourth Amendment rights. Prouse; 440 U.S. at 654. However, as exceptions to the overriding mandate requiring warrants based on probable cause, these ‘carefully defined classes of cases’ permitting warrantless searches and seizures should be construed narrowly to preserve the integrity of the Fourth Amendment.
“In applying the balancing test of the degree of governmental or public interest against the degree of intrusion upon the individual’s constitutionally protected rights, the courts have developed a three-factor test or analysis which was stated in Brown as:
‘a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.’ Brown v. Texas, 443 U.S. at 50-51.” 234 Kan. at 540-41.
Although the balancing test referred to related to the warrantless search of an automobile, we believe the same reasoning can be applied to a situation in which consent to enter a home is implied for the purposes of safety of the police officers.
In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the United States Supreme Court adopted the Terry rule, which has since been codified in the state of Kansas. See K.S.A. 22-2402. The Terry rule justifies a search for the protection of police officers and others nearby. See State v. Webb, 13 Kan. App. 2d 300, 302, 769 P.2d 34 (1989). In this case, we have expanded the reasoning of Terry, again for the protection of police officers.
In Webb, the same balancing test was utilized. In that case, we said:
“We find Philadelphia v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), to be controlling. In Mimms, the police stopped the defendant’s car for operating with an expired license plate. The police asked defendant to step out of the car and produce his license. As defendant got out of the car, the police noticed a large bulge under his jacket. The police frisked defendant and discovered a loaded revolver. The defendant was then arrested. The defendant filed a motion to suppress the revolver as being the fruit of an illegal search. The trial court denied the motion and convicted defendant, who appealed his conviction. The Pennsylvania Supreme Court reversed the conviction, holding the search violated the Fourth Amendment ‘because the officer’s order to respondent to get out of the car was an impermissible “seizure.” ’ Mimms, 434 U.S. at 107-08.
“The United States Supreme Court disagreed with this conclusion and held the order to get out of the car was reasonable and permissible under the Fourth Amendment. The Court attempted to balance two interests. The first was the officer’s interest in personal safety and the second was the intrusion into the driver’s personal liberty occasioned by the order to get out of the car. The court found the first interest to be both legitimate and weighty.’ Mimms, 434 U.S. at 110. The court recognized the risks facing an officer who approaches a person seated in a car and the hazards of accidental injury from passing traffic if the officer is standing exposed. As to the other interest, the court found the additional intrusion of asking the driver to get out of the car to be ‘de minimis.’ The court concluded: What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.’ Mimms, 434 U.S. at 111.” (Fmphasis added.) 13 Kan. App. 2d at 302-03.
In State v. Tucker, 19 Kan. App. 2d 920, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994), we balanced the rights of an individual to privacy and freedom of movement with the rights of the public to be protected from unreasonable dangers. We concluded that under that balance, the rights of the public to be protected from unreasonable danger were superior. Accordingly, we permitted a motor vehicle to be stopped by a law enforcement officer based on an anonymous tip.
In State v. Mayfield, 10 Kan. App. 2d 175, 178, 694 P.2d 915 (1985), we dealt with police officers who were faced with a hostile and belligerent individual. At one point during the confrontation, the individual went to his apartment to get his identification. The officers, although uninvited, followed him into the apartment. While in the defendant’s apartment, the officers observed drugs in plain view and seized them. The defendant argued that the search was unlawful. We permitted the search in the interests of the safety of the police officer and said:
“This is the same consideration for the Terry justification of a ‘frisk’ of a subject even in the absence of probable cause. Only ‘unreasonable’ searches and seizures are prohibited by the Fourth Amendment. Concern for the officer’s safety justifies such a limited intrusion on the subject’s expectation of privacy and is not unreasonable’ even though the person is only suspected of crime.” (Emphasis added.) 10 Kan. App. 2d at 178-79.
We concede that most of the decisions utilizing the balancing test deal with motor vehicles. But the one in State v. Mayfield is similar to the case at hand. We have applied the balancing test to these facts. In this case, the degree to which the admission of Officer Tilton’s backup officer into the house contributed to his safety appears to be very high. It is well known that officers are frequently subjected to violence when entering homes where violence is taking place. Officer Eubank was able to see and detain a subject whose presence in the house was not known. This subject could very well have been a considerable risk to the safety of Officer Tilton. The interference with the individual liberty of those living in the dwelling by allowing a backup to enter the house to look after the safety of another officer is de minimis. Melanie invited one officer into her home, and it is not a great intrusion to hold that this admission impliedly permitted another officer to lawfully enter the home for safety purposes.
We believe that forcing a police officer to enter a hostile area without backup is entirely unreasonable. To permit a backup to enter under the same permission is necessary in the interests of the officer s safety and is a limited intrusion upon the individual’s Fourth Amendment rights.
We emphasize that the Fourth Amendment to the Constitution of the United States only protects against unreasonable searches and seizures. We do not consider the presence of Officer Eubank in the residence, under the facts stated, to have been unreasonable and conclude that he had the right to be there and that he was justified in observing obvious contraband in plain view while in the process of securing the residence for the protection of Officer Til-ton.
We reverse the trial court’s order suppressing the evidence and remand the matter for trial.
Reversed and remanded. | [
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Pierron, J.:
The State of Kansas brings'this interlocutory appeal from the district court’s order granting defendant Torrance Alexander’s motion to suppress evidence. The State claims the district court erred in concluding the police illegally searched a trash receptacle located in front of Alexander’s house near the street.
Alexander was charged with possession of cocaine with intent to sell after a prior conviction in violation of K.S.A. 1998 Supp. 65-4161(b) and intent to sell or possess cocaine with no tax stamp in violation of K.S.A. 79-5204. Alexander filed a motion to suppress all the items seized from his residence pursuant to a search warrant. These items included cocaine, over $13,000 in cash, and various items of drug paraphernalia. Alexander alleges the probable cause supporting the search warrant was based on an illegal search of his garbage.
The facts pertaining to the search of Alexander s trash are not in dispute. A detective with the Wichita Police Department received a tip from a confidential informant that Torrance Alexander was distributing large amounts of cocaine. The detective asked Officer Michael O’Brien to investigate. Pursuant to a check of police and utility records, Officer O’Brien discovered Alexander lived with his girlfriend at a house in Wichita, Kansas. The check also revealed Alexander had a prior arrest for possession of cocaine and an arrest for distribution of cocaine.
Approximately 1 week after investigating Alexander, Officer O’Brien and another police officer noticed a trash receptacle placed in front of Alexander’s residence near the street. Officer O’Brien described the container as a “push-cart type of dumpster.” It had two wheels, a lid that was fastened to the handle with a rubber strap, and the initials of a private trash contractor on the side. The dumpster was placed on the grass at the end of Alexander’s driveway near his mailbox, approximately IVz feet from the curb. There was no fence surrounding Alexander’s home and there was not a sidewalk across his property.
The officers took the dumpster off the property, emptied several black trash bags from the dumpster into the back of a pickup truck they had parked near the house, and then returned the dumpster to the front yard. A search of the trash revealed a package that contained a white residue. A field test indicated the residue was cocaine. The police also discovered documents in the trash verifying Alexander was a resident of the house. The police then obtained the warrant to search Alexander’s house based on the evidence discovered from the trash and the information received from the confidential informant.
The district court granted Alexander’s motion to suppress. In doing so, the court expressed its hesitation to expand the United States Supreme Court’s ruling in California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30,108 S. Ct. 1625 (1988), that a search of opaque trash bags placed on the curb in front of a person’s residence for trash collection did not violate the Fourth Amendment. The court noted that unlike the facts in Greenwood, Alexander’s garbage was placed in a private container and the police had to enter Alexander’s property to remove it. It concluded the dumpster was within the curtilage of Alexander’s house. The court also noted its concern that the dumpster might be considered private property.
In Greenwood, police officers received tips on two separate occasions indicating illegal drugs were being sold from Greenwood’s California home. As part of their investigation, the officers asked the neighborhood trash collector to pick up and keep separate the garbage bags that were placed for collection on the curb in front of Greenwood’s house. On each occasion, the police searched the garbage bags and discovered items indicative of drug use and used the fruits of the searches to obtain warrants to search Greenwood’s house. The searches of the house revealed quantities of illegal drugs, and Greenwood was arrested on felony narcotics charges. The charges were dismissed on the ground the warrantless garbage searches violated the Fourth Amendment and the California Constitution.
The Supreme Court held the warrantless search and seizure of the opaque plastic garbage bags left for collection outside Greenwood’s home did not violate the Fourth Amendment. The Court stated such a search would only violate the Fourth Amendment if the persons discarding the garbage manifested a subjective expectation of privacy in their garbage that society accepted as objectively reasonable. It noted Greenwood may have had a subjective expectation of privacy in the contents of the garbage bags but concluded he had sufficiently exposed the garbage to the public, rendering his subjective expectation of privacy unreasonable. 486 U.S. at 39-41.
In this appeal, the State claims that pursuant to Greenwood, Alexander had no reasonable expectation of privacy in the contents of the dumpster because he placed it in an area easily accessible to the public and for the purpose of having a third party collect it. It also urges this court to construe § 15 of the Kansas Constitution Bill of Rights as having the same scope of protection as the Fourth Amendment to the United States Constitution.
Alexander contends the evidence supports the trial court’s finding the dumpster was within the curtilage and not subject to a warrantless search. He claims he had a reasonable expectation of privacy in his garbage because it was placed in a latched dumpster on his property. Alexander also urges this court to construe the Kansas Constitution as independently prohibiting police from searching the trash of citizens without a warrant even if it might be allowed by the United States Constitution.
When facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. An appellate court’s scope of review on questions of law is unlimited. State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
Alexander’s thorough and well-reasoned brief offers a number of strong arguments.
The Fourth Amendment to the United States Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Section 15 of the Kansas Constitution Bill of Rights states:
“The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.”
The constitutional protection against unreasonable searches and seizures extends not only to a person’s residence, but to the area surrounding the residence which is referred to as the curtilage. State v. Tinsley, 16 Kan. App. 2d 287, 289, 823 P.2d 205 (1991).
“In our determination of whether an area is included within the curtilage of a residence, the central component is whether the area harbors the intimate activity associated with the sanctity of a person’s home and the privacies of life. [Citation omitted.] Four factors have particular pertinence to the curtilage determination: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. [Citations omitted.]” 16 Kan. App. 2d at 290-91.
In Tinsley, the issue was whether “open fields” adjacent to a residence were a part of the curtilage. The court in Tinsley ruled they were not.
Alexander cites State v. McClelland, 215 Kan. 81, 523 P.2d 357 (1974), for the proposition that a home’s curtilage has an extension which would include the location where the trash was found in the instant case. The controlling facts of that case were that a search warrant was issued for the premises of a certain residence. On arriving to execute the warrant, officers noticed an automobile parked directly in front of the house on the “parking” area between the sidewalk and the curb of the street. A person was in the vehicle and McClelland was standing alongside it.
McClelland and the vehicle were searched, and amphetamines and marijuana were found there along with more marijuana and drug paraphernalia in the house. McClelland was standing at the time of the search in the “parking area,” the fee to which was vested in Shawnee County.
Alexander focuses on the portion of the opinion which states that the term “premises” as used in the search warrant includes the house and the “immediate curtilage.” In McClelland, the area where he was searched was held to be part of the curtilage. Alexander’s point is that if the curtilage includes the area near the street, the trash in the instant case was in the curtilage and could not be searched under Tinsley and other cases restricting searches of the curtilage.
The district court in the instant case did not discuss the four factors from Tinsley in concluding the dumpster was within the curtilage of Alexander’s home. It did note the dumpster was on Alexander’s property and there was no sidewalk across Alexander’s yard to separate the property from the street.
Contrary to the district court’s decision, an examination of the four factors suggests the dumpster was not within the curtilage. Although there is no evidence indicating how far the dumpster was from Alexander’s home, it was not within a fence or other barrier surrounding the home. It was placed at the end of Alexander’s driveway and property line, approximately IV2 feet from the street. Any person passing by could have reached the dumpster and inspected or taken its contents.
In Greenwood, the Court held that the garbage bags were outside of the curtilage of Greenwood’s home. It noted plastic garbage bags left on or at the side of a public street are “readily accessible to animals, children, scavengers, snoops, and other members of the public.” 486 U.S. at 40. The Court stated Greenwood had sufficiently exposed his garbage to the public to defeat a claim to Fourth Amendment protection. This would appear to be a less expansive definition of curtilage than had been used by the Kansas Supreme Court in McClelland, at least as it refers to the placing of garbage bags for collection.
Using the discussion in Greenwood as a guide, it appears Alexander sufficiently exposed his garbage to the public to place it outside the curtilage of his home. Cf. U.S. v. Long, 993 F. Supp. 816, 819 (D. Kan. 1997) (finding trash bags placed on top of trailer within boundaiy of property approximately 3 feet from alley and 7 feet from attached garage was not within curtilage of residence).
The warrantless search of the dumpster under these circumstances would only violate the Fourth Amendment or the Kansas Constitution if Alexander (1) manifested a subjective expectation of privacy in the dumpster, and (2) society accepts that expectation as objectively reasonable. Greenwood, 486 U.S. at 39; State v. Grissom, 251 Kan. 851, 902-03, 840 P.2d 1142 (1992); State v. Timley, 25 Kan. App. 2d 779, 780, 975 P.2d 264 (1998). See Annot., Searches and Seizures: Reasonable Expectation of Privacy in Contents of Garbage or Trash Receptacle, 62 A.L.R.5th 1, 20-21.
Under Greenwood, the location of a person’s garbage standing alone does not establish whether the search of the garbage was reasonable; rather, the analysis must include an examination of whether the person’s expectation of privacy in the garbage is objectively reasonable. This analysis comports with Kansas cases construing the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights. See Timley, 25 Kan. App. 2d at 781 (citing Greenwood for the proposition that location is only one factor in determining whether an individual has a reasonable expectation of privacy). See also Tinsley, 16 Kan. App. 2d at 290 (stating existence of a property right is only one element in determining whether expectations of privacy are legitimate); State v. Waldschmidt, 12 Kan. App. 2d 284, 291-92, 740 P.2d 617, rev. denied 242 Kan. 905 (1987) (noting curtilage is entitled to a higher degree of Fourth Amendment protection but is not free from all warrantless searches).
Other jurisdictions have similarly recognized curtilage is not the only factor a court must consider in examining the legality of a warrantless search of a person’s garbage. See U.S. v. Redmon, 138 F.3d 1109, 1112 (7th Cir. 1998), cert. denied 525 U.S. 1066, 142 L. Ed. 2d 657 (1999) (noting an examination of a reasonable expectation of privacy must be conducted, not just a determination of curtilage, and holding defendant had no reasonable expectation of privacy in garbage cans next to an attached garage); U.S. v. Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (applying Greenwood even if trash cans are within the curtilage since the cans were readily accessible to public, rendering any expectation of privacy unreasonable); State v. Hauser, 342 N.C. 382, 386, 464 S.E.2d 443 (1995) (stating location of garbage within the curtilage of a home does not automatically establish a reasonable expectation of privacy in garbage); Levario v. State, 964 S.W.2d 290, 296 (Tex. App. 1997) (concluding defendant had no reasonable expectation of privacy in discarded trash even if within curtilage).
As the parties indicate, Kansas courts are not bound to follow Greenwood in interpreting § 15 of the Kansas Constitution Bill of Rights. As the Court noted: “Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution.” 486 U.S. at 43. The Kansas Supreme Court has stated: “This court . . . can construe our state constitutional provisions independent of federal interpretation of corresponding provisions. [Citations omitted.] This court can interpret the Kansas Constitution to afford the citizens of Kansas more protection from governmental intrusion.” State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).
In his brief, Alexander cites case law from several jurisdictions that have refused to follow the analysis employed by the majority in Greenwood and concluded persons have objectively reasonable privacy interests in the trash they set out at their curbs. See, e.g., State v. Morris, 165 Vt. 111, 122,125, 680 A.2d 90 (1996) (declining to follow “abbreviated” analysis of Greenwood majority and noting state supreme courts of California, Hawaii, New Jersey, and Washington have similarly declined). Section 15 of the Kansas Constitution Bill of Rights, however, is essentially identical to the Fourth Amendment and the Kansas Supreme Court has never extended its protections beyond those afforded by the federal Fourth Amendment guarantees. 252 Kan. at 824-26. See also State v. Crow, 266 Kan. 690, 698, 974 P.2d 100 (1999), and State v. Scott, 265 Kan. 1, 5, 961 P.2d 667 (1988) (recognizing right to interpret Kansas Constitution in manner different than United States Constitution but not traditionally doing so).
We note in State v. Fortune, 236 Kan. 248, Syl. ¶ 1, 689 P.2d 1196 (1984), the court stated: “The scope of the constitutional protections afforded by the Kansas Constitution Bill of Rights, Section Fifteen, and the Fourth Amendment to the United States Constitution is usually considered to be identical.”
As chronicled in Fortune, the case of State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975), extended greater protections from so-called inventory searches of motor vehicles than were later stated under the United State Supreme Court case of South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). As in the instant case, there was a split in authority among the states when Boster was decided. The court in Fortune was persuaded that the Opperman approach, for a number of reasons, was the better one and overruled Boster and its progeny.
Although our Supreme Court certainly has the authority to adopt the position suggested by Alexander and grant greater protection to people’s garbage from police searches than is afforded by the United States Supreme Court, we do not believe that is its usual approach, as the discussion in Fortune indicates.
Alexander believes his case can be distinguished from Greenwood because he contracts with a private trash collector. The Court in Greenwood indicated the garbage bags in issue were placed at the curb for the express purpose of having them collected by a third party. Notably, there is no evidence in the record indicating Alexander placed the dumpster by the curb for the purpose of having it collected or placed it there for collection only on specific days. Nevertheless, the majority in Greenwood and the many courts following its analysis, focus on public access and location, as well as the purpose of conveying the garbage to a third party, in determining the existence of a person s reasonable expectation of privacy in garbage.
“Accordingly, having deposited [the] garbage ‘in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,’ United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.”
“Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Hence, ‘[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ [Citation omitted.]” 486 U.S. at 40-41.
As indicated, the dumpster was set out in front of Alexander’s house approximately lVz feet from the street, clearly accessible to the public. The dumpster was sufficiently exposed to the public, rendering Alexander’s expectation of privacy in his garbage unreasonable.
The claimed expectation of privacy was not significantly more reasonable because his garbage was contained in a closed container with the lid strapped shut. The garbage was still accessible to the public and was presumably to be collected by a third party. See U.S. v. Trice, 864 F.2d 1421, 1424 (8th Cir. 1988) (stating person must do more than place trash for collection in trash can that is accessible to the public to create objectively reasonable expectation of privacy); State v. Carriere, 545 N.W.2d 773, 776 (N.D. 1996) (holding defendant had no reasonable expectation of privacy in contents of garbage can placed at end of driveway with strap holding cover in place).
The district court’s attempt to distinguish Greenwood also fails. Although the police may have committed a slight trespass on Alexander’s property and temporarily removed a privately owned garbage receptacle, property rights are only one element in determining the legitimacy of the expectation of privacy. See Tinsley, 16 Kan. App. 2d at 290. Also, that the garbage was collected by a private contractor does not distinguish Greenwood. The garbage is still conveyed to a third party and presumably both private and public garbage collectors are capable of sorting through the garbage they collect and allowing others to do the same. See U.S. v. Hall, 47 F.3d 1091, 1097 (11th Cir. 1995) (rejecting defendant’s attempt to distinguish Greenwood on ground private company collected garbage). There is no contention by Alexander that he had arranged for any particular privacy of his garbage with the private trash collector even if such an arrangement would be significant.
Alexander also claims the dumpster was located in a “protected area” because it was next to his mail box and the receiving and sending of mail is an “intimate activity associated with the sanctity of one’s home.” Contrary to Alexander’s position, placing the trash next to the mailbox at the edge of the street only suggests it was set out for the express purpose of having a third party collect it. A mail box does not throw out a penumbra of privacy beyond its confines.
Once Alexander placed the dumpster outside by the curb, accessible to the public, he had no reasonable expectation of privacy in his garbage. The search of the garbage by the police was lawful and the evidence lawfully seized. The district court erred in finding the police needed a warrant to search Alexander’s garbage under these facts.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Wahl, J.:
Charles Bennett was charged with mistreatment of a dependent adult in violation of K.S.A. 21-3437(a)(l) for allegedly mistreating his mother, Ruby Willmon. Prior to trial, Bennett filed a motion in limine asking the district court to prohibit the State from introducing evidence of physical injuries sustained by Willmon. The district court granted the motion and the State timely filed this interlocutory appeal.
Ruby Willmon suffered from Alzheimer’s disease and diabetes. Because of her condition, she had difficulty controlling her balance and would occasionally fall down. Willmon lived with her son, Charles Bennett, his wife, Sue Bennett, and his stepdaughter, Peggy Sue Rosa. In November 1997, Sue Bennett called the police after allegedly hearing Bennett slap Willmon, and Bennett was subsequently charged. The State’s Information charged in relevant part: “Charles Bennett did unlawfully, knowingly and intentionally inflict physical injury upon a dependent adult, to-wit: Ruby Willmon, in violation of K.S.A. 21-3437.”
A preliminary hearing was held in February 1998 before Judge Ernest Johnson. Janet Chase, Willmon’s home health-care nurse, Sue Bennett, and Peggy Sue Rosa testified at the hearing. The State introduced several pictures of Willmon into evidence, depicting a cut or scratch on Willmon’s nose and one above her eye. Testimony indicated that it was unknown what caused the marks, but they were on her face before the November incident. No other evidence relating to the cause of the injuries was offered.
Rosa testified she had witnessed Bennett slap Willmon in the past and described an incident when she observed Bennett “smacking [Willmon] back and forth” for having wet her bed. Rosa stated Willmon had a black eye the day after the incident. She testified Bennett would grab Willmon by the back of the neck and wrist and push her into her bedroom whenever she attempted to enter the living room. She also stated Bennett would get upset and yell at his mother when she lost control of her bowels. Rosa testified Bennett and Sue locked Willmon in her room on at least one occasion.
Judge Johnson concluded the State failed to meet its burden of proof regarding the physical injury element of the crime charged. He noted, however, that he was required to bind a defendant over for trial on any crime that was shown at a preliminaiy hearing. He concluded there was probable cause to bind Bennett over on the theory he inflicted cruel punishment on his mother. The State accordingly amended the Information to read: “Charles Bennett did unlawfully, knowingly and intentionally inflict cruel punishment upon a dependent adult, to-wit: Ruby Willmon, in violation of K.S.A. 21-3437.”
Bennett filed a motion in limine, asking the district court to prohibit the State from introducing physical injury evidence at trial. Judge Dexter Burdette heard arguments from both parties at the start of trial and granted Bennett’s motion. In doing so, Judge Burdette stated the infliction of physical injury and the use of cruel punishment were separate and distinct acts. He stated the district court’s ruling at the preliminary hearing limited the State’s claim to mistreatment by cruel punishment and the probative value of physical injury evidence was outweighed by its prejudicial effect on the juiy. The State’s subsequent motion for a continuance pending this interlocutory appeal was granted.
K.S.A. 21-3437 governs the offense of mistreatment of a dependent adult and provides in relevant part: “(a) Mistreatment of a dependent adult is knowingly and intentionally committing one or more of the following acts: (1) Infliction of physical injury, unreasonable confinement or cruel punishment upon a dependent adult.”
The State argues the district court erred in finding the definition of cruel punishment was distinct from physical injury. It claims the common meaning of cruel punishment includes actions that cause pain, suffering, rough handling, or mistreatment. The State asserts it wanted to introduce evidence of slapping, smacking, and rough handling, and the district court’s ruling precluded it from doing so. It claims Judge Burdette ruled such evidence rose to the level of physical injury and, thus, was excluded.
In making his ruling, Judge Burdette concluded the State was prohibited from introducing evidence of physical injury but was permitted to introduce evidence relating to cruel punishment. It is unclear whether Judge Burdette’s decision prohibited evidence of slapping and other physical contact. Judge Burdette did not expressly state what evidence constituted physical injury or cruel punishment and the record does not contain a written order.
The Kansas Supreme Court has commented on the importance of the trial judge’s specifically stating what evidence is to be excluded pursuant to a motion in limine:
“It is important that a proper written motion be filed to pinpoint the material or evidence to be protected against. This is necessary together with an order of the court setting forth the specific basis for exclusion or admission. A mistrial or reversible error on appeal may be avoided by having a proper motion and order drawn and filed. [Citation omitted.] We repeat, it is important for the motion to state the specific matter that the movant believes to be inadmissible and prejudicial. The motion should not be general in scope.” State v. Quick, 226 Kan. 308, 312, 597 P.2d 1108 (1979), disapproved on other grounds State v. Jackson, 244 Kan. 621, 624, 772 P.2d 747 (1989).
Neither the motion nor the district court’s order properly pinpointed what evidence was to be excluded.
In his motion, Bennett alleged the State sought to introduce testimony and evidence “of the physical injury in spite of the results of the preliminary hearing” and that the probative value of the evidence was outweighed by its prejudicial effect. Bennett orally argued the State should be precluded from presenting the photographs or testimony of other physical injuries at trial. He also argued the State should not be able to offer “testimony about [Bennett’s] care of his mother and nothing about slapping, nothing about bruises, nothing about him having physical contact with his mother because that was found not to have been sufficient even at the preliminary hearing level.”
On appeal, Bennett states:
“The Court’s ruling does not preclude the Appellant from presenting evidence pertaining to how the Defendant took care of his dependent mother, victim. The only real effect of the ruling is that the highly prejudicial evidence which failed to meet the test of probable cause will not be allowed to be given to the jury.”
This statement is contrary to the argument made by Bennett to the district court and does not explain whether Bennett construed the preliminary hearing ruling to exclude evidence of slapping or rough handling.
In explaining his ruling, Judge Burdette stated:
“No evidence of the infliction of physical injury should be allowed in this trial of the defendant. . . .
“Only any evidence of cruel punishment will be allowed. There will be no evidence of any physical injury — infliction of physical injury upon the dependent adult in question will be allowed. That’s the defendant’s motion in limine and I am granting it in all respects. I believe the prior ruling by the preliminary hearing Judge has confined the evidence to this scope and I am limiting the State to the scope that the prior Judge has already ruled.” “I frankly think that the legislature intended to prohibit, regarding adults who are dependent, essentially the same thing that the legislature intended to prevent regarding children . . . . I’m not saying a jury is going [to] find that the slapping incidents and the squeezing of the neck incidents and those things are cruel punishment, but I am saying that, in my opinion, the State has met its burden to show probable cause to that those crimes — that crime was committed. . . .
This statement suggests that the State was precluded from introducing evidence of slapping or physical contact, which is inconsistent with Judge Johnson’s ruling.
In explaining his ruling at the preliminary hearing, Judge Johnson stated:
“. . . So I’m not going to declare this statute unconstitutional, but I am going to say that physical injury carries with it certain common sense meanings. The State has attempted to show that the mark on the nose and the — the bruising around the eye satisfies that, and I’m not satisfied that the connection has been direct enough to bind the defendant over regarding that injury.”
It is clear that Judge Johnson concluded evidence of slapping and other physical contact could potentially support the charge of mistreatment of a dependent adult based on a theory of cruel punishment. Judge Burdette’s statement he was granting Bennett’s motion in all respects is inconsistent with his statement the evidence was limited in scope to Judge Johnson’s ruling.
Judge Burdette’s ruling is ambiguous, and Bennett’s motion and oral argument were inconsistent. The case must be remanded for clarification of what evidence was specifically excluded. See Supreme Court Rule 165 (1998. Kan. Ct. R. Annot. 187); see also Burch v. Dodge, 4 Kan. App. 2d 503, Syl. ¶ 1,608 P.2d 1032 (1980) (remanded case where trial court’s findings of fact and conclusions of law were inadequate and precluded meaningful appellate review).
Judge Burdette’s attempt to distinguish the child abuse statute and his grant of Bennett’s motion in limine in its entirety suggests evidence of slapping and physical contact was excluded under his ruling.
“We apply the abuse of discretion standard of review to the motion in limine issue. The admission of exclusion of evidence is within the sound discretion of the trial court.” State v. Rowell, 256 Kan. 200, 208, 883 P.2d 1184 (1994). When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. An appellate court’s scope of review on questions of law is unlimited. State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
Judge Burdette stated he excluded the evidence because he was bound by Judge Johnson s ruling, but he misconstrued Judge Johnson’s ruling. Further, Judge Johnson did not rule on the admissibility of evidence at trial. He properly bound Bennett over for trial based on a showing that Bennett had committed a crime. See State v. Pioletti, 246 Kan. 49, 60-61, 785 P.2d 963 (1990) (noting defendant may be charged with one offense and bound over for another if it appears on preliminary examination he is guilty of a public offense).
Although the State amended the Information in accordance with the preliminary hearing ruling, it could properly amend the Information to include the physical injury theory at any time before a verdict or finding by the district court as long as it did not allege an additional or different crime. See State v. Matson, 260 Kan. 366, 370, 921 P.2d 790 (1996).
“[A] motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will tend to prejudice the jury. [Citation omitted.]” State v. Copridge, 260 Kan. 19, 27-28, 918 P.2d 1247 (1996).
An appellate court is not bound by the district court’s interpretation of a statute; rather, interpretation of a statute is a question of law and this court’s review is unlimited. See Cure v. Board of Hodgeman County Comm’rs, 263 Kan. 779, 782, 952 P.2d 920 (1998). 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 be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). “[I]n construing statutes, statutory words are presumed to have been and should be treated as consciously chosen, with an understanding of their ordinary and common meaning and with the legislature having meant what it said.” International Ass’n of Firefighters v. City of Kansas City, 264 Kan. 17, 31, 954 P.2d 1079 (1998).
Cruel punishment and physical injury are not defined in K.S.A. 21-3437 or in the criminal code. However, that the legislature used the term “cruel and inhuman corporal punishment” in K.S.A. 21-3609 does not indicate the legislature intended to exclude slapping and other physical contact from the definition of cruel punishment under K.S.A. 21-3437 as suggested by Bennett.
In Paida v. Leach, 260 Kan. 292, 917 P.2d 1342 (1996), the Supreme Court defined the term “bodily injury” as used in the Protection from Abuse Act, K.S.A. 60-3101 et seq. It stated the terms “bodily harm” and “bodily injury” were synonymous. The court noted that in State v. Taylor, 217 Kan. 706, 538 P.2d 1375 (1975), bodily harm was defined as any touching of the victim against the victim’s will, with physical force, in an intentional, hostile, and aggravated manner, or the projecting of such force against the victim. 260 Kan. at 299. The Paida court also stated: “We conclude that bodily injury under the Act requires a finding of substantial physical pain or an impairment of physical condition.” 260 Kan. at 301.
K.S.A. 21-3437(a)(l) is plain and straightforward in its terminology proscribing the commission of “one or more of the following acts: (1) Infliction of physical injury, unreasonable confinement or cruel punishment upon a dependent adult.” It is not a prohibition against three separate and distinct offenses. Physical injury could result from cruel punishment. Unreasonable confinement could also be cruel punishment. “Physical injury” as used in K.S.A. 21-3437 is compatible with “bodily injury” as defined in Paida. Evidence that Bennett slapped his mother could potentially support a charge of intentional infliction of physical injury upon a dependent adult.
At the same time, such evidence could support a charge under a cruel punishment theory. Cruel punishment as defined in Black’s Law Dictionary and the case law tends to fall in the context of the Eighth Amendment prohibition against cruel and unusual punishment. Cruel and unusual punishment is “such punishment as would amount to torture or barbarity, and any cruel and degrading punishment not known to the common law.” Black’s Law Dictionary 1234 (6th ed. 1990). Webster’s New Collegiate Dictionary 271,928 (1981) defines cruel as “disposed to inflict pain or suffering . . . causing or conducive to injury, grief, or pain” and punishment as “severe, rough, or disastrous treatment.” Con sideration must also be given to the age and physical and mental condition of the victim.
Evidence of slapping and other physical contact with a dependent adult for the purpose of disciplining or chastising would fall under a common meaning of cruel punishment. Rosa’s testimony indicating Bennett slapped, pushed, and grabbed his mother was highly probative because it tended to show Bennett intentionally inflicted cruel punishment.
The district court erred in concluding evidence of slapping or other physical contact was excluded from the meaning of cruel punishment under K.S.A. 21-3437(a)(l) and in not examining its probative value. Evidence of slapping, smacking, and rough handling should have been admitted in proof of the State’s Information.
Reversed and remanded for clarification of evidence excluded and further proceedings as necessary. | [
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Rulon, J.:
Defendant Kelly G. Frey appeals the district court’s dismissal of his appeal from a municipal court conviction upon a guilty plea to the charge of driving under the influence. Defendant was sentenced to a $300 fine, 180 days in jail with 178 days suspended on the condition of outpatient treatment, and 1 year of probation. Defendant asserts K.S.A. 22-3609 allows him to appeal his guilty plea.
K.S.A. 22-3609(1) states: “The defendant shall have the right to appeal to the district court of the county from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas.” (Emphasis added.)
The issue before us is whether a guilty plea and sentence constitute a “judgment of a municipal court which adjudges the defendant guilty,” and thus, is appealable under K.S.A. 22-3609(1).
K.S.A. 22-3602(a) states: “No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere.” (Emphasis added.) The prohibition against appeals provided in K.S.A. 22-3602(a) does not apply to pleas accepted by a judge of a Kansas municipal court.
We conclude that the result of a court accepting a guilty plea is a judgment of such court and so, under K.S.A. 22-3609, a defendant has the right to appeal.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Marquardt, J.:
Harold Eichman was charged with two counts of aggravated assault of a law enforcement officer. One incident involved the use of his truck and the other involved the use of a revolver. Eichman was tried by a jury and found not guilty of the charge involving the truck, but was convicted of aggravated assault of a law enforcement officer, committed with a revolver. Eichman appeals.
On August 30, 1996, Kim Eichman, Eichman’s ex-wife, phoned the Rooks County Sheriff s Department for help. Deputies Ronald Turnbull and Yolanda Allen were dispatched to the scene. The deputies were in uniform and in a marked car.
Kim told Deputy Turnbull that she was afraid Eichman might harm her or their children. The deputies found Eichman sitting in his truck in front of Kim’s residence. Deputy Turnbull told Eichman that Kim and the children did not want to see him. He told Eichman to leave or he would be arrested.
Deputy Turnbull said that Eichman used profanity, and the mirror on the driver’s door bumped Deputy Turnbull’s arm as Eichman sped away. Both deputies thought Eichman was going to run over Deputy Turnbull. Eichman testified that as he reached for his keys, Deputy Turnbull jumped backwards and bumped his elbow on the truck mirror.
The deputies located Eichman in his truck parked in the driveway of his father’s residence. Deputy Turnbull was directly behind Eichman when he saw Eichman’s right hand come up holding a revolver. Deputy Turnbull felt threatened and yelled at Eichman to put the gun down. Both deputies believed Eichman was going to shoot at Deputy Turnbull. At about the same time, Deputy Allen Rogers arrived. Deputy Rogers saw Eichman holding the revolver and believed there was going to be a “gun fight.”
After several requests, Eichman put the revolver down. The weapon was fully loaded. Eichman did not point the revolver at a deputy. When Eichman refused to get out of the truck, Deputies Turnbull and Rogers pulled him out, cuffed him, and arrested him.
Eichman testified that the revolver was on the console next to him and when he accelerated, the revolver fell backwards onto the floorboard. After arriving at his father’s house, Eichman reached behind the seat and picked up the revolver. Eichman first realized that deputies were present when he heard Deputy Turnbull say, “’Put the gun down or I’m going to blow your fucking head off.’” Eichman claimed that he laid the gun down on his lap, put his hands up, unlocked the door, and exited the truck without assistance.
Instruction
Eichman argues that an instruction on intent was required because general criminal intent is an element of aggravated assault, and intent was a fundamental issue in the case. Eichman did not request this instruction or object to the trial court’s failure to give it.
“[N]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and tire grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414. Instructions are clearly erroneous only if the reviewing court is firmly convinced drat there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Aggravated assault of a law enforcement officer is intentionally placing a uniformed or properly identified law enforcement officer who is engaged in the performance of his or her duty in reasonable apprehension of immediate bodily harm, committed with a deadly weapon. K.S.A. 21-3411; K.S.A. 21-3410(a); K.S.A. 21-3408.
Criminal intent is an essential element of every crime unless specifically excluded by statute. K.S.A. 21-3201(a). Intentional conduct is purposeful and willful, not accidental. K.S.A. 21-3201(b). PIK Crim. 3d 54.01-A adopts this definition, but the Notes on Use state that the instruction “is not recommended for general use.” Rather, the PIK instruction which defines the crime should cover the applicable intent, specific or general. The PIK Crim. 3d 54.01-A instruction is given only if two criteria are met: (1) the crime requires a general criminal intent, and (2) the state of mind of the defendant is a substantial issue. PIK Crim. 3d 54.01-A, Notes on Use.
The Kansas Supreme Court has held that aggravated assault with a deadly weapon of a law enforcement officer does not require any particular intent or other state of mind. See State v. Farris, 218 Kan. 136, 141, 542 P.2d 725 (1975). Farris, however, was decided prior to 1993. Effective July 1, 1993, the definitions of assault and aggravated assault were changed. See L. 1992, ch. 298, § 9 and § 10. Whether the current statute requires proof of specific or general intent has not been decided by our appellate courts.
“Aggravated assault on a law enforcement officer” was defined as “[ujnlawfully assaulting or striking at another with a deadly weapon,” when “committed against a uniformed or properly iden tified . . . law enforcement officer,” before the statute was amended in 1993. K.S.A. 21-3411 (Ensley 1988); K.S.A. 21-3410(a) (Ensley 1988). Further, assault was defined as an “intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm.” K.S.A. 21-3408 (Ensley 1988).
■ Specific intent is distinguished from general intent where, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts. State v. Esher, 22 Kan. App. 2d 779, 782, 922 P.2d 1123, rev. denied 260 Kan. 997 (1996); see State v. Bruce, 255 Kan. 388, 394, 874 P.2d 1165 (1994). The Court of Appeals in Esher, 22 Kan. App. 2d at 783-84, defined aggravated assault with a deadly weapon as a general intent crime and cited State v. Cunningham, 222 Kan. 704, 707-08, 567 P.2d 879 (1977). However, Cunningham was decided prior to 1993.
Effective July 1,1993, K.S.A. 21-3408 simply requires proof that the defendant intentionally placed another person in reasonable apprehension of immediate bodily harm. The statute does not identify or require a specific intent which must accompany the prohibited act. Thus, it still incorporates the general intent required by K.S.A. 21-3201, not a specific intent. See Esher, 22 Kan. App. 2d at 784 (“intentionally caused physical contact” language in aggravated battery statute makes the crime a general intent crime).
The second prong for giving the general criminal intent instruction was met because Eichman’s intent was the only real disputed issue. He presented two reasons negating intent: (1) He was only retrieving the revolver from the back of truck when he lifted it up, and (2) he did not know any officers were present when he did so. Thus, the court erred because it did not give a general criminal intent instruction separately, or include it in the instruction defining aggravated assault of a law enforcement officer by use of a revolver.
The instructions are clearly erroneous only if this court is firmly convinced that there is a real possibility the jury would have rendered a different verdict had it been instructed on general criminal intent. See Henry, 263 Kan. at 131. Eichman does not show how a layperson’s understanding of intent is different from the definition of intent described in K.S.A. 21-3201 or PIK Crim. 3d 54.01-A, or how an instruction on general criminal intent would cause a different jury verdict.
This case did not involve a complicated factual or legal issue. The jury had to decide if Eichman had the requisite intent towards Deputy Turnbull when he retrieved the revolver from the back of his truck, or if Eichman was holding the revolver up above the back seat so that Deputy Turnbull would see it and become fearful or intimidated. The jury’s decision depended upon its determination of the credibility of the witnesses. The jury believed Deputy Turnbull. Adding an instruction for general criminal intent would not have assisted the jury in deciding which witness was credible. The failure to give the general intent instruction was not reversible error.
Sufficiency of Evidence
When sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
Eichman argues a conviction for aggravated assault requires an overt act directed towards the victim to show intent. He cites several cases to support his theory; however, all of the cases were decided prior to 1993.
The definition of aggravated assault, prior to its amendment in 1993, required a threat or an overt act coupled with the deadly weapon. The current definition does not require an overt act. Rather, any conduct which intentionally places another person in reasonable apprehension of immediate bodily harm is sufficient. When Eichman left Kim’s residence, he challenged Deputy Turn-bull’s authority by recklessly speeding away and shouting profanity at Deputy Turnbull. It is conceivable Eichman wanted to continue this challenge at his father’s house. The jury could have inferred that Eichman held the revolver up high enough and long enough for Deputy Turnbull to see it through the rear window and that Eichman’s intent for doing so was to make Deputy Turnbull fear immediate bodily harm.
The evidence was sufficient for Eichman’s conviction of aggravated assault of a law enforcement officer, committed with a deadly weapon.
Motions for Judgment of Acquittal
Eichman filed two motions for acquittal, one at the close of the State’s evidence and the other after his conviction. His basis for both motions was the same; he argued that an overt act was required to prove intent for a conviction of aggravated assault with a revolver. The trial court believed the issues were whether Eichman’s conduct was intentional and whether Deputy Turnbull’s apprehension of fear of bodily harm was reasonable. Both issues were factual issues for the jury. Both motions were denied.
“ ‘A trial judge, in passing on a motion for judgment of acquittal, must determine whether upon the evidence — giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact therefrom — a reasonable mind or a rational trier of facts might fairly conclude guilt beyond a reasonable doubt.’ ” State v. William, 248 Kan. 389, 400, 807 P.2d 1292 (1991), cert. denied 502 U.S. 837 (1997).
The issues raised in the motions for acquittal were ones of fact and will not be reweighed by this court.
Affirmed. | [
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Elliott, J.;
Bobby D. Riley appeals his convictions and his sentence, having been convicted of two counts of attempted second-degree murder (intentional) and one count of unlawful possession of a firearm.
We affirm in part, reverse in part, and remand.
Riley claims the trial court erred in refusing to instruct on aggravated battery as a lesser included offense of attempted first- degree murder. This may be a case of last impression, since the second prong of the test stated in State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), has been legislatively overruled. See K.S.A. 1998 Supp. 21-3107(2)(d). Here, however, the crimes were committed in 1997.
It appears we must choose between the holdings of three cases. In State v. Dixon, 248 Kan. 776, 811 P.2d 1153 (1991), the defendant was charged with shooting at the victim. The Supreme Court ruled aggravated battery was not a lesser included offense of attempted first-degree murder under the facts presented. 248 Kan. at 784-85.
In State v. Morfitt, 25 Kan. App. 2d 8, 956 P.2d 719, rev. denied 265 Kan. 888 (1998), one of the charges against the defendant was attempted premeditated murder, and the trial court denied defendant’s request for an instruction on aggravated battery. The information charged defendant with placing a sock around the victim’s neck and tightening it. In Morfitt, we held the evidence essential to prove attempted murder also proved aggravated battery. 25 Kan. App. 2d at 16. Accordingly, we concluded the failure to instruct on aggravated battery as a lesser included offense was reversible error. 25 Kan. App. 2d at 16.
The Morfitt court relied on State v. Smith, 245 Kan. 381, 391-92, 781 P.2d 666 (1989), where then Justice (now Chief Justice) McFarland stated:
“ ‘An act of first-degree premeditated murder by means of shooting, beating, or stabbing, etc. requires proof of an aggravated battery. Had the victim survived the charge could have been attempted murder or aggravated battery but not both. No case has been cited where a single act constituting aggravated battery has been held to constitute both aggravated battery and a homicide.’ (Emphasis added.)” 25 Kan. App. 2d at 16.
In the present case, the charges of attempted first-degree murder alleged the defendant “shot [the victim] with a handgun, toward the perpetration of’ the crime of first-degree murder, certainly implying the victim was shot, rather than merely being shot at.
We are compelled to follow Smith and Morfitt rather than Dixon. We thus must hold the failure to instruct on aggravated battery as a lesser included offense under the second prong of Fike was reversible error.
Riley also claims the trial court erred by instructing the jury on attempted second-degree murder as a lesser included offense of attempted first-degree premeditated murder.
Whether second-degree murder was, at the time, a lesser included offense of first-degree murder is immaterial. K.S.A. 21-3107(2) provides a defendant may be convicted of the crime charged or an included crime. Included crimes may be a lesser degree of the crime charged, or a crime necessarily proven if the charged crime is proven. Attempted second-degree murder was a crime necessarily proven if attempted first-degree murder was proven.
State v. Tucker, 253 Kan. 38, 853 P.2d 17 (1993), controls. There, the Supreme Court held that possession of cocaine was not a lesser degree of possession with intent to sell because both were class C felonies. See K.S.A. 65-4127a. It was, however, an included crime as defined in K.S.A. 21-3107(2)(d) (Ensley 1988). The Tucker court held the trial court had jurisdiction to enter a conviction on an uninstructed offense, equivalent in grade to the offense charged. 253 Kan. at 42-43. Thus, Riley’s argument is meritless.
Finally, Riley complains that his receiving the same punishment for attempted second-degree murder as he would have received for attempted first-degree murder (both first- and second-degree murder are off-grid offenses) constitutes disproportionate punishment. Conviction and sentence for a completed second-degree murder allowed for an earlier parole date than for first-degree murder. See K.S.A. 1997 Supp. 22-3717(b)(4). However, a conviction for attempt to commit either crime resulted in sentencing for a severity level 1 offense on the sentencing grid, with identical sentencing ranges. See K.S.A. 21-3301(c). Riley argues that his receiving identical sentences for two degrees of the same crime results in disproportionate punishment, violating the Eighth Amendment to the United States Constitution’s prohibition against cruel and unusual punishment.
This is an issue of first impression in Kansas.
The legislature is the branch of government entrusted with the power to set the punishment for a crime. State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991). Thus, Riley must show his punishment is constitutionally impermissible because it is so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
Courts are reluctant to overturn sentences solely on the length of incarceration rather than the method of punishment. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 989-94, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991) (Eighth Amendment probably contains no proportionality guarantee). Here, Riley received a mid-range, concurrent sentence, well shy of the statutory maximum.
In considering whether a sentence is disproportionate, a court may compare the punishment with punishments imposed for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question, the challenged penalty is to that extent suspect. Freeman, 223 Kan. at 367.
Other jurisdictions agree that a lesser included crime may not carry a harsher sentence than the greater. See Willoughby v. Phend, 301 F. Supp. 644, 647 (N.D. Ind. 1969); State v. Dayutis, 127 N.H. 101, 105, 498 A.2d 325 (1985). And some jurisdictions have upheld sentences where the lesser included crime carries a sentence equal to the greater. E.g., People v. Macias, 137 Cal. App. 3d 465, 471, 187 Cal. Rptr. 100 (1982) (equivalent sentences for attempted first- and second-degree murder); Millar v. State, 275 Ind. 465, 469, 417 N.E.2d 1105 (1981).
We can find no legislative history for the bill classifying second-degree murder as an off-grid felony, but it appears the resulting identical penalties for attempted first- and second-degree murder were inadvertent. But it is not our function to determine the wisdom of a legislative determination. See State ex rel. Schneider v. Kennedy, 225 Kan. 13, 21, 587 P.2d 844 (1978).
Further, the trial court had discretion to sentence Riley to any period between 740 and 816 months, a 76-month range, which provided a limited opportunity to ameliorate any harm done. See K.S.A. 1997 Supp. 21-4704. Riley’s sentence does not rise to the level of cruel and unusual punishment.
Riley’s sentence for attempted second-degree murder is not disproportionate merely because the presumptive sentence for attempted first-degree murder was equivalent.
We affirm in part, reverse in part, and remand. | [
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Lewis, J.:
The parties to this lawsuit, Priscilla and Douglas Pierce, were married twice and divorced twice. This action does not concern their first marriage or their first divorce. It deals with Priscilla and Douglas’ second marriage and their second divorce, which was granted in 1993. The parties apparently entered into a property settlement agreement at the time of the divorce. In 1997, Priscilla filed a motion which would have, in effect, modified or amended the original property settlement agreement. The trial judge denied the motion, and Priscilla appeals.
At the time of the divorce, Douglas had retired from the United States Air Force. He was receiving some retirement pay for his years of service. Under the parties’ property settlement agreement, Priscilla was awarded, among other things, “eighteen twentieths (1%oths) of one-half {Vz) of the military retirement benefits of the Respondent, pursuant to 10 USC 1408. From the amount due the Petitioner the Air Force or Defense Accounting Agency shall deduct the cost of the Survivor Benefit Plan of which the Petitioner is the beneficiary.” (Emphasis added.)
The language quoted above is the only reference to Priscilla’s having any interest in the retirement pay. The agreement does not specify that she is to receive any certain amount per month, and it does not specify the length of time for which she is to receive the payment. In addition, there is nothing in the agreement which prevents Douglas from converting his retirement pay to disability benefits.
After the divorce decree was entered, Priscilla filed a motion and the trial court responded by entering an order designed to secure to Priscilla her payments from Douglas’ retirement benefits until the Qualified Domestic Relations Orders had been accepted by the United States Air Force.
We are unable to determine whether the parties reduced their property settlement agreement to writing. We assume they dictated it into the record and that the trial court included it in its decree of divorce. In any event, the trial court considers the agreement set forth in the decree to be the settlement agreement of the parties. The court, in its journal entry, states:
“It Is Therefore By The Court Considered, Ordered, Adjudged And Decked [sic] that the above findings and agreements hereinabove set forth be and hereby are made valid and binding orders of this Court. That pursuant to K.S.A. 60-1610, this agreement may not be amended or modified except by the written agreement and consent of each party hereto.’’ (Emphasis added.)
The trial court’s journal entry and decree of divorce was signed by Priscilla and Douglas, as well as by their respective attorneys.
As we pointed out earlier, there was no indication that Priscilla was to receive any guaranteed amount from Douglas’ retirement. Indeed, there is nothing in the record to indicate what she was getting. However, her attorney has commented that she was receiving $600 per month. For the purposes of this appeal, we will assume that figure is correct.
At some point, Douglas’ retirement pay was converted to or became disability pay. We cannot tell from the record how this occurred. It may have been the result of a request from Douglas or it may have been done by the Veterans Administration (VA) in response to his deteriorating physical condition. In any event, apparently Douglas’ physical condition reached a point at which all of the benefits he was receiving were disability benefits.
According to Priscilla’s attorney, she was receiving $600 one month and nothing the next. In order to rectify that, Priscilla filed a motion which stated:
“COMES NOW petitioner, Priscilla A. Pierce, and moves the Court to compel respondent to reinstate his military retirement pay so that petitioner can continue to receive her 45% share per the contractual agreement of the parties as set out in the Decree of Divorce herein, or in the alternative, to require respondent to pay to petitioner what she would otherwise receive if respondent had not breached his contractual agreement with petitioner.”
The trial court denied the motion, and Priscilla appeals.
We begin by noting that at the time the motion was filed, the decree of divorce had been a final order for nearly 4 years. The only way to grant the relief which Priscilla sought would have been to modify and change the property settlement agreement. Other possibilities are not properly considered divorce remedies.
The ability of Kansas trial courts to reach military retirement pay has been a troublesome process. In McCarty v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981), the United States Supreme Court precluded state courts from distributing any portion of a military nondisability retirement pension to die former spouse of a military retiree. 453 U.S. at 235-36.
In 1982, and in response to McCarty, Congress enacted the federal Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408. That statute provides: “A court may treat disposable retired pay payable to a member for pay periods beginning after June 25,1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S.C. § 1408(c)(1) (1994). The trouble in this case, however, can be traced to something Congress failed to do. The statute enacted by Congress specifically excludes from the definition of “disposable retired pay” disability benefits which are deducted from the retired member’s pay. 10 U.S.C. § 1408(a)(4)(C) (1994).
The question of the consequences of disability pay not being “disposable retired pay” was answered by the Supreme Court in Mansell v. Mansell, 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989). It is this decision which the trial court relied upon in denying Priscilla’s motion. In Mansell, the husband was receiving both retirement pay and disability pay at the time of the parties’ divorce. He agreed to pay his wife 50% of his total retirement pay, which included a portion of his disability payments. After the divorce, he went back to court, asking the court to remove any requirement that he share his disability pay with his wife. The motion was denied by the trial court, and Mansell was appealed to the United States Supreme Court.
The question presented to the Supreme Court was whether state courts, pursuant to 10 U.S.C. § 1408, could treat as divisible property upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits. 490 U.S. at 583.
The court reasoned that Congress had enacted 10 U.S.C. § 1408 in direct response to McCarty. The USFSPA controlled the extent military benefits could constitute divisible marital property and defined disposable retired pay to specifically exclude waived amounts to receive veteran’s disability payments. The Court’s language was precise and limited; it permitted state courts to treat disposable retired pay as divisible marital property; however, state courts were forbidden to treat total retired pay as community property. The Court construed the USFSPA as not granting state courts the power to treat veterans’ disability benefits as marital property divisible under state law.
Mansell makes it perfectly clear that the state trial courts have no jurisdiction over disability benefits received by a veteran. The trial court in this case cannot order Douglas to change the payments back to retirement benefits, and it cannot order him to pay his disability benefits to Priscilla. We conclude the court may not do indirectly what it cannot do directly.
We are unable to conclude that, in the present context, the trial court has any method of granting relief to Priscilla. Douglas has not violated fhe terms of the property settlement agreement. There is absolutely nothing in that agreement that forbids Douglas from waiving all of his retirement pay in order to receive his disability benefits. There is no set monthly amount which Priscilla was to receive under the agreement. There is no guarantee by Douglas, by the Air Force, or by anyone else as to the length of time the retirement pay would exist. This very unambiguous agreement simply gives Priscilla 1%oths of one-half of Douglas’ retirement pay. Although it does not say so, we presume that Priscilla would receive this amount so long as retirement pay was paid. It appears that she did so. As of this date, Douglas has no retirement pay, but if he did, Priscilla would receive 1%oths of one-half of that pay. It should have been perfectly obvious to anyone concerned in 1993 that if Douglas waived all of his retirement pay for a VA disability pension, Priscilla would get 18/2oths of one-half of nothing. Despite this fact, nothing was put in the agreement to protect Priscilla from what appears to have been an absolute right and option which Douglas could exercise with regard to his retirement pay. Again, we do not know whether the retirement pay was waived voluntarily by Douglas or was simply waived by the VA due to his deteriorating physical condition.
The agreement entered into by the parties could not “be amended or modified except by the written agreement and consent of each party hereto.” Priscilla asks that we violate that provision of the agreement, but we are not inclined to do so.
If there is relief for Priscilla from the judgment entered by the court, it would be found under K.S.A. 60-260(b):
“On motion and upon such terms as are just, the court may reheve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K.S.A. 60-309 or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram nobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this article or by an independent action.”
This statute requires that a motion for relief be filed within 1 year after the judgment takes effect as to grounds (1), (2), and (3). As we said in In re Marriage of Hunt, 10 Kan. App. 2d 254, 260, 697 P.2d 80 (1985):
“Thus, if the basis for setting aside a judgment is, for example, fraud by an adverse party, a 60-260(b) movant can obtain relief only if he files his motion not more than one year after judgment was entered-, the party cannot escape this time limit by seeking relief under 60-260(b)(6).” (Emphasis added.)
In this case, far more than a year has passed since the effective date of this divorce judgment, and any motion filed by Priscilla would not afford her any relief under that statute.
We have searched the record and the pleadings filed by Priscilla and find no allegation that Douglas was guilty of fraud or any overt bad faith in the way he dealt with his retirement plan.
We hold that the trial court did not err in denying Priscilla’s motion as filed. Priscilla had every ability at the time of the divorce to protect herself from the situation with which we now deal. She failed to do so. She could have insisted that Douglas agree that he would not convert his retirement funds to disability funds. She did not do so. She could have provided that in the event the retirement funds were converted to disability benefits that Douglas would be required to continue to pay her from other assets. She did not do so. We conclude that in the interest of justice and public policy, the finality of property divisions in a divorce decree is of significant importance. This decree has been final for over 4 years. Priscilla has shown us no valid reason to tinker with that decree.
In the long run, Priscilla was awarded an asset which has significantly declined in value. We do not believe that when an asset awarded under a divorce decree has subsequently declined in value, the party harmed thereby can reopen the divorce and demand additional property or more payments. In essence, this is what Priscilla seeks in this matter.
There are other decisions from a variety of states which deal with this issue. Some of those decisions deny the relief sought by Priscilla. See Marriage of Jennings, 91 Wash. App. 543, 958 P.2d 358 (1998); Matter of Marriage of Reinauer, 946 S.W.2d 853 (Tex. App. 1997). These decisions are all consistent with the positions we have taken in this opinion.
On the other hand, the relief sought by Priscilla has been granted by other state courts. In total, these constitute the majority of decisions in this type of case. In our opinion, the rationale used in many of those decisions is inconsistent with the law of this state.
In Dexter v. Dexter, 105 Md. App. 678, 661 A.2d 171 (1995), the ex-wife sued the ex-husband for breach of contract upon facts similar to this case. The court found the ex-husband to be guilty of breach of contract and awarded damages to the ex-wife. This method did not affect the terms of the original divorce decree. This was treated as a common-law, ordinary action for breach of contract and damages.
That theory, while somewhat attractive, has absolutely no support in this record on appeal. There is nothing to indicate that Douglas intentionally breached his settlement agreement. As we pointed out earlier in this opinion, a waiver of retirement benefits could have been the result of Douglas’ action or action by the VA. We have no idea which scenario is correct, if either.
We have examined the motion filed by Priscilla and note that it does not allege that Douglas breached his contract; it simply states as a fact that he did. The motion does not allege facts or dates and is not the sort of document that invites a reply.
We also do not believe that a motion filed in a divorce action is or can be construed as an action for breach of contract, at least not as alleged by Priscilla in her motion.
Finally, the trial court, in denying the motion, said:
“The Court: Mr. Shawver, I don’t need to hear from you. I remember this case quite well. It’s fresh on my mind. One of the cases you provided me, Mr. Alexander, specifically stated in [its] finding that the reason the Court disconsidered the US Supreme Court case ruling was because the parties had been ordered in this distribution a certain percentage and the Court said something to the effect. ... I don’t have it in front of me . . . [b]ut, something to the effect that they presumed that the person couldn’t, by agreement, protect itself from this type of event where a subsequent request for increased disability would be made because it was a Court Order. In your case I have the fact that the Supreme Court Case was already decided. Parties by agreement entered into an order of that on its base [sic] only talked in terms of military pension and not in anyway restricted to disability to that amount or restricted in anyway his ability to apply. There was facts to support the fact that the respondent was already drawing some disability or that it was an issue and there’s always the possibility it could increase and the parties by agreement then could take that back into account. It’s not for the Court to interpose [its] determination in this case. Although there is, quite obviously, an effect that falls more heavily on your client in regard to the portion of this agreement. It is not worth (INAUDIBLE) to rewrite the agreement for the parties simply because one party suffers adverse consequence from that endorsement. So basically, on that, I took that into consideration. . . . It’s clearly not an issue that’s been decided in the State Court here in Kansas. I’m not sure how they would look at it, but as far as I’m concerned, and I remain convinced that the ruling was proper, and I’ll deny the motion to reconsidered [sic].”
We agree with the comments of the trial court. In addition, we conclude the court was without authority to order Douglas to reinstate retirement pay that no longer existed. The allegations in the motion were not sufficient to institute an action for breach of contract or even to elicit a response from Douglas.
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Wahl, J.:
The Kansas Department of Social and Rehabilitation Services (SRS) filed a motion for termination of parental rights. The attorney for the natural mother made a motion to dismiss SRS’s motion for lack of specificity. The district court granted the motion to dismiss and ordered SRS to file an amended motion. SRS appeals.
The Sedgwick County District Attorney’s office filed a child in need of care petition involving the minor children, C.H.W., E.D.W., and K.F.D., and their mother. Several weeks later, the children were adjudicated to be children in need of care. Subsequently, P.D.D. was bom and a child in need of care case was filed for him. His case was consolidated with the older children’s case.
About 18 months later, SRS filed a motion asking the court to terminate parental rights to C.H.W. and E.D.W. only. The motion set forth three numbered paragraphs which incorporated by reference (1) the filed petition in the case; (2) the court’s journal entries from seven different hearings; and (3) the information from reports submitted to the court for those hearings as noted in the 21 exhibits which were attached. The exhibits totaled 48 pages. The motion’s concluding paragraph requested that parental rights be terminated “pursuant to K.S.A. 38-1583(a)(b)(2)(3)(4)(7)(8)-(c)(l)(2)(3)(4)(d)(e).”
Six days later, a review hearing was held. When the court asked if there were any objections to the recent reports being admitted, the mother’s attorney objected because SRS had filed a motion to terminate. The attorney informed the court a written objection to SRS’s motion would be forthcoming. The court advised the attorney that an oral objection could be made.
The mother’s attorney argued the motion did not comply with the statutory requirement of stating the specific facts relied upon to terminate parental rights. The attorney alleged that the numer ous exhibits made it difficult to determine which allegations were the basis for SRS’s motion. Further, the attorney contended, to advise the mother of the basis for the motion, the attorney had to share these privileged and confidential documents with the mother.
In response to the confidentiality argument, SRS argued that because the documents could be admitted in evidence at a court hearing, they could be shared with the parents as exhibits to the motion to terminate. In response to the lack of specificity, SRS argued that providing the entire reports made the motion more specific than stating a paragraph from the report.
The court dismissed SRS’s motion and ordered the case continued to “receive SRS’s amended motion for termination of the parental rights of [the parents.]” SRS filed a notice of appeal.
Does this court have jurisdiction?
This court filed an order to show cause regarding jurisdiction. It questioned whether the district court’s order was a final appealable order pursuant to K.S.A. 1998 Supp. 38-1591(a). Only SRS responded. It argued the district court’s order is final under K.S.A. 60-2102(a)(1), In re T.D.W., 18 Kan. App. 2d 286, 850 P.2d 947 (1993), and Valley State Bank v. Geiger, 12 Kan. App. 2d 485, 748 P.2d 905 (1988).
“The right to appeal is entirely statutory .... [Citation omitted.] An appellate court has the duty of questioning jurisdiction on its own motion. If the record discloses a lack of jurisdiction, the appeal must be dismissed. [Citation omitted.]” McDonald v. Hannigan, 262 Kan. 156, 160, 936 P.2d 262 (1997).
In re T.D.W. does not support SRS’s argument. In In re T.D.W., the State appealed from the denial of its motion to terminate parental rights. Because case law indicated the State cannot file a new termination motion based solely on the exact circumstances alleged in a prior motion which was denied, the trial court’s decision on those exact circumstances is final to the State. In re T.D.W., 18 Kan. App. 2d at 289. Here, a proceeding was not held on the merits of the motion. Thus, the alleged circumstances for termination would not become res judicata.
Valley State Bank does not support SRS’s argument either. It involved a mortgage foreclosure action where the debtor appealed the trial court’s order of sale directing the sale of the property in parcels different from those requested by the debtor. Since the statutes provided for further court action after the issuing of the order of sale, the order was not a final determination of the title to the real estate. Because the order was not final, the appeal was dismissed. Here, the dismissal of SRS’s motion did not terminate the case.
K.S.A. 38-1501 et seq. is the statutory authority in the code for care of children. K.S.A. 1998 Supp. 38-1591(a) provides that any interested party may appeal from “any adjudication, disposition, termination of parental rights or order of temporary custody in any proceedings pursuant to this code.” Appeal procedures are “governed by article 21 of chapter 60 of the Kansas Statutes Annotated.” K.S.A. 1998 Supp. 38-1591(c).
The Court of Appeals’ jurisdiction may be invoked by appeal as a matter of right from an “order that discharges, vacates or modifies a provisional remedy.” K.S.A. 60-2102(a)(l). SRS argues this statute is applicable; however, the trial court did not dismiss a provisional remedy. The orders finding the children to be in need of care and placing them in temporary custody of the State are still valid.
Jurisdiction may also be invoked by appealing from a final decision in any action. Then, “any act or ruling from the beginning of the proceedings shall be reviewable.” K.S.A. 60-2102(a)(4). A final decision is a decision “which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court. [Citation omitted.]” Skahan v. Powell, 8 Kan. App. 2d 204, 205-06, 653 P.2d 1192 (1982).
Here, the order does not decide and dispose of the entire merits of the controversy. Further court action is necessary. The order dismissing the motion for termination of parental rights is not final. Skahan, however, recognized the “collateral order” doctrine which allows appeals from a decision that is not a final decision under K.S.A. 60-2102(a)(4). 8 Kan. App. 2d at 206 (citing Cohen v. Ben eficial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 [1949]).
The collateral order doctrine has three requirements. The “order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” 8 Kan. App. 2d at 206.
Here, the order conclusively determined the motion was defective. The form of the motion is completely separate from the actual merits of the case and has public importance because SRS is an interested party in children in need of care cases statewide. Also, the order may not be reviewable. If SRS succeeds on its amended motion, it would have to appeal from a favorable decision to review this ruling and then the issue may be moot if SRS is no longer prejudiced.
Under the collateral order doctrine, this court has jurisdiction of this appeal.
Did the district court err in dismissing SRS’s motion?
This issue requires an interpretation of K.S.A. 1998 Supp. 38-1581(b) and K.S.A. 1998 Supp. 38-1506(b). Statutory interpretation is a question of law and appellate review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
A pleading requesting termination of parental rights “shall contain a statement of specific facts which are relied upon to support the request, including dates, times and locations to the extent known.” (Emphasis added.) K.S.A. 1998 Supp. 38-1581(b).
SRS relies upon In re D.R.R., 25 Kan. App. 2d 561, 965 P.2d 861 (1998), to support its motion, but the reliance is misplaced. In In re D.R.R., the mother argued she was denied due process when the trial court did not prepare a written pretrial order pursuant to Supreme Court Rule 140(e) (1997 Kan. Ct. R. Annot. 167). The specificity of the State’s motion to terminate was not an issue. The court stated: “The State fully set forth the basis of its case in the motion for termination. . . . The State pled a presumption of unfitness based on prior terminations of appellant’s parental rights and the findings of fact contained in the journal entries of prior terminations.” 25 Kan. App. 2d at 564-65. This language does not indicate the State’s motion incorporated attached exhibits by reference without making any specific factual allegations in the motion.
SRS’s comparison of its motion for termination to a petition in a contract case which incorporates the contract as an exhibit is also misplaced. K.S.A. 1998 Supp. 60-209(h) specifically authorizes such a procedure when the claim, defense, or counterclaim is founded upon a written instrument. Here, the claim is not founded upon a contract, and this procedure is not authorized under the code for care of children.
The Kansas Supreme Court addressed a similar issue in a case involving a guaranty agreement attached to a petition. In Hoover Equipment Co. v. Smith, 198 Kan. 127, 422 P.2d 914 (1967), the husband signed a sale contract requiring installment payments to plaintiff. A separate guaranty for the installment payments was signed by the husband and wife. The petition contained allegations necessary to obtain foreclosure of a real estate mortgage and attached copies of all contracts as exhibits. It did not contain allegations about the guaranty agreement. The issue was whether the petition stated a claim based upon the guaranty contract.
The plaintiff argued that attaching the guaranty was sufficient to allege a claim under the guaranty agreement pursuant to K.S.A. 60-209(h) and 60-210(c) (an exhibit attached to a pleading is a part thereof for all purposes). The court held an exhibit attached to a pleading cannot take the place of an allegation lacking in the pleading when such allegation is necessary to declare a legal claim for relief against an opposing party. Hoover Equipment Co. v. Smith, 198 Kan. at 132.
Here, SRS referenced and incorporated each report in its motion. This distinction is not persuasive. Under the language of Hoover Equipment Co., referencing and incorporating a document is not the same as making an allegation stating a claim upon which relief can be granted. Because K.S.A. 1998 Supp. 38-1581 requires specific facts to be stated in a motion for termination of parental rights, the holding in Hoover is even more pertinent. It acknowl edges an exhibit may be considered as part of a pleading to clarify, explain, or document the same, but an exhibit to a pleading cannot serve the purpose of supplying necessary material averments. The exhibit’s content cannot be taken as part of the allegations of the pleading itself.
In addition to statutory concerns, the parent/child relationship is a liberty interest protected by the Fourteenth Amendment Due Process Clause. Notice and an opportunity to be heard and to defend are the essential requirements of due process. In re S.M., 12 Kan. App. 2d 255, 256, 738 P.2d 883 (1987). SRS must meet the due process requisites by fundamentally fair procedures when seeking to terminate the parent/child relationship. Three criteria are considered:
“[FJirst, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interests through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” In re J.L.D., 14 Kan. App. 2d 487, 490, 794 P.2d 319 (1990) (citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 96 S. Ct. 893 [1976]).
The loss of all parental rights by SRS’s actions involves significant private interests. The procedure of incorporating entire reports by reference without making specific allegations in the pleading leaves parents and their attorneys to defend against all allegations in the reports or to choose certain allegations in the reports to defend against. By the latter approach, parents risk losing their children if they choose the wrong allegations to defend. By comparison, the probable value of requiring specific allegations in the motion as a procedural safeguard is strong since it eliminates the guesswork.
Protecting parents from unclear pleadings must be weighed against SRS’s interest in protecting children from abusive or neglectful parents. Requiring SRS to specifically allege in its motion the basis for termination will require more time to prepare the motion. SRS wants to shift the additional time to glean the merits from the reports for termination to the parents and their attorneys. This preparation time is an inconsequential inconvenience to SRS, and to shift that burden to the parents is not a fundamentally fair procedure to meet due process requirements.
Under K.S.A. 1998 Supp. 38-1506(b), the court’s social file consists of reports and information received by the court, but it does not include the pleadings or official file. The social file “shall be privileged and open to inspection only by the guardian ad litem or an attorney for an interested party or upon court order. The reports shall not be further disclosed by the guardian ad litem or attorney without approval of the court or by being presented as admissible evidence.”
SRS argues it is permissible to disclose the information contained in the social file. The only authority it cited for the definition of “admissible” was Black’s Law Dictionary. SRS overlooks the definition of “admissible evidence,” which is the term used in K.S.A. 1998 Supp. 38-1506(b). Admissible evidence “means that the evidence introduced is of such a character that the court or judge is bound to receive it; that is, allow it to be introduced at trial.” Black’s Law Dictionary 47 (6th ed. 1990).
The key words are “the evidence introduced.” Evidence is introduced at a court hearing on the merits. The adversarial process is at work during a court hearing. Documentation which may be admissible could be denied admission in evidence because of other overriding concerns. Reports may be cumulative, irrelevant, or inadmissible for another reason, such as hearsay.
SRS argues that if it is prohibited from attaching the reports to its motion, the statute is effectively interpreted to mean admitted evidence. If so, the other parties would not receive the reports in time to prepare a meaningful defense. This is misleading. First, the reports become available to the other parties when SRS presents them for admission into evidence, not after the court admits them into evidence. Second, the statute allows the social file to be available to the attorneys prior to the hearing. The prohibition is disclosing the social file to anyone other than the attorneys for the parties. If the motion sets forth specific allegations, the attorneys can share this information with their clients. In preparation for the hearing, the attorneys have the responsibility to determine which information from the social file could be used to prove or deny the allegations of the motion.
Did the district court violate the separation of powers doctrine?
SRS contends the court violated the separation of powers doctrine by ordering it to file an amended motion for termination of parental rights and requests a reversal of this order.
The question of whether one branch of government has usurped the power of another branch has been stated as a constitutional question. See State v. Greenlee, 228 Kan. 712, 716, 620 P.2d 1132 (1980). This issue was not presented to the trial court; however, a newly asserted theory can be reviewed if it involves only a question of law arising on proved or admitted facts which is finally determinative of the matter. In re Conservatorship of Marcotte, 243 Kan. 190, 196, 756 P.2d 1091 (1988). We believe this issue must be resolved. The standard of review on questions of law is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. at 879.
The standards to be applied for determining whether the separation of powers doctrine was violated are stated in State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983). The separation of powers doctrine means the whole power of one branch of government should not be exercised by the same hands which possess the whole power of either of the other branches. A complete separation is neither necessarily desirable nor intended by the Constitution. It has long been recognized that the powers of one branch may overlap with another branch’s powers. Recent cases have taken a pragmatic, flexible, and practical approach which recognizes the fact there is a certain degree of blending of the three powers of government and a complete separation of powers is impossible. Kansas cases involving the separation of powers have established general principles. State v. Compton, 233 Kan. at 696-97.
Compton states four general principles for separation of powers issues. Two of these principles are applicable to SRS’s argument. First, when there is a significant interference by one branch with the operations of another branch, a usurpation of powers exists. Second, to determine if a usurpation of powers exists, a court should consider “(a) the essential nature of the power being ex ercised; (b) the degree of control by one [branch] over another; (c) the objective sought to be attained by the [branch exercising control]; and (d) the practical result of the blending of powers as shown by actual experience over a period of time. [Citation omitted.]” 233 Kan. at 697.
Applying these principles, the trial court’s order for SRS to file an amended motion was not a significant interference by the judicial branch with the operations of the executive branch. The trial court was applying its judicial power by ordering SRS to comply with K.S.A. 1998 Supp. 38-1506(b) and K.S.A. 1998 Supp. 38-1581. The court’s objectives were to have motions filed in compliance with the statutes and to continue a timely progression of the case. The practical result of ordering SRS to file an amended motion to be received on the next court date is of little consequence. SRS had already shown its intention to terminate the parental rights when it filed the initial motion.
This issue is without merit.
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Hill, J.:
Travelers Insurance Company (Travelers) appeals the dismissal of its administrative appeal to the Workers Compensation Board (Board). We affirm.
The claimant, Robert Carpenter, while an employee of National Filter Service (National), injured his knee while working in Minnesota. National has offices in Wichita. The claimant’s contract was signed in Kansas. The claimant’s job required him to travel to stores at various locations in the Midwest.
At the time of the claimant’s accident, National had obtained workers compensation coverage under an insurance policy issued by Royal Insurance Company (Royal). The policy is administered by Travelers in Kansas.
The administrative law judge made a prehminary award to the claimant of temporaiy total disability benefits from the date of the accident forward and the cost of medical treatment. The judge assessed the costs of all benefits against Travelers and Royal.
Travelers appealed to the Board, arguing the policy did not cover injuries in Kansas. The Board dismissed the appeal.
The Board’s review is limited to final orders, awards, modifications of awards, or prehminary awards under K.S.A. 1998 Supp. 44-534a. See K.S.A. 1998 Supp. 44-551(b)(l).
In this appeal, Travelers argues that the assessment entered by the judge was a prehminary award. Therefore, we must look to the Workers Compensation Act for the methods of its administration. See Jones v. Continental Can. Co., 260 Kan. 547, 557, 920 P.2d 939 (1996). Interpretation of a statute is a question of law, subject to unlimited review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
The judge in this case described the proceeding as a prehminary hearing. Prehminary awards, however, are not generally appealable to the Board. See Rivera v. Cimarron Dairy, 267 Kan. 875, 879, 988 P.2d 235 (1999). As the Rivera court stated, the purpose of foreclosing an appeal from a prehminary hearing is to afford the injured employee immediate access to medical and living expenses pending a full hearing. 267 Kan. at 879.
At a prehminary hearing, the judge may summarily award medical and temporary total disability compensation upon a finding that the injury is compensable. If the compensability of the claim or tht. claimant’s entitlement to benefits is disputed, the employer may present evidence on the disputed issues. See K.S.A. 1998 Supp. 44-534a(a)(2). The statute then lists findings on disputed issues which are subject to Board review: whether the claimant suffered an injury by accident; whether the injury arose out of and in the course of employment; whether notice was given or claim timely made; or whether certain defenses apply. K.S.A. 1998 Supp. 44-534a(a)(2).
The statute does not specify the “certain defenses” which may be appealed to the Board. The statute does state that all the listed findings subject to Board review are considered jurisdictional. Thus, Board review is limited to allegations that the judge exceeded the judge’s jurisdiction in entering the preliminary award. See K.S.A. 1998 Supp. 44-551(b)(2)(A).
Travelers maintains that the judge exceeded his jurisdiction because the claimant was not covered by the Royal policy on the date of the accident. We note that Travelers does not deny the judge has subject matter jurisdiction over insurance liability. However, Travelers does claim it was not a proper party to the proceedings because Royal’s policy was not effective in Kansas.
Travelers cites as support King v. El Dorado Motor Co., 181 Kan. 477, 311 P.2d 999 (1957), where the administrative agency was held to have no jurisdiction over an insurance agent or broker who was not qualified to offer workers compensation insurance in Kansas. Travelers argues the judge similarly lacked jurisdiction in this case to assess the preliminary award against it and Royal. Whatever the merits of Travelers’ contention, the Board had jurisdiction to review the issue only as provided by the Workers Compensation Act. In this instance, the Board had jurisdiction if the argument raised by Travelers fit under the “certain defenses” provision of K.S.A. 1998 Supp. 44-534a(a)(2).
It is important to note that K.S.A. 1998 Supp. 44-534a(a)(2) contemplates disputes in preliminary hearings only over the compensability of the injury and the analogous question of the claimant’s entitlement to benefits. It seems to us that the very purpose of the prehminary hearing is to determine whether the claimant should be receiving benefits under the Act. See Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 915, 924 P.2d 1280 (1996). In keeping with this, the disputed findings subject to Board review, other than the “certain defenses,” are the findings necessary to establish coverage by the Workers Compensation Act. For example, see K.S.A. 1998 Supp. 44-501(a), requiring examination as to whether the injury was one arising out of and in the course of employment, and K.S.A. 44-520a(a), raising whether notice and claim were filed in a timely manner. It is in this sense that they are considered jurisdictional.
When construing statutes, this court must construe the several provisions of an act together. See KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997). Therefore, the Board’s jurisdiction to review allegations the judge exceeded the judge’s jurisdiction, as provided in K.S.A. 1998 Supp. 44-551(b)(2)(A), must be read together with K.S.A. 1998 Supp. 44-534a. Because in 44-534a jurisdiction means coverage by the Act, “certain defenses” are subject to review only if they dispute the compensability of the injury under the Act.
In Shain, the Fund argued it was not liable under recent amendments to the Workers Compensation Act. An administrative law judge denied the Fund’s motion to dismiss and the Board dismissed the Fund’s appeal as interlocutory. 22 Kan. App. 2d at 914. A panel of the Court of Appeals determined the judge’s order denying dismissal was not a preliminary award under 44-534a because it did not relate to medical or temporary total disability compensation. 22 Kan. App. 2d at 915. In other words, it did not deal with the compensability of the injury.
While the panel found the Board had jurisdiction to consider the order in Shain, the statute controlling Board jurisdiction, 44-551, has since been amended. See L. 1997, ch. 125, § 12. Unlike the law controlling in Shain, which allowed Board review of all acts and findings of a judge, the amended statute restricts review to final orders, awards, and modifications of awards, with the exception of appeals from preliminary awards under 44-534a and amendments thereto. See K.S.A. 1998 Supp. 44-551(b)(l).
King also is not to the contrary because it did not involve Board jurisdiction over an appeal from a preliminary hearing. See 181 Kan. at 478. Travelers had a right to Board review only if the Workers Compensation Act allows it. The legislature did not provide for Board review from a preliminary award unless the compensability of the injury is disputed.
The ruling in another case cited by Travelers, Hedrick v. U.S.D. No. 259, 23 Kan. App. 2d 783, 935 P.2d 1083 (1997), is also not to the contrary because, as noted above, the statute controlling appeals to the Board has been amended. Because we conclude Travelers’ issue was not appealable under K.S.A. 1998 Supp. 44-534a(a)(2), Hedrick is not dispositive. We also note that while the issue in Hedrick arose from the filing of an application for a preliminary hearing, the claimant there had actually already received a final award in her case. See 23 Kan. App. 2d at 784.
Furthermore, the summary nature of the preliminary hearing extends to the review process. An appeal from a preliminary award may be heard and decided by a single member of the Board. K.S.A. 1998 Supp. 44-551(b)(2)(A). Review by the Board is not subject to judicial review. K.S.A. 1998 Supp. 44-534a(a)(2). The Workers Compensation Act shows a legislative intent to provide quick relief unless the claimant’s injury was not compensable under the Workers Compensation Act. Only when compensability is in dispute may the Board review the judge’s findings.
Travelers is not without a remedy because preliminary awards and orders are not binding in the full hearing. See K.S.A. 1998 Supp. 44-534a(a)(2); Waln v. Clarkson Constr. Co., 18 Kan. App. 2d 729, 730, 861 P.2d 1355 (1993). If an insurance carrier pays compensation pursuant to a preliminary award which is then reduced or totally disallowed, the insurance carrier is reimbursed by the Fund. See K.S.A. 1998 Supp. 44-534a(b); Waln, 18 Kan. App. 2d at 730.
Because the issue of policy coverage is not an appeal from a preliminary hearing under 44-534a, the Board did not err in dismissing the appeal for lack of jurisdiction.
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SMITH, J.:
This is an appeal from the district court’s refusal to enforce the in terrorem provision of the last will and testament of Emery G. Wells, Jr. We reverse and remand with directions to enforce the provision.
On January 12, 1996, Emery executed his Last Will and Testament. Sharon Wells (from whom Emery was divorced) executed a valid consent, waiving her statutory rights. They remarried later that same day. In April 1996, Emery adopted Sharon’s daughter, Trisha Gerber. On July 2,1996, Emery executed the “First Codicil of Emery G. Wells, Jr. to Last Will and Testament of Emery G. Wells dated January 12, 1996” (First Codicil). This codicil left Sharon additional vehicles and real estate, and added Sharon to the residuary legatees. The First Codicil contained the following provision: “As modified by the foregoing provisions in this my FIRST CODICIL ... I confirm and republish my LAST WILL AND TESTAMENT DATED JANUARY 12, 1996 in all respects except as the same is modified by this my FIRST CODICIL thereto.” This codicil met with all of the necessary testamentary formalities, and again Sharon executed a consent, waiving her statutory rights as a surviving spouse.
On July 16, 1996, Emery executed the “Second Codicil to Last Will and Testament of Emeiy G. Wells, Jr. dated January 12,1996” (Second Codicil). The Second Codicil was executed to correct typographical errors and was essentially identical to the First Codicil in all material respects. It too contained a clause confirming and republishing the “Last Will and Testament dated January 12, 1996.” Still again, Sharon executed a consent waiving her statutory rights as a surviving spouse.
Emery died 2 days after execution of the Second Codicil. A petition was filed to admit to probate Emery’s will of January 12, 1996, as amended by the Second Codicil of July 16,1996. Pursuant to the will, Emery’s son Eric was proposed as executor. The petition also requested the court to determine Sharon’s consents to be valid. Sharon filed a voluntary entry of appearance and waiver of notice. On September 3,1996, an order was entered by the district magistrate judge admitting the will to probate, appointing Eric as executor, and determining the consents to be valid.
On October 23, 1996, in apparent response to a motion pertaining to Wells’ testamentary trust, Sharon, through her attorney, filed an “answer,” asserting the invalidity of Emery’s Last Will and Testament of January 12,1996. She alleged their subsequent marriage and Emery’s adoption of her daughter revoked the will, pursuant to K.S.A. 59-610, and that Emery died intestate. K.S.A. 59-610 provides, in pertinent part: “If after making a will the testator mar ríes and has a child, by birth or adoption, the will is thereby revoked.” She requested a denial of the will to probate.
A hearing was held before the district magistrate judge on the same day her “answer” was filed. No evidence was offered. Sharon’s attorney, with her present, argued Emery’s will was void by operation of law and that it should not be admitted to probate. Eric argued Emery had republished his will subsequent to remarriage and adoption by his codicils. Eric pointed out the will had been admitted to probate and that Sharon had not objected. He also argued Sharon had consented to the will and both codicils.
By journal entry, the district magistrate judge found the purpose of Sharon’s “answer” was to “contest the actual admission of the will to probate, to completely set aside the probated will, including its codicil . . . and handle this matter as an intestate estate.” The court found that Emery’s codicils republished his will; therefore, K.S.A. 59-610 did not apply. The magistrate further noted the court had admitted the will to probate on September 3, 1996, and no appeal had been taken, thereby making the order final.
On March 12,1997, Eric filed a petition for assignment of estate assets. He alleged the in terrorem clause of Emery’s will barred Sharon from taking under the will. This clause provided, in pertinent part:
“If any legatee, devisee or beneficiary hereunder directly or indirectly, contests this will or attempts in any manner to prevent its probate or to set it aside or to alter any of the provisions . . . then, in any such event, I hereby revoke all legacies, bequests, and devises, and trust provisions in favor of such legatee, devisee or beneficiary, and direct that the share that such legatee, devisee or beneficiary would otherwise receive hereunder shall become part of my residuary estate and be disposed of in accordance with the ARTICLES of my will dealing with the disposition of my residuary estate, but with such legatee, devisee or beneficiary having no right to participate therein and to be excluded from any interest in my residuary estate.”
Sharon, through new counsel, filed written defenses, asserting the prior action was taken without her approval or understanding. The matter was assigned to a district judge before whom she argued she had probable cause to pursue a challenge to the will. The district court determined that Sharon had probable cause to con test the will and refused to invoke the in terrorem clause. Eric appeals this determination.
The enforcement of in. terrorem clauses has been considered in at least three reported Kansas cases. In In re Estate of Foster, 190 Kan. 498, 500, 376 P.2d 784 (1962), the Supreme Court adopted the rule of the Restatement of Property § 429 (1944), which held that when a contestant acts with probable cause on a belief a will is invalid, application of an in terrorem clause in the will is prevented. In In re Estate of Koch, 18 Kan. App. 2d 188, 207, 849 P.2d 977, rev. denied 253 Kan. 858 (1993), an in terrorem clause was defined as "a clause in a will in which a testator imposes upon a devisee or legatee a condition that he or she shall not dispute the provisions of the will or the gift shall be void.” The probable cause rule was reiterated without further elucidation.
The probable cause standard for determining whether to invoke an in terrorem sanction was analyzed in In re Estate of Campbell, 19 Kan. App. 2d 795, 801, 876 P.2d 212 (1994). In Campbell, this court adopted the definition of probable cause stated in comment j of the Restatement (Second) of Property § 9.1 (1983). Probable cause was defined as “ ‘the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful.’ ” Campbell, 19 Kan. App. 2d at 801. This standard is to be applied to the specific facts on a case-by-case basis.
Appellate review of this determination is a mixed question of fact and law. Determination of probable cause is normally a question of fact. But where the record reflects no factual dispute, the determination of probable cause is a question of law over which this court has unlimited review. Knight v. Cordry, 22 Kan. App. 2d 9, 12, 913 P.2d 1206, rev. denied 258 Kan. 858 (1995) (probable cause determination for malicious prosecution). Here, there are no disputed material facts. Review of whether Sharon had probable cause to pursue her attack on Emery’s will is plenary.
Emery’s will was admitted to probate on September 3, 1996. The district court found Sharon had validly consented to the will and the Second Codicil. Sharon signed and filed a voluntary entry of appearance and waiver of notice, establishing she knew of the petition and did not oppose it. No appeal was taken from the order admitting the will to probate or determining the validity of the consents, as provided for in K.S.A. 59-2401(a)(l) and (21). Pursuant to K.S.A. 59-2213, the probate code provides the court shall have continuing control over its own orders, judgments, and decrees for 30 days. Thereafter, vacating or modifying such judgments is controlled by K.S.A. 60-260(b). When Sharon filed her “answer” 50 days after the court’s order, K.S.A. 60-260(b) represented her only avenue for relief in the district court.
There is no suggestion in the record that any of the grounds for relief under K.S.A. 60-260(b) were present. Sharon’s argument was that the will was void under K.S.A. 59-610. This is a distinctly separate concept from the judgment being void under K.S.A. 60-260(b)(4). A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process. Producers Equip. Sales, Inc. v. Thomason, 15 Kan. App. 2d 393, Syl. ¶ 2, 808 P.2d 881 (1991).
Sharon’s attack on Emery’s will, asserting it was void under K.S.A. 59-610 and presented by an “answer” filed almost 50 days after the admission of the will to probate, was destined to fail on a procedural basis. We now turn to its substance.
Kansas has long recognized the right of a testator to revive a prior will despite previous explicit revocation. See Derr v. Derr, 123 Kan. 681, Syl. ¶ 2, 256 Pac. 800 (1927). Should a reasonable person, properly informed or advised, conclude a testator cannot revive a will after statutory revocation as provided in K.S.A. 59-610?
Admittedly, there are no Kansas cases directly addressing whether republication by a subsequent codicil revives a will after statutory revocation, pursuant to K.S.A. 59-610. But the “substantial likelihood of success” analysis should not end there. There appear to be no decisions from any jurisdiction which suggest a prohibition of such a revival. The author of Annot., 33 A.L.R.2d 922, 924 states:
“It is clear that a revoked will or codicil which is in existence can be revived by a subsequent codicil, executed with the formalities required by the particular jurisdiction, and no case has been found categorically holding that this cannot be accomplished. . . .
“Whether or not a given will or codicil which has been revoked is revived by a subsequent codicil most frequently resolves itself into a question as to the intention of the testator, or identification of the instrument to which the codicil purports to be a codicil.” (Emphasis added.)
While there appears to be no authority to the contrary, there are ample authorities supporting such a revival. See Matter of Estate of Ivancovich, 151 Ariz. 442, 444, 728 P.2d 661 (1986); Estate of Riddel, 104 Cal. App. 2d 162, 164, 230 P.2d 863 (1951); White v. Conference Claimants Endowment Com'n, Etc., 81 Idaho 17, 28, 336 P.2d 674 (1959); 79 Am. Jur. 2d, Wills § 685, p. 769; 2 Page, Law of Wills §§ 21.86-21.88, 23.15 (1960).
A will revoked pursuant to K.S.A. 59-610 by marriage and subsequent birth or adoption of a child may be revived by republication through a codicil or other instrument which meets the necessaiy testamentary formalities. The substance of Sharon’s attack was contrary to this universally recognized principle of probate law.
There is no question regarding Emery’s intent. The revived will is clearly identified. There is no question regarding execution of the instruments, the party’s capacity, or any other matter which would affect the validity of the will, the codicils, or the consents thereto.
On appeal, Sharon attempts to suggest that her actions did not constitute an attack on Emery’s will and that the action was taken by her attorney without her understanding and agreement. None of these assertions are supported by the record.
Sharon’s attack on Emery’s will lacked a procedural foundation upon which to advance. Its substance lacked authority and sound legal reasoning. Sharon attacked a will that she had consented to three times. Two of these consents were executed after the events she alleged invalidated the testator’s intent. Her attack was destined to fail procedurally, substantively, and factually. There was no substantial likelihood of success; therefore, the contest clearly lacked probable cause. The district court erred in not enforcing the in terrorem clause.
The case is remanded to the district court with directions to enforce the in terrorem clause against Sharon. | [
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Pierron, J.:
After remand from this court, Johnson Group, Inc., (Johnson) and Travelers Insurance Company (Travelers) appeal the decision of the Workers Compensation Board (Board) awarding Fannie L. Copeland work disability benefits based on a finding that Copeland made a good faith effort to find appropriate employment and that Johnson failed to offer Copeland an accommodated position.
The facts in this case can be found at Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997). We remanded the case to the Board in light of the following principles:
“In attempting to harmonize the language of K.S.A. 44-510e(a) with the principles of Foulk [v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995)], we find the factfinder must first make a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre- and post-injury wages based on the actual wages can be made. This may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.
“If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.” 24 Kan. App. 2d at 320.
After submission of briefs on the issues, including the question of whether Johnson offered Copeland an accommodated position, the Board reinstated its original order upon the ensuing findings:
“Claimant [Copeland] applied for unemployment compensation shortly after learning that she had been terminated by respondent [Johnson], She was still receiving those benefits at the time of both the regular hearing and the continuation by deposition of the regular hearing. Although claimant did not recall the names of all of the employers where she had made contacts, it was claimant’s testimony that she had contacted at least three employers a week every week since her unemployment compensation was begun. Based upon that testimony and claimant’s other testimony concerning her job search efforts, the Appeals Board finds that claimant made a good faith effort to find appropriate employment. She is, accordingly, entitled to a 100 percent wage loss based upon her actual wages pre- and post-injury.
“The Court of Appeals also remanded for clarification of the Appeals Board’s findings concerning whether the respondent made claimant an offer of accommodated employment. The Appeals Board found that no specific accommodations were ever offered. Furthermore, even if the employer was willing to accommodate claimant’s temporary restrictions from Dr. Brad W. Storm, the respondent withdrew any such offer of accommodation by terminating claimant before she could attempt any job. The claimant never refused to attempt accommodated work. Therefore, there is no wage to impute under the analysis of Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).”
Our standard of review is to determine whether the Board’s findings of fact are supported by substantial competent evidence. This determination is a question of law which permits our review. In a workers compensation case, substantial competent evidence is such evidence possessing something of substance and relevant conse quence, and furnishing substantial basis of fact from which the issue tendered can be reasonably resolved. Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 26, 947 P.2d 1 (1997).
There are two questions for our resolution. We must determine whether there is substantial competent evidence to support the Board’s finding (1) that Copeland exerted a good faith effort to find appropriate employment and (2) that Johnson failed to offer Copeland an accommodated position.
First, we find there is substantial evidence to support the Board’s decision that Copeland made a good faith effort to find appropriate employment. After she was terminated by Johnson, Copeland applied for and received unemployment benefits. She was required to apply at three places of employment each and every week in order to receive those benefits. At the regular hearing and the subsequent continuation through deposition, Copeland testified to the multiple places she applied for employment and that she could not remember the names of all of the employers she had contacted. She said she was turned down because of her work restrictions or the business was not hiring.
In Copeland, we said that if an employee makes a good faith effort to find appropriate employment, the difference between pre- and post-injury wages “may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.” (Emphasis added.) 24 Kan. App. 2d at 320. Johnson’s main argument on appeal is that it should not be possible for a claimant to receive a 100% wage loss rating when there is expert testimony that the injured worker still has a substantial capacity to earn wages. However, such a result was contemplated in the language previously cited in Copeland and found to be permissible. This is because a work disability award can be based on both task loss, which is directly related to disability, and wage loss, which may be less so.
In this case the Board found a 60% task loss, based on expert testimony. It found a 100% wage loss, based on Copeland’s good faith efforts to find employment, which nevertheless resulted in no employment. The combination of the two produced a work disability award of 80%. These findings are consistent with the evi dence, although another finder of fact might have ruled otherwise. Findings supported by substantial evidence will be upheld by an appellate court even though evidence in the record would have supported contrary findings. Shields v. J.E. Dunn Constr. Co., 24 Kan. App. 2d 382, 385, 946 P.2d 94 (1997).
Copeland’s job searching efforts were not “nothing more than a sham or token effort” as occurred in Cooper v. Mid-America Dairymen, 25 Kan. App. 2d 78, 82, 957 P.2d 1120 (1998). Her efforts might have been better focused as the appellants point out, but we believe the Board’s decision is arguably supported by the evidence.
An employer may limit its work disability liability to the workers functional impairment by offering an accommodated position which the worker is physically able to perform. However, there is substantial evidence to support the Board’s finding that even if Johnson was willing to accommodate Copeland’s temporary restrictions from Dr. Brad W. Storm, Johnson withdrew any such offer of accommodation by terminating Copeland before she could attempt any job. The evidence is undisputed that Dr. Storm and Dr. O’Mailey released Copeland to return to work on December 17, 1993, with temporary restrictions of no lifting over 20 pounds. However, Copeland testified that when she called Duggins Cleaners on December 17,1993, to report she was having transportation problems and was also still in pain, she spoke with the manager, Jerry Miller, and she was not given a specific return date.
Copeland testified she called Duggins again in late December 1993 or early January 1994 and spoke with her supervisor, Steven Stevener. Copeland alleged that he told her:
“ ‘Fannie, take your time.’ He said, ‘Don’t be in a liurry.’ He said, ‘Don’t be like Betty did. She come in here and she’s going through hell. She’s in constant pain and complaining all the time.’ He said, ‘Take your time, because we’re not really doing that much right now. You know, how the slack season goes.’ ”
On the other hand, Stevener testified he had a light duty accommodated position waiting for Copeland in the middle of December 1993, and he denied the alleged telephone conversation where he allegedly told Copeland to take her time in coming back to work. Copeland was terminated on January 6, 1994.
The Board found Copeland’s testimony to be more credible and we will not reweigh the evidence. See Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 871, 924 P.2d 1263, rev. denied 261 Kan. 1084 (1996) (The appellate court will generally not reweigh evidence or evaluate witnesses’ credibility.). Therefore, the evidence supports that Copeland never refused to attempt accommodated work, and we will not impute a wage to her under K.S.A. 44-510e(a).
Affirm. | [
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Lewis, J.:
Defendant Anthony Creamer’s problems began one night in 1997 when he was driving his pickup truck and pulling a utility trailer down Highway 56 in Stevens County. The trailer defendant was pulling detached and struck another vehicle, killing the driver and causing such severe injuries to the pregnant passenger that she suffered a miscarriage. During the investigation following the accident, defendant’s blood alcohol concentration was found to be .13 within 2 hours of his operation of the vehicle. Defendant was charged with and convicted of involuntary manslaughter while driving under the influence of alcohol, injury to a pregnant woman, and operation of a motor vehicle in violation of K.S.A. 1998 Supp. 8-1567. He was sentenced to a term of 41 months in the custody of the Secretary of Corrections. This is a direct appeal from defendant’s convictions.
The facts surrounding defendant’s accident have been condensed and are set forth above. These facts are largely irrelevant to the issues on appeal, and we will not undertake a more exhaustive review of the facts unless necessary for an understanding of our opinion.
Defendant first argues his convictions for injuries to a pregnant woman and DUI involuntary manslaughter are not valid. Defendant’s argument is based on the fact that the statutes in question, K.S.A. 21-3441 and K.S.A. 1998 Supp. 21-3442, do not require proof of a general criminal intent as required by K.S.A. 21-3201.
We do not agree.
To begin with, defendant was convicted by a jury. We are unable to determine whether the jury considered the issue of intent and, if so, to what extent it considered that issue. We cannot determine that fact because the record on appeal does not contain the jury instructions. The fact is, there is no support in the record for defendant’s argument that the jury did not find that he had the requisite criminal intent, if such intent is required. “It is an appellant’s duty to designate a record on appeal sufficient to establish claimed error; without an adequate record, the appellant’s claim of error fails.” Pate v. Riverbend Mobile Home Village, Inc., 25 Kan. App. 2d 48, 52, 955 P.2d 1342 (1998).
Despite the lack of the jury instructions in the record, we will consider the issue on its merits. We will do so because the question of whether the crimes in question are absolute liability crimes is apparently an issue of first impression in this state.
The resolution of this issue requires an inteipretation of K.S.A. 1998 Supp. 21-3442 and K.S.A. 21-3441. We also must interpret the provisions of the Kansas Criminal Code dealing with intent and strict liability crimes, K.S.A. 21-3201 through K.S.A. 1998 Supp. 21-3204.
“Interpretation of a statute is a question of law, and our review is unlimited. State v. Robinson, 261 Kan. 865, 874, 934 P.2d 38 (1997). A fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature rather than determine what the law should or should not be. State v. Proffitt, 261 Kan. 526, 532, 930 P.2d 1059 (1997).” State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
K.S.A. 21-3201 provides: “Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code.” (Emphasis added.)
K.S.A. 1998 Supp. 21-3442 provides: “Involuntary manslaughter while driving under the influence of alcohol or drugs is the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto.”
K.S.A. 21-3441 provides:
“(a) Injury to a pregnant woman by vehicle is injury to a pregnant woman by a person other than the pregnant woman in the unlawful operation of a motor vehicle causing the pregnant woman to suffer a miscarriage as a result of that injury.
“(c)(1) Injury to a pregnant woman by vehicle while committing a violation of KS.A. 8-1567 and amendments thereto is a severity level 5, person felony.” (Emphasis added.)
Defendant argues that imposition of strict liability in a felony conviction in K.S.A. 21-3441 and K.S.A. 1998 Supp. 21-3442 directly conflicts with the requirement of K.S.A. 21-3201 of a general criminal intent in every crime, denying defendant his constitutional right to have a jury convict him on all essential elements. The statutes under which defendant was convicted are fairly recent enactments, having been enacted in 1995 and 1996. We conclude that under either a strict liability inteipretation or a general intent interpretation of these statutes, defendant’s convictions should be affirmed.
We have long held that driving while under the influence of alcohol or drugs is an absolute liability offense. City of Wichita v. Hull, 11 Kan. App. 2d 441, 445, 724 P.2d 699 (1986). “An absolute liability offense, unlike most other crimes, does not require any criminal intent. The only proof required to convict an individual of an absolute liability offense is that the individual engaged in the prohibited conduct.” State v. Hopper, 260 Kan. 66, 70, 917 P.2d 872 (1996). See State v. Pendleton, 18 Kan. App. 2d 179, 185, 849 P.2d 143 (1993).
There is no question that the legislature has the authority to create absolute liability crimes. In State v. Merrifield, 180 Kan. 267, 269, 303 P.2d 155 (1956), the Supreme Court said:
“The legislature may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and where the legislative intention appears, it is incumbent upon the courts to give it effect, although the intent of the doer may have been innocent. The doing of an inhibited act constitutes the crime, and the moral turpitude or purity of motive by which it is prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the question of guilt.”
If defendant is arguing that his constitutional rights are violated by being convicted of an absolute liability crime under these circumstances, that argument has no merit. The United States Supreme Court has upheld the constitutionality of absolute liability offenses. See Morissette v. United States, 342 U.S. 246, 258, 96 L. Ed. 288, 72 S. Ct. 240 (1954).
The legislature, in enacting K.S.A. 1998 Supp. 21-3442, has defined involuntary manslaughter while driving under the influence of alcohol and drugs to be the unintentional killing of a human being committed in the commission of K.S.A. 1998 Supp. 8-1567. In other words, involuntary manslaughter is the unintentional killing of a human being while driving a vehicle while under the influence of drugs or alcohol as described in K.S.A. 1998 Supp. 8-1567. In enacting K.S.A. 21-3441, the legislature has described the crime of injury to a pregnant woman as an injury to a pregnant woman which occurs during the unlawful operation of a motor vehicle when that injury causes the pregnant woman to suffer a miscarriage. K.S.A. 21-3441(c)(l) makes an injury to a pregnant woman by vehicle while committing DUI a severity level 5, person felony. As we read those statutes, proof need only be made that the individual died or the pregnant woman was injured by an accident involving a vehicle driven by the defendant while under the influence of drugs or alcohol as defined by K.S.A. 1998 Supp. 8-1567.
“[T]he legislature is presumed to act with knowledge of relevant judicial decisions.” Junction City Education Ass'n v. U.S.D. No. 475, 264 Kan. 212, 220, 955 P.2d 1266 (1998). Accordingly, we conclude that when the legislature enacted K.S.A. 21-3441 and K.S.A. 1998 Supp. 21-3442, it made the commission of the underlying DUI the act required for criminal liability with full knowledge that the courts of this state had determined DUI to be a strict liability offense.
We hold the crimes defined by K.S.A. 21-3441 and K.S.A. 1998 Supp. 21-3442 are absolute or strict liability crimes. Accordingly, the only proof required is that the individual was engaged in the driving of a motor vehicle while under the influence of alcohol or drugs, as defined by K.S.A. 1998 Supp. 8-1567, and that the death or injuries occurred during the commission of the act of DUI. There is no requirement that the State prove a specific criminal intent.
Defendant argues that if the crimes in question are strict liability crimes, then they conflict with the provisions of K.S.A. 21-3201 through K.S.A. 1998 Supp. 21-3204. We do not agree.
Kansas has always followed the contemporary view, which does not favor strict liability offenses. State v. Lewis, 263 Kan. at 857-58. In Lewis, the Supreme Court discussed the statutory exception to the general criminal intent requirements of K.S.A. 21-3201, which is found in K.S.A. 1998 Supp. 21-3204, and concluded that “[t]he legislature, in adopting the Kansas Criminal Code in 1969, limited the public welfare doctrine as an exception to intent to those offenses which are (1) misdemeanors or traffic infractions and (2) clearly indicate a legislative purpose to impose absolute liability for the conduct described.” 263 Kan. at 857.
K.S.A. 1998 Supp. 21-3204 is not an exclusive exception to the general intent requirements and does not control in this case. The court in Lewis, 263 Kan. 843, Syl. ¶ 4, states:
“Except as otherwise provided, a criminal intent is an essential element of every crime defined by the Kansas Criminal Code. The criminal intent requirement found in the Kansas Criminal Code applies to crimes created by a statute not contained within the Kansas Criminal Code unless the statute creating the crime expressly states otherwise, or the context of the statute otherwise requires.” (Emphasis added.)
This is the same language used in K.S.A. 21-3201, which requires a criminal intent “except as otherwise provided.”
We conclude the two statutes involved in this action fall within the otherwise provided language insofar as the requirement of criminal intent is concerned. The fundamental rule of statutory construction is that the purpose and intent of the legislature controls when applicable from the statute. State v. Gillon, 25 Kan. App. 2d 809, Syl. ¶ 1, 974 P.2d 1115 (1999). When a conflict exists between a general and specific statute, the specific controls unless it appears the legislature intended to make the general act controlling. Likewise, when a conflict exists, the most recent enactment controls. In this case, K.S.A. 21-3441 and K.S.A. 1998 Supp. 21-3442 are the most recent enactments and expressions of legislative intent. This being the case, any conflict must be resolved in favor of these statutes. Since we interpret those statutes as imposing absolute liability, we conclude the legislature intended it to be that way.
However, if one needs to find intent, it can be found. When no intent can be found within a statute, the provisions of K.S.A. 21-3201 as to criminal intent applies. State v. Farris, 218 Kan. 136, 141, 542 P.2d 725 (1975). “[I]ntent may be established by proof that the conduct of the accused person was willful or wanton.” State v. Thompson, 237 Kan. 562, 567, 701 P.2d 694 (1985).
This concept can be illustrated by the statutes dealing with the crime formerly known as statutory rape. In State v. Isley, 262 Kan. 281, 936 P.2d 275 (1997), the Supreme Court upheld a conviction for aggravated indecent liberties with a child. Defendant argued that intent was “an essential element of the charge of aggravated indecent liberties and the failure to instruct denied him of due process of law.” 262 Kan. at 290. The Supreme Court responded to that and said:
‘To be found guilty of aggravated indecent liberties with a child, as defined in K.S.A. 21-3504(a)(l), the State must only show that the defendant had sexual intercourse with the victims at a time when both victims were 14 or more years of age, but less than 16 years of age.” 262 Kan. at 291-92.
The court reasoned that “[t]he statute only requires proof that the defendant had sexual intercourse with the victims,” a general intent crime. 262 Kan. at 292. “The only proof required for general criminal intent is that the defendant’s conduct consist of a willful or wanton act.” 262 Kan. at 292.
The action of driving a motor vehicle while under the influence of drugs or alcohol is a willful act and is sufficient to satisfy any general intent requirements of K.S.A. 21-3201.
In essence, although we hold the crimes involved in this case to be absolute liability crimes, defendant’s convictions can also be affirmed under a general intent interpretation of these statutes to the effect that defendant’s act of DUI was a willful act and satisfies the requirement of general intent.
Defendant next argues that K.S.A. 21-3441 and K.S.A. 1998 Supp. 21-3442 are unconstitutionally vague and indefinite. This argument is without merit.
“The constitutionality of a statute is a question of law over which this court exercises unlimited review.” State v. Wilson, 267 Kan. 550, 555, 987 P.2d 1060 (1999).
“A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. ¶ 2,930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997).
“ ‘The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.’ [State v. Kirby, 222 Kan. 1, Syl ¶ 1, 563 P.2d 408 (1977).]” Wilson, 267 Kan. at 555.
Defendant seems to argue that the fact that these are absolute liability offenses somehow makes them vague and indefinite. The mere absence of a mental state does not make a statute vague. See State v. Carr, 265 Kan. 608, 615, 963 P.2d 421 (1998). The test remains the same: Does the “ ‘language [convey] a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice[?]’ ” Wilson, 267 Kan. at 555 (quoting Kirby, 222 Kan. 1, Syl. ¶ 1).
K.S.A. 21-3441 warns against unlawfully operating a motor vehicle including driving under the influence, in a manner which injures a pregnant woman, causing the pregnant woman to suffer a miscarriage. The statute is not vague or indefinite. Anyone who can read the English language will understand the conduct proscribed by that statute.
K.S.A. 1998 Supp. 21-3442 warns against unintentionally killing someone while driving under the influence. Again, there is nothing vague or indefinite about the statute, and the language conveys a sufficient warning as to the conduct proscribed.
Defendant’s arguments are without merit.
Finally, defendant argues that K.S.A. 21-3405 prohibits the same type of acts covered under K.S.A. 21-3441 and K.S.A. 1998 Supp. 21-3442. He argues such duplicitous statutes violate constitutional safeguards. We do not agree.
Duplicity is the charging of two separate and distinct offenses in a single count. State v. Anthony, 257 Kan. 1003, 1020, 898 P.2d 1109 (1995). That is not the case in the instant matter.
The key to resolving defendant’s argument is the distinction between a general and a specific statute.
A general law is one in which a statute relates to persons or things as a class; in contrast, a specific statute is one which relates to particular persons or things. State v. Williams, 250 Kan. 730, 736, 829 P.2d 892 (1992). “When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling.” State v. Kraushaar, 264 Kan. 667, 671, 957 P.2d 1106 (1998). The State is required to charge under the specific offense. See Carmichael v. State, 255 Kan. 10, 15, 872 P.2d 240 (1994). We agree that the elements of the crime defined by K.S.A. 21-3405 are similar to the elements defined by 21-3441 and 21-3442. However, the latter two statutes are much more specific than 21-3405. K.S.A. 21-3441 requires that the act, injury by motor vehicle while under the influence, be committed on a pregnant woman. The pregnant woman is a specific subclass of “human beings.” Similarly, K.S.A. 1998 Supp. 21-3442 requires that the unintentional killing be committed during the commission of an act described in 8-1567. This is a specific type of risk. It is clear that in enacting these two statutes, the legislature intended to establish certain offenses applicable only when an individual commits the act for violating K.S.A. 1998 Supp. 8-1567. See Williams, 250 Kan. at 736-37 (finding that when the legislature enacts a more specific statute, a defendant must be charged under it). The State correctly charged defendant with the more specific crimes defined by the two statutes involved in this opinion.
Affirmed. | [
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Knudson, J.:
Teriy V. Cohee appeals the trial court’s denial of his counterpetition for divorce from Patricia J. Cohee on the grounds of failure to perform a material marital duty. He also appeals the trial court’s award of spousal maintenance and division of the marital estate.
Patricia’s petition alleged incompatibility and requested separate maintenance. Terry’s answer and counterpetition requested an absolute divorce on the fault grounds of failure to perform a material marital duty.
We see no reason to set out in detail evidence of the sorry relationship that developed between Patricia and Terry. The trial court’s findings are supported by substantial competent evidence and lead to the inescapable conclusion that there is no conceivable possibility the parties could continue or ever resume a healthy marriage. In fact, Patricia recognized this fact and tried to amend her petition to request an absolute divorce on the grounds of breach of a material marital duty. She also testified at trial that she wanted an absolute divorce. For reasons not clear to this court, after trial the trial court concluded Patricia had failed to formally amend her petition. This ruling appears to constitute error. See Thompson v. Thompson, 168 Kan. 450, 451-52, 213 P.2d 641 (1950). However, neither party has raised this ruling as an issue on appeal. Nevertheless, Patricia’s efforts to amend pleadings and obtain an absolute divorce are factually significant. Both Patricia and Terry realized their marriage had collapsed and a healthy marital relationship would never be resumed.
In its memorandum decision, the trial court stated:
“The court after considering the evidence related to respondent’s counter-petition for divorce based on the grounds of failure to perform a material marital duty or obligation finds that the parties were mutually involved in disputes that deteriorated into violent acts against the other party. Due to the mutuality of the violence the court denies the respondent’s counter-petition for divorce based on the grounds of failure to perform a material marital duty or obligation.
“The court does find that the parties are incompatible and that the petitioner’s petition for separate maintenance should be granted.” (Emphasis added.)
The issue we must first decide is whether the trial court erred in concluding an absolute divorce does not have to be granted notwithstanding the evidence at trial establishes one of the grounds under K.S.A. 60-1601.
K.S.A. 60-1601(a) states, in material part:
“The district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1) Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental illness or mental incapacity of one or both spouses.” (Emphasis added.)
K.S.A. 60-1606 states, in material part: “The court shall grant a requested decree of divorce, separate maintenance or annulment unless the granting of the decree is discretionary under this act or unless the court finds that there are no grounds for the requested alteration of marital status.”
As noted by Professor Nancy G. Maxwell, in discussing the 1982 amendments to the divorce code:
“The final major change in K.S.A. § 60-1601 is language that requires the court to grant the divorce if the evidence establishes one of the grounds for divorce or separate maintenance. The previous statute stated the court may grant the divorce or separate maintenance if the grounds exist, but the new amendment states the court shall grant the petition if grounds are present. Thus the court does not have discretionary power to refuse to grant the divorce, except when a petition is filed by a guardian of an incompetent spouse if both spouses are institutionalized. This change was made because the FLÁC members believed once grounds for divorce were shown, the marriage had ended and the requested divorce or separate maintenance should be granted. Consistent with this intent, K.S.A. § 60-1606 was amended by repealing the discretionary power of the court to refuse to grant a divorce if the parties are found to be in equal fault.” Maxwell, In The Best Interests of the Divided Family: An Analysis ofthe 1982 Amendments to the Kansas Divorce Code, 22 Washburn L.J. 177, 187 (1983).
Maxwell also observed: “The previous code under K.S.A. § 60-1606 permitted the court to refuse to grant a divorce if the parties were equally at fault in the marriage breakdown, except in incompatibility cases. In other words, the statute specifically recognized the defense of recrimination. The new section eliminates the recrimination defense.” 22 Washburn L.J. at 193.
We are persuaded by Maxwell’s comments and a plain reading of K.S.A. 60-1601 and K.S.A. 60-1606 that recrimination is not recognized as a defense to a petition for divorce on the grounds of failure to perform a material marital duty or obligation. Thus, under the findings entered by the trial court, as a matter of law, Patricia and Terry are to be granted an absolute divorce.
Terry also contends the trial court erred in its division of property and award of spousal maintenance. First, Terry contends the trial court did not properly consider fault. In interpreting K.S.A. 60-1610(b)(l), our Supreme Court has said:
“Fault, as a term of art, is not to be considered in the determination of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration. The only exception would be some rare and unusual situation where a party’s conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable.” In re Marriage of Sommers, 246 Kan. 652, 658-59, 792 P.2d 1005 (1990).
The trial court made a finding of mutuality of fault that was supported by substantial competent evidence. This finding belies the notion that Patricia’s fault was any more egregious than the fault of Terry. Moreover, even if it was, Terry does not represent that Patricia’s fault relates “to the present or future financial circumstances of the parties or the award of any particular property.” Sommers, 246 Kan. at 658. Under the facts of this case, consideration of fault in determining a just division of property and an award for spousal maintenance would serve no end but an impermissible one of imposing a penalty for Patricia’s marital misconduct. We conclude the trial court did not abuse its discretion by not considering fault under K.S.A. 60-1610(b).
Finally, Terry in his written brief incidentally questions the trial court’s methodology in providing him with a monetary equalization payment to effectuate an equitable division of property and then tying the payment to Patricia’s award for spousal maintenance. Terry’s argument is not keyed to the record on appeal and no effort is made to provide this court with any citations of authority in support of this unadorned argument. An appellate court will not consider an issue abandoned on appeal. A point incidentally raised but not properly keyed to the record on appeal nor briefed with citations of authority to support the issue is deemed abandoned. See Ekan Properties v. Wilhm, 262 Kan. 495, 503, 939 P.2d 918 (1997); McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994).
Affirmed in part, reversed in part, and remanded with directions to grant a decree of divorce. | [
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Knudson, J.:
Randall L. French appeals the imposition of a departure sentence by the district court. French contends that the aggravating factors relied upon by the district court were not supported by evidence, nor were they substantial and compelling.
We vacate the sentence imposed and remand for resentencing. French was initially charged with four counts of aggravated indecent liberties with a child and one count of sexual battery. Pursuant to a plea bargain, French pled no contest to three counts of indecent solicitation of a child, contrary to K.S.A. 21-3510, a severity level 7, person felony. Before sentencing, French was assigned a category H criminal history; thus, the median presumptive sentence under the Kansas Sentencing Guidelines Act (KSGA) was 13 months’ imprisonment with probation.
The underlying facts surrounding French’s crimes are not fully developed in the record on appeal. The charging documents are in formal language without a factual affidavit; there are no eviden tiaiy transcripts; and there are no detailed victims’ statements. French’s criminal history did not include sex offenses or any crimes against children. The only factual recitation was given by the county attorney in support of the amended charges and French’s nolo contendere pleas:
‘Tour Honor, during the year 1996, the Hutchinson Police Department received numerous reports concerning an individual by the name of Randall L. French. He was residing [in Hutchinson, Kansas]. That’s within Reno County, and [N.C.], who is fourteen years of age, indicated her mother was dating Randall French, and that while she was in the residence in January of 1996, Randall French fondled her in the breast area and touched her in places she did not like, and told her not to tell her mother. She also indicated that on one occasion he made her touch his penis. [R.B.], who is a fifteen-year-old child, indicated that in May of 1996, she was present with Randall French in Hutchinson when he attempted to stick his hand up her shirt and attempted to stick his hand down her pants. [G.K.], who is fourteen-years-of-age, reported that on April 14 of 1996, in a Hutchinson residence — again, all of these events occurred in Reno County. She said Randall French lifted up her shirt and touched the nipples of one of her breast [sic]. All of these young girls indicated they did not want this act to occur.”
After French’s pleas were accepted, the district court gave notice of its intent to impose a dispositional departure because each victim was particularly vulnerable due to age, there were multiple victims, and the crimes constituted a pattern of child victimization. However, at the actual sentencing hearing the district court stated only one reason to support departure: ‘1 am just convinced in my mind that this man has shown a pattern of exploiting young girls, and that is why I departed in this case.” We note that “[t]he court’s comments at the time of sentencing govern as to the reasons for departure.” State v. Gideon, 257 Kan. 591, 623, 894 P.2d 850 (1995). The court sentenced French to 28 months and imposed a dispositional departure.
A claim that a departure factor relied upon by the district court does not constitute substantial and compelling reasons for departure under K.S.A. 21-4716(b)(2) is a question of law. State v. Gideon, 257 Kan. at 623. The term “substantial” refers to something that is real, not imagined, something with substance and not ephemeral. State v. Rhoads, 20 Kan. App. 2d 790, 799, 892 P.2d 918 (1995). The term “compelling” implies that a court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinaiy. A claim that the departure factors are not supported by evidence in the record should be reviewed to determine whether there is substantial evidence supporting the court’s findings or whether they are clearly erroneous. 257 Kan. at 622-23.
K.S.A. 21-4716(b)(3) reads:
“If a factual aspect of a crime is a statutory element of the crime . . . that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.”
Implicit in the district court’s findings is an acknowledgement that the factual aspects of each crime were not per se a consideration in imposing a departure sentence. Also, the underlying circumstances to support a continuing pattern of conduct are distinguishable from the circumstances in State v. Zuck, 21 Kan. App. 2d 597, 605-06, 904 P.2d 1005, rev. denied 258 Kan. 863 (1995) (sexual conduct that occurred with the same victim over a period of years held not covered by the instant conviction).
In Zuck, 21 Kan. App. 2d at 606, we said:
“Because there is no indication that our legislature considered restricting the use of a defendant’s prior uncharged criminal conduct in establishing the presumptive sentence, the sentencing court here had the discretion to consider such conduct as a departure factor. Importantly, one of the purposes of the guidelines is to ensure public safety. Using a history of unpunished sexual exploitation as a factor to justify a departure is consistent with the purposes of the guidelines.”
The substantial and compelling reason to support the departure in Zuck was based upon previous uncharged but similar conduct of the defendant with the victim. In the case now on appeal, the district court’s findings are limited to the inherent facts of each crime of conviction with the conclusion then drawn that the sum of the parts is greater than the whole.
Multiple convictions are specifically addressed in K.S.A. 21-4720. Judges generally have discretion to impose consecutive or concurrent sentences. More significantly, the legislature has specifically considered the impact of multiple convictions in determining an offender’s criminal history under K.S.A. 21-4710. In fact, until amended in 1995, K.S.A. 21-4710 required that the multiple convictions be scored in determining criminal history.
Based upon the above provisions of the KSGA and the purposes and objectives of sentencing guidelines, we conclude that a pattern of exploitative conduct based exclusively upon the inherent facts of the multiple crimes of conviction is not a substantial and compelling reason for a sentencing departure under K.S.A. 21-4716.
Our decision is a narrow one required under the KSGA. Upon remand, the district court is not precluded from considering additional, appropriate reasons that would justify the imposition of a departure sentence. See State v. Peterson, 25 Kan. App. 2d 354, Syl. ¶ 2, 964 P.2d 695, rev. denied 266 Kan. 1114 (1998).
One final matter we will mention to assist the district court upon resentencing. K.S.A. 21-4603d(a) requires the court to consider placement in the Labette Correctional Conservation Camp before a dispositional departure is imposed.
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Larson, J.:
This appeal involves interpretation of the wage loss provisions of an automobile insurance contract. Gary D. Elliott appeals from the trial court’s decision that his recovery from Farm Bureau Insurance Company, Inc., (Farm Bureau) is limited to 85% of his loss of monthly earnings and from the reconsideration of an earlier ruling.
Elliott had purchased automobile insurance coverage from Farm Bureau. The policy provided for loss of earnings benefits to compensate for lost wages, with a limitation of “85% of loss of monthly earnings unless [the wage loss benefits were] required to be reported as gross earnings for Federal Income Tax.”
Elliott was involved in an automobile accident and suffered one day’s wage loss in the amount of $372.06. This claim was submitted to Farm Bureau, which paid 85% of the wage loss claimed, or $316.25. When Elliott insisted in writing that he was entitled to receive 100% of his wage loss, Farm Bureau disagreed and refused to pay more than the 85% offered. This litigation ensued.
Elliott’s petition sought declaratory relief and damages and certification of a class for persons similarly situated. The petition confirmed the wage loss benefits were not federally taxable, but construed the Farm Bureau policy as meaning Elliott was entitled to all of his wage loss claim up to a maximum Emit of 85% of his monthly earnings.
Farm Bureau moved for judgment on the pleadings, asserting that the Kansas Automobile Injury Reparations Act (KAIRA) and, specifically, K.S.A. 1998 Supp. 40-3103(b) provided that wage loss benefits not subject to federal tax must be limited to 85% of the insured’s loss. Farm Bureau argued that Eidemiller v. State Farm Mut. Auto. Ins. Co., 261 Kan. 711, 933 P.2d 748 (1977), required application of the mandatory limitation of the statute regardless of whether the policy included the statutory language.
Elliott responded that Eidemiller was distinguishable because the mandatory statutory exclusion language had been completely absent from the policy in that case. Elliott claimed that Howard v. Farmers Ins. Co., 5 Kan. App. 2d 499, 619 P.2d 160, rev. denied 229 Kan. 670 (1981), was more applicable in its holding that an insurer is hable to its insured under a policy which grants rights in excess of those required by statute.
The trial court denied the request for judgment on the pleadings without actually considering the contested issue of whether Farm Bureau’s policy provided greater coverage than the statute man dated. However, in an attempt to certify for interlocutory appeal the Eidemiller/Howard issue, the order denying the judgment on the pleadings was amended after a hearing to state that the policy terms provided greater coverage than the statute. The Court of Appeals denied the request for interlocutory review.
Thereafter, Farm Bureau’s initial counsel withdrew and new counsel asked the trial court to reconsider the question of whether the Farm Bureau policy provided greater coverage than the statute. Farm Bureaü noted that the interpretation of the policy language had never been briefed, argued to, or considered by the trial court, and argued the plain language of the policy clearly provided the same coverage as the statute. Elliott opposed the motion to reconsider. The trial court agreed that reconsideration was proper, stated it had not previously been asked to rule on the precise questions raised, and, in the interest of justice, granted the motion for reconsideration. The trial court then considered the wording of the policy, determined the same coverage was afforded in the policy as the statute required, and entered judgment for Farm Bureau, from which Elliott now appeals.
Elliott’s argument that the trial court erred in reconsidering the central issue to this appeal is not convincing. Despite the earlier attempt to unduly simplify the issue by requiring either an Eidemiller or Howard resolution of this case, Farm Bureau had always contended that coverage did not exceed that required by the statute and it could not in any manner be estopped from continuing this argument. See City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 158, 959 P.2d 894 (1998).
Elliott also argues that K.S.A. 60-260(b) did not authorize the trial court’s action. K.S.A. 60-260(b)(6) allows the trial court to relieve a party from an order or judgment for "any other reason justifying relief from the operation of the judgment,” which is precisely what the trial court did in this instance in holding that “[Ijegal issues should be determined upon their own merits.” The court went on to state: “Until this motion for reconsideration was filed, the court has never fully considered whether or not [Farm Bureau’s] policy does indeed grant greater coverage than provided by the Kansas Statutes.”
A trial court always has control of its proceedings until a final judgment is entered, and such judgment should be based on the true merits of the case. The trial court did not abuse its discretion in reconsidering the matter, and Elliott's arguments to the contrary are without merit.
The central issue to the appeal and Elliott’s prime argument is that Farm Bureau’s policy either clearly provided for greater coverage than 40-3103 or is, at the least, ambiguous with regard to the amount of wage loss coverage that is provided. Elliott argues any ambiguity should have been resolved in favor of himself as the policyholder.
Resolution of these issues requires construction of a written contract and statutory interpretation, which are questions of law over which an appellate court exercises unlimited review. Hamilton v. State Farm, Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998) (statutes); Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 177, 660 P.2d 1374 (1983) (insurance contracts).
A contract is ambiguous if it contains provisions or language of conflicting or doubtful meaning as suggested by a natural and reasonable interpretation of its language. Farm Bureau Mut. Ins. Co. v. Old Hickory Cas. Ins. Co., 248 Kan. 657, 659, 810 P.2d 283 (1991). An insurance contract should be construed to give it the meaning that a reasonably prudent insured would understand the language to mean. Farm Bur. Mut. Ins. Co. v. Winters, 248 Kan. 295, Syl. ¶ 1, 806 P.2d 993 (1991). Where, however, an insurance contract is not ambiguous, the courts will not make another contract for the parties but will enforce the contract as written. Old Hickory, 248 Kan. at 659-60.
The statutory provisions of K.S.A. 1998 Supp. 40-3013 that are in issue in this appeal are as follows:
“(1) ‘Monthly earnings’ means: (1) In the case of a regularly employed person or a person regularly self-employed, Viz of the annual earnings at the time of injury; or (2) in the case of a person not regularly employed or self-employed, or of an unemployed person, Viz of the anticipated annual earnings from the time such person would reasonably have been expected to be regularly employed. In calculating the anticipated annual earnings of an unemployed person who has previously been employed, the insurer shall average the annual compensation of such person for not to exceed five years preceding the year of injury or death, during which such person was employed.”
“(b) ‘Disability benefits’ means allowances for loss of monthly earnings due to an injured person’s inability to engage in available and appropriate gainful activity, subject to the following conditions and limitations: (1) The injury sustained is the proximate cause of the injured person’s inability to engage in available and appropriate gainful activity; (2) subject to the maximum benefits stated herein, allowances shall equal 100% of any such loss per individual, unless such allowances are deemed not includable in gross income for federal income tax purposes, in which event such allowances shall be limited to 85%; and (3) allowances shall be made up to a maximum of not less than $900 per month for not to exceed one year after the date the injured person becomes unable to engage in available and appropriate gainful activity.”
We must construe the terms of the above definitions together. See State v. Le, 260 Kan. 845, 847-48, 926 P.2d 638 (1996).
The words, “allowances” and “such allowances” in 40-3103(b) refer back to the beginning of that subsection, which states: “allowances for loss of monthly earnings.” The wording “any such loss” refers to the “loss of monthly earnings.”
The provision of40-3103(b)(2) that states “such allowances shall be limited to 85%” must be construed by looking at the previous part of the same clause, and we find it means 85% of any such loss per individual. Because it is agreed that Elliott’s income was not includable as gross income for federal income tax purposes, 40-3103(b) clearly means that his wage loss benefit is limited to 85% of his loss of monthly earnings, subject to the maximum of 40-3103(b)(3), which is not applicable here.
The 85% limitation is based on the sound policy that income tax savings attributable to the loss of income due to an injury are to be subtracted in calculating a person’s net loss.
The above construction is not questioned by Elliott, who argues that Farm Bureau’s policy is worded differently from the statute and provides greater coverage, and that he is entitled to the benefit of the policy language.
The personal injury protection portion of Farm Bureau’s policy states:
“WHAT WE PAY
“We will pay in accordance with the Kansas Automobile Reparations Act for bodily injury to an insured, caused by accident resulting from the ownership, maintenance or use of a motor vehicle, benefits for:
2. Loss of Monthly Earnings. This covers the insured’s loss of monthly earnings due to the insured’s inability to work for money in an available and appropriate job.
“This is subject to:
“a. the bodily injury being the proximate cause of the insured’s inability to work; and
“b. the maximum limit stated under your coverage symbol. Benefits are limited to 85% of loss of monthly earnings unless required to be reported as gross earnings for Federal Income Tax.
“Monthly Earnings are, in the case of an insured:
a. regularly employed or self-employed, Viz of the annual earnings at the time of the injury; or
b. not regularly employed or self-employed, or if unemployed, Viz of the anticipated annual earnings from the time the insured would reasonably have been expected to be regularly employed. If an unemployed insured was previously employed, we will average the insured’s annual earnings for up to 5 years before the date of the accident to determine the anticipated annual earnings.”
Elliott contends that the statement “[bjenefits are limited to 85% of loss of monthly earnings unless required to be reported as gross earnings for Federal Income Tax” means that the individual can recover all of his lost gross wages up to 85% of his monthly earnings. Based on this interpretation, Elliott argues he and all other Farm Bureau policyholders with the same policy are entitled to collect the amount of lost wages in an amount up to 85% of their monthly earnings, not simply 85% of the claim submitted. In making this argument, Elliott ignores the presence of the words “loss of’ in the policy. The policy does not say “[bjenefits are limited to 85% of the individual’s monthly earnings,” but rather that they are limited to 85% of “loss of’ monthly earnings.
In presenting his argument, Elliott poses several hypothetical applications of the two different interpretations of the policy language, using varying monthly earnings and wage loss numbers. We do not find these illustrations persuasive. We are dealing in this case with a wage loss of one day’s wages in the amount of $372.06, and the amount of wage loss benefits to which Elliott is entitled is 85% of this amount, or $316.25.
This 85% limitation is the same as that found in 40-3103(b)(2). The policy expressly states the intention to pay benefits in accordance with the KAIRA, including benefits for loss of monthly earnings, and the 85% wage loss limitation is in accordance with the Act.
We do not consider the policy language ambiguous. The fact that Elliott contends the plain wording of the policy has a different meaning from that found by the trial court does not require a finding of ambiguity. We view the policy exactly as the trial court did when it stated:
“It appears to this court now, that the policy and statute agree with each other. The policy limits coverage to 85% of the loss of monthly earnings. The definition of monthly earnings does not provide any additional coverage. That definition provides for a basis for calculation. The plaintiff has interpreted the policy incorrectly. The court sees no specific language in the policy that states an insured should receive to ‘up to 85% of his monthly earnings,’ which is how the plaintiff views the policy.”
The trial court correctly interpreted the provisions of the Farm Bureau insurance policy.
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ScFUFFNER, J.:
Gary L. Lofland, Debra S. Lofland, Lieuana L. Mahaney, Clayton Thurman, and Jan Thurman (Lofland group) appeal from the district court’s order granting Sedgwick County’s (County) motion for summary judgment on the Lofland group’s claims of intentional trespass and nuisance, and from the court’s application of the discretionary function exception to the Kansas Tort Claims Act (KTCA).
The Lofland group were homeowners in the Fairway Meadows development of Sedgwick County, Kansas, and suffered damages to their homes and personal property when the County’s sewage system failed and caused raw sewage to back up into their homes.
In June 1995, the County received a power failure alarm from the Fairway Meadows pump station. County personnel arrived at the station within 10 minutes, but the alternate power source failed to operate. The pump was inoperative for 2 hours and the County’s employees attempted to acquire a portable generator.
An employee of the County testified during his deposition it was known that if the pumps and backup system failed, sewage would back up into the homes serviced by the Fairway Meadows sewage system. The County did not warn the Lofland group of the threat of sewage backflow.
Although there was evidence that the value of two of the Lofland group’s houses had actually increased subsequent to the 1995 occurrence, the Lofland group claim that those appraisals were made before it was discovered that the sewage system was designed to back up sewage into the houses in the event the pumps should fail.
The district court held that the Lofland group had failed to establish the elements necessary to prove intentional trespass or nuisance and granted the County’s motion for summary judgment. The district court further ruled that any additional claims not disposed of in the County’s summary judgment were barred by the discretionary function exception of the KTCA provided in K.S.A. 75-6104(e).
The Lofland group contend there were genuine issues of material fact as to whether the County possessed the requisite intent to commit a trespass or create a nuisance; therefore, summary judgment was improper.
The standard of review of a district court’s order granting summary judgment is well established. In considering a summary judgment motion, the trial court is required to resolve all facts and inferences which may be reasonably drawn from evidence in favor of the nonmoving party. Summary judgment is only proper when the pleadings, discovery responses, and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hesler v. Osawatomie State Hospital, 266 Kan. 616, 622, 971 P.2d 1169 (1999). Where reasonable minds could differ as to the conclusions which could be drawn from the evidence, summary judgment is not proper. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998).
When the issue before the court is a question of intent, the court should be cautious in granting a motion for summary judgment. Cherryvale Grain Co. v. First State Bank of Edna, 25 Kan. App. 2d 825, 831, 971 P.2d 1204 (1999). If, however, a defendant can establish there is no evidence to support an essential element of the plaintiff s claims, defendant is entitled to summary judgment. Hesler, 266 Kan. at 622.
The district court granted summary judgment on both claims and found that the Lofland group had failed to prove the County had th(g requisite intent to establish claims for intentional trespass or intentional nuisance. The elements of these claims were recently reviewed in United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 915 P.2d 80 (1996), and both claims require proof of the same kind of intent.
A trespass can usually arise in three contexts. A trespass can be: (1) intentional; (2) the result of the defendant’s negligence; or (3) based on strict liability when the defendant engages in an abnormally dangerous activity. See United Proteins, 259 Kan. at 729. Here, as in United Proteins, the Lofland group are not asserting claims of negligence or abnormally dangerous activities by the County. This leaves the Lofland group with a claim under the traditional intentional tort of trespass.
In United Proteins, the Supreme Court noted:
“ ‘Tlie concept of trespass should be used, if at all, only where defendant intends to have the foreign matter intrude upon the land, or where defendant’s “act is done with knowledge that it will to a substantial certainty result in the entry of foreign matter.” ’ ” 1 Harper, James & Gray, The Law of Torts § 1.7, p. 1:30 (3d ed. 1996).’ ” (Emphasis added.) 259 Kan. at 729.
In citing the Restatement (Second) of Torts, the Supreme Court noted:
“ ‘[T]he intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled to enter. In order [that] an actor may intentionally enter a particular piece of land, it is not necessary that he act for die purpose of entering; it is enough diat he knows that his conduct will result in such an entry, inevitably or to a substantial certainty.’ ” (Emphasis added.) 259 Kan. at 730.
Similarly, a nuisance claim can be based on intentional conduct, negligence, or strict liability for engaging in abnormally dangerous activities. An intentional nuisance “requires that the actor act with the purpose of causing the nuisance, or know that it is resulting or substantially certain to result from his or her conduct.” United Proteins, 259 Kan. at 732. In other words, the defendant must specifically intend to damage the plaintiff or act in such a way to make it “substantially certain” damage will occur. Sandifer Motors, Inc. v. City of Roeland Park, 6 Kan. App. 2d 308, 318, 628 P.2d 239, rev. denied 230 Kan. 819 (1981); see also Williams v. Amoco Production Co., 241 Kan. 102,117-18, 734 P.2d 1113 (1987) (discussing the elements of a claim of private nuisance and the requirement of intent).
As in United Proteins, the Lofland group must establish that the County’s entry on their property was purposeful or was substantially certain to occur in order to prove their claims of trespass and nuisance. 259 Kan. at 730. In this case, the Lofland group contend the County’s sewer system was designed to back up into their basements and, thus, the County had the requisite intent for both the nuisance and trespass claims.
The Lofland group rely solely on the testimony of Mark Coronado, the utility maintenance crew chief for the County. In his deposition, Coronado was asked what kept the wet well from overflowing. Coronado’s testimony was as follows:
“Q. Okay. If there was a large volume of liquid coming from the laterals and from die Station 5 feed into the wet well, what prevents die wet well from just over flowing? Did that question make sense?
“A. Yes, and at some point it would overflow but you need to consider the elevation. I mean GIS or the actual elevation in feet from sea level of the water and water seeks its own level all the way across the containment area. So for that to happen houses would have to float away because the wet well is a little bit higher dian most of the property, the top of the wet well.
“Q. Top of the wet well, so some houses are going to get — if we started pumping liquid just into the wet well, water into the wet well, it should back up into some houses before it reached the top of die well?
“A. Only if the pumps are not moving water.” (Emphasis added.)
Since overflow could enter their homes if the pumps shut down, the Lofland group argue that when the County designed the system, it intended or knew with substantial certainty that sewage would end up in the Lofland group’s homes.
The failing in the Lofland group’s argument is that the sewer design allowed the backflow into their homes only if the facility’s pumps and backup systems failed. The County designed the pump system to prevent backups by pumping excess flow out of the area and having backup generators available in case of a power failure. Unfortunately, it appears that in June 1995 both of these systems failed. Essentially, the Lofland group’s argument appears to propose that if the sewage system is not designed in a manner that backups could never occur, a municipality would be deemed to intend or know a substantial certainty of backups would occur and would always be liable for trespass and nuisance. Kansas cases simply do not support this proposition.
For example, in Sandifer Motors, Inc., 6 Kan. App. 2d 308, the plaintiff sued the City of Roeland Park after its business sustained flood damage. Plaintiff alleged the flooding occurred despite its own ground drainage system because the city permitted its adjoining property to be used as a dump. Debris from the dump caused plaintiff s drainage system to clog and burst during a heavy rain. Defendant appealed after a jury was allowed to compare the fault of the parties in connection with plaintiffs nuisance claim. This court ruled it was proper for the trial court to allow a comparison of fault unless the city’s dump was an intentional nuisance rather than a negligent one. 6 Kan. App. 2d at 317. After noting the absence of prior serious problems from the dump, this court concluded that “[t]he fact the city contributed by its dumping is not sufficient to charge it with intentional wrongdoing. . . . There is nothing to indicate it intended to damage the plaintiff, or that the injury was substantially certain to occur.” 6 Kan. App. 2d at 319.
Likewise, in United Proteins, 259 Kan. 725, the plaintiff sued Farmland Industries, the owner of an adjoining plant, for intentional trespass and nuisance after Farmland released chemicals which contaminated the plaintiff s underground aquifer. Claims for strict liability and negligence were dismissed as untimely. The Supreme Court found that defendant’s knowledge of the chemical discharge, after the fact, was insufficient to establish the intent necessary for a claim of trespass or nuisance. The court noted there was no evidence the chemical discharge was intentional, that Farmland intended to cause an invasion, or that the invasion was a substantial certainty. 259 Kan. at 733.
The Supreme Court in United Proteins cited two out-of-state cases to support its rulings: Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797 (1991), and Moulton v. Groveton Papers Co., 112 N.H. 50, 289 A.2d 68 (1972). These cases also show the scrutiny courts have demonstrated regarding requiring proof of clear intent and more than negligence in intentional trespass cases.
In Snow, homeowners brought suit against the city under theories of strict liability, negligence, and trespass for damage caused to their home when water discharged from a leaking water main. During the case, the city stipulated that water from its lines intruded on the homeowners’ property. An expert witness for the plaintiffs testified that water built up pressure on the foundation of plaintiffs’ house which caused a crack along a joint in the foundation that allowed water to leak into their basement. The court found, however, the evidence at best showed the city’s discharge of water was not intentional but was due to the city’s inadvertent failure to keep its water main in good operating condition. The court noted: “To hold otherwise on the facts before us would ef fectively impose strict liability under the guise of trespass to land.” 305 S.C. at 554. The court did find, however, that a jury issue was presented on plaintiffs’ negligence theory. 305 S.C. at 555-56.
In Moulton, the defendant owned and maintained a dam retaining water near its plant. The dam collapsed and discharged a large amount of water downstream on plaintiffs’ properties. The New Hampshire Supreme Court upheld the dismissal of plaintiffs’ claims based upon strict liability and intentional trespass. In discussing the latter, the court noted intentional trespass based on constructive intent was “merely another device to impose absolute liability on the defendants.” 112 N.H. at 54. The court ruled absolute liability would be imposed in only a very few situations and the rule of absolute liability for trespass had been repudiated in most jurisdictions.
Likewise, the out-of-state cases cited in the Lofland group’s brief do not support their claim that sufficient intent had been established. In Dial v. City of O’Fallon, 81 Ill. 2d 548, 411 N.E.2d 217 (1980), plaintiff sued the city after sewage backed up into the basement of her home. The backup occurred after the city closed an overflow outlet in its sewer system which was designed to prevent backups. A city employee testified the city knew that by closing the overflow, backups would likely occur. Plaintiff sued based on theories of negligence, strict liability, and trespass. In discussing the intent needed to prove intentional trespass, the Illinois court acknowledged plaintiff was required to prove the city acted with knowledge that the trespass would, “to a substantial certainty,” result. 81 Ill. 2d at 554. The court declined to decide whether the evidence was sufficient to support a finding of intentional trespass; however, the jury was only instructed as to negligent trespass and there were no objections to the instructions. 81 Ill. 2d at 556-57.
Since the district court did not reach the issue of whether the requisite intent was sufficiently proved, Dial provides no support for the Lofland group’s arguments in this case. Moreover, Dial involved the city’s act in intentionally shutting down the part of the system designed to prevent backups. Here, the County apparently designed the system in a manner to prevent backups, but those systems failed during a storm. There was no intentional act by the County to shut down the pumps.
The Lofland group also rely on Fletcher v. City of Independence, 708 S.W.2d 158 (Mo. App. 1986). In Fletcher, the plaintiffs sued the city for damages caused from “recurrent” sewer backups into their home’s basement. Plaintiffs were awarded damages and the city appealed, arguing an intentional nuisance had not been proven and comparative fault evidence should have been allowed. The plaintiffs presented evidence that backups had occurred over a period of 11 years and that they had reported the problem to a number of different municipal agencies and officials. The Missouri Court of Appeals found a claim of intentional nuisance could be sustained based upon a “continuous, known invasion, where after complaint and notice of damage, the landowner continues to offend and refuses to correct or discontinue the misuse.” 708 S.W.2d at 166; see also Graffunder v. City of Mahtomedi, 376 N.W.2d 282 (Minn. App. 1985) (recurrent backups possibly caused by power outages at lift station supports finding city was negligent in failing to provide adequate reserve power or timely response to the lift stations).
Similarly, Blakeslee v. Punnett, 368 N.Y.S.2d 216, 48 App. Div. 2d 641 (1975), involved a continuous trespass by neighboring properties which connected their sewer lines to plaintiff s line. After the nature of the buildings changed, plaintiff advised her neighbors they could no longer connect their lines to her sewer lines. Defendants, however, refused to disconnect their lines. After repeated backflows due to the overtaxed system, the court ordered defendants to connect to the city’s sewer system.
Finally, the Lofland Group cite to Carr v. City of Baton Rouge, 314 So. 2d 527 (La. App. 1975). In Carr, plaintiff sued the city under theories of negligence and violation of a state statute creating liability if a landowner’s work on his or her property damaged a neighbor’s property. The suit arose after plaintiff complained her toilets were overflowing, and city maintenance workers used a high pressure hose in an attempt to dislodge an obstruction in a nearby sewer line. The sewer line was later discovered to be completely crushed, worsening the overflow of sewage into plaintiff s home. The court upheld a verdict against the city by concluding the city’s maintenance of the sewer line fell within the purview of the statute in question.
Because the case presently before the court only involves one incident rather than a continuous pattern of backups or ongoing use of the Lofland group’s property, Fletcher, Graffunder, and Blakeslee provide no support for the Lofland group’s claims. Likewise, Carr does not support Lofland group’s claims because it was based on a unique statute under Louisiana’s civil code, rather than on common-law concepts of intentional trespass or nuisance.
Based upon long-standing Kansas cases, the Lofland group failed to present the district court with sufficient evidence to establish that the County acted in any manner evidencing knowledge that a sewage backup would occur or that there was a substantial certainty such an event would occur. The Lofland group are simply challenging the design of the sewer pumps and arguing the requisite intent can be found because the County was aware overflows would occur if the pumps failed and the backup generators did not work. Essentially, the Lofland group argue that because the County knew the design of the pump station was not foolproof, the requisite intent existed. Such an argument requires the County to be the absolute insurer of its sewer system. This is not consistent with Kansas law of nuisance and intentional trespass, which limits liability to egregious circumstances.
When responding to the County’s summary judgment motion, the Lofland group abandoned their claims based on negligence and noneconomic damages. The remaining claims before the district court were the claims based on nuisance and trespass theories. In its ruling, however, the district court concluded that any remaining claims asserted by the Lofland group were barred by the KTCA, and specifically the discretionary function exception provided in K.S.A. 75-6104(e).
On appeal, the Lofland group contend the immunity provision of the KTCA does not apply to their claims of nuisance and trespass. The Lofland group’s claims of nuisance and trespass clearly fail on the merits, and no other claims have been identified or argued on appeal. There is no need to further determine the applicability of the KTCA.
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Green, J.:
This litigation involves a declaratory judgment action brought by Farm Bureau Mutual Insurance Company and Western Agriculture Insurance Company (Companies). The heirs of William J. Molitor sued Dustin Lee Davidson for negligently causing Molitor’s death. Davidson was insured under a car insurance policy issued by the Companies. The Companies intervened in the action and moved for summary judgment, claiming that their insurance policy furnished no coverage for the claims of Molitor’s heirs against Davidson. The trial court granted the Companies’ summary judgment motion. We affirm.
The parties stipulated to the following facts:
“3) That solely for the purpose of determining coverage issues the Court may make assumptions as follows:
a) That William J. Molitor lost his life in an automobile accident at the intersection of Highway 281 and SW 60th Street, Pratt County, Kansas on March 23, 1995.
b) That at some time prior to said automobile accident the Defendant, Dustin Lee Davidson drove a motor vehicle to the Highway 281/SW 60th Street intersection; exited said motor vehicle; participated in the removal of a stop sign from the sign pole; placed said stop sign in said motor vehicle; and removed said stop sign from the said location by driving away.
c) That the vehicle utilized by the Defendant was insured by Farm Bureau/ Western Ag. Ins. Co.
d) The decedent, William J. Molitor, was proceeding east on SW 60th Street which was controlled by the stop sign removed. The decedent did not stop before entering Highway 281 which was not controlled by any traffic control or sign, and decedent was struck and killed by a vehicle using Highway 281.
“5) That the Court shall determine whether there is a sufficient causal relationship between the death ofWilliam J. Molitor and the Defendant’s ownership, maintenance, or use of a motor vehicle and whether insurance coverage is therefore available.”
Finding an insufficient causal connection between Davidson’s use of the covered car and Molitor’s death, the trial court granted the Companies’ motion for summary judgment.
Appellants argue that the trial court improperly granted summary judgment in favor of the Companies. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995). Whether the trial court erred in granting the Companies summary judgment depends upon the construction given the language of the policy. Our Supreme Court has frequently observed that
“ ‘[a]s a general rule, the construction and effect of a contract of insurance is a matter of law to be determined by the court. If the facts are admitted, then it is for the court to decide whether they come within the terms of the policy.’ Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, Syl. ¶ 1, 660 P.2d 1374 (1983).” Harris v. Richards, 254 Kan. 549, 552, 867 P.2d 325 (1994).
Here, the facts are undisputed, and our standard of review is unlimited.
The Companies’ insurance policy furnished coverage for an injury “arising out of the ownership, maintenance or use” of the insured car. Appellants argue that Davidson’s use of the car to transport tools to the site and to carry away the stop sign arose out of the use of the insured car. In support of this argument, the appellants cite Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, 907 P.2d 891 (1995).
In Garrison, a shotgun accidentally discharged while it was being removed from a car, injuring one member of a hunting party. Affirming this court, our Supreme Court found a sufficient nexus between the parties’ use of the car to transport shotguns for hunting and the resulting injury. The Garrison court stated:
“We agree with the Court of Appeals’ reasoning that for insurance coverage to exist for accidental bodily injury, there is no requirement that the vehicle be either the proximate cause of the injury or physically contribute to the discharge of the gun. Coverage exists where the minimal causal connection between the use of the vehicle and the injury is provided by the foreseeable and reasonable use of the vehicle for hunting. See 20 Kan. App. 2d at 930.
“We endorse the statement in Farm Bureau Ins. Co. v. Evans, 7 Kan. App. 2d 60, 62, 637 P.2d 491 (1981), rev. denied 231 Kan. 800 (1982), that ‘Kansas follows the majority rule that there must be some causal connection between the use of the insured vehicle and the injury’ (citing Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P.2d 107 [1964]). We acknowledged the Esfeld Trucking language in Hamidian v. State Farm Fire & Cas. Co., 251 Kan. 254, 259, 833 P.2d 1007 (1992).” 258 Kan. at 551-53.
Appellants contend that the use of Davidson’s car to transport tools to the intersection and to carry away the stop sign, and the subsequent death of Molitor, is analogous to the use of Garrison’s car to transport shotguns for the hunting trip and the ensuing shotgun accident. Nevertheless, this argument ignores Garrisons express requirement that some causal connection must exist between the use of the insured vehicle and the injury. In Garrison, our Supreme Court described the causal connection between the use of the vehicle for hunting and the shotgun accident as follows:
“Garrison’s car was more than the ‘situs of injury.’ The injury occurred while the car was being used to transport dove hunters during a hunting trip. Garrison was driving. The engine was running. Garrison stopped the car while Pfannenstiel tried to exit with his shotgun to hunt doves. The shotgun discharged while Pfannenstiel was removing it from the car. Garrison had intended to drive further after Pfannenstiel was out of the car. The car was ‘involved,’ in that the injury occurred while Pfannenstiel was removing his shotgun from the car and Garrison was driving the car. We hold, under the facts of this case, the injury sustained by Garrison, the driver, when a shotgun inside the car accidentally discharged as it was removed from the car, was a natural and reasonable incident arising out of the use of the car for hunting.” 258 Kan. at 554.
By comparison, appellants describe in their brief the connection between Davidson’s use of his car and Molitor’s death as follows:
“[T]he Defendant brought tools to the intersection in the automobile covered by the liability policy. He took the tools out of the vehicle and used the tools to remove the stop sign from its post. After its removal, he placed the sign into the same automobile and carried it away from the intersection by use of the automobile.”
Nevertheless, in determining that the car insurance policy furnished no coverage, the trial court stated that the use of the insured car and the death of Molitor lacked some causal connection. We agree. Similarly, in Farm Bureau Mut. Ins. Co. v. Evans, 7 Kan. App. 2d 60, 637 P.2d 491 (1981), rev. denied 231 Kan. 800 (1982), this court held that injuries sustained when a passenger in a parked vehicle threw an M-80 explosive device out of the vehicle did not arise out of the use of the vehicle within the meaning of the car insurance policy. Emphasizing the lack of a causal connection, the Evans court stated:
“The use of the Roses’ vehicle did not causally contribute to Karen’s injuries anymore than it would have if one of the occupants, under the facts present in this case, had shot her with a firearm. The fact that the M-80 was lit inside the vehicle and the defendants might have had difficulty lighting it if no shelter had been available is so remote that it does not furnish the necessary causal relationship between the use of the car and her injuries.” 7 Kan. App. 2d at 63-64.
Because Kansas appellate courts have consistently required some causal connection between the use of an insured vehicle and the injury, appellants’ argument for coverage is more accurately described as an argument for an extension of the law. In this vein, appellants contend that public policy and liberal interpretation of the insurance policy require that this court find a causal connection and coverage. Nevertheless, such an extension would be boundless. If this court were to find that the mere use of a car as transportation to and from an accident or crime site creates a sufficient causal connection for coverage, it would be difficult for this court to think of a situation where coverage would not exist.
In support of their argument, appellants also cite several cases from other jurisdictions: AIG Hawai'i Ins. Co., Inc. v. Smith, 78 Hawai'i 174, 891 P.2d 261 (Hawai'i 1995) (where insured furnished alcohol to the driver, who struck and killed a pedestrian, coverage existed); Transamerica v. Farmers Ins. Exchange, 463 N.W.2d 641 (N.D. 1990) (where insured’s dog, which was in bed of insured’s pickup truck, bit a pedestrian as she walked by pickup on public street, there was causal relationship between use of vehicle and accident such that insured’s vehicle liability policy covered pedestrian’s claim for injury); The Home Insurance Co. v. Towe, 314 S.C. 105, 441 S.E.2d 825 (1994) (where passenger threw bottle from moving vehicle striking and injuring tractor driver; sufficient causal connection existed between vehicle use and injury because automobile placed passenger in position to throw bottle, and speed contributed to velocity of the bottle increasing the seriousness of injuries sustained); and Tasker v. Larson, 149 Wis.2d 756, 439 N.W.2d 159 (Wis. App. 1989) (insurer was liable for injuries sustained by child struck by car upon leaving insured vehicle which driver left parked on highway during brief errand). Nevertheless, each of these cases is factually distinguishable from the instant case. Moreover, these cases lend no support to appellants’ contention that the use of a car for transportation to and from the site of an accident or crime supplies the necessary causal connection required by our Kansas appellate courts to provide coverage for an injury “arising out of the . . . úse” of an insured car.
Finally, appellants cite United Services Auto. Ass’n v. Morgan, 23 Kan. App. 2d 987, 939 P.2d 959 (1997), in support of their argument. Nevertheless, Morgan is factually distinguishable from the present case. In pointing out the causal connection between the use of the insured car and the injury, the Morgan court stated:
“The use of the automobile made it possible for Chad Morgan to come within 6 feet of Vetter’s vehicle before he began his threats. The use of [the] automobile in conjunction with Chad Morgan’s conduct frightened Vetter to the point that she lost control of her own vehicle. We do not believe that Vetter would have been injured had it not been for the movement of the Morgan vehicle and the threats and violence on the part of Chad Morgan. We have no difficulty in concluding that under the stipulated facts, there was a causal connection between the use of the automobile and the injury suffered by Vetter. In the context of the decisions in Evans and Garrison, there was a causal relationship between the use of the Morgan vehicle, Chad Morgan’s violent and profane threats, and the injuries sustained by Vetter.” 23 Kan. App. 2d at 997-98.
The appellants have failed to show that Davidson’s use of the insured car had some causal connection to Molitor’s death. As a result, appellants’ argument fails.
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RüLON, J.:
Defendants Peter J. Smith and Jeremy D. Mohs appeal the district court’s denial of their motions to modify their sentences. We affirm.
In January 1997, defendant Peter J. Smith was convicted of criminal deprivation of a motor vehicle (K.S.A. 21-3705). The district court sentenced Smith to 12 months’ probation, with 30 days in jail as a condition of probation. On September 25,1997, the district court revoked Smith’s probation, imposing the underlying 12-month jail sentence. In March 1998, Smith filed a motion to modify his sentence, which the district court denied for lack of jurisdiction. Smith appeals the denial of his motion to modify his sentence.
In June 1997, defendant Jeremy D. Mohs was convicted of criminal deprivation of a motor vehicle (K.S.A. 21-3705) and two counts of theft (K.S.A. 21-3701[a][l]). The district court granted Mohs probation after 30 days in jail, with an underlying sentence of 7 months on each count, to run concurrently. In June 1997, Mohs was again convicted of criminal deprivation of a motor vehicle (K.S.A. 21-3705). The district court granted Mohs probation, with an underlying jail sentence of 7 months, to run consecutive to the previous sentences. On March 11, 1998, the district court revoked Mohs’ probation, stating the sentences would run concurrently. The district court later determined that because the sentences were originally ordered to run consecutively, it could not order such sentences to run concurrently. Mohs moved the district court to modify his sentence, but the court found it was not authorized by law to modify the sentence. Mohs appeals.
The issue is whether K.S.A. 21-3705 allows the district court to modify a sentence after it is imposed. Matters of statutory interpretation are questions of law, subject to unlimited appellate review. State v. Riley, 259 Kan. 774, 776, 915 P.2d 774 (1996). K.S.A. 21-3705(b) provides:
“Upon a first conviction of [criminal deprivation of a motor vehicle], a person shall be sentenced to not less than 30 days .... Upon a second or subsequent conviction ... a person shall be sentenced to not less than 60 days .... The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served the minimum mandatory sentence as provided herein.”
Defendants argue this language gives the district court authority to modify a sentence.
When enacting the Kansas Sentencing Guidelines Act (KSGA), the legislature deliberately eliminated the district court’s authority to modify a sentence. See State v. Miller, 260 Kan. 892, 897, 926 P.2d 652 (1996); K.S.A. 1998 Supp. 21-4603d. “When a lawful sentence has been imposed under [the] KSGA, the sentencing court has no jurisdiction to modify that sentence except to correct ‘arithmetic or clerical errors’ pursuant to K.S.A. 21-4721(i).” Miller, 260 Kan. at 900. Further, the plain language of K.S.A. 21-3705 does not authorize the district court to modify a sentence but merely stated a defendant must serve the mandatory jail time before he or she is eligible for probation, suspension or reduction of his sentence, or parole. Here, defendants’ underlying sentences were imposed before each defendant served the mandatory jail time. After defendants’ probations were revoked, each defendant was required to serve the underlying sentence which was not subject to modification. The district court does not have jurisdiction to modify a sentence once imposed under the KSGA.
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McFarland, C.J.:
Marlin D. Long appeals his jury trial convictions of five counts of rape (K.S.A. 1998 Supp. 21-3502[l][a]), level 1 person felonies, two counts of aggravated criminal sodomy (K.S.A. 21-3506[a][3][A]), level 2 person felonies, and one count of aggravated burglary (K.S.A. 21-3716), a level 5 person felony. Defendant was sentenced to a controlling term of 1,487 months’ imprisonment.
By virtue of the particular issues raised, the facts will be set forth in the discussion of the issues.
MULTIPLICITY
For his first issue, defendant contends four of the five rape counts are multiplicitous as they were part of one continuous event. In support thereof he relies on State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978).
Multiplicity exists when the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous when the offenses occur at different times and in different places. A test for determining whether a continuous transaction results in the commission of but a single offense is whether separate and distinct prohibited acts, made punishable by law, have been committed. A single motive for a series of acts does not necessarily result in a single crime. State v. Harkness, 252 Kan. 510, 531, 847 P.2d 1191 (1993); State v. Woods, 250 Kan. 109, Syl. ¶ 7, 825 P.2d 514, cert. denied 506 U.S. 850 (1992).
All of the crimes occurred in a 1- to 2-hour period in an apartment in Wichita. S.R.G. was the victim of each offense. There is no question of identity. Defendant testified the sexual acts were consensual.
Unfortunately, the facts must be set forth in considerable detail for proper analysis of this issue. S.R.G. testified she was asleep on her bed in her apartment when she was awakened to find an unknown masked man on top of her. She testified the following then occurred: Defendant put his hands on her neck and mouth when she started to scream, and he threatened to kill her. She was repeatedly threatened during her ordeal. She did not consent to any of the acts.
Aggravated Criminal Sodomy #1: On the Bed in the Bedroom
Defendant performed an act of oral sodomy on S.R.G.
Rape #1: On the Bed in the Bedroom
Defendant then had intercourse with S.R.G. and made her move into different positions on the bed.
Rape #2: On the Floor in the Bedroom
S.R.G. testified that after defendant raped her on the bed, he took her to the floor of the bedroom. He again forced her to have intercourse, making her get into different positions. He made her get on top. He made her get on her knees while he had intercourse from behind. Defendant had not yet ejaculated and told S.R.G. he could go all night. He would occasionally stop, and S.R.G. believed he was trying to avoid ejaculating.
Uncharged: Leaning over the Bed in the Bedroom
Defendant forced S.R.G. to rise from the floor and lean over the bed in the bedroom. He had intercourse with her from behind. He was very rough.
Aggravated Criminal Sodomy #2: Anal Penetration
While defendant was having “rough” intercourse with S.R.G. over the bed, he suddenly entered her anally with his penis. S.R.G. said it hurt badly, shot pain through her whole body, and she screamed. Defendant threw her on the bed, started choking her again, and threatened to Mil her.
Uncharged: On the Bed & Floor in the Bedroom
Defendant started to have intercourse with her again on the bed but the bed was maMng noise. Defendant then took her to the floor of the bedroom. He began to have sexual intercourse with her again on the floor but “that didn’t last very long.”
Rape #3: In the Bathroom
S.R.G. thought she was going to vomit and told defendant she was going to be sick. Defendant took her to the bathroom where he leaned her over the toilet and had intercourse with her there while she begged him to stop because she was going to throw up. Defendant had intercourse with her from behind.
Rape #4: In the Living Room Leaning over the Couch
Defendant led S.R.G. to the Hving room. He forced her to lean over the couch and had intercourse with her from behind.
Rape #5: In the Living Room on the Couch
Defendant then sat on the couch, pulled her on top of him, and had intercourse with her again. S.R.G. knew at this point if defendant ejaculated, she might be able to get away. S.R.G. said when she was on top of him on the couch she did not want to stop the intercourse because she wanted him to ejaculate and he did. Defendant swore at her and pushed her away from him.
It was at this point that S.R.G. was able to break away from her captor, running naked from the apartment.
Defendant contends all the rapes subsequent to the first one were parts of one continuous event and therefore merged into the first rape under authority of State v. Dorsey, 224 Kan. 152.
The State argues defendant moved S.R.G. to multiple locations throughout the house to perform the rapes: on the bed, on the floor, in the bathroom, over the couch, and on the couch. These were separate events. Further, the facts in State v. Howard, 243 Kan. 699, 763 P.2d 607 (1988), are analogous, and a similar multiplicity challenge was rejected in that appeal.
In Dorsey, 224 Kan. 152, the defendant was convicted of kidnapping (one count), attempted rape (three counts), and aggravated oral sodomy (two counts). On appeal, defendant raised two issues: prosecutorial misconduct and sufficiency of the evidence. Neither issue had merit in the court’s eyes. However, the court considered, sua sponte, whether the attempted rape and sodomy convictions were multiplicitous. The crimes had occurred in the following sequence: Kidnapping 12:30 a.m., attempted rape 12:35 a.m., attempted rape 12:45 a.m., aggravated oral sodomy 12:50 a.m., attempted rape 1:20 a.m., and aggravated oral sodomy 1:35 a.m. The facts supporting the convictions were not otherwise included in the Dorsey opinion. The court dismissed three of the convictions as multiplicitous. In doing so, the court stated:
“The only difference in the three allegations of [attempted] rape and the facts necessary to prove the acts, was a lapse of a few minutes between each alleged offense. Under the circumstances, we fail to find where there has been more than one act of attempted rape. The same is true of the allegations of oral sodomy. On the other hand, the proof necessary to convict the defendant of kidnapping, rape or attempted rape and sodomy requires different facts and therefore the convic tion as to one count of each of tírese three different crimes would not be multiplicitous.” 224 Kan. at 156.
The dissent in Dorsey, joined by two other justices, concluded that the majority had confused repetition of the same crime with multiplicity, noting the result reached by the majority would mean that no matter how many times a victim is raped by the same person it would be but one offense as long as the time frame is contiguous.
In 1988, in Howard, 243 Kan. 699, the question of multiplicity and sex crimes was considered again. Detailed facts were included in the opinion. The victim had gone to Howard’s apartment to get some furniture. Howard hit her over the head, beat her, bit her and demanded she undress. Howard then forced intercourse. Howard then anally sodomized her and forced her to perform oral sex on him. He repeatedly threatened to kill her, broke a glass and shoved her head toward the broken pieces. When the victim tried to escape by saying she needed to go to the bathroom, Howard grabbed her arm, accompanied her to the bathroom and again forced oral sodomy. He then leaned her over the bathtub and again anally sodomized her. He then shoved the victim down the hallway and against the bedroom door, when Howard again anally sodomized her. She attempted to flee, was apprehended, and forced into the bedroom where another act of oral sodomy occurred. The victim managed to escape and ran naked and screaming out of the apartment, knocking on a neighbor’s door for refuge. At the trial, Howard testified the sex was consensual. Howard was convicted of aggravated kidnapping, rape (two counts), and aggravated criminal sodomy (six counts).
On appeal, Howard argued the multiple rape and sodomy convictions were multiplicitous. The appellate court framed the issue as “how widely separated in time and place separate actions must be in order not to be considered part of a single wrongful act.” 243 Kan. at 703. Distinguishing Dorsey, the court held that the acts in Howard took place over a time span of IV2 to 3 hours and were separate and distinct, occurring at different times in different locations in the house and separated from each other by other sexual acts. The court concluded the acts were not multiplicitous as they were clearly separate. Justice Holmes dissented, arguing that Dorsey was controlling.
Specifically, the Supreme Court held:
“We distinguished Dorsey in State v. Wood, 235 Kan. 915, 920, 686 P.2d 128 (1984), holding the trial court did not err in refusing to merge two counts of rape. In Wood, the victim was disrobed and raped in her bedroom. Two or three hours later, the victim was again disrobed and raped, this time in the living room. We found the two incidents to be clearly separate.
“This case is analogous to Wood and distinguishable from Dorsey. The acts took place over a time span of one and a half to three hours and were separate and distinct, occurring at different times in different locations in the house and separated from each other by other sexual acts. We find the acts committed by Howard clearly separate and thus not multiplicitous.” 243 Kan. at 703.
In 1992, multiplicity and sexual assault were revisited in State v. Richmond, 250 Kan. 375, 827 P.2d 743 (1992). Again, the facts were given in detail. The victim returned to her residence and interrupted a burglary. Richmond hit her as she walked into the house, forced her into her bedroom, threw her on the bed, and raped her. Richmond walked her into the bathroom, returned to the bedroom, and tied her to the bed. Richmond left the room for what seemed to the victim like a long time. When he returned, he untied her, raped her again, and retied her. Richmond threatened her with a knife, stole the necklace she was wearing and left her tied to the bed, threatening to kill her if she reported the crime. The incident lasted approximately one hour.
On appeal, Richmond argued that the rape convictions occurred so closely in time and circumstance that only one offense was committed, citing Dorsey. The majority opinion pointed out that Dorsey had been a four to three decision, that the propriety of the result reached in Dorsey was questionable, and the facts in Richmond were distinguishable. Richmond had left the room to continue his search of the home. The length of his absence was unknown, although the victim said it seemed like 2 hours, which was an impossibility given the time frame. However, there was a clear and substantial break in the circumstances.
We conclude that under the facts herein the five rape convictions are not multiplicitous as they are sufficiently separated by time location, and circumstance to constitute separate offenses rather than one continuous incident.
MOTION TO SUPPRESS
For his second issue, defendant contends the district court erred in overruling his motion to suppress evidence found in the apartment where he was arrested. He contends the police entiy therein was illegal.
We pick up the factual background where we left off in the preceding issue. When S.R.G. ran screaming from her apartment at approximately 2 a.m., she was heard and observed by a neighbor, Randy Sullard, who saw her in the parking lot. He heard her yell, “He’s after me.” Sullard saw a man come across the parking lot from the same direction the woman had come. The man was “skulking around hiding.” Sullard watched the man squat down behind a car when another car came through the parking lot then run between two buildings, fall over a bush, get up, and eventually run to building 8, disappearing into an unlit area on the front and center of the building. Sullard waited and watched but the man did not reappear. Sullard told the police what he had seen, describing the man as a white male with light-colored curly hair wearing dark clothing.
Officer Dean and Officer Woodard responded to the rape call at Fox Run Apartments. Dean and Woodard went to investigate apartment 812 after hearing Sullard had seen a curly headed man run into that building. Dean knocked on the door, received no answer, and tried the door knob. As soon as he “touched the doorknob and applied some pressure to it, the door came open.” The door was immediately pushed closed from inside by a whi 'e male with curly blond hair sitting on a chair beside the door. Dean said, at that point, “we pushed the door completely open.” Dean observed some damage to the door. Still standing outside the open door, the officers announced themselves. With the door open, they could now see an individual sleeping in the bed. They kept announcing themselves, trying to get the man to respond. He even tually sat up in bed and gave verbal permission for officers to enter and search the apartment. Officers inquired several times as to whether there was anyone else in the apartment. He told them there was not. Officers found defendant in the bathroom.
On cross-examination, defense counsel inquired further as to how the door was opened. Dean said the first time he turned the knob, the door opened. He had not yet seen the damage to the door. Dean pushed on the door the second time because of the unusual response. He saw the damage to the door the second time the door was open. Dean said they did not enter into the apartment until the man in bed, Kary Lathrop, the apartment’s tenant, gave them permission.
Officer Woodard was with Officer Dean and gave this version: Woodard said when they first approached the door, he could see the door was damaged. The paint was cracked on the doorjamb and it looked like someone had forced the door. Dean tried the door knob to see if the door was locked. The door “opened up” about 6 to 8 inches and was slammed shut. When the door was open, they identified themselves as police officers. Dean knocked again and, as he knocked, the door opened by itself. They could then see someone lying in the bed. With their flashlights on, officers again identified themselves. When the door was open the first time, Woodard could see that the doorjamb was splintered, and the face plate was gone. Woodard said they remained on the concrete porch area outside the door trying to rouse the man on the bed. Finally he awoke and gave them permission to enter. The officers came in and asked if anyone else was in the apartment. The man said no. They saw a closed door and asked him if anyone was in the room behind the door. He said not that he knew.
Defendant was found naked in the bathroom with his clothes in a bathtub full of water. Money and grass were also in the water.
Lathrop recognized defendant as the brother of a friend. Lathrop and defendant had earlier that evening been drinking in a local bar. Defendant mentioned he had no place to stay that night and Lathrop said he could stay with him. Lathrop was not feeling well, was coming down with a cold, and had been drinking beer. He went back to his apartment alone, took a cold pill, and went to bed. He did not hear defendant break into the apartment and was unaware of defendant’s presence until the officers found him in the bathroom. He testified he did not authorize defendant to break in the door to enter when he told him he could spend the night while they were in the bar. He gave the officers oral and written consents to search his apartment.
In his motion to suppress, defendant argues that the illegal entry was the opening of the door the first time, and that is his position before us. The question we must initially determine is whether defendant has standing to raise the issue. This turns on whether he had a reasonable expectation of privacy within the apartment.
The question of houseguests and the 4th Amendment to the United States Constitution was considered in Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990). There, Olson was suspected of armed robbery and murder. Police had seized an abandoned car, finding the murder weapon, the money, and identifying information about Olson inside. Later, a tipster directed police to where Olson was staying. After surrounding the house, police placed a telephone call to the occupants, ordering Olson to come out. The detective placing the call heard a male voice in the background saying to tell the police he had left. This was relayed to the caller. The detective then ordered police to enter the house, which they did without permission and with weapons drawn. Police found Olson hiding in a closet. Shortly after his arrest, Olson made inculpatory statements.
Olson had been a guest at the house for several days. He had slept on the floor the night of the robbery, with the owner’s permission. He had a change of clothing with him.
The trial court denied Olson’s request to suppress his statement and Olson was convicted. The Minnesota Supreme Court reversed, ruling Olson had a sufficient interest in the home to challenge the legality of his warrantless arrest, his arrest was illegal because there were no exigent circumstances justifying the warrantless entry, and Olson’s statement was tainted by that illegality and should have been suppressed. The United States Supreme Court affirmed.
The Olson Court first noted that the capacity to claim the protection of the Fourth Amendment depends upon whether the per son who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. Further, a subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable. The Court opined:
“To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. We will all be hosts and we will all he guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home.
“From die overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or die home of a friend. . . .
“That die guest has a host who has ultimate control of die house is not inconsistent with the guest having a legitimate expectation of privacy. The houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest. It is unlikely diat the guest will be confined to a restricted area of the house; and when the host is away or asleep, die guest will have a measure of control over the premises. The host may admit or exclude from die house as he prefers, but it is unlikely diat he will admit someone who wants to see or meet with the guest over die objection of the guest. On the other hand, few houseguests will invite others to visit them while they are guests without consulting their hosts; but the latter, who have the authority to exclude despite die wishes of the guest, will often be accommodating. The point is that hosts will more likely than not respect die privacy interests of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in die premises and do not have the legal authority to determine who may or may not enter the household.” 495 U.S. at 98-100.
The houseguest doctrine recognized in Olson has been recognized in Kansas. State v. Jones, 24 Kan. App. 2d 405, 409, 947 P.2d 1030 (1997). In that case, both the trial court and the appellate court found that Jones was a houseguest and could therefore assert his Fourth Amendment rights in that case. The issue was not litigated on appeal. There, Jones had known his host for about a year and had stayed overnight on many occasions. His host sometimes gave him the key so he could stay. Jones liked to stay at his host’s apartment because it was peaceful. Jones kept clothes and a few personal possessions at this apartment.
In this case, Lathrop knew defendant through defendant’s brother. Unlike the situations in Jones and Olson, defendant did not keep any clothing or personal items at Lathrop’s apartment. He had no key and the offer to spend the night was just that. While defendant had earlier indicated he would be staying at Lathrop’s apartment, he gave no such indication when he last spoke to Lathrop. A few hours later, defendant forcefully kicked or otherwise forced the door and then entered. When Lathrop was asked about giving defendant his permission to spend the night, Lathrop answered, “I told him he could stay there but he, you know, knock on the door, not knock it in, I mean.” When the police arrived and awakened Lathrop, he said no one else was in the house and no one else should be in the house.
Did defendant have a reasonable expectation of privacy in Lathrop’s apartment at the time in question under the circumstances herein? We believe not.
Defendant gained entry to the premises by forcing the door, doing considerable damage to the door and its lock in the process. He was not authorized by the tenant to enter by force. He had no personal effects in the apartment and had earlier in the evening been offered it as a place to stay for the night. Under the circumstances herein, defendant cannot be said to have a reasonable expectation of privacy in the apartment. It is rather ironic that the damage to the previously locked door by the defendant is presumably why the door opened so easily when the officers were present which afforded them the view of defendant.
We find no reversible error in this issue.
SENTENCES
For his final issue, defendant contends the sentences imposed constitute cruel and unusual punishment in violation of the United States and Kansas Constitutions.
It was undisputed in the district court that defendant had a criminal history in category A. Defendant filed a motion for downward departure, which the district court denied. The sentences were imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.
The State did not argue for upward departure but requested that the court impose the longest term within the appropriate sentencing grid box for the primary crime, with the remaining sentences in the middle range. The State requested that the rapes occurring in different rooms run consecutively to each other, resulting in a controlling sentence of 1,528 months.
The court imposed the following sentence: Count 1, rape, the primary conviction, 816 months; Count 2, rape, 184 months; Count 3, rape, 184 months; Count 4, rape, 184 months; Count 5, rape, 184 months; Count 6, aggravated criminal sodomy, 136 months; Count 7, aggravated criminal sodomy, 136 months; Count 8, aggravated burglary, 31 months. The judge then said,
“I have given great consideration and thought as to the nature of my sentencing and how these — and whether or not to run any of these counts concurrent or consecutive. I do want to point out some of the things that I have considered in arriving at my decision.
“First and foremost, I do want to point out that these heinous rapes occurred within 24 hours of Mr. Long being released from prison on parole. His parole papers were barely dry before he broke into this woman’s apartment, invaded the sanctity of her home, and raped her repeatedly and cruelly.
“I have listened very carefully to your argument, Mr. Ney [defense counsel], and I do want to say in regard to a couple of your comments, to say that to sentence tins man to over 100 years would be cruel and unusual punishment and that it is a greater sentence than that imposed on some of the most heinous first-degree murders, I do want to point out that what occurred in this apartment to this woman was cruel at its basest degree. It was as cruel as you can be to another human. And while she lived through this experience, undoubtedly due to her own quick drinking, bravery, and fortitude, she will live for a long time suffering because of what you have done widi her — to her. And I have considered diose matters in arriving at my decision.
“Counts 1 and 2 will run consecutive to all tire odiers. Count 3 is consecutive. Count 4 and 5 are consecutive. Count 6 is consecutive. Count 7 is consecutive, and Count 8 is consecutive.”
Defendant was sentenced to a controlling term of 1,487 months.
We must first consider whether we have jurisdiction to determine this issue.
K.S.A. 21-4721(c)(l) provides that any sentence within the presumptive sentence for the crime is not reviewable by an appellate court. It is undisputed that each sentence herein is within the statutory presumptive sentence for a person having a categoiy A criminal history. Hence, there is no statutory appeal from any individual sentence herein.
Defendant attacks only the running of some of the sentences consecutively. In State v. Ware, 262 Kan. 180, Syl. ¶ 4, 938 P.2d 197 (1997), the Kansas Supreme Court held:
“Where a defendant challenges his or her presumptive sentencing on the ground that the running of multiple sentences consecutively constitutes an abuse of judicial discretion, no ground for appeal authorized by tire K.S.A. 21-4721 is asserted, and this court lacks jurisdiction to consider the issue.”
K.S.A. 21-4721(e) provides:
“In any appeal, the appellate court may review a claim that:
(1) A sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive;
(2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or
(3) tlie sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.”
Defendant’s sentences herein were not departure sentences and there is no claim that they resulted from partiality, prejudice, oppression, or corrupt motive.
In Ware, 262 Kan. 180, Syl. ¶ 2, the Supreme Court also held:
“Where K.S.A. 21-4721 applies, an appellate court’s jurisdiction to consider a challenge to a sentence is limited to those grounds authorized by the statute or a claim that the sentence is otherwise illegal.”
The challenge to the sentences in Ware was based on alleged abuse of judicial discretion. Does just couching a challenge to running KSGA sentences in terms of being constitutionally impermissible on the ground the result is allegedly cruel and unusual pun ishment make the consecutiveness aspect of the sentences appealable? We believe not.
Even if we were to hold we had jurisdiction to determine this issue, defendant cannot prevail.
In State v. McCloud, 257 Kan. 1, Syl. ¶¶ 1-3, 891 P.2d 324, cert. denied 516 U.S. 837 (1995), the Kansas Supreme Court held:
“Section 9 of die Kansas Constitution Bill of Rights provides diat no cruel or unusual punishment can be inflicted by the State. Although the constitutional prohibition against cruel or unusual punishment is directed primarily at the kind of punishment imposed radier than its duration, the length of a particular sentence may be so excessive as to constitute cruel and unusual punishment.”
“In determining whether the length of a sentence offends the constitutional prohibition against cruel or unusual punishment, three factors should be considered: (1) the nature of the offense and the character of the offender, with particular regard to the degree of danger present to society; relevant to this inquiry are die facts of the crime, the violent or nonviolent nature of the offense, the extent of die offender’s culpability for any resulting injury, and the penological purposes of the prescribed punishment; (2) a comparison of the penalty with punishments imposed in diis jurisdiction for more serious offenses, and if among diem are found more serious crimes punished less severely dian the offense in question, the challenged penalty is to that extent suspect; and (3) a comparison of die penalty with punishments in odier jurisdictions for the same offense.”
“The fact that a minimum sentence imposed by a district judge exceeds the life expectancy of the defendant is not grounds, per se, for finding that the sentence is oppressive or constitutes an abuse of discretion.”
Independent research has revealed no cases in which a KSGA sentence has been challenged as being cruel and unusual punishment.
We will briefly discuss the three factors set forth in McCloud in determining issues relative to claims of cruel and unusual punishment. As to factor (1), nature of offense and character of defendant, defendant’s arguments are essentially the same as he raised in his motion for a downward departure. That is that although his criminal history was in category A, his past offenses were not as egregious as that category made it appear, as there was never any allegation of aggravated burglary, only simple burglary. Thus the prior crimes were person crimes in name only. The circumstances “overrepresent” defendant’s criminal past. Also, he argues the nature of each offense was “far less aggravated than a normal sexual assault.” He does not attempt to define a “normal sexual assault.”
As for factor (2), defendant notes that his controlling sentence is greater than a murderer would ordinarily receive. A similar claim was made in McCloud, 257 Kan. 1, and rejected as a basis for claims of cruel and unusual punishment.
It should be noted as to these factors that the legislature, through the KSGA, took both the nature of the offense (crime severity level) and the character of the offender (criminal history) into consideration when it designed the sentencing grid. Provisions were made for departure when appropriate. As such, defendant’s sentence is within the same range as that of any other person convicted of similar crimes. The sentencing court rejected defendant’s arguments in support of a departure. Further, the sentencing court considered defendant’s arguments raised on this point and rejected them, finding that the rapes were cruel at the basest level and that defendant had been released on parole less than 24 hours before he committed these crimes.
Defendant does not discuss or apply factor (3) comparison with penalties in other jurisdictions.
We conclude we lack jurisdiction to review the sentences imposed herein, and even if we were to determine the issue, it has no merit.
The judgment is affirmed. | [
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Marquardt, J.:
Appellant Frankie G. Brown appeals the trial court’s decision to deny his motion to dismiss. Brown moved to dismiss proceedings filed pursuant to the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. Brown alleged the State failed to comply with the statutory requirements of K.S.A. 1995 Supp. 59-29a06, which requires a trial within 60 days of the probable cause hearing.
On May 16,1996, the trial court found probable cause to believe that Brown was a sexually violent predator and ordered him to be taken into custody for an evaluation. Brown remained in detention until the trial. In June 1996, Brown filed a motion to reconsider which was denied in September 1996. No motion for extension of time was filed in the case.
On October 15, 1997, Brown moved to dismiss the proceeding, asserting that K.S.A. 1995 Supp. 59-29a06 mandates that a trial be conducted within 60 days of the probable cause hearing and that he had been substantially prejudiced by the delay. The motion was heard on October 30, 1997. The district court denied the motion on November 6, 1997. At the hearing, the court stated that the delay between the probable cause hearing held in May 1996 and June 1997 was to await the United States Supreme Court decision on the constitutionality of K.S.A. 59-29a01 et seq. The court also ruled that the 60-day limit was directory and that Brown was not prejudiced by the delay.
On January 26, 1998, over 600 days after the probable cause determination, the district court held a hearing and determined that Brown was a sexually violent predator and ordered him into the custody of Social Rehabilitation Services. The journal entry was filed on February 12, 1998. Brown filed a notice of appeal on January 27, 1998, appealing from “the motions, trial, sentence, and any and all adverse judgments, rulings, findings of fact and conclusions of law entered by the District Court in the above-captioned case.”
Brown contends the 60-day limit in K.S.A. 1995 Supp. 59-29a06 is mandatory, and, as such, the trial court erred in overruling his motion to dismiss, alleging violation of a timely hearing pursuant to K.S.A. 1995 Supp. 59-29a06.
This issue involves the interpretation of a statute and is a question of law over which the appellate court has unlimited review. State v. Fierro, 257 Kan. 639, 643, 895 P.2d 186 (1995).
K.S.A. 1995 Supp. 59-29a06 states in part:
“Within 60 days after the completion of any hearing held pursuant to K.S.A. 59-29a05 and amendments thereto, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced.”
Brown argues the provision is mandatory because of the use of the term “shall.” He states that our Supreme Court has labeled such verbs as “shall, must, or will” as mandatory language. P.W. v. Kansas Dept. of SRS,. 255 Kan. 827, 836, 877 P.2d 430 (1994). Brown also construes the 60-day limit in K.S.A 59-29a06 as mandatory because the limit is intended to provide the speedy trial protection afforded criminal defendants.
The Kansas Sexually Violent Predator Act is civil in nature; therefore, speedy trial protections afforded criminal defendants, whether constitutional or statutory, do not apply. Kansas v. Hendricks, 521 U.S. 346, 369-70, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). Brown’s speedy trial challenge fails.
Despite Brown’s 'misplaced application of speedy trial rights to K.S.A. 1995 Supp. 59-29a06, this court must consider whether the 60-day limitation pursuant to K.S.A. 1995 Supp. 59-29a06 is mandatory or directory. The State argues that if the statute is taken as a whole, the intent is that the provision be directory.
“ ‘In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. 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.’ [Citation omitted.]” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
When defining “shall,” the State suggests the interpretation of this term should include consideration of the fact that the same provision permits the continuance of the trial. The State asserts that by providing the discretion to continue, the time limit can only be construed as directory. The State argues that the use of the term “shall” was done only to emphasize the priority of these cases for purposes of assigning cases for trial.
In construing a statute, the court must interpret the statute to give the effect intended by the legislature. West v. Collins, 251 Kan. 657, 661, 840 P.2d 435 (1992). “[I]n construing statutes, statutory words are presumed to have been and should be treated as consciously chosen, with an understanding of their ordinary and common meaning and with the legislature having meant what it said. [Citation omitted.]” International Ass’n of Firefighters v. City of Kansas City, 264 Kan. 17, 31, 954 P.2d 1079 (1998). When a statute is plain and unambiguous, the court will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. In re Marriage of Killman, 264 Kan. 33, 43, 955 P.2d 1228 (1998).
In construing the language of K.S.A. 1997 Supp. 59-29a04, another statute dealing with sexual predators, our Supreme Court held that the “75-day provision is jurisdictional, and a district court has no jurisdiction to entertain a petition filed beyond the time provided,” even though the word “shall” was not used in the statute. In re Care & Treatment of Ingram, 266 Kan. 46, 49, 965 P.2d 831 (1998).
The language of K.S.A. 1995 Supp. 59-29a06 is clear. The use of the term “shall” indicates the legislature mandated that the commitment trial be held within 60 days after the probable cause hearing. The inclusion of the language “[t]he trial may be continued” does not render the term “shall” discretionary. Additionally, continuance is conditional. A continuance (1) must be considered upon a motion; (2) must be granted for the purpose of due administration; and (3) cannot substantially prejudice the defendant. Neither the court nor the parties in this case filed a motion for continuance of trial. We hold that the 60-day requirement specified in K.S.A. 1995 Supp. 59-29a06 is mandatory and jurisdictional.
When a court disregards the clear mandated language of the statute relating to time limitations, we have no choice but to conclude that the district court erred in denying Brown’s motion to dismiss. There was no trial within 60 days and no record of any motion for continuance by the court or either party.
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Rulon, J.:
Petitioner Lola Pace appeals the district court’s holding that a minor is not emancipated by entering into a common-law marriage and she, therefore, is subject to the child in need of care code.
In January 1999, petitioner, age 16, and Patrick Sullivan, age 20, agreed to be married to each other and held themselves out to be married to petitioner’s mother and others. Petitioner’s putative father, Farrell Odum, with whom petitioner had lived for the majority of her life, reported to the Atchison County Attorney’s office that petitioner was absent from his home without his permission. The County Attorney’s office filed a petition alleging petitioner was a child in need of care pursuant to K.S.A. 38-1502(a)(9). Petitioner was removed from her marital home and taken into custody by the Department of Social and Rehabilitation Services (SRS) as a result of an ex parte temporary custody order.
Petitioner’s mother filed a verified petition for issuance of a writ of habeas corpus, alleging the State had unlawfully taken petitioner into custody. Ultimately, the district court found that a minor is not emancipated by way of a common-law marriage.
There are three requirements which must coexist to establish a common-law marriage in Kansas: (1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public. The common-law ages of consent are 14 for a male and 12 for a female. State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325 (1975). A minor who has reached the age of consent does not need the consent of a parent to enter into a valid common-law marriage. See State v. Sedlack, 246 Kan. 305, 787 P.2d 709 (1990). The district court found the elements to establish a common-law marriage existed in the present case. However, the district court also found petitioner was not emancipated by way of the common-law marriage.
K.S.A. 38-101 states: “The period of minority extends in all persons to the age of eighteen (18) years, except that every person sixteen (16) years of age or over who is or has been married shall be considered of the age of majority in all matters relating to contracts, property rights, liabilities and the capacity to sue and be sued.”
Our Supreme Court has long recognized common-law marriages. See Browning v. Browning, 89 Kan. 98, 130 Pac. 852 (1913). We conclude that if an individual who is at least 16 years of age enters into a valid common-law marriage, that individual is “considered of the age of majority.” K.S.A. 38-101.
“ ‘In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of tire court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]’ ” KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
Therefore, K.S.A. 38-101 must be read in conjunction with 38-1501 et seq., the child in need of care code. Clearly, the legislature intended for a married, 16-year-old individual to be of majority age under K.S.A. 38-101. Consequently, a minor who has been emancipated as a matter of law under K.S.A. 38-101 is not subject to the provisions of the child in need of care code. The court must give effect to the legislature’s intent even though words, phrases, or clauses must be omitted or inserted at some place in the statute. See KPERS, 262 Kan. at 644.
An unreasonable result would occur if an emancipated individual under K.S.A. 38-101 could be removed from a valid common-law marital home under K.S.A. 38-1501 et seq. As a general rule, statutes are construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 433, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983).
Reversed and remanded for further proceedings consistent with this opinion. | [
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Lewis, J.:
Petitioner Lyle Craig Sanders was charged with first-degree murder and an aggravated weapons violation and was convicted of those charges. The original convictions were reversed, and the case was remanded for a new trial. Petitioner was retried on remand and again convicted as charged. He was sentenced to three life terms and a term of not less than 1 nor more than 5 years, all to run consecutive to each other. The convictions and sentences were affirmed by the Kansas Supreme Court in State v. Sanders, 263 Kan. 317, 949 P.2d 1084 (1997).
This appeal deals with a motion filed under K.S.A. 60-1507, attacking the second set of convictions. The trial court summarily denied the petitioner’s motion, and petitioner appeals.
The thrust of petitioner’s motion on appeal is that both his trial attorney and his appellate attorney were ineffective. The facts surrounding petitioner’s charges and convictions are set forth in Sanders, 263 Kan. 317, and need not be repeated in this opinion.
Petitioner’s 60-1507 motion alleges: “The petitioner’s due process and equal protection of the law rights were violated, petitioner’s counsel was ineffective.” There are no facts alleged in the motion itself to support this claim.
“ ‘The burden of establishing incompetency of an attorney or ineffective assistance of counsel to the extent necessary to overcome the presumption of regularity of a conviction is upon the petitioner. [Citations omitted.] Mere conclusory contentions of a petitioner for which no evidentiary basis is stated or appears are not sufficient basis for relief from conviction. [Citation omitted.]’ ” State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994) (quoting Burns v. State, 215 Kan. 497, 499-500, 524 P.2d 737 [1974]).
Despite the fact that no facts were alleged in his motion, a memorandum attached to the motion cites several instances of what a petitioner contends was his attorney’s ineffectiveness. However, on appeal, petitioner argues only that trial counsel was ineffective in failing to have the DNA evidence independently tested.
We have read the record in this case, and it demonstrates that petitioner’s trial counsel was diligent and aggressively contested the State on every issue, including those involving DNA evidence. Among other things, petitioner’s attorney took die following steps during trial: (1) filed a motion in limine requesting the trial court to not allow into evidence preliminary presumptive tests for blood and to prevent the State from making reference to the meaning of “reasonable doubt”; (2) filed other motions requesting a gag order or, in the alternative, jury sequestration and a motion for a Frye hearing; (3) made Boston challenges to the State’s peremptory strikes; (4) filed a motion for the recusal of Judge Pilshaw. This was done after a couple of instances in which Judge Pilshaw criticized petitioner’s counsel and, at one point, allegedly screamed at petitioner’s counsel; (5) filed motions for a new trial and for acquittal; (6) requested specific jury instructions on behalf of petitioner; and (7) filed a notice of appeal on behalf of petitioner.
As noted above, petitioner’s counsel participated at a Frye hearing concerning the State’s DNA evidence. At this hearing, petitioner’s counsel produced his own expert witness who questioned the validity of the State’s DNA test results and, in particular, the procedure used in obtaining those results. Counsel exhaustively cross-examined the State’s expert and other DNA witnesses and was able to demonstrate certain weaknesses in the State’s evidence.
Petitioner argues that despite having done all of these things, his attorney was ineffective because the attorney did not have an expert independently render an opinion on the DNA sample.
Appellate courts have de novo review of trial courts’ analyses of performance and prejudice components of ineffective assistance of counsel claims. State v. Sperry, 267 Kan. 287, 297, 978 P.2d 933 (1999).
“ ‘The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” State v. Brown, 266 Kan. 563, 577, 973 P.2d 773 (1999) (quoting Chamberlain v. State, 236 Kan. 650, Syl. ¶ 2, 694 P.2d 468 [1985]).
Kansas follows a two-pronged test in determining whether trial counsel is effective:
“ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.’ ” Brown, 266 Kan. at 577 (quoting Chamberlain, 236 Kan. 650, Syl. ¶ 3).
We must determine whether counsel’s failure to submit the DNA sample for testing by an independent expert rendered counsel ineffective as an attorney in the constitutional sense of that term. The courts in this state have not addressed whether a trial counsel’s failure to independently test evidence is a reasonable decision to limit or forego investigation rather than a deficient performance. However, a review of other jurisdictions indicates that such a decision has been determined to be tactical and not ineffective assistance of counsel. See Thompson v. Cain, 161 F.3d 802 (5th Cir. 1998); Battle v. Delo, 19 F.3d 1547 (8th Cir. 1994); State v. Hamilton, 791 S.W.2d 789 (Mo. App. 1990), cert. denied 513 U.S. 1085 (1995).
In the context of petitioner’s situation, we conclude there is no merit in his argument that the failure to submit the DNA sample for independent testing was ineffective assistance of counsel.
The fact is that independent testing might, as petitioner argues, have produced evidence in his favor; however, it also might have verified that the State’s evidence was accurate. Defense counsel had shown the State’s evidence to have some exploitable weaknesses which would disappear if another and independent test verified the original results. The decision not to have the DNA independently tested was a tactical decision and not a deficient one, and we hold that it did not constitute ineffective assistance of counsel.
In addition, petitioner has failed to show that he was prejudiced by counsel’s failure to obtain independent DNA testing. A petitioner is required to show “ ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Brown, 266 Kan. at 578 (quoting Chamberlain, 236 Kan. 650, Syl. ¶ 3). We hold that petitioner was unable to show prejudice and, for that reason as well, his argument as to ineffective assistance of counsel lacks merit.
Petitioner also seeks to raise the issue of ineffective appellate counsel. This issue was not raised before the trial court and will not be addressed on appeal. “ ‘An issue not presented to the trial court will not be considered for the first time on appeal.’ ” State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998) (quoting State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d 435 [1996]). The issue has not been preserved for appeal.
Finally, petitioner argues the trial court erred in admitting the DNA evidence.
Although we are convinced from our review of the record that the trial court did not err in admitting the DNA evidence, that issue is not properly before this court.
“Under Kansas law, where an appeal is taken from the sentence imposed and/ or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deeined waived. Where a defendant’s claim has not been raised at trial or on direct appeal, such a default prevents the defendant from raising the claim in a second appeal or a collateral proceeding.” (Emphasis added.) State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990).
Supreme Court Rule 183(c)(3) (1999 Kan. Ct. R. Annot. 197) provides, in part: “Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” The question of whether the trial court erred in admitting evidence is an issue that could have been addressed and should have been addressed in petitioner s direct appeal and, as a result, we do not reach that issue.
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Marquardt, J.:
The State appeals the trial court’s imposition of sanctions.
In November 1998, D. and L. were each charged with one count of burglary, one count of criminal damage to property, and one count of theft. Both D. and L. were juveniles and made statements to the police about the crime.
The State subpoenaed L. to testify at D.’s trial. L.’s attorney wrote to the assistant district attorney and the trial court informing them that L. would not testify at D.’s trial and intended to invoke her Fifth Amendment rights. L. filed a motion to quash the subpoena and a petition requesting attorney fees and expenses. The trial court quashed the subpoena and imposed sanctions against the State and the district attorney’s office for L.’s attorney fees and expenses.
The State filed a motion to reconsider. L. responded and again asked for sanctions. Without holding a hearing, the trial judge denied the State’s motion and awarded attorney fees and expenses to L. The State appeals.
This court issued an order to show cause asking why this appeal should not be dismissed for lack of jurisdiction. L.’s attorney argued that this court does not have jurisdiction of this appeal under the juvenile or criminal code. L. also filed a motion to dismiss and asked this court to impose sanctions on the State for filing a frivolous appeal. The State replied, stating that it was proceeding under the civil code.
The question of whether this court has jurisdiction of an appeal is a question of law over which this court has unlimited review. State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999). The right to appeal is statutory. In re R.L.C., 267 Kan. 210, 214, 975 P.2d 285 (1999).
L.’s motion to quash was granted on February 16, 1999. The State’s motion to reconsider was filed on February 25, which was filed within the time limits established in K.S.A. 60-259. Thus, the time for filing an appeal was tolled while the motion was pending. The State’s motion to reconsider was denied on April 9. Sanctions were issued on April 26. The State filed its notice of appeal on May 19.
In a juvenile proceeding, an appeal may be taken by the prosecution from an order dismissing proceedings when jeopardy has not attached, from an order denying authorization to prosecute a respondent as an adult, or upon a question reserved by the prosecution. An appeal by the prosecution shall be taken within 10 days after the entry of the order. K.S.A. 1998 Supp. 38-1682.
The State did not reserve the issue of sanctions for this appeal. Additionally, the notice of appeal was not filed within 10 days after the adjudication. The State cannot proceed with this appeal under the juvenile code.
The State claims the sanctions entered by the trial court amount to a finding of contempt. If this is true, the State may appeal the finding under the civil code as a matter of right. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of the judgment. K.S.A. 1998 Supp. 60-2103.
Criminal contempt is conduct directed against the dignity and authority of a court or a judge acting judicially, with punitive judgment to be imposed in vindication; its essence is that the conduct obstructs or tends to obstruct the administration of justice. State v. Jenkins, 263 Kan. 351, 358, 950 P.2d 1338 (1997). Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceedings. Krogen v. Collins, 21 Kan. App. 2d 723, 726, 907 P.2d 909 (1995).
The district attorney committed no act in the presence of a judge and did not fail to do something ordered by the court; therefore, the sanctioning of the State does not fall within the purview of either of the contempt statutes.
The trial court in this case erroneously found that it was improper for the State to compel a witness to testify when it knew she intended to invoke her Fifth Amendment rights. In State v. Anderson, 240 Kan. 695, 699, 732 P.2d 732 (1987), our Supreme Court found it is improper conduct for either the prosecution or the defense to knowingly call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege.
There is no blanket prohibition against calling a witness to the stand for the purpose of having the witness invoke his or her Fifth Amendment rights. However, it is improper to call a witness to the stand in front of a jury for this purpose. The prohibition is focused on the potential impact the claim of privilege will have on the jury. See State v. Crumm, 232 Kan. 254, 257-58, 654 P.2d 417 (1982). In State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983), the Kansas Supreme Court recognized that the witness was being called to the stand in front of a juiy in order to lay a foundation for the use of prior testimony and found the practice was harmless error since it did not change the outcome of the trial. However, the court suggested that when a witness informs either the defense or the prosecution that he or she intends to claim a Fifth Amendment privilege, the privilege should be asserted outside the presence of the jury. 233 Kan. at 626.
D.’s adjudication was not held before a juiy. There was absolutely no chance that a juiy could have been confused by L.’s invocation of her Fifth Amendment rights. The Lashley decision indicates that the trial court should have allowed the district attorney to call L. to the stand to have her claim her Fifth Amendment rights.
Unfortunately for the State, under the juvenile code, the State’s right to appeal is very limited. The State did not reserve the question during the hearing, and the appeal was not taken within the 10 days required by the statute. Because no appeal was taken within the 10-day period allowed by statute, this court does not have jurisdiction, and we have no choice but to dismiss this appeal.
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Gernon, J.:
S.M.D. appeals from his adjudication as a juvenile offender on the charge of aggravated criminal sodomy and from the court’s ruling that the proceeding should be an extended jurisdiction juvenile prosecution.
In April 1998, a juvenile complaint was filed against S.M.D. in McPherson County, alleging that “[o]n or about the 7th day of February, 1998,” he caused the victim, then under the age of 14, to engage in sodomy contrary to K.S.A. 21-3506. At the time he was so charged, S.M.D. was 17 years old. The incident allegedly occurred in Inman, Kansas.
Several months later, the State filed a motion to designate the proceedings as an extended jurisdiction juvenile prosecution. The motion alleged that S.M.D. was 17 years old at the time of the offense and that the charge amounted to the adult crime of aggravated criminal sodomy, a severity level 2 offense. The journal entry granting the motion reflected that S.M.D. did not oppose the motion.
On July 2, 1998, S.M.D. filed a notice of alibi, asserting that he had an alibi for the evening of February 7,1998. In turn, the State identified rebuttal witnesses in response to the notice of alibi.
At trial, the court noted that the criteria were met to trigger the statutory presumption that extended jurisdiction should apply and that it was S.M.D.’s obligation to rebut that presumption. S.M.D. and his attorney stipulated that the presumption applied and that he could not rebut that presumption. The court then granted the motion for extended jurisdiction. At that time, S.M.D. waived his right to a jury trial.
S.M.D. first contends that the trial court committed reversible error by adjudging him guilty of committing the offense sometime during February 1998 rather than on the date referenced in the complaint. S.M.D. essentially argues that he relied on the State’s silence after he filed his notice of alibi for February 7, 1998, and that he had no reason to believe the State was contemplating the offense was committed on some other date. S.M.D. contends that after filing his notice of alibi, the State was obligated to amend the complaint to clarify that it was not limiting its evidence to that showing the crime occurred on February 7, 1998.
The requirements for complaints in juvenile proceedings are set forth in K.S.A. 1998 Supp. 38-1622. A subparagraph of that statute provides that the precise time of the commission of the offense is not required unless time is an indispensable element of the offense. K.S.A. 1998 Supp. 38-1622(a)(4). This language is nearly identical to the language of K.S.A. 1998 Supp. 22-3201(b). Because of the similarity of language, this court has held that the juvenile statute should be construed in pari materia with K.S.A. 1998 Supp. 22-3201. In re J.T.M., 22 Kan. App. 2d 673, 676-77, 922 P.2d 1103, rev. denied 260 Kan. 993 (1996). In In re J.T.M., this court ruled that a juvenile complaint could be amended in the same manner as a complaint in a criminal proceeding even though the juvenile statute did not specifically provide for amendments. 22 Kan. App. 2d at 677.
In the same manner, K.S.A. 1998 Supp. 38-1622 does not provide a remedy for situations where ambiguities in the complaint make it difficult for an alleged offender to prepare his or her defense. However, K.S.A. 1998 Supp. 22-3201(f) provides that a defendant in a criminal proceeding may request a bill of particulars, clarifying the details necessary for a defendant to prepare a defense to the charge. When a bill of particulars is ordered, the State's evidence is confined to those details provided. K.S.A. 1998 Supp. 22-3201(f). Based on the reasoning of In re J.T.M., the opportunity for a juvenile offender to request a bill of particulars in order to prepare a defense should be implied under the Juvenile Offenders Code.
In this case, S.M.D. provided a notice of alibi as provided in K.S.A. 1998 Supp. 38-1623; the notice indicated that S.M.D. was identifying an alibi for February 7, 1998. Similarly, criminal procedure statutes require a defendant to provide a notice of alibi before trial. K.S.A. 22-3218(2). Again, the criminal statute creates a procedure permitting a defendant to apply to the court for an order requiring the prosecutor to amend the complaint to include more details or for a bill of particulars in order for the defendant to file a timely notice of alibi. K.S.A. 22-3218(3). Again, while K.S.A. 1998 Supp. 38-1623 provides no explicit right for an offender to seek a bill of particulars, that remedy should be implied by construing the two statutes together. See In re J.T.M. 22 Kan. App. 2d at 676-77.
Kansas cases dealing with the obligation of defendants to seek a bill of particulars when they claim the absence of or vagueness in the allegations in the complaint impairs their ability to prepare a defense include State v. Webber, 260 Kan. 263, 284-85, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997); State v. Armstrong, 238 Kan. 559, 562, 712 P.2d 1258 (1986); State v. Myatt, 237 Kan. 17, 28-29, 697 P.2d 836 (1985); State v. Jones, 204 Kan. 719, 724-25, 466 P.2d 283 (1970); and State v. Miesbauer, 3 Kan. App. 2d 53, 55-56, 588 P.2d 953 (1979).
The common threads running through these cases are that: (1) The burden is on a defendant to seek a bill of particulars; (2) uncertainties as to the dates are common; (3) a defendant must object at trial if he or she believes a bill of particulars is inadequate; and (4) the appellate courts will examine whether the defendant was surprised by an amendment or a charge and deprived of the opportunity to defend.
Here, S.M.D. is essentially asking that the State be required to file a bill of particulars automatically anytime an alibi defense is raised. However, the legislature and our courts have clearly placed the burden on a defendant to make such a request; only the person charged is capable of determining whether additional details are necessary to present his or her defense.
Here, S.M.D. took no action to obtain a bill of particulars and pin down the State to a specified period or date in order to prepare his defense. He did not object during the presentation of the evidence which went beyond the date in the complaint, nor did he request a continuance.
S.M.D. also argues the district court erred in finding the proceeding should be designated as an extended jurisdiction juvenile prosecution. His contention is two-fold. First, he contends that the district court should have specifically considered the statutory factors set forth in K.S.A. 1998 Supp. 38-1636(e). Second, he com plains that the district court had failed to comply with K.S.A. 1998 Supp. 38-1636(f)(3), which required the court to adopt local rules for extended jurisdiction juvenile proceedings. S.M.D. contends that both of these lapses violated fundamental fairness and due process.
It must first be noted that S.M.D. raised neither of these issues before the trial court. The State filed its motion to designate the proceedings well in advance of the trial date, so S.M.D. and his attorney had ample opportunity to prepare to address the propriety of such a designation. Because of some confusion by S.M.D.’s attorney at the time the State’s motion was heard, the court gave the parties a recess to review the statutes and confer about tiieir options. At trial, S.M.D. and his attorney stipulated that under K.S.A. 1998 Supp. 38-1636(b), the presumption that the casé should be an extended jurisdiction juvenile proceeding applied and further stipulated that they could not overcome the presumption. S.M.D. did not object to either the lack of local rules or tbe trial court’s failure to address the specific statutory factors at the trial or in his post-adjudication motion for new trial. Therefore, these issues were not raised before the trial court.
The well-established general rule of appellate practice is that an issue not raised before the trial court will not be considered for the first time on appeal. State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998). However, this rule is not without exception. Our courts have been willing to address issues not raised below where the issue involves a question of law to be determined on proven facts, or if justice requires consideration of the new issue, or if such consideration is necessary to prevent the denial of fundamental rights. Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 622-23, 938 P.2d 1293 (1997).
In reading K.S.A. 1998 Supp. 38-1636, it does not appear that the legislature intended to require the courts to consider the statutory factors when a respondent stipulates that he or she cannot rebut the presumption. Another subsection of that statute provides:
“The court may designate the proceeding as an extended jurisdiction juvenile prosecution upon completion of the hearing if the respondent has failed to rebut the presumption or the court finds that there is substantial evidence that the respondent should be prosecuted under an extended jurisdiction juvenile prosecution.” (Emphasis added.) K.S.A. 1998 Supp. 38-1636(f)(2).
By stipulating that he could not rebut the presumption, S.M.D. cannot complain on appeal that the trial court erred in not evaluating the statutory factors to find sua sponte that the presumption was rebutted. As noted in another context, “ ‘to avoid a directed verdict as to the presumed fact, the parly adversely affected by the presumption must offer sufficient evidence to permit a rational fact-finder to find the nonexistence of the presumed fact. . . (Emphasis added.) In re L.D.B., 20 Kan. App. 2d 643, 647, 891 P.2d 468 (1995) (quoting 29 Am. Jur. 2d, Evidence § 199) (discussing presumption of unfitness in termination of parental rights proceeding).
Finally, S.M.D. argues that the procedures were fundamentally unfair because the district court had failed to establish local rules of procedure for extended jurisdiction juvenile proceedings as required by the statute. S.M.D. fails to explain, however, how he was prejudiced by the lack of local procedural rules. The State filed its motion several months in advance of the trial, so S.M.D. had ample opportunity to prepare a defense to extended jurisdiction or to request local rules be established. “[E]rrors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done.” State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997).
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Green, J.:
U.S.D. No. 259 (U.S.D. 259), the employer, appeals from an order of the Workers Compensation Board (Board). The Board determined that the administrative law judge (ALJ) had not exceeded her authority when she granted Alice Bryant, the injured employee, her request for a change of treating physician. Further, the Board determined that it lacked authority to review this post-award of medical benefits. On appeal, U.S.D. 259 contends that the ALJ exceeded her jurisdiction by granting Bryant’s request to change doctors. We disagree. In addition, U.S.D. 259 contends that the Board wrongly determined that it lacked jurisdiction over this appeal. We agree but affirm.
Bryant was employed by U.S.D. 259 when she sustained a work-related injury to her back in 1994. Dr. Sparks had treated Biyant for back problems before and after her work-related injury, and Dr. Ekengren was her family physician. In his deposition, Sparks testified he had released Bryant from his care in 1995 and was no longer treating her. Although he released Bryant at maximum medical improvement, Sparks testified Bryant would need future medical care, including prescription medication.
Bryant was awarded compensation, which included future medical care. In addition, U.S.D. 259 was ordered to pay the costs of pain medication prescribed by her authorized physician. The authorized physician was not designated in the award.
When Bryant went to Ekengren for pain medication, he referred her to Dr. Manasco for epidural steroid injections. Bryant informed U.S.D. 259 that she had gone to Ekengren and asked U.S.D. 259 to reimburse her for the outstanding bills. U.S.D. 259 responded by letter, stating: “It is obvious that this does not conform with such treatment being recommended or prescribed by the authorized treating physician in this case, i.e., Dr. Sparks. Thus, please be advised that the bill is considered by USD #259 to be unauthorized medical and thus, subject to a limitation of $500.”
Bryant filed an application for a preliminary hearing. A hearing was held before the ALJ. After the parties presented arguments, the ALJ found Bryant was in need of post-award medical care and ordered U.S.D. 259 to provide Bryant with a list of three physicians. The physician selected by Bryant was to be deemed authorized. The ALJ also ordered U.S.D. 259 to pay Ekengren’s outstanding medical bills as unauthorized medical, up to the statutory limit.
U.S.D. 259 appealed the order to the Board. The Board dismissed the appeal, finding it lacked authority to review the order because the ALJ had not exceeded her jurisdiction in granting Bryant’s requested preliminary hearing benefits.
Jurisdiction
This court does not have jurisdiction to review the Board’s dismissal of appeals of preliminary orders. Under K.S.A. 44-556(a),
“[a]ny action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under K.S.A. 44-S34a and amendments thereto, shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions by appeal directly to the court of appeals.” (Emphasis added.)
Furthermore, K.S.A. 44-551(b)(2)(A) provides that if the ALJ enters a prehminary award under 44-534a, the Board shall not conduct a review unless it is alleged that the ALJ has exceeded the ALJ’s jurisdiction in ruling on the rehef requested at the prehminary hearing. See Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 914, 924 P.2d 1280 (1996). This issue involves interpretation of the Workers Compensation Act. Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unhmited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
On appeal, U.S.D. 259 argues that this court has jurisdiction to review the Board’s order because the order entered by the ALJ was not a “prehminary” order or award arising from a “prehminary” hearing as described in K.S.A. 44-534a. It claims that although K.S.A. 44-534a gives the ALJ the authority to order medical treatment pending a full hearing on the claim, a full hearing on the claim had already been conducted by the Director and a final award entered. In addition, U.S.D. 259 contends that because the hearing was not prehminary, the Board erred in declining to review the ALJ’s order for lack of jurisdiction.
As indicated, K.S.A. 44-534a sets forth the procedures applicable to prehminary hearings and awards. K.S.A. 44-534a(a)(l) authorizes an employee or employer to apply for a prehminary hearing “on the issues of the furnishing of medical treatment and the payment of temporary total disability compensation.” K.S.A. 44-534a(a)(2) provides that the ALJ, after making a prehminary finding that the injury to the employee is compensable, may “make a preliminary award of medical compensation and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim.”
“Under the plain language of 44-534a, die term ‘preliminary award’ refers to an award arising out of a preliminary hearing which provides for medical benefits and/or temporary total compensation. [Citations omitted.]
“The purpose of a preliminary hearing ‘is to make a summary determination whether the claimant should be receiving temporary total compensation and medical treatment under the worker’s compensation act.’ [Citation omitted.]
“The purpose for foreclosing appeal from a preliminary award is ‘to afford the injured employee immediate access to medical and necessary living expenses pending a full hearing.’ [Citation omitted.]” Shain, 22 Kan. App. 2d at 915.
Turning our attention to the present case, the order issued by the ALJ is not a preliminary order as described in K.S.A. 44-534a. For example, the order did not precede the Director’s final order but followed the final order. The record contains no evidence that a full hearing was scheduled or was going to be scheduled as described in the statute. Nothing in the order indicates it was temporary; rather, it appears to be final. Although the order states that the hearing was a preliminary hearing, it does not specify that it was a preliminary order. The proceedings were more like the review and modification proceedings described in K.S.A. 44-528 and the change of physician proceedings described in K.S.A. 44-510(c)(1).
K.SA. 44-551(b)(l) states that “[a]!! acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge shall be subject to review by the board upon written request of any interested party within 10 days.” U.S.D. 259 appealed the ALJ’s order within 10 days. Because the order was not preliminary, the Board had authority to review it. In summary, when an ALJ considers and enters a decision involving an employee’s request for medical benefits and the employee’s request for medical benefits occurs after a final order or award has been made in the case, the order or decision of the ALJ shall be subject to review by the Board under K.S.A. 44-551(b)(l). As a result, the Board erred in dismissing the appeal on jurisdictional grounds.
Merits of the Case
Next, we must ask ourselves if we need to remand this case to the Board for determination of the merits. U.S.D. 259 only takes issue with the ALJ’s order requiring it to provide an authorized physician other than Sparks. U.S.D. 259 presents this court with the same issues it presented to the Board and specifically asks that this court review the decisions of the Board and the ALJ. Thus, in the interest of judicial economy, we will address the merits of U.S.D. 259’s appeal. See Winters v. GNB Battery Technologies, 23 Kan. App. 2d 92, 97, 927 P.2d 512 (1996).
U.S.D. 259 argues that the ALJ exceeded her jurisdiction in granting relief not requested in Bryant’s notice of intent. Specifically, U.S.D. 259 claims Bryant did not request a change of authorized physician, but rather limited her request to the authorization of Ekengren and reimbursement for incurred medical expenses. U.S.D. 259 argues it was prejudiced by the ALJ’s characterization of Bryant’s request for a change of benefits as a motion for change of physician, because it did not receive proper notice.
U.S.D. 259 also claims that the ALJ exceeded her jurisdiction in ordering U.S.D. 259 to provide the names of three potential authorized physicians because there was no showing that Sparks’ treatment was unsatisfactory. U.S.D. 259 argues it has the right to designate a treating physician and Bryant must return to Sparks before she can demonstrate his treatment is unsatisfactory. The issue of whether an ALJ had jurisdiction to enter an award is a question of law subject to de novo review. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 871, 924 P.2d 1263, rev. denied 261 Kan. 1082 (1996).
K.S.A. 44-528 provides the procedures for review and modification of an award. Under the statute, an award, whether it provides for future compensation or not, may be reviewed by the ALJ for good cause shown by any interested party. K.S.A. 44-510(c)(l) describes the change of physician proceeding. It is the duty of the employer to provide the services of a health care provider. K.S.A. 44-510(a). Under K.S.A. 44-510(c)(l), the employee may ask the ALJ to authorize the appointment of some other health care provider after finding the services provided by the employer are unsatisfactory. In such a case, the employer must submit the names of three physicians. The employee selects one name from the list, and that physician is deemed authorized.
Although Bryant’s filing under the preliminary hearing procedures in this case was improper, Bryant’s failure to follow proper procedures does not automatically require reversal of the ALJ’s order. Under K.S.A. 44-534(a), any party may apply in writing to the Director to have an ALJ resolve a dispute. In reviewing cases, the ALJ “shall not be bound by technical rules of procedure, but shall give the parties reasonable opportunity to be heard and to present evidence, insure the employee and the employer an expeditious hearing and act reasonably without partiality.” K.S.A. 44-523(a).
The award entered by the Director allowed Bryant to seek future medical treatment upon application and review. When U.S.D. 259 refused to pay for medical costs she incurred from seeing Ekengren, Bryant applied in writing for a review. Approximately 2 months before the hearing, Bryant furnished U.S.D. 259 with notice that she intended to ask the ALJ to authorize Ekengren. At least 1 year before the hearing, U.S.D. 259 had knowledge that Sparks had released Bryant and was no longer treating her.
The ALJ did not recharacterize Bryant’s request for a change in benefits as a motion for a change of physician as U.S.D. 259 suggests. Sparks’ status as the authorized physician was in dispute. The ALJ simply resolved the dispute by utilizing a method similar to that set forth in K.S.A. 44-510(c)(l).
U.S.D. 259 was provided with sufficient notice that Biyant was not receiving treatment from Sparks and wished to have Ekengren authorized. It was afforded a reasonable opportunity to be heard and present evidence. Nothing in the record indicates the ALJ acted unreasonably or with partiality. The ALJ neither authorized Ekengren nor required U.S.D. 259 to pay the outstanding medical bills as Bryant requested. Although this case was procedurally irregular, the ALJ did not exceed her jurisdiction in ordering U.S.D. 259 to submit the names of three physicians for authorization.
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Knudson, J.:
Troy Rapp appeals the district court’s determination of his criminal history. Rapp’s current crime of conviction is aggravated failure to appear, K.S.A. 21-3814. An element of aggravated failure to appear is “failing to surrender oneself within 30 days ... by one who is charged with a felony.” (Emphasis added.) In the underlying case supporting the crime of aggravated failure to appear, Rapp was charged with and ultimately convicted of two felonies in 96 CRM 1219 in Saline District Court.
The district court ruled that only one of the two underlying felonies in 96 CRM 1219 was a necessary element within the meaning of K.S.A. 21-4710(d)(ll) and counted the other felony conviction in determining Rapp’s criminal history. K.S.A. 21-4710(d) states:
“(11) Prior convictions of any crime shall not be counted in determining die criminal history category if they enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of die present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.”
Rapp contends the district court erred in counting one of the felonies in 96 CRM 1219 as criminal history since both are elements of aggravated failure to appear as charged by the State.
Both parties rely upon the holding in State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997). Taylor was charged with aggravated escape while in custody after multiple convictions in a consolidated case before the district court. In its charging document, the State relied only upon one of the convictions, possession of cocaine, to prove aggravated escape and argued the remaining convictions could be counted as criminal history. The district court disagreed. On appeal, the Supreme Court reversed, holding that the balance of convictions arising out of the consolidated cases could be used in determining Taylor’s criminal history. 262 Kan. at 480.
Rapp argues that because the State did not specify in its charging document which felony conviction it was relying upon to support the charge of aggravated failure to appear, the State is precluded from counting either felony as criminal history.
Conversely, the State argued before the district court that Taylor permits the State to use only one felony to support the current criminal charge, and the balance of convictions that arise in the same previous criminal proceeding may be counted as criminal history.
We find ourselves unable to adopt either party’s reasoning. Both parties and the district court lost sight of the fact that a felony conviction is not a legal predicate necessary to support a subsequent conviction for aggravated failure to appear. In State v. DeAtley, 11 Kan. App. 2d 605, Syl. ¶ 1, 731 P.2d 318, rev. denied 241 Kan. 839 (1987), this court held: “Aggravated failure to appear for violation of a bail bond, as defined in K.S.A. 21-3814, is a criminal offense in itself, separate and distinct from the underlying offense for which the bond was issued.”
K.S.A. 21-4710(d)(ll) speaks only to prior convictions. Under the holding in DeAtley and the unambiguous language of K.S.A. 21-3814, we conclude Rapp’s felony convictions were not elements of aggravated failure to appear and both should have been counted as criminal history.
Unfortunately for the State, no cross-appeal has been filed, and we are disinclined to consider Rapp’s sentence to be illegal. The State argued before the district court that only one of Rapp’s convictions from 96 CRM 1219 was an element of aggravated failure to appear. The State should not now be allowed to repudiate its very argument before the district court. One who, by his or her own acts, invites error cannot then complain or take advantage of it on appeal. See State v. Thomas, 220 Kan. 104, 106, 551 P.2d 873 (1976).
Affirmed. | [
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Knudson, J.:
David A. Thomas appeals the 1-year suspension of driving privileges for refusing to submit to an alcohol or drug test as provided under K.S.A. 1998 Supp. 8-1001. Thomas contends the arresting officer s certification and notice of suspension did not comply with the requirements of K.S.A. 1998 Supp. 8-1002. We affirm.
Thomas was arrested for driving under the influence of alcohol and refused to submit to a request for a breath test. The arresting officer’s certification and notification of refusal, commonly referred to as a DC-27, stated, in material part:
“1. On the 29th day of December, 1996, reasonable grounds existed to believe that the above-named person . . . had been operating a vehicle while under the influence of alcohol and/or drugs ....
“7. Reasonable grounds for my belief that the person was under the influence of alcohol and/or drugs:_odor of alcoholic beverages_alcoholic beverage containers found in vehicle_failed sobriety tests_slurred speech _bloodshot eyes '_difficulty in communicating_poor balance or coordination _X_ person stated alcohol/drugs consumed_failed preliminary screening test_other (explain)_”
K.S.A. 1998 Supp. 8-1002(a)(1) provides, in material part, that the officer’s certification shall include a statement that “[t]here existed reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs.”
Thomas argues that the arresting officer’s certification was legally insufficient because it did not state with particularity sufficient allegations of fact to support reasonable grounds, see Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, Syl. ¶ 2, 815 P.2d 566 (1991), equating reasonable grounds with a traditional probable cause standard.
Whether the DC-27 is required to set forth detailed facts supporting reasonable grounds requires an interpretation of K.S.A. 1998 Supp. 8-1002. Our standard of review is unlimited. Kansas Dept. of Transportation v. Humphreys, 266 Kan. 179, 182, 967 P.2d 759 (1998).
K.S.A. 1998 Supp. 8-1002(a)(l) only requires that a law enforcement officer certify that there did exist reasonable grounds to believe Thomas was driving under the influence of alcohol or drugs. We reject the suggestion that there should be read into the statute a requirement that the DC-27 must contain a factual statement of reasonable grounds comparable to a probable cause affidavit for an arrest or a search warrant. All that is required under the statute is the conclusory statement of the officer.
Thomas makes no argument that his driver’s license should not have been suspended based upon the evidence presented at the subsequent administrative hearing held in compliance with K.S.A. 1998 Supp. 8-1002(h)(l).
We conclude the district court did not err in affirming the suspension order imposed by the Department of Revenue.
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Green, J.:
Hershel Roaden was charged with two counts of aggravated indecent liberties with a child, one count of contributing to a child’s misconduct, and one count of raping a child under 14 years of age. After a jury trial, Roaden was convicted of rape and was acquitted of the other charges. Roaden was sentenced to 128 months in prison.
Roaden’s principal claims on appeal are (1) that improper prejudicial evidence was introduced through the testimony of an assistant district attorney, (2) that the prosecutor’s closing argument violated Roaden’s right to a fair trial, (3) that the evidence was insufficient to support his rape conviction, (4) that the trial court wrongly allowed evidence of gang membership to be introduced during the trial, and (5) that the trial court erred when it referred to and marked two trial exhibits as appellate exhibits.
In May 1996, 14-year-old M.M. ran away from home after several months of conflicts with her family. She left a note which stated that she could not handle the way things were and that she did not want to be there anymore.
M.M. returned home a week after she had run away. She first told her mother that she had been sleeping in a local park, but her mother did not believe her. M.M. then told her mother that she had been staying at Roaden’s apartment the entire week she had been gone. M.M. also told her mother that she had sexual intercourse with Roaden the last two nights that she was at the apartment.
In addition to the sexual contact at Roaden’s apartment, M.M. revealed that in September 1995 she had sexual intercourse with Roaden at his parents’ house before he went to jail. This sexual contact occurred before her 14th birthday. Two counts of aggravated indecent liberties and one count of rape were filed as a result of this information.
Prosecutor’s misconduct
During the State’s case in chief, assistant county attorney Thomas P. Alongi was called as a witness by the prosecution. Alongi had conducted the preliminary hearing in Roaden’s case and was called to bolster the credibility of M.M. by testifying that he had encouraged her to tell the truth. During his testimony, Alongi offered unsolicited information about other cases involving Roaden and young women:
“[W]e liad been getting a lot of juvenile child in need of care cases involving young women who were associated with Mr. Roaden, and my concern was M.M. might feel pressured to testify falsely because of Mr. Roaden or his friends, and what I wanted to do, first of all, was find out if she was going to change her testimony or retract what she had said before, or otherwise contradict her mother’s testimony.
“Well, I said, ‘Look, you know, I know you may feel some loyalty toward Mr. Roaden. I know you may want to protect him,’ ....
“I wasn’t asking her to maximize what Mr. Roaden did or make him look worse than he was, but I expected the truth, and I told her that if she did that, if she stayed at home, didn’t run away, listened to her mother, and testified to the truth, that I would make sure Judge Barker, the juvenile judge, knew about it next time we were in court in the [juvenile court] case.”
During cross-examination, Alongi stated, “[W]e get a lot of young women, 13,14,15 years old, and these men are everything to them, and I was concerned.” Alongi also later inferred that Roaden might have been involved in an incident which shattered another young girl’s jaw.
Nevertheless, no contemporaneous objection to the testimony was made. “ ‘A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal.’ ” State v. Holbrook, 261 Kan. 635, 643, 932 P.2d 958 (1997) (quoting State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 [1995]). On the other hand, our Supreme Court recently stated in State v. Sperry, 267 Kan. 287, 309, 978 P.2d 933 (1999), that the plain error rule may be used when “the prosecutor’s misconduct is so prejudicial or constitutes a constitutional violation which, if not corrected, will result in injustice or a miscarriage of justice.” Did the prosecutor’s conduct rise to a level requiring intervention by the trial court or this court? We believe the answer is yes.
As a prosecuting attorney, Alongi knew that his comments were highly prejudicial and were an improper method of rehabilitating a witness. First, Kansas case law does not allow evidence to bolster the credibility of witnesses until their credibility has first been attacked. State v. Craven, 215 Kan. 546, 547, 527 P.2d 1003 (1974). From reviewing the record, it is difficult to determine if M.M.’s credibility had been attacked before Alongi’s testimony. Second, even if M.M.’s credibility had been attacked, the State’s manner of rehabilitating M.M. was improper. When parties wish to rehabilitate a witness, they may do so by calling witnesses who will give reputation or opinion testimony of the impeached witness’ character trait for honesty or veracity. See K.S.A. 60-420; K.S.A. 60-422(c); State v. Lewis, 252 Kan. 535, 536-37, 847 P.2d 690 (1993); Herbstreith v. de Bakker, 249 Kan. 67, 76-77, 815 P.2d 102 (1991). In addition, parties may rehabilitate witnesses by showing that the witnesses made prior statements consistent with their testimony. State v. Hobson, 234 Kan. 133, 149-50, 671 P.2d 1365 (1983); State v. Fouts, 169 Kan. 686, Syl. ¶ 4, 221 P.2d 841 (1950). Here, the State failed to use either method in its attempt to bolster M.M.’s credibility.
In stating that the duty of a prosecutor is to insure that only competent evidence is submitted to the jury, our Supreme Court in State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993), stated: “The prosecutor is under a duty to insure that only competent evidence is submitted to the jury. Above all, the prosecutor must guard against anything that could prejudice the minds of the jurors and hinder them from considering only the evidence adduced.”
Here, the State failed its duty in two respects. First, Alongi’s testimony accusing Roaden of other unspecified misconduct with young women and of instigating, but escaping responsibility for, the aggravated battery of another young woman was not competent evidence. Second, the purpose of Alongi’s testimony was to prejudice the minds of the jurors against Roaden and to keep the jurors from considering only the evidence presented.
Although the State introduced a letter written by Roaden to M.M. indicating the two had engaged in sexual intercourse, the letter failed to prove that they had actually engaged in sexual intercourse. Moreover, in a later letter that Roaden wrote to M.M., he fantasized about being with M.M. Because the majority of the State’s case rested on the jury believing M.M.’s testimony, the State’s improper bolstering of M.M.’s credibility could have affected the verdict reached in this case. Roaden maintains that Alongi’s prejudicial testimony deprived him of a fair trial. We agree. Under the facts of this case, we determine that the improper conduct of the prosecutor constitutes reversible error requiring the granting of a new trial in this matter.
Closing argument
During closing argument, the prosecutor attacked the credibility of defense witnesses, accused them of collusion, and told the jury that he would disregard the defense testimony if he were on the jury. Although the prosecutor did not directly call the witnesses liars, the prosecutor’s comments were inappropriate. We recently reversed and remanded for a new trial for prosecutorial misconduct when the word “liar” was used in closing arguments. State v. Lockhart, 24 Kan. App. 2d 488, 491-93, 947 P.2d 461, rev. denied 263 Kan. 889 (1997).
Gang membership
Roaden next argues that the trial court erred in admitting evidence that he was a member of the Nutty Block Crips gang. He contends that this evidence was irrelevant, was highly prejudicial, and should not have been admitted. He also claims the trial court erred by allowing Officer Hester to testify as an expert in the field of street gangs.
Abuse of discretion is the appropriate standard of review when reviewing the admission of gang evidence. State v. Mathenia, 262 Kan. 890, 901, 942 P.2d 624 (1997). Judicial discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable. Discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997). The district court has discretion to exclude evidence when its probative value is outweighed by its prejudicial effect. State v. Toney, 253 Kan. 651, 653, 862 P.2d 350 (1993).
In the case before the court, the State questioned several of Roaden’s witnesses about whether Roaden was a member of the Nutty Block Crips and whether they themselves were members of a gang. All the witnesses denied that they belonged to a gang, and some indicated that Roaden might belong to a gang. The State then introduced evidence on rebuttal that some of the witnesses were indeed gang members and that gang members would have a tendency to Me to protect one another.
Gang evidence is probative to show witness bias. State v. Knighten, 260 Kan. 47, 54, 917 P.2d 1324 (1996). Our Supreme Court has stated:
“ ‘The probative value of evidence of gang membership as it pertains to witness bias is high. In United States v. Abel, 469 U.S. 45, 49, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984), the United States Supreme Court held that evidence of gang membership is probative of witness bias, and that “[p]roof of bias is almost always relevant because die jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” [Citation omitted.]’ ” State v. Green, 260 Kan. 471, 475, 920 P.2d 414 (1996).
Here, evidence was presented of possible gang affiliation. It is the jury’s duty to weigh the evidence to assess the credibility of witnesses. The trial court did not abuse its discretion by allowing the evidence for the purpose of showing witness bias.
Roaden failed to object to the qualifications of Hester as an expert on gangs in the Junction City area. An issue not presented to the trial court will not be considered for the first time on appeal. State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998). This issue is not properly preserved for appeal.
Appellate exhibits
The trial court clearly made references to appellate procedures within the presence of the jury when it referred to two trial exhibits as appellate exhibits. Our Supreme Court has held that a trial judge shall not refer to the defendant’s right to appeal in front of the jury. State v. Nguyen, 251 Kan. 69, 80, 833 P.2d 937 (1992). “Any such reference invites a defendant to appeal whether the remark was prejudicial.” 251 Kan. at 80. In Nguyen, the judge was conducting the jury orientation about the court procedures when he mentioned the right to appeal. This was before the jury began deliberations. In Nguyen, the court affirmed the conviction, holding that the defendant did not show prejudice. 251 Kan. at 80.
Because we are reversing and remanding this case for a new trial, we need not address this issue further. In addition, we have not addressed the sufficiency of the evidence argument for the same reason.
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Fleming, J.:
Stephanie Ann Gross appeals the trial court’s judgment affirming the Kansas Department of Revenue’s (KDR) suspension of her driver’s license.
During the early morning hours of June 19, 1994, law enforcement officers were conducting a sobriety check lane in Hays, Kansas. As Gross entered the check lane and stopped her vehicle, one of the police officers conducting the sobriety check lane approached her vehicle. The officer’s observation of Gross’ driving conduct as she approached in the check lane and stopped her ve hide was very limited, and there was nothing about her driving which indicated possible impairment. However, as the officer approached Gross’ vehicle, he detected the odor of alcohol and observed a glazed look in Gross’ eyes. Gross admitted that she had consumed a few beers.
The officer then asked her to exit the vehicle and perform a field sobriety test. Gross consented and, for the most part, performed the test satisfactorily. Next, even though the officer had not observed any behavior by Gross, in retrieving her driver’s license, exiting the vehicle, or her speech, which indicated impairment, the officer asked her to perform a preliminary breath test (PBT). The test was conducted, and the results indicated a probability of excess alcohol concentration. Gross was then arrested for driving under the influence; she was given the implied consent advisory and submitted to a breath test with the Intoxilyzer 5000. The test results were .102.
KDR then suspended Gross’ license for failing the test. Gross appealed to the trial court, which affirmed KDR’s suspension of Gross’ driver’s license. This appeal followed.
Gross raises three issues on appeal. First, she contends that the trial court erred in finding that the officer had probable cause to believe she was operating her vehicle while under the influence of alcohol.
“In a DUI case, the answer to the probable cause to arrest question will depend on the officer’s factual basis for concluding that the defendant was intoxicated at the time of arrest. Thus, an appellate court’s review of the trial court’s determination of whether an officer had probable cause to make a warrantless arrest in a DUI case is a mixed question of law and fact.” City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997).
We begin our inquiry by examining K.S.A. 1998 Supp. 8-1012. It provides:
“A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person’s breath to determine the alcohol concentration of the person’s breath if the officer has reasonable grounds to believe that the person: (a) Has alcohol in the person’s body.”
Probable cause is synonymous with the statutory term “reasonable grounds.” Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 767, 758 P.2d 226, rev. denied 243 Kan. 777 (1988).
The court’s interpretation of a statute is a question of law over which appellate review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). We find K.S.A. 1998 Supp. 8-1012 to be clear and unambiguous. It does not, as Gross suggests, require probable cause to believe that she was operating her motor vehicle while under the influence of alcohol. Rather, it simply provides that the officer must have probable cause to believe that she had alcohol in her body.
Here, the officer detected the odor of alcohol and observed that Gross’ eyes were glazed; most significantly, Gross admitted that she had consumed a few beers earlier in the evening.
KDR argues the trial court was without jurisdiction to determine whether the request for the PBT was proper, relying on K.S.A. 1998 Supp. 8-1002(h)(2). We disagree. Under K.S.A. 1998 Supp. 8-1002(h)(2)(A), the reasonableness of the officer’s belief is within the jurisdiction of the reviewing court. We conclude that the trial court’s review was proper and that the trial court correctly determined that K.S.A. 1998 Supp. 8-1012 does not require a finding of probable cause before administering a PBT.
Gross’ second argument is that the PBT is a search and seizure and is unconstitutional unless the investigating officer has probable cause to believe that a crime has occurred. This argument lacks legal merit. The cases relied upon by Gross in her brief either refer to invasive blood tests or testing that occurs after arrest. Understandably, in those instances the Fourth Amendment to the United States Constitution is clearly implicated, and probable cause to arrest or search is ordinarily required.
Gross was not under arrest. The officer was conducting a continuing investigation after forming a reasonable suspicion Gross had been driving under the influence. K.S.A. 1998 Supp. 8-1012 specifically authorizes the officer to request a PBT. The PBT is an unobtrusive procedure given in conjunction with other field sobriety tests to reach a decision whether an arrest should occur. Under these circumstances, the issue under the Fourth Amendment is not one of probable cause but whether a request for a PBT is reasonable. We hold K.S.A. 1998 Supp. 8-1012 provides adequate safeguards to insure reasonableness and, when followed, does not run afoul of the Fourth Amendment.
Finally, Gross contends that the trial court erred by admitting into evidence the results of her PBT without laying a proper foundation. No objection was made at the administrative level. A claim of error cannot, therefore, be made for the first time at the trial court level. See Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 328, 851 P.2d 1385, rev. denied 253 Kan. 864 (1993); Angle, 12 Kan. App. 2d at 764-65.
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Paddock, J.:
Henrichs appeals the granting of summary judgment in favor of Peoples Bank (Bank) on her claim that the Bank negligently or knowingly allowed Ronald Hoener to wrongfully deplete Gertrude W. Hoener’s funds. We affirm.
In 1988, Gertrude signed a signature card at the Bank giving Ronald authority to write checks on her account. She also executed a broad power of attorney making Ronald her attorney in fact. The power of attorney did, among other things, authorize Ronald to draw checks on her account, surrender for cash any of her certificates of deposit and, in general, to perform all acts that she could do.
The signature card that Gertrude signed giving Ronald access to her accounts directed the Bank to send her monthly bank statements to her in care of Ronald. The Bank complied with her request by mailing Gertrude’s monthly bank statements to Ronald from 1988 until her death in 1995.
Gertrude entered a nursing home in 1990 but had never been declared incompetent or in any way incapable of managing her business affairs. In fact, it was uncontroverted that Gertrude was an astute business person who accumulated much of her property through her own efforts.
Between 1989 and 1993, $248,000 was withdrawn from Gertrude’s checking account. Of that amount, $108,200 was withdrawn by checks signed by her and the balance withdrawn by checks signed by Ronald made payable to himself. Ronald also, pursuant to the power of attorney, liquidated certificates of deposit owned by Gertrude in a total amount of $259,942.
Our standard of review for determining the appropriateness of summary judgment has been so often stated that we need not repeat it here.
Henrichs argues that the district court erred in concluding that her claim against the Bank was barred by K.S.A. 84-4-406. This presents a question of law over which appellate courts have unlimited review. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
K.S.A. 84-4-406 provides in relevant part:
“(f) Without regard to care or lack of care of either the customer or the bank a customer who does not within one year after the statement [of account] or items [paid] are made available to the customer [subsection (a)] discover and report the customer’s unauthorized signature or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.”
The district court based its conclusion that Henrichs’ claim was barred by K.S.A. 84-4-406 on facts that Gertrude’s monthly bank statements were sent to Gertrude in care of Ronald and that the statements containing the transactions at issue were received by Ronald more than 1 year prior to the filing of this action.
Henrichs argues that K.S.A. 84-4-406 does not apply to this case because the bank had actual knowledge of Ronald’s misappropriation of Gertrude’s funds. She argues that the statute should not function to protect a culpable bank from an innocent account holder. The district court correctly determined Henrichs provided no evidence to support this contention. Furthermore, the statute indicates that a lack of care on the Bank’s part is not a consideration.
Henrichs next argues that K.S.A. 84-4-406 requires that the Bank make its statement “available” to its customer. Henrichs infers this requirement was not met when the statements were mailed to Ronald. The signature card in which Gertrude gave Ronald access to her account states clearly that the statements were to be sent to Gertrude in care of Ronald. The Bank made the statements available to Gertrude by sending the statements to the address directed by Gertrude. Henrichs cannot successfully argue that under these circumstances the statements were unavailable to Gertrude.
The district court properly concluded K.S.A. 84-4-406 bars Henrichs’ claims in this case concerning her bank accounts.
The district court also concluded that Henrichs’ claims were time barred pursuant to K.S.A. 1998 Supp. 60-513(a)(4). Henrichs claims the Bank was negligent. Additionally, she alleges that injury was not ascertainable until within 2 years prior to the filing of this case. We disagree.
Henrichs’ cause of action is based on the depletion of Gertrude’s assets by Ronald. In September 1993, Gertrude and her family members were informed by Gertrude’s attorney that Gertrude was running out of money with which to pay for her care. As a result, Gertrude, with the advice of her attorney, was considering executing a power of attorney which would allow Ronald to sell some real estate, if necessaiy, to pay for her care. Therefore, Gertrude and her family were aware, as of September 1993, that Gertrude’s assets had been mostly depleted and had, at that point, a duty to investigate. Henrichs’ petition was not filed until June 1996. K.S.A. 1998 Supp. 60-513(a)(4) bars her claim.
Finally, Henrichs claims that the district court erred in concluding that Ronald’s actions were authorized by the account signature card and the power of attorney. This claim is totally without merit. We have carefully examined the signature card and the power of attorney and find, contrary to Henrichs’ claim, that those documents did authorize the transactions at issue.
Henrichs argues that even if the transactions were authorized, the Bank remains liable because it knew Ronald was misusing Gertrude’s funds and knowingly participated in fraud. The finding by the district court that certain Bank employees had concerns about Ronald’s actions does not create a material issue of fact as to whether the Bank knowingly participated in any fraud committed by Ronald. The district court concluded that Henrichs failed to present evidence to support her argument. We agree.
An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). Assertions in an appellate brief are not sufficient to satisfy inadequacies in thé record on appeal. Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993). We find no error.
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Knudson, J.:
Dr. Philip Knight appeals from a jury verdict awarding William Wilson $100,000 in damages caused by Knight’s medical malpractice. Knight argues the court erred in permitting one of Wilson’s claims of negligence to be considered by the jury. Wilson cross-appeals, arguing the district court erred in granting summary judgment against him on his claim for medical expenses incurred during his minority.
On August 30, 1990, 14-year-old William Wilson began experiencing stomach pain. He went to see Dr. Pennington, his pediatrician, who later admitted him to the hospital and referred him to Dr. Knight, a pediatric surgeon. Dr. Knight was of the opinion Wilson had appendicitis, based on his elevated white blood count and a medical history consistent with that diagnosis. However, Dr. Knight decided not to perform an appendectomy then as Wilson had not met a certain diagnostic threshold. Wilson was eventually discharged from the hospital on September 3, after Dr. Knight concluded appendicitis was less likely than first suspected because Wilson’s white blood count had decreased and he could take in fluids.
Dr. Knight next saw Wilson on September 9, as Wilson’s pain had not improved since his discharge from the hospital. Dr. Knight performed an appendectomy that same day. A few days after die operation, Wilson began noticing one of his testicles had swollen, and he was continuing to experience pain. Wilson was discharged on September 15, although he felt extremely weak.
Wilson subsequentiy visited Dr. Hyder on September 20. Dr. Hyder, who is a colon and rectal surgeon, discovered a possible infection in Wilson’s abdominal cavity. Wilson was again admitted to the hospital where the infection was diagnosed as a pelvic abscess. This abscess was drained at least twice, and it was subsequendy discovered Wilson had developed a rectovesical fistula, which Dr. Hyder described as “a communication between the rectum and the bladder.” Due to the development of this fistula, a catheter and colostomy were installed which Wilson wore until June of the next year.
After his 18th birthday, Wilson filed this malpractice claim seeking to recover damages, including past medical expenses of $86,411.09. Before trial, the district court ruled that as a matter of law Wilson had no cause of action for past medical expenses. During the trial, Wilson introduced medical articles into evidence over the objection of Dr. Knight. At the close of Wilson s case in chief, Dr. Knight’s motion for directed verdict upon the claim he failed to diagnose and test for post-operative infection was denied. At the conclusion of trial, the district court included the same claim as one of Wilson’s contentions of negligence in its jury instructions. The jury found Dr. Knight negligent and awarded Wilson $100,000. Knight’s motion for new trial was denied.
On appeal, Dr. Knight raises two issues: (1) Did the district court err in admitting medical journal articles as independent evidence to establish breach of the standard of care; and (2) did the district court err in denying defendant’s motion for directed verdict and motion for new trial on the claim of failure to diagnose and treat for postoperative infection? Wilson has cross-appealed from the district court’s decision denying recovery of medical expenses.
ADMISSION OF MEDICAL TREATISES
Several times during the trial, Wilson’s counsel introduced various journal articles and treatises under the learned treatise exception to the Kansas hearsay rule, K.S.A. 1998 Supp. 60-460(cc).
Dr. Knight contends the admission of this evidence was error because the evidence was not relevant to the issues involved in the case, the evidence was outside the scope of the witness’ testimony, the evidence was too confusing to the jury without any helpful testimony from the witness, the expert did not rely on the articles in reaching conclusions, and the articles and texts constituted hearsay testimony as the author was not available for cross-examination.
The admission or exclusion of evidence is within the district court’s sound discretion, subject to recognized exclusionary rules. State v. Schultz, 252 Kan. 819, Syl. ¶ 9, 850 P.2d 818 (1993). Judicial discretion is abused only if no reasonable person would take the view adopted by the district court. Labette Community College v. Board of Crawford County Comm'rs, 258 Kan. 622, Syl. ¶ 1, 907 P.2d 127 (1995).
K.S.A. 1998 Supp. 60-460 states:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissable except:
“(cc) Learned, treatises. A published treatise, periodical or pamphlet on a subject of history, science or art, to prove the truth of a matter stated therein, if the judge takes judicial notice, or a witness expert in the subject testifies, that the treatise, periodical or pamphlet is a rehable authority in the subject.”
The Kansas learned treatise exception to the hearsay rule permits the admission into evidence of a medical treatise as independent substantive evidence if reliability and relevancy are established. See K.S.A. 60-401(b); Zimmer v. State, 206 Kan. 304, 309, 477 P.2d 971 (1970). This exception is rather unique. Most jurisdictions have more restrictive rules. See 6 Wigmore on Evidence §§ 1690-1700 (Chadboum rev. 1976). The more traditional approach is Fed. R. Evid. 803(18), under which learned treatises are not admitted as independent substantive evidence; instead, authoritative treatises are referred to by testifying experts to support their opinions or to impeach an expert when cross-examined by an adversary. Under the federal rule, relevant statements from a treatise may be read into the record, but no part of the writing itself is admitted as evidence.
The Kansas learned treatise exception requires special vigilance by a trial judge to make certain a “garbage in” process does not occur or that the jury is left to ferret through learned treatises that the average juror does not understand and may misconstrue. In 1 Gard and Casad’s Kansas C. Civ. Proc. 3d Annot. § 60-460, p. 279 (1997), the authors noted:
“This exception, like a number of the others, while very desirable, is one which requires a good deal of discretionary supervision by the trial judge. The treatise, when offered in evidence must aid rather than confuse, and if the risk of confusion is great and the value of the treatise comparatively slight it will be excluded.”
We also believe the objection noted in The State v. Baldwin, 36 Kan. 1, 17, 12 Pac. 318 (1886), that “the great weight of authority is that [learned treatises] cannot be admitted . . . this upon the theory that the authors did not write under oath, and that their grounds of belief and processes of reasoning cannot be tested by cross-examination” has merit, and the underlying rationale should continue to give a trial judge pause before admitting learned treatises as independent evidence under K.S.A. 60-460(cc). Nevertheless, we recognize application of this hearsay rule must be considered on a case by case basis, weighing the probative value of the evidence against its potential prejudicial impact.
Turning to the facts of this case, we note each proffered treatise was admitted only after predicate testimony under K.S.A. 1998 Supp. 60-460(cc) was presented. The more substantial question is whether a particular treatise was relevant to a material issue in the case. The main issues in the case were whether Dr. Knight failed to timely diagnose and treat Wilson’s appendicitis, whether he failed to administer antibiotic treatment after the appendectomy, and whether he failed to diagnose and treat Wilson’s post-operative infection.
We are satisfied after reviewing each of the six exhibits objected to by Dr. Knight that the district court did not commit reversible error. Four of the exhibits are clearly relevant to the case. These four exhibits deal with the use of antibiotics to cover bacterial infections in cases of perforated appendicitis, the use of a 5- to 10-day course of antibiotics to prevent and resolve intra-abdominal infections, the use of antibiotics in complicated appendectomies for up to 10 days after the surgeiy, and a general discussion of the diagnosis and treatment of appendicitis.
Two of the exhibits do not seem to be relevant as they dealt with how soon after an appendectomy a child should be discharged from the hospital in order to keep costs down, and a discussion regarding diagnosing diseases which appear to be appendicitis but are not. However, even if the court erred in admitting these two articles, the error was harmless. It is highly unlikely, due to the complicated nature of the issues in the case and the topics involved in the exhibits, the jury was confused or prejudiced by the admission of two irrelevant articles. See Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992) (holding harmless error is error which does not prejudice the substantial rights of a party and affords no basis for a reversal of judgment).
CLAIM FOR FAILURE TO DIAGNOSE AND TREAT
The juiy was instructed it could find Dr. Knight hable for failing to diagnose Wilson’s appendicitis and to perform a timely appendectomy; failing to administer appropriate post-operative I.V. antibiotic therapy; or for failing to diagnose and treat Wilson’s postoperative infection. The jury was also instructed that an agreement as to which specific negligent act or omission it relied on to find Dr. Knight liable was not required.
At the close of Wilson’s evidence, Dr. Knight moved for a directed verdict, alleging in part that no evidence existed to prove he caused Wilson’s injuries by failing to diagnose or treat his infection. The court denied this motion. After the trial, Dr. Knight moved for a judgment notwithstanding the verdict arguing in part no causation was shown. The district court denied this motion. Dr. Knight contends the district court erred in overruling his motions for directed verdict and judgment notwithstanding the verdict because no evidence existed to prove Dr. Knight’s failure to diagnose and treat Wilson’s post-operative infection was the proximate cause of Wilson’s damages.
K.S.A. 60-250 allows a litigant to move for a directed verdict and for judgment notwithstanding the verdict. Turner v. Halliburton Co., 240 Kan. 1, 6, 722 P.2d 1106 (1986). In ruling on a motion for directed verdict pursuant to K.S .A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule applies when appellate review is sought of a motion for directed verdict and also to a motion for judgment notwithstanding the verdict. 240 Kan. at 6-7.
According to Dr. Edney, one of Wilson’s expert witnesses, Dr. Knight deviated from the standard of care in not immediately diagnosing Wilson with appendicitis and performing an appendectomy. Further, Dr. Edney opined Wilson would not have devel oped his subsequent complications if he would have undergone an appendectomy during his initial hospitalization. Additionally, Dr. Edney testified Dr. Knight should have noticed during the appendectomy that Wilson’s appendix was perforated, requiring a 5- to 10-day course of antibiotics after the operation. If Wüson had been treated with this protracted course of antibiotics, Edney testified, Wilson more likely than not would not have suffered all the postoperative complications.
Dr. Bronsther, another of Wilson’s experts, testified the failure to perform an appendectomy initially deviated from the standard of care and would have prevented Wilson’s post-operative complications. Further, Dr. Bronsther testified Dr. Knight was negligent in performing the surgery, as he allowed toxins to invade the peritoneal cavity, causing the abdominal abscess to form which eventually led to the fistula. Dr. Bronsther further opined' Wilson should have been given up to 10 days of antibiotic treatment. Further, numerous symptoms should have indicated the presence of an infection and discharging Wilson from the hospital on September 15 also deviated from the standard of care. Finally, Dr. Bronsther stated that if Wilson would have been treated within the standard of care during his surgery, and been given a 5- to 7-day course of antibiotic treatment, he most likely would not have developed the complications. Antibiotics help the body combat infection, Dr. Bronsther stated, and they would have helped in this case.
Viewing the evidence in the most favorable light to Wilson as the district court was required to do in ruling on a motion for a directed verdict or a motion notwithstanding the verdict, all three bases of liability were properly submitted to the jury. Although the evidence concerning the diagnosis and treatment of Wilson’s postoperative infection was not as abundant as evidence supporting the first two bases of liability, reasonable minds could reach different conclusions regarding whether causation on the third basis was proven. Dr. Bronsther’s testimony that antibiotics help cure infection and would have helped in this case tends to prove Dr. Knight’s failure to treat Wilson with antibiotics after the surgery led to his infection. While this evidence could also support the second basis, it would be sufficient to support a finding of liability against Dr. Knight.
CLAIM FOR MEDICAL EXPENSES
Wilson cross-appeals from the district court’s grant of partial summary judgment against him on his claim for medical expenses incurred during his minority and paid for by his parents or their insurance company.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998). Whether a plaintiff may claim medical expenses incurred during his minority as an element of damage in a suit against the tortfeasor brought after the plaintiff reaches the age of majority is a question of law. Thus, this court has unlimited review. See State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).
The general rule throughout the United States is that unless the child is emancipated, the parent rather than the child is entitled to recover medical expenses that have been incurred to provide care and treatment. See 59 Am. Jur. 2d, Parent and Child § 104, p. 243; 32 A.L.R.2d 1060,1069. This general rule is also recognized in the Restatement (Second) of Torts § 703 (1976).
The underlying rationale for the general rule is stated in Garay v. Overholtzer, 332 Md. 339, 366, 631 A.2d 429 (1993):
“The rule vesting in the parent the right to recover medical expenses is grounded in the proposition that the parent has a duty to care for the child, and that as a result of that duty, the parent, not the child, is contractually hable for medical expenses incurred on the child’s behalf. See 4 J.G. Sutherland, Law of Damages, § 1250, at 4737-38 (4th ed. 1916) (a minor living with his parents cannot recover medical expenses as items of damages because the child is not hable for them, unless the minor has paid the bill, or is legally bound to pay it); 2 Arthur G. Sedgwick, Measure of Damages § 486b, at 932-33 (9th ed. 1912) (‘Since the parent is obhged to support the child during minority, and therefore to furnish medical attendance, the minor cannot recover medical expenses resulting from the injury, unless, as may happen, the minor’s estate has become responsible for them.’) Thus, if a minor is contractually hable for medical expenses, it follows that the minor should be able to recover those expenses from a tortfeasor. Other jurisdictions have examined this question. Moses v. Akers, 203 Va. 130, 122 S.E. 2d 864 (1961), set forth four circumstances which constitute exceptions to the general rule that parents possess the exclusive right to recover a minor’s premajority medical expenses. These include the following: (1) when the minor child has paid or agreed to pay the expenses, (2) when the minor child is legally responsible for payment, such as by reason of emancipation, or the death or incompetency of his parents, (3) when the parents have waived or assigned their right of recovery in favor of the minor child, or (4) when recovery of expenses is permitted by statute. Moses v. Akers at 132, 122 S.E.2d at 866 (citing 43 C.J.S. Infants § 104(d); Tellier, Annotation, supra, 32 A.L.R.2d 1060).”
We have not found a Kansas case precisely on point, but the following cases are strongly indicative that Kansas follows the general rule.
In Balandran v. Compton, 141 Kan. 321, 322, 41 P.2d 720 (1935), the injured child’s father brought an action against the tortfeasor to recover medical and hospital expenditures incurred for care and treatment of the child. This action was after the child’s successful action to recover damages arising from the accident. When judgment was entered in favor of the defendant, the father appealed, arguing that the defendant’s liability had previously been settled in the prior action in which his son had recovered. The Supreme Court held that the prior litigation settled nothing between the father and the defendant.
In Henry v. Railway Co., 98 Kan. 567, Syl. ¶ 2, 158 Pac. 857 (1916), the Supreme Court held that a judgment in favor of the son in an action brought to recover damages for personal injury is not conclusive or binding against the same defendant in another action brought by the father in his own right to recover for loss of the son’s services. (Emphasis added.)
In Abeles v. Bransfield, 19 Kan. 16, Syl. ¶ 2 (1877), where a mother as next friend brought her minor son’s action for personal injuries and included a claim for medical expenses incurred, the Supreme Court held that by “commencement and prosecution of such action, it must be conclusively presumed that the mother relinquished and gave to her son” the cause of action to recover the medical expenses. (Emphasis added.)
One of Wilson’s contentions is that medical expenses are necessaries, and a minor is liable for the value of necessaries furnished; therefore, he is the real party in interest who has a cause of action to recover such expenses from a tortfeasor. That a minor is bound by his or her contracts for necessaries has long been the law in Kansas. See K.S.A. 38-102; State v. Weatherwax, 12 Kan. 463, 464 (1874). And we agree medical expenses are necessaries. We do not agree that this means ipso facto the minor has the right to recover medical expenses against a tortfeasor. As we have previously noted, the law obligating a minor to bear responsibility for contractual necessaries and the law vesting in the parent the right to recover medical expenses incurred for a minor child have peacefully coexisted in virtually every jurisdiction that has addressed this issue. Certainly, as was noted in Garay, 332 Md. 339, there are exceptional circumstances that would permit a minor to pursue recovery of his or her medical expenses. However, no exceptional circumstances exist in the case now before use.
We conclude that Kansas follows the general rule that a parent holds the cause of action to recover medical expenses incurred on behalf of a minor child absent exceptional circumstances. In the case at bar, Wilson’s parents through their insurance company paid his medical expenses, and there has been no showing of assignment by the parents or other exceptional circumstances that would permit recovery by Wilson. Accordingly, we hold the district court did not err in granting partial summary judgment upon this issue.
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GERNON, J.:
Raymond Crockett appeals his conviction of conspiracy to commit first-degree murder. Following the jury trial, Crockett filed a motion to arrest judgment, contending the charging document was fatally defective because it failed to include an allegation of the overt act element of conspiracy. Crockett appeals the denial of his motion to arrest judgment.
K.S.A. 21-3302(a) provides that “[a] conspiracy is an agreement with another person to commit a crime or to assist in committing a crime.” Furthermore, K.S.A. 21-3302(a) proclaims that “[n]o person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.”
The charge read:
“[0]ne Raymond J. Crockett, Jr. and one Ronnell F. Jones did unlawfully, feloniously, intentionally and with premeditation, kill a human being, to-wit: Terrance Canada, in violation of K.S.A. §21-3401. (First Degree Murder, Off-Grid Person Felony.)
“COUNT II
“At the County of Wyandotte, State of Kansas, for a further, different and second count herein; Information reads that on or about the 26th day of August, 1996, one Raymond J. Crockett, Jr. and one Ronnell F. Jones did unlawfully, feloniously, knowingly and willfully enter into an agreement with one another to commit a crime, to-wit: First Degree Murder, as defined by K.S.A. §21-3401, and in furtherance of such agreement committed the following overt acts, to-wit: planning on the time, location and manner of killing Terrance Canada, in violation of K.S.A. §21-3302. (Conspiracy to Commit First Degree Murder, Severity Level 2, Person Felony.)”
In State v. Hill, 252 Kan. 637, 642, 847 P.2d 1267 (1993), the court adopted the following definition of overt act:
“ ‘Overt act. An open, manifest act from which criminality maybe implied. An outward act done in pursuance and manifestation of an intent or design. An open act, which must be manifestly proved.
“ ‘An overt act which completes crime of conspiracy to violate federal law is something apart from conspiracy and is an act to effect the object of the conspiracy, and need be neither a criminal act, nor crime that is object of conspiracy, but must accompany or follow agreement and must be done in furtherance of object of agreement. Marino v. United. States, C.C.A.Cal., 91 F.2d 691, 694, 695.’ ” (quoting Black’s Law Dictionary 1104 [6th ed. 1990]).
In State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988), the court stated: “It must be shown the defendant took a step beyond mere preparation so that some appreciable fragment of die crime was committed.” The Chism court went on to say: “In some cases, . . . it is enough that the defendant arrived at the scene at which he planned for the crime to occur.” 243 Kan. at 490.
In State v. Hobson, 234 Kan. 133, 134-35, 671 P.2d 1365 (1983), Sueanne Hobson appealed her convictions of first-degree murder of her stepson and conspiracy to commit murder. The evidence suggested that Hobson asked her son to help her “get rid of’ her stepson. 234 Kan. at 135. Hobson promised her son she would buy him a car if he would kill Hobson’s stepson. The court, in evaluating the jury instructions given at trial, stated: “The facts tending to establish the appellant hired or procured others to kill [her stepson] would not, standing alone, have established the additional element of an overt act required to support the charge of conspiracy.” 234 Kan. at 140.
In People v. Flood, 277 N.Y.S.2d 697, 53 Misc. 2d 109 (1966), the court explained that “it is ‘hornbook’ law that conversations among co-conspirators in forming and planning the conspiracy are not overt acts in furtherance of the conspiracy.” 277 N.Y.S.2d at 699.
In People v. Russo, 57 App. Div. 2d 578, 393 N.Y.S.2d 435 (1977), the court reversed a conviction for conspiracy because the charging document was fatally defective for failing to allege an overt act. The charging document listed the following overt acts: “(1) [T]he defendant met a certain individual and told him that he intended to have his father-in-law murdered and (2) the defendant and his coconspirator met another individual and agreed to pay him $10,000 for committing the murder.” 57 App. Div. 2d at 579. The court characterized the alleged overt acts as “nothing more than words” and concluded they were not overt acts. Moreover, the opinion states the overt act was required to be alleged and cites to Penal Law, § 105.20. 57 App. Div. 2d at 579. That statute reads, in language almost identical to the Kansas counterpart: “A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy.” N.Y. Penal Law § 105.20 (McKinney 1998).
We note the concern expressed by Justice Six in State v. Hall, 246 Kan. 728, 753, 793 P.2d 737 (1990), relating to the number of appeals raising an allegation of a defect in the information. In Hall, Justice Six explained the proper procedure for challenging an allegedly defective charging document is to file a motion for arrest of judgment. 246 Kan. at 764. This procedure was followed in the instant case. As a result, this court must review the information using the pre-Hall rationale. 246 Kan. at 764.
“In Kansas, all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed.” State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 (1992).
Furthermore, a citation to the statute will not supply the charging document with a missing element. Incorporation by reference will not be implied or inferred. Even an instruction to the jury will not remedy a defective complaint. 250 Kan. at 601.
Given the record before us, we conclude we are required to reverse Crockett’s conviction of conspiracy to commit first-degree murder.
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Knudson, J.:
Mid-West Conveyor Co., Inc. (Mid-West) and Insurance Company of the State of Pennsylvania, its insurance carrier, appeal the Workers Compensation Board’s (Board) award of permanent partial disability benefits (PPD) to Steven H. Over-street. Mid-West argues Overstreet failed to prove he was disabled from earning full wages for at least 1 week, a prerequisite to obtaining nonmedical disability benefits under K.S.A. 44-501(c).
Overstreet was working for Mid-West in Chicago, Illinois, on August 28, 1995, when he jumped off a trailer, spraining his ankle. Overstreet was treated by Dr. Stuck in Chicago until October 5, 1995, when the doctor advised Overstreet that he was doing well but should not hit more than 25 pounds for 3 more weeks. Over- street’s injury required him to wear a posterior splint and use crutches. Overstreet missed work from October 19, 1995, until November 5, 1995, because he could not walk on his ankle.
The parties stipulated that Overstreet’s injury arose out of and in the course of his employment with Mid-West, that all requirements for notices and claims were timely complied with, that claimant’s medical bills totalled $5,309.37, and that he suffered a 17% functional impairment to his left lower leg. The only issue pertinent to this appeal that was addressed below was whether Overstreet’s injury disabled him for at least 1 week from earning full wages to entitle him to PPD under K.S.A. 44-501(c).
On June 20, 1997, the administrative law judge (ALJ) determined Overstreet was not entitled to PPD under K.S.A. 44-501(c) as interpreted in Boucher v. Peerless Products, Inc., 21 Kan. App. 2d 977, 981-82, 911 P.2d 198, rev. denied 260 Kan. 991 (1996). Specifically, the ALJ found Overstreet did not prove he was disabled and incapable of earning full wages for over a week. The ALJ did, however, award Overstreet $5,309.37 for medical expenses.
The Board reversed the ALJ’s ruling on the PPD issue, finding Overstreet had proved he was disabled and unable to work from October 19, 1995, to November 5, 1995. The Board relied on Overstreet’s uncontradicted testimony that he could not work due to his ankle injury to support this conclusion. Thus, the Board awarded Overstreet 17% PPD for injury to his left leg, for a total award of $10,529.80. Mid-West appeals, contending the Board erred in its interpretation of K.S.A. 44-501(c). Mid-West further contends that the findings of the Board are not supported by substantial competent evidence.
Actions under the Kansas Workers Compensation Act are reviewed pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. K.S.A. 1995 Supp. 44-556(a). The KJRA further states that such review shall be limited to questions of law. K.S.A. 1995 Supp. 44-556(a). Whether the Board has erroneously interpreted K.S.A. 44-501(c) is a question of law. K.S.A. 77-621(c)(4). So also, the determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. See K.S.A. 77- 621(c)(7); Roberts v. J.C. Penney Co., 263 Kan. 270, 274, 949 P.2d 613 (1997).
K.S.A. 44-501(c), at the time of Overstreet’s injury, stated, in material part: “[T]he employer shall not be hable under the workers compensation act in respect of any injury which does not disable the employee for a period of at least one week from earning full wages at the work at which the employee is employed.” This language was subsequently deleted from the statute. See K.S.A. 1998 Supp. 44-501(c). However, in workers compensation cases, the law in effect at the time of the injury governs the rights and obligations of the parties. Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 874, 936 P.2d 297, rev. denied 262 Kan. 962 (1997).
Mid-West contends the Board misinterpreted K.S.A. 44-501(c). Mid-West argues that as a matter of law there must be medical evidence introduced to support a claimant’s assertion of disability under the statute. The Board concluded that medical evidence is not essential to support a finding of disability, citing Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). In Tovar, this court stated: “[M]edical evidence is not essential to the establishment of the existence, nature, and extent of an injured worker’s disability.” 15 Kan. App. 2d at 784.
Mid-West relies heavily on Boucher, 21 Kan. App. 2d 977, for the proposition that Overstreet is not entitled to PPD. In Boucher, the Court of Appeals affirmed the ALJ’s denial of PPD compensation. 21 Kan. App. 2d at 983. However, Boucher did not miss any work and was not disabled from earning full wages as a result of his injury. 21 Kan. App. 2d at 979. Those circumstances make Boucher materially distinguishable from the case now before us— Overstreet testified he was unable to work as a result of his ankle injury.
We conclude the Board did not err in its interpretation of K.S.A. 44-501(c). As was stated in Tovar, 15 Kan. App. 2d at 784, a claimant’s testimony may support a finding of disability; it is not required that there be medical evidence to support such a finding by the trier of fact.
Mid-West further contends that under K.S.A. 44-501(c), Over-street must have an actual wage loss for at least 1 week before there can be an entitlement to disability benefits. Mid-West argues that because there was no evidence presented that Overstreet sustained any wage loss from October 19, 1995, through November 5, 1995, as a matter of law he is not entitled to PPD. This contention is without legal merit. K.S.A. 44-501(c) does not state there must be an actual wage loss; rather, the statute quantifies the nature and extent of a claimant’s injury — that is, did the injury temporarily preclude the claimant from earning his or her regular wages. Whether an employer continues to pay actual wages while a claimant is temporarily and totally disabled is not controlling to determine whether the 1-week statutory threshold has been met.
This brings us to the issue of whether there is substantial competent evidence to support the Board’s findings. Overstreet testified that he was unable to work from October 19, 1995 to November 5,1995, because he could not walk on his ankle. His testimony was the only evidence produced at the hearing, and thus, it was uncontroverted. If evidence is presented that is uncontradicted and not improbable, unreasonable, or shown to be untrustworthy, the finder of fact cannot disregard this evidence, and it should be regarded as conclusive. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 285, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Significantly, the Board also found:
“[T]he medical treatment records entered into evidence by stipulation indicated claimant had received a severe left ankle injury. At the time claimant was last seen by Dr. Stuck on October 5,1995, claimant remained in a brace, had limits on his lifting activities, had further treatment recommended in tire form of physical therapy, and was instructed to obtain further medical treatment if his left ankle injury had not resolved in six weeks. The Appeals Board also concludes that tire severity of claimant’s ankle injury is further substantiated by the parties stipulating that as a result of claimant’s injury he sustained a 17 percent permanent functional impairment.”
We conclude the Board’s findings are based upon substantial competent evidence and are sufficient to support the favorable award to claimant.
For all of the foregoing reasons, and after a thorough review of the record and each of the claims raised by Mid-West, we deter mine that neither reversal nor modification of the Board’s order is required under the law and the evidence.
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Prager, C.J.:
Hulda Clanton appeals from the dismissal of her medical malpractice action against Michael P. Estivo, D.O., on statute of limitations grounds. Clanton contends that her suit was timely filed pursuant to K.S.A. 60-518, commonly known as the savings statute.
The facts in the case are undisputed. On November 17, 1994, the defendant performed a total hip replacement on the plaintiff, who was 72 years old at the time. Thereafter, Clanton underwent additional surgeries on her hip.
On March 22, 1996, Clanton filed a civil action alleging the surgery by defendant was negligently performed and seeking to recover damages exceeding $650,000, including over $200,000 in medical expenses. This case will be referred to as Clanton I. Discovery was conducted and the case was ultimately set for trial on April 8, 1997.
One week before the scheduled trial date, Clanton filed a motion to continue the trial because of her husband’s health problems. Defendant objected to the continuance, but the court continued the trial to August 26, 1997. On August 14, 1997, Clanton’s attor ney requested another continuance of the trial because of plaintiff s poor health, after plaintiff suffered a broken shoulder in a fall. Estivo again objected and suggested the case be dismissed without prejudice rather than being continued. Plaintiffs counsel then moved to dismiss the case without prejudice. The trial court granted the motion and the case was dismissed.
On August 21, 1997, 1 week after the dismissal, plaintiff refiled her claim against Estivo. This case will be referred to as Clanton II. A discovery conference was held in October and Clanton II was set for trial on July 14, 1998. Additional discovery was thereafter conducted.
On June 4, 1998, Clanton’s attorney filed a motion to dismiss the case without prejudice and to allow refiling of her claim while retaining the scheduled trial date. Clanton advised the court that counsel had failed to serve the Health Care Stabilization Fund (Fund) with notice of the second suit in a timely manner. Clanton wanted to dismiss the case and immediately refile it so she could serve both Estivo and the Fund and still keep the same trial date. Clanton argued that such a dismissal was permitted under K.S.A. 1998 Supp. 60-241(a)(2) and was not contrary to the two-dismissal rule of K.S.A. 1998 Supp. 60-241(a)(l), and that the savings statute, K.S.A. 60-518, would again permit her to refile the suit.
Defendant filed a written objection to the motion to dismiss, contending plaintiff s arguments regarding the question of whether K.S.A. 60-518 would allow the proposed third action to be filed were premature and disputing Clanton’s interpretation of the two-dismissal rule of K.S.A. 1998 Supp. 60-241. Clanton’s motion to dismiss was heard on June 18, 1998. At the hearing Clanton restated the arguments in her motion, including the belief that she could refile her suit under K.S.A. 1998 Supp. 60-241 and 60-518. Estivo’s counsel restated his arguments against the dismissal.
The trial court granted Clanton’s motion but stated: “I’m not making any advance ruling on whether any dismissal that I may grant today enables you to refile a third case. ... So, I’m not giving you an advanced preliminary ruling.” Clanton did not withdraw her request for a dismissal. The journal entry of dismissal expressly declined to address the issue relating to K.S.A. 60-518. The court dismissed the case on June 24, 1998, without prejudice and specifically ruled that, upon refiling, the case would keep the same trial date.
Clanton immediately filed her case a third time on June 24,1998. It will be referred to as Clanton III. In lieu of an answer, Estivo filed a motion to dismiss Clanton III with prejudice, contending that Clanton’s claim was barred by the 2-year statute of limitations and that the savings statute, K.S.A. 60-518, did not allow Clanton another extension of the limitations period in light of her two prior dismissals. The Fund joined in Estivo’s arguments in his motion to dismiss. Clanton filed a written response opposing Estivo’s motion to dismiss.
At the hearing on Estivo’s motion to dismiss, Estivo argued a party could not get more than one “extension” of the statute of limitations under K.S.A. 60-518. Plaintiffs counsel argued to the contraiy. The trial court considered the arguments and concluded that the plain language of K.S.A. 60-518 and the interpretation in Denton v. Atchison, 76 Kan. 89, 90 Pac. 764 (1907), limited a party to only one use of the savings statute, and, therefore the savings statute was not applicable to Clanton’s third suit. The court granted Estivo’s motion to dismiss and the case was dismissed with prejudice on July 27, 1998. Clanton timely appealed.
The question before the court is whether Clanton can obtain the benefit of the savings statute, K.S.A. 60-518, in connection with the filing of her third action. The relevant dates can be restated as follows:
11/17/94 Alleged malpractice occurs;
03/22/96 Initial action (Clanton I) filed by plaintiff;
11/17/96 Two-year statute of limitations expires;
08/14/97 Plaintiff voluntarily dismisses first case (Clanton I);
08/21/97 Plaintiff files second action (Clanton II);
02/14/98 Six-month savings statute expires from dismissal of original action;
06/24/98 Plaintiff voluntarily dismisses second action (Clanton II);
06/24/98 Plaintiff files third action (Clanton III).
Clanton raises two issues in this appeal. She first contends that the district court erred in holding that she was not entitled to the benefit of the savings statute after two prior voluntary dismissals.
K.S.A. 60-518 states:
“If any action be commenced within due time, and 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 the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.”
At the time Denton was decided in 1907, G.S. 1868, 80-23 provided:
“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 new action within one year after the reversal or failure.”
Since 1868, while the language regarding reversals has been removed, the length of time for refiling has been shortened from 1 year to 6 months, and gender-neutral verbiage added; the structure and terms of the 1868 statute are otherwise identical to the current statutory language. When the legislature revises an existing law, it is presumed the legislature intended to change the law as it existed prior to the amendment. State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998). 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. See State v. Rollins, 264 Kan. 466, 474, 957 P.2d 438 (1998); see also McIver v. State Highway Commission, 198 Kan. 678, 683, 426 P.2d 118 (1967) (holding that the failure of the legislature to disapprove of a specific judicial construction of a statute after a long period of time amounts to legislative ratification of the court’s interpretation).
Moreover, Denton continues to be cited as good law in recent cases involving the application of the savings statute in other contexts. See Goldsmith v. Learjet, Inc., 260 Kan. 176, 917 P.2d 810 (1996); See v. Hartley, 257 Kan. 813, 896 P.2d 1049 (1995). However, those cases did not involve a factual scenario like the present case in which a party seeks to use the extension under the savings statute more than once and more than 6 months after the prior case was dismissed.
We think it is important to note the reasoning of the Supreme Court in Denton in rejecting the argument that the savings statute authorizes repeated new actions within 1 year (now 6 months) after the dismissal of the preceding action. The court stated that, if it did authorize such actions, then a cause of action could be kept alive and litigation upon it prolonged indefinitely. The court reasoned that nothing in the savings statute justifies the interpretation that a new action could be brought more than 1 year after that prior disposition. 76 Kan. at 91. A new action begun more than 1 year after the dismissal, whether it was a second or third action, would be an enlargement of the time fixed by statute and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. 76 Kan. at 92. Here, the language of G.S. 1868, 80-23 has remained fundamentally unchanged to the present time.
Clanton’s attempt to link the interpretation of K.S.A. 60-518 to the multiple dismissal provisions of K.S.A. 1998 Supp. 60-241 is not persuasive. While K.S.A. 1998 Supp. 60-241 permits multiple dismissals, it does not, by its plain terms, make any provision for altering or extending any statute of limitations.
It should also be noted that a majority of other states permit their savings statutes to be invoked only once. See Annot., 54 A.L.R. 2d 1229. In this case, Clanton properly made use of the savings statute after her dismissal of her first suit. However, before Clanton dismissed the second suit, the original 6-month extension provided by K.S.A. 60-518 elapsed. Although Clanton III was filed within 6 months after the dismissal of Clanton II, it was not filed within 6 months after the dismissal of Clanton I.
Clanton also argues that the trial court’s dismissal of Clanton II with a provision that the trial date should remain the same when the case was refiled implied that the refiling would be allowed. Clanton’s counsel claims they reasonably relied upon the trial court’s ruling dismissing the case without prejudice and plaintiff should not be precluded from pursuing her claims. No legal authority is cited in support of this argument. The record in this case fails to establish that Clanton s attorneys could reasonably rely on the trial court’s riding as a basis to dismiss her suit and refile it a third time. The defendant’s objection to the motion to dismiss clearly challenged Clanton’s position that her action could be filed a third time. Moreover, the trial judge stated specifically that he was not ruling on whether a third filing would be protected by K.S.A. 60-518. These remarks were made before any express ruling by the court on the motion to dismiss. In addition, the journal entry signed by attorneys for both parties clearly stated the court was not addressing the question of the application of K.S.A. 60-518 to a third suit.
In view of the decision in Denton, the plaintiff could not obtain the benefit of the savings statute a second time. Therefore, the district court correctly held that Clanton’s third suit was barred by the applicable 2-year statute of limitations and properly dismissed the action.
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Lewis, J.:
Michael D. Jordan purchased a Case combine with a Cummins engine in 1992 for an amount in excess of $108,000. The combine was under an expressed warranty for 1 year, and the Cummins engine was under an extended warranty for 2 years. Jordan also insured the combine against loss by fire with Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau), which is the subrogee of Jordan. The combine and engine were destroyed in a fire along with Jordan’s unharvested wheat.
The fire was allegedly caused by the Cummins engine in the combine. Farm Bureau paid Jordan $108,000 for his loss, and Jordan has been paid the balance of his uninsured loss by Case Corporation (Case). Farm Bureau, acting as Jordan’s subrogee, brought the present action to recover its insurance payment to Jordan. The trial court granted summary judgment to defendants. Farm Bureau appeals.
We affirm.
We note that Jordan, the purchaser of the combine, has been paid the full loss he suffered in the fire. As a result, Jordan is a party to this action only as the subrogor of Farm Bureau, which is his subrogee.
In its suit against defendants, Farm Bureau alleged that the Cummins engine was defective and caused the fire. It sought to recover based on claims against defendants of implied warranty, strict liability, negligence, and res ipsa loquitur.
The trial court granted summary judgment to defendants on the basis of our decision in Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 960 P.2d 255, rev. denied 265 Kan. 885 (1998). We agree with the trial court that Koss controls and that it requires that we affirm the summary judgment entered in favor of defendants. Koss held that a purchaser of defective goods could not sue in negligence or strict liability where the only injury was damages to the goods themselves. 25 Kan. App. 2d 200, Syl. ¶ 2.
The parties do not dispute the facts; the only question before the court involves questions of law over which our review is unlimited. See Hartford Accident & Indent. Co. v. American Red Ball Transit Co., 262 Kan. 570, 574, 938 P.2d 1281 (1997). In this case, all parties agree that Farm Bureau’s subrogor purchased a combine with a Cummins engine. All parties basically agree that the Cummins engine was the cause of the fire which destroyed the combine and the unharvested wheat crop. In view of our decision in Koss, the only question we must determine is whether the engine in the combine was a component part of the combine or a separate product.
The facts of Koss are similar to the facts of this case. Koss purchased a Caterpillar roller from a dealer. A year after the roller was purchased, it caught fire and was damaged. Koss sued the dealer and Caterpillar, alleging the fire was caused by defective hydraulic hoses; Koss sued for damage to the roller, alleging strict liability, negligence, an breach of implied warranty. In this case, Jordan purchased a Case combine from a dealer. That combine caught fire and was destroyed along with Jordan’s unharvested wheat. Jordan’s subrogee, Farm Bureau, seeks to recover only for the damage to the combine, alleging strict liability, negligence, res ipsa loquitur, and breach of warranty. The principles set out in Koss are controlling; the damage to Jordan’s combine was a pure economic loss, and it cannot be recovered in tort.
Farm Bureau argues that the engine was not a component part of the combine and, for that reason, Koss does not apply. We disagree. We hold that as a matter of law, the Cummins engine was a component part of the combine. We also conclude that Farm Bureau seeks to recover damages for an injury which consisted only of damage to the combine itself. Under the rule in Koss, the buyer cannot sue in negligence or strict liability under these circumstances.
Farm Bureau also seeks to relieve itself from the burdens of Koss by arguing we should limit Koss to “commercial buyers of defective goods.” We do not agree. East River S.S. Corp. v. Transamerica Deleval, 476 U.S. 858, 871-73, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986), relied on by Koss, discusses several general policies in support of applying the economic loss doctrine: (a) It encourages the party best situated to assess the risk of economic loss to insure against it; (b) it maintains a distinction between tort and contract law; and (c) it protects a party’s freedom to allocate economic risks by contract. While we agree that the holdings of Koss and East River focus on “commercial buyers,” the general policies followed would equally apply in a consumer transaction.
In this case, the purchaser of the combine bargained for the combine at a certain price and with certain warranty provisions. After he acquired the combine, Jordan insured against its loss. The “devastating burdens ” and “public injury” suggested by the plaintiff are not found in this case.
We hold that the rule set forth by this court in Koss applies equally to a consumer of defective goods as well as to commercial buyers of defective goods.
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Knudson, J.;
Myra Lynn Gansert appeals the district court’s order of summary judgment entered in favor of Mark A. Corder. The issue on appeal is whether the district court erred in concluding that Myra and Donald Ganserts’ legal malpractice action was barred by the statute of limitations.
Gansert and her husband, Donald, retained Corder to be their attorney on claims arising out of a settlement agreement between themselves and the general contractor who built their home. Subsequently, an arbitration award in favor of the Ganserts was confirmed in the district court and then appealed to the Kansas Court of Appeals where the award, except for an allowance of attorney fees, was affirmed on March 17, 1995.
On April 20,1995, Gansert met with one of Corder’s former law partners, Eugene Hackler. In a memorandum of the meeting later sent to Corder, Hackler noted Gansert made several complaints about the quality of Corder’s representation. She also told Hackler that she had employed another attorney to represent her.
On April 24,1995, Gansert met with Corder and demanded that he waive all legal fees and expenses, threatened to file an ethical complaint with the Disciplinary Administrator, and fired him.
The next day, Corder recapped his conversation with Gansert in a letter to her stating that once he had received the check for judgment, disbursed the funds from his trust account, and completed a satisfaction of judgment, he would withdraw from the case. Corder’s letter concluded: “In any event, I will no longer have any responsibility for the handling of any matters beyond obtaining satisfaction of the judgment and withdrawing from the case.”
Gansert immediately responded by letter to Corder stating: “I told you Monday that you were no longer representing me on this case,” and “You are not to obtain a check from Ronald Reuter. It is to be paid to the Court. I am requesting a hearing from Judge McClain regarding your fees.” Gansert also wrote to Judge McClain explaining that she had fired Corder, the judgment would be paid into court, and she was requesting a hearing to dispute Corder’s lien for attorney fees.
On May 1, 1995, Corder filed a motion in the district court for payment of judgment, a motion for enforcement of his attorney’s lien, and a motion to withdraw as counsel for the Ganserts. At the hearing on May 16, 1995, Gansert indicated she was appearing to contest Corder’s attorney fees. Corder announced he was appearing on behalf of the Ganserts and stated,
“I filed a motion in this case to enforce my attorney’s lien and to realize upon the bond that was filed in this case. . . . And I don’t know if Miss [sic] Gansert has agreed to the dollar amount that I calculated as the correct amount or not. I think she may need to speak with her — for herself in that regard. But once that’s done, and either paid into Court or paid out, however the Court directs, I’ve requested that I be permitted to withdraw as counsel for the plaintiffs in this case and to realize upon my attorney’s hen for fees and expenses that have been paid in this case.”
At the conclusion of the May 16 hearing, the district court granted Corder s motion to formally withdraw as attorney of record.
Pursuant to a written tolling agreement signed by the Ganserts on May 15,1997, and by Corder and a representative of his former law firm on May 19 and 20, 1997, the parties agreed to extend the 2-year statute of limitations applicable to legal malpractice from May 15, 1997, to August 15, 1997, as to any claims in existence on May 15, 1997.
On August 12, 1997, the Ganserts filed this legal malpractice case against Corder, his present law firm, and his former law firm, alleging negligent conduct between June 1992 and May 1994. Eventually, all of the defendants filed a motion for summary judgment alleging that the Ganserts’ claims were barred by the statute of limitations because Corder had “performed no legal services on behalf of the Ganserts, never acted on the Ganserts’ behalf, nor advised the Ganserts after April 27, 1995.” The Ganserts responded that because Corder continued to represent them until May 16, 1995, the continuous representation rule applied; thus, their lawsuit was filed within the 2-year statute of limitations as extended by 90 days under the written tolling agreement. The district court concluded that under the uncontroverted facts the continuous representation rule did not toll the statute of limitations and granted summary judgment to the defendants. Myra Lynn Gansert appeals the grant of summary judgment in favor of Corder.
When a statute of limitations begins to run is a question of law over which this court has unlimited review. Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
In Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986), the Kansas Supreme Court set out the main theories used to determine when a cause of action accrues in an attorney malpractice case:
“Depending upon the facts and circumstances of each case, there are at least four theories which can apply to attorney malpractice in Kansas as to when the accrual of a cause of action occurs and the statute of limitations begins to run. These include:
(1) The occurrence rule — the statute begins to run at the occurrence of the lawyer’s negligent act or omission.
(2) The damage rule — the client does not accrue a cause of action for malpractice until he suffers appreciable harm or actual damage as a consequence of his lawyer’s conduct.
(3) The discovery rule — the statute does not begin to run until the client discovers, or reasonably should have discovered, the material facts essential to his cause of action against the attorney.
(4) The continuous representation rule — the client's cause of action does not accrue until the attorney-client relationship is terminated.”
Both parties seem to agree that the Ganserts’ cause of action accrued from the point at which the attorney-client relationship was terminated. However, resolution of this case turns upon when such termination actually occurred.
In Morrison v. Watkins, 20 Kan. App. 2d 411, 417, 889 P.2d 140, rev. denied 257 Kan. 1092 (1995), this court discussed at length the policy behind the continuous representation rule and its application:
“ ‘ “The premise of the continuous representation rule is to avoid unnecessarily disrupting the attorney-client relationship. Adoption of this rule was a direct reaction to the absurd requirement of the occurrence rule which requires the client to sue his attorney even though the relationship continues and there has not been and may never be any damage. The rule, limited to the context of continuous representation, is consistent with the purpose of the statute of limitations which is to prevent stale claims and enable the defendant to preserve evidence. Where the attorney continues to represent the client in the subject matter in which the error has occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.
“ ‘ ‘The rule of continuous representation is equally available and appropriate in those jurisdictions adopting the damage and discovery rules. The policy reasons are as compelling for permitting an attorney to continue his efforts to remedy a bad result, even if some damages have occurred and even if the client is fully aware of the attorney’s error. The doctrine is fair to all parties concerned. The attorney has the opportunity to remedy, avoid or establish that there was no error or attempt to mitigate the damages. The client is not forced to terminate this relationship, although the option exists. This result is consistent with any expressed policy basis for the statute of limitations.” ’ [Pittman v. McDowell, Rice & Smith, Chtd., 12 Kan. App. 2d 603, 608-09, 752 P.2d 711, rev denied 243 Kan. 780 (1988)].”
On appeal, Gansert argues that Corder continued to represent her until May 16, 1995, regardless of the fact that she no longer considered him to be her attorney after April 24,1995. Corder, on the other hand, argues that his representation ended on April 24, 1995, despite the fact that he continued to be the Ganserts’ attorney of record until the order approving his withdrawal as counsel.
In its order granting summary judgment, the district court noted that after April 24,1995, Corder’s actions were limited to the filing of the motion for payment of the judgment, enforcement of his attorney’s lien, and formal withdrawal as the Ganserts’ attorney. The court stated: “From a functional analysis, Corder did not continue in the case after April 24 to advance the interests of the plaintiffs.” The district court also found that the Ganserts “no longer looked to or considered Corder to be their attorney after April 24, 1995.” Based upon these two findings, the district court concluded the continuing representation doctrine did not apply after April 24, 1995. We agree. Gansert through her actions and statements made clear that she terminated Corder’s representation on April 24, 1995, and from that point forward their relationship was adversarial.
In Morrison, this court discussed the application of the continuous representation rule. In that case, the plaintiff s attorney was appointed trustee for plaintiff s revocable trust. Due to a series of questionable investments made by the attorney as her trustee, plaintiff eventually sued him. However, at one point, the plaintiff actually hired another attorney to review the defendant’s conduct regarding the trust but ultimately chose not to fire the defendant despite the fact that defendant’s wrongdoing had been revealed. This court held that because plaintiff never actually assumed an adversarial stance towards the defendant until she in fact revoked the trust and fired the defendant, the continuing representation rule tolled the statute of limitations. 20 Kan. App. 2d at 420.
The Morrison panel of this court cited Cantu v. St. Paul Cos., 401 Mass 53, 58, 514 N.E.2d 666 (1987), for the proposition that: ‘Where the client does hire another attorney, and assumes an adversarial stance to her first attorney, the continuous representation terminates, even if the client does not formally fire the first attorney.” 20 Kan. App. 2d at 420. In addition, this court cited Lazzaro v. Kelly, 87 App. Div. 2d 975, 976, 450 N.Y.S.2d 102 (1982), stating the Lazzaro court held that “the continuous representation rule did not apply because the trust and confidence on which the rule is based had come to an end, notwithstanding the fact that the first attorney continued to work for the plaintiff as an escrow agent.” (Emphasis added.) 20 Kan. App. 2d at 419. See also Clark v. Jacobson, 202 App. Div. 2d 466, 609 N.Y.S.2d 46 (1994); Santulli v. Englert, Reilly, 164 App. Div. 2d 149, 150-51, 563 N.Y.S.2d 548 (1990); Pittelli v. Schulman, 128 App. Div. 2d 600, 601, 512 N.Y.S.2d 860 (1987); Annot., 32 A.L.R.4th 260, 312.
On April 24, 1995, Gansert unequivocally told Corder he was no longer her attorney, that she intended to file a complaint with the Disciplinary Administrator, and that she would file suit against him, if necessary. We conclude application of the continuing representation rule ceased as of April 24, 1995, making that the date upon which the Ganserts’ cause of action against Corder began to accrue. As the court stated in Pancake House-. “The true test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted his action to a successful conclusion.” 239 Kan. at 87. In this case, although the shell of a relationship between the Ganserts and Corder continued until Corder was formally granted leave to withdraw by the district court on May 16, 1995, all of the evidence necessary for the Ganserts to prosecute a claim for attorney malpractice against Corder accrued when there was a de facto termination of the attorney-client relationship on April 24, 1995.
We conclude die district court did not err in granting summary judgment, because the statute of limitations bars recovery.
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Lewis, J.:
Plaintiff Terry Zeferjohn, while a prisoner in the custody of the Shawnee County Sheriffs Office, suffered personal injuries when the patrol car in which he was riding backed into another vehicle. He instituted this action against Shawnee County (County) to recover damages sustained in that accident. The trial court dismissed his petition on the grounds that he had faded to comply with K.S.A. 1998 Supp. 12-105b. Plaintiff appeals from the order of dismissal.
The sole question on this appeal is whether plaintiff complied with K.S.A. 1998 Supp. 12-105b(d), which states:
“Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the cleric or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant’s attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim.”
Plaintiff first argues that 12-105b is unconstitutional because it denies him his constitutional right to due process. He suggests that his right to seek redress for his injury is a fundamental right requiring this court to apply strict scrutiny.
We do not agree. The purpose of the statute is to afford a municipal corporation of this state an opportunity to ascertain the incidents attending the events at a time when the occurrence is fresh in the minds of those possessing the knowledge of the subject. Wiggins v. Housing Authority of Kansas City, 19 Kan. App. 2d 610, 614, 873 P.2d 1377, rev. denied 255 Kan. 1007 (1994). We also suggest that the statute provides some protection to the public against claims which have no merit and, for that reason, it should be liberally construed. We hold the statute serves a rational purpose and is not unconstitutional and that plaintiff was not denied his due process rights by the dismissal of this action.
The next issue is whether plaintiff s claim filed with the County substantially complied with K.S.A. 1998 Supp. 12-105b(d). The trial court held that it did not. The record shows that plaintiff attempted to comply with the statute by sending a written claim to the office of the Shawnee County Counselor, notifying the county counselor of his claim for damages. The following portion of the letter is relevant to this appeal:
“On the 2nd day of August, 1995, at 10:30 a.m. in Shawnee County Mr. Zefeijohn was sitting in a patrol car when he was injured. The Officer, George Salehar of the Shawnee County Sheriff s department was driving the patrol car that negligently backed into another vehicle. The Officer was negligently trained, supervised, and hired by Shawnee County.
“Shawnee County and the Officer negligently failed to protect a person entrusted in the Sheriff s care. There was a lack of due care on the part of the Officer. The County and the Officer failed to keep a look out, failed to warn, negligently failed to obey all traffic laws. The Officer failed to protect a person entrusted to his care and the County is held to the highest standard of care to people entrusted to their care.
“Further, the County breached a public contract in failing to provide protection to its citizens.
“Mr. Zefeijohn’s back and neck were injured and he has incurred medical expenses in the amount of $2,000.00. Mr. Zefeijohn complained of injury at the scene of the accident and has sought medical treatment.
“Mr. Zefeijohn[’s] monetary damages are $15,000.00 for pain and suffering, disability, present and future medical, disfigurement; as well as, wage loss. The police report is attached and incorporated by reference.”
Plaintiff was seeking to file a claim against Shawnee County. As a result, he had to comply with K.S.A. 1998 Supp. 12-105b(d), which says, among other things: “The notice shall be filed with the clerk or governing body of the municipality.” Under the statute, the notice in this case was required to be filed with the county clerk. Plaintiff filed his written notice with the county counselor. This does not comply with the statute, either literally or substantially.
The County does not suggest it was prejudiced by plaintiff s failure to file the notice with the county clerk as required. However, in Dechant v. City of Hays, 112 Kan. 729, 733, 212 Pac. 682 (1923), the Supreme Court held the requirements of the statute could not be waived by the mayor or any other city official. This remains the law in this state, and we hold that neither the County nor its county counselor can waive the requirement of proper notice under 12-105b(d). This statute is designed to protect taxpayers as well as officers of the municipality involved, and we can imagine serious consequences could occur if the attorney for municipalities were allowed to waive the provisions of the statute.
The filing of a proper notice under 12-105b(d) is a condition precedent to the filing of an action against a municipal corporation such as Shawnee County. See Dechant, 112 Kan. at 730-31; Campbell v. City of Wichita, 101 Kan. 817, 820, 168 Pac. 833 (1917); Holmes v. Kansas City, 101 Kan. 785, 786, 168 Pac. 1110 (1917); McHenry v. Kansas City, 101 Kan. 180, 182, 165 Pac. 664 (1917); Cook v. Topeka, 75 Kan. 534, 536, 90 Pac. 244 (1907).
The statute provides that a claimant must substantially comply with the notice requirements. “Substantial compliance” means compliance in respect to the essential matters necessary to insure every reasonable objective of the statute. City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983).
We must determine whether service on the county counselor under K.S.A. 1998 Supp. 12-105b(d) substantially complied with the requirements of that statute. Federal district courts have held that notice letters sent to a city attorney do not substantially comply with the statute. Huffman v. City of Prairie Village, KS, 980 F. Supp. 1192, 1206 (D. Kan. 1997). In Huffman, the court noted the clear language of the statute and Kansas case law indicating that notices filed with the city clerk were a condition precedent to filing suit. Accordingly, the court dismissed the plaintiff s action for failure to file notice with the city clerk. 980 F. Supp. at 1206.
In Mowery v. Kansas City, 115 Kan. 61, 62, 222 Pac. 126 (1924), the court said: “The statute requires a written statement to be filed with the city clerk. This is not a great burden to put upon a claimant and must be complied with.” In Cook v. Topeka, 75 Kan. at 536, the court said: “The statute requiring a statement to be filed with the clerk is mandatory; that is, no action can he maintained until such statement is filed.” (Emphasis added.) See Tucking v. Board of Jefferson County Comm’rs, 14 Kan. App. 2d 442, 445, 796 P.2d 1055, rev. denied 246 Kan. 770 (1990).
Although the authorities on the subject are not recent cases, they have not been reversed by the Supreme Court, and they remain the law of this state. Furthermore, we see no indication that the Supreme Court would reverse those opinions should it have the opportunity. As a result, we hold that the service by plaintiff upon the county counselor did not substantially comply with the service requirements of K.S.A. 1998 Supp. 12-105b(d). That statute specifically requires service on the county clerk. Plaintiff s failure to serve the county clerk is fatal to his cause of action and requires that we affirm its dismissal.
Plaintiff also argues the trial court erred in overlooking a police report which he attached to his claim and argues it furnished the necessary detail to support the claim. Unfortunately for plaintiff, that police report is not in the record on appeal. It was, however, attached to the brief of appellant as an appendix. Material included as an appendix to an appellate brief is not a substitute for the record on appeal. Cline v. Tittel, 20 Kan. App. 2d 695, 702-03, 891 P.2d 1137, rev. denied 257 Kan. 1091 (1995). The net result of all of this is that we have absolutely no idea what was in the police report. Plaintiff wants us to believe it contained great detail, which corrected some of the problems in his written claim. We are unable to say what it provided. An appellant has the burden to designate a record sufficient to establish any claimed error. The record in this case is not sufficient to establish any error regarding the trial court’s treatment of the police report.
Although we rest our decision on plaintiff s failure to serve the county clerk, there are other reasons that the claim did not comply with the statute. For one, it varied factually in its claim of damages. In the claim filed, plaintiff said that he was seeking damages of $15,000 for “pain and suffering, disability, present and future medical, disfigurement; as well as, wage loss.” The petition filed, on the other hand, sought damages in excess of $50,000.
The failure to specify the same amount of damages as filed in his claim and the failure to conform his petition to the matters set forth in the claim is an additional reason why the claim did not substantially comply with the statute. K.S.A. 1998 Supp. 12-105b(d)(5) requires “a statement of the amount of monetary damages that is being requested.” Plaintiff varied that statement from the claim to the petition and it renders his notice insufficient, and we hold it did not substantially comply with the provisions of the statute.
We affirm the trial court’s dismissal of plaintiff s action due to his failure to file the statement of notice with the county clerk. In addition, plaintiff failed to conform his petition to the statement in his letter of notice. He also failed to properly plead the occurrence of a condition of precedent and did not comply with the statute. The trial court properly dismissed the case. “[A] trial court’s reason for its decision is immaterial if the ruling is correct for any reason.” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997).
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Knudson, J.:
Donald D. Jayne appeals from the judgment of the district court concluding that Kennedy & Coe, L.L.C., did not breach its contractual obligation owed to Jayne.
Jayne is the successor in interest to an employment procurement contract entered into between Key Employment Services (Key) and Kennedy & Coe (employer). As a result of Key s efforts, Robert Keck was hired by the employer but never actually went to work for the firm. Jayne contends entitlement to a fee under the contract; the employer contends no fee is owed.
The underlying facts are not in dispute. After Key located and referred Keck to the employer, he was hired. However, within 30 days and before Keck actually started to work, the employer s needs were altered, with no alternative position acceptable to Keck. The employer and Keck mutually agreed to terminate the employment relationship, and Keck was provided with a $10,000 sever anee package. Thus, the question: Under these circumstances is Key entitled to its referral fee?
The schedule of charges in the referral contract state, in material part:
“1. The charge for our services is earned when an individual referred by us accepts an offer of employment by an employer . . . within one (1) year from date of last referral or discussion of the individual.
“4. Our service charge is due and payable when earned. . . .
“5. GUARANTEES: Placements are guaranteed under the following circumstances: 1) Termination is the fault of the employee, 2) The account is paid per the invoice terms, and 3) Strict adherence to this entire agreement.
A. Placements are guaranteed for a one hundred and eighty (180) calendar day period after employment commences. Under the conditions of the guarantee the service charge will be .56% of the original service charge for each calendar day of employment.
B. There is no charge when termination occurs within the first thirty (30) calendar days of employment.”
The issues were submitted by a stipulation of facts and documentary evidence. Jayne argued under the written terms of the referral agreement that a commission of $14,850 was earned when Keck accepted the employer s offer of employment. The district court found the mutual dissolution of the employment relationship to be a termination within the meaning of paragraph 5B of the referral agreement and, therefore, no charge was owed. In its order denying Jayne’s claim, the district court entered two findings crucial to the issue now on appeal:
“It matters not whether the dissolution of employment was the fault of the candidate or the defendant, it was mutual. Therefore, the candidate participated in the termination. Such is deemed ‘fault’ by this Court.
“The contract as drafted by the plaintiff specifies that if termination (no caveat is specified) occurs within thirty days then there is no fee to the plaintiff.”
On appeal, Jayne contends the above findings are inconsistent with the terms and provisions of the referral agreement and the district court’s judgment should be reversed.
Our review is unlimited. See Ekan Properties v. Wilhm, 262 Kan. 495, 503, 939 P.2d 918 (1997); TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, Syl. ¶ 1, 898 P.2d 1145 (1995).
We begin our analysis by stating general rules of construction applicable when interpreting written contracts. A contract that is plain and unambiguous on its face must be enforced according to its own terms. Wagnon v. Slawson Exploration Co., 255 Kan. 500, 511, 874 P.2d 659 (1994). An ambiguity does not appear until the application of rules of interpretation to the instrument leaves it genuinely uncertain which of two meanings is the proper meaning. City of Manhattan v. Galbraith, 24 Kan. App. 2d 327, 332, 945 P.2d 10 (1997). Where the contract is ambiguous or uncertain, intent of the parties is ascertained by considering all language employed, circumstances existing when the agreement was made, the object sought to be obtained, and other circumstances which tend to clarify the intention of the parties. Universal Motor Fuels, Inc. v. Johnston, 260 Kan. 58, 63, 917 P.2d 877 (1996). If an ambiguity exists, it is construed against the drafter. Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84 (1996).
We are unable to accept the district court’s interpretation and application of employee fault under paragraph 5 of the referral agreement to include acceptance of a severance package by an employee jilted before reaching the altar. Fault is the breach of a legal or contractual duty. We fail to discern any fault by Keck. The employer made the unilateral decision to terminate Keck. Understandably, the employer offered and Keck accepted a severance package to go quietly into the night. We agree that “fault of the employee” as provided in the referral agreement is unambiguous, but we conclude that the district court’s finding that the termination was the fault of Keck is not supported by the evidence.
We also do not agree with the district court’s finding that paragraph 5B of the referral agreement precludes recovery by Jayne. Paragraph 5B is structurally subordinate to the general conditions in paragraph 5 and should not be interpreted in isolation. See City of Manhattan v. Galbraith, 24 Kan. App. 2d at 332. We believe the district court erroneously interpreted paragraph 5B as a freestanding provision unrelated to the general conditions in paragraph 5. “Termination” can only be interpreted within the context of the entire paragraph requiring that termination must be the fault of the employee, a condition we have already noted was not met.
Jayne has requested an award of attorney fees and court costs. The referral contract states: “Delinquent accounts are subject to paying finance charges, and all collection charges including reasonable attorney fees and court costs.” We conclude Jayne should be granted an allowance of $3,150 for attorney fees incurred on appeal and $149.16 for court costs.
The judgment of the district court is reversed; a money judgment is to be granted to Jayne for $14,850 plus interest at the contract rate of 21% per annum from and after September 6,1994 until paid; judgment is granted to Jayne for attorney fees and costs incurred on appeal totaling $3,299.16; and this case is remanded to the district court for a determination of attorney fees and costs to be awarded Jayne for prosecution of this action before the district court. | [
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Hill, J.:
Defendant Rebecca Cardenas appeals her convictions for possession of marijuana and possession of drug paraphernalia, claiming the district court erred in refusing to suppress certain evidence seized under a search warrant. Defendant additionally claims the evidence was insufficient to support her convictions.
On May 26,1997, during a domestic disturbance, defendant and her husband were struggling in the kitchen of their home. Defendant was struck by her husband. During the altercation, defendant broke a plate over her husband’s head, escaped from her home, and ran to a neighbor’s house. The neighbor drove defendant to the sheriffs office.
In order to search for evidence of the domestic violence, the sheriffs department sought defendant’s consent to search her home. Defendant gave written permission to search only the bathroom, kitchen, and other areas where the domestic violence occurred. When executing the search warrant, the sheriffs officers arrested defendant’s husband. Sheriff Overbeck, while examining the kitchen, noticed a trail of blood leading from the kitchen to the bedroom, so he followed the blood trail into the bedroom. Upon the sheriff s entry into the bedroom, he noticed a 4-inch long smoking pipe on the headboard shelf. The sheriff picked up the pipe and examined it. The pipe smelled of burnt marijuana, so the sheriff photographed it.
On May 26,1997, the sheriff applied to the magistrate judge for a search warrant to search the defendant’s residence. In the application for a search warrant the sheriff listed “possession of drug paraphernalia” and “possession of a drug known as marijuana” as the crimes for which he was seeking evidence. The sheriff did not complete the section of the search warrant form specifying the contraband or evidence for which he wanted to search. The sheriff stated in his affidavit he simply noticed a small pipe in plain sight which contained a burnt residue which was believed to be marijuana. In the application for the search warrant, the sheriff did not mention he had previously detected an odor of burnt marijuana when he examined the pipe. The application for the search warrant contained no other information which would support a finding of probable cause.
The district magistrate issued a search warrant for defendant’s residence. The search warrant was a “form” that is attached as a carbon copy resting under the application and affidavit. The district magistrate signed the search warrant form but failed to fill in the space listing the items to be seized. Consequently, the search warrant listed no items which were to be seized. Such a warrant constitutes a general search warrant.
During the execution of the search warrant, the sheriff s officers found two “bong” pipes in a bedroom cabinet, three more pipes in an undisclosed location, and a planter containing small marijuana plants and seedlings on a bedroom floor. Later, testing indicated the “bong” pipes contained an unlawful residue.
Ultimately, this case was submitted to the district court upon stipulated facts. After the defense was unsuccessful in attempting to suppress the paraphernalia evidence, the court found defendant guilty.
Defendant raises three issues on appeal. We need only to consider the sufficiency of the search warrant issue.
The Fourth Amendment to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution provide that no warrant shall issue but on probable cause, and particularly describing the place to be searched and the things to be seized. The obvious purpose for this requirement is to prevent general searches and to prevent the seizure of an item at the discretion of a police officer. Stanford v. Texas, 379 U.S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506 (1965).
This case is analogous to Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 60 L. Ed. 2d 920, 99 S. Ct. 2319 (1979). There, the United States Supreme Court noted the magistrate issued a warrant that did not include a description of items to be seized other than two allegedly pornographic films presented to the magistrate by the officers applying for the search warrant. The Lo-Ji court concluded:
“This search warrant and what followed the entry on petitioner’s premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the Fourth Amendment was intended to protect. . . . Based on the conclusory statement of the police investigator that other similarly obscene materials would be found at the store, the warrant left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not permit such action.” (Emphasis added.) Lo-Ji, 442 U.S. at 325.
In Kansas, the test used to evaluate search warrant irregularities is one of practical accuracy rather than one of technical sufficiency and absolute precision. A search warrant must be practically accurate even though it may have some technical insufficiencies and imprecisions. State v. LeFort, 248 Kan. 332, 340, 806 P.2d 986 (1991).
Here, the search warrant issued completely failed to' specify any items to be seized. This is well beyond “technical insufficiency.” The district magistrate issued a general warrant delegating to the police officers unlimited discretion to determine which evidence within the house would qualify as fruits or instrumentalities of the crimes suspected. When a judge issues a search warrant that lists no items of evidence or contraband to be seized, the resulting search warrant is a general search warrant and is fatally defective. Any evidence seized under a general search warrant is unreasonably seized and inadmissible as evidence, as fruits of an illegal search, under the Fourth Amendment of the United States Constitution and § 15 of the State of Kansas Constitution Bill of Rights.
In LeFort, the officers used a carbon form to impress a copy of the address onto the search warrant. The description did not completely transfer, leaving the warrant with an incomplete location. There, our Supreme Court concluded such defect was a technical error and allowed the officers to relate back to the application itself for the remainder of the address. LeFort does not control here. The search warrant and the affidavit in LeFort refer to the same address. Furthermore, the same officer filled out the affidavit and executed the search warrant, which would minimize the chance the police would search the wrong location. Finally, the LeFort affidavit contained a clear and correct version of the address.
Here, the affidavit contains no list of items to be seized. Clearly, the police may not use their unfettered discretion to determine what may or may not be fruits or instrumentalities of crime. State v. Ames, 222 Kan. 88, 92, 563 P.2d 1034 (1977). Even though the same officer filled out the affidavit and executed this search warrant, the constitutional flaw is that the sheriff proceeded without any guidance of the issuing magistrate. Here, the officers had unlimited discretion to seize evidence.
Even the good faith exception created in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), does not save this search warrant. The Leon Court stated: “[Djependingon the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” (Emphasis added.) Leon, 468 U.S. at 923. No reasonable person could conclude this challenged search warrant was valid. There is no good faith exception when the search warrant fails to state the items to be seized.
The issuing district magistrate abandoned the judge’s neutral and detached role and delegated to the sheriff the power to determine generally what items would be subject to seizure. This defect is fundamentally unreasonable. Furthermore, we conclude that because the search warrant was invalid, the officers did not have permission for the second search, so the harmless error rule does not apply. An invalid general search warrant cannot bestow authority upon police officers to enter the dwelling of another. This search warrant was fatally defective, and the district court erred in failing to suppress the evidence seized. This cause is remanded with directions that all items seized under the challenged search warrant be suppressed and that a new trial be granted the defendant.
Reversed and remanded with directions. | [
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Brazil, C.J.:
Joseph and Shirley Noll and the Estate of Anthony Noll (Plaintiffs) brought a medical malpractice action against Deborah Bums, D.O., Cynthia Taylor, R.N., and Maiy McDaniel, R.N. (Defendants), alleging Defendants caused the death of their son Anthony Noll. Defendants appeal from the trial court’s pretrial mling that required them to pay Plaintiffs $22,277.05 in costs. Plaintiffs cross-appeal, claiming the trial court erred in failing to award them an amount of $87,865.41 as was requested in their motion for sanctions.
Finding no reversible error, we affirm.
Anthony Noll sought treatment from Dr. Weiner, an allergist practicing in Lawrence, Kansas, for his allergies and asthma. Dr. Weiner prescribed allergen injections that were to be administered to Anthony at certain intervals. While Anthony was attending Emporia State University, Dr. Weiner forwarded his medication to the university’s health clinic where Defendants administered the injections. In 1993, after receiving an injection at the health clinic, Anthony suffered an anaphylactic reaction and subsequently died.
In March 1995, Plaintiffs filed wrongful death and survival actions alleging defendants were negligent in treating Anthony’s asthma and in administering the allergin shots. The allegations implied the administration of the injections while Anthony showed apparent symptoms of asthma increased the risk of an anaphylactic reaction.
Plaintiffs alleged the following in their pretrial questionnaire: (1) Defendants failed to recognize and appreciate that Anthony’s asthma was unstable; (2) Defendants failed to treat the cause of Anthony’s unstable asthma; (3) Dr. Weiner’s instructions were not followed by Defendants since the allergin shots were administered while Anthony showed symptoms of asthma and the doses were excessive; (4) Defendants were negligent in treating Anthony after he experienced the anaphylactic reaction.
Defendants asserted the following defenses in their joint pretrial questionnaire: (1) Defendants followed Dr. Weiner’s instructions; (2) Defendants’ actions were within the standard of care for the treatment of asthma and the administration of allergen injections; (3) Anthony’s asthma was treated within the recognized standards of care for nurses and physicians; (4) Anthony’s treatment after the anaphylactic reaction was within the recognized standards of care. Defendants also asserted the following defense:
“Defendants submit that anaphylaxis is a known risk associated with allergen injections, yet extremely rare. The causes of anaphylaxis are not sufficiently known so as to predict its occurrence. If the allergist believe [sic] any additional steps or equipment should have been employed for administration of allergens, this information was not provided to the ESU clinic by Dr. Weiner, an expert in the area of allergens and their injection, and/or was not provided in a clear enough form as to be understood and followed by the lesser trained nurses and doctors at tire ESU Student Health Clinic.”
In July 1996, the parties filed a pretrial order incorporating the factual contentions and legal theories set forth in the pretrial questionnaires. Subsequently, Plaintiffs filed a motion in limine seeking to prevent Defendants from admitting evidence that Plaintiffs or any other person contributed to cause Anthony’s injuries since Defendants had not asserted the defense of comparative negligence. The trial court denied the motion, concluding it would handle any objections to the evidence at trial.
In the course of Defendants’ opening statement to the jury, Plaintiffs objected on grounds Defendants were implying Dr. Weiner was at fault and the statement was not relevant to the issues of the case. The trial court overruled the objection. Defense counsel subsequently stated the following:
“[Anthony] goes on what they call a maintenance stage. Now at the maintenance stage, the allergist mixes the vials one vial at a time. They pull sixteen bottles out of the fridge, they fill up the vial and that’s what they sent to the clinic. [Dr. Weiner] sent it to the clinic when [Anthony] has not even come back in for his appointment at the end of one year ....
“Now [Plaintiffs’ counsel] is going to have more to say about parts of this order. Particularly Mr. Logback’s going to discuss the dose that is shown on this to be administered. What I would just like to point out it says no more mix can be sent until he has an appointment. Because he had been past a year before Dr. Weiner had ever seen him. What happened? ....
“And what’s amazing, Dr. Weiner gave [Anthony] some instructions back when he first started on the allergin. He gave him an instruction sheet. Dr. Weiner, and this isn’t a violation of the standard of care, folks, this is the way it’s done. The instruction sheet that he •— was sent to [Anthony] was never sent to Dr. Bums or to ESU clinic, his medical records were never sent, there was no plan of asthma sent to the clinic. All that was sent to the clinic was a vial of allergins to be administered.”
Plaintiffs’ counsel again objected and the trial court sustained the objection. Defense counsel subsequently stated:
“The Nolls then went to see Dr. Weiner [after Anthony’s death]. And the evidence will be that Dr. Weiner when he saw them didn’t say, hey, my instructions said that, that anaphylaxis is a risk of taking these shots that it can occur, didn’t say diat, didn’t say, well, you know, under our policy we never saw him back for a ye. r and he was overdue for an appointment and, you know.”
Plaintiffs’ counsel again objected and the trial court ruled defense counsel was prohibited from pointing to actions of Dr. Weiner which a person of ordinary intelligence might consider to be below a reasonable standard of care.
Following opening statements, Plaintiffs renewed their motion in limine. Defendants argued the following in response: (1) They had no reason to allege or evidence to support an allegation that either Dr. Weiner or Anthony owed a duty of care or were at fault; (2) causation and fault were separate issues in the case; and (3) they should be able to argue other events possibly caused the anaphylactic reaction.
Ultimately, the trial court summarized the situation as follows:
“What we have here is a situation of where the plaintiffs suggest the total fault lies with tire three defendants. The defendants in response deny not only their liability but have suggested that there are other causes for the anaphylactic reaction suffered by the decedent that everybody agrees ultimately lead to his death. The defendants have in their pleadings and in the pretrial order . . . have steadfastly maintained that they did not believe that diere was any deviation from a standard of care by other persons who dealt with die deceased. But at the same time they believe diat there are other explanations or causes for the death which should — they should — are entitled to present to die jury. They do not believe that diey have to prove diat there was a deviation from the standard of care on die part of these phantom parties in order to be able to present evidence of the possibility diat other acts caused the death of Anthony Noll.”
The trial court then gave Defendants two options on how to proceed. It stated Defendants could either (1) proceed to trial without presenting evidence of causation, or (2) amend their pleadings, pay the costs incurred by Plaintiffs in preparing for trial, and schedule a new trial. Defendants chose to amend their pleadings, pay the costs, and schedule a new trial. Defendants and Plaintiffs objected to the trial court’s ruling.
Plaintiffs subsequently filed a motion for sanctions and submitted an itemized claim for attorney fees and expenses in the amount of $87,865.41. Based on its prior ruling, the trial court issued an order awarding Plaintiffs $22,277.05 for attorney fees and expenses incurred in preparing for trial. In its order, the trial court provided a breakdown of the calculations it used to arrive at the sum. Following a hearing, the trial court denied the motion for sanctions and indicated in its journal entry that Defendants had not proceeded improperly or done anything wrong to warrant sanctions.
However, in the final pretrial order of the second trial, Defendants indicated they were not asserting negligence of any other person. The juiy found Dr. Burns 50% at fault, Taylor 30% at fault, and McDaniel 20% at fault, and awarded Plaintiffs $129,500 in damages.
The Appeal
Defendants argue the trial court did not have the statutory authority to award costs in the amount of $22,277.05. They argue K.S.A. 60-2007 is the only statute which allowed an award of those “costs” imposed by the trial court. Defendants do not argue the trial court was specifically without authority to award attorney fees. Rather, their argument is that the trial court was without authority to award any of the costs and fees assessed against them.
The trial court indicated in its ruling that over half of the award was for attorney fees. However, it never indicated what statute it was relying on as authority for its action. At trial, the court initially stated it would not require Defendants to pay attorney fees. Following objections and arguments of trial counsel, the trial court asked Plaintiffs to prepare an itemized claim for costs, expenses, and attorney fees, and stated it would hold a hearing on the claim.
At the hearing, the trial court made clear it did not intend to impose sanctions for any wrongdoing by Defendants. However, it concluded Defendants’ attempt to assert a comparative negligence defense did not comply with the pretrial order and stated it would award an amount for expenses and for time incurred by Plaintiffs counsel in preparing for trial.
K.S.A. 60-216(b), the statute in effect at the time of trial, provided:
“If a party or party’s attorney fails to obey a pretrial order . . . the judge, upon motion or the judge’s own initiative and after opportunity to be heard, may make such orders with regard thereto as are just .... In lieu of or in addition to any other sanction, the judge shall require the party or the party’s attorney, or both, to pay the reasonable expenses incurred because of any noncompliance with this section, including attorney fees, unless tire judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.”
Defendants’ attempt to assert a comparative negligence defense at trial was in violation of the pretrial order and K.S.A. 60-216. The trial court specifically found Defendants attempted to proceed in a manner contrary to the pretrial order. This ruling was memorialized in the trial court’s journal entry denying sanctions in which the trial court reviewed its prior ruling, stating: “The Court determined that the Defendants could not present evidence of, or refer to, other possible causes without alleging fault based upon Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, [681 P.2d 1038] (1984).”
In their response to Plaintiffs’ cross-appeal, Defendants argue K.S.A. 60-216 is not applicable since Plaintiffs did not contend the statute controlled when seeking attorney fees. They also argue sanctions were not proper because the trial court stated in its ruling denying sanctions that the parties had done nothing wrong and had not proceeded improperly.
As indicated, the trial court concluded Defendants had attempted to assert a defense not raised in their pretrial order. The trial court’s statements that Defendants had not proceeded improperly nor done anything wrong refer to its finding Defendants had not acted in bad faith. Under K.S.A. 60-216(b), the trial court was permitted to enter any order it deemed to be just upon finding a party was in violation of the pretrial order. It was not required to make a finding of bad faith before assessing reasonable expenses and attorney fees against Defendants. The award of costs and attorney fees was authorized by the statute, and it was within the trial court’s discretion to determine the value awarded. See City of Wichita v. B G Products, Inc., 252 Kan. 367, Syl. ¶ 3, 845 P.2d 649 (1993).
The Cross Appeal
In their cross-appeal, Plaintiffs maintain that Defendants acted in bad faith in an attempt to mislead the jury and that they incurred significant expenses as a result of the improper conduct. Plaintiffs allege that because Defendants violated the pretrial order and acted in bad faith, they are entitled to full compensation under K.S.A. 60-216 and K.S.A. 60-2007. They ask this court to find the trial court abused its discretion in failing to award them $87,865.41 as requested in their motion for sanctions.
As previously stated, K.S.A. 60-216(b) was the statute in effect at the time of trial. The language contained in K.S.A. 1998 Supp. 60-216(f) is identical to that of K.S.A. 60-216(b), stating that the trial court has the discretion to “make such orders ... as are just,” upon a party’s failure to obey a pretrial order. Under K.S.A. 60-2007(b), in effect at the time that costs were assessed, attorney fees and expenses may be assessed if (1) a claim asserted by a party is without a reasonable basis in fact, and (2) the claim was not asserted in good faith. Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 443, 970 P.2d 526 (1998).
At the hearing on Plaintiffs’ motion in limine, Defendants thoroughly explained their position and their intent to present evidence relating to causation. The trial court stated it was not clear whether Defendants should be precluded from raising the possibility of other causes of death and concluded it would address Plaintiffs’ concerns as needed at trial. Based on the trial court’s ruling, it was reasonable for Defendants to believe they could properly pursue their intended line of defense at trial.
Nothing in the record supports Plaintiffs’ contention that Defendants asserted their theory of defense in bad faith. The trial court thoroughly explained the method used for assessing costs, and its calculations are supported by the record. The trial court did not abuse its discretion in denying Plaintiffs’ motion for sanctions or in assessing costs.
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Pierron, J.:
The plaintiff, Calvin Kennedy, sued the defendants, Kansas Department of Social and Rehabilitation Services (SRS) and Cheryl Seward, an SRS employee, for damages arising from an SRS investigation and subsequent criminal prosecution alleging that the plaintiff had sexually abused a resident of the facility. The trial court granted summary judgment for both defendants. We affirm.
The plaintiff was employed at the Residential Center for Youth in Pittsburg. Beginning in November or December 1992, SRS and the Crawford County Sheriff s Department jointly investigated allegations by a resident that the plaintiff had sexually abused her. Initially, SRS social worker Deanna Wiley investigated. Seward took over Wileys position during the investigation in February 1993. SRS confirmed abuse and on March 1, 1993, recommended to the county attorney that charges be filed. The plaintiff was charged on March 3, 1993, arrested, and arraigned, but the criminal complaint was dismissed on October 1, 1993.
On October 3, 1994, the plaintiff filed suit against defendants alleging negligence in the investigation, false arrest and malicious prosecution, defamation, intentional infliction of emotional distress, and interference with his employment. The trial court issued summary judgment for defendants, finding that Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 938 P.2d 1293 (1997), and Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 931 P.2d 26 (1997), controlled. The court ruled that while SRS did not thoroughly investigate and did not convey all agency records to the sheriffs department, the defendants did not owe a duty to the plaintiff and were immune from liability under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. Additionally, the court found that the claims for false arrest and defamation were barred by the statute of limitations, and the plaintiff failed to state claims for defamation and intentional infliction of emotional distress. The plaintiff appeals the trial court’s rulings regarding duty and immunity.
Summary judgment is appropriate when the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 829, 877 P.2d 430 (1994). Courts may treat a fact as uncontroverted if the party disputing it fails to cite factual authority for support. 255 Kan. at 830. In order to preclude summary judgment, the facts in dispute must be material to conclusive issues in the case. On appeal, we apply the same rules. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998).
An analysis of the defendants’ potential liability for negligence under the KTCA begins and ends with duty. A tort is a breach of a duty imposed by law. Mills v. City of Overland Park, 251 Kan. 434, 445, 837 P.2d 370 (1992). In order to be liable for negligence, a defendant must owe a duty of care to the injured plaintiff. The existence of a duty is a question of law, and we have unlimited review of questions of law. Burney, 23 Kan. App. 2d at 397.
Generally, law enforcement and social services officials owe a legal duty only to the public at large. DeShaney v. Winnebago Cty. Soc. Servs. Dept. 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989); Mills, 251 Kan. 434, Syl. ¶ 5. Under the public duty doctrine, officials have no duty to any individual except where circumstances create a special relationship or specific duty. 251 Kan. at 446 (distinguishing Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 [1986]). Where there is no duty, there can be no breach.
The KTCA immunizes the State and its agents from liability for discretionary functions unless an independent duty of care is owed to the injured party. K.S.A. 1998 Supp. 75-6104(d) and (e). The plaintiff relies on Fudge v. City of Kansas City, 239 Kan. 369, in his claim that procedures outlined in the Kansas Manual of Youth Services (KMYS) imposed a mandatory duty on SRS investigators to review all SRS files in the course of their investigation of allegations of child abuse, thus creating a special duty to him. In Fudge, the Supreme Court held that while a law enforcement officer generally owes a duty only to the public at large, internal policies impose a mandatory duty on the officer, which creates a special duty to an individual injured by the officer’s failure to adhere to the policies. 239 Kan. at 372. At that time, K.S.A. 75-6104 (Ensley 1984) read as follows:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused.”
The Fudge court reasoned that where police department guidelines dictated that an arrest should be made, the officer had a mandatory duty to make the arrest, and the discretionary function exception did not apply.
In 1987, the Kansas Legislature responded with clarifying amendments to K.S.A. 75-6104. The following was added as new subsection (d):
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons’ health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence.”
The former subsection (d) became subsection (e) and was amended (as shown by italics) to read: “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” (Emphasis added.) K.S.A. 1998 Supp. 75-6104(e) (subsection [e] not changed since amended in 1987). Jarboe recognizes that the 1987 amendment was intended to clarify the discretionary function exception after Fudge, if not legislatively overrule Fudge. In light of the amendment, a written policy does not impose on a public servant a special duty to an individual. Thus, the procedures outlined in KMYS do not impose a mandatory duty on SRS investigators. The mandatory terms of KMYS are pursuant to a public duty. Burney, 23 Kan. App. 2d at 401.
The plaintiff attempts to distinguish the controlling cases of Burney and P.W. by suggesting that Seward’s “affirmative act” of recommending to the county attorney that he file charges created a special duty. He overlooks the Restatement’s requirement that the defendant undertake to render service to the plaintiff. See P.W., 255 Kan. at 833-34 (discussing application of Restatement [Second] of Torts § 324A [1964]); Burney, 23 Kan. App. 2d at 399. If Seward’s recommendation created a special duty on this theory, the duty was to the alleged victim, not to the plaintiff.
“Since the law is clear that SRS owes no duty to abused children, it surely owes no duty to an alleged abuser.” 23 Kan. App. 2d at 398. Therefore, the defendants cannot be held hable to the plaintiff for negligence.
The manner of investigating a charge of child abuse is a discretionary function. Burney, 23 Kan. App. 2d at 402-03. If there was fault in conducting the investigation, no liability may be predicated on that fault; SRS is immune from liability for damages resulting from negligence or malicious prosecution. 23 Kan. App. 2d at 403.
The plaintiff attempts to distinguish Burney by suggesting SRS did not recommend charges be filed in Burney. The trial court rejected this argument as “a distinction that doesn’t make a difference” because the county attorney is not compelled to file charges on the recommendation of SRS. The trial court’s reasoning is sound.
The plaintiff also attempts to distinguish his case by arguing the purpose of the KMYS procedures is to promote an open, fair, and objective investigation and not to protect anyone’s health and safety. We disagree. The clear purpose of the investigation, and thus procedures for investigation, is to protect the health and safety of the alleged child victim.
Finally, the plaintiff argues the trial court erred in finding defendants acted without malice. Even if individual defendants are not immune from liability under the KTCA, they have immunity under the Kansas Code for Care of Children in the making of a report of abuse or participation in any follow-up or investigation if they act without malice. K.S.A. 38-1526. The public policy of this state is to encourage reporting of possible child abuse. It is vital that the courts not chill die prompt reporting of incidents of abuse. Clevenger v. Catholic Social Services of the Archdiocese of Kansas City, 21 Kan. App. 2d 521, 529, 901 P.2d 529 (1995). It is also the public policy not to encourage false and malicious reports, so immunity extends only to defendants who act without malice. 21 Kan. App. 2d at 529-30. In the absence of direct evidence of malice or evidence from which to infer that the defendant had reason to act maliciously toward the plaintiff, summary judgment will be upheld. 21 Kan. App. 2d at 531.
In Burney, this court followed Clevenger and held that (1) malice may not be shown by the mere fact that SRS investigated a report of abuse or that some individuals were negligent in their investigation and (2) in an action for malicious prosecution, the plaintiff must produce direct evidence of malice or prove facts which show a defendant had a motive or reason for acting maliciously in reporting the alleged abuse. 23 Kan. App. 2d at 405. The plaintiff here has offered no evidence of malice beyond the fact that SRS investigated, confirmed abuse, and recommended criminal charges.
Affirmed. | [
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Elliott, J.:
Water District No. 1 of Johnson County (Taxpayer) appeals the ruling of the Board of Tax Appeals (BOTA) affirming the finding that Taxpayer is not entitled to a tax exemption under K.S.A. 79-3606(n).
We affirm in part, reverse in part, and remand.
Taxpayer is a quasi-municipal corporation which sells water to commercial, residential, and municipal customers in Johnson County, obtaining most of its water from the Kansas and Missouri rivers. The water is then treated at the Hansen Treatment plant in Wyandotte County. From the treatment plant, the water is pumped through pipes to various pumping stations and then on to the customers. Taxpayer purchases electricity to power the pumping stations which pressurize the water. Taxpayer then sells the pressurized water.
The Kansas Department of Revenue (KDOR) issued an assessment of additional retailer’s sales tax against Taxpayer for its purchases of electricity and also levied a penalty against Taxpayer.
Taxpayer paid the tax and penalty under protest and appealed the assessment to the Director of Taxation. The Director denied the appeal, finding Taxpayer was not entitled to an exemption because the electricity was used in the “distribution” rather than the “production” of Taxpayer’s water. Taxpayer appealed to BOTA, seeking an exemption and a refund of taxes. BOTA denied both requests.
BOTA’s orders are subject to review pursuant to K.S.A. 77-601 et seq. and Taxpayer has the burden to show that the action taken by BOTA was erroneous. K.S.A. 77-621(a). Tax statutes are not to be extended by implication beyond the clear meaning of statutory language. In re Tax Exemption Application of Kaul, 261 Kan. 755, Syl. ¶ 3, 933 P.2d 717 (1997).
Further, tax exemption statutes, such as K.S.A. 79-3606, are to be construed in favor of imposing the tax and against allowing an exemption. In re Tax Appeal of Harbour Bros. Constr. Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994). On the other hand, tax statutes will be construed favorably to the taxpayer where there is a reasonable doubt as to its meaning. In re Appeal of Topeka SMSA Ltd. Partnership, 260 Kan. 154, 164, 917 P.2d 827 (1996).
BOTA, in agreeing with the administrative law judge and the KDOR that the pressurization of Taxpayer’s water was part of the distribution (rather than the manufacturing) process, relied on a 50-year-old Iowa case: Peoples Gas & Elec. Co. v. State Tax Comm, 238 Iowa 1369, 28 N.W.2d 799 (1947). BOTA also ruled inapplicable our Supreme Court case of In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 891 P.2d 422 (1995). As we read Collingwood Grain, our Supreme Court has rejected the reasoning of Peoples Gas. In any event, BOTA reasoned the pressurization of Taxpayer’s water did not enhance its “intrinsic value,” rendering Collingwood Grain unpersuasive and inapplicable.
BOTA also relied on K.A.R. 92-19-53 for the proposition that distribution does not qualify for an exemption from sales and use tax because once “the water is processed at the treatment facility, it is fit for human consumption and in its final form.” We conclude this ruling is contrary to the language and policy of Collingwood Grain and the language of K.A.R. 28-15-18.
Sales and compensating use taxes are consumption taxes representing the largest single source of tax revenue for state governments. Hager, Kansas’ Sales and Use Tax Law: Exemptions for Manufacturing Machinery and Equipment and the Integrated Plant Theory, 37 Washburn L.J. 543, 546 (1998). In Kansas, sales and use tax revenues account for 39.8% of the total general fund receipts. 37 Washburn L.J. at 546. The legislative amendments to K.S.A. 79-3602(m) require exemption from sales and use tax to be decided on a case-by-case basis as to items not specifically listed as exempt. In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d 377, Syl. ¶ 5, 838 P.2d 354 (1992).
Obviously, the central question we must decide is whether Taxpayer’s purchase of electricity is exempt from the compensating use tax. Electricity, of course, is tangible personal property. K.S.A. 79-3602(m). The question is whether the electricity is “consumed in the production, manufacture, ... of tangible personal property, ... for ultimate sale at retail within or without the state of Kansas.” K.S.A. 79-3606(n). There is a split of authority as to how the question is to be answered.
The more restrictive way to answer the question is referred to as the Ohio-Georgia or physical change rule. Under this rule, exemption is limited to items which physically change or transform the object of the manufacturing process. 37 Washburn L.J. at 561-62. We read Collingwood Grain as rejecting this restrictive rule and instead, as adopting impliedly if not expressly, the integrated plant theory.
The integrated plant theory allows exemption from sales and use taxes where equipment and machinery perform an essential or indispensable function in the manufacturing process regardless of whether a physical change is actually caused in raw materials. 37 Washburn L.J. at 563-65. In other words, the integrated plant theory asserts that the legislative purpose of manufacturing exemptions is inconsistent with an impractical or restrictive construction of those exemptions.
The current version of K.S.A. 79-3606(n) was enacted in 1988, L. 1988, ch. 386, § 3. Legislative history leaves little doubt that the legislature intended to promote economic development; to avoid pyramiding taxation on successive buyers and sellers; and to strike a balance between the longstanding policy of avoiding multiple taxation; and the need to raise revenue for the state’s coffers. Then Governor Hayden placed a high priority on an extension of the manufacturing tax exemption in order to promote increased manufacturing activity and to make Kansas more competitive with other states. In an effort to achieve this goal, the legislature left the language of K.S.A. 79-3606(n) broad, omitting the restrictive “transformation” language existing in other states’ statutes. See generally,. 37 Washburn L.J. at 571-78.
The legislative desire to promote capital investment, to be more competitive with other states, and to make Kansas a more attractive choice for business expansion and location is patently inconsistent with a restrictive, impractical interpretation of this exemption.
An analysis of Collingwood Grain
We are convinced our Supreme Court adopted the integrated plant theory in Collingwood Grain. That case involved an appeal by KDOR from a BOTA ruling, holding the sale of electricity consumed in grain elevator operations was exempt under K.S.A. 79-3606(n). After ruling electricity is tangible personal property subject to exemption, the court detailed the process by which the grain was blended, turned, fumigated, and aerated. 257 Kan. at 238-40.
The Collingwood Grain court then discussed the history of K.S.A. 79-3606(n), and how best to define “property used in processing” as applied to the statute. 257 Kan. at 245-46. In doing so, the court rejected KDOR’s argument that the blending and cleaning of the grain did not transform or physically change the grain into a different product, thus making it ineligible for exemption. The court stated KDOR placed too much reliance on its assertion that the blending and cleaning of the grain simply produced an unchanged product. 257 Kan. at 250-51.
While the Collingwood Grain court acknowledged the grain would not be “transformed” or “physically changed” (thus, failing an application of the Ohio-Georgia physical change rule), it held that the grain was of a different quality than before the processes were performed. 257 Kan. at 251. Broadly stated, the court ruled that KDOR’s construction of the term “production, manufacture [and] processing” was too narrow. Further, the court seemed to emphasize the processes produced a grain of better quality because if the processes were not performed, the grain would rapidly deteriorate. 257 Kan. at 251.
From this, the Collingwood Grain court determined that the electricity used to blend and clean the grain was exempt under K.S.A. 79-3606(n) as property consumed in the process of production, manufacturing, and processing. 257 Kan. at 252.
Collingwood Grain applied to present case
Both KDOR and BOTA have attempted to distinguish the present case from Collingwood Grain by stating that the electricity used in pressurizing Taxpayer’s water does not produce a different product, that the water, is in its final form following treatment at the Hansen Treatment Plant, and that the pressurization is merely a part of the distribution process.
KDOR and BOTA fail, however, to discuss K.A.R. 28-15-18 and fail to address the fact that Taxpayer presented uncontroverted evidence that the electricity used in pressurization changes the water’s physical characteristics and is an integral part of the manufacturing process.
K.A.R. 28-15-18(g) states that all community water systems “shall be operated and maintained to provide a positive pressure of 20 psi . . . throughout the distribution system except under extraordinary conditions such as unusual peak fire flow demand or major distribution breaks.” (Emphasis added.) Clearly, this requirement means that all water quality standards are not met when Taxpayer’s water remains at the Hansen Treatment Plant.
Amicus brief of the City of Wichita has provided us with testimony utilized in a pending case from an official at the Kansas Department of Health and Environment concerning pressurization of water and health and safety requirements and testimony regarding an integrated system. Because KDOR and BOTA did not have the benefit of that testimony in the present case, we will not rely on it.
In the present case, Taxpayer presented evidence (essentially uncontroverted) that pressurization is a necessary and integral part of producing a final product: pressurized water. The pressurization of water is an integral part of the manufacturing process and changes its fundamental physical characteristics.
Given these facts, we are simply unable to distinguish the present case from Collingwood Grain. Here, as there, the electricity used by the Taxpayer is necessary to prepare its product for the marketplace. And, while the water is still water following its pressurization, the quality of the water has changed. Further, if the water were not pressurized, it — like the grain in Collingwood Grain — would rapidly deteriorate as it would be nothing more than water subject to all of the health risks inherent to such water.
In short, Collingwood Grain, K.A.R. 28-15-18(g), and the legislative history of K.S.A. 79-3606(n) clearly require the conclusion that the electricity used in pressurizing Taxpayer’s water to the pumping stations is tax exempt.
Finally, we must address KDOR’s claim that the electricity used to pressurize Taxpayer’s water does not fall within the definition of “consumed in production” found in K.A.R. 92-19-53(c). That regulation states consumed in production means used in the actual production processes which shall, inter alia, occur at the location where the production or processing activity is carried on.
Given our determination that the pressurization of Taxpayer’s water is an integral part of the production process, we are left only with the requirement that it must occur at the location where the production activity is carried on. KDOR argues that because Taxpayer’s pumping stations are located 10-15 miles from the Hansen Treatment Plant, the use of the electricity does not occur “at the location where the process is carried on.” As stated in Collingwood Grain, KDOR reads the regulation too narrowly.
Since the pressurization of Taxpayer’s water is an integral part of the manufacturing process, it follows that “production” occurs both at the Hansen Treatment Plant and at the pumping stations. The pumping stations constitute the final stop in the production process and are, therefore, a part of the “location where the production ... is carried on.” K.A.R. 92-19-53.
Taxpayer also argues it is entitled to an abatement of the penalty pursuant to K.S.A. 79-3615(f). Unfortunately, this issue is not properly before us. The administrative law judge found that Taxpayer had failed to brief the issue and had, therefore, waived the argument. BOTA did not address the issue at all. Issues not raised before a hearing officer cannot be raised for the first time on appeal. Furthmeyer v. Kansas Dept. of Rev., 256 Kan. 825, 827-28, 888 P.2d 832 (1995). We recognize it may seem illogical that a penalty must be affirmed when the taxpayer is exempt from the tax itself, but that is what we must hold.
In summary, undisputed testimony established that the initial pressurization of Taxpayer’s water to its pumping stations is an integral part of the manufacturing process; that the water is not realistically usable until after it is pressurized; that the pressurization of the water changes its character and quality; and that the pressurization is required by state regulation to meet the health needs of Kansas citizens. We leave for a future case the question of whether the exemption for pressurization can extend beyond the pumping stations.
Accordingly, we affirm in part, reverse in part, and remand for a refund of the contested taxes paid under protest by Taxpayer. | [
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PlERRON, J.:
Quality Painting, Inc., (Quality) and Houston General Insurance Company (Houston) (collectively appellants) appeal the district court’s granting of summary judgment in favor of Truck Insurance Exchange (Truck) and Farmers Insurance Group of Companies. Appellants seek reimbursement from Truck for a share of the costs of defending a sexual harassment suit against Quality based upon Truck’s legal obligation to defend under its insurance policy.
The facts in this case are for the most part undisputed. The conflict involves the interpretation of an insurance contract.
In September 1995, Ruby Pfeiffer, a former employee of Quality, filed a four-count petition against Quality and its owner, Robert Holloway. The petition alleged sexual harassment and discrimination; negligence in failing to provide a workplace free of such misconduct; and the tort of outrage against Quality and Holloway. The petition also alleged, against Holloway only, malicious communi cation to third persons of false information regarding Pfeiffer s private sex life.
The conduct underlying Pfeiffer’s claims was alleged to have occurred between November 1990 and March 8, 1994. Truck insured Quality under a commercial garage liability policy from March 22, 1990, through April 11, 1993. Houston insured Quality under a general liability policy for the remainder of the relevant time period.
Quality made a demand on both Truck and Houston to provide a defense against Pfeiffer’s lawsuit. Houston agreed to provide a defense. Truck conducted an investigation, during which Holloway advised Truck that he was the owner and sole proprietor of Quality. Truck did not provide a defense. In a letter detailing its reasons, Truck said the injuries claimed by Pfeiffer did not meet the definition of bodily injury in the insurance contract. Truck also stated:
“Additionally, the plaintiff [Pfeiffer] has cited allegations of her damages resulting from activities of sexual harassment that constitute intentional acts which as such, would not qualify as a matter of liability as caused by negligence. The allegations do not meet the definition of occurrence as stated above because the definition excludes events or series of events which were ’expected’ or ’intended’ from the standpoint of die insured.”
Quality and Houston expended $33,082.38 in defending the Pfeiffer iawsuit, and they argue Truck should reimburse Quality $23,819.31 (72% of $33,082.38), representing the proportionate time that Truck insured Quality. Quality and Houston also claim to have paid $12,000 to settle Pfeiffer’s lawsuit, $7,000 by Houston and $5,000 by Quality.
The district court granted summary judgment in Truck’s favor. The court found that all of Pfeiffer’s claims were based upon intentional acts committed by Holloway which were imputed to Quality. Quality and Houston appeal.
Appellants contend that Truck was obligated to provide Quality a defense since Pfeiffer’s petition for damages asserted claims of negligence. Appellants argue that an insurance company’s duty to defend its insured is not measured by either the proof which may be adduced at trial or the outcome of the litigation. Appellants also argue that Quality is not subject to Truck’s policy exclusions.
On the other hand, Truck argues that it was under no duty to defend because the policy it issued to Quality afforded no possibility of coverage for Pfeiffers claim. Truck contends that all of Pfeiffer s claims were based upon intentional acts committed by Holloway, and those actions were imputed to Quality. Truck also states that the resulting injuries did not fall within the coverage of the insurance policy because they were not caused by an accident and did not fall within the policy exclusions because they were expected or intended.
The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. On appeal we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998). The case at bar involves the interpretation of a contract, which allows this court an unlimited standard of review. In re Estate of Van Der Veen, 262 Kan. 211, 212, 935 P.2d 1042 (1997).
The “Liability Coverage” section of the policy issued by Truck to Quality provides as follows:
“We will pay all sums an ’insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies caused by an ‘accident’ and resulting from ‘garage operations’ other than the ownership, maintenance or use of covered ‘autos.’
“We have the right and duty to defend any ‘suit’ asking for these damages. However, we have no duty to defend ‘suits’ for ‘bodily injury’ or ‘property damage’ not covered by this Coverage Form.”
The “Exclusions” section of Truck’s policy covering Quality provided that the insurance did not apply to: “ "Bodily injury’ or ‘property damage’ expected or intended from the standpoint of the "insured.’ ”
The court in Spivey v. Safeco Ins. Co., 254 Kan. 237, 246, 865 P.2d 182 (1993), set forth the general principles regarding an insurance company’s duty to defend:
“The duty to defend and whether the policy provides coverage are not necessarily coextensive. The duty to defend arises whenever there is a “potential of liability” under the policy. The insurer determines if there is a potential of liability under the policy by examining the allegations in the complaint or petition and considering any facts brought to its attention or which it could reasonably discover. Where a petition alleges an act that is clearly not covered, for example, that the defendant acted willfully and intentionally, there would be no potential of liability under the policy for intentional acts. Where the complaint alleges both a negligent and intentional act, these alleged facts give rise to the potential for liability, and the duty to defend arises. [Citation omitted]”
Spivey is applicable, but not dispositive, to the present case, since all the claims in Spivey involved intentional conduct. In Spivey, the appellant-insured filed his action against Safeco Insurance Company (Safeco) and American Manufacturers Mutual Insurance Company (AMMIC), alleging that they had breached their contract to defend him in a civil tort action. Spivey was a superintendent of a department for General Motors Corporation. A female employee in Spivey’s department filed suit against him, alleging that he had made sexual demands and committed intentional torts of assault, battery, and infliction of emotional distress and that he had intentionally inflicted bodily harm upon her. Spivey requested that his insurance carriers defend him, but they refused. After successfully defending the suit without their assistance, Spivey filed an action against Safeco and AMMIC, alleging breach of contract for failure to defend him in the federal action. 254 Kan. at 238-39.
The trial court granted summary judgment in favor of the insurance companies. The Spivey court affirmed, holding that the insurance contract was not ambiguous and that the exclusionary clause of the contract applied to Spivey’s situation. The exclusionary clause excluded from coverage an insured’s intentional acts. The Spivey court held that the insurance companies had no duty to defend because Spivey was not sued for having sex with the employee, but for intentionally injuring her by threats with a knife and gun, by shooting a gun at her, and by forcing sexual acts upon her. The court found the term “accident” in Spivey’s policy did not cover this situation because the alleged acts were intentional.
Thus, the Spivey court ultimately held:
“Under the present code of civil procedure, an insurer must look beyond the effect of the pleadings and must consider any facts brought to its attention or any facts which it could reasonably discover in determining whether it has a duty to defend. If those facts give rise to a potential of liability,’ even if remote, under the policy, the insurer bears a duty to defend. MGM, Inc. v. Liberty Mut. Ins. Co., 253 Kan. 198, 202, 855 P.2d 77 (1993). The duty to defend rests primarily on the possibility that coverage exists, and the possibility of coverage must be determined by a good faith analysis of all information the insurer may know or could have reasonably ascertained. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurer’s duty to defend. [Citation omitted.]” 254 Kan. at 245-46.
Spivey clearly applies to all the intentional acts alleged, in Pfeiffer’s petition. The appellants distinguish Spivey based on the negligence claims raised in Pfeiffer’s petition, namely that Holloway and Quality owed a duty to its employees to provide a safe place in which employees can work free of sexual assault, harassment, intimidation, and improper advances of both a verbal and physical nature. Since Pfeiffer raised a claim of negligence, the appellants argue there was a possibility of coverage and Truck owed Quality a duty to defend the action.
The problem with the appellants’ analysis is that it fails to discuss an insurance company’s right to go outside of a petition to determine whether there is a possibility of liability on the insurance carrier. “The insurer determines if there is a potential of liability under the policy by examining the allegations in the complaint or petition and considering any facts brought to its attention or which it could reasonably discover.” Spivey, 254 Kan. at 246. The insurer is subject to a good faith analysis of the information known to the insurer in deciding whether it will defend a lawsuit.
Here, Pfeiffer’s petition alleged that Holloway was the owner of Quality and that he sexually harassed her despite her requests and demands that the conduct stop. Pfeiffer also alleged that Holloway and Quality were negligent in that they breached their duty to provide a workplace free of unwanted sexual assault, harassment, advances, and intimidations and breached their duty to take the steps necessary to insure that such conduct did not occur.
The appellants argue that notwithstanding the intentional nature of Holloway’s alleged acts, the potential for coverage existed for the negligence claim against Quality because Quality could be viewed as a nonculpable insured which is vicariously hable for Holloway’s misconduct. The appellants argue that Quality, as a separate legal entity and the “insured” under the policy, should be entitled to a defense on the allegation that Quality negligently failed to supervise Holloway.
Several facts in this case weigh against a finding of coverage for the negligence of Quality. Pfeiffer’s petition states that Holloway was the owner of Quality and that he had the power to hire and fire employees. Sheldon Castleman, an employee of Farmers and the claims adjuster for Truck who investigated the allegations involving Pfeiffer’s petition, stated that during his interview with Holloway, Holloway said he was the owner and sole proprietor of Quality.
The district court in the present case correctly relied on Smith v. Printup, 254 Kan. 315, 349, 866 P.2d 985 (1993), in finding that a corporation’s ongoing tolerance of a continuing course of tortious conduct, like sexual harassment, logically amounts to ratification of that conduct. The Smith court cited with approval cases from other jurisdictions, stating:
"[I]f corporate management obviously tolerates the kind of conduct that causes tire injury, it amounts to ratification and/or authorization. Most of these cases, however, involve a continuing course of tortious conduct. Khalid Bin Talal Etc. v. E.F. Hutton & Co., 720 F. Supp. 671 (N.D. Ill. 1989) (recurring misconduct in commodities trading); Hart v. National Mortgage & Land Co., 189 Cal. App. 3d 1420, 235 Cal. Rptr. 68 (1987) (sexual harassment); Wirig v. Kinney Shoe Corp., 448 N.W.2d 526 (Minn. App. 1989) (sexual harassment). In those cases, ongoing tolerance logically amounts to ratification.” 254 Kan. at 349.
Quality clearly tolerated or ratified Holloway’s intentional sexual harassment of Pfeiffer. Holloway is the sole owner and proprietor of Quality. Holloway and Quality are one and the same for our purposes. We agree with the district court that it would defy logic to say that Quality might not have authorized or ratified Holloway’s intentional actions. Quality cannot be regarded as a negligent, non-culpable insured. It would be directly liable for sexual harassment by Holloway.
Further, we find the court’s decision in Coit Drapery Cleaners, Inc. v. Sequoia, 14 Cal. App. 4th 1595, 18 Cal. Rptr. 2d 692 (1993), to be persuasive. In Coit, die individual who did the harassing was Dr. Kearn — the corporation’s founder and president, a major stockholder, and the chairman of the board of directors. The court found the evidence clearly indicated that Dr. Keam’s outrageous conduct was affirmatively known and ratified by the board of directors and Coit Drapery Cleaners, Inc. The court found the insurance company had no duty to defend in such a situation. The court applied several principles that are particularly relevant to the case at bar.
Any hypothetical liability for mere negligence could not exist in the present case, but for the intentional acts of Holloway which occurred during the course of Pfeiffer’s employment and which were ratified and condoned by Quality. We are dealing with a case in which the acts of sexual harassment alleged are, by their very nature, intentional and wrongful; it would be contrary to public policy to allow a wrongdoer who is directly and strictly liable for such wrongdoing, such as Quality, to shift the loss resulting from such an unlawful corporate practice to its insurer. See Coit, 14 Cal. App. 4th at 1606-07.
We recognize that the duty to defend is broader than the duty to indemnify and may extend to circumstances measured only by the objectively reasonable expectations of the insured. See Spivey, 254 Kan. at 246. However, we fail to see how any business could reasonably expect it would be defended against intentional misconduct claims where the sexual misconduct at issue was done by the sole owner and proprietor of the business. Holloway’s conduct was inseparable from drat of Quality. It was part of a consistent course of sexual harassment of an unconsenting victim, in an employment setting. All of this conduct was harmful and wrongful, as a matter of law; there are no unresolved factual issues as to the intentionality of Holloway’s harassing conduct. There was no duty to defend.
The court in Coit also addressed a claim similar to the suggestion by Quality and Houston that Pfeiffer nevertheless asserted a claim of negligent supervision and control. The Coit court stated:
“[I]t is unavailing for appellants to suggest Coit was merely negligent in failing to enact and enforce corporate policies against sexual harassment, so as to prevent its president and major shareholder from attacking female employees. Coverage cannot be created by claimed negligence in failing to dissuade oneself from committing an intentional act, otherwise every intentional act would be covered and section 533 [California’s Insurance Code section providing that an insurer is not liable for loss caused by the wilful act of the insured] would have no meaning. [Citation omitted.] We are requii-ed to interpret section 533 so as to give effect and meaning to all its provisions; just as we cannot allow insurers to recharacterize negligent conduct as intentional, we cannot allow the insured to recast intentional conduct as merely negligent. [Citation omitted.]” 14 Cal. App. 4th at 1609.
We have reviewed the later case authority cited by appellants and find it avails him not:
In State Farm Ins. Co. v. Gerrity, 25 Kan. App. 2d 643, 968 P.2d 270 (1998), a minor child attempted to sue Gerrity under his homeowner’s policy for a sexual assault. The trial court granted State Farm’s motion for summary judgment on the ground the policy did not provide coverage. We see nothing in the case aiding the appellants here.
Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 961 P.2d 1213 (1998), dealt with a negligent hiring, retention, or supervision action where the employee was not the sole proprietor as in our case — although he was the spouse of the proprietor.
First Financial Ins. Co. v. Bugg, 265 Kan. 690, 962 P.2d 515 (1998), was also a declaratory judgment action which found that an assault and battery exclusion was not ambiguous and that there was no coverage. We do not see how it aids the appellants.
Appellants present a better argument through their citation of Brumley v. Lee, 265 Kan. 810, 963 P.2d 1224 (1998). However, that case also did not deal with the central issue here, that being whether there could be a negligence action against a corporation for failing to supervise its sole owner/proprietor.
We find the district court did not err in granting summary judgment to Truck. The policy issued by Truck indemnifies Quality for damages resulting from bodily injury caused by an accident. The injuries claimed by Pfeiffer were caused by Holloway’s intentional acts of sexual harassment, which were excluded under the insurance policy. Truck verified that Holloway was the owner and sole proprietor of Quality. Based on Holloway’s intentional acts, the information raised in Pfeiffer’s petition, and Truck’s investigation of the facts, Truck was justified in determining that Quality’s failure to prevent Holloway from sexually harassing Pfeiffer was not an accident and that any resulting injury would have been expected or intended by Quality. Since an intentional act was excluded from the insurance policy, there was no coverage for the alleged acts of Holloway and Quality, and since there was no coverage, there was no duty to defend.
Affirmed. | [
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87,
79,
115,
-37,
6,
-70
] |
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