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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, David Matthew Rice, was convicted of a violation of Ordinance TC-610, Sec. 151, of the City of Overland Park which reads as follows:
“Driving While License Canceled. Suspended or Revoked; Penalty. Any person who drives a motor vehicle on any public highway of this city at a time when his privilege so to do is canceled, suspended or revoked shall upon conviction be punished by imprisonment for not more than six (6) months and there may be imposed in addition thereto a fine of not more than five hundred dollars ($500). Provided, That every person convicted under this section shall be sentenced to at least five (5) days imprisonment and upon a second such conviction shall not be eligible for parole until completion of five (5) days imprisonment.” (Emphasis supplied.)
This city ordinance is closely patterned after K.S.A. 1972 Supp. 8-262. The facts in the case are not in dispute and are essentially as follows: On July 27, 1972, Officer Curtis of the Overland Park Police observed the defendant Rice asleep in his car in a restau rant parking lot. He told defendant to go home. Defendant stated that he did not have a driver’s license. Arrangements were made for a third person to drive defendant home. A short while later, Curtis saw the third person get out of the car and at this point defendant began to drive. Curtis stopped him and asked for his license, which he did not have. Defendant was arrested and charged with driving without a license. This charge was later amended to driving at a time when his license was suspended. The defendant was found guilty in municipal court of the amended charge and appealed to the district court. There a jury found him guilty and this appeal followed.
On this appeal the defendant challenges the validity of his conviction, contending in substance that the period of suspension of his license to drive had already expired on July 27, 1972, when he drove his motor vehicle and therefore he could not be guilty of a violation of the city ordinance. In order to determine this issue we must first examine the order of suspension which was issued by the Kansas division of vehicles and mailed to and received by the defendant Rice. It provided in pertinent part as follows:
“October 4, 1971
“ORDER OF SUSPENSION ,
“OF PRIVILEGES TO OPERATE A MOTOR VEHICLE IN KANSAS
“To: David M. Rice 8546 Riggs
Shawnee Mission, Kansas 66212
“BY AUTHORITY OF THE GENERAL STATUTES OF KANSAS, It has been determined from the records of this department that your privilege to operate a motor vehicle in the State of Kansas should be and is hereby suspended for the following reasons:
“YOU ARE A HABITUAL VIOLATOR OF THE TRAFFIC LAWS.
“ACTION: SUSPENDED STATUTORY AUTHORITY: KSA 8-255 (3)
“LENGTH OF SUSPENSION: 60 DAYS
“PLEASE NOTE: Although this order is effective as of this date and you can no longer legally operate a motor vehicle upon receipt hereof, the period of suspension runs from the date the department receives your license.
“It is important that you surrender your license immediately, to this department, so that you will-not incur further or additional penalties, and that you do not drive or attempt to drive a motor-vehicle on the highways of this state, even when accompanied by a licensed driver, until your driving privileges have been reinstated as provided by Law.
“THIS ORDER IS EFFECTIVE AS OF THIS 4th DAY OF OCTOBER, 1971.
“By: /s/Clarence W. McKay “Clarence W. McKay, Administrator
“Driver Control Division - “Motor Vehicle Department”
It should be noted that the order of suspension states that it is effective as of October 4, 1971, and that the length of suspension is 60 days. The order then goes on to state that “the period of suspension runs from the date the department receives your license.” We must first determine the construction to be given to the order of suspension as required by the pertinent Kansas statutes as they existed on July 27, 1972, when the offense charged allegedly occurred. At that time the revocation and suspension of motor vehicle driver’s licenses were governed by the motor vehicle driver’s license act. (K.S.A. 1972 Supp. 8-234 thru K.S.A. 8-271.) Some of these statutes have since been amended in 1974, 1975, and 1976. The division of vehicles is given authority by statute to revoke an operator’s license (K.S.A. 1972 Supp. 8-254) and also to suspend an operator’s license for certain actions or violations (K.S.A. 1972 Supp. 8-255). In this case the order of suspension was issued for the reason that the defendant was found by the division to be a habitual violator of the traffic laws, having been convicted of three moving traffic violations within the calendar year 1971. The phrase “suspension of driver’s license” is defined in the following language in K.S.A. 1972 Supp. 8-234 (r):
“8-234. Definitions. The following words and phrases when used in this act shall, unless the context otherwise requires, have the meanings respectively ascribed to them in this section.
“(r) ‘Suspension of driver’s license.’ The temporary withdrawal by formal action of the division of vehicles of a person’s driver’s license or privilege to operate a motor vehicle on the public highways, which temporary withdrawal shall be for a period specifically designated by the division of vehicles.”
One issue to be determined is whether or not the order of suspension dated October 4, 1971, complied with the requirement of 8-234 (r) that the temporary withdrawal of the privilege to operate a motor vehicle shall be “for a period specifically designated by the division of vehicles.” We have concluded that the order of suspension of October 4, 1971, must be construed as a suspension of license only for the period between the date of the order, October 4, 1971, and December 3, 1971, when the 60 days of suspension would expire. The term “designate” is defined in Black’s Law Dictionary, 4th ed., as meaning “to indicate or set apart for a purpose or duty— . . (p. 533.) “Specifically” is defined in the same volume to mean “in a specific manner; explicitly, particularly, definitely. . . .” (p. 1571.) The legislature, by requiring the period of suspension to be “specifically designated,” in our judgment intended that the formal order of suspension state with particularity the beginning date and the ending date of the period of suspension. If an original order of suspension is later modified either at an administrative hearing of the division under the provisions of K.S.A. 1972 Supp. 8-255 (b) or after an appeal has been perfected and determined in the district court under the provisions of K.S.A. 8-259, a supplemental order should be issued by the division setting forth the new period of suspension as modified. It is not in compliance with the statute for the order to provide that the period of suspension shall run from the date the division receives the person’s operator’s license. Such an indefinite period of suspension in our judgment does not comply with the legislative mandate that the suspension shall be for “a period specifically designated by the division of vehicles.”
8-234 should be construed to require that a suspension of a driver’s license be made only by a formal order of the division of vehicles in which the period of suspension is specifically designated with a beginning date and an ending date so that no reference is required to be made to the happening of some future event-or to some outside document. Driving on a suspended license is not only a violation of many city ordinances but is also a violation of K.S.A. 8-262. Under 8-262 driving on a suspended driving license is a class B misdemeanor on the first conviction, a class A misdemeanor on the second conviction, and a class E felony for a third and subsequent convictions. Furthermore the statute requires that upon conviction the trial court shall sentence the defendant to at least five (5) days imprisonment and to pay a fine of at least one hundred dollars ($100) and upon a second or subsequent conviction he shall not be eligible for parole until completion of five (5) days imprisonment. We believe that construing the language of 8-234 so as to require the formal order of suspension to state the beginning date and ending date of the suspension will enable the defendant to know without question the period during which his license has been suspended, will in the usual case make it unnecessary for the court to delve into the internal proceedings of the division of vehicles, and further will enable the courts of this state and other states to know exactly when the period of suspension was.
The city argues that it is necessary to make the period of suspension run from the date the division actually receives the person’s operator’s license because otherwise he will not surrender it to the division of vehicles. In this regard we note that under K.S.A. 8-260 it is a misdemeanor for any person to have in his possession any suspended driver’s license or to fail or refuse to surrender to the division upon its lawful demand any driver’s license which has been suspended. If the person whose license has been suspended refuses to surrender his license, he may be charged with a violation of that statute. We suggest that when the division of vehicles sends an order of suspension to a citizen that it include therein a notice that a failure to surrender-an operator’s license after demand of the division constitutes a violation of K.S.A. 8-260. In view of our interpretation of 8-234 it follows that the portion of the order of suspension dated October 4, 1971, which states that the period of suspension runs from the “date the department receives your license” is null and void. Hence the period of suspension in the present case ran from October 4, 1971, the date the order was effective, until the expiration of 60 days thereafter, December 3, 1971. In the present case the defendant Rice was charged and convicted of driving a motor vehicle on a suspended license on July 27, 1972. The defendant was entitled to be discharged since it was not shown that he drove a motor vehicle during the period his license was suspended.
The city in its brief relies upon K.S.A. 1972 Supp. 8-257 which requires the division, upon suspending or revoking a license, to require that such license shall be surrendered to and retained by the division except that at the end of the period of suspension the license shall be returned to the licensee. It maintains that since the defendant’s license had never been surrendered or returned to the defendant on July 27, 1972, the date he was arrested, he must be guilty of driving while his license was suspended. We do not agree. K.S.A. 1972 Supp. 8-262 and the city ordinance involved in this case make it an offense for a person to drive a motor vehicle only at a time when his privilege to do so is suspended. This is a criminal statute and ordinance and must be strictly construed. Applying a strict construction it cannot be said that the defendant Rice was driving a vehicle at a time when his privilege to drive was suspended. We note that in order to clarify the situation the legislature in 1974 amended 8-262 to add a proviso that no person shall be convicted under 8-262 if such person is entitled under K.S.A. 8-257 to the return of his license. We believe that this 1974 amendment expresses the intention of the legislature when 8-262 was originally enacted and that the statute as it existed on July 27, 1972, should be construed to express the same intent. It necessarily follows from our construction of the statute that the defendant was entitled to be discharged, since the city failed to show that he was driving a motor vehicle at a time when his license was suspended.
The next question submitted by the parties as an issue to be determined on the appeal is whether the trial court erred in admitting into evidence the narrative report of the division of vehicles which set forth in detail the defendant’s prior driving record, including prior convictions of failure to stop at a stop sign and making an illegal turn. Although our disposition of the first point determines the case, we believe that it would be helpful to the division of vehicles and to the courts to clarify the procedure to be followed in proving a period of suspension of the privilege to drive a motor vehicle in prosecutions brought under K.S.A. 8-262 and comparable city ordinances. As noted above 8-234 requires the suspension of a person’s driver’s license to be “by formal action of the division of vehicles.” Formal action requires a formal order of suspension by the division of vehicles. The division’s record of such an order would constitute an official record within the meaning of 60-460 (o) which provides as follows:
“60-460. Hearsay evidence excluded, exceptions. 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 inadmissible except:
“(o) Content of official record. Subject to K.S.A. 60-461, (1) if meeting the requirements of authentication under K.S.A. 60-465, to prove the content of the record, a writing purporting to be a copy of an official record or of an entry therein, (2) to prove the absence of a record in a specified office, a writing made by the official custodian of the official records of the office, reciting diligent search and failure to find such record;”
In proving a period of suspension this rule of evidence requires the introduction of a formal order of suspension authenticated in a manner which meets the requirements of K.S.A. 60-465. A properly authenticated copy of the order of suspension, unappealed from and final, is sufficient to show a period of suspension in a prosecution for driving on a suspended license. Other documentary materials in the files of the division of vehicles, which furnished to the division its justification for the suspension, are ordinarily immaterial and irrelevant and should not be admitted in evidence in the criminal action in the absence of unusual circumstances. Any statements to the contrary made in State v. Harkness, 189 Kan. 581, 370 P.2d 100, are disapproved and should not be followed.
The last two questions which have been submitted on the appeal essentially involve the propriety of the district court’s action in appointing counsel for the defendant and in not finding that the defendant’s indigency had terminated. There is nothing in the record to show that a final order has been entered allowing defendant an attorney fee. We have concluded that the issue is not properly before the court at this time and, therefore, we decline to consider these questions on this appeal.
For the reasons set forth above the judgment of the district court is reversed and it is ordered that the defendant be discharged from further prosecution in this case. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Steven Charles Sanders, appeals from a conviction, in a trial to the court, of possession of Cannabis Sativa L. (marijuana) with the intent to sell in violation of K. S. A. 1976 Supp. 65-4127b. The central issue involves the sufficiency of an affidavit upon which a search warrant was issued.
The search warrant in question was issued by the judge of division No. 6 of the Wyandotte district court on May 12,1974. As a result of the execution of the search warrant quantities of narcotic drugs were seized at the residence of the defendant and a four count information was filed against him. Three counts were later dismissed. Prior to the scheduled date for a preliminary hearing, defendant filed, in the magistrate court, a motion to suppress the evidence seized in the execution of the warrant. After an evidentiary hearing before the magistrate, defendant’s motion to suppress was denied, and thereupon defendant waived preliminary hearing and was bound over for trial to the district court.
In the district court, defendant filed a second pretrial motion to suppress the evidence on essentially the same grounds as alleged in his first motion. After a hearing before the district court, defendant’s motion was again denied. Thereupon, the parties stipulated that a trial by jury would be waived, the state dismissed three counts of the information, and it was further stipulated and agreed that the case would be submitted to the district court upon a stipulation of facts which reads in pertinent part:
“THAT IT IS STIPULATED BY THE PARTIES hereto that the Defendant was an occupant of the premises at 35 South 15th Street (upstairs apartment), Kansas City, Kansas, on May 12, 1974.
“IT IS FURTHER STIPULATED AND AGREED BY THE PARTIES HERETO that the authorities gained entry to said premises on May 12, 1974, on the basis of a Search Warrant issued by the Honorable Cordell Meeks, Judge of the Wyandotte County District Court, Division No. 6, on May 12, 1974, said Search Warrant to be admitted into evidence herein and marked as Defendant’s Exhibit ‘A’. The Search Warrant issued on the basis of an Affidavit submitted by Jack Hartman, Special Agent, Attorney General’s Office, on May 12, 1974, said Affidavit to be admitted into evidence and marked Defendant’s Exhibit ‘B’.
“THE PARTIES ADDITIONALLY STIPULATE that as a result of the execution of the Search Warrant herein, the Officers removed from the Defendant’s Premises ‘32 large packages’ of green vegetation, same marked as the State’s Exhibit 1, which has additionally been analyzed by a forensic chemist and the chemist’s testimony would reflect that the green vegetation, the ‘32 large packages’, possessed the properties of Cannabis Sativa L. and serves as the basis of the prosecution herein.
“THE PARTIES AGREE AND STIPULATE FURTHER that at the time of the State’s offer of its Exhibit 1 into evidence herein, the Defendant would renew his objection to its introduction for the reasons more fully set out in the Defendant’s Pretrial Motion to Suppress and Memorandum filed in support thereof, same being overruled by the Court on April 16, 1975.
"THE PARTIES FURTHER STIPULATE that the transcript of the Defendant’s Preliminary Hearing, same being conducted by the Magistrate Court of Wyandotte County, Kansas, on July 18, 1974, for the sole purpose of presenting the issue of material false representation of fact, the issue being readily raised in the Defendant’s Motion to Suppress, should be admitted into evidence for this purpose and marked Defendant’s Exhibit ‘C’.
“IT IS ADDITIONALLY AND FURTHER STIPULATED AND AGREED BY AND BETWEEN THE PARTIES HERETO that the Defendant had witnesses in attendance to the Court on April 3,1975, to testify in relation to the issue of material false representation of fact that the Defendant raised in his Motion to Suppress; however, the Court was not inclined to hear any of the testimony from the witnesses on this issue.”
The court accepted the stipulation and admitted the evidence as stipulated and after considering the same found the defendant guilty as charged in the remaining count. After a motion for a new trial was denied, this appeal was perfected.
The points raised by defendant all go to the validity of the search warrant and the sufficiency of the supporting affidavit upon which the issuing judge relied. Defendant’s argument on his first point goes to the sufficiency of the information contained in the affidavit for search warrant signed by Jack L. Hartman, a special agent for the attorney general’s office.
The affidavit reads in material part:
“The undersigned being duly sworn deposes and says:
“That he has reason to believe that on the premises known as 35 South 15th Street (upstairs apt.) in the Wyandotte District of Kansas, there is now being concealed certain property, namely Cannabis Sativa L. (commonly known as Marijuana) Cocaine, and Heroin which are illegal for possession by the Uniform Control Substance Act, K. S. A. 65-4105.
“And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: The assigning Officer swears and affirms that he has information from a confidential informant, who he has known for several months who has given him information in the past that has proven to be correct, that at the above address is secreted Heroin and Cocaine in one ounce lots and Marijuana in one pound lots. The confidential informant states that this is the residence of Steve Sanders, and he has purchased the above mentioned items within the last 24 hours.
“/s/ Jack L. Hartman
“Special Agent, A.G. Office.”
(Emphasis supplied.)
While the affidavit is not drawn with grammatical skill, it is sufficient on its face. It describes the premises and subject property of the search with certainty and identifies defendant as being the resident. The critical information is hearsay obtained from an unnamed informant; however, reliability is shown by the statement that previous information received proved to be correct and more importantly the affidavit states that informant had purchased illegal drugs within the previous 24-hour period. The last statement is an admission by the informant against his criminal interest.
Principles governing the determination whether a search warrant was validly issued, enunciated by the United States Supreme Court in leading cases on the subject, were analyzed and the precedents therein were adopted by this court in State v. Hart, 200 Kan. 153, 434 P. 2d 999, wherein we said:
“We are mindful of what has been said in Nathanson v. United States, 290 U. S. 41, 78 L. Ed. 159, 54 S. Ct. 11; Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245; and Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; and we recognize the precedent established by those cases. The import of those decisions, as we read them, is that before a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; that bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.” (p. 162.)
The requirements for the issuance of a state search warrant based on hearsay, set forth in Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, were further considered by this court in State v. Hubbard, 215 Kan. 42, 523 P. 2d 387. In Hubbard, as in the case at bar, the affidavit in support of the search warrant was based largely upon hearsay. We spoke of the Aguilar test as being twofold with respect to the supportive strength of hearsay evidence. The first test concerns the reliability of the informant’s information and the second is the requirement that the magistrate be informed of the underlying circumstances which led an affiant to believe the informant to be credible. In the instant affidavit the affiant swears that the informant has supplied information in the past which has proven to be correct. This satisfies the reliability test. Affiant’s statement that a purchase was made within the last 24 hours discloses underlying circumstances which would permit the affiant to believe the informant to be credible.
The record reflects, as will be discussed later, that all of the information available to affiant was not presented. Neither full disclosure of facts at hand nor elaborate specificity are required. (United States v. Ventresca, 380 U. S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741.)
Although the court in Spinelli v. United States, 393 U. S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, found that the affidavit therein fell short of the standards set forth in Aguilar, it reaffirmed principles pertinent to the issue which had been enunciated in prior decisions. The court said:
. . In holding as we have done, we do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U. S. 89, 96 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U. S. 300, 311 (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U. S. 102, 108 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U. S. 257, 270-271 (1960). . . .” (p. 419.)
While, as we have previously indicated, the instant affidavit is not a model of literary composition, its meaning is clear when read in a common sense and realistic fashion. This statement appearing in United States v. Ventresca, supra, is apropos:
“. . . If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” (p. 108.)
Reading the instant affidavit as a whole, in the context of the foregoing rules, we are satisfied there was a substantial basis for the issuing judge to conclude that narcotics were probably present in defendant’s residence and that is sufficient. (Jones v. United States, 362 U. S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A. L. R. 2d 233.) We conclude the affidavit, on its face, sufficiently established probable cause for the issuance of a warrant under the foregoing tests.
In his second point, defendant claims error in the trial court’s refusal to permit defendant to submit evidence which defendant claims would show a material false representation of fact in the affidavit of special agent Hartman. Defendant strenuously argues that even if the affidavit of Hartman was facially sufficient, he was entitled to go behind the surface of the affidavit after initial showing of a misrepresentation of a material fact. In support of his position defendant relies upon United States v. Carmichael, 489 F. 2d 983 (7th Cir. 1973) and other federal cases in accord.
In answer to defendant’s arguments, the state first responds by pointing out that the rule followed in this jurisdiction is that in the absence of statutory authorization a person against whom a search warrant is directed may not dispute the matters alleged in the affidavit supporting the warrant. (State v. Wheeler, 215 Kan. 94, 523 P. 2d 722; State v. Lamb, 209 Kan. 453, 497 P. 2d 275; 4 Wharton’s Criminal Law and Procedure, Search and Seizure, Sec. 1545, pp. 167-168; 5 A. L. R. 2d, Anno., p. 394; 68 Am. Jur. 2d, Searches and Seizures, Sec. 66, p. 720.) While, as defendant points out, there is some authority to the contrary (See Vols. 1-6 A. L. R. [2nd Series] Later Case Service 1976 Supp., Sec. 3, p. 73 [5 A.L.R. 2d, p. 405]), the rule of Lamb and Wheeler prevails in a majority of jurisdictions. The state of the law is summed up in 68 Am. Jur. 2d, supra, in these words:
"... A majority of the state courts which have considered the problem have held that in the absence of statute, the matters contained in an affidavit on which a search warrant is based may not be disputed by the person against whom a warrant is directed, for the purpose of showing the invalidity of the warrant. A few state courts have taken the position that the truth or falsity of facts stated in supporting affidavits may be so disputed, and some federal cases have stated that such an attack might be permitted where the defendant makes an initial showing of falsehood.” (p. 720.)
To this date at least, the United States Supreme Court has not seen fit to directly rule upon the extent to which a court may or must permit an attack upon the supporting affidavit of a search warrant, which upon its face, establishes probable cause. The last word from the high court appears in Rugendorf v. United States, 376 U. S. 528, 11 L. Ed. 2d 887, 84 S. Ct. 825, reh. den. 377 U. S. 940, 12 L. Ed. 2d 303, 84 S. Ct. 1330, wherein Justice Clark speaking for the court said:
“. . . This court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish ‘probable cause’; however, assuming, for the purpose of this decision, that such attack may be made, we are of the opinion that the search warrant here is valid. . . . (pp. 531-532.)
Further in the opinion the court observed that factual inaccuracies in the affidavit which were developed by testimony, were of only peripheral relevancy to the showing of probable cause and did not go to the integrity of the affidavit.
We have examined many of the cases cited by defendant’s industrious counsel. We have also considered the review of the cases on the subject and the author’s comprehensive analysis of all facets of the issue in a treatise entitled “The Outwardly Sufficient Search Warrant Affidavit: What If It’s False?”, appearing in 19 U. C. L. A. Law Review (1971), p. 96. With respect to federal decisions the author observes:
“Lower federal courts are divided on the question of whether the victim of a search may contest the veracity of the facts alleged in an affidavit. Those federal courts allowing challenge have done so under provisions of Federal Rule of Criminal Procedure 41 (e), or a prior statutory enactment, the Espionage Act of 1917. Other federal courts have refused to quash warrants or hear evidence tending to show falsity of the facts of affidavits once a judicial officer has determined that the warrants rest on probable cause. . . (pp. 104-105.)
Concerning state court decisions, the author says:
“The majority of state courts have been wary of opening this area to potential abuse by defendants and have, therefore, prohibited disputes of search affidavits where such documents establish probable cause on their face.” (p. 106.)
Our search warrant statutes (K. S. A. 22-2501, et seq. [and 1976 Supp.]), enacted in 1970, have not been amended in any manner relevant to the right of a person to dispute matters alleged in search warrant affidavits. State v. Lamb, supra, was decided in 1972 and the holding therein was restated in the identical language in paragraph (4) of the syllabus in State v. Wheeler, supra, decided in 1974.
In the absence of statutory direction we find no compelling reason to overrule our holdings in Lamb and Wheeler.
As an alternative response to defendant’s contentions the state maintains that even if we were to overrule Lamb and Wheeler, the record here does not warrant suppression even under the so-called “attack rule” followed by some federal courts.
As indicated in the stipulation of the parties, when defendant’s motion was first presented, prior to preliminary hearing, the magistrate, over the state’s objection, granted an evidentiary hearing. Agent Hartman was examined at length. It was brought out that his statement in the affidavit that he had known the informant for “several months” was erroneous. Hartman admitted he had only known the informant for about fifteen days and indicated the discrepancy resulted from a typist’s error — that he had said “several weeks” instead of months when the affidavit was drafted. Hartman’s testimony revealed that he had had the residence of defendant under surveillance on several occasions and had witnessed what he described as traffic in drugs. Hartman further testified that at least on one occasion the informant had given information which enabled Hartman to make a drug buy. The evidence reveals no intentional or deliberate misrepresentation in the affidavit as to any material matters relevant to the showing of probable cause. The factual inaccuracies stressed by defendant fall short of destroying the integrity of the affidavit. Hartman’s testimony discloses that the affidavit did not reveal all of the sources of the affiant’s belief, but this was unnecessary. (State v. Ogden, 210 Kan. 510, 502 P. 2d 654.)
When defendant renewed his motion to suppress before the trial court the transcript of the testimony in the magistrate’s hearing was submitted to and considered by the trial court over the state’s objection. A proffer of evidence made by defendant was, in effect, only a denial of- the averments of the affidavit. In its ruling on defendant’s motion, the trial court cited the rule of Lamb and Wheeler, but nevertheless continued:
“Disregarding this, however, if the testimony given by the officer at the preliminary hearing is to be considered in this matter, then the entire testimony should be considered. There was testimony that Hartman knew the informant ‘several weeks’ and that the informant had given him information on one occasion at least that had enabled Hartman to make a buy of a controlled substance. In addition there was evidence that Hartman had had the premises of defendant under surveillance on several occasions and witnessed traffic in drugs at the premises.
“After consideration, the defendant’s motion to suppress is denied.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a class action brought by Lawrence E. Maddox (plaintiff-appellee and cross-appellant) individually and on behalf of some 1,971 royalty owners, including those who do not reside in Kansas or have leases covering lands in Kansas or both, against their producer, Gulf Oil Corporation (defendant-appellant and cross-appellee), for recovery of interest on “suspense royalties.” The total amount of suspense royalties held from 1965 through the fall of 1972 was almost $988,000 which Gulf commingled with its other funds and used in its business operations. Except for the smaller size of the class membership, the starting of withholding in 1965, the payout by Gulf in the fall of 1972, the judgment of the trial court on January 9, 1976, and the point hereafter discussed concerning division orders, this case is identical in legal issues and factual situations to those presented in Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (No. 47,917, decided July 11, 1977). The same FPC Hugoton-Anadarko area and FPC Opinion No. 586 are involved.
More than one-half of the royalty owners signed gas division orders which expressly authorized Gulf to withhold, without interest, monies collected subject to refund until Gulf’s refund obligations were finally determined or until satisfactory indemnity was furnished. It is undisputed that Gulf’s refund obligations were not finally determined until FPC Opinion No. 586 became final. The trial court held the waiver of interest provision in the division orders ineffective. In its conclusion of law No. 9 the trial court ruled:
“Division orders and unitization orders cannot be construed to modify the lease obligations of the defendant, being instruments reflecting royalty owners interests in proceeds from production and unitization of acreage for allowables respectively. No consideration is reflected in these instruments which would support defendant’s contention that these instruments, executed subsequent to the original leases herein, were contracts to modify the royalty provisions of said leases.” (Emphasis added.)
The only testimony concerning the division orders at the time of trial was the deposition testimony of Jack Watkins (Gulf’s supervisor of oil and gas records and accounting) who admitted that he had no knowledge or information as to why the paragraph concerning interest was inserted in the division orders. He further testified he knew of no consideration for the royalty owners signing these division orders, which had inserted in them the FPC suspense royalty paragraph pertaining to the waiver of interest.
These division orders were obtained by Gulf in the late 1960’s and early 1970’s as deaths or transfers of royalty owners occurred.
It is the contention of Gulf on appeal that the gas royalty owners who were paid under signed division orders authorizing Gulf to hold such monies, without interest, are bound by such division orders until such orders are revoked. (Citing Phillips Petroleum Co. v. Williams, 158 F.2d 723 [5th Cir. 1946].)
This court has said a division order is an instrument required by the purchaser of oil or gas in order that it may have a record showing to whom and in what proportions the purchase price is to be paid. Its execution is procured primarily to protect the purchaser in the matter of payment for the oil or gas, and may be considered a contract between the sellers on the one hand and the purchaser on the other. (Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 92, 318 P.2d 1039 and authorities cited therein.) Generally speaking, a division order is not a contract between sellers themselves, especially in view of the fact that each of the parties having an interest in production may in fact execute separate division orders. (Wagner v. Sunray Mid-Continent Oil Co., supra.)
It was the duty of Gulf under the lease contracts it had with its royalty owners to market the gas at the best prices obtainable at the place where the gas was produced. The insertion in the division orders of matters contrary to the oil and gas leases, or contrary to the law, cannot be unilaterally imposed upon the lessor by the lessee or the purchaser. Here the unilateral attempt by Gulf in the division orders to amend the oil and gas leases, and thereby deprive the royalty owners of interest to which they were otherwise entitled, was without consideration. Therefore, the provisions in the division order regarding waiver of interest are null and void as determined by the trial court.
As held in Shutts, (1) this action was properly tried as a class action even though involving nonresident plaintiffs, (2) the producer was liable for interest on a theory of unjust enrichment and contractual principles, and (3) the class members had not waived any claim for interest. However, the computation of the award of interest by the trial court should be modified to conform to the Shutts case which held:
“We therefore hold on equitable principles Phillips is required to pay its royalty owners herein seven percent (7%) per annum simple interest on suspense royalties from the date of receipt of suspense royalties by Phillips until October 1,1970 (the effective date of FPC Opinion No. 586), and eight percent (8%) simple interest per annum thereafter until the payout to the royalty owners on or about December 7, 1972. Applying the ‘United States Rule’ on partial payments, after the payout there was still an unpaid principal sum due equal to the total principal due plus accrued interest, less the payout. Assuming proper calculations, this amount, although principal, would equal the accrued interest on the date of the payout. From December 7, 1972, on until the date of judgment (July 29, 1976) equitable principles and Phillips’ contractual undertaking require Phillips to pay its royalty owners herein eight percent (8%) per annum simple interest on the unpaid principal sum (accrued interest on date of payout) plus the unpaid principal sum; and thereafter our post-judgment interest statute, K.S.A. 16-204, requires payment of eight percent (8%) per annum simple interest for the benefit of the royalty owners on the total amount of the judgment until paid.”
The judgment of the lower court is affirmed in part and modified in part, and the case is remanded for further proceedings consistent with the foregoing opinion. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from an order of the district court summarily denying the claim of Mary Sprague, as administrator of the estate of Homer D. Fox, against the estate of Bryan J. Gallatin.
In 1967 Gallatin and Fox were owners of equal interests in oil and gas leases. Fox operated the leases and paid the bills. He in turn billed Gallatin for his share of the expenses. Each party collected his own share of the production proceeds. This arrangement continued until Gallatin died on March 27, 1970.
At the time of his death, Gallatin was a resident of the State of Nebraska. Although administration was commenced in Nebraska soon after his death, ancillary proceedings did not begin in Kansas until October 12,1971. On that date Marvin Copenbarger, appellee herein, was appointed executor.
During the course of administration, Copenbarger, as executor, and Fox sold their interests in the oil and gas leases. At the time of the sale they warranted that there were no outstanding bills against the leases. Fox then wrote the bank, which was acting as escrow agent, asserting an operator’s or partner’s lien in the amount of $6,741.19 against the proceeds of the sale of the oil and gas leases. Fox then filed a claim for the same amount against the Gallatin estate in probate court and claimed a lien against the proceeds of the sale of the leases. The claim was transferred to district court where Copenbarger asserted it was barred by the nonclaim statute (K.S.A. 59-2239 [Corrick], now K.S.A. 59-2239). Thereafter, Fox died and Mary Sprague, appellant herein, was substituted as administrator of the Fox estate. After certain facts were stipulated, Copenbarger filed a motion for summary judgment. It was sustained by the district court on the ground that the claim asserted was barred by the nonclaim statute. It is from this ruling the appeal is taken.
Sprague argues the claim is not barred by 59-2239 because it is protected by a nonstatutory lien existing at the time of Gallatin’s death, and falls within the exception to 59-2239 which protects liens in existence at the time of death. To support this argument Sprague cites 4 Summers on Oil & Gas, Sec. 728, p. 304, which states that partners operating an oil and gas lease have a right to have the proceeds of the partnership property applied to partnership debts and to advances made by a partner to the partnership operation. This right is called a partner’s or operator’s lien and Sprague contends Fox’s estate is entitled to reimbursement from Gallatin’s estate for advances, notwithstanding 59-2239.
At the time of Gallatin’s death, K.S.A. 59-2239 [Corrick] required all demands against the estate of a decedent be exhibited in probate court within nine months after the date of first published notice to creditors (now six months, as amended by the legislature in L. 1972, ch. 215) except those required to be paid under the provisions of a testator’s will. No creditor could have any claim upon property of the estate unless a petition for probate or administration of the estate was filed within one year of decedent’s death (now nine months, as amended) and his demand was exhibited within the time and manner prescribed above. Failure to follow the mandate of the statute bars all demands against a decedent’s estate. (Oswald v. Weigel, 215 Kan. 928, 933, 529 P. 2d 117; In re Estate of Wood, 198 Kan. 313, 424 P. 2d 528; In re Estate of Jordan, 180 Kan. 581, 306 P. 2d 135; In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305; In re Estate of Dumback, 154 Kan. 501, 119 P. 2d 476.)
The term “demands” is all-inclusive and includes all claims whether legal or equitable, due or to become due, or absolute or contingent from whatever source. (K.S.A. 59-2239; In re Estate of Grindrod, 158 Kan. 345, 354, 148 P. 2d 278; Burns v. Drake, 157 Kan. 367, 371, 139 P. 2d 386.) The provisions of the nonclaim statute do not apply to partnership estates and do not bar an action for an accounting. (Burris v. Burris, 140 Kan. 208, 34 P. 2d 127.) In the case before us we are not passing on the merits of such an action.
Sprague contends the operator’s or partner’s lien held by Fox was a “lien existing at the date of decedent’s death,” and Fox was entitled to file a claim against Gallatin’s estate, notwithstanding the nonclaim statute (59-2239). The time for filing a claim in probate court is not extended because a creditor had a lien on property in a decedent’s estate on the date of decedent’s death. The purpose of this phrase of the statute is to permit a lienholder to pursue his remedy in a proper forum against the encumbered property without filing a claim in the probate court. The claim of Fox against Gallatin resulting from the operation of the oil and gas leases was a demand within the meaning of 59-2239, and is barred by the nonclaim provisions thereof. (In re Estate of Pratt, 164 Kan. 512, 190 P. 2d 872.) The issue of whether Fox had a lien on Gallatin’s share of the proceeds of the sale of the leases is immaterial to our conclusion that the claim is barred.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is a habeas corpus action brought under the provisions of K. S. A. 60-1501 against the Sheriff of Leavenworth County. Appellant, a former inmate of the federal penitentiary at Leavenworth, was released after serving his sentence at that institution to the custody of the sheriff pursuant to requisition papers seeking his extradition to the State of Alabama.
Appellant was paroled from a life sentence for rape in Alabama on February 5, 1973. However, he was subsequently declared delinquent, having been convicted of the federal violation for which he served sentence in Leavenworth and also having been charged with other offenses in the State of Alabama. An extradition hearing conducted pursuant to the Uniform Criminal Extradition Act, K. S. A. 22-2701, et seq., resulted in the issuance of a Kansas governor’s warrant ordering appellant’s return to Alabama authorities. No challenge is made as to the validity of this governor’s warrant.
In his claim for relief, appellant relies on the cruel and unusual punishment prohibition of the Eighth Amendment to the Constitution of the United States and the ruling of the United States District Court (M.D. Alabama, N.D. 1976) in Pugh v. Locke, 406 F. Supp. 318, wherein it was held that conditions of confinement in Alabama penal institutions constituted cruel and unusual punishment.
In the instant case, the trial court denied relief holding that the issue presented was not cognizable in a habeas corpus proceeding attempting to enjoin extradition. This appeal followed.
We find no error in the trial court’s ruling. Appellant’s reliance upon Pugh is misplaced. The decision expressly exempted persons in appellant’s class from the pertinent aspect of its mandate. In this connection the Puqh opinion reads:
. . No new prisoners, except escapees and parole violators who have had their paroles revoked, may be accepted until the inmate population is no greater than the design capacity for each facility.” (p. 332.)
Apart from the express exclusion of parole violators in Pugh the decision of the United States Supreme Court in Sweeney v. Woodall, 344 U. S. 86, 97 L. Ed. 114, 73 S. Ct. 139, reh. den. 344 U. S. 916, 97 L. Ed. 706, 73 S. Ct. 332, precludes consideration of the issue in the courts of this state. In Sweeney an Ohio prisoner fought extradition to Alabama, alleging that he would be beaten and mistreated by Alabama penal officials upon his return and thereby subjected to cruel and unusual punishment in contravention of the Eighth and Fourteenth Amendments. The contention in Sweeney was summarily dismissed in the following language:
“. . . The scheme of interstate rendition, as set forth in both the Constitution and the statutes which Congress has enacted to implement the Constitution, contemplates the prompt return of a fugitive from justice as soon as the state from which he fled demands him; these provisions do not contemplate an appearance by Alabama in respondent’s asylum to defend against the claimed abuses of its prison system. Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State. Respondent should be required to initiate his suit in the courts of Alabama, where all parties may be heard, where all pertinent testimony will be readily available and where suitable relief, if any is necessary, may be fashioned.” (pp. 89-90.)
Under analogous circumstances this court has held the courts of an asylum state are not the proper forum in which to litigate an alleged denial of the constitutional right to a speedy trial. In Odom v. State, 215 Kan. 456, 524 P. 2d 217, we said:
“. . . The issue of denial of a right to a speedy trial is beyond the limited scope of inquiry permissible in an extradition proceeding in an asylum state. That issue may properly be raised only in the demanding state where the accused is being prosecuted. . . (pp. 458-459.)
The rationale of the decisions in the cases referred to flows from the provisions of our Federal Constitution (Art. IV, sec. 2, para. 2), the pertinent portion of which reads:
“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.”
We hold that the issue whether appellant’s confinement in the penal institutions of Alabama is cruel and unusual punishment is beyond the scope of inquiry permissible in an extradition proceeding in this — the asylum state.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Farmers Insurance Exchange appeals from judgments in excess of its policy limits, entered against it and in favor of Michael D. Schropp and the Estate of Clint R. Sohl, deceased, following a jury trial. Farmers raises a barrage of issues which will be discussed later in this opinion.
This action was commenced as a declaratory judgment suit by Farmers. It arises out of a two-car collision which occurred on October 25, 1969, on U.S. Highway No. 56, near Ellinwood, Kansas. Clint R. Sohl, insured by Farmers, was driving an eastbound vehicle, a Ford Falcon. He was accompanied by a friend, Daryl C. Thompson. Michael Blackman was driving a Plymouth sedan in a westerly direction on the same highway. Passengers in the Blackman car were Michael D. Schropp, Stephen L. Dunham and Stephen M. Arnold. The Ford driven by Sohl veered into the left or westbound lane as it rounded a curve. It collided with the Blackman Plymouth, striking it fully front to front in the westbound lane. The physical evidence at the scene, the highway patrol report, and the photographs all support these facts. There were no witnesses except the occupants of the vehicles. Sohl and Thompson were killed; Blackman, Schropp, Dunham and Arnold sustained personal injuries, those of Schropp being by far the most serious.
Farmers investigated immediately. The facts outlined above were known to it within a few days; they are included within the report of Farmers’ investigator, prepared November 28, 1969. Insofar as liability is concerned, no subsequent facts were learned. The only later developments were in the physical condition and health of the injured persons. Schropp was in intensive care for over thirty days. During that time, one of Farmers’ adjusters called on Schropp’s mother three times, and each time told her that if she would send the medical bills to him, Farmers would take care of them. On December 30, 1969, Robert Howard, who had been retained as counsel for Schropp, wrote to Farmers and accepted its offer to make advance payments of medical bills. He enclosed statements totaling $9,144.65. Almost a month later Farmers replied, stating that it was not then in a position to make advance payments, but it might be shortly, and it would be in touch with Howard in the near future regarding settlement.
The company did not contact Howard regarding settlement. On February 13, 1970, Howard again wrote the company. He enclosed Schropp’s medical and hospital bills, which then exceeded $26,000.00, and he made formal demand for payment of the policy limits in settlement of the Schropp claim. (The policy limits were $25,000 for one person, maximum of $50,000 for each accident.) Howard fixed a ten-day time limit for acceptance of the demand.
Russell Cleeton, the claims manager who was handling the matter for Farmers, was given policy limits authority — authorization to pay the entire $50,000 to settle all claims arising out of this collision, or $25,000 to settle any one claim — on February 20, 1970. On the same date Cleeton wrote Howard, saying that it would take Farmers a few days longer but “. . . we will certainly give you a decision as to your client’s claim just as soon as it is feasibly possible to do so under the circumstances.”
At that time, Cleeton was aware that the specials (hospital and medical expenses) for the other claimants totaled only four to five thousand dollars. On February 26, 1970, Cleeton shipped the company file to Mr. Turner for handling, and shortly thereafter Cleeton called Howard and told him that it would be necessary for Howard to petition for the appointment of an administrator of the Estate of Clint R. Sohl, and to file a formal claim in that proceeding.
Howard, as attorney for Schropp, then filed a petition for administration of the Estate of Clint R. Sohl in the probate court of Pawnee County, Kansas, on March 12, 1970. On March 26, the matter came on for hearing. The court appointed Morgan Wright as administrator, and issued letters of administration to him. Farmers, having resisted Wright’s appointment, authorized its attorneys, who were acting as counsel for Sohl’s parents, to appeal Wright’s appointment to the district court. The district court heard the matter on May 19,1970, and affirmed the orders of the probate court and the appointment of Wright as administrator. Petitions for allowance of demands were filed against the estate by Michael D. Schropp, Michael G. Blackman, and Stephen M. Arnold.
Farmers then decided not to litigate the matter in Pawnee County. On July 2, 1970, it filed a petition for declaratory judgment in the district court of Barton County, Kansas, joining Blackman, Schropp, Dunham, Arnold, and the parents and next of kin of Daryl C. Thompson as defendants. Farmers had made no overtures or offers of settlement to any of the parties. The policy limits authority given to its claims manager in February remained unexercised.
Farmers paid $50,000 into court at the time the declaratory judgment action was filed. It alleged that it was in doubt as to whether it should pay any part of the proceeds to the defendants; it asked the court to determine its rights and those of the defendants; and it asked that it be released from all further liability to the defendants. Schropp moved to join the Estate of Sohl as an additional party defendant; Farmers opposed that motion. After hearing, the district court found the estate to be a necessary party and granted the motion, joining Sohl’s estate as a party defendant.
On September 15, 1970, counsel for Blackman, Schropp, Dun-ham, Arnold, and for the parents of Thompson, stipulated that by reason of the extremely serious injuries sustained by Schropp, the value of his claim against the Estate of Sohl greatly exceeded $25,000, that being represented by Farmers to be the limit of coverage which would apply to the Schropp claim. Counsel further stipulated as to the apportionment of the remaining $25,000 among defendants Blackman, Dunham, Arnold, and the parents of Thompson. This stipulation, by its terms without prejudice to the claims of Schropp against Farmers and the Estate of Sohl, was filed September 15,1970. It was approved on March 2, 1971, and disbursement of the $25,000 apportioned as stipulated between Blackman, Dunham, Arnold, and the parents of Thompson, was ordered, all without prejudice to the claims of Schropp. The remaining $25,000 was not disbursed at this time.
Schropp, meanwhile, filed a counterclaim against Farmers and a cross-claim against the Estate of Sohl in the declaratory judgment action. He sought judgment against Farmers for $26,817.55, representing his total medical and hospital expense, which he claimed Farmers had contracted to pay; he sought judgment against the Estate of Sohl for $776,817.55 for damages based on negligence, and he sought an additional judgment against Farmers for $750,000 of that amount, contending that Farmers had handled his claim in a negligent manner and without good faith, had failed and refused to settle the claim within its policy limits, and had demonstrated negligence and bad faith in violation of its duties to its insured, and he contended that Farmers had obligated itself to the Estate of Sohl and to Schropp to pay the full amount of his loss.
Farmers replied. It denied that Sohl was negligent, claimed that Blackman’s negligence was the sole cause of the collision and resulting damages, and denied the rest of Schropp’s claim. Counsel for Farmers also filed an answer to the cross-claim on behalf of Morgan Wright, administrator of Sohl’-s estate (whose appointment counsel had vigorously opposed), adopting generally the positions taken by Farmers. Next, Wright filed a motion for permission to file a counterclaim against Farmers, by which he proposed to charge Farmers with negligence and bad faith in the handling of the Schropp claim, and to disqualify Farmers’ counsel from serving as counsel for the estate because of obvious conflict.
Farmers promptly filed a motion to stay further proceedings until the court determined the question of whether or not Farmers had a duty to defend the Estate of Sohl. Farmers contended that since it had paid its policy limits into court, it no longer had a duty to defend the insured or his estate. The trial court decided that Farmers had such a duty under its policy, and that the duty to defend was separate from the duty to pay damages. Two months later, in July, 1971, the Turner firm withdrew as counsel for the administrator, and thereafter he retained separate counsel.
At a pretrial conference held on October 19, 1973, Farmers admitted that Sohl was negligent, and that his negligence was a proximate cause of Schropp’s injuries. The nature and extent of those injuries remained in dispute.
A stipulation was entered into by counsel for Schropp and for the Estate of Sohl in October, 1973. This provided in part:
“That the nature and extent of injuries and damages sustained by Michael D. Schropp is in the amount of $110,000.00; that the Cross-Claim of Michael D. Schropp against the Estate of Clint R. Sohl, deceased, should be allowed in said amount; that judgment should be entered thereon . . .
“That the entering into of this Stipulation shall be without effect upon or prejudice to any rights, claims or defenses of any of the parties to this action, except as to the issue of the nature and extent of injuries and damages sustained by Michael D. Schropp . . .”
Farmers authorized its counsel to stipulate to a judgment in favor of Schropp and against the Sohl estate in the amount fixed in that stipulation. The stipulation was submitted to the court and approved, and judgment was entered by the court on December 14, 1973, in favor of Schropp and against the Estate of Clint R. Sohl for the sum of $110,000. The remaining $25,000 deposited by Farmers with the district court in 1970, together with accrued interest of $995.03, was then paid to Schropp as a credit against his judgment against the estate, and a partial satisfaction of judgment was filed by Schropp on December 27, 1973.
Schropp’s counterclaim against Farmers, as well as that of the Estate of Sohl, were tried to a jury, which returned a special verdict on October 10, 1974, as follows:
“1. Do you find that the Insurance Company acted negligently or in bad faith toward its insured in handling the claim of Schropp?
“ANSWER: Yes.
“2. Do you find the Insurance Company and Claimant Schropp through his mother Glennis Schropp, entered into an oral contract whereby the Insurance Company agreed to pay the medical expenses of Schropp?
“ANSWER: Yes.
“3. If you answered No. 2 ‘Yes’ then what did the company agree to pay?
“[ANSWER:] Medical and hospital expenses incurred by Schropp as a result of the accident.”
The trial court approved the verdict, found that Farmers was guilty of negligence and bad faith in the handling of the Schropp claim, that Farmers had contractually obligated itself to pay. Schropp’s medical bills, and the court entered judgment in favor of Schropp and against Farmers in the sum of $26,913.20 (on the contractual claim for medical expenses); in favor of Schropp and the Estate of Sohl and against Farmers in the sum of $90,165.33 (that being the balance of the $110,000 damages Schropp sustained, after adjustments for credit and interest); in favor of the Estate of Sohl and against Farmers in the sum of $9,859.56 for administrator’s fees, expenses and attorney’s fees; and against Farmers for the costs of the action. The trial court denied Farmers’ motion for judgment notwithstanding the verdict and for new trial; this appeal followed.
Farmers first contends that the trial court erred in failing to sustain its motion for judgment notwithstanding the verdict, since no evidence of negligence or bad faith on the part of the insurance carrier was presented that would support the jury’s answers to special questions. In this connection, Farmers contends that it did not exhibit negligence or bad faith toward its insured by failing to accept Schropp’s demand for policy limits; by initiating a declaratory judgment action; by contesting the appointment of Morgan Wright as administrator of Sohl; or by failing to defend the Estate of Clint R. Sohl.
This court has previously considered the duties of an insurance carrier in defending and settling claims against its insured. In Bollinger v. Nuss, 202 Kan. 326, 449 P.2d 502, we said:
“. . . [A] liability insurer, having assumed control of the right of settlement of claims against the insured, may become liable in excess of its undertaking under the policy provisions if it fails to exercise good faith in considering offers to compromise the claim for an amount within the policy limits. . . . Public policy dictates that the insured’s interests be adequately protected, and we believe this may be best accomplished by holding that both due care and good faith are required of the insurer in reaching the decision not to settle. . . . (p. 333.) “. . . [U]nder the negligence test the insurer must conduct itself with that degree of care which would be used by an ordinarily prudent person in the management of his own business, with no policy limits applicable to the claim. Likewise, under the good faith test, the insurer must in good faith view the situation as it would if there were no applicable policy limits. . . .” (pp. 337-338.)
“Whether an insurer in defending a claim and refusing an offer of settlement within policy limits was negligent or acted in bad faith is a question for the trier of fact in each case. . . . The company cannot be required to predict with exactitude the results of a trial; nor does the company act in bad faith where it honestly believes, and has cause to believe, that any probable liability will be less than policy limits. . . . Good faith on the part of the insurer implies honesty, fair dealing and adequate information. . . .” (p. 341.)
For a more extensive discussion, see Bollinger v. Nuss, supra; Rector v. Husted, 214 Kan. 230, 237 et seq., 519 P.2d 634; and Rider v. State Farm Mutual Automobile Ins. Co., 514 F.2d 780 (10th Cir. 1975).
In Castoreno v. Western Indemnity Co., Inc., 213 Kan. 103, 515 P.2d 789, the liability insurance carrier settled with two of several claimants, exhausting all except $500 of its policy limits. The action was commenced by two sets of claimants, who had not been paid, and who alleged improper handling of the multiple claims by the insurer and the administrator of the estate of the deceased insured. Holding that the settlements were made in good faith and did not subject the insurer to excess liability, we said:
“Our holding is that a liability insurer may in good faith settle part of multiple claims arising from the negligence of its insured even though such settlements deplete or exhaust the policy limits of liability so that the remaining claimants have little or no recourse against the insurer.” (pp. 111-112.)
Castoreño is cited with approval in Hartford Cas. Ins. Co. v. Dodd, 416 F. Supp. 1216, 1219 (D. C. Md. 1976). That court states the rule as follows:
“A liability insurer may settle claims in good faith with some claimants, even if such settlements reduce the amount available to others. There is ordinarily no requirement that the insurer wait until all claims have been presented before it deals with any claimant.”
Coleman v. Holecek, 542 F.2d 532 (10th Cir. 1976), involves the duty of an insurance carrier to initiate settlement negotiations. After a discussion of Bolinger and Rector, supra, the court says:
“. . . The duty to consider the interests of the insured arises not because there has been a settlement offer from the plaintiff but because there has been a claim for damages in excess of the policy limits. This claim creates a conflict of interest between the insured and the carrier which requires the carrier to give equal consideration to the interests of the insured. Bollinger v. Nuss, supra. This means that ‘the claim should be evaluated by the insurer without looking to the policy limits and as though it alone would be responsible for the payment of any judgment rendered on the claim.’ Rector v. Husted, supra at 641. When the carrier’s duty is measured against this standard, it becomes apparent that the duty to settle does not hinge on the existence of a settlement offer from the plaintiff. Rather, the duty to settle arises if the carrier would initiate settlement negotiations on its own behalf were its potential liability equal to that of its insured.
“. . . It was Allstate’s untimely withdrawal from the case . . . which ultimately led to a judgment greatly in excess of the policy limits. This result might easily have been avoided had Allstate continued the settlement negotiations under a reservation of rights or had it sought a judicial determination of its liability on the policy prior to resigning the defense. . . .” (p. 537.)
We turn now to the evidence in the case at hand, mindful that it is not the function of this court to weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact; we are concerned only with evidence which supports the judgment, and not with evidence which might have supported contrary findings. Steele v. Harrison, 220 Kan. 422, 552 P.2d 957; Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P.2d 428. Answers given by a jury to special questions will not be disturbed on appeal, when they are supported by substantial competent evidence. Kleppe v. Prawl, 181 Kan. 590, 597, 313 P.2d 227, 63 A.L.R.2d 175.
The evidence is not disputed that Farmers investigated the accident promptly, and that it determined its liability. It offered to pay Schropp’s medical payments. It authorized its claim agent to expend the policy limits in settlement of the claims. And it filed this declaratory judgment action some eight months after the collision, and paid its policy limits into court.
Farmers made no medical payments to Schropp or the other claimants. Its claims manager wrote to Howard, saying, “I will be in touch with you in the near future regarding a settlement”; however, no such contact was made, and no offers of settlement were ever made by Farmers to Schropp or any of the other claimants. Farmers made no effort to get the claimants together and work out the settlement.
The letter from Schropp’s attorney, demanding payment of the policy limits, was in effect an offer to settle Schropp’s claims within the policy limits and was so construed by Farmers. At the time this offer was refused, Farmers knew that Schropp’s claim would be substantial, and that his medical expenses alone exceeded its policy limits. It also knew that the medical expenses of all of the other claimants were from four to five thousand dollars, and it knew that its insured’s negligence caused the collision and the resulting injuries and damages. It required Schropp to petition for letters of administration of the Estate of Sohl, then actively opposed the appointment of anyone other than Sohl’s father as administrator, and appealed an adverse decision to the district court. After the district court affirmed, Farmers filed its petition for declaratory judgment in the district court of another county. By that petition it denied liability, and, though its investigation indicated that its insured was at fault and there was no evidence of contributory negligence, it continued to deny liability and to assert contributory negligence for more than four years after the collision.
All but one of the claimants were represented by counsel, and that claimant sustained the least serious injuries of all, and had returned to military duty. He was a minor, and his parents were available for consultation. Under these circumstances, Farmers could well have notified all of the potential claimants involved that the value of the claims would doubtless exceed policy limits, and invite them or their attorneys to participate jointly in efforts to reach agreement as to the disposition of the available funds. Alternatively, Farmers could have attempted to settle claims within the policy limits as they were presented. Or as a third alternative, Farmers could have promptly and in good faith commenced an interpleader action, and paid its policy limits into court. (See Club Exchange Corporation v. Searing, 222 Kan. 659, 567 P.2d 1353.) The first of these alternatives is preferable, where the claimants are readily available, and such a procedure may avoid litigation. Farmers pursued none of these alternatives.
We conclude that there was substantial competent evidence to support the jury’s finding that Farmers acted negligently or in bad faith toward its insured in the handling of the claims arising out of the collision. We should note that, in addition to the evidence outlined above, expert testimony was offered on behalf of Schropp and received by the court; this, too, was supportive of the finding.
Appellant next contends that the trial court erred in failing to give it a remittitur of $26,913.20 plus interest, that being the amount of Schropp’s medical expenses which he contended Farmers contracted and agreed to pay. Appellant contends that it merely offered an advance payment within the meaning of K.S.A. 40-275 which provides in pertinent part that:
“No advance payment or partial payment of damages, predicated on possible tort liability, as an accommodation to an injured person . . . shall be admissible into evidence as an admission against interest or admission of liability by such party or self insurer . .
Farmers contends that there was no meeting of the minds, and that Farmers received no consideration for the alleged contract. Schropp, on the other hand, contends that the contract for payment of medical bills is valid and enforceable.
We have carefully reviewed the evidence in this regard, and conclude that no enforceable contract resulted. There was no promise or evidence of forbearance on the part of Schropp, and Farmers received no consideration or benefit. And there is an additional reason why the separate judgment for medical expenses cannot stand. It was stipulated that the nature and extent of the injuries and damages sustained by Schropp is in the amount of $110,000. The judgment of $90,165.33 represents the balance of the stipulated sum for injuries and damages. The reasonable expenses of necessary medical care, hospitalization and treatment are elements of personal injury damage, and are part of the damages sustained. The total damages here were stipulated, and the jury was instructed that the extent of Schropp’s damages was not an issue in the trial since damages had already been determined. Whether the insurer is bound to pay medical expenses by contract, or whether those expenses are part of the damages for which it is liable because of the negligence of its insured and its negligent or bad faith handling of the resulting claim, is not material. It is obligated to pay those expenses but once. We conclude that this portion of the district court’s judgment must be set aside.
Farmers next contends that the trial court erred in entering judgment against it because of bad faith or negligence in not settling within the policy limits, for the reason that the Estate of Sohl was insolvent and was not damaged by the carrier’s failure to settle. Farmers relies upon two cases from the second circuit, Harris v. Standard Accident and Insurance Company, 297 F.2d 627 (2d Cir. 1961), cert. den. 369 U.S. 843, 7 L. Ed.2d 847, 82 S. Ct. 875, and Bourget v. Government Employees Insurance Company, 456 F.2d 282 (2d Cir. 1972).
We recognize that there are two separate rules in this regard. One, known as the prepayment rule, holds that payment of an excess judgment, or a portion thereof, is a condition precedent, and that no cause of action arises in favor of an insured and against the insurer for wrongful failure to settle a claim within the policy limits until the insured has made some payment upon the judgment secured against him. Courts which have adopted the other rule, known as the “judgment rule,” hold that payment of the excess judgment, or a portion thereof, is not a condition of recovery; and that such an action may be maintained by the insured, even though the insured has made no payment upon the judgment. An extensive annotation of these cases may be found in 63 A.L.R.3d 627.
Farmers thus contends that it is not obligated to exercise good faith in order to settle damage claims within the policy limits when its insured is bankrupt, insolvent, or otherwise judgment proof; and that an insolvent estate, such as that of Sohl, like an insolvent insured, cannot be harmed by the entry of an excess judgment against it, since it has no assets with which to pay the judgment.
The Supreme Court of Texas in Hernandez v. Great American Ins. Co. of N.Y., 464 S.W.2d 91 (Tex. 1971), abandoned the prepayment rule and adopted the judgment rule for that state. The court observed that the traditional rule of strict indemnity requires the indemnitor to reimburse only actual loss and not to discharge the liability of the indemnitee; however, the court concluded that the prepayment rule was inconsistent with the law of tort liability, where the injured party is entitled to recover, as near as possible, compensation for the damages he suffers. The court observed that virtually everything that has been written on this subject in the past fifteen years has favored the judgment rule over the prepayment rule.
We find the following in 7 Am. Jur. 2d Automobile Insurance § 158, pp. 490-491:
“. . . [I]t is now generally held, although there is some authority to the contrary, that an action against the insurance company will lie regardless of whether or not the insured has paid or can pay the portion of the judgment in excess of the policy limits.”
We do not think that the prepayment rule serves the ends of justice, and decline to adopt it. On the contrary, we see no reason why the insolvency of an insured or his estate should excuse the insurer from exercising the same good faith it would be expected to exercise, were the insured fully financially responsible. Further, an insured need not wait until his property is seized under an excess judgment before commencing action against an insurer whom the insured claims has acted negligently or in bad faith in failing to settle a claim within the policy limits. The action lies, whether or not the insured has paid or can pay an excess judgment.
Appellant next claims that the trial court erred in receiving evidence with respect to appellant’s offer to make advance payments, contrary to K.S.A. 40-275. That statute, as noted above, prohibits the use of evidence of advance or partial payments as evidence of an admission against interest or as an admission of liability.
Evidence of Farmers’ offer of advance payments was not received in this action as an admission of liability or as an admission against interest. Liability was already admitted, and was not an issue before the jury. The fact of the tender of payments, and the later refusal to make them, was competent evidence to show a course of dealing by the insurer. We find no error.
Appellant contends that the trial court erred in receiving evidence of the manner in which the $50,000 policy proceeds were disbursed. In essence, the evidence indicated that shortly after the declaratory action was filed, counsel for all of the claimants met and resolved the disposition of the policy proceeds, $25,000 being allocated to and divided between the other claimants, and $25,000 being reserved for Schropp. The issue being tried was that of the negligence and bad faith of the insurer in failing to settle within the policy limits. It had made no attempt to do so. This evidence indicated that a division of policy proceeds was swiftly, if not readily, accomplished, when it was first attempted.
Under K.S.A. 60-401 (b) and 407 (f, all relevant evidence is admissible. Relevancy is a matter of logic and experience. State v. Faulkner, 220 Kan. 153, 155, 551 P.2d 1247.
Upon the record before us, we conclude that evidence of how and when the proceeds were divided was relevant to show the relative ease with which the settlement was accomplished, and was thus relevant to show whether Farmers’ rejection of Schropp’s offer to settle within the policy limits, and its utter failure to attempt any settlement whatsoever, was negligent or in bad faith.
Farmers claims that the trial court erred in requiring it to produce for inspection correspondence between Farmers and its counsel, Turner, after July 9, 1971, the date upon which the Turner firm withdrew as counsel for the Estate of Sohl.
In support of this contention, appellant cites and quotes at length from two statutes, K.S.A. 60-226 (b) (Corrick) and K.S.A. 60-234 (Corrick). Both statutes were amended by order of this court, effective on January 1, 1973. The order of the district court, of which complaint is made, was entered during July, 1974, long after the effective date of the amendments. The applicable statute, K.S.A. 60-226 (b) (3) (Weeks) provides in substance that documents prepared in anticipation of litigation or for trial by a party’s attorney may be discovered “. . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impression, conclusions, opinions, or legal theories of an attorney . . .”
The trial court implicitly determined that Schropp needed the documents and that there was no reasonable alternative source for the same information. Counsel for Farmers then delivered to counsel for Schropp the documents in the company file not claimed to be privileged, and delivered those upon which a claim of privilege was raised to the trial judge for his inspection in camera. The record does not disclose whether any of those documents, which Farmers contended were privileged, were ultimately disclosed to Schropp’s counsel. In effect, Farmers makes a bald assertion of prejudice, but makes no showing of it in the record. Appellant has failed to provide this court with an adequate record in order for the court to review this point. The burden is upon the appellant to designate a record sufficient to present its points to this court, and to establish the claimed error. State v. Jones, 222 Kan. 56, 563 P.2d 1021.
Farmers contends that the court erred in failing to permit it to take a discovery deposition of Robert Howard, and in failing to disqualify him as counsel for Michael Schropp, for the reason that Howard “was a witness in the matter”; and that the court likewise erred in permitting Larry Keenan, co-counsel for Schropp, to withdraw as counsel and to testify as a rebuttal witness. Schropp, in answer to an interrogatory asking that he list each person who had any knowledge of his alleged contract claim, listed, among others, Robert Howard. Farmers promptly sought to take Howard’s deposition. Schropp filed a motion to quash the notice to take Howard’s deposition. The district court stayed discovery “until determination is made by the Court as to how to proceed.” Later, an additional notice to take Howard’s deposition was served; that notice was quashed by the trial court, since Howard was actively engaged in the trial of a lawsuit on the date set for the taking of his deposition. The court ordered, however, that the deposition of any trial counsel might be taken if that attorney was listed in the pretrial order as a witness. Howard was so listed by Farmers. The record does not indicate that Farmers made any further effort to take Howard’s deposition, and he was not called as a witness at the trial. We conclude that the trial court did not err in quashing the taking of the deposition, and we find no error in the record in that regard. Further, even though Howard had some contact and attempted settlement with claims people for Farmers in the early stages, he was certainly not disqualified to continue as trial counsel for Schropp because of those contacts.
Keenan was employed as counsel for one of the claimants, Dunham, shortly after the collision. He discussed the case with Carroll Knoll, an insurance adjuster for Farmers. After the stipulation was entered into, resolving Dunham’s claim, and after the judgment .entered in Dunham’s behalf was paid, Keenan was engaged as cnibunsel for Schropp, and acted as such during the trial. Knoll testified on trial that Keenan had made a policy limits demand from him on behalf of Dunham. The record indicates that this alleged policy limits demand was not reflected in any of Knoll’s reports to his employer, or in any of Farmers’ records. Schropp contends that he was surprised by the testimony of Knoll, and that it was thus necessary to call Keenan as a rebuttal witness to refute Knoll’s testimony. Keenan withdrew as counsel for Schropp, and thereafter was permitted to give rebuttal testimony.
The need for Keenan’s testimony was not anticipated. He was not called during the presentation of Schropp’s case in chief. It was only after Knoll’s unexpected statement that the need for Keenan’s testimony became apparent. Keenan then withdrew as trial counsel and was called to testify in rebuttal. This was in accordance with DR 5-102 (A) of the Code of Professional Responsibility, 214 Kan. lxxxv, and with the great weight of authority. See Food Fair Stores v. Howard, 58 Del. 558, 212 A.2d 405; Gowdy v. Richter, 20 Ill. App.3d 514, 314 N.E.2d 549; Cannella v. Cannella, 132 Ill. App.2d 889, 270 N.E.2d 114, 117; and Manion v. Chicago, Rock Island & Pacific Ry. Co., 12 Ill. App.2d 1, 138 N.E.2d 98.
Farmers contends that it was error for the trial court to allow administrator’s fees and attorney’s fees in the amount of $9,859.56. In its statement of points on appeal, appellant contends that this was error because a substantial amount of the work done by the administrator, who was also an attorney, was duplicative with that of counsel for the Estate of Sohl. There is nothing in the record to support this contention.
In its brief, Farmers also contends that it never refused to pay the Schropp claim, and therefore it was improper for the trial court to award fees pursuant to K.S.A. 40-256. To say that Farmers did not refuse to pay the Schropp claim, simply because that word was not used in Farmers’ reply to Howard’s demand, is incredulous. The facts belie Farmers’ argument. Request was made of Farmers to settle the Schropp claim within the policy limits on February 13, 1970; the request was denied on the ground that the investigation was not complete — when for all practical purposes the investigation was complete — and Farmers promised to respond as soon as it could, and never did so. This certainly constituted a refusal of the offer to settle, and a refusal to pay.
Sohl’s estate was required to defend in the declaratory judgment action as to these issues: (1) whether Farmers was required to pay any of the claims; (2) whether Farmers owed the estate a defense; and (3) the issues raised by the cross-claim of Schropp. Farmers had a contractual duty to provide a defense to its insured or his estate under the terms of the policy, aside from any right the insured’s estate might have to an allowance pursuant to K.S.A. 40-256. Under the facts before us, the assessment of fees and expenses against the insurer was proper. Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737.
We have examined each of the remaining contentions of appellant, and find no error.
That portion of the trial court’s judgment which granted Michael Schropp a judgment against Farmers Insurance Exchange in the sum of $26,913.20, based on claim of contract, is reversed; otherwise the judgment of the trial court is in all respects affirmed. | [
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The opinion of the court was delivered- by
Hutchison, J.:
This is an action by the city of Kansas City, against L. M. Bums, cashier of the water and light department of the city, and the surety on his bond to recover $5,689.81, an alleged shortage existing on April 20, 1929, in the funds collected by him for the city.
The allegations of the amended petition are in the usual form, setting up a copy of the bond and its approval on May 10, 1927, insuring the cashier to April 28, 1929, and that Burns, as cashier, withheld from the city the funds of the city to the sum of $5,689.31, although demand had been made therefor.
The answer of the surety company admits the corporate existence of plaintiff and itself and the execution of the bond, but denies generally all the other allegations of the amended petition, and specifically denies any failure on the part of Bums to faithfully perform the duties of his office and safely keep all public money and render a true account thereof and save the city from loss by neglect of duty or malfeasance in office. The surety company further denies that there was any default, and alleges that Burns was not an officer, that the bond was not an officer’s bond, but only a fidelity bond, that the city officers neglected to audit and keep- accounts and an audit is now impossible, that an audit'is the only way to determine the existence of a shortage, that any apparent shortage is due to “unadjusted credits,” duplicate payments, “float” and the crediting of delinquents; that if any discrepancies exist, they occurred long prior to the giving of the bond; and that the officers of the city acted in bad faith, knowing of such discrepancies and former shortages, failing to inform the surety company before it gave this bond, and permitting Burns to act some time without any bond.
The reply was a general denial. A referee was appointed by the trial court, who heard the evidence, made findings and conclusions, which were later approved by the trial court, and judgment was rendered for plaintiff and against defendants for the full amount claimed’ in the amended petition, with interest and costs and for a fee of $750 for the referee. The defendants appeal, assigning numerous errors.
We will first consider the error assigned in overruling the demurrer to plaintiff’s evidence, which the record shows was waived, if it was an error, by the defendants proceeding to introduce evidence in defense and in support of the allegations of their answer, as held under many decisions, one of the latest being Stoutenberg v. Gaston, 131 Kan. 610, 293 Pac. 385.
“When a demurrer to the evidence is improperly overruled and the defendant, instead of standing on his demurrer, introduces evidence which supplies the deficiencies in the plaintiff’s evidence, it is held that error in overruling defendant’s demurrer to the evidence is immaterial.” (Syl. IT 3. See, also, Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150; and Hospital Co. v. Odd Fellows, 99 Kan. 488, 162 Pac. 302.)
There is no question as to the evidence of the defendants, particularly that of defendant Burns, tending to supply the deficiencies claimed by the defendants to have existed in the evidence of plaintiff, particularly as to a shortage existing in the cashier’s funds during the period covered by the bond. Reference in particular is had to the following testimony of defendant Burns:
“There has not been much difference in the shortage since the installation of the Price-Waterhouse system. I think it was installed in the middle of 1927. The shortage on January 1, 1929, was $5,500. I do not have any memorandum to show what it was on January 1, 1928, but it was somewhere around $5,500. I cannot tell you exactly in dollars and cents what it was in July, 1927, or May, 1927. I happen to know it was $3,700 in 1926, and $1,400 was added to it in the last three months of 1926 and the first three months of 1927.”
“Q. Is it not a fact, Mr. Burns, that on the night of the 17th of April, at about eight o’clock, that Mr. Sinderson came into your office when you was making up your statement and he then and there, by just checking your own figures, checked out a shortage of $5,689.27 — isn’t that correct? A. Substantially, yes.
“Q. Let’s put it a little different, in order to be fair. In order to make your payment and your turnover of the 18th you had to use money that was in payment of stubs that were being withheld in order to make that turnover, didn’t you? A. I took the money, checks and subsequent mail collections to settle that account.”
Many errors are assigned with reference to the introduction of evidence before the referee. This, too, is not generally a ground for reversal in a trial not before a jury, even presuming the incompe-tent evidence was considered by the referee, unless the record discloses that there was no competent evidence to support the findings or that incompetent evidence is affirmatively shown to have affected the result.
“A judgment rendered in a case heard without the intervention of a jury will not be reversed on account of the admission of incompetent evidence, unless the record discloses that there was no competent evidence to support it or in some other way shows affirmatively that the improper evidence affected the result.” (McCready v. Crane, 74 Kan. 710, syl. ¶ 1, 88 Pac. 748.)
This rule applies as well to the erroneous rejection of competent evidence except where a verified showing is made, as in this case with reference to one matter, which will be considered later. In an opinion written by the late Justice Mason in the case of Daniels v. Hummel, 108 Kan. 422,195 Pac. 604, it was said:
“Complaint is made of rulings admitting and rejecting evidence. The trial was had without a jury, and the admission of incompetent evidence would not justify a reversal so long as there was sufficient competent evidence to support the decision, which we find to be the case, as indicated by what has already been said. Nor can a reversal be had for the exclusion of evidence, for no verified showing was made of its effect.” p. 425. (See, also, Collins v. Hayden, 104 Kan. 351, 179 Pac. 308.)
This is almost exclusively a fact case. The burden was upon the city to establish by a preponderance of the evidence that a shortage existed in the funds belonging to the city and handled by the cashier during the time covered by the fidelity bond, and if a shortage did exist the burden was upon the defendants to establish any one of the several special defenses alleged in their answer, to avoid liability therefor.
The referee made fourteen findings of fact, and the trial court approved each and all of them. The following findings, or portions thereof, will give a general understanding of the facts and matters involved:
“I. Defendant L. M. Bums was appointed cashier in the office of the water and light department of the plaintiff city in the year 1917, and continued in said office until April 20, 1929, when he was suspended and discharged. On or about April 28, 1927, the defendant, the Employer’s Liability Assurance Corporation, Limited, of London, England, duly made and executed to plaintiff their guaranty bond, which was duly approved by the board of commissioners of Kansas City, Kan., on May 10, 1927. . . .
“IV. That on the evening of April 17, 1929, at about 8 o’clock p.m., the certified accountants, Sinderson & Young, made an examination of the accounts in the cashier’s office, Mr. Bums being present, and upon Mr. Burns’ own tabulations found a seeming shortage of 85,689.27. The certified accountants almost immediately reported said fact to the board of public utilities, which board held an informal meeting on the night of April 19, and called a special meeting for the morning of April 20, 1929, and on said April 20, 1929, at about 9:30 a. m., suspended Mr. Burns and directed the accountants to immediately make a complete audit of the cashier’s office.
“V. Immediately thereafter and on the morning of April 20, 1929, the certified accountants took charge of the office of cashier, closed and checked each of the teller’s windows and found them in balance, and thereupon took all of the records, receipts, stubs, cash, checks and cash items to a separate room so that no subsequent receipts or transactions in the cashier’s office would be mingled in any manner with the audit. Said detailed audit showed the cashier to be short in his accounts in the sum of $5,689.31, being a difference of only á cents from the examination made on the night of the 17th.
“VI. The business conducted in the cashier’s office was as follows: There were three windows and three tellers — one for each window. Customers or consumers of water or light would present their notification card at the teller’s window, and upon payment of same the teller would stamp paid the card and the coupon, or stub, attached, and would cut off the coupon, or stub, to be used for crediting the account of the customer. It was the practice and custom to make the breaks in the day’s work at about 10 o’clock a. m. At this hour the date of the stamp was changed and all subsequent payments would be dated as of the day following, and the teller would make up a statement of the preceding day’s work showing the accounts to be credited and the cash received and turn the same over to the cashier. Collections made by mail or paid through the bank went direct to the cashier. Upon receiving the report from each of the three tellers, the cashier would check the same and count the cash received from each teller so as to verify the teller’s account. He would then make a recap of the collections made by the tellers and would add thereto the collections made by him through the mail and through the banks and would make a report to the accounting department of all collections made and the accounts to be credited, and also would deposit with the city treasurer the cash and checks and take the city treasurer’s receipt, the total of which had to balance the total of the accounts to be credited. When these accounts and receipts reached the accounting department, they would be checked again to verify all figures, and, if in balance, would credit the accounts of customers and charge to the city treasurer the corresponding amount. There were no permanent records kept in the cashier’s office.
“VII. These turnovers, or balance of accounts, were supposed to be of daily occurrence. However, the cashier got behind in making his reports, so that each turnover to the accounting department represented the transactions occurring from two or three days prior to the actual date when the report was filed. The matter of being two or three or more days behind time had been ■the practice for several years, and the reason therefor, as testified to by the defendant, Burns, was that it was customary for his office to carry assigned pay rolls, or assignments of pay checks, and to advance money temporarily for other purposes; that he was furnished the sum of $600 as an additional sum of money to be used for said purpose, but that said $600 at times would not be sufficient, and that he would have to withhold crediting customers until subsequent payments provided him with money sufficient to make his turnover. However, he testified, and there is no evidence to the contrary, that every pay-roll assignment or due bill was paid in full and that there was no loss on account of that practice.
“VIII. When the report of the certified accountants was turned in to the board of public utilities the said board appropriated from other funds the sum of $5,689.31 and credited the accounts of the customers who had paid (as there were no funds on hand in the cashier’s office to balance the same) and the necessity of so doing caused a loss to the city as of said date and time. The bond of the defendant, the Employer’s Liability Assurance Corporation, Limited, of London, England, was the bond in force at said time, guaranteeing to hold the plaintiff free and harmless from all loss caused by neglect of duty or malfeasance in office of the defendant Burns.
“IX. . . . The defendant Burns was behind two or three days in making his turnover. On the 19th the reason given by him for being late in making turnovers was that at times he had to cash pay rolls, or assignments of pay rolls, which he would have to carry until he could get warrants for same. This, however, created no shortage in his accounts, for the reason that such assignments and due bills were counted as that much cash and, therefore, his office should be in balance every day of the year and every hour of the day and every minute of the hour.
“X. Your referee further finds that the actual shortage in the cashier’s office commenced in the summer or fall of 1927. In the early summer of 1927 the defendant Bums sold his homestead at 449 North Fifth street, realizing therefor about $1,800. Out of this money he paid $400 on an automobile and was to pay an additional sum of $402 in installments. He then bought property in Comb's Park and commenced the erection of a new dwelling house thereon. This new dwelling house was completed a few days before Christmas, 1927. The first evidence of a shortage in defendant Bums’ office was in the month of December, 1927. The defendant Burns was at home sick. Mrs. G. L. Pert, the assistant cashier, in attempting to make the turnover in his absence found that there was not sufficient cash to make the turnover by about $3,000. Thereupon she telephoned to defendant Bums, and, notwithstanding he was sick, he came to the office and turned over customers’ checks sufficient in amount to cover said shortage. Defendant Burns testified that he obtained said $3,000 by opening the mail and taking checks and remittances therefrom sufficient in amount to make up the said sum of $3,000.
“XI. Your referee finds that between the dates of May 10, 1927, and April 20, 1929, the defendant L. M. Burns unlawfully abstracted and withheld funds belonging to the water and light department of which he was cashier and appropriated to his own personal use the sum of $5,689.31, and that demand was made upon the said defendant Burns for the payment of said sum and that said defendant Burns has failed, neglected and refused to pay the same and has withheld from the water and light department the said sum of money and unlawfully appropriated the same to his own personal use.
“XII. Your referee further finds that the bond of the defendant, the Employer’s Liability Assurance Corporation, Limited, of London, England, was in force from about April 28, 1927, until .April 28, 1929, and that said loss and misappropriation and withholding of said funds by the defendant Burns oc curred during the period covered by said bond, and that said defendant, the Employer’s Liability Assurance Company, Limited, of London, England, is liable to the plaintiff herein for the said sum of $5,689.31, together with interest at the rate of 6 per cent thereon per annum from May 1, 1929.
“XIII. And your referee further finds that on or about April 22, 1929', the plaintiff, by and through its water and light department, drew a warrant upon its surplus fund for the said sum of $5,689.31 and used the same to make good the shortage of defendant, L. M. Burns, and to give credit to the customers who had paid their accounts, and for which there were no funds in the cashier’s office. And the loss of the city occurred at said time, and the defendant, the Employer’s Liability Assurance Company, of London, England, is liable therefor.
“XIV. . . . Your referee further finds that there is no credible or believable evidence in this case of any shortage in Mr. Burns’ account prior to about December, 1927, when Mrs. Pert discovered a shortage of about $3,000. . . .”
Appellants strongly urge the insufficiency of the evidence to support the findings, relying upon the application of the ruling in the case of City of Oswego v. Condon, 124 Kan. 823, 262 Pac. 542, where this court held in an action by the city of Oswego against the city treasurer and the surety on his bond, that it was necessary for the plaintiff to show three specific facts:
“(1) The amount of money the officer had on hand at the beginning of the accounting period, (2) the amount of money that came into the officer’s hands during the period covered by the accounting, and (3) the amounts of disbursements lawfully made by the officer during the accounting period. From these three facts or factors, the amount for which the officer is responsible can be computed, and the shortage, if any, determined. However much work the ascertainment of these factor’s may entail, without them any accounting is worthless.” (p. 824.)
Appellants insist that the same rules as there announced as applicable to a city treasurer should apply to the cashier of the water and light department in this case, who kept no books or accounts, as the evidence and findings here show, whose duty was simply to make the collections and turn the funds over to the city treasurer daily. His duties are similar to those of a messenger — to receive and convey the funds.
Aside from the amount of money furnished by the city and regularly retained by the cashier for the purpose of making change at the three windows, he had no funds with which to begin. The payments and settlements were daily, but for convenience of the office, as found by the referee, they regularly ran a day late, and sometimes two or three days late. The office was not a disbursing one, as that of a city treasurer, and he made no disbursements except for certain special emergencies to avoid the necessity of keeping parties waiting for certain items due them until the semimonthly meeting of the commission.
The three specific facts required in the Oswego city case are said, in the opinion above quoted, to be factors without which an accounting is worthless. An accounting, as defined in Webster’s dictionary, is an "act or system of making up or stating accounts; a statement of account, or the debits and credits in financial transactions.” Besides, in laying down the rule in the Oswego city case, the court prefaced the statement as being a general rule in determining shortages in officer’s accounts. We hardly think this rule is applicable to one who keeps no books, makes daily settlements and is not expected to retain any funds in his hands except the money used for change for the next day’s work, and some stubs necessarily held over until the next semimonthly meeting of the commission, when the float is cashed and every stub can be turned in.
Appellants cite Bernhard v. City of Wyandotte, 33 Kan. 465, 6 Pac. 617, which is an action upon a city treasurer’s bond to show that all transactions, if necessary, may be introduced in evidence to prove that the city treasurer did not account for certain particular items, and argue therefrom that every transaction during the two years covered by the bond should be shown before any shortage can be ascertained or determined.
Appellants charge that the referee must have relied upon a doctrine once asserted and since reversed, that the loss and shortage in an account can be regarded as occurring when the examination of the books show the same to exist, instead of the time the money was withdrawn from the business. Again this is a bookkeeping comparison not applicable here to a system intending daily handling and settlements. The referee finds the shortage existed April 17, 1929, when the accountant and the cashier found the receipts would not balance the stubs by $5,689.27, and on April 20, 1929, when the cashier was suspended, the same shortage, plus four cents, existed. Two of the provisions of the bond were to save the city free and harmless from all loss caused by neglect of duty or malfeasance in office, and to pay over any money which shall come into his hands as such cashier. The shortage was simply the amount of money which the cashier on April 20, 1929, failed and neglected to pay to the city, that had come into his hands as cashier. The evidence, however, does not stop there, but goes back to December, 1927, after the bond was given in April, 1927, and approved on May 10, 1927, and shows a positive shortage of $3,000 about the same time a showing was made of heavy purchases and expenditures beyond salary and income of the cashier, which furnishes a strong circumstance toward the reasonable inference and conclusion that the $3,000 shortage existing at that time was a loss to the city by the neglect and malfeasance of the cashier. We know of no rule requiring a definite determination of the day the loss occurred by the withholding of the funds by the cashier, other than that it be within the time covered by the surety bond. A careful examination of all the evidence introduced, even without the admissions of the defendard Burns as above quoted, shows there was sufficient, if believed, to support the findings of the referee.
Appellants argue forcibly that sureties are only liable for defaults of their principals during the term for which the bond is given and in the same connection point out evidence that they say was undisputed, to the effect that a shortage existed prior to the execution of the bond. The argument on the first point is readily conceded, but as to undisputed evidence showing prior shortage it may not have been definitely disputed but it may not have been given credence by the referee.
"The trier of the facts is not bound to believe evidence the truth of which is not admitted, merely because no direct testimony to the contrary is introduced.” (Swartz v. Levin, 108 Kan. 224, syl. 112, 194 Pac. 646.)
Many authorities are cited as to Burns not being an officer and his bond not being an official bond, but nothing to show that he and the surety are not liable on the bond as given to protect the city against his neglect of duty or malfeasance as cashier of the water and light department of the city. A janitor around the city offices, where money is accessible, can be bound by a fidelity bond, although he is not an officer of the city.
A further and separate topic briefed by the appellants is that no neglect of duty or malfeasance has been shown, and numerous authorities are cited where the evidence failed to show such neglect or malfeasance, but, according to the findings here, there was no failure in that respect and the shortage admitted by the cashier shows neglect and malfeasance in withholding the funds unless he or his codefendant have shown that to have been overcome by their proof of some one of their defenses.
Much is said in appellants’ brief about what is termed and described as the “float,” and it being the cause of all the apparent discrepancies. The seventh finding, above quoted, describes it and concludes that no loss whatever occurred to the city or any one on account of it.
It is further urged that the surety should not be liable on the bond for the mistakes of the assistant cashiers. The abstract shows considerable evidence concerning mistakes made by them at the windows, but there is no finding that any of such losses were included in the shortage found against the cashier, and, therefore, neither the cashier nor the surety are made liable for such mistakes.
Appellants submitted to the referee sixty findings of fact and twenty-five conclusions of law, and they assign error that their findings and conclusions were not adopted. The failure of the referee to adopt and use thirty-one of these requested findings is especially assigned as error, and a careful examination of them indicates that ten of them are substantially covered in the findings made by the referee. Fourteen others give details of matters covered generally, bix concern the “float,” of which it is found by the referee, supported by the evidence of the cashier, that not one dollar was ever lost by the handling of the “float,” and one of these findings concerns the pleadings. We find no error in the referee declining to go to this very unusual extent, mostly in details, as requested. The failure to adopt the twenty-five conclusions of law is a matter that could be readily corrected by the trial court, or even yet by this court, on review, if convinced that such was or is the law applicable to the findings of fact as made and approved. Evidently the trial court did not regard them as being proper conclusions, and we think there was no error in so holding.
Appellants filed an affidavit which was used on the hearing of the motion for a new trial, and it sets up evidence of the witness Barnard, which was excluded by the referee, to the effect that if he had been permitted to answer the question asked he would have stated, “that the only method for determining whether or not an actual shortage existed in Mr. Burns’ or the cashier’s department, would be to go back and make a detailed audit.” The resort to an audit, even if it were possible, becomes unnecessary after the principal in the bond has admitted the existence of the shortage within the period covered by the bond.
Many other points are raised and assigned as error, among them the overruling by the trial court of appellants’ motion for review and modification of the findings and conclusions of the referee and the sustaining of plaintiff’s motion to approve and confirm the same, and no error is apparent.
Appellants suggest the fee of the referee is too large, but the length of time required to hear and determine the issues raised and the very unusual amount of testimony offered and considered make the amount not unreasonable.
We have carefully considered each and every pioint raised and urged by counsel for appellants in the very exhaustive and well-prepared brief, which has apparently omitted nothing and has supported each and every assertion and contention with numerous authorities, but we find no substantial or reversible error to have been committed by the referee or the trial court, and we therefore conclude that the judgment of the trial court should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
The question here involved is whether a judgment creditor is entitled to the rents, and profits of the judgment debtor’s property under garnishment proceedings as against a mortgagee to whom the rents and profits had previously and conditionally been assigned in the note and mortgage when executed, where no proceedings had been commenced to foreclose the mortgage or to have a receiver appointed to collect the same. The trial court-held in favor of the mortgagee because of the prior assignment of the rents by the owner to the mortgagee, as contained in the note, and the plaintiff, the judgment creditor, appeals.
The plaintiff corporation had regularly obtained in the district court of Saline county a personal judgment against the defendant, T. F. Sullivan, from which no appeal had been taken and on which an execution had been returned unsatisfied. Thereafter, and on or about November 1, 1931, the plaintiff procured the issuance and service of garnishment summonses upon certain tenants of the defendant, Sullivan, occupying four different dwellings and business houses in the city of Salina. All this real estate so rented by defendant Sullivan had been by himself and wife, about five years prior thereto, mortgaged to the Homestead Building and Loan Association, and the note secured by this mortgage contained the following conditional assignment of the rents and profits to the mortgagee as a further security.
“The undersigned hereby assign to the said The Homestead Building and Loan Association the rents and income arising at any and all times from the property mortgaged to secure this note, and hereby authorize the association, at its option, to take charge of said property, collect and receipt for all rents and income, and apply the same on the payments, insurance premiums, taxes, assessments, repairs or improvements necessary to keep the property in tenantable condition, or other charges provided for in this note, provided said payments or charges are in arrears. This assignment of rents to continue in force until the amount secured by this note is fully paid.”
The building and loan association, as an intervener, on November 23, 1931, filed in this same case in which the garnishment summons had been issued a verified application, attaching a copy of the note and mortgage, and praying that the court discharge the garnishees and adjudge the association to be entitled to the rents and profits. The application contains, among other allegations, the following:
“. . . o’f which note this applicant remains the owner and holder and which note is unpaid and undischarged, true and correct copies of said note and mortgage with all credits and indorsements thereon being hereto attached and made part hereof . . .”
Prior to the filing of the intervener’s application two of the garnishees filed answers to the effect that they each owed defendant Sullivan rent in the sum of $50, and on the same day the application was filed all four tenants filed separate answers in garnishment admitting they were tenants of defendant Sullivan, but the Homestead Building and Loan Association had required and demanded of them the rent under what it claims to be a prior right, and they asked that the building and loan association be made a party to the proceedings so that they might be protected from further liability by an order of the court.
On the first day of December, 1931, the plaintiff procured the issuance and service of four new garnishment summonses which were served on the same tenants to cover the rent then due and payable. No answers were filed to these processes because the plaintiff, the defendant and the building and loan association made an oral stipulation which was embodied in a journal entry by the court and signed by the attorneys for these three parties. It in substance directed the four tenants to pay their rent to the building and loan association as an agent of the court, as if it were paid into court under garnishment proceedings, to be disposed of by the court in making final disposition of the garnishment proceedings — this to apply to future rents without the issuing of garnishment process or the filing of another application by the intervener and all to be without prejudice to any of the parties in respect to any of the controversies now involved in the proceeding or to any and all the several rights and claims asserted.
On January 8, 1932, the cause was submitted to the court on the verified application, without any evidence being introduced or offered by any party, and the court found “'the matters in said application to be true arid that said application should be sustained and granted.” The verified application stated that all the credits ■ and indorsements are on the attached copies of the note and mortgage, and neither of them shows any credit or indorsement, notwithstanding monthly payments had been coming due thereon regularly for a period of nearly or about five years. Appellant says it is unreasonable to conclude that no payment had" been made during the period of five years, and that the court should take judicial notice of the custom of building and loan associations to enter credit for monthly payments in a pass book rather than by indorsing them on the note or mortgage. This may be true, but the trial court did not have the evidence which a pass book might have furnished that might possibly have shown all or nearly all the payments had been made as they became due, and the court could not then have found the allegations of the application to be true as to no payments having been made. The extreme statement in this application, while possibly unreasonable, is not necessary to the decision in this case, but only that some of the payments were in arrears. No denial was made of this extreme allegation, and no evidence was offered to modify or disprove it.
The verified application was before the trial court very much as a petition attacked by demurrer, in which case the allegations of the petition are accepted as true, regardless of their being extreme, unreasonable or exaggerated. (Stinson v. Wooster, 83 Kan. 753, 112 Pac. 610.) Besides, in a matter of this kind, the inference cannot be avoided that the trial court would have recognized the excessive and unreasonable nature of the allegations of the intervener’s application if its attention had been called to it in the way it is now being done on review, and error could very properly have been assigned if the opportunity to deny or modify those allegations by pleading or proof had been by the court denied. The record is silent in this respect, but the rule is uniform that alleged errors not brought to the attention of the trial court cannot form a basis for review in a court of appeals. (Schmitz v. Schmitz, 125 Kan. 115, 263 Pac. 1045; Toops v. Atchison, T. & S. F. Rly. Co., 128 Kan. 189, 277 Pac. 57; and Skibbie v. Liberty Life Ins. Co., 130 Kan. 121, 285 Pac. 581.)
The paragraph above quoted from the note shows an assignment of the rents at the time the note and mortgage were executed. The mortgagee had the option thereunder of using the assignment or not as it desired, but it was conditioned upon some of the payments or charges being in arrears before such additional security would be available. This is the only purpose for which the allegation of the application as to the failure of payments is necessary. If some payments were in arrears then the assignment at the option of the mortgagee could properly be used. But the appellant .insists that such assignment cannot be effective against a garnishing judgment creditor under garnishment proceedings in the absence of foreclosure proceedings or the appointment of a receiver to collect the rents, and cites the case of Hall v. Goldsworthy, 136 Kan. 247, 14 P. 2d 659, to show that the demand on the tenants for the rent is not sufficient to establish a right thereto or possession thereof, and that such right can only be established through a proper court procedure. This is conceded to be the general rule, but in the case cited, as well as in those quoted therein, the mortgagor or owner was always found to be resisting the demand and claim of the mortgagee to possess itself of the rents and profits under the assignment, and a court proceeding was therefore necessary to determine whether the mortgagee could, under the assignment, dispossess the owner of the rents and profits. Here we have the owner or mortgagor joining the mortgagee in making a stipulation with the plaintiff agreeing to the payment of the rent to the mortgagee as the agent of the court to be dispersed later by order of the court and being represented in such stipulation by the same attorney as the one representing the mortgagee, who signed the stipulation journal entry for him and the mortgagee. There is no need of a judicial proceeding when the mortgagor voluntarily consents to the mortgagee obtaining possession of the rents, even as an agent of the court. The assignment provision in the note, even upon default, would be of no avail to the mortgagee without a judicial proceeding or its equivalent, and certainly the voluntary consent of the mortgagor or owner is such equivalent, as it was held in the case cited.-
“An agreement to impound the accruing rents after an action has been commenced is, under the circumstances of this case, equivalent to the appointment of a receiver by the court and entitles the plaintiff to the benefit of the stipulation contained in the mortgage.” (Syl. ¶ 2.)
In the discussion of the assignment of rents in a mortgage in 41 C. J. it is said—
“Unless acted upon by the parties such provisions do not become effective, however, until the mortgagee actually obtains possession, or until he asserts his rights by securing the appointment of a receiver or impounding the rents and profits pending foreclosure, or talcing some action equivalent thereto.” (p. 629.)
In the Hall case, above cited, a foreclosure action had been commenced after a demand had been made for possession of the rents, and a few days later an amended petition recited that a stipulation had been entered into between the mortgagor and mortgagee agreeing upon a trustee to whom the rents might be paid until the rights of the parties were determined. It was there held that such agreement had the practical effect of the appointment of a receiver by the court.
In the case of Capitol B. & L. Ass’n v. Dobson, 134 Kan. 518, 7 P. 2d 64, by consent of the mortgagor the mortgagee took possession of the mortgaged property for the purpose of collecting rents and applying them on the payments due, and the court upheld such subsequent agreement as a voluntary consent without the pendency of a foreclosure or other judicial proceeding.
Appellant relies upon the positive statement in Seckler v. Delfs, 25 Kan. 159, and other similar cases, as to the necessity of an action being brought to enforce the lien upon the rents and profits, but in the Seckler case there was no voluntary consent given by the mortgagor as there is in the instant case and the Hall case.
It is urged that under the conditions of the mortgage there was no default alleged in the application which would authorize a foreclosure proceeding. This we do not think is applicable to the method pursued, which was not at all in the nature of a foreclosure action. If the voluntary consent given by the mortgagor to the mortgagee as the agent of the court to collect the rents, was equivalent to an action, and avoided the necessity thereof in this case, as we hold it is and does, it properly dated back as a lien under the assignment contained in the note so as to be subject to enforcement and prior to the garnishments from the date of the demand upon the tenants by the mortgagee, when immediately followed by such consent.
We find no error in the finding and judgment of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Defendant was found guilty of murder in the second degree and appeals, specifying fourteen assignments of error.
John Eelien Jones had four grown sons. With his wife he had lived on a small farm near Arkansas City. His wife died six or seven months before the homicide occurred. In 1928 Elsie Jones brought suit for divorce against the defendant, and she was given the home place, which she mortgaged for $2,500, which defendant received. The murdered son was a witness for his mother, a fact the father resented. Immediately after the divorce suit was concluded, the defendant stated he would get the farm, and that his son Carl had caused the trouble and he would kill him. A number of witnesses were produced who testified to statements of the defendant showing his intense hatred of his son Carl and his use of vile and vituperative language when referring to him. The mother left a will in which she gave the land to Carl with a direction that he pay his stepdaughter, Elizabeth Walworth, who was murdered on the same day, a reasonable amount for services rendered by her to the testatrix. After the will was admitted to probate, Elizabeth Walworth filed her claim against the estate. The three other sons, Harry, Neil and Emil, brought suit to contest the will and also made arrangements to defeat the Walworth claim. In July of 1929 the defendant and his son Harry Jones called on the county attorney and attempted to have him proceed against Carl, who they claimed had a still on his farm. The defendant then stated he had turned it (his complaint) in to the officers at Arkansas City and Winfield; that he was going to Texas and when he got back he would get some more information. At this interview, as testified to by the deputy sheriff who was present, he said he was going to do away with Carl and Elizabeth if anybody else wouldn’t do anything. Immediately thereafter the defendant went to Texas with his son Harry, where he remained for about a month when, from statements made in a letter written by one of the sons, he apparently went to Kentucky for a short time and then returned to Augusta, Kan., where he was employed in a garage. There was other testimony with reference to trouble between the defendant and his wife and son Carl, but the above statement indicates the trend of it.
On or about October 26, 1929, the exact time not being known, Carl Jones was killed in a roadway near his home and Elizabeth Walworth was killed in the house. A revolver was found by her body. Shortly after the crime was discovered the defendant was arrested. At that time his car was in a garage, cleaned up, loaded with his effects and ready to go. The defendant claimed that he practically lived in his car. The sons Harry .and Neil were likewise arrested, and the father and the two sons were charged jointly in one information with the murder of Carl Jones and in another information with the murder of Elizabeth Walworth. Separate trials'were demanded, and on trial of appellant testimony showing the above facts was introduced, together with the letters -and documents hereafter referred to; there was also much other evidence tending to show the presence of the defendant and his son Neil in Arkansas City and near to the farm within three or four days prior to the crime, tending to show that shells from the shotgun with which the killing was done were purchased by Neil Jones, and many other matters not necessary to detail here. The appellant attempted to prove an alibi as part of his defense and offered much testimony in contradiction of the above. As a result of the trial, he was found guilty of murder in the second degree.
The third and eighth specifications of error complain of the admission in evidence of the claim in probate court of Elizabeth Walworth, the last will and testament of Elsie Jones, and the petition and summons in the suit to contest her will, as well as a number of letters found in the car of defendant, five of which' were written by Harry to his father, two by Harry to Neil and seven by Neil to Harry. It was the contention of the state that there was a conspiracy by the defendant and his sons Neil and Harry to kill Carl Jones. The defendant claims that no conspiracy was proved and the court documents and letters were therefore inadmissible. The court documents were properly admitted as tending to show the correctness of the claim that the defendant and his sons had a motive in doing away with Carl Jones and Elizabeth Walworth, and this notwithstanding that Carl Jones had a minor son who is his sole heir. If the will was set aside and the claim of Elizabeth Walworth defeated, Neil, Harry and Emil Jones stood to profit. In so far as the letters were concerned, it is true that the evidence of conspiracy rests on circumstantial evidence; it would be remarkable if it did not, unless one of the conspirators confessed, for conspirators do not advertise their acts. (Richel v. Cooperative Exchange, 113 Kan. 592, 215 Pac. 1015.) Outside of the letters, it was shown that the defendant and his son Harry attempted to have Carl arrested; that he had made threats against Carl; that he aided and assisted in preparations to contest the will of Elsie Jones and to defeat the Walworth claim; that he acted as an intermediary between Harry and Neil; that he, as well as his son Neil, had been in Arkansas City and near the farm on which Carl lived within a day or so of the crime; that shells like those found at the place of the crime were purchased'by some person resembling Neil at Arkansas City the night before the crime was discovered. Under these circumstances, together with others shown at the trial, the question of conspiracy was for the jury and the letters were competent. (16 C. J. 664.)
The fifth specification of error complains of instructions given the jury, and the eleventh that, during deliberations of the jury, the court orally instructed the jury and coerced a verdict. In so far as the instructions given are concerned, the record fails to show any objection by the defendant, or that he requested any other or different instructions, and he is not now in a position to complain. (State v. Wolfley [on rehearing], 75 Kan. 413, syl. ¶ 2, 89 Pac. 1046; Stewart v. Marland Pipe Line Co., 132 Kan. 725, syl. ¶ 4, 297 Pac. 708; 16 C. J. 1070.) Nevertheless, we have examined the instructions. The third instruction was that homicide is divided into six degrees and that there was no evidence to warrant a finding of any degree of manslaughter, and the fourth instruction defined murder in the first and second degrees. Defendant argues there was no evidence to warrant a finding of murder in the second degree. Here the evidence was circumstantial in a large measure, there was evidence a revolver was found by the body of Elizabeth Walworth; the jury, under all the circumstances, might believe that some element of willfulness, deliberation or premeditation was lacking, and the court was warranted in giving the instructions. (State v. Patterson, 52 Kan. 335, 34 Pac. 784; State v. Moore, 67 Kan. 620, 73 Pac. 905; State v. Clark, 69 Kan. 576, 77 Pac. 287; State v. Woods, 105 Kan. 554, 558, 185 Pac. 21; State v. Cunningham, 120 Kan. 430, 243 Pac. 1006.) The third and fourth instructions were correct and pz-operly given. The tenth instruction relates to circumstantial evidence and the degree of proof required. Under State v. Asbell, 57 Kan. 398, 410, 46 Pac. 770; State v. Pack, 106 Kan. 188, 190, 186 Pac. 742; State v. Ward, 107 Kan. 498, 504, 192 Pac. 836, and State v. Evans, 115 Kan. 538, 541, 224 Pac. 492, the instruction was sufficient. See, also, 16 C. J. 1008 et seq. and 8 R. C. L. 225. The remaining instructions complained of have been examined. Defendant’s objections thereto are based on his version of the facts. We find no error in the instructions.
The sixth specification of error complains that the court did not instruct on all matters of law necessary. No request for instructions was made, the specification itself and the brief do not indicate what further instruction the defendant believes should have been given. No error can be predicated upon omission to give any particular instruction when no request is made. (State v. McDonald, 107 Kan. 568, 571, 193 Pac. 179; State v. Hobl, 108 Kan. 261, 194 Pac. 921; State v. Wilson, 108 Kan. 433, 436, 195 Pac. 618; State v. Sargent, 126 Kan. 200, 268 Pac. 98; State v. Redman, 128 Kan. 712, 280 Pac. 754.)
Complaint was made in the seventh specification on.account of exclusion of testimony. No proper showing on motion for new trial was made, and the matter cannot now be considered. (R. S. 60-3004; State v. Vandruff, 125 Kan. 496, 502, 264 Pac. 1060.)
The eleventh specification of error is based on remarks made by the court to the jury when inquiring as to the state of their deliberations, the claim being made that the court orally instructed the jury, and that the effect of what was said coerced a verdict. After the jury had been out some hours, it was brought into the court room and the court inquired as to its progress, and in the course of dialogue with the foreman stated it was not the policy of the court to force a verdict, that it was the duty of the jury to reach a verdict if they could do so without compromising their own absolute beliefs; that lawsuits were expensive, and inquired as to whether there was any feeling among the jurors, and upon being informed the feeling was good, inquired as to whether the jury was evenly divided, and was advised it was “very much one-sided.” The foreman then stated, “The word 'circumstantial’ has seemed to be our difficult word.” The court then in substance repeated the instruction with respect to degree of proof under circumstantial evidence, and then the court said:
“I think you had better deliberate a little longer. In any case where a jury has deliberated a day and a half and are about equally divided the court never feels like it is of any value to keep the jury out, but where, as you say, it is nearly all one-sided one way or the other — I don’t want to know which way — I don’t want you to tell us — where it is almost overwhelming one way, it seems that maybe a discussion of the facts and due consideration from each juror to the view of the other jurors, you can come to some conclusion.”
As to the claimed oral instruction, appellant cites, among other cases, State v. Stoffel, 48 Kan. 364, 29 Pac. 685, where the court gave further instructions orally after charging the jury, and State v. Bennington, 44 Kan. 583, 25 Pac. 91, where part of the instructions were in writing and part .given orally, taken by the stenographer and later reduced to writing, and City of Atchison v. Jansen, 21 Kan. 560, a civil case where the court did not, upon proper request, instruct in writing as provided by statute, and other cases which for plainly apparent reasons are not controlling here. More to the point is State v. Potter, 15 Kan. 302, wherein, after quoting the statute and reviewing many decisions, Mr. Justice Brewer states:
“Where a juror, propounds a question to the court, it may make a direct answer without reducing the same to writing, provided in so doing it does not make an independent statement of a rule of law; in other words, where the question of the juror is the full statement of the rule, and the answer is no more than an affirmation or denial, such affirmation or denial need not be reduced to writing before it is given. It may be remarked in reference to these propositions, and especially the last, that the purpose of this statute is to secure to the defendant the exact rulings of the court, in order that he may avail himself of any error in those rulings; that it was not intended to cast any unnecessary burdens upon the court, or to hamper and restrict communications between the court and jury; that it should be so construed as fairly to secure that purpose, and not made a mere weapon of technical error; that in reference to answers to questions, as there is nothing to require the questions to be reduced to writing before they are put, it would seem trifling to compel the answer to be so reduced when the answer is simply responsive, and depends for its meaning upon the unwritten question. It seems to us that, tested by this last rule, the oral statement in this case must be held not a violation of the statute, and no ground for reversal.” (p. 320.)
In our view of the matter the claimed oral instruction was only a response to the foreman’s question and was only a statement, using different language, of the written instruction. If any error was made, it was technical; there is no showing it affected the substantial rights of the defendant, and it must be disregarded. (R. S. 62-1718.)
We are not impressed with the argument that the jury was coerced into rendering a verdict. (See State v. Young, 109 Kan. 526, 530, 200 Pac. 285; Alcorn v. Cudahy Packing Co., 125 Kan. 493, 264 Pac. 741.)
The twelfth specification pertains to the qualifications of a juror, the matter being presented on motion for a new trial. After an exhaustive examination the court found against appellant’s contention. In our opinion the court committed no error. (See State v. Snow, 121 Kan. 436, 443, 247 Pac. 437, and cases cited.)
In the thirteenth specification, complaint is made that the state’s attorney made reference to the fact that Neil Jones, a codefendant, did not testify. This is not error. Under the provisions of R. S. 62-1420, he was not incompetent, he was not on trial in the present-action, and is not included in the provision—
“That the neglect or refusal of the person on trial to testify . . . shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case. . . .” (S'ee 16 C. J. 906.)
The fourteenth specification pertains to alleged misconduct by counsel for the state in including in his opening statement that the evidence would show that there were blood spots on defendant’s car, when he knew, and it was later admitted, that the blood spots were not human blood, and would further show that a codefendant sent his clothes to be washed and his car was being washed shortly after the crime was committed. On this point we are not assisted by the briefs. What happened after the statement was made? The witness Walworth testified Neil Jones told him he had blood on his car. The deputy sheriff, called as a witness by the defendant, stated there were spots on Neil’s car, one on the right front seat and others on the right running board, and “I am not smart enough to tell whether they were blood. That is what I thought they were.” After he was cross-examined, the state admitted that, in the opinion of an expert who made an analysis of the blood spots, it was not human blood. As to whether the cars were washed and when, there was dispute in the testimony. The precise question here involved has not been raised in this court. In 16 C. J. 890 appears the following:
“The prosecuting attorney may generally, in opening his case to the jury, fully outline the facts which he expects, -and which it is competent for him to prove; and, although he states facts which are not followed by proof because the facts themselves are irrelevant, or because he fails to introduce any evidence or introduces incompetent evidence to support them, his statement is not error, if he acts in good faith and with reasonable grounds for supposing that he can prove the facts as stated, especially where they relate to the transaction or act directly, resulting in the consummation of the crime.”
Perhaps counsel went too far in leaving out the word “human” in his statement, thus being open to the charge that he was deceiving the court and jury, for it must be assumed that he knew of the expert’s opinion when he made the statement, but we are not prepared to say that the making of the statement is reversible error. There is no showing that defendant asked the court to instruct the jury to disregard the remarks made, as he should have done if he wanted the question reviewed. (State v. Vandruff, 125 Kan. 496, 264 Pac. 1060, and cases cited.) There is no showing of any kind that the statement affected the substantial rights of the defendant, and we are compelled to disregard the error, if any. (R. S. 62-1718.)
The second and fourth specifications with reference to the court’s remarks and examination of jurors have been examined, and found not to be substantial.
The remaining specifications, pertaining to motion for new trial, that the verdict was given under the influence of passion and prejudice, and that the verdict is contrary to law and the evidence, are without merit.
The judgment of the lower court is affirmed. | [
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Per Cv/riam:
1. The requisite figures of the latest school census ought to be available from the reports of the school district clerk or in the files of the county superintendent of public instruction; and where these are wanting, the district school board has authority to make such a census to determine the number of pupils on which the computation may be made pursuant to the last proviso in section 12 of house bill No. 666.
2. Where the levy of 6 mills will not raise sufficient money to run the school the proviso of section 12 may be invoked if it will raise a larger sum; but in no event can the 6-mill levy be augmented by using the power granted by the proviso as an addition to such 6-mill levy.
3. If either the 6-mill levy or a levy under the proviso of section 12 will not raise sufficient money to run the school, the amount may be increased by 25 per cent under the provisions of section 20. | [
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The opinion of the court was delivered by
Abbott, J.:
Wichita Eagle and Beacon Publishing Company, Inc. (Wichita Eagle) and Robert Short, a reporter with Wichita Eagle, sought an order and judgment in mandamus to compel Charles Simmons, Secretary of Corrections for the State of Kansas, to provide them with access to and/or copies of correctional records, including documents which would identify releasees who were charged with murder or manslaughter from 1996 through 1999, under the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. The district court determined that supervision history records were privileged pursuant to K.S.A. 22-3711 and K.S.A. 45-221(a)(20) and that the work product doctrine would exempt documents and other tangible things prepared in anticipation of litigation from disclosure under KORA. In addition, the district court found that production of the records would be contrary to the public policy encouraging self-critical analysis and that redaction of the remaining information by the Secretary of Corrections would leave litde to be disclosed. The district court stated that Wichita Eagle and Short could glean the remaining information from alternate and more appropriate sources.
Short wrote to Bill Miskell at the Kansas Department of Corrections on September 7,1999, pursuant to KORA, and requested a list of the crimes reviewed by serious incident review boards during the previous 3 years. Short also requested the name of each inmate who committed a crime subject to review of serious incident review boards, and the date, location, and nature of the crime.
The Department of Corrections’ internal documents define a “serious incident” as “[a]n event, situation, or occurrence which the Serious Incident Review Board Executive Committee considers will expose the Department to liability, or which in the judgment of the Secretary either has the potential to bring public exit icism to the Department or constitutes possible grounds for disciplinary action . . . .”
Timothy Madden, Chief Legal Counsel for the Department of Corrections, sent a written denial of the request on September 10, 1999. Madden wrote:
“The requested correctional records are not records open to the public under K.S.A. 45-221(a)(29). While limited information pertaining to an identifiable inmate or releasee is to be provided from correctional records, your request does not identify either a specific inmate or specific released offender. Nor do you request information concerning specific inmates or released offenders. Rather, your request seeks confidential information concerning the Serious Incident Review Board and its working documents, materials and records.
“The Serious Incident Review Board is convened at the direction and under the supervision of the Chief Legal Counsel or his designee to review all serious incidents and prepare a report of findings for the Chief Legal Counsel. Any report to the Secretary of Corrections concerning the findings of the Board, or any recommendations to the Secretary, are intended to be strictly confidential [and] ... are privileged under the rules of evidence and protected from disclosure under K.S.A. 45-221(a)(2), and as additionally provided by K.S.A. 60-426 (lawyer-client privilege), K.S.A. 60-451 (subsequent remedial measures), and K.S.A. 60-226(b)(l) (in anticipation of litigation).”
Madden also noted that K.S.A. 22-3711 expressly prohibited the release of certain confidential parole records, including parole supervision history, to anyone. He wrote that “[t]he Performance Audit Report contains information which, when combined with the information you have requested, will directly or indirectly enable anyone to easily discern the supervision history of identifiable offenders in violation of state law.”
On September 13, 1999, Short sent another letter to Miskell requesting the names of persons charged with murder while under the supervision of the parole office of the Department of Corrections from May 1, 1996, to June 31, 1999.
Madden reaffirmed his denial of Short’s first request for documents in a letter dated September 16,1999, stating that the “Open Records Act simply does not allow disclosure of the information you seek in this request.” Madden reiterated that the Department of Corrections was authorized to release the name, photograph, identifying information, disciplinary record, supervision violations, and location of parole office, etc., for specific individuals identified in connection with Short’s second request.
The Secretary of Corrections furnished Short with copies of “a considerable volume of documents” containing information concerning parolees who were convicted of crimes committed from 1996 through 1999. The Secretary of Corrections also provided a copy of a policy and procedure document discussing serious incident review boards.
The Secretary of Corrections refused, however, to provide documents related to the efforts of individual serious incident review boards, or documents identifying or discussing incidents where parolees were charged with murder or manslaughter from 1996 through 1999 whose cases were not yet adjudicated. The Secretary of Corrections also refused to furnish redacted copies of records pursuant to K.S.A. 45-221(d).
On November 12,1999, Wichita Eagle and Short filed a petition in the District Court of Shawnee County, Kansas, requesting that the court grant an order in mandamus compelling the Secretary of Corrections to grant access to or copies of all nonexempt public records identified in their prior requests. The petition contained paragraphs outlining the reasons why Wichita Eagle and Short sought the release of the requested documents:
“8. Parole officers employed by the DOC are responsible for the supervision of former inmates of correctional institutions who are released on parole, conditional release or postrelease supervision status. K.S.A.75-5214 and 75-5216.
“9. It is contemplated that former inmates will be assigned, at the time of their release, ‘to the appropriate level of supervision,’ pursuant to criteria for which defendant is responsible. K.S.A. 1998 Supp. 22-3717(k).
“10. Thereafter, parole officers are expected to:
. . . keep informed of the conduct and condition of a parolee or an inmate on postrelease supervision and use all suitable methods to aid, encourage and bring about improvement in the conduct and condition of such parolee or inmate or postrelease supervision.
(K.S.A. 75-5216).
“12. A performance audit of the DOC’s procedures in supervising parolees and individuals on postrelease supervision status was recently undertaken by Legislative Division of Post Audit, an arm of the Kansas Legislature.
“13. The audit report, released in August, 1999, cited a number of categories in which the DOC is doing its job well. The report also included several disturbing findings, including the following:
-half the parole officers and supervisors surveyed felt the ‘grid’ used by the DOC to guide parole officers in deciding what sanctions to impose for serious parole violations was not adequate to protect the public from harm;
-few parole officers are meeting all of the DOC’s requirements for supervision parolees; and
-in a review of incidents involving 28 parolees who were charged with serious crimes while on parole during die past three years (22 murders, four rapes, kidnapping, arson and other offenses), the parole officers had failed to follow the sanctioning grid 42 percent of tire time.
“14. With respect to the 28 parolees charged with serious crimes while on parole, the report further stated that:
Six of these parolees hadn’t violated any of their parole conditions before committing new crimes. They’d either complied with all their parole requirements or were arrested and charged soon after being released . . .
For the remaining 22 parolees, we identified 43 incidents where they’d violated the conditions of their parole before committing the new crimes, and sanctions should have been imposed on them.
“15. The report identifies shortcomings in the performance of the parole officers involved in most of the 22 cases summarized above, including failures by the parole officers involved to carry out all of their supervisory responsibilities; failures to issue arrest warrants quickly when parolees failed to report or absconded, or could not be located; failures of timely communication between different offices and officers; failures involving parolees who ‘fell through the cracks’ because of confusion over who would supervise them; and, in some cases, failures to properly assess tire parolee’s ‘risk level’ or substance abuse history.”
Following a brief period of discovery, both parties to the litigation filed motions for summaiy judgment. In its decision, the district court found tire following facts to be uncontroverted:
“1. Defendant is the duly-appointed Secretary of Corrections for the State of Kansas and the chief executive officer of the Kansas Department of Corrections (“DOC”).
“2. The DOC is a ‘public agency’ within tire meaning of K.S.A. 45-217(e)(l).
“3. On September 7 and 13, 1999 and on October 11, 1999, plaintiffs made written requests for access to certain records of the DOC.
“4. The records identified in Plaintiffs’ request for access included tire following:
documents which identify by name all inmates, parolees and/or others supervised by the DOC who have been charged with murder or manslaugh ter during 1996, 1997, 1998, and 1999;
documents containing details regarding the crimes of which these individuals have been accused;
minutes of the meetings of any serious incident review board in which the crimes or alleged crimes of these individuals are discussed;
notes, decisions, reports, and/or documents reflecting decisions or actions taken by any of the serious incident review boards which have considered the above-referenced crimes and parolees;
documents which identify the members of serious incident review boards during 1996,1997,1998, 1999; and
documents which discuss the purpose of the serious incident review boards, how its members are selected and compensated, etc.
“5. The DOC has disclosed to Plaintiffs a copy of the Kansas Department of Corrections Internal Management Policy and Procedure 12-118, Security and Control: Serious Incident Review Board Actions Pending and Subsequent to Incident Reviews, detailing the purpose of the serious incident review board, how often it meets, and how its members are selected.
“6. A ‘serious incident’ is an event, situation, or occurrence which, in the judgment of the DOC review committee, will expose the DOC to liability. It may also be an event, situation, or occurrence which in the judgment of the Secretary of Corrections either has the potential to bring public criticism to the DOC or constitutes possible grounds for disciplinary action based on personal conduct detrimental to state service which could cause undue disruption of work or endanger the safety of persons or properly. The review committee is responsible for determining, on a case-by-case basis, whether review of a serious incident by the Serious Incident Review Board is appropriate. The review committee is comprised of the Secretary of Corrections, a Deputy Secretary of Corrections, the Chief Legal Counsel, or their designees.
“7. The DOC maintains a number of files, forms, records, and instruments relative to post-incarceration supervision of offenders in the custody of the Secretary of Corrections. One of these is the parole supervision file. The parole supervision file is comprised of the following documents and information concerning a specific offender: chronological entries; offender report forms; urinalyses test results and information; Permits to Leave State; Third Party Notification Forms; B/I Reports (reduced supervision phone-in reporting); AA/NA attendance slips; pay stubs; Risk and Needs Assessment and Reassessment Coding Forms; Movement and/or Master Records; other Offender Management Information System information; Good Time Award Records; Supervision Plan(s); Restitution Information; and Offender Financial Statement(s). It also contains Violation Report(s); Order(s) to Arrest and Detain; Parole Violation Warrant(s) and NCIC entries; Warrant Withdrawal Form(s); Statement of Charges; Notice of Prehminary Hearing; Summary of Prehminary Hearing; Notice of Revocation Hearing; Transportation Memo(s); Diversion Agreements; Case Reports/Discharge Recommenda tions, Informational Reports, etc.; Acknowledgment of Gun Law, Grievance Procedure, and Informant Policy; and Special Conditions. In addition, it contains Probation and Parole Rules; Interstate Compact Documents; Certificate of Release; Pre-Parole Report; Report of Parole Plan; Reception and Diagnostic Unit, Diagnostic Report and other case material; Certificate of Identification; Case Review; Investigation Requests and Replies; any correspondence concerning offender; law enforcement contact information; letters from citizens; mental health information; substance abuse reports; inquiries regarding child support; any prior parole material; Release of Information forms; and information concerning the offender s victims(s). It may also contain U.S. Department of Justice, Federal Bureau of Investigation, and Kansas Bureau of Investigation ‘rap sheets.’
“8. The DOC has denied to grant Plaintiffs access to all the documents for which plaintiffs had made written request.”
The Secretary of Corrections asserted that the district court did not have jurisdiction over the records because the requested records were not “public records” within the definition of KORA. In a memorandum decision and order dated February 7, 2001, the district court found it had jurisdiction in that the records sought by Wichita Eagle and Short were public records within the scope of KORA.
The district court wrote in its first memorandum decision and order that although the Secretary of Corrections had identified information that could be found in an offender’s parole information file, “the Court is still unable to determine if all the information sought by Plaintiffs falls within an exemption to disclosure under KORA.” Instead of ruling that the Secretary of Corrections had failed to meet its burden of proving that its documents qualified for an exemption to disclosure under KORA, however, the court decided to conduct an in-camera inspection of five sample records pursuant to K.S.A. 45-222(b).
After reviewing a sample of the requested records in camera, the district court released its findings of fact and conclusions of law in a second memorandum decision and order dated April 10, 2001. First, in regard to Wichita Eagle and Short’s request for documents identifying members of the serious incident review boards from 1996-1999, the court found the members’ names were not exempt from disclosure under KORA and removed the order for protective seal on the Secretary of Corrections’ response to an interrogatory naming the individuals.
Next, the district court determined that “most of the requested records are ‘supervision history.’ ” The Secretary of Corrections had asserted that it could not release the requested records under K.S.A. 22-3711. The district court found a “direct conflict” between K.S.A. 45-221(a)(29), the open records provision pertaining to correctional records, and K.S.A. 22-3711, a provision mandating that certain correctional records, including the supervision history of an inmate, shall not be disclosed. The court wrote:
“KORA, was passed by the legislature ‘to insure public confidence in government by increasing the access of the public to government and its decision-making processes. This increases the accountability of governmental bodies and deters official misconduct.’ [Citation omitted.] However, here, the Court is presented with a separate statutory provision specifically disallowing ‘supervision history’ from being disclosed. Therefore, rather than release the information the legislature specifically enacted a provision to protect, the Court will find in favor of exempting records that constitute ‘supervision history’ from disclosure. Once the information has been released to the public it cannot be undone and the privilege will have been violated. Consequently, the Court finds this to be the most appropriate result under current Kansas law.”
The district court also considered the Department of Corrections’ claim that the serious incident review board’s report to the Secretary of Corrections was prepared in anticipation of litigation and should be held strictly confidential “to encourage constructive self-criticism.” The district court wrote:
“Despite the Court’s inclination to liberally grant parties access to public records under KORA, the Court also recognizes that in this situation there is a strong public policy reason for denying disclosures of the requested records. The DOC conducts the serious incident review boards as a form of self-evaluation, facilitating ongoing self-analysis and improvement. Disclosure of the information recorded in these sessions would almost certainly discourage the DOC from conducting such self-evaluation, thus a direct benefit arises from denying access to [Wichita Eagle and Short].”
The district court also found that KORA provision K.S.A. 45-221(a)(20) specifically exempts “[n]otes, . . . recommendations or other records in which opinions are expressed or policies or actions are proposed.” Therefore, the court found that “the notes and recommendations that were formulated by the serious incident review board are not discoverable under KORA.”
Moreover, the district court determined that despite its determination that KORA did not require disclosure of the requested documents, at least one of the documents reviewed in camera supported the application of KORA’s “work product” exemption, K.S.A. 45-221(a)(25).
Wichita Eagle and Short moved for an order to preserve the records inspected in camera and filed a motion to alter or amend judgment pursuant to K.S.A. 60-259(f). The motion raised three grounds for altering or amending the judgment. First, Wichita Eagle and Short asserted that the district court failed to apply the fundamental rule of statutory construction that a specific statute controls a more general statute when it determined that K.S.A. 22-3711 prevailed over KORA (K.S.A. 45-221(a)(29)[A]). Second, Wichita Eagle and Short argued that the district court failed to determine whether their record requests described any other public records of a character other than those submitted for in-camera review. Third, Wichita Eagle and Short argued that the district court should order the Secretary of Corrections to furnish them with redacted copies of the requested records pursuant to K.S.A. 45-221(d).
In its memorandum decision and order dated May 23,2001, the district court addressed Wichita Eagle and Short’s motion to alter or amend judgment. Observing that although it agreed K.S.A. 45-221(a)(29)(A) contained more detailed language than K.S.A. 22-3711, the district court found K.S.A. 22-3711 would have “little, if any, remaining effect” if it enforced the more specific KORA statute. The court adhered to its earlier determination and wrote:
“[Wichita and Eagle and Short] are not entitled to the disclosure of the names of inmates, parolees and/or others supervised by the DOC who have been charged with murder or manslaughter during the period from 1996-1999. The April 10, 2001 Memorandum Decision and Order stated that denial of access was based upon the ‘supervision history’ privilege of K.S.A. 22-3711. Upon reconsidering this issue, the Court finds that Defendant is still not required to disclose the names, for an alternative reason. As is stated in more detail below, the information is more appropriately available to [Wichita Eagle and Short] through other sources.”
Second, the district court found that since it had required that the documents submitted for in-camera review “accurately represent all documents for which [Wichita Eagle and Short] are seeking disclosure,” there was no need for it to determine whether other public records existed that would be responsive to the KORA request.
Finally, the district court found the majority of the information requested constituted “supervision history,” and, of the information remaining, “there [were] alternative and more appropriate means by which [Wichita Eagle and Short] may obtain this information.” The court hinted that arrest records from police and charging documents from district courts could be cross checked for names of individual parolees and that those names then could be used to obtain the requested information from the Department of Corrections.
The district court wrote that the memorandum and order “shall serve as the Order of the Court, no further journal entry being required.”
On June 18, 2001, Wichita Eagle and Short timely appeals all adverse judgments, orders, and decrees of the district court, framing three legal challenges. The Secretary of Corrections raises two issues on cross-appeal. The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.
I. SUBJECT MATTER JURISDICTION
On cross-appeal, the Secretary of Corrections raises the issue of whether the district court erred in failing to dismiss the mandamus petition for lack of subject matter jurisdiction.
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
“The legislature has provided that each county shall have a district court of record which shall have general original jurisdiction of all matters both civil and criminal, unless otherwise provided by law. K.S.A. 20-301.
“. . . Subject matter jurisdiction is the power of the court to hear and decide a particular type of action. [Citation omitted.]” State v. Hall, 246 Kan. 728, 757, 793 P.2d 737 (1990).
KORA confers jurisdiction on the district court of any county where public records are situated. “The district court of any county in which public records are located shall have jurisdiction to enforce the purposes of this act with respect to such records, by injunction, mandamus or other appropriate order . . . .” K.S.A. 45-222(a).
The Secretary of Corrections maintains that he consistently denied the district court had jurisdiction because the Department of Corrections does not maintain in its possession a centralized file or record containing a list of identifiable offenders who have been charged with manslaughter.
Wichita Eagle and Short contend that while the Secretary of Corrections now challenges the subject matter jurisdiction based on the alleged location of the public records, this was not argued before the district court below. In addition, they assert there is nothing in KORA requiring a requesting party to prove each document requested from a public agency is located in a particular county. Wichita Eagle and Short maintain that such a requirement would place an impossible burden on requesting parties.
In his motions to dismiss and alternative motions for summary judgment and in his response to Wichita Eagle and Short’s motion for summary judgment, the Secretary of Corrections expressly reserved the affirmative defenses of lack of subject matter and personal jurisdiction. However, in his memorandum in support of the motion to dismiss, the Secretary of Corrections made no argument concerning subject matter jurisdiction. Further, the Secretary of Corrections’ memorandum supporting his summary judgment motion and response to Wichita Eagle’s summary judgment motion contain subject matter jurisdiction arguments based solely on the statutory definition of “public record.” The Secretary of Corrections did not contend in any of the motions or memoranda that the records were not located in Shawnee County, the county where the mandamus action was filed.
The district court’s February 7, 2001, memorandum decision and order states that the Secretary of Corrections’ jurisdictional argument centered on the contention that the requested records were not “public records” within the definition of KORA. There, the district court found it had jurisdiction in that the documents sought by Wichita Eagle and Short were “public records.” The decision contains no mention of any jurisdictional argument by the Secretary of Corrections that a list of offenders charged with manslaughter was not located in Shawnee County.
These facts support Wichita Eagle and Short’s contention that the Secretary of Corrections’ jurisdiction argument on appeal was not raised or considered below. However, the question of jurisdiction may be raised for the first time on appeal.
“An appellate court has the duty to question jurisdiction on its own initiative. If the record shows a lack of jurisdiction for the appeal, the appeal must be dismissed. [Citation omitted.]” State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). “An objection based on lack of subject matter jurisdiction may be raised at any time, whether it be for the first time on appeal or even upon the appellate court’s own motion. [Citation omitted.]” Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999).
In Altevogt v. Youthfriends, 29 Kan. App. 2d 473, 27 P.3d 947 (2001), Altevogt appealed the dismissal of his action in mandamus after the district court concluded that it did not have jurisdiction under KORA to compel production of documents. Both defendants were Missouri corporations with their offices in Kansas City, Missouri. The records sought by Altevogt were not and had never been maintained in Wyandotte County, Kansas. Despite recognizing that K.S.A. 45-222(a) should be construed liberally, the Court of Appeals stated that tire statute “conferr[ed] subject matter jurisdiction only if the public records are located within the county where compliance with the [KORA] is pursued.” 29 Kan. App. 2d 473, Syl.
The facts of Altevogt differ widely from those here. Here, many of the public records requested by Wichita Eagle and Short were produced by the Department of Corrections from its offices in Shawnee County, Kansas. The Department of Corrections furnished Short with copies of “a considerable volume of documents” prior to suit containing information concerning parolees who were charged and convicted of crimes committed from 1996 through 1999. Therefore, it is apparent that the public records requested were, in fact, located in Shawnee County.
K.S.A. 45-222(a) confers jurisdiction on the district court of any county where public records are situated. We read K.S.A. 45-222(a) to confer subject matter jurisdiction on the district court of a county when a requesting party seeks to compel production of public records if any of the requested public records maintained by the agency are located within the boundaries of that county. We find no provision in KORA requiring a requesting party to prove that each and every requested public record is located within the county in order to establish subject matter jurisdiction. Placing such a burden of proof on the requesting party would create an impracticable and unworkable scheme.
Because many of the records requested here were, in fact, located at the Department of Corrections’ offices in Shawnee County, we find that the Shawnee County District Court had proper subject matter jurisdiction over this suit and the Department of Corrections must turn over all nonexempt records located or available in Shawnee County.
II. K.S.A. 45-221(a)(29)
Wichita Eagle and Short contend that the district court erred in holding that the public records in issue were not subject to disclosure under K.S.A. 45-221(a)(29). We also note that Wichita Eagle and Short have requested this court to conduct an in-camera inspection of the records reviewed by the district court in order to assure a more meaningful review.
At our request, the records were furnished to this court after oral argument. Unfortunately, we do not have comments by the Department of Corrections as to which particular documents should and should not be disclosed, and, of course, the Wichita Eagle and Short have had no opportunity to discuss the records because they have not even seen them. This leaves us in possession of sample records with no indication of the particular privilege claimed or challenged. As a result, they are largely of little use to this court.
“The manner in which a particular exemption under the Act is to be applied is a question of law over which we have unlimited review. The burden of proving the applicability of an exemption is on the public entity opposing disclosure.” Cypress Media, Inc., 268 Kan. at 417.
1. Remaining public records at issue.
In its second memorandum decision and order, the district court described the public records sought by Wichita Eagle and Short. Part of the requested records or information was given to Wichita Eagle and Short when the district court unsealed answers to interrogatories identifying members of the serious incident review boards from 1996-1999. In addition, the Department of Corrections had previously disclosed a copy of the Kansas Department of Corrections Internal Management Policy and Procedure 12-118, Security and Control: Serious Incident Review Board Actions Pending and Subsequent to Incident Reviews, detailing the purpose of the serious incident review board, how often it meets, and how its members are selected.
The Secretary of Corrections has complied with Wichita Eagle and Short’s KORA request for documents which identify the members of serious incident review boards from 1996 through 1999 and documents which discuss the purpose of the serious incident review boards. Therefore, the public records requested by Wichita Eagle and Short that remain at issue are:
(1) documents which identify by name all inmates, parolees and/ or others supervised by the Department of Corrections who have been charged with murder or manslaughter during 1996, 1997, 1998, and 1999;
(2) documents containing details regarding the crimes of which these individuals-have been accused;
(3) minutes of the meetings of any serious incident review board in which the crimes or alleged crimes of these individuals are discussed; and
(4) notes, decisions, reports, and/or documents reflecting decisions or actions tafeen by any of the serious incident review boards which have considered the above-referenced crimes and parolees.
We take note that under KORA, a public record is “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency . . . K.S.A. 45-217(f)(l). Thus, any nonexempt document, computer file, or tape recording in the possession of the Department of Corrections is subject to public disclosure under KORA.
2. Supervision histoiy.
The district court found that most of the sample records provided by the Secretary of Corrections for the in-camera review consisted of “supervision history,” and stated that the records “contained summaries of contacts with parolees, detailed recording logs of contacts with parolees, and impressions of parole officers that were formed during contacts with parolees.” The district court interpreted the term “supervision history” to mean “the record maintained in the supervision of an individual.”
Wichita Eagle and Short accept the district court’s definition of supervision history as appropriate, but challenge the court’s ultimate conclusions. The Secretary of Corrections did not directly cross-appeal the district court’s stated definition of supervision history, but argues that this court should defer to the agency’s interpretation of that term.
Our search of statutory authority and the Kansas Administrative Regulations reveals no definition for the term “supervision history.” In his brief, the Secretary of Corrections does not refer to any agency regulations defining supervision history. We assume that the Secretary of Corrections is referring to tire affidavits of Chris Rieger, parole services manager, and himself, offering the following definitions:
“7. In my training and experience, supervision history consists of the parole officer’s collected personal observations, sensitive personal information about the offender and third parties, as well as a record of the events, conduct, and circumstances arising during tire course of an offender’s supervision. Supervision histoiy is KDOC’s record of events and details about the conduct and condition over time of an identifiable offender on parole, conditional release, or postrelease supervision. It is the supervising parole officer’s documentation of contacts, conversations, observations, investigations, interventions and outcomes concerning a particular offender. In my experience, supervision history includes details of criminal charges against an identifiable offender which have yet to be adjudicated.”
“6. ‘Supervision history’ is a term of art used by the department to describe the parole officer’s collected personal observations, sensitive personal information about the offender and third parties, as well as a record of the events, conduct, and circumstances arising during the course of an offender’s supervision. ‘Supervision history’ is KDOC’s record of events and details about the conduct and condition over time of an identifiable offender on parole, conditional release, or postrelease supervision which is required to be kept by statute. It is the supervising parole officer’s documentation of contacts, conversations, observations, investigations, interventions and outcomes concerning a particular offender. In my experience, ‘supervision history’ includes information of criminal charges or investigations involving or allegedly involving [sic] against an identifiable offender which have yet to be adjudicated.”
“Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited.” CPI Qualified Plan Consultants, Inc., Delaware v. Kansas Dept. of Human Resources, 272 Kan. 1288, Syl. ¶ 3, 38 P.3d 666 (2002).
K.S.A. 22-3711 states:
“The presentence report, the preparóle report, the pre-postrelease supervision report and the supervision histoiy, obtained in the discharge of official duty by any member or employee of the Kansas parole board or any employee of the department of corrections, shall be privileged and shall not be disclosed directly or indirectly to anyone other than the parole board, the judge, the attorney general or others entitled to receive the information, except that the parole board, secretary of corrections or court may permit the inspection of the report or parts of it by the defendant, inmate, defendant’s or inmate’s attorney or other person having a proper interest in it, whenever the best interest or welfare of a particular defendant or inmate makes the action desirable or helpful.” (Emphasis added.)
Because the statute refers to the supervision histoiy as something that is “obtained” by a member or employee of the Kansas Parole Board or Department of Corrections, we believe the correct interpretation of “supervision histoiy” refers to personal notes of the parole officer and excludes those records generated by other members or employees of the parole board or Department of Corrections. Furthermore, even though both affidavits attempt to include criminal charges filed but not yet adjudicated within the definition of supervision histoiy, the inclusion of pending criminal charges would blur any distinction between supervision history and criminal investigation records or court records. See K.S.A. 45-217(b) (excluding court records from the definition of “criminal investigation records”). Criminal charges are generally filed in a complaint, which is a public record.
Although K.S.A. 22-4707 restricts the dissemination of criminal history record information and certain arrest records, a' public agency may disclose court records, information concerning an arrest, or the status of a pending investigation. See Stephens v. Van Arsdale, 227 Kan. 676, 684-85, 608 P.2d 972 (1980); Att’y Gen. Op. No. 98-38.
“Notwithstanding the provisions of the preceding section, a criminal justice agency may disclose the status of a pending investigation of a named person or the status of a pending proceeding in the criminal justice system, if the request for information is reasonably contemporaneous with the event to which the information relates and the disclosure is otherwise appropriate.” K.S.A. 22-4708.
Therefore, we find that the term “supervision history” in K.S.A. 22-3711 means the supervising parole officer s documentation of collected personal observations, sensitive personal information about the offender and third parties, contacts, conversations, observations, investigations, and interventions concerning a particular offender. Information concerning pending criminal charges filed against an individual not yet adjudicated is not included in the term supervision history.
Although the district court stated that most of the sample records provided by the Secretary of Corrections for the in-camera review consisted of supervision history, based on our definition of that statutory term and based the other findings of the district court, we conclude that the Department of Corrections maintains records other than supervision history that would be responsive to Wichita Eagle and Short’s KORA request.
The district court found that the Department of Corrections “maintains a number of files, forms, records, and instruments relative to post-incarceration supervision of offenders in the custody of the Secretary of Corrections. One of these is the parole supervision file.” Our review of the list of documents found by the district court to be contained in the parole supervision file convinces us that the Department of Corrections is in the possession of public records falling outside our definition of supervision history.
In addition, in its initial correspondence to Wichita Eagle and Short, the Department of Corrections admitted that it maintained many of the public records requested, but stated and reiterated that Wichita Eagle and Short would only be entitled to the information if the requests were submitted using the specific names of inmates or parolees. This is a strong indicator that responsive documents are maintained by the Department of Corrections. Significantly, we find no legal authority supporting the Department of Corrections’ assertion that KORA requests must be made using the specific names of individuals.
For the reasons discussed, the district court erred in determining that no records maintained by the Department of Corrections would be responsive to Wichita Eagle and Short’s KORA request.
3. District court’s findings of exemptions, privileges, and policy.
The district court determined that the Department of Correction’s supervision history records were privileged pursuant to K.S.A. 22-3711 and K.S.A. 45-221(a)(20), and that the work product doctrine of K.S.A. 2001 Supp. 60-226(b)(3) provided a privilege for documents and tangible things prepared in anticipation of litigation. In addition, the district court found that production of the records would be contrary to the public policy encouraging self-critical analysis. The district court stated that redaction of the remaining information by the Secretary of Corrections would leave little to be disclosed and that Wichita Eagle and Short could glean the remaining information from alternate and more appropriate sources. We will consider each of these privileges in turn.
4. K.S.A. 22-3711 and K.S.A. 45-221(a)(29).
Wichita Eagle and Short contend that the district court erred in holding that the public records in issue were not subject to disclosure under K.S.A. 45-221(a)(29), a provision of KORA. The district court’s decision to grant partial summary judgment to the Secretary of Corrections appears to be predicated on its legal interpretation of various statutes.
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
The essential facts of this case are not disputed by the parties. Wichita Eagle and Short challenge the district court’s legal interpretation of KORA and other statutes, however.
“It is a fundamental rule of statutory constructions, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, tire court must give effect to tire intention of the legislature as. expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts 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. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
The provisions of KORA are found in K.S.A. 45-215 et seq.
“[KORA] was originally enacted in 1983 to be effective January 1,1984. See K.S.A. 1983 Supp. 45-205 et seq. However, due to a technical error in its enactment, the act was repealed and the sections reenacted, effective February 9, 1984. See K.S.A. 45-215 et seq.
“The KORA represented a significant departure from the previous law, the Kansas Public Records Inspection Act (KPRIA), K.S.A. 45-201 through 204 (Ensley 1981) (repealed 1983). [Citation omitted.] The old law mandated that only those records ‘required to be kept and maintained’ by a specific statute be open for inspection for the public. K.S.A. 45-201(a) (Ensley 1981). Since specific statutes required only a small number of records be kept and maintained, only a small number had to be open to public scrutiny. [Citation omitted.] The KORA, on the other hand, declares it to be the public policy of this state that public records shall be open for inspection by any person unless othemise provided by the act. K.S.A. 45-216. ‘Public record’ is defined to mean ‘any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency.’ K.S.A. 45-217(f)(l). The act further provides that it should be liberally construed and applied to promote the stated public policy.
“K.S.A. 45-221(a) sets out in some detail thirty-five categories of records which public agencies are not required to disclose. Thus, the act does not prohibit disclosure of records contained within these exceptions, but rather makes their release discretionaiy with the official records custodian.” (Emphasis added.) Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 63-64, 734 P.2d 1083 (1987).
“ ‘The public policy stated in KORA is that all records are “open for inspection by any person unless otherwise provided by this act.” ’ ” Cypress Media, Inc., 268 Kan. at 416. By statutory decree, we are to liberally construe and apply KORA to promote a policy of open inspection of public records.
Our analysis of the district court’s decision begins with a review of the pertinent categories of records listed in KORA that may be, but are not required to be, released at the discretion of the records custodian. First, a public agency is not required to release
“[r]ecords the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court or the disclosure of which is prohibited or restricted pursuant to specific authorization of federal law, state statute or rule of the Kansas supreme court to restrict or prohibit disclosure.” K.S.A. 45-221(a)(l).
Under KORA, a public agency may, but is not required to release
“[c]orrectional records pertaining to án identifiable inmate or release, except that:
“(A) The name; photograph and other identifying information; sentence data; parole eligibilily date; custody or supervision level; disciplinary record; supervision violations; condifions of supervision; excluding requirements pertaining to mental health or substance abuse counseling; location of facility where incarcerated or location of parole office maintaining supervision and address of a releasee whose crime was committed after the effective date of this act shall be subject to disclosure to any person other than another inmate or releasee . . . .” (Emphasis added.) K.S.A. 45-221(a)(29).
As discussed above, K.S.A. 22-3711 mandates that members and employees of the parole board and Department of Corrections shall not disclose “[t]he presentence report, the preparóle report, the pre-postrelease supervision report and the supervision history . . . .” (Emphasis added.)
The district court found a “direct conflict” between K.S.A. 45-221(a)(29) and K.S.A. 22-3711. Applying the definition of super vision history discussed above, however, it is possible to harmonize the two statutes.
While K.S.A. 45-221(a)(29) mandates that a releasee’s “name; photograph and other identifying information; sentence data; parole eligibility date; custody or supervision level; disciplinary record; supervision violations; conditions of supervision . . .; location of facility where incarcerated or location of parole office maintaining supervision and address . . . shall be subject to disclosure,” K.S.A. 22-3711 restricts disclosure of the supervising parole officer’s personal observations, sensitive personal information about the offender and third parties, contacts, conversations, observations, investigations, and interventions concerning a particular offender. Information concerning pending criminal charges filed against a supervised individual is subject to disclosure, while information concerning parole requirements for mental health or substance abuse counseling is not subject to disclosure.
5. K.S.A. 45-221(a)(20).
Next, we consider the district court’s determination that “the notes and recommendations that were formulated by the serious incident review board [were] not discoverable under KORA,” pursuant to K.S.A. 45-221(a)(20). Under K.S.A. 45-221(a)(20), a public agency may, but is not required to, release
“[n]otes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting.” K.S.A. 45-221(a)(20).
This KORA exemption is self-explanatory. Department of Correction records expressing opinions or containing proposed policies or actions need not be disclosed, unless such records have been publicly cited or identified in an open meeting or an agenda of an open meeting.
Here, Wichita Eagle and Short requested access to minutes of the meetings of serious incident review boards discussing the crimes or alleged crimes of supervised individuals and records reflecting decisions or actions taken by any of the serious incident review boards in regard to murders and manslaughters committed by parolees from 1996 through 1999. Significantly, Wichita Eagle and Short are not seeking access to records of proposed policies or actions, but rather are seeking access to records reflecting decisions or actions already taken by the serious incident review boards. K.S.A. 45-221(a)(20) exempts records where “policies or actions are proposed.” The exemption does not extend to records on policies currently in place or actions already taken.
Under K.S.A. 45-221(a)(20), any of the Department of Corrections records consisting of opinions are exempt from disclosure. The record on appeal does not indicate whether any of the requested records to which this KORA exemption might apply were “publicly cited or identified in an open meeting or in an agenda of an open meeting.” If so, the exemption does not apply, and the records should be disclosed.
6. Work product doctrine and K.S.A. 45-221(a)(25).
The district court found that K.S.A. 45-221(a)(25) and the work product doctrine codified in K.S.A. 2001 Supp. 60-226(b) would operate to exempt “at least some” of the records kept by the Department of Corrections from mandatory disclosure. The court found that at least one of the documents it had reviewed in camera contained language supporting the application of the work product doctrine.
Under K.S.A. 45-221(a)(25), a public agency may, but need not, produce “[r]ecords which represent and constitute the work product of an attorney.”
The document in question stated:
“THIS CONFIDENTIAL REPORT HAS BEEN PREPARED UNDER THE DIRECTION AND SUPERVISION OF THE CHIEF LEGAL COUNSEL OR DESIGNEE. THIS SERIOUS INCIDENT REVIEW HAD BEEN CONDUCTED AND PREPARED FOR THE PURPOSE OF ASSISTING THE CHIEF LEGAL COUNSEL IN PROVIDING LEGAL ADVICE TO THE SECRETARY OF CORRECTIONS. THE REPORT IS INTENDED TO REMAIN STRICTLY CONFIDENTIAL PURSUANT TO A SELF-CRITICAL ANALYSIS PRIVILEGE, IN ANTICIPATION OF LITIGATION, AND UNDER A STRONG PUBLIC POLICY INTEREST IN FREE FLOW OF CONSTRUCTIVE SELF-CRITICISM AND CRITICAL SELF-ANALYSIS . . . .”
We presume that the report in question was not prepared by an attorney, but rather was prepared at the request of the chief legal counsel for the Department of Corrections or legal counsel’s designee. If the document was prepared in anticipation of litigation, the district court correctly concluded that the report need not be disclosed under the KORA exemption found in K.S.A. 45-221(a)(25).
Under K.S.A. 45-221(a)(2), “if the records are privileged under rules of evidence and not consented to by the holder of that privilege, disclosure is not required.” Cypress Media, Inc., 268 Kan. at 417. Except where a court has ordered otherwise, the work product doctrine provides that “a party shall not require a deponent to produce, or submit for inspection, any writing prepared by, or under the supervision of, an attorney in preparation for trial.” K.S.A. 2001 Supp. 60-226(b)(l).
The work product rule is not an absolute privilege but rather is a limitation on discovery. Alseike v. Miller, 196 Kan. 547, 557, 412 P.2d 1007 (1966). The work product limitation on discovery may be overcome by a showing of undue hardship. K.S.A. 2001 Supp. 60-226(b)(l).
“ ‘[K.S.A. 60-226(b)] is a codification of the attorney work product limitation on discovery first recognized judicially in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). It limits discovery of documents and tangible things prepared in anticipation of litigation or for trial. It extends the original work product hmitation to documents and tangible things prepared by or for a party’s representative, including not only lawyers but insurers, agents and others. However, such material can be discovered on a showing that the party seeking discovery has a substantial need for the material and cannot without undue hardship obtain the substantial equivalent by other means.’ ” Cypress Media, Inc., 268 Kan. at 426 (quoting 1 Gard and Casad, Kansas C. Civ. Proc. Annot. § 60-226, pp. 187-88 [3d ed. 1997]).
“[W]ork product immunity rests on the idea it is necessaiy to preserve the independence of the lawyer and thus, indirectly, the adversary system.” Alseike, 196 Kan. at 558.
“The policy basis for the work product rule is the need for the lawyer handling a case to have full rein to develop his theory and strategy in the case if the adversary system is to work effectively. To perform this role the lawyer needs to be able to work without fear of disclosure, at least in the earlier stages of preparation. And he needs protection from the possibility that he will be cast in the role of a witness and, even worse, of a witness antagonistic to other witnesses upon whose testimony his client’s case may depend. [Citation omitted.]” 196 Kan. at 557.
In its memorandum decision and order of April 10, 2001, the district court appears to broadly characterize several of the reports requested by Wichita Eagle and Short as work product materials “prepared in the anticipation of litigation.” This deserves some comment.
In Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, cert. denied 525 U.S. 964 (1998), this court found that the discretionary function exception to the Kansas Tort Claims Act applied to protect a parole officer from liability for the criminal acts of a parolee. 265 Kan. at 393. In addition, this court observed that a State actor may not generally be held liable for private misdeeds in a 42 U.S.C. § 1983 (1994) action. 265 Kan. 372, Syl. ¶ 1. There, this court wrote:
“A parole officer does not take charge or exercise control over a parolee so as to create a special relationship between the officer and tire parolee, thereby imposing a duty upon the State to control the conduct of the parolee to prevent harm to other persons or property. The State is not the virtual guarantor of the safety of each and every one of its citizens from illegal and unlawful actions of every parolee or person released from custody under any type or land of supervision.” 265 Kan. 372, Syl-¶ 6.
Because there are few, if any, causes of action that may be entertained successfully against parole officers and the Department of Corrections, the assertion that the document in question was “prepared in anticipation of litigation” appears to lack conviction or certainty.
“The Kansas Open Records Act . . . does not allow an agency unregulated discretionary power to refuse to release information sought by the public. The stated policy of the Act is that all public records are to be open to the public for inspection unless otherwise provided in the Act.” State Dept. of SRS v. Public Employee Relations Roard, 249 Kan. 163, Syl. ¶ 3, 815 P.2d 66 (1991).
While documents prepared specifically at the request or direction of legal counsel in anticipation of litigation need not be disclosed under the KORA exemption found in K.S.A. 45-221(a)(25), the subjective decision to mark records as “prepared in anticipation of civil litigation” should not by itself imbue the records with the protection of this privilege when, in reality, there is no likelihood that litigation will ensue.
The attorney work product doctrine does not offer a per se exemption for all records prepared by or for an attorney. See Cypress Media, Inc., 268 Kan. at 427; Alseike, 196 Kan. at 558. The work product doctrine only applies to those documents and tangible things prepared in anticipation of litigation, and in order for the discovery limitation to apply, there must be a substantial probability that litigation will ensue. See In re Grand Jury Investigation, 599 F.2d 1224, 1229 (3d. Cir. 1979); Home Insurance Co. v. Ballenger Corp., 74 F.R.D. 93, 101 (N.D. Ga. 1977). “ ‘Certainly by implication the . . . rule precludes any idea of extending the work product doctrine to reports or statements, even if written, obtained by the client or his investigators which are not prepared “under the supervision of an attorney in preparation for trial.” [Citation omitted.]’ ” Alseike, 196 Kan. at 558.
“Privileges in the law are not favored because they operate to deny the factfinder access to relevant information.” Adams v. St. Francis Regional Med. Center, 264 Kan. 144, Syl. ¶ 3, 955 P.2d 1169 (1998). We hold that under KORA, where litigation would not reasonably be anticipated under an objective standard, the work product doctrine should not act as a bar to the production of public records.
7. Public policy.
In addition to the other reasons cited for denying access to the records, the district court found that a strong public policy reason existed for denying disclosure of the requested records. The district court went on to state that disclosure of the information would discourage the Department of Corrections from conducting self-critical evaluation.
Wichita Eagle and Short submit on appeal that it is in the public interest to disclose the requested public records and assert that they “have an interest in what the DOC has concluded in terms of its supervision of the murderers while they were on parole and what, if anything, it is doing or has done to guard against similar occurrences in die future.” Wichita Eagle and Short contend that “the so-called privilege of 'self-critical analysis’ (see e.g., Kansas Gas & Electric v. Eye, 246 Kan. 419, 425-27, 789 P.2d 1161 [1990]) appears to have influenced the court in its decision, at least with respect to certain records.”
While we agree that a policy encouraging self-evaluation by the Department of Corrections would be in the public interest, we must balance this interest against the strong public policy set forth by the legislature in KORA. KORA declares that the public policy of this state is “that public records shall be open for inspection by any person unless otherwise provided by this act.” K.S.A. 45-216.
We hold that the public policy recognized by the district court favoring self-analysis and improvement by the Department of Corrections is outweighed in this instance by the public policy set forth by the legislature in KORA. The district court erred in holding otherwise.
III. RECORDS AVAILABLE FROM ALTERNATE SOURCES
Next we consider Wichita Eagle and Short’s contention that the district court committed clear error by finding that the public records requested were “more appropriately available through other sources.”
“Determining whether the district court correctly applied the KORA is a question of law, involving an interpretation of the statute; therefore, this court’s review of the district court’s interpretation is plenary.” Seek v. City of Overland Park, 29 Kan. App. 2d 256, 258, 27 P.3d 919, 922 (2000) (citing Burroughs v. Thomas, 23 Kan. App. 2d 769, 770-71, 937 P.2d 12, rev. denied 262 Kan. 959 [1997]).
Wichita Eagle and Short assert that there is no authority supporting the proposition that a court may decide where requesting parties under KORA should go for information; instead, they maintain that courts must simply enforce the Act. In short, they believe KORA litigation should exclude any analysis of where it is appropriate for a requesting party to turn for information.
In a recent case concerning a KORA request for coroner’s records, our Court of Appeals observed that in ruling which public records are exempt from disclosure, “[c]ourts may only apply and enforce legislation.” Burroughs, 23 Kan. App. 2d at 773 (citing Kansas Human Rights Comm’n v. Topeka Golf Ass’n, 18 Kan. App. 2d 581, 593, 856 P.2d 515 [1993], affd 254 Kan. 767, 869 P.2d 631 [1994]).
K.S.A. 45-218(e) provides that a records custodian
“may refuse to provide access to a public record, or to permit inspection, if a request places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. However, refusal under this subsection must be sustained by preponderance of the evidence.”
Here, the Secretary of Corrections has made no claim of a right to refuse to provide access under K.S.A. 45-218(e).
Another provision of KORA states that “[n]o request shall be returned, delayed or denied because of any technicality unless it is impossible to determine the records to which the requester desires access.” K.S.A. 45-220. Again, no such claim has been made by the Secretaiy of Corrections.
The Kansas Rules of Civil Procedure allow a court to limit discovery methods of parties to litigation where “[t]he discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive.” K.S.A. 2001 Supp. 60-226(b)(2)(A). As discussed above, KORA provides that “[r]ecords which are privileged under rules of evidence [need not be disclosed], unless the holder of the privilege consents to the disclosure.” K.S.A. 45-221(a)(2).
However, K.S.A. 2001 Supp. 60-226(b)(2)(A) does not codify a privilege; rather it allows a district court to limit the frequency and extent of discoveiy methods employed by parties to litigation. Therefore, because this provision is a limitation on civil discoveiy, not a privilege that may be invoked, it cannot be incorporated into the exemption for privileged records under K.S.A. 45-221(a)(2).
We find no other provision or exemption in KORA allowing a public agency to refuse to produce records because such records are available from another or a more “appropriate” source. We find, therefore, that the district court erred in concluding that the Secretaiy of Corrections need not produce the public records requested because they were available through other sources.
IV. REDACTED RECORDS
Next, Wichita Eagle and Short challenge the district court’s conclusion that the Secretary of Corrections need not furnish redacted copies of the requested public records.
The district court’s decision involved the interpretation and application of K.S.A. 45-221(d), the KORA provision directing public agencies to furnish redacted records under certain circumstances. “Interpretation of a statute is a question of law in which appellate review is unlimited.” In re Marriage of Phillips, 272 Kan. 202, Syl. ¶ 1, 32 P.3d 1128 (2001).
K.S.A. 45-221(d) states, in pertinent part: “If a public record contains material which is not subject to disclosure pursuant to this act, the public agency shall separate or delete such material and make available to the requester that material in the public record which is subject to disclosure pursuant to this act.”
Wichita Eagle and Short assert that it is inappropriate for a district court to fail to require a public agency to furnish redacted records because of its perception of inconvenience to the agency that redaction would cause. In support of their position, Wichita Eagle and Short cite Cypress Media, 268 Kan. at 425, which is not directly on point. There, this court held that parties claiming the attorney-client privilege in billing statements bear the burden of estabhshing that it applies. Wichita Eagle and Short maintain that “Cypress Media stands for the proposition that the court cannot simply take counsel at their word as to the nature of the requested public records.”
Here, the district court stated: “Redaction of the information exempt from disclosure under KORA would leave little to be disclosed to Plaintiffs. Of the information left to be disclosed, . . . there are alternative and more appropriate means by which Plaintiffs may obtain this information.”
We find the language of the KORA provision clear and unequivocal. It mandates that a public agency “shall separate or delete such material and make available to the requester that material in the public record which is subject to disclosure pursuant to this act.” (Emphasis added.) K.S.A. 45-221(d). It is the duty of a public agency to make available records containing material disclosure. See Att’y Gen. Op. No. 98-38 (“It is important to remember that under the KORA if a document contains some material which is not subject to disclosure and some material that is subject to disclosure, a public agency is under a duty to make available that material which is subject to disclosure.”). Therefore, we hold that the district court erred in concluding that the Department of Corrections need not furnish redacted records.
V. MOTION FOR SUMMARY JUDGMENT
On cross-appeal, the Secretary of Corrections contends that the district court erred in failing to grant summaiy judgment on Wichita Eagle and Short’s claims in their entirety.
“Under both K.S.A. 60-2103(h) and its predecessor, G.S. 1949, 60-3314, it has been held that a cross-appellee may obtain a review of all rulings adverse to him, interlocutory or otherwise, when such rulings may on remand affect the subsequent course of the proceedings. It is, of course, necessary that a cross-appeal be perfected in order for an appellee to obtain a review of such rulings. [Citations omitted.]” Vaughn v. Murray, 214 Kan. 456, 462, 521 P.2d 262 (1974).
See also Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 483, 484, 988 P.2d 755 (1999) (“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).”).
Here the Secretary of Corrections cross-appealed any and all orders, judgments, and decrees adverse to him. In his brief, the Secretary of Corrections asserts that the district court erred when it failed to consider the effect of Wichita Eagle and Short’s failure to: (1) rebut or controvert the Secretary of Correction’s definition of supervision history; (2) establish that all the requested records were located in Shawnee County, Kansas; or (3) establish that the language used in K.S.A. 22-3711 would not preclude production of redacted copies of records. The Secretary of Corrections argues that under K.S.A. 2001 Supp. 60-256(e), Wichita Eagle and Short’s failure to respond with specific factual support for their claims should have resulted in a grant of summary judgment in his favor.
K.S.A. 2001 Supp. 60-256(e) states, in pertinent part:
‘When a motion for summary judgment is made and supported . . . [with affidavits made on personal knowledge], an adverse party may not rest upon die mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
We note, however, that the district court need not grant summary judgment unless “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Wichita Eagle and Short point out that the district court decided one issue adversely to the Secretary of Corrections, ordering the interrogatory answers to be unsealed, revealing the identities of the members of serious incident review boards. Wichita Eagle and Short contend that the district court could not possibly grant the Secretary of Corrections’ motion for summary judgment in its entirety and believe it is unnecessary for this court to address the issues in the Secretary of Corrections’ brief on cross-appeal.
We agree. The issue of the district court’s order in regard to the interrogatory answers is not challenged in the Secretary of Corrections’ brief. “Where a cross-appellant fails to brief an issue, that issue is deemed waived or abandoned. (Citation omitted.)” Beltz v. Dings, 27 Kan. App. 2d 507, 517, 6 P.3d 424 (2000). The questions raised in the Secretary of Corrections’ brief are related to issues in the parties’ motions for summary judgment that were ultimately decided in favor of the Secretary of Corrections and are, therefore, not properly before this court.
Regardless, the three points argued by the Secretary of Corrections’ cross-appeal all involve the legal interpretation of the KORA and other statutes. We have discussed the legal issues concerning the interpretation of supervision history, the location of the records, and the statute directing the production of redacted public records.
We conclude that the district court did not err when it denied the Secretary of Corrections’ motion for summary judgment in its entirety.
Reversed and remanded with instructions to grant an order in mandamus consistent with this opinion. | [
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The opinion of the court was delivered by
Six, J.:
Paul M. Beasley appeals his convictions and his sentences for aggravated assault and aggravated battery. He argues that (1) the prosecutor s references to his alleged role in robbing the victim violated his right to a fair trial, and (2) the district court’s finding under K.S.A. 2001 Supp. 21-4704a(h) that he used a firearm in the commission of a person felony was made by the district judge by a preponderance of the evidence, thus violating Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Our jurisdiction arises from a transfer to this court on our motion under K.S.A. 20-3018(c).
Neither of Beasley’s arguments is persuasive. We find no error and affirm.
FACTS
On August 13, 2000, Beasley and a group of men went to the home of Jeffrey Jackson. Jackson testified that Beasley and Shone Owens hit him, lacked him, and threatened him with a gun while Terrance Williams and Larry King carried away Jackson’s stereo, television, VCR, and microwave.
Beasley was initially charged with aggravated robbery, aggravated battery, aggravated intimidation of a witness, and aggravated assault. Two of the charges were dropped. Beasley ultimately faced charges of aggravated assault and aggravated battery, both severity level 7 person felonies. He was convicted of both crimes after a jury trial.
Beasley had a criminal history score of I. The district court found that a firearm was used in the commission of the crimes and, under K.S.A. 2001 Supp. 21-4704a(h), imposed two 12-month prison terms, to be served concurrently.
DISCUSSION
Beasley contends that the prosecutor committed misconduct requiring reversal by repeatedly questioning witnesses throughout the trial about his role in robbing Jackson and in mentioning the robbery in closing arguments. Beasley did not object to the questioning or the comments at trial.
“Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial. [Citation omitted.] ... If the claimed error has been determined to implicate a defendant’s right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, the issue will be addressed. [Citation omitted.]” State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000).
This rule applies to alleged misconduct in questioning a witness as well as alleged misconduct in closing argument. State v. Diggs, 272 Kan. 349, 361-62, 34 P.3d 63 (2001).
Beasley was charged with aggravated battery and aggravated assault. He was not tried for the robbery. The facts presented at trial indicated that Williams and King, not Beasley, stole Jackson’s property while Beasley and Owens beat Jackson. The prosecutor, in describing the sequence of events in his opening statement, said Williams and King arrived at Jackson’s home after Beasley had arrived. The prosecutor continued:
“Those people came to the door while Mr. Jackson was being beaten and threatened. Mr. Beasley, the defendant in this case, said, ‘Get the stuff, get his stuff.’ Mr. Williams and Mr. King then took tire stereo that belonged to the victim in this case, and they took his TV set, they took his VCR, and they took his microwave out of the residence and left with those items, put them in the blue vehicle that they had come in, Mr. Williams and Mr. King, and left the area. Ultimately Mr. Owens, Mr. Catlin and Mr. Beasley got back in the Ford Mustang, and they left also.”
The prosecutor asked Jackson, the victim, to describe what had happened. Jackson testified that “somebody” said, “[g]et all that,” referring to Jackson’s personal property. Harold Turner, Jr., testified that Williams and King later asked Turner to hold the stolen property for them. Turner testified that Beasley was present during this conversation. On cross-examination, Turner admitted he was mistaken about Beasley’s presence during the conversation with Williams and King.
On questioning Williams, the prosecutor inquired if Beasley said, “Take the stuff.” Williams said he could not remember. The prosecutor pointed out, using a written statement Williams made to police, that Williams said Beasley told King to “grab all the sh_t.” Williams’ written statement was eventually excluded from evidence because Williams was an unresponsive witness at trial and the evidence in the written report was cumulative.
The prosecutor asked King if Beasley said something about taking Jackson’s property. According to King, Beasley said to “get it.” Undersheriff Roman testified that Jackson’s statement to police included reference to Beasley’s saying, “Take this sh_t.” Under-sheriff Roman also testified that during the course of an interview, Williams said Beasley told Williams and King to take Jackson’s property. Undersheriff Roman also clarified on cross-examination that Beasley was not with Williams and King during their conversation with Turner because Beasley was in police custody at that time.
Beasley testified in his own defense. He stated that he was not the one who told Williams and King to take Jackson’s property. The prosecutor did not follow up on this statement in cross-examination.
The record reveals that the prosecutor s routine questions were nothing more than an attempt to sketch the sequence of events before, during, and after Jackson’s beating. Beasley fails to persuade us that the prosecutor’s questioning of witnesses here was improper or amounted to misconduct.
Beasley also complains of Turner’s misstatement at trial about Beasley’s presence during a conversation in which Williams and King asked Turner to hold the stolen property. This misstatement was corrected on cross-examination of Turner and again during cross-examination of Undersheriff Roman, and it can hardly be attributed to the State.
Next, Beasley argues that the State committed prosecutorial misconduct in closing argument by highlighting Beasley’s role in the uncharged robbery. In closing, the prosecutor devoted two paragraphs to Beasley’s alleged role in the robbery:
“At some point in time, statement’s made, ‘Take all that stuff.’ And who made that statement? According to Mr. King, the roommate of Mr. Beasley, that statement was made by Mr. Beasley, ‘Take this stuff.’ The innocent bystander. There was no plan or scheme involved here, just spontaneously taking stuff. Mr. King and Mr. Williams said, oh, okay. And they start taking die stuff out of the residence. Just spontaneous actions.
“Mr. Beasley, the innocent party here, according to his roommate, is the one that said take the stuff. Mr. Williams, in his initial statement to Mr. Roman, said there was a statement about taking the stuff. The victim, in his initial statement to Mr. Roman, said there was a statement about taking the stuff. He didn’t know who may have said the statement, but he heard it as well. His own roommate said it was him.”
The purpose of the prosecutor’s reference to Beasley’s role in the robbery becomes clear later in the State’s closing argument, when the prosecutor pointed out the differences between the victim’s version of events, Beasley’s version of events, and other witnesses’ testimony. Following the State’s closing, Beasley’s counsel said:
“If there was a plan involved here, some sort of conspiracy, my client would have been charged with that. State must have been satisfied there wasn’t any. Didn’t charge my client witíi theft, stealing that stuff, so evidendy the State feels that, in fact, it was, in reality, an accident, just common circumstance that was not necessarily planned.”
The prosecutor s remarks about Beasley s alleged statement to Williams and King to “get the stuff’ were within the realm of fair comment on the evidence presented at trial. Further, Beasley emphasized in his closing argument that he was not charged with the robbeiy.
Finally, Beasley argues that the prosecutor erred in “repeatedly referring to a statement specifically excluded by the trial court,” referencing Williams’ written statement to police. The State points out that any reference in closing to what Williams told Undersheriff Roman was taken from the trial testimony of Williams and Under-sheriff Roman, not the written report.
Beasley’s arguments that the State committed reversible prosecutorial misconduct lack merit.
The Apprendi Contention
Beasley contends that K.S.A. 2001 Supp. 21-4704a(h) is unconstitutional because the fact he used a firearm in the commission of his crimes must be proven to a jury beyond a reasonable doubt before that fact can be used to impose a prison term rather than probation. Beasley argues that because the district court here made the required firearm finding by a preponderance of the evidence, his sentence violates Apprendi and must be vacated. We disagree.
Beasley’s argument requires interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., and is a question of law subject to unlimited review. State v. Crow, 266 Kan. 690, Syl. ¶ 2, 974 P.2d 100 (1999).
K.S.A. 2001 Supp. 21-4704a(h) provides that offenders who use a firearm in the commission of a felony shall receive presumptive prison sentences. In Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The question becomes whether the district court’s conclusion that Beasley used a firearm in the commission of his crimes, triggering a presumptive prison sentence, increased the penalty for his crimes beyond the statutoiy maximum.
In State v. Carr, 274 Kan. 442, 53 P.3d 843 (2002), we considered whether Apprendi applies to upward dispositional departures under the KSGA. The majority reasoned that “[probation and parole are dispositions alternate to the serving of a sentence, and neither probation nor parole increase or decrease the sentence required to be imposed by statute.” 274 Kan. 442, Syl. ¶ 3. A majority of this court concluded that because imposition of a prison term in a presumptive probation case does not increase tire sentence beyond the statutory maximum, Apprendi does not apply to dispositional departures under K.S.A. 2001 Supp. 21-4716. 274 Kan. 442, Syl. ¶ 5.
We have not considered the question of whether Apprendi applies to K.S.A. 2001 Supp. 21-4704a(h). However, in State v. Garcia (No. 87,691, this day decided), we relied on Carr in holding that Apprendi does not apply to K.S.A. 2001 Supp. 21-4704a(k) (presumptive prison term for gang-related crimes).
The district court here, after finding that Beasley used a handgun to commit the crimes, imposed a presumptive prison term. Following the reasoning of Garcia, the prison term does not exceed the statutory maximum punishment for Beasley s crime, and Apprendi does not apply.
We also note that the jury here found beyond a reasonable doubt that Beasley used a firearm to commit tire aggravated assault. The complaint charged that Beasley “did unlawfully, feloniously, willfully and intentionally place another, to-wit: Jeffrey Jackson in reasonable apprehension of immediate bodily harm, committed with a deadly weapon, to-wit: handgun, contrary to K.S.A. 21-3410(a).” The jury convicted Beasley of aggravated assault after being instructed that it must find, among other things, that “the defendant used a deadly weapon[,] to wit: a handgun.”
Affirmed.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Per Curiam:
Mikel Dreiling appeals his jury convictions of first-degree premeditated murder, conspiracy to commit first-degree murder, conspiracy to commit perjury, and terroristic threat. Mikel raises the following issues: (1) The State presented insufficient evidence to sustain its burden of proof, (2) the trial court erred in finding that materiality was an element of the perjury charge, (3) the trial court erred in admitting evidence of prior bad acts, (4) the trial court erred in refusing to sever the conspiracy to commit perjuiy charge from the murder charges, (5) the trial court violated his First Amendment rights, and (6) cumulative error denied him a fair trial.
This appeal follows the jury convictions in a joint trial of Mikel Dreiling and his sister, Dana Flynn, for the December 22, 1992, death of Randy Sheridan. The jury convicted Dana of first-degree premeditated murder, conspiracy to commit first-degree murder, and conspiracy to commit perjury. The State’s theory was that Dana and Mikel killed Randy in order to settle a custody dispute over Dana and Randy’s daughter, A.S.
Facts
History leading to the death of Randy Sheridan
Randy Sheridan’s body was discovered in Geaiy County approximately 1 mile from his home shortly after 3 p.m. on December 22, 1992. He had been shot several times with what appeared to be a 12-gauge shotgun. His death was caused by two shotgun wounds to the head. Evidence indicated he had been shot from a vehicle and then shot at point-blank range while lying face up by the side of the road.
Randy’s affair toith Dana and the birth of A.S.: 1981-1987
Judith and Randy Sheridan were married April 11, 1981, and settled into a house near Junction City. The relationship was at times troubled, and Randy moved to Chapman without Judith within 1 year of the marriage.
While in Chapman, Randy had a relationship with Dana, and Dana gave birth to a daughter, A.S., on August 27, 1985. Dana filed a paternity action against Randy. Randy admitted paternity and was ordered to pay child support, to pay one-half of A.S.’s medical bills, and to obtain an insurance policy naming A.S. as beneficiary. He was granted reasonable visitation rights and visitation every other weekend.
Randy moved back into the house with Judith within 1 to 2 years after first moving out. When Judith learned that Dana had filed a paternity suit against Randy, Judith and Randy divorced, and Randy moved back to Chapman. Eventually, Randy and Judith reconciled their differences and Randy moved back with Judith, but they never remarried. The couple had their own daughter, S.S., in Januaiy 1989. Judith testified Randy was a good father.
In 1986, Randy sought and secured joint custody of A.S. Problems with visitation later surfaced as Dana and Randy began to disagree over various issues concerning A.S.’s upbringing.
Dana, who disapproved of Randy’s lifestyle, also believed Randy was trying to turn A.S. away from Dana’s church. According to one witness, Dana said she would “do anything to keep from having [A.S.] go back out there or see Randy.”
Dana’s relationship with Steve Flynn and the birth ofJ.F.: 1987-1992
Steve Flynn and Dana were married in November 1987 and moved to Salina after their marriage.
In May 1988, Steve and Dana began attending the Fountain of Life Church where Jerry Rollins was the pastor. Witnesses described the church as a Pentecostal church. Numerous witnesses testified that members of Pastor Rollins’ church, including Pastor Rollins, would speak in tongues, which was described at trial as unintelligible vocalizations. The witnesses further testified that Pastor Rollins proclaimed to have the “gift of prophecy” and that he was “God’s prophet during these later days” and that members of the Fountain of Life Church believed in prophesy. Witnesses also stated that Pastor Rollins regularly made prophesies during church services, stating that he was quoting what God was supposedly telling him; the witnesses stated that Pastor Rollins believed Salina was the most evil town in Kansas and that Kansas was the most evil state in the United States.
During the fall of 1988, Pastor Rollins prophesied that Randy was evil and Steve was, in God’s eyes, A.S.’s father. Pastor Rollins further prophesied that it was not God’s will that Randy have visitation with A.S. and that God would take care of Randy.
Some of the church’s services were held at Pastor Rollins’ house. The church membership also included Dana and Mikel’s father Norman, their mother Shirley, and a number of siblings.
After moving to Salina, Dana tried to change Randy’s visitation rights. The change was precipitated, in part, by Dana’s belief that the distance between Salina and Randy’s home in Junction City necessitated the change.
After a few months of attending Pastor Rollins’ church, Steve and Dana’s marital relationship began to change. Pastor Rollins and Dana began spending increasing amounts of time together and telephoned each other frequently. They spent time at each other’s homes. During this time, Pastor Rollins began to offer Dana and Steve marriage counseling. J.F., Steve and Dana’s son, was born in January 1989. Steve and Dana divorced in June of that year.
Evidence that Dana referred to Steve as the devil: February 1992
J.F. began to call Steve various names. Steve described for the jury what he heard when he picked up J.F. on February 22, 1992:
“He said — basically, yelled, ‘Nanny nanny boo boo, you serve the devil. Nanny nanny boo boo, you serve the devil,’ over and over and over for about ten miles, as we drove down Interstate 70 from Salina. ‘Nanny nanny boo boo, you serve the devil,’ over and over.”
During the summer of 1992, J.F. said to his father, “Daddy serves the devil,” in an angry manner. J.F. also said, “Grandma serves the devil.” J.F. also told Steve that he had a new “daddy,” which Steve took to be a reference to Pastor Rollins. Another time, J.F. said, “Hi, you old faggot,” to his father. Steve believed Dana was teaching J.F. to make these comments and, as a result, contacted the Kansas Department of Social and Rehabilitation Services (SRS) to initiate an investigation.
On a later occasion when Steve picked up J.F., J.F. made a motion as if he was “zipping his lips.” Steve explained:
“I asked him what he was doing, and he blurted out that I served the devil and that I was going to go to hell, and he started crying, and he — then he said he wanted to go back to his mom’s house.
“He opens the door, I reach out, grab the door, right before he jumps out, I dren get out my door and run around and catch him, as he’s running for his mother’s house. I catch up with him on the porch, I grab him, put him in my arms.
“I knock on the door, Dana comes to die door, and I yell at her. I say, Tou told him that I serve the devil and it’s bullshit.’ And that — I take him out to the truck, she yells out after him, ‘Don’t listen to him [J.F], Don’t listen to him.’ And I strap him in and hold him down and take him home.”
Dana’s first sexual abuse allegation: 1989
In July 1989, Randy was contacted by Detective Albert Buskey from the Geaiy County sheriff s department concerning allegations that Randy was sexually molesting A.S. During this time, Randy and Dana were having significant disagreements over the visitation and raising of their daughter.
The sexual molestation allegations provided Dana an excuse for denying Randy visitation of A.S. Randy’s attorney advised Randy to begin documenting the events.
Judy Pearce, a social worker with SRS, testified that Dana told her during June 1989 that A.S. had been sexually abused. Pearce interviewed A.S. Following an investigation, SRS sent a notice to Randy that the allegation was unfounded. At the same time, SRS sent a similar notice to Dana. However, Dana’s notice also indicated SRS was concerned that A.S. had been coached to substan tiate the sexual abuse allegations. The SRS notice stressed how “extremely emotionally damaging” such coaching can be.
Danas second sexual abuse allegation; Randy and Steve ally against Dana: Mat! 1992
A.S. and Randy had a good relationship through the beginning of 1991. Slowly things began to change. A.S. was standoffish on Friday nights when Randy picked her up, but would be friendlier by the next morning. During May 1992, Dana made additional allegations that Randy was molesting A.S., and Dana refused to allow Randy visitation. Randy would not again have any visitations with A.S. until July 1992. When visitations continued, Randy could only have SRS supervised visitation with A.S.
During March or April 1992, Randy contacted Steve to inquire whether Steve had been having similar problems with Dana. Steve and Randy began to share information regarding their mutual problems with Dana.
Marriage between Lee Anna Rollins and Pastor Rollins: 1979-1992
Pastor Rollins’ wife from 1979 to 1992, Lee Anna Miller, found an invoice from an adult mail-order company, Adam and Eve, in 1990. The invoice indicated the adult items had been sold to Pastor Rollins and sent to Dana’s house. Lee Anna made copies of the invoice and confronted Pastor Rollins. At the confrontation, Pastor Rollins and Lee Anna “wrestled over it,” and Pastor Rollins got the copy away from Lee Anna.
Lee Anna believed Pastor Rollins was having an affair with Dana. Nevertheless, Dana moved in with Pastor Rollins and Lee Anna. Dana told her coworkers she was engaged but would not say to whom. Lee Anna moved out of the house in February 1992 and stopped going to the Fountain of Life Church. She gave her divorce attorney a copy of the invoice from the adult mail-order company and also gave a copy to Steve.
As a result of the cooperation between Steve and Randy, Randy obtained a copy of the invoice. Randy had a friend write “Praise the Lord” on the invoice and had several copies sent to Dana’s family. A copy of the invoice with “Praise the Lord” written on it was found in Pastor Rollins’ house following Randy’s murder.
Pastor Rollins’ shotgun
Lee Anna’s brother, a hunter, sold a shotgun to Pastor Rollins. Lee Anna remembered Pastor Rollins kept the shotgun in his closet, and she remembered the shotgun was there when she moved out in February 1992.
Randy hires attorney Robert Pottroff: August 1992
Randy hired another attorney, Robert Pottroff, who began to aggressively approach the custody battle involving A.S. Randy was concerned about the welfare of A.S. and felt A.S. was being brainwashed. Randy wanted a custody evaluation, and Pottroff secured this for his client.
During a November 3, 1992, deposition of Dana, Pottroff asked Dana about her relationship with Pastor Rollins. Pottroff testified at trial: “She said, ‘Just friends. He is a minister and I was someone who went to the church.’” Dana said she did not see Pastor Rollins often and denied that Pastor Rollins was her marriage counselor. She denied having lived with Pastor Rollins and denied that A.S. had lived in the same household as Pastor Rollins. Dana further denied that Pastor Rollins had packages mailed to her.
Randy was evaluated by Dr. Gail Roth as ordered by the court. Dr. Roth testified he was aware of the sexual abuse allegations against Randy. The prosecutor asked Dr. Roth what he thought of the sexual abuse allegations: “I had looked through them, and what I was concerned about is whether the reports were founded or unfounded. The information that I had suggested unfounded, and so I was not going to pursue that further. I was not going to investigate that.” Dr. Roth did not have any concerns over Randy’s parenting ability.
Dana did not complete the required evaluation. At first, she failed to contact the psychologist as ordered. Dana did not begin the court-ordered psychological testing until December 17, 1992. Dr. Roth testified the evaluation process ended after the death of Randy.
Based on the deposition testimony, Pottroff filed a motion on November 24,1992, to compel an “immediate custody evaluation” and a motion to modify the custody arrangement. Pottroff alleged, in part, the following:
“2. On July 30, 1992, this court ordered an immediate psychological/custody evaluation. The court also allowed defendant supervised visitation, and his parents visitation rights. Dana Flynn has refused any grandparent visitation, despite the fact that there’s never been any allegations of impropriety between the paternal grandparents and the minor child, [A.S.].
“3. Dana Flynn has circumvented die supervised visitation of Randy Sheridan by failing to appear for prearranged visitation with SRS.
“4. Dana Flynn has totally circumvented the evaluation process by refusing to agree upon an evaluator. After she was forced to agree upon an evaluator under threat of further litigation, she then refused to meet with die evaluator that was appointed by agreement of the parties.
“5. The agreed evaluator, Central Kansas Mental Health Center, Salina, Kansas, finally contacted the court and counsel concerning their being totally frustrated by Dana Flynn’s failure to cooperate with the evaluation process.
“6. It appeal's that Dana Flynn’s refusal to engage in the psychological/custody evaluation is part of her overall plan to totally avoid compliance with the court’s orders.
“7. Defendant has evidence that Dana Flynn is currently involved in a relationship with Jerry Rollins. That relationship and all information about Jeriy Rollins has been intentionally concealed by Dana Flynn. The concealment is obviously intended to circumvent the court’s consideration of relevant factors as specified in K.S.A. 60-1610(a)(3)(B)(i), which directs the court to consider ‘the length of time diat the child has been under die actual care and control of any person odier than a parent and the circumstances relating thereto.’
“8. Jeriy Rollins has exercised long term, continuous control over Dana Flynn, her family, and, in particular, [A.S.]. That control has been psychologically and emotionally destructive to [A.S.].”
Pottroff asked for a number of orders in the motions, including that all adults “with any significant impact on [A.S.]” get a full psychological evaluation. A hearing on the motions was set for December 8,1992, but the hearing did not take place. Over Pottroff s objection, Dana was able, the day before the hearing, to secure a continuance. Pottroff testified the continuance was a delay tactic on Dana’s part. The hearing was continued until December 21, 1992.
As a result of the court-ordered continuance, Pottroff filed a temporary order for custodyMsitation and a restraining order. The order removed the requirement that Randy’s visits with A.S. be supervised. Randy was granted visits every weekend and visitation from December 29, 1992, through January 3, 1993, to accommodate an annual sld trip. A.S. was ordered to have no contact with Pastor Rollins. With regard to this last provision, Pottroff testified regarding the predicament into which this forced Dana:
“I — I asked the judge to issue a restraining order which would prevent [A.S.] from coming in contact with Jerry Rollins. There was an objection by Larry Livengood that he thought that was unnecessary order, because we were just taking somebody out of this child’s life, at which point I related to the judge, “Well, Judge, I’ve got the depositions of these two people, and they claim there is no relationship with Jeriy Rollins and [A.S.], so humor me, just go ahead and make it a court order that they can’t see each other, because if they’re telling you the truth in the depositions and they’re not seeing her, it shouldn’t hurt anybody for them to not see her for the next few weeks.’ That was very hard for the judge to listen to an argument on the other side, and he gave us the restraining order.”
Randy’s next visitation was scheduled for December 11, 1992, but A.S. refused to leave Dana’s house. Pottroff filed a motion for citation of contempt and modification of custody arrangement, and the hearing was set for December 21, 1992. Pottroff filed the motion for contempt because of evidence from Pastor Rollins’ neighbors that Dana allowed A.S. to have contact with Pastor Rollins the day after the court’s order restraining such contact.
Threat to Steve: December 7, 1992
Steve, in his divorce case with Dana, made a number of allegations: (1) Dana had physically abused J.F., (2) Dana was having a relationship with Pastor Rollins and resided with Pastor Rollins, (3) Dana was accusing him ofbeing a homosexual and told that to J.F., (4) Pastor Rollins exercised such control over J.F. that it interfered with Steve’s relationship with J.F., (5) Dana continually “persists in telling [J.F.] that [Steve] serve[s] the devil,” and (6) Dana had refused to get counseling. Steve requested that (1) all adults involved in J.F.’s life be evaluated, (2) J.F. be evaluated “to help determine the full extent of his emotional problems,” (3) Steve be granted full custody of J.F., and that (4) Dana only have supervised visitation with J.F.
Steve first saw signs of physical abuse of J.F. in November 1992, when he noticed a bruise on J.F.’s bottom and took J.F. to the hospital to document the bruise. On the way home from the hospital, J.F. called Steve “a queer.” When Steve returned J.F. to Dana, he informed her that he had taken J.F. to the emergency room and called the police, and that J.F. had called him a queer. Dana replied, “Thanks, Mr. Homosexual.”
Steve took J.F. to see a counselor, Vanessa Fechter, a mental health therapist, on December 4, 1992. Based on the information provided by Fechter, Steve decided not to return J.F. to Dana. J.F. drew a picture of the devil and showed it to Fechter and also said his father was the devil. Fechter testified J.F. was very talkative when she first began meeting with J.F., but later J.F. became reserved. Fechter asked J.F. about Pastor Rollins, and J.F. replied, “He does not exist.” Fechter believed it was strange for a 3-year-old to use those words.
On December 7, 1992, the day Steve filed his motion to modify custody, he was scheduled to return J.F. to Dana but instead went to Dana’s front door, told her he was not returning J.F., and then went to work. Approximately 2 hours later, Dana and Mikel went to Steve’s place of work. Dana and Mikel got out of their car and approached Steve. Mikel immediately began yelling, accusing Steve of having kidnapped J.F. Steve described what happened:
“Well, when he got up to me, he started — started poking. He didn’t touch me, but he was like this, right in front of me, again, saying, ‘Going to see you go down. I’m going to malee — I’m going to malee you go down. I’m going to see you go down,’ repeating that over and over.
“. . . It was at that time Dana grabbed Mike’s arm and said, ‘Mike, now’s not the time. Mike, now’s not the time,’ as he kept saying to me, ‘I’m going to see you go down. I’m going to take — malee you go down,’ and it was after she grabbed his arm, he turned and spit a luggie right here on my cheek . . . .” (Emphasis added.)
Steve returned J.F. to Dana later that afternoon. Steve testified that as a result of his motion, he was later granted custody of J.F. and that he had maintained custody since.
Threat to Randy: December 12, 1992
Judith and Randy received two telephone calls during the early hours of December 12, 1992. The calls came between 3:30 and 4:30 a.m. Records from the telephone company indicated the calls originated from Mikel’s residence. Judith did not hear anything after answering the first call. When Judith answered the phone the second time, Judith heard the words “die” or “dead.” Randy took the phone from Judith, listened, and said, “Why don’t you grow up, Mikey?” Randy used “Mikey” to refer to Mikel.
After the murder, KBI agent Jeffrey Brandau interviewed Judith regarding the telephone death threat. Judith specified, without looking at any phone records, the date of the telephone call and the identity of the caller.
Failure of Dana’s sexual abuse allegations becomes ayyarent: December IS, 1992
Social worker Pearce spoke with Dana’s attorney, Lariy Liven-good, and advised him she found “elements . . . missing” from the allegations that Randy abused A.S. Further, Pearce testified she told Livengood that she actually suspected Dana of a different type of abuse:
“Q. And what, if anything, did you advise her attorney on the 15th of December of 1992?
“A. I clarified my role, that it was my job to investigate the sexual abuse, and that — advised him the various elements was [sic] missing, so we couldn’t confirm the sexual abuse, but that we did have some concerns about emotional abuse, and that if there is subsequent documentation by a therapist that she had been abused, there could be repercussions in terms of removal [of A.S.] from Dana’s home through the juvenile court system.
“Q. And were you — when you were referring to abuse at drat point being looked at by a doctor, what land of abuse are you referring to?
“A. Emotional abuse.
“Q. And what, specifically, were you referring to?
“A. The trauma that [A.S.] was exhibiting, because of being tom between the two parents, and the fear that she was exhibiting of her father.”
Later, Pearce spoke with Livengood and told her that Dana doubted her objectivity.
Trip to visit Dr. Edelman: December 18, 1992
On December 18, 1992, Randy met A.S. to begin his visitation. A.S. was quiet at first. Later that evening, Randy and Judith drove to Manhattan with A.S. to visit with Dr. Sheldon Edelman, a clinical psychologist. Dr. Edelman described A.S.’s behavior:
“Well, she was screaming. She had been — apparently, been screaming all tire way from Salina to my office. Her voice was hoarse, at times, she was weeping inconsolably, and she was directing her rage at her father. She was saying that he was sent by the devil, that he was evil, and that she wanted to be with her mother.”
When Judith and Randy returned the next day with A.S., A.S. was much calmer, acting like a normal child.
Evidence Dana received warning, in custodvt battle: December 20, 1992
James Canfield, the ex-husband of Dana’s sister Cheryl, met with Pottroff on December 20, 1992, to discuss testimony relating to the custody battle between Dana and Randy. Canfield later had a conversation with Cheryl during which he told Cheryl that Dana was going to lose her children and that Dana was in for a “rude awakening on it.”
Dana delays contempt hearing: December 21,1992 — day before the murder
Pottroff testified that the December 21, 1992, hearing on his motion for contempt did not take place. Livengood called Pottroff on the morning of December 21, 1992, and said he and his client did not want to go to court. Pottroff told Livengood he was impatient with Dana and her delaying tactics and that he was not going to back off of the contempt citation. Pottroff was willing to negotiate on a number of other matters. In terms of custody, Pottroff secured a number of concessions, including giving Randy custody of A.S. from December 22, 1992, until the Saturday after Christmas for the annual ski trip and equal custody thereafter. Further, Pottroff again reiterated the requirement that A.S. have no contact with Pastor Rollins. Pottroff demanded that Dana get an evaluation. Pottroff and Livengood agreed to work out the details of when Randy would pick up A. S. for the ski trip the next morning.
Despite the continuance, Pottroff went to court to make a record of evidence supporting the motion for contempt. Livengood and Dana did not appear at the hearing. Pottroff took the testimony of Pastor Rollins’ neighbors before the court reporter. Pottroff also hired a court reporter to take the testimony of Lee Anna Miller, Pastor Rollins’ ex-wife.
Randy’s actions prior to the murder: December 22, 1992
On December 22, 1992, the day of his murder, Randy was waiting to hear from Pottroff regarding the details of when A.S. could be picked up for the sld vacation. Randy called Judith between 2:30 and 3 p.m. and said he had not heard anything from Pottroff. Randy told Judith he was going running and that he would call her again at 3:30 p.m.
That same day, Pottroff still had to negotiate a date and time for Randy to pick up A.S. Randy woke Pottroff s secretaiy at 6:30 a.m. to inquire about the details. Pottroff tried to call Dana’s attorney at 9 a.m., but no one was in Livengood’s office at that time. Pottroff was not able to get the details worked out that morning. Pottroff spoke with Livengood around noon. Pottroff became frustrated that Livengood was having difficulty talking with his client. Pottroff recalled having told Livengood during that noon conversation that Randy had taken the afternoon off and was home waiting to hear when A.S. could be picked up.
Randy called Pottroff at 2:06 p.m. to inquire again. Randy left a message that he was going to go running and would call back when he finished. Pottroff was not able to work out the details drat afternoon, and he wanted to speak with Randy before demanding the pickup of A.S. at 10 a.m. the next day. Pottroff testified there was, in retrospect, something odd about the negotiations that day with Livengood:
“We had — every time we dealt with the custody and visitation issues in this case, we had set a time, we had set a date, we would set who’s present, we had set where it’s going to be, the details just flowed, and in this situation we were getting to the point where my client was going to go pick up this little girl to begin half custody and there was — seemed to be no concern about when that happened, when it stopped. Nobody wanted to even discuss the details of this with me, when that had been something that we just got bogged down in every other conversation.
“The two things that just struck me that came down real hard is that I had told where Randy was that afternoon and that there appeared to be no plans in place, at all, for the return of this child, pick up of this child, which to me, had I seen it in advance, I would know that nobody was really expecting for him to get the child anyway.”
The crime scene
Randy’s body was found shortly after 3 p.m. on December 22, 1992, lying on the side of a dirt and gravel road near his house. There were no shells located near the body. Randy was wearing a black running suit. Randy’s body was still warm at 3:30 p.m. The blood was only “very slightly” coagulated. There was little, if any, blood splattered next to the body on the road side. The minimal amount of blood splatter on the road side of the body indicated that the shooter likewise escaped the incident with few bloodstains. The center of the road was dry but the edges were damp.
The murder weapon was consistent with a 12-gauge shotgun. No murder weapon was found. No shotgun shells were found. Kansas Bureau of Investigation (KBI) Special Agent Brandau testified there was no need for a crime van at the scene because there was no physical evidence to collect. Agent Brandau testified there was no evidence of a struggle at the scene.
Examination of the body
Dr. Wike Scamman, a pathologist, performed an autopsy the day Randy’s body was found. Dr. Scamman testified Randy had been shot 5 times, hitting: (1) the right wrist and chest, (2) the left side of his chest and back, (3) the neck, (4) the head a first time, and (5) the head a second time. Dr. Scamman testified that the “wounds to the chest and forearm would have come before the . . . wounds to the head and neck.” One of the head wounds was a contact wound, and the other, while close, was not a contact wound. The shotgun that caused the noncontact wound was within 6 inches of Randy’s head when it was fired. Dr. Scamman testified the contact head wound occurred before the noncontact head wound.
Dr. Scamman also testified that the wound to Randy’s wrist and chest, while making pellet tracks to the heart and lung, would not have even caused Randy to fall. Dr. Scamman estimated the shotgun would have been 4 feet above the ground — consistent with having been fired from a car window. Regarding the wrist wound, Dr. Scamman testified the range from the gun to Randy’s body was 10 feet or less. The shot to the side of the chest and back would have caused Randy to fall, but was not immediately fatal. The shot to the neck, which caused damage to the right vertebra and disruption of the spinal cord, would finally have caused a loss of consciousness. Regarding the neck wound, Dr. Scamman testified the range from the gun to the body was less than 10 feet. The contact wound to the head would have caused the hole in Randy’s forehead. This hole provided an outlet for expanding gasses following the second shot to decrease the amount of blood splatter. The wounds to the neck and head would have occurred while the victim was on the ground.
Dr. Scamman concluded by saying the death was “a result of the shotgun wounds to the head.”
Investigation immediately following the murder
Agent Brandau spoke with Judith Sheridan at 5:15 p.m. the day of Randy’s murder. Judith immediately consented to a search of her house. Upon entering the house, Agent Brandau noticed two blue folders on the dining room table and two envelopes on the kitchen counter. The folders and envelopes contained documentation associated with Randy’s custody battle with Dana. Agent Brandau found no indication there had been a crime committed at Randy’s house. While Agent Brandau was at the Sheridan house, Dr. Edelman, the Manhattan psychologist, called. Agent Brandau had a conversation with Dr. Edelman, who provided some explanation of the custody problems Randy had been having with Dana.
Based on the papers Agent Brandau found at the Sheridan house, the conversation with Dr. Edelman, and the conversations with Randy’s family, Agent Brandau drove to Salina to interview Pastor Rollins and Dana Flynn.
Interview with Pastor Rollins: December 22, 1992
Agent Brandau and Detective Albert Buslcey drove to Salina the night of the murder. Upon arriving at Pastor Rollins’ house, no one was home. Pastor Rollins and his son Charles arrived about an hour later. Agent Brandau received Pastor Rollins’ consent to search the house. Law enforcement officers found and removed shotgun shells from the house. Pastor Rollins would only allow Agent Brandau to take two of the shells found. To Agent Brandau, Pastor Rollins appeared nervous and upset when the shotgun shells were found. Pastor Rollins established an alibi. No shotgun was found in the house.
Law enforcement officers later returned to Pastor Rollins’ house with a search warrant, and the remaining shotgun shells were seized. Officers also seized a card and envelope. The card was printed “For My Wife” on the front. The inside of the card contained the handwritten words “To My Angel, Snowflake, Dana” before the printed greeting. After the printed greeting, the card contained the handwritten signature “With All My Heart and Love, Your Husband, Jerry.” The officers found a letter from SRS addressed to Dana and mailed to Dana’s house. Officers also found in a dresser a copy of 2 pages from L. 1991, ch. 171, § 2, which is the Kansas statute amending the law regarding the custody of children. A number of items with either Dana’s name or address were found in Pastor Rollins’ house. A copy of the Adam & Eve invoice with the words “Praise the Lord” was also found. The envelope was postmarked July 29, 1992.
Interview with Dana Flynn: December 23, 1992
After finishing at Pastor Rollins’ house, Agent Brandau and Detective Buskey left to interview Dana at her house, arriving at 1 a.m. Dana quickly answered the door and appeared to have not been sleeping. Dana had no response to hearing the news of Randy’s death. She again denied having a sexual relationship with Pastor Rollins, saying her only contact with Pastor Rollins was “through the ministry.”
Agent Brandau asked Dana what she had done on December 22, 1992. Dana said she woke at 6:30 a.m., fed her children, drove A.S. to school and J.F. to the babysitter, and arrived for work at Great Plains Manufacturing just before 8:30 a.m. Dana said she received a telephone call between 11 a.m. and 12 p.m. from her attorney. The telephone call upset her, she felt sick, and she left work at 12:13 p.m. She went to get gas in her car and called her mother from a pay telephone. Dana asked her mother to pick up J.F. and A.S. When asked by her mother what the problem was, Dana said she was upset over a development in the custody battle. Dana said she went to her mother’s house, arriving after 1 p.m. and stayed until after 7 p.m.
Dana’s statements at Great Plains Manufacturing after the murder
Dana clocked in at Great Plains Manufacturing at 8:23 a.m. on December 22, 1992, and left at 12:13 p.m. She did not return to work that day. The day before, Dana clocked in at 8:29 a.m., had a lunch break from 12:31 until 2:33 p.m., and then left at 5:01 p.m.
Marla Reed, the payroll administrator for Great Plains Manufacturing, was Dana’s supervisor. Reed testified that approximately 1 or 2 months before the murder, she observed that Dana was “visibly shaken and almost in tears.” Reed described the conversation: “Well, I asked her if there — if she was okay, and she responded to me that her daughter’s father was going to have her for the weekend, it was on a Friday, and she was very upset about that, because she said that he had been molesting her.” The day after Randy’s murder, Dana came to Reed to talk with her about the interview with law enforcement officers the previous night. Reed described the conversation: “She just said that they had been there that night and questioned her, and she said, ‘But, I did not kill him.’ ”
Interview with Mikel: December 23, 1992
Kirk Thompson, a KBI special agent, along with Joaquin Padilla, another special agent, met with Mikel on December 23, 1992, at Great Plains Manufacturing where Mikel also worked. Upon mentioning he wanted to discuss Randy’s murder, Agent Thompson noticed that Mikel began twitching involuntarily. Mikel experienced shortness of breath, began breathing quickly and hard, and avoided eye contact. Mikel said his mother had told him of Randy s murder early that morning. Mikel said his family was collectively involved in the child custody batde with Randy and that he would probably be called as a witness.
Agent Thompson asked Mikel during the interview about his actions on December 22, 1992. At first, Mikel was vague about his activity. Mikel said he did not go to work because his knee was bothering him and that his mother drove him to see the doctor at 3:45 p.m.
Agent Thompson asked Mikel whether he had been with his sister that afternoon. Mikel said he had spent time with his sister up until 3:45 p.m. Mikel said he saw Dana at Dana’s house, which contradicted Dana’s story that she had been at her mother’s house that afternoon.
The agents expressed some concern over his vague answers, and Mikel started over. Mikel said he awoke at noon and left to see his girlfriend. They drove to Dana’s house, Mikel got out of the car and went inside, and his girlfriend continued to drive somewhere to pick something up. Mikel said she returned to Dana’s house to pick him up, and then they drove to his mother’s house, arriving at 3:30 p.m.
The evidence at trial showed that Mikel had visited the doctor at 4:45 p.m. for his knees. The doctor testified Mikel did not need immediate attention: “He walked in fine, he walked out fine.” The doctor found no signs of recent injury.
The State presented evidence to the juiy that the driving time from the murder scene near Junction City to Mikel’s doctor in Salina, using two different alternative routes, was approximately 55 minutes.
Mikel’s attempts to secure alibis
The State presented evidence of Mikel’s two failed attempts at securing false alibis. Mikel asked Charles Cookson, a coworker at Great Plains Manufacturing, to fabricate a false alibi for Dana. Cookson testified Mikel made the request for an alibi between 1 and 2 months after Randy’s murder. Cookson told Mikel that he would think about it. Mikel approached Cookson at least two more times. Mikel explained to Cookson that both he and Dana had missed work on December 22, 1992; therefore, Cookson would make an ideal alibi witness. On one such occasion, Mikel handed Cookson a typed statement with the alibi:
“Met summer of 1990. Bought vitamins from me once or twice. Had already met and knew John.
“Tuesday December 22, 1992. I saw her at Dillons Southgate in the medicine area. Time: 2:50 p.m.
“Also saw her turning off from Ohio St. towards her mom & dads house. They live on Faith Drive. Time: 3:10 — 3:20 p.m.”
John Dreiling, Mikel and Dana’s brother, gave Cookson a paper with the telephone number of Dana’s attorneys, along with a calling card number. Cookson eventually signed the alibi. At trial, Cookson denied having seen Dana in Dillon’s on December 22,1992, which contradicted his statement. Cookson testified that Charles Rollins told him it would be a good idea to sign the false alibi because “they were going to sue and that they believed in sharing the wealth.”
Mikel also asked Joseph Gladback, a coworker at Great Plains Manufacturing, to provide him with a false alibi in August or September 1993. Mikel told Gladback he would “make it worth [his] while” if he would fabricate the alibi. Gladback refused. Later, Gladback asked Mikel if he had killed Randy, which Mikel did not deny but, rather, said he could not tell Gladback the answer to that particular question.
Carwash
The State’s evidence showed that Dana had driven her car through an automatic car wash twice around 5:15 p.m. on the day of the murder. Dana was alone.
Dana’s statement about Randy after the murder
After Randy’s murder, Dana told a coworker, who had expressed regret at hearing of Randy’s death, that the coworker need not be too sorry because he deserved to die and that he was a wicked and evil man.
Cover-up evidence
Dana asked the daycare provider and an elementary teacher for A.S. not to speak with law enforcement officers. Another daycare provider cared for Dana’s children from November 1992 until January 1993. On the day of the murder, Dana telephoned to tell the babysitter that Dana’s mother would be picking up the children. She picked up the children at 4 p.m. The babysitter testified that she heard J.F. say in early January 1993 that he no longer had a dad and that his dad was a devil.
On January 19, 1993, Dana asked the babysitter whether the KBI had been asking questions. When the babysitter said she had spoken with the KBI, Dana was surprised and upset that the babysitter did not tell Dana about the incident. Dana did not employ this babysitter for J.F. or A.S. after that day.
State’s evidence: the perjury conspiracy
The State read into evidence portions of the inquisition testimony of Mikel’s girlfriend, Jennifer Brock; Dana and Mikel’s sisters, Cheryl Canfield and Brenda Arveson; Pastor Rollins’ son, Charles; Dana and Mikel’s mother, Shirley Dreiling; and Dana and Mikel’s father, Norman Dreiling. These inquisition witnesses denied that the practices of speaking in tongues and prophesy occurred. Testimony indicated these practices involved statements that Randy was the devil and that “God would take care of Randy.” Past members of the church contradicted the inquisition testimony by confirming that these practices did in fact take place. The State presented overwhelming evidence that the practices of Pastor Rollins and other members of the Fountain of Life Church involved speaking in tongues and prophecy, and that Jennifer Brock, Cheryl Canfield, Brenda Arveson, Charles Rollins, Shirley Dreiling, and Norman Dreiling knew about such practices.
Kathlyn Garza, Pastor Rollins’ daughter, testified that she had a telephone conversation with her father in which he asked her whether she had been contacted by Agent Brandau. Kathlyn told her father Agent Brandau had asked her about the practice of speaking in tongues. The prosecutor asked Kathlyn to describe her father’s response to learning Agent Brandau was inquiring about the speaking in tongues practice: “He said I really didn’t know the answers to those questions, that it was more serious than I knew.” Kathlyn told her father she would testify if subpoenaed, and Pastor Rollins warned her to talk with the attorneys before giving any testimony. When asked about Pastor Rollins’ specific concerns, Kathlyn said, “He said that I would be helping put him in prison.” As a result of a wiretap, a recording and transcript of die conversation were procured. The State introduced both into evidence. The transcript showed that Pastor Rollins referred to Agent Brandau as “very wicked, veiy wicked, and very evil.”
Analysis
1. Failure to file a timely notice of appeal
Mikel’s appellate counsel acknowledges the notice of appeal was filed out of time. A copy of her May 1, 2000, and June 23, 2000, letters to Mikel’s trial counsel asking for an explanation is appended to Mikel’s brief on appeal. Mikel’s appellate counsel asserts that Mikel’s trial counsel relied on Dana’s trial counsel to file the notice of appeal. Mikel’s trial counsel promised to send proof of the notice of appeal, but faded to provide any further information. However, nothing was filed that would allow the court to conclude that Mikel “was furnished an attorney for [the purpose of appeal] who failed to perfect and complete an appeal.” State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982).
This court in State v. Ji, 255 Kan. 101, 102-03, 872 P.2d 748 (1994), described the principles surrounding the right to appeal:
“The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution [citation omitted] or the Kansas Constitution [citation omitted]. It is the established rule in this state that this court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The Supreme Court has only such'appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. [Citations omitted.]”
The Ortiz court held there are exceptions to the rule requiring a dismissal following an untimely filed notice of appeal “where a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal.” 230 Kan. at 736. There is authorily for remanding this case for a hearing to determine whether this case falls within the exceptions described in Ortiz. See State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994). However, this court has also held that the exceptions in Ortiz apply based on an affidavit alone, rather than a specific factual finding by the lower court. See State v. Shortey, 256 Kan. 166, 168, 884 P.2d 426 (1994).
This court in Shortey considered Jesse Shortey s appeal from a conviction of aggravated robbery and aggravated assault on a law enforcement officer. The court noted that Shortey’s notice of appeal was at least 20 days late. The court cited the passage from Ji quoted above and then discussed the exceptions found in Ortiz, emphasizing the language “or was furnished an attorney for that purpose who failed to perfect and complete an appeal.” 256 Kan. at 168. In its analysis, the Shortey court found that an Ortiz exception applied without remanding the case:
“Defendant has filed an affidavit of the appointed counsel responsible for the filing of the notice of appeal which sets forth the post-trial proceedings herein and which concludes: T didn’t realize that Notice of Appeal needed to be filed earlier. If that is indeed the case, it is wholly my fault, as Mr. Shortey has taken every step to insure that his appeal is prosecuted.’
“Under the circumstances herein, we conclude that the exception set forth in Ortiz should be applied, and we will, accordingly, entertain defendant’s appeal.” 256 Kan. at 168.
By order of this court, Mikel’s case was remanded to the district court to determine the applicability of one of the exceptions noted in Ortiz. The trial court made a finding of fact, including the fact that “the defendant had an attorney for the purpose of perfecting and completing his appeal, but that the Defendant’s attorney failed to do so.” In light of the trial court’s findings, along with other evidence in the record, we find that fundamental fairness requires this court to retain jurisdiction over the appeal. See State v. Shortey, 256 Kan. at 168.
2. Sufficiency of Evidence
Mikel contends the State presented insufficient evidence to support his conviction. We apply the following standard of review to a challenge of the sufficiency of the evidence: “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000). “A guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence, even though the evidence is entirely circumstantial.” State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert, denied 534 U.S. 1047 (2001).
First-des.ree murder
Mikel argues on appeal that the State presented insufficient evidence to support the murder charge. We disagree and find the State presented sufficient evidence to support the jury’s verdict.
At the time of Randy’s murder, Kansas statutes defined first-degree murder, in part, as: “Murder in the first degree is premeditated murder.” K.S.A. 1992 Supp. 21-3401(a). “Premeditated murder” was defined as “the killing of a human being committed maliciously, willfully, deliberately and with premeditation.” K.S.A. 1992 Supp. 21-3401(b).
The jury in this case was instructed to find Mikel guilty of first-degree murder if it found the State had proved:
“1. That the defendant intentionally tolled Randall Sheridan;
“2. That such tolling was done maliciously;
“3. That it was done deliberately and with premeditation; and
“4. That this act occurred on or about the 22nd day of December, 1992, in Geary County, Kansas.”
During closing arguments, the prosecutor argued to the jury that Mikel was the shooter and that Dana was along for the ride. By confining the analysis of the first-degree murder charge and the conspiracy to commit murder charge, the only issue was whether Mikel, with Dana’s help, intentionally shot Randy. If this element was established according to the appropriate standard of review, the jury could have reasonably concluded the other necessary elements of both first-degree murder and conspiracy to commit first-degree murder beyond a reasonable doubt.
The State presented sufficient evidence for a reasonable jury to find Mikel shot Randy and that Dana aided and abetted him in this act. The summary of the testimony above suggests the juiy was faced with multiple motives to conclude Dana wanted Randy dead. Further, the trial court instructed the juiy that motive alone was insufficient: “A finding of guilty for the crime of murder may not be based solely upon evidence of motive. Rather each element of the crime must be proved beyond reasonable doubt.” The trial court also instructed the jury that inferences alone were not sufficient to establish any elements of any of the crimes: “You may not find an element of a crime from an inference that is based solely upon an inference. However, you may draw reasonable inferences from facts established in the evidence.”
The State argued five motives: (1) to thwart Randy’s attempt to gain custody of A.S., (2) to end Randy’s alleged molestation of A.S., (3) to thwart Randy’s attempts at exposing Dana’s relationship with Pastor Rollins, (4) the belief that Randy was evil or that Randy was the devil, and (5) following orders from Pastor Rollins.
We find the State presented substantial evidence of motive. Dana needed a way out of the litigation with Randy for a number of reasons. Randy, with the critical help of Pottroff, maneuvered Dana into a corner. She had been recorded in a deposition as saying A.S. did not spend any significant time with Pastor Rollins. Randy and Pottroff knew this to be untrue; therefore, Pottroff crafted a court order to restrain A.S. from associating with Pastor Rollins, thereby putting Dana in the difficult position between choosing between A.S. and Pastor Rollins. Had Randy obtained custody of A.S., it might have allowed A.S. an opportunity to get to know her real father and possibly discover he was not the “evil” person she had been told he was.
The evidence before the jury demonstrated that SRS was concerned that Dana had coached A.S. to make untruthful allegations. SRS considered this coaching to be emotionally harmful to A.S., and it could have been grounds for Dana to lose custody of A.S.
Motive alone is insufficient to sustain a conviction. See State v. Doyle, 201 Kan. 469, 487, 441 P.2d 846 (1968) (“It must be remembered that motive, though an important factual element, is not sufficient in itself to sustain a conviction.”). However, motive evidence was not the only evidence presented by the State.
Although there were other people who had a motive to kill Randy, namely, the husband of a woman with whom Randy had an affair, the State is not burdened with disproving each alternative defense theory.
The December 7,1992, threat to Steve Flynn is significant. The State presented evidence that Steve and Randy were similarly situated. They both had a child with Dana, they both were fighting Dana over custody and supervision, and they both had a young child who believed their respective father was evil based on Dana’s statements. When Steve pushed Dana too far with regard to J.F., Dana arrived at Steve’s place of work with Mikel and a heated confrontation followed. Mikel threatened Steve with the “I’m going to take you down” language and Dana responded by telling Mikel that then and there was not the appropriate time to take Steve down. While Mikel would attempt to explain to the jury that, as a former wrestler, it should be clear that the “take down” language refers to a seemingly innocuous wrestling maneuver, there was no wrestling involved in this case and the jury was reasonable in concluding that more serious matters were intended to be conveyed.
The December 12,1992, telephone call, viewed in the light most favorable to the State, is significant. The jury could reasonably con- elude the telephone call was a death threat from Mikel to Randy. Judith testified she heard the words “die” or “dead.” Judith also heard Randy refer to the caller as “Mikey,” a derogative term Randy used for Mikel. The jury could have reasonably concluded the telephone call was a forecast, i.e., “drop the custody fight or you are dead.” Randy did not drop the custody battle. The evidence shows Randy was proceeding with the custody battle, which was causing Dana concern with regard to her desire for sole custody of A.S. and with her relationship with Pastor Rollins. Dana stated she would “do anything” to keep Randy from getting A.S.
The testimony of Randy’s attorney provided evidence that despite court orders for extended visitation Dana did not intend to let Randy have custody of A.S.
The State presented evidence of Dana’s opportunity to commit this crime. Dana left work shortly after noon on December 22, 1992, after having a telephone conversation with her lawyer, the bearer of bad news in terms of the custody battle. The evidence shows it was likely that Dana knew through her attorney that Randy was home that day. Her own statements following the murder establish that she purchased fuel for her car and telephoned her mother from a pay telephone to arrange for someone to pick up J.F. and A.S. Mikel’s own statements established that he was with his sister that afternoon, which likewise established his opportunity to commit this crime.
There is nothing at the scene of the crime to link to either Dana or Mikel. However, the evidence of Dana’s actions after the murder further strengthen the conclusion the jury acted reasonably in convicting. After Randy’s murder, the evidence shows Dana drove her car through an automatic carwash twice. This evidence was sufficient to allow the jury to arrive at a logical conclusion that Dana’s car was soiled with either Randy’s blood or dirt from the road. Further, the evidence shows that after the murder Dana believed Randy was an evil, wicked man who deserved to die.
In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict; it does not weigh the evidence. State v. Pondexter, 234 Kan. 208,212, 671 P.2d P.2d 539 (1983). In light of this standard, we are convinced a rational factfinder could have found beyond a reasonable doubt that Mikel, with Dana’s help, shot Randy.
Conspiracy to commit murder
Mikel argues the State presented insufficient evidence to support the conspiracy to commit first-degree murder conviction. The definition of conspiracy applicable to the date of the crime herein is found at K.S.A. 21-3302 (Ensley 1988):
“(1) A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.”
The only amendment to this section since 1992 involved replacing “to commit” with “in committing” and replacing “him” with “such person.” L. 1992, ch. 239, § 35.
The jury was instructed to find Mikel guilty of conspiracy to commit first-degree murder if it found:
“1. That the defendant agreed with another or others to commit the crime of murder in the first degree;
“2. That the defendant did so agree with the intent that the crime of murder in the first degree be committed;
“3. That the defendant or any party to the agreement acted in furtherance of the conspiracy by murdering Randall Sheridan;
“4. That this act occurred on or about the 22nd day of December, 1992, in Geary County, Kansas.”
The trial court defined “conspiracy” for the jury as follows:
“A conspiracy is an agreement with another or other persons to commit a crime or to assist in committing a crime, followed by an act in furtherance of the agreement.
“The agreement may be established in any manner sufficient to show understanding. It may be oral or written, or inferred from all of the facts and circumstances.”
The sufficiency of the evidence for the underlying crime, murder, is considered above. The murder qualifies as an overt act for purposes of conspiracy to commit murder. See State v. Wilkins, 267 Kan. 355, 365, 985 P.2d 690 (1999). Further, the evidence to support the finding of an agreement need not be direct, but can be supported by circumstantial evidence. See State v. Webber, 260 Kan. 263, 288, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997).
The evidence in this case, viewed in a light most favorable to the State, supports the jury’s finding beyond a reasonable doubt that Mikel agreed with his sister to commit the crime of first-degree murder by shooting Randy.
Terroristic threat
Mikel argues the State presented insufficient evidence to support the conviction of terroristic threat. The statute applicable at the time, K.S.A. 21-3419 (Ensley 1988), defined terroristic threat as “any threat to . . . [cjommit violence communicated with intent to terrorize another.”
The trial court instructed the juiy to find Mikel guilty if it found:
“1. That the defendant threatened to commit violence;
“2. That such threat was communicated with the intent to terrorize Randall Sheridan;
“3. That this act occurred on or about the 12th day of December, 1992, in Geary County, Kansas.”
Mikel concedes in his brief on appeal that Judith heard the words “die” or “dead” and that Mikel made the call. Mikel argues the evidence only supports the conclusion that the threat was communicated to Judith, not Randy. However, this argument ignores the fact that Randy identified Mikel’s voice. Randy said, “Why don’t you grow up, Mikey?” Mikel argues Randy could have assumed it was Mikel making the call. This argument fails in light of our standard of review. In a light most favorable to the prosecution, Randy, like Judith, heard words amounting to a threat to which Randy responded by saying, Why don’t you grow up, Mikey?” The jury reasonably found Mikel guilty of making a terroristic threat.
3. Materiality of conspiracy to commit perjury
Mikel contends that the trial court erred in allowing the jury to determine whether the perjury involved a material fact. The definition of perjuiy applicable to crimes committed prior to July 1, 1993, is found at K.S.A. 1992 Supp. 21-3805:
“(a) Perjury is willfully, knowingly and falsely [(1)] swearing, testifying, affirming, declaring or subscribing to any material fact upon any oath or affirmation legally administered in any cause, matter or proceeding before any court, tribunal, public body, notary public or other officer authorized to administer oaths; or
“(2) subscribing as true and correct under penalty of perjury any material matter in any declaration, verification, certificate or statement as permitted by K.S.A. 1992 Supp. 53-601.”
The perjury statute was amended in 1992 by substituting “intentionally” for “willfully.” L. 1992, ch. 298, § 52. The amendment was not effective until July 1, 1993. L. 1992, ch. 298, § 98. Other amendments have changed the penalty, L. 1993, ch. 291, § 99 and L. 1994, ch. 291, § 35, or added an additional definition, L. 1997, ch. 182, § 86.
The trial court instructed the jury on the following definition of perjury:
“The definition of perjury, the crime charged to be the subject of the conspiracy is die willful, knowing, and false testifying or swearing to a material fact upon oath legally administered by a person authorized to give oaths.
“Willful and knowing means intentional and not accidental.
“A material fact is a fact which has a natural tendency to influence, or was capable of influencing, the decision making body to which it was addressed. It need not bear directly on the ultimate issue to be determined in the cause or hearing.”
An instructions conference was held off the record on Friday, November 22, 1996, and Sunday, November 24, 1996. Prior to closing arguments, the State made a record of the fact that the trial court did not instruct on a lesser included offense. Also, the State made a record that Dana opposed the limiting instruction under K.S.A. 60-455. However, there does not appear to be an objection to the instruction on materiality. K.S.A. 22-3414(3), as it appeared at the time of the crime and trial, provided in part as follows:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearhj erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
K.S.A. 22-3414 was amended in 1998 to malee the above rule explicitly applicable to instructions on lesser included crimes and to remove the masculine pronouns. L. 1998, ch. 185, § 3. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a -different verdict if the trial error had not occurred. State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
In State v. Rollins, 264 Kan. 466, 475, 957 P.2d 438 (1998), this court held that “[i]n a criminal prosecution where the defendant is charged under a state statute with perjury, the trial court is to determine as a matter of law if the alleged false testimony or writing was on a material matter.” The rule in Rollins is consistent with State v. Frames, 213 Kan. 113, 515 P.2d 751 (1973). The defendant in Frames argued the trial court erred in submitting “the question of materiality to the jury as a question of fact.” 213 Kan. at 119. The court agreed that allowing the jury to decide the matter was error but affirmed the conviction. First, the Frames court found the statements were material as a matter of law. Second, the court found the defendant was not prejudiced by the instruction. 213 Kan. at 119-20.
Applying the approach in Frames to this case, MikePs argument fails. Initially, we note Mikel fails in his brief on appeal to argue that the perjury was not based on a material fact. We find the false testimony involving speaking in tongues and prophesy was intended to conceal the facts surrounding Randy’s death. Therefore, we find the perjuiy involved a material fact with regard to a proceeding which was designed to uncover the circumstances under which Randy died. Considering K.S.A. 22-3414(3), the instruction was not clearly erroneous in the sense that the juiy would have rendered a different verdict had the error not occurred. The error required the juiy to make a finding above and beyond what the law required. In this sense, the error actually made the burden for the State greater. Mikel was not prejudiced as a result of this error.
4. Evidence of Mikel’s prior conduct
Mikel argues the trial court improperly admitted evidence of his prior bad conduct. Mikel complains exclusively of the evidence of the altercation between Steve Flynn, Mikel, and Dana at Steve’s place of work. The trial court properly admitted this evidence, both on the grounds that it was admissible under K.S.A. 60-455 and admissible as relevant evidence independent of K.S.A. 60-455. In admitting the evidence, the trial court gave the following cautionary instruction:
“Evidence may now be admitted concerning a crime or a civil wrong other than the present crimes charged. This evidence may be considered by you solely for the purpose of proving the defendant’s intent or motive.”
All relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevancy is more a matter of logic and experience than of law. State v. Sexton, 256 Kan. 344, 349, 886 P.2d 811 (1994). Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact. 256 Kan. at 349. Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. State v. Lee, 266 Kan. 804, 813, 977 P.2d 263 (1999).
The standard of review for the admission of evidence states:
“The admission of evidence lies in the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.” State v. Whitesell, 270 Kan. 259, 276-77, 13 P.3d 887 (2000).
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.)
Three requirements must be met for the proper introduction of evidence under K.S.A. 60-455: “(1) The evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) the probative value of the evidence outweighs its potential prejudice.” State v. Simkins, 269 Kan. 84, 92, 3 P.3d 1274 (2000).
State v. Carr, 265 Kan. 608, 963 P.2d 421 (1998), involved a trial for first-degree felony murder in the death of the defendant’s daughter. At trial, the State introduced evidence of Carr’s abusive behavior toward the victim’s brother. The court considered whether such evidence was properly admitted, independent of K. S. A. 60-455, to show the relationship between the defendant and the victim in light of the fact that the evidence involved the defendant and a party other than the victim. The court found the evidence of tire defendant’s abuse of the victim’s brother “highly relevant to show her pattern of discipline towards both the children.” 265 Kan. at 625. Further, the court found that the evidence of the defendant’s treatment of the victim’s brother was “part and parcel of her relationship with [the victim].” 265 Kan. at 625; see State v. Wimbley, 271 Kan. 843, 853, 26 P.3d 657 (2001) (“The ongoing relationship between the defendant and the victim was relevant to show the ongoing violent relationship between the parties and renders the inference that the defendant, having once before beaten Tina when she discussed leaving him, and having acted violently toward her in the past, killed her when she contemplated making a final break from him.”).
We find the evidence of the confrontation to be admissible as evidence of motive under K.S.A. 60-455 and as relevant evidence to show the continuing relationship between the parties. Steve and Randy were similarly situated. When Steve’s actions with respect to J.F. went too far, Dana resorted to calling her brother, Mikel, for assistance. Similarly, the State presented the evidence of the confrontation between Mikel and Steve to allow the jury to draw the reasonable inference that when Randy similarly pushed Dana too far, she called on Mikel to put a final end to the dispute between her and Randy.
5. Failure to sever conspiracy to commit peijury charge from murder charges
Mikel argues that the trial court erred in failing to sever the peijury charge from the murder charges.
The rules governing multiple crimes and defendants in the same trial are governed by K.S.A. 22-3202:
“(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999), repeated the well-established standard of review of joinder issues: “Whether a defendant will be tried on separate charges in a single trial is a matter within the discretion of the trial court, and the trial court’s decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion.” Thus, the question for this court is whether no reasonable person would agree with the trial court’s decision to try the murder offenses with the perjury offense. See State v. Plaskett, 271 Kan. 995, 1019, 27 P.3d 890 (2001). The defendant has the burden of showing prejudice requiring reversal. State v. Crawford, 255 Kan. 47, 54, 872 P.2d 293 (1994). The Court of Appeals has described the threshold for meeting the connection element of K.S.A. 22-3202(1) as minimal. State v. Shively, 26 Kan. App. 2d 302, 312, 987 P.2d 1119 (1999), affd 268 Kan. 589, 999 P.2d 259 (2000) (“The trial court’s decision is also supported by previous Kansas law demonstrating the minimal requirements for meeting the connection element of K.S.A. 22-3202[l].”).
Consideration of a number of this court’s opinions construing K.S.A. 22-3202 shows that Mikel’s argument has no merit. In State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979), this court considered the appeal of the defendant who had been tried jointly on two separate district court cases — one case involved aggravated robbery and kidnapping, and the other involved corruptly influencing a witness and unlawful deprivation of property. A trial on the first case ended in a mistrial, and the second case was not filed until after the first case had gone to trial. Upon retrial, the two cases were jointly tried. The charges in the second case arose out of the defendant’s failed attempt to secure the false testimony of a witness to aid him in the defense of the first case. On appeal, the defendant argued that the court erred in consolidating die cases and that the consolidation “unduly prejudiced his defense.” 226 Kan. at 749. The State argued that the joinder of the two cases was proper “because the defendant would not have committed the acts giving rise to the corruptly-influencing-a-witness charge but for the aggravated robbeiy and kidnapping charges,” and diat therefore the cases were “necessarily ‘connected’ and properly joined for trial.” 226 Kan. at 749.
Moore noted that no Kansas cases had addressed the issue, but that K.S.A. 22-3202 was in substance similar to the federal rules, and further noted that federal cases “consistently hold that when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are considered sufficiently ‘connected together’ to allow consolidation for trial.” 226 Kan. at 749. The court held it was not an abuse of discretion to join the cases because the two cases were sufficiently “connected together” under K.S.A. 22-3202 because the first case “precipitated the conduct” in the second case. 226 Kan. at 750. The court did not address the issue of whether the defendant was unduly prejudiced in his defense as a result of the joinder.
State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983), relied on Moore. The Pondexter court considered the defendant’s convictions of aggravated assault of a law enforcement officer, unlawful possession of a firearm, burglary, and attempted murder. The aggravated assault of a law enforcement officer charge and the unlawful possession of a firearm charge arose out of an October 22, 1981, incident in which two undercover police officers tried to purchase drugs from the defendant. On March 22, 1982, the defendant failed to appear for the trial on these two charges. On April 2, 1982, the defendant tried to kill one of the undercover officers, which was the basis for the attempted murder charge. On appeal, the defendant argued the trial court erred in consolidating the charges for the two separate incidents.
Pondexter quoted K.S.A. 22-3202 and then quoted from the analysis in Moore. 234 Kan. at 216-17. The court concluded:
“The case at bar is factually similar to the situation in Moore. Here the evidence presented by the State indicates the appellant wanted to kill Mullildn to prevent him from testifying at his trial for unlawful possession of a firearm and aggravated assault on a law enforcement officer. Clearly the crimes charged in the earlier action precipitated the conduct resulting in the attempted murder and burglary charges. The charges arising out of the two incidents were properly consolidated for trial.” 234 Kan. at 217.
In State v. Walker, 244 Kan. 275, 768 P.2d 290 (1989), the defendant was convicted of two counts of aggravated criminal sodomy and two counts of endangering a child, based on her abuse of her two stepsons. The defendant was also convicted of one count of making a terroristic threat. The threat charge arose out of her comments to a hospital social worker after she was not allowed to visit one of the victims, who had been admitted to a psychiatric hospital. The threat occurred after the two counts of endangering a child were filed, but at about the same time the investigation into the sodomy incidents took place. On appeal, the defendant argued the trial court erred in consolidating the terroristic threat charge with the charges involving her stepsons.
The court acknowledged that the charge of terroristic threat and the charges involving the defendant’s stepsons were not of the “same or similar character or based upon the same acts or transactions”; however, the court noted the State’s argument — based on Moore and Pondexter — that the charges merely need be “connected together.” 244 Kan. at 278-79. Walker summarized the two prior cases and then noted that while Walker’s case was not as strong as the defendants’ cases in Moore and Pondexter, it was sufficiently “connected together” because the charges involving the defendant’s stepsons precipitated the threat charges. 244 Kan. at 278-79 (“The earlier charges precipitated the factual setting which led appellant to make the threat against [the victim].”).
The Walker court did not end its analysis with consideration of K.S.A. 22-3202. The court went on to note that the defendant must in any event “demonstrate prejudice which would justify reversal.” 244 Kan. at 279-80. This showing of prejudice, held the Walker court, had not been made because the evidence was strong on the most serious charges, and the juiy’s failure to convict on both terroristic charges demonstrated that the jury had “carefully considered the evidence and each separate charge.” 244 Kan. at 280.
State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), rejected an argument that the joinder of the defendant’s charges for premeditated first-degree murder, aggravated robbery, sale of cocaine within 1,000 feet of a school, and unlawful possession of a firearm was improper. On the murder and robbery charges, the defendant was jointly tried with two other defendants. The drug charge was based on evidence gathered during a drug sting operation involving a confidential informant. The night following the murder and robbery of a motel night clerk, the defendant visited the confidential informant to sell drugs. While there, the defendant made statements linking himself to the robbery and murder of the motel night clerk. On appeal, the defendant argued the trial court erred in refusing to sever the sale of cocaine charge from the murder and robbery charges.
The court focused on the “connected together” language in K.S.A. 22-3202. 257 Kan. at 1016. The Anthony court’s analysis is instructive:
“The sale of cocaine charge in this case is based upon what occurred when Anthony went to Lamar Williams’ apartment to sell cocaine. At the time, Anthony was selling cocaine to Lamar Williams, the police were taping Anthony’s statement which provided direct evidence of his involvement in the robbery and murder at the motel. Similarly, the unlawful possession of a firearm charge resulted from a search of Anthony’s car to uncover more evidence of the robbeiy and murder.
“While the robbery and murder are separate and distinct charges from the sale of cocaine and unlawful possession of a firearm charges, all the charges are connected together. It would be very difficult to introduce evidence of the defendant’s incriminating statement regarding the robbery and murder without establishing the context within which the defendant’s statement was made. The statement was being taped because this was an undercover drug operation by the police, and the statement was made while Anthony was selling cocaine to the police undercover informant. Similarly, although somewhat differently, the gun was discovered during a search seeking evidence of the murder and robbery. The connection between the selling of cocaine and possession of the weapon on the one hand and the motel murder and robbery on the other hand is real and substantial enough to allow joinder. At the very least, we believe that reasonable persons could disagree on the ruling of the trial court, and we do not, therefore, find an abuse of discretion in granting joinder.” 257 Kan. at 1016-17.
The crimes in this case are closely related and connected. The perjuiy — which was designed to conceal beliefs that God would take care of Randy, that Randy was evil, and that it was not God’s will that Randy have custody of A.S. — was used to conceal the murder. These beliefs establish a motive for killing Randy and, therefore, establish the necessary connection under K.S.A. 22-3202(1) for joinder.
Mikel argues that the perjury charge should have been tried separately because the subject matter of the perjury did not involve details of the murder. Mikel argues that in order to be relevant, speaking in tongues would actually have to have caused the death of Randy. This argument ignores the probative value of the State’s evidence regarding the Fountain of Life Church and its members’ practices of speaking in tongues and prophesying. While speaking in tongues and prophesying are facially innocuous, when they involve labeling someone as “evil” and “the devil” and inform the audience that in effect God does not want a man to have custody of his daughter, then they become relevant to the motive for murder, and, therefore, relevant evidence.
6. Violation of Mikel’s First Amendment Right to Free Exercise of Religion
Mikel argues the trial court violated his First Amendment rights. The First Amendment provides, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const., 1st Amend. Mikel also argues his rights under the Kansas Constitution are implicated. Section 7 of the Kansas Constitution Bill of Rights provides in relevant part:
“The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief.”
K.S.A. 60-430 provides: “Every person has a privilege to refuse to disclose his or her theological opinion or religious belief unless his or her adherence or nonadherence to such an opinion or belief is material to an issue in the action other than that of his or her credibility as a witness.”
This court in State v. Leitner, 272 Kan. 398 Syl. ¶ 4, 34 P.3d 42 (2001), held:
“Although there is no per se barrier to the introduction of evidence of a person’s membership or participation in a religious group or association, to be admissible such evidence should be related to the commission of the crime charged or should be used to show a person’s possible bias or motive.”
The State in Leitner introduced evidence of the defendant’s participation in the Wicca pagan religion. With that evidence, the State hoped to counter the defendant’s evidence that the victim abused her by pointing out how the defendant participated in an activity disapproved by the victim. This court concluded that evidence of the defendant’s Wicca beliefs had no relevance to the crimes of first-degree murder of her ex-husband and that the probative value of the evidence was outweighed by unfair prejudice. However, the court determined the admission of the evidence was harmless.
Mikel relies on United States v. Beasley, 72 F.3d 1518 (11th Cir. 1996), which involved evidence of a religious cult. On appeal, the defendant argued that a conviction based on the defendant’s religious practices was improper. The court disagreed. “A person’s beliefs, superstitions, or affiliation with a religious group is properly admissible where probative of an issue in a criminal prosecution.” 72 F.3d at 1527. In Beasley, the court found the testimony of the defendant’s faith was “highly relevant to the jury’s understanding of the existence, motives, and objectives of the RICO conspiracy and the means by which it was conducted.” 72 F.3d at 1527. The court was confident the religion itself was not on trial, but that evidence regarding the religion was relevant because the “religious teachings were used to justify, rationalize, and promote crime.” 72 F.3d at 1527.
Similarly, Mikel’s First Amendment argument and argument under K.S.A. 60-430 fail. The religious practices themselves are not relevant. However, when a defendant’s religious practices involve beliefs and statements such as that the victim molested a child, the victim was evil, the victim was the devil, and God would “take care” of the victim, they become relevant in a criminal, prosecution because they tend to establish a motive for the defendant to commit the crime.
7. Cumulative error
Mikel argues cumulative errors in this case denied him his right to a fair trial. His claim is without merit. In the five assertions of error, only one instruction error was found to exist. We concluded that this error was not clearly erroneous and provided no basis for reversal of his convictions. Thus, the defendant’s claim of cumulative error fails.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
The controversy between the City of Wichita (City) and the Kansas Department of Revenue (Department) involving a retailers sales tax assessment for electricity consumed by the City in its delivery of water comes before this court upon our grant of the Department’s petition for review. The Court of Appeals reversed the Board of Tax Appeals’ (BOTA) decision that additional retailers sales tax upon the electricity was due on the basis that to do otherwise denied the City equal protection under the United States Constitution. We review that decision, which, if erroneous, requires us to determine the applicable law as well as the intent of the legislature with regard to the retailers sales tax.
The City is a political subdivision owning and operating a water treatment plant. The treatment plant provides water for the dual purpose of fire protection and furnishing water to others. The Department conducted an audit of the City’s electricity purchases used to power the water treatment plant for the period of June 1, 1992, through May 31, 1995. Although requested to do so, the Department declined to segregate the electricity purchases according to the percentage of the water used for governmental purposes and the percentage of the water sold to consumers.
The electricity purchased during the audit period was used to pressurize water at the Hess Pump Station which is part of the Sim Park Water Works Complex located approximately 1,000 feet from the water treatment plant. The City’s water system is an integrated system; the treatment plant and water distribution system are controlled from a central location. The Hess Pump Station is operated from a control room in the water treatment plant. The plant operator must take into account the City’s demand for water, the amount of chemicals needed to treat the water, and the amount of pressure necessary to deliver the water, in addition to all other needs in order to deliver potable water to others.
City water is pressurized at the Hess Pump Station and pushed into the City’s distribution system. The Environmental Protection Agency (EPA) and the Kansas Department of Health and Environment (KDHE) regulations require that the water be treated and pressurized at a minimum of 20 PSI (pounds per square inch) throughout the distribution process in order to be considered potable. In addition to pushing water through the distribution system and meeting KDHE regulations, pressurization also ensures proper volume for fire protection and prevents backflow contamination in the water distribution system. Pressurization is important to water quality because backflow presents a serious health hazard. The water’s potability is first measured at the discharge side of the Hess Pump Station. This is just past the pump station, after pressure has been added and electricity has been consumed.
Max Smith, a Department auditor, was originally appointed to conduct the City’s audit in September 1994. However, before he could complete the audit, Smith unexpectedly retired because of medical problems. In February 1995 the audit was assigned to Laurie Blaha, another Department auditor. Blaha began the audit in July 1995 and completed the audit within 6 months, which according to Robert Lewis, the audit manager for the Department, is typical for audits as involved as the City’s. According to Blaha, other assignments kept her from beginning the City’s audit until July 1995.
Blaha testified that she worked diligently on completing the audit. During the hearing before the administrative law judge (ALJ), the City’s counsel admitted that “the six months from late July to early February, ’96 is not an unreasonable time for this audit given its complexity.”
The Department’s audit for the period beginning June 1, 1992, and ending May 31,1995, determined that the City owed $337,623 plus interest of $110,031 as additional sales tax for electricity used to pressurize and treat the water, which was assessed at a rate of 4.9%. The City appealed and on February 11,1999, the ALJ issued a final determination upholding the tax assessment rate of 4.9% together with interest.
The City appealed the Department’s tax assessment to BOTA on Februaiy 22, 1999. The City sent a letter to BOTA on March 1, 1999, asking BOTA to issue a quick decision so the City could join the appeal in In re Appeal of Water Dist. No. 1 of Johnson County, 26 Kan. App. 2d 371, 988 P.2d 267 (1999), rev. denied 268 Kan. 886 (1999), which was then pending before the Court of Appeals. Both cases involved similar issues.
While the City’s case was pending before BOTA, the Court of Appeals decided In re Appeal of Water Dist. No. 1 of Johnson County on August 13, 1999. The Court of Appeals held that electricity purchased to pressurize water by Johnson County was exempt from sales tax. The court did not consider whether tire Johnson County water district’s electricity purchases should have been taxed at the 2.5% rate, K.S.A. 1992 Supp. 79-3603(u), but instead decided the case under the “consumed in production” exception of K.S.A. 79-3606(n). See 26 Kan. App. 2d at 373-74, 376-77.
Both parties notified BOTA of the decision in Water Dist. No. 1. In their respective letters, both parties changed their position before BOTA. The City changed its initial position that the 2.5% tax rate applied to its purchase of electricity and argued before BOTA and this court that the City is exempt from any tax. The Department also changed its initial position that a 4.9% rate of tax, K.S.A. 1992 Supp. 79-3603(c), applied, asked BOTA not to jump to conclusions before the petition for review had been determined in Water Dist. No. 1., and argued before BOTA and this court that the 2.5% rate applies. This court declined to grant the petition for review in Water Dist. No. 1.
BOTA concluded the 2.5% rate of taxation under the provisions of K.S.A. 1992 Supp. 79-3603(u) applied, found that the City’s electricity purchases for the period of time in question did not qualify for partial exemption under K.S.A. 1992 Supp. 79-3606(b)(2) and, unlike the court in Water Dist. No. 1, concluded that the tax exemption in K.S.A. 1992 Supp. 79-3606(n) did not apply.
COURT OF APPEALS’ DECISION
The City appealed BOTA’s order to the Court of Appeals on September 28,2000. The Court of Appeals in an unpublished opinion, In re Appeal of the City of Wichita, No. 85,953, filed November 2, 2001, noted that the audit of the City of Wichita covered “roughly the same time period and essentially the same issues” as those in Water Dist. No. 1, in which the court concluded that Johnson County owed no tax because of an exemption under K.S.A. 79-3606(n). The City of Wichita claimed that Water Dist. No. 1 controlled. However, the Court of Appeals noted in hindsight that Water Dist. No. 1 “was probably wrongly decided.” At the same time, the Court of Appeals reversed BOTA’s decision on the basis of equal protection; that is, granting tax exemption to Johnson County and taxing the City of Wichita treats similarly situated taxpayers differently, resulting in a denial of equal protection to the City of Wichita.
The Court of Appeals commented on the extreme difficulty involved in attempting to resolve this case on the merits of the tax exemption claimed: “During a single legislative session, applicable statutes were amended three times. The parties in Water Dist. No. 1 did not argue this point and we did not decide it.” The court set forth each of the 1992 amendments to K.S.A. 79-3602, concluding that it “need not decide which 1992 amendment was effective at various times, as it is not central to our ultimate holding in the present case.”
The court stated that “even when a taxpayer is taxed according to the law, that taxpayer may still suffer actionable discrimination if similarly situated taxpayers are granted more favorable treatment.” While the court determined that the City did not prove it suffered any intentional discrimination, the court explained that the City had been treated significantly different from the taxpayer in Water Dist. No. 1 and that justice required that the City be treated the same as the taxpayer in Water Dist. No. 1. Accordingly, the court reversed BOTA’s decision and remanded the case with directions to “grant Taxpayer the same treatment ordered for the taxpayer in Water Dist. No. 1.”
The Fourteenth Amendment to the United States Constitution provides that states cannot “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend XIV, § 1. The Kansas Constitution provides virtually identical protection. Kan. Const, art. 11, § 1; see Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 609, 24 P.3d 113 (2001). If similarly situated taxpayers receive disparate treatment, the one receiving the less favorable treatment may have been denied equal protection of the law even if the taxpayer receiving the less favorable tax is taxed according to the law. 271 Kan. at 609. However, the taxpayer seeking to establish a violation of the Equal Protection Clause must demonstrate that his or her treatment is the result of a “deliberately adopted system” which results in intentional systematic unequal treatment. 271 Kan. at 612.
While the Court of Appeals in the present case found there was no intentional discriminatory treatment, the court, citing Allegheny Pittsburgh Coal v. Webster County, 488 U.S. 336, 102 L. Ed. 2d 688, 109 S. Ct. 633 (1989), and Colorado Interstate Gas Co., 271 Kan. 596, found that the “taxpayer may still suffer actionable discrimination if similarly situated taxpayers are granted more favorable treatment.” The court further relied on K.S.A. 60-2101 and K.S.A. 60-2105. K.S.A. 60-2101 provides that the Court of Appeals “shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse.” K.S.A. 60- 2105 provides that the Court of Appeals “shall render such final judgment as it deems that justice requires.”
The Department points out that in Allegheny, equal protection grounds were warranted because there was a plethora of evidence of systematic and intentional discriminatory treatment. In Allegheny, the taxpayer was taxed at approximately 35 times the rate applied to owners of comparable properties. The difference in treatment continued over a period of 6 years and after the property was sold. The Supreme Court noted that this approach systematically produced dramatic differences in valuation between petitioners’ recently transferred property and otherwise comparable surrounding land. Further, the court in Allegheny noted that the Equal Protection Clause “tolerates occasional errors of state law or mistakes in judgment when valuing property for tax purposes.” 488 U.S. 341-43. For authority, the Court cited Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 353, 62 L. Ed. 1154, 38 S. Ct. 495 (1918).
The United States Supreme Court in Sunday Lake Iron Co. rejected the taxpayer’s argument that the State’s mistaken property overvaluation amounted to an equal protection violation. The Court held the following:
“The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. And it must be regarded as settled that intentional systematic undervaluation by state officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of his property. [Citation omitted.] It is also clear that mere errors of judgment by officials will not support a claim of discrimination. There must be something more — something which in effect amounts to an intentional violation of the essential principle of practical uniformity. The good faith of such officers and the validity of their actions are presumed; when assailed, the burden of proof is upon tire complaining party. [Citations omitted.]” 247 U.S. at 352-53.
There is an important distinction between the situation in Sunday Lake Iron Co. and the present case. The taxpayer in Sunday Lake convinced the Court that the tax was illegal, i.e., contrary to state law. The record in Sunday Lake disclosed facts “which render it more than probable that plaintiff in error’s mines were assessed for the year 1911 (but not before or after-wards) relatively higher than other lands within the county although the statute enjoined the same rule for all.” 247 U.S. at 353. However, the Court declined to provide relief. In the present case, there is no allegation that the statute under which the City was taxed is illegal. The mistake in this case, acknowledged by the Court of Appeals, was made in Water Dist. No. 1. There was no showing that the tax in this case was the result of intentional action. Nor was there any showing that the tax imposed in this case was the result of a deliberately adopted system which results in intentional systematic unequal treatment of the City of Wichita. As noted, the Constitution “tolerates occasional errors of state law or mistakes in judgment when valuing property for tax purposes.” Allegheny, 488 U.S. at 343.
Contrary to the Court of Appeals’ decision, the City failed to meet its burden to establish a violation of the Equal Protection Clause. The appropriate remedy, assuming a mistake in Water Dist. No. 1, was to not give a similar windfall to all similarly situated parties. The error was at most a mistake in judgment or mistake in the application of the law, not an intentionally and deliberately adopted system which results in systematic unequal treatment of the City.
We conclude that the City’s equal protection argument fails. The City has not demonstrated that the treatment it received under the tax laws of this state was the result of intentional systematic unequal treatment. The record fails to support a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We, therefore, reverse the decision of the Court of Appeals.
BOTA DECISION
BOTA concluded that the City’s purchases of electricity should be assessed at the tax rate of 2.5%, rather than 4.9%, based upon K.S.A. 1992 Supp. 79-3603(u). In our review of the BOTA decision and the law, we conclude that the 1992 legislature removed electricity from the definition of “tangible personal property which is consumed” in K.S.A. 1992 Supp. 79-3602(m), which made exemp tion under K.S.A. 1992 Supp. 79-3606(n) inapplicable. At the same time, the 1992 legislature imposed a 2.5% sales tax on the sales of electricity which was “essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in . . . the production, manufacture ... of tangible personal property.” K.S.A. 1992 Supp. 79-3603(u). For this reason, and based upon our analysis of the question, we affirm BOTA’s determination that a 2.5% sales tax is owed by the City for the period of time in question.
Standard of Review
BOTA is considered the paramount taxing authority in Kansas. Wirt v. Esrey, 233 Kan. 300, 314, 662 P.2d 1238 (1983). However, if BOTA’s interpretation of law is erroneous as a matter of law, appellate courts will take corrective steps. In re Tax Appeal of Intercard, Inc., 270 Kan. 346, 349, 14 P.3d 1111 (2000).
“[T]ax exemption statutes, such as K.S.A. 79-3606, are to be construed in favor of imposing the tax and against allowing an exemption. [Citation omitted.] On the other hand, tax statutes will be construed favorably to the taxpayer where there is a reasonable doubt as to [their] meaning. [Citation omitted.]” Water Dist. No. 1, 26 Kan. App. 2d at 372-73.
K.S.A. 77-601 et seq. sets forth our scope of review. See K.S.A. 2001 Supp. 74-2426(c). K.S.A. 77-621(a) provides that unless “this act or another statute provides otherwise: (1) The burden of proving the invalidity of agency action is on the party asserting invalidity.” In this case, BOTA ordered the City to pay a sales tax. Thus, the City bears the burden of proving BOTA’s decision erroneous. K.S.A. 77-621(c) further specifies that this court may grant relief in the following cases:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
"(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
See In re Tax Appeal of Panhandle Eastern Pipeline Co., 272 Kan. 1211, Syl. ¶ 1, 39 P.3d 21 (2002). Interpretation of statutes is a question of law; thus, to the extent statutory interpretation is required in this case, our review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Analysis of relevant amendments
K.S.A. 79-3602 (Ensley 1989) contained definitions of words and terms used throughout the sales tax provisions. That statute was amended three times in 1992. Each of the following three session laws contained either italicized or strike-through language in only one particular subsection. In other words, none of them, viewed in isolation, purported to amend by italicized or strike-through type more than one subsection. Further, each of the following session laws explicitly amended K.S.A. 79-3602, not K.S.A. 79-3602 as amended by either of the other two session laws enacted in 1992. Our discussion considers the session laws in the order they became effective. We also note that the order of enactment of the amendments is the reverse of the order of their effectiveness.
1. The (m) Session Law: L. 1992, ch. 280, § 58 (approved May 20, 1992, effective June 1, 1992, and codified at K.S.A. 1992 Supp. 79-3602[m]).
“On June 1, 1992, K.S.A. 79-3602 is hereby amended to read as follows: 79-3602.
“(m) ‘Property which is consumed’ means tangible personal property which is essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in (1) the production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property, (2) the providing of services or (3) the irrigation of crops, for sale in the regular course of business, and which is not reusable for such purpose. The following items of tangible personal property are hereby declared to be ‘consumed’ but the listing of such property shall not be deemed to be exclusive nor shall such listing be construed to be a restriction upon or an indication of, the type or types of property to be included within the definition of property which is consumed’ as herein set forth:
“fAf-Insecticides, herbicides, germicides, pesticides, fungicides, antibiotics, biologicals, pharmaceuticals, vitamins and chemicals for use in commercial or agricultural production of fruit, vegetables, feeds, seeds, animals or animal products whether fed, injected, applied or otherwise used; and
“(B) electricity; gas and water.” L. 1992, ch. 280, sec. 58.
The (m) session law removed subsection (B). With the words “electricity, gas and water” removed from the definition of “tangible personal property which is consumed” in 79-3602, taxation of these items was no longer explicitly exempted by K.S.A. 79-3606(n) (Ensley 1989), which exempted sales of tangible personal property consumed in the production of tangible personal property:
“(n) all sales of tangible personal property which is consumed in the production [or] manufacture, . . . of tangible personal property . . . may obtain from the director of taxation and furnish to the supplier an exemption certificate number for tangible personal property for consumption in such production, manufacture, processing, mining, drilling, refining, compounding, irrigation and in providing such services.” (Emphasis added.) K.S.A. 1991 Supp. 79-3606(n).
2. The (j) Session Lato: L. 1992, ch. 198, sec. 7 (approved April 24, 1992, effective July 1, 1992, and codified at K S.A. 1992 Supp. 79-3602b [j]).
The (j) session law modified K.S.A. 79-3602(j) (Ensley 1989), which defined “isolated or occasional sale.” Subsection (j) is unrelated to the present case. However, as the Court of Appeals noted, the (j) session law retained K.S.A. 79-3602(m)(B) (Ensley 1989) as it stood before the (m) session law, L. 1992, ch. 280, sec. 58, became effective. It is important to note, the language in the (j) session law retaining K.S.A. 79-3602(m)(B) (Ensley 1989) language is not in italics, but is in regular type. Of further interest, tire modifications to subsection (1), as explained below, are also not reflected in the (j) session law.
3. The (l) Session Law: L. 1992, ch. 102, sec. 7 (approved April 16, 1992, effective July 1, 1992, and codified at K S.A. 1992 Supp. 79-3602a[l]).
The (1) session law modified K.S.A. 79-3602(1) (Ensley 1989), which defined “ingredient or component part.” This modification is not relevant to the present case. However, as the Court of Appeals again noted, this session law retained subsection (m)(B) as it stood before the (m) session law, L. 1992, ch. 280, § 58 — again without italicized type. Of interest, the modification created by the (j) session law, described above, was not reflected in this session law, although the amendments to subsection (j) and (1) became effective on the same day.
The legislature’s reconstruction of K.S.A. 1992 Supp. 79-3602, K.S.A. 1992 Supp. 79-3602a, and KS.A. 1992 Supp. 79-3602b.
The Revisor of Statutes was faced with the same confusion at issue in this case; hence, the creation of two new sections, K.S.A. 1992 Supp. 79-3602a and 79-3602b, to accommodate the (j) and (1) session laws. Notably, none of the three session laws explicitly created new sections in the Kansas Statutes Annotated — each purported to amend 79-3602. The legislature summarily repealed what the Revisor of Statutes had codified at 79-3602a and 79-3602b with L. 1994, ch. 2, § 5, which became effective on February 17, 1994. On the same day, L. 1994, ch. 2, § 1 became effective, incorporating the amendments made by the 1992 sessions laws affecting subsections (m), (1), and (j) into one section.
The language deleted by the (m) session law in 1992 is not found in the 1994 session law merging the amendments made by the (m), (l), and (j) session laws. Thus, while not conclusive evidence of what the 1992 legislature intended, there is no question that the 1994 legislature did not believe the (m)(B) language deleted by the (m) session law survived the 1992 legislative session through re-enactment by the (j) and (1) session laws. Otherwise, tire session law would have reprinted (m)(B) with strike-through iype. On the other hand, as mentioned above, the legislature did delete K.S.A. 79-3602a and 79-3602b — both of which contained subsection (m)(B) — when it enacted L. 1994, ch. 2, § 5.
Prior to June 1, 1992, K.S.A. 79-3603 (Ensley 1989) imposed the following tax on electricity:
“For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act, there is hereby levied and there shall be collected and paid a tax at the rate of 4.25% upon:
“(c) the gross receipts form the sale or furnishing of gas, water, electricity, and heat, which sale is not otherwise exempt from taxation under the provisions of this act, and whether furnished by municipality or privately owned utilities.”
In 1992, the legislature amended 79-3603 with the following:
“For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act, there is hereby levied and there shall be collected and paid a tax at the rate of 4.25% 4.9%, unless otherwise more specifically provided, upon:
“(c) the gross receipts from the sale or furnishing of gas, water, electricity and heat, which sale is not otherwise exempt from taxation under the provisions of this act, and whether furnished by municipally or privately owned utilities;
“(u) the gross receipts received from all sales of electricity, gas and water which is essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in: (1) The production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property; (2) the providing of services; or (3) the irrigation of crops, for sale in the regular course of business, and which is not reusable for such purposes which shall be taxed at the rate of2.5%” L. 1992, ch. 280, sec. 59.
New language is shown in italic type and deleted language is shown by strike-through type. The quotation above and the (m) session law discussed above are actually the same session law. Both became effective on June 1,1992. K.S.A. 1992 Supp. 79-3603 was amended twice in 1994, but subsection (u) was not affected. Subsection (u) was deleted in 1995, effective April 15,1995. L. 1995, ch. 118, sec. 3. The 1992 amendment to 79-3603 created two levels for the taxation of sales of electricity: K.S.A. 1992 Supp. 79-3603(c) and K.S.A. 1992 Supp. 79-3603(u).
Reconciliation of the session laws enacted during the audit period in this case is a question of law, and our review is unlimited. State v. Jurdan, 258 Kan. 848, 850, 908 P.2d 1309 (1995). The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Robinett v. The Haskell Co., 270 Kan. 95, 100, 12 P.3d 411 (2000). Further, there is a presumption that the legislature does not intend to enact useless or meaningless legislation. Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 132, 992 P.2d 800 (1999).
The Department argues that the legislature intended each of die 1992 session laws amending K.S.A. 79-3602 (Ensley 1989) to affect only one particular subsection, and any meaning derived from the session laws regarding subsections not explicitly affected by italicized or strike-through type is misplaced. The Department relies on the explanatory language at the beginning of the session laws which informs the reader that new language is shown with italicized type and deleted language is shown with strike-through type.
The Department offers State v. Roderick, 259 Kan. 107, 911 P.2d 159 (1996), to support its position. Roderick permitted review of the State’s appeal upon a question reserved following Roderick’s sentence. Roderick entered “guilty pleas in three separate criminal cases for four offenses committed on different dates.” 259 Kan. at 108. The issue was whether the convictions in the separate cases could be used in each of the other cases for purposes of determining Roderick’s criminal history score. The district court did not consider the convictions in the other cases. The court repeated the often cited fundamental rule of statutory construction: “[T]he intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, we must give effect to the intention of the legislature, rather than determine what the law should or should not be. [Citation omitted.]” 259 Kan. at 110.
For purposes of resolving the question, this court in Roderick turned to the definition of “prior conviction” as defined at K.S.A. 1994 Supp. 21-4710(a). 259 Kan. at 110. The definition of prior conviction was essential in determining the defendant’s criminal history score. The court also cited K.S.A. 1994 Supp. 21-4710(d)(11), which further defined “conviction” in a way unfavorable to Roderick. 259 Kan. at 110-11.
The court then turned to Roderick’s argument which is somewhat similar to the City’s argument in the present case. Roderick pointed out that K.S.A. 1993 Supp. 21-4710 was amended twice in 1994. The first amendment, L. 1994, ch. 291, sec. 54, was approved April 25, 1994, and codified at K.S.A. 1994 Supp. 21-4710. It amended 21-4710 by forming the law discussed above, subsection (d)(11). The second amendment, L. 1994, ch. 341, sec. 15, was approved May 11, 1994, and codified at K.S.A. 1994 Supp. 21-4710a. The second amendment did not contain the amendments in the former session law: “Roderick argues those omissions from K.S.A. 1994 Supp. 21-4710a indicate that the legislature intended to eliminate the definition of prior conviction from the statute.” 259 Kan. at 111.
This court was not persuaded. The court noted that the two session laws represented separate bills and that they proceeded through the legislature and became law toward the end of the session “before the separate amendments were reconciled.” The court noted the following rule:
“Repeal by implication is not favored, and acts will not be held to have been repealed by implication unless a later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect. [Citation omitted.] Such a repeal is not to be found when both statutes may operate independently without conflict. [Citation omitted.]” 259 Kan. at 111.
The court found that K.S.A. 1994 Supp. 21-4710 and K.S.A. 1994 Supp. 21-4710a were not in conflict. “Each contains amendments to different portions of K.S.A. 1993 Supp. 21-4710. Both can be read and applied together. Therefore, the definition of prior conviction’ and K.S.A. 1994 Supp. 21-4710(d)(ll) should not be considered as repealed by implication.” 259 Kan. at 111.
Roderick provides an analogous situation to the present case. The three 1992 session laws amending 79-3602 contain amendments to different portions of 79-3602. They can be read together and used to form a section similar to what the legislature formed in 1994. In this sense, the session laws do not conflict, just as they did not in Roderick. To hold otherwise, this court would have to conclude the (m) session law, L. 1992, ch. 280, sec. 58, was repealed by implication when the (j) and (1) session laws became effective. The logic behind merging the three session laws together is further bolstered by the legislature’s amendments in 1994 which remove all doubt about the legislature’s intent to eliminate (m)(B).
There is further support for interpreting the 1992 session laws amending 79-3602 as not presenting a conflict. Under the City’s theory, the imposition of the 2.5% rate on electricity, K.S.A. 1992 Supp. 79-3603(u), which was contained in the same session law as the amendment to 79-3602(m) and, therefore, became effective at the same time, would become useless and meaningless with the repeal of the (m) session law by implication caused by the (1) and (j) session laws. No argument can be made that K.S.A. 1992 Supp. 79-3603(u) was similarly repealed by implication. Thus, under the City’s theory, as of July 1, 1992, electricity was, per K.S.A. 1992 Supp. 79-3602a(m) or K.S.A. 1992 Supp. 79-3602b(m), back in the definition of “tangible personal property which is consumed,” and, therefore, within the exemption provided at K.S.A. 1992 Supp. 79-3606(n). Under such an interpretation, the 2.5% rate of taxation in K.S.A. 1992 Supp. 79-3603(u) would have no function.
The City responded by citing State, ex rel, v. McCombs, 125 Kan. 92, 262 Pac. 579 (1928). McCombs faced a similar situation as tire effective dates of two session laws were the reverse of the enactment dates. The City’s brief summarizes McCombs with the following: “In construing these statutes, the Court held that the later effective date (although the earlier enactment) must be given paramount authority, and the later enacted provisions ‘cannot stand’ when the earlier enactment became effective.”
In McCombs, the State brought an action in mandamus to compel the mayor of Kansas City to sign a contract for the purchase of coal. Two session laws were in issue: (1) L. 1907, ch. 121, which was enacted March 9,1907, and became effective March 21,1907, and (2) L. 1907, ch. 114, which was enacted March 2, 1907, and became effective May 27,1907. The mayor, in part, argued that L. 1907, ch. 121, which authorized the appointment of a purchasing agent, gave the mayor and the purchasing agent the power to veto the contract. However, according to L. 1907, ch. 114, such veto power was taken away from the mayor.
The court disagreed that L. 1907, ch. 121 could be used to amend the earlier enacted statute, L. 1907, ch. 114. 125 Kan. at 94-96. The court, in part, based its reasoning on the fact that L. 1907, ch. 121 explicitly applied to the council form of government, while L. 1907, ch. 114 applied to the commission form of government. However, the court hesitated to rest its decision on those grounds, finding that it is “always desirable” to provide the advantages to both forms of government unless specific and explicit statutory language precludes application to both forms. 125 Kan. at 95. Thus, the court concluded it would be appropriate to apply L. 1907, ch. 121 to the extent it does not conflict with L. 1907, ch. 114.125 Kan. at 95. However, as mentioned above, the two session laws conflicted over the issue of the mayor s veto power:
“By chapter 114 the veto power is taken away from the mayor and he is given a vote as a member of the board of commissioners, and if the full use of the provisions of chapter 121 amount to a veto in effect as between the mayor and the other members of the board of commissioners, then the provisions of chapter 121 are directly in ‘conflict with the provisions of this act (chapter 114)’ and to that extent they cannot stand. Disregarding the statement of later and earlier acts, the following is an appropriate rule of construing statutes:
“Where a conflict exists between a later and an earlier act of the legislature, and where the later act does not attempt to cover all the provisions of the earlier act, both acts ordinarily remain in force except on the point where the acts are in conflict, in which respect the later act supersedes, repeals or modifies the inconsistent terms of the earlier enactment.’ [Citation omitted.]” 125 Kan. at 96.
Thus, although similar in some respects, the court in McCombs was faced with a much different set of facts than we face in this case. In McCombs, two separate session laws conflicted in substance. In the present case, the conflict in session laws is a matter of form in that the multiple session laws which modify the same section were not reconciled before they were passed. Moreover, the principles cited in McCombs lend some support to the Department’s position that “ ‘[different statutes relating to the same subject matter are to be construed together.” 125 Kan. at 96 (quoting State v. Young, 17 Kan. 414, Syl. ¶ 2 [1877]).
The factual situation in this case is more similar to Roderick when compared to McCombs. It is a well reasoned opinion and a more recent case. As such, our analysis is aided by relying upon Roderick rather than on McCombs in resolving the issues relating to the three session laws.
We conclude that BOTA did not err in its interpretation of the 1992 legislative changes to 79-3602. The 1992 legislature removed electricity from the definition of “tangible personal property which is consumed” in 79-3602(m), which made exemption under 79-3606(n) inapplicable. At the same time, the 1992 legislature imposed a 2.5% sales tax on the sales of electricity which was “essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in . . . the production [or] manufacture ... of tangible personal property.” K.S.A. 1992 Supp. 79-3606(u). BOTA’s decision is affirmed.
Exemption for Political Subdivision Purposes
The City argued that BOTA erred in refusing to apply the exemption provided at K.S.A. 1992 Supp. 79-3606(b)(2). BOTA refused to apply the exemption because the purchases of electricity were not used exclusively for political subdivision purposes. BOTA determined the statute did not contemplate allocating the electricity purchased between exempt and nonexempt uses.
Statutory provisions exempting property from taxation are to be strictly but reasonably construed. Kansas Enterprises, Inc. v. Frantz, 269 Kan. 436, 442, 6 P.3d 857 (2000). In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 751, 973 P.2d 176 (1999), devised five rules regarding exemptions which require an exclusive use:
“(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation.
“(2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. [Citations omitted.]
“(3) The burden of establishing exemption from taxation is on the one claiming it. [Citation omitted.]
“(4) The question is not whether or not the property is used partly or even largely for the purpose stated in the exemption provisions, but whether it is used exclusively for those [purposes]. [Citations omitted.]
“(5) The phrase “used exclusively” in the constitution and statutes means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use. [Citation omitted.]”
K.S.A. 1992 Supp. 79-3606(b)(2), provides, in relevant part:
“The following shall be exempt from the tax imposed by this act:
“(b) all sales of tangible personal property . . . purchased directly by the state of Kansas [or] a political subdivision thereof . . . and used exclusively for state [or] political subdivision . . . purposes, except when . . . (2) such political subdivision is engaged or proposes to engage in the business of furnishing gas, water, electricity or heat to others and such items of personal property or service are used or proposed to be used in such business.” (Emphasis added.)
The question BOTA faced was whether the exclusive use phrase was satisfied when the City was engaged in the business of furnishing water to others.
The City argues that if providing water fails to meet the definition of political subdivision purposes, there would be no need for the exception. It contends that if furnishing water did not amount to a political subdivision purpose, the exemption would not apply in the first instance; therefore, the legislature must have considered furnishing water a political subdivision purpose. Under this interpretation, the purchases of electricity were exclusively for political subdivision purposes whether the water was furnished for the City or for sale to others.
However, consistent with our standard of review, we interpret the phrase “political subdivision purpose” narrowly, which is appropriate under the doctrine of operative construction. Thus, if the City was in the business of furnishing water, any purchases used for that purpose cannot qualify for the exemption.
The Department argues that 79-3606(b) requires exclusive use for an exempted purpose, and because furnishing water was excepted from the exemption, the exemption would not apply.
We consider the language of the “except when” clause as making the entire subsection inapplicable when the political subdivision was in the business of furnishing water to others. The exception is phrased as “except when” not “except to the extent.” When the exception is in effect, “all sales of tangible personal property or service” are not exempt.
The parties cite administrative regulations which directly and indirectly affect the interpretation of 79-3606. The Secretary of Revenue (Secretary) is directed by statute to adopt rules and regulations for the administration of the taxing statutes. See K.S.A. 2001 Supp. 79-3618(a). The standard of review with respect to interpreting statutes enforced by executive agencies is slightly tempered:
“While construction or interpretation of statutory language is a judicial function, interpretation of a statute is a necessary and inherent function of an agency in its administration or application of that statute. [Citation omitted.] Usually, the legal interpretation of a statute by an administrative agency that is charged by the legislature with the authority to enforce the statute is entitled to great judicial deference although when reviewing questions of law, the court may substitute its judgment for that of the agency. [Citation omitted.] However, such interpretation is only entitled to deference if it has a rational basis. [Citation omitted.]” Mitchell v. Liberty Mut. Ins. Co., 271 Kan. 684, 699-700, 24 P.3d 711 (2001).
The regulation corresponding to the 79-3606(b) exemption is found at K.A.R. 92-19-76:
“(d) The exemption from sales tax for political subdivisions applies only to the extent the political subdivision is not engaged nor proposes to engage in the business of furnishing gas, water, electricity or heat to others and tire tangible personal property or taxable services are used or proposed to be used in such business. When a political subdivision is engaged or proposes to engage in furnishing any of these four businesses, the political subdivision shall pay sales tax on all purchases of tangible personal property and taxable services used in these businesses. Nothing under this section of the act shall be construed to limit other exemptions which may be available to a political subdivision which furnishes gas, water, electricity or heat.” (Emphasis added.)
While the “to the extent” language might suggest it is appropriate to prorate the purchases of electricity, the second sentence strongly suggests that “all” purchases made in the furnishing of water should be taxable.
The Department also cites its informational guide, which is not binding upon this court:
“The law does not allow cities to prorate the amount of sales tax to be paid the retailer when an item or service is to be used only part time in the business of selling gas, water, electricity or heat to others. For example, if a city purchases a pick-up truck which will be used half-time by the city’s water department (taxable) and half-time by the city’s streets and roads department (nontaxable), the sales tax law does not provide such city with authority to prorate the sales tax and pay the dealer sales tax on half of the cost of the pick-up. Thus, the rule is — if the item is to be used at all in the business of selling gas, water, electricity or heat to others then, sales tax is due on the total selling price.” Kansas Department of Revenue, “Kansas Retailers’ Sales Tax & Kansas Compensating (USE) Tax,” Information Guide 19-93-1 (March 1, 1993).
The City points out that at least three other regulation sections contemplate prorating electricity between exempted uses and non-exempted uses. K.A.R. 92-19-20(c) provides that when claiming an exemption, the following shall apply:
“(1) When gas, electricity, or water is furnished through one meter for both taxable and exempt purposes, the taxpayer shall have the burden of establishing the exempt portion or percentage of the gas, water or electricity.
“(2) The purchaser shall furnish the supplier a statement to enable the supplier to determine the percentage of the gas, water and electricity subject to exemption under K.S.A. 79-3606(f) and (n). The formula and computations used in determining the exemption shall be available for inspection any time by the department of revenue.”
However, K.S.A. 1992 Supp. 79-3606(f) and (n) did not contain an exclusive use requirement.
K.A.R. 92-19-37 provides as follows:
“(a) Where sales of natural gas, electricity, heat and water delivered through mains, lines or pipes are made to multi-family dwellings or other buildings in which residential premises are not individually metered and billed, only the pro rata portion of these sales equal to the percentage of the building actually occupied as residential premises shall be subject to exemption. As used in this regulation, ‘residential premises’ shall have the meaning ascribed to it in K.A.R. 92-19-38.”
Again, the exemption in the above regulation, relying on K.S.A. 1992 Supp. 79-3606(w) for support, does not have an exclusive use requirement.
The City also cites K.A.R. 92-19-39, which was revoked in 1998:
“(a) Sales of natural gas, electricity, heat and water delivered through mains, lines or pipes for agricultural use are exempt from sales tax. Where utility services are not metered individually between agricultural and commercial uses, the burden of establishing the percentage of exempt usage is on the consumer, and the formula and computations used in establishing the percentage of exempt use shall be available for inspection at any time by the department of revenue.”
The above exemption, relying on K.S.A. 1992 Supp. 79-3606(w) for support, does not require an exclusive use.
Given the narrow interpretation of exemption statutes, combined with the deference to administrative interpretation appropriate under the doctrine of operative construction, we conclude that the City’s purchases of electricity are not to be prorated be cause they were also for purposes which are expressly nonexempt under law. BOTA was, therefore, correct in not prorating the purchases and in its affirming the assessment of tax on all City purchases.
Interest
BOTA found that the City was not entitled to an abatement of interest on the assessment of additional sales tax:
“59. Finally, the Board finds that the Taxpayer is not entitled to the abatement of interest and penalties on the assessment of additional sales tax. . . . For the Taxpayer to be entitled to the abatement of interest, the delay in assessing the tax must have resulted from the negligence of a Department employee. ... In this case, the delay in completing the assessment was caused by the unexpected medical retirement of the first auditor. Once a second auditor was assigned, the audit was completed in a timely manner. The Board finds no negligence on the part of any employee of the Department that contributed to the delay in completing the assessment. The Board finds that the Taxpayer’s request for an abatement of interest should be denied.”
Our standard of review requires that we determine if B OTA’s decision is supported by substantial evidence, reviewing the record as a whole. K.S.A. 77-621(a)(7). Since BOTA made a negative finding that there was no negligence, the finding will not be disturbed on appeal absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, 441, 885 P.2d 1233 (1994).
K.S.A. 79-3268(d) provides:
“The director shall waive any interest assessed against a taxpayer when it is determined by the director that the negligence of an employee of the department resulted in undue delay in eidier assessing tax or notifying the taxpayer of the liability owed.”
The section was amended in 1997, L. 1997, ch. 126, sec. 16, but the amendment did not affect subsection (d).
Before the Court of Appeals, the City argued that the audit began in September 1994 and was not complete until February 1996. However, the delay from the time Smith began his work on the audit until the time Blaha began her work on the audit affected the audit period itself. Thus, any delay gave the City the benefit of excluding 9 months, i.e.,3 years before Smith began his audit (September 1991) until 3 years before Blaha began her audit (June 1, 1992), from the audit period. Regarding the time Blaha took to complete the audit, the City’s attorney at the hearing before the ALJ remarked that the time was not unreasonable. The record supports B OTA’s determination and there is no evidence which would support reversal of the negative finding that the Department’s employees were not negligent in either assessing the tax or in notifying the taxpayer.
The City complained about the “inordinate time required to move this case through the administrative process.” The Department pointed out that the statutory language only contemplated delay in assessing the tax or notifying the taxpayer of the liability. The City fails to persuasively respond to the Department’s argument that delays other than in assessing tax and notification of the taxpayer are beyond the reach of K.S.A. 79-3268(d). “Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]” GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001). Without any statutory authority for extending K.S.A. 79-3268(d) to delays other than those plainly specified in that subsection, we decline to expand that subsection.
BOTA did not err in failing to find that the Department’s employees were negligent, and B OTA’s decision refusing to waive interest on the assessed tax is affirmed.
Attorney Fees
The City in this case sought attorney fees and costs pursuant to K.S.A. 79-3268(f). K.S.A. 79-3268(f) provides:
“Attorney fees and related expenses may be awarded to a taxpayer if it can be proved that an assessment or claim asserted by the department is without a reasonable basis in law or fact. A taxpayer must first exhaust its administrative remedies before an award of attorney fees may be made under this section.”
The Court of Appeals, in this case, determined the City was not entitled to attorney fees and costs because, citing K.S.A. 79-3268(f), it could not determine that the Department “made its assessment without a reasonable basis in law and fact.” Unlike the Court of Appeals, we affirm the BOTA decision. Thus, in light of our conclusion, we find that attorney fees are even less appropriate in this case and affirm the Court of Appeals’ denial of attorney fees and costs.
The Court of Appeals’ decision is affirmed in part and reversed in part, and the decision of BOTA is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
Following two trials in the Wyandotte County District Court, Jesse Joseph Villanueva, Jr., was convicted by a jury of raping his former girlfriend S.M. on November 15, 1998. Villanueva’s first trial ended in a hung jury. After the second jury convicted Villanueva of one count of rape, the trial court sentenced Villanueva to 254 months in the custody of the Secretary of Corrections.
Villanueva appealed his conviction, asserting error in: (1) the admission of testimony of social worker Michele Paynter on symptoms of rape trauma syndrome; (2) failure to provide a unanimity instruction; (3) that prosecutorial misconduct resulted in a denial of a fair trial; and (4) that cumulative trial errors warranted reversal of his conviction. The Court of Appeals affirmed Villanueva’s conviction on December 7, 2001, and found that the trial court erred in allowing Paynter’ s testimony and that the prosecutor’s remarks were intemperate and explicitly appealed to the prejudices of jurors, but held that the errors were harmless and did not impair Villanueva’s right to a fair trial. See State v. Villanueva, 29 Kan. App. 2d 1056, 35 P.3d 936 (2001).
We granted Villanueva’s petition for review of the Court of Appeals’ decision. On review, Villanueva limits his claims of error to the admission of Paynter’s testimony and prosecutorial misconduct during closing argument.
S.M. testified that she met Villanueva at a Kansas City bar in October 1997. They dated for approximately 1 year. S.M. said they had a sexual relationship during that time period and occasionally loaned each other money. At the time S.M. ended the relationship, she said she owed Villanueva $140, but according to Villanueva she owed him approximately $450. Both agreed that Villanueva went to S.M.’s house the morning of November 15, 1998; however, Villanueva and S.M. offered vastly different versions of the events following his arrival.
Villanueva testified that he went to S.M.’s house on November 15, 1998, to discuss the money S.M. owed him. According to Villanueva, he had approached S.M. about the money the night before at the bar, but S.M. told him she did not want to talk about it then. S.M. told him to contact her the next day. Villanueva stated that he drove his mother’s car to S.M.’s house the next morning, knocked on the door, and S.M. opened the door and told him to come in. Villanueva testified that he said, “I got court Thursday and I figured if you had money to.go out drinking, that maybe you could pay me some of the money you owe me.” Villanueva said that made S.M. upset, and they began arguing. S.M. asked who he was dating and if he was sleeping with her. Villanueva responded, “[Y]es, and it’s twice as good as it was with you. So what?” S.M. slapped him. After telling S.M. to settle down, the argument continued when Villanueva called her a freak. According to Villanueva, S.M. said, “I’ll show you freak,” and, “I can’t believe you raped me.” Villanueva went to the bathroom. When he came out, S.M. was not there, so he left. Later, Villanueva saw police cars at S.M.’s house as he drove by, and it dawned on him that she was accusing him of rape.
S.M. told a completely different story. S.M. testified that after they broke up in October, Villanueva repeatedly called her and came to her work and school to talk about their relationship. S.M. testified that the night before the incident, Villanueva approached the table at the bar where she was sitting, but she stood up and left without speaking to Villanueva. S.M.’s son was spending the night with his aunt but came by at 8:30 a.m. to gather some clothes. S.M. said that after her son left, she went back to bed. The doorbell rang again and S.M. opened the door, saw Villanueva, and asked him what he wanted. According to S.M., after she let Villanueva in, he approached her asking why she was so mean to him the night before and why she would not talk to him. S.M. testified that she told him to back off, but at that point he grabbed her and forced her to the floor. S.M. said as she struggled with Villanueva she screamed for him to stop, but he said she “owed him.” S.M. stated she twined her legs together, but said Villanueva pulled them apart and raped her. S.M. said after he finished, Villanueva let her get up and she put her pants on. Villanueva stayed around as if nothing had happened, pleading with her about their friendship. According to S.M., she told him “friends don’t rape each other,” and he responded by stating, “I didn’t rape you.” When Villanueva went to the bathroom, S.M. said she ran for the door and went to her neighbor’s house to call the police.
S.M. was taken by police to the University of Kansas Medical Center for treatment. Dr. Pamela McCoy and nurse Angela Zeeb performed a rape examination on S.M. McCoy noted multiple abrasions, bruises, and scratches on S.M.’s right cheek and left breast and bruises on the insides of both thighs in a fingerprint pattern consistent with someone forcing her legs open. McCoy testified the bruises were fresh. S.M. also had a scratch on her right labia and general redness around her vaginal area. McCoy stated that she noticed a yellow substance or exudate in S.M.’s vagina. On cross-examination, McCoy noted that the yellow exudate could be related to a bacterial infection or vaginal irritation and admitted it was possible that a woman with a vaginal irritation could scratch herself in her sleep and not even know it. KBI testing of the vaginal swabs taken during the rape examination of S.M. was negative for semen or seminal fluid.
Officers arrested Villanueva, chasing him down by foot after he attempted to escape by running from the officers. After he was in custody, Villanueva gave varying stories to Detective Michael York, but when Villanueva’s behavior became increasingly strange, York ended the interview. The next day, the State charged Villanueva with one count of rape.
The first jury trial took place in October 1999. According to Villanueva, the State did not present evidence concerning rape trauma syndrome at the first trial. After deliberation, the jury returned to the court and advised the court it could not reach a unanimous decision and that further deliberation would not be of benefit. The foreman advised the court that the jurors’ vote was 10 to 2, but following the court’s instruction, did not indicate which way jurors had voted. The trial court declared a mistrial due to a hung jury.
Prior to Villanueva’s second trial at a motion hearing in January 2000, the assistant district attorney advised the court that he intended to offer testimony of Paynter on rape trauma syndrome. Paynter was an unlicensed social worker who worked as a supervisor at the Metropolitan Organization to Counsel Sexual Assault (MOCSA) in Kansas City, Missouri. Defense counsel argued that because the witness had no personal knowledge or involvement in the therapy sessions, her testimony was inadmissible hearsay and prejudicial.
The assistant district attorney conceded that the witness was not qualified to make a diagnosis of rape trauma syndrome, but asserted she would qualify as an expert on rape trauma syndrome, its symptoms, and what S.M. disclosed during therapy sessions. The State advised the court that the therapist who treated S.M. was unavailable, but that as a supervisor Paynter was intimately knowledgeable about the facts of the case due to her follow-up with clients and review of records during the normal course of her duties.
Judge J. Dexter Burdette, of the Wyandotte County District Court, ruled that under the business records exception to the hearsay rule, Paynter could “certainly testify what the victim disclosed to her therapist about this incident,” but would not be allowed to testify about rape trauma syndrome. Ultimately, the trial court concluded:
“I don’t know that there are gonna be any diagnoses testified to, but certainly what the victim told the therapist and this woman who was her supervisor who apparently aided in her treatment by supervising the- — the therapist and was made privy apparently of these conversations through the normal course of her work and produced business records that reflected that participation, the information contained in those records is admissible and she may testify to them after the foundation has been established.”
There is no indication that the trial court decided at that time that Paynter qualified as an expert. It seems the trial court simply ruled she could testify concerning the information contained in the MOCSA business records.
During the second trial, Villanueva’s counsel again objected to Paynter’s testimony, based on Paynter’s lack of personal knowledge of the contents of the counseling records. The trial court again ruled that the information contained in the MOCSA records was admissible under the business records exception and allowed Paynter to testify.
As the State began its direct examination of Paynter, defense counsel objected to her qualifying as any type of expert witness on the basis that she did not have the requisite educational background. The State responded that Paynter would “not be mentioning a word [about] rape trauma syndrome” or discussing a diagnosis, but would “say these are common symptoms and these are the symptoms that [S.M.] displayed.” The trial court indicated that the State needed more foundation as to Paynter’s experience in counseling rape victims. Ultimately, the trial court allowed the State to continue its examination of Paynter despite defense counsel’s objections.
The Court of Appeals found the following excerpts of Paynter’s testimony on direct examination noteworthy:
“Q. . . . [W]hat is your educational background?
“A. I have a Bachelor in Social Work and I have some postgraduate work in clinical psych.
“Q. In order to be a licensed clinical social worker, is it necessary for you to have a masters or a post bachelor degree?
“A. No. You can get licensure on a bachelor level as well.
“Q. Okay. Do you have that license?
“A. No, I do not.
“Q. . . .In your training and experience, have you learned what symptoms are common in a woman who has been the victim of a rape?
“A. Yes, sir.
“Q. . . . Are you — you’re—fair to say you’re not qualified to diagnose [victims of rape] with any—
“A. No, I do not do that.
“Q. —psychological disorders?
“A. Right.
“Q. Okay.
“A. But I keep a DSM 4 handy.
“Q. ... In the course of your employment [at] MOCSA and your years in seeing chents and your years of training, have you — are you able to say if there is a common set of symptoms or behavior that is displayed by a victim of rape?
“A. Yes, I — I can say that.
“Q. Can you describe some of those characteristics to the jury?
“A. Yes. They vary of course from individual to individual, but many of the symptoms that I have seen and are chnically researched include depression, displacement of anger, self blame, some self-destructive patterns which may include alcohol abuse, promiscuity, self-mutilation, even manifestation of eating disorders.-
“Q. The hst of symptoms you just described, is it fair to say that is not a comprehensive list?
“A. It is fair to say that.
“Q. Okay.
“A. This is [an] overall diagnosis for those symptoms, but as the defense attorney has already [alluded] to, I am not able to make that diagnosis.
“Q. Okay. And, in fact, you have not diagnosed [S.M.] with anything, have you?
“A. I have never diagnosed any of my chents.
“Q. Okay. Great. In your — in the treatment of [S.M.] at MOCSA, was it documented whether she displayed any of those classic characteristics of a victim of rape?
“A. Yes, it was.
“Q. Specifically what?
“A. Shall I read this?
“Q. Please.
“A. Okay. This was an assessment given by Ms. Hobbs. At the end of each month,'as clients see the specialist, we are to assess what their overall impact is and what their impressions were in those sessions. Every week that specialist sees [S.M.], she appears to be more depressed. Appears is the operative word that keeps us from being [in] legal trouble. She has been to court one time and is nervous with the upcoming court confrontations with her alleged rapist.
“She states that she cries a lot and even with the help of medication, she is having difficulty with her seeming depression. [S.M.] has many feelings diat she wants to work on and she states that once she resolves some work — that once she resolves some of her issues, she knows that she will feel better. However, [S.M.] still seems scared to explore some of those feelings. At the end, the intervention specialist identifies that she will continue the cognitive process which is the modality that we follow in my department and it is an offset of Dr. Albert Ellis’ work on [rational emotive] therapy.
“Q. Okay. That’s a lot of big, big words.
“A. Right.
“Q. I’ll admit I don’t understand all of it.
“A. Basically it’s looking at the maladaptive thinking patterns drat trauma victims can possibly have after a trauma.
“Q. Okay. And that type of thinking — those thinking patterns are present in [S.M.]?
“A. Yes.
“Q. Okay.
“A. As it appears here.
“Q. And anything else that stands out about [S.M.J’s behavior or—
“A. In essence so as not to read verbatim here, it appears that Ms. Hobbs wrote about some possible avoidant behavior and by that I mean many times trauma victims will express anxiety in coming to these crisis intervention counseling sessions and so they may not show [up] widiout any call to the person widr whom they are interacting and that is very, very common.
“Q. Okay. Anything else that stands out to you as important for the jury to know?
“A. Just an ongoing identification of depression—
“Q. Okay.
“A. —and denial.
“Q. Thank you.
“A. Those two things.
“Q. Denial of what?
“A. Denial that this alleged violation really in fact happened to her and that is very, very common with rape victims. I can’t believe that this happened to me.” (Emphasis added.) 29 Kan. App. 2d at 1060.
Paynter later testified that Shannon Hobbs, the MOCSA intervention specialist who actually counseled S.M., only had a bachelor s degree in social work at that time. Paynter did not indicate whether Hobbs was licensed.
Following a 3-day trial, jurors found Villanueva guilty of one count of rape. On February 2, 2000, the trial court sentenced Villanueva to 254 months’ presumptive imprisonment and 36 months’ postrelease supervision.
Villanueva maintained on appeal to the Court of Appeals that the trial court erred in admitting the testimony of Paynter on the symptoms of rape trauma syndrome and by failing to provide a unanimity instruction. In addition, Villanueva contended that prosecutorial misconduct resulted in a denial of a fair trial and contended that cumulative trial errors merited reversal of his conviction.
The Court of Appeals affirmed Villanueva’s conviction, despite finding that the trial court erred in allowing Paynter’s testimony and that the prosecutor’s intemperate remarks explicitly appealed to the prejudices of jurors. The Court of Appeals held that the errors were harmless and did not impair Villanueva’s right to a fair trial.
Villanueva filed a timely petition for review on January 7, 2002. On March 19, 2002, this court considered and granted Villanueva’s petition for review. Here, he maintains that the erroneous admission of Paynter’s testimony and prosecutorial misconduct recognized by the Court of Appeals merit reversal of his conviction. This court has jurisdiction under K.S.A. 60-2101(b) and K.S.A. 20-3018(b) to review the Court of Appeals’ decision, and the matter is ripe for review.
On review, Villanueva’s first contention is that the trial court erred in allowing testimony concerning rape trauma syndrome and that the admission of this evidence was not harmless.
“ ‘The admission and exclusion of evidence lies within the sound discretion of the trial court.’ [Citation omitted.] ‘ “ ‘[I]t is clear that our standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion.’ ” ’ [Citations omitted.] Judicial discretion is abused only when no rea sonable person would take the view adopted by the trial court. [Citation omitted.]” State v. Leitner, 272 Kan. 398, 408, 34 P.3d 42 (2001).
Villanueva contends the admission of Paynter s testimony was improper for two reasons. First, Villanueva states that the testimony concerning rape trauma syndrome presented by Paynter would only be relevant if the State could show S.M. actually suffered from rape trauma syndrome. Villanueva contends that the State did not show that S.M. suffered from the syndrome and, thus, he argues that Paynter’s testimony concerning the symptoms of the syndrome lacked relevancy.
Second, Villanueva maintains that the Court of Appeals failed to properly apply the harmless error rule. Villanueva states that the Court of Appeals correctly found that Paynter’s testimony was nothing more than a diagnosis, even though Paynter "‘with a wink and a nod” did not specifically state S.M. suffered from rape trauma syndrome. He contends, however, that the Court of Appeals erred in concluding that the admission of the testimony did not cause him prejudice.
The State argued to the Court of Appeals that Paynter did not testify that S.M. had been diagnosed with rape trauma syndrome, but only testified about patterns of behavior commonly seen in victims of rape. According to the State, Paynter’s testimony was relevant and admissible “to show that S.M. suffered from many problems often experienced by rape victims.”
1. Relevancy
Villanueva’s first argument is that the trial court abused its discretion by allowing Paynter’s testimony concerning the symptoms of rape trauma syndrome because testimony concerning such symptoms was irrelevant.
“Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. [Citations omitted.] K.S.A. 60-401(b) defines relevant evidence as "evidence having any tendency in reason to prove any material fact.’ ” Leitner, 272 Kan. at 412.
Prior to Paynter’s direct examination, Villanueva’s counsel objected to allowing her testimony, based on Paynter’s lack of personal knowledge, stating:
“[0]ur objection is based on the fact that the contents of the documents are subject to the impressions of individuals that have been written down and not in this courtroom or not — were not cross-examined on evidence on any issue that’s written down or on their perception and their ability to perceive on their education on anything. And that is not permitted under our rules of evidence.”
The trial court ruled that the information contained in the MOCSA records was admissible under the business records exception and allowed Paynter to begin testifying. Villanueva’s trial counsel again objected to Paynter’s testimony on the basis that she did not have tire requisite educational background to qualify as an expert witness. Defense counsel did not object that the testimony was irrelevant, however.
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” K.S.A. 60-404.
Villanueva objected to the admission of Paynter’s testimony based on the prohibition against hearsay and on the witness’ lack of qualifications. When a defendant objects to the introduction of evidence at trial but fails to state a specific ground for objection, the issue is not preserved for appeal. See State v. Valdez, 266 Kan. 774, 789, 977 P.2d 242 (1999); State v. Johnson, 266 Kan. 322, 335-36, 970 P.2d 990 (1998); State v. Cooper, 252 Kan. 340, 349, 845 P.2d 631 (1993). Because Villanueva did not object to the trial court that the evidence lacked relevancy, we will not consider his argument for the first time on appeal.
2. Harmless Error
Villanueva’s second contention in regard to the admission of Paynter’s testimony is that the Court of Appeals did not explicitly “spell out” the harmless error standard it employed and incorrectly failed to consider whether the erroneous admission of her testimony had litde, if any, likelihood of changing the result of the trial.
The State maintained to the Court of Appeals that the trial court did not err in admitting Paynter’s testimony. The Court of Appeals held, however, that the trial court erred in not curtailing Paynter’s testimony because it “went far beyond providing the jury with S.M.’s statements and demeanor during counseling sessions.” 29 Kan. App. 2d at 1061. The Court of Appeals stated:
“In our opinion, Paynter’s testimony is analogous to stating: ‘If it walks like a duck, quacks like a duck, and has feathers like a duck, you the members of the jury must decide what it is because I’m not allowed to tell you.’ . . . Paynter did not have the professional qualifications to render a medical diagnosis and should not have been allowed to give diagnostic testimony while informing the jury with a wink and a nod she was precluded from naming the disorder.” 29 Kan. App. 2d at 942.
Villanueva asserts that the Court of Appeals did not apply the harmless error analysis when it concluded that “under the totality of the circumstances, [it did not believe] that the error cumulatively caused any undue prejudice.” Villanueva argues that under State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998), the Court of Appeals should have found the erroneously admitted evidence inconsistent with substantial justice or should have considered its admission likely to have changed the result of the trial.
“Review of the admission or the exclusion of evidence is usually governed by the harmless error rule. K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Leitner, 272 Kan. 399, Syl. ¶ 7.
The Court of Appeals found:
“Here, Paynter was not licensed nor did she have a master’s degree. We acknowledge she did have considerable practical experience in counseling rape victims. At trial, she was portrayed as having expert credentials and permitted to testify as to the signs and symptoms common to rape trauma syndrome notwithstanding the trial court’s pretrial ruling.
“Paynter’s testimony went far beyond providing the jury with S.M.’s statements and demeanor during counseling sessions with absent social worker Shannon Hobbs.
“. . . We hold the trial court erred in not curtailing Paynter’s testimony.” 29 Kan. App. 2d at 1062.
Villanueva argues that the rape trauma syndrome evidence was inconsistent with substantial justice because it “clearly affected his right to a fair trial.” “A ‘fair trial,’ as the term is applied to judicial proceedings, anticipates the right to object to the admission of evidence, cross-examine the witnesses and rebut the evidence introduced.” Kincaid v. Wade, 196 Kan. 174, 177, 410 P.2d 333 (1966). The right to a fair trial includes the presumption of innocence, the right to establish a defense, and the right to assistance of counsel. See Estelle v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976) (discussing the presumption of innocence); Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967) (noting that due process of law gives an accused the right to confront witnesses and to establish a defense); State v. Wallace, 258 Kan. 639, 651, 908 P.2d 1267 (1995) (holding that a fair trial includes the right to assistance of counsel).
Here, the erroneous admission of Paynter’s testimony did not rise to the level of violating Villanueva’s right to a fair trial. Villanueva was not denied the opportunity to cross-examine adverse witnesses, to present a defense, representation of counsel, or the presumption of innocence.
Therefore, it is necessary to proceed to the second prong of the Donesay test. We must determine whether the erroneous admission of Paynter’s testimony “had little, if any, likelihood of having changed the result of the trial.” 265 Kan. at 88.
Here, a major factor in Villanueva’s trial was credibility; jurors had to decide whether to believe S.M. or Villanueva. In that regard, the physical evidence of bruises and scratches on S.M. would appear to corroborate her story. However, defense counsel was able to elicit testimony from Dr. McCoy indicating that S.M. could have scratched herself. KBI testing of the vaginal swabs taken during the rape examination of S.M. was negative for semen and seminal fluid.
Despite stating that she was unable to make a diagnosis, Paynter testified that “classic characteristics of a victim of a rape” were documented in S.M.’s records. The trial court erroneously allowed Paynter, unqualified to diagnose or to testify as an expert witness on rape trauma syndrome, to state to the jury that S.M.’s behavior was consistent with that of rape trauma victims. Her testimony undoubtedly bolstered S.M.’s credibility to the detriment of Villanueva.
The evidence against Villanueva, although strong enough to convince many of his guilt, cannot be characterized as “overwhelming.” We find that the trial court’s admission of Paynter’s testimony had a higher likelihood of changing the results of the trial than “little, if any.” We reverse and remand this matter for a new trial.
For his second assertion of error, Villanueva maintains that the prosecutor’s inflammatory comments during closing argument denied him a fair trial.
“ ‘The analysis of the effect of a prosecutor’s allegedly improper remarks is a two-step process. First the appellate court determines whether the remarks were outside of the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that “[i]n criminal trials, the prosecution is given wide latitude in language and in manner of presentation of closing argument as long as it is consistent with the evidence adduced.” State v. Duke, 256 Kan. 703, Syl. ¶ 5, 887 P.2d 110 (1994).’
“Second, ‘[e]ach case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.’[Citation omitted.]. . . .
“. . . Specifically,‘[i]n deciding the question of whetlrer prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial.’ ” State v. Lumley, 266 Kan. 939, 959, 976 P.2d 486 (1999).
“ ‘ “ When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors? [Citations omitted.]’ ” ’ ” Leitner, 272 Kan. at 421 (quoting State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461[1997]).
At trial, during closing rebuttal, the prosecutor discussed S.M.’s inability to testify about the details of the rape, ascribing it to the trauma of the event. Then the prosecutor stated: “The funny thing is that’s not the — that’s not the only rape that took place in this case. The second rape . . . took place when she had to come in here and had her character attacked and her memory attacked.” Defense counsel immediately objected, stating: “[T]his is improper. She’s a witness.” The trial judge responded by telling the prosecutor, “I think we need to leave that area.”
The record reveals that the jurors were instructed: “Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded.”
In its brief, the State acknowledged “that the prosecutor used a poor choice of words” to frame “S.M’s testimony in light of the vigorous cross-examination” conducted by counsel for Villanueva. The State advised in its brief that the comments “were intended to bolster the credibility of S.M. by pointing out her calm under pressure .... [and] were not intended to disparage [defense counsel] nor [Villanueva].” The State appears to have conceded that the remarks were outside of the considerable latitude the prosecutor is allowed in closing argument.
After its review of the trial record and jury instructions, the Court of Appeals concluded that the remarks did not show ill will, would have little weight with jurors, and did not deny Villanueva a fair trial. 29 Kan. App. 2d at 1063-64. On review, Villanueva challenges the Court of Appeals’ determination that the prosecutor’s comments were not so prejudicial as to deny him a fair trial.
Looking at the three factors relevant to this determination, we must first decide if the prosecutor’s misconduct was so gross and flagrant as to deny die accused a fair trial. In State v. Lewis, 238 Kan. 94, 98, 708 P.2d 196 (1985), this court compared this to asking whether “the objectionable statements [were] likely to affect the jurors to the defendant’s prejudice.”
Villanueva contends that the prosecutor’s comments “tipped the scale in favor of S.M.” by creating sympathy for the victim. The Court of Appeals found that “the prosecutor’s remarks were not only intemperate but an explicit appeal to the prejudices of jurors.” 29 Kan. App. 2d at 1063.
In addition, Villanueva asserts that the comments improperly denigrated defense counsel. The Court of Appeals found that at the hearing on the motion for a new trial, defense counsel had indicated that he did not believe the prosecutor made the comments with any intent to disparage counsel. 29 Kan. App. 2d at 1063. On review, Villanueva takes the position that the Court of Appeals mischaracterized defense counsel’s statements. Villanueva instead asserts that defense counsel told the trial court that although he did not believe the State made these comments on purpose, they were clearly outside the scope of proper argument.
We agree that prosecutor’s comments concerning the second rape of S.M. during trial were outside the scope of proper argument.
The second factor for our determination is whether the remarks show ill will on the part of the prosecutor. Villanueva asserts that the remarks evidence ill will because they were clearly made in an effort to obtain a conviction without regard for the propriety of the comments. Villanueva again highlights the words of the prosecutor as an attack on defense counsel and a plea for sympathy for the victim.
This court must look at each case viewed in the light of the trial record as a whole and not merely determine whether an isolated incident by itself constitutes reversible error. Lumley, 266 Kan. at 959. We find that in light of the trial record as a whole, the prosecutor’s improper comment by itself fails to demonstrate ill will.
The third factor for our determination is whether the evidence against Villanueva is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. The Court of Appeals found the “evidence of Villanueva’s guilt is strong and persuasive.” 29 Kan. App. 2d at 1065. Villanueva urges us to focus on “whether the error contributed to the guilty verdict rendered against the defendant,” and not on whether the evidence was “strong and persuasive.”
Our test is whether the prosecutor’s improper comments would have little weight in the minds of the jurors in light of the evidence against Villanueva. Villanueva urges this court to believe that because his first trial ended in a mistrial, the comments of the pros ecutor that the victim was raped a second time at trial played a key role in securing his conviction at the second trial. We find that this isolated comment by the prosecutor would have little bearing in the minds of the jurors because of substantial, although not overwhelming, evidence against Villanueva.
“ ‘Not every trial error or infirmity which might call for application of an appellate court’s supervisory powers correspondingly constitutes a failure to observe the fundamental fairness that is essential to the very concept of justice.’ State v. Ruff, 252 Kan. 625, 631, 847 P.2d 1258 (1993). ‘Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.’ [Citations omitted]” Leitner, 272 Kan. at 421.
In conclusion, we find that although the prosecutor s remarks improperly appealed to the sympathies of the juiy, in light of the trial record as a whole they did not rise to the- ievel of denying Villanueva’s right to a fair trial.
Reversed and remanded for a new trial. | [
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The opinion of the court was delivered by
Lockett, J.:
Appellant Michael J. Miller appeals his conviction for criminal use of a financial card under K.S.A. 21-3729. Miller contends the trial judge’s comments during his bench trial constituted judicial misconduct and deprived him of his constitutional right to a fair trial.
At approximately 6 p.m., while at the Oak Park Mall on the evening of August 5, 2000, Mary Gorski discovered that the credit card she had been using to make purchases at the mall was missing. Maiy called the “The Walking Company,” the last store she had visited, and asked if her credit card was there. The clerk that had waited on her, Vikshit Patel, was on break at the time. The store manager told Gorsld that she did not see the card. Gorski and her son then returned to The Walking Company and observed Patel return from his bréale with a bag from “Champs” and a bag from “Eddie Bauer.” Patel denied having the card.
After leaving the mall, Gorsld contacted the credit card company and learned that the last purchase on her card was at Champs in the Oak Park Mall. Gorsld had not been to Champs. Immediately, Gorski went to Champs. The man she spoke with at Champs, Tyrone Johnson, initially told her that he was unable to check the credit card receipts and that she would have to come back when a manager was there. Johnson later agreed to check the receipts, and Gorski observed the receipt from her card at the bottom of the pile. Johnson told Gorsld that he did not know who had conducted the sale. Gorski left Champs and called the police. A police officer accompanied Gorsld back to Champs. When questioned, Johnson admitted that he was the store manager and had conducted the sale. Johnson’s employee number was located on the top of the receipt, indicating that he had conducted the sale.
After further investigation, Miller, Johnson, and Patel were criminally charged. Miller was charged with criminal use of a financial card, a class A nonperson misdemeanor, pursuant to K.S.A. 21-3729. Miller waived his right to a jury trial. A bench trial was held January 19, 2001. Patel, who was on probation, pled guilty in exchange for his testimony against Johnson and Miller.
During the bench trial, Patel testified that he found Gorski’s credit card while worldng at The Walking Company. Patel remembered that Miller, also known as “Mickey,” had told Patel to come to him if he ever found a lost credit card. Miller had indicated that he would help Patel buy things with it. Miller worked at the “Watch Station” in the mall and had worked there for 21A to 3 years. Patel went to the Watch Station with Gorski’s credit card. Patel testified that he and Miller then went to Champs at Miller’s suggestion. When they arrived at Champs, Miller and Johnson went off to the side to talk. Patel had not met Johnson before. When they were finished talking, Johnson asked Patel what he wanted. Johnson told Patel and Miller to bring the items to the counter. Patel purchased two pair of shoes, a football, and a pair of gloves, totaling approximately $395, with Gorsld’s credit card. One pair of shoes was for Miller. Johnson rang up the sale, and Patel signed the receipt “Maiy Gorsld.” The receipt noted the time of purchase as 6:24 p.m. Patel then took the merchandise to the Watch Station and left it there, taking an empty bag back with him to The Walking Company. Miller had told Patel to leave the merchandise at the Watch Station so that if anyone came looking for it Patel could deny everything.
Later that evening when the police came to talk to Patel, Patel confessed. Patel and a police officer then went to retrieve the merchandise from Miller. When they arrived at the Watch Station, Patel retrieved all the merchandise from Miller, except for one pair of shoes. Miller indicated the shoes were at the store next door, “Babbages.” Patel and the officer then went to Babbages and retrieved the pair of shoes.
During a subsequent conversation with Miller, Patel wore a wire. Miller did not admit to using Gorski’s credit card during that conversation. Instead, Miller commented on how Patel had gotten caught without any merchandise on him. Patel testified that Miller has threatened him since the incident, telling him to “[w]atch what you do or say.”
Johnson pled no contest as to his involvement and was sentenced to probation. Johnson was not required to testify against Miller as a part of any agreement. Johnson testified that Miller had come into Champs that evening and that he had talked to Miller before Gorski had come to the store asking about the transaction with her credit card. When asked if Patel accompanied Miller to Champs that evening, Johnson stated that he did not know Patel and that he did not remember talking to him. Johnson knew Miller from working at the mall. After being interviewed by police, Johnson waited around for Miller and gave Miller a ride home.
Officers investigating the incident testified that Johnson had told them that he did not remember if Patel or Miller had been in Champs that evening and that he had not spoken to either of them. Johnson had also claimed he did not remember the transaction with Gorski’s credit card, although he did admit that he had completed the transaction because his employee number was on the receipt. Commissions made up a portion of Johnson’s paycheck from Champs.
When questioned by police, Miller denied any knowledge of the incident. Miller told police that Patel had left the merchandise with him to hold because Patel said his mother becomes angry when he spends his paychecks at the mall. At first, Miller denied that he had gone to Champs that evening, but later told police that he had. One officer testified that Miller admitted to talking to Johnson while at Champs, while another officer testified that Miller denied having any contact with Johnson. Miller indicated that he had gone to Champs to look for a pair of shoes for his brother. Miller denied knowing Patel and indicated he only barely knew Johnson.
An employee of an affiliated store located directly across from the Watch Station told police that at some point later in the evening Miller had left the Watch Station for 2 to 3 minutes. This employee watches over the Watch Station when the Watch Station’s employees have to step away.
A few days after the incident, Detective Roger Ware was in the mall. At the time, Detective Ware knew little about the incident because he had been out of town. Detective Ware had known Miller from working as a community police officer at the mall and liked him. Miller waved Detective Ware over and asked him whether he had heard any rumors about what was going on in the mall regarding credit cards. Detective Ware thought Miller was acting suspiciously. Upon telling Miller this, Miller told Detective Ware that he knew everything about the incident. When Detective Ware asked Miller whether he had been involved, Miller looked down and nodded his head up and down. Detective Ware testified that because of Miller’s personality, it was possible Miller knew everything about the incident but was not involved.
A clerk from Babbages testified that Miller had brought the pair of shoes over and had indicated that he was holding them for someone else and that he would be bringing over more items. Miller never brought any additional items to Babbages. Miller had told the clerk that he needed the clerk to hold the merchandise because he (Miller) would not be around to deliver it.
A coworker of Miller s testified that she had left work about 6:40 or 6:45 p.m. that evening. She testified that from early afternoon until the time she left, Miller never left the store. She did not believe it likely that Miller could have left the store for a few minutes without her knowing, but testified that it was possible.
Miller testified that at approximately 6:50 p.m. he spoke with Patel for a few minutes at The Walking Company about a phone Patel was thinking of buying from him. Within a few minutes of returning to the Watch Station, Miller testified that Patel arrived carrying a Champs bag and an Eddie Bauer bag. Patel asked Miller to hold the items for him until later that evening because his mom became angry when he spent his whole paycheck at the mall. Miller testified that he informed Patel that he would be leaving at 9 p.m. exactly, so he would take the items next door and Patel could pick them up there. Miller testified that he then went to get something to eat. While waiting for his food, Miller indicated that he went to Champs to look for shoes for his brother, denying having talked to Johnson at that time. Miller then picked up his food and returned to his store. A food receipt was admitted into evidence showing a purchase at 7:07 p.m. Miller testified that at approximately 8 p.m. he took one pair of shoes over to Babbages. He intended to take the rest of items over later, but did not accomplish it before Patel and the officer arrived to retrieve the merchandise. Miller testified that he did not take all the items at one time because they were not in a bag and it was too difficult to carry them all. Miller testified that he had caught a ride home from Johnson after the questioning because he did not have any other ride.
Miller was found guilty and sentenced to 1 year s probation, with an underlying sentence of 8 months in the county jail. Miller was also ordered to serve 7 days in the county jail as a condition of his probation. A timely notice of appeal was filed. This court has jurisdiction by transfer on its own motion pursuant to K.S.A. 20-3018(c).
On appeal, Miller contends the trial judge’s sarcasm, ridicule, repeated interruptions, and assertions of the defendant’s guilt during the bench trial deprived him of his right to a fair trial. The State disagrees and asserts that Miller was not denied his right to a fair trial under these circumstances.
The question is whether Miller s substantial rights to a fair trial were prejudiced by the alleged judicial misconduct. A defendant’s right to a fair trial is guaranteed by the Fourteenth Amendment to the United States Constitution. State v. Johnson, 258 Kan. 61, 68, 899 P.2d 1050 (1995). Judicial misconduct is reviewable on appeal despite the lack of a contemporaneous objection when the right to a fair trial is alleged to have been violated. State v. Chappell, 26 Kan. App. 2d 275, 278, 987 P.2d 1114, rev. denied 268 Kan. 890 (1999). An appellate court’s standard of review is unlimited in cases alleging judicial misconduct during trial. State v. Plunkett, 257 Kan. 135, Syl. ¶ 1, 891 P.2d 370 (1995). The party alleging judicial misconduct bears the burden of showing his or her substantial'rights were prejudiced. State v. Gadelkarim, 256 Kan. 671, 681, 887 P.2d 88 (1994).
In Kansas, the law applicable to alleged incidents of judicial misconduct is well settled. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. Mere possibility of prejudice from a judge’s remark is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial. State v. Aikins, 261 Kan. 346, 369, 932 P.2d 408 (1997); Gadelkarim, 256 Kan. at 677; State v. Nguyen, 251 Kan. 69, Syl. ¶¶ 4, 5, 833 P.2d 937 (1992); State v. Beal, 26 Kan. App. 2d 837, 845, 994 P.2d 669 (2000).
Under the Kansas Code of Judicial Conduct, a judge is to at all times act in a manner that “promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2 (2001 Kan. Ct. R. Annot. 489). A judge is also held to the following adjudicative responsibilities:
“(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. . . .
“(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice ....
“(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.” Canon 3 (2001 Kan. Ct. R. Annot. 491-92).
Miller cites to numerous incidences during his trial in which the trial judge interrupted both counsel; repeatedly expressed belief that a witness was lying; hypothesized as to the reason he believed a witness was lying; made sarcastic remarks; recommended counsel proceed to another witness because the current witness was unbelievable; verbalized his inability to follow the witnesses’ explanations; disregarded the testimony of a defense witness as being meaningless; and commented inappropriately in making his finding of guilt. Each comment or group of comments that Miller cites will be addressed in the order it occurred at trial.
The complained-of comments first occurred during Tyrone Johnson’s testimony. During Johnson’s testimony, the trial judge interrupted the questioning on 13 occasions and expressed his belief that Johnson was a liar or a worthless witness during 9 or more of those interruptions. Miller contends that the judge’s hostility toward this witness undermined both counsels’ examination of Johnson. On the contraiy, the State asserts that these comments concerned the judge’s disbelief of Johnson, a State’s witness, and did not affect Miller’s right to a fair trial, citing to the fact the credibility of a witness is within the province of the trier of fact.
The credibility of a witness is a matter for the finder of fact and will not be second-guessed by an appellate court. State v. Wade, 244 Kan. 136, 146, 766 P.2d 811 (1989). However, in this case the trial judge was not merely expressing his opinion on the witness’ credibility, but was interfering with die defense’s ability to cross-examine Johnson. In looking at Johnson’s testimony in its entirely, it appears that the trial judge’s continued interruptions and characterizations of Johnson might have resulted in defense counsel proceeding through the examination hastily and terminating it prematurely. This is especially true after Judge Bomholdt stated during cross-examination:
“He is not credible. You think I’m going to believe anything this guy — why don’t we move on to some other witness. He is unnecessary for anything. And I’m the finder of fact, I can tell you right now.” (Emphasis added.)
Miller specifically takes issue with the following statement of Judge Bomholdt that occurred during Johnson’s cross-examination,
“The truth of this guy. I’m sorry Mr. Moriarty [defense counsel]. The truth is whatever is convenient for the moment. He [JohnsonJ is trying to protect [Miller], not get in trouble with [Miller] and his family and friends and not be a snitch, and he is lying.” (Emphasis added.)
Miller contends this statement evidences the fact that the trial judge had prejudged the case adversely to the defendant. The State does not address this comment specifically within its brief but appears to contend that this goes to credibility of the witness, which is an issue for the trier of fact.
This particular statement occurred after the testimony of two other witnesses and well before Miller was allowed to present evidence in his defense. The statement, unlike the others made during Johnson’s testimony, states more than just an opinion that Johnson is not credible and is lying. This statement implied that the trial judge believed Miller to be guilty. In making this statement, the judge inappropriately hypothesized about Johnson’s motives to he.
Miller contends the judge then began to engage in inappropriate sarcasm and ridicule of Johnson. Some of the comments Miller cites to are:
“Q.: [Defense counsel]: Sir, the police came and saw you that night; is that correct?
“A.: [Johnson]: Yes.
“Q.: Is that an everyday experience for you?
“A.: No.
“THE COURT: It’s way back in August, Mr. Moriarty, he can’t remember.
“Q.: Do you remember — is this the first time you ever spoken to the police?
“A.: Yes.
“Q.: Okay. Now, that would have set off some bells for you; right?
“A.: Yes.
“Q.: And at that point in time, you should have known that you were up to your anides in trouble.
“A.: Yes.
“THE COURT: And he is getting deeper as he testifies, I can tell you that.”
These comments served no purpose other than to disrupt the proceedings and were entirely inappropriate.
Miller next cites to comments the trial judge made during Miller’s testimony on direct examination. In this testimony, Miller attempted to explain why he had taken only one pair of shoes to Babbages and not all the items. During the middle of the explanation, the trial judge asked for a clarification as to what was being explained and informed defense counsel that he was not following Miller’s explanation. Miller was once again asked on cross-examination why he had not taken all the items to Babbages at one time. Miller once again attempted to explain why he had not done so. After answering the question, the judge commented that Miller’s explanation was still “murky.”
The State contends the judge’s comments did not deprive Miller of a fair trial and that the trial judge was merely attempting to develop the truth. A trial judge may quite properly propound questions to witnesses in a bench trial in order to elicit the truth. State v. Anderson, 243 Kan. 677, 678, 763 P.2d 597 (1988).
In a bench trial, the judge need not be concerned with giving the jury the impression that he or she is biased against the defendant. Thus, where there was no jury, the trial judge’s comments to the effect that he did not understand the explanation being offered by Miller did not deny Miller his right to a fair trial. In fact, the statements of the trial judge were arguably beneficial to the defense because it alerted the defense that the judge did not understand the defendant’s explanation and afforded the defense the opportunity to further explain.
Miller also takes issue with a comment made by the trial judge during Miller’s testimony on re-direct. At the time of the comment, Miller was attempting to explain why he had ridden home with Johnson after being interviewed by police.
“Q.: [Defense counsel]: One question, did you have a — did you ever ride with Tyrone [Johnson] that night?
“A.: [Miller]: Yes.
“Q.: Why?
“A.: Well, because, actually, I had driven to work, my brother also works at Nordstrom’s, and he needed to get off. Also, I didn’t have my driver’s license that night. When the police were speaking to me, they told me if I had my driver’s license, I could leave. And I was, like, I don’t have my driver’s license. We actually even went to my car to grab the keys. Officer Fitzgerald and I walked to the Oak Park garage, and was, like, come on, come, hurry up, I don’t have all day.
“Q.: The question is, why were you riding with Tyrone or Tyrone riding with you?
“THE COURT: He is supposed to say that they were concocting a story to—
“Q.: The question, why were you riding together?
“A.: Because I didn’t have any other ride.
“Q.: Because your brother was driving the car?
“A.: My brother brought up my driver’s license that night.” (Emphasis added.)
The State admits that this comment may have been inappropriate but contends that this comment alone did not deny Miller a fair trial.
Miller also takes issue with the judge’s comments made after the close of the evidence. The first of those comments occurred after a short recess, when the judge stated:
‘Why don’t I hear some argument on this. It is all pretty fresh in my mind. I haven’t had a lot of difficulty other than trying to follow a couple of explanations of what seemed like illogical events. I haven’t had much time grasping the facts here.”
During the State’s argument, the judge commented:
“You think he land of likes being the kingpin of the ball and the catalyst for all these clerks? . . . Kind of a fence there, you think, maybe? ... I bet he has no criminal history. . . . And you think maybe he just couldn’t refrain himself from kind of acknowledging to [Detective] Ware, well, he really knows what is going on.”
And during defense counsel’s closing argument, the following statement was made:
“We know that the testimony of his co-worker is pretty meaningless. She said he [Miller] never left the store, and he quite clearly agrees that he is — he was out of that store quite a lot. His testimony isn’t very probative on anything.”
Miller contends the judge’s comment about his coworker’s testimony indicates that the judge ignored or misunderstood Miller’s testimony because Miller’s testimony was that he left the store at 6:50 p.m., after his coworker testified she had left. The State does not address these comments.
These comments were not appropriate. However, the fact the judge misunderstood a witness’ testimony is not evidence of prejudice or bias, but more appropriately a sufficiency of the evidence argument.
It is also important to note that during the prosecutor’s closing argument, the trial judge interrupted the prosecutor after the prosecutor stated that Miller had testified that every one of the four testifying officers had “got [Miller’s] version of events wrong.” The judge informed the prosecutor, “Well, I don’t think he — that it is quite fair to characterize [Miller’s] testimony of saying that. I think he is basically saying that the — some of the nuances of his testimony were lost upon the police officers.” This statement indicates that the judge did not view the evidence in an entirely one-sided manner as Miller contends.
Finally, Miller cites to statements made by the trial judge in rendering judgment and at sentencing. In rendering judgment, the judge stated, “I think [Miller] is pretty smooth, reminds me of Eddie Haskell on Leave it to Beaver, smooth but not very credible.” In sentencing Miller to serve 7 days in the county jail, the judge referred to the jail as Miller’s “temporary hotel.”
Kansas courts have addressed the issue of whether judicial misconduct during a trial has denied a defendant his or her substantial rights to a fair trial on numerous occasions, with less occasion to address this issue in the context of a bench trial. Judicial misconduct during a bench trial was, however, addressed in Anderson, 243 Kan. 677, State v. Starbuck, 239 Kan. 132, 715 P.2d 1291 (1986), and State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973).
In Anderson, the defendant was convicted of aggravated robbery following a bench trial. Anderson’s primary complaint on appeal was the judge’s examination of alibi witnesses, which Anderson contended elicited testimony unfavorable to the defense. The Anderson court reviewed the record and determined that although the answers to the judge’s questions favored the State, the questions were not slanted. The court held that a trial judge may advance questions to witnesses to elicit the truth. 243 Kan. at 678. The court also noted that the judge had expressed to counsel his thoughts as to the quality of the evidence. The Anderson court determined that such guidance by the judge during trial is intended to be helpful to counsel and is not a resolution of the merits of the case. 243 Kan. at 678. Finally, the court dismissed Anderson’s claim that the trial judge’s comments had forced him to testify as to his alibi defense, finding that the judge never requested or insinuated that the defendant must testify and there was no indication that the defendant’s testimony was anything other than voluntary. 243 Kan. at 678-79.
A similar scenario was also addressed by this court in Starbuck. In Starbuck, the defendant alleged judicial misconduct during a parole revocation hearing. Throughout the hearing, the judge made comments regarding Starbuck’s evidence, examined witnesses, and expressed to defense counsel his opinions and that his “patience was wearing thin.” 239 Kan. at 134. The Starbuck court took into account the fact the matter was not tried before a jury and determined that the district judge’s conduct did not result in prejudicial error.
Reversible error was, however, found in Pruett. In Pruett, the deputy county attorney moved to amend the information to charge the defendant with escape from custody, a misdemeanor, acknowledging he had been incorrectly charged with a felony. Previously, the defendant had waived his right to a jury trial under the assumption he was charged with one count of aggravated batteiy and one count of escape from custody, a misdemeanor. The district judge refused to allow the amendment, finding that the defendant had been correctly charged with a felony count of escape from custody. The defendant then attempted to withdraw his waiver of juiy trial, but his motion was denied. The defendant was convicted of both counts at a bench trial before the same district judge.
The Pruett court held that the district judge abused his discretion in refusing to permit the State to amend the information as requested. 213 Kan. at 45. The court noted that a criminal proceeding is a State matter controlled by the county attorney and that the district judge does not have the right to substitute his or her judgment for that of the prosecutor, absent some compelling reason to protect the defendant’s rights. 213 Kan. at 45-46. The court also held that the district judge abused his discretion in failing to allow the defendant to withdraw his waiver of jury trial, relying upon the fact that the district judge, in refusing to allow the prosecutor to amend the information, stepped down from his role as impartial judge and assumed the role of prosecutor. 213 Kan. at 48.
Cases where a defendant has alleged that judicial misconduct in a jury trial denied the defendant his or her right to a fair trial are also instructive. In State v. Hamilton, 240 Kan. 539, 731 P.2d 863 (1987), judicial misconduct in a jury trial was found to have deprived ihe defendant of his right to a fair trial where the district judge commented on the evidence and repeatedly interrupted defense counsel during cross-examination of witnesses with comments on testimony and with admonishments to counsel. During the jury trial, when defendant’s counsel lodged valid objections, the trial judge advised the State’s attorney on how to restate the questions. In addition, when a State’s witness was impeached by the defendant’s attorney, the trial judge required the defendant’s attorney to show the State’s witness the witness’ prior statement and then allowed the witness to change his or her answer to the question asked. The Hamilton court held that after reviewing the whole record, the totality of circumstances reflected that the judge’s interjection of himself and his personal beliefs and observations seriously prejudiced the jury and the defendant’s right to a fair trial. 240 Kan. at 547; see also Plunkett, 257 Kan. 135, 891 P.2d 88 (1994) (cumulative effect of several instances of judicial misconduct in jury trial prejudiced defendant’s right to fair trial and included judge’s comments indicating confidence in prosecutor and suspicion of defense counsel, judge’s posing question to witness that was slanted to favor State, judge’s interruptions of defense’s opening statement, and interjections of judge’s belief regarding testimony); State v. Johnson, 27 Kan. App. 2d 921, 11 P.3d 67, rev. denied 270 Kan. 901 (2000) (defendant’s right to fair trial not violated even though statements of trial judge during jury trial were not necessary or warranted).
Miller cites to People v. Phuong, 287 Ill. App. 3d 988, 679 N.E.2d 425 (1997), in support of his contention that the judge’s conduct in this case denied him his right to a fair trial. In Phuong, the Illinois Court of Appeals determined that the trial judge’s conduct during a bench trial denied the defendant her right to a fair trial and reversed her conviction. 287 Ill. App. 3d at 995.
During the trial in Phuong, the judge made numerous derogatory comments toward the defendant, her counsel, and a defense witness. The majority of the judge’s remarks were a direct result of the defendant knowing little English and requiring a Chinese interpreter during her testimony. For example, the judge expressed his impatience when the defendant took the stand by stating, “ ‘Miss Public Defender, we’re going to be here until the [Fjourth of July.’ ” 287 Ill. App. 3d at 994. Another example was the judge’s comment, which occurred after the defendant responded to a question by shaking her head no, stating, “ ‘She’s shaldng her head in Chinese, no.’ ” 287 Ill. App. 3d at 994.
The Phuong court recognized
“ ‘[t]he right of a defendant to an unbiased, open-minded trier of fact is rooted in the constitutional guaranty of due process of law and entitles a defendant to a fair and impartial trial before a court which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial.’ [Citation omitted.]” 287 111. App. 3d at 993.
The court dismissed the State’s argument that the judge’s comments did not result in prejudice because there was no jury to be influenced, holding that because of the high standard that judges are held to, any showing of bias against one of the parties or his or her counsel constitutes reversible error. 287 Ill. App. 3d at 994-95.
Miller contends that in this case Judge Bornholdt demonstrated similar sarcasm and impatience. However, Miller also contends Judge Bornholdt’s comments went even further, citing to the judge’s assertions during the trial that Miller was guilty, that witnesses were lying to protect Miller, and that Miller was attempting to orchestrate the presentation of false testimony. Miller contends Judge Bornholdt’s comments demonstrated bias and prejudice on the part of the factfinder, constituting reversible error.
To support his argument Miller cites a statement by the Indiana Court of Appeals:
“Sarcasm and ridicule emanating from the bench in a criminal trial are destructive weaponry. They contaminate the trial. Their use by the trial judge may have an incalculable adverse effect on the administration of justice, which is all the more devastating because the negative is often more difficult to prove than the positive. Whether directed at the prosecution or the defense or both, intimidated participants in the trial may be unable to perform their proper function' — a cowed defense counsel fails to object to inadmissible evidence — a rattled witness becomes incoherent. One such occurrence may thwart justice. If such adverse effects can be demonstrated, the error created will be reversible for denial of due process of law. State v. Lawrence (1954), 162 Ohio St. 412, 123 N.E.2d 271.” Dixon v. State, 154 Ind. App. 603, 620, 290 N.E.2d 731 (1972).
We note that in Dixon, the defendant had alleged judicial misconduct during his jury trial. The Dixon court found no reversible error, finding that the defendant had failed to show he was so prejudiced as to deny him due process of law. 154 Ind. App. at 621-22.
Miller alleges he was prejudiced as a result of the trial judge’s bias. Miller contends defense counsel’s questioning of Johnson was effectively negated by the judge’s comments, the examination of Miller was repeatedly disrupted by the judge, and defense counsel was intimidated by the judge’s statements. To support his contention that defense counsel was intimidated, Miller cites to the fact defense counsel failed to object to inadmissable evidence, failed to object to the testimony of unendorsed witnesses, shortened cross-examinations of witnesses, and presented an “almost non-existent closing argument.”
As to Miller’s contention that defense counsel failed to object to inadmissable evidence, Miller cites to defense counsel’s failure to object to a foundationless question asking Miller to speculate on the veracity of the police officers’ testimony. There is nothing in the record that would support intimidation regarding this testimony. As to defense counsel’s failure to object to unendorsed witnesses, we note that Patel and one of the testifying officers were not endorsed in the complaint. There is nothing in the record to show they were ever endorsed. It must also be noted, however, that Patel testified prior to any objectionable comments by the judge. Thus, Miller cannot establish that intimidation caused defense counsel to fail to object to the testimony of an unendorsed witness.
The trial judge is not merely a moderator but is the governor of the trial. The judge should strive to conduct the trial in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant. The judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions. The judge should not permit any person in the courtroom to embroil him or her in conflict and should avoid conduct which tends to demean the proceedings or to undermine the judge’s authority in the courtroom. When it becomes necessary during the trial to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, the judge should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues. Gadelkarim, 256 Kan. at 676; State v. Walker, 252 Kan. 279, 289-90; 845 P.2d 1 (1993); State v. Hamilton, 240 Kan. 539, Syl. ¶¶ 3, 4, 731 P.2d 863 (1987).
There is merit to Miller’s contentions that defense counsel’s feelings of intimidation may have kept counsel from fully examining Johnson. The trial judge’s repeated comments during the third witness’ testimony set the stage for the rest of the trial. However, it must be noted the judge made few remarks during the testimony of most of the witnesses, and the comments complained of only occurred during Johnson’s and Miller’s testimony and after the close of the evidence. Miller fails to assert what specific testimony he was unable to elicit from Johnson as a result of the judge’s comments.
The State contends that Miller has not met his burden of proving prejudice. In support of this, the State cites to State v. Ambler, 220 Kan. 560, 563, 552 P.2d 896 (1976), where this court held that speculation as to the possibility of prejudice is insufficient to reverse a conviction.
As previously stated, a judge is to at all times act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2 (2001 Kan. Ct. R. Annot. 489). The party alleging judicial misconduct bears the burden of showing his or her substantial rights were prejudiced. See Gadelkarim, 256 Kan. at 681. In viewing the improper comments of the trial judge cumulatively and considering the prejudice that resulted from these comments, this court finds that Miller s right to a fair trial was violated. The conviction is reversed and the case is remanded for a new trial before a different judge.
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The opinion of the court was delivered by
Lockett, J.:
This case comes before the court on a petition for review from the Court of Appeals’ unpublished decision in O’Bryan v. Columbia Ins. Group, No. 85,363, filed January 11, 2002. Appellees John O’Bryan and Paul Scaletty appeal the Court of Appeals’ (1) reversal of the district court’s grant of summary judgment and the district court’s finding that the insurance contract was unambiguous, (2) determination that as a matter of public policy the common-law rule against under insuring applies, and (3) grant of summary judgment to the insurer on public policy grounds.
O’Biyan purchased an insurance policy from Columbia Insurance Group (Columbia) providing $40,000 coverage on a dwelling. Coverage under the policy was for a 1-year term beginning September 19, 1997. A fire occurred at the insured dwelling in November 1997. Columbia paid O’Bryan $37,105.50 for the loss sustained to the dwelling as a result of the fire.
In March 1998, another fire occurred at the insured dwelling. At that time, none of the damage caused by the first fire had been repaired. O’Biyan submitted a $40,000 claim to Columbia as a result of the second fire, complying with the terms and conditions of the insurance policy. The amount of damage arising out of the second fire was in excess of $40,000. Columbia tendered $2,894.50 as the amount of coverage remaining under the policy. O’Bryan refused to accept the tender and filed suit. Upon Columbia’s motion, Scaletty was added as a necessary party to the lawsuit, having acquired a 50 percent interest in the insured property. O’Bryan and Scaletty are collectively referred to as O’Bryan herein.
Columbia filed a motion for summary judgment, alleging it was entided to deduct the amount paid for the loss sustained in the first fire from the $40,000 in determining the amount of coverage remaining for the loss sustained in the second fire. O’Bryan filed a cross-motion for summary judgment, alleging the $40,000 was the limit of liability per loss and that Columbia was not entitled to deduct the money paid for the first loss in determining the coverage available for the second loss. The parties agreed that no material facts were in dispute.
After hearing arguments, the district court denied Columbia’s motion for summary judgment and granted O’Bryan’s motion for summary judgment in part and denied it in part. The district court applied the rules regarding interpretation of an insurance policy and determined that tire insurance policy was unambiguous. The court held that the policy provided a second additional limit of $40,000 that applied to the second fire. In reaching this decision, the district court relied upon the language of section 2 of the Conditions section of the policy and the case of U. S. Liability Ins. Co. v. Bove, 347 So. 2d 678 (Fla. Dist. App. 1977). The analysis of the district court is further discussed herein. The court awarded judgment to O’Bryan for $40,000 and denied O’Bryan’s request for attorney fees and prejudgment interest.
On appeal, the Court of Appeals reversed the district court’s decision and remanded the case widi instructions to the district court that judgment be entered on behalf of Columbia. In its opinion, the Court of Appeals stated the applicable rules for judicial interpretation of a written insurance contract, disregarded the rules, and made a public policy decision. In reaching its decision, the Court of Appeals cited 12 Couch on Insurance 3d § 175:15 (1998) and concluded that “the common-law rule which permits deducting the amount of the first claim from the policy limit in determining the amount of insurance available to pay a second claim ought to prevail.”
Under Kansas law, the common law, as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, remains in force and effect. K.S.A. 77-109. “Public policy consists of the principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole society.” Bolz v. State Farm Mut. Auto. Ins. Co., 274 Kan. 420, Syl. ¶ 3, 52 P.3d 898 (2002). However, in Kansas, insurance is and has long been recognized as being a highly statutorily regulated industiy. See K.S.A. 40-101 et seq.; K.A.R. 40- 1-19 et seq.; Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, 923-26, 611 P.2d 149 (1980); Holmstrom v. Sullivan, 192 Kan. 746, 391 P.2d 100 (1964); cf Bolz, 274 Kan. 420. Courts should avoid making public policy where the statutory law has developed.
In adopting a common-law rule, the Court of Appeals set forth what it believed to be the public policy of Kansas. We have previously acknowledged that the declaration of public policy is primarily a legislative function. Bolz, 274 Kan. 420, Syl. ¶ 3. Judicial lawmaking responsibility arises from the decision of disputes of private rights and liabilities. It is not the duty of the courts to decide public-law questions of policy affecting these disputes. This court has repeatedly set forth the rules regarding the construction of insurance policies, yet the Court of Appeals abandoned the rules, which are the established judicial policy for interpreting the rights and duties of parties to a written insurance policy, and made a public policy decision. In determining that there was fundamental concern that required a change of the law, the Court of Appeals erred and is reversed.
Rules of Construction
The rules regarding the construction of insurance policies under Kansas law are well established. The language of an insurance policy, like any other contract, must, if possible, be construed in such way as to give effect to the intention of the parties. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992); American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, 740, 658 P.2d 1015 (1983). In construing a policy of insurance, a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished. Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, Syl. ¶ 3, 660 P.2d 1374 (1983).
Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwise, the policy will be liberally construed in favor of the insured. Catholic Diocese, 251 Kan. at 693; Patrons Mut. Ins. Ass'n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). If an insurance policy’s language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998). In such case, there is no need for judicial interpretation or the application of rules of liberal construction. American Media, 232 Kan. at 740. The court shall not make another contract for the parties and must enforce the contract as made. Patrons, 240 Kan. at 713.
However, where the terms of an insurance policy are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. Catholic Diocese, 251 Kan. at 693; Patrons, 240 Kan. at 713.
“To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until die application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Catholic Diocese, 251 Kan. at 693.
Whether a written instrument is ambiguous is a question of law to be decided by the courts. Catholic Diocese, 251 Kan. at 691. Courts should not strain to create an ambiguity where, in common sense, there is not one. First Financial, 265 Kan. at 694. The test in determining whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. First Financial, 265 Kan. at 694.
District Court’s Grant of Summary judgment
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Friesen-Hall v. Colle, 270 Kan. 611, 613, 17 P.3d 349 (2001); Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
Neither party asserts there is a dispute as to a material fact that renders a finding of summary judgment improper. Therefore, the issue before the court is the construction of the insurance policy and the determination as to which party is entitled to summary judgment. The construction of a written instrument is a question of law, which construction by a lower court need be given no deference on appeal. First Financial, 265 Kan. 690, Syl. ¶ 1; Patrons, 240 Kan. at 713.
The relevant provisions of the insurance policy are as follows:
“This insurance applies to the Described Location, Coverage for which a Limit of Liability is shown and Perils Insured Against for which a Premium is stated.
COVERAGES AND LIMITS OF LIABILITY
“A. Dwelling . . .
$40,000 ...”
“2. Insurable Interest and Limit of Liability. Even if more than one person has an insurable interest in the property covered, we will not be liable in any one loss:
“a. for an amount greater than the interest of a person insured under this policy; or
“b. for more than the applicable limit of liability.” (Emphasis added.)
Columbia contended the following provisions were also relevant before the Court of Appeals:
“5. Loss Settlement. Covered property losses are settled at actual cash value at the time of loss but not more than the amount required to repair or replace the damaged property."
“DEFINITIONS
“The term ‘Actual Cash Value’ means:'
“The amount which it would cost to repair or replace covered property with material of like land and quality, less allowance for physical deterioration and depreciation, including obsolescence.”
We must now determine whether the district court was correct in determining the policy was unambiguous and in granting summary judgment to the insured. Provisions within the insurance policy indicate that Columbia contemplated that more than one loss might occur within the policy period and that perhaps each loss would exceed $40,000. O’Bryan cites to section 2 of the Conditions section of the policy, relied upon by the district court, which refers to Columbia’s limit of liability and provides that Columbia will not be hable ”in any one loss“ for more than the applicable limit of liability. Columbia asserts that this provision is not applicable to the legal issue before this court and should not be read outside of context. Columbia contends that this provision only applies when there are multiple insureds making separate claims under the policy for the same loss. While true that this provision does address Columbia’s liability in situations where there are multiple insureds, the provision also addresses limits of liability in general.
The decision in Bove, 347 So. 2d 678, also relied upon by the district court in rendering its decision, has only limited application to the case at bar. In Bove, the homeowner’s policy had a total liability limit of $16,000, with a liability limit of $500 in any one occurrence for theft of jeweliy. The policy provided:
“ ‘2. Special Limits on Certain Property:
“‘a) . . .
“ ‘b) Under coverage C, this company shall not be liable for loss in any one occurrence with respect to the following property for more than:
“ ‘(4) $500 in the aggregate for loss by theft of jeweliy, watches, necklaces, bracelets, gems, precious and semi-precious stones, gold, platinum and furs, including articles containing fur, which represents its principal value;’ ” 347 So. 2d at 679.
The Bove court noted that the phrase “in any one occurrence” set no limit on the number of losses the insured might claim, only on the coverage limits per loss. 347 So. 2d at 680. The district court’s reliance on Bove was likely based upon the policy provision’s similarity to the “Insurable Interest and Limit of Liability” provision in this case.
Another provision of the policy that neither party cites that also supports a $40,000 per occurrence policy limit is the provision in suring against volcanic eruption. The Conditions section of the policy provides:
“25. Volcanic Eruption Period. One or more volcanic eruptions that occur within a 72-hour period will be considered as one volcanic eruption.”
An insurance policy is to be construed by the court as a whole. Farm, Bureau, 233 Kan. 175, Syl. ¶ 3. If the $40,000 limit of coverage is the limit of coverage throughout the policy period, the purpose served by quantifying the time period that constitutes one volcanic eruption is meaningless.
Furthermore, the policy’s provision regarding cancellation also supports the interpretation that the $40,000 limit of liability applies to each loss occurring during the time the contract is in force.
“17. Cancellation.
"a. You may cancel this policy at any time by returning it to us or by letting us know in writing the date cancellation is to take effect.
“c. When this policy is cancelled, the premium for the period from the date of cancellation to the expiration date will be refunded pro rata.”
The policy does not contain a provision which would allow for a refund to be reduced based on the amount paid out under the policy. Thus, if the limit of liability was $40,000 for the entire policy period, an individual could arguably cancel the policy after having suffered a loss of any amount, including a loss totaling the full $40,000, and be refunded the pro rata portion of the premium. Such a cancellation provision is only logical if the $40,000 limit applied on a per loss basis.
There is one provision of the policy, however, that supports Columbia’s interpretation that the $40,000 limit of liability is applied to all losses sustained within the policy period. That provision is entitled “COVERAGES AND LIMITS OF LIABILITY” and states that there is $40,000 coverage on the dwelling and that a “limit of liability is shown.” We note that this provision does not clearly identify whether the insurer’s limit of liability is the limit of liability per loss or total limit throughout the policy period. In order to determine the meaning and significance of this provision, the remainder of the policy provisions must be examined. See Farm Bureau, 233 Kan. 175, Syl. ¶ 3.
Analysis
A similar insurance policy was found ambiguous in a similar scenario in Michael v. National Sec. Fire & Cas. Co., 458 F. Supp. 128 (N.D. Miss. 1978). In that case, Michael purchased $15,000 of fire insurance from National Security, with the first year’s premium being paid in advance. Subsequently, the insured commercial property was partially destroyed by fire, and National Security paid Michael $15,000. Michael immediately repaired the property. Less than 3 months later, the insured property once again sustained fire damage and was totally destroyed. National Security denied liability for the second loss, claiming that its liability was limited to $15,000, the face amount of the policy. The court noted that the policy provided that National Security agreed to insure Michael for the actual cash value of the property at the time of loss “ Tor the term specified [one year] ... to an amount not exceeding the amount(s) above specified [$15,000].’ ” 458 F. Supp. at 130.
The Michael court found the insurance policy to be ambiguous for the following reasons: (1) The policy failed to state whether coverage was provided on a $15,000 per occurrence basis or whether payments totaling $15,000 constituted a limit of liability without regard to the number of losses or the time period of the policy, and (2) the policy did not state that payment of the $15,000 face value of the policy would automatically terminate further liability of the insurer. 458 F. Supp. at 130. The court noted that as drafter of the policy, National Security had the power to use language that would clearly exclude the risk of liability for successive losses, but that it had failed to do so. 458 F. Supp. at 130. See also Slater v. United States Fidelity & Guaranty Co., 379 Mass. 801, 809, 400 N.E.2d 1256 (1980) (use of words “one occurrence” in policy without definition or other aid gives rise to ambiguity to be construed against insurer).
For there to be an ambiguity there must be genuine uncertainty as to which of two possible meanings apply. Catholic Diocese, 251 Kan. at 693. This necessarily requires that the meanings suggested by the parties be reasonable. Thus, we must evaluate the reasonableness of O’Bryan s and Columbia’s assertions.
We note that there are two views regarding recovery for successive losses, i.e., the “Historical View” and the “Modem View.”
“Successive Losses - Historical View That Each Loss Reduces Remaining Coverage
“By the older view, where successive losses coming within the policy coverage are sustained, the maximum amount for which the policy is written is not increased by the number of losses or any other multiple, but remains constant. Hence after each loss is paid, the amount of insurance remaining is reduced by the amount of such payment. A policy may also provide that all losses thereunder reduce coverage, so that where two successive losses occur during the same policy period, the amount paid under the first claim is required to be deducted from the policy limit in determining the amount available with respect to the second claim.” 12 Couch on Insurance 3d § 175:15 (1998).
“Modem View That Policy Limit Applies to Each Loss
“Contrary to the view that total amount available for recovery for each successive loss is reduced by the amount of prior losses, other jurisdictions hold that the insured may recover up to the face value of the policy regardless of the number of successive losses provided that the insured sustains an actual loss.” 12 Couch on Insurance 3d § 175:16.
The Court of Appeals adopted the historical view that each loss reduces the remaining coverage under the policy, finding that this rule is “practical, reasonable, and sound public policy.” (Emphasis added.) The Court of Appeals stated:
“To accept O’Bryan’s position here would, in our view, fly in the face of logic and reasonable business judgment. To accept O’Bryan’s view, a windfall would result to the insured in any situation such as this. For example, if the dwelling here was insured only for $40,000 and the cost of total replacement was $400,000, then, in theory, the insurance company would be required to pay for 10 successive losses of $40,000 each on a policy with a stated limit of $40,000. We conclude that this would be contrary to public policy and the intent of the contracting parties.”
For some reason, the Court of Appeals also found it noteworthy that no repairs had been made to the property following the first loss and that the home was underinsured. This statement seems to indicate that the panel believed O’Bryan might have engaged in some type of fraud, but there is no support for this conclusion in the record.
In making its decision that the $40,000 limit applied per loss, the district court made the following observations:
“THE COURT: Now, I have other questions here. After the first fire did plaintiff continue to pay premiums for the insurance policy that’s the question.
“MR. THOMPSON [Plaintiff s counsel]: It was all in one policy period, so.
“THE COURT: So, they prepaid for that?
“MR. THOMPSON: The premium had been paid.
“THE COURT: . . . But once you have a loss and the insurance company pays you for that first time, I’m asking I guess the defendant this, does that mean that you don’t have any more insurance; now you’re not insured for the rest of the policy period because you’ve already been paid the limit of that policy so now, you’re uninsured?
“MR. GOTFREDSON [Defense counsel]: Under this type of policy that’s correct. Now, after the first loss there were still some policy limit left and then after the second one we tendered the amount. Now, diere would be no refund of premium because the company has earned the premium they charged the premium to pay die loss up to the limit and they’ve earned the premium so there would be no refund.” (Emphasis added.)
We note that defense counsel’s statement to the district court does not appear to be consistent with the cancellation provisions of the policy as discussed previously.
In further support of its argument that the $40,000 limit of liability is applied cumulatively to all losses within the policy period, Columbia also relies upon the fact the insurance policy did not contain a reinstatement clause or a loss clause. A reinstatement clause is a clause in which the insurer expressly agrees that full policy limits reinstate after the occurrence of covered loss during the policy period. A loss clause is a clause in which the insurer expressly agrees that full policy limits are not reduced by the occurrence of covered loss during the policy period. See Polilla v. St. Paul Fire and Marine Insurance Co., 322 So. 2d 46, 48 (Fla. Dist. App. 1975) (in absence of loss clause, insurer held hable, at most, in case of successive losses by fire, for difference between amount paid on first loss and amount named on policy as its coverage). To adopt Columbia’s reasoning, however, would go against the well-established rule that the insurer has the obligation to make the meaning of its policy clear. See Catholic Diocese, 251 Kan. at 693 (if insurer intends to restrict or limit coverage it must use clear and unambiguous language in doing so).
Columbia had the ability to contractually limit coverage under the policy to $40,000 for the entire policy period, as long as it did so clearly and unambiguously. Here, however, because the policy does not specifically provide whether the $40,000 is the limit of liability for the entire policy period or per loss and the insurer’s interpretations create an ambiguity, we find the policy to be ambiguous. Where an insurance policy is ambiguous, the construction most favorable to the insured must prevail. Catholic Diocese, 251 Kan. at 693. Thus, the district court was correct in granting O’Bryan summary judgment. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 32 P.3d 705 (2001) (if trial court reaches right result, its decision will be upheld even though it relied upon wrong ground or assigned erroneous reasons for its decision).
We reverse the Court of Appeals’ decision reversing the district court and affirm the district court’s decision granting partial summary judgment in favor of O’Bryan.
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The opinion of the court was delivered by
Davis, J.:
This case comes before us on questions reserved by the State. One of the questions reserved also involves an alternative ruling of the trial court that a criminal statute, K.S.A. 40-3104(d), was unconstitutional, thus invoking the jurisdiction of this court under K.S.A. 22-3601(b)(2) (appeal as a matter of right in “[a]ny case in which a statute of this state . . . has been held unconstitutional”). K.S.A. 40-3104 relates to motor vehicle liability insurance coverage. Based upon the unique facts of this case, we dismiss the State’s appeal because the questions reserved are not of statewide interest important to the correct and uniform administration of the criminal law and because the constitutionality of K.S.A. 40-3104(d) was not properly before the district court.
In the early morning hours of November 17,2000, Mark William Long was stopped on Interstate Highway 70 by Deputy Sheriff Jim Wilson of the Ellsworth County Sheriff s Department after Deputy Wilson observed the Long vehicle failing to maintain a single lane of traffic. Once stopped, Long backed into Deputy Wilson’s police vehicle, causing damage. At the time, Long was driving a vehicle registered to Douglas Jackson. Deputy Wilson issued the following citations to Long: Failure to maintain a single lane of traffic in violation of K.S.A. 8-1522; driving under the influence, second offense, class A misdemeanor in violation of K.S.A. 8-1567; improper backing in violation of K.S.A. 8-1574(b); and no liability insurance, second offense, class A misdemeanor in violation of K.S.A. 40-3104. With the exception of the last charge regarding liability insurance, all other charges were disposed of by nolo contendere pleas and are not involved in this appeal.
At the time the citations were issued, Long presented to the arresting officer an insurance card showing coverage for the vehicle he was driving with an effective date of July 25, 2000, and an expiration date of October 25,2000. Therefore, according to the card presented by Long, the vehicle he was driving was not covered by insurance. When Long’s motion to dismiss was presented to the trial court on January 17, 2002, more than 1 year after the citations were issued, a second document was presented by Long. This document indicated that there existed a policy with Shelter General Insurance Company, demonstrating that the vehicle Long was driving was covered by insurance at the time the citations were issued on November 17, 2000.
As noted above, Long filed a motion to dismiss and set forth a statement of facts which were stipulated to by the State with the exception of paragraph 5. The facts then considered by the trial court were:
“1. [Long] pled guilty to the other three counts pending against him on August 16, 2001. Sentencing was deferred on those counts until this remaining count is resolved.
“2. A jury trial on this remaining count was scheduled for December 11, 2001, however, counsel agreed to submit the legal issue of statutoiy interpretation to the Court on stipulated facts for decision.
“3. At the time of his arrest on November 17, 2000, the Defendant was driving a car registered to Douglas Jackson.
“4. The Defendant was involved in a collision with a vehicle belonging to Ellsworth County, Kansas, on November 17, 2000.
“5. Within 10 days of his arrest and the collision, the Defendant provided proof of insurance on the vehicle. This insurance, as evidenced in Exhibit ‘A,’ was in effect on November 17, 2000, through Shelter General Insurance Company, in the name of the registered owner of the vehicle, Douglas Jackson.
“6. At some point, Ellsworth County submitted a claim to Shelter General Insurance Company for the damage to the county vehicle. This claim was denied.
“7. The defendant also had insurance in effect on his vehicle on November 17, 2000, as evidenced in Exhibit ‘B.’ This proof of insurance was not provided to Ellsworth County until December 2001.
“8. The Defendant would submit that he is in compliance with K.S.A. 40-3104 and would direct the Court to the following Memorandum in Support of Motion to Dismiss.”
With regard to paragraph 5, the record supports the State’s position that the additional proof of insurance submitted by Long showing that the vehicle he was driving was covered was not submitted until his motion to dismiss was filed, which was approximately. 1 year after the citation was issued. However, the State acknowledged and the court found that at the time of hearing Long’s motion to dismiss, Long presented additional documentation showing that insurance coverage for the vehicle existed at the time the citation was issued.
The statute under which Long was charged is K.S.A. 40-3104, which provides in pertinent part:
“(a) 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. . . .
“(b) 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.
“(c) 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.
“(d) Any person operating a motor vehicle upon a highway or upon property open to use by the public shall display, upon demand, evidence of financial security to a law enforcement officer. The law enforcement officer shall issue a citation to any person who fails to display evidence of financial security upon such demand. The law enforcement officer shall attach a copy of tire insurance verification form prescribed by the secretary of revenue to the copy of the citation forwarded to the court.
“No citation shall be issued to any person for failure to provide proof of financial security when evidence of financial security meeting die standards of subsection (e) is displayed upon demand of a law enforcement officer. Whenever the authenticity of such evidence is questionable, the law enforcement officer may initiate the preparation of the insurance verification form prescribed by the secretary of revenue by recording information from the evidence of financial security displayed. The officer shall immediately forward the form to the department of revenue, and die department shall proceed with verification in the manner prescribed in the following paragraph. Upon return of a form indicating that insurance was not in force on the date indicated on the form, the department shall immediately forward a copy of die form to the law enforcement officer initiating preparation of die form.” K.S.A. 40-3104.
The citation issued contained the following: “4. No Liab. Ins. 2nd Time,‘A’ Misd. . . . K.S.A. 40-3104.” While the officer did not specify any subsection of K.S.A. 40-3104, Long, in his motion to dismiss, assumed that the appropriate charge would be under the provisions of K.S.A. 40-3104(d). He arrived at this conclusion applying the following logic:
“As Mr. Long was not the owner of the vehicle, he must have been charged under 40-3104(c) or (d), although the citation does not specify the subsection. Subsection (c) would not be applicable, as the vehicle was insured. Therefore, Mr. Long is facing a charge of failure to display evidence of financial security to a law enforcement officer, a violation of subsection (d).”
Both Long and the State accepted this assumption and presented the case as if Long had been charged with a violation of K.S.A. 40-3104(d). The trial court accepted this assumption and proceeded to dispose of the case as if Long had been charged under K.S.A. 40-3104(d). However, the assumption by Long and his contention that he was charged under the provisions of subsection (d) was incorrect.
Careful examination of the traffic citation demonstrates that Long was actually charged under the provisions of K.S.A. 40-3104(c). In charging Long with this violation, Deputy Wilson cites the provisions of K.S.A. 40-3104 without designating a subsection. In describing tire charge, Officer Wilson specifies in the traffic citation: “No liab. Ins. 2nd Time, ‘A’ Misd.” This language makes no reference to the requirement in subsection (d) that a defendant shall “display, upon demand, evidence of financial security to a law enforcement officer.” K.S.A. 40-3104(d). Rather, the language clearly charges Long, who was not the owner of the vehicle, with having no liability insurance under the provisions of K.S.A. 40-3104(c).
With the understanding that Long was charged with a violation of K.S.A. 40-3104(d), the trial court dismissed the charge:
“THE COURT: Okay. Well, I realize that the way I view my role in this case might be somewhat naive. But it seems to me that the legislative intent behind 40-3104 in all of its labored language is simply to insure that people who drive cars on the highways of Kansas are covered by insurance or are otherwise financially secure.
“THE COURT: And it seems to me that the real test here is whether or not Mr. Long has been placing the people of Kansas at risk of being run into by an uninsured driver or not. And that the bottom line, to use accounting technology, is whether or not he had insurance in effect at the date of the accident. If he did have, then he’s not guilty; if he didn’t have, then he is guilty. . . . There’s a whole list of activities that are supposed to occur in these land of cases set out in the statute [subsection (d)]. Which apparently haven’t occurred. I therefore conclude that the motion to dismiss should be granted or in the alternative, that die State has failed to prove by beyond a reasonable doubt that the defendant is guilty by virtue of not having insurance in effect. Or perhaps even thirdly, that perhaps the statute is unconstitutional in that it impermissibly shifts the burden of proof to the defendant requiring him to prove himself innocent rather than the State to prove himself guilty. In any event, it’s a perplexing question. A poorly drawn statute and the situation that is best put to an early death. The charge is dismissed.”
At the conclusion of the hearing the State reserved two questions:
“The question reserved is, is K.S.A. 40-3104, and in particular subsection D thereof, a constitutional criminal statute and exercise of the police power, as such statute per the ruling of the [trial court] impermissibly shifts the burden of proof from the State to the defendant with respect to the issue of whether or not there is insurance existing and present. Another question reserved as a corollary would be whether [it] is a defense to a prosecution under K.S.A. 40-3104[d] to produce evidence of insurance, proof of insurance, evidence of financial security outside the time frame or ten day window provided for by statute.”
On January 23, 2002, the State filed a timely notice of appeal under K.S.A. 2001 Supp. 22-3602(b)(3), question reserved, and under the provisions of K.S.A. 22-3601(b)(2), which vests jurisdiction in the Supreme Court when a statute of this state or the United States has been declared unconstitutional by the trial court.
Discussion and Analysis
K.S.A. 40-3104 sets forth three separate violations:
“(b) 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.
“(c) 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.
“(d) Any person operating a motor vehicle upon a highway or upon property open to use by the public shall display, upon demand, evidence of financial security to a law enforcement officer. The law enforcement officer shall issue a citation to a person who fails to display evidence of financial security upon such demand.”
Instead of designating the specific subsection under K.S.A. 40-3104 that Long was charged with, the officer cited only the statute 40-3104. The failure to designate the specific subsection helped create some of the confusion that later developed when the citation was filed with the court. This case illustrates the necessity of specifying in the citation the exact subsection the defendant is charged with violating.
“The sufficiency of the charging document is measured by whether it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import.” State v. Smith, 268 Kan. 222, 226-27, 993 P.2d 1213 (1999).
While the officer referred to the statute without citing the specific subsection, he described the charge as having no liability insurance. Thus, the charging document was sufficient to charge Long, who was not the owner of the vehicle, with a violation of K.S.A. 40-3104(c). The facts surrounding the issuance of the citation support this conclusion, for Long handed the officer a document indicating that the insurance on the vehicle had expired 3 weeks before. K.S.A. 40-3104(d), involving the failure to display, was not charged in this case.
The questions reserved by the prosecution in this appeal assume that Long was charged under the provisions of K.S.A. 40-3104(d), when in fact he was charged with a violation of K.S.A. 40-3104(c). Both questions reserved require answers involving a charge not involved in this case. To add to the confusion, all parties and the trial court in this case seemed to assume that the gist of any possible charges under K.S.A. 40-3104 related to the operation of a vehicle upon the highways of this state without insurance. In fact, the trial court, as noted above, in its decision to dismiss said as much. “If he did have [insurance], then he’s not guilty; if he didn’t have, then he is guilty.” Neither the parties nor the court seemed to acknowledge that K.S.A. 40-3104(d), the subject of the questions reserved, provided for a separate offense of failing to display upon demand evidence of financial security.
Given this basic misunderstanding, and the further fact that the questions reserved by the State relate to a charge not actually involved in this case, we conclude that the trial court’s disposition under subsection K.S.A. 40-3104(d) does not amount to an adverse legal ruling on issues of statewide interest important to the correct and uniform administration of criminal laws of this state. See State v. Roderick, 259 Kan. 107, Syl. ¶ 1, 911 P.2d 159 (1996). We therefore decline to answer the questions reserved and dismiss the appeal.
Moreover, the alternative ruling of the trial court on the constitutionality of K.S.A. 40-3104(d) was not properly before the trial court. Because Long was charged under subsection (c) and not (d), the trial court did not have jurisdiction to declare K.S.A. 40-3104(d) unconstitutional. Likewise, we are without jurisdiction to pass judgment on the issue of the constitutionality of K.S.A. 40-3104(d). See State v. Moody, 272 Kan. 1199, 1202, 38 P.3d 659 (2002). The trial court’s determination that K.S.A. 40-3104(d) was unconstitutional is set aside, and the State’s appeal under K.S.A. 22-3601(b)(2) is dismissed.
We further note that the trial court’s dismissal of the charge was an appropriate disposition of this case. Long was charged with a violation of K.S.A. 40-3104(c). Upon hearing before the trial court, Long presented a document demonstrating that insurance covered the vehicle he was driving at the time that Officer Wilson issued the citation. Among other reasons given for the dismissal, the trial court determined that the State had not proved beyond a reasonable doubt that Long was driving an uninsured vehicle.
The ruling of the trial court was an appropriate disposition of this case under the provisions of K.S.A. 40-3104(c). The questions reserved involve a charge under K.S.A. 40-3104(d). The trial court ruling based upon its mistaken belief does not present questions of statewide interest important to the correct and uniform administration of the criminal laws of this state. As noted above, tire trial court had no jurisdiction to declare a statute not before it unconstitutional. Thus, under the unique circumstances of this case, we dismiss the State’s appeal.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a retaliatory discharge case in which William Wendt sued his former employer, the University of Kansas Medical Center (KUMC), the University of Kansas (KU), and five individual defendants, Irene Cumming, Donald Hagen, Richard Robards, David Cobb, and David Lewin. The district court dismissed Wendt’s 42 U.S.C. § 1983 (2000) claims against KUMC and KU, dismissed the 42 U.S.C. § 1983 claims against the individual defendants in their official capacities, entered summary judgment in favor of Hagen in his individual capacity, dismissed all claims against David Lewin, and entered judgment in favor of defendants on all remaining claims in accordance with a jury verdict.
Wendt appealed. Defendants cross-appealed the district court’s denial of their request for certain deposition costs. The case was transferred from the Court of Appeals to this court pursuant to K.S.A. 20-3018(c).
ISSUES:
The issues raised by Wendt’s appeal are whether: (1) the district court abused its discretion in admitting evidence of KUMC’s internal employment termination appeal process; (2) the district court erred in dismissing 42 U.S.C. § 1983 claims against KU, KUMC, and the individual defendants in their official capacities; and (3) the district court erred in issuing a posttrial ruling on motions taken under advisement during trial that Wendt’s evidence would not support an award of punitive damages.
The issue raised on cross-appeal is whether the district court erred in denying defendants’ request for certain deposition costs.
Wendt began work at KUMC in 1986. For most of his tenure there, Wendt worked as a biomedical instrumentation specialist (bio-med tech). As a bio-med tech, he was responsible for certain equipment used in surgical procedures, including defibrillators used to revive stopped hearts and balloon pumps used to keep weak hearts beating.
On a number of occasions while Dr. Jon Moran was in charge of the heart transplant program at KUMC, Wendt provided bio-med tech assistance during Dr. Moran’s surgeries. Wendt believed that Dr. Moran was a very good surgeon and enjoyed working with him. In the fall of 1994, Dr. Hamner Hannah replaced Dr. Moran as head of the KUMC heart transplant program. On March 24, 1995, Wendt provided bio-med tech assistance for an unsuccessful heart transplant procedure performed by Dr. Hannah. Wendt later misrepresented that he had personal knowledge that the transplanted heart had required resuscitation while still in the donor. The heart recipient died approximately 2 hours after leaving surgeiy.
Wendt’s contacts with state officials. In March 1996, Wendt anonymously telephoned the Office of Constituent Affairs in the Governor’s Office. The person who spoke with Wendt prepared a memorandum from the notes she took during their conversation. Regarding several of the issues Wendt raised, she wrote:
“They are using doctors from a Hanna group. The doctors are not staying with transplant patients until they are stabilized. Post-operative care was his real concern. The staff they are using are not adequately trained to cope with transplant patients.
“Patients are not getting their transplants in a timely fashion, because they have to wait for the surgeon to finish at another hospital. According to him, the Hanna group served seven hospitals and the Medical Center is bottom on the totem pole. In one instance — in that one instance, that a heart that was harvested from another part of the hospital was Coded and the surgeons still tried to use it for a transplant.
“Last week a liver transplant was done and there were no gloves available and the equipment was not cleaned. Apparently they are getting a new plasma sterilizer, and things were not clean because it was not operational.”
After calling several more times in the intervening months, in August 1996 Wendt finally identified himself to the constituent affairs officer. He was asked to put his allegations in writing and mail them to the Office of Constituent Affairs on or before September 3. On August 30, Wendt telephoned the constituent affairs office and demanded to speak to someone else. He did not comply with the request for written allegations. The constituent affairs officer considered the matter closed. She neither contacted anyone at KUMC about the allegations nor had any knowledge that anyone else in the Governor’s office did so.
On or before September 2, Wendt telephoned the office of the Attorney General and spoke to Steve Rarrick, who was chief of the consumer protection division. Rarrick had worked with KUMC during the summer of 1996 to reach an agreement and execute an Assurance of Voluntary Compliance, which was dated August 26, 1996. The document included the following Attorney General’s allegations against KUMC of deceptive and/or unconscionable acts in violation of the Kansas Consumer Protection Act:
“ ‘Respondents willfully failed to state material facts to and/or willfully concealed material facts from patients placed on and/or evaluated for placement on the heart transplant waiting list by fading to disclose material facts regarding the number of donor heart offers being refused for non-medical reasons, the status of the heart transplant program, that heart transplants were limited to in-house donors for a period of time, that no surgeon was available to perform heart transplants for a period of time, and that no surgery was available to perform heart [sic] that prior to the termination of the program the heart transplant surgeon at K.U.M.C. failed to meet the minimum transplant training and/or experience required by UNOS [Unified Network for Organ Sharing] under K.S.A. 50-626(b)[2].’ ”
When Wendt telephoned the Attorney General’s office, Rarrick believed that it was in response to a press conference about the settlement with KUMC. Wendt told Rarrick that he was having an employment dispute with KUMC, and Wendt reported that a heart that had to be resuscitated in the donor was transplanted into another patient, and he believed that criminal charges ought to be considered. Rarrick referred Wendt to Dave Debenham, who was in charge of the Attorney General’s criminal division. Rarrick never contacted anyone at KUMC about Wendt’s allegations.
After speaking with Wendt, Debenham directed an investigator from the Attorney General’s office to contact Wendt in order to get a written statement from him. The investigator made a tape recording of his interview with Wendt and provided the recording to Debenham. Debenham referred the matter to the Board of Healing Arts, which had the technical expertise to determine if there were grounds for Wendt’s complaints. Neither Debenham nor anyone else in the criminal division of the Attorney General’s office ever contacted anyone at KUMC about Wendt’s allegations.
Wendt’s employment record with KUMC. Wendt’s generally positive employment record with KUMC is punctuated with occasional negative aspects, which became more frequent toward the end of his tenure. In the resume he submitted with his application for employment at KUMC in 1986, Wendt misrepresented his educational background in order to make it seem as if he had a substantial knowledge of chemistry.
In 1988, a report of employee guidance and discipline was given to Wendt in which the problem was described as follows: “ ‘Employee lied and disobeyed a direct order issued by department head. Employee has not kept up with training expectations/ ” The report included the following comments: “ ‘Employee admitted wrongdoing. Employee was notified that he will be immediately terminated if he ever lies, disobeys orders, cover[s] up any mistakes or fails in this training expectation/ ”
In subsequent annual evaluations, Wendt’s technical skills and conscientiousness were praised, but he was admonished to improve his diplomatic skills, his working relationships with other employees, and his negative attitude. In 1993, Wendt’s supervisor, David Cobb, commented that “Wendt needs to work on his diplomacy regarding communication with other personnel.” In January 1995, Wendt’s performance evaluation noted that he needed to “improve his interpersonal skills, example [sic] attitude and arguing with nurses at times, also arguing with co-workers.” His supervisor added, “I want to see [Wendt] become a team player and leader in these changing times and have the ability to adapt with a positive and friendly attitude.”
In January 1996, Wendt was commended for his ability to work independently, his efforts to improve procedures, and his initiative in continuing his education. His supervisor also stated that Wendt “needs to try and understand that changes are going on in the health care throughout the country. I understand it’s hard on everyone, I hope [Wendt] can control his negative attitude through these changes.”
The self-review submitted by Wendt in January 1996 is saturated with dissatisfaction. Wendt listed as a significant accomplishment that he “[d]idn’t leave with Dr. Moran, didn’t run screaming to legislature, regents, press about changes and incidents [he was] present at.” A factor he identified as contributing to his accomplishment was “lots of naive hope that things would change.” Wendt listed as a hindrance to his achieving his objectives that his boss told him “we wanted to let patients die on the floor because if we saved them and they went to ICU, we would only have a profit margin of‘$2-300 and that is unacceptable.’ ” Wendt’s major goal for the coming year was to “leave KUMC.” He explained: “I believe that KUMC is unrecoverable. The incidents I have seen should have cost some people their licenses. My record is clear and of high quality. The record of KUMC administration borders on the criminal. I am not proud to say I’m from KUMC and, in leaving, would join a long list of ‘quality’ physicians and nurses.”
At a department meeting with Lynn Barnes, an outside consultant, on July 26, 1996, Wendt said that KUMC condoned murder and let patients die in the intensive care unit. He stated that Dr. Hannah should be prosecuted for fraud, that the unsuccessful heart transplant surgery constituted plain murder, that there was misuse of certain catheters, and that Dr. Child allowed a trauma patient in ICU to die rather than treating him. When Cobb suggested to Wendt that his concerns ought to be taken up with risk management rather than with the consultant, Wendt became highly agitated and asked, “What are you going to do, fire me?”
After the meeting with the consultant had broken up, Cobb, Rick Robards of KUMC’s Human Resources department, and Dr. Craig Heligman met with Wendt. Wendt was asked to put his allegations in writing. After Wendt responded to a page to attend to a patient’s need, he met again with Cobb and Heligman. Heligman summarized the second meeting in a letter to Robards as follows: “ ‘Mr. Wendt made serious allegations concerning inadequate staffing, physician practices, deterioration of ability for KUMC to provide adequate care for patients in several areas, and questioned the validity of the outcome of the investigation surrounding the heart transplant program.’ ” Heligman also reported: “ ‘Mr. Wendt explained that he had attempted to contact Dr. Hagen and the governor, but his calls and messages went unanswered.’ ” Heligman concluded: “ ‘In order to close the discussion with Mr. Wendt, I advised him to prepare an executive summaiy no more than five pages with details of the most significant issues he identified. Once that was completed, Dave and I assured him that he would be able to present the information to a senior KUMC officer such as Dr. Hagen, Dr. Lambson and Ms. Gumming or Dr. Estes. He appeared to be satisfied with that.’ ”
On August 15, 1996, Robards wrote to Wendt:
“I am writing as a follow up to the meeting you attended on July 25 at approximately 4:30 p.m. in my office. During that meeting Dave Cobb, Dr. Craig Heligman and I listened to you convey a number of general concerns and allegations. We informed you that these seemed to be very serious allegations and should be investigated further. We advised you that in order to properly investigate these matters, we would need additional detail and asked you to document your concerns in writing.
“Approximately one week later, you called my office and spoke to a member of my staff, Mr. Cliff Rovelto. He reported that you called to express your displeasure that ‘noihing had happened’. Mr. Rovelto advised you that he had not had any discussion with you concerning these issues, but reminded you that Dave Cobb, Dr. Heligman and I had asked you to detail your concerns and allegations in writing. He then again invited you to document the concerns and send them directly to him. Following your conversation with Mr. Rovelto you contacted Ms. Susan Fry, Chief Operating Officer for [KUMC] Hospital and asked that Mr. Cobb, Dr. Heligman and myself be dismissed. At the conclusion of this conversation, Ms. Fry conveyed the importance of obtaining details relevant to the concerns and once more asked you to document your allegations so that they could be investigated.
“As of this date, you have failed or refused to comply with these repeated requests. Your refusal to cooperate has made it impossible to conduct any investigation into the issues you raised. . . .
“It was my sincere belief that your primary interest was our patients and their families. If such is the case, we are willing to provide you with one final opportunity. If you have documentation or evidence to support your allegations, please provide a signed statement including this documentation to me no later that 5:00 p.m. on Monday August 19, 1996. If you prefer, we will make arrangements for a tape or video recording of your statement. If you wish to pursue this alternative, please contact my office to arrange for a meeting.
“I am sure you are aware that the discussion of unsubstantiated allegations involving patients and or patient care with persons outside administration is inappropriate. I continue to be available to receive any evidence, documents, or detail which would assist us in investigating these matters.”
Wendt never complied with the request that he provide written allegations.
Wendt failed to attend a meeting that Cobb arranged between Wendt and Kent Hider of Employee Relations to discuss Wendt’s concerns about comp time. The meeting was to have occurred on September 6.
On September 9, in a patient-care area of the surgical ICU, Wendt inappropriately and in a very agitated manner talked repetitiously in a very loud voice about one of the nurses violating the infection control policy. Wendt did not lower his voice as requested. Investigation of the nurse’s conduct revealed no deviation from the protocol.
Robards testified that the purpose of asking Wendt to provide written allegations was to have a document to transmit to Risk Management for investigation. Because Wendt failed to provide written allegations as requested, Cobb directed him in writing to meet with Ruth Kamm, the Risk Manager, on September 10 to discuss his “concerns and allegations.” Cobb’s letter stated: “The issues you raise are serious and it is imperative that they be investigated. As I am sure you are aware, the best interests of our patients and their families are clearly not being served by your unwillingness to cooperate in investigating this matter.” Wendt met with Kamm. He used the medical records to discuss his allegations regarding the unsuccessful heart transplant surgery performed by Dr. Hannah, and he “discuss [ed] the churning of medical equipment.” Wendt told Kamm that he had contacted the Governor’s Office of Constituent Affairs.
On September 13, Wendt inappropriately spoke in a very loud voice in the operating room to Hayley Hon, a certified surgical nurse. After delivering a doppler probe unit to the operating room as requested, Wendt accused Hon of using unsterile lubricant in inserting the probe through a patient’s surgical incision. Hon testified that the prep cart and the gel container are not within the sterile field around the patient, but that the lubricating contents of the gel container are sterile. Proper procedure requires the nurse to transfer some of the sterile gel from its container to a sterile vessel without touching the sterile vessel with the unsterile container. The probe is lubricated from the sterile vessel. Wendt removed the container of lubricant from the prep cart and left the operating room with it. When he returned to the operating room with another container of gel, he was still accusing Hon of using an místenle product. She followed him out of the operating room to have a short conversation with him before she returned to the surgery. After the surgery was complete, Hon reported the incident to Marcy Walker, the charge nurse at the nursing desk. It was the first time since Hon began working as a surgical nurse at KUMC in 1986 that she had reported an incident. She reported it because Wendt’s loudness and obnoxious manner in the circumstances were inappropriate.
KUMC’s written policy for dismissal of permanent employees provides: 'When an instance of misconduct or poor job performance is determined to be of a serious nature, the Medical Center may by-pass any or all of the established progressive system of discipline.” After the operating room incident, Cobb recommended that Wendt be fired. In accordance with the usual procedure, upon receiving Cobb’s recommendation, Robards directed a member of his staff, Kent Hider, to evaluate the situation. Hider’s task was to assess whether the recommendation by a department manager was reasonable and whether there was a sufficient basis for termination. After Hider’s assessment was complete, he prepared a letter for Robards’ signature that informed Wendt of KUMC’s decision.to terminate him. The letter, which is dated September 30, 1996, states:
“This letter is to notify you of a decision to effect disciplinary action as a result of your inappropriate behavior which resulted in a detrimental effect on the efficiency and morale of employees in the hospital. I would like to review die background and reasons for this action.
“On September 9,1996, while performing your job assignment as a Biomedical Technologies Technician your confrontational behavior about die isolation techniques of a new nurse resulted in an altercation with the Nurse Manager of SICU. The altercation was loud enough that anyone in die vicinity including patients could easily hear it. Such conduct is unacceptable.
“Previously you have been warned about your abusive and excessively defiant attitude evidenced by your behavior. You have also been advised on numerous occasions, including performance appraisals, that your negative attitude and inappropriate behavior make it impossible for hospital employees to properly discharge their job duties and provide quality patient care. Since you are classified as a professional employee, the administration expects a high degree of discretion in your interaction with other employees. We have no doubt that you understand that appropriate conduct is required for you as well as other employees of the University of Kansas Medical Center.
“On September 13,1996 you again exhibited inappropriate behavior when you confronted a staff nurse in the Operating Room about her professional competence in sterilization techniques. This particular incident culminated in the nurse being ridiculed and degraded by your actions during surgery. The inappropriate and unacceptable method in which you approached the situation based on your inaccurate assessment of the medical technique used is another example of your insubordinate behavior and refusal to follow the directives of your supervisor.
“Because of your inappropriate behavior and its effects on other employees, following previous warnings and the opportunity to improve, we are proposing your dismissal effective October 8,1996. You are relieved of duty with pay pending the outcome of this action.”
In the final paragraph of the letter, Wendt was advised that he had a right to appeal: “if you care to exercise that appeal right, you may write within ten (10) days of the effective date of this action, to Mr. Kenton Hider, Employee Relations Manager . . . .”
Wendt wrote a timely appeal letter. In a 7-page memorandum dated October 28, 1996, to Robards, Hider reported what he was told in interviews with a number of KUMC employees and stated that, on the basis of the investigation, he concluded that Wendt’s version of the incidents in surgical ICU and the operating room was not credible.
Wendt was informed by a letter dated October 29, 1996, that the decision to terminate him would not be overturned. Wendt then exercised his right to a further appeal of his termination to a three-person KUMC Appeal Board, where he was represented by counsel. The decision to terminate Wendt’s employment was upheld by the Appeal Board.
We first consider the district court’s admission of evidence of the KUMC’s internal employment termination appeal process. The standard of review for a trial court’s ruling regarding the admission of evidence, subject to exclusionary rules, is whether the trial court abused its discretion. State v. Lumley, 266 Kan. 939, Syl. ¶ 1, 976 P.2d 486 (1999).
Wendt complains of the trial court’s admitting into evidence the memo prepared by Hider and addressed to Robards on the investigation conducted upon Wendt’s initial appeal of the decision to terminate his employment. Wendt’s counsel objected to admission of the memo on the grounds that it was irrelevant, invaded the province of the jury, and was prejudicial. On appeal, Wendt adds the allegation that the memo constituted improper expert testimony. Wendt further contends that any probative value was outweighed by the prejudicial effect.
In his second amended petition, Wendt alleged that defendants’ conduct in terminating him “was willful, wanton, and malicious, and was motivated by evil motive or intent or involved reckless or callous indifference” to his federally protected rights and that the actions of individual defendants “constituted actual malice” toward him.
The trial court gave the following explanation for its admission of the memo: “I’ve indicated that because you were claiming that the actions of these defendants were willful, wanton, and entitled you to punitive damages, I believe that the process of why they went through this terminating Mr. Wendt is certainly relevant, and you may lay it before the jury, and the jury can decide whether or not the actions were willful and so forth and so on.” The trial court on several occasions instructed the jury that the memo was to be considered for a limited purpose:
“[Y]ou are going to be asked to malee your own determination about the propriety of termination. Here, you are going to be asked to make that that determination be made based upon the evidence and the instructions that I will give you at the close of the case; and in fact, that tire fact that an appeal panel made a determination that upheld the appeal is not relevant on that point. You may consider the appeal process for other issues such as the reasonableness of the process and whether or not the defendant acted in a wilful or wanton manner. And you will be instructed about all of this later on.
“So, with that repetition of a limiting instruction, we will proceed.”
Opening the door. KUMC asserts that Wendt and Wendt’s witness, John Miller, introduced the subject of the internal appeal process and freely testified about it. None of the transcript references given by KUMC are to testimony about Hider’s investigation of allegations made by Wendt in the appeal letter he wrote after receiving Robard’s letter. Instead, the testimony is about the separate and somewhat later hearing before a three-person panel, which was afforded Wendt as a part of KUMC’s procedures for unclassified health care employees.
Relevance. Wendt contends that because his termination preceded Hider’s memo, the document is irrelevant to the question of whether defendants’ action in terminating him was malicious, willful, or wanton. KUMC contends that Hider’s memo, which was evidence that the decision to dismiss Wendt was subject to meaningful review and modification and that the first level of the available review was thoroughly investigated, was relevant to counter the allegations of malicious conduct. Relevant evidence means evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). As KUMC contends, Hider’s memo tends to show that the decision to dismiss Wendt was thoughtfully and thoroughly investigated at a time when it could be modified.
Province of the jury — credibility of plaintiff. Hider’s memo contains this statement: “Based on my investigation, the allegations made by Mr. Wendt regarding the incidents that occurred in SICU and the O.R. do not appear credible and are not supported by the information presented in his written appeal letter.” Wendt argues that admission of Hider’s memo violated the rule of Cimarron Feeders v. Bolle, 28 Kan. App. 2d 439, 17 P.3d 957 (2001), which purportedly prohibits a witness from testifying as to the credibility of another witness’ testimony. In fact, the evidentiary issue in Cimarron Feeders was an expert witness’ giving an opinion on the ultimate issue. Cimarron Feeders’ accountant testified that a revised operating agreement and promissory note, from which the dispute arose, was “ probably fair.’ ” 28 Kan. App. 2d at 449. The Court of Appeals concluded that the accountant’s opinion invaded the province of the jury because the “fairness” of the agreement and note was a matter within the normal experience possessed by jurors. 28 Kan. App. 2d at 449. The Court of Appeals believed that the erroneous expert testimony may have been harmless as an isolated instance but that the totality of circumstances and trial court errors required reversal. 28 Kan. App. 2d at 451.
A case that is closer to the point Wendt attempts to make is State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986), where the court held that it was reversible error for the trial court to have permitted two expert witnesses to express their views on the reliability of the statements of the complaining witness. The court stated: “[T]he witnesses attempted to serve as human lie detectors for the child and both told the jury that in their professional opinions the child was truthful and the defendant was guilty as charged. We are convinced that it was the function of the jury to hear the testimony of the witnesses as to what the child said, and then to make a determination of the reliability of the child’s statements.” In other cases where one witness had been allowed to comment on the credibility of another, for example, State v. Mullins, 267 Kan. 84, 94-97, 977 P.2d 931 (1999), the harmless error rule has been applied.
In the present case, the Hider memo was not offered or admitted as expert testimony. Hider questioned Wendt’s position based on his interviews of various hospital personnel. Their statements were summarized in the report. These same employees testified at the trial. In fact, Hayley Hon and Lynn Davis were called by Wendt as part of plaintiff s case. Fellow hospital employees Carol January, Carolyn Werth, Marcie Walker, and Carol Anne Sass testified for the defendants. Hider was not available to testify because he died before trial. Hider’s written comment on Wendt’s credibility was part of one sentence in a 7-page memo. Wendt has not alleged that he asked the trial court to redact the single phrase “do not appear credible” from the lengthy document. Wendt has not shown that in these circumstances the trial court erred in admitting the document because it contained a comment on his credibility.
Province of the jury — opinion on the ultimate issue. Wendt complains that admission of Hider’s memo impermissibly introduced his opinion on the ultimate issue to be decided by the jury, whether his termination was wrongful. Most of the cases cited by Wendt involve traffic accidents and the admissibility of investigating officers’ reports. As KUMC notes, an opinion on the ultimate issue was determined to be error in Cimarron Feeders. KUMC also observes that in the cases cited by Wendt the opinions were rendered by experts or figures of authority, and in the present case the opinion was that of another KUMC employee.
KUMC cites employment termination cases from other jurisdictions. The cases are Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256, 76 Cal. Rptr. 2d 382 (1998); Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997); Moore v. Sears, Roebuck and Co., 683 F.2d 1321, 1322 (11th Cir. 1982); and Crimm v. Missouri Pacific R. Co., 750 F.2d 703, 709 (8th Cir. 1984). In these cases, the rulings admitting internal personnel documents were made over hearsay objections. KUMC argues that despite the differing challenges, the rationales for admission in the foreign cases are aptly applied in the present circumstances. Review of the foreign cases, however, shows that to some degree they must be distinguished from the present case. Silva was fired based on the findings of an investigation undertaken by Lucky Stores’ human resources representative after a female employee complained that Silva improperly touched her. Wolff was terminated based on memoranda written by supervisors and fellow employees describing specific instances of Wolff s misconduct. Moore was terminated based on memoranda prepared by Moore’s supervisors that contained observations pertaining to Moore’s performance, summaries of reports on his performance made by other Sears employees, and chronological accounts of events such as personnel investigations and meetings. Crimm was removed from his superintendent’s position based on his supervisor’s investigative report of an incident of sexual harassment by Crimm.
The hearsay objection in each of these cases was overruled because the reports were not offered for the truth of the matter contained therein. The documents, instead, were offered and admitted to show that there was a basis for the employee’s termination other than the alleged improper basis. The Hider memo, which was prepared after Wendt was dismissed, was not the basis on which the dismissal decision was made. For this reason, the rationale of the foreign cases is not strictly applicable. The foreign cases, however, are instructive for their admission of the employers’ internal investigative documents. They are not treated, as Wendt would have the court do, like the opinions of experts for evidentiary purposes.
The final argument made by Wendt is that the probative value of the Hider memo was outweighed by prejudice. The balance of probative value and prejudice generally is left to the sound discretion of the trial judge. Although the Hider memo might be questionably admissible in other circumstances, it was not an abuse of the district court to admit it for the limited purpose set out in instructions to the jury.
We next consider whether the district court erred in dismissing the 42 U.S.C. § 1983 (2000) claims.
Wendt’s first amended petition was in two counts, violation of 42 U.S.C. § 1983 and wrongful termination. Both counts were alleged to have arisen from Wendt’s communications with the offices of the Governor and the Attorney General. Although Wendt’s second amended petition substituted a count of conspiracy to violate 42 U.S.C. § 1983 for the wrongful termination count, it appears from the verdict form that the claim ultimately submitted to the jury was for wrongful termination.
KU and KUMC moved to dismiss Wendt’s § 1983 claims against them for failure to state a claim. The trial court granted their motion on the ground that as arms of the State, they could not be sued for monetary damages under 42 U.S.C. § 1983. Wendt contends that the dismissal was improper.
In Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), the court held that KUMC is not subject to a suit for damages under 42 U.S.C. § 1983. The court stated:
“The first claim advanced by the plaintiffs is that the Kansas Adult Authority and the Kansas University Medical Center have violated their civil rights, and for this violation plaintiffs claim monetary damages under 42 U.S.C. § 1983 (1982). The first issue which we face, then, is whether a state agency is considered a “person” pursuant to 42 U.S.C. § 1983 in an action for damages commenced in the state courts. The trial court, as noted above, held that these state agencies were not persons under 42 U.S.C. § 1983, and therefore the trial court sustained the motions to dismiss as to tire Section 1983 claims.
‘We have never held that state agencies were persons under 42 U.S.C. § 1983 for the purpose of suits seeking damages thereunder. The State has consented to suit for damages under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., but that act does not contain the consent of the State to the filing of actions for damages against it under Section 1983. (The State of Kansas has not waived its sovereign immunity from suits seeking monetary damages under 42 U.S.C. § 1983.) We have reviewed many of the opinions of our sister state courts dealing with this issue, and find them sharply divided. A review of those opinions would add length but not substance to this opinion. We have carefully considered the issue, and hold that, while the State of Kansas is a person for the purposes of Section 1983 actions wherein injunctive relief is sought, the State has not waived its sovereign immunity from suits seeking damages under that section. The trial court was correct in dismissing the Section 1983 claims as against these defendants.” 241 Kan. at 20-21.
It appears the Beck reasoning would also require that KU be determined not to be a “person” within the meaning of § 1983. Thus, the trial court did not err in dismissing these claims as to KU and KUMC.
Wendt does not cite Beck or address its holding. Although appellees cite and discuss Beck in their brief, Wendt fails even to mention it in his reply brief. In the circumstances, there is no call for the court to reexamine its precedent. An additional reason why the court need not take its consideration of this issue beyond Beck is that, had the § 1983 claims been tried, the jury’s determination on the wrongful termination count — that Wendt did not meet his burden of showing that his communications with the State offices about alleged misconduct at KUMC was a substantial or motivating factor in the decision to terminate his employment — also would have determined the § 1983 count.
In Wendt’s words, “the question of whether the individual defendants . . . could be sued in their official capacities] here is identical to the question of whether Wendt could pursue claims against the University and the Medical Center under § 1983.” Thus, the court’s decision on this issue, too, is governed by Beck.
Wendt’s final argument is that the trial court erred in issuing a posttrial ruling on motions taken under advisement during trial that Wendt’s evidence would not support an award of punitive damages.
At the close of Wendt’s case, defendants requested the trial court to enter judgment for them as a matter of law. The trial court took the matter under advisement. At the close of defendants’ case, they renewed the motion for judgment as a matter of law. The trial court again took the matter under advisement. After the jury returned a verdict in favor of the defendants, they asked the trial court to rule on the motions in order to complete the record. The trial court did so.
With regard to Wendt’s prayer for punitive damages, the trial court stated:
“Plaintiff failed to present clear and convincing evidence that defendants acted in a willful manner in terminating plaintiff such that it would provide a bases for an award of punitive damages. Even believing plaintiffs claim that he was fired for reporting the items mentioned, there was strong evidence that because of plaintiffs abusive and confrontational interaction with other employees that valid grounds existed to terminate him. In evaluating the evidence the court concludes as a matter of law that plaintiff has not presented clear and convincing’ evidence that defendants’ terminated plaintiff without just cause with an intent to cause injury and harm.”
Thus, the trial court concluded that Wendt “failed as a matter of law to provide clear and convincing evidence of his entitlement to punitive damages.” Characterizing the trial court’s ruling as a directed verdict on the issue of punitive damages, Wendt appeals.
The trial court’s posttrial ruling was not a directed verdict. The jury returned its verdict, and it was in favor of defendants. The trial court entered judgment in accord with the juiy’s verdict. Because the jury rejected all of Wendt’s claims, he was not entitled to an award of actual damages. A verdict for actual damages is essential to the recovery of punitive damages. Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 208, 4 P.3d 1149 (2000); K.S.A. 60-3702.
In their cross-appeal, the defendants argue that the district court erred in denying defendants’ request for certain deposition costs.
An award of costs in a civil action is discretionary with the trial court. Bridges v. Bentley, 244 Kan. 434, 445, 769 P.2d 635 (1989). K.S.A. 60-2002(a) provides: “Unless otherwise provided by statute, or by order of the judge, the costs shall be allowed to the party in whose favor judgment is rendered.” K.S.A. 2001 Supp. 60-2003(5) provides that “Reporters or stenographic charges for the taking of depositions used as evidence” may be included in the taxation of costs. This court reviews the trial court’s taxing of costs for abuse of discretion.
Appellees urge this court to apply a de novo standard of review to the trial court’s taxing of costs in the present case. They contend that the trial court’s decision was the result of its misinterpretation of K.S.A. 2001 Supp. 60-2003(5) and that tire interpretation of a statute is a question of law to be reviewed de novo. Their argument is defeated by the wording of the statutes themselves, which places taxation of costs within the trial judge’s discretion. The appellate court’s task in this circumstance is to review the trial court’s action for abuse of discretion.
Defendants Cumming and Cobb sought costs of $3,427.15 for depositions. Duplicating some of the costs sought by Cumming and Cobb, defendants Hagen, Robards, and Lewin sought costs of $6,364.10. That amount included witness fees of $15 for each of 18 witnesses and deposition costs for 16 witnesses.
Denying all other cost requests, the trial court awarded defendants Robards and Lewin $484.75, which represented the cost of taking the deposition of witness Carolyn Werth and the cost of statutory appearance fees to witnesses. No reasons were stated by the trial court for its decision.
Defendants’ position is that the trial court is statutorily required by K.S.A. 2001 Supp. 60-2003(5) to award costs for depositions that were read into evidence at trial. The statute relied on, however, is a list of items that are allowable as costs. The mandatory verb “shall” that is found in K.S.A. 60-2002(a) is modified by the phrase “unless otherwise provided by . . . order of the judge.” Defendants offer no other reasons why the trial court’s decision should be regarded as an abuse of discretion. We find no abuse of discretion in the district court’s denial of defendants’ request for deposition costs.
Affirmed. ■
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The opinion of the court was delivered by
Six, J:
This is a personal jurisdiction case focusing on the Kansas long arm statute, K.S.A. 60-308(b). The plaintiff, Kurt F. Kluin, is a Kansas resident and attorney whose law office is in Neosho County, Kansas. Kluin purchased, in Oklahoma, a Suzuki motorcycle from Bartlesville Cycle Sports, of Bartlesville, Oklahoma, an authorized American Suzuki Motor Corporation (Suzuki) dealer. Bartlesville Cycle Sports sells other manufacturers’ motorcycles, including Honda and Yamaha, in addition to Suzuki motorcycles. Kluin sued Suzuki in Neosho County, Kansas, for breach of warranties, express and implied, and violation of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. Suzuki responded by filing a K.S.A. 60-212(b)(2) and (3) motion to dismiss for lack of personal jurisdiction and improper venue. The district court granted the motion to dismiss. Kluin appeals.
We have the appeal under K.S.A. 20-3018(c), a transfer on our own motion.
The controlling question is whether the district court erred in granting Suzuki s K.S.A. 60-212(b)(2) motion to dismiss, concluding that Kansas did not have personal jurisdiction over Suzuki.
We find no error and affirm.
FACTS
As a prologue to our discussion, we set out the facts by quoting from the district court’s memorandum decision. The district court made the following findings of fact:
‘‘Kluin’s action arises out of his purchase of a 2000 Suzuki DRZ400S motorcycle on March 11, 2000. Kluin’s complaint is that he believes the motorcycle he purchased has a lower quality suspension’ than it was supposed to have and that he ‘can’t ride it on bumps’ because the carburetor causes the motorcycle to ‘hesitate and stall.’
“2. In his Petition, Kluin alleges that he is a resident of Neosho County, Kansas. It is undisputed that he purchased the motorcycle that is the subject of this action from Bartlesville Cycle Sports in Bartlesville, Oklahoma. Likewise, the repairs referenced in his Petition were all performed by the Bartlesville Cycle Sports shop in Bartlesville, Oklahoma. Kluin asserts that he received warranty information from Bartlesville Cycle Sports while he was in Bartlesville, Oklahoma.
“3. Bartlesville Cycle Sports is an Oklahoma corporation wholly unrelated to Suzuki. Bartlesville Cycle Sports is an independently owned and operated dealership authorized to sell Suzuki vehicles like the one purchased by Kluin. None of the independently owned and operated dealerships, including Bartlesville Cycle Sports, are agents of Suzuki.
“4. In his petition, Kluin asserts that ‘[t]he court has jurisdiction over Suzuki and the subject matter of this action.’ He also asserts that, in general, Suzuki manufactures, advertises and sells motorcycles in the state of Kansas.
“5. In response to Suzuld’s motion to dismiss, Kluin asserts the following regarding its ‘contact’ with the state of Kansas: ‘Defendant alleges that its only contact with the State of Kansas in connection with plaintiffs claims is plaintiff s review of the defendant’s web site. This allegation is false. Plaintiff received at his home in Kansas several motorcycle magazines with articles on the motorcycle in question, and read the defendant’s advertisements therein. The defendant knew that the magazine articles it was placing in nationally distributed publications would reach potential consumers in the State of Kansas. Plaintiff, while in Kansas, telephoned the defendant’s authorized Suzuki dealer in Oklahoma and asked questions about the motorcycle and was referred to the defendant’s web site for additional details, and the dealer faxed to the plaintiff in Kansas some of tire defendant’s promotional literature about the motorcycle (plaintiff believes the material was substantially the same as the information on defendant’s web site).’ [Emphasis added by district court.]
“6. In support of its motion to dismiss, Suzuki submitted an affidavit regarding the issue of personal jurisdiction. The affidavit establishes, among other things, that Suzuki:
Ts a California corporation with its principal place of business ixr Brea, California;
‘Is not registered with the Kansas Secretary of State as a foreign corporation conducting business in Kansas and does not have an authorized agent for service of process in Kansas;
‘Did not manufacture the motorcycle purchased by Kluin;
‘Does not engage in direct sales or advertising in Kansas;
‘Does not sell motorcycles on its web site;
‘Does not pay taxes in the state of Kansas;
‘Does not maintain any bank accounts, books or records in Kansas;
‘Has no offices or agents located in Kansas and does not lease or own any real property in Kansas;
‘Has no employees currently residing in Kansas;
‘Title to all Suzuki products changes from it to independently owned and operated dealerships outside of Kansas;
‘All sales of vehicles to the independently owned and operated dealerships ax-e processed outside of Kansas and each dealership pays die cost of transportation of vehicles to it; and
‘It does not control, supervise, direct the day-to-day operations of, or have any ownership interest in the independently owned and operated dealerships.
‘This affidavit and the certificate of origin are signed by Suzuki’s controller, Art Hashima.’ ”
The District Court’s Conclusions
The district court, after a thorough analysis, concluded that (1) it did not have personal jurisdiction over Suzuki in this case, (2) no “act” occurred in Neosho County, Kansas, and (3) the motion to dismiss for lack of proper venue was moot.
DISCUSSION
The Discovery Issue
Kluin questions certain findings of the district court. He argues that the district court failed to give him the benefit of all factual doubt when considering the motion and erroneously made factual findings on disputed material facts. Kluin served interrogatories and a request for production on Suzuki with his petition. Suzuki neither answered die interrogatories nor produced the requested documents. Suzuld’s response was to file the motion to dismiss at issue here. Kluin did not file a motion to compel discovery under K.S.A. 2001 Supp. 60-237.
The district court reasoned that there was sufficient information in the record to decide jurisdiction without additional discovery. On appeal, Kluin contends that the district court should have allowed him to conduct discovery on the questions of (1) “whether the defendant manufactured the motorcycle,” (2) “the nature of the defendant’s relationship with [Suzuki] dealers,” and (3) “the extent of the defendant’s business operations” in Kansas.
Suzuki counters that Kluin failed to show how those questions were material to the issue of personal jurisdiction. Suzuki asserts that, in response to its affidavit, Kluin was obligated to produce material facts, not mere “bald assertions,” in support of his personal jurisdiction claim.
Control of discovery is entrusted to the sound discretion of the district court. Orders concerning discovery will not be disturbed on appeal in the absence of clear abuse of discretion. Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998).
Counsel’s respective positions on jurisdiction were supported by written submissions and oral argument presented to the district court in a telephone conference.
Although the affidavits of Kluin and Suzuki conflicted regarding whether Suzuki was the manufacturer of the motorcycle, this factual dispute is resolved in Kluin’s favor. See In re Hesston Corp., 254 Kan. 941, 954, 870 P.2d 17 (1994). Suzuki extended the warranty Kluin was suing on. (Although no express warranty is in the record, counsel for Suzuki agreed during argument below that one was given by Suzuki.)
With regard to dealings with retailers purchasing motorcycles, Suzuld’s affidavit indicated that the titles to the Suzuki motorcycles were transferred outside of Kansas and that sales of vehicles to dealerships were processed outside of Kansas. It was undisputed here that Kluin purchased the motorcycle from the Oklahoma dealership, not from Suzuki, and that the Oklahoma dealership sells several different brands of motorcycles, including Suzuki. The certificate of origin for the motorcycle showed the first transfer of the new vehicle from “American Suzuki Motor Corporation” to Bartlesville Cycle Sports in Oklahoma. Kluin alleges he returned to Bartlesville Cycle Sports “more than once” for warranty repairs on his cycle although there are authorized Suzuki dealers in Kansas. A printout of the Suzuki web page in the record confirmed Kluin’s assertion in his affidavit that there were authorized Suzuki dealers in Kansas.
The question of whether jurisdictional discovery is warranted depends on the facts of each case. It has been held that leave for jurisdictional discovery is properly denied where the plaintiff does not show that facts exist which would warrant the denial of the defendant’s motion to dismiss for lack of jurisdiction. See Mello v. Giliberto, 73 S.W.3d 669, 674 (Mo. App. 2002) (plaintiff did not allege facts to support jurisdiction; not entitled to discovery); De Capules v. Lopez Lugo, 293 App. Div. 2d 405, 740 N.Y.S.2d 623 (2002) (leave for jurisdictional discovery was properly denied); cf. Kansas Food Packers, Inc. v. Corpak Inc., 192 F.R.D. 707, 708-09 (D. Kan. 2000) (reversed for discovery based on insufficient evidence to determine whether conduct fell within Kansas long arm statute).
A review of the transcript of the oral argument before the district court reflects that counsel disagreed on which interrogatories, if answered, would touch on jurisdiction. Suzuki contended the questions were too broad, and Kluin argued the contrary position. Kluin inquired of the district judge, “And are you permitting us to do some interrogatory questions to them or —.” The judge responded: “Well, I think . . . until this Court has jurisdiction we’re going to have to decide this based upon the information that’s available to us. And I think there is sufficient information without additional discovery. Anything else?” Suzuki’s counsel replied, “Nothing from me, Your Honor.” And Kluin said, “No, Your Honor.”
Although the above discussion between court and counsel suggests Kluin may have acquiesced in the district judge’s decision regarding the discovery issue, Suzula does not advance that argument. We conclude the district judge did not abuse his discretion in resolving Suzula s motion to dismiss based on the record before him.
Personal Jurisdiction
Before addressing Kluin’s contention of error in dismissing his claims for lack of personal jurisdiction, we set out our standards for reviewing personal jurisdiction questions. Kluin bears the burden of establishing personal jurisdiction over Suzuki. However, here, Suzuki’s motion to dismiss was decided before trial on the basis of the pleadings, the petition, affidavits, and other written materials. Thus, Kluin need only make a prima facie showing. The allegations in the petition must be taken as true to the extent they are uncontroverted by Suzuki’s affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in Kluin’s favor. In re Hesston Corp., 254 Kan. at 954-55. Because we are ruling on a motion to dismiss, we accept the factual assertions in Kluin’s affidavit; i.e., Suzuki was the cycle manufacturer, Suzuki gave a warranty of some type, and Suzuki has at least five dealerships in Kansas.
Our task is to decide whether Kluin’s allegations, as supported by his affidavit, make a prima facie showing necessary to exercise jurisdiction over Suzula. We review the district court’s ruling de novo. In re Hesston Corp., 254 Kan. at 954-55.
Kluin characterizes the following as Kansas contacts: (1) access to Suzuki’s web site (while in Kansas, he read on-line articles and advertisements), (2) access to advertisements and articles about the cycle in motorcycle magazines received at his home, (3) his telephoning the dealership in Oklahoma (he asked questions and was referred to Suzuki’s web site for additional details), (4) the Oklahoma dealer faxed him some of Suzuki’s promotional material that was substantially the same as the information on Suzuki’s web site, (5) the presence of at least five authorized Suzuki dealerships located in Kansas, (6) the warranty he received in Oklahoma, and (7) the warranty repairs performed in Oklahoma. Without sharing any supporting authority, Kluiris position is that his Kansas resi dency is sufficient to give Kansas jurisdiction over Suzuki on his breach of express warranty claim.
The process of determining whether a Kansas court has personal jurisdiction involves a two-step analysis. First, the court decides if there is jurisdiction under K.S.A. 60-308(b), the Kansas long arm statute. Second, if 60-308(b) is satisfied, the court inquires if the exercise of personal jurisdiction complies with tire due process requirements of the Fourteenth Amendment to the United States Constitution. K.S.A. 60-308(b) is to be liberally construed to assert personal jurisdiction over nonresident defendants to the full extent permitted by the Due Process Clause of tire United States Constitution. St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 263, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990). For an informative survey of K.S.A. 60-308(b) cases, see Leben and Hinderks, Long Arm Jurisdiction in Kansas, 62 J.K.B.A. 26 (May 1993).
Kluin appears to rely on the first step of the analysis, arguing that personal jurisdiction was proper under K.S.A. 60-308(b). For a helpful discussion of the difference in approach between one- and two-step jurisdictions, see 1 Casad Jurisdiction in Civil Actions § 4-l(b) (3d ed. 1998). Because we find an insufficient basis for personal jurisdiction under K.S.A. 60-308(b), we need not reach a step-two constitutional analysis.
Kluin’s petition did not allege any specific theories of long arm jurisdiction. However, in his response to Suzuld’s motion to dismiss, he cites subsections (b)(1), (b)(2), and (b)(5) of K.S.A. 60-308, which provide, in part:
“(b) Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts-.
(1) Transaction of any business within this state;
(2) commission of a tortious act within this state;
(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.” (Emphasis added.)
We next consider each K.S.A. 60-308(b) subsection relied on by Kluin.
K S.A. 60-308(b)(1) - Transaction of Business Within the State
There are three factors which must coincide if jurisdiction is to be entertained over a nonresident on the basis of the transaction of business within the state: (1) The nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, the act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend the traditional notions of fair play and substantial justice. St. Paul Surplus Lines Ins. Co., 245 Kan. at 264.
Kluin asserts that transacting business within Kansas would include Suzuki’s (1) entering into contracts with at least five dealerships, (2) the sale of Suzuki motor vehicles and spare parts to dealers, (3) the new vehicle warranty, (4) performance of warranty work, and (5) soliciting Kansas customers through advertisements and Internet web sites. He acknowledges that “such activities alone have been deemed inadequate to support jurisdiction by some courts.”
It appears that Kluin, by referencing the existence of authorized Suzuki dealerships in Kansas in his affidavit filed below and in his brief on appeal, is asserting that jurisdiction exists under the doctrine of “general jurisdiction.” There is a difference between “general jurisdiction” and “specific jurisdiction.” Specific jurisdiction arises when the specific acts of the defendant related to the plaintiff s claim evidence purposeful activity toward the forum state. Doe v. National Medical Services, 974 F.2d 143, 145 (10th Cir. 1992). The claims against the defendant arise out of defendant’s contacts with the forum state. Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996). General jurisdiction exists “when the defendant’s contacts with the forum state are so ‘continuous and systematic’ that the state may exercise personal jurisdiction” even when the claims are “unrelated to the defendant’s contacts with the [forum] state. [Citation omitted.]” (Emphasis added.) Trienoeilerv. Croxton and Trench Holding Corp., 90 F.3d 1523, 1533 (10th Cir. 1996).
K.S.A. 60-308(b) is limited to cases of “specific” jurisdiction; i.e., cases arising from a defendant’s contacts with Kansas. See 1 Gard’s and Casad’s Kansas C. Civ. Proc. 3d Annot. § 60-308, Art. 1-28 (1997).
In Three Ten Enterprises, Inc. v. State Farm Fire & Cas. Co., 24 Kan. App. 2d 85, 942 P.2d 62, rev. denied 262 Kan. 970 (1997), the Court of Appeals held that the district court erred in applying the doctrine of general jurisdiction. It noted that “general jurisdiction” is a due process concept which “does not excuse a plaintiff who invokes the jurisdiction of Kansas state courts from satisfying the statutory test for long arm jurisdiction under 60-308(b).” 24 Kan. App. 2d at 89. The Three Ten court observed that the legislature could enact a statute providing for general jurisdiction, but it has not done so. Therefore, K.S.A. 60-308(b) does not provide for the exercise of general jurisdiction by Kansas courts. 24 Kan. App. 2d at 91. We note that State Farm Fire & Casualty Company (State Farm), the defendant, was apparently served under K.S.A. 40-218, a statute requiring foreign insurers to consent in advance to jurisdiction in certain situations. Three Ten failed to argue jurisdiction under 40-218, and the Three Ten court did not address service under 40-218. See Novak v. Mutual of Omaha Ins. Co. 29 Kan. App. 2d 526, 530, 28 P.3d 1033, rev. denied 272 Kan. 1419 (2001).
For jurisdiction to exist under subsection (b)(1) of 60-308, there must be a nexus between the transaction of business and the alleged claim. The nexus requirement has been endorsed by our previous cases. Land Manufacturing, Inc. v. Highland Park State Bank, 205 Kan. 526, 470 P.2d 782 (1970), reviewed a K.S.A. 60-308(b)(1) long arm challenge to a personal judgment entered against the Chase Manhattan Bank of New York (Bank), a nonresident corporation, as garnishee. The district court found personal jurisdiction over the Bank. We reversed. The claim for relief asserted against the Bank as a garnishee neither arose from nor was connected with the act or transaction by which the Bank submitted to the Kansas court’s jurisdiction; i.e., the transaction of business with corresponding Kansas banks. 205 Kan. at 530-31.
Land Manufacturing is instructive here because Kluin claims Suzuki transacts business in Kansas under K.S.A. 60-308(b)(l) by selling cycles from at least five authorized, independent dealers in Kansas. (We discuss Kluin’s additional claims of Kansas contacts, the web site, magazine articles and advertisements, and his phone calls to Oklahoma later in our opinion.) Land Manufacturing, Inc., claimed the Bank had representatives designated to handle its affairs in Kansas and that it engaged in the banking business through corresponding Kansas banks. In Land Manufacturing, we reasoned that to establish jurisdiction, the claim for relief must arise from or be connected with the act or transaction. We said:
“If process under K.S.A. 60-308(b)(l) is to have the effect of personal service the claim for relief must arise from, or be connected with, the act or transaction by which the nonresident submitted to the jurisdiction of the court.
“Assuming The Chase Manhattan Bank was transacting business in Kansas through corresponding banks there was no showing in this case that the claim for relief arose from such transaction of business with corresponding banks.” 205 Kan. at 530.
Here, Kluin has not alleged that his claim for relief arose from a Kansas sales transaction with Suzuki.
In Schlatter v. Mo-Comm Futures, Ltd., 233 Kan. 324, 662 P.2d 553 (1983), we again reversed a district court that found personal jurisdiction over nonresident defendants. We said:
“The statute [K.S.A. 60-308(b)] specifically requires that the transaction of business or the commission of a tortious act must be in connection with the cause of action in question. In otlier words, the activities of Kircher and Johnmeyer [defendants] must have been in connection with the sale of the limited partnership interests to the plaintiffs. The fact that Johnmeyer may have taken construction jobs in Kansas in connection with his construction business or that both defendants had other investments in Kansas have no bearing upon the question of whether the defendants were transacting business in Kansas when the corporation, through its salesman, sold the securities to plaintiffs.” 233 Kan. at 334.
Returning to Three Ten Enterprises, we note State Farm argued on appeal lack of personal jurisdiction because Three Ten’s claim did not arise from the transaction of any business in Kansas as required by K.S.A. 60-308(b)(l). Three Ten was a Kansas limited partnership. State Farm was a foreign corporation authorized to do business in Kansas. A Three Ten employee in Nebraska stole money from Three Ten’s premises in Nebraska. State Farm insured Three Ten under the employee dishonesty provisions of its business policy. The policy was issued through State Farm’s office in Nebraska. The Three Ten court said: “While pointing out that State Farm does transact business in Kansas, Three Ten makes no claim that its cause of action arises out of State Farm’s Kansas business activities.” 24 Kan. App. 2d at 88. Three Ten continued: “The fact that 60-308(b) is to be liberally construed does not mean that the courts are to ignore the statutory requirement that the cause of action arise from the defendant’s doing of one or more of the enumerated acts in this state.” 24 Kan. App. 2d at 91. We agree.
Kluin’s claims did not arise out of alleged contacts with dealerships in Kansas. Kluin purchased the motorcycle from Bartlesville Cycle Sports in Oklahoma. The warranty repairs referenced in Kluin’s petition were performed by Bartlesville Cycle Sports in Oklahoma.
The district judge here, in finding a lack of personal jurisdiction over Suzuki, relied on Solomon v. American Suzuki Motor Corp., 1989 WL 106823 (D. Kan 1989.) (Solomon I), saying in his memorandum ruling: “Another Kansas court has previously addressed this issue and determined that Suzuki was not subject to personal jurisdiction in Kansas.”
Solomon was a Kansas resident. While in Aruba to attend a business meeting, he leased a Suzuki Samurai from Marco’s Car Rental, which in turn allegedly purchased rental cars from Carib Motors, an Aruban business engaged in the distribution of vehicles purchased in Florida. Solomon’s complaint filed in the United States District Court for the District of Kansas alleged that the Samurai was defective, that he suffered personal injury when the car overturned in Aruba, and that Suzuki was transacting business in Kansas. Solomon I found that Suzuki’s conduct did not provide a basis for jurisdiction under K.S.A. 60-308(b)(l). Solomon I noted that “there must be some causal connection between the enumerated act under the long-arm statute and plaintiff s cause of action such that but for defendant’s transaction of business in Kansas, plaintiff s injuries would not have occurred.” 1989 WL 106823 at 2. Solomon’s injuries arose from an accident in Aruba. The court found that Solomon failed to allege a causal connection between any business activity Suzuki may or may not have conducted in Kansas and his injuries. 1989 WL 106823 at 2.
Later, in Solomon v. American Suzuki Motor Corp., 1990 WL 11114 (D. Kan. 1990) (Solomon II), Suzuki moved for sanctions against Solomon and his counsel. Solomon had asserted in Solomon I, as Kluin does here, that personal jurisdiction was based upon his Kansas residence and because his “decision to rent the Suzuki was prompted by plaintiffs exposure to advertisements for the Suzuki Samurai while in Kansas.” 1990 WL 11114 at 1.
Although the district judge here discussed Solomon I at length in his memorandum decision, Kluin does not mention the case in his brief on appeal.
The facts here do not support personal jurisdiction under K.S.A. 60-308(b)(l).
K S.A. 60-308(b)(2) and The Kansas Consumer Protection Act
Kluin also claims personal jurisdiction over Suzuki under K.S.A. 60-308(b)(2), which provides for jurisdiction based upon the “commission of a tortious act within this state.”
Kluin asserts that the commission of a “tortious act” under K.S.A. 60-308(b)(2) would include a violation of the KCPA.
K.S.A. 50-638(a) says:
“Any supplier, whether or not a resident or citizen of this state, who in person or through an agent or an instrumentality, engages in a consumer transaction in this state, thereby submits the supplier to the jurisdiction of the courts of this state as to any cause of action arising from such consumer transaction.”
K.S.A. 50-626(a) prohibits a “supplier” from engaging in any deceptive act or practice in connection with a consumer transaction.” The KCPA defines “supplier” as a “manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer.” K.S.A. 50-624(j). A “consumer transaction” is a “sale, lease, assignment or other disposition for value of property or services within this state ... to a consumer; or a solicitation by a supplier with respect to any of these dispositions.” (Emphasis added.) K.S.A. 50-624(c).
Kluin contends that a “solicitation” in this case would include magazine advertisements and Internet web site information. He would also include in the definition of “solicitation” the promotional literature that was disseminated to a Kansas resident by telephone and fax from an authorized Suzuki dealer. The KCPA defines a “consumer telephone call” as “a call made by a telephone solicitor to the residence of a consumer for the purpose of soliciting a sale of any property or services . . . .” K.S.A. 2001 Supp. 50-670(a)(1).
Kluin cites Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, 637 P.2d 458 (1981), rev. denied 230 Kan. 819 (1982), arguing that the sale of property to a Kansas consumer does not have to take place within the state of Kansas. We agree. However, Kluin’s reliance on Roach Cadillac is misplaced. Roach Cadillac is readily distinguishable from the facts here and thus does not advance Kluin’s argument. Personal jurisdiction over a nonresident defendant is determined on a case-by-case basis. Schlatter, 233 Kan. at 336. Roach Cadillac involved a significantly different fact situation from that of Kluin’s Oklahoma purchase.
A review of the facts in Roach Cadillac is appropriate. Watkins was a resident of Prairie Village, Kansas, a city on the Kansas-Missouri state line. Roach Cadillac was a Missouri corporation with its place of business across the state line in Kansas City, Missouri. A portion of Roach Cadillac’s business premises was located in Kansas. Cars were parked and displayed to customers on the Kansas side of the state line.
Roach Cadillac advertised over a Kansas City, Missouri, radio station and in a Kansas City, Missouri, newspaper, soliciting customers to lease its vehicles. In response to this advertising, Watkins leased a Cadillac. He was shown the car as it was parked in Kansas. The salesman took Watkins on a test drive in Kansas, explaining various features of the Cadillac while on the test drive. A substantial number of statements in solicitation of the lease were made in Kansas.
Several days after the test drive, Watkins completed the lease transaction while sitting in the Roach Cadillac Missouri office. A few months after taking delivery of the car in Missouri, Watkins noticed cracking paint. He discovered that the car had been partially repainted. He sued Roach Cadillac under the KCPA. Roach Cadillac held that the solicitations for the lease occurred in Kansas, the Cadillac was shown and test driven in Kansas, and the KCPA applied. 7 Kan. App. 2d at 13.
Here, Kluin telephoned Bartlesville Cycle Sports in Oklahoma and spoke to a salesperson. In response, the salesperson told Kluin about the Suzuki motorcycle and faxed information to him. Neither the Oklahoma dealership nor Suzuki solicited Kluin in Kansas by phoning him or sending him an unsolicited fax.
In his affidavit, Kluin asserted that he acquired information in Kansas about the Suzuki motorcycle on Suzuki’s web site and that he read, in Kansas, advertisements and cycle articles in various motorcycle magazines.
Kluin, in his appellate brief, asserts that Kansas has jurisdiction over his KCPA claim because of Suzuki’s misrepresentations. “The solicitations and dissemination of false information occurred while plaintiff was located in Neosho County, Kansas.”
The district court noted that an Internet advertising claim was rejected in Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd 126 F.3d 25 (2d Cir. 1997). In Bensusan Restaurant, the sole issue was whether the existence of a web site, without anything more, was sufficient to give the court jurisdiction under New York’s long arm statute and the Due Process Clause of the United States Constitution. Bensusan Restaurant held that the “mere foreseeability of an in-state consequence and a failure to avert that consequence is not sufficient to establish personal jurisdiction.” 937 F. Supp. at 300. The creation of a web site with a telephone number permitting the user to order tickets was not an offer to sell the product in New York for the purposes of the “tortious act” provision in the state’s long arm statute. See 937 F. Supp. at 299-300.
Rainy Day Books v. Rainy Day Books & Caf, 186 F. Supp. 2d 1158 (D. Kan. 2002), provides an interesting discussion on the question of Internet contacts and personal jurisdiction. A web site where Kansans could buy books through a “virtual store” by clicking on a bookstore link was sufficient contact to exercise personal jurisdiction. Rainy Day discusses the “sliding scale” for Internet use described in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp 1119, 1124 (W.D. Pa. 1997). (The “scale” moves from an interactive web site like the one in Rainy Day, to a middle category where a user can exchange information with a host computer, to the passive-type web site which malees information available to those who are interested in it.) Suzuki’s web site is passive. Personal jurisdiction is not appropriate when Internet use involves a passive web site. Rainy Day, 186 F. Supp. 2d at 1163 (citing Soma Medical Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1296-97 [10th Cir. 1999]).
Suzuki supports its contention that national advertisements and web sites do not generally provide the basis for personal jurisdiction by relying on Fid. & Cas. Co. v. Philadelphia Resins, 766 F.2d 440, 446-47 (10th Cir. 1985), cert. denied 474 U.S. 1082 (1986) (advertisement in national journal not sufficient to show purposeful availment); SF Hotel Company, L.P. v. Energy Investments, Inc., 985 F. Supp. 1032, 1034-35 (D. Kan. 1997) (passive web site did not provide basis for personal jurisdiction); P.A.T. Co. v. Crimtec Corp., 1993 WL 257094 (D. Kan.1993) (advertisements in national publications sent to Kansas not sufficient to establish minimum contacts). Other cases have supported the notion that merely advertising from one forum to another is not sufficient to provide personal jurisdiction. See Origins Natural Resources, Inc. v. Kotler, 133 F. Supp. 2d 1232, 1236-37 (D.N.M. 2001); Mallinckrodt Medical v. Sonus Pharmaceuticals, 989 F. Supp. 265, 272 (D.D.C. 1998). Neither Suzuld’s passive web site nor its advertisements and articles in national magazines provide sufficient Kansas contacts to support personal jurisdiction over Suzuki under the facts here.
Kluin cites Pavlovich v. Superior Court, 91 Cal. App. 4th 409, 109 Cal. Rptr. 2d 909 (Cal. App. 2001), but that opinion was withdrawn from the official reporter by the California Supreme Court, which granted review December 12, 2001; see 114 Cal. Rptr. 2d 611, 36 P.3d 625 (Cal. 2001).
Khun also relies on Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 675 N.E.2d 584 (1996), to support his contention that misrepresentations in promotional literature may provide a basis for a consumer protection claim. In Connick, purchasers of Suzuki Samurai sport utility vehicles, and residents of Illinois, Pennsylvania, and New Jersey, filed a variety of claims in Illinois after a consumer watchdog organization gave the Samurai a “not acceptable” rating. 174 Ill. 2d at 488. As the district judge observed, Connick is not a jurisdiction case and, thus, is not helpful to the discussion here.
In contrast to Connick, DeSantis v. Hafner Creations, Inc., 949 F. Supp. 419 (E.D. Va. 1996), a patent infringement suit, declined to find personal jurisdiction by commission of a tortious act under the Virginia long arm statute where an alleged patent infringer advertised a product in a nationally distributed publication. The product, a “quick draw” waist pack designed to hold a handgun, was advertised in “Shotgun News,” a nationally circulated publication with about 3,300 individual subscribers in Virginia. The advertisement occurred on two or three occasions from September 1995 through October 1995 and did not amount to “regular solicitation” of business in Virginia under the long arm statute. 949 F. Supp. at 425.
Kluin’s case is distinguishable from Connick and DeSantis. The KCPA requires that the defendant engage in a “consumer transaction” in Kansas. Here, Kluin fails to point to any evidence of a consumer transaction between Suzuki and Kluin in this state. Kluin purchased the motorcycle from Bartlesville Cycle Sports in Oklahoma and had warranty service in Oklahoma.
The KCPA does not apply.
K.S.A. 60-308(b)(5)
Kluin also asserts that personal jurisdiction was acquired under K.S.A. 60-308(b)(5), which provides for jurisdiction based upon “entering into an express or implied contract . . . with a resident of this state to be performed in whole or in part by either party in this state.” In his response to Suzuki5s motion to dismiss, Kluin argued that Suzuki issued an express warranty to him. The district court found that this was apparently Kluin s basis for his assertion that 60-308(b)(5) applied. The district court noted that there was no evidence that the warranty was “performed” in Kansas. In his brief, Kluin merely argues that such a warranty “may be performed” in Kansas. He reasons that when a Kansas resident purchases a new Suzuki cycle from an authorized Suzuki dealer, where the dealer is located makes no difference. He cites no authority to support his argument. The warranty was issued in Oklahoma and all warranty service was performed in Oklahoma. The warranty Kluin relies on is not in the record. We have no warranty language to review. Based on the record before us, Kluin fails to show that the warranty was entered into in Kansas or performed in whole or in part in Kansas. Thus, there was no basis for personal jurisdiction under K.S.A. 60-308(b)(5).
The “contacts” here (accessing the web site, reading advertisements and articles, and the phone calls to the cycle shop in Oklahoma) were unilateral contacts initiated by Kluin, not contacts from Suzuki. Also, the only conversation alleged by Kluin was initiated by him and directed toward someone at the dealership in Oklahoma. Minimum contacts for exercising personal jurisdiction cannot be established by the unilateral activity of the plaintiff. See OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir. 1998).
Venue
The district court found that Suzuki’s motion to dismiss for lack of proper venue was moot because of its decision to dismiss for lack of personal jurisdiction. We agree.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Joseph Anderson appeals the Court of Appeals’ affirmance of the district court’s denial of his K.S.A. 2001 Supp. 60-1501 petition. See State v. Bruce, No. 85,952, unpublished opinion filed October 12, 2001. Anderson claims (1) the district court erred in finding he was not entitled to credit for time spent on parole on a prior offense; (2) application of K.S.A. 21-4608(f)(5) to the prior offense violated the Ex Post Facto clause of the United States Constitution; and (3) the district judge erred in finding Anderson was not entitled to have his present sentence unaggregated for sentence computation purposes after serving the maximum time on his 1979 offense.
In January 1980, Anderson was sentenced to 5 to 20 years on one count of aggravated robbery committed in October 1979. His sentence commenced October 23, 1979. Prior to completing his sentence, Anderson was paroled on June 28,1984. In March 1986, Anderson was sentenced to a term of 3 to 10 years on two counts of forgery and one count of possession of cocaine committed in 1985 while he was on parole. Anderson was also sentenced to a term of 3 to 10 years for burglary and theft committed while he was on parole in 1986. Anderson was given 3 years, 6 months, and 22 days of prior penal credit, making his sentence begins date June 7,1982, on those convictions. These sentences were ordered to run consecutive to each other and consecutive to his sentence for the 1979 offense. At that time, Anderson’s controlling term was 11 to 40 years.
Anderson was again paroled. Because of events that occurred while on parole in 1993, Anderson was convicted and sentenced in July 1994 to a term of 1 to 2 years for aggravated false imprisonment and an aggravated weapons violation. Anderson was credited with 6 years, giving him a sentence begins date of February 2,1988, on this conviction. The 1994 sentence was ordered to run consecutive to the prior sentences. Anderson’s controlling term was 12 to 42 years.
Anderson filed a grievance with his Unit Team in November 1999, alleging his sentence had been illegally modified when it was aggregated. Anderson also claimed he had been denied jail credit and credit for time served on parole. The Unit Manager found Anderson’s sentence had been correctly calculated. The Warden concurred with the Unit Manager’s finding. In December 1999, Anderson appealed to the Secretary of Corrections. The Secretaiy of Corrections approved the findings of the Unit Team and the Warden.
On January 3, 2000, Anderson filed a petition for writ of habeas corpus in the district court, pursuant to K.S.A. 2001 Supp. 60-1501. Anderson requested that the court order the Department of Corrections (DOC) to grant him credit for time served on parole on his 1979 offense, asserting that the failure to grant him credit violated the Ex Post Facto Clause of the United States Constitution. Anderson also requested that the DOC be ordered to recalculate his controlling term without considering his 1979 offense because that sentence had been satisfied. The DOC filed a response and motion to dismiss. A hearing was held on February 22, 2000. The district court found that Anderson’s sentence had been properly computed and denied Anderson relief. A timely notice of appeal was filed.
The Court of Appeals affirmed the district court’s decision. The Court of Appeals found Thomas v. Hannigan, 27 Kan. App. 2d 614, 6 P.3d 933 (2000), controlling and held that the failure to grant Anderson credit for time spent on parole did not violate the Ex Post Facto Clause. The Court of Appeals also found Anderson’s contention that his sentence for the 1979 offense had expired 20 years after his sentence date to be “nonsensical” and without merit. This court granted Anderson’s petition for review. Our jurisdiction is pursuant to K.S.A. 20-3018(b).
CREDIT FOR TIME SPENT ON PAROLE
Anderson contends the district court erred in finding that he was not entitled to credit for the time spent on parole for his 1979 offense. Determination of the amount of credit for time spent on parole is a matter of statutory interpretation. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. State v. Palmer, 262 Kan. 745, 748, 942 P.2d 19 (1997). In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony, if possible. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, Syl. ¶2, 27 P.3d 1 (2001).
CONFLICT BETWEEN STATUTES
Pursuant to K.S.A.' 21-4608(c), a person convicted and sentenced for a crime committed while on parole for a felony is required to serve the new sentence consecutive to the term or terms for which the person was on parole. See K.S.A. 1992 Supp. 21-4608(3) and K.S.A. 1986 Supp. 21-4608(3).
“When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated mínimums and máximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. For the purpose of determining the sentence begins date and the parole eligibility and conditional release dates, the inmate shall be given credit on die aggregate sentence for time spent imprisoned on the previous sentences, but not exceeding an amount equal to the previous minimum sentence less the maximum amount of good time credit that could have been earned on the minimum sentence. For the purposes of computing the maximum date, the inmate shall be given credit for all time spent imprisoned on the previous sentence. This method for computation of the maximum sentence shall be utilized for all sentences computed pursuant to this subsection after July 1, 1983.” K.S.A. 21-4608(f)(4).
See K.S.A. 1992 Supp. 21-4608(6)(d).
At the time Anderson was convicted in 1979 and until 1982, when imposing consecutive sentences to run consecutive to sentences for which the prisoner had been on probation, parole, or conditional release, the prisoner received credit for the time spent on probation, parole, or conditional release. See K.S.A. 1979 Supp. 21-4608(3)(e); K.S.A. 1982 Supp. 21-4608(6)(e). This statute was amended in 1983 to no longer allow credit for time spent on probation, parole, or conditional release under such circumstances. See L. 1983, ch. 111, sec. 1; K.S.A. 1983 Supp. 21-4608(6)(e).
‘When consecutive sentences are imposed which are to be served consecutive to sentences for which a prisoner has been on probation, assigned to a community correctional services program, on parole or on conditional release, the amount of time served on probation, on assignment to a community correctional services program, on parole or on conditional release shall not be credited as service on the aggregate sentence in determining parole eligibility, conditional release and maximum dates, except that credit shall be given for any amount of time spent in a residential facility while on probation or assignment to a community correctional residential services program.” K.S.A. 21-4608(f)(5) (Emphasis added.).
K.A.R. 44-6-107(a) provides in part:
“The statutes constituting the substantive law in effect at the time tire crime is committed shall apply to compute the sentence term and the release dates. No subsequent change in the statute constituting substantive law shall be applied if that law adversely affects the inmate.”
Anderson asserts that K.S.A. 22-3722 conflicts with K.S.A. 21-4608(f)(5). This court recently held in Hudson v. State, 273 Kan. 251, 42 P.3d 150 (2002), that K.S.A. 21-4608(f)(5), which disallows credit for time spent on parole when calculating parole eligibility, conditional release, and maximum dates, does not conflict with K.S.A. 22-3722, which states that a period served on parole is deemed service of confinement. In reaching this conclusion, the Hudson court reasoned that K.S.A. 21-4608(f)(5) involves the event of consecutive sentencing for a sentence to which the prisoner has been on parole, while K.S.A. 22-3722 deals with satisfaction of release. 273 Kan. at 258. The court held that credit for time on parole is a matter of legislative grace and is not a constitutional right. See 273 Kan. 251, Syl. ¶ 2.
Anderson also asserts that K.S.A. 1983 Supp. 22-3717(1) conflicts with the provisions of K.S.A. 21-4608(f)(5). K.S.A. 1983 Supp. 22-3717(1) stated:
“An inmate shall be eligible for parole on the date provided by statute at the time the inmate committed the crime for which imprisoned unless subsequent amendment of the statute provides an earlier parole eligibility date.”
Anderson points out that the same legislature that amended K.S.A. 21-4608 to deny prisoner’s credit for time spent on parole did not amend K.S.A. 22-3717 to deny credit. K.S.A. 1983 Supp. 21- 4608(6) provided:
“The provisions of this subsection relating to parole eligibility shall be applicable to persons convicted of crimes prior to January 1,1979, but shall be applicable to persons convicted of crimes committed on or after that date only to the extent that the terms of this subsection are not in conflict loith the provisions of K S.A. 22- 3717 and amendments thereto.” (Emphasis added.)
We note that K.S.A. 1979 Supp. 22-3717 contained no provision similar to K.S.A. 1983 Supp. 22-3717(1). This language was not added until 1982. L. 1982, ch. 137, sec. 3. It must also be noted that this same language was deleted in 1992. L. 1992, ch. 239, sec. 270. At that same time, the legislature added the following language, which is currently contained in K.S.A. 2001 Supp. 22-3717(q): “In mates shall be released on postrelease supervision upon the termination of the prison portion of their sentence. Time served while on postrelease supervision will vest.”
The reasoning of Hudson also distinguishes K.S.A. 1983 Supp. 22-3717(1) and K.S.A. 21-4608(1)(5). As in Hudson, K.S.A. 21-4608(f)(5) relates to the events following revocation of parole after conviction for a new offense. K.S.A. 1983 Supp. 22-3717(1), however, deals with parole eligibility.
Additionally, Anderson also makes reference to the fact that the failure to grant him credit for time on parole violated the prohibition against double jeopardy. Hudson also addressed this issue and found that failure to grant credit for time on parole under such circumstances does not violate double jeopardy. 273 Kan. at 259.
Thus, there is no conflict between the statutes, and Anderson was not entitled to credit for the time spent on parole for his 1979 offense. We note that it is the law that applied at the time of the commission of a subsequent offense that controls whether an individual receives credit for time spent on parole. Cf. State v. Martin, 270 Kan. 603, 608, 17 P.3d 344 (2001). The law in effect in 1986 and subsequently does not grant credit for time spent on parole for individuals being sentenced for a crime committed while on parole. Anderson’s sentence was correctly calculated.
VIOLATION OF EX POST FACTO CLAUSE
Anderson also contends K.S.A. 21-4608(f)(5) violates the Ex Post Facto Clause of the United States Constitution because it inflicts a harsher punishment than the law in effect at the time of the commission of his 1979 offense. As noted previously, prior to 1983 prisoners were credited for time spent on parole in calculating parole eligibility, conditional release, and maximum dates after the commission of a new offense. See K.S.A. 1982 Supp. 21-4608(6)(e).
The United States Constitution’s ex post facto prohibition forbids legislative enactment of any law which imposes a punishment for an act which was not punishable at the time the act was committed or which imposes punishment additional to what was prescribed. See U.S. Const., art. 1, § 9, cl. 3; art. 1, § 10, cl. 1. In order for a law to be considered ex post facto, two elements must be present: (1) The law must be retrospective, applying to events occurring before its enactment, and (2) it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable. Stansbury v. Hannigan, 265 Kan. 404, Syl. ¶ 2, 960 P.2d 227, cert. denied 525 U.S. 1060 (1998).
The United States Supreme Court stated in Weaver v. Graham, 450 U.S. 24, 30-31, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981):
“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.”
See Stansbury, 265 Kan. 404, Syl. ¶ 3.
In reaching that conclusion, the Weaver Court recognized that the critical question in determining if there has been an ex post facto violation is whether the law changes the legal consequences of acts completed before its effective date. 450 U.S. at 31. Here, the subsequent aggregation and denial of credit for time spent on parole did not alter the legal consequences of acts completed prior to the 1983 amendment. No additional punishment was inflicted upon Anderson as a result of K.S.A. 21-4608(f)(5); thus, there was no ex post facto violation.
The Court of Appeals previously addressed this issue in Thomas. As in this case, when Thomas committed his first crime, K.S.A. 1979 Supp. 21-4608(3)(e) was applicable and prisoners received credit for time spent on parole in calculating parole eligibility, conditional release, and maximum dates. Thomas was subsequently paroled and committed another offense in 1990, nearly 7 years after the amendment to K.S.A. 21-4608 denying credit for time spent on parole. Thomas was denied credit for the 7 years he had spent on parole.
The majority of the Thomas court overruled the district court’s finding that the failure to credit Thomas for the time spent on parole resulted in an ex post facto application of the law. The majority reasoned that the denial of the credits did not violate the Ex Post Facto Clause because the punishment Thomas received was for new crimes. 27 Kan. App. 2d at 620. In so holding, the majority distinguished cases in which ex post facto violations had been found regarding regulations that were enacted after the commission of a crime and that adversely affected the defendants’ conditional release and parole eligibility dates. See Stansbury, 265 Kan. 404; Bankes v. Simmons, 265 Kan. 341, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998); Gamer v. Nelson, 25 Kan. App. 2d 394, 963 P.2d 1242 (1998). Judge Lewis dissented in Thomas. Judge Lewis viewed the denial of credit as taking away credits already earned or guaranteed by the law in effect at the time of the commission of the underlying crime and was unable to distinguish Thomas from Gamer, Stansbury, and Bankes. Thomas, 27 Kan. App. 2d at 621.
In Stansbury and Bankes, the regulation in effect at the time the petitioners committed the crimes for which they were convicted and sentenced provided that the petitioners would earn 100 percent of their authorized good time credits by remaining free of any prison offenses and by the discretionary grant of good time credits by the unit team manager. The regulation was subsequently amended and both petitioners were denied 100 percent of their good time credits upon their refusal to participate in a sexual abuse treatment program. The amendment had a detrimental effect upon the petitioners’ parole eligibility and conditional release dates. This court found that the application of the new regulation to the petitioners violated the Ex Post Facto Clause of the United States Constitution. See Stansbury, 265 Kan. 404, Syl. ¶ 7; Bankes, 265 Kan. 341, 353.
In Gamer, as a result of disciplinary violations, the petitioner had suffered an extension of his conditional release date under the amended regulation. The Court of Appeals applied tire reasoning in Stansbury and Bankes to find an ex post facto violation in the application of a regulation concerning the earning, withholding, and forfeiting of good time credits that was amended after the petitioner committed his crime. 25 Kan. App. 2d at 395-400, 404.
The Thomas court distinguished Stansbury and Bankes, reasoning that Thomas, unlike the petitioners in those cases, was not required to earn credit he was entitled to under the old law in order to obtain an earlier conditional release or parole eligibility date. Instead, Thomas only had to remain offense free while on parole. Under the statutes in effect at that time, Thomas was subjected to forfeiture for the time spent on parole if he committed a new crime while on parole. The Thomas court determined that an individual on parole had ample notice that commission of a new crime would result in such forfeiture. 27 Kan. App. 2d at 620.
However, if the petitioner in Gamer would not have committed disciplinary violations, the amended regulation would not have detrimentally affected his conditional release date. This is similar to the reasoning that if Thomas had not committed a new crime while on parole, he would not have suffered the loss of credit for the time spent on parole. Thus, the Thomas court’s basis for distinguishing Stansbury and Bankes does not work to distinguish Garner.
Gamer is, however, distinguishable. In Garner, the extension of the petitioner’s conditional release date as a result of disciplinary violations goes directly toward the punishment for the crime committed prior to the enactment of the regulation. In Thomas, as in this case, the denial of credit for time spent on parole does not increase the penalty on the previous crime but, instead, affects the punishment for the crime committed while the petitioner was on parole.
As was recognized in Blomeyer v. State, 22 Kan. App. 2d 382, 385, 915 P.2d 790, rev. denied 260 Kan. 991 (1996), the legislative intent of K.S.A. 21-4608(f)(4) was “to impose a harsher penalty by requiring consecutive sentences if a second crime is committed while a defendant is on probation, parole, conditional release, post-release supervision, or assignment to a community correctional services program.” See also State v. Daniels, 18 Kan. App. 2d 338, 341, 853 P.2d 65, rev. denied 253 Kan. 861 (1993) (recognized legislature’s clear intent to impose heavier penalties on those committing crimes while on release from custody).
This same reasoning is used in determining the intent of the legislature in disallowing credit for time spent on parole in calculating parole eligibility, conditional release, and maximum dates. The credit for time spent on parole is denied in calculating the aggregate sentence and does not increase punishment on the prior crime. Any extension of parole eligibility, conditional release, or maximum dates is a direct result of the individual’s commission of the new offense and does not increase the defendant’s punishment for the prior offense.
In reaching its decision, the Thomas court relied upon Wishteyah v. Kansas Parole Board, 17 Kan. App. 2d 480, 838 P.2d 371 (1992). In Wishteyah, the Kansas Parole Board had an unwritten policy regarding conditions placed on individuals released from prison at the time Wishteyah committed the crimes for which he was incarcerated. The unwritten policy required that the individuals not violate state or federal law while on parole. During Wishteyah’s incarceration, the policy was revised, placing conditions and requirements on individuals regarding such things as use of narcotics and alcohol, associating with others engaged in illegal activity, and counseling and aftercare. Wishteyah was conditionally released 6 years after the revised policy went into effect. His conditional release was subsequently revoked for violating these conditions. Wishteyah alleged die application of the revised policy was an ex post facto violation. The Wishteyah court held that application of the revised policy to Wishteyah was not an ex post facto violation because the revisions did not apply retrospectively to conduct occurring before the imposition of the conditions. The revisions applied only to Wishteyah’s future conduct. 17 Kan. App. 2d at 483.
The Thomas court also relied upon United States v. Glover, 153 F.3d 749 (D.C. Cir. 1998), which addressed an ex post facto challenge to the reclassification of prior crimes that resulted in a harsher sentence upon commission of additional offenses. At the time Glover committed his prior crimes, the offenses were considered misdemeanors, even though they carried the possibility of imprisonment for more than 1 year after taking into account Glover’s criminal history. Until 1994, these offenses were also considered misdemeanors for the purpose of enhancing a federal sentence. However, in 1994, the law was amended to define these offenses as felony offenses. Because Glover’s prior offenses were considered felony offenses, Glover received a harsher sentence upon a new conviction than he would have if the prior offenses had not been reclassified. The United States Court of Appeals for the District of Columbia recognized that a sentencing enhancement based on past offenses is not an additional penalty for prior crimes but is a harsher penalty for the latest crime. 153 F.3d at 757. The Glover court stated:
“Despite Glover’s characterization, the 1994 ‘reclassification’ of his prior crimes did not add a new penalty for those crimes themselves. Like other repeat offender statutes, it did nothing more than prospectively define new, more drastic consequences if Glover committed a further crime . . . Because the provision expanding the category of prior offenses that would prospectively be considered ‘felony drug offenses’ was passed in 1994, a year before the first drug transaction at issue here, Glover had ‘fair warning,’ see Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987), that he would face stiffer penalties as a repeat offender if he committed another drug-related offense. Those penalties were punishments for his 1995 crimes, not for his prior crimes, and therefore do not violate the Ex Post Facto Clause even though tire federal statute labeled the prior convictions differently than did the states.” 153 F.3d at 757-58.
The federal courts’ reasoning regarding the version of the sentencing guidelines to apply in cases involving crimes committed over a span of years is also persuasive. See United States v. Kimler, 167 F.3d 889 (5th Cir. 1999) (at time of commission of latest offense, defendant had “adequate notice” that his previous offenses would be grouped with his latest offense; thus, defendant’s decision to continue illegal activities after revision of guidelines allowed guidelines in effect at commission of latest offense to be applied without ex post facto violation), and United States v. Bailey, 123 F.3d 1381 (11th Cir. 1997) (defendant had fair notice that additional crimes would subject him to guidelines in effect at time the latest crime for which he was convicted was committed; no ex post facto violation).
The 1983 amendment denying credit for time on parole went into effect while Anderson was in prison and was in effect for more than 2 years before Anderson committed the new crimes. Anderson had adequate notice that commission of a new offense would result in the denial of credit for time spent on parole. Anderson was not receiving an increased punishment on his prior offense, but an increased punishment on his new offenses because they were committed while he was on parole. Thus, there was no ex post facto violation in denying Anderson credit for the time spent on parole for his 1979 offense, even though the law in effect at the time of the commission of that offense would have provided for such credit.
UNAGGREGATING THE SENTENCE
Anderson contends his 1979 offense retains its individuality despite aggregation of sentences and, therefore, upon serving his sentence for the 1979 offense he was entitled to have the offense removed and his parole eligibility, conditional release, and sentence term recalculated. Anderson cites Price v. State, 28 Kan. App. 2d 854, 21 P.3d 1021, rev. denied 271 Kan. 1037 (2001), and Blomeyer for support.
In Price, the issue was whether the petitioner was entitled to retroactive conversion under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Price had been sentenced to 5 to 20 years each on his convictions for aggravated burglary and rape, and his sentence had been aggregated to a term of 10 to 40 years. After serving 20 years, Price contended he had served his sentence for rape and that he was entitled to have his sentence converted. The Court of Appeals disagreed, ultimately finding that Price was ineligible for conversion because he had served his sentence for aggravated burglary first and was still serving his sentence for rape. 28 Kan. App. 2d at 859. The Price court declined to adopt the State’s argument that Price’s sentences were being served simultaneously because they were aggregated. Instead, tire court recognized that consecutive sentences are not treated as one when aggregated and the identity of each punishment is preserved. 28 Kan. App. 2d at 857-58.
In Blomeyer, the Court of Appeals was also faced with a claim that a prisoner was entitled to conversion of his sentence under the KSGA. Blomeyer had been convicted and sentenced initially to 1 to 5 years for conspiracy to deliver cocaine. While on parole, Blomeyer was convicted of two additional offenses. He was convicted of felony theft, receiving a sentence of 1 to 2 years, and felony burglary, receiving a sentence of 2Vz to 8 years. Pursuant to K.S.A. 21-4608(c), the sentences for these offenses were imposed consecutive to each other and consecutive to his prior offense. In determining whether Blomeyer was entitled to conversion of his aggregated sentence, the Department of Corrections treated the three offenses as aggregated and determined that Blomeyer will still serving time for the first crime, the conspiracy to deliver cocaine, and was not entitled to conversion of his sentence. The Blomeyer court held that because Blomeyer had served longer than the 5-year maximum term on his original conviction for conspiracy to deliver cocaine, he was entitled to have his sentence converted. 22 Kan. App. 2d at 386.
At first blush, Price and Blomeyer seem to support Anderson’s contention that after serving the maximum time on his initial offense the sentence on that offense is deemed to have been served. However, upon closer examination, the facts in those cases differ from those in this case and support the DOC’s assertion that Anderson is not entitled to recalculation of parole eligibility, conditional release, and maximum dates without inclusion of his 1979 offense.
In Price and Blomeyer, the issue was conversion of a sentence under the KSGA. Both courts recognized that the legislature intended the aggregation rules under K.S.A. 21-4608(f) to be used in determining the time to be served on multiple sentences, the sentence begins date, and parole eligibility and conditional release dates, and found that the aggregation rules do not apply for purposes of sentence conversion. Price, 28 Kan. App. 2d at 858; Blomeyer, 22 Kan. App. 2d at 385.
The DOC contends that after aggregation, sentences lose their individual identities and become one sentence. This argument was specifically rejected by the Court of Appeals in Price, which stated:
“ ‘Consecutive sentences may not be treated collectively as one for the aggregate term of all, and the identity of the punishment for each must be preserved.’ 24 C.J.S., Criminal Law § 1582. In other words, a consecutive sentence ‘is one which commences at the termination of another term of imprisonment to which [an] accused has been sentenced. A prisoner serving the first of several consecutive sentences is not serving the other sentences . . . the prisoner serves only one sentence at a time.’ 24 C.J.S., Criminal Law § 1582. See State v. Bell, 6 Kan. App. 2d 573, 574, 631 P.2d 254 (1981) (defining ‘consecutive sentences’ as sentences ‘following in a train, succeeding one another in a regular order.’). As a result, on July 1, 1993, Price was either on conditional release for aggravated burglaiy or for rape, but not for both offenses.” 28 Kan. App. 2d at 858.
Anderson is essentially urging this court to create a mechanism for recalculation of parole eligibility, conditional release, and maximum dates after service of the maximum time on the first offense. The fact that each of Anderson’s sentences retains its individual identity, however, does not entitle Anderson to have his sentence unaggregated for the purpose of sentence recalculation. Neither the statutes nor the regulations provide for such a recalculation. The legislature intended the aggregation rules to be used in making this calculation. See Price, 28 Kan. App. 2d at 858; Blomeyer, 22 Kan. App. 2d at 385. Anderson is required to serve additional time by the inclusion of his 1979 offense in the calculation because that was the legislature’s intent.
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Per Curiam:
This is an original contested proceeding in discipline filed by the Disciplinary Administrator against respondent Kris Lynn Arnold of Prairie Village, an attorney admitted to the practice of law in the state of Kansas.
Complaints filed alleged tire respondent violated Rule 220 (2001 Kan. Ct. R. Annot. 290) (engaged in practice of law while on disability inactive status); KRPC 5.5 (2001 Kan. Ct. R. Annot. 424) (unauthorized practice of law); KRPC 8.2 (2001 Kan. Ct. R. Annot. 435) (false or reckless statements regarding qualifications and integrity of a judge); KRPC 8.4(a), (d), and (g) (2001 Kan. Ct. R. Annot. 437) (misconduct).
Respondent filed an answer, and a hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared pro se. The Disciplinary Administrator appeared by and though Frank D. Diehl, Deputy Disciplinary Administrator.
The hearing panel issued the following report:
“The Respondent objected to the notice of hearing, asserting that the Disciplinary Administrator failed to comply with Kan. Sup. Ct. R. 211(c), which provides:
‘Following the service of the answer, or upon respondent’s failure to answer, and upon completion of any additional investigation deemed necessary or advisable by the Disciplinary Administrator, the matter shall be set for hearing by the presiding officer of the panel.’
“In this case, the Formal Complaint and Notice of Hearing were filed on the same date, in violation of Kan. Sup. Ct. R. 211(c). The Respondent failed to establish that he suffered any prejudice as a result of that violation, and the Hearing Panel overruled the Respondent’s objection.
“The Respondent also objected to die jurisdiction of the Hearing Panel. Specifically, the Respondent asserted that the Hearing Panel lacked jurisdiction to hear any allegations that the Respondent violated the Kansas Rules of Professional Conduct in conjunction with the case he filed in the United States District Court for the District of Kansas. In his filings with die United States District Court, die Respondent included his Kansas Supreme Court number. Kan. Sup. Ct. R. 201 establishes the jurisdiction of the Court, and therefore, the jurisdiction of the Hearing Panel:
‘Any attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the jurisdiction of the Supreme Court and die authority hereinafter established by these Rules.’
“The jurisdiction of the Kansas Supreme Court and the Kansas Board for Discipline of Attorneys is not limited to practice in the state courts of Kansas. The Court has previously held that ‘[l]awyers are subject to discipline for improper conduct in individual, personal, or business activities.’ In re Jones, 252 Kan. 236, Syl. ¶ 2, 843 P.2d 709 (1992). Accordingly, the Hearing Panel overrules die Respondent’s objection to the jurisdiction of the Hearing Panel.
“During the course of the hearing, the Disciplinaiy Administrator offered, and the Hearing Panel admitted, Exhibits A through G into evidence. The Respondent offered, and the Hearing Panel admitted, Exhibits 3, 4a, 4b, 4c, 4d, 4e, 4f, 5, 6, and 7 into evidence.
“The matter then proceeded to the taking of testimony. The Disciplinary Administrator called the Honorable Lawrence E. Sheppard, Michael K. Seek, and the Respondent to testify. The Respondent presented testimony in his own behalf.
“After hearing the testimony presented and the arguments of the parties, and after reviewing the exhibits admitted into evidence, the Hearing Panel finds, by clear and convincing evidence, as follows:
“FINDINGS OF FACT
“1. Kris L. Arnold (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 09035. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Prairie Village, Kansas .... The Respondent was admitted to the practice of law on September 15, 1976. On his annual registration form filed in 1992, the Respondent requested that he be placed on disabled inactive status. Without hearing, the Respondent was placed on disabled inactive status. The Respondent remains on disabled inactive status.
“2. On March 14, 1994, the Respondent incorporated Grand Design Golf, Ltd. (hereinafter ‘Grand Design Golf) in the state of Kansas. Grand Design Golf is a corporation in good standing. The Respondent serves as Grand Design Golfs president and is its sole shareholder.
“3. On February 8, 2000, the City of Olathe issued a request for companies to submit bids to renovate the local golf course. Grand Design Golf, along with other companies submitted proposals. The city of Olathe did not accept the bid of Grand Design Golf.
“4. Because tire City of Olathe did not accept the bid of Grand Design Golf and because the Respondent took issue with the selection process, in 2000 the Respondent filed a lawsuit against the City. The Respondent filed die suit in his own behalf and in behalf of Grand Design Golf. The named defendants included the mayor, the city attorney, the city manager, the purchasing manager, and the parks and public grounds director. The suit was filed in the United States District Court for the District of Kansas, case numbered 002057JWL.
“5. In the suit, the Respondent sought ‘actual monetary damages in excess of $1,000,000, and such exemplary damages as are found to be appropriate.’
“6. Below the Respondent’s signature appeared the Respondent’s name and Kansas Supreme Court number. Additionally, the Respondent identified himself as ‘Attorney for Plaintiffs.’
“7. The lawsuit filed in federal court was later dismissed. The Respondent appealed die order of dismissal to the United States Court of Appeals for the Tenth Circuit.
“8. On May 2, 2000, the Respondent initiated a second lawsuit, styled Grand Design Golf, Ltd. a Kansas Corporation, and Kris Arnold, indkndualhj, being its president and sole shareholder v. City of Olathe, Kansas, in the District Court of Johnson County, Kansas, case numbered 00CV02174. In this action, tire Respondent included the following prayer for relief:
“WHEREFORE, plaintiffs pray that the Court find defendant City of Ola-the’s selection process complained of to be unlawful, corrupted, and void, and that the Court issue appropriate additional findings and orders, including temporary restraining order and temporary and permanent injunction, requiring defendant to restart a lawful, legitimate, fair and impartial selection that guarantees that plaintiffs proposal be reviewed in detail by unbiased city officials. Alternatively, plaintiffs seek findings and orders of the Court that theirproposal for the complete renovation of the Olathe municipal golf course is substantially superior to all competing proposals, and must be accepted by defendant under its own policies and procedures. Plaintiffs further seek such Court supervision of said selection process, either directly or through an appointed master, as will ensure that said process is unbiased, fair and impartial.’
“Below the Respondent’s signature appeared the Respondent’s name and Kansas Supreme Court number.
“9. On May 15, 2000, after learning that the Respondent is registered as a disabled inactive attorney, Michael K. Seek, counsel for the City of Olathe, wrote to the Disciplinary Administrator’s office, questioning whether it was permissible for the Respondent to represent Grand Design Golf. The letter was treated as a complaint and formally docketed as DA 7941.
“10. After learning that the United States District for the District of Kansas dismissed the Respondent’s action pending in that court, the Disciplinary Administrator, believing that all litigation filed by the Respondent in behalf of Grand Design Golf had been concluded, sought and received permission to dismiss the complaint filed by Mr. Seek pursuant to Kan. Sup. Ct. R. 209.
“11. On August 7, 2000, the Respondent wrote to the Disciplinary Administrator, informing him of the existence of the state case. Additionally, the Respondent made the following ‘observations and suggestions’:
T) I don’t want to violate any Supreme Court Rule or Disciplinary Rules, but Grand Design Golf does, it seems to me, have a right to a ruling on this question that can be later appealed, if necessary. 2) The District Court seems the proper forum in which to obtain such a ruling. 3) The proper procedure to obtain such a ruling would in my opinion be by motion to disqualify counsel from representing the corporation, which could be brought by Mr. Seek, or I would have no objection to your office moving to intervene in the case and bringing such a motion yourselves. . . . But there ought to be a way for us to obtain a decision in a court of record without me having to go through a disciplinary proceeding . . . .’
“12. Thereafter, because the Respondent continued to represent Grand Design Golf in federal and state court, the Disciplinary Administrator reinstated Mr. Seek’s complaint. On August 10, 2000, the Disciplinary Administrator replied to the Respondent as follows:
‘In your letter you have requested that a determination be made by either the federal or state court as to your eligibility to practice law. I suppose that either you or Mr. Seek could bring this issue to the attention of either court. I certainly have no intention of intervening in either case. Ultimately, I believe the question of your eligibility to practice law is an issue to be decided under the Rules of the Kansas Supreme Court. I would appreciate being advised of any ruling made by the federal or state court on this issue.’
“13. On August 23, 2000, Mr. Seek filed a ‘Motion to Strike Pleadings of Plaintiff Grand Design Golf, Ltd. and or Motion to Disqualify Kris Arnold.’ The district court scheduled a hearing on Mr. Seek’s motion for September 22, 2000.
“14. At the September 22, 2000, hearing, Judge Sheppard granted Mr. Seek’s motion to disqualify the Respondent. After ruling on the motion, the following exchange between Judge Sheppard and the Respondent occurred:
‘MR. ARNOLD: ... I do have one question regarding the court’s ruling on the motion for protective order. I am unclear as to what the court has ruled and ordered here.
‘THE COURT: Well, I’ll stand by what I said and I’ll look at the draft of Mr. Seek and if it needs to be supplemented, I’ll do so. You prepare it from your notes and/or the record if you need to refer to it, Mr. Seek.
‘MR. SECK: Your Honor, I’ll be glad to. The only remaining thing that I would like to mention is there is an outstanding motion for summary judgment and I will request that we not be required to respond to that until eleven days after we take Mr. Arnold’s deposition, assuming he obtains legal counsel.
‘MR. ARNOLD: Has the court ruled that I am prohibited as an individual from contacting any person in Olathe city government regarding the golf course?
‘THE COURT: I have made a ruling. I’m not going to muddle it. With regard to your —
‘MR. ARNOLD: You’re refusing to clarify your order?
‘THE COURT: Excuse me, don’t argue with me.
‘MR. ARNOLD: Are you refusing to clarify your order?
‘THE COURT: Excuse me, Mr. Arnold —
‘MR. ARNOLD: Are you refusing to clarify your order?
‘THE COURT: — do not argue with the court. You are subject to direct contempt, I want to caution you of that.
‘MR. ARNOLD: I apologize.’
“15. Within hours of the conclusion of the hearing held on September 22, 2000, the Respondent sent Judge Sheppard a letter, via facsimile. The letter read as follows:
‘Judge Sheppard:
‘Before the hearing this morning, it had been almost exactly nine years since I had set foot in courtroom. Your performance and attitude amply demonstrated to me why that nine year period was far too short.
‘Please seriously consider retiring from the bench. You simply don’t have what is required to decide the kind of issues that you were presented with in this case. Your threat to dismiss the entire case, your ridiculous allowance (originally) of only 15 days to secure alternate counsel, and your refusal to clarify your order prohibiting me from communicating with Olathe officials, was the last straw.
‘Your absurdly fastidious insistence on decorum and demeanor mask an underlying incompetence. You act like a robot. Do yourself and Johnson County litigants a great favor and get off the bench now.
‘Either you recuse yourself from further participation in this case, or I will fill (sic) a motion seeking reassignment to a competent judge. Also, be prepared for an ethical complaint concerning your refusal to clarify your “muddled” order this morning.
Tours, etc.
‘Kris Arnold, Pres.’
“A copy of the letter was also sent, via facsimile, to Mr. Seek.
“16. Judge Sheppard, on September 25, 2000, contacted the Disciplinary Administrator’s office, and notified them of the Respondent’s actions in this case. Judge Sheppard’s letter was docketed for investigation as complaint number DA 8038.
“17. At the hearing on this matter, the Respondent testified that oral and written communications with Judge Sheppard were not violative of the Kansas Rules of Professional Conduct:
‘MR. ARNOLD:... I don’t think drat there is anything in my letter to Judge Sheppard that even remotely would constitute grounds for discipline. Number one, it may have been offensive to Judge Sheppard, but I don’t think it’s unethical to insult a Kansas District Court judge. I don’t diink it’s unethical to do that. ... I think that our constitution, tíre First Amendment, controls. I think I have a right to say these things. . . . [Wje’re here because he was offended. And I can understand why he was offended, but he should understand why I felt it necessary to write the letter. . . .
‘MR. ARNOLD: .. . And I know that Mr. Hazlett in his complaint suggests that I was — had done something improper in the courtroom on September 22nd, but I think any fair reading — any fair reading of that transcript would suggest that I did nothing improper whatsoever. I asked the Judge to clarify his ruling. He refused. I asked him again and he refused. ... I find it very difficult to understand how that’s grounds for discipline.’
“CONCLUSIONS OF LAW
“Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:
“1. Kan. Sup. Ct. R. 208(a) provides, in pertinent part, as follows: ‘Attorneys may register as: active, inactive; retired; or disabled due to mental or physical disabilities. Only attorneys registered as active may practice law in Kansas.’
“Beginning in 1992, the Respondent registered as a disabled inactive attorney. Attorneys registered as disabled inactive are prohibited from practicing law.
“2. Kan. Sup. Ct. R. 202 details the “grounds for discipline,” in pertinent part, as follows:
‘. . . All other civil judgments shall be prima facie evidence of the findings made therein and shall raise a presumption as to their validity. The burden shall be on the respondent to disprove the findings made in the civil judgment.’
“(emphasis added). Judge Sheppard disqualified the Respondent from representing Grand Design Golf because the Respondent was not an ‘active’ attorney and, therefore, not authorized to practice law. The evidence presented by the Respondent was insufficient to rebut the presumption of Kan. Sup. Ct. R. 202, and as a result, the Hearing Panel is bound by Judge Sheppard’s ruling and concludes that the Respondent was acting as the attorney for Grand Design Golf at a time when he was not authorized to practice law, in violation of KRPC 5.5(a) which prohibits attorneys from ‘practicing] law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.’
“3. The Hearing Panel further concludes that by representing Grand Design Golf in the United States District Court for the District of Kansas, the Respondent engaged in the unlawful practice of law, in violation of KRPC 5.5(a) and Kan. Sup. Ct. R. 208(a).
“4. The Kansas Rules of Professional Conduct regulate and limit a lawyer’s First Amendment freedom of speech. See In re Johnson, 240 Kan. 334, 335, 729 P.2d 1175 (1986) and In re Wilkinson, 251 Kan. 546, 555, 834 P.2d 1356 (1992). Specifically, lawyers must temper their statements to judges and adjudicatory officers.
‘A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements against a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.’
Johnson, 240 Kan. at 336.
“5. KRPC 8.2 provides:
‘A lawyer shall not malee a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory or public legal officer, or of a candidate for election or appointment to judicial or legal office.’
In this case, the Respondent made ‘unrestrained and intemperate’ statements regarding Judge Sheppard that he knew or should have known were false. As such, the Healing Panel concludes that the Respondent violated KPRC 8.2.
“6. It is professional misconduct for a lawyer to engage in activity that adversely reflects on his fitness to practice law. See KRPC 8.4(g). In this case, the Hearing Panel concludes that the Respondent engaged in such conduct, in violation of KRPC 8.4(g), by writing the aforementioned letter to Judge Sheppard.
'“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Ear Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the profession.
“Mental State. The Respondent knowingly violated his duty to the profession.
“Injury. In this case, the Respondent and his own corporation were the ‘clients.’ It cannot be said that the Respondent caused himself injury. It is arguable, however, that the Respondent caused injury or potential injury to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. In 1981, the Respondent was informally admonished for engaging in conduct -intemperate remarks to a judge -that was remarkably similar to the misconduct in this case.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent has never acknowledged that he engaged in misconduct. On tire contrary, the Respondent maintains that his actions were appropriate.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of Dishonest or Selfish Motive. There was no evidence presented that the Respondent was motivated by dishonesty or selfishness.
“Remoteness of Prior Offenses. The Respondent’s prior disciplinary offense, while relevant as to the type of misconduct found in this case, is remote in time.
“In addition to the above-cited factors, tire Hearing Panel has thoroughly examined and considered Standard 7.2 and Standard 7.3. Those standards provide, as follows:
‘Suspension is generally appropriate when a lawyer knowtingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’
Standard 7.2.
‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’
Standard 7.3. In addition, the Commentary following Standard 7.3 provides:
‘Reprimand is the appropriate sanction in most cases of a violation of a duty owed to dre profession. Usually there is little or no injury to a client, the public, or the legal system, and the purposes of lawyer discipline will be best served by imposing a public sanction that helps educate the respondent lawyer and deter future violations.’
“The Hearing Panel unanimously recommends that Respondent be censured and that the censure be published in the Kansas Reports. See Kan. Sup. Ct. R. 203(a)(3). Kan. Sup. Ct. R. 208(f)(2) requires that ‘[a]ny attorney whose inactive status has extended for a period in excess of five years shall be reinstated only upon full compliance with any conditions imposed by the Supreme Court for reinstatement.’ In agreement with Kan. Sup. Ct. R. 208(f)(2), die Hearing Panel recommends that, in the event the Respondent seeks reinstatement from disabled inactive status, an evidentiary hearing be held to determine the Respondent’s capacity to practice law.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Respondent filed exceptions to the hearing panel’s report, as allowed by Kansas Supreme Court Rule 212 (Kan. Ct. R. Annot. 263), in which he (1) took exception to the overruling of his objection to the notice of hearing; (2) took exception to compelling him to appear in a disciplinary hearing without proper action in federal court; (3) took exception to the hearing panel’s factual findings in (a) paragraphs 3 and 4, (b) paragraph 13 and (c) paragraph 14; (4) took exception to the hearing panel’s conclusions of law in (a) paragraph 2, (b) paragraph (3), and (c) paragraphs 4 through 6; and (5) took exception to all the recommendations of the hearing panel.
Respondent stood on his brief at the time of his appearance before the Supreme Court. In his brief, respondent contended (1) he was authorized to appear on behalf of his corporation under the authority of Benson v. City of De Soto, 212 Kan. 415, 510 P.2d 1281 (1973), and he, in fact, appeared as an officer of his corporation and not as its attorney even though he did place the Kansas Supreme Court number on his pleadings; (2) the United States Constitution prohibits Kansas from imposing sanctions on an attorney without a prior finding of unethical conduct by the federal court; (3) the Disciplinary Administrator’s dismissal of the initial complaint because the civil action had been dismissed estopped the Disciplinary Administrator from later refiling the complaint based on the actions before Judge Sheppard; (4) his responses were protected by the First Amendment to the United States Constitution and § 11 of the Kansas Constitution Bill of Rights; (5) the panel’s finding of injury to the legal profession was not based on clear and convincing evidence and the recommendation of public censure was inappropriate; and (6) the notice of hearing was a jurisdictional defect even though respondent claimed no actual prejudice.
We first review the panel’s findings to determine if they are supported by clear and convincing evidence. In doing so, our standard was set forth in In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1992) (quoting State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 [1971]) where we stated we have a “ ‘duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered.’ ” The report of the hearing panel “is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.” State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975)
Attorneys in Kansas, once admitted to the bar, may register as active, inactive, retired, or disabled; however, only those registered as active may practice law in this state. Rule 208(a) (2001 Kan. Ct. R. Annot. 254). KRPC 5.5(a) (2001 Kan. Ct. R. Annot. 424) states: “A lawyer shall not . . . practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction.”
Arnold clearly attempted to practice law both in state and federal court. He signed as attorney for plaintiffs, utilized his Supreme Court number, and sought to represent Grand Design Golf, Ltd., a Kansas corporation. Judge Sheppard’s ruling was not appealed and raises a presumption of validity under Rule 202 (2001 Kan. Ct. R. Annot. 221).
It has been the longstanding rule in Kansas that a corporation may not appear in court by an agent who is not an attorney. Atchison Homeless Shelters, Inc. v. Atchison County, 24 Kan. App. 2d 454, 455, 946 P.2d 113, rev. denied 263 Kan. 885 (1997). Although we recently modified this rule with respect to matters under the Small Claims Procedure Act in Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 503, 14 P.3d 1149 (2000), we reiterated our approval of the Atchison rule in recognizing that a corporation is an artificial entity without right of self-representation, and further pointed out the administration of justice was efficiently furthered by requiring persons licensed to practice law and familiar with court procedures to represent corporations.
Arnold’s reliance on Benson v. City of De Soto, 212 Kan. 415, is misplaced and does not justify his actions. In Benson, we refused to dismiss an appeal filed by three of five city commissioners in a hotly contested land use case where the city attorney and private counsel hired by the city had refused to file the appeal. Shortly after the appeal was filed, the city obtained alternate counsel.
The Benson court held the trial court’s dismissal of the appeal was “overly technical” and that K.S.A. 60-102 requires a liberal construction of the Code of Civil Procedure. 212 Kan. at 421-22. If Arnold truly believed Benson applied, it was his obligation to appeal Judge Sheppard’s decision on that basis. We hold that our decision in Benson did not justify Arnold’s actions.
Arnold’s argument that his situation is somehow special and does not implicate Rule 208 is without merit. The hearing panel’s findings and conclusions that Arnold engaged in the unauthorized practice of law was clearly and convincingly shown.
Arnold’s contention that we lack jurisdiction to discipline him for conduct in federal court is not meritorious. In support of his argument, he relies on a portion of the comment to KRPC 8.5 (2001 Kan. Ct. R. Annot. 451), but a reading of the rule and the entire comment does not support his argument.
KRPC 8.5 states: “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.”
The Comment to the rule reads as follows:
“In modem practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice. If their activity in another jurisdiction is substantial and continuous, it may constitute practice of law in that jurisdiction. See Rule 5.5.
“If the rules of professional conduct in the two jurisdictions differ, principles of conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than one jurisdiction.
“Where die lawyer is licensed to practice law in two jurisdictions which impose conflicting obligations, applicable rales of choice of law may govern the situation. A related problem arises with respect to practice before a federal tribunal, where the general authority of the states to regulate the practice of law must be reconciled with such authority as federal tribunals may have to regulate practice before them.” (Emphasis added.)
It is the italicized portion of the Comment Arnold relies on in making his argument.
There is no conflict between state and federal jurisdiction. Arnold’s actions were not proper in federal court just as they were not proper in state court. We retain the power to discipline attorneys for conduct committed outside of and beyond our Kansas courts. Arnold’s reliance on the single sentence in the Comment to KRPC 8.5 is not persuasive.
Arnold next contends the Disciplinary Administrator is somehow precluded from going forward with the complaint because he first dismissed the complaint and then refiled it, basing the claimed violation on the Johnson County case and Judge Sheppard’s rulings. This simply is not a defense to his actions.
Arnold argues his letter to Judge Sheppard was proper and fell into the category of protected free speech under the First Amendment. The two cases he cites, In re Johnson, 240 Kan. 334, 729 P.2d 1175 (1986), and State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert. denied 449 U.S. 983 (1980), do not support his arguments. In Johnson, we found a respondent should be disciplined for making false unsupported criticisms and misleading statements about his opponent in a county attorney election campaign. In our discussion of the First Amendment in relation to attorney’s speech we said:
“A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements against a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.
“. . . In those instances where a lawyer s unbridled speech amounts to misconduct which threatens a significant state interest, a state may restrict the lawyer’s exercise of personal rights guaranteed by the Constitutions. N.A.A.C.P. v. Button, 371 U.S. 415, 438, 9 L. Ed. 2d 405, 83 S. Ct. 328, (1963).
“Upon admission to the bar of tins state, attorneys assume certain duties as officers of the court. Among the duties imposed upon attorneys is the duty to maintain the respect due to the courts of justice and to judicial officers. A lawyer is bound by the Code of Professional Responsibility in eveiy capacity in which the lawyer acts, whether he is acting as an attorney or not, and is subject to discipline even when involved in nonlegal matters, including campaigns for nonjudicial public office. State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert. denied 449 U.S. 983 (1980). The imposition of the ethical obligation of honesty upon lawyers under DR 1-102(A)(4) is necessary for the administration of justice. See cases cited in State v. Russell, 227 Kan. at 900-901. Disciplinary action can be exercised not only for the purpose of enforcing legal rights but for the additional purpose of enforcing honorable conduct on the part of the court’s own officers. In re Estate of Williams, 160 Kan. 220, 160 P.2d 260 (1945).” 240 Kan. 336-37.
In Russell, a respondent made false statements while running for a position on the Board of Public Utilities, and the comments were not deemed to amount to protected speech.
In this case, Arnold’s behavior shows a complete lack of respect toward the judiciary. His style was sarcastic, insulting, and threatening and subjected him to the discipline that was entered. The remedy for a believed erroneous trial court ruling is appeal, not an intemperate writing faxed to the judge shortly after the ruling was made.
In reviewing recommended discipline, we recently stated:
“The hearing panel’s recommendations of sanctions in a given case are ‘advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator.’ Rule 212(f) (2001 Kan. Ct. R. Annot. 265). In determining the appropriate discipline to be imposed for a violation of disciplinary rules, we consider the facts surrounding the violation as well as any aggravating or mitigating circumstances. State v. Stakes, 227 Kan. 711, 720, 608 P.2d 997 (1980).” In re Berry, 274 Kan. 336, 353-54, 50 P.3d 20 (2002).
The hearing panel properly looked to (a) the duly violated, (b) Arnold’s mental state, (c) the actual or potential injury caused by Arnold’s misconduct, and (d) the existence of aggravating or mitigating circumstances. We will not again set forth the reasoning of the hearing panel.
We have made an independent analysis of the facts in the record, which were found by clear and convincing evidence. We find the recommended discipline of published censure is appropriate considering all the evidence and testimony and the aggravating and mitigating circumstances set forth in the hearing panel report.
■ We agree that Rule 208(f)(2) requires that if an attorney has been on inactive status for a period in excess of 5 years, he or she may be reinstated only upon full compliance with any conditions imposed by the Kansas Supreme Court. We decline to establish any specific conditions at this time, and if Arnold makes a written application to be reinstated to active status at some future date, the conditions and requirements should be determined at that time based on the then-existing facts.
Finally, Arnold’s argument that our court is without jurisdiction because the notice of the hearing was received prior to the time he received the complaint fails to comply with Rule 211(c) (2001 Kan. Ct. R. Annot. 259). The Disciplinary Administrator admits Rule 211(c) was not strictly followed but contends there is no showing of prejudice and the technical deficiency in the timing of the notice cannot be a jurisdictional defense.
Kansas Supreme Court Rule 224(d) (2001 Kan. Ct. R. Annot. 296) states:
“Any deviation from the rules and procedures set forth herein shall not constitute a defense in a disciplinary proceeding or be grounds for dismissal of any complaint absent actual prejudice to the respondent. The respondent shall have the burden of showing any such prejudice by clear and convincing evidence.”
When directly questioned at the disciplinary hearing, Arnold stated that he was not claiming any prejudice resulted from the notice he received. Neither does he allege any prejudice on appeal. Having failed to show or even allege any prejudice resulted from tire timing of the notice, this argument fails and jurisdiction properly exists.
We therefore hold the findings of the hearing panel are supported by clear and convincing evidence, and the conclusions of law are adopted by the court. We further find that respondent should be disciplined by published censure.
It Is Therefore Ordered that Kris Lynn Arnold be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2001 Kan. Ct. R. Annot. 224) for his violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by
Mason, J.:
A special election was held in Hill City to vote upon a proposition to issue bonds to construct a transmission line connecting with an electrical power plant in Plainsville. A majority of the votes cast favored the proposition. The plaintiff obtained a judgment enjoining the issuance of the bonds on the ground that authority for that purpose could be given only by the affirmative consent of a majority of all those entitled to vote at the election, whether they actually did so or not. The defendants appeal, the sole controversy being as to the true interpretation in this regard of the statute, which provides that “no bonds shall be issued except upon a vote of a majority of the qualified electors of such city.” (Gen. Stat. 1915, § 864.)
Where a popular vote is required to authorize certain action a majority (or other stated proportion) of those actually voting is regarded as sufficient for the purpose, unless the statute affirmatively and clearly shows a different intention. But we regard the language quoted as too explicit to admit of any other construction than that the bonds referred to shall not be issued without the consent, expressed by voting at the election, of a majority of all the persons lawfully entitled to vote thereat. True, there are difficulties in ascertaining the exact number of qualified electors of a given city or other governmental body, but they are not insuperable. Many statutes require petitions to be signed by a certain proportion of the electors of the district, without indicating how the total number is to be arrived at, yet their administration has not proved impracticable on that account. Nearly all the many Kansas statutes regarding special elections provide in so many words that the result shall be determined by a majority (or other proportion) of the votes cast. A provision that a majority of the qualified electors shall be necessary is so unusual as clearly to indicate a purpose to apply a different rule. The use of the word “electors” rather than “voters” tends to the same conclusion. While the terms are sometimes used interchangeably, their meaning is not precisely the same, “electors” being properly applied to those entitled to vote rather than to those actually voting, while “voters” is employed in both senses. (For illustration, see Mills v. Hallgren, 146 Iowa, 215.)
The defendants regard Patrick v. Johnson, 90 Kan. 140, 133 Pac. 161, as interpreting a similar statute in accordance with their contention. The question whether a statute referred to three-fifths of those eligible to vote or to three-fifths of those -who did vote was there discussed but did not require to be decided, and was not decided, because the proposition involved had not received three-fifths of either number. It was said in the syllabus and also in the opinion that the majority did not need to be determined by an examination of the registration list, but that was a different matter. This court has interpreted a provision that school districts may be consolidated if a majority of the voters of each district vote to unite, as making the consent of a majority of those qualified to vote in each district necessary to the union. (Gardner v. The State, 77 Kan. 742, 95 Pac. 588.)
The federal supreme court originally held a statute of Missouri, which authorized township bonds to be issued upon a vote of two-thirds of those voting at a special election, to be void because repugnant to a provision of the state Constitution forbidding their issuance unless “two-thirds of the qualified voters of such . . . town, at a regular or special election to be held therein,” should assent thereto. (Harshman v. Bates County, 92 U. S. 569.) Later this case was overruled, the court holding (two of the justices dissenting) that the constitutional requirement was satisfied by the assent of two-thirds of those voting at the election. (County of Cass v. Johnston, 95 U. S. 360.) The second decision, however, was expressly based upon the ground that the court was concluded by earlier rulings of the state supreme court, to which attention had not been called at the hearing of the first case. The rule of the second case was applied in interpreting the same language found in the constitution of Mississippi, although the state supreme court had already construed it as requiring the consent of two-thirds of those entitled to vote (Hawkins et al. v. Carroll Co., 50 Miss. 735), the refusal to follow that construction being justified by the fact that the rights of the holder of the bonds in controversy had accrued before the decision by the state court. (Carroll County v. Smith, 111 U. S. 556.) The federal rule has been followed in the interpretation of a similar provision of the constitution of another state. (Vance et al. v. Austell et al., 45 Ark. 400.) The same interpretation of equivalent language was adopted in Sanford v. Prentice and others, 28 Wis. 358, but there the court said, “If the legislature had intended a majority of the qualified electors of the district, they would undoubtedly have used those words instead of the words ‘legal voters,’ or in some other way have made their intention plain.” (p. 363.) A constitutional requirement of a vote of “two-thirds of the qualified electors of the parish” has been held not to be met by a two-thirds majority of those voting, the court saying, “If the framers of the constitution intended that meaning, they could readily have found words in which to express it, instead of declaring what they meant by saying ‘two-thirds of the qualified electors of the parish or parishes affected.’ ” (Hobgood v. Police Jury, 147 La. 279, 282; see, also, 9 R. C. L. 1116, 1117, note 4.) Even the phrase “a majority of the qualified voters of the county” has been given the same effect. (Long v. Comrs., 181 N. C. 146.)
Upon a hasty search we find no other Kansas statute in which the result of an election is made to turn upon the concurrence of “a majority of the qualified electors” of the public body or district affected. Of some fifty-five election statutes examined one uses the phrase “a majority of the electors” (§ 1776); another “a two-thirds vote of the legal voters” (§ 8654); another “two-thirds of the legal voters” and “a majority of the legal voters” (§ 8915). The others employ language indicating clearly that a majority (or other proportion) of those voting shall determine the result. The act here under consideration among other things authorizes the municipality to purchase or contract for the construction of oil wells, to lease or buy natural gas and oil lands, and construct pipe lines to the city. It is natural that with respect to undertakings extending beyond a city’s limits stricter methods of ascertaining in advance the wishes of its inhabitants should be employed than where the project involved is confined within its borders, and we regard the language used by the legislature in the present instance as indicating a purpose to make a more exacting requirement than in the case of ordinary bond elections.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff brought this action to recover on a promissory note for $4,500 executed by defendant Henry D. Jones, made payable to defendant William Campbell and by the latter indorsed to the plaintiff. Defendant Jones filed an answer and cross petition in which he alleged that the note had been procured by the fraud of William Campbell and that the plaintiff acquired the note with notice of the fraud, and asked that the plaintiff take nothing and that the note be canceled and held for naught, so far as defendant Jones was concerned. Afterward, he was permitted to amend the prayer to his answer by asking that in the event that judgment should be rendered against him in favor of the plaintiff, defendant Jones should have judgment against defendant Campbell for the amount of the judgment against Jones. Judgment was rendered in favor of the plaintiff against Jones and Campbell and in favor of Jones against Campbell for the same amount. Jones appeals from the judgment against him in favor of the plaintiff, and Campbell appeals from the judgment against him in favor of Jones. This is the second time that this action has been before this court. (Beaehy v. Jones, 108 Kan. 236, 195 Pac. 184.)
1. The only question 'presented, by the appeal,of Jones is: Did the plaintiff acquire the note in due course for value before maturity? There was evidence to establish those facts, and the jury by its general verdict found that the plaintiff did acquire the note in that manner. Whether or not those facts were established was for the jury to determine. (Beachy v. Jones, supra.) This compels an affirmance of the judgment in favor of the plaintiff and against defendant Henry D. Jones.
2. On the trial which resulted in the judgment from which this appeal is taken, special questions were answered by the jury as follows:
“Q. 1. Was the note in suit procured from the defendant Henry D. Jones by fraudulent representations made by the defendant William Campbell? Ans. Yes.
“Q. 2. If you answer question No. 1, ‘yes’ then state what such false or fraudulent representations were? Ans. That said Wm. Campbell did make the statement to Henry D. Jones at said Jones’ home, that ‘as far as he knew it it was all right’ meaning said Asbestos Mining Co. stock was all right.
“Q. 3. State whether or not there was any conspiracy between William Campbell, Charles Campbell & H. J. Egan to defraud Henry D. Jones by selling him 10,000 shares of Mid-West Asbestos Stock and procuring his note therefor? Ans. Yes.
“Q. 4. If you answer question No. 3 ‘yes,’ then state: between which of said persons said conspiracy existed? Ans. Wm. Campbell, Chas. Campbell and H. J. Egan.”
Campbell contends that these findings were not supported by evidence and that on them judgment should have been rendered in his favor as against Jones. An examination of the abstract reveals that this contention, so far as the evidence is concerned, is not good. That evidence and the findings showed that William Campbell actively, knowingly practiced a fraud on defendant Jones for which Campbell is liable to Jones.
3. Defendant William Campbell in his reply to the' answer and cross petition of Jones alleged that the action in favor of Jones and against Campbell was barred by the statute of limitations. That reply was filed after the action had been remanded to the district court for a new trial.
The note was dated October 9, 1916. In July, 1917, Jones received information which led him to make inquiry into the consideration that he had received for' the note. On August 20, 1917, that investigation was made, and Jones then discovered the fraud that had been practiced on him to secure the note. This action was commenced by the plaintiff on July 16, 1919; the answer and cross petition of Jones was filed August 15, 1919; and the amendment to the answer and cross petition by which Jones asked for affirmative relief against Campbell was made November 22, 1919. The answer and cross petition of Jones, as first filed, did not ask for any direct relief against Campbell although sufficient was alleged to entitle Jones to judgment against Campbell on account of fraud. No relief against the latter was asked until November 22, 1919, more than two years after Jones discovered the fraud. But, Jones and Campbell were parties to the action from the- beginning. The action was commenced, and Jones had filed his answer and cross petition before the statute of limitations had run in favor of Campbell against Jones. In Beachy v. Jones, 108 Kan. 236, 243, 195 Pac. 184, this court said:
“Passing next to the controversy between Jones and Campbell, there was nothing material the matter with Jones’s cross petition. It narrated all the pertinent facts necessary to state a defense to the action, and a defense to Campbell’s claim that Jones was primarily liable and himself only liable secondarily, and evidence thereon in extenso was admitted by the trial court. The only defect in the petition — if it was a defect — was in the prayer, and that is seldom very important. In Eagan v. Murray, 102 Kan. 193, 170 Pac. 389, it was said:
“■‘The prayer of a petition is merely the pleader’s idea of the relief to which he is entitled; it is not a part of the statement of the cause of action; and if the cause of action [or defense] is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper legal redress, which may or may not conform in whole or in part to the relief prayed for by the pleader.’ ”
The answer and cross petition of Jones was filed within two years after the discovery of the fraud and was sufficient to stop the running of the statute of limitations. The action of Jones against Campbell was therefore not barred.
4. The principal part of the effort for the sale of the stock to Jones was made by Charles Campbell, a son of William Campbell. Charles Campbell was dead at the time of the trial. Jones was permitted to testify concerning conversations «had with Charles Campbell during the negotiations. William Campbell contends that under section 320 of the code of civil procedure, it was error to receive that evidence. That section so far as it is material reads:
“No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, where either party to the action claims to have acquired title, directly or indirectly from such deceased person.”
William Campbell did not acquire title to the note either directly or indirectly from Charles Campbell. William Campbell was the payee named in the note. The note was given directly to him. The evidence showed that Charles Campbell made false statements to procure the signature of Jones to the note, and'the evidence also showed that William Campbell made false statements to procure that signature. The relation of Charles Campbell to this transaction does not bring the testimony of Jones within the terms of the statute.
Other matters are argued by defendant Campbell, but they are not of sufficient importance to justify a reversal of the judgment in favor of Jones.
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The opinion of the court was delivered by
Dawson, J.:
The defendant, Rufus King, was convicted of the murder of one John A. Woody, which crime occurred on or about the first of April, 1909. Woody was a young man who worked for King in the spring of that year. King then operated a livery barn at Maple Hill in Wabaunsee -county. About the first of April, Woody disappeared and was never 'afterwards seen alive. In August, 1919, the skeleton of Woody was found buried face downward in the livery barn lot, under the manure pile or thereabout. The hyoid bone of the throat of the skeleton had been fractured, indicating that Woody’s death had occurred by strangulation or similar violent means. Woody was last seen alive by King, and after Woody’s disappearance in 1909 King had in his possession and exercised rights of ownership over Woody’s two horses, buggy and harness, and even had such intimate personal effects of Woody’s as his overcoat, his picture as a baby, his photograph as a young man, the photograph of Woody’s school teacher, his shaving mug, and a conch shell. He also claimed the right to Woody’s saddle, which was in the possession of Woody’s father, but the latter declined to surrender it on King’s demand. These and many other more or less significant incidents — some of which will need consideration later in this opinion ■— constituted the evidence which made up the state’s case of homicide against King, and his conviction of the crime of murder in the first degree followed.
King appeals. The principal error or series of .errors upon which he relies for reversal relates to the admission in evidence of facts pertaining to two other murders which came to light about the time Woody’s skeleton was found in the livery barn lot in 1919, and which in extenso were narrated to the jury. The facts involved in this evidence, the competency of which is strenuously challenged, tended to show that in 1906, while this same livery barn was in King’s possession, one William T. Ringer, a Nebraska peddler, who wandered about the country attending public fairs and selling cheap jewelry, which he made of copper wire and small shells, came to King’s livery barn and made it his headquarters for some time. Ringer disappeared. He was last seen alive by King. After his disappearance King had in his possession and exercised rights of ownership over all of Ringer’s personal property — his deeds to properties in Nebraska, his spectacles, jewelry, and copper wire and shells for making jewelry, his collars, blankets, dog, horses and wagon. In August, 1919, Ringer’s skeleton was found buried face downward in the lot of the livery barn near Woody’s body, and the skull of Ringer’s skeleton showed that it had been crushed by an axe or similar instrument.
The facts tending to show the third homicide, which were developed over defendant’s objection, tended to show that in 1913 a young farmer named Reuben Gutschall residing a few miles from Maple Hill suddenly disappeared and was never afterwards seen alive, and all his property immediately came into the possession of King, and King'exercised rights of ownership over it — Gutschall’s chickens, hogs, household goods, horses, wagon, harness, hay and sorghum. King sold part of these effects, and hauled away the remainder. Gutschall’s watch was found on the road over which King hauled Gutschall’s goods. In August, 1919, the bones of Gutschall’s skeleton, or most of them, were found in a sack in a shed in the possession of King in Maple Hill. During that month and for many months prior thereto King was absent from Maple Hill, in Colorado and elsewhere. These bones indicated that they had once been buried and had been disinterred, and there were indications that Gutschall’s death had been caused by violent means.
It cannot be gainsaid that the evidence pertaining to the violent death of Woody was sufficient to establish the crime of homicide. So, too, did the facts pertaining to the deaths of Ringer and Gutschall. In Wilson v. United States, 162 U. S. 613, 40 L. Ed. 1090, the evidence tended to show that the body of one Thatch had been found in a creek near which the defendant had camped. The defendant had in his possession five horses and a colt, a wagon, gun, bed clothing, and other property that had belonged to Thatch, and there was evidence that Thatch’s death had been effected by violent means. The court said:
“Possession of the fruits of crime recently after its commission justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence. 1 Greenl. Ev. (15th ed.) § 34. In Rickman’s case 2 East P. C. 1035, cited, it was held that on an indictment for arson, proof that property was in the house at the time it was burned, and was soon afterwards found in the possession of the prisoner, raises a probable presumption that he was present and concerned in the offense; and in Rex v. Diggles, (Wills Cir. Ev. *53,) that there is a like presumption in the case of murder accompanied by robbery. Proof that defendant had in his possession, soon after, articles apparently taken from the deceased at the time of his death is always admissible, and the fact, with its legitimate inference, is to be considered by the jury along with the other facts in the case in arriving at their verdict. Williams v. Commonwealth, 29 Penn. St. 102; Commonwealth v. McGorty, 114 Mass. 299; Sahlinger v. People, 102 Illinois, 241; State v. Raymond, 46 Connecticut, 345; Whart. Cr. Ev.. §762.” (p. 619).
But what about the admissibility of the evidence concerning these crimes involved in the deaths of Ringer and Gutschall when King was being tried for the murder of Woody? The admissibility of evidence touching other crimes perpetrated by a defendant on trial for any specified offense has been the theme of much discussion by courts and text-writers. The ordinary rule, of course, is that evidence of extraneous crimes is not admissible. But to that rule there áre many well-recognized exceptions which are as -potent as the rule itself. Any pertinent fact which throws light upon the subject under judicial consideration' — the accused’s guilt or innocence of the crime for which he is charged and on trial, is admissible; nor is such probative fact to be excluded merely because it may also prove or tend to prove that the accused has committed another crime or many crimes. (The State v. Folwell, 14 Kan. 105; The State v. Adams, 20 Kan. 311; The State v. Reed, 53 Kan. 767, syl. ¶ 6, 37 Pac. 174; The State v. Calhoun, 75 Kan. 259, 88 Pac. 1079; The State v. Hansford, 81 Kan. 300, 106 Pac. 738; The State v. Chance, 82 Kan. 388, 108 Pac. 789; The State v. Wheeler, 89 Kan. 160, 165, 130 Pac. 656; The State, ex rel., v. Stout, 101 Kan. 600, 606, 168 Pac. 853; Smith v. Hern, 102 Kan. 373, and citations, 170 Pac. 990; The State v. Mathes, 108 Kan. 488, 196 Pac. 607; The State v. Ridgway, 108 Kan. 734, 197 Pac. 199.)
In The State v. Folwell, supra, where the defendants were convicted of larceny, ancf on appeal complained of the admission in evidence of other larcenies, this court said:
“It is true, that this evidence tended to prove a distinct felony, and it will readily be seen that it was likely to injure the defendants; but the testimony was essential to show the guilt of defendants on the charge then being tried, and it would be a singular rule of law, that a person accused of a grave crime could compel the exclusion of important and relevant testimony merely by committing two felonies at the same time, or so nearly and intimately connected that the one could not be proven without also proving the other. The testimony was competent, not for the purpose of proving another felony, but as tending to show the guilt of the accused in this case. The authorities are not conflicting on this point. (Wharton Crim. Law, §649.)” (p. 109.)
In The State v. Adams, supra, Judge Brewer said:
“Error is alleged in the admission of testimony, in this, that evidence was admitted which simply tended to show defendant guilty of another offense, and in no manner tended to connect him with the crime charged. The rule of law applicable to questions of this kind is well settled. It is clear, that the commission of one offense cannot be proven on the trial of a party for another, merely for the purpose of inducing the jury to believe that he is guilty of the latter, because he committed the former. You cannot prejudice a defendant before a jury by proof of general bad character, or particular acts of crime other than the one for which he is being tried. And on the other hand, it is equally clear, that whatever testimony tends directly to show the defendant guilty of the crime charged, is competent, although it also tends to show him guilty of another and distinct offense. The State v. Folwell, 14 Kas. 105. A party cannot, by multiplying his crimes, diminish the volume of competent testimony against him. A man may commit half a dozen distinct crimes, and the same facts, or some of them, may tend directly to prove his guilt of all; and on the trial for any one of such crimes it is no objection to the competency of such facts, as testimony, that they also tend to prove his guilt of the others. By this rule, whatever is done in preparation for a crime, or in concealing the fruits, is competent, although in such preparation or concealment is committed another and distinct offense.” (p. 319.)
In The State v. Chance, supra, it was said:
“A third complaint is that the state was permitted, in support of the charge of uttering the forged note, to introduce evidence tending to show that the defendant had forged the names of other persons to other notes for the purpose of increasing the apparent assets of the business, and thus covering up his shortage. This evidence had a tendency to prove him guilty of the very offense charged, and the fact that it also tended to prove the commission of other offenses did not render it inadmissible. (The State v. Calhoun, 75 Kan. 259; The State v. Hansford, 81 Kan. 300; 62 L. R. A. 252, note; 5 Encyc. of Ev. 868; 1 Wig. Ev. §§315, 318.)” (p. 391.)
In The State v. Lowe, 6 Kan. App. 110, 50 Pac. 912, the defendant was convicted of grave robbery committed in 1895. On appeal, he complained of the admission of prejudicial testimony which showed that at various times in 1894 and 1895 he had received payments from a ihedical college for dead bodies which, apparently had been exhumed from cemeteries. He also complained of the very prejudicial admission of conversations in 1893 and 1894 between him and a witness, the sexton of a cemetery, touching this ghoulish traffic. The court of appeals said:
“This testimony was for the purpose of showing the connection of the defendant with the college. It tended to show the business the defendant was engaged in, and the intent and purpose he had in removing dead bodies. It tended to prove the intent of the defendant in removing the body of Amelia Van Fleet from its grave, and that the body was removed for sale and for dissecting purposes. It tended to show that the defendant was in the business of procuring bodies for the Kansas Medical College, for dissecting purposes. It tended to show that the defendant had been in and about the Kansas Medical College prior to .the offense charged in this case, and that he was paid for his services, sometimes "in cash and sometimes by orders. The evidence complained of was properly admitted for the purpose of show ing the connection of the appellant with the Kansas Medical College, and for the purpose of showing the intent with which the acts done by the appellant were done.” (p. 116.)
Now, the circumstances surrounding the deaths of Woody, Ringer and Gutschall, so similar in their dominant aspects, tended strongly to show that the murderer of one of these victims was the murderer of all three. The extended inquiry made into the details of the three crimes was bound to aid materially in disclosing the identity of their common perpetrator. Under the principle so often declared in the above quoted precedents of our own jurisdiction, the evidence touching the similar disappearances of Ringer and Gutschall, King’s possession of their property upon their respective disappearances, his statements touching their disappearances, his statements explaining how he came to possess their effects, and the facts of the exhumation and discovery of their remains on premises that were or had been in his control, were competent and admissible to prove the common identity of the murderer of Woody, Ringer and Gutschall, and to prove his motive and system of possessing himself of other men’s property — by taking their lives and concealing their bodies to accomplish that object. Being well assured that this evidence was competent under Kansas law, we shall not greatly extend this inquiry to see how harmoniously it accords with the law of evidence in other jurisdictions, but the following may be noted:
In State v. Phelps, 5 S. D. 480, one Frank B. Phelps was convicted of the murder of one Mot Matson. Phelps had induced one Henry Shroeder to shoot Matson. Evidence tending to show the commission of other crimes by Phelps was narrated by Shroeder. Part of the opinion reads:
“The witness Henry Shroeder, who testified that he fired the fatal shot, was permitted to testify fully eoneerning his relations with the accused, and to detail all conversations between himself and the defendant relating to the Matsons, including statements by the defendant that he had shot and killed persons on different occasions, giving particulars as to time, place and circumstances, and that no effort was made to prosecute him therefor, and that, if he (Shroeder) would kill the Matsons, no one would suspicion him, and that nothing would be done about it. He further testified that, about the time the defendant was attempting to induce him by the promise of reward, and by the force of threats, to kill the Matsons, he also advised him to steal for his own use a span of horses, from a herd that was running at large in the neighborhood, and to bring them onto the island; and the defendant assured him that the horses would never be discovered, and that everything would be all right. We think this evidence was competent to show the sue cessive steps taken by the defendant to place the witness in an attitude that would seal his lips — put him under the influence and control of the defendant, and thus enable him, through the agency of the witness to carry out the scheme which resulted in the murder for which the defendant was placed upon his trial. . . .
“To attempt to quote all or any considerable part of the testimony of this witness, which is at great length, would needlessly extend this opinion beyond reasonable limits, and we will dismiss the subject with the observation that the numerous objections of learned counsel to the various questions put to this witness were properly overruled by the court, and the evidence was submitted to the jury, under suitable instructions as to the manner of weighing and determining the value of the same.” (pp. 487, 489.)
(See, also, cases cited in Abbott’s Trial Brief, Criminal Causes, 2d ed., 519.)
In People v. Grutz, 212 N. Y. 72, 56 L. R. A., n. s., 229, 230, 231, which was an arson case in which evidence of other similar crimes by the accused was ruled out, Werner, J., who had written the majority opinion in the Molineux case, said:
“It is one of the distinguishing features of our common-law system of jurisprudence that, as a general rule, a person who is on trial charged with a particular crime may not be shown to be guilty thereof by evidence showing that he has committed other crimes'. . . .
“. . . There are, however, certain recognized exceptions to this general rule which cannot be scientifically classified or enumerated, but which by common consent have long been grouped under five or six separate heads. Evidence of other crimes is, of course, always admissible when such evidence tends directly to establish the particular crime; and evidence of other crimes is usually competent to prove the specific crime when it tends to establish (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, (5) the identity of the person charged with the commission of the crime on trial.” (pp. 76, 77.)
(See, also, extended note to the case of People v. Molineux, [N. Y.] 62 L. R. A. 193; and note in 43 L. R. A., n. s., 776; 16 C. J. 586, 600; 14 Cent. Dig., Crim. Law, §§ 822-846; 6 Dec. Dig., Crim. Law, §§ 369-372.)
Some English cases are in point: In The Queen v. Mary Ann Geering, 18 Law J. Rep., n. s., (M. C.) 215, the headnote reads:
“On an indictment against a prisoner for the murder of her husband by arsenic, in September 1848, evidence was tendered on behalf of the prosecution of arsenic having been taken by the prisoner’s two sons, one of whom died in December and the other in March subsequently, and also by a third son who took arsenic in April following, but did not die. Proof was given of a similarity of symptoms in the four cases. Evidence was also tendered that the prisoner lived in the same house with her husband and sons, and that she prepared their tea, cooked their victuals and distributed them to the four parties — Held, that this evidence was admissible for the purpose of proving, first, that .the deceased husband actually died of arsenic; secondly, that his death was not accidental;-and that it was not inadmissible by reason of its tendency to prove or create a suspicion of a subsequent felony.”
The opinion reads:
“Pollock, C. B. — I am of opinion that evidence is receivable that the death of the three sons proceeded from the same cause, namely, arsenic. The tendency of such evidence is to prove and to confirm the proof already given, that the death of the husband, whether felonious or not, was occasioned by arsenic. In this view of the case, I think it wholly immaterial whether the deaths of the sons took place before or after the death of the husband. The domestic history of the family during the period that the four deaths occurred is also receivable in evidence, to show that during that time arsenic had been taken by four members of it, with a view to enable the jury to determine as to whether such taking was accidental or not. The evidence is not inadmissible bjr reason of its having a tendency to prove or to create a suspicion of a subsequent felony. My Brother Alderson concurs with me in thinking that the evidence ought to be received.
“The prisoner was convicted.” (p. 216.)
In Reg. v. Banks, 12 Cox C. C. (1873), 400, where a defendant was charged with the murder of her stepchild by poison, to meet the defense of accidental poisoning evidence was held admissible to show that two other children of the defendant and a lodger in her house had died from poisoning.
Makin v. Attorney-general, Law Reports, H. L. App. Cas. (1894), 57, was a review of a case in which Makin and wife had been convicted of the murder of a child in New South Wales. Evidence had been introduced which tended to show that the defendants had been guilty of murdering several other children. It was shown that during the month of October, 1891, the bodies of two children were found on premises in McDonaldtown. On November 1 and 3 the bodies of four children were found on the same premises. On November 9, the remains of four children were found- on premises in Redfern, and on November 12, remains of two children were found on premises in Chippendale. It was shown that all these premises in McDonaldtown, Redfern, and Chippendale at one time or another had been in the possession of the defendants. The theory of the prosecution was that the defendants had been engaged in receiving children for parents or other kindred who desired to be rid of them and that they disposed of such children by murdering them and burying the bodies of the victims. . The fact was shown that some such children, other than the one for whose murder the defendants were on trial, had been so received by defendants and that such children had mysteriously disappeared. The prosecutors contended:
“Evidence was therefore admissible to support this inference by the recurrence of the unusual phenomena of bodies of babies having been buried in an unexplained manner in a similar part of premises previously occupied by the prisoners. ... It was the general and not the exceptional rule of law to admit such evidence to rebut defense of accident, and to show existence of motive and a systematic course of conduct. . . . That any evidence is admissible of any acts or doings of the person accused if such acts or doings are so connected' with the transaction under charge or are of a character so similar thereto as to lead to a reasonable inference that the prisoner committed the act charged, or at the least that such act if committed was willful and not accidental.” (p. 63.)
The court said:
“Under these circumstances their Lordships cannot see that it was irrelevant to the issue to be tried by the jury that several other infants had been received from their mothers on like representations, and upon payment of a sum inadequate for the support of the child for more than a very limited period, or that the bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners.” (p. 68.)
The mere remoteness in point of time between the prior murder of Ringer and the subsequent- murder of Gutschall did not render the evidence touching these homicides inadmissible. (The State v. Ridgway, supra;. The State v. Lowe, supra; State v. Kent, 5 N. D. 516, 27 L. R. A. 686; State v. Pancoast, [N. D.] 35 L. R. A. 518; Russell v. The State, 11 Tex. App. 288; 16 C. J. 602.)
But it is urged that our own cases (The State v. Boyland, 24 Kan. 186; The State v. Kirby, 62 Kan. 436, 63 Pac. 752; The State v. Wheeler, 89 Kan. 160, 130 Pac. 656; The State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853; The State v. Sweet, 101 Kan. 746, 755, 168 Pac. 1112) all recognize the rule that evidence of subsequent offenses is not admissible, which rule, if pertinent here, would exclude all evidence touching the murder of Gutschall in 1913. The answer to that contention is that if the circumstances surrounding the death of Gutschall had no value in determining the identity of the murderer of Woody, they would be altogether inadmissible under the Boyland case and its succeeding precedents — and under all the rules of evidence as well, whether the killing of Gutschall and its incidents occurred before or after the death of Woody; but since these facts (and those pertaining to the death of Ringer as well) were so similar in character, in apparent motive, in common purpose, and in obvious results, that they very persuasively disclosed that Gutschall, Ringer and Woody must have died by violence by a common hand, perpetrated substantially in a common manner,'such facts were admissible whether they transpired before or after the homicide involved in Woody’s death. Such facts were highly probative in ascertaining the identity of the slayer of Woody, and they were therefore admissible. (The State v. Stone, 74 Kan. 189, 85 Pac. 808; The State v. Hibbard, 76 Kan. 376, 92 Pac. 304; The State v. Brown, 85 Kan. 418, 116 Pac. 508; State v. Reineke, 89 Ohio St. 390, 53 L. R. A., n. s., 138; Melton v. State, 63 Tex. Crim. Rep. 362, 140 S. W. 23; Makin v. Attorney-general, supra; The Queen v. Mary Ann Geering, supra; 16 C. J. 600, 602.)
The trial court properly limited the significance to be attached to the evidence pertaining to the murders of Ringer and Gutschall and the possession of their property by the defendant. The instructions read:
“(8) Evidence has been admitted in this of the finding of part of a skeleton on August 5th, 1919, and also of - a skeleton on August 14th, 1919, at Maple Hill, Kansas, and also evidence tending to show that Rufus King was in possession of certain property formerly owned by Reuben Gutschall and W. E. Ringer; this evidence was only permitted for the purpose of identifying, if possible, who it was that killed John A. Woody, if you find from the evidence that he has been killed in the manner and at the time and place set out in the information, and you are instructed to consider it for no other purpose.
“(9) You are further instructed, Gentlemen of the Jury, that the defendant is not on trial for the killing of W. E. Ringer or Reuben Gutschall, but is only being tried for the felonious killing of John A. Woody.”
Complaint is made because of the trial court’s refusal to instruct the jury that the fact that Woody had been absent and unaccounted for since April, 1909, would not warrant a finding that Woody was dead. Such instruction would hardly have been pertinent. The state made no attempt to establish the death of Woody by the mere legal presumption of his death arising from his unexplained absence from home and kindred for a long period of years, unheard from by those likely to receive tidings from him if he were alive. On the contrary the state’s case was consistently prosecuted on the theory that Woody was slain and buried in the livery barn lot by' defendant in 1909 at the time when the young man disappeared and when defendant became possessed of his property. That, too, was the state’s consistent theory in all its evidence touching Ringer in 1906 and Gutschall in 1913. Here there would have been no pur pose to serve, no point to be made, by giving the requested instruction.
The corpus delicti was well established in the case on trial. Indeed it was equally well established as to Ringer and Gutschall. (The State v. Winner, 17 Kan. 298; Wilson v. United States, supra. See, also, Chief Justice Shaw’s charge to the jury, in Trial of Prof. Webster, [Cockcroft & Co., N. Y., 1879] 548, 556 et seq.) We say this, regardless of the testimony given at the trial, and regardless of the largely cumulative evidence given in support of the motion for a new trial, which was offered to show that Gutschall had been seen alive as late as 1918 in St. Joseph, Mo., and that Woody had been seen alive near Topeka and also in Rossville in 1910, in Corning, Iowa, in 1910 and 1911, and in Los Angeles in 1920. In view of the overwhelming mass and character of the evidence tending to prove the corpus delicti and the guilt of defendant, we do not marvel that the jury gave no credence to the testimony offered to show that Woody was seen alive after April, 1909, or that Gutschall was seen alive later than December, 1913; or that the trial court similarly discredited the showing to the same general effect which was offered in support of the motion for a new trial.
And here, to keep the scope of this opinion within reasonable limits, we ought to stop. We have not attempted to narrate all the incidents of evidence offered by the state nor the testimony submitted on defendant’s behalf. That would serve no purpose in this appeal. The determination of the facts was the function of the jury, not ours; but aside from the one perplexing circumstance of the existence of Gutschall’s bones in a sack in defendant’s shed, and that defendant by letter from Colorado authorized an acquaintance in Maple Hill to sell all the contents of the shed to a junk dealer — a thing it seems incredible that he would have done if he knew or remembered that the sack with its gruesome contents was among the chattels of that shed — all the credible evidence was consistent with defendant’s guilt and practically none of it persuasively consistent with his innocence.. In a homicide case where the guilt of the defendant was far less clear and which contained circumstances much more perplexing than the single incident narrated above, this court said:
“Singular, mysterious and inscrutable as was the killing of the deceased by the defendant, as found by the jury in this case, yet, the jury upon sufficient evidence having found the act of killing to have been done by the defendant, and no justification therefor having been shown, and no error of law appearing in the record, the conviction must stand.” (The State v. Dull, 67 Kan. 793, 800, 74 Pac. 235.)
In the brief of defendant and in the oral argument of his counsel, it has been strongly contended that the defendant did not get a fair trial, that the notoriety of the incidents touching the discovery of the remains of Woody, Ringer, and Gutschall so inflamed the public mind that even the change of venue from Wabaunsee county to Osage county which was granted by the trial court did not and could not relieve the defendant of that handicap, that the parading of the skeletons of the three victims before the jury severely prejudiced him, and that notwithstanding the court’s instructions that the defendant was only on trial for the killing of Woody and not for the killing of Ringer and Gutschall, the length and detail of the testimony touching the deaths of the latter and defendant’s entanglement therewith was bound to confuse the jury and prevent their dispassionate consideration of the cause for which alone he was on trial. These are circumstances which the trial court could better consider than we can. This court is bound by the record and that record does not disclose reversible error in any of these respects. Since the evidence complained of, shocking, gruesome, and ghastly as it was, was competent, the fact that it prejudiced defendant before the jury was an unavoidable consequence. No matter how damaging to a defendant the admission of competent evidence may be, its admission and the consequences of its admission do not justify a disturbance of the judgment, nor deprive the defendant of a fair trial as guaranteed by law. (The State v. Klusmier, 69 Kan. 760, 77 Pac. 550.)
The judgment is afñrmed. | [
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Per Curiam:
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Schroeder, J.
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The opinion of the court was delivered by
Prager, J.:
This is an action filed by the administratrix and heirs of Louis J. Fugit seeking to recover damages for conscious pain and suffering and for wrongful death allegedly caused by the negligence of the defendants-appellees, United Beechcraft, Inc., and Jack Creamer. The trial court sustained the defendants’ motion for summary judgment on the grounds that United Beechcraft was a statutory employer of Fugit under the Kansas workmen’s compensation act and therefore the plaintiffs’ exclusive remedy was under that act. The sole issue to be determined on the appeal is whether as a matter of law the decedent Louis J. Fugit was a statutory employee of United Beechcraft and there fore Fugit’s administratrix and heirs were barred from bringing this action at common law.
After the case was filed extensive discovery conducted by the parties brought to light certain undisputed facts which the district court used as a basis for granting summary judgment. Essentially the facts in the case are as follows: Beech Aircraft Corporation is a manufacturer of aircraft located at Mid-Continent Airport in Wichita. United Beechcraft, Inc., is a subsidiary corporation of Beech Aircraft and its primary operations are concerned with the sale, service, and maintenance of Beech aircraft. It is described in the record as a “fixed base operator.” United Beechcraft does repair work including the total rebuilding of aircraft. It gives flight instruction and, in addition, does modification work on old aircraft to make them more airworthy and in compliance with the standards of the Federal Aviation Agency.
In early 1972 United Beechcraft entered into a written contract with Beech Aircraft to develop a kit for modification of T-34 aircraft. This modification consisted of replacing the original engine and propeller. Under the contract Beech agreed to furnish the airplane, engine, and propeller and to make available blueprints of the T-34. United Beechcraft agreed to provide “all Engineering and development, including necessary drawings, dynamic tests, structural tests, flight tests, analysis, reports and manuals as required to meet Beech level of quality and reliability, and to obtain FAA . . . approval.” United Beechcraft contracted to complete the design, manufacture the set of kit parts, modify the one airplane by installing the kit, and run the various tests mentioned above. United Beechcraft did not have engineers employed to perform the necessary engineering work or flight testing under its contract with Beech. United Beechcraft therefore entered into a subcontract with Product Development Group by which Product Development Group became responsible for the engineering design work for the installation of the new engine, for the preparation of paperwork necessary for FAA approval of the airplane, and for the various tests mentioned above. United Beechcraft remained responsible to perform the actual mechanical work and the installation of parts. The decedent, Louis J. Fugit, was an engineer employed by Product Development Group. Among other duties it was his responsibility to conduct flight tests of the modified T-34 aircraft in order to check out the plane for FAA certification. On July 19, 1972, Fugit participated in a flight test of the T-34. The pilot was defendant, Jack Creamer, an employee of United Beechcraft. During the course of the flight Fugit suffered a heart attack and died shortly after the plane landed. Following Fugit’s death this common-law action was brought on the theory that Fugit’s death was the result of the negligence of Jack Creamer, acting in the course of his employment with United Beechcraft.
The undisputed evidence shows that modification of aircraft, including flight testing, has been a part of the work which has been carried out by United Beechcraft over the years. Gomer W. Jones, President of Product Development Group, testified that his company had been involved as a subcontractor in contracts with United Beechcraft involving modifications of existing aircraft more than twenty times since 1961. It is clear from the deposition testimony presented to the trial court that while modification work has not been a primary or major part of the business of United Beechcraft, it is a type of work performed from time to time as a part of United Beechcraft’s trade or business.
K.S.A. 44-501, commonly referred to as the exclusive remedy provision of the workmen’s compensation act, provides that no employer or other employee of such employer shall be liable for any injury for which compensation is recoverable under the workmen’s compensation act. Under this statute the well established rule is that if a workman can recover benefits from an employer under the workmen’s compensation act for an injury, he cannot maintain a common-law. action against that employer for damages based on a theory of negligence. (Fritzson v. City of Manhattan, 215 Kan. 810, 528 P. 2d 1193; Anderson v. Beardmore, 210 Kan. 343, 502 P. 2d 799.) This exclusive remedy provision also bars a common-law action against another employee of such an employer. (Anderson v. Beardmore, supra.)
K.S.A. 44-503 (a) is the section of the Kansas workmen’s compensation act which extends the application of the act to certain contractors who are not the immediate employers of injured workmen. 44-503 (a) provides in pertinent part as follows:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he had contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; . . .”
It has been stated that the principal purpose of 44-503 (a) is:
“. . . to give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.” (Hoffman v. Cudahy Packing Co., 161 Kan. 345, Syl. 4, 167 P. 2d 613.)
In Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P. 2d 900, we recently stated the tests to be applied in determining whether work covered by a subcontract is a part of the principal contractor’s trade or business. They are as follows:
“. . . (1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employee’s sole remedy against the principal is under the Workmen’s Compensation Act.” (Syl. 2.)
See also, Hanna v. CRA, Inc., 196 Kan. 156, 409 P. 2d 786.
Applying these primary tests to the undisputed facts in this case it is clear that the district court was correct in finding that the modification work contracted to be performed for Beech Aircraft by United Beechcraft was an integral part of the latter’s trade or business. K.S.A. 44-503 (a) does not require the work undertaken to be the primary work of the principal contractor. It is sufficient if such work is a part of the overall operations of the principal contractor. A principal contractor may engage in several types of business activity, any one of which may constitute an integral part of its trade or business. Furthermore, it is important in this case to note that the flight test being performed by Louis J. Fugit at the time of his death was work which United Beechcraft had specifically contracted to perform on behalf of Beech Aircraft Corporation. It is undisputed that United Beechcraft has been engaged in modification of aircraft for Beech Aircraft over a period of at least ten years. Furthermore there was undisputed testimony from both United Beecheraft and Product Development Group employees that the engineering and FAA certification work being done by Product Development Group was a necessary part of the work to modify the T-34 aircraft. It must be concluded on the basis of these undisputed factual circumstances that Louis J. Fugit was a statutory employee of United Beech-craft, Inc., under the provisions of 44-503 (a).
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The opinion of the court was delivered by
Kaul, J.;
This is an action for injunctive relief brought by Eastern Distributing Co., Inc., plaintiff-appellee (hereafter re ferred to as Eastern or plaintiff), a wholesale liquor distributor, against one of its former route salesmen, Terry A. Flynn, defendant-appellant, to enforce certain antidisclosure and anticompetition covenants contained in a written contract of employment executed by the parties. Trial was to the court at the conclusion of which defendant was enjoined for one year after April 29, 1976, from disclosing the list of Eastern’s customers or any information relative thereto, and from engaging in a route salesman position or any such similar position for any competitor of Eastern in the counties of Atchison, Douglas, Leavenworth and Wyandotte, for the same one-year period.
Previous to his employment under the contract here in question, defendant had worked for Eastern as an office employee. In 1969 defendant left Eastern for a job with Hiram Walker Distilling Company. After two and one-half years with Hiram Walker defendant sought reemployment with Eastern as a route salesman. After negotiations with Gene Baird, president of Eastern, an agreement was reached and the contract in question was submitted to defendant. After consulting with his attorney, defendant signed the contract. Defendant was assigned certain territory and customers who had been serviced by another Eastern salesman who accompanied defendant on the route for a week.
Early in 1976 defendant became dissatisfied with his employment. He sent out numerous ré'sume's and interviewed for jobs in and out of the liquor industry, within and without the Kansas City area. On April 29,1976, he left Eastern and took a position as a route salesman with Grant-Billingsley, a liquor distributor and competitor ^>f Eastern. Defendant immediately began to service the same customers which he had previously served for Eastern. This litigation was then initiated by Eastern.
The contract recited in detail the duties and benefits of the employee, the various terms of employment, and set out the mutual obligations of the parties. Concerning the employer’s interest the contract reads:
“WHEREAS, the employer has a substantial investment in the employee by way of training, maintenance of sales proficiency, sales aids and information; and
“WHEREAS, the employee represents the employer and by virtue of his sales position has been designated as official representative to the retailers and customers in his area for employer and the resultant personal contact with customers has established a valuable asset for the employer through the employee, which valuable personal relationship will be, or has been, established over a long period of time during which the employee has received compensation from the employer; and
“WHEREAS, the employer feels that this asset developed over a period of time at the expense of the employer should belong to and be the sole property of the employers. . . .”
The covenants, which are the crux of this litigation, are contained in paragraphs six and seven of the contract and read as follows:
“6. Disclosure of Information. The employee recognizes and acknowledges that the list of the employer’s customers, and the personal relationship established with them, as it may exist from time to time, are valuable, special, and unique assets of the employer’s business. The employee will not, during or after his employment, solicit or disclose the list of the employer’s customers or any part thereof to any person, firm, corporation, association or other entity for any reason or purpose whatsoever. In the event of a breach or threatened breach by the employee of the provisions of this paragraph, the employer shall be entitled to an injunction restraining the employee from disclosing, in whole or in part, the list of the employer’s customers, or from rendering any services to any person, firm, corporation, association, or other entity to whom such list has been disclosed, whole or in part, directly or indirectly, or is threatened to be so disclosed. Nothing herein contained shall be construed as prohibiting the employer from pursuing any other remedies available to the employer for such breach of threatened breach, including recovery of damages from the employee.
“7. Restrictive Covenant. For a period of one (1) year after any termination of employment under this agreement, (except if employment is terminated by employer under paragraph (a) of Section 2. of this agreement), the employee will not, within a radius of fifty (50) miles from the boundaries of any sales territory designated for the employee and serviced by the employee within one year preceding such termination, directly or indirectly, own, operate, manage, control, be employed by, participate in, or be connected in any manner with the ownership, operation, management, or control of any business in this State, similar to the type of business conducted by the employer at the time of the termination of employment under this agreement, and that he will not either, directly or indirectly, on his own account or in the service of others, engage in the sale, distribution, or promotion of the sale of products of the same or similar type which he has been selling, distributing, and promotion [sic] for sale for the employer within a radius of fifty (50) miles from the boundaries of the sales territory designated for the employee and serviced by the employee within one year preceding termination hereunder. It is understood that in the event of any breach or threatened breach of the provision of this paragraph, the employer may assert his rights hereunder by enjoining activities of the employee in breach or threatened breach hereof, or by an action for damages or by both, and that nothing contained herein shall be construed as prohibiting the employer from pursuing any other remedy available to the employer for any such breach or threated (sic) breach of the provisions of this paragraph.”
After hearing the evidence, which consisted primarily of the testimony of defendant and Mr. Baird, president of Eastern, the trial court made extensive findings of fact and conclusions of law. The court found the facts to be generally as recited herein. In findings number nine and ten the court specifically found:
“9. The business of plaintiff involves no secret list or information on retail establishments. Prices are controlled and no monetarily valued services can be performed by a wholesaler for a retailer. No advertising is allowed and sales are by cash.
“10. Plaintiff’s projected loss if the restrictions are not enforced amounted to $30,000 gross profit. Net loss was not determined.”
The trial court’s conclusions of law read as follows:
“1. Jurisdiction and venue are proper.
“2. The contract negotiated between the parties with advice of counsel is mutually enforceable and there is mutuality of obligation. It likewise is to be strictly construed against the employer as set forth in the Lovelace case, 208 Ks. 538, being an employment contract. Contracts should also be enforced if freely and voluntarily entered into with full knowledge, with the presumption favoring legality. ‘Reasonableness’ the criteria.
“3. The Court concludes that a wholesale liquor dealer, having little or nothing to set him apart from any other — because of State regulation and public knowledge — must build his reputation through personal contacts by his route salesmen. Though retail store ownership is readily available among the industry, the location of the owners, their other employment, hours of availability, and peculiarities, vis-a-vis the store manager and operator, would constitute information obtainable by a competitor but not without difficulty. This knowledge, developed over a period of years, is what plaintiff bargained for and is entitled to protect.
“4. The one-year restriction the Court does not find unreasonable, hence we look to the territory and employment restriction included. The Court concludes, under the Foltz decision 168 Ks. 714, that the territory and future employment conditions are unreasonable and not reasonably necessary to afford plaintiff protection. Under the Court’s equitable powers, this area is reduced to the counties of Atchison, Douglas, Leavenworth and Wyandotte, and further reduced to only include sales activities of a similar vein. Johnson county is not included for the reason that the testimony reflected defendant’s only contacts there came from emergency situations. The Court finds no violation of public policy.
“The above conclusions are not reached without due emphasis being given to the role of stare decisis in our law, and its need. In the Court’s mind, the distinguishing characteristics from the Lovelace case are:
“A. There was mutuality of obligations, the plaintiff paying one-third of a year’s salary upon termination.
“B. The one-year restriction was not unreasonable.
“G. The bargaining between the parties prior to defendant’s employment by plaintiff was done under advice of counsel, with defendant being familiar with plaintiff’s operation and policies from his earlier two year employment.
“D. Defendant’s current employer had not, except to a slight extent, competed with plaintiff in defendant’s sales territory prior hereto. This relates to my conclusion paragraph 3.
“E. Defendant’s offers of other employment, during his commission increase negotiations with plaintiff, and his seeking of counsel prior to accepting employment by plaintiff’s competitor within the same territory indicates to the Court that this move was done fully understanding its possible consequences.”
On a motion to amend findings and conclusions, the trial court clarified its conclusion number four with respect to time limitation on disclosure of information provided for in paragraph six of the contract. On the motion to amend, the court ruled:
“1(d). The Court considered defendant’s contract and, in particular paragraph 6 (Disclosure), to fall within the one-year restriction of paragraph 7. This follows previous guidelines set forth by the Supreme Court that a contract must be interpreted as a whole.”
In other words, the trial court’s limitation of one year was applied to paragraph six as a result of construing the contract as a whole and in particular with regard to the one-year limitation provided for in paragraph seven, rather than on the premise paragraph six was unreasonable in that a definite time limitation was not provided. As to the area restriction, the court found the fifty-mile radius provision to be unnecessary for the reasonable protection of plaintiff’s interest and reduced the restricted territory to what was substantially the area which encompassed customers served by defendant when employed by plaintiff.
Before considering specific points raised by defendant on appeal, we should review some general principles which this court has recognized in previous decisions dealing with covenants not to compete in agreements of various types. It has become well-established that a noncompetition clause is valid if it is ancillary to any lawful contract, but it is subject to the test of reasonableness of the covenant and whether it is inimical to the public welfare. (H & R Block, Inc. v. Lovelace, 208 Kan. 538, 493 P.2d 205; Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133; and John Lucas & Co. v. Evans, 141 Kan. 57, 40 P.2d 359.) With respect to time and space provisions in such covenants we adopted what was denominated the doctrine of reasonableness in Foltz and explained that the real test is never whether there is any restraint, but always whether the restraint is reasonable under the facts and circumstances of the particular case. In Lovelace we noted that in determining the reasonableness of a restrictive covenant a distinction is sometimes made between covenants incident to an employment contract, such as that at bar, and those ancillary to a sale or other transfer of a business or property. We cited reasons for the distinction enumerated in Arthur Murray Dance Studios of Cleveland, Inc., v. Witter, 62 Ohio Law Abstract 17, 105 N.E.2d 685, and concluded that the distinction should be made. It is obvious from the findings and conclusions of the trial court herein that it was fully aware of, and had carefully analyzed, our opinions in Foltz and Lovelace. In conclusion number two the trial court recognized the principles laid down in Lovelace that a contract if freely and voluntarily entered into with full knowledge should be enforced with a presumption favoring legality and that the test is one of reasonableness. In noting the contract is to be construed strictly against the employer, the court recognized the distinction made in Lovelace as between an employment contract and one for the sale of a business with respect to restrictive covenants.
Finally, it should be observed there is no contention here that the restrictive covenants lack good consideration or are not otherwise incidental to and in support of a lawful contract of employment.
In the first three points specified on appeal, defendant contends the trial court erred in concluding that Eastern had a legitimate interest to protect by enforcement of the covenants. It is well-settled law that the mere desire to prevent ordinary competition does not qualify as a legitimate interest of an employer and a restrictive covenant is unreasonable if the real object is merely to avoid such ordinary competition. (43 A.L.R.2d, Anno., Employee — Restrictive Covenant — Area, § 23[a] and [b], pp. 94, 159-162.) However, it is also a well-recognized principle that “customer contacts” is a legitimate interest to be protected by an employer. On this point the author of the annotation referred to says:
“The most frequent and probably also the most important of the employer’s legitimate interests sought to be protected through the enforcement of a restrictive covenant not to compete is the customer contacts which the employer was able to develop for his business. Protection of this asset against appropriation by an employee is recognized everywhere as an important legitimate interest of the employer.” (p. 117.)
It is clear from the import of the language of the instant contract that “customer contacts” was the principal incident which Eastern intended to protect. This leads to the question whether the evidence is sufficient to support the determination in this regard made by the trial court in conclusion number three.
In a comprehensive treatise, “Employee Agreement Not To Compete,” (73 Harvard Law Review, February 1960, No. 4, p. 625.), Professor Harlan M. Blake writes:
“Courts in most jurisdictions have held that an employer has a sufficient interest in retaining his present customers to support an employee covenant whenever the employee’s relationship with customers is such that there is a substantial risk that he may be able to divert all or part of their business. This is the so-called ‘customer contact’ basis.
“The ‘customer contact’ basis posits a substantial risk of loss of clientele to an employee because of the nature of his work. Whether the risk will be sufficiently great to warrant a restriction, and how broad a restriction will be permitted, depends upon the extent to which the employee is likely to be identified in the customer’s mind with the product or service being sold. The most important factors seem to be (1) the frequency of the employee’s contacts with customers and whether they are the employer’s only relationships with those customers, (2) the locale of the contact, and (3) perhaps most important, the nature of the functions performed by the employee.” (pp. 657-659.)
In exemplifying the three factors, Professor Blake points out that if contacts are infrequent and irregular there may be no sufficient risk to the employer to support any degree of restraint and further that frequency of contact may also affect the permissible period of restraint, the important consideration being that the employer should be given a reasonable period of time in which to overcome the former employee’s personal hold over the customers. With respect to locale of the contact the important factor is whether the contact is made at the employer’s place of business, which involves less risk to the employer, or at the customer’s home or business establishment, which is more likely to direct the customer’s loyalty primarily to the employee and support some degree of restraint. As to the nature of the employee’s activities, Professor Blake says:
“. . . The risk to the employer reaches a maximum in situations in which the employee must work closely with the client or customer over a long period of time, especially when his services are a significant part of the total transaction.” (p. 661.)
It is also generally recognized that the “customer contacts” theory gains added weight where the business is one in which the employee is the sole or primary contact with the customers and in which a close personal relationship with them is fostered, enabling the employee to control such business as a personal asset. (Silver v. Goldberger, 231 Md. 1, 188 A.2d 155; Weber v. Hesse Envelope Company (Tex. Civ. App.) 342 S.W.2d 652; Dunfey Realty Co. v. Enwright, 101 N.H. 195, 138 A.2d 80.)
We have examined cases cited by defendant and find them to be distinguishable or not persuasive when applied to the facts of the instant case. Defendant cites Clark Paper & Mfg. Co. v. Stenacher, 236 N.Y. 312, 140 N.E. 708 [1923], wherein a trial court’s injunction barring a wrapping paper salesman from entering the employment of a competitor of his former employer was reversed. The court held that an ordinary salesman’s contract not to enter a competitor’s employ for eight years was unreasonable in restraint of trade and personal liberty in the absence of evidence of secret or valuable information obtained by him which he might impart. However, the court also rested its decision on the fact that the contract as alleged by the plaintiff employer had not been proved in that the time at which the eight-year period was to commence had never been agreed upon. We find the case of little persuasion in the light of the facts and circumstances at bar.
In Nesko Corporation v. Fontaine, 19 Conn. Supp. 160, 110 A.2d 631, the Court of Common Pleas of Connecticut sustained a demurrer to plaintiff’s complaint and refused to enjoin a salesman (storm doors and windows) on the ground the contract with his former employer covered a territory far in excess of that in which the former employee did business. The Connecticut court, as did the trial court in Lovelace, held the restrictive covenant to be unreasonable as to the defendant, unnecessary to the plaintiff and prejudicial to the public. Such findings were not made by the trial court in the instant case.
In Mathews Paint Co. v. Seaside Paint Co., 148 Cal. App. 2d 168, 306 P.2d 113, the employer appealed from the trial court’s order sustaining a demurrer to the complaint. There is no mention of a contract in the court’s discussion of the allegations of the complaint. Apparently, the theory of the case was tortious interference with plaintiff’s relationship with its customers.
The case at bar comes to this court after a full trial on the merits below. While the ultimate determination whether a legitimate interest subject to protection is shown may be a matter of law, the underlying facts are to be determined by the trial court after hearing the testimony presented. In conclusion of law number three the trial court determined that Eastern had an interest entitled to protection, but the findings of the court leading up to such determination were actually findings of fact based on testimony. There is ample evidence, in particular the testimony of Gene Baird, to support those findings. It has long been a fundamental rule of appellate review that this court is not authorized to redetermine issues of fact that are supported by some evidence. (Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406; Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, 524 P.2d 690; and Sullivan v. Sullivan, 196 Kan. 705, 413 P.2d 988.)
It is true that Eastern’s business is highly regulated by a state agency and that there are no secret customer lists nor other trade secrets involved in defendant’s employment since such matters are of public record. The existence of trade secrets as evidence of enticing customers from a former employer is sometimes relevant, but not essential, to injunctive relief in a suit brought for breach of covenant not to compete. (House of Tools and Engineering, Inc. v. Price, [Mo. App.], 504 S.W.2d 157; All Stainless, Inc. v. Colby, 364 Mass. 773, 308 N.E.2d 481; Bates Chevrolet Corp. v. Haven Chevrolet, 13 App. Div. 2d 27, 213 N.Y.S.2d 577; Prentice v. Rowe, [Mo. App.] 324 S.W.2d 457.)
While the names of customers and their places of business are matters of public record, Baird testified that the hours a licensee is available, and the names and ordering habits of their clerks are not. The evidence disclosed that a salesman’s calls on customers were frequent and regular; that they were made at the customer’s place of business rather than at Eastern’s; and that the salesman was Eastern’s principal, if not its sole, contact with customers. It was undisputed that Grant-Billingsley, with the exception of one customer in Lawrence, had done no business in the territory in question, prior to its employment of defendant. Defendant was hired away from Eastern to continue to serve the same customers he knew while employed by Eastern. There is ample evidence to support the trial court’s findings which, viewed in the light of the foregoing authorities, establishes a legitimate interest subject to protection by a court of equity.
For his second point defendant contends the trial court erred in judicially modifying the restrictive covenants. This issue is resolved by Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133, wherein we held:
“Where the territory designated in a contract, such as that mentioned in the preceding paragraph, is found to be more extensive than necessary to provide reasonable protection against professional encroachment, courts of equity have the power to reduce such territory to the extent reasonably necessary to insure the contemplated protection, to enforce the contract to that extent and to deny enforcement as to the remainder of the territory.
“It is the duty of courts to sustain the legality of contracts in whole or in part when fairly entered into, when reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose.” (Syl. 3 and 5.)
Our holding in Foltz accords with the modern majority rule as to both territorial and time restrictions. (See 61 A.L.R.3d, Anno., Enforceability Of Contract Not To Compete, p. 397; 43 A.L.R.2d, Anno., Employee — Restrictive Covenant — Area, p. 94; and 41 A.L.R.2d, Anno., Employee — Restrictive Covenant — Time, p. 15.)
The rule adopted in Foltz is supported not only by the many cases collected in the annotations referred to, but also by text writers examining the subject. (See 6A Corbin on Contracts, § 1390, pp. 70-78; 23 Connecticut Bar Journal, “A Note on Beit v. Beit, ” by Professor Samuel Williston, pp. 40-42.) The underlying principle espoused by the courts and text writers is that equity should not permit an injustice which might result from total rejection of the covenant merely because the court disagrees with an employer’s judgment as to what restriction is necessary to protect his business.
Defendant’s reliance upon Lovelace in support of his position is misplaced. In his argument, defendant appears to view Lovelace as being in conflict with Foltz. In view of the different procedural posture of the two cases as they reached this court, we see no conflict. In Lovelace the trial court viewed the covenant as one intended to prohibit competition by defendant anywhere, and found that unlimited territory restriction was unnecessary and unjustifiable for plaintiff’s protection. Consequently, the trial court determined the covenant was unenforceable because of unlimited territorial restriction. In Foltz a territorial limitation of one hundred miles from the City of Hutchinson contained in a covenant not to compete ancillary to a contract between two physicians was reduced to a radius of five miles and enforced by the trial court. In rejecting plaintiff’s argument for reversal of the trial court’s decision in Lovelace premised upon the Foltz decision we said:
“. . . Reliance upon this decision is misplaced in that the facts as well as the posture of the ruling upon appeal are distinguishable from those at bar. . . .” (p. 546.)
In further distinguishing the two cases in the Lovelace opinion we said:
". . . [T]he trial court there [in Foltz], applying equitable doctrine, reduced the territorial limitation under the particular facts of the case. The trial court here fin Lovelace\ did not do so and we are not under the circumstances inclined to write a new contract for the parties.” (p. 547.)
As evidenced by conclusion number four the trial court in the instant case fully recognized the characteristics distinguishing it from Lovelace. The Lovelace case does not stand for nonmodification of contracts, nor does it dictate a decision contrary to the trial court’s ruling herein.
It is the duty of courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes for defeating their intended purpose. (Cox v. Cason, 211 Kan. 789, 508 P.2d 499; and Foltz v. Struxness, supra.)
We think the trial court in the exercise of its equitable powers fairly and reasonably reduced the area restriction to only that which was necessary to protect plaintiff’s interest. We find no public policy or public interest involved under the facts and circumstances of this case sufficient to avoid or render unenforceable a reasonable restraint.
In his third point, defendant contends the trial court modified the territorial restriction in an inequitable manner. Defendant cites no authority in support of his contention and we believe it is fully answered by what has been said. The trial court’s modification is in line with what the evidence disclosed to be a restriction reasonably calculated to protect the interest of plaintiff. We find no abuse of discretion in this regard.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Kenneth Amodei was convicted by a jury on three narcotic charges. The resulting sentences were ordered to run concurrently and were as follows: Count I (sale of heroin) not less than two nor more than twenty years; Count II (conspiracy to possess heroin) not less than one nor more than five years; Count III (possession of heroin) not less than two nor more than twenty years. The incident which gave rise to Count I occurred around midnight on January 9, 1974. The incident giving rise to Counts II and III occurred around 10:00 p. m. on January 10, 1974. We will consider Count I separately. It involved a charge of sale of heroin.
Defendant admitted at the trial he had used heroin in the past but was participating in the methadone withdrawal program at Wichita. He further testified he had not sold or offered to sell heroin since he had arrived in Wichita. He became acquainted with Steve Deems through Pam Shirley; both turned out to be undercover agents. Defendant Amodei denied making the sale charged in Count I of the information. He admitted that Deems and Shirley came to his apartment on the night in question (January 9) but testified he left as soon as they arrived. He attended a midnight concert with a friend, Joelyn Schroeder. Ms. Schroeder corroborated his story but it was later stipulated during the trial that the concert was held on January 8, not January 9.
Agents Deems and Shirley testified that on January 9, they went to defendant’s apartment around midnight. Defendant was gone but they waited there for him. When defendant arrived Agent Deems asked if he had any “shooting dope” (heroin). Defendant took a quantity of a drug from a desk, divided it and gave part to Deems. Deems paid him $28.00. Defendant allegedly informed the agents he could furnish more heroin the next day and made arrangements for them to return the following evening.
Defense counsel requested that the court instruct the jury on the defense of entrapment as to the second and third counts (conspiracy to possess and possession of heroin). On appeal he argues that an entrapment instruction should have been given, and the failure of the court to give the instruction should entitle defendant-appellant to a new trial on all counts, including Count I. We do not agree. At the trial defendant denied any participation in the January 9 incident.
In order for defendant to be entitled to an instruction on any particular defense there must be some evidence to support that defense and justify the instruction. Entrapment may arise when defendant’s criminal conduct was induced or solicited by a public officer for the purpose of obtaining evidence to prosecute such person. Such a defense presupposes that defendant engaged in the criminal conduct.
This court has previously considered when such a defense is available. In State v. Farmer, 212 Kan. 163, 510 P. 2d 180, it is held:
“The defense of entrapment is generally not available to a defendant who denies that he committed the offense charged.” (Syl. 4.)
As to Count I (sale of heroin) defendant denied any part in the incident and the record disclosed no competent evidence to justify giving an instruction on entrapment. (See State v. Farmer, supra, and State v. Fitzgibbon, 211 Kan. 553, 557, 507 P. 2d 313.)
Appellant next argues that the trial court erred in denying him the opportunity of presenting evidence to show a lack of previous disposition to commit the crime by excluding testimony of Ms. Schroeder and a Dr. Harvey. Both would have testified concerning his voluntary participation in a methadone withdrawal program and a concentrated effort on his part to rid himself of the heroin habit.
Generally, evidence of prior disposition or lack of prior disposition to commit crimes or other civil wrongs is not admissible to establish a basis for an inference that a person did or did not commit a crime on another specified occasion. See K.S.A. 60-455. However, if the accused introduces evidence to establish the defense of entrapment, as codified in K.S.A. 21-3210, he then raises the issue. The prosecution then may show prior disposition of the accused to commit such crimes. See State v. Reichenberger, 209 Kan. 210, 495 P. 2d 919. Such evidence is relevant only on the question of entrapment. When the defense of entrapment is not available to an accused, evidence of prior disposition to commit crimes of the nature charged is not relevant and it is not error to exclude such evidence. In the present case the defense of entrapment was not available to defendant on Count I of the information and it was not error to exclude the proffered testimony as it related to Count I.
Appellant’s final point bearing on Count I (sale of heroin) concerns the refusal of the trial court to honor his challenge for cause of prospective juror Glen Bryant. Defense counsel’s objection to this particular juror was based on the employment of Bryant in the personnel department of the city. Bryant’s employment required him to investigate the qualifications of those applying for jobs with the city, including police officers. Defense counsel questioned Bryant as to whether he might give special weight to testimony given by police officers. Bryant stated he did not believe a police officer’s testimony was any better than that of anyone else; that a police officer could be mistaken in his testimony; and that he believed an officer would tell the truth and would not intentionally tell a falsehood.
The court refused to excuse Bryant for cause, stating that a juror has a right to begin with the premise that every witness will tell the truth, whether he is a policeman or not. (Even though not removed for cause, Mr. Bryant was removed from the panel by peremptory challenge exercised by the defendant. See State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44.)
K.S.A. 22-3410 provides that a prospective juror may be challenged for reasons set forth in the statute and that challenges for cause shall be tried to the court. The only basis for challenge applicable here appears to be K.S.A. 22-3410 (2) (i) which reads:
“His state of mind with reference to the case or any of the parties is such that the court determines there is a doubt that he can act impartially and without prejudice to the substantial rights of any party.”
Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court, and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of judicial discretion. (State v. Nix, 215 Kan. 880, 529 P. 2d 147; State v. Mahkuk, 220 Kan. 74, 551 P. 2d 869.) The court’s ruling in the present case was not erroneous, and there was no showing sufficient to establish the state of mind contemplated in K.S.A. 22-3410 (2) (i).
The defendant’s conviction on Count I (sale of heroin) is hereby affirmed on appeal.
We now turn to Counts II and III. The incident giving rise to these counts occurred around 10:00 p. m. on January 10, 1974. The two agents went to defendant’s apartment to obtain heroin from the defendant. They were informed by defendant that he had none in his apartment but would try to make arrangements to obtain some for the agents. Defendant Amodei made a telephone call to Ms. Schroeder and then all of those present drove over to her house to pick her up. She gave directions to the driver. The car was parked near an intersection. Ms. Schroeder advised those in the car that she would have to proceed alone and would “go get it”.
Deems testified he gave $30.00 to defendant and defendant gave it to Ms. Schroeder along with $50.00 of his own money. Ms. Schroeder left the car, disappeared around a corner and returned in twenty minutes with a tin foil packet which she handed to defendant. They all returned to defendant’s apartment house and the substance in the foil packet was divided among Agent Deems, Agent Shirley and the defendant Amodei.
Thereafter the agents turned their shares of the substance in to the sheriff’s office. (The substance was introduced in evidence at the trial and identified as heroin.) A warrant was issued for the arrest of Amodei and he turned himself in to the police department on learning of the warrant. The agent who took Amodei into custody testified that Amodei advised him at that time that he (Amodei) was “only trying to help a friend. Do them a favor.”
At the trial defendant testified as to his previous acquaintance with Pam Shirley. He stated that on the evening of January 10, she appeared at his apartment with Steve Deems. Defendant Amodei’s story on the witness stand while being questioned by his attorney was as follows:
“Q. All right. And could you just continue and relate what happened when they arrived up in your apartment?
“A. The night before she did ask me about some LSD and I told her there was nothing I could do for her; and she asked me the same question that night. And I said no, and Steve Deems said to me. He says, ‘Look’. He says, ‘I’m down here from Seattle, Washington,’ he says, ‘I’m on a month vacation. I work up in the lumber yards’. And he says, ‘I’ve been doing a lot of junk’ and he says, ‘If I don’t get a fix in a hurry, I’m going to be hurting for the night.’
“And I knew it was too late to go to the methadone program because it closes at five o’clock and I really felt sorry for him. Because he appeared to be shaking and looked like he was on his way to withdrawal.
“Q. So what did you tell him then?
“A. I told him, I said I would see what I could do for him if he promised me that he would go to the methadone clinic the next day. I told him they had a twenty-one day detox program and he said yes, he would.”
The balance of his testimony pretty well follows the testimony of Agents Deems and Shirley as to the events of the evening of January 10. He testified that it was not until after he had arranged with Ms. Schroeder to make the “buy” for Deems that he decided he would get some heroin for himself. The state offered no evidence of prior convictions to establish that defendant had a predisposition for the possession or sale of drugs.
On appeal defendant-appellant argues that the trial court erred in refusing to give a requested instruction on entrapment as to Counts II and III. This court agrees.
Where some evidence is offered by a defendant in support of the defense of entrapment and a conflict is presented whether the intent to engage in an enterprise involving narcotics originated in the mind of defendant or was instigated by officers or agents of the state, the issue becomes a question for the trier of facts, and an instruction on entrapment should be given on request. (State v. Farmer, supra; State v. Reichenberger, supra, Syl. 1.)
In discussing when the defense of entrapment is available this court in State v. Jordan, 220 Kan. 110, 551 P. 2d 773, stated:
“. . . The defense of entrapment arises when a law enforcement officer, or someone acting on his behalf, generates in the mind of a person who is innocent of any criminal purpose the original intent or idea to commit a crime which he had not contemplated and would not have committed but for the inducement of the law officer. (State v. Hamrick, 206 Kan. 543, 479 P. 2d 854.) A defendant can rely on the defense of entrapment when he is induced to commit a crime which he had no previous intention of committing, but he cannot rely on the defense or obtain an instruction on entrapment when the evidence establishes he had a previous intention of committing the crime and was merely afforded an opportunity by a law officer to complete it. (State v. Wheat, 205 Kan. 439, 469 P. 2d 338.)” (p. 116.)
On examining the present record we believe the defense of entrapment as to Counts II and III should have been available to the defendant. The crimes charged involved conspiracy to possess and possession of heroin. A conflict appears in the evidence as to whether the intent to possess the narcotics originated in the mind of the defendant or was instigated by the agents of the state. It is important to note that defendant was not charged with a sale in either Count II or Count III. At the time of the contact by the agents the defendant did not know of a source of heroin but had to contact a friend, Ms. Schroeder. According to defendant’s version Agent Deems appeared to be suffering and in need of the drug; if true, this would indicate more than a casual solicitation of drugs and ready compliance by defendant. See State v. Bagemehl, 213 Kan. 210, 213, 515 P. 2d 1104.
The points raised by defendant-appellant as to exclusion of the testimony of Ms. Schroeder and Dr. Harvey present different situations when considering Counts II and III. If entrapment is a viable defense an issue is raised which focuses on intent and predisposition of the defendant to commit the offense. (State v. Bagemehl, supra; State v. Jordan, supra.)
The exclusion of testimony of Ms. Schroeder was the result of the following questioning by the defendant’s attorney, Mr. Coke:
“Q. Was it actually correct, as far as you could tell from your conversation and communication with him, that his desire was to get away from heroin and get off the habit?
“MR. SKINNER: Well, your Honor, I think that calls for speculation.
“THE COURT: I think that calls for her to tell us what he’s thinking; and I don’t think she can do that.
“Q. (By Mr. Coke) Did you see any indications at all that Ken ever desired to be a dealer?
“MR. SKINNER, Well, Your Honor, I’m going to object to that, too.
“THE COURT: I’m going to sustain the objection, Mr. Coke.
“MR. COKE, Thank you, Your Honor.”
K.S.A. 60-456 (a) provides,
“If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.”
Under this statute the trial judge is vested with wide discretion. (Osborn v. Lesser, 201 Kan. 45, 47, 439 P. 2d 395; Howard v. Miller, 207 Kan. 246, 252, 485 P. 2d 199; State v. Duncan, 221 Kan. 714, 562 P.2d 84.) When it is not shown the witness had sufficient knowledge on which to base an opinion, the opinion testimony is so conjectural it lacks probative value and may be properly excluded by a trial court. (State v. Duncan, supra, Syl. 6. See also State v. Zimmer, 198 Kan. 479, 502, 426 P.2d 267, cert. den. 389 U.S. 933, 19 L.Ed.2d 286, 88 S.Ct. 298.) Here the witness’ testimony as to defendant’s “desire” would have been too conjectural and the testimony was properly excluded.
However, the proffer of testimony by Dr. Harvey, Medical Director of the Drug Treatment Program of the Sedgwick County Mental Health Department, presents a different picture. Dr. Harvey was a consultant in the department’s methadone program. She testified that on the basis of weekly urine screenings the only indications of heroin usage by defendant prior to January 10, 1974, were on November 29, 1973, and December 12, 1973. She further testified the analysis or urine samples were done in California because Wichita had not approved laboratories for that purpose. She testified these tests on November 29 and December 12 were based on the local analysis and therefore were regarded by them as unreliable. She further testified as to defendant’s participation in the methadone program.
The court excluded the doctor’s proffered testimony because he felt the defendant’s use or nonuse of drugs and his progress in the program did not prove or disprove the charges.
To disprove entrapment the state must show a predisposition to commit the crime, since it was the state who approached defendant and he admitted participation. Contrary to the general rules of evidence, the state may even introduce evidence of prior convictions, criminal activities or previous suspicious conduct to show this predisposition, which may tend to disprove entrapment. (See State v. Reichenberger, supra, p. 218.)
The court was incorrect in its holding that the use or nonuse of drugs was not relevant to predisposition. Defendant’s participation in a methadone withdrawal program and testimony of his supervisor as to tests made on urine samples to determine whether he was using heroin were relevant evidence bearing on predisposition to use and possess heroin. Evidence bearing upon habitual use, or nonuse, of heroin would have probative force. See State v. Faulkner, 220 Kan. 153, 551 P. 2d 1247. When an accused is charged with possession of drugs and has presented a viable defense based on entrapment, evidence of habitual use, or nonuse, of such drugs is relevant on the question of predisposition to possess and should be admitted in evidence.
Although the admissibility of evidence is largely within the trial court’s discretion (State v. Baker, 219 Kan. 854, 549 P. 2d 911), entrapment was a viable defense under the evidence proffered in the present case on Counts II and III. It was error to exclude the testimony of Dr. Harvey bearing on lack of predisposition to use and possess heroin.
Accordingly the judgment and sentence on Count I (sale of heroin) is affirmed and the judgment and sentences on Counts II and III (conspiracy to possess and possession of heroin) are reversed and the case is remanded for a new trial on Counts II and III in accordance with the opinions expressed herein. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Gregory Glymph from convictions of aggravated robbery (K.S.A. 21-3427) and kidnapping (K.S.A. 21-3420). Consecutive sentences of not less than fifteen years to life were imposed.
The issues raised on appeal are whether the ownership of property taken is an essential element of robbery, and whether the court erred in instructing the jury.
The facts are these: On February 12, 1975, after ten o’clock p.m., the defendant and an accomplice entered a Quik-Trip store in Wichita. The defendant went behind the counter, pointed a revolver at the manager, ordered him outside the store, took him around to the rear, caused him to climb the fence, and confined him in a small shed. Meanwhile, the accomplice, unable to open the cash register, ordered a customer to do so, and then ordered the customer to turn his back and proceed to another part of the store. The manager remained in the shed for a very short time. As soon as he ascertained that the defendant had left, he crawled out of the shed. He saw someone — apparently the defendant — running between two houses across the street, and he motioned to a police helicopter which was overhead. The manager then reentered the store and discovered the cash register open and $120 missing. The helicopter pursued the defendant until he was taken into custody by officers on the ground. The revolver, wrapped coins, and a shoe belonging to the defendant were recovered along the line of flight. None of the witnesses observed the actual theft — the taking of money from the cash register.
Defendant first contends that his motions for discharge at the close of the state’s evidence and at the close of all of the evidence should have been sustained because the state failed in an essential element of proof: that the money taken was the property of Quik-Trip, Inc. The simple answer to this argument is that the ownership of the property taken is not an essential element of robbery. Neither the robbery statute, K.S.A. 21-3426, nor the aggravated robbery statute, K.S.A. 21-3427, makes ownership of the property taken an element of the offense.
As we observed in State v. Pierce, et al., 208 Kan. 19, 26, 490 P. 2d 584:
“. . . [T]he violent taking of property from the person of another by force or intimidation . . . constitutes the offense of robbery where the taker has no bona fide claim of title or right to the possession of the particular property. . . .”
This is in accordance with the general rule in other jurisdictions. See 67 Am. Jur. 2d, Robbery, Sec. 14, pp. 38-39; 77 C.J.S., Robbery, Sec. 7, pp. 452-453; and 2 Wharton’s Criminal Law and Procedure, First Edition, Sec. 563.
Defendant next contends that the court erred in instructing the jury that it was not necessary that the taking be done in the immediate view of the store manager. Defendant contends that in order to constitute robbery, the taking must be from the person of the victim or the taking must occur within his sight or hearing. We do not agree.
The general rule is that “presence,” as that word is used in defining robbery, means a possession or control so immediate that violence or intimidation is essential to sunder it. A thing is in the presence of a person with respect to robbery, which is so within his control that he could, if not overcome by violence or prevented by fear, retain his possession of it. 77 C.J.S. Robbery, Sec. 9, p. 455; 67 Am. Jur. 2d, Robbery, Sec. 12, p. 37.
This rule has been applied widely. Courts have found the following situations to constitute a taking from the presence of the victim, even though the victim did not see or hear the taking, and was not in the immediate vicinity at the time the taking occurred: where the victim was forced at gunpoint into a ladies’ room; where the victim was locked in a vault; where the victims were placed in a freezer at a supermarket; where the victim was left tied in one room while the taking occurred in other portions of the building; where the victim ran from the store and was outside during the taking; and where the victim, a gasoline station operator, was forced to drive away in his car and did not observe the taking of money from the cash register. People v. Wilkes, 229 N.Y.S. 2d 793, 16 App. Div. 2d 962 (1962); Fields v. State, 364 P. 2d 723 (Okla. Crim. App. 1961); State v. McDonald, 74 Wash. 2d 141, 443 P.2d 651 (1968); The State v. Calhoun, 72 Iowa 432, 34 N.W. 194 (1887); People v. Moore, 13 Mich. App. 320, 164 N.W. 2d 423 (1968); and Welch v. State, 235 Ga. 243, 219 S.E. 2d 151 (1975).
In the case at hand, the victim was the manager of the store and the only employee present. He was in charge of the business premises; he was responsible for the store and its contents; he was in control of the money in the cash register. When the defendant first accosted the manager behind the counter, there began a continuous series of events which forcibly prevented the manager from protecting the property within his control and which culminated in the robbery. The essence of robbery is that the taking of property from another or from his presence be accomplished by threat of bodily harm or by force. The use of a dangerous weapon or the infliction of bodily harm in the course of a robbery makes the offense aggravated robbery. The facts here shown clearly constitute aggravated robbery.
Finally, the defendant contends that the court erred as a matter of law in instructing the jury as to the elements of the offense of kidnapping. The instruction given parallels PIK Crim. 56.24, tailored to the facts at hand, and the elements were stated substantially in the words of the statute, K.S.A. 21-3420. We have examined the instruction and find no error.
The conviction is affirmed. | [
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Per Curiam:
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from jury verdicts rendered in two cases which were consolidated for trial. The first case was decided in favor of plaintiff Kalman Febert and against the Upland Mutual Insurance Company. Plaintiff in the second case, Tefft &: Donaldson Contractors, Inc., received a verdict against Febert and Upland Mutual. Febert appeals.
The case arose from the following facts. Febert owned rental property located at 2800 Illinois in Topeka. It was insured under a homeowner’s policy issued by Upland Mutual. The policy term was from December 8, 1969, to December 8, 1972. On June 28, 1972, the house, then vacant, was partially destroyed by fire. Upland Mutual adjusted the fire damage. The firm of Tefft & Donaldson was employed to repair the damage, amounting to $7,386.10. On or about August 31, 1972, the contractor began repairs. Approximately two weeks later Febert ordered Tefft & Donaldson to cease work and vacate the premises because he was displeased with the quality of the repairs.
On September 19, 1972, Febert filed suit against Upland Mutual. The petition alleged that Upland Mutual insured plaintiff’s property; that a fire occurred on the property; that Upland Mutual received notice of the damage, agreed to have the house repaired and pay plaintiff $16,000; that Upland Mutual stopped the repairs and refused to pay plaintiff $16,000; that said amount is due and owing; and that plaintiff is entitled to recover that amount plus reasonable attorney fees.
On September 12, 1973, Tefft & Donaldson filed the second lawsuit, seeking to foreclose a mechanic’s lien for all work performed and materials furnished for the repairs on Febert’s property.
Both cases were consolidated and set for jury trial, to commence on September 11, 1974. The trial commenced as scheduled, but a mistrial was declared shortly after the jury had been picked because the parties reached a compromise and settlement. Under the terms of the agreement, Tefft & Donaldson would repair the premises in accord with an itemized statement of work. Upland Mutual would pay for the work, totaling $9,073.97.
Tefft & Donaldson completed repairs on or about December 7, 1974. On that date, Tefft, Donaldson, Febert and a friend of Febert met at the dwelling and toured the premises. Donaldson testified that they went through every room in the house and Febert inspected the work. According to him Febert was happy with the completed repair job and had no complaints about it. At the conclusion of the tour Donaldson gave Febert a release form to sign, indicating Febert’s approval. The release was not signed because Febert wanted to talk to his attorney. Febert left and Donaldson locked the premises.
On January 15, 1975, Tefft & Donaldson’s counsel prepared a journal entry of dismissal and sent it to Febert’s counsel. During oral argument this court was told the journal entry was never signed by Febert’s counsel, who was ill and hospitalized.
During the latter part of January or early February, 1975, the house, which was still vacant, was vandalized. Damage was estimated at $6,000 to $7,000. Three juveniles were later apprehended as the culprits and dealt with in the juvenile court system. At the time of the second damage the journal entry and the release were still unsigned.
The flames of legal controversy, once thought to be extinguished, flared up anew. Tefft & Donaldson sought to have the journal entry settled and approved. The district court denied the motion, set aside the compromise and ordered the matter be set for jury trial.
Prior to trial the court issued a protective order prohibiting the mention of evidence of vandalism in the presence of the jury because it was not an issue in the case. The court further ordered that any amount awarded by the jury to Febert would be paid directly to Tefft & Donaldson, up to the amount the jury might see fit to award the firm for work performed. Any excess would go directly to Febert.
The second trial began on June 10, 1975. The case went to the jury on June 12. The jury returned a verdict in favor of Febert for $9,073.97 and in favor of Tefft & Donaldson for the same amount. Because of the pretrial order, Tefft & Donaldson received the entire jury award.
Motion for a new trial was made and overruled. A timely notice of appeal was filed. On appeal Febert challenges the two pretrial orders entered by the court which apportioned the jury award and prohibited mention of the vandalism.
The trial court properly concluded the issue of vandalism was not present in the lawsuit and should not be mentioned to the jury. Febert’s petition set forth a cause of action against Upland Mutual on the insurance contract for the fire which occurred on June 28, 1972. The petition did not set forth a claim for the vandalism, or facts which constituted a claim, because the vandalism had not yet occurred. The record is devoid of any additional pleadings or amendments which established a claim against Upland Mutual or Tefft & Donaldson for the vandalism. There is no indication Febert attempted to amend the pleadings. Further, there is no showing that the court entered a pretrial order which made the vandalism an issue in the case.
A party is required to set forth facts sufficient to state a claim upon which relief can be granted. (K. S. A. 60-208; Vernon’s K. S. A. Code of Civ. Proc., Authors’ Comments, Sec. 60-208.1, pp. 491-92.) While it is not necessary to spell out a legal theory for relief, it is necessary to apprise an opponent as to the facts which entitle the plaintiff to relief. (Id., Sec. 60-208.2, p. 492.) The advent of the pretrial conference diminished the necessity for such specificity, but because the pleadings control in the absence of a pretrial order (Mountain Iron & Supply Co. v. Branum, 200 Kan. 38, 49, 434 P. 2d 1015), the need for fact pleading is evident. In the instant case the facts pled in the original petition control the scope of the lawsuit.
Evidence must be confined to the issues before the court. (Insurance Co. v. Warbritton, 66 Kan. 93, 71 Pac. 278; Insurance Co. v. Thorp, 48 Kan. 239, 244, 28 Pac. 991.) A trial court has no jurisdiction to hear issues which are not raised by the pleadings or defined at pretrial conference, except new issues raised by evidence to which there is no objection. (Bowen, Administrator v. Lewis, 198 Kan. 605, 612, 426 P. 2d 238; Simonich, Executrix v. Wilt, 197 Kan. 417, 424-25, 417 P. 2d 139.) The trial court was correct in granting the motion in limine. (Lewis v. Buena Vista Mutual Insurance Association, 183 N. W. 2d 198 [Iowa 1971]; Wagner v. Larson, 257 Iowa 1202, 136 N. W. 2d 312 [1965]; Holtorf, Motions to Limit Evidence, 46 Neb. L. Rev. 502 [1966]; Davis, The Motion in Limine — A Neglected Trial Technique, 5 Washburn Law Journal 232 [1966].)
The trial court was also correct in the manner in which it ordered the award to be paid. The code of civil procedure allows a triál court to consolidate actions pending in the same court when they involve common questions of law or fact. In addition, it may make such orders concerning the proceedings as may tend to avoid unnecessary cost or delay. (K. S. A. 60-242.) The trial court consolidated two cases which had a common factual background and the same legal issues. It had the power to adjudicate and resolve the legal rights and obligations between the parties.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is an action commenced by the First National Bank of Hutchinson against C. E. Kaiser on a written contract of guaranty. After a jury trial, judgment was entered in favor of Kaiser. The bank appeals, claiming that it was entitled to judgment as a matter of law.
The guaranty reads in part as follows:
“CONTINUING GUARANTY BETWEEN THE UNDERSIGNED AND THE FIRST NATIONAL BANK OF HUTCHINSON, KANSAS
“Hutchinson, Kansas June 22, 1967
“TO THE FIRST NATIONAL BANK OF HUTCHINSON, KANSAS
“The undersigned hereby request you to give, and continue to give, Robert H. Kaiser and Glenda Kaiser (hereinafter styled the ‘borrower’) from time to time, as you may see fit, financial accommodations and credit, and, in consideration of the sum of one dollar ($1.00), and other valuable considerations, the receipt of which is hereby acknowledged, and of financial accommodations and credit heretofore given or which may hereafter be given by you to said borrower, the undersigned hereby guarantee and promise and agree to make prompt payment to you, as they severally mature ... of all loans made, or which may be made by you to said borrower . . . and of any and all other obligations, of every kind and character, now due or which may hereafter become due from said borrower to you, howsoever created, arising or evidenced, and also of any and all renewals or extensions of any of the foregoing . . .
“When any such . . . loans ... or obligations . . . shall become and remain due and unpaid, the undersigned will, upon demand, pay the amount due thereon.
“These presents constitute a continuing promise and agreement and shall apply to and cover any and all such . . . loans ... or obligations, now or hereafter existing . . . made, discounted or created prior to notice in writing served upon your president, any one of your vice-presidents, your secretary, cashier, or treasurer, that the undersigned will not be liable upon any such overdrafts, loans, discounts or other paper or obligations made, discounted, or created, after the receipt of such notice.
“Before proceeding hereunder against any of the undersigned, resort need not be made by you to collateral security held for said indebtedness, nor need you exhaust your remedy against said borrower . . .
“Limit $9,000.00
Name
Isl C. E. Kaiser
C|. E. Kaiser”
The bank prepared the guaranty on its form and sent it to C. E. Kaiser. He signed it on or about June 22, 1967 and returned it to the bank. The bank loaned $9,000 to Robert H. and Glenda Kaiser on note No. 6762 on August 1, 1967. That note was paid in full September 30, 1968. Thereafter, a separate loan was made by the bank to Robert H. Kaiser on December 18,1968, in the amount of $5,740, by which time Robert and Glenda had been divorced. This later loan was evidenced by note No. 1115 signed by Robert H. Kaiser alone. That note was never fully satisfied. The bank brought suit against Robert, who responded by filing a petition for bankruptcy in the United States District Court for the Eastern District of Oklahoma. The promissory note to the bank was scheduled, and an order of discharge was entered on June 7,1973. Shortly thereafter, on May 21, 1973, this action was filed by the bank against C. E. Kaiser on the guaranty.
The defendant answered, admitted that he executed the written guaranty, but denied that it was intended to be continuing. He alleged that the guaranty was intended only for the purpose of securing a $9,000 loan for the purchase of land by Robert and Glenda Kaiser, which loan was fully paid. Defendant contended that his obligation to the bank was fully satisfied upon payment of the real estate loan. He contended further that the written guaranty was to secure loans to Robert H. Kaiser and Glenda Kaiser and that note No. 1115, signed by Robert only, and not by Glenda, was beyond the scope and coverage of the guaranty.
Both parties moved for summary judgment, both motions were denied, and the case was tried to a jury.
C. E. Kaiser, a resident of Houston, Texas, testified that he was contacted at his office by his brother, Robert, and C. W. Wilcox, a vice president of the bank, regarding his guaranteeing a $9,000 loan to Robert for the purchase of some land. Wilcox told him that his exposure was virtually nil because the land was worth as much as Robert was borrowing. C. E. Kaiser then sent his personal financial statement to his brother to be delivered to the bank. The bank sent him the guaranty to be signed, together with a cover letter explaining what the guaranty was for — to guarantee to the bank the $9,000 real estate loan being made to Robert and his wife. C. E. Kaiser signed the guaranty and returned it to the bank.
C. E. Kaiser testified that he lost the letter of transmittal sent by the bank when it mailed the guaranty to him. An officer of the bank, Forrest Smith, testified that the bank did not have a copy of its cover letter which was written when the bank prepared the guaranty agreement and mailed it to the defendant. Mr. Wilcox testified that the $9,000 limit was placed on the guaranty because that was all that was needed for 40 acres of ground which Robert Kaiser and his wife wanted to buy.
The jury returned a general verdict for the defendant, and answered special questions submitted to it as follows:
“1. Was the guaranty of defendant limited to guaranteeing loans made by the plaintiff to Robert & Glenda Kaiser?
“Answer: Yes
“2. Was the loan, which is the basis of this suit made to Robert & Glenda Kaiser?
“Answer: No
“3. Is Glenda Kaiser indebted to the plaintiff in any way?
“Answer: No
“4. Has the plaintiff been repaid the $9000 guaranteed by this defendant?
“Answer: Yes”
The bank moved for judgment notwithstanding the verdict, and appeals following the overruling of that motion. The bank first contends “that the trial court erred in overruling the plaintiff’s motion for summary judgment because the only genuine issue of fact was whether or not the defendant had limited the guaranty agreement by a collateral document and that the issue could be resolved as a matter of law.” The bank filed supporting affidavits with its motion for summary judgment and the defendant filed an affidavit in opposition. The trial court apparently overlooked or disregarded the affidavits and overruled the motion on the ground that issues were presented by the pleadings. Plaintiff calls our attention to the rule set forth in Ebert v. Mussett, 214 Kan. 62, 519 P. 2d 687, where we said:
“Allegations in pleadings will not sustain a genuine issue of fact when opposed by uncontradicted affidavits supporting a motion for summary judgment.” (Syl. 3.)
Though the trial court erred in the stated reason for its ruling, we believe its ruling was correct. As we said in Kirkpatrick v. Seneca National Bank, 213 Kan. 61, 515 P. 2d 781:
“The judgment of a trial court is to be upheld, if it is correct, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” (Syl. 3.)
Defendant contended that there was an agreement between the parties by which the guaranty was limited to the single real estate loan, and that the bank’s concomitant letter of transmittal set forth that understanding.
Where two instruments are executed by the same parties at or near the same time in the course of the same transaction, and concerning the same subject matter, they will be read and construed together. Amortibanc Investment Co. v. Jehan, 220 Kan. 33, 551 P. 2d 918; Place v. Place, 207 Kan. 734, 486 P. 2d 1354; Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594. And to the same effect, see 17 Am. Jur. 2d, Contracts, sec. 264, p. 670, where it is said:
“. . . [I]f there are any provisions in one instrument limiting . . . the provisions of another, they will be given effect as between the parties ... so that the intent of the parties may be carried out . . .”
The cover letter was lost; neither party located it. The defendant was entitled to attempt to establish the contents of the lost letter pursuant to K.S.A. 60-467. Whether the guaranty was limited by a concurrent agreement of the parties, expressed in plaintiff’s cover letter, was thus an issue of fact which could not be resolved as a matter of law, and thus the trial court properly overruled the bank’s motion for summary judgment.
We are not unmindful of the rule that when a contract is complete, unambiguous and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary the terms of the contract evidenced by the writing is inadmissible. Davenport v. Dickson, 211 Kan. 306, 312, 313, 507 P. 2d 301. As we said in Failing Co. v. Cardwell Investment Co., 190 Kan. 509, 376 P. 2d 892:
". . . The law views with a jaundiced eye any attempt to vary by parol evidence the terms of a written contract. This is particularly true with respect to a written contract of guaranty ... If the language of the contract of guaranty is clear and leaves no doubt as to the parties’ intention concerning the measure of the guarantor’s liability, the guarantor cannot be held liable in excess of the limitations that the contract language imposes. . . .” (pp. 516-517.)
Determining whether a written contract is free from ambiguity is a judicial function. Craig v. Hamilton, 213 Kan. 665, 518 P. 2d 539. In the case at bar, the trial court allowed evidence to be introduced on the issues of whether the guaranty applied to the joint debts of Robert and Glenda, or to the severable debts of Robert alone, and whether the $9,000 limit expressed in the contract of guaranty was a limitation of the guaranty to the real estate loan in that amount. The court thus implicitly ruled that the contract was not free from ambiguity in those respects.
The guaranty designated Robert H. Kaiser and Glenda Kaiser as the “borrower.” A case much cited in the law of guaranty holds that a guaranty covering loans to be made in the future to five persons does not cover future loans made to but four of the five persons named. Hamilton Trust Company v. Shevlin, 141 N.Y.S. 232, 156 App. Div. 307, aff’d 109 N.E. 1077, 215 N.Y. 735. And it is said that the guarantor of obligations of a joint enterprise is not liable except for advancements made jointly to the principals who are named in the instrument. Feinsinger, The Law of Suretyship, sec. 54, p. 65. The rule is set forth in 38 C.J.S., Guaranty, sec. 51, p. 1204 as follows:
“. . . A guaranty of loans to certain persons jointly does not cover loans made to them as individuals.”
The trial court here determined that whether the guaranty was intended to cover loans to the named individuals separately was a question of fact to be determined by the jury. Upon the record before us we cannot say that this was error. Plaintiff’s final point is that the trial court erred in overruling plaintiff’s motion for judgment notwithstanding the verdict because the undisputed evidence showed that the bank was entitled to judgment as a matter of law. We do not agree.
The issues of fact were fully tried, and were resolved by the jury. The evidence was sufficient to support the jury’s answers to the special questions and its general verdict. We find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff appeals from an order sustaining a demurrer to parts of his petition.
Plaintiff was engaged in the operation of a truck line and had in his employ as a driver one Earl J. Stucky. On October 7, 1936, Stucky, while driving his employer’s truck, had a collision with William Johnson, as a result of which both Stucky and Johnson were killed. Kelly’s truck and cargo were destroyed. Kelly and,-„Stucky were under the workmen’s compensation act, and Marcella Stucky, as widow and sole dependent of Stucky, made claim under the act and was awarded compensation and expenses in the total sum of $2,876.50.
Kelly instituted action against the administrator of Johnson’s estate by filing a petition containing three counts or causes of action. In the first cause of action he alleged that Johnson was guilty of negligence causing the collision and consequent loss of the truck and cargo, to his damage in the sum of $3,680.39. In the second cause of action he alleged the facts with reference to the award under the workmen’s compensation act and sought recovery for the amount thereof, and in the third cause he alleged that Stucky at the time of • his death was a young man, married to Marcella Stucky, whom he left as widow and next of kin; that by reason of the wrongful death she was deprived of the benefit of his earnings, which would have been in excess of $10,000 and, except as to the award of compensation, was entitled to recover that sum, and that plaintiff claimed that amount in his own name for and on behalf of the parties entitled, as authorized by the workmen’s compensation act. His prayer was for the total sum of $13,680.39.
Defendant’s demurrer, also covering other grounds, was sustained to the second and third causes of action on the ground plaintiff had failed to state facts sufficient to constitute a cause of action.
Appellant recognizes that this court in Wright v. Smith, 136 Kan. 205, 14 P. 2d 640, 2 J. B. K. 145, after reviewing many of our decisions pertinent thereto, held that a right of action for causing wrongful death is exclusively conferred by G. S. 1935, 60-3203, and not by G. S. 1935, 60-3201, and that such a cause of action does not survive the death of the wrongdoer and cannot be maintained against his administrator. However, he contends, as was recognized in the opinion, that there is authority from other jurisdictions holding such a cause of action does survive, and that we should not extend our previous holding to include the claim of an employer against a negligent third person; that a logical construction of the wrongful-death statute, the survivorship statutes and the workmen’s compensation act taken together, leads to the conclusion an employer is not barred from recovering from the estate of a tort-feasor by reason of his death in the accident out of which the claimed liability arose.
The specific question decided in Wright v. Smith, supra, has not since arisen until in the instant case. Notwithstanding appellant’s contention that the holding in that case is against the weight of authority, we observe that in a note in 2 J. B. K. 145 it is said the decision is in accord with the statute and with the great weight of authority in this country, and in an annotation on “Survival of cause of action for personal injury or death against tort-feasor killed in the same accident,” 70 A. L. R. 1319, it is said:
“It is a general rule that, in the absence of special survival statutes, the death of a tort-feasor or wrongdoer abates an action or right of action against him to recover damages for personal injuries or for death due to his wrongful or negligent act.”
Also, see the annotation on “Survival of action or cause of action , for wrongful death against representative of wrongdoer,” 61 A. L. R. 830. It must be borne in mind that variance in survival statutes has a material bearing on the question, as does the question whether plaintiff seeks to recover for injuries to person or property or for wrongful death.
A reexamination of the general question does not lead us to any different conclusion than was reached in Wright v. Smith, supra, and were the action against Johnson’s administrator to recover for the wrongful death brought by Marcella Stucky, either as administratrix or as next of kin of her deceased husband instead of by the present plaintiff, we should unhesitatingly hold it could not be maintained.
Appellant, however, contends that the workmen’s compensation act extends the employer’s common-law right to reimbursement from the estate of the wrongdoer for the compensation award he was compelled to pay. It may be observed there are no common-law rights involved. Actions for wrongful death could not be maintained at common law. (See Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301; White v. Atchison, T. & S. F. Rly. Co., 125 Kan. 537, 265 Pac. 73; Cudney v. United Power & Light Corp., 142 Kan. 613, 51 P. 2d 28.) Such an action could not be maintained in England until Lord Campbell’s act was enacted in 1846. In Kansas, we have had some statutory provision since 1859. Liability arises from statute and not from common law. And the same thing is true of rights and liabilities under the workmen’s compensation act; they are entirely statutory.
The workmen’s compensation act does not have any provision giving to any employer a cause of action against a wrongdoer for the wrongful death of his employee. Under G. S. 1935, 44-504, it is pro vided that where death for which compensation is payable was caused under circumstances creating a legal liability against some person other than the employer to pay damage, the personal representative of the deceased workman shall have a right to elect whether to take compensation or pursue his remedy against the wrongdoer, and omitting provisions not now material, acceptance of compensation operates as an assignment of any cause of action in tort which the personal representative may have against the wrongdoer, and the employer may enforce such liability in his own name or in the name of the workman and against the wrongdoer for their benefit as their interests may appear. Was it the purpose and intendment of that statute to create a new cause of action, or simply to place the employer in the position occupied by the representative of the deceased workman? Under the workmen’s compensation act in its form prior to 1927, a somewhat different provision existed with respect to the employer’s right to maintain an action against a negligent third person (R. S. 44-504), but in an action in which the force and effect of such delegated right was involved (Maryland Casualty Co. v. Ladd, 121 Kan. 659, 249 Pac. 687), it was said:
“The plaintiff is seeking to enforce the right of action which Branson had. It was given, and had, no greater or different right against Ladd than Branson had. By the substitution permitted under the statute plaintiff became entitled to the rights and remedies possessed by the injured party. Branson’s only right of action was one for damages for a wrongful personal injury. The substitution placed the plaintiff in the shoes of Branson, who was entitled to recover from Ladd not compensation but damages, and in such an action the defendant could make any defense' that would have been open to him if the action for damages had been brought by Branson, including the one that the right of action against him was barred by the statute of limitations. The substitution did not change the nature of the action nor the liability of Ladd.” (p. 662.)
(See, also, 71 C. J. 1552.)
It requires no extended discussion to show that an employer has no cause of action for the wrongful death of his employee under the statute creating that sort of an action (G. S. 1935, 60-3203), and we think it clear that the workmen’s compensation act does not create such a right of action. All that it does is to permit the employer to maintain a cause of action which the personal representative of the deceased workman might have maintained, had not compensation been accepted with resulting legal assignment of any cause of action there may have been against a negligent third person. The employer has no greater rights than the personal representative of the deceased workman. Extensive annotations on rights and remedies arising under workmen’s compensation acts where an employee is injured by the negligence of a third person may be found in 19 A. L. R. 766, 27 A. L. R. 493, 37 A. L. R. 838, 67 A. L. R. 249, 88 A. L. R. 665 and 106 A. L. R. 1040.
In what has been said we have not attempted to distinguish between the attempt to recover the award of compensation as alleged in the second cause of action, and the attempt to recover for the wrongful death as alleged in the third cause of action. We are not convinced by appellant’s argument that because he was compelled to pay compensation to Stucky’s widow that he suffered any injury to his personal estate, and that therefore a cause of action survived the wrongdoer’s death (G. S. 1935, 60-3201). Such a contention presupposes he had a cause of action against the wrongdoer. His only liability to pay compensation arises under the workmen’s compensation act. Under that act the workman might claim compensation from him or he might seek damages, not compensation, from the wrongdoer. When, by virtue of accepting compensation, the workman’s rights passed to the employer, all the employer had was a right to seek damages, and in this case those damages are for wrongful death. It seems apparent that the subject matter of the second cause of action is a part of the third cause, and that if there could be recovery under any circumstances, it would be limited to damages for wrongful death, and out of any recovery the employer would be reimbursed for the compensation paid, the balance, if any, being for the benefit of dependents of the deceased workman. The workmen’s compensation act would seem to contemplate this and the wrongful-death statute would seem to require it. We think the amount sought to be recovered in the second cause of action is part and parcel of that sought to be recovered in the third cause of action.
We conclude that plaintiff is not entitled to maintain an action against the administrator of the deceased Johnson, and that the trial court properly sustained the demurrer to the second and third causes of action of his petition.
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The opinion of the court was delivered by
HutchisoN, J.:
The board of county commissioners of Shawnee county brought this action to enjoin and restrain the county treasurer of Shawnee county from complying with an order of the state tax commission directing him to redistribute a part of a certain mortgage registration fee apportioned and paid to Shawnee county, and also to enjoin and restrain thirty-four boards of county commissioners from instituting or prosecuting any proceeding against the plaintiff board or any of the officers of Shawnee county to enforce compliance with the order of the state tax commission. A copy of the order of the state tax commission was attached to the petition as an exhibit.
Thirty-three of the thirty-four defendant boards of county commissioners filed demurrers to the petition on two grounds: first, that the district court of Shawnee county had no jurisdiction of the subject of the action, viz., to hear and review an administrative orgler of the state tax commission; and second, that the petition did not state facts sufficient to constitute a cause of action. These demurrers were overruled by the trial court, and from that order the thirty-three boards appeal.
The board of county commissioners of Rice county filed a motion to quash the service of summons for the reason that the district court of Shawnee county did not have jurisdiction of the defendant Rice county board and that it could not be sued properly in Shawnee county. This motion was sustained by the trial court, .and from that ruling the plaintiff appeals as cross-appellant.
The Kansas Power and Light Company gave a mortgage to the Harris Trust and Savings Bank, trustee, to secure an indebtedness of $30,000,000 covering property both real and personal situated in several counties of this state, and when presented to the register of deeds of Shawnee county for registration there was paid to the register of deeds of Shawnee county a mortgage registration fee of $75,000, which fee was duly paid over to the county treasurer of Shawnee county, who apportioned and distributed it to the various counties wherein the real estate covered by the mortgage was situated in accordance with the proportionate assessed value of the real property contained in the mortgage as situated in the several counties, which apportionment gave Shawnee county $34,895.25, which was paid by the county treasurer into the general fund of Shawnee county. Five of the defendant counties filed application with-the state tax commission for a determination as to the proper distribution of the mortgage registration fee.
The first point raised by the demurrers to the petition of the plaintiff is that the district court of Shawnee county had no jurisdiction to hear and review an administrative order of the state tax commission. The mortgage registration tax law is outlined and prescribed in article 31 of chapter 79 of the General Statutes of 1935, the first five sections being the ones particularly applicable to the controversy here involved. The last sentence of G. S. 1935, 79-3105, indicates that the finding and order of the state tax commission is final and conclusive, it being as follows:
“Should any contention arise as to the division and distribution of such registration fees, the same shall be referred to the state tax commission, who are hereby authorized and directed to decide the same, which decision shall be final.”
Before the passage of the mortgage registration tax law in 1925 it had already been said in a mandamus action brought by an aggrieved taxpayer against a board of county commissioners to compel compliance with an order of the tax commission that—
“The tax commission is an administrative body, and its decisions in all matters within the scope of its supervisory power, involving administrative judgment and discretion, are conclusive upon subordinate taxing officials. In the exercise of its functions, the tax commission must as a matter of necessity interpret the tax laws, and such interpretations are prima facie binding.” (Robinson v. Jones, 119 Kan. 609, 612, 240 Pac. 957.)
It was also ‘held in the second paragraph of the syllabus in that case that in such an action the county board “may defend on the ground the order was erroneous as a matter of law.”
In the case of Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P. 2d 229, it was held:
“While the state tax commission has supervisory and controlling- power over subordinate taxing officers, the power exercised is administrative, not judicial, and its decision ordering the county to issue a refunding warrant to a taxpayer who had paid an alleged illegal tax under a protest is not conclusive on the courts on questions of' law nor does it prevent the court from rendering a proper judgment on the issues involved in the order.” (Syl. ¶ 1.)
The ease of State, ex rel., v. Davis, 144 Kan. 708, 62 P. 2d 893, was an injunction action, and it was there held:
“An order of the state tax commission that certain property be taken from the assessment roll as exempt may be reviewed in an action brought by the state on the relation of the county attorney.” (Syl.)
In the opinion it was said that apparently the sole question before the tax commission was whether specific property was exempt from taxation under the constitution and laws of the state because of the use that was being made of it and that—
“This necessarily involved the interpretation of the pertinent provisions of our constitution and statutes and their application to the facts agreed upon as shown by the evidence. This is a purely judicial function as distinct from a legislative or administrative one.” (p. 710.)
There can be no question as to the jurisdiction of the trial court in this injunction case if the matter brought before it for consideration involved the interpretation of a law applied and construed by the tax commission. The tax commission regarded the question before it as an interpretation of the mortgage registration tax law as shown by the statement of the matter before it for consideration in the order made by it. After reciting some of the facts of the case before it the order continued with the following sentences:
“These complaining counties claim that the said treasurer, in making such distribution, misinterpreted the statute, and did not distribute to several of the counties interested their proportion of said fee. Shawnee county claims that it did distribute to each of the other counties their proper proportion of said fee. Shawnee county claims that the tax should be distributed in proportion to the assessed value of real estate as ‘real estate’ is usually defined. Its contention is that the assessed value of property, usually spoken of as personal property, such as right-of-way, easements, poles, lines, viaducts, pipes, meters, and all similar property, should not be taken into consideration in making this distribution. . . ;
“The applicants, on the contrary, claim that the mortgage tax should be distributed according to the assessed value of all property described in the mortgage. This seems to present the question that this commission must decide.”
After citing and considering the sections of the statute involved, the order of the commission concludes as follows:
“It is the opinion of this commission that this definition of real estate is broad enough, for the purposes of the mortgage registration law, to embrace all property covered by this mortgage. It follows, therefore, that we must find that the mortgage registration fee so paid to the county treasurer of Shawnee county should be apportioned among the counties in which some part of the mortgaged property is located, in proportion to the assessed valuation of said property in the respective counties.”
The commission then applies this interpretation to each of the thirty-five counties, including the plaintiff, by setting opposite the name of each county the amount of the $75,000 mortgage registration tax that should be distributed to each, basing the distribution, as stated in the order, upon “all property covered by this mortgage.”
We have no hesitancy in concluding that the trial court had jurisdiction of the subject matter of this action which involved an interpretation of the mortgage registration tax law.
The following is the definition of real estate as given in the first part of G. S. 1935, 79-3101:
“The words ‘real property’ and ‘real estate’ as used in this act, in addition to the definition thereof contained in the Revised Statutes of 1923, shall include all property a conveyance or mortgage of which is entitled to record as real property or interest therein under the laws of this state. The words ‘mortgage of real property’ shall include every instrument by which a lien is created or imposed upon real property, notwithstanding that the debt secured thereby may also be secured by a lien upon personal property.”
G. S. 1935, 79-3102, is in part as follows:
“Before any mortgage of real property, or renewal or extension of the same shall be received and filed for record on and after the first day of March, 1925, there shall be paid to the register of deeds of the county in which such property or any part thereof is situated, a registration fee for each one hundred dollars and major fraction thereof, of the principal debt or obligation which is secured by such mortgage, the sum of 25 cents; . . . Provided further, That after the payment of the registration fees as aforesaid the mortgage and the note thereby secured shall not otherwise be taxable.”
G. S. 1935, 79-3103, has reference to taxes on mortgages recorded prior to the enactment of the law. G. S. 1935, 79-3104, has reference to entries to be made concerning the registration tax and the payment of the same to the county treasurer, who shall keep an account of the same and shall credit it to the county general fund. G. S. 1935, 79-3105, has reference to cases where the mortgage covers property situated in two or more counties and requires that—
“. . . the county treasurer so receiving such fee shall apportion the same among the counties in which the real property is situated, in proportion to its assessed valuation, and promptly pay over such proportionate amounts to the respective county treasurers.”
The first section just above quoted referred to other definitions of real estate in the Revised Statutes of 1923. The following are three of them:
“The word ‘land,’ and the phrases ‘real estate’ and 'real property,’ include lands, tenements and hereditaments, and all rights thereto and interest therein, equitable as well as legal.” (R. S. 77-201, sub-div. 8.)
“That the terms ‘real property,’ ‘real estate,’ and ‘land,’ when used in this act, except as otherwise specifically provided, shall include not only the land itself, but all buildings, fixtures, improvements, mines, minerals, quarries, mineral springs and wells, rights and privileges appertaining thereto.” (R. S, 79-102.)
“That all fixed mains, flumes, aqueducts, reservoirs, receptacles, standpipes, purifiers, regulators, lamps, lampposts, meters, shaclde-rods, plugs, tanks, wires and all other property, whether herein enumerated or not, used as part of a system and employed in leading, conducting or distributing heat, light, power, oil, gas, water or other commodity between the place of generation, production or supply and the place of distribution, consumption, use, manufacture, market, or further shipment shall be listed and taxed by the city, town, school district, township or county in which said property or any part thereof is located, and in the same manner returned as is provided by law for real estate.” (R. S. 79-422.)
Under these sections there can be no question but that some of these items usually spoken of as personal property, such as rights of way, easements, poles, lines, viaducts, pipes, meters and other similar property, should be considered as real property under the requirements of this mortgage-registration tax law as well as under other laws concerning the taxing of property of public utilities and under the general definition of real property, including “all rights thereto and interests therein, equitable as well as legal,” for the purpose of distribution of this mortgage-registration tax. The tax commission stated the question involved, in line with this broad meaning of real property, so as to embrace and include such special property, but in its conclusion the commission did not so limit it but held it “to embrace all property covered by this mortgage.” The record shows the mortgage included personal property which did not come under any of these definitions and was not to be assessed as real property. To that extent the commission went beyond the real interpretation of these taxing statutes. The interpretation we have here given these statutes is within the admonition of Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042, as being so construed as to sustain all the statutes rather than ignore or defeat any of them. If the conclusion of the tax commission had limited the apportionment or the distribution of the tax to the assessed value of the real estate and the other property in each county, which the statutes directed to be assessed as real estate, we think that would have been the correct interpretation of these laws, but when it embraced in addition thereto all property covered by the mortgage, which included personal property, it went too far, and to that extent, at least, the petition stated a good cause of action and the demurrers were properly overruled.
Only these two matters were involved in the ruling on the demurrers, but other matters were ably argued which we do not think were directly concerned by the attack upon the petition by the demurrer. It might be said as to. the allegation of estoppel by the several county treasurers accepting the distribution apportioned to their several counties by the county treasurer of Shawnee county, that the acts of a county treasurer in that regard will not generally bind the county even by a promise or agreement because he does not represent the county for such purposes. It was held in Sedgwick County Comm’rs v. Conners, 121 Kan. 105, 245 Pac. 1030, that—
“In a county’s capacity as a governmental agency to collect and conserve the public revenues, estoppel based upon unauthorized acts of its officials cannot be successfully invoked against the county.” (Syl. ff 3.)
It may be said further as to those counties filing demurrers that such is a general appearance as to the matters alleged in the petition when the demurrers were filed. We shall pass the other, matters argued and briefed as not being involved necessarily in the two law points raised by the demurrer, and some of them may possibly become issues of fact.
As to the motion to quash the service of summons on Rice county, which was sustained by the trial court, there is ample authority in support of such ruling. Among such decisions are Rome Mfg. Co. v. State Highway Comm., 141 Kan. 385, 41 P. 2d 761, and Trader v. Southwestern Bell Telephone Co., 145 Kan. 690, 66 P. 2d 414. The former was an action against the state highway commission with service on a section man in Sedgwick county, and it was held:
“The state highway commission is not a corporation in the sense that would authorize the service of summons upon one of its employees under R. S. 60-2518.” (Syl. If 2.)
In the latter case service was attempted upon a city outside the county where the action was pending, and in the opinion it was said:
. . that an action against a municipal corporation, by reason of its status, is essentially local in character, and that to permit it to be sued in a county other than where it is situated, would be contrary to public policy and should not be permitted.” (p. 694.)
The rulings of the trial court are affirmed both as to overruling the demurrers and sustaining the motion to quash the service on Rice county.
HaRvey, J., not sitting. | [
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The opinion of the court was delivered by
HutchisoN, J.:
This was an action brought by the executor of a . last will and testament and the residuary beneficiaries under the will against a divorced wife and specific legatees in the will, for a construction of the will, a postnuptial contract and a decree of divorce. Copies of these documents were attached to the petition, and plaintiffs introduced in evidence a motion of the divorced wife, filed in the divorce action after the death of the husband, to set aside the decree of divorce and the order of the court overruling that motion. There was no pleading filed in this action by the divorced wife, but she appeared by attorney. The matter of the construction of these three instruments was fully discussed and argued by the attorneys for plaintiff and defendant, and the court made a construction of these instruments, taken together, in favor of the defendant divorced wife. The plaintiff filed a motion for new trial, which was overruled, and from that ruling and the construction made of the instruments in question the plaintiffs appeal.
There was involved in this case, and in the matter of the construction of the will, a question of a trust estate created by the father of the testator, which is mentioned in the will here under consideration, but all parties agree that it is not properly and necessarily involved at this time. It is mentioned in the will here under consideration as paragraph 5.
The testator, Charles E. Lydick, and Olive M. Lydick were married July 27, 1915, and lived together until June 16, 1936. On that date they entered into a postnuptial agreement of separation and division of property wherein it was stated at the very beginning—
“That parties hereto, fully realizing that they are incompatible and cannot live together any longer as husband and wife and have any peace of mind and happy marital life, and that such incompatibility, the state of their minds, and the condition of their health, make it inevitable that a separation must take place between them of necessity, that they hereby agree to separate and further agree as to their property rights, real and personal, owned jointly or severally by them, or either of them as follows, to wit:”
Among other things the contract provided for the payment by the husband to the wife of $10. a 'month for a period of ten months. It also provided that—
“Each party hereto agrees never to set up any claim to any of the property hereto allotted to the other, or to any after acquired property, either in life or by way of inheritance.
“Each party hereto agrees that the other may hold, use, encumber, alienate, and convey any of said property hereafter acquired as his or her separate property, to the same extent as though the parties hereto, were never married to each other ...”
On the same date, namely, June 16, 1936, a petition for divorce, charging the husband with gross neglect of duty and extreme cruelty, was prepared and acknowledged by the wife in which reference was made to the postnuptial contract, a copy of which was attached to the petition. This petition was filed in the district court on the next day, June 17, 1936, and the husband on the same day filed his answer thereto. They agreed in open court that the matter might be heard as an emergency, and it was heard that day, the husband being present at the hearing but producing no evidence. The court took the matter under advisement, and on August 20, 1936, a little more than sixty days thereafter, rendered judgment in favor of the plaintiff, granting her a divorce. The last paragraph of the journal entry was as follows:
“It is therefore by the court ordered, adjudged and decreed, that the plaintiff be granted a divorce from this defendant; that the postnuptial contract and agreement ordered to be, and is hereby approved and incorporated in this decree by reference as though it were set out herein in full; and it is further ordered and decreed that the plaintiff have further judgment against the defendant for the costs of this action, assessed at $-and for her attorney fees assessed at $60, and it is further ordered that this decree does not become effective so that either party may marry until the expiration of six months from this date of August 20, 1936.”
Two days after the filing of the petition for divorce and the hearing of the evidence thereon, the husband executed a will which provided in the usual manner for the payment of debts and the making of two specific bequests. Then after paragraph 5, heretofore mentioned as referring to a trust proposition not involved at this time, follow paragraphs 6 and 7.
“6th. All the residue of my estate, real, personal and mixed, and including .all household goods, personal effects, etc., I give, devise and bequeath to my wife, Mrs. Olive M. Lydick.
“7th. I further direct that my wife, Mrs. Olive M. Lydick, shall receive the benefits of paragraphs five (5) and six (6) as long as she is my wife, or remains single thereafter, but in the event that she should remarry, then in .such instance it is my will and direction that Mrs. Olive M. Lydick not share, benefit and participate in the effects and benefits of my estate as devised in paragraphs five (5) and six (6), respectively, and instead of her taking said property therein devised, it is my wish, will and direction that all of said property in paragraphs mentioned, be devised to my legal heirs, and that they share therein as provided by the laws of descent and distribution of the state of Kansas.”
After designating in the usual manner one of his brothers as sole executor without bond and with power to sell and convey property without an order of court, the will gives him, in paragraph 10, full power to determine any question arising concerning the construction and administration of the will upon his own judgment or under professional advice; such determination, when put in writing and duly signed by him, to be final and binding upon all persons interested in the will.
On September 12, 1936, Charles E. Lydick was killed in an automobile accident. On October 12, 1936, the court in the divorce action overruled the motion of Olive M. Lydick to set aside the decree of divorce. On May 8,1937, this action was brought, as stated above, for a construction of the will, the postnuptial or separation contract and the decree of divorce.
The following is the construction placed upon these instruments in the judgment rendered in this action June 21, 1937:
“That Olive M. Lydick was a beneficiary under the will and she is entitled to the residuary estate of said Charles E. Lydick, subject to the clause therein creating said L. N. Lydick as trustee and giving him authority to dispose of said estate and invest the money and pay her the net income therefrom; and that after the payment of the debts and special bequests mentioned, he should pay said income to said Olive M. Lydick as long as she remains single, and this, notwithstanding the fact that she was not his wife at the time of his death.
“That L. N. Lydick, as executor, is authorized to construe and interpret the will of Charles E. Lydick in all particulars, except those construed by this court, and having applied to this court for interpretation of said will, he will not be allowed to interpret the same adversely to the interpretation of this court.
“That the payment of ten dollars per month for ten months by the said Charles E. Lydick to Olive M. Lydick is a valid obligation against his estate, and if the same has not otherwise been discharged, it can be proved in the probate court of Kiowa county, Kansas; and that her proceedings in the-divorce suit to set aside the decree would not preclude her from proving such claim.”
Appellants present many reasons why the testator might have-made his wife a beneficiary in his will, intending it to apply only-while she was his wife, and having in mind the possibility of his. death before any decree might be rendered in the divorce action, and also the possibility that she might fail to obtain a divorce. As to the latter argument, it could not be very strongly argued that she would fail to have her petition granted when he heard her testimony and offered none to the contrary, and the court had before it the agreement he had signed stating that they could not live together any longer as husband and wife. It is argued that the testator must have had in mind when the will was prepared that they might again live together and that the postnuptial contract was a later development. This is not in harmony with the dates of the execution of the two instruments, and if the will might have been prepared before the postnuptial contract, as is argued, surely a change would have been made in it when it was executed two days after the hearing of the divorce case. As against this reasoning we are also met with the expression in the will, “as long as she is my wife,” which would more nearly apply to a wife living apart from her husband, and would be very unusual language if applied to one living with her husband.
The argument of counsel for appellants is forcible when applied to the probable inclination and desire of the testator in case he should die before a decree of divorce might be granted the wife and it would be very natural and commendable, but we cannot separate very well the above-quoted clause from that which immediately follows it, viz., “or remains single thereafter” — that is, after she ceases to be the wife of the testator. Appellants insist that the word “or” surely was intended for “and,” so that she would be his wife at the time of his death and remain single thereafter. There could be no criticism of such a sentence as being generally applicable, but we are not faced with an ambiguity or an obscurity. These parties were contemplating most positively a separation, and by reading this sentence with the disjunctive and in the light of the surrounding circumstances it more nearly meets the situation of the uncertain future, and in his desire to provide for her whether she be his wife or not at the time of his death. This, too, is in harmony with the provisions of the postnuptial agreement. The word “thereafter” does not refer to the testator’s death, but to the fact of being the wife of the testator, “as long as she is my wife, or remains single thereafter.” She was not the wife of the testator at the time of his death, being divorced less than a month before his death, but she remained single after being his wife. The next clause in the same paragraph terminates such beneficial rights “in the event that she should remarry.” We find no ambiguity in this language, and the construction put upon this language was such as to give effect to the testator’s real intention as gathered from the entire document and taking into consideration all the circumstances under which the will was executed as was stated to be the rule for arriving at a construction of a will in many cases, particularly in Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022, and Pearson v. Orcutt, 106 Kan. 610, 189 Pac. 160.
The second point raised on this appeal is with reference to that paragraph of the will which gave the executor authority to determine in writing, duly signed by him, any question as to the construction and administration of the will, and they insist that such right was not waived by the executor by his submitting, as one of the plaintiffs in this action, this question to the court for interpretation and construction. This matter may be answered in the first place by the fact that although the petition may place the executor in the class maintaining such right and authority, yet we are not advised by the record of any determination as to the construction of paragraphs 6 and 7 of the will having been made by him in writing, and if a construction had been so made by him it would not under the authorities cited by the appellants be conclusive if the decision should have been erroneous and a legatee would desire a review thereof in the regularly constituted courts. (See 69 C. J. 144, 871.) We could not consistently with these authorities regard the attitude of the executor in placing himself in a particular class in the petition as thereby rendering such a construction as the will authorized, and preventing the placing of a construction thereon by the district court, which was the sole purpose of the petition.
The third point involved in this appeal is the construction of the language of the postnuptial agreement, adopted and approved by the court in the divorce action, under which the divorced wife was to receive as part of the alimony allowed her the sum of $10 per month for a period of ten months. Appellant objects to the construction placed on this agreement, and divorce decree approving the same, for the reason that she has disapproved the other parts of the agreement and decree and is claiming under the will, and that she should not be permitted to claim partly under each and reject part under the contract and decree. Also, that she endeavored to have the divorce decree set aside after the death of her husband, and further that the installments would necessarily run after the death of her husband and beyond the six-months period mentioned in the decree.
Appellants cite G. S. 1935, 60-1511, Scott v. Scott, 80 Kan. 489, 103 Pac. 1005, and Beasley v. Salkeld, 131 Kan. 211, 289 Pac. 471. The two cases have reference to alimony not being a lien on the real estate of the husband without a special provision to that effect. We do not believe the question of a lien on property is involved here. The trial court in this action held that if the alimony was not otherwise discharged she might prove a claim for it in the probate court. In that way it would be only a debt, and property could, if necessary, be sold to meet it and other debts. The section above cited provides, among many other things, that alimony may be allowed “by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable.”
Alimony payable in installments is permissible, but it must be in a definite aggregate sum or total, and if not it has been held to be void. (Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Revere v. Revere, 133 Kan. 300, 299 Pac. 595; and Catren v. Catren, 136 Kan. 864, 18 P. 2d 134.) In the case at bar the definite aggregate total was $100, and it therefore was fully within the requirements in that particular.
Under the facts and circumstances of this case and the petition asking for a construction of the will, the agreement and the divorce decree, we see no good reason why some rights and privileges might not accrue to the divorced wife under the will and others under the agreement and decree, and the claim of one benefit under the will would not be necessarily inconsistent with a claim of another benefit under the agreement and decree. The dates of such instruments might make in some cases such claims plainly inconsistent, but not so in the instruments here under consideration. The will, although executed before the decree of divorce and after the making of the agreement, did not become effective until a few weeks after the decree, and although they were divorced there was no reason why the divorced wife might not be a beneficiary under his will. He could not devise to any one the property set aside to the wife in the agreement, but could do as he pleased with the property she recognized as being his by the terms of the contract. Besides, this is not a claim by way of inheritance excluded by the contract.
We find no error in the construction placed upon these instruments by the trial court.
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The opinion of the court was delivered by
Wedell, J.:
This was a suit on the relation of the attorney general to enjoin the alleged unlawful practice and the unlawful.advertising of the practice of medicine and surgery. The injunction was allowed and the defendant appeals.
Defendant in substance admits: He had obtained no license to engage in the practice of medicine and surgery or any other branch of the healing arts; he advertised and held himself out to the public as one who treated and cured cancer; he received pay for his services. Defendant in substance contended: His treatment consisted in the application of a compound of certain drugs, known only to himself, which, if applied in time, would kill cancer; he denied he had ever claimed to be a practicing physician as defined by the laws of this state, but insisted he was versed in the methods and ways of destroying cancer; that his treatment of cancer consisted in the application of a paste to a cancer itself and not to the human body and as a result of such treatment the cancer dies and the healing processes eject it from the body the same as any other foreign substance; the ingredients of his compound destroyed only abnormal tissue and had no effect on normal tissue; the remedy could be applied by anyone having access to the formula, it did not require the knowledge or professional services of a physician.
The defendant was eighty-six years of age and claimed to have learned something of the cure of cancer from his father. For many years defendant sold Baker’s medicines, household remedies. As a result of numerous inquiries and discussions with others concerning the treatment of cancer he finally prepared a compound of his own. It was in the form of a paste and was applied to the affected portion of the body. He conducted the practice in his home. In the front yard appeared a sign containing the following advertisement:
“cancer home
We Guarantee To
KIEL & REMOVE CANCERS
Or No Pay
Without Knife, Radium, XRay, or Electricity W. W. Cooper.”
Among his advertisements was also the following:
“Cancers.
Attention:
“Cancer is a very old disease. We can trace it almost as far back as we have knowledge of civilization. Familiar to the earliest physicians, it has persisted through the ages, and is baffling their efforts as effectively today as it did hundreds of years ago. And it is a fact there is no dangerous disease so easily cured as cancer, and none more dangerous if neglected too long or improperly treated.
“We guarantee to kill and remove them' — or no pay. Over thirty years successful practice and no failures. Proof of success is success itself. Write and we will send you the proof.
W. W. Cooper, Mgr.
THE
CANCER HOME
ALTOONA, KANSAS.”
Other forms of advertisements were employed, including testimonials from patients. By reason of his age he had concluded to have his daughter and son-in-law assist him in his practice. Neither of them was licensed to practice any healing art. There was testimony to the effect that the defendant had moved from his former home and was contemplating converting that place into a cancer clinic, which was to be operated by his daughter and son-in-law, under his supervision. He had given them his formula and planned to oversee the work until they were as conversant therewith as he.
The law expressly enjoins the duty upon the secretary of the State Board of Registration and Examination for the practice of medicine and surgery to see that the act providing for such practice is enforced. (G. S. 1935, 65-1006.) One Raymond Tice, a student of medicine, was employed to obtain information concerning reported unlawful practices. Tice consulted the defendant concerning a pigmented nevus or mole under his arm, during September of 1936 and May of 1937. The substance of Tice’s testimony was as follows: In the first consultation defendant advised him the mole constituted a cancer and was in a very bad place, but it could be cured; the fee was $50; he paid $3 at the time and defendant put some paste on adhesive tape and applied it to the mole; he was to return in about two weeks; immediately upon leaving defendant’s residence the paste was removed; he returned in May of 1937, and a similar application was made; the fee was then reduced to $25 and he paid $5, and obtained a receipt therefor; upon leaving he again promptly removed the paste and it was examined by C. N. Watson, a chemist and bacteriologist at Independence, Kan.; the testimony of the defendant was to the effect that he was not certain whether Tice was afflicted with cancer, but that the paste would not be harmful in any event.
The testimony of Watson, in substance, was: That he made an analysis of the paste on the adhesive tape, both quantitative and qualitative, and the analysis showed that the paste contained about fifty percent chloride of zinc, starch and some vegetable tissue, indicating it was a mucilaginous drug called althaea, the exact proportions of the compound being thirty-two percent water and fifty percent chloride of zinc and starch, which had been caramelized, making up the balance; he was familiar with the chemical properties of zinc chloride and that it was a caustic which would bum or eat animal tissue; as a chemist he was familiar with pastes or compounds containing similar formulae as that disclosed by the analysis; those formulae are given in the national dispensary and United States dispensary used by the medical profession; the compound used by the defendant was similar to that of Canquoin’s paste used as a caustic in the treatment of cancer.
The testimony of the defendant was to the effect he always used the same paste and that its active ingredient on the cancerous tissue was zinc chloride.
The pertinent testimony of Dr. J. G. Hughbanks, a witness for the state, was in substance as follows: he was acquainted with and had an opinion concerning the effect of an application of paste composed of thirty percent water, fifty percent zinc chloride, flour, starch and althaea; when applied to tissue of the human body, the effect of such application was to destroy all tissue with which it came in contact. The only one of the ingredients which had that reaction was zinc chloride. It is an escharotic or caustic and will destroy normal tissue as well as abnormal tissue. Zinc chloride was first used in the treatment of cancer by a Frenchman'named Canquoin over a hundred years ago. The treatment of external cancer by zinc chloride is used to a limited extent among the medical profession at this time. Some dermatologists use it with a great deal of caution. It can only be used by men who have an appreciation of the danger of the drug. The reason for the caution is that the caustic leaves extensive scars and may cause clots to form in the blood stream during treatment, causing a pulmonary embolus. The preparation is certainly not what is termed a “home remedy.” It is not used extensively by the medical profession because of its known dangers, and better results can be obtained with Xray or knife and with less danger. It is impossible to distinguish by superficial examination different types of cancer from a benign growth.
The statute defining the practice of medicine and surgery does not prohibit the administration of domestic medicines or gratuitous services. (G. S. 1935, 65-1005.) The trial court found defendant’s compound was not a home remedy; his services were not gratuitous, he had obtained no license for the practice of medicine and surgery, and that his practice was unlawful.
Much of defendant’s argument is directed against the wisdom of the law which prohibits his practice without a license. With that contention courts, of course, cannot be concerned. That is a prerogative of the legislative and not of the judicial branch of government.
Defendant urges he was not engaged in the practice of medicine or surgery. The answer must be found in the interpretation of the statute. The statute defining that practice is G. S. 1935, 65-1005. The pertinent portion thereof reads:
“Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatsoever nature for the cure or relief of any wounds, fracture or bodily injury, infirmity or disease of another person, ... or any person attempting to treat the sick or others afflicted with bodily or mental infirmities, or any person representing or advertising himself by any means or through any medium whatsoever or in any manner whatsoever, so as to indicate that he is authorized to or does practice medicine or surgery in this state, or that he is authorized to or does treat the sick or others afflicted with bodily infirmities, . .’ (Italics inserted.)
G. S. 1935, 65-1006, prescribes the penalties for engaging in the practice .without first obtaining a license to do so. It is true the record discloses defendant treated many patients without charging a fee in the event of their inability to pay. It also discloses defendant’s frank admission he charged for his services and based his fee on ability of the patient to pay. It cannot be doubted the practice in which he engaged, without a license, was clearly prohibited. There was strong evidence to support the specific finding of the trial court that the compound used was not a home remedy. (For a discussion of what constitutes home remedies, see State v. Huff, 75 Kan. 585, 592-598, 90 Pac. 279.) Where the evidence concerning a specific finding is conflicting this court does not weigh the evidence or pass upon the credibility of witnesses. That is solely the province of the trial court. In such cases this court examines the record only for the purpose of ascertaining whether there is substantial evidence to support the findings made, and not whether there is evidence to the contrary. (Settle v. Glenn, ante, pp. 502, 503, 78 P. 2d 57.) Moreover, the evidence of the defendant, when properly analyzed, was not that his compound constituted a home remedy. His evidence was quite to the contrary. It was to the effect that it could be applied without danger by anyone who had access thereto. He contended, however, it was a combination of drugs known only to himself. For this knowledge, claimed to be possessed solely by himself, and for the treatment of the patient he charged a fee. In State v. Huff, supra, it was held:
“An allegation that a defendant 'did . . . prescribe and recommend for a fee drugs and medicines for the cure and relief of bodily infirmity and disease of another person’ is supported by evidence that he treated a person, who was afflicted with what he pronounced to be a cancer, by the external application of a substance which he represented as being a remedy therefor, under a contract that he should receive fifty dollars down and fifty more when a cure was effected.” (Syl. IF 4.)
“In a prosecution under a statute making it a misdemeanor for one not having a certificate of qualification from a state board to practice medicine, and providing that ‘any person shall be regarded as practicing medicine . . . who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine,’ but that the act shall not apply to ‘the administration of domestic medicines’ (Gen. Stat. 1901, §6674), where the defendant is charged with recommending a medicine for a fee it is not material to inquire whether the medicine alleged to have been so recommended was a domestic medicine within the meaning of the phrase as used in the act; the fact that it was a domestic medicine would not constitute a defense.” (Syl. IT 5.)
For other cases which discuss the application of G. S. 1935, 65-1005, to various practices of the healing arts and advertisements concerning such practices, see, also; State v. Johnson, 84 Kan. 411, 114 Pac. 390; State v. Peters, 87 Kan. 265, 123 Pac. 751; State v. Douglas, 124 Kan. 482, 260 Pac. 655; Slocum v. City of Fredonia, 134 Kan. 853, 8 P. 2d 332.
Defendant suggests that the prohibiting of the practice as conducted by him violates his inalienable rights and the fourteenth amendment to the federal constitution. No authorities are cited in support of the contention. The law does not prohibit the practice of medicine and surgery. It simply prescribes certain requirements with which defendant and others must comply in order to qualify for the practice. That the legislature, speaking for the people, has power to prescribe reasonable restrictions and qualifications touching the practice of the healing arts in any of its departments, without violating any constitutional rights, is clear. Such legislation constitutes a valid exercise of police power. (State v. Creditor, 44 Kan. 565, 24 Pac. 346; State v. Wilcox, 64 Kan. 789, 68 Pac. 634; Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; State v. Johnson, 84 Kan. 411, 413, 114 Pac. 390.) The fourteenth amendment to the federal constitution does not affect valid police regulations enacted by the states. (Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205; Johnson v. Reno County Comm’rs, 147 Kan. 211, 216, 75 P. 2d 849.)
Defendant urges the state has a remedy at law under its criminal statute (G. S. 1935, 65-1006), and hence it will not be permitted to resort to the equitable remedy of injunction. It is true that ordinarily equity does not enjoin the commission of crime. The legislature, however, in order to more adequately protect the health and welfare of its citizens, saw fit to make effective the regulation and control of the practice of medicine and surgery by enlarging existing remedies. It therefore provided the preventive measures of injunction and quo warranto. It expressly declared those remedies should constitute additional remedies to the existing remedy of criminal prosecution and that they were not provided in lieu thereof. (Laws 1937, ch. 270.) No valid reason is advanced and no authorities are cited holding the legislature is without power or authority to provide such additional remedies. The remedy of injunction was recognized in this state in a suit to prevent the operation of a retreat for the insane or persons of unsound mind, although its operation without a license constituted a misdemeanor and there was no express statutory authorization to proceed by injunction. (State v. Lindsay, 85 Kan. 79, 116 Pac. 207.) It was there said:
“It has often been broadly stated that an injunction will not lie to prevent the commission of a crime or penal offense, but this is subject to important qualifications. The remedy has been upheld in some situations where the act enjoined was criminal. . . .
“Courts of equity are reluctant to use the process of injunction where the remedy by indictment or information is efficacious, but will not hesitate where the remedy is not adequate and it is necessary to protect the rights of the public or an individual. A court is not powerless to prevent the doing of an act merely because it is denounced as a public offense. (In re Debs, Petitioner, 158 U. S. 564; The North American Ins. Co. v. Yates, 116 Ill. App. 217; The Columbian Athletic Club v. State, ex rel. McMahan, 143 Ind. 98; Commonwealth v. McGovern, 25 Ky. Law Rep. 411; State, ex rel., v. Canty, 207 Mo. 439.) A related subject is considered in The State v. Snelling, 71 Kan. 499.” (p. 83.)
In 14 R. C. L. Injunctions, section 81, the rule is stated thus:
“It is also competent for the state, within the constitutional limits of its legislative powers, to declare any act criminal, and make the repetition or continuance thereof a public nuisance, so as to enable the courts, on conviction, to pronounce judgments of abatement, or to vest in courts of equity the power to abate them by injunction.” (p. 380.)
This court has recognized the fact there is a wide difference of views as to the use of injunction where the violation of law is made a criminal offense and where no express authorization by injunction is provided. (State, ex rel., v. Basham, 146 Kan. 181, 70 P. 2d 24.) It seems clear, however, that a statute which expressly makes available to the state the remedy of injunction for the protection of the public health, is not invalid on constitutional grounds merely because the violator of a statute is also amenable to criminal prosecution. Such a statute is not invalid as authorizing an injunction against an act made criminal or as denying the right to a jury trial in criminal prosecutions. Punishment for violation of such injunction would be for contempt of the order of injunction and not punishment for violation of a criminal statute. These principles have been clearly recognized in cases of injunction under medical practice acts and similar legislation. (Bd. of Medical Examiners v. Blair, 57 Utah 516, 196 Pac. 221; State v. Smith, 43 Ariz. 131, 29 P. 2d 718; McMillan v. Sanitary Bd., 119 Miss. 500, 81 So. 169; P. S. C. of Wyo. v. Grimshaw, 49 Wyo. 158, 53 P. 2d 1; Itcaina v. Marble, 56 Nev. 420, 55 P. 2d 625; 32 C. J. Injunctions, §§ 438, 442; 5 A. L. R. 1474, Anno.)
Defendant insists he has not had his day in court. The contention is not well taken. It is based upon the refusal of the trial court to hear the testimony of numerous witnesses. No proper showing is made concerning the nature and substance of their testimony had they been permitted to testify. The alleged error is therefore not properly presented for review. (Walker v. S. H. Kress & Co., ante, pp. 48, 56, 75 P. 2d 820.) We are told the witnesses would have testified concerning the benefits derived from defendant’s treatments. The question at issue was not how much benefit or harm had resulted from defendant’s treatments. The question was whether he was authorized to do what he had done and what he.intended to continue to do, without a license. Defendant’s own admissions disclosed his practice was not within the law and the testimony of his friends could not have altered that fact.
It is also urged the trial court abused its discretion, improperly joined in the argument of counsel, made injudicial remarks and displayed prejudice against the defendant. In view of the seriousness of such charges we have not relied merely upon the abstracts, but have carefully analyzed the transcript. The record discloses the trial court exercised exceptional patience throughout the trial, asked only questions which facilitated the trial-, and that he was particularly courteous to the defendant in every possible way. The complaints are utterly devoid of merit.
It is also urged the treatment of cancer should not have been enjoined because the term “cancer” is not specifically mentioned in the medical practice act. The contention scarcely merits mention. The statute did not attempt to particularize ailments or diseases which it was designed to embrace. It was intended to be and is general in its terms.
It is finally urged defendant’s motion to strike the testimony of the witness, Tice, who made the investigation, should have been sustained for the reason he was acting as a decoy and that his statements were untrue. It is not contended the trial court did not carefully scrutinize and consider the testimony of the witness. The credibility of the witness and the weight of his testimony were proper subjects for the consideration of the trial court, but not for this court.
We have examined such cases as defendant has cited, but they are not authority for any contention here made.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff, for himself and others similarly situated, brought this action to enjoin enforcement of an ordinance of the city of Topeka regulating the business of barbering, alleging the ordinance was contrary to the laws of Kansas and unconstitutional and void under the constitutions of the state of Kansas and the United States of America in that it deprived him of his property without due process of law and denied him the equal protection of the law. A demurrer to his petition having been sustained, he appeals to this court.
The ordinance under attack may be summarized as follows: Section 1 provides for a barber sanitary and examining board of three members, consisting of the chairman of the board of health (presumably of the city but not so stated), as éx officio chairman, one master barber owning or operating a barber shop in the city of Topeka, and one journeyman barber. Section 2 makes it the duty of the board to examine an applicant desiring to engage in the business of barbering, as to his knowledge, skill and ability, and if satisfied of competency and ability, to issue a license. Under section 3 no examination shall be given to any person unless he presents a certificate of a regularly practicing physician of Topeka that he is free from any infectious, contagious, or communicable disease. Section 4 makes the journeyman member of the board the barber sanitary inspector and makes it his duty to inspect all barber shops not less than once in every thirty days, or oftener if in his judgment the public health and the proper enforcement of the ordinance require. Section 5 directs the board to make rules, regulations and requirements, which shall be printed, and each barber and barber shop provided with a copy. Section 6 sets the time for examinations. Section 7 provides for issuance of licenses and for deposit of funds with the city treasurer. Section 8 fixes an annual license fee of $5 for each chair and $2.50 for each barber, and provides that no barber may be employed who does not have the physician’s certificate and the license provided in section 3. Section 9 provides no barber afflicted or who shall become afflicted with any infectious, contagious or communicable disease shall be permitted to work in any barber shop and his license shall be revoked. Section 10 makes it unlawful for any operator of a barber shop to have in his employ any person afflicted with the above-named diseases, to permit his shop to be come insanitary or to violate any of the terms of the ordinance or the rules and regulations of the board. Section 11 provides for .cancellation by the inspector of the licenses granted, and for petition to the board for a hearing and final order. Section 12 fixes penalty for violation at $25 and costs. Section 13 authorizes the board to fix the salary of the inspector and the per diem of the members of the board to be paid the members for attendance at the regular examining meetings. Section 14 declares the ordinance is passed for proper regulation of barbers and barber shops in the interest of public health. Section 15 states the ordinance is not applicable to beauty parlors. Section 16 provides that if any section, paragraph, sentence or clause shall be held void or invalid it shall not affect the remainder. Section 17 repeals conflicting ordinances and section 18 fixes the effective date.
The appellant presents two questions: Does the city have power to compel one holding a state barber’s license to take the examination and qualify under the terms of the ordinance before he can follow the occupation of barbering in Topeka? and (2) Is the tax imposed by the ordinance an occupation tax?
The answer to the first question requires an examination of pertinent state legislation. In 1903 an act was passed regulating the practice of barbering (Laws 1903, ch. 70). Its various sections have been amended from time to time, and as amended it now appears as G. S. 1935, 74-1801 to 74-1804, dealing with the state barber board, and G. S. 1935, 65-1801 to 65-1807, dealing with the examination and registration of barbers. In G. S. 1935, 74-1801, appears the following:
“Said board shall, with the approval of the state board of health, prescribe such sanitary rules as it may deem necessary to prevent spreading of infectious or contagious diseases.”
Similar language was contained in Laws 1903, chapter 70, section 2. In 1909 an act (ch. 224) was passed, which now appears as G. S. 1935, 65-172, 65-173. It declares that in the interest of the public health and to prevent the spread of contagious and infectious diseases, the state board of health is charged with the sanitary supervision of barber shops, is empowered to inspect them and to make rules and regulations necessary to safeguard the public health, and that any person violating them shall be guilty of a misdemeanor, and fined. G. S. 1935, 65-1801 et seg., make it unlawful for any person to follow the occupation of barber until he has procured a certificate of registration as required by the act, provide for.examinations by the state barber board; for the issuance to barbers ,of certificates expiring December 31 of each year at a cost of $2, and for yearly renewal at the same cost; for examination of persons desiring to follow the occupation of barber, who must .satisfy the board they are of good moral character, free from contagious or infectious disease, and are otherwise Qualified. Provision is also made for issuance of the above certificates and for their display, and that they may be revoked for habitual drunkenness, gross incompetency, failure dr refusal to guard against contagious or infectious diseases or the spreading thereof, for violation of the rules of the board, or for extortion or overcharge practiced, and providing for notice and hearing before revocation, for'reissue of any revoked certificate, and for closing of any establishment pending a hearing as provided. It is made unlawful to violate any provision of the act.
Appellant’s contention is that the state has legislated fully with respect to the occupation of barbering and to the exclusion of any city; that the state law requires one before engaging in that occupation to procure his certificate of registration from the state barber board, and that when it is procured he is authorized to follow his occupation any place within the state. He contends further that the city ordinance is repugnant to and inconsistent with the state law in that it permits one to follow the occupation of barbering by obtaining a city license, even though he has no certificate from the state, and prohibits a certificate holder under the state law from exercising a right granted to him.
. The city contends that the above statutes do not reserve to the state the exclusive right to regulate; that the city, by reason of G. S. 1935, 13-436, giving it power to make regulations to secure the general health, has concurrent jurisdiction and that it had authority to enact the ordinance and enforce it.
Before entering upon a discussion of the contentions of the parties, it may be well to remember that the superior power is with the state, and that, speaking generally, the city’s only power is that delegated to it by the state.
An examination of the statutes with reference to the occupation or trade of barbering shows that both the state barber board and the state board of health have power to make rules and regulations with respect to sanitary regulation. Whatever overlapping of authority there may be there need not concern us. The question is whether the city can add to the regulation which the legislature has committed to two boards created by it. It need not be demonstrated beyond mere statement that the ordinance has been enacted without regard to the statutory provisions, and that under its terms one may obtain a license from the board created by the ordinance and follow the occupation of barber in Topeka without having the certificate required by the state law, and, at the same time, one duly licensed by the state may be guilty of a misdemeanor if he attempts to follow his occupation in Topeka without getting the health certificate and license required by the ordinance. Assuming that the city license and state certificate regulations can be made to fit into a pattern whose legality cannot be questioned and that the barber procures both, he then must comply with the three sets of sanitary rules laid down by the state board of health, the state barber board and barber sanitary and examining board of the city of Topeka. If he does all that, he can then cut hair or shave beards without fear of violating one of two state laws or the ordinance now questioned.
In support of its contention the enactment of the ordinance was proper, the city directs our attention to Jones v. City of Coffeyville, 136 Kan. 796, 18 P. 2d 174, where it was said:
“In exercising the police power a city is not required to have its ordinance conform in all respects to the state law upon the same subject (Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548; Garden City v. Legg, 126 Kan. 569, 268 Pac. 827), unless there is a statute or other controlling authority which so limits the power of the city.” (p. 797.)
Our attention is also directed to the two cases therein mentioned.
In the Henre case, attack was made on an ordinance providing that milk sold must have a greater solid content, than fixed by a state statute. The ground was the ordinance was in excess of the power of the city and in conflict with the state regulation on the same subject. In upholding the ordinance it was said:
“One of the purposes specifically named is to make regulations to secure the general health of the city. (Gen. Stat. 1909, §§ 1243, 1278.) The ordinance regulating the' sale of milk comes clearly within the power so conferred, and unless it conflicts with the statutes or constitution or is clearly unreasonable it must be upheld. It is well settled in this state that where power is conferred upon cities to enact ordinances for the preservation of peace and good order within the city or for the preservation of the health of its inhabitants it may be exercised although the legislature has provided state regulations on the same subjects. (Franklin v. Westfall, 27 Kan. 614; Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520; In re Thomas, Petitioner, 53 Kan. 659, 37 Pac. 171; In re Jahn, Petitioner, 55 Kan. 694, 41 Pac. 956; Assaria v. Wells, 68 Kan. 787, 75 Pac. 1026.) An ordinance may not be enacted which conflicts with or will operate to nullify the state law. (Assaria v. Wells, supra; In re Van Tuyl, 71 Kan. 659, 81 Pac. 181.) A city may not by ordinance authorize that which a statute prohibits nor punish the doing of an act which the statute expressly authorizes, but, as we have seen, it is competent for a city, under the authority of the legislature, to provide that an act shall be an offense against the authority of the city although the same act is made an offense against the state. An ordinance enacted in the exercise of the police power is not necessarily inconsistent with a state law on the same subject because the city provides for greater restrictions or makes higher standards than is provided or made by the statute. (Walker v. Railway Co., 95 Kan. 702, 149 Pac. 677.) Nor is an ordinance repugnant to a statute merely because the penalty prescribed is greater than is fixed by the statute for the commission of a like offense. (Minneola v. Naylor, 84 Kan. 147, 113 Pac. 309; Stark v. Geiser, 90 Kan. 504, 135 Pac. 666.)” (Kansas City v. Henre, 96 Kan. 794, 796, 153 Pac. 827.)
In the Legg case an ordinance making drunkenness any place within the city an offense was upheld, although as denounced in the state law it was limited to streets, highways, public places and buildings, or if the person be drunk in his own home or in a private building or place and disturbing his family or others.
If these cases are controlling, judgment must be for the city.
Although the state law, with reference to the sale of milk considered in the Henre case, has been amended, it did not then and does not in its present form (G. S. 1935, ch. 65, art. 7) require the producer selling milk to obtain a license so to do, nor does it do more than to establish a standard for dairy products, making it an offense to sell substandard products. The ordinance did not grant any right denied by the state law, nor did it interfere with any right granted, for the state law did not pretend to grant a right to sell milk. The Legg case is not controlling here, for it was there held the ordinance under attack covered a field in addition to that covered by the state law and hence could not be said to be repugnant to it.
If it be assumed that the above cases require us to hold the ordinance valid, a large field is disclosed where similar ordinances would be good. G. S. 1935, chapter 65, deals with the public health generally and provision is made for the examination and registration of those engaged in various professions and occupations, viz.: article 10 applies to doctors of medicine; article 11 to trained nurses; article 12 to osteopathic physicians; article 13 to chiropractors; article 14 to dentists; article 15 to optometrists; article 16 to pharmacists; article 17 to embalmers and funeral directors; article 18 to barbers; article 19 to cosmetologists and article 20 to podiatrists. And the most recent enactments are Laws 1937, chapter 270, giving a right of action by injunction or quo warranto with respect to unlawful practice of medicine and surgery, and chapter 278 providing for examination in basic sciences under certain conditions. In each of the above professions and occupations, examinations are required and permits to practice are granted, and regulation in considerable detail is provided. If the city may ignore these requirements and regulations with respect to barbers, and set up its own standards and requirements, and in some particulars refuse rights granted by the state and in others confer rights refused by the state, then it may do the same with doctors, dentists and the other professions and occupations above listed. An ordinance setting up a medical sanitary and examining board, pertaining to doctors of medicine and surgery, and containing substantially identical provisions for examinations, licenses, office practices, inspections, taxes, etc., and granting licenses to doctors not registered by the state and denying doctors licensed by the state a right to practice, would be equally as good as the ordinance here attacked. Although it be conceded that the state has granted power to the city to enact ordinances to guard the public health, it does not follow that an ordinance of the city may ignore the state’s own regulatory acts, or deny rights granted by the state or grant rights denied by the state, and in effect nullify the state law.
Although the ordinance contains a saving clause that invalidity of one section shall not affect the remainder, we find it impossible to make a separation so as to say that any portion can remain effective. There is no purpose to be served by the examining board, for it has no function legally to be performed; the only purpose of the tax or license fee imposed is to pay the salary of the board and of the inspector, and the state having fully legislated on the subjects over which they would have control under the ordinance, they have no duties to perform the expense of which might be defrayed by collection of license fees. The statutes do not authorize collection of occupation taxes by a city of the first class of less than 120,000 population (see McKay v. City of Wichita, 135 Kan. 678, 682, 11 P. 2d 733, and G. S. 1935, 13-1906, enacted after it was decided), and hence, the ordinance may not be justified as for that purpose. We conclude that there is no part of the ordinance that would have been enacted if the criticized portions were excised, and that it is void in its entirety.
The ruling of the trial court sustaining the demurrer to plaintiff’s petition is reversed, and the cause remanded with instructions to enter judgment declaring the ordinance void. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to foreclose a mortgage. The defendants appeal from an order sustaining a demurrer to their amended answer and cross petition and a judgment for plaintiffs.
For brevity we shall refer to the plaintiff appellees as the' Masonic Lodge and to the defendant appellants as the Odd Fellow Lodge. The two lodges jointly owned a building on real estate in Fulton, Kan., and used the same for their respective lodge purposes. In referring to the pleadings we shall omit all matters not necessary to a discussion of the specifications of error.
In its petition the Masonic Lodge alleged that on July 17, 1926, the Odd Fellow Lodge borrowed $1,000 from Sherman Baird on a promissory note due in five years and secured by a mortgage on its undivided one-half interest in the above real estate; that Sherman Baird assigned the note and mortgage to the Citizens State Bank of Mapleton on March 4, 1935, and that bank assigned the note and mortgage to the Masonic-Lodge on June 13, 1935; that the Odd Fellow Lodge' had paid no interest on the debt after July 17, 1930; that there was due the sum of $1,340, and that the Masonic Lodge was entitled to foreclose the mortgage. Judgment for the above amount and for foreclosure of the mortgage was prayed.
The amended answer and cross petition of the Odd Fellow Lodge may be divided into six parts. The first was a general denial. The second part was that the trustees of the Masonic Lodge were without authority to maintain the action; that under G. S. 1935,17-1705, they could not maintain it; that the present suit should be dismissed, and if anything was due from the Odd Fellow Lodge to the Masonic Lodge, it was due the corporation and not the trustees of the latter lodge. The third part was that about March 15, 1928, the two lodges had entered into a written contract providing for a committee of members of both lodges to have charge of the building, a copy of the contract being attached. In substance, it provided that the committee should have charge of the building known as the Temple, see to repairs, pay taxes, light bills, hire and pay a janitor, have full charge of the Temple for entertainments, etc., and notify each lodge of the amount due from it. It was alleged that the Masonic Lodge, in violation of that contract and to circumvent it, wrongfully took the assignment of the note and mortgage sued on, and that if the Odd Fellow Lodge owed the Masonic Lodge any money it was not the basis of a judgment lien or mortgage lien against the real estate, and further that the pending suit was filed without express authority of the Masonic Lodge corporation. The fourth part was a denial that the Odd Fellow Lodge owed the Masonic Lodge $1,340, but that it did owe the sum of $600; that Sherman Baird had offered to compromise the debt and on March 4, 1935, had proposed to J. F. Wimmer, one of the trustees of the Odd Fellow Lodge, he would accept $600 for the note and mortgage; that Wimmer accepted the offer and tendered $100. That the agreement and settlement were supported by a valuable consideration and were of benefit to Baird in that he had a lien on only one half of the building; that the building was constructed for a lodge hall and if used for commercial purposes it would have to be reconstructed, and that the mortgaged interest was not worth the amount due; that the taxes were delinquent; that the Odd Fellow Lodge would have an eighteen months’ redemption period; that the taxes were in arrears; that the Odd Fellow Lodge was hard up and a deficiency judgment could not be collected; that business conditions in Fulton were poor; that the sum of $600 agreed on was in excess of the value of the note and mortgage, and that it was to the distinct benefit and advantage of Sherman Baird to make the compromise; that Sherman Baird did not withdraw his offer, but did on the same day sell the note and mortgage to the named bank for $500 when his offer to the Odd Fellow Lodge was still outstanding and had'been accepted by it; that when the bank took the assignment the note was past due and was taken subject to the $600 offer and acceptance. The fifth part was that a mortgage on the interest of the Masonic Lodge had been foreclosed, the amount of the judgment being in excess of $2,-100; that the judgment was sold and later satisfied by. the Masonic Lodge, either as a corporation or by its trustees on payment of $250 on February 15, 1935, and thereafter the Masonic Lodge had purchased the note and mortgage here involved for the purpose of forcing the Odd Fellow Lodge to lose its interest in the real estate. The sixth part was a request that if foreclosure be allowed the Odd Fellow Lodge have an eighteen months’ period of redemption and that it be required to pay only $600 and one half of the delinquent taxes. Prayer accordingly.
The Masonic Lodge demurred generally to the answer and cross petition, and also amended its petition to allege payment of taxes totaling $115.05 and seeking to recover one half thereof from the Odd Fellow Lodge.
The demurrer was sustained. Judgment of foreclosure followed in which the plaintiff recovered the full amount of its claim. Provision for sale and application of proceeds was made, and the period of redemption was fixed at eighteen months. The motions of the Odd Fellow Lodge for reconsideration of the ruling on the demurrer and for vacating of the judgment were denied and in due time it appealed. The errors specified are that the trial court erred in sustaining the demurrer, in rendering judgment and in denying the motion for reconsideration.
We shall treat the various contentions in the order presented by the appellant.
If is first insisted that the trustees of the Masonic Lodge are not authorized to maintain this action and that it should have been brought in the name of the corporation, it being contended that under G. S. 1935, 17-1705, the trustees may sue only with respect to any matter affecting its real estate and buildings; that it owns only an undivided one-half interest in the building, but seeks to foreclose a mortgage on the interest it does not own. A somewhat analogous contention was made in Rice v. Kilworth, 132 Kan. 418, 421, 295 Pac. 700, where, after discussion, it was said:
“The court in' Green v. McAvley, 70 Kan. 601, 79 Pac. 133, laid down the correct rule when it said:
‘“This suggests what we conceive to be the true rule of general, if not of universal, application, that so far as affects the question of the right of plaintiff to maintain the action the only inquiry open to the defendant is whether the plaintiff has such title to the note that a payment made to him would be a complete protection to defendant from any further liability.’ (p. 607.)” (p. 422.) .
We cannot agree with appellant that the above statute precludes the trustees from maintaining the action. Even though the Masonic Lodge had title to only one half of the property, its interest was in the property as a whole, and it might reasonably do whatever was necessary to protect it; it had an interest in who its cotenant was or would be. In any event, the appellant is in no different situation than it would have been if the corporation had been substituted for its trustees as plaintiff.
It is next contended that the arrangement whereby a committee made up of members of the two lodges, and whose duties were to see to repairs, pay the taxes, light bill and hire and pay the j anitor, etc., and to report to each lodge the amount due from it, amounted to an easement and precluded the Masonic Lodge from acquiring the mortgage on the Odd Fellow Lodge’s interest and enforcing it. The only authority cited in support is Ranney v. Childs, 96 Kan. 483, 152 Pac. 621, where a stairway agreement between adjoining landowners was held to run with the land. That case is not in point. If appellant’s contention is good, any arrangement between tenants in common for the care and maintenance of their joint property would not only prevent one’s holding a mortgage on the other’s interest, but would as well prevent partition of the jointly held real estate. And it may be further observed that the claimed agreement was made after the mortgage in question had been given and duly recorded. The contention is not good.
Appellant places its main reliance on the proposition that it had compromised and settled the amount of the debt secured by the mortgage with Sherman Baird, and that when he negotiated the note and mortgage to the bank and it to the Masonic Lodge, the note was past due and subject to all equities, including notice of the settlement. It seems fruitless to enter into a discussion of what may legally constitute a compromise or an accord and satisfaction, even though both are argued rather fully in the briefs. Giving effect to the rule that as against a demurrer the pleading attacked is to be liberally construed in favor of the pleader, and omitting the details, all that is alleged is that Sherman Baird, then the owner, offered to accept $600 for his note and mortgage and that one of the defendant trustees, for and on behalf of the trustees and the lodge, accepted and tendered $100. The very statement shows that the acceptance was a qualified one. There is no allegation that Baird ever agreed to the counter proposition, and though the pleading is silent, £he only conclusion that may be drawn from what is said is that he did not. It is a familiar rule of contracts there must be a meeting of the minds. In 12 C. J. 317 it is said:
“A definite meeting of the minds of the parties is essential to a valid compromise, for a settlement cannot be predicated on equivocal actions of the parties. ... A proposition made by way of settlement or compromise of a claim, unless accepted as made, is not binding on either party.” (pp. 317, 318.)
Here the allegations show that the offer was met with a counteroffer which was not accepted. That must be the end of the matter.
A review of the record fails to show that any ruling of the trial court in connection with the judgment was erroneous and prejudicial as to appellants, or that the trial court erred in denying their motion for reconsideration, in effect a motion for a new trial.
In connection with presentation of the appeal in this court, the appellees have filed a counter abstract containing testimony in another action between the same parties. The appellants have filed objections thereto and move that the counter abstract be stricken. The present appeal involves only a ruling on a demurrer to a pleading with judgment following that ruling. That ruling was of necessity confined to the pleadings in the case at bar. We need not discuss whether in some instances such a counter abstract might be proper. It was not proper here and is stricken from the files.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to collect on a note. Judgment was for defendants. Plaintiffs appeal.
On June 1, 1933, Mr. and Mrs. Swindell, defendants, were indebted to the Rose Hill State Bank, of Rose Hill, in the sum of $1,370, for which they had given their note secured by a mortgage on certain livestock and implements. During the general banking moratorium the bank was closed. Before it was permitted to open it was required to charge out twenty percent of its deposits and twenty percent of its assets. The twenty percent of the assets charged out was assigned to trustees for the depositors. The funds derived from the liquidation of these assets were to be used to repay the depositors for the twenty percent reduction they had accepted in their deposits.
The Swindell note was considered too great by $500. On June 1, 1933, the Swindells executed a note to the bank for $870. This note was secured by a mortgage on all the property formerly used as security for the $1,370 note. They also executed a note for $500, payable to the bank but assigned to trustees for the depositors of the bank. This note was unsecured. The $1,370 note was marked paid.
Sometime in October, 1934, Swindell advised the bank that he had no feed to maintain the stock covered by the chattel mortgage. The bank could not advance any more money, so a sale was agreed on for October 22,1934. The bank agreed to accept the proceeds of the sale in full settlement of the $870 note. Swindell asked the cashier of the bank, who was one of the trustees, to agree to accept the proceeds of the sale for the $500 note as well as the $870. The cashier said that he could not agree to do this, since he was only one of the trustees, but that he would be willing to do this if the other two trustees were willing. Mr. Swindell then saw one of the other trustees and he said he would be willing to do this if the other two trustees were willing. Mr. Swindell then saw one of the other trustees and he said he would be willing to accept the proceeds of the sale in payment for both notes if the bank cashier was willing. There is no evidence of any further action by the trustees. Before the sale was held Swindell told the bank cashier that unless the bank and the trustees were willing to take “the stuff and clean the slate” he was going to take bankruptcy. The cashier told him he did not need to do that because they would take it and save that expense.
The sale was had and the net proceeds thereof amounted to $515. This amount was paid to the bank and the $870 note was marked paid and delivered to Swindell. Nothing whatever was done or said about the $500 given the trustees by Swindell.
On May 14, 1936, this action was begun by the trustees to collect the $500. The answer of the Swindells was that the facts as they have narrated here constitute an accord and satisfaction. At the conclusion of the Swindells’ evidence, which showed facts about as they have been detailed here, the trustees demurred to it on the ground that it failed to show any defense to the cause of action of plaintiffs. This demurrer was overruled. The case was submitted to a jury. A verdict was returned for defendants. Judgment was entered accordingly.
Plaintiffs appeal on the ground that their demurrer to the evidence of defendants should have been sustained and their motion for judgment notwithstanding the general verdict should have been sustained.
The argument of plaintiffs is that the transaction between them and defendants was ■ not an accord and satisfaction because the agreement was not supported by any consideration. The question is, Was the agreement of Swindell not to take bankruptcy any consideration for the agreement of the trustees to accept the proceeds of the sale in payment of both notes?
Plaintiffs argue that it was obvious that they would never receive anything from the sale of the mortgaged property. This court cannot assume that such is the case. There is not sufficient evidence in the record so that we can say this. As the situation was when Swindell made his proposition not to take bankruptcy the trustees would have been compelled to take a pro rata share with the general creditors had he taken bankruptcy. As it was, when they made the agreement alleged they became preferred creditors as far as the stock and other property could be sold for enough to pay more than the $870 note. As events transpired we know now that this did not happen, but we cannot say from this record that both parties did not think they would benefit by Swindell’s refraining from taking bankruptcy. This court will not inquire into the adequacy of the consideration where it appears there was some consideration. The giving up of the right to take bankruptcy on the part of the debtor was a valuable right. (See 1 R. C. L. 187.) We have concluded that this case falls within the rule laid down in Sigler v. Sigler, 98 Kan. 524, 158 Pac. 864. There this court held:
“Where it is shown that the minds of the parties, whether acting by themselves as principals or through others as agents, have met and agreed upon the proposition that the receipt of the lesser sum shall extinguish all right on the part of the creditor to exact further payment, any possible or probable benefit to the one, or loss or inconvenience to the other, will be held to constitute a consideration for the new agreement.”
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the court overruling a demurrer to the petition in an action against the surety on the bond of a trustee. Two previous cases in this court (Ryan v. Scovill, 140 Kan. 588, 37 P. 2d 1007, and Scovill v. Scovill, 144 Kan. 759, 62 P. 2d 852) involve different phases of the same controversy. The allegations of the petition may be summarized as follows: Addie Seovill obtained a divorce from her husband, Fred Seovill, January 14, 1919. They then had four children — a grown married daughter, a son sixteen years of age, who stayed with his father, and two minor daughters, Dora, nine years of age, and Martha, five, the custody of whom was given to the mother. The parties agreed upon the disposition of their property. By one provision of this agreement liberty bonds and war savings stamps of the face value of $1,600 were to be placed in the hands of the mother, as trustee for the two minor daughters. The court approved this agreement and made an order placing the bonds and stamps in the hands of Addie Seovill, “as trustee for said minor children, which trustee shall execute a bond in the sum of sixteen hundred dollars conditioned that she will faithfully perform said trust and hold said bonds subject to the further, order of said court in trust for said children.” Addie Seovill gave the bond, which was signed as surety by her brother-in-law, Grant Burton, and the bonds and stamps were delivered to her. On June 21, 1937, upon the application of Dora Seovill Ryan and Martha Seovill Crane, then adults and married, being the same persons referred to in the divorce decree as the two minor children, the court made an order that the trustee, Addie Seovill, turn over to them the bonds and savings stamps she was ordered to hold for their benefit. She failed to do so, and this action was brought September 14, 1937, against her, and Grant Burton, as surety on her bond. It was alleged that the defendant, Addie Seovill, as trustee, had failed to comply with the order of the court, and, as plaintiffs are informed and believe, had disposed of the liberty bonds and war savings stamps without leave of court, and had used the proceeds thereof for her own use, or the use of some person unknown to plaintiffs; that plaintiffs had made demand upon her for the bonds and stamps, or their value, and that defendant had failed and neglected to deliver them, or their value, to plaintiffs. The prayer was for judgment against the trustee and the surety on her bond for $1,600, with interest since June 21, 1937. Attached to the petition as exhibits and made parts thereof are a copy of the decree in the divorce case, a copy of the bond, and a copy of the order of June 21, 1937.
Summons was served upon each of the defendants. It appears Addie Seovill has made default. Burton filed a motion to require the petition to be made more definite by setting out the date on which plaintiffs alleged Addie Seovill disposed of the bonds and stamps, the date plaintiffs, or either of them, discovered she had disposed of such bonds and stamps, and the dates on which plaintiffs became adults. This motion was overruled. The defendant Burton then demurred to the petition upon the ground, among others, that the petition did not state facts sufficient to constitute a cause of action against the defendant Burton and in favor of plaintiffs. This demurrer was heard and overruled, and the defendant Burton has appealed.
On this appeal the principal question argued is the statute of limitations (G. S. 1935, 60-307). Preliminary to that appellant contends that his motion to have the petition made specific as to the date plaintiffs claimed their mother, as trustee, wrongfully disposed of the bonds and stamps, the date plaintiffs learned of it, and the dates they respectively became of age, having been opposed by plaintiffs and overruled, he is entitled to have the petition construed more favorably to him in these respects. The point is well taken, under many of our decisions, from Stewart v. Balderston, 10 Kan. 131, to Bell v. Bank of Whitewater, 146 Kan. 901, 904, 73 P. 2d 1059. But neither the trial court ñor this court need close its eyes to its own record. The opinion in Ryan v. Seovill, supra, discloses that the bonds and stamps were sold by the trustee in 1921 and the money loaned at a higher rate of interest to one regarded as being financially responsible; that this was done under the advice of her attorney and of a banker who had been her financial adviser, and that the plaintiffs learned of this as early as May, 1933. The petition in this action, with its exhibits attached, discloses that one of the plaintiffs was 28 years of age and the other 24 when this action was brought, and that the order of the court for the trustee to deliver the bonds and stamps, or their value, to plaintiffs was applied for and obtained less than three months before this action was brought.
The rule of law which governs the matter was well stated by Mr. Justice Burch in West v. Bank, 66 Kan. 524, 527, 72 Pac. 252, as follows:
“It is established law in this state that when some preliminary action is an ■ essential prerequisite to the bringing of a suit, and such action rests with the claimant, he cannot defeat the operation of the statute of limitations by long and unnecessary delay in taking the antecedent step; and the statute will be gin to run within a reasonable time after the party could, by his own act, perfect his right, which reasonable time will not, in any event, extend beyond the statutory time fixed for bringing the suit. This doctrine has been stated and restated, illustrated and illuminated, applied and reapplied, until it has become a truism.” (Citing many authorities.)
Later cases announcing and applying this principle of law are McClun v. Lutz, 99 Kan. 775, 777, 162 Pac. 1164; Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 128, 131, 23 P. 2d 465; McCormick v. McCormick, 140 Kan. 38, 40, 33 P. 2d 942; see, also, Bell v. Bank of Whitewater, 146 Kan. 901, 73 P. 2d 1059. The general authorities are to the same effect; 17 R. C. L. 755, 756; 37 C. J. 961, 965.
We have examined the authorities cited by appellees and find nothing in them contrary to the' rules of law above stated. They argue, also, that the statute of limitations should be raised by answer. However, it has been repeatedly held that where a petition discloses on its face that the cause of action is barred by the statute of limitations the question may be raised by demurrer to the petition. See Kansas State Bank v. Shaible, 118 Kan. 73, 234 Pac. 40, and many other cases noted in Hatch. Dig. § 189, Lim.- of Act. As was pointed out in Scovill v. Scovill, supra, the appellant here was a gratuitous surety and entitled to have statutes and rules of law designed for the protection of such a surety strictly construed in his favor.
Here it is clear the alleged wrongful disposition of the bonds and stamps occurred many years ago, and that plaintiffs knew of it as early as May, 1933. Under G. S. 1935, 60-307, each of the plaintiffs had one year after she attained her majority in which to bring this action, but one of them waited about seven years and the other about three. It is true it was necessary for them, before bringing the action, to get an order from the court for the trastee to turn the bonds and stamps, or their value, over to them. (Scovill v. Scovill, supra.) They had a reasonable time in which to obtain this order, but under the many authorities cited herein such reasonable time could not extend beyond the one year in which the action might be brought.
The result is, the demurrer should have been sustained. No good purpose will be served by continuing this litigation. The judgment of the court below will be reversed, with directions to sustain the demurrer to the petition. It is so ordered.
Allen, J., dissenting. | [
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The opinion of the court was delivered by
AlleN, J.:
This is an action to construe a will. The trial court sustained a demurrer to the amended petition, and plaintiffs appeal.
The testator, John Warfield, a resident of Allen county, died August 14,1934. By his last will, dated August 31,1927, he disposed of his estate in the following manner:
“1. I, John Warfield, order and direct that all my just debts and all expense of my last sickness and funeral expense be first paid out of my estate.
“2. It is my will and desire and I hereby bequeath and devise to my niece, Stella Irene Kelsey, my real estate described as follows, to wit:
“The southeast quarter of section 11, township 27, range 21, Bourbon county, Kansas, for the term of her natural life, she to have the full possession and control of the said tract of land, and all income therefrom, and she to pay all taxes and upkeep charges thereon. Also,
“The southeast quarter of section 31, township 27, range 21, Neosho county, Kansas, for the term of her natural life, she to have the full possession and control of the said tract of land, and all income therefrom, and she to pay all taxes and upkeep charges thereon. But she shall not mortgage nor encumber either tract of said land nor any part thereof during her lifetime. She may lease said land or any part thereof for oil and gas and develop same for such products.
“3. It is my will and I hereby devise the real estate by this will devised to Stella Irene Kelsey, for her lifetime, to her children, in fee simple, when she dies, but not sooner.
“4. Personal property: It is my will and I hereby bequeath to my said niece, Stella Irene Kelsey, the sum of $5,000 out of the personal property belonging to me, at the time of my death, on the following conditions, to wit: That the said sum of $5,000 be paid to her as soon as may be after my death, the said sum of money to be by her kept and invested and the proceeds arising therefrom to belong to her and for her use and benefit, as long as she lives. At her death the said sum of $5,000 shall be and become the property of the children of the said Stella Irene Kelsey and shall be paid to them.
“5. After the bequests and devises hereinbefore made by me have been paid and fully met, and all debts and charges paid, the remainder of my estate, belonging to me at the time of my death, shall be disposed of and paid as follows, to wit:
“It is my will and I bequeath such remainder of my estate to my sister, Elizabeth Martindale, and my brothers, James Harvey Warfield and Charles Eranklin Warfield, share and share alike, but no part of any bequest to them or either of them shall be paid until the bequests and devises made to other persons in this will have been fully paid and carried into effect.
“6. I hereby name and appoint Stella Irene Kelsey to be executor of this will and request that she be allowed to serve without bond.”
The amended petition alleged in substance:
That the plaintiffs and defendants together are the beneficiaries under the will and are all necessary parties to the determination of the matters set out in the petition.
That the plaintiff, Stella Irene Kelsey, is a niece of the testator, John Warfield, and that, the defendants are brothers and a sister of the testator. That for many years prior to his death, and for many years prior to the execution of his will, John Warfield was a resident of Allen county, and that during these years the plaintiffs were residents of Neosho county, and living within a few miles of the testator. That during this period of years the testator frequently lived with the plaintiffs for long periods of time, and frequently visited in plaintiffs’ home, and the plaintiffs frequently visited in the testator’s home. That during this period of years the defendants lived in the state of Illinois, and did not visit with the testator, and the testator did not visit with them, and for many years prior to testator’s death, and prior to the execution of his will, as plaintiffs are informed and verily believe, the testator did not see the defendants or communicate with them in any way. That by reason of the above and foregoing facts and circumstances, the plaintiffs are the natural objects of the bounty of the testator, John Warfield.
That the will is ambiguous in two respects:
1. That there is not sufficient personal property in the estate to pay certain bequests to plaintiffs and the debts, charges and expenses of administration; that the only residuary property is real estate in Allen and Bourbon counties, and it is not clear from the terms of the will whether the testator intended that the debts and charges against his estate should be paid and met out of the residuary real estate or out of the personal property bequeathed to plaintiffs.
2. That is it not clear from the terms of the will whether the testator intended that the payment of the bequest to plaintiffs of five thousand dollars contained in paragraph 4 of the will should be a charge upon the residuary real estate in the event that the personal property should be insufficient to pay the bequest in full, and that the residuary real estate should be treated as personal property and sold to satisfy any deficiency in the personal assets of the estate.
That the plaintiffs desire and are entitled to have the court construe the provisions of the will and determine the intention of the testator and to resolve the ambiguities contained in the will.
That the natural, reasonable and proper construction of the will is to the effect that the testator intended for all debts and charges against the estate to be paid out of the residuary personal property, and that in the event there was no such residuary personal property such debts and charges should be paid and satisfied out of the residuary real estate. That the testator intended that the bequest of five thousand dollars hereinabove mentioned should be paid out of the personal property of the estate, or in the event that there was not sufficient personal property to pay the bequest, that the bequest should be a charge upon the residuary real estate and that the residuary real estate should be sold to satisfy and pay the bequests, and that in no event should the defendants herein receive any bequest or devise as residuary beneficiaries until all bequests and devises to these plaintiffs have been satisfied in full and all debts and charges against the estate satisfied in full.
Defendants assert that although the legacy of $5,000 is payable in money, it is a specific legacy, and in support of this proposition rely on Warren v. Phebus, 132 Kan. 816, 297 P. 2d 657. In that case the testatrix had a fund in a bank which she directed to be withdrawn and divided among certain named persons in a designated manner. Under the circumstances the court found that the legacy there in question was payable out of the fund in the bank “and not out of any other funds.” Clearly that was a specific legacy, and the fund out of which it was payable having been withdrawn by the testatrix in her lifetime, the gift failed. (Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021; Taylor v. Hull, 121 Kan. 102, 245 Pac. 1026.)
In the case at bar, if the testator had stopped with paragraph 4 of the will the argument of defendants would have been persuasive. But in paragraph 5 he declares “after the bequests and devises here-inbefore made by me have been paid and fully met, and all debts and charges paid, the remainder of my estate” is to go to his brothers and sister. But not content with this clear statement, and to exclude any lingering possibility of a doubt as to his intention, the testator makes the further emphatic statement that no part of any bequest to his brothers and sister “shall be paid until the bequests and devises made to other persons in this will have been fully paid and carried into effect.” This language, we think, leaves the defendants without any substantial ground upon which to rest the opposite contention.
A testator may, either expressly or by implication charge his real estate with payment of debts and legacies in exoneration of his personal estate. The intention must find expression in the will, or it cannot be given effect. (Warlick v. Boone, 120 Kan. 148, 242 Pac. 135; Winquist v. Doering, 135 Kan. 92, 9 P. 2d 632.)
In In re Will of Newcomb, 98 Ia. 175, 67 N. W. 587, the syllabus reads:
“Testator, after making certain legacies to be paid from the proceeds of the realty, gave other legacies to be paid from the avails of personalty, and subsequently gave the proceeds of the residuary estate, real and personal, to be divided among certain persons. Held, that in case the personal estate was insufficient for the payment of the legacies directed to be paid therefrom, such legacies, after payment of the legacies directed to be paid from the proceeds of the realty, should also be paid from the balance of such realty proceeds.”
After the payment of the debts and the legacy of $5,000 the testator devises and bequeaths the residue as one mass to the defendants. In holding, as we do, if the personal estate is not sufficient to pay these items, the residual real estate must stand charged therewith, we are giving effect to the positive directions of the testator. For the reasons given, we think the petition stated a cause of action.
The judgment must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This was an action for damages for injuries sustained by the plaintiff when the automobile she was driving was struck by defendant’s train at a township road crossing in Butler county.
The pertinent facts were chiefly these: About half a mile west of Benton there is a township road which runs north and south. This road is crossed by the Missouri Pacific railway, which runs east and west thereabout. To the north of the railway track and west of the township road there is an embankment which shuts off a westward view of the railway from a traveler on the public road until he gets close to the track.
On June 3, 1936, this plaintiff, who resides somewhere south of this railway crossing, had been visiting a relative who resided a short distance north of the railway.. About 4 o’clock in the afternoon she started for home. In the automobile with plaintiff were her mother, aged 81, her brother, 56, her sister, 44, and two ten-year-old girls. When plaintiff’s automobile, traveling southward, reached the crossing it was struck by defendant’s eastbound train, with fatal results to several of the occupants of the automobile and with various and sundry injuries to this plaintiff.
Plaintiff sued for damages, charging defendant with negligence in various respects. Defendant pleaded the general issue and contributory negligence.
The jury returned a verdict for plaintiff in the sum of $2,075, which included $487.50 to plaintiff’s husband for loss of plaintiff’s services due to her injuries. Accompanying the general verdict were special findings which require careful examination. These read:
“Q. (1) Did Emma Mr,Cune look to her right for an approaching train before driving upon the defendant’s track? A. Yes.
“Q. (2) If you answer question 1 in the affirmative, then state at what distance or distances north of the north rail she was when she looked. A. 30 feet.
“Q. (3) At what rate of speed did the automobile approach the crossing? A. 8 miles per hour.
“Q. (4) At what rate of speed did the train approach the crossing? A. 40 miles per hour.
“Q. (5) Did the plaintiff stop her automobile before driving upon the crossing? A. Yes.
“Q. (6) If you answer question 5 in the affirmative, then state how far north of the north rail the automobile was stopped. A. Approximately 30 feet.
“Q. (7) If you find that the plaintiff stopped her automobile north of the north rail, then state how far west of the crossing an approaching train could have been seen from the point where she stopped the automobile. A. 100 feet.
“Q. (8) How far west of the crossing could an approaching train have been seen by the plaintiff— (a) When she was 25 feet north of the north rail? A. Approximately 300 feet.
“(b) When she was 20 feet north of the north rail? A. Approximately 500 feet.
“(c) When she was 16 feet north of the north rail? A. Approximately 1,500 feet.
“(d) When she was 12 feet north of the north rail? A. Approximately 3,900 feet.
“(e) When the front bumper of her car was 10 feet north of the north end of the railway ties? A. Approximately 1,000 feet.
“Q. (9) If you find the defendant was guilty of negligence, then state fully, definitely and specifically of what such negligence consisted. A. Embankments and weeds.
“Q. (10) Do you find the plaintiff was guilty of contributory negligence? A. None.”
All the usual post-trial motions were presented and overruled by the court, and judgment was entered for plaintiff.
Defendant appeals, contending chiefly that the special findings of the jury convicted the plaintiff of contributory negligence which barred a recovery in her behalf against the defendant.
Going directly to this point, it has long been settled law in this state, as throughout this country generally, that a railway track is itself a warning of danger. (Bazzell v. Atchison, T. & S. F. Rly. Co., 134 Kan. 272, 5 P. 2d 804.) A person about to cross a railway track must first assure himself that no train is approaching and that it is safe to cross. If he attempts to cross without first making sure that he can safely do so, he is guilty of negligence, and he will not be permitted to penalize the railway company if an accident occurs. Our own reports are laden with decisions to this effect. The older cases were collated by the late Mr. Justice Marshall in Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023, and Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742. In the latter case this court said:
“The driver of an automobile cannot recover damages for injury to himself and his machine where he approaches a railway track at a place at which he cannot see along the track until his automobile is in a place where it will be struck by a passing' engine or, cars, and does not stop his car to ascertain whether or not there is danger, although he listens before going into the place of danger and does not hear any engine or cars coming.” (Syl.)
Bunton v. Railway Co., 100 Kan. 165, 168, 163 Pac. 801, was an action by a husband for the death of his wife, who was killed in a railway-crossing accident. The jury returned a verdict for plaintiff and answered several special questions, one of which was that plantiff and wife had exercised ordinary care and reasonable prudence in crossing the railroad track at the time and place and in the circumstances. Such a finding, of course, was equivalent to an acquittal of plaintiff and his wife of contributory, negligence. But another special finding showed that at 20 feet from the railway track the oncoming train could have been seen for a qüárter: of a mile. That highly significant fact compelled a reversal of the judgment. In the opinion.the court said:
“The duty to keep a sharp lookout for trains at a public crossing has often been expounded by this court. A railroad crossing is itself a danger signal. One who proposes to cross a railroad must look and listen. It is not required, in this state, that a person must necessarily stop, in order to look and listen, unless the surroundings and circumstances demand that' unusual prudence. If the circumstances do demand such prudence, then there is a duty to stop, look, and listen. (Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742.) While the plaintiff testified that he did' keep a sharp lookout, the jury’s special findings are that at twenty feet and at- thirty feet from the crossing there was nothing to prevent the plaintiff from seeing the , oncoming train. This in effect is a finding that he did not look to see if'a train was approaching.” (p. 168.)
In the present case the jury found that plaintifUstopped her automobile when she was 30 feet from the railway track, at which distance she could not have seen a train until it was only 100 feet from the crossing. Certainly nothing she could learn about the possibility of an approaching train .within that short distance gave her any assurance that it was safe .to cross the track.
The jury found that the defendant was negligent in permitting “embankment and weeds” (finding 9) in close proximity to the crossing which shut off plaintiff’s view of the oncoming train at a distance of 30 feet from the track. That plaintiff looked for a train at that distance — where she could only see 100 feet westward along the railway — was not enough. It did no good to look where she could not see. In Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397, which was another crossing case, the jury returned a verdict for plaintiff and answered several special questions, one of which read:
“‘As the plaintiff approached the crossing in question what, if anything, was there to prevent him seeing or hearing the approaching car in time to stop his automobile before it passed on to the north rail of the track, if it did? A. Bank and weeds.’ ” (p. 270.)
On appeal the fact that the plaintiff’s view was obstructed was considered. The court said:
“It is not required in this state in all cases that one about to cross a railway track must stop, look and listen to assure himself that he can cross in safety; but where obstructions to his view prevent him from otherwise ascertaining the fact of safety, then it is his duty to stop to make sure of his safety before crossing.
“. . . A driver of an automobile' cannot recover damages for injury to himself and his machine in a collision with a trolley car occasioned by the driver’s attempt to cross a railway track -without stopping to ascertain that he could-cross in safety, when, owing to obstructions to his view, that fact could not have been otherwise ascertained.” (Syl. Iflf 2, 3.)
In Rathbone v. Railway Co., 113 Kan. 257, 214 Pac. 109, a woman riding with her son was killed at a railway crossing where a view of the oncoming train was obstructed. This, court said:
“But notwithstanding defendant’s negligence in the way it maintained the crossing, it was incumbent upon Emmett and Bessie Bathbone, before they attempted to cross the railway track where their vision was shut off by obstructions, to ascertain positively that no train was approaching and that they could safely cross. This they did not do. ... It is settled law in this state that it is negligence to attempt to cross a railroad track ahead of a speeding train, even in a case where but for a defective crossing the party making such foolhardy attempt would have escaped unscathed by a few ticks of the clock.” (p. 259.)
In another railway crossing case, Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715, the jury specially found (finding 10) that immediately before driving on the railway track the deceased had looked and listened. In the opinion it was said:
“Counsel for appellee direct our attention to finding No. 10, which declares that Brim looked and listened just before he did attempt to drive across the track. To that there are two effective answers: . . . second, if he looked at any point where it would have done any good to look, he must have seen the approaching train (Young v. Railway Co., 57 Kan. 144, 45 Pac. 583; Pritchard v. Railway Co., 99 Kan. 600, 162 Pac. 315; Crane v. Railway Co., 89 Kan. 472, 131 Pac. 1188; Gaffney v. Railway Co., 107 Kan. 486, 192 Pac. 736); and if he looked at a point where he could not see, such a futile act would not discharge his duty to himself as a man of ordinary prudence (C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 482, 483, 30 Pac. 462) to ascertain whether a train was approaching ere he ventured to cross that place of danger. In Railway Co. v. Wheeler, 80 Kan. 187, 191, 101 Pac. 1001, it was said:
“Tt is not enough for a traveler to look where an approaching train cannot be seen or to listen when it cannot be heard.' Nor will it suffice that one has looked some distance away from the crossing when a view on a closer approach would have revealed the danger. (Railroad Co. v. Holland, 60 Kan. 209; Railroad Co. v. Entsminger, 76 Kan. 746.) Where by reason of obstructions or noises an approaching traveler cannot see or hear a coming train, it may be necessary for him to stop or take some other suitable precaution to ascertain whether there is a train in- dangerous proximity: (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284.) In short, he must exercise care proportionate to the perils of the place.’ ” (p. 163.)
In Cooper v. Railway Co., 117 Kan. 703, 232 Pac. 1024, it was held:
“Where one is about to cross a railway track and obstructions to his sight and hearing prevent him from assuring himself that no train is approaching, it is negligence for him to risk his life by attempting to cross without otherwise ascertaining that it is safe to do so.” (Syl. It 2.)
Recent cases governed by this same mixed principle of law and fact are; Hartman v. Kansas City, L. & W. Rly-. Co., 132 Kan. 182, 185, 294 Pac. 913; Vance v. Union Pac. Rid. Co., 133 Kan. 11, 14, 298 Pac. 764; Dennis v. Kansas City, K. V. & W. Rly. Co., 133 Kan. 214, 219, 220, 299 Pac. 941; Kindig v. Atchison, T. & S. F. Rly. Co., 133 Kan. 459, 461, 2 P. 2d 75; Carter v. Missouri Pac. Rld. Co., 136 Kan. 526, 16 P. 2d 472; Pagan v. Lowden, 145 Kan. 513, 518, 519, 66 P. 2d 567.
In the case at bar, when plaintiff was 20 feet from the rail she would have had a view of the track for a distance of 500 feet in the direction from which the train was coming. At 16 feet she would have had a view for a distance of 1,500 feet. At 12 feet she could have seen the train coming at any distance within 3,900 feet. Plaintiff’s testimony was that after stopping at 30 feet from the track— and looking for a train where she could not see because of the embankment and weeds — “I shifted my gears into low and started on.” The jury found that the automobile approached the crossing at 8 miles per hour. The jury’s special findings in response to question No. 8 demonstrate beyond cavil that there was nothing to prevent plaintiff from seeing the train at sufficient distance from the track to have stopped her automobile, which was traveling in low gear, and thus averted this accident to herself and the other tragic consequences which ensued.
We do not overlook the cases cited by appellee. In none of them are there special findings of the jury such as No. 8 set out above, and consequently they lend no support to the case at bar. Here the plaintiff’s contributory negligence is established by the special findings, and the result is the judgment must be reversed with directions to enter judgment for defendant.
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The opinion of the court was delivered by
Wedell, J.:
This was originally an ejectment action. It was brought by the fee title owners and their spouses against the defend ant, Joe Glenn, the holder of certain tax deeds. His wife, Marie Glenn, was joined as a party defendant. The trial court set aside the tax deeds and rendered a judgment in rem in favor of the tax title holder in the amount paid for the tax deeds, together with interest at the rate of twelve percent per annum from the date thereof, and for court costs. The judgment further provided that if-plaintiffs failed to pay the judgment within thirty days an order of sale should issue directing the sale of the land to satisfy the lien. From that judgment plaintiffs appeal. We shall refer to the parties as plaintiffs and defendant.
The action involves the west half of a section of land in Logan county. The defendant, Joe Glenn, obtained two tax deeds on September 5, 1931, one of which covered the northwest quarter and the other the southwest quarter of the section. Agnes Knox had been the life tenant under the will of her husband. She lived until May 11, 1936. Thereafter the plaintiffs, being the remaindermen and their spouses, brought this action.
Plaintiffs first contend the trial court erred in finding the defendant, Joe Glenn, took possession of the premises within two years. In determining the correctness of a specific finding, we need of course examine the record only for the purpose of ascertaining whether there was substantial competent evidence to support the finding, and not whether there was evidence to the contrary. (Smith v. Lockridge, 145 Kan. 395, 397, 65 P. 2d 345; State v. Stephens, 146 Kan. 660, 662, 72 P. 2d 975.)
The parties stipulated as follows:
“That the plaintiffs are the heirs and only heirs-at-law of Charles Arno Knox, deceased; that prior to the year 1931, Mrs. Agnes Knox was the owner of a life estate in the lands involved in this controversy, and that the plaintiffs were the owners of the remainder; that on September 5, 1931, the' defendant, Joe Glenn, received two tax deeds upon the lands involved in this action, and that both deeds were placed of record the same day they were issued; that both of the deeds are voidable, due to the fact that the county commissioners of Logan county, Kansas, had failed to adopt the provisions of chapter 288 of the Laws of 1921; that prior to the 5th day of September, 1931, Mrs. Agnes Knox, the life tenant, was in possession of said land as life tenant, and that Mrs. Agnes Knox died on May 11, 1936.”
The west half of the section, being the land in dispute, was in pasture, and contained no building improvements, but was fenced. The defendant, Joe Glenn, testified in substance as follows: The life tenant had asked him whether he would pay the taxes and'take a tax deed; that she would redeem the tax deeds as soon as she was able to do so; the understanding was that he would accept the principal and interest whenever she was able to pay it; the request of the life tenant and agreement between them had been that the defendant should deed the property back to her and to no one else; .in the fall of 1933, some of the remaindermen offered to redeem the land and pay him a $50 bonus, but he refused to make a deed to them by reason of his agreement with the life tenant to deed the land only to her upon payment of the amount due; in January of 1932 he had the fence repaired and put his horses in the pasture.
A man by the name of Luther, called as a witness by plaintiffs, testified in substance: At the time the tax deeds were issued on September 5,1931, he was a holdover tenant under his lease from the life tenant for the year from March 1, 1931, to March 1, 1932; the west half of the land was in pasture and he farmed only the east half of the section; an employee of the defendant, Glenn, first repaired the fences, and in the spring of 1932 Mr. Glenn put his horses on the west half of the section; it was generally known that Bert Fick was breaking.the horses on this land for the defendant, Glenn.’
A tenant by the name of Graham, called as a witness for plaintiffs, testified in substance: Prior to March 1, 1932, he entered into a lease contract with the life tenant and farmed the place from March 1,1932, to March 1,1933; he kept his cattle in the pasture; that the life tenant in December, 1932, served notice on him to vacate; on cross-examination he identified his signature to the following instrument:
“To Whom It May Concern: This is to certify that between January 1st and March 1st, 1932, I, E. D. Graham, together with Mrs. Agnes Knox and her son, W. T. Knox, called upon Joe Glenn at his farm for the purpose of leasing west half of section 10, T. 12, R. 37 in Logan county as Mrs. Knox had said it would be necessary to consult the said Joe' Glenn since the title to said land was in his possession and name through tax deed. — Signed: E. D. Graham. Witness : Biro Graham/’ (Italics inserted.)
It is true the witness further testified to the effect that he did not remember signing the instrument but that the statements therein were substantially correct except as to that portion dealing with title and possession of the defendant Glenn, under his tax deed. The witness having identified his signature to the instrument, it was the province of the trier of the facts to determine the weight to be given to the entire contents of the instrument. Moreover, the witness did admit the life tenant requested that he see the defendant concerning the renting of the west half, that the life tenant desired to consult the defendant Glenn, and that they did both consult him concerning the lease.
The witness -Fick testified in substance: He lived near to and was acquainted with the land involved; he saw defendant’s horses on the land and took some of them from the land for the purpose of breaking them; at that time defendant had from twelve to fourteen head of horses on the land.
The witness Rogers testified in substance: He was acquainted with the land; he and the defendant went to the land to see the horses; he went there with the view of buying the horses; ten or twelve head of horses were then in the pasture.
While there was other and conflicting testimony, there was substantial evidence to support the finding of possession by the defendant. The testimony of plaintiffs’ own witness, Graham, indicated that his possession for the rental year, March, 1932, to March, 1933, was not adverse to that of the defendant. It disclosed the life tenant was unwilling to make the lease to him without first consulting the defendant, and that the defendant was consulted concerning the lease by both the life tenant and Graham, the prospective tenant. According to the stipulation the tax deeds were voidable only, and were recorded the date they were issued, namely, on September 5, 1931. Defendant went into possession within two years from the issuance of the tax deeds. Clearly, in order to be entitled to the relief granted, defendant was under no duty to bring an action for the recovery of the property within two years under the provisions of G. S. 1935, 60-304 (third), relied upon by plaintiffs.
In support of plaintiffs’ contention that defendant had not acquired possession, they cite Dickinson v. Bales, 59 Kan. 224, 52 Pac. 447; Buckner v. Wingard, 84 Kan. 682, 115 Pac. 636; and Trager v. Elliott, 106 Kan. 228, 187 Pac. 875. A reading of those opinions will readily disclose the dissimilarity of facts with those in the instant case, both as to the fact of possession and also as to the recognition of the right of that possession by the owner.
Touching the question of possession, plaintiffs emphasized the fact the life tenant signed the leases on the land at all times and received the rentals after the issuance of the tax deeds. We know of nothing to prevent the holder of a tax deed from permitting the life tenant to have the benefits of the rentals if the tax title holder was willing she should have them.
In order to avoid confusion it must be remembered the question in the instant case is not whether defendant acquired title to the land by virtue of the tax deeds and his possession thereunder. The judgment decreed he did not have a valid title. From that judgment he has not appealed. The question before us is whether he was entitled to the relief granted. It was agreed the tax deeds were voidable. He was entitled to the exact relief which was decreed. (R. S. 1923, 79-2506; Bayha v. Doty, 134 Kan. 494, 496, 7 P. 2d 103; Bryant v. Clements, 142 Kan. 154, 158, 46 P. 2d 7.) In the Bryant case it was said:
“The statute provides in effect that when a tax-deed holder is defeated in an action by or against him for possession, the successful claimant shall be adjudged to pay to the defeated claimant all.taxes, interest and costs before the successful claimant shall be let into possession. (R. S. 79-2506). ... In such a case the tax-deed holder’s remedy is by judgment of court, declaring a lien and ordering a sale unless the successful claimant satisfies the lien before sale.” (p. 158.)
As to the rate of interest on a judgment, defendant was entitled to interest at the rate of twelve percent per annum (R. S. 1923, 79-2506), as decreed by the court, and not to only ten percent interest as provided by the present law. (G. S. 1935, 79-2506.) The question is governed by statute. G. S. 1935, 79-2908, expressly provides:
“All matters relative to the sale and conveyance of lands for taxes under any prior statute shall be fully completed according to the laws under which they originated, the same as if such laws remained in force.”
Plaintiffs further urge defendant was in privity with the life tenant and was therefore estopped from taking a tax title adverse to the remaindermen. The contention cannot be sustained. The life tenant was legally bound to pay the taxes. (Menger v. Carruthers, 57 Kan. 425, 428, 46 Pac. 712; Jinkiaway v. Ford, 93 Kan. 797, 145 Pac. 885.) She was unable to pay them. The remainder-men, not being in possession and having no right to the occupancy or use of the land, could have purchased and held the tax title. (Jinkiaway v. Ford, supra.) They did not do so. Defendant was under no obligation whatsoever to pay the taxes, and there was nothing to preclude him from purchasing the tax deeds. That one under obligation to pay taxes upon land cannot legally acquire a tax title, is clear. (Jinkiaway v. Ford, supra.) That one under no obligation to pay the taxes may obtain such title is just as firmly established. (Jinkiaway v. Ford, supra.) Defendant's possession did not arise out of privity with the life tenant. He was not her tenant. He took possession under the tax deeds. The payment of the taxes appears to have been a courtesy to the life tenant. Defendant agreed to deed the property to her and to no one else whenever she was able to redeem. During her lifetime she, and not the remaindermen, were entitled to the use and occupancy of the land. She never redeemed. The judgment of the trial court gives to the defendant only that which the statute provides he shall have. The judgment results in giving the remaindermen an opportunity to do that which the life tenant was legally bound to do, and fully intended to do, but was unable to do, and which the remaindermen in equity and good conscience should be and are required to do in order to obtain possession of the property.
Plaintiffs finally insist that if defendant is entitled to recover at all he is entitled to interest only from the date of the offer of the remaindermen to redeem in the year 1933. Assuming, without deciding, that a valid tender was made, the defendant was not obliged to make a deed to the remaindermen during the life of the life tenant in violation of his agreement to make a deed only to her.
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The opinion of the court was delivered by
Smith, J.:
This was an action on a promissory note. Judgment was for plaintiff. Defendants appeal.
In 1934 defendants were indebted to plaintiff in the amount of $2,900. This debt was secured by a second mortgage on real estate and a chattel mortgage on livestock and other personal property. The Federal Land Bank of Wichita and the Prudential Insurance Company held first mortgages on the land owned by defendants. In the spring of 1934 defendants were unable to pay their debts and the interest on the mortgage on their real estate. They applied to the Federal Land Bank at Wichita for a loan on their real estate. This application was approved in the amount of $7,500 by the Federal Land Bank, and for a loan of $4,200 by the land bank commissioner, provided that this amount would pay all debts except a chattel mortgage on livestock not to exceed $1,400. .
The entire plan included contemplated agreements on the part of creditors to accept a given amount in payment of the debt owed them. The idea was that the government agencies would not lend the borrower money unless the amount he was deemed able to borrow was sufficient to pay off all his indebtedness and give him a new ^tart. The way this was done was to submit what was called a “creditor’s statement” to each creditor. The document is something new in our business life. We are just beginning to encounter one occasionally on appeals brought to this court. • It stated what the indebtedness of the borrower to the particular creditor was and how much the creditor would take to satisfy this indebtedness. At any rate, such a statement was submitted to plaintiff. It was executed by plaintiff, and stated that the indebtedness of defendants to it was $2,900 principal and $156 interest secured by a mortgage on real and personal property. The plaintiff agreed that upon payment to it of the balance of the proceeds of the loan to be made by the Federal Land Bank, and the payment of the Prudential Insurance Company mortgage of $2,000, this amount to be endorsed on the chattel mortgage, it would carry the balance on livestock and other chattel security. Plaintiff also agreed to release its mortgage upon the real estate of the defendants on payment to it of $1,292 and to carry the balance on the personal property of defendants. The printed form of this creditor’s statement contained the following statement:
“. . . and that when said consideration is paid all claims of this creditor against the above-named debtor will have been satisfied in full.”
This clause was lined out with ink before plaintiff executed the statement.
When this proposition was submitted to the Federal Land Bank that institution advised plaintiff it would be necessary that the amount of the indebtedness of defendants which plaintiff would carry on a chattel mortgage would not exceed $1,400. Plaintiff would not accept this proposition and suggested that defendants borrow the $1,400 needed from another agency of the government. Plaintiff agreed to accept $2,692 in full. Defendants made application for a loan to the Greensburg Production Corporation, but that agency would not agree to loan more than $1,100. Plaintiff proposed that it would accept the proceeds of the loans from the Federal Land Bank and the Greensburg Production Credit Corporation and carry the balance of the debt on Sellon’s note. On December 29, 1934, plaintiff received the proceeds of the two loans, released its mortgages and took two notes from defendants, each due in six months — one for $384 and the other for $212.50. The $384 note was paid some time after maturity. This action was brought to collect the note for $212.50.
The defendants alleged in their answer first that the note was void for want of consideration on account of the provisions agreed to by plaintiff in the creditor’s statement. They pleaded a second defense that at the time of the execution of the two notes plaintiff agreed that if the $384 note was paid the $212.50 would be canceled, and that prior to the maturity of the $384 note defendants had a further agreement with plaintiff whereby plaintiff agreed to extend the time for the payment of the $384 note and still give defendants the benefit of the cancellation agreement. In its reply plaintiff pleaded a general denial. The case was submitted to the court without a jury. The court found for the plaintiff and gave judgment for it.
An examination of the evidence discloses that the note for $384 and the note for $212.50 were both given to secure money with which to purchase feed for the livestock of defendants. Mr. Sellon himself testified to this. The record shows clearly that the two notes were given as a separate transaction from the refinancing agreement. In view of this evidence the court was warranted in finding against defendants on the first defense pleaded.
As to the second defense, there was a conflict of evidence as to whether the plaintiff agreed to cancel the note sued on provided the $384 note was paid even though it was not paid when due. It is clear that the $384 was not paid when due.
The trial court heard and weighed this evidence and found for the plaintiff. Under such circumstances this court will not review this finding.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for rescission of a contract and for return of a note given in connection therewith, in which defendant recovered on his cross petition for damages for breach of the contract. The plaintiff appeals.
The appellant contends that the trial court’s findings of fact are contrary to the evidence, and that its conclusions of law are improper and not supported by the evidence, and that it erred in denying the motion for a new trial.
The appellant’s petition stated two causes of action. The first was that it had entered into a contract with appellee for the construction and installation of a large sign on the theater of appellant at Parsons, Kan., the price to be $175 cash and a note for the face amount of $560, which included interest of $40, the note being payable in installments; that the appellee had breached the contract by ten specified failures, including therein recitation of certain claimed noncompliances in that the entire job was not properly installed, the sections of the sign not being properly lined up and not fitting at joints and corners; that the installation had not been completed in a reasonable time, and that the sign did not bear the underwriter’s label of approval, nor did it have the union label, as required by the contract; that appellant had notified appellee that it rescinded the contract and for him to remove his materials and fixtures placed on the theater in attempted performance of the contract.
The second cause of action included the allegations of the first cause of action, and alleged damages of $5,000 by way of loss of receipts occasioned by failure of appellee to complete installation of the sign.
The prayer was for judgment rescinding the contract, for return of the note and for the damages.
Briefly stated, appellee’s answer was that appellant had refused to permit him to properly and completely finish the sign, and that the contract was not subject to cancellation. By cross petition appellee alleged his performance under the contract, the refusal of appellant to permit him to fully perform; that appellant had breached the contract and that he had removed the sign; that the sign was especially prepared for appellant’s theater, and after breach by appellant he was able to salvage only certain materials, and that he had been damaged in the sum of $618.27, for which he prayed judgment. Following the trial, the court made twenty-seven findings of fact, later referred to, and rendered judgment in favor of appellee for $518.27.
For the reason appellant’s argument is concerned principally with the matters hereafter discussed in detail, we shall summarize the findings of fact. It was found the sign was of special design and that it was necessary that it be manufactured in its entirety before it could be installed, and that the usual practice is to manufacture the parts and transport them to the place of installation; that appellee’s manufacturing plant was at Coffeyville and the sign was to be erected in Parsons; that appellant’s manager insisted the sign be installed at the earliest possible date to advertise a certain picture, and that it be installed section by section, as manufactured, and not to wait until all sections had been made, thus causing some delay; that further delay occurred because appellant’s manager would not permit work while his show was in progress; that some further delay was occasioned by appellant’s proposal to change certain lighting effects; that certain complaints with reference to glass work, letters and letter raceways were made and corrected, and that certain other matters complained of were due to the fact the installation was not completed.
Although the court’s findings do not so state specifically, the evidence showed the sign was to be attached to and installed on a metal framework which seems to have been part of an awning or marquee on the front of the theater. Findings 15,17,18 and 20 were:
“15. The court finds that plaintiff complains that the entire job was not properly installed, each section not being properly lined up and fitting at the joints or corners. The court further finds that this sign was to be installed upon and attached to a certain steel framework or awning which was made of boiler tubing welded together and rigidly attached to the front of the building at the back, and the front end of which was supported by chains attached to the building above the framework and extending out to and attaching to the front of the awning; that said steel framework was approximately forty-nine feet and nine inches long and eight feet and six inches wide, and that said sign was to cover the entire outer surface of said steel framework on both the front and ends thereof, with the perpendicular width of the sign body of approximately two feet except the center section which was to be approximately five feet in width; that the steel framework of said awning was not true in shape, and with particular reference to the front horizontal level; that due to the irregularities in the framework of said awning, when the sign was at tached thereto by defendant, a perfect fit was not obtained at the comers and at the joints between the three sections, leaving a more or less irregular opening at said places; that the defendant had planned to cover said places with an ornamental molding before the job was complete; that while said sign was not perfectly level, due to the imperfection of the framework upon which it was erected, it was not observable to casual inspection and could only be determined by a particular inspection for that purpose.
“17. The court further finds that the plaintiff complains that said sign does not bear the underwriter’s label of approval and is not wired according to the underwriter’s code of specification, and the court further finds that said sign was wired in conformity with the underwriter’s code, and that it is the custom and practice in work of this kind to wait until the installation is complete before inspection is made or approval given, and that had defendant been permitted to complete said job the wiring would have met the requirements of the underwriter’s code and would have been approved.
“18. The court further finds that the plaintiff complains that the work does not bear the union label, and further finds that said work was being done by union men and when complete the union label would have been displayed upon said sign as required by said contract.
“20. The court further finds that the materials used by the defendant in the manufacture of said sign, and the quality of the work done upon same were without substantial defects and that said work, insofar as it had progressed, was in substantial compliance with the terms of said contract.”
The court further found that appellant notified appellee if he did not remove the sign appellant would, and that thereafter appellee removed the sign, and—
“25. That had the defendant not been directed to discontinue said work by plaintiff in said letter, as aforesaid, that defendant would have completed said contract with satisfactory materials and workmanship in substantial compliance with the terms of said contract.”
Appellant’s principal complaint is that findings of fact 17 and 18 quoted above are not supported by the evidence. As to finding 17, it was shown when the sign was partially completed there was some trouble with the wiring and the chief of the fire department'testified he then saw the sign; that he was familiar with the underwriter’s code; that the materials in the job were all right but the workmanship was poor, but that the job was not then completed and he did not see it thereafter, although he did write appellant’s manager suggesting that electric wires should be put in rigid conduit “in order that we may accept the same.” His letter shows he was referring to some city code rather than to the underwriter’s code. It was dated one day before the appellant in writing notified the appellee to remove the sign. Appellee, testifying in his own behalf, stated the underwriter’s code did not require use of rigid conduit, and that the sign did not bear the underwriter’s approval because it could not be put on until the sign was completed and had been inspected by an agent for the underwriter. This evidence was not controverted.
It is contended that finding 18 is unsupported by the evidence. It is conceded by appellee that the union label was not on the sign. Appellant’s contention is that as soon as the metal'framework for the sign was completed, the label should have been attached, even though the sign was not completed. The contract stated:
“Complete job shall bear underwriter’s label of approval and also to bear union label.”
It did not require more. Coupled with the above is an argument that a workman who did some of the neon tube work was not a union man. He so testified. It seems conceded that otherwise the workmen were union men. But there is no showing that there was any union of those engaged in neon tube work or that the performance of a part of the manufacture by a nonunion man would prevent the attachment of the union label. There was a variance in the evi-. dence as to when the label would be fixed on the job, whether on each part made by a separate craft, or when the job was completed. We cannot say that finding 17 is unsupported by the evidence. It may be that the statement the “work was being done by union men” is too broad; however, it is not made to appear that the conclusion that when complete the union label would have been displayed was incorrect or unsupported by the evidence.
Complaint is also made because the various sections of the sign did not fit snugly together. The trial court quite evidently gave considerable weight to the fact that the supporting frame on the building was not sufficiently rigid and that such failure as there was in that respect was attributable to the sag in the framework, to the fact that at appellant’s insistence the sign was put up at various times as sections were completed, instead of as a completed unit, and to the further fact that by reason of appellant’s action in breaching the contract the appellee was deprived of any opportunity to remedy such defects as might have developed owing to the method of installation.
Essentially this was a fact case. The contract was not disputed. Appellant told its story of performance thereunder, and appellee gave his version. The trial court decided that appellee was correct. Our examination of the record shows that there is substantial basis in the evidence to support the findings.
The trial court’s conclusion of law based on the above findings of fact was correct and its judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This action was brought to set aside a codicil to a last will on the grounds of mental incapacity, fraud and undue influence. From a judgment setting aside the codicil, defendants appeal.
The will of Ida M. Salthouse was executed on August 14, 1922; the codicil in dispute was executed August 6, 1935. Testatrix died on August 13, 1935.
The trial of this case began on March 18,1937, and was concluded on March 24,1937, at which time the advisory jury returned answers to special questions, as follows:
“1. At the time of the execution of the purported' codicil to her last will and testament on August 6, 1935, did Ida M. Salthouse have mental capacity sufficient to recognize the objects of her bounty, the extent and kind of property she owned, and the disposition she wished to make of the same? A. No.
“2. Did the defendants, or either of them, exert any fraud or undue influence or constraint on Ida M. Salthouse, deceased, to induce her to sign the codicil to her last will a-nd testament? A. Yes.
“3. If you answer question number 2 in the affirmative, state (a) Who exerted such undue influence, fraud or constraint? A. John Lee Salthouse and Emma Lou Broadway, (b) State fully of what such undue influence, fraud or constraint consisted. A. Disturbance of peace of mind of testatrix by above parties.”
Thereafter, on the 8th day of June, 1937, the findings of the jury were adopted as the findings of the court. The court made findings of fact and conclusions of law. Certain of the findings are as follows:
“1. John T. Salthouse and Ida M. Salthouse were married on November 3, 1885, at the city of McPherson, McPherson county, Kansas. To this union the following children were born: Wirt C. Salthouse, who at the present time would have been forty-nine years of age, had he lived; Emma Lou Salthouse, now Emma Lou Broadway, defendant herein, who is now forty-six years of age, married, but without children; John Lee Salthouse, defendant herein, who is now forty-three years of age and who has never married.
“2. In the year 1911, Wirt C. Salthouse married Pearl Thomas, of Salina, Kan., and to this union were bom the following children: Virginia Lee Salt-house, now Virginia Lee Salthouse Smith, plaintiff herein, born in the year 1913; Wirt C. Salthouse, Jr., defendant herein, bom in the year 1915.
“9. Pearl Salthouse Finley, mother of the' plaintiff herein, and Emma Lou Salthouse Broadway, defendant herein, had been friendly over a long period of years, and in 1925 or 1926 their respective husbands became acquainted, and from that time until the death of John T. Salthouse, in December, 1934, the Finleys and the Broadways visited back and forth from Salina to Wichita. During this time the estrangement continued to exist between Emma Lou Salthouse Broadway and her mother, Ida M. Salthouse, and prior to the death of John T. Salthouse, in December, 1934, she had not seen her mother, Ida M. Salthouse, for a year or more. During this same period of time, from 1925 or 1926, until December, 1934, Virginia Lee Salthouse, plaintiff herein, and Wirt C. Salthouse, Jr., defendant herein, either by themselves or with their parents, did at various times visit their Aunt Emma Lou Broadway, defendant herein, at her home in Wichita, Kan. At these respective times, although Virginia Lee Salthouse, plaintiff herein, now Virginia Lee Salthouse Smith, and Wirt C. Salthouse, defendant herein, expressed to their aunt, Emma Lou Broadway, a desire to also visit their grandmother, Ida M. Salthouse, they were dissuaded from doing so by Emma Lou Broadway. Emma Lou Broadway, on several occasions, told Virginia Lee Salthouse that her grandmother did not care for her and did not wish to see her, and also told Wirt C. Salthouse, Jr., that the grandmother did not like him and would not let him come in the house, even if he should go over to see her. Virginia Lee Salthouse, now Virginia Lee' Salt-house Smith, plaintiff herein, wrote to her grandmother several times between 1926 and her death, and after Virginia Lee was married, in 1932, she received a letter from her grandmother, as well as a wedding present. Virginia Lee, at her wedding, wore the wedding dress of her grandmother, Ida M. Salthouse, having secured it from her at her home in Wichita, and several months after the wedding, Virginia Lee also visited her grandmother, Ida M. Salthouse. At the time of the funeral of John T. Salthouse, in December, 1934, Virginia Lee also saw and talked with her grandmother, Ida M. Salthouse, at which time she expressed her love for Virginia Lee and Wirt C. Salthouse, Jr., and her desire to know them better. It is apparent from the evidence in this case that the statements which Emma Lou Broadway, defendant herein, made to Virginia Lee Salthouse, now Virginia Lee Salthouse Smith, plaintiff herein, and Wirt C. Salthouse, defendant herein, to the effect that their grandmother did not care for them, or desire to see them, were untrue. In the summer of 1933 Emma Lou Broadway told Wirt C. Salthouse, Jr., that Ida M. Salthouse was only going to leave him and his sister Virginia Lee twenty-five hundred dollars apiece.
“12. On July 27, 1935, Ida M. Salthouse was removed from Wesley Hospital to St. Francis Hospital in Wichita, Kan. She was admitted to St. Francis Hospital in a very weak, siek and emaciated condition, and after her admission she was treated by Dr. Carl Burkhead and Dr. Thor Jager. Dr. George Cor-rigan did not further attend the case. Her abdomen had again filled with fluid, and on August second or third she was tapped by Doctor Burkhead, and six or seven quarts of additional fluid was removed. She had an involuntary stool on August 4, 1935, and on the evening of the same day a special night nurse was employed. Ida M. Salthouse suffered considerable pain and discomfort, especially in the early morning of August fifth and sixth, and was apparently in a critical condition. From and after the date she was admitted to St. Francis Hospital, Ida M. Salthouse was administered medinal tablets daily and aceti-dine tablets three times a day. Medinal is a hypnotic and acetidine is something like an aspirin, but contains a sedative. The effect which either of these drugs would have upon a person’s mental condition depends more or less upon the physical condition of such person. A person in a weakened physical condition requires less sedative to affect his mental capacity than one whose physical condition is normal. Ida M. Salthouse was in such a weakened and physically sick condition from and after August 4, 1935, until the time of her death, that the drugs administered to her during that period affected her mental capacity. During the last four or five days of her lifetime she was in a mental stupor and semiconscious condition, and she died on August 13, 1935, being at that time seventy-two or seventy-three years of age.
“13. John Lee Salthouse, for a long period of time, stood in a confidential relation with his mother, Ida M. Salthouse, and he played an active part in securing the preparing and signing of the purported codicil to her will. John Lee Salthouse took the original will of Ida M. Salthouse from the safety-deposit box which stood in their joint names, and was accessible to John Lee Salthouse at any time, to the' office of the lawyer who drafted the purported codicil to said original will. John Lee Salthouse was present at the hospital at the time when the lawyer discussed with Ida M. Salthouse the proposed terms of the purported codicil and was present at the hospital at the time the purported codicil was signed.
“14. There existed between John Lee Salthouse and his sister, Emma Lou Broadway, controversies as to how their mother, Ida M. Salthouse, should dispose of her money and property and they, and each of them, discussed their differences in the presence of Ida M. Salthouse, representing to her that unless she made more liberal provisions to Emma Lou Broadway that there would be trouble about her estate' after her death. This is apparent from the testimony of Dr. H. L. Salthouse, who related a conversation with John Lee Salthouse in which John Lee Salthouse stated that he and Emma had settled their business so that there would be no quarrel or trouble about it, and further that he, Emma and Mrs. Salthouse had compromised and settled their business up so that there would not be any trouble about it, it having been arranged that Emma Lou was to get so much, which was a good deal more than she expected, he having consented to give her whatever she wanted, and let it go at that.
“15. The purported codicil to the original will of Ida M. Salthouse, as hereinafter mentioned, was prepared by a lawyer who had never seen her until the day before the said purported codicil was signed. The said purported codicil was witnessed by the lawyer who prepared the same and by another lawyer who had never seen Ida M. Salthouse prior to the time he witnessed the said codicil.
“18. That during the time Ida M. Salthouse was confined to Wesley and St. Francis Hospitals at Wichita, Kan., she was visited regularly by John Lee Salthouse and Emma Lou Salthouse Broadway, but neither of them at any time, either before or after the death of their mother, notified or advised Virginia Lee Salthouse Smith, Wirt C. Salthouse, Jr., or Mr. or Mrs. Finley of the illness or of the death or of the funeral of Ida M. Salthouse, and Virginia Lee Salthouse Smith learned of her grandmother’s death through a newspaper clipping about her estate which had been filed for probate six days after her death.
“20. John Lee Salthouse, several months after the death of his mother, refused to talk with his niece, Virginia Lee Salthouse Smith, plaintiff herein, regarding the change which his mother had made in her will by the purported codicil.
“21. On August 6, 1935, at the time of the execution of the purported codicil to the last will and testament of Ida M. Salthouse, deceased, the said Ida M. Salthouse did not have sufficient mental capacity to know or understand the objects of her bounty, to know or understand the nature and extent of her property and to know or understand the disposition which she purported to make thereof by such purported codicil to her last will and testament.
“22. At the time of the signing by said Ida M. Salthouse of such purported codicil to her last will and testament, her execution of such instrument was made under fraud, undue influence and restraint, exercised upon her by John Lee Salthouse and Emma Lou Salthouse Broadway. That said decedent, Ida M. Salthouse, executed said purported codicil to her last will and testament on August 6, 1935, in order to secure to her peace of mind and to avoid further controversy between John Lee Salthouse and Emma Lou Salthouse Broadway, and said decedent, over the disposition of her property upon her death.
“The court makes the foregoing findings from all the evidence in the case, the answers to the questions submitted to the jury, which are adopted by the court, and .in particular, findings numbered nine, ten, thirteen, fourteen, fifteen, eighteen and twenty, hereinbefore made.
“Conclusions op Law
“That said purported codicil, executed August 6, 1935, by the said Ida M. Salthouse, now deceased, is mill and void and should be set aside and the probate thereof revoked, annulled and held for naught, and that the instrument dated August 14, 1922, executed by Ida M. Salthouse, heretofore admitted to probate in the probate court of Sedgwick county, Kansas, as the last will and testament of said Ida M. Salthouse, deceased, should be adjudged and decreed to be the valid last will and testament of said decedent.”
Judgment was entered for plaintiff. Defendant’s motion for a new trial was overruled, and this appeal was taken.
Was there substantial evidence to support the findings and judgment that the testatrix, Ida M. Salthouse, did not have testamentary capacity to execute the codicil on August 6, 1935?
Defendants contend there was no competent evidence that the testatrix was mentally incompetent, and that there was no competent evidence of undue influence.
The original will of Ida M. Salthouse, executed in 1922, bequeathed to her son, John Lee Salthouse, $50,000, and to her daughter, Emma Lou Broadway, $5,000. To her grandchildren, Wirt and Virginia Lee, she bequeathed the sum of $10,000 each. The codicil increased the gift to her daughter Emma Lou to $25,000, and reduced the legacies to her grandchildren Wirt and Virginia Lee to $2,500 each. This radical change in the will was accompanied by a forfeiture clause as to any beneficiary who attempted to defeat the will or codicil.
The testimony tended to show that the testatrix at the date she signed the codicil was 72 or 73 years of age. In the year 1928 the testatrix underwent an operation for goiter; in the year 1933 or 1934 she underwent an operation for cataracts of the eye; and during the early part of July, 1935, she consulted Doctor Corrigan about her condition which subsequently caused her death. She was sent to Wesley Hospital, Wichita, on July 15, where she was confined until July 27. Her condition was diagnosed as a cancer of the abdomen of a progressive nature. It was realized that there was no cure for her condition and the only treatments she had were to allay the pain and discomfort and to stay the effects of the disease as long as possible. During the time that she was confined to Wesley Hospital she was administered daily either phenobarbital, luminal or codeine, and sometimes all of them. These are well-known drugs, all of them having sedative effects. There is no positive evidence that while she remained in Wesley Hospital her mind was affected. However, the inference is that she rapidly grew worse, inasmuch as Doctor Corrigan was dropped from the case, and she was removed by ambulance to the St. Francis Hospital on July 27,1935, and new doctors procured. At that time she was in a weakened condition^ with a general appearance of anemia and emaciation. Her chest was not normal and her heart was irregularly timed. By August 2 her abdomen was filled with fluid, although it had been previously drained while she was at Wesley Hospital. On this date Doctor Burkhead drew six or seven quarts of fluid from her abdomen. On the evening of August 4, at 8:30 o’clock, a special nurse was employed and went on duty and remained to care for Ida M. Salthouse until she died. On the same evening, at about 10 o’clock, Ida M. Salthouse had an involuntary stool, from which fact an inference can be drawn that at least at that time her mind was not fully coordinating with her physical demands, inasmuch as she did not ask for a bedpan.
From July 27 until the time of her death on August 13 Ida M. Salthouse was given daily medinal tablets and acetidine tablets. Both of these tablets contain sedatives and will affect a person’s mind if given in large doses, or if given in average doses to a person who is physically weakened or seriously ill. There is little doubt from the evidence but that Ida M. Salthouse’s condition had reached the point on August 6 where even a small dose of either of these tablets would have affected her mind.
The witness Cochran, a man of wide experience in the field of handwriting, and fully qualified as a handwriting expert, in which connection he had studied the relationship between the mind and the handwriting of individuals, testified there were various abnormalities appearing in the signatures of the testatrix to the codicil, as well as to the deeds and bill of sale; that in his opinion such abnormalities indicated a profound mental disturbance, and showed the writer had an erratic mind at the time.
On the question of fraud and undue influence, much evidence was placed in the record. The testatrix was very fond of her son Wirt C. Salthouse; she was greatly grieved over his death, and stated on various occasions that she would see that his children would be taken care of and would receive her assistance. After the divorce between John T. Salthouse and Ida M. Salthouse in 1917, the son John L. Salthouse favored his mother, thereafter living with her and never having further relations with his father. Testatrix distrusted her daughter Emma Lou. Mrs. Guyman, who had known Ida M. Salthouse for forty years, visited the testatrix in 1934. In a conversation had at that time the witness stated that the testatrix told her that Emma Lou was deceitful and dishonest; that the testatrix and John both told her that Emma Lou was dishonest and deceitful and that they had to lock the doors to keep her from coming into their home; that she was locked out because she stole money and articles of linen, and that she had been caught stealing pillowcases.
The son, John Lee Salthouse, was active in the preparations leading to the execution of the codicil. He secured the original will from his mother’s safety-deposit box in the bank and took it to the office of the attorney, and he was at the hospital when the codicil was being considered and when it was signed. Both the son, John Lee, and the daughter, Emma Lou, visited their mother regularly at the hospital during her last illness.
The attending physician, Doctor Burkhead, was not advised that Ida M. Salthouse had signed a codicil, nor was the special nurse, Mary Krier, informed of .this fact. None of the witnesses who testified that they were friends of Ida M. Salthouse knew that she had signed a codicil, and obviously they were not asked by her to be witnesses to the same. Clara Guyman, a friend for years of the testatrix, was not told of her serious illness until after her death. Although Emma Lou Broadway knew where the Finleys, the plaintiff and her brother lived in Salina, Kan., neither she nor her brother, John Lee, made any effort to advise the plaintiff, plaintiff’s brother, plaintiff’s mother, or plaintiff’s stepfather of the fact that Ida M. Salthouse was seriously ill, of her death or even of her funeral. The plaintiff, her brother, mother and stepfather learned of the illness, the codicil, the death and funeral from sources independent of either John Lee Salthouse or Emma Lou Broadway.
As the findings of fact by the court above set out the evidence in detail, it is unnecessary to burden this record with further particularity.
In the recent case of Gilpin v. Burch, 145 Kan. 224, 65 P. 2d 308, this court said:
“This is a fact case in which there was a conflict in the evidence on both of the questions involved, as to the deceased possessing testamentary capacity on July 18, 1933, when he signed the will, and as to his being unduly in-, fluenced in the preparation and execution of the will. In such a case the only duty or authority of a court of appeals is to determine from the conflicting evidence and the inferences to be drawn therefrom whether or not there was sufficient competent evidence to support the findings of the trial court. We think there was, and therefore such findings are conclusive.” (p. 230.)
After quoting from Randall v. Bird, 118 Kan. 341, 235 Pac. 103; Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057; Bell v. Van-Meter, 133 Kan. 236, 299 Pac. 606; Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580; Stewart v. Marker, 143 Kan. 860, 57 P. 2d 75; Gorman v. Hickey, 145 Kan. 54, 64 P. 2d 587, the court continued:
“Most of these cases discuss the questions of testamentary capacity and undue influence, and some of them consider the inferences to be drawn as to the latter from the conflicting testimony. We have attempted to apply the reasoning mentioned in these and other cases to the evidence, and all the reasonable inferences applicable to the very voluminous evidence in the case at bar, and we feel very much as expressed in the last case above cited, that if a contrary judgment had been reached by the trial court, giving the other evidence superior weight and credence, this court would have had no difficulty in following its usual appellate practice.” (p. 231.)
Following the rule so announced, we have examined the record in this case and we think there was sufficient competent testimony to support the findings of the advisory jury and the findings of the trial court.
It is urged that the trial court committed error in permitting the witness Cochran, who had qualified as a handwriting expert, to testify that in his opinion the abnormalities in the signature of the testatrix showed there was a profound mental disturbance of some kind on that date.
In Gibbons v. Redmond, 142 Kan. 417, 49 P. 2d 1035, a handwriting expert was permitted to testify that the signature of the will indicated the testator was in a state of mental exhilaration when the will was signed, and that the omission from the signature of part of the testator’s name indicated a mental lapse at that point. It was there said: “What weight should ultimately be given the testimony was a matter for the trial court to determine.”
In Baird v. Shaffer, 101 Kan. 585, 168 Pac. 836, it was said:
“The testimony of attesting witnesses to a will may be overcome by any competent evidence. (Ginter v. Ginter, 79 Kan. 721, 738, syl., par. 5, 101 Pac. 634; 2 Wigmore on Evidence, sections 886, 1514.) Such evidence may be direct or it may be circumstantial; and expert, and opinion evidence is just as competent as any other evidence. Indeed, where the signature to a will is a forgery and where the attesting witnesses have the hardihood to commit perjury, it is difficult to see how the bogus will can be overthrown except by expert and competent opinion evidence tending to show that the pretended signature is not that of the testator but spurious.” (p. 587.)
We think the testimony of the handwriting expert was admissible under the rule announced in the Gibbons case. The weight to be given this testimony was for the trial court to determine.
The contention is made that in the trial of this case, over the objections of the defendants, the court admitted a mass of evidence as to the family relations of the Salthouse family; that such evidence was too remote and had no probative value as to the real issues in the controversy. Objection is made as to statements and declarations of testatrix which were admitted showing the state of her affections for her daughter Emma Lou and her grandchildren.
These questions were considered by this court in Mooney v. Olsen, 22 Kan. 69. We quote a part of the syllabus:
“1. While the declarations of a testator, either before or after the execution of his will, are as evidence of external facts stated, whether in support or impeachment of the will, mere hearsay and inadmissible, yet wherever the mental condition of the testator is a subject of inquiry, his statements and declarations are competent evidence thereof. Therefore, where a will is charged to have been executed through undue influence, and the circumstances surrounding the execution tend to show weakness and debility on the part of the testatrix, and the presence and active assistance of the principal devisees, held, that it is competent to show that for years prior there had been estrangement and ill-will between the testatrix and one of such devisees, and as evidence of such ’estrangement and ill-will, to introduce her statements and declarations.
“2. In an action to contest a will on the ground of undue influence, a wider range of inquiry exists than in ordinary litigation. The contents of the will, the extent of the testator’s estate, his family and connections, the terms upon which he stood with them, and the claims of particular individuals, the condition and relative situation of the legatees or devisees named, the situation of the testator himself, and the circumstances under which the will was made, are all proper to be shown.”
See, also, 3 Wigmore on Evidence, section 1738.
We think there was no reversible error in the admission of this testimony.
Finally it is urged that the court committed reversible error with respect to findings of fact and conclusions of law. The advisory jury answered the special questions on March 24, 1937. The defendants filed motions to set aside the special findings of the jury, for a new trial and for judgment; the plaintiff filed a'motion for the court to adopt the findings of the jury and to render judgment. On April 6, 1937, the motions were presented to the court, and were argued by counsel, and defendants introduced evidence in support of their motion for a new trial. The court overruled defendants’ motions, and sustained the motion of the plaintiff.
On April 18, 1937, defendants filed new motions for a new trial and to set aside the findings. Counsel for each of the parties had prepared formal journal entries, but being unable to agree went before the court on May 14, 1937, to discuss the matter of a formal journal entry. Counsel for plaintiff submitted a journal entry which set forth the jury’s special findings, but which included additional findings of fact. These additional findings of fact were objected to by defendants, but, after argument, were adopted by the court.
Defendants’ motion for a new trial and to set aside the findings were by the court overruled on July 10, 1937, and during the April term of court. Defendants contend that the special findings of the jury, which the court approved and adopted on April 6, could not thereafter be added to by other findings of fact.
From the foregoing statement it appears that additional findings were made, not only while the motion for a new trial was pending, but during the same term of court. In Walsh v. Hill, 121 Kan. 246, 446 Pac. 997, it was held that additional findings made after the term at which the judgment was rendered, but while a motion for a new trial was pending, did not constitute reversible error. (See, also, Harrison v. Lyon, 126 Kan. 705, 271 Pac. 395; Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125; Nordman v. Nordmark, 100 Kan. 522, 164 Pac. 1062.) We think the contention of defendants is without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of mandamus to compel compliance with a statute enacted in 1905, relating to stopping passenger trains and building passenger depots in certain cities. A demurrer to the answer was sustained and defendant appeals.
The statute reads in part as follows:
“That every railroad corporation which is now or may hereafter be engaged in the transportation of passengers or property in this state shall stop all of its regular passenger trains carrying passengers at the county seat of each and eveiy county through which the same shall be operated, where said county seat is a city of the first class having a population of not less than fifty thousand, and shall at such county seat establish a station, and erect, build and maintain, either jointly with some other railroad company or separately, a depot or passenger house and waiting room or rooms sufficient to comfortably accommodate all passengers awaiting the arrival or departure of trains at such county seat. . . .
“That every railroad corporation which shall fail, neglect or refuse to comply with the requirements of the preceding section of this act from and after the 1st day of January, 1906, shall, for each day said corporation fails, neglects or refuses to comply therewith after said day, forfeit and pay the sum of fifty dollars. . . .
“That every railroad corporation which shall fail, neglect or refuse to comply with the provisions of this act from and after the 1st day of January, 1906, may be compelled by writ of mandamus to perform the duties imposed upon it by this act, in a suit to be brought in the name of the state of Kansas in any court of competent jurisdiction; . . .” (R. S. 66-2,103, 66-2,104, 66-2,105.)
The answer was that the statute has been repealed by the public utilities act, and that plaintiff has an adequate remedy by invoking action of the public utilities commission. The state contends that the statute gave definite expression to the legislative will respecting a proper subject of regulation, that a specific mode of enforcing the regulation was provided, and that the public utilities act itself preserved rights and remedies under existing laws. The specific provision of the public utilities act referred to follows:
“The rights and remedies given by this act shall be construed as cumulative of all other laws in force in this state relating to common carriers and public utilities, and shall not repeal any other remedies or rights now existing in this state for the enforcement of the duties and obligations of public utilities and common carriers or the rights of the public utilities commission to regulate and control the same except where inconsistent with the provisions of this act.” (R. S. 66-140.)
The question, therefore, is whether the statute of 1905 is inconsistent with the public utilities act of 1911.
By the public utilties act regulation of public utilities was provided for in a comprehensive scheme, which included regulation of railroads. Before that the subject had been in a state of nebulosity, with a sort of nucleus in the form of a board of railroad commissioners. Generally, railroads were regulated by legislative fiat, enforceable by fine and by issuance of mandatory writs. Development of the modern method of regulation is sketched in the opinions in The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544, and Telephone Association v. Telephone Co., 107 Kan. 169, 178, 190 Pac. 747. The conclusion reached in the latter case was that any controversy which naturally falls within the scope of the jurisdiction of the public utilities commission must be adjusted by that tribunal.
The statute of 1905 is inconsistent with the public utilities act in several respects. The standard of regulation in the public utilities act is the lawful, practical standard of efficient and sufficient service. Applied to passenger-train service, the standard requires facilities reasonably adequate. The act of 1905 contains a flat requirement that all passenger trains, whether moving in state or interstate commerce, shall be stopped, and the requirement may or may not correspond to the needs of the community to be served. Under the public utilities act the question as to what facilities will be reasonably adequate, and the question whether facilities furnished meet the standard, are always questions of fact, to be determined on investigation of the situation and circumstances. Investigations are conducted upon notice, findings are made, the orders based upon the findings are adapted to the situation and circumstances disclosed, and findings and orders are subject to review. Under the statute of 1905 nothing is open to inquiry except violation of the arbitrary requirements of the statute; and if violations be proved, the mandatory judgment must be in strict accordance with the statute. In the matter of station facilities mandamus is not a fit remedy, because none but a body similar to the public utilities commission is competent to deal with the subject. (Telephone Association v. Telephone Co., 107 Kan. 169, 174, 190 Pac. 747.) The result is, there is no place in the scheme of the public utilities act for the act of 1905. The incongruity between the two statutes is too great to permit them to be recognized as in pari materia. The legislature could not have contemplated that the act of 1905 was within the purview of the saving clause of the public utilities act, and the court holds the earlier statute has been entirely superseded by the later one.
The judgment of the district court is reversed, and the cause is remanded with direction to carry the demurrer to the answer back to the petition, and to sustain the demurrer as so applied. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal involves a phase of the workmen’s compensation law. Chris Albertsen, a carpenter employed by Swift & Company, was injured in the service of the defendant. It is conceded by the defendant that he was entitled to some compensation under the act, and by agreement of the parties it was stipulated that the claim should be settled by arbitration. The stipulation was:
“That Charles A. Blair shall have the power not only to fix the amount of compensation, if any, but to find the character and quality of the disability, if any, and to fix the period, if any, for which payments of compensation, if any, shall run, and any and all other questions which may arise in said cause.”
Upon the testimony taken the arbitrator found that Albertsen had sustained injuries which totally incapacitated him from performing work for a period of fourteen weeks, ending June 12, 1923, and further that he should be allowed compensation at the maximum rate of $15 per week. It was also found at the hearing had in June, 1923, that he had fully recovered from the.injuries sustained and was not entitled to anything for partial disability. The fourteen weeks period having expired before the hearing and award, and there being a complete recovery, there was of course no allowance for future disability. The amount of the award was tendered to the claimant, who at first refused to accept it, but later did accept the amount awarded from the clerk to whom it had been paid by the defendant. The plaintiff applied to the district court to review the award, alleging that the amount was grossly inadequate. Testimony similar to that produced before the arbitrator was presented, but the court sustained the findings of the arbitrator.
Plaintiff contends that a review of the award is not barred by the finding of the arbitrator, and that in this instance it should have been set aside for inadequacy. Gross inadequacy is one of the few statutory grounds for a review and modification of an award, and when this element is shown the court has ample authority to modify or set it aside. To warrant a review, however, more than mere inadequacy must appear. A gross inadequacy is one which is beyond reason, one which shocks the sense of justice and evinces a lack of fair and intelligent consideration. (4 Words and Phrases, 3167.) No such showing was made here. There was a conflict in the testimony which left it open to different inferences as to the fact of adequacy, but we discover nothing that tends to show that the arbitrator was actuated by fraud, undue influence, or that the award was arrived at otherwise than by a fair and candid consideration of the evidence. Under the circumstances the finding of the arbitrator on the disputed fact is final, but of course a finding cannot be final where gross inadequacy or other element which furnishes a ground for a review under the statute is shown. Where the arbitrator has in good faith made a finding of fact based upon conflicting testimony, the court is not warranted in setting the award aside even if it might have come to a different conclusion than was reached by the arbitrator upon such evidence. As held in Kinzer v. Gas Co., 110 Kan. 574, 204 Pac. 999, the fact having been determined by the arbitrator upon sufficient evidence, his finding cannot be set aside without a showing of flagrant inadequacy which warrants an inference of unfairness or misconduct. See, also, Roper v. Hammer, 106 Kan. 374, 187 Pac. 858.
Following the rule in the Kinzer case, the judgment in this must be affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the question whether detached interest coupons of notes secured by a mortgage, which coupons have been paid by the payee and guarantor but not by the maker, constitute a lien on the mortgaged property ratably with the mortgage. The trial court held they did not. Their owner, Nuzman, appeals.
■ The facts are, substantially, that James E. Lawson and wife executed and delivered to J. L. Pettyjohn & Co. their notes and mortgage, dated July 1, 1918, for $20,000, due in ten years. The interest on the notes was evidenced by ten coupons attached to each note, payable annually. Another note and mortgage for the sum of $8,000 was executed at the same time by the Lawsons to Pettyjohn & Co. The mortgages covered 120 acres of land in Franklin county. The $20,000 notes and mortgage were assigned by Pettyjohn & Co. to the plaintiff Carson. The second notes of $8,000 were assigned to Mary Smith, represented in this action by Wintermute, administrator. The $8,000 mortgage was filed for record about eight months after the $20,000 mortgage. The payment of the principal notes and interest coupons was guaranteed by J. L. Pettyjohn & Co. At their maturity they were forwarded by Carson to Pettyjohn & Co. for collection. Pettyjohn & Co. paid them but did not collect from the makers. They were.found among the assets of Pettyjohn & Co. after they went into bankruptcy, and were sold by the trustee in bankruptcy at’public auction to the defendant Nuzman. Nuzman purchased them after this action had been filed. He intervened, asserting his right to equal priority with the lien of the Carson mortgage. On the trial the plaintiff Carson was allowed a first lien, Wintermute a second lien, and Nuzman a third lien. In due process the property was sold at sheriff’s sale for approximately enough to pay only the Carson mortgage.
In support of his contention the defendant Nuzman cities Champion v. Investment Co., 45 Kan. 103, 25 Pac. 590. The facts in that case are very different from those here. There, the note and mortgage were indorsed and transferred without recourse; here, the notes and coupons were guaranteed by the payee to the purchaser, and at maturity were paid by the payee to the purchaser. There, the coupons were not paid at the place designated; here, the coupons were paid at the place named. There, the coupon was not paid by the payee, but by a third party; here, they were paid by the payee. There, the payee was not in any way liable on the note, mortgage or coupon; here, the payee was legally liable. There, the owner of the note and coupon knew that the coupon was not paid by the makers of the note and coupon, but by a third party, and at a place other than that named as the plgce of payment; here, the owner of the notes and coupons did not know the coupons were not paid by the makers, but presumed they were'. There, the owner of the coupon knew it was paid by one not legally liable thereon; here, the owner had no such knowledge. The Lawsons, who had executed the notes and coupons, were supposed to pay them when due, and when Carson sent them for collection to Petty-john & Co., at whose office they were payable, and, in due course, received payment therefor, he had no reason to believe that the Lawsons had not paid them. As between Carson, the purchaser, and Pettyjohn & Co., the payee and guarantor, when Carson had transmitted the coupons to Pettyjohn & Co. and had received payment therefor, the coupons were paid.
The appellant also cites City of Atchison v. Butcher, 3 Kan. 104; Richardson v. McKim, 20 Kan. 346; Watkins v. Williams, 63 Kan. 30, 64 Pac. 976; Nuzman v. Bennett, 115 Kan. 766, 227 Pac. 900; Miller et al. v. R. & W. R. R. Co., 40 Vt. 399; Wing v. Insurance Co., 181 Mo. App. 381; Whitney v. Low, 59 Neb. 87, and others. These authorities are not applicable in the instant case.
No particular equities appear in favor of Nuzman who purchased the coupons at bankrupt sale after their maturity, and after the plaintiff Carson had filed his action to foreclose the mortgage. He took no greater rights than Pettyjohn & Co. had. As Pettyjohn & Co. could not have had priority of lien with the plaintiff Carson, neither is Nuzman in position to assert such priority right. The record presents no error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enforce a mechanic’s lien for material furnished for construction of a building. Defendant counterclaimed damages resulting from breach of warranty of quality of the material. Plaintiff recovered and defendant appeals.
The answer alleged that while defendant was engaged in con structing a building,, he negotiated with plaintiff's agent for purchase of Acme cement or plaster, which plaintiff, through its agent, orally-represented was and would be good, first-class material to be placed on the walls and ceilings of the building; and that as a part of the consideration for the purchase plaintiff warranted the material to be fit and proper for the purpose for which defendant was buying it. To sustain his answer, defendant testified as follows:
“I purchased materials for the theater building on Washington avenue, Iola, some Acme plaster, lime, lumber, etc. I asked Mr. Kirk how he was fixed on plaster. He said he had plenty, and would be glad to supply me; that he had a fresh car in, and it was in good shape and everything, and he would be glad to take care of me. I told him it would take quite a bit, and he said he would be in good shape to take care of me, and would appreciate the business. He said it was first-class stuff; first-class material for plastering in the theater building, and the rooms above, and the balcony of the theater building. He said he would guarantee me good stuff, because he had a fresh car in, and he knew it was No. 1 stuff. I got Acme plaster, . . . Acme plaster is used to make the brown mortar that goes next to the lath, . . .”
Plaintiff’s agent testified the transaction was nothing more than a sale of the material, and nothing was said about warranty or guaranty. While no issue was made on the subject, it appears from the testimony that the material is a kind of plastering material manufactured by a certain company for sale in the ordinary course of trade. The correct name of the material appears to be “Acme cement plaster,” which contractors, plasterers and others abbreviate to “Acme cement,” “Acme plaster,”- or simply “Acme.”
Defendant asked for an instruction relating to the implied warranty of a seller who undertakes to supply an article for a particular use made known to him. The court instructed the jury as follows:
“If a manufacturer or dealer contracts to sell a known and described thing in existence, although he may know the purchaser intends it for a specific use, if he delivers the thing sold, there is no implied warranty that it will answer or is suitable for the specific use to which the purchaser intends applying it. But the defendant in this case claims that the plaintiff expressly warranted .and represented to him that the materials sold were fit and proper for use in the particular undertaking in which defendant notified the plaintiff they were to be used, and were capable of producing a first-class job of work. An express warranty means one consisting of spoken or written words, and although the word “warrant” or “guarantee” or “represent” need not be used, yet whatever words were used must substantially mean that the seller undertakes that the material sold will be of a given quality or fit and suitable for a given use or capable of producing a given result. If by a preponderance of the evidence in this case you find that the plaintiff, through its manager, C. T. Kirk, did make the warranty, guaranty or representations claimed b’y the plaintiff [defendant], or any of them, and without the fault of the defendant they were untrue or not fulfilled, then there would be a breach of warranty, and the plaintiff would be liable to defendant in damages therefor.”
The first part of the instruction was correct. (Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179; Lumber Co. v. Mercantile Co., 114 Kan. 10, 216 Pac. 815.) The remainder of the instruction was correct, and covered the case made by the answer and the testimony supporting it. Defendant did not counterclaim on an implied warranty, the answer was not framed on that theory, the testimony of defendant was that an express warranty was given, and an express warranty excludes an implied warranty relating to the same subject. (Thresher Co. v. Nelson, 105 Kan. 517, 184 Pac. 982.)
It will be observed the word “plaintiff” appears in the instruction given where the word “defendant” should have been used. The instruction left no doubt about who was claiming warranty. Complaint is made respecting the court’s instruction relating to the amount of plaintiff’s recovery. Defendant stated in open court it did not dispute the amount of plaintiff’s items. Other criticisms of the instructions are without merit, and assignments of error relating to subjects other than instructions are not well founded.
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The opinion of the court was delivered by
Dawson, J.:
This is an action in mandamus to require the bank commissioner to issue a certificate on the bank guaranty fund for the amount of a deposit in the Lake State Bank duly assigned to plaintiff. The Lake State Bank had been operating under the bank guaranty law, and became insolvent on November 23, 1921. The deposit in question had theretofore been placed in the bank by plaintiff’s assignor under the terms of the following certificate:
“The Lake State Bank.
“Lake City, Kansas, 7/21, 1921.
“Guaranteed interest bearing certificate of deposit.
“Not subject to check.
“Protected by the Depositors Guaranty Fund of the State of Kansas.
“No. 617.
“This is to certify that there has been deposited in this bank Twelve Thousand and no/ioo Dollars ($12,000.00) payable to the order of The Pioneer Cattle Loan Co.
“On return of this certificate properly endorsed. Not payable in less than six (6) months, and not extending for more than one (1) year, with interest at four per cent (4) per annum from date. No interest after maturity.
“Clara Groendycke, Ass’i Cashier.”
The bank commissioner has declined to issue to plaintiff a cer tificate on the guaranty fund in payment of the above certificate of deposit, on the contended ground that it lacks a definite date of maturity.
Was this ruling correct?
The pertinent rule of the banking department governing the controversy reads:
“To the Managing Officer of the Bank Addressed: April 1, 1915.
“In accordance with the provisions of section 7 of the bank depositors’ guaranty law of Kansas, the following ruling is made:
“Supplementing department letter of March 15, 1911, and subsequent letters, effective April 15, 1915, the following interest rates are hereby approved:
“A maximum rate of 4 per cent on time certificates of deposits, not payable in less than three months, and not extending for more than two years, and having a definite date of maturity, when interest shall cease. No interest to be paid for periods shorter than three months. . . .
“This ruling will apply to every state bank under the jurisdiction of this department, and shall be uniform in every county in Kansas. . . .
“W. F. Benson, Bank Commissioner.”
As to the main point of dispute, it is settled law that there is no lack of definiteness touching a due date where a simple mathematical calculation based upon the data, disclosed on the face of the instrument will determine the due date with precision. (Songer v. Bank Commissioner, 114 Kan. 900, 220 Pac. 1060.) Under this principle the definite date of maturity of this certificate was readily ascertainable to be July 21, 1922. There was an option of an accelerated due date, six months from date of certificate, but that provision did not render the date of maturity uncertain. (Songer v. Bank Commissioner, supra.)
Without laying too much stress on the negotiable-instruments act, one paragraph thereof is persuasively pertinent. In part it reads:
“An instrument is payable at a determinable future time, within the meaning of this act, which is expressed to be payable; (1) At a fixed period after date or sight; or (2) on or before a fixed or determinable future time specified therein; or (3) on or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening be uncertain. . . .” (R. S. 52-204.)
Counsel for defendant contend that this case is governed by Barrett v. Bank Commissioner, 114 Kan. 804, 223 Pac. 1091. In the Barrett case no definite due date could be discerned from the recitals on the face of the instrument, nor was such date determinable by a mathematical computation. The Barrett certificate read:
“Joel Barrett has deposited in this bank one thousand two hundred eighty-five dollars forty cents $1285.40. Payable to the order of himself in current funds on return of this certificate properly endorsed, interest at the rate of % 4 per annum for all full months if left six months.” (p. 805.)
In the case of Citizen’s Bank of Los Angeles v. Jones, 121 Cal. 30, analogous to the one at bar, the certificate of deposit read:
“No. 5927.
“First National Bank of Helena, Montana.
“(Not subject to check.)
“October 19, 1895.
“G. M. Jones has deposited in this bank ($1,000.00) one thousand dollars, payable to the order of self, on return of this certificate twelve months after date, with interest at the rate of six per cent per annum for the time specified only. Payable in 6 mo. if desired with interest at 6 per cent. No interest after due.
“No. 70430. Geo. F. Cooper, Cashier.”
The defendant, G. M. Jones, was sued as indorser, and one of his defenses was that by its terms the' certificate was due at the end of six months and that plaintiff was bound to present it at that time in order to hold the indorser. But the court ruled that the certificate had a definite date of maturity — twelve months, not six months, after due. The syllabus reads:
“A certificate of deposit in a bank which was by its terms payable to order within twelve months from its date, with interest, or within six months thereafter if desired, did not mature until the expiration of the twelve months’ period, and the option for payment at the end of six months was solely for the benefit of the payee, to be availed of at his election, which privilege, the instrument being negotiable, passed to the indorsee.” (If 3.)
But it is argued that the certificate could have been cashed at any time after the first six months had run, together with four per cent interest thereon from July 21, 1921, until date of presentation for payment. Whether that contention is correct or not, a rereading of the order of the banking department, as quoted above, makes it clear that nothing therein contained can be construed to forbid absolutely the allowance of interest at -four per cent for any period longer than three months and not more than two years. In all our previous decisions involving the bank guaranty law, this court has consistently endeavored to justify and enforce the reasonable rules of the banking department touching rates of interest and dates- of maturity on certificates of deposit claiming protection of the guaranty act, but the court has not attempted to expand those rules by interpretation to defeat a good faith deposit apparently made and intended to be made in almost literal conformity with the recitals of the order of the bank commissioner. As was said in Songer v. Bank Commissioner, supra, “the certificate under scrutiny does not fall under the ban of any fairly interpreted rule yet issued”; and as it is clear that the certificate had a definite and readily determinable date of maturity — twelve months after the date of the instrument, at which time interest was to cease — the deposit evidenced thereby was under the protection of the guaranty fund, and the writ prayed for must be allowed.
It is so ordered. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for the specific performance of a contract to convey real estate, to quiet title, and for damages. The plaintiff prevailed, and defendants appeal.
The facts are substantially as follows: Kate O’Connell, a resident of Missouri, was at the time of her death in July, 1918, the owner of an undivided one-third interest in the land involved. In June, 1916, she joined with her cotenants in executing to the plaintiffs a written contract of sale for the land, the purchase price to be made in monthly payments. Before the maturity of the contract Kate O’Connell died, leaving a will which was duly probated in the probate court of Jackson county, Missouri, and letters testa mentary issued to John J. O’Connell, as executor. The executor proceeded with the administration of the estate, made his final settlement, and was released and exonerated by the court from further liability on account of such administration. After discharge as executor, upon the maturity of the contract, O’Connell, as such executor, made and delivered to the plaintiffs his executor’s deed conveying the property to the plaintiffs. Plaintiffs demanded deeds from the heirs, and were refused.
The question turns wholly upon O’Connell’s authority as an executor to convey the real estate after his discharge as such executor. The power to convey given in the will reads:
“I hereby nominate and appoint my husband, John J. O’Connell, to be the sole executor of this my will without being required to give any bond, and I hereby especially empower my said executor to sell and convey any part or all of my real estate or interest in real estate at such time and in such manner as to him shall seem fit and expedient.”
Trial was to the court,'which made findings, among others, as follows:
“That upon the final discharge of said John J. O’Connell as such executor, he thereupon ceased to represent said estate or any property belonging to said estate or any property owned by said Kate O’Connell during her lifetime, except such interest as was obtained by him as devisee under said last will and testament of said Kate O’Connell, deceased; that after his discharge as such executor, he had no right, power or authority to convey in any manner, as executor, trustee, or in any other representative capacity, any property belonging to said Kate O’Connell at the time of her death, other than the legal title vested in him as devisee under said last will and testament; . . . . that plaintiffs have requested and demanded of defendants specific performance of said contract after full payment had been made and after full compliance with all the terms thereof, and that defendants, and each of them, have failed, neglected and refused to specifically perform said contract as owners of said property under the terms and provisions of the last will and testament of Kate O’Connell, deceased; . . . that by reason of the refusal, neglect and failure of said defendants to convey said property to plaintiff, as provided by the terms of said contract, or in specific performance thereof, as provided by law, plaintiffs have been damaged by reason of the loss of sale of said property, .commission paid by them, and other expenses incident to the enforcement of their rights under said contract, in the sum of $300.”
The plaintiffs contend that the executor’s deed conveyed no title because the powers created by the terms of the will had ceased to exist at the time the deed was executed.
The defendants admit that the executor had been fully and finally discharged, released and exonerated by the court from further liability on account of administration of the estate of Kate O’Connell, before the execution of the deed, but they contend that the powers of the executor continued after his final discharge. A number of authorities are cited to support their contention. (Calloway v. Cooley, 50 Kan. 743, 32 Pac. 372; Niquette v. Green, 81 Kan. 569, 106 Pac. 270; Bank v. Grisham, 105 Kan. 460, 185 Pac. 54.) In those cases the powers conferred by the will were executed before the discharge of the executor. In none of them was it held that an executor had the right or authority to convey after his discharge. They cite various other authorities which have no application to the instant case.
In State, ex rel., v. Kenrick, 159 Mo. 631, it was said, in substance:
“When, however, an. executor or administrator has fully performed all his duties, he is entitled to be discharged from the trust, and all his powers and liabilities thereupon shall cease, and thereafter he has nothing to do with the estate.”
In 24 C. J. 160, it is said:
“It is usually considered that where executors are given a general power of sale, they may sell at their discretion, as prudence may dictate during the continuance of the trust.”
“It is axiomatic that, where a testator authorizes or directs his executor to sell his real property, the executor is the proper person to make the sale, although he has not power to sell after his discharge as executor, or where he has renounced the office.” (p. 165. See, also, Boland v. Tiernay, 118 Iowa 59.)
We are of the opinion that the power given to the executor in Kate O’Connell’s will did not authorize the execution of the deed after the executor’s discharge.
The judgment is affirmed. | [
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Malone, J.:
Stephen James McGinnis appeals his convictions of felony driving under the influence of alcohol (DUI) and transporting an open container. McGinnis claims the district court erred in denying his motion to suppress the evidence. Specifically, McGinnis argues that the arresting officer stopped and detained McGinnis without reasonable suspicion of criminal activity, thereby making the stop illegal. But because the initial contact between McGinnis and the arresting officer constituted a voluntary encounter, we conclude that the district court did not err in denying McGinnis’ motion to suppress the evidence.
On March 20, 2007, at 10 a.m., Atchison County Deputy Sheriff Bryan Clark responded to reports of a possible stolen vehicle partially submerged in the Missouri River, near the mouth of the Independence Creek. While en route to that location, Clark observed a vehicle traveling north on a county road. The vehicle turned into a driveway that provides access to the Independence Creek and is used for parking for people fishing at the creek. Clark observed the vehicle pull over and stop along the driveway. Although the driveway dead-ends at the creek, there is sufficient room for vehicles to back out or turn around in the grass in order to return to the main road.
Clark followed the vehicle into the driveway because it had a Missouri license plate, like the vehicle reported stolen. Upon entering the driveway, Clark did not activate his emergency lights and he parked two or three car lengths behind the other vehicle. By die time Clark exited his patrol car, the driver of the other vehicle, later identified as McGinnis, was standing at the bank of the creek and looking in the direction of the stolen car. Clark walked past McGinnis’ vehicle and saw a 12-pack of beer in the front seat. Clark approached McGinnis and said hello and asked him what he was doing. McGinnis said he was looking for a fishing spot. Clark ask McGinnis if he knew anything about the car submerged in the creek, and McGinnis said no.
During tire brief conversation, Clark immediately smelled the odor of alcohol on McGinnis’ breath and observed that McGinnis had bloodshot eyes. Also, McGinnis’ speech was slurred at times. Clark asked McGinnis if he had been drinking, and McGinnis admitted that he had consumed two or three drinks. Clark then asked McGinnis to perform various field sobriety tests. McGinnis consented and failed. As a result, Clark arrested McGinnis for DUI. Upon searching McGinnis’ vehicle, Clark discovered an open container of beer. After the arrest, McGinnis was taken to the Atchison Hospital for a blood test, which later revealed a blood alcohol concentration of. 12.
The State charged McGinnis with felony DUI and transporting an open container. Prior to trial, McGinnis filed a motion to suppress the evidence, arguing that he had been unlawfully stopped and detained without reasonable suspicion of criminal activity. Clark was the only witness who testified at the hearing on the motion to suppress. The district court denied the motion, characterizing the situation between Clark and McGinnis as a voluntary encounter which did not trigger Fourth Amendment protections. After a trial on stipulated facts, the district court found McGinnis guilty as charged. McGinnis timely appeals.
McGinnis claims the district court erred in denying his motion to suppress the evidence. Specifically, McGinnis argues that he was stopped and detained by Clark without reasonable suspicion of criminal activity, thereby making the stop illegal. The State does not argue that Clark possessed reasonable suspicion of criminal activity when he initially approached McGinnis. However, the State argues that the initial contact between Clark and McGinnis was a voluntary encounter. The State asserts that McGinnis was not seized until Clark began the DUI investigation, at which time Clark possessed reasonable suspicion that McGinnis had committed this crime.
In reviewing a district court’s decision regarding suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). McGinnis does not dispute the district court’s findings of fact. When the material facts to a district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
The Fourth Amendment to the United States Constitution provides: “The right of die people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of Kansas Constitution Bill of Rights contains similar language and “provides protection identical to that provided under the Fourth Amendment to the United States Constitution.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003).
There are four types of police-citizen encounters. The first type is a voluntary encounter, which is not considered a seizure under the Fourth Amendment. State v. Lee, 283 Kan. 771, 774, 156 P.3d 1284 (2007). The second type is an investigatory detention or Terry stop, in which an officer may detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. See K.S.A. 22-2402(1); see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The third type of encounter is a public safety stop, in which an officer may approach a person to check on his or her welfare when the officer can articulate specific facts indicating a concern for the public’s safety. See State v. Vistuha, 251 Kan. 821, 824, 840 P.2d 511 (1992). The fourth type of encounter between law enforcement officers and citizens is an arrest. See K.S.A. 22-2401.
The delineation between a voluntary encounter and an investigatory detention is narrow and depends on the totality of the circumstances. Both instances involve contact between a law enforcement officer and a citizen, usually precipitated by the law enforcement officer. However, in a voluntary encounter, the citizen is always free to leave or terminate the encounter. State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991). “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). An encounter between a citizen and a law enforcement officer in a public place is considered voluntary as long as a reasonable person would feel free to decline the officer s requests for information or otherwise terminate the encounter. A voluntary encounter is not considered a seizure and does not require the officer to have reasonable suspicion of criminal activity. State v. Young, 37 Kan. App. 2d 700, 704, 157 P.3d 644 (2007). Conversely, a person is seized when there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority. Morris, 276 Kan. at 18-19. A seizure requires the officer to have reasonable suspicion of criminal activity. Young, 37 Kan. App. 2d at 704.
Although there is no bright-line test for distinguishing a seizure from a voluntary encounter, the Kansas Supreme Court has identified certain factors which support a seizure, including “activation of sirens or flashers, a command to halt, a display of weapons, or [an] attempt to control the ability to flee or the direction of travel during die chase.” Morris, 276 Kan. at 20. Other factors supporting a seizure include the presence of more than one officer, the display of a weapon, physical contact by the officer, or use of a commanding tone of voice. Lee, 283 Kan. at 775. Once a voluntary encounter loses its consensual nature and becomes an investigatory detention, the law enforcement officer must have “knowledge of facts giving rise to a reasonable and articulable suspicion that the defendant had committed, was committing, or was about to commit a crime.” Morris, 276 Kan. at 17.
McGinnis argues that he was seized by Clark from the outset of their encounter, thereby triggering his Fourth Amendment protections. McGinnis premises this argument upon the fact that Clark pulled in behind his car, which was parked in the dead-end driveway, and began questioning him at close distance regarding a reported crime. McGinnis contends that no reasonable person would have felt free to leave or terminate the encounter and, therefore, the encounter from its inception constituted a seizure. According to McGinnis, Clark did not have reasonable suspicion of criminal activity at the time he initially approached McGinnis, thereby making the stop illegal.
Three recent Kansas appellate court decisions provide guidance in distinguishing a voluntary encounter from a seizure. In State v. Gross, 39 Kan. App. 2d 788, 184 P.3d 978 (2008), two police officers in a patrol vehicle approached a parked car occupied by the defendant as a passenger. The officers activated their emergency lights and parked their patrol vehicle parallel to the parked car in a manner that restricted the parked car from leaving. One of the officers approached the defendant and ordered her to roll down her window or open her door so that the officer could speak with her. During the encounter, the officer smelled the odor of burnt marijuana. The officers searched the parked car and subsequently arrested the defendant for possession of cocaine. The district court refused to suppress the evidence.
On appeal, the State argued that the initial encounter between the officers and the defendant was voluntary. The Court of Appeals rejected this argument and determined that the encounter from its inception was an investigatory detention. The court noted that the defendant’s movement was restricted or curtailed by the manner in which the officers blocked the parked car with their patrol vehicle. The court further noted that the officers activated their emergency lights and one of the officers ordered the defendant to speak with him. The court concluded that under the totality of the circumstances, no reasonable person in the defendant’s position would have felt free to disregard the officers and terminate the encounter. 39 Kan. App. 2d at 800-01.
In Lee, 283 Kan. 771, two police officers were dispatched to a public park in response to a report of a suspicious man walking through the park, looking on the ground, and hitting the ground with a stick. The officers approached the man, who was later identified as the defendant, requested his identification, and asked what he was doing. The defendant explained he was looking for his wallet that he had lost the previous week. Although the defendant’s behavior was not threatening, one of tire officers asked if he had any weapons. The defendant removed two knives from his pocket. The officer then asked for permission to conduct a pat-down search for weapons, and the defendant complied. The officer discovered a bulge in the defendant’s pocket and, without asking for consent, the officer reached into the pocket and removed a rolled-up baggie that contained methamphetamine.
On appeal, the Kansas Supreme Court determined that the police officers’ contact with the defendant was a voluntary encounter. The court determined that a reasonable person in the defendant’s situation would have felt free to disregard the officers and go about his or her business. The court noted that even though there were two officers, there was no evidence the officers displayed their weapons, physically restrained the defendant, or spoke with a commanding tone of voice. The court found the defendant’s consent to the pat-down search was voluntary under the circumstances. In doing so, the court specifically rejected the district court’s conclusion that the officers’ presence was coercive merely because the officers were wearing uniforms and carrying standard-issue weapons. However, the court ultimately suppressed the evidence seized from the defendant because the court concluded the officer had violated the plain feel exception to the requirement for a search warrant when he removed the baggie from the defendant’s pocket while searching only for weapons. 283 Kan. at 780.
In Young, 37 Kan. App. 2d 700, a police officer exited his patrol vehicle without using emergency lights and approached the defendant, who was walking through a city park. The officer did not block the defendant’s path or command the defendant to stop or speak. After approaching the defendant, the officer did not use a commanding tone of voice, physically restrain the defendant, or attempt to prohibit the defendant’s ability to flee. The officer did not inform the defendant that he was free to leave or that he was not required to answer questions. However, the defendant agreed to speak with the officer, and he ultimately consented to a search which led to the discoveiy of methamphetamine and drug paraphernalia. The district court refused to suppress the evidence and found that the defendant had voluntarily consented to the search during a voluntary encounter with tire officer.
On appeal, the Court of Appeals affirmed. The court likened the situation to the facts in Lee, finding the encounter to be voluntary because there was a single officer; the officer did not activate emergency lights before exiting his vehicle or command the defendant to stop or speak; and the officer did not use a commanding tone of voice, physically restrain the defendant, or attempt to control his ability to flee. The court concluded that under the totality of the circumstances, a reasonable person in the defendant’s position would have felt free to decline the officer’s request for information or otherwise terminate the encounter. 37 Kan. App. 2d at 715.
Returning to our facts, the initial encounter between Clark and McGinnis more closely resembled the voluntary encounters described in Lee and Young than the investigatory detention described in Gross. Here, Clark was the only law enforcement officer involved in the encounter. Significantly, he parked his patrol vehicle two or three car lengths behind McGinnis’ car, and the evidence was undisputed that McGinnis’ car was not blocked from leaving the driveway. Clark did not activate his emergency lights when he exited his patrol vehicle. Clark approached McGinnis on foot and did not brandish any weapons. The evidence established that Clark spoke in a normal voice and he did not command McGinnis to stop or to answer any questions. Clark did nothing to convey to McGinnis that he was being detained against his will. Viewed objectively, McGinnis was free to leave, and he could have declined to answer Clark’s initial questions. Under the totality of the circumstances, the initial encounter between Clark and McGinnis was voluntary.
Although the initial encounter between Clark and McGinnis was voluntary, the encounter quickly escalated to an investigatory detention. Clark immediately smelled the odor of alcohol on Mc-Ginnis’ breath and he observed McGinnis’ bloodshot eyes. Also, McGinnis’ speech was slurred. Clark asked McGinnis if he had been drinking, and McGinnis admitted that he had consumed two or three drinks. Clark had observed a 12-pack of beer in McGinnis’ front car seat. Finally, Clark had observed McGinnis driving on a county road immediately before their encounter.
Clark then commenced a DUI investigation and asked McGinnis to perform field sobriety tests. There is no doubt that when Clark asked McGinnis to perform field sobriety tests, McGinnis was no longer free to leave. By that time, however, it is clear that Clark had gained a reasonable suspicion that McGinnis had committed a DUI. Therefore, Clark’s further detention of McGinnis for the DUI investigation was lawful.
In summary, the initial encounter between Clark and McGinnis was voluntary when viewed objectively under the totality of the circumstances. Based on Clark’s immediate observations, he possessed reasonable suspicion to detain McGinnis for further investigation of a possible DUI. McGinnis was not unlawfully stopped or detained, and the district court did not err in denying his motion to suppress the evidence.
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Greene, J.:
Daniel M. Blomgren appeals the district court’s decision affirming the revocation of his liquor license by the Kansas Department of Revenue (Department). The Department cross-appeals the district court’s decision reversing the revocation of Jill M. Blomgren’s liquor license. Concluding the Blomgrens failed to exhaust their administrative remedies, neither the district court nor this court may invoke jurisdiction, and we must dismiss the appeal and the cross-appeal.
Factual and Procedural Background
In early 1990, Daniel opened and licensed Parkway Liquor in Lawrence. He was married to Jill in 1995, and in 1997 Jill opened and licensed Cork & Barrel Superstore in Lawrence. In 2001, Daniel was interested in opening a second Cork & Barrel location, but knowing he was limited to' only one retail liquor license, he arranged a sale of his Parkway Liquor store (Parkway) to Kerry Zimmerman. The terms of sale included Daniel’s retention of a security interest in the inventory of Parkway as collateral for a promissory note from Zimmerman. The details of the sale were fully disclosed to the Alcoholic Beverage Control Division of the Department (ABC), who then licensed Zimmerman. The parties dispute whether the entire transaction was a sham, but Zimmerman believed he was the owner of Parkway “on paper” only and had taken ownership of the store only to satisfy state licensing requirements.
Following tire Parkway transaction, Daniel transferred his liquor license to his new Cork & Barrel store. When he renewed this license for 2002, he certified on the renewal application that he had no ownership interest in any other establishment licensed to sell liquor. A subsequent routine compliance audit of Parkway caused ABC to launch an investigation of the Zimmerman transaction, and the investigation revealed numerous questionable as pects of the transaction. Based on the results of the investigation, ABC began administrative proceedings against Daniel.
An administrative hearing was held before an ABC hearing officer in June 2004, which resulted in a conclusion that Daniel owned a beneficial interest in the Parkway store when he certified that he had no such interest. The hearing officer issued an order revoking Daniel’s license and imposing a fine of $1,000. This order was then appealed to the Director, who affirmed the hearing officer based on a finding in part that there had been shown “clear subterfuge” by Blomgren.
The Director’s “Final Order” was appealed to the Secretary of the Department pursuant to K.S.A. 41-321, but that appeal was then withdrawn and dismissed. Instead, Blomgren filed a petition for judicial review of the Director’s “Final Order” in district court. The Department moved to dismiss for failure to exhaust administrative remedies, but the court held that the appeal to the Secretary was discretionary and not required by K.S.A. 77-613 to exhaust administrative remedies. Ultimately, the court affirmed the Director’s revocation of Daniel’s license, concluding in part that Daniel’s license renewal had been procured through false and fraudulent statements.
Meanwhile, ABC also launched an investigation of Jill, which resulted in charging her with 15 counts of operating a catering business out of her liquor store, 29 counts of selling alcohol on credit, 17 counts of providing goods or services other than alcoholic liquor, and 40 counts of delivering alcohol to unlicensed premises and allowing another business to be operated from her retail liquor store premises. The proposed penalty was license revocation and a fine of $105,000.
The hearing officer held a hearing and found that Jill had secured advantages by playing by a different set of rules than local competitors and that she had a general disregard for the Liquor Control Act, K.S.A. 41-101 et seq. The officer concluded that Jill’s license should be suspended and she should be fined $9,500. On an appeal to the Director, the orders of the hearing officer were affirmed, and Jill’s actions to obtain relief on appeal, first to the Secretary and then to district court, paralleled those of Daniel. In Jill’s case, however, the district court reversed the revocation of Jill’s license while affirming the imposition of the fine.
This brings us to the appeal by Daniel, challenging the court’s revocation of his license, and the cross-appeal by the Department, challenging the court’s reinstatement of Jill’s license.
Standard of Review
Judicial review of agency actions is governed by K.S.A. 77-601 et seq., and the standards of review are specified by statute at K.S.A. 77-621(c). When the district court has provided a first level review, we determine whether that court followed the proper requirements and restrictions in its review, and then we review pursuant to those same standards. Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005). Where such an appeal frames questions of statutory interpretation or application, we give some .degree of deference to an agency’s interpretation, but an agency’s interpretation of a statute is not binding, and the final construction of a statute lies with the appellate courts. If the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court must take corrective steps. Bluestem Telephone Co. v. Kansas Corporation Comm'n, 33 Kan. App. 2d 817, 823, 109 P.3d 194 (2005).
Whether a party is required to or has failed to exhaust administrative remedies is a question of law over which we have unlimited review. Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 353, 64 P.3d 395 (2003).
Did the Blomgrens Exhaust Their Administrative Remedies?
As a general rule, administrative remedies must be exhausted before judicial review is permissible. Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 85-86, 991 P.2d 883 (1999). In order to make a determination whether such remedies were exhausted here, we must review the procedural aspects of the Liquor Control Act (K.S.A. 41-101 et seq.), the Kansas Administrative Procedure Act (KAPA) (K.S.A. 77-501 et seq.), and the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA) (K.S.A. 77-601 et seq.).
When a citation is issued for violation of the Liquor Control Act, the citation must be delivered to the person committing the alleged violation, and a copy of the citation must be mailed to the licensee. K.S.A. 41-106. All proceedings involving the revocation of a retail liquor license shall be before the Director, and the proceedings shall be in accordance with the provisions of the KAPA. No license shall be revoked except after a hearing by the Director. K.S.A. 41-320. When the Director revokes a license, the Director must prepare an order, which shall be signed by the Director or by someone designated by the Director and which shall have the seal of the Director affixed. K.S.A. 41-321. Under K.A.R. 14-16-16, the Director can designate someone else to preside over a revocation hearing.
K.S.A. 41-321 provides that any “licensee aggrieved by any order of the director may appeal from such order to the secretary by filing a notice of appeal with the secretary.” (Emphasis added.) Under the Liquor Control Act, “secretary” refers to the Secretary of Revenue. K.S.A. 41-102(y). The notice of appeal must be filed within 15 days after service of the order from which the person is appealing. K.S.A. 41-321. Furthermore, K.A.R. 14-16-24 states that any “licensee who desires to appeal from the order of the director shall file with the secretary a notice of appeal.” (Emphasis added.) A hearing shall be conducted by the Secretary, or the Secretary’s designee, in accordance with the provisions of the KAPA within 30 days of the filing of the notice of appeal. K.S.A. 41-321. The Secretary can adopt rules and regulations necessary to govern the procedure at the hearings. K.S.A. 41-321. Any action of the Secretary is subject to review in accordance with the KJRA. K.S.A. 41-323.
The KJRA provides that a person is entitled to file a petition for judicial review of any “final agency action” as long as that person meets the requirements under the KJRA for standing, exhaustion of administrative remedies, and time limitations for filing a petition. K.S.A. 77-607(a). A final agency action is any action that is not a nonfinal agency action. A nonfinal agency action is “the whole or part of an agency determination, investigation, proceeding, hearing, conference or other process that- the agency intends or is rea sonably believed to intend to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency.” K.S.A. 77-607(b). A final agency action should not be confused with a final order.
K.S.A. 77-613(c) requires that a petition for judicial review of a “final order” shall be filed within 30 days. The 30-day requirement for filing a petition for judicial review of a final order is also mandated by K.S.A. 77-613(b), where no reconsideration has been requested and is not required.
Finally, K.S.A. 77-612 is specific regarding the need for exhaustion of administrative remedies:
“A person may file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review ...” (Emphasis added.)
In the absence of such exhaustion, both the district court and this court are without jurisdiction and the appeal is subject to dismissal. See Jones v. State, 279 Kan. 364, 109 P.3d 1166 (2004).
The Blomgrens argue that the agency provoked their premature appeal by entitling the Directors decision as a “Final Order.” We concede the better practice would dictate that an administrative order subject to further administrative review should not be so denominated. Nevertheless, the order was “final” insofar as the Alcoholic Beverage Division was concerned, but merely calling that order “final” does not make it subject to judicial review where further administrative review is provided by statute, regulation, and the specific direction within the order itself. K.S.A. 77-526 provides no specific criteria to distinguish an initial order from a final order other than an implied need for the agency head or designee to “render a final order.” See K.S.A. 77-526(a). “Agency head” is broadly defined, however, and this ambiguity has played a role here in creating some degree of inconsistency between the need to appeal a final order under K.S.A. 77-613(c) and the need to exhaust the administrative review by the Secretary.
We disagree with the district court, which held this final step in the administrative appeal process was “discretionary” due to the statutoiy language that a licensee “may appeal” under this statute; this language merely contemplates that a licensee may be satisfied with the decision of the Director and may choose to make no further challenge to that decision. Moreover, the language of the regulation is mandatory in stating that a “licensee who desires to appeal from the order of the director shall file with the secretary a notice of appeal.” (Emphasis added.) K.A.R. 14-16-24.
The Blomgrens apparently recognized that the order may not be “final” because they filed an appeal to the Secretary. In so doing, their remedy for any inconsistency as to appeal procedure was clearly provided by the KJRA itself. K.S.A. 77-613(d)(1) states:
“(d) A petition for judicial review of agency action other than a rule and regulation or final order shall be filed within 30 days after the agency action, but the time is extended:
(1) During the pendency of the petitioner’s timely attempts to exhaust administrative remedies.”
Moreover, we do not understand why the Blomgrens did not ask the district court to stay their appeal pending the exhaustion of their appeal to the Secretary. Obviously, the district court has broad authority to resolve such an issue upon the request of a party. See K.S.A. 77-622(b) and (c).
In any event, we conclude that the inconsistency between the statutoiy procedures is resolved by our Supreme Court’s holding in United Steelworkers of America v. Kansas Comm’n on Civil Rights, 253 Kan. 327, 333, 855 P.2d 905 (1993). There the court concluded there was “ambiguity and conflict” between the specific procedural directives for administrative review within the agency and some of the general procedural directives within the KJRA. The court was faced with enforcing either one or the other, and “in resolving the ambiguity and conflict” it concluded the agency specific directive and the need to exhaust administrative remedies “must control.”
The Blomgrens argue the notice of appeal rights listed in the Director’s final order provides that the decision was to be appealed under the KJRA. We disagree. The notice in the Director’s order did not state that the Blomgrens’ next: step was to file a petition for judicial review under the KJRA. The order noted that K.S.A. 77-529 allows a party to file a petition for reconsideration of a final order with the agency head and also noted that a motion for reconsideration is not a prerequisite for seeking administrative or judicial review. This does not provide that the Blomgrens were entitled to petition for judicial review from the Director’s decision, but served only to inform the Blomgrens that they did not have to file a petition for reconsideration before taking the next step in their administrative review. The order then properly informed the Blomgrens what that next step was, which was to file an appeal with the Secretary pursuant to K.S.A. 41-321 and K.A.R. 14-16-24. Finally, the order specifically stated that the decision of the Secretary could be reviewed by filing a petition for judicial review in accordance with K.S.A. 41-323.
The Blomgrens also argue the Director’s order was a final agency action because die notice of appeal rights listed the Director as the officer to receive service on behalf of the agency. Again, we disagree. The Director’s order in this case stated that the agency officer to receive service of any petition for review or reconsideration was Thomas W. Groneman, the Director of ABC. However, the notice did not state that the Director was to receive service of any petition for judicial review. The statement that the Director was to receive service of any petition for review or reconsideration alone did not turn the “Final Order” into a final agency action subject to judicial review, especially considering that the order expressly states it may be appealed to the Secretary and the decision of the Secretary may be reviewed by filing a petition for judicial review.
The specific provisions for an appeal from the Director’s decision to the Secretary found in K.S.A. 41-321 and K.A.R. 14-16-24 control here. An appeal to the Secretary was essential to the exhaustion of available remedies under the Liquor Control Act. When the Blomgrens withdrew their appeal to the Secretary, their failure to exhaust this administrative remedy bars judicial review. K.S.A. 77-612. Neither the district court nor this court may invoke its jurisdiction where there has been no exhaustion of administrative remedies, so we are compelled to dismiss this appeal and the cross-appeal.
Dismissed. | [
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Malone, J.:
Barbara L. Johnson appeals the district court’s denial of her motion to withdraw her guilty plea for the crime of aggravated intimidation of a witness or victim. Johnson claims: (1) the district court lacked jurisdiction to convict her of the crime, and (2) the district court abused its discretion by denying her motion to withdraw her plea. We affirm.
In August 2006, James Bloom was charged in the Reno County District Court with committing sex crimes against his daughter, C.B., d/o/b December 30, 1993. After C.B. told her mother, Jessica Bloom, about James’ actions, Jessica took C.B. and her other children to Colorado to live with Johnson, Jessica’s mother. While James’ case was pending, Jessica and C.B. went on a vacation to Cancun, Mexico. Jessica was aware of the speedy trial statute requiring James to be brought to trial within 90 days of his arraignment.
On September 6, 2006, when Jessica and C.B. returned to Colorado, Jessica was arrested on a warrant for aiding a person charged with a felony. The State alleged that Jessica intentionally took C.B. to Mexico so that she would not be available to testify at James’ trial. After Jessica was arrested, C.B., was placed in Johnson’s custody with the understanding that Johnson would cooperate with the police in permitting C.B. to testify against James.
On September 7, 2006, Johnson took C.B. and the other children to New Mexico to stay with a relative. After Johnson and the children disappeared, there was a nationwide search to find C.B. Eventually, Johnson was located and arrested in Miami County, Kansas. Based on these facts, the State charged Johnson with aggravated intimidation of a witness or victim under the age of 18 years in violation of K.S.A. 21-3833(a)(4).
On November 9, 2006, Johnson pled guilty as charged. However, prior to sentencing, Johnson filed a motion to withdraw her plea. The motion claimed that the district court lacked jurisdiction to sentence Johnson and that she did not knowingly and voluntarily enter the plea. After conducting a hearing in which Johnson testified, the district court denied her motion to withdraw her plea. The district court sentenced Johnson to 18 months’ imprisonment but placed her on probation for 24 months. Johnson timely appeals.
Jurisdiction
Johnson challenges the district court’s jurisdiction to convict and sentence her for the crime of aggravated intimidation of a witness or victim under the age of 18 years. She argues that her actions occurred outside of Kansas in either Colorado or New Mexico. She also argues that she had no duty to bring C.B. to Reno County to testify because neither C.B. nor Johnson was ever served with a subpoena.
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Furthermore, whether venue is proper is a question of law subject to an appellate court’s unlimited review. State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006).
Johnson was charged with aggravated intimidation of a witness or victim under the age of 18 years in violation of K.S.A. 21-3833(a)(4). According to K.S.A. 21-3832(a)(1), intimidation of a witness or victim is knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade, any witness or victim from attending or testifying at any civil or criminal trial. The State asserted that Johnson attempted to prevent C.B. from testifying at James’ trial in Reno County, Kansas. The question is whether Johnson is subject to prosecution and punishment for this offense in Reno County when Johnson’s conduct occurred outside the district. This is an issue of first impression in Kansas.
K.S.A. 21-3104 provides in part:
“(1) A person is subject to prosecution and punishment under the law of this state if:
(a) He commits a crime wholly or partly within this state; or
(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state: or
(c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state.
“(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.” (Emphasis added.)
K.S.A. 22-2602 states: “Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” Furthermore, K.S.A. 22-2612 states: “If a crime commenced outside this state is consummated within this state, or if a person outside this state commits or consummates a crime by an agent within this state, the prosecution shall be in the county where the crime was consummated.”
Under K.S.A. 21-3104, a person is subject to prosecution and punishment in Kansas if the person commits a crime wholly or partly within this state. An offense is committed partly within this state if the proximate result of the act occurs within Kansas. Under K.S.A. 22-2612, venue is proper in the county where the crime was consummated. Contrary to Johnson’s assertion, it was unnecessary for either Johnson or C.B. to be served with a subpoena in order to prosecute Johnson for aggravated intimidation of a witness or victim. To establish that Kansas had jurisdiction, die prosecutor only needed to show the crime was wholly or partly committed within this state. The crime was partly committed within this state if the proximate result of the act, i.e., preventing C.B. from testifying, occurred within this state.
Here, Johnson attempted to prevent the witness, C.B., from attending or testifying at James’ trial in Reno County. Thus, the proximate result of Johnson’s unlawful act occurred in Reno County. Based on K.S.A. 21-3104, the Reno County District Court properly exercised its jurisdiction in convicting and sentencing Johnson. Furthermore, venue was proper in Reno County, where the crime was consummated.
Motion to withdraw plea
Assuming the district court properly exercised jurisdiction, Johnson claims the district court erred by denying her motion to withdraw her plea. Johnson argues that her plea should have been withdrawn because there was an insufficient factual basis for the plea. She further argues that her plea was coerced and made under duress.
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A. 22-3210(d). On appeal, the defendant must establish that the district court abused its discretion in denying the motion to withdraw the plea. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). In exercising its discretion under K.S.A. 22-3210(d), a district court should evaluate whether: “(1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made.” 281 Kan. at 36.
Johnson first argues that her plea should have been withdrawn because there was an insufficient factual basis for the plea. More specifically, Johnson argues there was no evidence of the requisite element of malice. The transcript of Johnson’s plea hearing reflects the following exchange between Johnson and the district court concerning the factual basis for the plea:
“THE COURT: Finally, we need to find out whether or not you actually did this. The complaint alleges that you prevented or dissuaded or attempted to dissuade a witness or victim from appearing or giving testimony in the James Ryan Bloom case. Did you do that?
“[Johnson]: Yes, sir.
“THE COURT: What did you do to actually commit the crime of aggravated intimidation of a witness or victim.
“[Johnson]: I took her [C.B.] out of the state and intentionally did not let her testily.
“THE COURT: And you knew that was wrong when you did it; is that right?
“[Johnson]: Yes.
“THE COURT: Do you understand that would make you guilty of the crime whether or not you actually understood that was a crime at the time?
“[Johnson]: Yes.
“THE COURT: And you knew what you were doing and you knew there was a trial scheduled to commence here in Reno County District Court?
“[Johnson]: Yes.
“THE COURT: And you knew she was needed as a witness and you took her out of tile state anyway?
“[Johnson]: Yes.
“THE COURT: So what is your plea to the charge of aggravated intimidation of a witness?
“[Johnson]: Guilty.”
To be guilty of intimidation of a witness or victim, the defendant must knowingly and maliciously prevent or dissuade, or attempt to prevent or dissuade, a witness or victim from testifying. K.S.A. 21-3832(a)(1). According to PIK Crim. 3d 60.06-B, “maliciously” means that “the defendant acted with an intent to vex, annoy, harm or injure in any way another person, or with an intent to thwart or interfere in any manner with the orderly administration of justice.” Here, Johnson’s statements to the district court clearly established that her conduct was intended to interfere with the orderly administration of justice. Thus, we conclude there was a sufficient factual basis for the district court to accept Johnson’s guilty plea.
Johnson next argues that her guilty plea was coerced and made under duress because she entered the plea under a threat by the assistant attorney general that he would add charges if Johnson did not plead guilty. She also argues that it would be “manifestly unjust to hold her accountable to her plea,” since she only had moments to discuss the alternatives with her attorney.
However, the record in this case contradicts Johnson’s claim that her plea was involuntary. The plea agreement signed by Johnson stated that she fully discussed the options with her attorney and that her decision to enter the guilty plea was “completely voluntary without anyone having threatened” her and “without duress and without coercion of any kind.” As the district court noted, it is routine for a prosecutor to agree not to file additional charges in exchange for a defendant’s guilty plea. Thus, Johnson’s guilty plea was not coerced simply because she was facing the prospect of additional charges if she did not enter the plea. Furthermore, Johnson had the benefit of competent counsel to advise her during all proceedings. Based on the record, we conclude the district court did not abuse its discretion by denying Johnson’s motion to withdraw her plea.
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Pierron, J.:
After a bench trial, the district court terminated Kansas Production Company’s (KPC) oil and gas lease on David and Karen Lewis’ land for KPC’s breach of the implied covenant to explore and develop the lease. The court found that KPC received no demand for development before this lawsuit was filed. It also found that KPC’s failure to explore or develop the land for 6 years negated the prior demand requirement for cancellation. KPC appeals the termination. It seeks remand for an order of conditional cancellation to allow it a reasonable time to comply with the implied covenant. We reverse and remand.
The Lewises own land in Chautauqua County that has been leased for oil and gas production since 1972. The original lease, called the Raymon lease, is a recorded burden on the Lewises’ land. The Lewises purchased the land in 2005 from David and Deborah Lowe.
In 1994, the owner of the Raymon lease was Randy Roberts. He divided the lease into upper and lower subterranean portions. Roberts retained the upper portion for himself and assigned the lower portion to Mark McCann. Roberts uses his portion of the Lewises’ land to produce oil, and he has done so continuously since before 1994. McCann has held his interest in the Lewises’ land either personally, through his wife Maricela, or through McCann-controlled companies since the 1994 assignment. KPC has held McCann’s interest in the Raymon lease since 1998. McCann is “a shareholder or principal officer” of KPC.
In December 2004, the Lowes demanded that KPC release its lease-interest. They cited as the reason for release breach of “the implied covenant to produce [KPC’s] portion of said oil and gas lease.” Except for the phrase explaining the reason for the release, their demand letter was identical to the statutory form contained in K.S.A. 55-201. This lawsuit commenced in May 2005.
McCann admitted at trial that he never took steps to develop his portion of the Raymon lease. He explained that he did not believe he had to develop the Lewises’ land because he was already actively developing or producing neighboring acreage covered by the original Raymon lease. McCann testified he was unaware that an implied covenant to explore and develop the land existed, and he had not developed the Lewises’ land because he had more-pressing deadlines in other fields.
In April 2007, nearly 2 years into this lawsuit, McCann obtained a commitment from MOKAT, Inc., to drill a test well on the Lewises’ land. He did this to show that he intended to develop the land. McCann also pointed to his partial financing of gas lead lines into the area where the Lewises’ land is located as evidence of his intent to develop the lease.
McCann testified that he believes he can produce a profitable gas well on the Lewises’ land.
David Lewis testified that he did not want further oil or gas production on his land. Lewis wanted to clear the Raymon lease burden on his title.
In its written order, the district court succinctly characterized this case as one where “suit has been brought to terminate the lease without any demand having been made by the landowner upon the lessee that further development be made.” The court did not address the effect of the Lowes’ K.S.A. 55-201 form letter in its order. However, it found that “the Defendants have presented no credible evidence explaining [their] failure to develop the lease and that to grant . . . a conditional cancellation would in this case serve no useful purpose . . . and would merely delay the inevitable lease termination.” It further found that McCann and KPC had done “absolutely nothing to reasonably develop the lease premises.” Therefore, the court ruled that “upon the many years of nonproduction or exploration [of this lease, prior demand for compliance] shall not be a condition precedent to bringing an action for forfeiture and that the conduct of the Lessee Defendants ... is such that the landowner . . . should be entitled to the remedy of forfeiture.”
KPC filed a motion for reconsideration which the district court denied after a hearing. At that hearing, the judge explained his ruling:
“I guess to simplify it, actions speak louder than words. You know, I did hear some words about an intent or a desire to drill and complete a well and possible producing of paying quantities of gas in that particular horizon [owned by the defendants,] but all during this lease there’s been no action and I drink it’s fruitless to continue this matter.”
The lease in question contained no specific time provisions for development.
The parties agree that the so-called “Kansas Deep Horizons Act” governs this lawsuit. That Act, K.S.A. 55-223 et seq., implies in all oil and gas leases a covenant “to reasonably explore and to develop the minerals which are the subject of such lease.” K.S.A. 55-223. This covenant is a burden on the lessee and “any successors in interest.” K.S.A. 55-223. The parties agree that the implied covenant was breached in this case because, at the time the Lewises commenced this lawsuit, KPC was not producing oil or gas on their land pursuant to the Raymon-lease interest, and initial production on the Lewises’ land began 15 years before the commencement of this lawsuit. See K.S.A. 55-224. The district court found that KPC had breached the implied covenant.
The dispute in this case is over the appropriate remedy. KPC wants a “conditional cancellation” of the lease, and it requests an order for a “reasonable time” to drill a well and begin production. The Lewises want no further development of their land, and they are using this breach-of-covenant action as a vehicle to ehminate KPC’s leasehold interest.
The district court based its order cancelling the lease on “statutory law.” The court held that it had “authority under the statute to issue an order terminating the lessee’s right to said subsurface parts as are the subject of the lease. The Court in the alternative may enter an order as the interest of the parties in equity may be appropriate.” The court did not cite the statute to which it was referring. But, it is obvious that it based its decision on the authority of K.S.A. 55-226. That statute provides remedies for breach of an implied covenant to explore or develop a lease as follows:
“If the court determines that the lessee has failed to comply with [the implied covenant to explore and develop], tire court may grant the lessee a reasonable time in which to comply, or the court may issue an order terminating the lessee’s right to such subsurface part or parts as are the subject of such action. The court may enter such other orders as the interests of the parties and equity may require.” K.S.A. 55-226.
The parties agree that resolution of this case depends on the appellate court’s interpretation of K.S.A. 55-226. Although other Kansas cases have addressed the exact remedy presented by this case and under similar circumstances, no case has previously interpreted K.S.A. 55-226, nor do any of the relevant precedents rely on this statute for authority. Therefore, this case presents an issue of first impression insofar as the interpretation of K.S.A. 55-226 is concerned.
The parties correctly acknowledge that statutory interpretation is a matter over which the appellate court exercises unlimited review. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The intent of the legislature governs statutory interpretation, if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). Statutory language is the primary source for ascertaining legislative intent. State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). “When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). That is, we will not “ ‘supply vital omissions in a statute’ ” because “[n]o matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.” Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993).
As mentioned above, the Lewises are seeking cancellation of KPC’s lease interest in their land, not compliance with the lease. Historically, cancelling an oil and gas lease was an extreme remedy. Because cancelling a lease works a forfeiture, courts have usually required a landowner to demand compliance with the implied covenant to explore and develop before granting the landowner’s request to cancel an oil and gas lease.
However, K.S.A. 55-226 says nothing about demand for compliance before a court may cancel a lease for breach of the implied covenant to explore and develop. It merely presents a court with alternatives. That is, a court has authority under the plain language of K.S.A. 55-226 to either “grant the lessee a reasonable time in which to comply” or “terminate] the lessee’s right” to the land covered by his lease. The district court chose the latter. Was this reversible error?
When the legislature enacts legislation, we presume that it intends to change preexisting law. See State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006). This is true even where the common law has a preexisting rule, because the appellate court defers to statutory language when it conflicts with the common law. K.S.A. 77-109; O’Grady v. Potts, 193 Kan. 644, 647, 396 P.2d 285 (1964). So, at first glance, it seems that the district court here was well within its statutory authority to cancel KPC’s lease on the Lewises’ land even without a demand by the landowner.
However, and interestingly, K.S.A. 55-229, the last section in the Deep Horizons Act, reads: “This act shall not alter or affect substantive rights or remedies under any such mineral leases under the common law. . . . The evidentiary presumption afforded by this act shall be cumulative . . . to all other substantive rights and remedies in existence under the common law.” (Emphasis added.)
Statutes must be read as a whole, with a view toward reconciling provisions where possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). Also, we presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). K.S.A. 55-229 indicates that K.S.A. 55-226 is merely a codification of the preexisting common-law remedy of cancellation with all of its common-law requirements. Also, giving the plain language of the first sentence of K.S.A. 55-229 its common-sense effect requires that the K.S.A. 55-226 remedies be interpreted and applied in compliance with preexisting common law. Accordingly, a brief catalogue of Kansas’ common law on this point (cancellation of an oil and gas lease for a lessee’s failure to develop) is in order to understand our interpretation of K.S.A. 55-226.
The appellant relies on Amoco Production Co. v. Douglas Energy Co., Inc., 613 F. Supp. 730 (D. Kan. 1985), which reached the same conclusion: that K.S.A. 55-229 preserves the common-law remedies for breach of an implied covenant in their original form. In the court’s words, “Section 226 provides for substantially the same remedies available under [Kansas’] prior [common] law,” and “Section 229 expressly states that substantive rights and remedies will not be altered or affected by the Deep Rights Act.” 613 F. Supp. at 736-37. We will further discuss this case below.
In 1918, the Kansas Supreme Court set down the basic format for remedying a lessee’s failure to develop his or her lease interest. In Alford v. Dennis, 102 Kan. 403, 404, 170 P. 1005 (1918), the lessor appealed an adverse summary judgment order in his suit to cancel an oil and gas lease for the lessee’s failure to develop the land for 13 years. Before filing his lawsuit, the plaintiff did not demand production or exploration from the lessee. The Supreme Court remanded the case for trial, noting that “[t]he instances are rare where equity will enforce a forfeiture” and that “it will never do so where less drastic redress will satisfy the demands of justice.” 102 Kan. at 405-06. The court ruled that “we think this lawsuit will answer tire purpose of a demand for drilling.” 102 Kan. at 407. It held that a trial court should first order damages, if such can be ascertained. If damages are inappropriate or unascertainable, a court should order a lessee to develop the lease in good faith and in a reasonable time period. Failing that, the court should cancel the lease. 102 Kan. at 407.
In 1936, the Kansas Supreme Court refined this outline. In Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, 694, 56 P.2d 431 (1936), the court recognized:
“While it has been held that, under certain conditions, notice to explore is not a condition precedent to bringing an action for forfeiture, yet the fact a suit is brought, without any demand having been made by the landowner upon the lessee that further development be made, has some bearing on the question whether the conduct of the lessee is such that the landowner is entitled to the rather harsh remedy of forfeiture.”
The Greenwood court recognized one circumstance where “notice to explore is not a condition precedent” to forfeiture: futility. Referring to an older case, Howerton v. Gas Co., 81 Kan. 553, 106 P. 47 (1910), the court recognized that forfeiture could be granted where a lessee’s actions or attitudes make a previous warning unnecessary. Greenwood, 143 Kan. at 691. Where a lessee claims a right to hold property without development or explanation for delay, and he or she refuses to explore or develop the property, “ It would be unjust to leave [lessor] without redress.’ ” 143 Kan. at 691 (citing Howerton, 81 Kan. at 564). Accordingly, cancellation or forfeiture of a lease is appropriate where demand for compliance would be futile. 143 Kan. at 691.
The Supreme Court further refined oil and gas forfeiture law in Rook v. James E. Russell Petroleum, Inc., 235 Kan. 6, 679 P.2d 158 (1984). In that case, the court identified two situations commonly confused with breach of an implied covenant to develop. The first situation is where a lessee breaches a lease term by failing either to drill or to pay delay rent. This is not abandonment, said the court, it is instead expiration of the lease by its own terms. The second situation is where a lessee makes a conscious decision and takes an overt act toward giving up lease rights. This is “true abandonment” — the “intentional and voluntary relinquishment” of lease rights. 235 Kan. at 16. Breach of the implied covenant to explore and develop occurs when a lessee intends to retain a lease but postpones production and so takes no development action on the lease. 235 Kan. at 16.
Where an implied covenant to explore and develop is involved, the Rook court noted:
“[A] lease may be subject to partial cancellation as to the undeveloped portion of the leasehold . . . but usually . . . the lessor [must] first make demand upon the lessee or partial assignee for further development prior to the entry of a decree terminating the undeveloped portion of the lease, or the order of the court may set a time within which further development must be commenced by the lessee before cancellation will be decreed.” 235 Kan. at 17-18.
The Greenwood court found that forfeiture was appropriate in Rook because the lessee took positive steps demonstrating an intent to abandon the lease. He left his equipment on the property to rust and deteriorate, he tore down and partially removed a damaged pump house without repairing it, he removed the power sources for his equipment, and he did not return to the property for approximately 12 years. Since the lease had been abandoned, the court ruled that demand for compliance with the implied covenant to develop was not required. 235 Kan. at 19.
To summarize, the common law in Kansas regards forfeitures as an ultimate remedy, available only where damages or any equitable orders are insufficient. Alford, 102 Kan. at 405-07. Demand for compliance with the implied covenant is not a necessary condition for cancelling a lease when the facts justify such action, but the best practice is for a landowner to demand that a lessee comply with the covenant before suing for forfeiture. Rook, 235 Kan. at 17-18; Greenwood, 143 Kan. at 694. Courts may deny cancellation, even in the face of an admitted breach, where a lessee receives no prelawsuit demand to comply with the implied covenant. Rook, 235 Kan. at 17-18. The cases do not reveal precisely what kind of demand to comply is required; but in Adolph v. Stearns, giving prelawsuit notice of breach under the K.S.A. 55-201 form is acceptable for breach of express covenants. 235 Kan. 622, 630-31, 684 P.2d 372 (1984). Nothing in these cases suggests why K.S.A. 55-201 notice would not be appropriate for implied covenants.
Also, two apparent exceptions to the demand-for-compliance rule exist: futility and “true abandonment.” As noted above, where the facts indicate that demand for compliance would make no difference and refusing a lessor s request would leave the lessor without a remedy, a court may cancel the lease without prior demand because such demand would be futile. Greenwood, 143 Kan. at 691 (citing Howerton, 81 Kan. at 564). Alternatively, if it appears from the lessee’s actions that a conscious choice was made to give up (or at least not to pursue) rights under a lease, cancellation is appropriate. Rook, 235 Kan. at 19. Demand is not required in such case because the lessee consciously abandoned the property interest. See 235 Kan. at 16.
KPC relies extensively on Amoco Production Co. v. Douglas Energy Co., Inc., 613 F. Supp. 730 (D. Kan. 1985), for support. While federal cases do not override established Kansas law, they may be persuasive authority. See Labra v. Mid-Plains Constr., Inc., 32 Kan. App. 2d 821, 825, 90 P.3d 954 (2004). So, to the extent that Amoco supplements Kansas’ common law, it is persuasive. See 32 Kan. App. 2d at 825. If it contradicts established Kansas law, we follow the Kansas Supreme Court. See Buchanan v. Overley, 39 Kan. App. 2d 171, 175-76, 178 P.3d 53 (2008).
In Amoco, the federal court held: “Where the implied covenant [to explore and develop] theoiy is correctly applied, prior demand and notice to the lessee, or a showing of futility, is a prerequisite to entry of a decree of unconditional forfeiture.” 613 F. Supp. at 735. The court examined most of the same cases mentioned above and concluded that except in cases of futility, “[d]emand remains a prerequisite for forfeiture as described above.” 613 F. Supp. at 737. The court distinguished Rook as a case about “abandonment” instead of a case about breach of an implied covenant to explore and develop an oil and gas lease. 613 F. Supp. at 734-35.
Therefore, the Amoco court concluded that actions for breach of an implied covenant were not covered by the rule in Rook. 613 F. Supp. at 734-35. It appears that under Kansas common law abandonment is an exception to the general rule that prior demand is required for forfeiture. The Amoco court apparently saw abandonment as a cause of action distinct from breach of implied covenant, albeit with an identical potential remedy. See 613 F. Supp. at 734-35; compare Rook, 235 Kan. at 16-18.
This is a distinction without a difference for the case at hand. Essentially, if a lessee actually abandons lease rights, the lease may be cancelled. Rook, 235 Kan. at 16-18. Likewise, if a lessee breaches the implied covenant to explore and develop but receives no presuit demand to comply, the lease may be cancelled if the facts demonstrate a true abandonment. 235 Kan. at 16-18. Otherwise, the normal rule that a demand for compliance must precede forfeiture should apply. 235 Kan. at 16-18. Under Kansas’ common law, a lessor may phrase a cause of action either way. Amoco adds nothing to this mix except that abandonment is a factual situation which must be analyzed differently than a “true” breach-of-implied-covenant case. 613 F. Supp. at 734-35, 737. To the extent that Amoco conflicts with Kansas’ common law, the Kansas cases prevail. See Buchanan, 39 Kan. App. 2d at 175-76.
The district court characterized this lawsuit as one where “suit has been brought to terminate the lease without any demand having been made by the landowner upon the lessee that further development be made.” Much turns on this fact. If KPC received no demand for compliance, the case should be remanded for entry of a conditional cancellation because KPC is entitled to a chance to cure its breach of the implied covenant. See Rook, See 235 Kan. at 17-18. KPC has indicated a desire to cure its breach. The court said a forfeiture was appropriate because it appeared futile to give it more time. However, KPC has shown its willingness to comply with the lease so reasonable conditions for compliance would be appropriate.
As mentioned above, the district court found that “suit has been brought to terminate the lease without any demand having been made by the landowner upon the lessee that further development be made.” Factual findings are reviewed on appeal for substantial, competent supporting evidence. Substantial evidence is enough legal and relevant evidence that a reasonable person might regard as sufficient to support a conclusion. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). An appellate court does not redetermine questions of fact. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008). However, if the acknowledged facts do not support the findings, review is appropriate.
The language of the letter to McCann gave KPC (or McCann) no reason to believe that the Lowes (or later, the Lewises) would accept efforts to negotiate immediate development. This is probably the reason why the trial court concluded that no demand for compliance was given in this case.
It appears that the Lewises contend that KPC should have risked money or resources protecting a piece of land where the title was under attack. In Kansas, an attack on a lessee’s title cuts off the obligation to perform the lease duties. Thurner v. Kaufman, 237 Kan. 184, 193, 699 P.2d 435 (1985). Therefore, calling the December 2004 letter a demand for compliance unfairly faults KPC for failing to spend money developing land to which it might lose its rights to the property owner. Accordingly, the district court correctly found that this is not a case where the lessee received demand to comply with a broken covenant. The cancellation must stand, if at all, on some other ground. See Rook, 235 Kan. at 17-18.
We find that neither the futility nor the abandonment exceptions save the district court’s order. Abandonment happens when a lessee takes positive, objective steps indicating an intent to surrender lease rights. Rook, 235 Kan. at 19. Here, KPC indicated not only an intent to retain its lease rights, KPC now knows that it must act immediately to preserve them.
KPC may have sat on its rights but so did the Lowes. If compliance was desired, they should have asked for it.
The futility argument cannot be reasonably raised in this case. KPC was not speculating on the lease; it only failed to get to it fast enough. So, this is not a case like Howerton where the lessee refused a demand for development and claimed a right to hold the property indefinitely without development. At trial, McCann indicated that he was willing to develop the lease, and he opined that he could begin exploring the lease within 6 months. Therefore, futility is not a viable alternative for upholding the cancellation.
We believe the Kansas precedent in this case requires us to find that the Lowes and Lewises did not ask for compliance for many years and, in fact, the Lewises still have not done so. They want only a cancellation of the lease.
Since there has been no compliance request, and no evidence of abandonment or futility in requesting compliance, cancellation is not appropriate. KPC’s actions have been sluggish, but before the extreme remedy of forfeiture could be imposed, under these facts, there should have been a demand for compliance. Absent such a demand, under these facts, KPC should be given a reasonable time to comply with the lease.
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Caplinger, J.:
Melvin D. Bryant, Jr., appeals his conviction and sentence for securities fraud in violation of K.S.A. 1998 Supp. 17-1253. Bryant argues (1) his right to a statutory right to a speedy trial was violated; (2) the trial court abused its discretion in admit ting expert testimony regarding investment fraud schemes; and (3) the trial court erroneously based an aggravated durational departure on the jury’s finding of a fiduciary relationship.
We affirm Bryant’s conviction, concluding his statutory right to a speedy trial was not violated, and the district court properly admitted expert testimony on investment fraud schemes. However, we reverse the trial court’s imposition of an aggravated durational departure based upon the existence of a fiduciary relationship. We conclude that because a fiduciary relationship was necessarily inherent in the crime charged in this case, it could not be used as aggravating factor to support a durational departure.
Statutory Right to a Speedy Trial
Prior to trial, Bryant requested two continuances. Both motions contained waivers of Bryant’s speedy trial right. As a result of these continuances and a failed mediation attempt, the trial was set for March 28, 2005. That date was continued at the State’s request to August 1, 2005. Just prior to trial, Bryant moved to dismiss the charges arguing his statutory right to a speedy trial was violated. The district court denied the motion, pointing out that the court had previously determined that the speedy trial clock began to run on March 28, 2005, and no party objected to that determination.
On appeal, Bryant renews his argument that his statutory right to a speedy trial was violated, claiming the speedy trial clock began to run on January 13, 2005, the date scheduled for a plea hearing.
Whether Bryant’s statutory right to a speedy trial was violated is a question of law subject to de novo review. State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007). K.S.A. 22-3402(2) requires that a defendant be brought to trial within 180 days after arraignment unless the delay is due to the defendant’s request, the defendant’s fault, or a continuance ordered by the district court under subsection (5). The State had the burden to insure Bryant received a speedy trial in accordance with K.S.A. 22-3402. 283 Kan. at 369.
The parties agree that the time period following arraignment to January 13, 2005, is properly attributable to Bryant based upon his motions to continue the trial date and written waivers of his speedy trial right. However, the parties dispute whether the speedy trial clock began to run on January 13, 2005, or March 28, 2005. If the clock began to run on January 13, 2005, then the trial date of August 1, 2005, was outside of the 180-day period mandated by K.S.A. 22-3402(2). Alternatively, if the clock began to run on March 28, 2005, then Bryant was tried within the 180-day period.
It is undisputed that Bryant requested a continuance of the trial set for December 6, 2004. However, some confusion resulted because the district court granted the motion to continue the trial on December 3, 2004, but did not reschedule the trial at that time. Instead, the court waited until January 13, 2005, the date scheduled for a plea hearing. On that date, because plea negotiations failed, the court rescheduled the trial for March 28, 2005.
When a continuance is sought by the defendant, the time from the granting of the continuance until the rescheduled trial date is attributable to the defendant. State v. Lawrence, 38 Kan. App. 2d 473, 477, 167 P.3d 794 (2007) (applying State v. Brown, 283 Kan. 658, Syl. ¶ 2, 157 P.3d 624 [2007]). Following this rule, the clock did not begin to run until March 28, 2005, the date to which the trial was eventually rescheduled pursuant to Bryant’s request for a continuance.
Nevertheless, Bryant argues the clock began to run on January 13, 2005, the date set for a plea hearing. Bryant cites no authority in support of this assertion. Instead, he relies upon a statement made by the trial court at that hearing indicating the speedy trial clock began to run on that date. However, this appears to have been a misstatement by the trial court, since the continued trial date was requested by the defendant.
Moreover, the trial court appears to have recognized its misstatement on March 28, 2005, when the State requested a continuance of trial. At that time, the court rescheduled the trial until August 1, 2005, and clarified that “all the time from the preliminary hearing to today has been charged to the defense ... so that our window of time to try the case essentially is beginning today.” Bryant did not object to this statement.
Because the time period between January 13, 2005, and March 28, 2005, is properly attributable to the defendant, the August 1, 2005, trial date was within 180 days of March 28, 2005, and no statutory speedy trial violation occurred.
In light of our conclusion that Bryant’s statutory speedy trial rights were not violated, we decline to consider the State’s argument that the time period between March 28, 2005, to August 1, 2005, must also be attributed to the defendant.
Admission of expert testimony
At trial, the State presented the expert testimony of Leonard Zawistowski, Jr., regarding high-yield investment programs and the manner in which such programs generally operate. Zawistowski testified that Bryant’s investment program was a high-yield investment fraud program. Bryant objected to Zawistowski’s testimony on the grounds that it was improper and prejudicial.
The trial court overruled Bryant’s objection, noting that Bryant was charged with “a business, practice or course of conduct that operates as a fraud or deceit” upon the victim. The court reasoned that Zawistowski’s testimony that the investment in this case was a “bogus” investment “would support a claim by the State that Mr. Bryant should have known [the investment was fraudulent] as an experienced person in the investment industry.” Further, the trial court held the testimony would support a claim that Bryant “intended to make materially untrue statements to [the victims] regarding the investment and to operate a course of business dealings” that would defraud the victims.
On appeal, Bryant argues Zawistowski’s testimony was irrelevant and the district court abused its discretion in admitting the testimony.
“ ‘The admission of expert testimony lies within the sound discretion of the trial court. Its decision will not be overturned absent an abuse of discretion. One who asserts an abuse of discretion bears the burden of showing such abuse.’ [Citation omitted.]” State v. Brice, 276 Kan. 758, 775, 80 P.3d 1113 (2003). Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
We must first determine whether the evidence was relevant. “Because relevancy is a matter of logic and experience, the determination of relevancy is generally seen as inherently discretionary. [Citation omitted.]” State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006).
Zawistowski, a senior special investigator for the Federal Reserve Board, testified to tire hallmark characteristics of high-yield investment fraud schemes. He further testified that documents given to the victims in this case, James and Cynthia Hester, contained many of these hallmarks, which he specifically identified. Based on his review of documents given to the victims, Zawistowski opined that the financial investment program in which Bryant invested the Hesters’ funds was an illegitimate financial investment program.
We agree with the trial court that this information was relevant. A lay person generally does not have knowledge regarding the hallmarks of fraudulent investment schemes, and expert testimony regarding such schemes may be beneficial to a jury’s understanding of the facts in a securities fraud case. Morever, in this case, the information was “within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60-456(b).
Nevertheless, Bryant argues Zawistowsld’s testimony was not relevant to prove Bryant committed securities fraud. Essentially, Bryant appears to argue the testimony was mere propensity evidence rather than evidence that would assist the jury in determining whether Bryant committed securities fraud.
Bryant was charged with committing securities fraud pursuant to sections (2) and (3) of K.S.A. 1998 Supp. 17-1253(a). That statute provides in relevant part:
“It is unlawful for any person, in connection with tire offer, sale or purchase of any security, directly or indirectly, to ... .
(2) make any untrue statement of a material fact or to omit to state a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading; or
(3) engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.”
The jury also was instructed that the requisite act occurred in connection with the sale or purchase of a security.
In arguing it was error to admit Zawistowsla s testimony, Bryant largely relies upon State v. Clements, 244 Kan. 411, 415, 770 P.2d 447 (1989), wherein the district court considered whether expert testimony regarding the psychology of sex offenders was properly admitted in a prosecution for aggravated criminal sodomy. Clements held that evidence “which only describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question.” 244 Kan. at 420.
Clements does not bar the expert testimony at issue here. Zawistowsld’s testimony was not limited to a description of the traits of a typical offender in a securities fraud case, or even to the characteristics of a typical high-yield investment securities fraud scheme. Rather, Zawistowski testified regarding the specific hallmarks or characteristics of the program used by Bryant that rendered the program fraudulent.
The State suggests Zawistowsld’s testimony is more analogous to the expert testimony given in State v. McIntosh, 274 Kan. 939, 958-60, 58 P.3d 716 (2002). There, the State’s expert testified regarding common patterns of behavior detectable in sexually abused children and stated that he observed such behaviors during his interviews with the victim. However, the expert did not testify that he believed the victim was sexually abused.
Similarly, the district court properly admitted expert testimony here to show the specific fraudulent characteristics of the investment scheme utilized by Bryant and the manner in which such characteristics conformed to typical, high-yield, fraudulent investment schemes.
As the district court recognized, the jury was not required to find that the investment scheme was fraudulent in order to convict Bryant of securities fraud. Nevertheless, Zawistowski’s testimony regarding the existence of a fraudulent scheme was relevant to whether Bryant made any material misstatements or omissions, or engaged in an act, practice, or course of business that operated as a fraud upon the Hesters under K.S.A. 1998 Supp. 17-1253(a)(2) or (3).
The district court did not abuse its discretion in admitting the expert’s testimony.
Upward Departure
Based upon the jury’s finding of a fiduciary relationship, the district court granted a 6-month upward durational departure in addition to Bryant’s 18-month base sentence. Bryant appeals the departure.
Our review of a departure sentence is limited to determining whether the sentencing court’s finding of fact and reasons justifying a departure (1) are supported by evidence in the record, and (2) constitute substantial and compelling reasons for a departure. K.S.A. 21-4721(d). Whether the facts relied upon by the sentencing court provide substantial and compelling reasons for a departure is a question of law over which we exercise unlimited review. State v. Martin, 285 Kan. 735, 739, 26 P.3d 58 (2008). The sentencing court must “state on the record at the time of sentencing the substantial and compelling reasons for the departure.” K.S.A. 21-4716(a). The court’s comments at the time of the sentencing govern as to the reasons for departure. State v. Murphy, 270 Kan. 804, 806, 19 P.3d 80 (2001), rev’d on other grounds 285 Kan. 735, 175 P.3d 832 (2008).
Bryant argues the existence of a fiduciary relationship did not provide a substantial and compelling reason for departure because a fiduciary relationship is inherent in, and typical to, the commission of the offense of securities fraud.
The State initially asserts Bryant’s challenge to the departure was not properly preserved for appeal because Bryant failed to raise the issue in the district court. Generally, we will not consider for the first time on appeal an issue not presented to the district court. State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). However, we may consider a new issue if it involves only a question of law arising on proven facts and is finally determinative of the case. State v. Poulton, 286 Kan. 1, 5, 179 P.3d 1145 (2008). That exception applies here.
As discussed, the jury was instructed that in order to convict Bryant of securities fraud pursuant to K.S.A. 1998 Supp. 17-1253(a)(2) or (3), it must find that Bryant, in connection with the sale of a security, made an untrue statement of a material fact; or failed to state a material fact necessary to prevent the statements from being misleading; or that he engaged in any act, practice, or course of business which operated or would operate as a fraud or deceit upon any person.
The trial court defined “fiduciary relationship” as follows:
“In a fiduciary relationship, one person has placed special trust and confidence in the other. A fiduciary has the duty to act primarily for the benefit of the other person, who has placed his or her special confidence in the fiduciary. A fiduciary relationship implies a condition of superiority of one of the parties (the fiduciary) over the other. Generally, in a fiduciary relationship, the property, interest, or authority of the other person is placed in the charge of the fiduciary.”
A factor is substantial if it is something real and with substance and compelling if it forces the court “to leave the status quo or go beyond what is ordinary.” State v. McKay, 271 Kan. 725, 728, 26 P.2d 58 (2001); see State v. French, 26 Kan. App. 2d 24, 25-26, 977 P.2d 281 (1999).
In arguing the fiduciary relationship found by the juiy in this case was not substantial as it was not “beyond the ordinary” in securities fraud cases, Bryant relies upon State v. Cox, 258 Kan. 557, 908 P.2d 603 (1995). There, the court explained that in enacting the sentencing guidelines, the legislature intended that upward departures be imposed only when the defendant was “substantially” more culpable than the “typical offender.” An individual “somewhat” more or less culpable than a typical offender, however, should be sentenced at the top or bottom of the applicable guideline. 258 Kan. at 575.
The Cox court found that the sentencing court improperly relied upon the aggravated factor of an excessively brutal killing to enhance the defendant’s sentence for aggravated robbery and conspiracy to commit robbeiy. The court reasoned:
“We read K.S.A.1993 Supp. 21-4716(b)(2)(B) to require conduct of a defendant ‘in a manner not normally present in that offense,’ i. e., conduct going beyond what is minimally needed to satisfy the elements of the offense. Cox participated in the activities leading up to the killing, but the level of his participation did not go beyond what was needed to establish the elements for his convictions.” 258 Kan. at 579.
Similarly, in State v. Zuck, 21 Kan. App. 2d 597, 904 P.2d 1005 (1995), the court noted that departures are appropriate only “in extraordinary cases” in order to give effect to the purpose of the sentencing guidelines to ensure uniformity in sentencing. 21 Kan. App. 2d at 604. In Zuck, the court found the sentencing court’s upward departure was justified based on evidence the victim suffered emotional injuries in excess of that normally associated with the crime of attempted rape. Further, because evidence that defendant had molested the child victim over a period of years was not “covered” by the current charge for attempted rape, tire court found the departure was supported by substantial and compelling reasons. 21 Kan. App. 2d at 604-06.
In contrast, in State v. French, 26 Kan. App. 2d 24, 26-27, 977 P.2d 281 (1999), this court reversed an upward departure finding a pattern of exploitative conduct based exclusively upon the inherent facts of the multiple crimes of conviction not being a substantial and compelling reason for a sentencing departure under K.S.A. 21-4716. The French court distinguished Zuck:
“The substantial and compelling reason to support the departure in Zuck was based upon previous uncharged but similar conduct of tire 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.” 26 Kan. App. 2d at 26.
As in French, the existence of a fiduciary relationship in a securities fraud case is generally inherent to the crime and certainly was not an “extraordinary” situation, as required in Zuck. And applying the rationale of Cox, we hold Bryant’s fiduciary relationship with the victims in this case is a relationship typically present in a securities fraud case, and that relationship did not malee Bryant’s conduct substantially more culpable than that of a typical offender in such cases.
Nevertheless, the State contends that because a fiduciary relationship is not an element of the offense of securities fraud under K.S.A. 1998 Supp. 17-1253(a), it is theoretically possible to commit the crime without such a relationship. That it is theoretically possible to commit securities fraud absent a fiduciary relationship is not, however, determinative of whether such a relationship justifies an upward departure. Rather, when such a factor is normally or typically present in the commission of a securities fraud offense, as it is here, an upward departure is not justified.
The State also points to several factors that reportedly distinguish the fiduciary relationship between the defendant and the victims in this case from typical fiduciary relationships in securities fraud cases. However, none of these factors were relied upon by the district court in granting an upward departure in this case, nor were they proven to the jury beyond a reasonable doubt. Therefore we are precluded from considering these factors as justification for the district court’s departure here. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); K.S.A. 21-4716(a)-(b).
Because the fiduciary relationship found by the jury was inherent to the offense of securities fraud in this case, we conclude the district court improperly aggravated Bryant’s sentence based upon the existence of a fiduciary relationship. By our holding today, we do not suggest that the existence of a fiduciary relationship may never be an aggravating factor in a securities fraud case. We simply hold that under the facts of this case, the existence of a fiduciary relationship was not a substantial or compelling reason to grant an upward departure.
Based upon this finding, we need not consider Bryant’s additional argument that K.S.A. 21-4716(c)(2)(D) permits consideration only of a preexisting fiduciary relationship in determining the existence of aggravated factors.
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Greene, J.:
Genstler Eye Center and Clinic/Genstler Medical Care Facility appeals a final determination by the Board of Tax Appeals (BOTA) denying it an enterprise zone sales tax exemption under K.S.A. 79-3606(cc) on tangible personal property and services purchased in conjunction with the construction of a new facility for its business in Topeka. The appeal requires that we construe and apply the rather complex statutory enterprise zone tax exemption scheme to undisputed facts. Concluding that eligibility for the exemption has not been shown, we affirm BOTA and deny the exemption.
Factual and Procedural Background
On August 1, 2002, Genstler filed a Request for Project Exemption in connection with the original construction of a new $2.2 million facility in Topeka for its business, which was identified as: “Medical business, ophthalmology and optometry; there would also be included eye exams, screening, cataract surgery, laser surgery, etc.” The application designated the type of business as “commercial enterprise other than a manufacturing business or a retail business” but did not designate the facility as a “business headquarters.” The project was under contract dated May 7, 2002, with an expected completion date of July 31, 2003.
Later in August 2002, the Department of Revenue, Office of Policy & Research, issued a letter opinion denying the requested exemption due to the Department’s determination that the business was a retail business that was not expanding in a city with a population of 2,500 or less, or to a location outside a city in a county having a population of 10,000 or less. Genstler petitioned for administrative review of the decision, and after an informal conference procedure, the Secretary of Revenue issued a final determination that Genstler “is a ‘retailer’ as defined under the KEZA [Kansas Enterprise Zone Act] and not entitled to a sales tax exemption.”
Genstler then appealed to BOTA, which heard oral arguments after the parties filed a joint stipulation of facts. BOTA concluded that Genstler failed to demonstrate eligibility for the exemption based upon the same rationale cited by the Department. One member of BOTA dissented, however, concluding that Genstler’s facility qualified as a “business headquarters” that created at least 20 new full-time positions and, thus, was eligible for the exemption. Genstler timely appeals BOTA’s order.
Standards of Review
We review orders of BOTA pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. In re Tax Appeal of Sprint Communications Co., 278 Kan. 690, 694, 101 P.3d 1239 (2004). Where there has been no challenge to jurisdiction of the agency and the parties have stipulated to the material facts, we are authorized to grant relief if we determine that the agency has erroneously interpreted or applied the law (K.S.A. 77-621[c][4]), or otherwise acted in a manner that was unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(8).
Although we accord deference to BOTA in the construction of tax statutes within its expertise, the ultimate questions of statutoiy construction are legal issues over which we possess unlimited review. In re Tax Appeal of HCA Health Services, Inc., 30 Kan. App. 2d 910, 51 P.3d 1119 (2002). The party challenging BOTA’s interpretation of applicable law has the burden to prove error, but if BOTA’s construction or application of that law is erroneous, we must take corrective steps. In re Tax Appeal of Western Resources, Inc., 281 Kan. 572, 575, 132 P.3d 950 (2006).
In Kansas, taxation is the rule and exemption is the exception. The burden of establishing an exemption from taxation is on the party claiming eligibility. Statutory exemption provisions are strictly construed against tire party requesting exemption, and all doubts concerning exemption arelo be resolved against the exemption and in favor of taxation. In re Tax Exemption Application of Goddard, 39 Kan. App. 2d 325, 180 P.3d 604 (2008).
Overview of the Kansas Enterprise Zone Tax Exemption Scheme
Genstler seeks a sales tax exemption for tangible personal property and services purchased in connection with the construction of its new facility, claiming eligibility under K.S.A. 79-3606(cc), which provides a tax exemption for:
“all sales of tangible personal property or services purchased for the purpose of and in conjunction with constructing, reconstructing, enlarging or remodeling a business or retail business which meets the requirements established in K.S.A. 74-50,115 and amendments thereto, and the sale and installation of machinery and equipment purchased for installation at any such business or retail business. ... As used in this subsection, ‘business’ and ‘retail business’ have the meanings respectively ascribed thereto by K.S.A. 74-50,114 and amendments thereto.” K.S.A. 79-3606(cc).
K.S.A. 74-50,115 establishes the criteria for exemption for each of three types of businesses: manufacturing, nonmanufacturing, and retail. Depending on the type of business, the statute then establishes new employment and/or geographical criteria for exemption eligibility. For example, if the business is categorized as manufacturing, the business may be eligible for exemption if it has relocated to a new city or county within Kansas and has employed at least two additional full-time employees. K.S.A. 74-50,115(a)(1) and (2).
In order to determine how a given taxpayer should be categorized within the three types of businesses, K.S.A. 74-50,114 provides definitional guidance. Of interest here are the following definitional subsections of that statute:
“(g) ‘Nonmanufacturing business’ means any commercial enterprise other than a manufacturing business or a retail business. Nonmanufacturing business shall also include the business headquarters of an enterprise. . . regardless of the firm’s classification as a retail business if that facility for which the sales tax exemption certificate is issued facilitates the creation of at least 20 new full-time positions.
“(i) ‘Retail business’ means: (1) Any commercial enterprise primarily engaged in the sale at retail of goods or services taxable under the Kansas retailers’ sales tax act; (2) any service provider set forth in K.S.A. 17-2707, and amendments thereto; (3) any bank, savings and loan or other lending institution; (4) any commercial enterprise whose primary business activity includes the sale of insurance; and (5) any commercial enterprise deriving its revenues directly from noncommercial customers in exchange for personal services such as, but not limited to, barber shops, beauty shops, photographic studios and funeral services.” (Emphasis added.)
For purposes of applying subsection (i)(2), K.S.A. 17-2707 lists a host of professional service providers, including for our purposes here, optometrists, physicians, surgeons or doctors of medicine, and licensed physician assistants. K.S.A. 17-2707(b)(7), (9), and (24).
If a business is classified as nonmanufacturing in nature, K.S.A. 74-50,115(b)(1) makes that business eligible for the exemption if it provides documented evidence of five additional full-time employees. If a business is classified as retail in nature, K.S.A. 74-50,115(c)(1) and (2) make that business eligible for the exemption as follows:
“(1) A retail business shall provide documented evidence of job expansion involving the employment of at least two additional full-time employees; and
“(2) (A) such retail business locates or expands to a city having a population of 2,500 or less, as determined by the latest United States federal census, or (B) such retail business locates or expands prior to July 1, 2010, to a location outside a city in a county having a population of 10,000 or less, as determined by the latest United States federal census.”
Here, Genstler argues its new facility qualifies either as a non-manufacturing business employing at least five new persons, or as a retail business qualifying for nonmanufacturing treatment because its new facility is a business headquarters employing at least 20 new persons. For purposes of its second argument, K.S.A. 74-50,114(c) defines “business headquarters” as
“a facility where principal officers of the business are housed and from which direction, management or administrative support for transactions is provided for a business or division of a business or regional division of a business.”
We must examine the undisputed facts against this statutory framework and determine whether BOTA erred in categorizing Genstler as a retail business whose new facility was not a business headquarters of an enterprise creating at least 20 new full-time positions.
Should Genstler’s Business Be Classified as Nonmanufacturing in Nature and Eligible for Exemption Based on the Employment of at least Five New Employees?
Genstler initially argues that BOTA erred in classifying it as a retail business because (1) it provides services not specifically enumerated by K.S.A. 17-2707; and (2) the Department has inconsistently interpreted and applied the statutory scheme, exempting purchases of property and services of businesses nearly identical to Genstler’s. We reject both arguments.
Does Genstler Provide Services Not Enumerated by K.S.A. 17-2707?
To the extent a business provides professional services listed in K.S.A. 17-2707, it must be classified as a “retail business” pursuant to K.S.A. 74-50,115. Genstler argues that although K.S.A. 17-2707 lists optometrists, physicians, and physician assistants as those providing professional services, “Genstler is none of these service providers. Genstler is an eye surgery center.”
BOTA rejected this argument, relying in part on Genstler s own characterization of its business in die exemption application. As noted above, that application described Genstler s business activities as “medical business, ophthalmology and optometry; there would also be included eye exams, screening, cataract surgery, laser surgery, etc.”
We agree with BOTA that Genstler s own déscription of its services falls squarely within the categories of service providers listed in K.S.A. 17-2707. As we note above, K.S.A. 17-2707 lists a host of professional service providers, including for our purposes here, optometrists; physicians, surgeons or doctors of medicine; and licensed physician assistants. K.S.A. 17-2707(b)(7), (9), and (24).
The language of K.S.A. 74-50,114(i) and its incorporation of K.S.A. 17-2707 demonstrates an intent of the legislature to categorize a business by “service providers” rather than by the nature of services provided. We do not believe that a veterinarian could render his or her business eligible for exemption by denominating the business an “animal clinic” or “canine hospital,” nor do we believe an attorney could render his or her business eligible for exemption by denominating the business as an “accident clinic” or “legal service center.” Similarly, we reject Genstler’s attempt to focus on the comprehensive services that may be provided rather than the professional service providers to be employed therein. Additionally, and despite no such argument from the Department, we note that Genstler must be classified as a retail business by virtue of K.S.A. 74-50,114(i)(5) because it derives its revenues directly from noncommercial customers in exchange for personal services.
BOTA did not err in rejecting Genstler’s argument that its activities were somehow beyond the listing of professional service providers in K.S.A. 17-2707.
Does an Inconsistent Application of the Statutory Scheme by the Department Require Equal Treatment of Genstler?
In demonstrating inconsistent treatment of similar taxpayers, Genstler cites and relies solely on an opinion of an administrative law judge (ALJ) that determined that a “birthing center” constructed by HCA Medical Center in Wichita qualified for exemption because the business was nonmanufacturing rather than retail in nature. In re Appeal of HCA Health Services of Kansas, Inc., Docket No. 95-3221, Director of Taxation, February 27, 1997. Genstler argues:
“There are no meaningful factual differences between an eye surgeiy center and a hospital which the Department admittedly still exempts as a nonmanufacturing business under the HCA decision. Much of the equipment that is used is the same for both types of facilities. In its request for exemption, Genstler also notes that ‘Like all Hospitals and Ambulatory Surgeiy Centers we will have to go through the same process of certification for the State of Kansas and also the Medicare and Medicaid programs. We will have to pass all certification inspections that will be conducted by the Director of Medical Facilities and survey support.’ An eye surgeiy center should be treated the same as a hospital birthing center or other medical care facility to whom the Department continues to grant the sales tax exemption.”
BOTA rejected this argument because it concluded Genstler’s business is factually distinct from a hospital.
“The Board finds no evidence to indicate that the subject property is an establishment with an organized medical staff of physicians, permanent facilities that include inpatient beds, and medical services, including physician services, and continuous registered professional nursing services for not less than 24 hours of every day, to provide diagnosis and treatment for patients who have a variety of or specified medical conditions. Based thereon, the Board does not find that the Taxpayer satisfies the statutory requirements provided in K.S.A. 65-425(a) or (b) for either general or special hospital.”
Whether or not these factual differences should have legal consequences, we conclude that BOTA was not obligated to follow the decision of the ALJ in the HCA exemption matter. The doctrine of stare decisis is inapplicable to decisions of administrative tribunals in Kansas. There is simply no rule that an administrative agency cannot refuse to follow a ruling of its predecessor in a different case. See In re Appeal of K-Mart Corp., 238 Kan. 393, 396, 710 P.2d 1304 (1985). We note that a showing of widespread inconsistency in policy or regulatory/statutory application may, in some circumstances, establish arbitrary and capricious action by an agency. See, e.g., Hallmark Cards Inc. v. Kansas Dept. of Commerce & Housing, 32 Kan. App. 2d 715, 88 P.3d 250 (2004). We do not believe that one prior decision of an ALJ within the Department of Revenue (that was apparently not appealed) demonstrates that BOTA has been arbitrary in a later case when reaching a different conclusion. Moreover, as conceded by counsel in oral argument, the taxpayer here has stopped short of claiming and proving any equal protection violation.
We hold that BOTA did not err in refusing to follow the prior decision of an ALJ in a different case, and its refusal to do so does not render its decision in this case arbitrary or capricious. We agree with BOTA in classifying Genstler as a retail business for purposes of KEZA application.
Should Genstler’s New Facility be Categorized as a Business Headquarters for an Enterprise and Eligible for Exemption Based on the Creation of at Least 20 New Full-time Positions?
Alternatively, Genstler argues that even if it must be initially classified ás a retail business, its new facility was a business headquarters facilitating the creation of at least 20 new full-time posi dons, thus rendering it eligible for treatment as a nonmanufacturing business. BOTA characterized Genstler’s new facihty as “the Taxpayer’s sole facility and includes the Taxpayer’s total enterprise.” BOTA then rejected Genstler’s argument on this basis:
“The business headquarters exception, K.S.A. 74-50,114(g), allows the business headquarters of a retail business to be deemed a ‘nonmanufacturing business.’ To allow the retail expansion herein, where twenty-two (22) of the twenty-nine (29) new full-time positions created are performing functions statutorily defined as retail, to come under this exception would result in there being no meaningful distinction between a headquarters and a retail business. Every retail establishment expanding into a larger location that encompassed twenty (20) or more new full time positions and housing its principal officers could deem its entire retail facility as a business headquarters.
“The Board finds that to allow a retail business to utilize the business headquarters exception to K.S.A. 75-50,114(g) would be inconsistent with the clear intent of the legislature as expressed through the language of the statutory scheme it enacted.”
We begin with an examination of the statutory definition of business headquarters. As set forth above, the statute provides that a business headquarters is “a facility where principal officers of the business are housed and from which direction, management or administrative support for transactions is provided for a business or division of a business or regional division of a business.” K.S.A. 74-50,114(c). Applying this language to the undisputed facts, one could easily conclude that Genstler’s facility is a “business headquarters” because it houses the principal officers and provides from that facihty all essential managerial direction and support for a business. We conclude, however, that the issue is not quite this simple.
First, we note a peculiar distinction between the statutory definition and the criteria within K.S.A. 74-50,114(g). In order for a retailer to be considered a nonmanufacturing business, the facihty under construction or remodehng must be “the business headquarters of an enterprise.” (Emphasis added.) K.S.A. 74-50,114(g). What was intended by the addition of this phrase? The term “enterprise” is not defined by die statute. Obviously, we must conclude that the legislature intended here something beyond the mere business headquarters as defined; the addition of the phrase “of an enterprise” compels us to conclude that the headquarters must be a facility “from which direction, management or administrative support” is provided for “an enterprise” or some aspects of the business beyond that sole facility. We can divine no other reason for the addition of the phrase “of an enterprise” to the defined “business headquarters.” We cannot construe the statute in a manner that renders any aspect of the language to be meaningless. In re Tax Protest of United Ag Services, 37 Kan. App. 2d 902, 908, 159 P.3d 1050 (2007).
Second, we agree with BOTA in reasoning that the legislature could not have intended to so easily convert a retail establishment into a nonmanufacturing establishment. Genstler’s argument would result in classifying nearly any retail stand-alone business as a nonmanufacturing business so long as 20 new positions were created. Thus, the construction or remodeling of any mom-and-pop retail business would qualify for treatment as a nonmanufacturing business so long as new positions were created. We doubt this was the intent of the legislature. We must construe the statutory scheme in a reasonable manner, giving due consideration to the spirit and obvious intent of the legislature despite any defect or shortcoming in the language employed. The legislature is presumed to intend that a statute be given a reasonable construction so as to avoid unreasonable or absurd results. State v. Barnes, 275 Kan. 364, Syl. ¶ 2, 64 P.3d 405 (2003).
Finally, even if we concede that the questions presented are close, we are inclined to affirm BOTA because of a need to strictly construe exemption statutes and because of our general deference to BOTA in matters within its expertise. We conclude BOTA did not err in its interpretation and application of the applicable statutory framework in denying a sales tax exemption to Genstler under K.S.A. 79-3606(cc).
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Leben, J.:
Ticia Watkins committed six felonies related to the sale of cocaine: three counts of sale of cocaine and three counts of failure to have a drug-tax stamp. We know that she committed these offenses because she has been convicted and on appeal she does not suggest any inadequacy in the evidence used to convict her. Rather, the primaiy question she presents to us is whether it was proper to try her at all. She contends that the statute of limitations expired in this case before she was arrested — and her argument is valid unless the warrant was executed “without unreasonable delay.” Here, law-enforcement officers took several steps to execute the warrant, and they would have succeeded well within the limitation period had Watkins not lied about her identity when she was stopped for a traffic violation. We find no unreasonable delay in execution of the warrant here and no other reason to overturn her convictions.
At the time Watkins committed these offenses in February and March 2003, K.S.A. 2003 Supp. 21-3106(8) provided that prosecution for these crimes “must be commenced within two years after it is committed.” The statute of limitations “starts to run on the day after the offense is committed.” K.S.A. 2003 Supp. 21-3106(10).
Two rules that can stop the running of the statute of limitations are of significance here. First, the filing of a criminal complaint and the delivery of the warrant to law enforcement for arrest of the defendant “commences” prosecution, thus tolling the statute of hmitations, unless “the warrant ... is not executed without unreasonable delay.” K.S.A. 2003 Supp. 21-3106(11). If an unreasonable delay occurs in executing the warrant (i.e., arresting the defendant), then it “shall be included in computing the period within which a prosecution must be commenced.” State v. Washington, 12 Kan. App. 2d 634, 637, 752 P.2d 1084, rev. denied 243 Kan. 781 (1988). Second, the statute does not run for any period during which “the accused is concealed within the state so that process cannot be served” upon her. K.S.A. 2003 Supp. 21-3106(9)(b).
Prosecutors filed a complaint against Watkins on April 22, 2003; the complaint alleged criminal acts between Februaiy 25, 2003, and March 19, 2003. Watkins was not arrested on the warrant until May 6, 2005. Thus, her arrest came more than 2 years after the offenses were committed. So unless one of the two rules we’ve mentioned that stop the running of the statute of limitations applies, Watkins is right that the charges against her should have been dismissed.
The district court held a pretrial evidentiary hearing to consider Watkins’ motion to dismiss based on the statute of limitations. On review of a pretrial ruling made after an evidentiary hearing, we review the factual basis for the district court’s ruling under the substantial-evidence standard but review the interpretation of the applicable statutes de novo. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006); State v. Beard, 273 Kan. 789, 807, 46 P.3d 1185 (2002).
Officers initially delayed filing charges against Watkins for 2 to 3 months to protect a confidential informant who was still providing useful information in other investigations. After the charges were filed on April 22, 2003, officers next alerted detectives to be on the lookout for Watkins in the area of Douglass, Kansas, a small community in Butler County where Watkins had family. On February 23, 2004, police entered the warrant for Watkins into a national computer database available to law enforcement, the National Crime Information Center (NCIC). Entiy in the NCIC database usually facilitates the arrest of person on a warrant registered in the database when the person is stopped by police for a traffic violation. Only 6 days after the NCIC entry was made, Watkins was stopped in Wichita in a traffic stop. She was not arrested on the warrant, however, because she told officers that she was: Amber Allen, who is Watkins’ sister. Although Watkins’ passenger was arrested on an outstanding warrant, Watkins was not arrested on her outstanding warrant thanks to her successful deception about her identity.
Watkins — claiming to be Allen — had told the officer that she worked at the Butler County Detention Center; Allen does work there. The officer later contacted the detention center to report Allen’s behavior. Based on that call and later investigation, the officer learned that it had been Watkins, not Allen, whom he had stopped. A new charge was lodged against Watkins for felony obstruction.
In March 2004, Butler County officers sent a memo to officers' in neighboring Sedgwick County that asked for their assistance in locating and arresting Watkins on the warrant. A detective received information about Watkins living in various motels and had information suggesting her residence at a specific motel in summer or early fall 2004. In addition, that detective again alerted officers in the Douglass area in summer 2004 that Watkins might be present for her sister’s baby shower. Ultimately, though, these efforts did not result in Watkins’ arrest, and it was not until May 6, 2005, that she was arrested. There is at least some indication in the evidence that she may have been stopped and claimed to have been Amber Allen on other occasions; there were 45 inquiries in the national crime computer database either for Watkins or Allen between March 2003 and May 2005.
A puzzling aspect of Watkins’ interactions with law-enforcement personnel after the NCIC entry of the warrant was made is that Watkins was arrested by police in Wichita on July 5, 2004, and on May 5, 2005, but she was not held for the Butler County warrant on those dates. The district court did not make a specific finding explaining this, and the evidence does not clearly provide one.
The district court concluded that though it was “not willing to say that Butler County made the most energetic and thorough search and continual investigation in the case,” it could not “say that Butler County acted unreasonably under the circumstances.” The court distinguished this case from Washington, 12 Kan. App. 2d at 636-37, a case in which charges had been dismissed because of unreasonable delay in serving the arrest warrant, because Watkins had engaged in active deception of police when she had been stopped by Wichita police in February 2004. The district court also concluded that Watkins had given her sister’s name to other law-enforcement agencies. Based upon these findings, the district court denied Watkins’ motion to dismiss the case based on the statute of hmitations.
“The key to analyzing the reasonableness of the warrant execution is to look at what the State did, not what it did not do.” State v. Long, 276 Kan. 297, Syl. ¶ 3, 75 P.3d 1217 (2003). Each case must be determined on its own facts given all the circumstances. 276 Kan. 297, Syl. ¶ 4. Here, the actions taken by the State were substantial:
• alerting detectives in the Douglass area to watch for the defendant;
• entering the defendant’s name into the NCIC computer information system;
• stopping the defendant in a traffic stop after the arrest warrant had been entered in to the NCIC system;
• asking Sedgwick County law enforcement officers for assistance in locating the defendant;
• rechecking the NCIC system in November 2004 to see whether any useful new information regarding Watkins might appear there;
• obtaining information that the defendant might attend a baby shower in Douglass and alerting authorities there to watch for her; and
• obtaining information about the defendant’s residence in various area motels and attempting to locate her at some of them.
These actions were far more than were done in the cases in which the delay in executing the warrant has been held unreasonable. See Long, 276 Kan. 297 (State’s actions limited to registering warrant in NCIC database without verifying the defendant’s address, even after the sheriff was notified that the listed address was no longer valid); State v. Dozal, 31 Kan. App. 2d 344, 65 P.3d 217 (2003) (State’s actions limited to mailing a letter to the defendant with a request that he turn himself in, performing a general employment database check, and entering warrant in NCIC database); Washington, 12 Kan. App. 2d 634 (State’s actions limited to one computer search and four attempts to serve warrant at a single address, even though officer was told on first attempt defendant no longer lived there). And none of those cases involved active deception by a defendant as to her identity.
We agree with the district court in this case that the warrant was executed without unreasonable delay. The limited, initial delay in executing the warrant to allow further use of a confidential informant was reasonable. Later, judging the case on what the State did do, as tire Long opinion directs, the State took substantial and ongoing efforts to locate Watkins so that she could be arrested on the warrant. The State’s efforts were not perfect- — and the failure to arrest her on the Butler County warrant when she was separately arrested in Wichita in July 2004 is unexplained. But Watkins would have been arrested on the warrant in February 2004 had she not lied about her identity; a warrants check was done that evening, and her passenger was arrested on an outstanding warrant. We believe the efforts of law enforcement here were reasonable under the circumstances. The case against Watkins is thus deemed commenced as of the filing of the complaint; it is therefore not barred by the statute of limitations.
We have separately noted a second exception that tolls the statute of limitations for any period of time the defendant is concealed within the state. The ¿strict court found that the defendant had lied about her identity, thus concealing her presence, in February 2004. Police learned within 72 hours of that encounter that she had lied, but they still did not know where to find Watkins. The district court also found that Watkins had used her sister’s name on other encounters with law-enforcement officers but did not make a finding as to the number of days Watkins’ whereabouts were concealed. We agree with the implicit decision of the district court that such a finding was unnecessary because the district court separately had found that the warrant had been served without unreasonable delay. We note that even if there had been unreasonable delay in serving the warrant, the limitation period would have been tolled for some length of time based on concealment. Because the district court, not this one, makes the factual findings, we do not speculate as to what length of time the district court would have ascribed to concealment.
Watkins raises one additional issue in an attempt to set aside the district court’s denial of her motion to dismiss. She contends that key evidence regarding the February 2004 traffic stop in Wichita was hearsay and that its admission violated her right to confront the witnesses against her, citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Watkins made no objection to the admission of this evidence before the district court.Moreover, it was Watkins’ own attorney who began the inquiry about that stop to an officer who was not present for it.
On the record before us, then, Watkins is precluded from asserting this issue for the first time on appeal. A “timely and specific objection” to the admission of evidence is ordinarily required. See K.S.A. 60-404; State v. Torres, 280 Kan. 309, 319, 121 P.3d 429 (2005). And while constitutional grounds for reversal will sometimes be heard when they involve only a question of law arising on admitted facts or when necessary to prevent denial of fundamental rights, State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005), such claims are not heard when the testimony complained of was brought forward by the defendant’s attorney. State v. Wilson, 281 Kan. 277, 283-84, 130 P.3d 48 (2006); State v. Kesselring, 279 Kan. 671, 689, 112 P.3d 175 (2005). Cf. State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994) (holding that invited-error rule cannot be used as pretext for violating defendant’s constitutional rights without good cause or justification).
Even if we were to consider Watkins’ Confrontation Clause claim, however, it is contrary to existing Kansas law and the interpretation given by most other courts to the Crawford decision. In a pre-Crawford case, the Kansas Supreme Court held that the confrontation right is a trial right that does not apply at a preliminary hearing. State v. Sherry, 233 Kan. 920, 929, 667 P.2d 367 (1983). We are bound to follow Kansas Supreme Court precedents absent some indication that court has moved away from the prior decision. State v. Schow, 37 Kan. App. 2d 941, 948, 161 P.3d 222 (2007). Sherry has been followed within the past decade, State v. Crow, 266 Kan. 690, 702-03, 974 P.2d 100 (1999) (finding statute allowing lab reports to be admitted without testimony at preliminary hearing did not violate Confrontation Clause, citing Sherry), and we find no Kansas Supreme Court ruling suggesting a departure from Sherry. Further, the majority of courts addressing this issue following Crawford have concluded that confrontation rights are not implicated at pretrial evidentiary hearings. See, e.g., People v. Felder, 129 P.3d 1072 (Colo. App. 2005); Gresham v. Edwards, 281 Ga. 881, 883-84, 644 S.E.2d 122 (2007); People v. Brink, 31 App. Div. 3d 1139, 1140, 818 N.Y.S.2d 374 (2006); State v. Woinarowicz, 720 N.W.2d 635 (N.D. 2006); Vanmeter v. State, 165 S.W.3d 68 (Tex. App. 2005); Washburn v. United States, 2006 WL 3715393 (N.D. Ill. December 14, 2006) (unpublished opinion); United States v. Waldron, 2007 WL 2080520 (D.S.D. July 17, 2007) (unpublished opinion); Akins v. Stowitsky, 2006 WL 3717394 (W.D. Pa. December 14, 2006) (unpublished opinion); Com v. Colon, 2006 WL 300609 (Mass. App. February 8, 2006) (unpublished opinion). But see Curry v. State, 228 S.W.3d 292 (Tex. App. 2007) (holding Crawford right applicable to pretrial suppression hearing but finding no violation on facts of case). We also note that Crawford did not purport to overrule prior United States Supreme Court holdings that had emphasized the right to confrontation as a trial right. See Pennsylvania v. Ritchie, 480 U.S. 39, 52-53, 94 L. Ed. 2d 40, 107 S. Ct. 989 (1987); California v. Green, 399 U.S. 149, 157-58, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970).
We conclude that Sherry remains good law in Kansas: the Confrontation Clause rights discussed in the Crawford case do not apply at pretrial hearings. Watkins’ claim of error in the admission of hearsay testimony regarding the Wichita traffic stop fails.
Watkins raises one final issue unrelated to the pretrial hearing. She challenges the use of her prior criminal history in determining her sentence without having a jury determine the fact of those convictions. Watkins did not object when the trial court used her prior criminal histoiy in determining her sentence, but she once again seeks to raise a new issue on appeal. On this issue, however, she concedes that her argument is barred by existing Kansas Supreme Court precedent in State v. Ivory, 273 Kan. 44, 47-48, 41 P.3d 781 (2002). We see no indication that the Kansas Supreme Court intends to depart from that holding. Watkins’ claim of error in considering her prior criminal history when she was sentenced also fails.
The judgment of the district court is affirmed. | [
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Green, J.:
Hurst Enterprises, LLC, d/b/a Mr. Payroll Check Cashing, (Hurst) appeals from the trial court’s judgment applying tire formula under K.S.A. 84-3-302(d) to limit Hurst’s recovery as a holder in due course against Bryan Crawford and Cactus Roofing, LLC (Cactus). Hurst argues that the trial court erred in applying a setoff under K.S.A. 84-3-302(d). We agree. K.S.A. 84-3-302(d) does not authorize a trial court to reduce the award to a holder in due course when the holder in due course has paid the full consideration for a check to the payee. As a result, we reverse and remand to the trial court with instructions to enter a judgment against Crawford and Cactus and in favor of Hurst for $4,768.47.
On September 24, 2005, Cactus issued a check to “Espino Roofing and/or Tomas Hernandez” for $4,768.47 for roofing work that Hernandez and his roofing crew had performed for Cactus. That morning, Hernandez cashed the check at Mr. Payroll in Liberal. Hernandez had previously cashed three other checks from Cactus at Mr. Payroll. All three of the checks had cleared the bank without any problems .Mr. Payroll paid Hernandez the amount of the check less a 1 percent check cashing fee of $47.68. Mr. Payroll deposited the check into its account at Bank of the Panhandle in Guymon, Oklahoma.
Approximately 1 day after issuing the check to Hernandez, Biyan Crawford, the operator of Cactus, received a call that there were moisture leaks on the project on which Hernandez had worked. Crawford discovered that the work performed by Hernandez and his roofing crew had not been adequately completed. After unsuccessfully trying to contact Hernandez, Crawford placed a stop payment on the check he had written to Hernandez. Cactus had to spend approximately $4,500 repairing the work done by Hernandez and his roofing crew.
Mr. Payroll later received the check back from its bank with notification that a stop payment had been issued. Anica Slater, the manager of Mr. Payroll, called Cactus’ bank and discovered that the stop payment had been issued 3 days after Hernandez had cashed the check at Mr. Payroll.
In April 2006, Hurst sued the appellees for $4,768.47 plus interest. Hurst alleged that it was entitled to payment because it was a holder in due course of the check it had received from Hernandez. The trial court determined that Hurst had met the statutory and factual requirements to be a holder in due course under K.S.A. 84-3-302. Nevertheless, the trial court determined that the appellees were entitled to a set-off under K.S.A. 84-3-302(d) because of the partial performance by Hernandez and his roofing crew. Based on Crawford’s testimony that he had spent $4,500 to repair the roofing work, the trial court found that the value of the partial performance by Hernandez and his roofing crew was $268.47. Using the set-off formula under K.S.A. 84-3-302(d), the trial court determined that Hurst was entitled to recover the amount of $267.03 plus court costs.
On appeal, Hurst argues that the trial court erred in applying a setoff under K.S.A. 84-3-302(d). Importantly, Cactus has not appealed the trial court’s ruling that Hurst was a holder in due course. “Before an appellee may present adverse rulings to the appellate court it must file a cross-appeal. If the appellee does not, the rulings are not properly before the appellate court and may not be considered.” Cooke v. Gillespie, 285 Kan. 748, Syl. ¶ 2, 176 P.3d 144 (2008). Moreover, neither party has challenged the trial court’s determination that Hurst was a holder in due course. Cactus has not even filed an appellate brief in this case. As a result, the trial court’s ruling that Hurst was a holder in due course is not subject to appellate review.
Moreover, the record in this case supports the trial court’s determination that Hurst was a holder in due course. To be a holder in due course under K.S.A. 84-3-302(a), a holder must take the instrument according to the following conditions:
“(1) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
“(2) the holder took the instrument (A) for value, (B) in good faith, (C) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (D) without notice that the instrument contains an unauthorized signature or has been altered, (E) without notice of any claim to the instrument described in K.S.A. 84-3-306, and (F) without notice that any party has a defense or claim in recoupment described in K.S.A. 84-3-305(a).”
The record in this case establishes that Hurst took the check for value; in good faith; and without any notice that it was overdue, had been dishonored, or that there was an uncured default or that there were any other defenses. Hurst paid Hernandez $4,720.69 for the check, which represented $4,768.47 less the 1 percent check cashing fee of $47.68. When Hurst gave Hernandez value for the check, there was nothing to indicate that the check would be dishonored. In fact, Hurst had previously cashed three other checks issued by Cactus to Hernandez. All three of those checks had cleared the bank without any problems. When Hurst gave Hernandez value for the check at issue in this case, Cactus had not yet placed a stop payment order on the check. Hurst had no knowledge that Hernandez had failed to adequately perform the services for which the check was written. Based on the evidence presented at trial, there was substantial competent evidence to support the trial court’s determination that Hurst was a holder in due course under K.S.A. 84-3-302.
The question remaining in this case is whether K.S.A. 84-3-302(d) authorized the trial court to reduce the award to Hurst (the holder in due course) when Hurst had paid the full consideration to Hernandez (the payee). This issue requires interpretation of K.S.A. 84-3-302(d). Interpretation of a statute presents a question of law over which an appellate court’s review is unlimited. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When a statute is plain and unambiguous, a court does not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
K.S.A. 84-3-302(d) states:
“If, under K.S.A. 84-3-303(a)(1), the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.”
Under its plain language, K.S.A. 84-3-302(d) applies to those situations where the consideration for an instrument has been partially performed. There appear to be no Kansas cases that involve the application of K.S.A. 84-3-302(d). Moreover, Hurst has not cited any cases from other jurisdictions that have applied K.S.A. 84-3-302(d). The Official UCC Comment, however, provide an illustration as to the type of situation to which subsection (d) applies:
“Case #5. Payee negotiates a $1,000 note to Holder who agrees to pay $900 for it. After paying $500, Holder learns that Payee defrauded Maker in the transaction giving rise to the note. Under subsection (d) Holder may assert rights as a holder in due course to the extent of $555.55 ($500 / $900 = .555 x $1,000 = $555.55). This formula rewards Holder with a ratable portion of the bargained for profit.”
The Official UCC Comment clarifies that subsection (d) of K.S.A. 84-3-302 is applicable when there has been a partial performance of consideration for the instrument by the holder in due course. Such is not the case here. Hurst had completed its performance of consideration for the check when it gave Hernandez $4,720.69. There was no partial performance of consideration for the check by Hurst.
In determining that K.S.A. 84-3-302(d) applied to this case, the trial court incorrectly focused on Hernandez’ partial performance (his defective work) of his job with Cactus. K.S.A. 84-3-302(d) does not cover partial performance by the payee. The Kansas Comment, 1996 to K.S.A. 84-3-302(d) makes clear that this subsection is limited to those situations where the holder in due course has partially paid the agreed upon consideration for the instrument:
“Subsection (d) clarifies the calculation of recovery where the claimant is a partial holder in due course because not all of the agreed upon consideration has been paid, and the defendant only has a defense. The holder can assert holder in due course status only to the extent of die actual performance of consideration, over the value of the agreed consideration times tire face value of the instrument. Thus if die holder has paid $30 of an agreed consideration of $90 for an instrument with a face value of $100, the holder is a holder in due course to the extent of $33 (30/90 x $100). To preserve the obligor’s defense, while still protecting the holder in due course, the holder’s collection should be allocated against the portion of payment to which diere is no defense. Thus, if the obligor had a defense to $80 of the payment above, the defense would protect payment only of $66, and the partial holder in due course would recover $33.”
Here, because Hurst paid Hernandez the entire amount of the agreed upon consideration for the check, K.S.A. 84-3-302(d) does not apply. The issue of the quality of the work that Hernandez performed for Cactus does not affect Hurst’s rights as a holder in due course. When Hurst discovered that Cactus had placed a stop payment order on the check, it had already paid Hernandez the full consideration for the check. As a result, Hurst was a holder for value in the full amount of the check. Because Hurst had paid all of the agreed upon consideration to Hernandez, it was entitled to recover the full amount of the check ($4,768.47) from Cactus. Accordingly, we reverse the trial court’s judgment and remand the case to the trial court with instructions to enter a judgment against Crawford and Cactus and in favor of Hurst for $4,768.47.
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McAnany, J.:
On April 12, 2005, Phillip L. Anderson and his girlfriend, Donna, met with Amber Fellows, a support worker for Family Preservation Services, to discuss Donna’s children. Anderson and Donna had traveled to the meeting in Anderson’s truck. Since Anderson’s driver’s license was suspended at the time, Levi McCuistion, a friend of Anderson, drove the truck and remained behind while Anderson and Donna attended the meeting. When Fellows stated at the meeting that the Kansas Department of Social and Rehabilitation Services (SRS) had taken emergency custody of Donna’s children, Anderson began to yell and curse. He threatened to bomb SRS, to kill an SRS employee, and to loll the person who was caring for the children. Anderson and Donna left, carrying a camouflage jacket. Fellows called the police.
The police located and stopped Anderson’s truck. McCuistion was asked to get out of the truck, but he was not searched. When questioned about the events earlier that day, Anderson denied he had made any threats. Nevertheless, the police arrested him and placed him in a patrol car. Sergeant Voekler then searched Anderson’s truck and found the camouflage jacket and drugs and paraphernalia in one of its pockets. Donna said the jacket was hers. However, when Anderson saw Sergeant Voelker with the jacket, he shouted from the patrol car that the jacket was his. He later testified he claimed the coat was his because, “I didn’t want Donna to go to jail. I wanted to keep her out so she could go get the kids because I knew that’s all that matters to her.” The police arrested both Donna and Anderson.
The State charged Anderson with criminal threat, possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia.
Anderson was taken to court in shackles for his jury trial. After voir dire, the following exchange took place in chambers between counsel for Anderson and the court:
“[Counsel]: Your Honor, there is one thing. My client —I don’t know the reason why —[he] is in manacles around his ankles. I prefer that that not be the case.
“THE COURT: I understood. And you told me that in the recess. And my longstanding policy has been that the guys that would have to do the work — potentially have to do the work are going to make the call. So Randy said he would prefer to have them on. So for that reason tire motion is denied.
“[Counsel]: Okay. I understand that. Is there a reason —is he a flight risk? Did he give a reason or did he just say I prefer to have them on?
“THE COURT: The latter.
“[Counsel]: He just wants them on?
“THE COURT: That’s what he said.”
Anderson remained shackled for the duration of the trial.
Ownership of the camouflage jacket containing the drugs and paraphernalia was disputed. Sheriff Larry Bergstrom testified that on March 25, 2005, about 3 weeks before this incident, he had seen Anderson in a camouflage jacket similar to the jacket found in Anderson’s truck when he was arrested.
Kama Naumann testified that she had been living with Anderson prior to April 6, 2005. Before she left, Naumann discovered that her college ID was missing. The ID was later found in the pocket of the jacket taken from Anderson’s truck. She recalled Anderson wearing a camouflage jacket, but it was brighter and newer than the one apparently found in Anderson’s truck.
Holly Brown, a coordinator for Big Brothers Big Sisters of Cloud County, testified that on the day of the incident Anderson and Donna came into the office and one of them, she did not remember which, was wearing a camouflage-type militaiy jacket. Anderson was carrying the jacket when they left.
Donna testified that the camouflage jacket belonged to McCuistion and she had seen him wearing the jacket on the day of Anderson’s arrest. Casey Zach, a friend of Anderson’s, testified that he had seen McCuistion wearing the jacket that day and never saw Anderson wear it. Another friend of Anderson’s, Teresa Cada, also testified that she had seen McCuistion wearing the jacket.
Anderson testified that the camouflage jacket and the drugs were not his. He claimed he admitted to the police at the scene of his arrest that the jacket was his solely to prevent Donna from being arrested. He testified that the jacket belonged to McCuistion. On cross-examination, Anderson was asked about whether he had coordinated his testimony about the jacket with Zach. In, doing so, the State referred to Zach and Anderson having been cell mates. The district court overruled Anderson’s objections to this reference to Anderson having been in jail and denied Anderson’s request for a mistrial.
The jury found Anderson guilty on all four counts. The district court denied Anderson’s motion for new trial or judgment of acquittal and sentenced him to a term of probation with an underlying prison sentence. This appeal followed.
Anderson first challenges the district court’s order that he be shackled throughout the trial. Kansas courts have long held that a defendant in a criminal case should not be tried while in handcuffs or shackles except in exceptional circumstances. The exceptional circumstances justifying their use must be clear from the record. If it is not apparent from the proceedings themselves, such as a disruption of the trial or other obvious reasons, the district court should conduct a hearing and state its reasons for ordering the use of restraints. Shacldes should be allowed during trial only when it is apparent that no other means will be effective. See Holbrook v. Flynn, 475 U.S. 560, 570-71, 89 L. Ed. 2d 525, 106 S. Ct. 1340 (1986); State v. Williams, 228 Kan. 723, 730-31, 621 P.2d 423 (1980).
On review, we examine the district court’s order that the defendant be shackled during the trial using the abuse of discretion standard. State v. Powell, 274 Kan. 618, 626-27, 56 P.3d 189 (2002); Williams, 228 Kan. at 731.
Powell is instructive in considering this claim. There, tire sheriff testified as to his reasons for wanting the defendant to wear a stun belt. Powell was a prior offender charged with capital murder. While incarcerated, Powell made a homemade weapon and stabbed an inmate five times. On another occasion prison guards found a toothbrush sharpened to a point and hidden in Powell’s shampoo bottle. Powell had been placed in segregation numerous times. Powell had been removed from the courtroom for disruptive conduct in a previous case. He was a threat to the safety of the public and to the court. Further, the use of the stun belt was not obvious to jurors. They would be aware of its presence only if specifically brought to their attention. The stun belt was neither activated during Powell’s trial nor was it pointed out to the jury.
In finding no abuse of discretion, the Powell court listed the factors to be considered when determining whether a defendant was properly restrained during trial:
“the background of the defendant; the nature of the charges; evidence of dangerous incidents; testimony about the restraints sought to be used; prior conduct of the defendant; the objection to use of the restraint and/or the election by the defendant whether to testify; the physical facts of the individuals and the courtroom; the presence or absence of victims, family, or spectators; and other factors that will vary from case to case must be considered by the trial court.” 274 Kan. at 637.
Here, it is impossible to review this case using the abuse of discretion standard since the district court failed to exercise its discretion. It simply deferred to the wishes of the jailer. The nature of judicial discretion was discussed in State v. Foren, 78 Kan. 654, 658-59, 97 P. 791 (1908):
“Discretion is the freedom to act according to one’s judgment; and judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence — to act upon fair judicial consideration, and not arbitrarily.”
As stated in Shopiro v. Shopiro, 153 P.2d 62, 66 (Ca. App. 1944), “Legal discretion . . . means nothing more than the application of statutes and principles to all the facts of the case.” See Saucedo v. Winger, 252 Kan. 718, 730, 850 P.2d 908 (1993).
Rather than exercising judicial discretion in considering Anderson’s request that the shackles be removed, the district court deferred to the jailer and let him decide. The jailer’s decision became the court’s decision, without analysis or application of the principles of law to the facts presented. As such, the district court clearly abused its discretion.
The State acknowledges that the shackles were apparent to the jurors deciding Anderson’s innocence or guilt. Anderson was charged with criminal threat, that is, that he threatened violence with the intent to terrorize others. The presence of shackles clearly sent the message to the jury that here is a violent and dangerous man. The discretion to shackle Anderson throughout the trial was exercised without any proper analysis to support it. Under these circumstances, the use of shackles was inherently prejudicial. As stated in Deck v. Missouri, 544 U.S. 622, 635, 161 L. Ed. 2d 953, 125 S. Ct. 2007 (2005):
“Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to tire verdict obtained.’ [Citation omitted].”
The State argues that we should not reverse because the error was harmless. Reversal is required here unless we are willing to declare that the error was harmless beyond a reasonable doubt; that is, unless we can conclude beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. See Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967); State v. Davidson, 264 Kan. 44, 51, 954 P.2d 702 (1998).
The State argues that there was overwhelming evidence that Anderson spoke the threatening words at the meeting. Anderson testified in his own defense. He did not deny making the threats. He testified on direct examination that he was upset at the meeting. When asked about any statements he made to Amber Fellows, the Family Preservation Services worker, he answered, “I spouted off a lot and I shot my mouth off. I was upset. My girlfriend was crying, and they had taken her lads.” On cross-examination he was not asked about the threats.
The court instructed the jury that to find criminal threat it had to find that Anderson threatened to commit violence with the in tent to terrorize others; that is, with the intent to reduce those to whom the statements were made to extreme fear or fear that agitates body and mind.
In closing argument, the State argued, “[W]as he kidding when he said that? . . . He was not kidding when he said that. He was angry. He meant it. And that’s the focus you should have.”
Anderson’s counsel acknowledged in closing argument that Anderson had been “ranting and raving” at the meeting. He argued, however, that the crime of criminal threat had not occurred because Anderson was, essentially, blowing off steam and no one took him seriously. Counsel argued, “[W]ith the experience that these individuals had one would suspect that they knew enough that people say things they don’t mean.” He pointed out, “Intent, the burden never shifts to the defendant regarding that issue.” He concluded his argument:
“My client doesn’t deny making a lot of statements. And shooting his mouth off was his words. You’ll have to decide whether or not under all the facts and circumstances of the case whether or not that truly was a criminal threat. And I’d ask you to find him not guilty on that count.”
The jury had to determine whether Anderson was merely blowing off steam as his counsel argued or whether his conduct satisfied all the elements of the crime of criminal threat. In deliberating on these issues, the jury had before it the fact that Anderson had been in shackles throughout the trial, an indication that he was a violent person who could act in a violent manner even in the controlled environment of a formal court proceeding if not restrained.
Under these circumstances, and given the nature of this criminal threat charge, we cannot say beyond a reasonable doubt that the presence of the shackles had little, if any, likelihood of changing the result of the trial. Accordingly, we must reverse Anderson’s conviction for criminal threat.
Anderson was also convicted of possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. The State argues that the evidence was so overwhelming with respect to these charges that the error in shackling Anderson without any legal or factual analysis was harmless.
The issue of possession of the drugs and the drug paraphernalia turned on possession of the camouflage jacket found in Anderson’s truck. The evidence on that point was strong but not compelling. There was substantial evidence on both sides of the issue. Pursuant to Deck and Chapman, the State had the burden to prove beyond a reasonable doubt that the court’s error in ordering Anderson to be shackled did not contribute to the verdict. The evidence of possession of the jacket was not so overwhelming for us to make so firm a conclusion. Accordingly, we are required to reverse Anderson’s convictions on these drug and paraphernalia charges as well.
The resolution of this first issue renders Anderson’s remaining claims moot.
Reversed. | [
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Leben, J.:
David Willdnson pled guilty to a second charge of possession of cocaine based on a plea agreement in which the State agreed to recommend that his sentences for the two convictions be concurrent. The concurrent sentences were a significant incentive for the plea because concurrent sentences all share the same clock; the defendant serves only the longest sentence as less serious ones tick away alongside it. Consecutive sentences run separately and result in longer time in prison. But before Wilkinson could have been granted concurrent sentences, he had to clear a very high hurdle — and Wilkinson now claims that his attorney did not tell him about either the hurdle or its height.
As it turned out, the district court could not consider giving Wilkinson concurrent sentences on a level playing field because the second offense had been committed while he was on felony bond for the first offense. Kansas law provides for consecutive sentences in such cases unless that “would result in a manifest injustice.” See K.S.A. 21-4608(d) and 21-4720(a). The manifest-injustice standard presents quite a high hurdle: a sentence results in manifest injustice only when it “is obviously unfair and shocks the conscience of the court.” State v. Medina, 256 Kan. 695, Syl. ¶ 1, 887 P.2d 105 (1994). A defense attorney who fails to tell the defendant about that standard provides ineffective assistance of counsel because a defendant’s knowledge that the playing field is sharply tilted against him is important. But the district court dismissed Wilkinson’s motion under K.S.A. 60-1507 to set aside his plea, and we reverse and send the case back for an evidentiaiy hearing on whether Wilkinson’s attorney failed to tell him about the manifest-injustice standard. If so, Wilkinson may well be entitled to withdraw his plea.
I. Under a Plea Agreement, the State Recommended Concurrent Sentences, But the Court Found No “Manifest Injustice” and Gave Wilkinson Consecutive Sentences.
Before Wilkinson pled guilty to his first charge for possession of cocaine, he was arrested on a second charge of cocaine possession. But the criminal case on the second arrest wasn’t filed until shortly before he was sentenced on the first offense. In the first case, Wilkinson was given probation so he could enter a drug-treatment program, but he tested positive for cocaine use before treatment began. Authorities then picked Wilkinson up on a probation-violation charge for failing a drug test. At the same time, the second charge for possession proceeded to a plea.
Wilkinson admitted violating his probation in the first case and pled guilty to possession of cocaine in the second. As part of the plea agreement, the State agreed to recommend that the sentences run concurrently. The district court had given Wilkinson an un derlying 28-month sentence to his probation and because Wilkinson violated probation, the court ordered Wilkinson to serve drat sentence. The district court gave Wilkinson another 28-month sentence for the second charge. The court ordered that sentence consecutive — so Wilkinson must serve a total of 56 months. If the sentences had been concurrent, he would only have served 28 months.
The district judge concluded that he was required to make the sentences consecutive because to do otherwise, “I would have to make a finding of a manifest injustice. And frankly, I can t find that in this case.” The judge noted that “[m]anifest injustice is a fairly high standard” and that the defendant had continued to use cocaine: “[A]nytime you give him an inch, he takes a mile and goes right back to those drugs again.” Although Wilkinson argued that he had never received drug treatment, the record certainly supports the district court’s comments. Wilkinson had used cocaine while his first case was pending and used cocaine again shortly after he was placed on probation in that case.
II. Wilkinson's Plea May Be Set Aside for Ineffective Assistance of Counsel.
A plea may be set aside for ineffective assistance of counsel if the defendant proves that (1) the attorney’s performance fell below a standard of reasonableness and (2) a reasonable probability exists that, but for the attorney’s errors, the defendant would not have pled guilty and would have insisted on going to trial. State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007).
Wilkinson’s motion was initially filed without an attorney’s assistance and raised several issues that have not been pursued in this appeal. The motion didn’t directly ask to withdraw his plea, but Wilkinson did say that his plea was invalid, improper, or not voluntary. Wilkinson also argued that the plea process would have been significantly different had he been told that a showing of manifest injustice was required to get his sentences to run concurrently. Because pro se motions under K.S.A. 60-1507 are liberally construed, Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004), Wilkinson’s motion should be construed as one to withdraw his plea based on ineffective assistance of counsel for failing to tell him of the manifest-injustice requirement for concurrent sentences.
III. Wilkinson Is Entitled to an Evidentiary Hearing on His Claim of Ineffective Assistance of Counsel.
The district court denied Wilkinson’s motion without giving a rationale for rejecting his argument of ineffective assistance of counsel. Wilkinson had separately challenged the consecutive sentences, a challenge the district court properly rejected. The district court wrongly concluded that if the consecutive sentences were legally proper, there could be no viable claim that Wilkinson’s lawyer had been ineffective. The district court considered the claim of ineffective assistance to be “premised entirely upon his assertion [that] the district court erred at sentencing.” That’s not true. Wilkinson argued that his lawyer was ineffective for fading to tell him that he had to meet the manifest-injustice standard to get concurrent sentences. The key elements to Wilkinson’s argument all took place before a plea was entered: whether the lawyer failed to tell him about the standard and whether Wilkinson would have rejected the plea deal and insisted on going to trial had he known about it. Neither element is dependent upon whether “the district court erred at sentencing.”
So we must answer the question the district court did not: Is a defense attorney’s performance below acceptable standards if the attorney doesn’t tell a defendant in Wilkinson’s situation that the district court must find manifest injustice to give concurrent sentences? We think so.
Without knowing about the manifest-injustice standard, Wilkinson could not reasonably judge the value of the State’s sentencing recommendation, which was made in exchange for his plea. Guilty pleas must be made on a voluntary and informed basis. To be made on an informed basis, the defendant must have a reasonable understanding of the relevant circumstances and likely consequences of the plea. State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). Wilkinson couldn’t reasonably understand the circum stances of his plea — specifically the value of the State’s quid pro quo — if he was not told about the manifest-injustice standard.
In an ordinary case, a district judge has discretion to make sentences either concurrent or consecutive. The district court is not even required to give reasons for this decision — and the decision to make sentences consecutive is not generally subject to appeal. See K.S.A. 21-4720(b); State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000); State v. Hawkins, 40 Kan. App. 2d 10, 21, 188 P.3d 965, 973 (2008) (Leben, J., dissenting in part). Thus, in the ordinary case, the district judge’s decision is made on .a level playing field. And even if the decision were subject to appeal, the district court’s decision would be upheld so long as any reasonable person might agree with it because it’s a matter of discretion.
But in Wilkinson’s case, a concurrent sentence could be given only if consecutive sentences would shock the conscience of the court, and that’s more than a tilted playing field — the test is nearly insurmountable. Yet Wilkinson had every reason to believe that the odds were spread out evenly, not rising to the peak of a mountain. Wilkinson pled guilty in exchange for the State’s recommendation of a concurrent sentence, but the manifest-injustice standard substantially undercut the value of that bargain. Wilkinson could not make an informed decision about that plea bargain without knowledge of this standard.
The State argues that Wilkinson was told that the district court could give him a consecutive sentence. While that’s true, Wilkinson’s decision was still not an informed one when he didn’t know the substantial obstacle he’d have to overcome.
The State also argues that the district court’s need to find manifest injustice “was a collateral consequence” of the plea and that it wasn’t necessary to inform Wilkinson of any collateral consequence of his plea. The State is correct that a failure to inform a defendant of the collateral consequences of a plea, like the loss of driving privileges, may not be grounds to set aside a plea. See City of Ottawa v. Lester, 16 Kan. App. 2d 244, Syl. ¶¶ 2-3, 822 P.2d 72 (1991). But we aren’t dealing with collateral consequences in Wilkinson’s case; we are dealing with Wilkinsoris knowledge of the manifest-injustice standard as the key to his informed appraisal of one of only two significant promises that the State made in the plea agreement.
In Wilkinson’s plea agreement, the State promised to recommend the lower of three potential sentences in the grid box, and the State promised to recommend that the sentence be concurrent to his sentence for his first possession of cocaine. Under the first promise, the State agreed to recommend that Wilkinson receive a 28-month sentence rather than one of either 30 or 32 months. Under the second promise, the State agreed to recommend that Wilkinson serve a controlling sentence of 28 months (two concurrent 28-month sentences) rather than 56 months (two consecutive 28-month sentences). The State’s second promise is by far the most important of the two — unless the playing field was so tilted that it was unlikely to have any real impact. Wilkinson needed to know the applicable legal standard so he could intelligently evaluate this plea agreement.
The district court denied Wilkinson’s motion without an evidentiary hearing. Wilkinson claimed in the motion that his attorney didn’t tell him about the manifest-injustice standard. When the motion alleges facts that are not contained in the record and those facts, if true, would entitle the movant to relief, the motion cannot be denied without an evidentiary hearing. State v. Holmes, 278 Kan. 603, 629, 102 P.3d 406 (2004). Since no evidentiary hearing was held, we have unlimited review of the district court’s decision. Wilkins v. State, 286 Kan. 971, 980, 190 P.3d 957, 967 (2008).
Because Wilkinson may be entitled to have his plea set aside if the allegations made in his motion are true, we must reverse the judgment of the district court and remand this case for an evidentiary hearing on Wilkinson’s motion. If Wilkinson’s attorney did not tell him about the manifest-injustice standard, then the attorney’s performance fell below the standard of reasonableness. And unless Wilkinson otherwise had knowledge of that standard, he would be entitled to relief if die district court concludes from the evidence that Wilkinson would not have pled guilty and would have insisted on going to trial but for his attorney’s error.
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Hill, J.:
This lawsuit pitted attorney Daniel K. Diederich, plaintiff, against the stockholders in his former law firm, Kennedy Berkley Yamevich & Williamson, Chartered, of Salina. The stockholders are Defendants George W. Yarnevich, Larry G. Michel, Tom A. Williamson, and James R. Angell. Using several theories — breach of contract, breach of fiduciary duty, tortious interference with a contract, and civil conspiracy — Diederich sued the stockholders after he was fired. The district court granted summary judgment to die Defendants while denying Diederich’s motion for partial summary judgment. Diederich appeals, contending error in all the court’s rulings. A corporation acts dirough die work of its officers, directors, and employees. Because the Defendants are stockholders and directors of the corporation and they were acting within the scope of their duties when they dismissed Diederich for cause, we hold Diederich’s claims do not survive summary judgment. We affirm.
The background facts show a working relationship decaying after Diederich altered some time records.
Diederich is an attorney licensed to practice law in Kansas. He began his career 'at the firm Kennedy, Berkley, Yarnevich & Williamson, Chartered, a Kansas professional corporation, in 1983. Diederich became a stockholder in 1987. The defendants are lawyers and stockholders of the firm. During the period at issue in this litigation, stockholder Tom Kennedy was president of the corporation. Kennedy died in January 2005, before Diederich sued.
• Controlling agreements and bylaws
Since this is a professional corporation made up of lawyers, it naturally had several written contracts and bylaws drafted to govern its group. Diederich and the other stockholders signed amended employment agreements in January 2004. These agreements controlled all aspects of their employment with the corporation. Diederich, at the time, was a member of the board of directors and agreed to and approved the terms of the amended employment agreement. Therefore, beginning March 1, 2004, the deferred compensation agreement, amended employment agreement, stockholders’ agreement, corporate bylaws, and articles of incorporation governed Diederich’s relationship with the firm.
The amended employment agreement provided the employment relationship between the corporation and the attorney “shall continue indefinitely until terminated . . . by either party serving written notice on the other party at least thirty (30) days prior to the effective date of such termination of employment.” The stockholders’ agreement stated that if a stockholder were no longer employed by the corporation, then the stockholder had to sell his or her stock to the corporation according to the terms outlined in the agreement. The corporate bylaws require a 10-day written notice for special stockholder meetings. A stockholder can waive the no tice requirement either before or after the meeting. The bylaws also state:
“Any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the stockholders entitled to vote with respect to the subject matter thereof.”
The bylaws call for a 5-day notice to members of the board of directors before any special meeting of the board. This notice requirement can be waived before or after the meeting. Normally, a board member’s attendance at such a meeting amounted to a waiver of notice unless the director attended the meeting in order to object to transacting any business because the meeting was not properly called.
Nonetheless, the lawyers did much of the firm business informally, often at lunch meetings. They set stockholders’ and directors’ meetings often by e-mail, rather than by sending formal notices as set out in the bylaws. Diederich admits that they transacted much of the business at stockholders meetings for which no formal notice was given to the stockholders. The lawyers rarely prepared minutes for meetings where they transacted business. If the business needed something in writing, the firm would prepare a consent to any action taken after the fact. Diederich admitted that he was not aware of any minutes, corporate consents, or resolutions about the hiring or firing of employees.
• Altered time sheets
On March 1, 2004, a prebilling ledger was prepared that reflected all the legal work done for a particular client on a probate estate dating back to 2001. When the ledger was prepared the firm had not yet sent a bill to the client. Prebill ledgers contain important data. They show the identity of the client, the attorney, the date of services, the attorney who did specific work, a description of the work done, the total hours worked by each attorney, and the total fees for those services. The attorneys who worked on this matter were Diederich, Cochran, and Michel.
The attorneys had a chance to correct these prebilling ledgers before they sent the final bill to the client. Diederich admitted that on the day they printed one ledger, he altered the figures by crossing out Cochran’s and Michel’s initials next to work they had done and replacing them with his own initials. After Diederich altered the ledger, he gave it to his assistant.
Cochran saw the ledger on Diederich’s assistant’s desk and told others about the changes. Later that day, all stockholders except Kennedy called Diederich into a meeting to discuss the ledger. Diederich said he was justified in making the changes and that he believed he had done nothing wrong. The other stockholders did not believe Diederich should take credit for the other lawyers’ work. As a result, they did not enter the changes into the system.
® Admissions by Diederich
Diederich admitted that he did not do the work for the entries he changed. He admitted he made the changes intentionally so he could get credit for the time. The changes would have allowed Diederich to bill for 37.5 hours instead of the 16.2 that he recorded for the client. Though the altered entries were for work done in 2001, the bonus program in effect in 2004 stated that for fixing bonus compensation, they would credit an associate for revenues collected in a given year for work billed in that year. Diederich admitted drat making the changes to the ledger would have affected the attorneys’ collections for the year.
Through informal discussions about what Diederich had done, the other stockholders agreed that they should dismiss Diederich. They held no formal stockholder or director meeting about Diederich’s continued employment. They drafted a notice of termination, which stated that they were firing Diederich as an employee of the firm, effective April 30, 2004. Kennedy, as president, signed the letter. All the other stockholders then signed the letter, stating they approved and confirmed Diederich’s termination.
On March 30, 2004, they asked Diederich to come to the conference room, and when he arrived, they immediately gave him the written notice of his termination. All the stockholders were present. Diederich tried to explain why he believed he had done nothing wrong. Diederich did not contest the action taken at this meeting, but he claimed they improperly held prior meetings without notice. Diederich admitted that if they held a formal meeting of directors and all the directors voted to fire him, he could not have prevented his termination.
Diederich has not been practicing with tire firm since May 14, 2004. Since then, Diederich has been practicing on his own and billing his clients directly. They compensated Diederich for the legal work he did between April 30, 2004, and May 11, 2004. Following his termination, Diederich and the firm differed on how much compensation he was entitled to under the amended employment agreement. Diederich also asserted the corporation manipulated its financial statements to reduce the amount it owed Diederich for his stock under the stockholders’ agreement.
Diederich contended he was still a stockholder and director after his termination because he had not agreed to a purchase value for his stock. Diederich refused the deferred compensation checks the firm offered him because he believed it had not fired him and he was not given an opportunity to take part in the stockholders’ or directors’ meetings at which the decision was made to prepay deferred compensation.
Because Diederich contended he was still a director, at a directors’ meeting on December 20, 2004, all the directors, other than Diederich, voted to dismiss Diederich as a director. Diederich tiled to vote his shares to block his removal. The Defendants refused to recognize Diederich’s vote.
The stockholders’ agreement and the amended employment agreement contain arbitration terms. On October 21, 2004, the firm filed a motion to compel arbitration because the parties were unable to resolve their disputes about Diederich’s termination. The motion was granted. Diederich and the firm began arbitration in November 2004. The issues in arbitration included whether Diederich was properly terminated and whether the corporation breached the amended employment agreement or any of the corporate governance documents. Several claims were determined in arbitration. The first issue was whether the firm had given proper notice of meetings and if it properly called the meetings. The sec ond was whether the firm properly removed Diederich as an employee, stockholder, and director. The third issue was whether arbitration was proper and what the corporation owed Diederich, if anything, under the terms of the various agreements.
Diederich filed his petition against the Defendants, claiming a breach of fiduciary duty, tortious interference with contracts, breach of contract, and civil conspiracy claims. He then filed a motion for partial summary judgment. In turn, the Defendants filed their own motion for summary judgment.
Later, the arbitration panel delivered its rulings. After that, the Defendants filed a supplemental memorandum in support of their motion for summary judgment, arguing the arbitration panel’s decision provided die district court with collateral estoppel as an additional reason to dispose of Diederich’s claims against them.
We list some fundamental points concerning summary judgments.
The legal path to summary judgment is well worn. When we examine such questions we use the same rules as the district court:
“ ‘ “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to die dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” ’ [Citation omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
We will first look at the judgment granted the Defendants for Diederich’s breach of fiduciary duty claim and then his contentions concerning their tortious interference with contracts. After that, we focus on his civil conspiracy claims followed by the question of whether Diederich’s claims are really just disguised breach of contract allegations. Finally, we deal with the “one-action” rule and the issue of collateral estoppel arising from the parties’ arbitration. Diederich failed to allege facts of any alleged breach of a fiduciary duty.
The law is clear on this point. Officers and directors of a corporation have a strict fiduciary duty to act in the best interests of the corporation and its stockholders. This duty requires officers and directors to work for the general interests of the corporation and the stockholders. Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 467, 790 P.2d 404 (1990); Sampson v. Hunt, 233 Kan. 572, 584, 665 P.2d 743 (1983). Directors also owe the same fiduciary duty between themselves. 233 Kan. at 584. And fiduciary relationships can be created in certain circumstances, depending on the facts surrounding a special relationship between parties. Olson v. Harshman, 233 Kan. 1055, 1058, 668 P.2d 147 (1983).
Diederich argues this cause of action should have survived summary judgment because there is a genuine issue of material fact of whether a special relationship exists that would cause Defendants to owe him a fiduciary duty. Diederich also claims that since Defendants owed him a fiduciary duty, whether there was a breach of that duty is a question of fact sufficient to preclude summary judgment. Diederich’s argument on appeal is simply that a fiduciary duty exists between himself and Defendants and, therefore, a trial should be held to determine whether there was a breach of that fiduciary duty.
Unfortunately, Diederich has neither alleged facts to support his claim that there was a breach, nor tied these breach allegations to any of the damages he claims. Diederich’s claims are based on the actions taken by Defendants in terminating Diederich’s employment with the firm. Fiduciary duties owed by directors and officers do not extend to employees of the firm. Directors do not breach their fiduciary duty if they fire an employee, who is also a shareholder, for a legitimate business reason. See Richards v. Bryan, 19 Kan. App. 2d 950, 962, 879 P.2d 638 (1994). Simplyput, Diederich has not offered any genuine issues of disputed material facts that would support this claim and prevent summary judgment.
The claim of tortious interference with contract cannot survive summary judgment.
The logic employed by the district court on this point was impeccable. The district court found that corporate officers cannot interfere with an employment contract involving one of the corporation’s employees. Thus, directors and officers of a corporation cannot be hable for tortious interference with an employment contract that they have legal authority to cancel. On appeal, Diederich argues that the district court’s finding that Defendants could not be hable for tortious interference with contract as a matter of law was erroneous and there remains disputed issues of material fact precluding summary judgment on this issue.
The law recognizing this cause of action is well settled. In Kansas, a person who, without justification, induces or causes a breach of contract will be answerable for any damages caused thereby. Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 423, 77 P.3d 130 (2003). The five elements of a tortious interference with a contract claim are: “ ‘ “(1) the contract; (2) the wrongdoer’s knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) damages resulting therefrom.” ’ [Citations omitted.]” 276 Kan. at 423.
We must point out that Diederich has not specifically identified the contracts he is claiming Defendants interfered with. He maintains the Defendants admitted to trying to terminate him. But the Defendants have always maintained that Diederich’s employment contract was properly terminated. This failure to identify the contract or contracts causes us to question whether Diederich has argued a cause of action for tortious interference with a contract.
Nonetheless, it is clear that the district court in its ruling on this point stands on firm ground. In Clevenger v. Catholic Social Service of Archdiocese of Kansas City, 21 Kan. App. 2d 521, 526-27, 901 P.2d 529 (1995), the court held an official of a corporation, acting for the corporation, and within the scope of his or her representation of the corporation, cannot be liable for tortious interference with a contract the corporation could legally act on. In Clevenger, this court determined that corporate directors could not be held liable for inducing the corporation to terminate employment that the corporation could legally terminate. This is reasonable. When conducting business on behalf of a corporation, the corporate officers and directors are acting on the corporation’s behalf, and one cannot tortiously interfere with a contract unless he or she is a third party unrelated to the contract. 21 Kan. App. 2d at 526-27. See also Macke Laundry Service Ltd. Partnership v. Mission Assocs., Ltd., 19 Kan. App. 2d 553, 873 P.2d 219 (1994) (stating that a “claim for tortious interference with a contractual relationship requires the existence of a valid and enforceable contract at the time of the interference between the plaintiff and a third party.” [Emphasis added.]). After all, the employee is employed by the corporation, not the directors or the stockholders. It is the corporation acting, not the directors.
Diederich recognizes this legal theory but argues it is a question of fact for the jury to decide whether tíre Defendants were acting outside the scope of their employment or for their own individual advantage when he was fired. To support his claim, Diederich states that Defendants engaged in a number of dishonest actions to accomplish their personal goal, including creating false minutes for a meeting, denying that such a meeting took place, and hiding corporate assets in order to avoid paying Diederich.
Those facts do not allege a cause of action for tortious interference with a contract. There must be something more. That cause of action requires evidence in addition to a breach of contract. The facts relied on by Diederich merely state Diederich’s reasons for believing his employment contract was improperly terminated and his payments under the shareholder and other agreements were wrongly calculated. None of these facts allege Defendants were acting outside their authority as directors of the corporation in terminating Diederich’s employment.
As well as failing to show what contract had been breached in this cause of action, Diederich has also failed to provide evidence showing the Defendants were acting outside the scope of their employment. He has not shown they were acting for their own individual advantage or that the Defendants were not acting for the benefit of the corporation. We find no error on this point.
With no evidence of an underlying tort the claim of civil conspiracy cannot survive.
The district court ruled the claim for civil conspiracy failed because no underlying tort existed and because officers and directors of a corporation cannot conspire with themselves when acting on behalf of the corporation and within the scope of their authority. We agree.
The elements of a civil conspiracy are:
“ ‘(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.’ [Citation omitted.] Conspiracy is not actionable without commission of some wrong giving rise to a cause of action independent of the conspiracy.” Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984).
We have already ruled that there is no valid claims for breach of fiduciary duty and tortious interference with contract in this case, so those theories cannot support a civil conspiracy claim. On the other hand, Diederich argues that the district court erred in finding no underlying tort because he believes his tort claims survive summary judgment. We are not so persuaded.
Going further, Diederich claims the district court erred in finding that officers and directors of a corporation cannot conspire with each other. Diederich argues the district court’s reliance on Vulcan Materials Co. v. Atofina Chemicals Inc., 355 F. Supp. 2d 1214 (D. Kan. 2005), was misplaced. Diederich claims that Vulcan only states that a corporation cannot conspire with itself and does not state that officers of a corporation cannot conspire together.
In Vulcan, the issue was whether two entities were guilty of conspiracy, and the court determined that the entities were under the same general ownership, so they were the same corporation, which was unable to conspire with itself. 355 F. Supp. 2d at 1239.
It is difficult to see how a corporate director or officer can be hable for conspiring with other directors and officers to do something on behalf of the corporation those directors and officers are representing. In fact, May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 370 P.2d 390 (1962), the case the Clevenger court, 21 Kan. App. 2d at 526-27, relied on in analyzing whether corpo rate directors could tortiously interfere with an employment contract, actually involved a civil conspiracy claim.
In May, the plaintiff sued the corporation and three of the corporation’s officials for civil conspiracy. The May court stated: “Merely adding the words and phrases, ‘conspiracy,’ ‘deliberate fraud and subterfuge,’ ‘deliberately, wrongfully and without just cause,’ and ‘unlawfully and wrongfully,’ to an action for alleged breach of contract of employment does not transform the action into one based upon conspiracy.” 189 Kan. at 423. The court determined that the corporate defendant could not be guilty of conspiracy with itself, and the only question remaining was whether the individual defendants were without privilege to take the actions alleged. The court then decided it had to analyze whether the officers were acting on behalf of the corporation or in their individual capacities or for their individual advantage. The court stated:
"Where, as here, the individual defendants are named and described as officials of the corporate defendant in the petition, with no allegations that these defendants acted other than in their official capacities on behalf of die corporate defendant, and no allegation remotely indicates that they were pursuing their course as individuals or for individual advantage, the acts of the individual defendants must be regarded as the acts of the corporation, and when so acting they cannot conspire with the corporation of which they are a part. [Citation omitted.]” 189 Kan. at 424.
Diederich has not alleged anything other than the Defendants breached the agreements they all entered into when organizing as a corporation. As in May, Diederich has not asserted facts that would elevate this to anything more than an issue of breach of an employment contract. 189 Kan. at 425.
Diederich argues that corporate officers can be guilty of conspiracy because the court held directors and shareholders hable for conspiracy in Wegerer v. First Commodity Corp. of Boston, 744 F.2d 719, 724-26 (10th Cir. 1984). In Wegerer, the plaintiffs sued a corporation and its two directors, officers, and shareholders. The plaintiffs prevailed at trial, and the defendants argued on appeal the district court erred in instructing the jury on civil conspiracy because the evidence failed to prove the directors were acting outside their official capacities on behalf of the corporation.
The Tenth Circuit Court of Appeals determined there was sufficient evidence to establish the directors and an employee of the corporation were acting outside the scope of their employment when they committed fraud against the plaintiffs. Specifically, the defendants had signed a consent decree stating they would not make misrepresentations and engage in other unlawful conduct, but the plaintiffs provided evidence that the defendants did things prohibited by the consent decree. 744 F.2d at 726.
It is clear that Wegerer was a fact-specific case, and it does not support Diederich’s claims in this appeal. Diederich has not presented a fact question about whether the Defendants were acting outside the scope of their duties as directors of the corporation. The district court did not err in granting summary judgment in favor of Defendants on Diederich’s conspiracy claim.
We cannot agree with the district court about mixed causes of actions.
The district court decided Diederich’s tort claims failed because he could not meet his burden of proving he suffered additional damages independent of his contract damages which were the subject of the parties’ arbitration. (The district court denied Diederich’s motion to vacate the arbitration award, and Diederich has appealed that denial in a separate appeal No. 99,423.) The district court held the underlying facts and damages were the same in this cause of action as in Diederich’s arbitration proceeding. On that basis, the court granted summary judgment.
Whether tort and contract claims can be brought in the same case is a question of law, which this court reviews de novo. See Bittel v. Farm Credit Svcs. of Central Kansas, P.C.A., 265 Kan. 651, 962 P.2d 491 (1998). “[W]hen . . . conduct could satisfy the elements of both a breach of contract or of an independent tort, unless the conduct is permitted by the express provisions of a contract, a plaintiff may pursue both remedies.” 265 Kan. at 660. However, the independent tort must cause damages beyond those suffered by breach of contract. See Heller v. Martin, 14 Kan. App. 2d 48, 54-55, 782 P.2d 1241 (1989).
This case differs from the cases relied on by the district court. Here, while the Defendants acted on behalf of the corporation in terminating and enforcing the contracts, Defendants were not actually parties to the contracts. But Diederich’s tort claims are subject to summaiy judgment for other reasons. The district court erroneously relied on these being disguised breach of contract claims. Because the district court had other valid reasons to grant summary judgment on the tort claims, this error does not require reversal. See In re Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006) (“If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground.”).
We discuss the one-action rule and splitting causes of action.
The district court ruled Diederich’s tort claims failed as a matter of law because Diederich was prohibited from splitting his cause of action. In the district court’s view, he should have litigated all of his claims arising out of this one wrong in a single action. The district court ruled Diederich violated the one-action rule.
One purpose of the rule against splitting a cause of action is to protect defendants from multiple lawsuits on a single cause of action. The one-action rule differs from res judicata. Res judicata requires identical parties to apply, but the one-action rule does not. See Home State Bank v. P.B. Hoidale Co., 239 Kan. 165, 169, 718 P.2d 292 (1986) (distinguishing the rule against splitting a cause of action from the doctrine of res judicata and finding that the rule applies even though same parties were not involved in the many lawsuits filed by the plaintiff). “The rule against the splitting of a cause of action is based upon varied and justifiable concerns: preserving judicial economy and convenience; avoiding repetitive or fragmented litigation; and protecting a party from multiple harassment and expense over the same claim.” 239 Kan. at 169.
To the contrary, Diederich argues his tort claims could not have been brought in the same cause of action as his arbitration claims because under K.S.A. 5-401(c)(3), tort claims are not subject to arbitration. But that statute does not state that tort claims are not subject to arbitration; rather, it states a written contract cannot include a mandatory arbitration clause for tort causes of action arising between the parties.
Case law provides guidance. “[U]nder Kansas law, there can be no mandatory arbitration of an action sounding in tort.” Beeson v. Erickson, 22 Kan. App. 2d 452, 454, 917 P.2d 901 (1996). The Beeson court decided the plaintiffs’ claims failed because they were attempting to bring an action that arose out of the performance of a contract but called it a tort action in order to render the mandatory arbitration clause in the agreement null and void. 22 Kan. App. 2d at 462-63.
This case is distinguishable from Beeson because these claims are not merely contract claims disguised as tort claims. And, it is not that Diederich chose to sue under tort theory instead of contract theory. Diederich simply failed to raise his tort claims in the arbitration case even though they were based on the same conduct, which was the subject of litigation in the arbitration case. Diederich should have brought his tort claims against Defendants in the same litigation as the arbitration proceeding. The district court did not err in granting Defendants’ summary judgment motion based on the one-action rule.
The arbitration award cannot be used as collateral estoppel as it is not final.
We turn now to the issue of collateral estoppel. Diederich argues the district court erred in relying on collateral estoppel to deny Diederich’s claims. The Defendants failed to address this issue in their brief.
Collateral estoppel has three requirements. First, there must be a prior judgment on the merits arising from the same factual circumstances and that judgment determines the rights and liabilities of the parties. Second, the parties must be the same or in privity in both actions. Third, a litigated issue that was determined in the first action must be necessary to support that judgment. See In re Tax Appeal of City of Wichita, 277 Kan. 487, 506, 86 P.3d 513 (2004). Collateral estoppel may be based on a judgment confirming an award of arbitration. L.R. Foy Constr. Co. v. Professional Me chanical Contractors, 13 Kan. App. 2d 188, 195, 766 P.2d 196 (1988).
However, in this case, the arbitration panel’s award has been appealed, so it is not final. Even though appellate courts have a very limited scope of review when considering arbitration awards, Diederich is correct that the arbitration decision is not yet final. See City of Coffeyville v. IBEW Local No. 1523, 270 Kan. 322, 334, 14 P.3d 1 (2000); Speer v. Dighton Grain, Inc., 229 Kan. 272, 278-79, 624 P.2d 952 (1981) (finding res judicata inapplicable when time for appealing case to be relied on has not yet passed).
If the arbitration award is set aside on appeal, it would not have a collateral estoppel effect on this case. If Defendants wanted the arbitrator’s award to have collateral estoppel effect on this case, they should have requested a stay until the arbitration case was final. See L.R. Foy Constr. Co., 13 Kan. App. 2d at 190 (where defendant that was sued by plaintiff but believed it was in privity with another party subject to arbitration with plaintiff moved to stay action until arbitration was decided). The district court erred in relying on collateral estoppel to deny Diederich’s claims. But, because the district court properly granted summary judgment on other grounds, this error does not require reversal. See In re Marriage of Bradley, 282 Kan. at 8.
Affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
The record in this case shows that on February 1, 1884, a judgment for $300 was rendered by a justice of the peace of Ellis county in favor of James H. Beckham, Joseph W. Mercer and J. G. McKnight, partners as Beckham, Mercer & Co., and against Henry Krueger and Martha Krueger, upon a waiver of summons, a confession of judgment, and an affidavit of the defendants. On February 7, 1884, Martha Krueger took the case to the district coui’t of Ellis county on petition in error, making Beckham, Mercer & Co. parties defendant, but not making Henry Krueger, who was her husband, a party. In her petition in error in the district court she alleged that there were errors of fact as follows:
“1. There is error in fact in said record in stating that the said Martha Krueger appeared in person in said action before said justice of the peace and confessed judgment in said action.
“ 2. There is error in fact in said record in stating that the said Martha Krueger waived service of summons and time in said action. ,
“3. There is error in fact in said judgment, said judgment as a matter of fact being against said Martha Krueger and one Henry Krueger, when as a matter of fact said Martha Krueger was never, and is not now, indebted to said Beckham, Mercer & Co. in any sum whatever, nor did the said Martha Krueger in any way or manner become liable for the debt of said Henry Krueger to the said Beckham, Mercer & Co. in any manner whatsoever. ■ ,
“ 4. For other errors in fact in said-proceedings to the detrh ment of said Martha Krueger, though not specificially alleged and set forth herein.”
No errors of law were alleged or assigned. Upon the question as to whether any errors of fact had occurred, a trial was had before the district court without a jury, and oral evidence was introduced, and upon such evidence the court found generally in favor of the defendants, Beckham, Mercer & Co., and against the plaintiff, Martha Krueger, and rendered judgment accordingly, affirming the judgment of the justice of the peace; and of this judgment of the district court the plaintiff, Martha Krueger, now complains.
No objection was made or exception taken to any proceeding had or ruling made by or before the justice of the peace, nor was any objection made or exception taken by Mrs. Krueger to any proceeding had or ruling made in the district court, except that she excepted to the final rendering of the judgment by the district court. Nor was any motion made by Mrs. Krueger in the district court to reverse, vacate, modify or set aside the judgment, or any finding, order, ruling or proceeding of that court; nor was any motion made in either court for a new trial.
"We do not think that the judgment of either court can be disturbed by this court. It is seldom if ever that a judgment or order of any court can be disturbed on petition in error, except for errors appearing upon the face of the record. It is seldom if ever that a judgment or order of any court can be disturbed on petition m error for . x mere errors of fact, and it never can be so disturbed for matters dehors the record which contradict the recitals of the record, and never for facts which merely go to make up or constitute or to prove or disprove or merely concern the plaintiff’s cause of action or the defense thereto. Nor will a judgment rendered by a court of competent jurisdiction, having jurisdiction of both the parties and the subject-matter of the action, be disturbed on petition in error for irregularities occurring prior to the rendition of the judgment, where no objection was made or exception taken, although such ir regularities may be ever so great. And where a trial has been had upon issues presented by the parties to the court and evidence introduced to prove the same, the judgment will not be disturbed for any errors of law occurring at the trial, or for the reason that the decision is not sustained by sufficient evidence, unless a motion for a new trial has been duly made and overruled; and even where a motion for a new trial has been made and overruled, still the judgment will not be disturbed on the ground that the decision is against the evidence, where the preponderance of the evidence, as in this case, sustains the decision.
Under some of the authorities in other states, some judgments or orders of some courts may be disturbed for errors of fact, whether the facts appear upon the face of the record or not: provided that the facts to be proved must not contradict the record; and provided further, that they show only such irregularities as tend to thwart or contravene the due administration of justice, aside from matters concerning the plaintiff’s cause of action or the defense thereto, and not such facts merely as have reference only to the plaintiff’s cause of action or the defense thereto.
In this case the assignments of error cannot avail the plaintiff anything. The first three assignments of error tend to contradict the record; the third has reference merely to the cause of action set forth by the present defendants in error, plaintiffs in the justice’s court, and Mrs. Krueger’s defense thereto; and the fourth assignment of error is too general and indefinite to be considered as of any value. There is one question, however, upon which evidence was introduced in the court below, and which question the court below may have considered in deciding the case, and that question is, whether the justice of the peace had jurisdiction to render the judgment against Mrs. Krueger in the manner in which he did render it. It appears from the evidence that both the justice of the peace and Mrs. Krueger reside in Hays City, Big Creek township, Ellis county, Kansas, and that the justice held his office in such town and township. What the distance is be tween the justice’s office and Mrs. Krueger’s residence, is not shown. The justice left his office and went to her residence, where she waived summons, confessed the judgment com-, plained of in this proceeding, and was sworn to the necessary affidavit therefor, and the justice then returned to his office, where he made the proper entries on his docket. Now under the evidence the fact that the confession of judgment was taken at Mrs. Krueger’s residence, and not at the justice’s office, was the only irregularity that occurred in ap thg proceedings; and this irregularity was shown only by the parol evidence and not by the record of the justice of the peace, and we do not think that it renders the j udgment of the j ustice of the peace either void or voidable; for when Mrs. Krueger voluntarily confessed judgment and permitted all the other steps to be taken necessary for the rendition of the judgment, she waived the irregularity in taking the confession of judgment.
The case of Phillips v. Thralls, 26 Kas. 780, has no application to this case. In that case the justice went out of his township to hold his court, while in this case the justice remained in his township during the occurrence of all the proceedings. This is the principal question discussed by counsel for plaintiff in error, and upon this question we must decide against his client. We think the judgment of the justice of the peace is valid, and that it cannot properly be set aside.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Two questions are presented in this case: First, are the findings of fact supported by the evidence? Second, are the personal earnings of Jesse Gaut, due to him from the Kansas City, St. Joseph & Council Bluffs Railroad Company, exempt from the payment of the judgment recovered against him by Gough & Linley? The disputed finding of fact is as follows:
“After the order of the justice of the peace of February 15, 1883, overruling the motion for the discharge of the garnishee and denying the exemption, said Jesse Gaut did not desire any further litigation, but was willing that said sum of $20 should be applied toward the satisfaction of the judgment.”
The only evidence in the record that we can find tending in any way to support this conclusion of fact, is as follows: Jesse Gaut testified':
“I owe Gough & Linley, who are physicians in Atchison, for attendance upon my wife; have -wanted and intended to pay them what I owe them, but my wife has been weakly and it has cost me my wages to live and support my wife and child; the railroad company first notified me that it had been garnished ' for $20 on January 23, 1883; they kept that amount out of my wages and paid me the balance due; after that, and along in January, 1884,1 was notified that the company was garnished again for it, but after learning it was garnished on the same old case, they paid me all that was due, excepting $25 which was due me for my personal earnings at that time.”
On cross-examination he further testified:
“ I don’t know how many trips I made, or how much I made in January, 1883, before the 23d of the month; the railroad company kept back $20 of my January wages for 1883, and told me I was garnished again in January, 1884, and kept back $5 more. I supposed the $20 had been paid to Gough & Linley until after the other money was kept back; I wrote a letter to Dr. Gough after the $5 w7as kept back; I don’t think I said I was willing to have that debt paid out of the money, and have never signified my willingness to pay the debt out of this money; I wrote the letter to Dr. Gough about last March; didn’t write that I wanted it [the debt] paid, and supposed it had been; I wrote that they had garnished me once before for that debt, and wanted to know what they garnished my wages again for. When I was notified of the first garnishment, I went to the office of John Taylor, a justice of the peace in St. Joseph, and told him that I had been garnished, and stated the facts, and a young man in the office wrote a notice to the railroad company that I claimed all the earnings due me as exempt from execution or attachment. I signed and swore to it, and then delivered it to Mr. Carter at the superintendent’s office of the railroad company.”
Dr. W. M. Gough testified as follows:
“I received a letter about Christmas from Jesse Gaut; it is lost; T think he said in that letter that $20 or $25 more had been kept out; I think he said he intended to pay the debt, and that it had been paid, but would not pay it twice; I never got anything on this debt; he never denied owing the debt to me; he complained that his wages were garnished twice on the debt; I cannot recollect exactly what was in the letter; I have stated the substance as I remember it.”
It further appears from, the record, that Gough & Linley commenced their action against Jesse Gaut and garnished the wages due him from the railroad company on January 23, 1883; on the same day, he served a written notice upon the railroad company, signed and sworn to by him, claiming all the wages due to him as exempt from execution or attachment; then, on February 3, 1883, the railroad company answered as garnishee that the moneys due Gaut were his wages as an employé, and exempt, and at the same time the affidavit of Gaut was filed before the justice asking his wages to be declared exempt to him. On February 10, 1883, Gaut appeared by his attorney to defend the action, in which a judgment was rendered against him. On February 15, 1883, Jesse Gaut, and also the railroad company, appeared before the justice and presented the statutes of Missouri, claiming that the wages garnished were exempt. After the order of February 15, 1883,' was made for the garnishee to pay the $20 into the hands of the justice to apply upon the judgment and costs, *nothing further was done toward the enforcement of this order until January 14,1884, when the justice made another order for the railroad company, ás garnishee, to pay the money in satisfaction of the judgment and costs. The railroad company refusing to comply with the order, the plaintiffs filed their bill of particulars on March 7,1884, asking judgment in their favor and against the defendants for the $20 garnished, with interest from February 15, 1883, and also for all costs. The railroad company filed its answer on April 12-, 1884; judgment was rendered against the company on April 14, 1884, for $25.94 and costs, taxed at $5.80; the case was then appealed -by the railroad company to the district court; on June 24,1884, Jesse Gaut presented his motion for leave to be made a defendant and to file his answer; this was granted,' and his answer filed; ever since, he has continued to be vigilant in claiming his exemption.
Upon the oral evidence and the records before the justice of the peace and the district court, we do not think that there is any evidence to support the finding that Gaut did not desire any further litigation, or was willing that the sum of $20 should be applied in satisfaction of the judgment rendered before the justice of the peace. The most that can be said is, that he supposed when the railroad company retained $20 the company had paid it to Gough & Linléy, but when he found this was not the case, he was anxious to claim all his wages as exempt.
“Until the right of exemption is waived, or lost by some unequivocal act or declaration of the debtor, it remains with him, and any of his property which is included within the terms of the statute is beyond the reach of the officer and his process.” (Rice v. Nolan, 33 Kas. 28.)
Counsel for plaintiffs below suggest that as all the evidence not preserved, the findings of the court are con-c|usive_ The record, however, shows that upon the disputed findings of fact all of the evidence thatwas offered is embraced therein.
It is »the claim of defendants below that the judgment of the district court was rendered upon the finding that Gaut was not a resident of this state at the time of the garnishment. If such was the ruling it was erroneous. ‘
“Under the statute, the earnings of a debtor for his personal services at any time within three months next preceding the attempt to subject such earnings to the payment of his debts are exempt from such payment, if it be made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of his family, supported wholly or partially by his labor; and no distinction is made by the statute between residents and non-residents, or between debts created in Kansas and debts created elsewhere; and the weight of authority seems to be that where the statutes do not make any distinctions, that no such distinctions exist; that if the statutes do not restrict the exemption of property for the payment of debts to residents, or to some other particular class of persons, the courts have no authority to make such restriction, and the statute will apply to all classes, non-residents as well as residents.” (Mo. Pac. Rly. Co. v. Maltby, 34 Kas. 130; Zimmerman v. Franke, 34 id. 650.)
In B. & M. Rld. Co. v. Thompson, 31 Kas. 180, the case was discussed and decided, whether the exemption laws of Nebraska have force in this state, the trial judge remarking, that “the showing was insufficient to sustain the exemption under the laws of Kansas,” and in the conclusion of his opinion, said: “The garnishee has not made out a case of exemption for its creditor here under our statute which governs us, and which we must follow in preference to the Nebraska statute.” If it be claimed thát the judgment rests upon the adjudication of the justice refusing to set aside the garnishment and discharge the fund as exempt, it is sufficient to say that such an order is not conclusive. Such a ruling is neither a judgment nor a final order, and is not reviewable by proceedings in error. Neither the railroad company nor Gaut could successfully have instituted proceedings in error in the district court. (Zimmerman v. Franke, supra; Miller v. Noyes, 34 Kas. 13; Board of Education v. Scoville, 13 id. 32; Phelps v. Railroad Co., 28 id. 169; Mull v. Jones; 33 id, 112.)
"We think there is nothing whatever in the suggestion that Gaut was not properly a party to this action in the district court, or that the exemption had "been lost by lapse of time. The last'finding of the court shows that the money garnished was for the earnings of Gaut for his personal services for the railroad company within less than three months next preceding the garnishment proceeding, and that the earnings were and are necessary for the maintenance and use of his family, which was and is supported wholly by his labor.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Johnston, J.:
The plaintiffs in error attack the findings of fact and conclusions of law made by the court below, but raise no other questions. The findings of fact are so far supported by the evidence that they must be accepted here as a correct narration of the actual facts in the case. The real inquiry in the case is, whether the conduct of the plaintiffs in error rendered them responsible 'as principals for the acts of their agent done in excess of the express authority given him.
The rule of law governing this case, as stated by a noted text writer, is that—
“A principal - is responsible either when he has given to an agent sufficient authority, or when hejustifi.es a party dealing with his agent in believing that he has given to his agent this authority.” (1 Pars, on Con. 44.)
Judge Story, in speaking of the liability of a principal for the unauthorized acts of his agent, where- the apparent authority with which the agent is clothed is greater than was. intended by the principal, says :
“ In such cases good faith requires that the principal should be held bound by the acts of the agent within the scope of his general authority, for he has held him out to the public as competent to do the acts, and to bind him thereby. The maxim of natural justice here applies with its full force, that he who, without intentional fraud, has enabled any person to do an act which must be injurious to himself or another, shall himself suffer the injury, rather than the innocent party who has placed confidence in him.” (Story on Agency, § 127, and note.)
The same principle was recognized and applied by this court in a case where au agreement was made by an agent and commercial traveler, and the principal contended that the agent exceeded his authority in making the agreement. It was said that—
“The defendants had no personal acquaintance, no negotiations, directly with the plaintiff. The entire trade was made between this agent and them. They had no knowledge of the extent or limitations of his authority. If the plaintiff accepted the contract of his agent, he must accept it as a whole, and cannot accept that which suits him and reject the balance. The principal is bound by the representations of his agent — bound by the contracts he makes within the apparent scope of his authority.” (Babcock v. Deford, 14 Kas. 408.)
Here we find that Frederick was the acknowledged agent of the plaintiffs in error, and “was duly authorized to represent them.” He and others of their agents had frequently sold law books to the defendants in error, fixing the terms of sale, and in each case the books had been furnished and forwarded at the price agreed upon between the agent and the defendants in error. It turns out that the extent of the agent’s authority was to solicit orders for his principals, which orders were subject to their approval or rejection. But although there had 'been a long course of dealing between the parties, this limitation had never been disclosed to the defendants in error, nor had it in any way come to their notice. Instead of revealing this limitation through their agents, by circular or otherwise, the plaintiffs in error allowed their agents to go out to the public and act in the character of general agents. When the orders were sent in, they could easily have notified their customers that the orders had been approved or rejected, and thus brought to the attention of their customers the extent of their agent’s authority; but this was not done. It also appears in the testimony that the agent from whom the books were purchased, in this case, brought a book to the office of the defendants in error at another time, which he sold and delivered to them, Avithout communicating with or obtaining the approval of his principals. A bill for this book was forwarded by the plaintiffs in error, requesting payment from defendants in error, which was the same procedure that was pursued in other cases where the books were furnished from the publishing house. Under these circumstances, we think the defendants in error had a right to believe that the agent was acting within and not exceeding the authority conferred on him when the sale in question was made. The defendants in error have dealt in good faith with the agent, upon the strength of his apparent authority, and ought not now to suffer. It is true, that in making the sale he violated the express authority given to him by the plaintiffs in error. But under the familiar principle that has been stated, where one of two innocent persons must suffer by the misconduct of an agent, it should be the one who, by his conduct, has enabled the agent to perpetrate the wrong.
The point urged that the principal cannot be held liable for the unauthorized act of his agent unless the persons dealing with the agent have sustained some loss, cannot apply, as the findings show that the defendants in error suffered a loss of $270, and it was for that loss the present action was brought.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is a criminal prosecution under § 253 of the act regulating crimes and punishments, (lomp. Laws of 1879, ch. 31, §253—in which it was charged as follows:
. “On the 23d day of September, 1885, in the county of Washington and state of Kansas, one Louisa Burns did then and there unlawfully and willfully disturb the peace and quiet of one Silas Blodgett and of the family of said Silas Blodgett, by making loud and boisterous noises and by uttering profane and vulgar oaths, and by rude and indecent behavior, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Kansas.”
The action was commenced before a justice of the peace, where the defendant was found guilty, and sentenced. She then appealed to the district court, where she was again found guilty, and was sentenced to pay a fine of $10, and to pay the costs of the prosecution; and from this sentence she now appeals to this court.
The statute under which she was convicted reads as follows:
“Section 253. Every person who shall willfully disturb the peace and quiet of any person, family or neighborhood, shall, upon conviction thereof, be fined in a sum not exceeding $100, or be imprisoned in the county jail not exceeding three months.”
The defendant, who is the appellant, presents only two questions to this court, which are stated by her counsel as follows :
“First, Appellant claims that the.court erred in allowing the county attorney to make statements to the jury of other of-
fenses than the one charged, and in admitting evidence to sustain those offenses.
11 Second, That the court erred in refusing to give the instruction asked by her and in modifying it and giving it as modified.”
We do not think that these0 claims of error are tenable. First, The uncontradicted evidence introduced on the trial showed that the defendant was guilty beyond all reasonable doubt, and therefore the above supposed errors, if errors, are immaterial. Second, The court below did not commit error in any of the respects above mentioned.
The “other offenses than the one chai’ged,” mentioned by the defendant’s counsel in his first assignment of error, are offenses of a character similar to the one intended to be charged, and were committed by the defendant from one to three days prior to the commission of the one intended to be charged, and are offenses of which she might have been found guilty under the allegations of the charge. Besides, the statements made by the county attorney and the evidence introduced by him concerning these other offenses were made and introduced for the purpose of showing that the acts committed by the defendant on September 23, 1885, and claimed by the county attorney to constitute the offense charged, were not innocently or rightfully committed, but were willfully and unlawfully committed. We think that for the purposes of a conviction the proof of these other offenses was unnecessary, but still, as this proof and the facts connected therewith tended to prove the willfulness of the acts committed by the defendant on September 23, 1885, and which acts ^ ' the county attorney claims constitute the offense which he intended to charge against the defendant, we think the proof of such other offenses was not wholly irrelevant. Indeed, we think that such proof was competent and relevant, though probably unnecessary. (The State v. Folwell, 14 Kas. 105; The State v. Adams, 20 id. 311, 319.) Besides, in misdemeanor cases such as this, evidence of separate and distinct offenses may be introduced in evidence, provided each offense is fairly charged within the terms of the complaint—the defendant simply having the right at the close of the evidence for the prosecution, to require the prosecution to elect upon which offense it will rely for a conviction. (The State v. Schweiter, 27 Kas. 500, 512; The State v. Crimmins, 31 id. 376, 379, 380.)
The defendant asked the court to instruct the jury as follows:
“ In this case the defendant, Louisa Burns, is charged with willfully disturbing the peace of one Silas Blodgett and his family, in the county of Washington and state of Kansas, on the 23d day of September, 1885. Before you can find the defendant guilty, the evidence must be such as satisfies your minds beyond a reasonable doubt that the defendant did at the time and place charged intentionally and purposely disturb the peace and quiet of Silas Blodgett or his family. And for the purpose of conviction it is not sufficient for the state to show by the evidence that the peace and quiet of said Blodgett and his family were disturbed by the acts or conduct of defendant, but the evidence must be such as convinces your judgment that defendant purposely and intentionally did the acts complained of' with a view of so disturbing the peace and quiet of said Blodgett or his family.”
The court gave the above instruction, and then, as an addition thereto, gave the following:
“Although the words and acts of the defendant may have been primarily directed against, some person other than Blodgett or his family, yet if the defendant’s words and acts were wrongful and willful, and the natural and necessary consequences of them were the disturbance of Blodgett and his family, the defendant is equally guilty as though she had no other intention than the disturbance of Blodgett and his family. The defendant is presumed to be innocent until her guilt is established by the evidence to your satisfaction beyond a reasonable doubt.”
It is this addition to the defendant’s instruction of which she really complains. We think, however, it is correct. It is probably true that the objectionable words and acts of the defendant were directed primarily against a man who had formerly been her husband; but it is also true, in all probability, that he was not the only person whom she wished to annoy. ' Blodgett and bis family kept a boarding-house, and her former husband took his meals there, and evidently the defendant desired to annoy Blodgett and his family, as well as her former husband. She in fact annoyed Blodgett and his family, and their boarders, and all the neighborhood around. And this she knew, for Blodgett and others had so informed her on previous occasions, to wit, September 20th and 22d, 18<?5, when she was guilty of other unlawful conduct of a similar character. The proof and statements of these previous occasions are the matters of which the defendant complains in her first assign-, ment of error.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by C. W. Van Demark against Thomas M. Dolan, to recover certain goods and merchandise. The action was tried by the court, without'a jury, and judgment was rendered in favor of the plaintiff and against the defendant; and the defendant, as plaintiff in error, brings the case to this-court. The facts of the ease seem to be substantially as follows: On March 19, 1883, Henry H. Bradley owned the property in controversy, which, with other goods and merchandise, constituted his stock in trade as a merchant at Brantford, in Washington county. On that day he sold all the foregoing goods and merchandise to George Brabb, but this sale was made with the intention of hindering, delaying and defrauding his creditors, and was therefore void as against such creditors. On March 28, Thomas M. Dolan, who was then the sheriff of Washington county, levied an attachment upon a small portion of the goods. That levy is admitted to be valid, and really has nothing to do with this case. Afterward, but on the same day, VanDemark, who was an attorney at law and banker at Clyde,. Cloud county, Kansas, and who held four separate claims of four different creditors of Bradley, went to Brantford and to ’ Bradley and demanded payment of such claims; but Bradley stated that he could not pay the same, but agreed to and did indorse and deliver to Van Demark, as collateral security therefor, a promissory note for $2,000, dated March 19,1883, given by Brabb to Bradley as part consideration for the goods sold by Bradley to Brabb, and Brabb, with the consent of Bradley and in his presence, gave a chattel mortgage on the goods to secure the promissory note. Neither this chattel mortgage nor a copy thereof has ever been filed in the office of the register of deeds. Van Demark at the time had knowledge of the fraudulent character of the sale of the goods from Bradley to Brabb. Van Demark claims that he immediately took possession of the goods, with the consent of Bradley and Brabb, with the knowledge of Dolan, and without objection from anyone, but Dolan claims that Van Demark never did take or have the possession of the goods. The question of Van Demark’s possession is the principal disputed question of fact in the case. Afterward, but on the same day, a con stable levied an attachment on a portion of the goods, but whether that levy is valid, or not, is immaterial in this case. Afterward, and on the same day, the sheriff levied three other attachments upon the remaining goods, the property in controversy in this case, and took possession of the same, and afterward, and on three other days, levied four other attachments upon the same goods. Afterward, and on May 4,1883, Van Demark commenced this action for the recovery of the goods. On the trial it appeared that the sheriff had sold the .goods for the sum of $3,089, which was admitted to be their fair value. The court also found that the claims held by Van Demark, with interest, amounted to $1,424.15, and for this amount rendered judgment in favor of Van Demark and against Dolan.
Dolan, the plaintiff in error, defendant below, sets forth nine assignments of error. We shall not discuss them separately, nor any of them in detail, except the principal ones; but all must be overruled.
The plaintiff, Van Demark, was an attorney at law and banker, and held the aforesaid claims' against Bradley for collection; and by virtue of his authority as collecting agent, we think that presumptively he had a right to ydo whatever was best for his clients or customers to secure their collection. (Ryan v. Tudor, 31 Kas. 366; 1 Wait’s Actions and Defenses, 221, et seq., and cases there cited.) And what he did for his clients or customers was in all probability the very best thing that could have been done for them, and was in fact necessary. But whether it was best and necessary, or not, is not a question for third parties to raise. As against Dolan and the persons whom he represents, we think that Van Demark, as the agent of the owners of the claims, had a right to do all that he has done in the'present case.
It is claimed, however, by the plaintiff in error, defendant below, that the chattel mortgage is void for the reason that it was never filed in the office of the register of deeds, and also for uncertainty in the description of the mortgaged property. The description was probably sufficient; but even if slightly defective, still, neither this objection nor the one that the chattel mortgage had never been filed amounts to anything, if Van Demark really and in fact obtained the actual possession ox the property before the at-x t x _ x . tachments wei’e levied under which the defendant, Dolan, took final possession of the property. (Cameron v. Marvin, 26 Kas. 612, 625, et seq., and cases there cited; Jones on Chattel Mortgages, § 178; Herman on Chattel Mortgages, §38.) And the court below specifically found that Van Demark did so take and have the possession of the property. It is claimed, however, that this finding is erroneous. This finding, however, is one of fact, founded upon the evidence, and the evidence was all in parol; and if there was sufficient evidence from which the court could have made the finding, the finding must be sustained. Now we think there was such evidence. Van Demark testified that he took possession of the property, and that whatever he did with reference thereto was done with the consent of Bradley and Brabb, and with the knowledge of the defendant, Dolan, and without any objection from any person. They were all present in the building where the goods were kept, and Van Demark announced that he took the possession of the goods, and turned the key in the front door, and claimed to have the possession thereof. He did not, however, remove the goods, nor did he have time to remove them before the defendant, Dolan, levied the attachments upon them and took the possession thereof; nor did he obtain the keys to the building. The keys at the time were in the possession of Bradley', who finally delivered them to Dolan, after he took the possession of the goods under the attachments. We think the evidence is sufficient to sustain the finding of the court below, or at least we cannot say that the evidence is not sufficient to sustain such finding. The mortgagee in the present case had a right to take the possession of the property whenever he deemed himself insecure, and undoubtedly there were ample grounds to authorize an honest belief of insecurity. Besides, Brabb and Bradley, were willing that he should take the possession of the property.
The fact that the mortgage was executed by Brabb instead of by Bradley after the goods had been fraudulently sold by Bradley to Brabb, and the fact that Yan Demark had notice of the fraudulent intentions of Brabb and Bradley at the time of the sale, cannot render the mortgage void or voidable. While generally a fraudulent vendee . / cannot; as against the creditors of the fraudulent vendor, sell, assign or transfer the property to a third person who has notice of the fraud,'nor transfer or assign the same to even a person who has no such notice, where such transfer or assignment is merely to pay a preexisting debt of the fraudulent vendee, yet such fraudulent vendee may make a valid sale of, the property to a bona fide purchaser without notice of the fraud, or may, with the consent of the fraudulent vendor, and probably without his consent, make a valid transfer or assignment of such property to a creditor of the fraudulent vendor either in payment or partial payment of a bona fide debt of the fraudulent vendor, or as security for such debt, and whether such creditor has notice or not of the prior fraudulent sale. ( Butler v. White, 25 Minn. 432; Boyd v. Brown, 34 Mass. 453; Murphy v. Moore, 30 Hun, 95; Stark v. Ward, 3 Pa. St. 328; Webb v. Brown, 3 Ohio St. 246; Bump. on Fraudulent Conveyances, 3d ed., 499, 500.) The fraudulent vendee may lawfully dispose of the property in any manner in which the fraudulent vendor himself might have disposed of the property if the fraudulent sale had not occurred.
This was an action of replevin. The plaintiff’s interest in the property was the amount of the claims which he held against Bradley, with interest; and it was'not error for the court below to render judgment in favor of the plaintiff and against the defendant for the amount of such ° ^ claims, with interest. No judgment was rendered for a return of the property, and the amount of the proceeds of the sale of the property was more than enough to satisfy said claims with interest. The cases of Green v. Dunn, 5 Kas. 254, and Shepard v. Pratt, 16 id. 209, cited by counsel for plaintiff in error, have no application to this case. The plaintiff in error, defendant below, claims, however, that the aggregate amount of the claims, with interest, is onty $1,415.60, or $8.55 less than the amount for, which the court below rendered judgment. This claim we think is correct, and the judgment of the court below will therefore be modified accordingly; in all other respects the judgment of the court below will be affirmed.
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The opinion of the court was delivered by
"Valentine, J.:
This is an action in the nature of mandamus, brought originally in the supreme court in the name of the state of Kansas on the relation of S. B. Bradford, attorney general, against the board of county commissioners, and Thomas H. Ford, county clerk, of Hamilton county, to compel the defendants to hold their offices at the town of Kendall, which is alleged to be the county seat of said county. An alternative writ of mandamus was allowed and issued, which. alleges, among other things, that the county of Hamilton was organized on January 29, 1886; that the town of Kendall was designated by the governor as the temporary county seat; that the first election for county and township officers and for the permanent location of the county seat was held on April I, 1886; that returns were made of such election; that such returns were canvassed by the board of county commissioners on April 16, 1886; and that such returns and the canvass thereof show that votes were polled in the following town ships for the following towns as a permanent county seat, to wit:
It is claimed, however, on the part of the plaintiff, that for reasons which will hereafter be stated, this election was illegal, fraudulent and void, and that the .county seat of Hamilton county still remains temporarily located at Kendall, where it was temporarily located by the governor. The alleged fraud is confined exclusively to Syracuse township. It is alleged that in that township not more than 350 legal votes could have been polled, from the fact that not more than 350 legal voters resided there at that time, and that all the other votes apparently polled in that township, as shown by the aforesaid returns and the canvass, are illegal and fraudulent. The defendants have made a return to the alternative writ, and in such return have substantially admitted all the' allegations contained in the writ, except that there was fraud, illegality or irregularity in the conduct of the election in Syracuse township, and they allege that in that township the election was regular and legal and valid, and that the number of votes which the returns and the canvass show were polled, were in fact polled, and that by such election and canvass the town of Syracuse became the permanent county seat of Hamilton county, and that the defendants are now holding their offices there rightfully, legally and properly. A trial was had before the court, and upon the facts admitted, the evidence introduced, and the law of the case, we shall now proceed to decide the case and the questions involved therein.
I. It is claimed by the defendants that the supreme court has no jurisdiction to hear and determine this case; and this claim is made upon the following grounds: First, the plaintiff has another plain and adequate remedy; second, this court cannot go behind the election returns and the canvass thereof and declare them incorrect or invalid; third, the county seat having been declared to be permanently located at Syracuse, it is the duty of the defendants, in obedience to that declaration and without questioning its force or authority, to hold their offices there until it has been .settled by some proper judicial proceeding that the county seat is not located at that place; and possibly, also, fourth, thp supreme court “cannot control judicial discretion” by a writ of mandamus, and to require that the defendants in this case shall remove their offices from Syracuse to Kendall, would be to control judicial discretion. We think the claim that the supreme court has no j urisdiction to hear and determine this case is untenable. This action is prosecuted in the name of the state of Kansas, by the attorney general, who has the right to prosecute and defend in the name of the state and for the state, and the state unquestionably has the right to require that all county officers shall hold their offices at the county seat; and we know of no other plain and adequate remedy which the state may resort to for this purpose. The fact that the statute (sec. 5 of the act relating to the organization of new counties) provides that, after the canvass of the election returns has been had, and a particular place declared by the canvassing board to be the county seat, “That any' person or persons interested, and claiming that the place so declared the county seat was not made such by a majority of the legal votes cast at such election, may, upon giving full security for all the costs of the contest in case of their failure therein, contest such election before the district court of the county or of that county to which the same may be annexed for judicial purposes,” does not give to the state of Kansas any other plain or adequate remedy, or indeed any remedy, to compel the county officers to hold their offices at the place where the county seat is in fact located. Nor are the election returns or the canvass thereof ever considered conclusive, but only prima facie evidence of what they purport to show. The board of county commissioners, acting as a board of canvassers in canvassing election returns, do not act as a judicial tribunal, but only act as ministerial officers. This is so held by all the courts. ( The State v. Marston, 6 Kas. 534; Patton v. Coates, 41 Ark. 111.) And where an election is so irregular or fraudulent as to be absolutely void, as is claimed in this case, and a question which we shall hereafter consider, it may of course be treated as void in any judicial proceeding or elsewhere; and such treatment will not be a control of judicial discretion in any sense. We think the supreme court has the power in this action to require that the county officers shall hold their offices at the place where the county seat may in fact and in law be found to be located.' The action of mandamus in this state includes both the old common-law proceeding of mandamus, and the action on the case for a false return. (The State v. Comm’rs of Jefferson Co., 11 Kas. 68.)
II. The plaintiff in this action claims that the election is void for the reason that no registration of the electors of the different voting precincts was had, as required by chapter 89 of the Laws of 1881. This chapter we think has no application to this case. This chapter provides, generally for the registration of voters at county-seat elections; but this chapter has no reference, unless by implication, to county-seat elections in the organization of new counties. This claim of the plaintiff we think is untenable. Under § 1 of this chapter, the pelsons authorized by law to act as judges of election for any precinct are required to meet on Tuesday three weeks before the election, to act as a board of registration, and to make the registry lists. Now when new counties are organized, there are no persons authorized by law to act as judges of election prior to 9 o’clock of the morning of the first election, and therefore there are no persons authorized to make registration lists. Section 4 of the act relating to the organization of new counties and to the first elections therein, (Comp. Laws of 1879, ¶ 1362,) is the only act that provides how the election boards at such elections shall be selected, and it provides that—
“The voters at such election may assemble at 9 o’clock A. M. in each election precinct; shall select„from among themselves three judges and two clerks foi’ the election, who, before they enter upon the discharge of their duties, shall take the oath required by law of judges or inspectors and clerks of election, any one of whom may administer such oath to the others,” etc.
It will been seen from a reading of this last-mentioned section, that judges 4and clerks of election are expressly provided for by such section, and therefore that there is no room for any other law to apply by implication. Section 2 of the aforesaid registration act also provides that the registration board of each precinct shall in making the registration list use “the poll-book kept in said precinct at the last preceding election,” when in fact there is no such poll-book in new counties, and could not be prior to the first election. Said § 2 also provides that the original registry list shall be filed in the office of the township clerk of the township, when in fact there is no such officer at such a time, and could not be under the statutes. Section 3 of the act provides that in certain cases the township trustee may appoint judges of election to make the registration, but prior to the first election in the organization of new counties there can be no township trustee. Section 4 provides that the registration board shall meet on Tuesday of the week preceding the election and correct and revise the registration lists; and section 11 provides that these lists shall at all times be open to public inspection at the office of the authorities in which they shall be deposited, when in fact prior to the first election in new counties there can be no authorities with which the lists might be deposited. There are several other provisions in the act relating to the registration of electors for the permanent location or relocation of county seats which,are inconsistent with the provisions of the áct relating to the organization of new counties; and if such registration act should be made to apply to elections held under the act relating to the organization of new counties, it would be necessary to ignore and even to violate some of the provisions of either one or the other of such acts. We do not think that the registration act can apply to the first election held in a newly-organized county. Where a statute relating to registration, or indeed to anjdhing else, cannot in the nature of things be made to apply, it must be held that it does not apply, and that the legislature did not intend that it should apply. (Campbell v. Braden, 31 Kas. 754.)
III. The plaintiff claims that the election in Syracuse township was so fraudulent that the returns from that township are not entitled to any consideration. It appears from the evidence that there could not have been more than 350 legal voters residing in that township at the time o'f the election, and in all probability there were not that many; while the returns from Syracuse township and the canvass of such returns show that there were 1,178 votes polled in that township. Therefore at least 828 of the votes shown to have been polled by such returns and canvass must have been illegal and fraudulent. It appears from the election returns from the various precincts of Hamilton county, that at that election the town of Coolidge received 486 votes for county seat, the town of Hartlaud received 180 votes for county seat, the town of Kendall received 350 votes for county seat, and the town of Syracuse received 1,259 votes for county seat; and' the town of Syracuse received all the votes polled in Syracuse township except two, hence estimating that there were 828 illegal votes polled in Syracuse township, and that the town of Syracuse received 826 of such votes, the town of Syracuse could not have received more than 431 legal votes for the county seat, a less number than the town of Coolidge received, and a much less number than a majority of all the votes cast at that election, and such a majority is required by the statute to permanently locate the county seat of any county.- (Act relating to the organization of new counties, § 5.) The names fraudulently appearing upon the election returns of Syracuse township as the names of legal voters of such township, and canvassed as such, were made up by placing on the poll-books of such township fictitious names, the names of the same persons two or three times, the names of dead persons, and the names of persons residing elsewhere. For illustration, the names of 133 voters of Silver Lake township, Shawnee county, were placed upon the poll-books, and also the names of several residents of the city of Topeka, among whom were two well-known Topeka lawyers; and also the names of 43 voters of Malvern township, Mills county, Iowa; and also the names of several persons two or three times; and even William Penn was made to vote at that'election. Nobody knew of any such person as William Penn residing in that county. Besides, it was actually shown that at least five persons in Syracuse township voted for the town of Kendall, while the poll-books and canvass show that only two so voted. The fraudulent names were interspersed among the names of genuine and legal voters, or rather, vice versa, as the fraudulent names vastly outnumbered the names of the genuine legal voters. We are inclined to adopt the views of the plaintiff, and hold that the election in Syracuse township was so fraudulent that the returns therefrom and the canvass thereof must be wholly ignored. This is entirely consistent with the views heretofore expressed by this court in the following cases: The State v. Marston, 6 Kas. 524, 538; Russell v. The State, 11 id. 308, 322; The State v. Stevens, 23 id. 456, And these views seem to be sustained by the. decisions of courts elsewhere: Patton v. Coates, 41 Ark. 111; Thompson v. Ewing, 1 Brewst. 67, et seq.; Wallace v. Simpson, 4 id. 454; In re Duffy, 4 id. 531, et seq.; People v. Thacher, 55 N. Y. 525; McCrary on Elections, § 436, et seq., and cases there cited; Howard v. Cooper, Contested Elections in Congress, 1834 to 1865, p.275; Blair v. Barrett, id. 308; Knox v. Blair, id. 521; Washburn v. Voorhees, House Miscellaneous Contested Elections, 1865 to 1871, p. 54; Reid v. Julian, id. 821. Judge McCrary, in his work on Elections, uses the following language:
“Sec. 436. Although the return of the vote of a given precinct, made in due form, and signed by the proper officers, is the best evidence as to the state of the vote, yet it may be ina peached, on the ground of fraud or misconduct on the part of the officers of the election themselves, or on the part of others. In election cases, however, before a return can be set aside, there must be proof that the proceedings in the conduct of the election, or in the return of the vote, were so tainted with fraud that the truth cannot be deduced from the returns. The rule is thus stated in Howard v. Cooper, (1 Bartlett, p. 275 :) ‘When the result in any precinct has been shown to be so tainted with fraud that the truth cannot be deducible therefrom, then it should never be permitted to form a part of the canvass. The precedents, as well as the evident requirements of truth, not only sanction, but call" for, the rejection of the entire poll, when stamped with the characteristics here shown.^
“ Sec. 437. The rule just stated needs the following explanation, in order that it may be correctly understood. The committee no doubt meant to say that if the result, as shown by the returns, is tainted with fraud, the returns are to be rejected as false and worthless. But as we have elsewhere seen, the question whether the entire vote of the precinct shall be rejected for fraud, depends upon another question, viz.: Whether from any evidence it is possible to ascertain the true result. The returns may be rejected as fraudulent,, and yet the true vote may, in some cases, be ascertained, and where it can be ascertained, independently of the rejected returns, the law requires that it be respected and enforced. Where the true vote cannot be ascertained either from the returns or from evidence aliunde, the vote of the precinct is to be rejected.
“Sec. 438. The return must stand until such facts are proven as to clearly show that it is not true. When shown to be fraudulent or false, it must fall to the ground. This ruling is well settled by numerous authorities, including the following: Blair v. Barrett, 1 Bartlett, 308; Knox v. Blair, 1 Bartlett, 520; Howard v. Cooper, supra; Washburn v. Voorhees, 2 Bartlett, 54.”
It will make no difference, so far as this case is concerned, whether the vote of Syracuse township be wholly ignored, or only so much of it as is unquestionably fraudulent. In either case, the result reached must be precisely the same. In either case, no place can be considered as having received a majority of all the legal votes, and therefore no place can be considered as having become the permanent county seat of the county. We think, however, that the election in Syracuse township and the returns thereof are of such a fraudulent character that the entire vote of that township must be wholly ignored. There were not merely a few scattering illegal votes cast in that township, but a great fraud was committed therein; participated in by the judges and the clerks of the election, and by a large proportion of the inhabitants of the township. It is certain that more than two-thirds of all the votes claimed to have been polled in that township are illegal and fraudulent; and how many of the others are illegal and fraudulent cannot be ascertained with any degree of accuracy. Possibly a large number of them are. It is also certain that more votes were polled in Syracuse township for the town of Kendall thán the poll-books show; and whether there were not many other frauds committed of a similar character is left in doubt and uncertainty. The poll-books, the returns, and the canvass thereof, being so thoroughly, impeached as they have been, cannot be considered as furnishing any evidence upon these questions.' They cannot be considered as any evidence of the number of legal votes polled, nor of the place for which they were polled. ■ And there is really no competent evidence upon this subject. Everything tending to show what the honest vote in Syracuse township was, is left in uncertainty and doubt. Hence, considering the fraud perpetrated there, that vote must not and indeed cannot be counted.
A peremptory writ of mandamus will be awarded, commanding the defendants to hold their offices at Kendall, the temporary county seat of Hamilton county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Henry E. Roll, Norton Thayer, Thomas R. Williams and J. B. Welsh, partners as Roll, Thayer, Williams & Co., before a justice of the peace of Jefferson county, to recover $265.89 from J. H. Murray. At the time of the commencement of the action, an order of attachment was obtained, which was afterward levied upon certain property of the defendant. Afterward, and upon the motion of the defendant, the attachment was dissolved. The case then came on for hearing upon its merits, and judgment was rendered in favor of the plaintiffs and against the defendant for $126.55. Afterward, and within proper time, the plaintiffs filed an appeal bond, attempting to take an appeal both from the judgment of the justice upon the merits and from the order of the justice discharging the attachment; and the appeal bond was sufficient for both these purposes, if an appeal from an order of a justice of the peace discharging an attachment is allowable under the statutes. The case was then removed to the district court, and afterward the defendant moved to dismiss that portion of the appeal which had for its object the review of the order of the justice of the peace dissolving the attachment, which motion was sustained by the district court. The case was then tried upon its merits by the court, without a jury, and judgment was rendered in favor of the plaintiffs and against the defendant for $262.09 and costs; and the plaintiffs now bring the case to this court for review.
The only question presented by the plaintiffs in error to this court is whether the district court erred, or not, in dismissing'that portion of the plaintiffs’ appeal which had for its object the giving to the district court pow r to review and retry the attachment proceedings instituted before the justice of the peace.
The statutes with reference to appeals, so far as it is necessary to quote them, read as follows:
“Sec. 120. In all cases, not otherwise specially proyided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where, the judgment was rendered.
“ Sec. 121. The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party, with at least.one good aud sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned,” etc. (Justices Code, §§ 120,121.)
It will be seen that an appeal can be taken only from a “final judgment,” and the appeal can be taken only after the “judgment” has been rendered, and only within ten days after the “judgment” has been rendered, and the amount of the appeal bond must not in any case be “less than double the amount of the judgment and costs.” And when the case is taken to the district court on appeal, it “ shall be tried de novo in the district court upon the original papers on which the case was tried before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to be made or new pleadings to be filed.” (Justices Code, § 122.) There is no provision in the statutes for taking an appeal from the 01’der of a justice of the peace in any provisional remedy or in any ancillary proceeding, and no provision anywhere for retrying in the district court upon an appeal from a justice of the peace, any question that pertains only to some provisional remedy, or to some ancillary proceeding. The appeal is from a final judgment only, and from a judgment on the merits only, and the trial afterward to be had on the appeal is only upon the merits. It has already been decided by this court that an ordinary appeal bond, given by the plaintiff after a judgment has been rendered by a justice of the peace, will not carry to the district court attachment proceedings instituted in the justice’s court, where the justice has discharged the attachment, (Gates v. Sanders, 13 Kas. 411,) nor garnishment proceedings in like cases, (Brown v. Tuppeny, 24 Kas. 29,) nor attachment proceedings in like cases where the appeal is attempted to be taken before any judgment is rendered upon the merits of the case, the dissolution' of the attachment not being considered as a “final judgment,” (Butcher v. Taylor, 18 Kas. 558,) and an appeal by the defendant’from the final judgment of a justice of the peace will not carry attachment proceedings in the case to the district court, but will discharge the attachment. (St. J. & D. C. Rld. Co. v. Casey, 14 Kas. 504.)
Counsel for plaintiffs in error do not ask us to overrule any of the foregoing cases; hence we suppose they admit that an ordinary appeal bond will not carry proceedings in attachment from ajustice of the peace to the district court, nor will an appeal bond given expressly for such a purpose do so where no final judgment has yet been rendered by the justice of the peace upon the merits of the case. But their claim is that an appeal bond, executed after the attachment has been dissolved and after the final judgment has been rendered upon the merits of the case, and within ten days after the rendition of such final judgment, and executed for the express purpose of appealing from both the order discharging the attachment and the .final judgment, will carry both the case upon its merits and the attachment proceedings to the district court, where both can again be heard and determined. But suppose the attachment was dissolved more than ten days or more than fifty days before the final judgment was rendered: then-would it be claimed that it could be taken to the district court on an appeal along with the case on its merits when it could not be taken separately or by an ordinary appeal bond? In our opinion, attachment proceedings cannot be taken to the district court at all on appeal; and it therefore follows that the order and judgment of the district court are correct, and the same will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment in favor of the defendant in an action to replevin an automobile under a recorded title note.
E. C. Powell owned an automobile which he desired to exchange with the plaintiff for a new one, and went with the defendant to Salina on April 13, 1917, for the purpose of making the exchange. Powell’s personal attempt to make the trade appears to have been unsuccessful. In Salina he met G. M. Jones, the agent of the plaintiff at Wa Keeney, Powell’s home, and asked Jones to see what kind of a deal he could make with the plaintiff in exchanging the automobiles. Jones negotiated with the plaintiff for that purpose and succeeded in making an agreement that the automobiles should be exchanged and that Jones should execute to the plaintiff a title note for the difference in value between them. Jones executed such a note for $450. The note was filed for record in Trego county a few days thereafter. The car appears to have been taken away by Powell and Jones and to have been taken to Wa Keeney by them. The defendant, prior to the exchange of automobiles, had signed a note with Powell as security for him, and a verbal agreement had been made by which Kline should have a lien on an automobile then owned by Powell, probably the one traded to the plaintiff. On June 27, 1917, Powell gave to Kline a bill of sale for the new automobile, and soon thereafter with the consent of Kline drove it to Cheyenne, Wyoming. Powell there wrecked the car. He then notified the defendant to come and get it. The defendant did so, paid $137.35 for repairs on it, returned with the car to Wa Keeney about August 27, 1917, and recorded the bill of sale. The plaintiff afterward demanded of Kline the possession of the car. That possession was refused, and this action was commenced. From the instructions it may be gathered that the defendant gave a redelivery bond and retained possession of the automobile.
The jury answered special questions as follows:
“1. Was G. M. Jones the owner of the automobile sued for at the time he executed and delivered the mortgage note attached to the plaintiff’s petition? Ans. No.
“2. Did the Central Kansas Motor Company trade and deliver to E. C. Powell the automobile sued for in this action? Ans. Yes.
“3. Did G. M. Jones trade and deliver to E. C. Powell the automobile sued for in this action? Ans. No. . . .
“5. Did E. C. Powell agree to take the automobile sued for subject to a lien thereon? Ans. No.
“6. Did E. C. Powell authorize G. M. Jones to execute and deliver to the Central Kansas Motor Company a title note' of the car sued for in this action? Ans. No.
“7. When G. M. Jones executed and delivered to plaintiff the title note attached to plaintiff’s petition, was he acting for himself and in his own right, or was he acting as the agent of E. C. Powell? Ans. No evidence.
“8. At the time he' acquired the car from E. C. Powell, did the defendant have any actual knowledge that the plaintiff had a lien thereon. Ans. No.
“9. Did the defendant intend to acquire said auto from E. C. Powell free and clear from any and all incumbrances? Ans. Yes.
“10. Did the defendant, in reliance upon the clear title he' believed he was acquiring, expend money in having said auto repaired and get the same into his possession? Ans. Yes.”
The judgment deprived the plaintiff of the lien which was attempted to be retained at the time the automobile was sold. If the automobile was sold to Jones, the title note, when recorded, was a valid and subsisting lien on the automobile in the hands of all who thereafter acquired any interest in it. On the other hand if it was sold to Powell, and Jones was acting as 'an agent for Powell in the purchase of it, Powell or his agent for him should have executed the title note in order to have given the plaintiff a lien on the automobile. The plaintiff could not retain the lien b.y selling the automobile to Powell and taking a title note from Jones. It is true that the findings of the jury were in effect that the sale was made to Powell and not to Jones; the answers to the first three questions indicate that Jones was acting as the agent of Powell, but the answer to the seventh question says that there was no evidence from which to determine that fact, although the negotiations with Jones, his giving the note, and the recital in the note that “this note is given for the purchase of one- Studebaker Six serial 204749, Engine 5415” tended strongly to show that the automobile was sold to Jones and that some subsequent arrangement between Jones and Powell enabled Powell to become the owner of it. The answers are contradictory to each other and. cannot stand together.
On the trial the jury returned into court, after having retired to consider its .verdict, and asked the court concerning the effect of a judgment in favor of the plaintiff on the liability of the defendant to pay the balance of the note after deducting the amount that would be realized from the sale of the automobile. In response to that inquiry the court instructed the jury as follows :
“As has already been stated in the previous instructions given you in this case; the question which you are called upon to decide is whether, under the terms of the note attached to plaintiff’s petition, the Central Kansas Motor Company was entitled to possession of the automobile in question, at the time this suit was commenced.
“For your information, however, you are instructed that if a recovery is awarded to the plaintiff in this case, it will be entitled to possession of the automobile, and must sell the same for the purpose of paying the amount, if any, due to it upon the note attached to-plaintiff’s petition; and should the car fail to bring enough at such sale to fully satisfy the amount due plaintiff on said note, together with costs of such sale, then the plaintiff would have the right to collect from the defendant the deficiency, or the difference between the proceeds' of the sale and the amount of the principal and interest due on said note, with costs of sale. On the other hand, should the proceeds of such sale exceed the amount due on said note and costs of sale, the defendant Kline would be entitled to whatever such excess might be.”
There was no evidence to show that the defendant was liable on the note — his name did not appear on it, and there was no evidence to show that he had agreed to pay it. The instruction was erroneous and should not have been given; the defendant cannot be compelled to pay the note or any part of it. The inquiry of the jury indicated that it thought the question material, and a correct instruction should have been given.
The defendant contends that even if his possession of the automobile is wrongful, he should be subrogated to the rights of those who made repairs on it at Cheyenne. If on a new trial it should be found that the plaintiff was entitled to the possession of the automobile at the time this action was commenced, the defendant’s contention will be material. The argument of the defendant is that the parties who made the repairs had a lien on the automobile until their claim was paid, and that because he paid that claim he is entitled to be subrogated to their lien rights. The difficulty with the argument is that the defendant contracted for the repairs; that he was primarily liable for them; and that he paid for making them. The debt was his, not that of another. To entitle him to subrogation the debt must have been the debt of another. As between the defendant and Powell, the debt might have been Powell's, but as between the defendant and the plaintiff it cannot be said that the debt was the plaintiff’s. Our statute, section 6082 of the General Statutes of 1915, gives a lien to the one who makes the repairs, not to the person who procures the repairs to be made. The defendant could not have the repairs made and thereby create a lien on the automobile and then take an assignment of the claim for repairs by paying it or be subrogated to the repairman’s rights. If the plaintiff had a lien on the automobile at the time it was wrecked, the plaintiff was entitled to the possession of it at that time, and the defendant could not then take the cár and by causing repairs to be made on it create a lien in his favor superior to the rights of the plaintiff.
At present the automobile is probably of little value, and its return will not compensate the plaintiff. If the plaintiff had a lien on the automobile, he was entitled to its possession, and should have judgment for - its return or for its value at the time the defendant took possession of it with interest from that time until judgment is rendered, unless the amount of the two would exceed the amount of the note and interest. In replevin actions damages are recoverable for depreciation in the value of property wrongfully detained. (Russell v. Smith, 14 Kan. 366; Fair v. Bank, 69 Kan. 353, 76 Pac. 847; 34 Cyc. 1564; Note, 69 L. R. A. 286; Note, 30 L. R. A., n. s., 371.) If the automobile is- returned, and it has depreciated in value since it was wrecked, judgment should be rendered against the defendant for the amount of its value immediately after it was wrecked and interest thereon less its value at the time it is returned. In no event should the judgment in favor of the plaintiff exceed the amount of the note and interest.
The judgment is reversed, and a new trial is directed.
Burch and Dawson, JJ., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the plaintiff for the partition of a tract of land in which it was alleged that he owned six-sevenths of the tract and that the remaining one-seventh was owned by the defendant. Service on the defendant was obtained by publication and no appearance having been made by the defendant the case was tried, and on April 20, 1920, the court found and decreed that the land was owned in the proportions alleged, that it should be partitioned, and commissioners for that purpose were appointed. Action was taken by the commissioners who reported that the land was impartible in kind without prejudice to the parties, and appraised its value at $22,000. The report was confirmed by the court on May 4, 1920, and three days later the plaintiff elected to take the tract at the appraised value. On May 25, 1920, the court awarded the land to plaintiff on payment into court of one-seventh of the valuation, $3,142.85, for the use of the defendant, and required plaintiff to pay six-sevenths of the costs, and the defendant the -remainder. The sheriff was directed to execute a deed of the land to the plaintiff. The sum mentioned was paid into court and the deed to plaintiff was executed and delivered. On October 15, 1920, the defendant made a special appearance and moved the court to set aside the service by publication, alleging that it was unauthorized and void. The invalidity asserted was that the affidavit on which it was based fell short of the code requirements. The affidavit stated—
“That I am one of the attorneys for the plaintiff in the above entitled action and as such am authorized to make this affidavit. That plaintiff has commenced this action to have partition of the southwest quarter of section 12 and the east half of the northwest quarter of section 13-13-1 east of the 6th P. M. in Sumner county, Kansas.
“That the defendant, Birdie Rucker, is a nonresident of the state of Kansas, and is a resident of Johnson county, Texas, and her post-office address is Cleburne, Texas. The plaintiff is unable to procure personal service of summons upon the defendant and can only procure service of. summons upon her by publication.”
It is contended that the affidavit does not show that the action is one of those in which service by publication may be made, that it fails to state the interest of the defendant in the land or anything as to the title, ownership or possession of it by either party. It does allege that the action is one touching real property and asks for the partition of the same, and under the code this is one of the cases in which service by publication may be made where the defendant is a nonresident of the state. (Civ. Code, § 78.) The code, among other things, requires that the affidavit shall show that the case is one of those in which service by publication may be made. (Civ. Code, § 79.) It is not necessary to set out the interest of the several parties or to show that a cause of action exists against the defendant. It is enough to state the statutory foundations for service by publication ; that is, to state in general terms that the action is one relating to real estate, and that the defendant is a nonresident of the state, or that the plaintiff cannot by due diligence obtain service upon him within the state. (Gillespie v. Thomas, 23 Kan. 138; Sharp v. McColm, 79 Kan. 772, 101 Pac. 659; Harvey v. Harvey, 85 Kan. 689, 118 Pac. 1038.)
Defendant insists that the affidavit was defective in failing to state that the plaintiff was unable to procure personal service on the defendant “within this state.” It is alleged that the defendant is a nonresident of Kansas, and is a resident of Cleburne, Tex., and that therefore personal service of a summons cannot be procured. It is not necessary that the statutory language be employed in the affidavit, but other terms conveying the same meaning may be used. The terms used in the affidavit are the equivalent of the expression that service of summons could not be had upon the defendant in this state. We conclude that the affidavit substantially contains the requirements of the statute and that the publication notice was sufficient.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Delbert Young was prosecuted for the killing of his brother, Claude Young. He was convicted of murder in the second degree, and appeals.
The circumstances of the homicide, as related by the defendant, his testimony being largely corroborated by that of his wife and Alice Swabby, a niece of the brothers, were substantially. as follows:
For four years thé defendant and the deceased, Claude Young, had had some trouble which was more or less connected with the possession of a quarter section of land belonging to the niece referred to and controlled by her guardian, she being but 14 years of age. The defendant had at one time occupied the land, but gave it up on notice that Claude had procured a lease from the guardian. The south portion of this tract was in wheat, the north being used as a pasture, separated from the cultivated ground by a fence. The defendant lived on an adjacent quarter. On the morning of the tragedy he left his home in a carriage accompanied by his wife, his niece, and six children, the oldest nine years of age. His purpose was to look at the wheat field, in which the niece was interested in virtue of her ownership of the land, and also to see if there were any ducks in a pond a little north of the pasture on the adjoining quarter. As the party were on the highway they were passed by Claude on horseback going in the other direction toward his home on a neighboring tract. The defendant drove west along the south side of the wheat field and north along the west side, entering the pasture through a gate at its southwest corner. He drove far enough northeast to see that there were no ducks on the pond and had turned around to drive west along the south fence of the pasture to reach the highway again when Claude, still on the horse, overtook him (having entered the enclosure from a gate near the southeast corner) and rode alongside the carriage to the north or left of it. Claude, who was the larger and stronger man, after calling the defendant a vile name, and ordering him to get off the place, struck at him several times and tried to drag him out of the carriage as he rode by its side, tearing the buttons from the defendant’s coat in doing so. The attack continued until the gate was reached. There Claude stopped and dismounted. The defendant drove south along the highway about seventy-five or a hundred feet, possibly further, and stopped, got out of the carriage, took from it and loaded a shotgun which he had brought along to shoot ducks, went back a little ways — he could not say how far, not as much as fifty feet — toward his brother, and told him to ride on around and go on. The defendant then stepped backward to a place by the side of the carriage near the left rear wheel. Claude rode up and undertook to go around him, and when just east of him attempted to strike him with a hammer held in his right hand. Just as he did so the defendant stooped and threw up the gun. The hammer held by Claude struck the gun and it exploded, blowing a portion of the skull from the back of the head on the right side, and causing practically instant death. The gun became disconnected, the barrels separating from the stock. The defendant at the trial did not know whether he had pulled the trigger or not. He did not at any time admit that he intentionally discharged the gun, but it was obvious that as he testified he had in mind the theory of self-defense as well as that of accidental homicide. The defendant’s wife gave testimony to this effect: After the defendant got out of the carriage the team went on; she also got out and went back to the gate, where the two brothers were, and asked her husband to come on home. He said he would not until Claude went on around. Urged by her, however, the defendant walked with her about half way to the carriage, when Claude remounted and shortly followed them, overtaking the defendant hear the carriage.
Alice Swabby, who lived with the defendant’s family, testified that her sympathies were with him in his controversy with his brother; that at the time of the homicide she heard another noise (obviously meaning that of the hammer striking the gun) as loud as the report of the discharge, which followed it almost immediately.
The state had but little direct evidence with which to refute the defendant’s story. A witness who saw a part of what took place just before the killing from a distance of three-quarters of a mile gave a version contradicting that of the defendant in some important particulars, especially in that he was confident the defendant’s wife did not get out of the carriage, and his estimate of the distance the defendant had driven before getting out and starting toward his brother exceeded that of the defendant. The widow of the deceased testified that she knew what kind of hammers he and his people used about the premises, and she did not recognize a hammer which was found leaning against his body as any they had ever had. A man who had passed Claude on the road shortly before the encounter saw no.hammer. Mutual threats between the brothers were shown.
The foregoing statement of the evidence, while not complete, is doubtless sufficient to show the bearing of the rulings of the trial court of which complaint is made.
Complaint is made of a ruling permitting the wife of the deceased to testify that when he left home on his horse on the day of the homicide he took with him a galvanized bucket; that she asked him where he was going and he said he was taking the bucket over to empty the cattle tank (presumably the one in the pasture referred to) — to bail it out.' We regard the evidence as clearly admissible as tending to explain the act in which the speaker was engaged. (The State v. Pearce, 87 Kan. 457, 124 Pac. 814, annotated on this point in Ann. Cas. 1913E, 358.) Moreover the ground of the objection appears to be merely that the evidence does not come within any rule making it admissible. No way is suggested .and none is apparent in which even if that were the case it could have prejudiced the defendant. The defendant’s wife when testifying in his behalf said that she saw Claude riding toward the pasture carrying such a bucket on his saddle, so the fact that he had it may be regarded as established. There is nothing in the record to suggest that Claude left his home with any expectation of finding the defendant on the Alice Swabby land, or of meeting him. He was apparently returning home from that tract when he first met the defendant and his family in the carriage. Probably the defendant’s theory is that evidence that the deceased said he was going to the pasture and was taking the bucket to bail out the tank had some tendency to show that he was not engaged in an errand requiring the taking along of a hammer, the question whether he had such an implement with him being one of the controverted matters. Neither the admitted fact that he carried the bucket nor that fact coupled with the assumption that he carried it to bail out the tank could have had any substantial tendency to show that he might not also have had some other errand, for instance— as the defendant suggests in his brief — to repair a fence or building. And as is justly said in the defendant’s brief the admitted facts showed that at the time Claude first met the defendant and his family driving in the carriage “he had already done what he told his wife he was going to do and had fully completed that transaction.”
The defendant contends that the jury were coerced into returning the verdict by the conduct of the judge. The case was given to the jury on Friday. At 4:45 p. m. the next day the jury were returned to the courtroom and proceedings were had which are thus stated in the record:
“By the Court: Gentlemen of the jury, we desire to learn whether there is any probability of an agreement of the jurors on a verdict?
“By the Foreman: Your Honor., we have not arrived at a decision but I have reason to believe that we are not far off.
“By the Court: You believe there is a prospect of an agreement?
“By the Foreman: I have reason to believe we are not far off.
“By the Court: We would not want to put this county to the expense of trying this case over again if there is any possibility of its being decided'by the jury. I suppose you gentlemen all want to go home over Sunday anyway. I will not make you work on Sunday, but I want to admonish you gentlemen not to talk about this case while you are separated. It has come to me that parties have been talking about this case in the presence of the jury where they have congregated. If anything of that kind has happened it is wrong, and if you jurors happen to hear anybody talking about it, you go away from the men who are talking in your hearing. If people try to talk in your hearing tell them that you are a juror and not to talk in your hearing about it. That is very important, gentlemen. It might happen that after you got a verdict and after all this time has been spent and the expense the county has been to in trying this case, that it would have to be tried all over, and I don’t believe any of you want that to be done. You are all tax payers and interested in the business affairs of your county, and things of that kind might make it necessary to try the case all over, and for that reason I hope you will be very careful not to talk about it among yourselves nor let any one else talk to you about it or in your hearing even if you have to get up and go away from some one who might persist in talking about it. If you find a bunch of people together talking about it, get away from them and do not hear it talked about. And reserve your final conclusion until you are again assembled in your jury room. We will take a recess until Monday morning at ten o’clock, or as soon as the train gets in from the south on the Rock Island. Some of you might have occasion to come in on that train and that is the train I will be in on, and as soon as that train gets in court will convene immediately upon the arrival of that train.
“By Mr. Banta [one of the defendant’s attorneys]: Your Honor, the Court pardon me, it isn’t quite five o’clock and the foreman announces that the jury is about to agree, and I would suggest that they be sent ■out again.
“By the Court: My train goes in twenty-five minutes,—
“By Mr. Banta: Well, then,—
“By the Court: I know exactly what I am calculating on doing and I know when my train goes and all about it. I haven’t got time to send this jury out again.
“By the Court: Gentlemen of the Jury, do you think if you had fifteen minutes time you might reach an agreement or not?
“By the Foreman: Well, I couldn’t say as to that.
“By the Court: You think there would he any prospect of an agreement in the next fifteen minutes if I gave you that much time?
“By the Foreman: I wouldn’t want to say that but I will state what I said before that I have reason to believe we aren’t far from a decision.
“By the Court: Well, I will give you time for another ballot, gentlemen. You may retire to your jury room and take another ballot, but I want to catch my train. You may retire to your jury room and take another ballot and see if you can come any nearer getting together. I would like mighty well to have it decided tonight if possible.
“By Mr. Banta: (as jury leaves jury box) Now, if the Court please, I want the record to show that we object to the wish of the Court as expressed to the jury that a verdict be reached prior to the Court’s leaving.
“By the Court: All right.”
At 4:54 of the same day the jury returned a verdict of guilty ■of murder in the second degree. It must be presumed that the considerations which led the judge to adhere to his plan of taking the train instead of remaining to receive the verdict if it should be reached on Saturday evening were of such importance as to justify the course he took. This court cannot undertake to condemn his action in that regard — especially when it is without information as to the circumstances by which it may have been affected. For the court to tell the jury that unless an agreement is reached by a specified time at which the absence of the judge is to become necessary they will be permitted to separate over Sunday, with directions to return Monday morning, does not amount to coercion either in reason or under decisions in similar cases. (16 R. C. L. 298, citing notes in Ann. Cas. 1912D, 450 and 1915D, 677.) The request for a fúrther opportunity to reach a verdict in the short time that was available before the arrival of the train came from the defendant’s counsel. Even after the judge had distinctly stated his purpose of adhering to his plan of taking the train no objection was made to sending the jury out again. Apart from this, however, we see no basis for holding that error was committed. It is suggested in behalf of the defendant that the jury were sent out merely to take another ballot — not to deliberate. The trial court is not to be held to so literal an interpretation of the words used. As intelligent men the jurors must have understood the situation and known that they were at liberty to judge for themselves how much additional deliberation should precede the ballot, if they saw fit to take one.
The only remaining ground upon which a reversal is asked is the omission of the court to give an instruction permitting a verdict of manslaughter in the second degree under the statute reading as follows:
“Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.” (Gen. Stat. 1915, § 3378.)
Instructions were given that a conviction might be had of murder in the first or second degree or of manslaughter in the third or fourth degree. No instruction was asked concerning manslaughter in the second degree. If the testimony of the defendant is true his brother Claude was killed in the very act of striking at him with the hammer — while the defendant was-resisting an attempt to murder him, or at all events to perpetrate a felony upon him, and before such attempt had failed. This court has held that the section quoted has no application to such a situation — that it can apply only where the felonious attempt has ceased. (The State v. McCarty, 54 Kan. 52, 36 Pac. 338.) And that is the interpretation placed upon the statute in the state from which Kansas adopted it. (State v. Harper, 149 Mo. 514, 527.) The original enactment in some other jurisdiction, from which the section was obviously derived, undoubtedly contained the word “or” before the phrase “after such attempt shall have failed,” for the section appeared for some time in that form in the statutes of New York.. (See for instance 3 Revised Statutes of New York, 5th ed., p. 940, § 11.) But the word “or” in this place was never included in the Missouri or Kansas act. If the testimony of the defendant was true he killed his brother in resisting an attempt to murder him or at least to commit a felony upon him, and (as the court properly instructed) in that case the homicide was justifiable. (Gen. Stat. 1915, § 3370.) There could have been no purpose in telling the jury that acts which the law held to be innocent might constitute manslaughter in the second degree. It is true the jury might have disbelieved the story told by the defendant and have found a mitigation of the offense from facts, the existence of which they inferred even although he had testified to the contrary. (The State v. Jackett, 81 Kan. 168, 105 Pac. 689.) But if by any possibility the evidence was capable of such interpretation as to warrant the giving of an instruction concerning manslaughter in the second degree that aspect of the matter was latent and not patent. Therefore no complaint can be made of the omission to instruct on the subject unless the attention of the court was called to the subject by a request to do so. (The State v. Winters, 81 Kan. 414, 105 Pac. 516; The State v. McCarty, supra; The State v. Davidson, 109 Kan. 13, 197 Pac. 1104.) In the defendant’s brief it is said that “the defendant makes two defenses, one justifiable homicide and the other accidental homicide caused by the act of the deceased himself.” If at the trial it did not occur to the defendant’s counsel that the evidence warranted an instruction concerning second degree manslaughter they cannot reasonably contend that such an issue was obviously involved, and that the court erred in overlooking it. And if they did have it in mind their failure to call the attention of the trial court to it precludes them from pressing the objection now.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action, the plaintiff seeks to compel the specific performance of a contract for the conveyance of real property. Judgment was rendered in favor of the defendant, Thomas M. Keegan; he was permitted to retain $1,000 that had been paid as a part of the purchase price for the land, and his title thereto was quieted. The plaintiff appeals.
The contract, which was in writing, provided that in consideration of the payment of $4,800, the property should be conveyed by Thomas M. Keegan to the plaintiff. One thousand dollars of that amount was paid at the time the contract was signed, November 25, 1919, and was to be forfeited at the option of Thomas M. Keegan and be retained by him in full satisfaction- and liquidation of all damages sustained by him in -the event that the plaintiff failed to comply with the contract. The transaction was to be completed March 1, 1920, by the plaintiff paying $1,800 and giving a mortgage on the land for $2,000. Keegan was to execute a warranty deed conveying the land to the plaintiff, and the deed was to be placed in escrow until the plaintiff complied with his part of the contract. An abstract of the title was to be furnished by Keegan showing a good and merchantable title. Time was made the -essence of the contract. A deed, dated March 1, 1920, was signed by Thomas M. Keegan and his wife and was placed in escrow about the time the contract was executed. An abstract of the title was furnished by Thomas M. Keegan to the plaintiff, but there was delay in furnishing it. The plaintiff received it on or before February 3, 1920. Objection was made that it had not been brought down to date. The plaintiff did not return it to Thomas M. Keegan, but sent it direct to an abstractor to be brought down tó date and wrote Keegan that the cost thereof would be charged to the latter’s account. The continuation was made, and the abstract was returned to the plaintiff, but instead of examining it for himself to ascertain its condition and the condition of the title, he sent it to either a person in Nebraska who was purchasing the land from the plaintiff, or to that person’s attorney. The abstract was then examined by the attorney for that purchaser, objections were made to it, and a new abstract was demanded about February 13, 1920. The plaintiff on February 18, 1920, notified Thomas M. Keegan that the abstract had been examined by the plaintiff’s attorney who had made certain objections to it and had demanded a new abstract, and further notified the defendant that a new abstract had been ordered. One was made and was received by the plaintiff not later than March 1, 1920. The new abstract was sent for examination to the attorney for the person to whom the plaintiff was selling the land. No objection was made to the title shown by it. It seems to have been approved, but not. until March 15, 1920. The plaintiff did not make an examination of the abstract for himself, but based his approval on the report of the attorney for the purchaser. The $1,800 was not paid, and the mortgage for $2,000 was not given. On March 10, 1920, Thomas M. Keegan wrote the plaintiff rescinding the contract for its nonfulfillment and stated that the money held by him was forfeited by the plaintiff. On March 25, 1920, this action was commenced and $1,800 was paid into court by the plaintiff for the defendant.
It is argued that the $1,000 paid was a penalty and not liquidated damages, and that all Thomas M. Keegan could retain or recover was the actual damage sustained by him. This question has been decided a number of times by this court. In Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409, this coürt said:
“The obligors in a bond for a deed to real estate, upon default by the obligee, are entitled to a decree canceling the contract and quieting their title,’ without first returning to the obligee the amount paid by him on the contract of sale.” (Syl. ¶ 1.)
To the same effect is Hillyard v. Banchor, 85 Kan. 516, 118 Pac. 67, where this court said:
“It is a general rule that a purchaser of land who has made an advance payment and then failed to fulfill his contract without default on the part of the vendor cannot recover the amount so paid.” (Syl. ¶ 4.)
Also in Cue v. Johnson, 73 Kan. 558, 85 Pac. 598, this court said:
“Courts abhor forfeitures, and will resort to any reasonable rule of construction to avoid them. But when in a contract for the sale of real estate it is stipulated that time shall he of the essence of the agreement, and a forfeiture upon default is provided for, such contract will he upheld and enforced, unless under the circumstances shown it would be grossly inequitable.” (Syl. ¶ 1.)
(See, also, National Land Co. v. Perry, 23 Kan. 140; Nason v. Patten, 88 Kan. 472, 473, 129 Pac. 138; Long v. Clark, 90 Kan. 535, 135 Pac. 673; Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923; Wensler v. Tilke, 97 Kan. 567, 155 Pac. 946.)
The plaintiff'himself undertook to meet the objections to the abstract by obtaining first an extension of the one furnished by Keegan and then by procuring a new one. When he undertook to satisfy the objections to the abstract, the delay in having the old one brought down to date, in obtaining the new one and in having them examined, was the delay of the plaintiff and not that of Thomas M. Keegan. The plaintiff had the right to call on Keegan for a sufficient abstract, and if one had then not been furnished in time, the delay would have been that of Keegan and not that of the plaintiff. The delay in examining the abstracts by the attorney for the purchaser in Nebraska was likewise that of the plaintiff and not that of Keegan. After the plaintiff undertook to satisfy the objections to the abstract, he had ample time in which to'make an examination thereof and have all corrections made, if he had made that examination for himself.'
As one excuse for not making payment at the time named in the contract, plaintiff urges that the abstract furnished by the defendant was in such condition that the title could not be ascertained therefrom. The abstract was introduced in evidence, and the court by a general finding determined that it complied with the contract. This brings the question within the rule often declared by this court that where, from the evidence, different tainds may reasonably come to different conclusions, the findings of the triers of fact are conclusive. The abstract has been filed in this court, and after an examination of it, the* court is not able to say that the finding of the trial court was erroneous.
Another objection to the abstract furnished by Keegan is that it did not show that the seals of the notaries public had been attached to the conveyances acknowledged by such officers. In response to this, it is urged that this defect did not render the title unmarketable, for the reason that the instruments abstracted had been recorded for more than ten years at the time the abstract was furnished. Sections 2082, 2083, and 2084 of the General Statutes of 1915 are cited. Section 2084 in part reads:
“When any instrument of writing shall have been on record in the office of the register of deeds in the proper county for the period of ten years, and there is a defect in such instrument ... in the execution, acknowledgment, recording or certificate of recording the same, such instrument shall, from and after the expiration of ten years from the filing thereof for record, be valid as though such instrument had, in the first instance, been in all respects duly executed, acknowledged, and certified, and such instrument shall, after the expiration of ten years from the filing of the same for record, impart to subsequent purchasers, incumbrancers and all other persons whomsoever, notice of such instrument of writing so far as and to the same extent that the same may then be recorded, copied, or noted in such books of record.”
The statute provides that such an instrument, or the record of it, shall be competent evidence. -
The plaintiff contends that—
“In the case at bar no tender of an abstract was pleaded nor was any excuse for a failure to do so either pleaded or proven.”
It has been shown that an abstract-was furnished. The answer and cross-petition of Thomas M. Keegan contained the following:
“This defendant says that he has performed upon his part all and and. everything which he was to do and perform \mder and by virtue of said written agreement.”
This was a sufficient allegation of tendering an abstract. This contention of the plaintiff cannot be upheld.
There was another objection to the abstract furnished by Thomas M. Keegan, but that objection is not discussed in the briefs and will not be further noticed.
It does not appear that any error was committed by the trial court, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a foreclosure proceeding. A promissory note was executed August 14, 1907, by William F. Messner, Charles Messner and Augusta Messner, for $1,050, payable five years after date to J. G. Petgen, and a mortgage of the same date on land in Kansas was executed to secure it. Both were executed in Missouri. Petgen died in 1915, and the note and mortgage were assigned to Timmonds who was also a resident of Missouri. On July 10, 1919, the action of foreclosure was begun, the plaintiff alleging the execution of the note, the assignments to plaintiff, that the makers and payee were residents of Missouri when the papers were made, and that the statute of limitations of Missouri was ten years from the maturity of the notes. On publication notice a default judgment was rendered on the note and mortgage in the district court of Greeley county. The land was sold under the judgment on October 6, 1919, subject to a six months’ equity of redemption. On March 27, 1920, a motion was made by the children and heirs of Charles Messner, who had previously died, to open up the judgment, and William F. Messner subsequently joined in this motion. An answer to the petition was filed alleging that the action was barred by the statute of limitations of Kansas. At the same time upon the application of the defendants,, a restraining order was issued to prevent the sheriff from executing a deed. Upon a motion of plaintiff the restraining order was dissolved on July 19, 1920. The court at that time granted permission to the defendants to file an amended answer which was immediately filed and in which they alleged that the action was barred by the statute of Colorado. Among other things it was alleged that Charles Messner died in Colorado before the maturity of the note; that William F. and Augusta Messner were residents of Colorado at the maturity of the note; that under the laws of Colorado an action is barred in six years after maturity; and that more than six years had elapsed before the action was begun, and therefore the bar of Colorado had run. There was also a claim that the action was not brought in the name of the real party in interest. At the trial the burden of proof was placed upon the defendants. There was evidence to the effect that William F. Messner was a resident of Colorado when the note matured; that Charles and Augusta Messner moved from Missouri to Colorado in 1908 and resided there until he died on April 24, 1912, about four months before the maturity of the note; and that Augusta lived in Colorado until 1913, when she moved to Minnesota, and died there in 1917. There was testimony that no money was paid on the note to J. G. Petgen after August 14, 1912, nor for a long time before that. A witness testified that he was acquainted with the laws of Colorado and that under those laws the limitation upon a promissory note is fixed at six years from maturity, or from the last payment on the note, and that the statute is not tolled by absence from the state. The defense mainly relied upon was the statute of limitations. The debt matured on August 14, 1912, and the action was not begun until more than seven years after that time. While the note and mortgage were executed in Missouri by residents of that state, and the payee also resided there, the makers, it appears, resided in Colorado when the note "matured'and when a cause of action thereon arose. It is immaterial where the note was executed, as the law of the state in which the makers resided when the cause of action arose controls. (Bruner v. Martin, 76 Kan. 862, 93 Pac. 165; Land Co. v. Bassett, 85 Kan. 48, 116 Pac. 475.) Nor does the fact that land was mortgaged as security for the payment of the note affect the starting or running of the statute of limitations. The mortgage is only an incident of the note and when the note is barred, the mortgage is likewise barred. (Schmucker v. Sibert, 18, Kan. 104; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118.) As the cause of action arose in Colorado and as the statute of that state prescribed a limitation of six years on obligations of the character in suit, the bar of the statute had fallen before the action was brought únless absence of the makers from the state tolled the statute. It appears that William F. Messner and Augusta Messner did go to Minnesota about a year after £he cause of action arose and under the rule of our statute, if it were applicable, their absence would have stopped the running of the statute. However, all of the testimony offered on the subject was to the effect that under the laws of Colorado absence from the state does not interrupt the running of the statute, and the court cannot read an exception into it. Under section 21 of the civil code, where a cause of action arises in another state between nonresidents of this state and is barred by the laws of the state under which it arose, no action can be maintained thereon in this state.
As to Charles Messner who died just before the cause of action accrued, it was shown that he had lived in Colorado for a number of years and that no administration of his estate was had. His death would suspend the statute, but only for a brief time. It has been held that the suspension would only be for such a, period as would afford the creditor an opportunity to have an administrator appointed. The law of Colorado re speeting the appointment of an administrator was not shown and therefore if must be presumed to be the same as our own. The plaintiff could not extend the period of limitation by delay in taking appropriate action to secure the appointment of an administrator for the estate of the deceased debtor, and as this may be accomplished in about fifty days, it is clear that the bar must have fallen as to his estate and to those claiming under him. (Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051; Kulp v. Kulp, supra; Black v. Elliott, 63 Kan. 211, 65 Pac. 215; Brown v. Baxter, 77 Kan. 97, 94 Pac. 155; Crow v. Hartzler, 103 Kan. 800, 176 Pac. 651; Bauserman v. Blunt, 147 U. S. 647.)
It is further contended by the plaintiff, that the evidence was insufficient to establish the defense that was made, and particularly as to an affidavit of William F. Messner which was used as a deposition. It is said that the affidavit should not have been received or considered because the requirements of section 350 of the civil code as to service of the same were not followed. It was served upon an attorney in the office of the attorney of record, who acknowledged the service of it as an attorney for the plaintiff. Shortly afterwards a motion was filed in the case signed in the partnership name as attorneys for plaintiff, which included the name of the attorney who acknowledged service of the notice. The day following the filing of the affidavit the attorney, signing the acknowledgment of service, served a notice upon the person who made the service and who had no connection with the case as party or attorney, that plaintiff desired to cross-examine the affiant. No cross-examination was had but the affidavit was received. The record does not show a specific objection to the affidavit, but it does recite that at the opening of the defense an objection was made to the introduction of any testimony on the part of the defendants for the. reason that the facts alleged did not 'constitute a meritorious defense to plaintiff’s claim. It is stated in the journal entry that the court reserved its decision on the objection made and proceeded with the trial of the case. No further reference is made to the objection, but it is recited that the court after hearing the evidence of both parties, proceeded to render judgment in favor of the plaintiff. The evidence was certainly brought before the court. No application was after- wards made to strike it out. Evidently it was given consideration by the court. Even if the general objection made at the opening of the defense covered the objection now insisted on as to the admission of the affidavit, which may well be doubted, the plaintiff did not bring the matter again to the attention of the court, and has not presented a cross appeal from the ruling receiving the evidence or for failing to sustain his objection to the evidence. It must therefore be treated as evidence in the case as it was treated in the trial court.
Upon the evidence in the record the court was not warranted in upholding the default judgment which had been opened up or in confirming the proceedings taken under that judgment. The judgment rendered will therefore be reversed, and the cause remanded for further proceedings in accordance with the opinion expressed herein. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs appeal from a judgment sustaining a demurrer to their petition. Briefly summarized, the petition alleged that on June 23, 1919, a petition for the improvement of a road, under chapter 246 of the Laws of 1919, was filed with the board of county commissioners of Montgomery county; that the petition was granted July 7, 1919;. that notice to landowners was published as required by law immediately thereafter; that request was. made for Federal aid; that delay occurred; that about April 6, 1921, the commissioners caused to be republished the resolutions and proceedings of the board adopting the petition; that arrangements were made for preliminary surveys; and that the board determined to construct the road by day labor, and immediately proceeded to build the road. The petition, filed May 18, 1921, further alleged that the road petition was not signed by the requisite number of legally qualified petitioners; that the signers did not represent the requisite proportion of the land within the district; and that the commissioners did not examine the petition to ascertain whether the petitioners were qualified, or whether they owned the requisite amount of land. The petition contained other allegations attacking the legality of the road petition, and alleged that the illegalities “were and are the substantial equivalent to fraud.” The demurrer set out as one of its grounds that the cause of action sought to be pleaded was barred by the limitation contained in section 1 of chapter 246 of the Laws of 1919. The questions presented are, did the petition show on its face that the cause of action therein alleged was barred by the statute named; could the question of the statute of limitations be raised by demurrer; and did the delay that occurred between the time the petition was originally granted and the commencement of construction deprive the board of county commissioners of power to build'the road under the road petition that had been filed and the order that had been made.-
Section 1 of chapter 246 of the Laws of 1919 provides that—
“No action shall be brought to restrain the making of such improvements, or payment therefor, or levy of taxes or special assessments or issuance of bonds therefor, on the grounds of any illegality in said petition, or in any proceedings prior to said order, or in said order, unless such action be commenced within thirty days after the date of said order.”
By this statute the action was barred at the time it was commenced, under numerous decisions of this court, some of which are Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299; Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Wyandotte County v. Haskell, 97 Kan. 304, 154 Pac. 1029; Park Association v. City of Hutchinson, 102 Kan. 488, 171 Pac. 2. In these actions the validity of proceedings by cities ordering public improvement therein was sought to be contested. There can be no difference between such actions and those to contest proceedings by a board of county commissioners for the improvement of public roads, where they are governed by a similar statute of limitations.
The plaintiffs rely on Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5, where it was said that—
“A cause of action is stated in a petition which alleges that the petition to the hoard of county commissioners did not have the requisite number of signatures, that it was signed by persons not bona fide owners of property in the designated district, and that the commissioners made no investigation of the sufficiency of the petition, but without evidence of its legality and its sufficiency and in disregard of their official obligation and duty, arbitrarily ordered the improvement of the road.” (Syl. ¶9.)
In that case there was no question about any. statute of limitations; the board of county commissioners there proceeded under chapter 201 of the Laws of 1909, which did not prescribe any limitation concerning the time within which an action should be brought.
The plaintiffs further seek to avoid the consequences of the limitation prescribed by the law of 1919 by arguing that the irregularities alleged do not charge illegalities in the road petition, or in any proceeding prior to the order, or in the order made by the county commissioners. The allegations of the plaintiffs’ petition, if true, would render the road petition illegal — an illegality in the petition. Ascertaining the qualification and sufficiency of the road petitioners was necessarily a proceeding prior to the order, and the failure of the commissioners to make such an examination entered into the order. It follows that the allegations of the petition of the plaintiffs brought the action within the provision of that part of the law, that has been quoted.
The plaintiffs urge that the two-year statute of limitations governing actions for relief on the ground of fraud controls. The statute of limitations provides that—
“Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.” (Civ. Code, § 14.)
This section provides that the general statute of limitations shall not apply where by statute a different limitation is prescribed. ' Here, a different limitation is prescribed, and it must control.
The plaintiffs urge that the question of the statute of limitations should have been raised by answer. In Zane v. Zane, 5 Kan. 134, it was said:
“A petition that shows upon its face that the cause of action is barred by the statute of limitations does not state facts sufficient to constitute a cause of action.” (Syl. ¶ 1. See, also, Walker v. Fleming, 37 Kan. 171, 14 Pac. 470; Chellis v. Coble, 37 Kan. 558, 15 Pac. 505; Rice v. Moore, 48 Kan. 590, 30 Pac. 10; Perry v. Robertson, 96 Kan. 96, 150 Pac. 223; 25 Cyc. 1397.)
There was delay in building the road, caused by endeavoring to secure Federal aid in its construction. Some time must elapse after a petition for the construction of such a road has been granted before work can be commenced, and before it can be completed. The statute does not say when the work shall begin nor when it shall be finished. There is nothing in the petition to show that the commissioners had lost jurisdiction over the matter; nothing to show that the project was ever abandoned; and nothing to show that the commissioners were not, during all the time, in good faith, attempting to secure the construction of the road.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to foreclose a purchase-money mortgage upon a tract of land in Norton county. The execution of the note and mortgage was not denied, but defendant claimed that the covenants of the warranty deed given to him had been broken by reason of which he had sustained damages to the amount of $3,000, and he asked that this, amount be awarded as a credit on the claim of the plaintiff. A. demurrer to the defendant’s answer and cross-petition was sustained and he appeals.
In his pleading he conceded that the amount claimed by plaintiff on the note and mortgage was due, but he alleged that he was entitled to a credit on that amount to the extent of the damages sustained because the plaintiff did not have full title to the land conveyed to him. He pleaded that in 1878 the title stood in Wm. B. Landis who then died intestate, leaving surviving him his father and mother, that the father died during that year, and that afterwards on September 17, 1878, the surviving mother, assuming to have the complete title, conveyed the land to John A. Bowman, from whom, by a regular chain of conveyances the plaintiff acquired the title'; but it was alleged that the father of Wm. B. Landis had heirs to whom his share of the estate descended and that the mother’s deed conveyed but a three-fourths interest in the land, the other one-fourth descending to the heirs of the father, who it is alleged died leaving issue. The defendant further alleged that in July, 1918, he brought a proceeding to quiet his title to the land and obtained a judgment decreeing that he was the absolute and unqualified owner of it, quieting the title thereto in him as against the Landis heirs and other defendants named in that action. He set out the proceedings and added that the decree quieting the title is void, but fails to point out in what the invalidity consisted. He further, stated in his answer and cross-petition that he has never been disturbed in his possession of the land and never has offered to rescind the transfer or re-convey the land to plaintiff. The defendant stated that, he suffered damages because of the defect in the title in that a loan he negotiated upon the land in 1917 was defeated when the party making the loan discovered the defect in the title and refused to complete the loan; also, that he sustained other damage in this, that he sold five acres of the land for $100 an acre, but the purchaser, noticing the defect, refused to complete the purchase, and that since that time the land had, depreciated in value to $30 an acre.
On this pleading the trial court held that the defendant had stated no defense or cause of action against the plaintiff. It is contended that by reason of the alleged outstanding interest the covenant-of seizin was broken when made, regardless of the fact that the plaintiff or any of his grantors had not been disturbed in the possession of the land. In a sense the covenant of seizin is broken when made, but the possession of the defendant, as we have seen, has never been challenged, and no adverse claim of ownership has ever been made. According to his pleading there was at most only a technical breach for which he could not recover substantial damages so long as he remained in the undisturbed possession of the land covered by the covenant. (Hammerslough v. Hackett, 48 Kan. 700, 29 Pac. 1079; 17 L. R. A., n. s., 1188.) Assuming that there was a real outstanding interest in the heirs of the father of Landis, the warranty deed of the mother, purporting' to convey a complete title with exclusive possession, was executed in 1878, more than forty years ago. If there was a defect, it was one which might be cured by adverse possession, lapse of time and by estoppel. A claim of an outstanding title would ordinarily be barred by continuous possession in fifteen years. According to the averments in the answer and cross-petition, the possession delivered with the warranty deed of 1878 has never been interrupted and no hostile assertion‘of title made as against any of the subsequent grantees. The original grantor was in exclusive possession claiming complete title, and that possession has been uninterruptedly held by the intervening owners up to the present time without claim or question. Defendant acquired his title eleven years ago and no one has made any claim of possession or ownership of an interest in the land as against him. In his action to quiet title he alleged that he was the owner of the full legal title, and that he and the previous grantors had been in continuous, actual and undisputed adverse possession for more than thirty years, and that any claim of title by others was utterly null and void. By his own allegations he holds the complete title — one not subject to successful attack by any claimant under Landis. More than that, any defect in the title would have been cured by the pleaded decree obtained by plaintiff quieting his title. He avers that the decree was invalid by reason of unnamed defective procedure, but the defects, if any, were such as could be cured by amendment. Without that decree, there was no disseizin — no breach of the covenant upon which he can base a recovery of damages.
The judgment sustaining plaintiff’s demurrer to defendant’s answer and cross-petition is correct, and is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In an action begun December 6, 1917, Christian Vonfeldt obtained a decree quieting title to a quarter section of land and Mrs. William Sehneidewind and Bernard McNiff appeal. As against the appellants the plaintiff’s title rests upon possession for fifteen years and the question in controversy is whether such possession as to them was adverse.
The land was originally owned by John McNiff and Owen McNiff. John McNiff died intestate and his half interest passed to his widow, Bridget McNiff, and their five children, two of whom are the appellants. Bridget McNiff thereby became the owner of a one-fourth interest and each child of a one-twentieth interest. Owen McNiff conveyed his interest to David McNiff, who conveyed it to Bridget McNiff, whose interest was thereby increased to three-fourths. The title stood in this condition' until Bridget McNiff and her three children other than the appellants united in a deed to Mrs. M. Dowler and Hiram Russell, which was executed November 30, 1900, and recorded January 7, 1901. Possession has been held ever since under that deed, the rights of the grantees through a series of conveyances having passed to the plaintiff June 30, 1917. The correctness of the judgment turns principally upon whether the deed to Mrs. M. Dowler and Hiram Russell, in which the appellants did not join, is to be construed as purporting to convey the full title to the land. The deed, which was executed in Illinois, read:
“This indenture, made this 15th day of November, a. d. 1900, between Catherine Monohan, a widow, Margaret A. McNiff, single, Ellen McNiff, single, and Bridget McNiff, a widow, sole and only heirs of John McNiff, deceased, and of Will county in the state of Illinois, of the first part, and Mrs. M. Dowler and Hiram Russell, of Ellis county in the state of Kansas, of the second part,
“Witnesseth, That the said parties of the first part in consideration of the sum of Twelve Hundred ...... and ...... dollars, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell and convey unto said parties of the second part, their heirs and assigns, all the following described real estate, situated in the county of Ellis and state of Kansas, to wit :
“The northeast quarter of section No. nineteen (19) in township No. twelve (12) south of range No. nineteen (19) west of the 6th P. M. containing one hundred and sixty acres (160).
“To have and to hold the same, together with all and singular the tenements and appurtenances thereunto belonging or in anywise appertaining, and said parties of the first part for themselves, their heirs, executors or administrators do hereby covenant, promise and agree to and with said parties of the second part, that at the delivery of these presents they are lawfully seized of a full interest in the above-described premises, and that they will warrant and defend their said interest therein to the said parties of the second part, their heirs and assigns, against the lawful demands of all persons claiming under or through said parties of the first part.”
Possession by one' of several cotenants is not ordinarily adverse as to the others. But by the great weight of authority a grantee of such a cotenant by a deed purporting to convey a full title is presumed to claim all that his deed calls for and therefore to hold adversely to the other coowners. (2 C. J. 185; 2 Ene. L. & P. 493; 1 R. C. L. 743, note 16.) The deed in question recites specifically that the grantors were the sole and only heirs of John McNiff, and the granting clause describes the land itself and not a mere interest in it. If the recital were true the deed would necessarily pass a complete title. The conveyance therefore explicitly undertook to vest full ownership in the grantees, and its terms were such as to advise the heirs who did not join in its execution that occupancy taken under it was hostile to their claims. It is true that the covenant of title and warranty refers to “a full interest” instead of thaffull title, but we do not regard this ambiguous expression as sufficient to detract from the force of the unequivocal recital of exclusive heirship. Covenants of title and warranty are generally given weight in determining whether a deed is to be interpreted as assuming to pass a full title, upon the ground that the willingness of the grantor to enter into them is calculated to encourage the grantee to believe that no one else has an interest in the property (Note, 109 A. S. R. 611), although the editor of the note cited expresses the view (p. 612) that there can be no substantial difference in this regard between a conveyance with and one without covenants for title. A mere quitclaim which neither expressly nor by implication asserts full ownership in the grantor of course stands upon a different footing. It follows that possession taken under the deed in question was adverse to the appellants.
The appellants contend that there was no sufficient evidence to support a finding of possession by the plaintiff and his predecessors in interest for a period of fifteen years. One witness testified that to his knowledge it had been continuously in possession of and farmed by claimants under the deed referred to since 1900; that during that time 110 acres of it had been cultivated and the remainder under fence. The plaintiff testified that when Hiram Russell and Mrs. Dowler bought the land they did the breaking. His testimony as a whole was somewhat ambiguous, but the net effect was a matter for the determination of the trial court. After the evidence was all in the judge remarked that it warranted the court “in holding that open and notorious possession from and after that date in 1909 quiets the title.” It is probable that the year 1909 was mentioned by inadvertence instead of 1900 (the year the deed quoted from was made). In any event however this obviously casual utterance cannot overcome the express finding incorporated in the judgment “that plaintiff and his immediate grantors have been in the open, notorious and exclusive possession of the real estate described herein for more than fifteen years last past,” and the implied finding that such possession had continued for at least fifteen years when the action was brought.
It is contended that the plaintiff had no standing to maintain the action because at the time it was brought he had merely a contract for the title, his deed not having been recorded until 1919. We need not determine whether the plaintiff would have been qualified to bring the action before acquiring the legal title, for there was evidence that the land was deeded to him June 30, 1917, and he said he obtained the deed in October or November of that year. There being nothing to indicate the contrary it must be assumed that the court properly found that the plaintiff was the owner of the farm when he filed the petition.
Complaint is made of the admission of incompetent evidence, but as the judgment does not appear to have been influenced by it and the case was tried without a jury, the error, if any, is not a ground of reversal.
The plaintiff’s immediate grantor made an effort to procure a quitclaim from one of the appellants, but as this took place after he had conveyed to the plaintiff and more than fifteen years from the record of the deed to Mrs. Dowler and Russell, it had no bearing upon the question of adverse possession; nor do we understand that the appellants rely upon it in that connection.
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The opinion of the court was delivered by
Mason, J.:
The Goodyear Tire & Rubber Company, of Akron, Ohio, held a trade acceptance — in effect a draft — for $1,364.50, on Poell Brothers, of Hanover, Kan., which was sent for collection to the Hanover State Bank, of that place. On May 13, 1920, the bank presented the draft to Poell Brothers, who gave in exchange for it their check upon the bank, where they carried a checking account sufficient to meet it, the bank having more than enough cash on hand for the purpose. The check was at once charged to the account of Poell Brothers, and the bank mailed its cashier’s check for the amount to a bank in Chicago through which the collection had been received.. On May 17, 1920, and before the cashier’s check in the usual course of business had been presented to the Hanover State Bank for payment, that bank was closed, being taken charge of by Dugald Spence, a deputy bank commissioner, who was afterwards appointed receiver. The rubber company brought this action against the Hanover State Bank and its receiver, asking that the receiver be adjudged to hold the amount of such draft (less a remittance charge) in trust for it, and that its claim be given preference over those of ordinary creditors. On an agreed statement of facts judgment was rendered declaring it to be a general creditor only, and it appeals. •
The parties agree upon the test by which the matter is to be' determined: In order for the plaintiff to have a preferred claim upon the estate in the hands of the receiver it must appear that the proceeds of the check in some form reached his hands, and that the assets brought under his control were larger by that amount than they would otherwise have been. While there has been much difference of judicial opinion on the subject, some of which still remains, that is now the generally accepted view (3 R. C. L. 638; 26 R. C. L. 1355; Notes, L. R. A. 1916C, 21, L. R. A. 1917F, 603), and the one adopted in this state. (Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68, and cases there cited.) The present controversy turns upon the application to be made of that test.
When the bank was closed it had $6,971.95 in cash and its books showed $54,444.58 in sight exchange, the actual amount being less than that, but in excess of fifty per cent of it. If Poell Brothers, instead of paying the draft upon them by check, had used currency for the purpose there can be no doubt that the receiver would hold the amount in trust for the plaintiff, for the total of cash or its equivalent which came into his hands would necessarily or at all events presumptively have been that much larger by reason of such payment. The court is of the opinion that the rule applies that where a payment to a bank is made by a check drawn thereon the result is the same as though the depositor had presented his check, received- the money over the counter, and then used it in making the payment. That rule has often been announced. (Washbon v. Bank, 87 Kan. 698, 125 Pac. 17; 2 Morse on Banks and Banking, 5th ed., § 451, and cases cited in note.) In Bank v. Bank, 62 Kan. 788, 64 Pac. 634, a situation was presented having at least some analogy to that now under consideration. There a bank which soon after failed, held for collection a check on another bank in the same town which it used in effecting the daily clearing between the two banks, paying the difference in cash. The owner of the check sued to have his claim given a preference. The receiver urged that the failing bank had used the check merely to pay its .indebtedness and therefor the estate to be administered had not been increased. His contention was denied, the court holding that the transaction involved what was in effect the collection of the check in cash.
The court is also of the opinion that the effect of Poell Brothers .giving the bank their check in exchange for the draft upon them was the same as though they had drawn out the money at some other time, and for some other purpose, but had used it for paying the claim against them. It follows from these views that the money belonging to the plaintiff must be regarded as having passed into the hands of the receiver, increasing by that amount the assets to be administered by him, and that the plaintiff is entitled to reclaim it as a trust fund.
The judgment is reversed and the cause remanded with directions to render judgment for the plaintiff, giving it preference over general creditors. | [
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The opinion of the court was delivered by
Dawson J.:
The state challenges the assumption of official powers, by the defendants who are the members of the school board of a newly created consolidated school district in Pawnee county. The state contends that the act under which this district was organized is void, and that the elections held, in some of the common-school districts for the purpose of voting to organize this consolidated district were vitiated by electioneering misconduct on the part of the county superintendent. Judgment ousting the defendants from the exercise of official powers is prayed for.
The defendants plead that the district was organized early this year, that the district school elections on the proposition to consolidate were duly held, that the consolidation was duly sanctioned by the requisite majorities, and that the defendants were regularly elected as the members of the school board for the new district. They deny that the county superintendent was guilty of any electioneering misconduct, but to avoid the necessity of taking evidence on that matter they raise the point that such misconduct on her part would not vitiate the election.
The principal point raised by the state depends upon the validity of chapter' 275 of the Session Laws of 1911, under which the consolidated district was erected. Prior to its enactment, the law creating union or consolidated districts was governed by the provisions of chapter 305 of the Session Laws of 1901, which appears as sections 7431-7438 of the General Statutes of 1909. The title to the act of 1901 reads:
“An act to provide for the voluntary disorganization and consolidation of adjacent school districts and the transportation of pupils to and from school and to provide for the ownership of certain property.”
The act provides a method by which the voters of two or more common-school districts may consolidate their school territories into one district for the purpose of conducting a graded school — that is, a school of more elaborate curriculum, better equipment, more and better trained teachers, better grading and classification of pupils, etc. Such a consolidation of districts may be effected by a majority vote at elections called by the clerks of the common-school districts affected. Provision is made for the payment of the indebtedness of the districts, and for the disposition of their property, and for the election of a school board for the new district. The act covers other pertinent details.
In 1903, another act was passed (chapter 429) providing for the attachment of any common-school district to a consolidated district. The act also contains certain pertinent details all embodied in one section. It appears as section 7439 of the General Statutes of 1909.
Except as these acts are or may be affected directly or by implication by the act of 1911, they are still in effect.
Plaintiff contends that the title to the act of 1911 (chapter 275) violates section 16 of article 2 of the constitution which provides:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.”
The title of the act of 1911 reads:
“An act to provide for the voluntary disorganization and consolidation of school districts to provide for the transportation of pupils and to amend sections 7431, 7432, 7436 and 7439 of the General Statutes of 1909.”
It will be noted that this title avows its purpose to provide for the voluntary consolidation of school districts, etc., and to amend certain sections of statutes, three of these being' part of the act of 1901 and one being the act of 1908. In the body of the act itself, the legislation starts off abruptly as if there was no antecedent legislation on the subject of common-school consolidation. It sets about its purpose as in .the case of an independent matter of constructive legislation. An examination of the subject matter does show that section 1 largely supersedes and abrogates section 1 of the act of 1901. So, too, section 2 of the act of 1911 largely supersedes the act of 1903. In neither of these sections of the later act, however, is the usual method of amending earlier legislation followed. To expressly amend the earlier act, the proper method would be to begin thus: “Section 1 of chapter 305 of the Session Laws of 1901 is amended to read as follows,” or “Section 7431 of the General Statutes of 1909 is amended to read as follows”; and such introductory language would be followed by a complete rewriting of the old section, not as it had read theretofore but as the legislature desired that it should thereafter read. The title to the act avows a purpose to amend certain sections of the acts of 1901 and 1903. But it is only insofar as the crude and careless draftsmanship of the act of 1911 may amend these sections by implication that there are any amendments to the earlier legislation discoverable in the later act. The only direct reference in the act of 1911 to these earlier sections is in section 5, and there it only names them to declare their repeal. Such repealing sections appearing at the conclusion of an independent act of legislation, and such familiar language as “all acts and parts of acts in conflict herewith are hereby repealed” do not have much significance. (Wichita v. Telephone Co., 70 Kan. 441, 78 Pac. 886.) It is always the case that all sections of prior statutes and all acts and parts .of acts in conflict with the latest expression of the legislative will are repealed whether that latest expression of legislative will takes pains to say so or not. Sometimes the later legislation does not altogether repeal the earlier, but it always does so far as any conflict exists; and it often becomes an interesting judicial question whether earlier legislation which is partially superseded by a later independent enactment in which the provisions of the earlier act are completely ignored is so far emasculated that it serves no further apparent legislative purpose or whether there is still a field in which it can and should operate notwithstanding the later legislation. (Elliott v. Lochnane and others, 1 Kan. 126; Bank v. Reilly, 97 Kan. 817, 828, 156 Pac. 747.)
In Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030, the court had to consider an act wherein the legislature of 1915 expressly undertook to repeal one item of $384.60 in a section of an act of 1913 carrying one hundred and ten such items. That was the express and only purpose of the act of 1915. Such a mode of legislation was the same as if the legislature had said, “Section 1 of the act of 1913 is hereby amended by striking out four lines near the middle of said section.”. The court said that the only way to effectively remove that item from section 1 of the act of 1913 was for the legislature of 1915 to rewrite and reenact section 1, omitting the objectionable item therefrom. But in the same opinion (page 318) it was recognized that when the legislature is dealing independently with any subject, “it may close its eyes, and frequently does, to all earlier legislation,” and that such later legislation is valid, and that the earlier legislation so far as inconsistent therewith will be superseded and repealed thereby.
The title of the act of 1911 is altogether sufficient to clearly express its main purpose which is to provide for the voluntary disorganization and consolidation of school districts, and to provide for the transportation of pupils. The concluding words of the title “and to amend sections 7431, 7432, 7436 and 7439 of the General Statutes of 1909,” are either superfluous or clearly erroneous. These words are superfluous if they relate to the independent constructive legislation contained in the act of 1911, because if the sections of the older acts named in the title are inconsistent with the later act, the later act did repeal them; and if not inconsistent they are certainly not amended, although the title declares such purpose, because the text of the act does not purport to amend them. In this latter view of the matter, the defect in the act of 1911 is only subject to the objection that the title of the act is broader than its subject matter, and this is seldom a fatal objection. It is not fatal here. A very possible explanation of the defect is that the title contains a mere verbal inaccuracy, a literal inadvertence; that what the blundering draftsman intended was that the concluding words of the .title should read not to amend but to repeal the sections named in the title. (Brook v. Blue Mound, 61 Kan. 184, 59 Pac. 273; Reese v. Hammond, 94 Kan. 459, 461, 146 Pac. 997.) This view is strengthened by section 5 of the act, which specifically repeals the sections which the title declares its purpose to amend. If it were necessary to adopt that view, it might follow that since the title avows a purpose to amend those sections, and in the text of the act they are not amended but repealed, section 5 of the act of 1911 declaring their repeal is invalid, but if so, that would not destroy the other provisions of the act of 1911.
We have no greater regard for such poor legislative workmanship than counsel for the state, but we cannot go to the extent of declaring that the act of 1911 is void. It certainly does not offend against the constitutional provision that the title shall clearly express the purpose of the act (Art. 2, § 16) except as to section 5, and that matter is not material to the validity of the organization of this consolidated school district, nor to the validity of the official power of these defendants.
Touching the alleged misconduct of the county superintendent, but which is positively denied by the defendants, it will not be necessary to take evidence to determine the truth of these matters alleged by plaintiff. We will assume that those allegations are true, and that the superintendent promised some of the electors; that if they would vote for the proposed consolidation1 she would take steps to alter the boundaries of the new district so as to exclude their properties therefrom, and that she promised that the old schoolhouses should not be disposed of for a year. The law governs the disposition of the schoolhouse properties, and the county superintendent has nothing to do with the disposition of such property. So far as her promises to alter the boundaries of the new district were concerned, it does not appear that the later exclusion of the properties of some of the voters of the old district would not be proper. Perhaps by reason of distance or other hardship, inconvenience or injustice that might fall upon certain individuals who were inclined to oppose the consolidation, they .and their properties ought to be excluded from the new district and attached elsewhere. It is not alleged that these promises of the superintendent were made in secret; what the superintendent did was “not done in a corner”; the superintendent was doubtless prompted by an ambition to accomplish something which she considered worth while for the schools of Pawnee county during her administration; and so she promised to do what she lawfully could for the relief of those voters whose peculiar situation prompted them to take a tentative stand against what the superintendent believed to be the best-educational interests of the locality. This is very far outside of any of the forms of corruption which would vitiate an election. (Board of Education v. Shepherd, 90 Kan. 628, 634, 135 Pac. 605.) Obviously the county superintendent had no personal, corrupt or reprehensible interest in what she did or in what she promised. Whether her electioneering endeavors were worthy of the object she sought — whether a modern consolidated school is worth the effort of labor and persistence and sacrifice of its advocates and promoters to attain, against the lethargic indifference or obstructive attitude of those who are temperamentally or selfishly opposed to progress or opposed to change, it cannot be said that the conduct of the county superintendent nor the methods she used to induce electors to support the proposed consolidation vitiated the elections. See discussions in slightly analogous cases in The State v. Elting, 29 Kan. 397; Plaster Co. v. Blue Rapids Township, 77 Kan. 580, 96 Pac. 68; and note in 14 L. R. A. 62.
A judgment of buster will be denied, and judgment will be entered for defendants. | [
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The opinion of the court was delivered by
Porter, J.:
The case involves the construction of the last will of John J. Johnson, deceased, who died in April, 1911, leaving surviving him his widow, Arabella Johnson, and their only child, Howard Johnson, who is the appellant. The material provisions of the will read:
“I devise and bequeath all my real estate, wherever it may be, unto M. J. Coolbaugh, Jr., of Stockton, Kansas, or to his successors, for the following trusts and purposes,
“I direct that my said wife, Arabella, under the advice of my above mentioned trustee, or his successor, shall have the income from my real estate, or so much as may be necessary for her support and maintenance during her life, and at her death, I direct that the income from my said real estate shall go to my said son, Howard, during his life, and at his death, said real estate to descend to my legal heirs under the laws of Kansas. In ease I shall outlive my said wife, then I direct that the income from said real estate shall go to my said son, Howard, during his lifetime, and at his death said real estate to descend as last above mentioned.
“It is hereby expressly directed that in the provisions above made, where my said real estate after the death of my said son, Howard, shall go to my legal heirs under the laws of Kansas, in case my said son, Howard, shall have children, said real estate shall remain in said trust and not go to them in fee until twenty years after the death of my said son, Howard.”
The will was duly probated, and the widow elected to take under its provisions, and M. J. Coolbaugh, jr., qualified as trustee. The widow died in 1916. The appellant, who is now 38 years of age and has one child, brought this action in ejectment and claims that the title to the real estate vested in him on the death of his father, subject to a life use in Arabella Johnson, and that upon her death the'fee title vested in him. Appellant concedes that during the life of Arabella Johnson, the trustee had active duties to perform in the collection' of •the income and in determining what was necessary for the support and maintenance of the widow, but contends that upon her death the trust became a mere dry or passive one, which became executed by the statute of uses. (Gen. Stat. 1915, § 11686.) The statute provides that:
“A conveyance or devise of lands to a trustee whose title is nominal only, and who has no power of disposition or management of such lands, is void as to the trustee, and shall be deemed a direct conveyance or devise to the beneficiary.”
The will devises all the real estate to the trustee or his successors, “for the following trusts and purposes,” and then directs that the widow, under the advice of the trustee or his successor, shall have the income from the real estate or so much as may be necessary for her support and maintenance during her life; at her death he directs that the income shall go to his son, Howard. The appellant is given no right to the possession or the control of the real estate, nor any interest in it except to receive the net annual income thereof upon the death of his mother and during his lifetime. The will directs that the real estate shall, upon the death of the appellant, descend to the legal heirs of the testator, with a further proviso that in case appellant should have children born to him, the estate shall, at his death, descend to them but the real estate shall remain in the trust for twenty years after the death of appellant and then go to his children.
There can be no doubt that by the terms of this will an active trust is created which, upon certain contingencies, cannot be fully executed until the time fixed for distribution, which may be twenty years after the death of appellant. Every contention raised by him is fully met by the opinion in the recent ease of Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884. There the testator directed that his real and personal property should be held in trust for his four grandchildren or the survivors of them during their natural lifetime, they to receive only the net income of the property held in trust until each became of age when its respective share was to be paid to it. Upon the death of the last survivor of the grandchildren, all the estate held in trust was to be divided between the heirs of the grandchildren being the issue of their bodies. The will was held to create an active trust which was not fully executed until the grandchildren attained their majority. In the opinion it was said:
“The testator did not devise his property directly to his grandchildren. He devised it to a trustee, not alone for their benefit but also for the purpose of holding the title, collecting the income, paying the taxes, conserving the property, and paying to the grandchildren the net income as annuities, during their lifetime; and at their death — not before — di viding the property among the heirs of their bodies. Of course, whether they shall have such heirs or not, the time set for the performance of the active duties of the trustee shall then expire; and even if there should be failure of such heirs the properties will then be freed of the trust and pass unrestrained to the next taker according to the statute of descents and distributions. The will does not create an estate tail which may be broken by a conveyance. To do so it would have been necessary that the will should devise directly and without restricting qualifications a life estate in each of the grandchildren with remainder over to the heirs of their bodies in allodial fee. (Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 131; Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280.) But here the estate was devised in trust, with active duties imposed on a trustee which cannot be fully executed until the death of the last surviving grandchild of the testator.” (p. 400.)
In that case it was held to be the design of the testator that the principal of his estate should be kept intact by the trustee until the time specified for its distribution. It was said in the opinion:
“Since such design is clear and it violates no rule of Kansas law, that design, that intention, governs the rights and duties of the trustee, the rights of the plaintiffs, the rights of the next takers, and it governs the courts as well. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Markham v. Waterman, 105 Kan. 93, 181 Pac. 621.)” (p. 402.)
In the present case the appellant is not concerned with the question of where the title vested or when it vested, since by the express terms of the will it was never, upon any condition, to vest in him.
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The opinion of the court was delivered by
Mason, J.:
In an action involving the foreclosure of several real-estate mortgages W. D. McDaniel obtained a personal judgment against John Y/. and Mary Lederbrand. The mortgaged property was sold at sheriff’s sale but did not bring enough to pay all the liens. More than five years after the judgment was rendered, but less than six, McDaniel filed a motion to revive the personal judgment against the Lederbrands. The motion was overruled, and he appeals.
McDaniel claims that the record shows that his personal judgment remains unpaid to the extent of substantially $284.75 and that it should have been revived as an obligation for that amount. The Lederbrands contend that the hearing was had upon evidence which has not been presented to this court and that the presumption must be indulged that upon a sufficient showing the trial court found that the whole of the judgment had been paid, either from the proceeds of the sale of the land, or otherwise.
In 1909 the Lederbrands executed to John H. O’Roke a note for $4,500 secured by a first mortgage on a section of land. In 1911 J. I. Hilton and wife executed to D. H. Spencer a note for $1,600 secured by a mortgage on the north half of the sec tion. In 1912 the Lederbrands executed to McDaniel a note for $1,000, secured by a mortgage on the south half of the section. O’Roke sued to foreclose his lien, making the other mortgagees parties. On April 21, 1913, judgment was rendered giving O’Roke a first lien upon the whole section for $5,022.66, bearing 6 per cent interest from that date. McDaniel was given a second lien upon the south half, with a personal judgment against the Lederbrands for $1,108, bearing 10 per cent interest. And Spencer was given a second lien on the north half, with a personal judgment against the Hiltons for $1,939.50, bearing 10 per cent interest. On June 10, 1913, the property was sold by the sheriff to McDaniel, the north half for $3,000 and the south half for $3,400, the money being paid into court,- and the sale being confirmed on the same day. The motion for a revivor was filed August 10, 1918.
The decree of foreclosure directed the proceeds of the sale' to be applied first to the costs, which appear to have amounted to $88, then to the payment of the lien under the first mortgage, which, disregarding interest, amounted to $5,022.66, and that the remainder should be brought into, court to abide it's further order. McDaniel assumes that one-half of the first lien, or about $2,511, and one-half of the costs, or $44, was paid out of the proceeds of the sale of each half section, leaving from the $3,400 which was bid and paid for the south half, $845 to apply on his judgment of $1,108, reducing the portion thereof still owing him to $263. If interest were included in the computation the amount would doubtless be raised to that claimed by him.
The entry of the court’s order contains a recital that evidence was introduced at the hearing of the motion for a revivor and the abstract does not disclose what that evidence was. In this situation no reversal can be had unless it should be clear that no evidence could have been produced to defeat McDaniel’s claim. Leaving out of account the possibility that any balance of the judgment may have been paid from some other source, it is not certain that the proceeds of the sale, properly applied, were not sufficient to meet the entire amount. The appellant assumes that one-half of the first lien upon the whole section was paid out of the $3,000 for which the north 320-acre tract was sold and the other half out of the $3,400 .realized on the remainder of the section. This assumption is not warranted. There may have been equitable reasons for a different apportionment. The files of the district court'have been examined by us for the purpose of learning whether they contained anything conclusively establishing the appellant’s claim, but they show no order concerning the distribution of the proceeds of the sale in excess of the costs and the first lien, nor do they indicate what the actual distribution was. There being no ■record, so far at least as this court is advised, of the disposition of a fund which was large enough, if applied to that purpose, to cancel the judgment, we are unable to say that error was committed in the refusal to order its revivor.
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The opinion of the court was delivered by
West, J.:
The automobile insurance company appeals from a judgment of the district court of Douglas county holding it liable on a policy covering a car owned by the plaintiff, which was stolen, the contention being that he had sold it to his father-in-law who used it for jitney purposes in violation of a provisión in the policy that any change of ownership or its use for livery or transportation of passengers should terminate the policy.
Complaint is made of an instruction to the effect that the company, having relied on a change of title, could not be heard to claim as another defense the use of the car for carrying passengers. In this instruction the court said:
“Now, if Mr. Wood permitted his father-in-law to use this car for family purposes, and his father-in-law, without the consent or knowledge of Mr. Wood, engaged the car in carrying passengers for hire, that would not invalidate the policy as against Mr. Wood. In other words, in order to invalidate this policy as to Mr. Wood for that reason, it must be devoted to the carrying of passengers for hire by Mr. Wood or by someone else with his knowledge and consent.”
The answer set out a copy of the policy and alleged that both of the provisions referred to had been violated. The court also told the jury that if with the full knowledge of the defense that the car had been used for passenger purposes the company based its refusal to pay upon another reason than this, then the law precluded it from setting up such former matter as a defense.
“I say, if they chose to put their defense upon another ground with the full knowledge of the existence of this ground, then when the company is afterwards sued it will not be permitted to set up a defense that it did not insist upon before the suit was commenced.”
Counsel complain that this tended to mislead the jury and call attention to a letter dated October 13, 1909, in which the company’s agent stated that after considering the claim very carefully they advised that payment must be refused—
“First for the reason that ownership by completed sale to Mr. Leffler, and second for the reason that the policy was void the moment the car became used for the purpose of carrying passengers for hire.”
The plaintiff’s brief sets out a letter of October 17 in which the assistant manager stated:
“We have made a thorough investigation of this matter. . . . Our position is, as we believe you have already been advised, that your policy terminated by reason of a change of interest or ownership in that car and that consequently we are not liable for this loss. . . . Our objection is more substantial than that and that is that one of the fundamental provisions of the policy was violated and moreover that at the time the loss occurred no policy was in effect by reason of its previous termination.”
As to the first of these instructions, the defendant claims that error was committed for the reason that the use of the car by the father-in-law for carrying passengers avoided the policy whether the plaintiff knew it or not. Counsel for the plaintiff says in his brief:
“Suppose the instructions concerning knowledge of use of the ear had been different? The appellant had no right to assert this defense under its own evidence and the law of the matter, so they have lost nothing.”
But we find nothing inconsistent in the two letters referred to and nothing which amounts to an estoppel upon the company to claim the benefit of either of the defenses of a change of title or a prohibited use of the car. The first letter states the two reasons, and defendant’s brief quotes the provision of the policy which covers both change of title and use as a jitney and says that “payment was refused by it [the company] on the ground that it violated a provision of the policy which in substance is as follows” (quoting the two provisions).
It is urged that the testimony did not show a change of title but there was sufficient evidence from which the jury might have concluded that the title had changed. The father-in-law had made three payments of $25 each, and had taken out a license in his own name to carry passengers and set forth a sworn statement therefor that he had bought the car from the plaintiff; that it was delivered to him and that full understanding was had that he was to pay for it at the rate of $25 a month.
The plaintiff cites Commercial Union Assur. Co. of London v. Hill, (Tex. Civ. App.) 167 S. W. 1095. There, however, the only evidence of the breach of the clause against carrying pas sengers was that on two or three afternoons during the fair the plaintiff’s son used the ear, without, his father’s knowledge, for carrying passengers for hire to and from the fairgrounds. The court said that the clause was intended to mean that the' owner should not make a business of using the car for hire, and that it was evidently never contemplated that the casual use of it as made in this instance would work a forfeiture. Here, the father-in-law testified that he used the car mostly for family amusement—
“And sometimes, of course, I hauled some passengers back' and forth, morning and night. Of course, I worked twelve hours a day, and I haven’t lost a day in three years. I didn’t make a regular business of it, but—
“Q. But, you did use it for that purpose, mornings and evenings? A. Not altogether, but once in a while — once in a while I would make a trip.”
This evidence, together with the fact of having taken out a license, puts the case in a different attitude from the one considered by the Texas court.
While insurance of automobiles against loss by theft is of recent origin, the principles applicable to fire insurance were considered in Morgan v. Insurance Co., 104 Kan. 383, 179 Pac. 330, and former decisions on the question were therein cited, and within the spirit and logic of that decision there was sufficient evidence of a change of title and of passenger use to compel the holding that the instructions complained of were erroneous in the respects pointed out. The company insured a car to be owned by Mr. Wood — one not to be used for carrying passengers. The change of ownership would, of course, end the contract of insurance. Devoting the car to use as a jitney would have the same effect although Mr. Wood were in ignorance of such use. (19 Cyc. 727.) Insuring property against loss by fire or theft is accomplished by contract, and as in other transactions the terms agreed on must be observed.
The father-in-law’s statement is sufficient to show passenger use, and the judgment is reversed with instructions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note. The verdict and judgment were for the defendant, and the plaintiff appeals.
The defendant was engaged in merchandising at New Cambria, and the note was given to Lyon-Taylor Company, in connection with an order relating to conduct of a piano contest, to increase his sales. The order was taken by an agent of Lyon-Taylor Company, and was subject to approval by the company. It expressly provided it should not be subject to rescission, but should stand as given on the day it was dated. The note and order were written on a single sheet of paper, each one being signed separately. The sheet was perforated, so that the note might be detached. The order authorized Lyon-Taylor Company to detach the note when the order was accepted. When detached, the note was a negotiable instrument. The note was detached, and was negotiated to a holder in due course, from whom the plaintiff acquired it.
The answer contained several defenses. Execution of the note was denied in one part of the answer, but was admitted in another part, and at the trial the defendant testified he signed the note. Fraud in procuring .the note was pleaded. There was no evidence to sustain the charge, and it was not submitted to the jury. The answer contained nothing else of importance, except the following:
“Defendant avers that after having executed said combined instrument and after having delivered the same, he discovered that it was a fraudulent scheme, illegal and contrary to public policy, and that upon said discovery he notified the said Lyon-Taylor Company that he would not be bound thereby, and directed them not to send said piano and silverware mentioned in said combined instrument.”
The court either overruled or disregarded the contention that the note was void, and submitted the case to the jury on the theory it was an enforceable instrument. There was no cross appeal, and there is no contention in this court that the note, or the scheme in connection with which it was given, was illegal or contrary to public policy.
The court instructed the jury to the following effect: The order might be withdrawn before acceptance by Lyon-Taylor Company; if withdrawn before acceptance, the note would be considered in law as an unexecuted and undelivered instrument ; if the order were not withdrawn before acceptance,, the plaintiff might recover, provided he were a holder in due course. There was no issue tendered by the answer respecting withdrawal of the order before acceptance. The answer was that the defendant discovered the scheme was fraudulent, illegal and contrary to public policy, and that, on making the discovery, he notified Lyon-Taylor Company, not that the order was withdrawn, but that he would not be bound. The instructions not only had no reference to any issue made by the pleading, but had no evidence to support them. The order was given on June 2. Lyon-Taylor Company’s manager testified it was accepted on June 16. The defendant testified he withdrew the order on June 12, by a letter written and mailed that day. The letter and envelope were produced. The letter was dated at New Cambria on June 12, but the envelope showed it was mailed at Salina on June 18. The letter said trade was dull, the weather was dry, crops were failures, the defendant had been obliged to give a chattel mortgage on his property, commercial agents would not give him a good send-off, and he would like if the company would just cancel and return the contract. Lyon-Taylor Company was not told the order was withdrawn. On June 21 the defendant was notified by letter that the order had been accepted and filled. On June 28 he wrote Lyon-Taylor Company,a letter which said nothing whatever about withdrawal of the order, but which took the position stated in the answer.
Since there was no defense to the note, it is not of the slightest consequence whether or not the plaintiff is a holder in due course.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the plaintiff. ° | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a bank check. The plaintiff prevailed, and the defendant appeals.
The check was dated November 2,1918, and was signed “The Thomas Lyons Co., by R. F. Lowry.” The petition .alleged Lowry was agent of the defendant, duly authorized to sign and deliver the check. The answer denied agency of Lowry and his authority to sign and deliver the check. Lowry was a broom-corn buyer, residing at Liberal, Kan., who did business on his own account as R. F. Lowry & Co. and as the Liberal Broom Corn Co. The defendant employed Lowry to purchase broom corn for it, and armed him with a Thomas Lyons Company book of numbered blank checks with which to pay for what he bought. About October 5, Lowry agreed to buy three carloads of broom corn from the plaintiff. The broom corn was delivered on November 2, and the check was issued to pay for it. There was much evidence that Lowry’s authority to act-for the defendant was revoked about October 15, that he was ordered to send in his check book, and that on November 2 he was without any authority to issue the check sued on. There was much evidence to the contrary, and a finding either way would be well supported.
When making his case in chief the plaintiff was asked this question: “Q. You may answer this question by yes or no. Did you know who Mr. Lowry represented in buying this broom corn of you?” Over objection the plaintiff answered “Yes, sir.” When called as a witness in rebuttal, the plaintiff testified over objection as follows :
“Q. At the time you contracted with Mr. Lowry, did you know that’ he was buying broom corn in that territory for The Thomas Lyons Company of Areola, 111.? A. I did.”
Extended cross-examination developed'the fact that'the actual source of the plaintiff’s information respecting Lowry’s agency was Lowry himself, who told the plaintiff he was buying for The Thomas Lyons Company. It is said the testimony was improperly received, because agency may not be proved by declarations of the person to whom agency is attributed. The testimony was not offered' to prove -agency. Lowry’s agency was proved directly by other testimony, and his agency at the time he first negotiated with the plaintiff was admitted by the general agent of the defendant who appointed him. The testimony objected to was offered to prove the plaintiff’s knowledge that Lowry was the defendant’s agent, and if, while Lowry was agent for the defendant, he communicated the fact to the plaintiff, the plaintiff then had knowledge of it.
Standing alone, some of the plaintiff’s answers to questions propounded to him on cross-examination would indicate he was dealing with Lowry personally; but his testimony as a whole made it sufficiently clear he was selling to Lowry as the defendant’s broom-corn buyer in that territory. Some evidence that when the plaintiff contracted to sell the broom corn he knew Lowry was generally reputed to be the defendant’s broom-corn buyer, was improperly received, but was of no consequence, because Lowry was the defendant’s agent at that time. Lowry’s agency to buy broom com, and authority to pay for it with the defendant’s check, were proved for the plaintiff by Lowry, not by his acts and declarations, but by his testimony relating to his appointment and authority. His appointment and authority were not evidenced by writing, and it is elementary law that he was qualified to testify to the facts which constituted him agent of the defendant to do the things which he did.
The court instructed the jury as follows:
“No. 6. The agency of the said K. F. Lowry to write checks upon the defendant being conceded by the parties, it is presumed to have continued, unless the contrary is shown by a preponderance of the evidence, and the burden of proof is upon the defendant to show by a preponderance of the evidence that the agency and authority of the said Lowry to write checks on the defendant was terminated prior to the time the check sued on was issued and delivered by the said Lowry, if-you find that it was so issued and delivered to the plaintiff.”
It is said authority to issue checks after October 15 was not conceded,' and the burden rested on the plaintiff to prove authority possessed by Lowry on November 2 to issue the check of that date. The conceded authority referred to in the instruction related to time previous to the claimed termination of agency on October 15. The agency on which the plaintiff relied was agency to buy, pay for and accept delivery of broom corn on behalf of the defendant. Agency of that character not only existed before October 15, but it had been exercised in purchasing and paying for much broom corn. Between September 20 and October 15 Lowry used sixteen checks from the book from which the check sued on was taken, and a purchase of broom com from the plaintiff had been initiated. In such cases the presumption is that agency continues until notice of revocation (2 C. J. 920, §§ 650, 651), and in this instance the burden of overcoming the presumption and of establishing termination of authority to complete the initiated sale, necessarily rested on the defendant. The plaintiff testified he had no notice of any interruption of Lowry’s agency, and the defendant offered no evidence of any kind of notice of revocation.
The plaintiff was a broom-corn broker. There was some evidence that when Lowry was sent out to buy broom corn for the defendant, he was told to buy of farmers and to keep away from the towns. An instruction was given to cover the subject of secret limitations on apparent general authority, which was proper for that purpose. The instruction referred to notice of revocation of Lowry’s authority, and it is said the plaintiff was not entitled to such notice, because he had not, before the transaction under consideration, dealt with Lowry as the defendant’s agent or received from Lowry any Thomas Lyons Company check. On October 5 Lowry was the defendant’s agent, and the plaintiff, knowing him to be the defendant’s agent, had dealt with him as such. This subject was covered by an instruction which reads as follows:
“No. 8. You are further instructed that the law makes a principal liable on contracts made after the revocation of the authority of an agent, between the agent and third persons who have theretofore dealt with the agent as such, or who had knowledge of such agency prior to its revocation, unless notice of such revocation of agency was given to such third person, but this rule does not apply to persons who are not shown by the evidence to have had knowledge of the agency or previous dealings with the agent as such, and no notice of revocation of the agency is necessary to be given to such persons.”
No complaint is made of this instruction, which conforms to the statement of principle found in 2 C. J. 539, § 165.
It is said the evidence disclosed that the plaintiff is not the real party in interest. This subject was submitted to the jury by an instruction not complained of, and the finding against the defendant embraced in the general verdict accords with what appears to be the weight of the evidence. Other criticisms of the proceedings are not deemed of sufficient importanc to require special mention.
The judgment of the district court is affirmed. | [
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The opinion of the .court was delivered by
Burch, J.:
Alexander Howat and others were adjudged guilty of contempt of the district court, and appeal:
At a special meeting of the legislature held in January, 1920, an act was passed declaring that the manufacture or preparation of food products, the manufacture of clothing, the mining or production of fuel, and the transportation of food, clothing, and fuel, are industries affected with a public interest; that reasonable continuity and efficiency in the operation of such industries affect the living conditions of the. people; and that consequently such industries are subject to state supervision, for the purpose of preserving the public peace, protecting the public health, preventing industrial strife, disorder, and waste, and promoting the general welfare. A supervising body was created, called the court of industrial relations. Persons, firms, corporations and associations were forbidden willfully to hinder, delay, limit or sus pend continuous and efficient operation of the supervised industries, contrary to the act or for the purpose of evading any of its provisions. The right of any individual worker to quit his employment at any time was expressly recognized; but conspiracy and confederation with others, and inducement and intimidation of others, with intent to cause suspension of operation of supervised industries, or to limit their output, was declared unlawful. The court of industrial relations was given authority to investigate, adjust, settle and determine controversies between employers and workers, or between groups or crafts of workers, which might endanger continuity or efficiency of service of supervised industries, affect production or transportation of the necessaries of life referred to, produce industrial strife, disorder, or waste, or threaten the public health, peace, or welfare. Willful violation of provisions of the act was made punishable as a misdemeanor. Officers of corporations and officers of labor unions and associations who willfully use their power and authority to influence, impel or compel any other person to violate the act, were declared guilty of felony, and punishable accordingly. The full text of the statute, chapter 29 of the Laws of 1920, is appended to this opinion.
The United Mine Workers of America is a voluntary association of miners and workers in mines, organized as a labor union, for the purpose of furthering the interests of members in the United States; District No. 14 of the United Mine Workers of America includes the counties of Crawford, Cherokee, and Osage, in which the bulk of the coal mined in Kansas is produced. In April, 1920, the officers of District No. 14 were: President, Alexander Howat; vice president, August Dorchy; secretary-treasurer, Thomas Harvey; all of Pittsburg, Kan. Members of the board of directors or trustees were James MeIIwrath, John Fleming, William Jenkins, Amos Standering, and John Billings. Willard Titus had been elected as successor to William Jenkins. Thomas Cunningham was a traveling auditor and agent. On April 5, 1920, the attorney-general commenced an action on behalf of the state against the associations and persons named and other persons who were stated to be officers and members of local unions of District No. 14, to enjoin them from interfering with the operation of coal mines in the counties named and causing the production of coal to be delayed, hindered, and stopped.
The petition alleged that the defendants were conspiring and confederating among themselves and with others to violate the act creating the court of industrial relations. The defendant, Howat, had publicly announced that he proposed to fight the statute with a force of 12,000 miners in Kansas, regardless of consequences, and the miners had pledged him their support, to the end that the force and effect of the statute might be nullified. The conspiracy was to be executed by calling a general strike of mine workers in the mines in Kansas, thereby causing the production of coal to be stopped. Howat had announced that he was about to call such a strike, and would do so early in April. The result would be to prevent the carrying on of business, commerce, industries, occupations and work in the state, to hinder, lessen, and stop the production, manufacture and transportation of the necessaries of life, and to inhibit even domestic and household activities of the people of the state. The state of Kansas owns and uses buildings and other property, conducts a variety of institutions, educational, penal, and charitable, and operates certain industries, in the exercise of its governmental functions. To accomplish its ends, it purchases and uses more.than 100,000 tons of coal yearly, and one of the results of the conspiracy would be to cut off this supply of fuel. Pursuant to the conspiracy, members of labor unions had already simultaneously quit work and caused mines to be shut down, assigning as a reason, opposition to the law creating the court of industrial relations, coupled with some cause of minor significance. The court of industrial relations had taken jurisdiction of a controversy between employers and miners, and in the exercise of such jurisdiction had subpoenaed Howat and others to testify as witnesses. They had refused to obey the subpoenas, and subpoenas for like purposes issued by the district court, and had been committed to jail for contempt of court, there to remain until they should submit to the law and give their testimony. The constitution and by-laws of District No. 14 had been amended to impose a fine of $50 for each offense on any member, committee or local officer who would be privy to referring a controversy to the court of industrial relations, and imposing a fine of $5,000 on any district officer of District No. 14 who would be a party to the reference of any grievance to the court of industrial relations. These amendments enabled Howat and his associates to impose their will upon mine workers. Without continuous and effective operation of the coal mines, all the loss, suffering, and irreparable injury of the coal strike of December, 1919, fresh in the minds of the people and of the defendants, would be repeated; and the state was without adequate remedy at law. The prayer was for a temporary injunction and, upon final hearing, for a permanent injunction, enjoining the defendants from further conspiring with each other, and from carrying out any conspiracy to interfere with the operation of coal mines in the counties named, to limit production, to cause the workers to leave employment, to influence them to quit their employment, and to cause the production of coal to be delayed, hindered, and stopped.
A temporary injunction was issued, the petition was amended and supplemented, answers were filed, and upon final hearing the court found all the facts contained in the plaintiff’s pleadings to be true, found all the issues joined in favor of the plaintiff and against the defendants, and entered a decree in favor of the state, making the temporary injunction permanent.
In February, 1921, the officers of the district board of District No. 14 called a strike in two mines of the George K. Mackie Fuel Company, one in Crawford county, and one in Cherokee county. The order was transmitted to local unions Nos. 498 and 310, and by their officers communicated to the members, who, obedient to the order, went oh strike. An affidavit stating the facts, and charging those concerned in calling the strike with contempt, was presented to the district court on February 7. After a hearing, the court found there was reasonable ground for believing the defendants named in the affidavit had violated the commands of the injunction, and ordered their arrest. They were arrested and brought into court, and were given an opportunity to purge themselves. Harvey, Cunningham, Billings and Standering were dismissed, on the ground their statements showed they were not guilty of the charge. The court directed the state to file forthwith accusation against the defendants, Howat, Dorchy, Mcllwrath, Fleming, Titus, and Maxwell, and fixed a time for answer. The defendants answered, and, after a hearing before the court, without a jury, the court found the facts stated in the accusation to be true as to the defendants last named, found them to be guilty of violation of the injunction and of contempt of court, and ordered that they be confined in the jail of Crawford county for the period of one year, and pay the costs of the prosecution.
The assignments of error present questions relating to regularity of the contempt proceeding, relating to validity of the violated injunction, relating to validity of the act creating the court of industrial relations under the’ constitution of the state of Kansas, and relating to validity of the act under the constitution of the United States.
It is said the court erred in arraigning the defendants in the absence of counsel, in compelling them to testify against themselves, and afterwards in using the extorted testimony in the trial on the accusation for contempt. There was no “arraignment” of the defendants, in the sense in which that term is used in criminal procedure. The usual course in contempt proceedings was observed. When arrested the defendants were brought into court, and were asked if they desired to make any statements. Howat and Dorchy made voluntary statements, and then freely gave voluntary answers to a few questions propounded to them. They were accompanied by an attorney, who participated in the proceedings, made no objection to what occurred, and secured a postponement until chief counsel for defendants could arrive. Howat having answered that “we called a strike,” meaning by “we” a majority of the district board of District No. 14, and Dorchy having said he was guilty, the court directed a formal accusation to be prepared, to which the defendants afterwards pleaded, and on which, in due time, they were tried. At the trial the voluntary statements and answers to questions were read in evidence. At the trial Alexander Howat was called as a witness by the defendants and, on examination by their counsel, gave a detailed account of the calling of the strike which constituted contempt of the injunction order. Some objections to the proceedings relating to evidence are not deemed to be of sufficient importance to require special consideration.
It is contended the district court erred in refusing to grant the defendants a jury trial. In support of the contention it is said the defendants were charged with a felony, and were convicted of that which under the law constitutes a felony. These assertions are the foundation for an extended argument that the defendants were denied justice in the district court. The entire argument stands or falls with the truth or untruth of the assertions. Neither one.has any basis of fact, or any warrant in logic or in the law.
The defendants were charged with contempt of court, for disobedience of an injunction, and contempt of court for disobedience of an injunction is not punishable as a felony, or as crime of any other degree, by any statute of this state. The purpose of the proceeding was not to enforce any criminal statute of the state, but was to vindicate the authority and integrity of the court as an organ of public justice. It was not of the slightest consequence that the acts committed in violation of the injunction, and constituting contempt, also constituted infractions of the criminal law, and infractions of the criminal lavi of the grade of felony. In the case of United States v. Shipp, 203 U. S. 563, 214 U. S. 386, and 215 U. S. 580, members of the mob which hanged the negro Johnson committed contempt by committing murder. The distinction between proceedings to punish contempt committed by crime, and proceedings to punish crime as such, is as old as the law of contempt, and the distinction has been observed and acted on by courts, state and Federal, including the supreme court of the United States. This court, in a series of decisions, has interpreted the provisions of the constitution of the state cited by counsel for the defendants in a manner too plain to be misunderstood. It is not necessary to collate authorities. Counsel for the defendants cite no cases from the literature of the law except Kansas cases, and those Kansas cases which apply directly to the subject under discussion are not referred to.
It is to be regretted that the defendants, and particularly thg_noffi miners of southeastern Kansas, many of whom are •ÍOTeigne^and not familiar with our legal institutions, have not iSd^^Sxiisubject made clear to them by those in a position to do so. It would not be possible to make the matter plain, to j their untrained minds, within the'limits of a judicial opinion.! Briefly, it may be said that power of a court to punish for contempt is, in the last analysis, on similar footing with a miner’s privilege to work — it touches the right to exist. Whatever executive officers, concerned with enforcement of the criminal statutes, may do about bringing and prosecuting criminal actions, and whatever success they may have in that field, the court must possess authority to punish contempt, or it cannot discharge its functions as a court. This was the law when all the modem charters of human liberty were framed. A court established by the constitution, such as the district court of Crawford county, may not be deprived of this power, except by the constitution itself, and the Kansas constitution does not do so. If the power be unwisely reposed, the remedy is by constitutional amendment. Until a change is made to call a contempt proceeding a criminal prosecution, in the sense that a júry trial is necessary, is to darken counsel by misuse of well-understood terms. The foregoing sufficiently disposes of a contention that the defendants were denied due process of law because they were tried by the court and not by a jury, but the following quotation from the opinion of the supreme court of the United States, in the case of Eilenbecker v. Plymouth County, 134 U. S. 31, is pertinent:
“Whether an attachment for a contempt of court, and the judgment of the court punishing the party for such contempt, is in itself essentially a criminal proceeding or not, we do not find it necessary to decide. We simply hold that, whatever its nature may be, it is an offense against the court and against the administration of justice, for which courts have always had the right to punish the party by summary proceeding and without trial by jury; and that in that-sense it is due process of law within the meaning of the fourteenth amendment of the constitution.” (p. 39.)
In an assignment of error that the district court erred in overruling the motion to quash the accusation, a collateral attack is made on the injunction order, contempt of which was the basis of the accusation. It is said the injunction was issued in contravention of section 7149 of the General Statutes of 1915, the general nature of which is indicated by the initial provision:
“That no restraining order or injunction shall he granted by any court of the state of Kansas, or a judge or the judges thereof, in any case between an employer and employee, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, ...”
Let it be granted for the moment that the legislature intended this statute to be applicable to the case presented by the petition for injunction. It was within the province of the district court to interpret the statute, and determine whether or not it did apply. The court had jurisdiction to adjudicate upon the subject. If it reached a wrong conclusion, it did not forfeit jurisdiction. The injunction order was simply erroneous, the error was subject to correction by the ordinary method of appeal, and disobedience to the order constituted contempt. (The State, ex rel., v. Pierce, 51 Kan. 241, 32 Pac. 924.) Conceding again that the legislature intended the statute to be applicable to the case presented by the petition for injunction, there was ample necessity for issuing the injunction, to prevent irreparable injury to property and property rights of the party making the application, the state of .Kansas. The statute, however, had no application to the case made by the petition for injunction. The petition presented no dispute between employer and employee, or between employers and employees, or between employees, or between persons employed and persons seeking employment, and presented no case of dispute concerning terms or conditions of employment. Whether or not the statute conflicts in any particular with the act creating the court of industrial relations, need not be discussed, because the statute has no bearing on this controversy.
Portions of the statute not quoted deal with the subjects of picketing and boycotting, and it is said the legislature, having in mind the great injustice which might be perpetrated by destroying united action, placed a definite prohibition on the issuing of injunctions in labor disputes. The portion of the defendants’ brief stating this conclusion is preceded by the following remarkable paragraph:
“In this connection it must be remembered that the power of a court to grant an injunction for any purpose is statutory, and in the absence of statutory authority no power exists in a court to grant an injunction for any purpose whatever. Again, the power to grant an injunction being statutory and in derogation of the common law, the statute granting said power must be strictly construed. Since this rule is so universally followed and upheld, a citation of authorities in support of the same would be out of place.”
The power of a court in any case to grant an injunction for any purpose is not statutory. In the absence of statute, power exists in courts to grant injunctions for numerous purposes. The power not being statutory, and not being in derogation of the common law, is not strictly construed. If the power were statutory, it would be liberally Construed, to accomplish just and equitable purposes, because of an express statute of this state which reads as follows:
“The rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.” (Gen. Stat. 1915, § 11829.)
The rule stated in the quoted paragraph is not universally followed, is not followed at all, and there are no authorities to be cited as sustaining .it. This being true, the paragraph must have been intended for some document other than a brief in this court.
It is said the injunction was invalid, as an attempt to enjoin a crime. If so, the injunction order was not void, and the defendants are precluded from attacking it in this proceeding.
In order that the defendants may not feel a rule of procedure has prevented full consideration of their case, it may be said their argument is cast in the same fallacious form as the argument relating to trial by jury. The purpose of the injunction was not to enjoin crime, and bore no other relation to administration of the criminal law. The purpose was to prevent the irreparable injury which the petition for injunction alleged would occur, and which the court found would occur, unless the defendants were restrained'from executing their designs. It might be the defendants would incur sentences to the penitentiary or to jail, but the imposition of those penalties would not fulfill the obligation of the state of Kansas to protect its people from the calamitous consequences of the defendants’ wrongdoing, and for which there was no redress. The court found that all the perils to the public welfare which accompanied the co.al strike of the winter of 1919-’20 would again be incurred. That strike caused industry to stop, caused commerce to be demoralized, caused food supplies to be reduced and cut off, caused schools to close, caused suffering in homes, and if the defendants had been permitted to have their way, would have caused the sick to languish and die in unwarmed hospital beds in the dead of winter. If those consequences were produced in a single village by blocking the highway over which necessaries of life were brought in, anybody would say, blocking the highway was a public nuisance, and a court of equity could open the road. Multiplicity and magnitude of threatened disaster do not detract from authority of a court of equity over the few determined individuals who propose to wreak the disaster. Ability of the defendants to paralyze the normal activities of a whole commonwealth did not free them from amenability to injunction. The district court was warranted in interfering on principles identical with those applied in abatement of public nuisances, and the court was not shorn of power because the defendants, if they persisted, would incidentally be guilty of crime.
The general finding on which the injunction was allowed included a finding that the state would be prejudiced in the use of property which it held in the capacity of owner. Conviction and incarceration of the defendants would not get coal for the various institutions, educational, charitable, and correctional, which the state maintains in its own buildings, upon its own land. The authorities are in substantial accord that this special interest authorized the state to apply for, and authorized the district court to grant, the injunction; but this court holds that, aside from this indisputable ground, and without aid of the statute expressly authorizing actions of injunction in the name of the state to suppress public nuisances (Gen. Stat. 1915, § 7163, as amended by Laws of 1917, ch. 247, § 1), the district court was possessed of power to grant the injunction.
In support of their contention the defendants cite some cases. The one principally relied on is the case of State v. Vaughan, 81 Ark. 117, and a portion of the opinion is quoted, as follows:
“It is demonstrably true that it is a sound principle of equity jurisprudence that an injunction will not lie at the instance of the state to restrain a public nuisance where the nuisance is one arising-from the illegal, immoral or pernicious acts of men which for the time being make the property devoted to such use a nuisance, where such nuisance is indictable and punishable under the criminal law.” (p. 126.)
The defendants did not quote the next succeeding sentences of the opinion, which sustain the action of the district court of Crawford county:
“On the other hand, if the 'public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists I calling for an injunction, a chancery court will enjoin, notwithstanding/ the act enjoined may also be a crime. The criminality of the act wilf neither give nor oust jurisdiction in chancery.” (p. 126.)
The opinion in the Vaughan case quotes from the opinion in the case of The People v. Condon, 102 Ill. App. 449; and the defendants make much of the decision in the Condon case because it accuses the supreme court of the United States of resorting to dictum in the case of Mugler v. Kansas, 123 U. S. 623, and because it undertakes to narrow the scope of the decision in the case of In re Debs, Petitioner, 158 U. S. 564.
The law of Illinois respecting the subject of the opinion in the Condon case is declared by the supreme court of that state in the case of Stead v. Fortner, 255 Ill. 468. The following extracts from the opinion are supported by the citation of numerous authorities:
“A court exercising equitable jurisdiction will not restrain, by injunction, the commission of illegal or immoral acts and will not enjoin one engaged in the sale of liquor from making sales which are punishable by the criminal law. But that is not the object of this suit. The law has a double purpose — to punish the person committing an illegal act and to prohibit the use of property for illegal purposes — and these are separate and distinct. . . .
“It is one of the most useful functions of a court of equity that it may give complete and adequate relief against acts which will constitute nuisances. ...
“Want of jurisdiction to enjoin a nuisance which might breed a pestilence or be dangerous to the welfare of the public would be a reproach to the law. . . .
“A court of equity has jurisdiction to abate a public nuisance although offenders are. not only amenable to criminal laws but also where no property rights are involved in the litigation. . . .
“As we have noted above, this court has never regarded a criminal prosecution, which can only dispose of an existing nuisance and cannot prevent a renewal of the nuisance, for which a new prosecution must be brought, as a complete and adequate remedy for a wrong inflicted upon the public. The public authorities have a right to institute the suit where the general public welfare demands it, and damages to the public are not susceptible of computation. The maintenance of the public health, morals, safety and welfare is on a plane above mere pecuniary damage although not susceptible of measurement in money, and to say that a court of equity may not enjoin ^a public nuisance because property rights are not involved, would be. to say that the state' is unable to enforce the law or protect its citizens from public wrongs.” (pp. 474-477.)
In the case of Mugler v. Kansas, 123 U. S. 623, one of the questions was whether the equity power to abate liquor nuisances, conferred by a statute of this state, was consistent with the constitutional guaranty of liberty and property. In the opinion the court said:
“Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law. ‘In regard to public nuisances,’ Mr. Justice Story says, ‘the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. ... In case of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information, also, lies in equity to redress the grievance by way of injunction.’ 2 Story’s Eq. §§ 921, 922. The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy, than can be had at law. They cannot only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury. . . .” (p. 672.)
The pertinency of this discussion to the subject of the decision may be left to the judgment of the discriminating reader.
Referring to the case of In re Debs, Petitioner, 158 U. S. 564, the opinion in the Condon case says:
“An examination of this whole opinion shows that the court intended to place and did place' the right to issue this injunction upon the sole and only ground that the property of the United States had been interfered ■with.”
In the Debs case the court first demonstrated the undoubted power of the government of the United States to protect its property in the mails by invoking the equitable remedy of injunction. The court then said:
“We do not care to place our decision upon this ground alone. Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligation which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court.” (p. 584.)
After reviewing authorities, the opinion proceeded as follows:
“It is obvious from these decisions that while it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the constitution are entrusted to the care of the nation, and concerning which the nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.
“The national government, given by the constitution power to regulate interstate commerce, has by express statute assumed jurisdiction over such commerce when carried upon railroads. It is charged, therefore, with the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers and duties of a government to remove obstructions from the highways under its control.” (p. 586.)
Concerning the subjects of “injunction against crime” and “trial by jury in contempt proceedings,” the court said :
“The acts of the defendants may or may not have been violations of the criminal law. If they were, that matter is for inquiry in other proceedings. The complaint made against them in this is of disobedience to an order of a civil court, made for the protection of property and the security of rights. If any criminal prosecution be brought against them for the criminal offenses alleged in the bill of complaint, of derailing and wrecking engines and trains, assaulting and disabling employees of the railroad companies, it will be no defense to such prosecution that they disobeyed the orders of injunction served upon them and have been punished for such disobedience.
“Nor is there in this any invasion of the constitutional right of trial by jury. We fully agree with counsel that ‘it matters not what form the attempt to deny constitutional right may take. It' is vain and ineffectual, and must be so declared by the courts,’ and we reaffirm the declaration made for the court by Mr. Justice Bradley in Boyd v. United States, 116 U. S. 616, 635, that ‘it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.’ But the power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court.” (p. 594.)
The opinions in the Mugler and Debs cases and the opinion in the Stead case have been quoted at some length, not because they need vindication from the criticism of the Illinois appellate court, but to respond to the defendants’ brief, reveal its method, and render unnecessary further examination of authorities. The conclusions stated in the Mugler and Debs cases are binding, so far as they relate to questions arising under the constitution of the United States. The opinions in the three cases sufficiently present arguments and authorities supporting the conclusions reached. Those conclusions are in harmony with previous utterances of this court, and are accepted and adhered to as sound.
It. is contended the act creating the court of industrial relations contravenes section 16 of article 2 of the constitution of the state, in that it contains more than one subject, and the subjects are not clearly expressed in the title. It is said the method employed to invest the court of industrial relations with the powers and duties of the public utilities commission, which was abolished, was ineffectual, and consequently the public utilities features of the statute lack the force of law. The conclusion has nothing to do with the assignment of error, and relates to a subject which does not concern the defendants. The section of the constitution referred to does provide that no law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended; but it is not material to the defendants whether the authority formerly possessed by the public utilities com mission was preserved to the court of industrial relations; andi if in some public utilities case it should be held that the act under consideration left the state without a public utilities law, the remainder of the act would not be affected. (Laws 1920, ch. 29, § 28; The State, ex rel., v. Howat, 107 Kan. 423, 191 Pac. 585.)
In a certain sense, the act embraces two subjects: regulation of public utilities, and regulation of those industries which have to do with supplying the people with necessaries of life. In the same sense, the second subject is doubly triple. It embraces food, clothing, and fuel, and it embraces production, manufacture, and distribution. According to the-same method, the act might be conceived as divided into as many subjects as a carefully prépared index of its contents would disclose. That, however, is not the method by which to determine- the scope of a statute. The question in any case is, Are the particulars so diverse that they may not be connoted in a single generic concept ? - In .this instance the general concept is enterprise affected with a public interest, and the grouping is not only natural, but consistent and harmonious.
It is said that use of the word “court” impairs clearness in the expression of the subject of the act in its title, and that inclusion of public utilities is not indicated at all. The first contention was sufficiently met in the case of The State v. Scott, 108 Kan. 166, and it was there said the title is at least as comprehensive as though it read, “An act relating to (or concerning) an administrative body for the regulation of industrial relations.” The word “industrial” means relating to industry, and industry clearly embraces those departments devoted to public service. When used in the plural, the word “relations” has the meaning of “affairs.” Fifty years ago the title of this act would have conveyed little or no information. It is tó be read, however, in the light of common knowledge of the science of government, and particularly the regulation of industry by administrative tribunals, in the year 1920; and the court is of the opinion any one whose interests might be affected by the legislation would be directed to details by the title.
An argument that the title is not broad enough to cover substantive provisions of the act is sufficiently disposed of by the reasoning and the citation of authority contained in the opinion in the case of The State v. Scott, supra.
It is said the act creating the court of industrial relations is void because it commingles functions of the three departments of government. The contention was considered in the case of The State, ex rel, v. Howat, 107 Kan. 423, 191 Pac. 585, and was found to be unsound. Some additional specifications are made of functions claimed to be separate according to the orthodox theory, but they do no more than raise the question ,of the legality of all bodies such as the interstate commerce commission, state public utilities commissions, and similar administrative tribunals, “created for carrying into effect the will of the state, as expressed by its legislation.” (Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, syl. ¶ 1.) A contention that the act is void because it undertakes to usurp control of matters within the jurisdiction of the Federal government and regulated by the Lever act and the Clayton act, was likewise disposed of in the Howat case-just cited.
It is contended the act creating the court of industrial relations is void because section 12 undertakes to confer on this court original jurisdiction additional to that permitted by section 3 of article 3 of the constitution, which reads as follows:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law.” (Gen. Stat. 1915, § 172.)
The court of industrial relations is, in fact, a public-service commission, the word “court” having been employed merely as a matter ■ of legislative strategy. The production, manufacture and distribution of food, clothing, and fuel, being industries affected with a public interest, are made subject to regulation in the same manner as those industries which have commonly been designated public utilities. Action by the court of industrial relations would necessarily touch the subjects of liberty and property, and in order to safeguard them from infringement and meet all the requirements of due process of law, a judicial review of orders of the administrative body was provided for by section 12. Resort to this court was authorized in terms which afford opportunity for the determination of issues upon the court’s independent judgment, both with respect to the law and the facts. (Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287.) The appellate jurisdiction of this court not being available because the court of industrial relations is a nonjudicial body, its constitutional jurisdiction in mandamus was utilized. This jurisdiction is precisely the same as that of any court of genéral jurisdiction in mandamus, that is to say, is plenary, may be exercised to control the action of inferior tribunals (Bishop v. Fischer, 94 Kan. 105, 145 Pac. 890; In re Petitt, 84 Kan. 637, 114 Pac. 1071), and comprehends the power of superintending control to the full extent of which the writ of mandamus is capable.
Mandamus is indisputably a proper remedy for enforcing lawful orders of a public-service commission (The State v. Railway Co., 81 Kan. 430, 105 Pac. 704; L. R. A. 1918 E, 304, Annotation), and the only matter for debate is its appropriateness as a method of compelling the court of industrial relations to do its duty. The mandamus statute reads as follows:
“The writ of mandamus may be issued by the supreme court or the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust, or .station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.
“The writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. . . .” (Gen. Stat. 1915, §§ 7646, 7647.)
The court of industrial relations is clearly a board, within the meaning of this statute. The entering of orders in respect to matters committed to its jurisdiction is a duty resulting from office, trust, or station. The tribunal appointed to make orders in the field of industrial relations having already functioned, application to it no longer affords remedy in the ordinary course of law for such cases. (Telephone Association v. Telephone Co., 107 Kan. 169, 190 Pac. 747.) Constitutional limitations, state and Federal, and express statutory provisions, furnish standards of conduct. Sections 8 and 9 of the court of industrial relations act require orders to be just and reasonable. Section 12 itself measures the duty which the statute enjoins, and all the prerequisites exist for maintaining an action of mandamus to compel performance of the duty to enter just, reasonable and lawful orders.
It is contended that if in any case this court should find an order made by the court of industrial relations to be unjust, unreasonable, or unlawful, this court is directed to prescribe definitely what would be a proper order, and then compel the court of industrial relations to enter it. Applying the argument to action by the court of industrial relations on its public utilities side, if this court should find a rate to be confiscatory, it should step over into the field of legislation, fix the correct rate, and then compel the court of industrial relations to put the prescribed rate in force. In order to impose such a meaning upon the phraseology of the statute, the court would be obliged to apply the opposite of the well-known canon of interpretation, and strive to invalidate, instead of strive to uphold, the law. The evident purpose of the legislation was to give equal remedies to and against the court of industrial relations, in order that just, reasonable and lawful regulations, when established, may prevail, and in order that, in case of contest, just, reasonable and lawful regulations shall be established. Being a creature of the legislature, the court of industrial relations may be placed under such superintending control as the legislature chooses. The discretion which the. court of industrial relations exercises is not judicial discretion, and consequently is not within the protection of the mandamus statute quoted above. To accomplish the purpose of the act, the tribunal created is in effect limited in its authority to promulgation of orders of-the-character described in section 12. Exercise of that authority in case of controversy is, however, the prime object of the act — is the very duty which the law specially enjoins; and the duty is not performed until a just, reasonable and lawful order has been entered. The remedy of mandamus is made available, as in any other case covered by the mandamus.statute, except that application must be made to this court. The court acts according to the common course of judicial procedure in actions of mandamus. Findings showing the particulars in which the contested order fails may serve as a guide in framing a proper order, but the duty to frame a proper order is legislative, and rests with the court of industrial relations. If a peremptory writ be' awarded, the mandate is to perform the duty contemplated by the statute. When the mandate is obeyed, the order entered is the order of the court of industrial relations, and not of this court.
It is said the act creating the court of industrial relations is void because it contravenes the fourteenth amendment to the constitution of the United States, in that it destroys liberty of contract and permits involuntary servitude on the part of workingmen.
The question which presented itself to the mind of the legislature may be indicated.
Employers and employees disagree about how the product of their joint contributions to industry shall be divided. In the last analysis, hours, working conditions, recognition of union, etc., revolve about this fundamental subject of grievance. The subject is of great importance to the employer. It is of even greater importance to the employee, because on wages depend food, clothing, and shelter; recreation, and the details of daily living; the value of the worker to the community in which he lives; and even the length of time he will live. Disagreements become acute, the contestants become hostile to each other, sometimes each one resorts to force, and the public, the great employer of both labor and capital, suffers grievously. In an address before the federation of engineering societies at Washington, D. C., November 20, 1920, Mr. Herbert Hoover, now secretary of commerce and labor, made an appeal for industrial cooperation in which he said:
“In the question of industrial conflict resulting in lockout and strike one mitigating measure has been agreed upon in principle by all sections of the community. That is collective bargaining, by which, wherever possible, the parties should settle their difficulties before they start a fight. ...
“Battle and destruction are a poor solution to these problems. The growing strength of national organizations on both sides should not and must not be contemplated as an alignment for battle. Battle quickly loses its rules of sportsmanship and adopts the rules of barbarism.” .
The legislature understood all this; but if the parties should not succeed in settling their difficulties, why should they be permitted to start a fight, which quickly brings upon the public a recrudescence of barbarism?
In dealing with the subject of the constitutionality of the legislation of 1920, the court can render no service by veiling the harshness of reality. The court of industrial relations is justified by facts, or is not justified at all, and it will be necessary to present a few disagreeable facts which lie. naked to astonished gaze in our industrial history.
The accusation against Debs in the case which has been referred to contained the following statements of fact:
“That, as a direct result of the orders to strike upon some of the lines —notably upon the Illinois Central Railroad, the Chicago, Rock Island & Pacific, the Chicago, Burlington & Quincy, the Chicago & Alton, the Chicago & Western Indiana, and upon the Pennsylvania Company’s lines — there was exercised upon the part of many of the strikers or ex-employees of the railway companies intimidation and open violence. That employees who refused to join in the strike, and others who had been employed by the railway companies to take the place of strikers, and were in the actual service of the companies, were assaulted and intimidated by the strikers, and driven from their post of duty, either by physical violence or threats of personal injury. That, during the 5th, 6th and 7th days of July, the strikers, and others acting in sympathy with them, took forcible possession of some of the roads withih and adjacent to the city of Chicago, and, by physical force, prevented the passage of trains carrying mails and interstate commerce. That engines and trains of cars were derailed, and passenger trains were assailed with stones and other missiles, as well as the employees in charge of such trains; and in some instances both the passenger cars and engines were fired upon, endangering the lives both of employees and passengers. That these mobs were in many instances led by the strikers or ex-employees of the railway companies, who had gone out of service upon the orders of the defendants as officers of the American Railway Union; and mobs composed of strikers and others were massed at different points, upon the different lines of road, within and adjacent to the city of Chicago, in such numbers as to be beyond the control of the government, state, and municipal authorities. That at least. 1,000 freight cars belonging to the railway companies, some of which were loaded with interstate merchandise, were set on fire and destroyed. Signal towers and other appurtenances of the railways were burned. Employees of the railway companies who refused to obey the orders of the defendants and other officers of the American Railway Union, and remained faithful to the discharge of their duty, were violently assaulted, beaten, and bruised, and in some instances were forcibly arrested, and taken from their engines, and kept for hours in confinement. That many lives were also sacrificed — all of which was a direct result of the numerous strikes ordered as aforesaid.” (United States v. Debs, 64 Fed. 724, 728.)
During the progress of the strike, Debs addressed a letter to the railway managers, a portion of which reads as follows:
“The strike, small and comparatively unimportant in its inception, has extended in every direction, until now it involves or threatens not only every public interest, but the peace, security, and prosperity of our common country. The contest has waged fiercely. It has extended far beyond the limits of interests originally involved, and has laid hold of a vast number of industries and enterprises in no wise responsible for the differences and disagreements that Jed to the trouble. Factory, mill, mine and shop have been silenced; widespread demoralization has sway. The interests of multiplied thousands of people are suffering. The common welfare is seriously menaced. The public peace and tranquillity are imperiled. Grave apprehensions for the future prevail.”' (p. 729.)
In a newspaper interview given during the strike, Debs said:
“We are in condition to keep the strike on for months. Nothing but armed intervention to-day permits the, moving of trains. Throughout that great stretch of country which lies west of the Mississippi river our men are steadfast and willing to wait until the bitter end. . . .
“When the command of the so-called ‘arteries of commerce’ falls into our hands, and the trades unions which have given us comfort require reciprocation from us, we, and we alone, are in a position to give them material assistance.” (p. 730.)
What command of the arteries of commerce means was demonstrated in the circumstances under which the Adamson act was passed.
Last year the president of the American Federation of Labor told a committee of congress before which he appeared that limitations on the “right to strike” would not be obeyed, and so made an issue with the government of the United States. Petty exhibitions of arbitrary power are illustrated in the conduct of one Mike Boyle, business agent of an electrical workers’ union in Chicago, and known as “Umbrella Mike.” He was released from prison, to which he had been committed for criminal conspiracy, on May 8, 1920. Quite promptly he called two strikes against the city, which cut off power at municipal shops, stopped repairs on municipal pumping stations and municipal lighting systems, and stopped city hall elevators. On July 16 he called a strike which stopped operation of surface street-car lines of the city of Chicago, and thousands of wage earners were unable to reach their places of employment.
The Debs pattern has been used as a model for many a subsequent strike. Every section of the country has been made familiar with it. Its ferocity and brutality, and its relation to the public welfare, are portrayed in a recent account of the Alabama coal strike:
“The long drawn out struggle between the coal miners and the coal operators in Alabama has been brought to an end by the agreement of both sides to place the entire case in the hands of Governor Kilby. . . .
“The strike was enormously costly to the state and to the miners, and to the industry in general. . . .
“The strike formally began in September when the union ordered a general stoppage of work in District 20. Much disorder occurred in' the strike region, and one miner is alleged to have been lynched. Reports from- Alabama announced the suspension of civil rights in the strike zone and the sending of state troops to the field. Miners and their families were evicted from company-owned houses. The union reported that it provided food, clothing and shelter for between forty and fifty thousand men, women, and children. Tent villages were erected on the hillsides after the miners were evicted.” (The Survey, March 19, 1921.)
Since the conviction of some thirty or more officials and members of the Bridge and Structural Iron Workers’ union by a Federal jury at Indianapolis in 1912, dynamite and nitroglycerin have not been so' freely used as agents of “industrial justice,” but the methods still employed are not less stern. In May, 1919, the milk drivers of Chicago struck. Babies in infant asylums and hospitals'cried for milk. On May 15, health commissioner Eobertson said:
“We are going to deliver milk to the quarter of a million babies and the 120 hospitals and homes if we have to press into service every police ambulance and every vehicle controlled by the city of Chicago. We have about 250,000 babies under five years of age in Chicago, and 1,000 patients at the Municipal Tuberculosis Sanitarium.”
The next day the vice president of the strikers’ organization said:
“Yes, picket the places and don’t let any milk be delivered. You know how to stop anybody delivering. I don’t have to tell you how.”
Between April 6,1917, and November 11, 1918, the period of our participation in the world war, there were more than 6,000 strikes in the United States, some of which imperiled winning the war. When the whole world was shaken by the earthpquake of the world war, and the flower of this country went forward as willingly as a bridegroom goes to his bride, to hurl hflémselves into the raging pit of hell in Western Europe, their fate there depended on patching up strikes at home.
During the war the various war’ agencies responded, under direction of the president, to the demands of labor with great liberality; but in his message before congress .of May 20, 1919, the president said:
“We cannot, go any further in our present direction. We have already gone too far. .We cannot live our right life as a nation or achieve our proper success as an industrial community if capital and labor are to continue to be antagonistic instead of being partners; if they are to continue to distrust one another and contrive how they can get the better of one another, or what perhaps amounts to the same thing, calculate by what form and degree of coercion they can manage to extort on the one hand work enough to make enterprise profitable, on the other justice and fair treatment enough to make life tolerable. That bad road has turned out a blind alley. It is no thoroughfare to real prosperity. We must find another leading in another direction and to a very different destination.”
The strike record of the year 1919, however, proved to be the most disheartening one in our industrial history. The statistics are amazing, even to minds accustomed to war figures. Millions of men and women were involved. The following is a partial list of the more important strikes and lockouts shown by the government report for 1919: .
“A general strike in Tacoma and Seattle in February in sympathy with the metal-trades strikers, in which 60,000 persons were involved; 65.000 employees in the Chicago stockyards struck in August; 100,000 longshoremen along the Atlantic coast struck in October; 100,000 employees in the shipyards of New York City and vicinity struck in October; 115.000 members of the building trades were locked out in Chicago in July; 125,000 in the building trades in New York City struck in February; 250,000 railroad shop workers struck in August; 367,000 iron and steel workers struck in September; and 435,000 bituminous coal miners struck in November. The number of persons concerned in these nine strikes and lockouts was upward of 1,600,000, while the total number of persons involved in strikes and lockouts during 1919 was 4,112,507.” (Monthly Labor Review, June, 1920, p. 200.)
The direct losses in money amounted to stupendous sums. William Z. Foster, who conducted the steel strike, says that struggle alone cost a billion dollars. The indirect.losses were beyond computation. The moral effect was such that school children learned to strike; and the unspeakable crime was committed in Boston when the. policemen struck. The plain citizen became so sated with news of strikes and threats of strikes that, unless his morning paper contained an account of some especially shocking strike incident, he yawned and turned to the doings of the Gumps.
The portent of the bituminous coal miners’ strike was so grave that the president of the United States pleaded for a rescission of the strike order. Among other things, he said:
“From whatever angle the subject may be viewed, it is apparent that such a strike in such circumstances would be the most far-réaching plan ever presented in this country to limit the facilities of production and distribution of a necessity of life and thus indirectly to restrict the pro duetion and distribution of all the necessaries of life. A strike under these circumstances is not only unjustifiable, it is unlawful. . . .
“It is time for plain speaking. These matters with which we now deal touch not only the welfare of a class, but vitally concern the well-being, the comfort, and the very life of all the people. I feel it my duty in the public interest to declare that any attempt to carry out the purpose of this strike and thus to paralyze the industry of the country, with the consequent suffering and distress of all our people, must be considered a grave moral and legal wrong against the government and the people of the United States. I can do nothing less than to say that the law will be enforced, and means will be found to protect the interests of the nation in any emergency that may arise out of this unhappy business.”
The president was obliged to find means to avert this grave moral and legal wrong, and the means chosen was a mandatory-injunction to withdraw the strike order. The injunction was denounced by the executive council of the American Federation of Labor, as follows: -
“The autocratic action of our government in these proceedings is of such a nature that it staggers the human mind. In a free country to conceive of a government applying for and obtaining a restraining order prohibiting the officials of a labor organization from contributing their own money for the purpose of procuring food for women and children that might be starving is something that, when known, will shock the sensibilities of man and will cause resentment.”
The fact that execution of the strike order would cause tens of thousands of women and children not protected by strike funds to freeze and starve does not appear to have touched any sensibilities of the strike leaders.
District No. 14 of the United Mine Workers of America, comprising the coal-producing counties of Kansas, constitutes a principality, in Kansas but not of it, and ruled by force in medieval fashion. In his testimony given at the- trial of this cause, the defendant, Howat, told of calling the strike which constituted contempt of the injunction granted by the district court. A boy named Mishmash, employed in the Mackie mines, discovered he was more than nineteen years old, and claimed back pay, according to union contract, for full miner’s wages accruing after he became nineteen. The evidence relating to the date of his birth was inconclusive, and controversy over the matter continued between the district board and the mine owners for a considerable period of time. The amount in dispute was about $225, the boy’s mother needed the money, and the district board believed the mine owners were not acting fairly; therefore a strike was called. Portions of Howat’s testimony follow:
“Q. Well, don’t you know that if this hoy had a claim for wages under a contract that you could recover it in court? A. No; I didn’t know it. We never have settled any cases that way.
“Q. You think the boy couldn’t collect the money in the courts? A. I couldn’t say whether he could or not. I never tried it, and, anyway, we have a contract which provides for it and we wasn’t obliged to go to court.
“Q. You don’t go into court? A. No, sir; neither here nor in the other districts.
•“Q. You didn’t read the injunction? A. No; never did.
“Q. You don’t recognize courts in the matter of settlement for wages? A. No, sir; we have a contract that covers that.
“Q. You don’t recognize that contracts are made to be enforced in courts, then? A. No, sir.”
Under this form of civil government there were 705 strikes in the coal mines of Kansas within a period of less than four years ending December 31, 1919. In the winter of 1919-’20 the purposes of the national strike were attempted to be carried out in District No. 14. The threatened consequences were so dire that the state took.action in this court, under the antitrust statute, and the court appointed receivers for the coal mines. The receivers encountered difficulty in securing competent managing operators, because those who were familiar with the mines and methods of coal production in that district feared they might not survive an attempt to supply the people of the state with fuel. With splendid heroism, ex-service men, college students, and others of patriot mold, volunteered to do the work. Prudence demanded they be given military protection, and a regiment of the Kansas National Guard was sent with them to the mines. General Wood also stationed a troop of regular army soldiers in the vicinity. On the way to Pitts-burg, movement of the state troop train was insufferably de layed, until a sharp order to proceed was given. Then the train was wrecked. After the volunteers and their military escort arrived at Pittsburg some sniping occurred, but without fatality, some mining machinery was disabled, and some hidden stores of dynamite were discovered. The determined character of the coal-producing enterprise seems then to have been appreciated, and further violence was not offered. The sublimate cruelty of the strike method, however, was displayed in the treatment of the Pittsburg hospital. It was surrounded with coal mines. There were 15,000 idle miners in the district. The hospital was filled with sick, many of whom were miners, and the winter weather was severely cold. Coal was denied to this hospital by the strikers, although deprivation for a single day meant death to patients.
At the beginning of the year 1920 it had not been demonstrated that the world would escape bankruptcy as a result of the war. The problems of economic and industrial reconstruction were not merely local and national, but were international in character. Early hopes of a speedy and easy transition from war to peace conditions were not realized. Instead of that, the situation, always grave, was complicated and aggravated by continued rise in prices, by profiteering, by social unrest fanned by radicalism, and by other ugly influences. The bitterness of the struggle between those who ought to be partners in industry became acute, the only remedy for the high cost of living — joining forces in greater production — was rejected, and economic readjustment promised little but economic turmoil. Under these circumstances, on January 5, 1920, the legislature met in special session at the call of Governor Allen, to consider what it might do to protect the people of the state of Kansas from dislocations in production and distribution of the necessaries of life. The result of its deliberations was the act creating the court of industrial relations.
Recurring to the Alabama coal strike, the fatalistic doctrine of fight in the event of disagreement was acted on, and, after all the disorder and destruction and suffering and death, what happened ? An agreement by both sides to place the entire case in the hands of a state officer. If this method of composing disagreements be feasible at all, why fight at all ?
Human progress is essentially increase in social well-being, and the primary condition to social well-being is abolition of strife. The Kansas statute provides a permanent board of state officers, sitting all the time, to receive submission of differences and adjust them, without expense to either disputant. Members of the board are not arbitrators. In actual practice, a board of arbitration is too frequently a jury packed on both sides. In any event, its verdict is a compromise, and the public interest is not taken into consideration. The court of industrial relations sits to administer industrial justice, and its facilities for doing so are complete. Its command of data and of aids to sound conclusion includes everything that both business and government are able to supply. It supplants no type of shop committee, no mutual-interest department of any business organization, and no principle of voluntary adjustment. Its intention is to prevent strife in case of disagreement, by promulgation of just, reasonable and lawful regulations, and it must be classified as an instrument of social progress. With a tribunal of this kind to appeal to, disputants have no moral right, and have no economic excuse, for fighting after failing to agree.
Sometimes under stress of genuine emotion, sometimes in rant, and sometimes in misguided ignorance, labor speaks of its “right” to strike as God-given. Right to strike is God-given in the same sense that right indicated by the word “property” is God-given. They both developed naturally out of the relation of man to his environment, including other men. The primitive man claimed the game he killed, because it was necessary to his survival. This ownership extended to the flints he chipped, the arrows he barbed, and other things on which he depended for existence. Consciousness that a fight and probable injury would result induced other men to refrain from interfering with his possession. The practice grew into an overtly admitted claim. The practice became habitual, then customary and general, and finally crystallized into a rule, simply through a feeling that the rule possessed obligatory force. When legal institutions were set up, the sphere of self-help in enforcing the rule was very greatly narrowed. The right to strike grew up in precisely the same way. Quitting work, first permanently, and then with the expectation of re suming, was found by experience to produce a result which served an end. The practice of quitting work grew as the satisfaction was more often desired. The practice so fitted into the scheme of relations that it became recognized as rightful, and was protected by law. It has served as a rude but valuable weapon in the attainment of justice, and has been a positive factor contributing to social progress. As in the case of property, abuse and misuse are not to be tolerated.
In Alabama, the whole controversy which the strike left unsettled was placed in the hands of the governor by agreement. The government of District No. 14, United Mine Workers of America, fines its officers $5,000 each, and fines its subjects $50 each, for recognizing the court of industrial relations. In case of disagreement, there is no remedy but fight. To a fair-minded person standing in the midst of the ruin wrought by a strike, it would seem the state might be interested in the mining business, in the miner, and in the man who needs coal, and might lawfully do something for each, before conflagration is started by the strike torch — the inevitable conflagration, whether the torch be applied by mine ow.ner or by striker. Must Alabama wait until mine owner and miner see fit to go to Governor.Kilby? Must Kansas be driven to operate coal mines by volunteers, under the protection of troops, in order to keep her public institutions going, and in order that her people may have fuel in winter ?
It seems to this court to be quite remarkable that public interest in affairs of this kind should now be challenged by anybody — but the challenge is made, and its grounds may be briefly considered.
Strangely enough, this gingham-dog and calico-cat business of eating each other up is defended under a. constitution ordained and established “to insure domestic tranquillity.” The mine owner vociferates “Property!” ■ The miner shouts “Liberty!” Meanwhile, riot and bloodshed are rampant. Homeless women and children of District No. 20 watch the battle from tents on the hillside, and the nurse at the Pittsburg hospital feels her own heart freeze as she watches the temperature of her patient’s room go down.
It is scarcely necessary to cite decisions to the effect that, in this country, every man holds all his rights and privileges subject to lawful interference by the state. The strike privilege was not conferred by any constitution or by any statute. It developed in the field of the common law, and normally should be subject to legislative regulation.
The worker tells the story of the intolerable grievances he has suffered, his helplessness in a contest with organized and syndicated capital, the necessity for combining with his fellows, and the desperation which drove them to strike. The story is true in all its details; but there is a final chapter. The public began to take an interest in strikes long ago. Sympathy was likely to be with the under dog, who was likely to be entitled to his bone, and pressure of public opinion became a valuable ally of striking workmen. Then, in many instances, public inconvenience was deliberately contrived, and the relation which the typical strike ultimately bore to public welfare is revealed by the instances cited at the beginning of this discussion. The wailipg of children starving for milk, fell on deaf ears in Chicago.
It is said that a man is a slave unless he may quit work. The assertion is ambiguous. If it refers to striking, which is not abandonment of the employer’s service at all, it is untrue. If it refers to leaving the employer’s service, it is still untrue. A train crew may rightfully be forbidden to leave a trainload of passengers between stations. Probably, identification of striking with leaving the employer’s service under circumstances not so exceptional, is intended. In that sense the assertion is an abuse of language and, if made by a person capable of clarity of thought and clarity of expression, can accomplish no purpose except to obscure the truth.
It is said the worker has a right to leave his employer’s service, and what he may rightfully do he may do with others having the same right. For obvious reasons of public policy, the privilege to discontinue personal service must be unrestrained. Every purpose of the policy is fulfilled by exercise of the privilege. When a worker undertakes to induce others to break their relationship with their employer, he steps outside the limits of the privilege which is essential to selfhood. He interferes in the affairs of others, and in a matter which bears no relation to his own personal privilege to work or quit work. The consequences are not those which follow from exercise of his own privilege, and they are to be appraised without reference to that privilege. When a worker confederates with oth ers to leave service in a body, he steps outside the limits of privilege essential to selfhood. It requires no confederacy to enable him to quit work, and so escape servitude. Confederating being something which is outside of and unrelated to personal privilege to quit work, it is to be judged according to consequence and motive. In case of a strike, the object of the confederacy is not to preserve or to protect the privilege to quit work and be free. That privilege is already unrestrained. The object is to coerce the employer by the multiplied power of combined action, and to coerce him in respect to something which bears no relation to unrestrained privilege to quit work. Conduct of the worker, therefore, has ceased to be individual and personal. It presents a social aspect; and when conduct becomes social, government takes an interest. If the general welfare be affected, government may take action.
It is said that organized labor is a part of the public, and the public has no rights superior to the toiler’s right to live and to defend himself against oppression.
It is gratifying to know that the public has close relation to organized labor. Nobody disputes the toiler’s right to live, or right to defend himself against oppression. If the assertion , means the public has no rights superior to organized labor’s right to strike, it would seem government, as the representative of the unorganized portion of the public, will be obliged to join a labor union, in order to obtain opportunity to work for the general welfare.
Let nobody be deceived concerning the relation of the strike to government. In the opinion in the Debs case, the court pointed to the attempted exercise by individuals of powers belonging to government alone. Last year, at the time of the Polish crisis, the Chicago Federation of Labor passed a, resolution urging American labor bodies to prevent mobilization of military or naval forces to assist Poland. Congress passed the Adamson law. The city of Boston must be delivered over to looting by mobs of thugs unless officers, who should have no interest except the public safety, may have the privilege of affiliating with the American Federation of Labor. The great city of Chicago must deal with “Umbrella Mike” in order to discharge its municipal functions. Alexander Howat does not recognize courts.
It is said.that mitigation of the barbarity of the strike will be a step backward. In other departments of human interest we adopt measures to prevent misery and woe. The court of industrial relations is an industrial prophylactic, and the use of prophylactics has not heretofore been regarded as reactionary. In no other human relation is public brawling regarded as a public good; in no other human relation is the Higher Law a law of force; and'the figure of the head of organized labor in the United States prescribing the limits of obedience to law in the name of unregulated .force, calls to mind the figure of the former emperor of Germany, who, on a public occasion, said: “There is only one master in this country. I am he, and I will not tolerate another”; and who later said, “Those who try to interfere with my tasks I shall crush.”
It has seemed necessary to say thus much concerning the so-called “right” to strike, because of the earnestness, and in some instances the extravagance, with which it is defended. ■ Let it be made plain here and now that the court champions no favorite in the so-called industrial conflict. On other occasions the court has spoken frankly of the inhumanity of departments of the modern industrial system, and of the cruelties which have accompanied industrial growth. Waste of human life and limb, and the casting upon society of cripples, human derelicts, and widows and orphans without means of support, were almost a feature of the conduct of some industries ; and laws such as the factory act, the workmen’s compensation act, and other remedial measures, were opposed with the utmost vehemence. The mining industry is not guiltless. Some who have engaged in it had no conception of public service. They mined coal for profit. They were interested in limited production, because it was believed to occasion high prices. They were not greatly concerned about cost, because the public paid the bills. This attitude resulted in chronic mismanagement, and they had no part in what they regarded as sentimental movements for amelioration. Miners were exploited through overwork and underpay, through company stores and oppressive regulations, through inadequate safeguards and accidents which took the form of holocausts, through bad sanitation and bad housing, and through long and unnecessary periods of enforced idleness. The miner had no capital except his capacity to labor. His situation was such that he was obliged to accept whatever terms.and working conditions were offered him. His “liberty” to quit work and go elsewhere if not satisfied with his employer’s terms was pure myth and mockery. He could not even get in touch with the superintendent to talk over his grievances. If by some fortuity he did so, and contended too long or too strenuously, he was discharged and, if an American citizen, it was likely his place was taken by a foreign immigrant. As an individual he was helpless; but he had to live. His only remedy appeared to be to, federate with others, and take such drastic action as would extort from his employer some measure of relief from conditions which could not be endured. Other chapters of our industrial history contain nothing which does not deserve praise, and they prompt eulogies of the fine spirit and attitude, the cooperative relationship, and the splendid achievements of American capital and American labor. To indulge the prompting here would serve no purpose, because, as was said in the beginning, the act creating the court of industrial relations was justified, or was not justified, by ominous facts, some of which the court was compelled to state on this record.
The law applicable to the facts may be sketched as briefly as possible. Some centuries ago it was found expedient, in the country from which our legal institutions were derived, to regulate business in the interest of the public welfare. Some regulations were unwise and ineffective. Others served their purpose, and then fell into disuse because of changed conditions. The trend of economic development was such that for a long time regulation of business was practically dormant, and economic theory was framed accordingly; but there never was a time when legal theory forbade regulation, if public inconvenience and public oppression demanded it. Sometimes it was public health which required intervention, and sometimes public safety; but business was'frequently regulated simply because it was “affected with a public interest.” Our colonial history furnishes instances of such regulation, and it was not unfamiliar to framers of the constitution of the United States. When it is said, therefore, that the act of 1920 is a discredited and discarded form of interference with private business, brought from the lumber room of the remote past, the essence of the matter is not touched. Organized government has never been without power to make regulations whenever the conduct of business threatened public harm, and the power has been exercised as occasion required. Reservation to the states, in the constitution of the United States, of the police power, and limitations on exercise of that power, are subjects of familiar law. In 1876 the decision in Munn v. Illinois, 94 U. S. 113, was rendered. • That decision was followed by determined reactionary efforts to limit its application to definite classes of business — business involving use of property, business enjoying a franchise, business enjoying a monopoly. These and other effdrts to limit, and even to overthrow, the doctrine of the Munn cáse, failed, and all the arguments by which they were sustained weré refuted in the opinion in the case of German Alliance Ins. Co. v. Kansas, 233 U. S. 389 — a landmark in the progress of the law almost as noteworthy as the case of Munn v. Illinois,
Eminent counsel representing employers of labor in industries affected by the act of 1920 were invited to file briefs in this case, and the court gratefully acknowledges the benefit of their very candid and very forceful criticisms of the act. Their chief contentions, including the in terrorem argument that constitutional government is jeopardized and all the affairs of life may be regulated if the Munn case be applied to any new subj ect, are so fully met by the decision in the Insurance Company case that space will be given to an extended quotation from the opinion:
“In some degree the public interest is concerned in every transaction between men, the sum of the transactions constituting the activities of life. But there is something more special than this, something of more definite consequence, which makes the public interest that justifies regulatory legislation. We can best explain by examples. The transportation of property — business of common carriers — is obviously of public concern -and its regulation is an accepted governmental power. The transmission of intelligence is of cognate character. There are other utilities which are denominated public, such as the furnishing of water and light, including in the latter gas and electricity. We do not hesitate at their regulation nor at the fixing of the prices which may be charged for their service. The basis of the ready concession of the power of regulation is the public interest. This is not denied, but its application to insurance is so far denied as not to extend to the fixing of rates. It is said the" state has no power to fix the rates charged to the public by either corporations or individuals engaged in a private business, and the ‘test of whether the use is public or not is whether a public trust is imposed upon the property and whether the public has a legal right to the use which cannot be denied’; or, as we have said, quoting counsel, ‘Where the right to demand and receive service does not exist in the public, the correlative right of regulation as to rates and charges does not exist.’ Cases are cited which, it must be admitted, support the contention. The distinction is artificial. It is, indeed, but the assertion that the cited examples embrace all cases of públic interest. The complainant explicitly so contends, urging that the test it applies excludes the idea that there can be a public interest which gives the power of regulation as distinct from a public use which, necessarily, it is contended, can only apply to property, not to personal contracts. The distinction, we think, has no basis in principle (Noble State Bank v. Haskell, 219 U. S. 104), nor has the other contention that the service which cannot be demanded cannot be regulated.
“Munn v. Illinois, 94 U. S. 113, is an instructive example of legislative power exerted in the public interest. The constitution of Illinois declared all elevators or storehouses, where grain or other property was stored for a compensation, to be public warehouses, and a law was subsequently enacted fixing rates of storage. In other words, that which had been private property had from its uses become, it was declared, of public concern and the compensation to- be charged for its use prescribed. The law was sustained against the contention that it deprived the owners of the warehouses of their property without due process of law. We can only cite the case and state its principle, not review it at any length. The principle was expressed to be, quoting Lord Chief Justice Hale, ‘that when private property is “affected with a public interest it ceases to be juris privati” only’ and it becomes ‘clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large’; and, so using it, the owner ‘grants to the public an interest in that use, and must submit to be controlled by the public for the common good.’ And it was said that the application of the principle could not be denied because no precedent could be found for a statute precisely like the one reviewed. It presented a case, the court further said, ‘for the application of a long-known and well-established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress.’ The principle was expressed as to property, and the instance of its application was to property, but it is manifestly broader than that instance. It is the business that is the fundamental thing; property is but its instrument, the means of rendering the service which has become of public interest.
“That the case had broader application than the use of property is manifest from the grounds expressed in the dissenting opinion. The basis of the opinion was that the business regulated was private and had ‘no special privilege connected with it, nor did the law ever extend to it any greater protection than it extended tp all other private business.’ The argument encountered opposing examples, among others, the regulation of the rate of interest on money. The regulation was accounted for on the ground that the act of Parliament permitting the charging of some interest was a relaxation of a prohibition of the common law against charging any interest, but this explanation overlooked the fact that both the common law and the act of Parliament were exercises of government regulation of a strictly private business in the interest of public policy, a policy which still endures and still dictates regulating laws. Against that conservatism of the mind, which puts to question every new act of regulating legislation and regards the legislation invalid or dangerous until it has become,familiar, government — state and national — has pressed on in the general welfare; and our reports are full of cases where in instance after instance the exercise of regulation was resisted and yet sustained against attacks asserted to be justified by the constitution of the United States. The dread of the moment having passed, no one is now heard to say that rights were restrained or their constitutional guaranties impaired.
“Munn v. Illinois was approved in many state decisions, but.it was brought to the review of this court in Budd v. New York, 143 U. S. 517, and its doctrine, after elaborate consideration, reaffirmed, and against the same arguments which are now urged against the Kansas statute. Nowhere have these arguments been, or could be, advanced with greater strength and felicity of expression than in the dissenting opinion of Mr. Justice Brewer. Every consideration was adduced, based on the private character of the business regulated and, for that reason, its constitutional immunity from regulation, with all the power of argument and illustration of which that great judge was a master. The considerations urged did not prevail. Against them the court opposed the ever-existing police power in government and its necessary exercise rior the public good and declared its entire accommodation to the limitations of the constitution. The court was not deterred by the charge (repeated in the case at bar) that its decision had the sweeping and dangerous comprehension of subjecting to legislative regulation all of the businesses and affairs of life and the prices of all commodities. Whether we may apprehend such result by extending the principle of the cases to fire insurance we shall presently consider.
“In Brass v. Stoeser, 153 U. S. 391, Munn v. Illinois and Budd v. New York were affirmed. A law of the state of North Dakota was sustained which made all buildings, elevators and warehouses used for the handling of grain for a profit public warehouses, and fixed a storage rate. The case is important. It extended the principle of the other two cases and denuded it of the limiting element which was supposed to beset it — that to justify regulation of a business the business must have a monopolistic character. That distinction was pressed and answered. It was argued, the court said (p. 402), ‘that the statutes of Illinois and New York [passed on in the Munn and Budd cases] are intended to operate in great trade centers, where, on account of the business being localized in the hands of a few persons in close proximity to each other, great opportunities for combinations to raise and control elevating and storage charges are afforded, while the wide extent of the state of North Dakota and the small population of its country towns and villages are said to present no such opportunities.’ And it was also urged that the method of carrying on business in North'" Dakota and the eastern cities was different, that the elevators in the latter were essentially means of transporting grain from the lakes to the railroads and those who owned them could, if uncontrolled by law, extort such charges as they pleased, and stress was laid upon the expression in the other cases which represented the business as a practical monopoly. A contrast was made between those conditions and those which existed in an agricultural state where land was chea’p and limitless in quantity. It was replied that this difference in conditions was ‘for those who make, not for those who interpret, the laws.’ And considering the expressions in the other cases which, it was said, went rather to the expediency of the laws, than to their validity, yet, it was further said, the expressions had their value because the ‘obvious aim of the reasoning that prevailed was to show that the subject-matter of these enactments fell .within the legitimate sphere of legislative power, and that, so far as the laws and constitution. of the United States were concerned, the legislation in question deprived no person of his property without due process of law.’ (p. 404.)
“The cases need no explanatory or fortifying comment. They demonstrate that a business, by circumstances and its nature, may arise from private to be of public concern and be subject, in consequence, to governmental regulation. And they demonstrate, to apply the language of Judge Andrews in People v. Budd (117 N. Y. 1, 27), that the attempts made to place the right of public regulation in the cases in which it has been exerted, and of which we have given examples, upon the ground of special privilege conferred by the public on those affected cannot be supported. ‘The underlying principle is that business of certain kinds holds such a peculiar relation to the public interests that there is superinduced upon it the right of public regulation.’ ... It would be a bold thing to say that the principle is fixed, inelastic, in the precedents of the past, and cannot be applied though modern economic conditions may make necessary or beneficial its application. In other words, to say that government possessed at one time a greater power to recognize the public interest in a business and its regulation to promote the general welfare than government possesses to-day.” (German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 406-411.)
The legislature was of the opinion the industries specified in section 3 of the act of 1920 are affected with a public interest, and so declared. The declaration did not make them so. Whether they are or not depends on their relation to public interest. Without presenting the facts, of which the court takes judicial knowledge, concerning the peculiar relation the product of the Kansas coal mines bears to the state’s fuel supply, and without discussing further the peculiar conditions under which production is accomplished, the court concludes the business of producing coal bears an intimate relation to the public peace, good order, health and welfare; that such business is affected with a public interest; and that such business may be regulated, to the end that reasonable continuity and efficiency of production may be maintained.
The mills of Kansas stand to-day “at the gateway of commerce” more prominently than did private elevators forty-five years ago. Great packing plants, belonging to what the Federal trade commission calls the “Big Five,” are located in Kansas. Many smaller packing companies operate plants within the state, and the meat-packing industry effectively dominates not only a food supply, but one of the great industries of the state — the live-stock industry. There are other reasons for regulation, which need not be specified because the issues in this case involve production of fuel only; but the manufacture of food products is mentioned to show the precarious ground on which the state stands in respect to its supply of the necessities of life in case of emergency.
The business of producing coal being affected with a public interest to an extent authorizing reasonable regulation, is the act of 1920 such a regulation ? ' The defendants contend that it is not, because it destroys liberty of contract.
' The offending provision of the act is section 9. The section begins with the recognition of approved general principles which ought to be applied in the regulation of industry. It then makes acknowledgment of the right of free choice of employment and of the right to make and carry out fair, just and reasonable contracts and agreements of employment. The section concludes as follows:
“If, during the continuance of any such employment, the terms or conditions of any such contract or agreement hereafter entered into, are by said court, in any action or proceeding properly before it under the provisions of this act, found to be unfair, unjust or unreasonable, said court of industrial relations may by proper order so modify the terms and conditions thereof so that they will be and remain fair, just and reasonable ánd all such orders shall be enforced as in this act provided.”
The argument in opposition to validity of the section is marred by the interlarding of imputations to the regulating body of authority to act arbitrarily, to act according to its pleasure, to act according to its will, to act according to its whim. The legislature granted no such authority, and the fair presumption is that public officers in such an important station will not abuse their trust. The point is made, however, that workmen have the privilege of exercising their own judgment with respect to the fairness, justness, and reasonableness of engagements with employers, and that contracts under which they work, satisfactory to themselves and to their employers, are not subject to modification or abrogation by the court of industrial relations. The argument misconceives the meaning of the section; and in order to present the proper interpretation of the section, it will be necessary to relate it to the general scheme of the law.
The legislature was moved to take action by circumstances and by events which have been narrated. They disclosed the helplessness of the people in an emergency, and the purpose was to be prepared in the future for any emergency. It would be folly to wait until it is again necessary to call out troops. Measures of preparedness are fair subjects of legislative choice, within the well-understood constitutional limitations. The subjects chosen were the necessaries of life. The extent of the regulation, so far as it affects the defendants, was protection of reasonable continuity and efficiency of production. Production is fundamental: there can be no distribution or consumption until there has been production. Continuous production, and production according to the approval of an efficiency expert, are not required at all. Only that continuity and efficiency are required which will secure the people from privation and oppression. Limiting production and withdrawing from production are expressly permitted, for any purpose which does not contemplate circumvention of the law. The court of industrial relations, however, has oversight of production all the time. Jurisdiction is not suspended from crisis to crisis. If the court must wait until the evils of a crisis have been suffered, the statute is nugatory. Should authority be too zealously manifested in improper or unwarranted interference, the particular orders are subject to review, and may be annulled. A controversy between employer and workers, or between groups or crafts of workers, which endangers production, creates an emergency, with which the court may deal on its own motion, or on complaint. It may make temporary orders to preserve the peace and to protect private and public interests pending investigation. After investigation, the court makes and serves on the parties to the controversy findings on which orders may be based settling and adjusting the controversy. The nature of the court’s action depends on the result of the investigation, and its determination of the controversy extends no further than the purpose of the act requires. Orders, pursuant to findings, respecting all the common subjects of industrial controversy, are authorized. Every order made is essentially an emergency order, and continues in force only for such reasonable time, to be fixed by the court,.as may be necessary to avert danger. If, after experiment, either party to the controversy finds the order unreasonable or impracticable, application may be made for modification. Any order is subject to change by agreement between the parties to the controversy, with- approval of the court. This approval extends merely to seeing that a contract shall not be made use of to defeat the policy of the statute. Collective bargaining, by unions or associations of workers, whether incorporated or unincorporated, is expressly recognized. In case of contumacy, the court is authorized to take over the coal mines, by proper proceedings, and control and operate them.
Section 9 does not authorize a general revision of labor contracts. In congruity with other sections, it does no more than provide that contracts shall not thwart achievement of the public purposes of the statute. No contract may be modified except in an action or proceeding properly before the court, that is, an action or proceeding relating to a controversy. If, in dealing with the emergency created by a controversy, the court encounters a contract which would hamper the making of a necessary order, the contract may be treated as any other element of the situation. No contract is to be regarded as unfair, unjust, or unreasonable, that is not an impediment to settlement of a controversy, and orders respecting contracts of the obstructive character are merely ancillary to determination of the controversy. The power exercised in making such orders is the same power which takes entire charge of a mine and operates it during an emergency.
Section 17 makes unlawful conspiracy to quit employment and to induce others to quit, picketing, and the bludgeoning of those who want to work, whether employees or not, by abuse, intimidation, and threat, for the purpose of accomplishing that which the statute was designed to prevent. It is said this section destroys collective bargaining. Collective bargaining is bargaining by an organization or group of workmen, on behalf of its members, with the employer. That privilege is not only protected, but may be exercised, and is expected to be exercised, even to the extent of altering orders of the court of industrial relations. What the defendants contend for is license to conspire to injure the public.
It is said the act of 1920 is void because it trenches on personal liberty. The personal liberty contended for is liberty to leave the employer’s service. All the leading cases in which the principle involved have been discussed are cited. It is not necessary to review them. The statute expressly guards the privilege of any employee to quit his employment at any time. He may quit before controversy arises, when controversy arises, while controversy is raging, and after controversy has been adjusted. As many others as desire may do likewise, and they may do so as the result of mutual-interest consultations. No employee may, however, transgress the limits of his personal privilege, as defined earlier in this opinion, for the purpose of limiting or suspending production, contrary to the provisions of the act. '
Reference is made to cases discussing an employer’s privilege to discharge workmen. The statute contains just one provision touching that subject. In order to protect jurisdiction and authority of the court of industrial relations, it is made unlawful to discharge a workman for complaining to or testifying before the court. In no other respect is the employer’s right to “hire and fire” restricted. The defendants are not interested in the provision referred to. If they were, and if the provision were invalid, it would not vitiate the valid portions of the statute. Understanding the pioneer character of its work, the legislature "framed the statute so that any invalid provision — not section, but provision (section 28) — may be eliminated without affecting others. This rule of interpretation extends to application of the same provision to different subjects.
Heretofore the industrial relationship has been tacitly regarded as existing between two members — industrial manager, and industrial worker. They have joined whole-heartedly in excluding others. The legislature proceeded on the theory there is a third member of those industrial relationships which have to do with production, preparation and distribution of the necessaries of life — the public. The legislature also proceeded on the theory the public is not a silent partner. Whenever the dissensions of the other two become flagrant, the third member may see to it the business does not stop. The privilege of in-, dustrial managers to organize is not disputed. The privilege of industrial workers to organize is expressly recognized. Collective bargaining between the two organizations is not only encouraged, but is in effect placed on the plane of duty. The rights of society as a whole, however, are dominant over industry; and the state is under obligation to intervene to compel settlement of differences whenever failure of manager and laborer to agree endangers the public safety or -.causes general distress.
The judgment of the district court is affirmed.
Chapter 29, Special Session Laws op 1920.
An Act creating the Court of Industrial Relations, defining its powers and duties, and relating thereto, abolishing the Public Utilities Commission, repealing all acts and parts of acts in conflict therewith, and providing penalties for the violation of this act.
Be it enacted by the Legislature of the State of Kamsas:
Section 1. There is hereby created a tribunal to be known as the Court of Industrial Relations, which shall be composed of three judges who shall be appointed by the governor by and with the advice and consent of the Senate. Of such three judges first appointed, one shall be appointed for a term of one year, one for a term of two years, and one for a term of three years, said terms to begin simultaneously upon qualification of the persons appointed therefor. Upon the expiration of the term of the three judges first appointed as aforesaid, each succeeding judge shall be appointed and shall hold his'office for a term of three years and until his successor shall have been qualified. In case of a vacancy in the office of judge of said Court of Industrial Relations the governor shall appoint his successor to fill the vacancy for the unexpired term. The salary of each of said judges shall be five thousand dollars per year, payable monthly. Of the judges first to be appointed, the one appointed for the three-year term shall be the presiding judge, and thereafter the judge whose term of service has been the longest shall be the presiding judge: Provided, That in case two or more 'of said judges shall have served the same length of time, the presiding judge shall be designated by the governor.
. Sec. 2. The jurisdiction conferred by law upon the Public Utilities Commission of the state of Kansas is hereby conferred upon the Court of Industrial Relations, and the said Court of Industrial Relations is hereby given full power, authority and jurisdiction to supervise and control all public utilities and all common carriers as defined in sections 8329 and 8330 of the General Statutes of Kansas for 1915, doing business in the state of Kansas, and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction. All laws relating to the powers, authority, jurisdiction and duties of the Public Utilities Commission of this state are hereby adopted and all powers, authority, jurisdiction and duties by said laws imposed and conferred upon the Pujblic Utilities Commission of this state relating to common carriers and public utilities are hereby imposed and conferred upon the Court of Industrial Relations created under the provisions of this act; and in addition thereto said Court of Industrial Relations shall have such further power, authority and jurisdiction and shall perform such further duties as are in this act set forth, and said Public Utilities Commission is hereby abolished. That all pending actions brought by or against the said Public Utilities Commission of this state shall not be affected, but the same may be prosecuted or defended by and in the name of the Court of Industrial Relations. Any investigation, examination, or proceedings had or undertaken, commenced or instituted by or pending before said Public Utilities Commission at the time of the taking effect of this act are transferred to and shall be continued and heard by the said Court of Industrial Relations hereby created, under the same terms and conditions and with like effect as though said Public Utilities Commission had not been abolished.
Sec. 3. (a) The operation of the following named and indicated employments, industries, public utilities and common carriers is hereby determined and declared to be affected with a public interest and therefore subject to supervision by the state as herein provided for the purpose of preserving the public peace, protecting the public health, preventing industrial strife, disorder and waste, and securing regular and orderly conduct of the businesses directly affecting the living conditions of the people of this state and in the promotion of the general welfare, to wit: (1) The manufacture or preparation of food products whereby, in any stage of the process, substances are being converted, either partially or wholly, from their natural state to a condition to be used ás food for human beings; (2) The manufacture of clothing and all manner of wearing apparel in common use by the people of this state whereby, in any stage of the process, natural products are being converted, either partially or wholly, from their natural state to a condition to be used as such clothing and wearing apparel; (3) The mining or production of any substance or material in common use as fuel either for domestic, manufacturing, or transportation purposes; (4) The transportation of all food products and articles or substances entering into wearing apparel, or fuel, as aforesaid, from the place where produced to the place of manufacture or consumption; (5) All public utilities as defined by section 8329, and all common carriers as defined by section 8330 of the General Statutes of Kansas of 1915. '
(6) Any person, firm or corporation engaged in any such industry or employment, or in the operation of such public utility or common carrier, within the state of Kansas, either in the capacity of owner, officer, or worker, shall be subject to the provisions of this act, except as limited by the provisions of this act.
Sec. 4. Said Court of Industrial Relations shall have its office at the capital of said state in the city of Topeka, and shall keep a record of all its proceedings which shall be a public record and subject to inspection the same as other public records of this state. Said court, in addition to the powers and jurisdiction heretofore conferred upon, and exercised by, the Public Utilities Commission, is hereby given full power, authority and jurisdiction to supervise, direct and control the operation of the industries, employments, public utilities, and common carriers in all matters herein specified and in the manner provided herein, and to do all things needful for the proper and expeditious enforcement of all the provisions of this act.
Sec. 5. Said Court of Industrial Relations is hereby granted full power to adopt all reasonable and proper rules and regulations to govern its proceedings, the service of process, to administer oaths, and to regulate the mode and manner of all its investigations, inspections and hearings: Provided, however, That in the taking of testimony the rules of evidence, as recognized by the supreme court of the state of Kansas in original proceedings therein, shall be observed by said Court of Industrial Relations; and testimony so taken shall in all cases be transcribed by the reporter for said Court of Industrial Relations in duplicate, one copy of said testimony to be filed among the permanent records of said court, and the other to be submitted to said supreme court in case the matter shall be taken to said supreme court under the provisions of this act.
Sec. 6. It is hereby declared and determined to be necessary- for the public peace, health and general welfare of the people of this state that the industries, employments, public-utilities and common carriers herein specified shall be operated with reasonable continuity and efficiency in order that the people of this state may live in peace and security, and be supplied with the necessaries of life. No person, firm, corporation,- or association of persons shall in any manner or to any extent, willfully hinder, delay, limit or suspend such continuous and efficient operation for the purpose of evading the purpose and intent of the provisions of this act; nor shall any person, firm, corporation, or association of persons do any act or neglect or refuse to perform any duty herein enjoined with the intent to hinder, delay, limit or suspend such continuous and efficient operation as aforesaid, except under the terms and conditions provided by this act.
Sec. 7. In case of a controversy arising between employers and workers, or between groups or crafts of workers, engaged in any of said industries, employments, public utilities, or common carriers, if it shall appear to said Court of Industrial Relations that said controversy may endanger the continuity or efficiency of service of any of said industries, employments, public utilities or common carriers, or affect the production or transportation of the necessaries of life affected or produced by said industries or employments, or produce industrial strife, disorder or waste, or endanger the orderly operation of such industries, employments, public utilities or common carriers, and thereby endanger the public peace or threaten the public health, full power, authority and jurisdiction are hereby granted to said Court of Industrial Relations, upon its own initiative, to summon all necessary parties before it and to investigate said .controversy, and to make' such temporary findings and orders as may be necessary to preserve the public peace and welfare and to preserve and protect the status of the parties, property and public interests involved pending said investigations, and to take evidence and to examine all necessary records, and to investigate conditions surrounding the workers, and to consider the wages paid to labor and the return accruing to capital, and the rights and welfare of the public, and all other matters affecting the conduct of said industries, employments, public utilities or common carriers, and to settle and adjust all such controversies by such findings and orders as provided in this act. It is further made the duty of said Court of Industrial Relations, upon complaint of either party to such controversy, or upon complaint of any ten citizen taxpayers of the community in which such industries, employments, public utilities or common carriers are located, or upon the complaint of the attorney-general of the state of Kansas, if it shall be made to appear to said court that the parties are unable to agree and that such controversy may endanger the continuity or efficiency of service of any of said industries, employments, public utilities or common carriers, or affect the production or transportation of the necessaries of life affected or produced by said industries or employments, or produce industrial strife, disorder or waste, or endanger the orderly operation of such industries, employments, public utilities or common carriers, and thereby endanger the public peace or threaten the public health, to proceed and investigate and determine said controversy in the same manner as though upon its own initiative. After the conclusion of any such hearing and investigation, and as expeditiously as possible, said Court of Industrial Relations shall make and serve upon all interested parties its findings, stating specifically the terms and conditions upon which said industry, employment, utility or common carrier should be thereafter conducted in so far as the matters determined by said court are concerned.
Sec. 8. The Court of Industrial Relations shall order such changes, if any, as are necessary to be made in and about the conduct of said industry, employment, utility or common carrier, in the matters of working and living conditions, hours of labor, rules and practices, and a reasonable minimum wage, or standard of wages, to conform to the findings of the court in such matters, as provided in this act, and such orders shall be served at the same time and in the same manner as provided for the service of the court’s findings in this act: Provided, All such terms, conditions and wages shall be just and reasonable and such as to enable such industries, employments, utilities or common carriers to continue with reasonable efficiency to produce or transport their products or continue their operations and thus to promote the general welfare. Service of such ofder shall be made in the same manner as service of notice of any hearing before said court as provided by this act. Such terms, conditions, rules, practices, wages, or standard of wages, so fixed and determined by said court and stated in said order, shall continue for such reasonable time as may be fixed by said court, or until changed by agreement of the parties with the approval of the court. - 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.
Sec. 9. It is hereby declared necessary for the promotion of the general welfare that workers engaged in any of said industriesj employments, utilities or common carriers shall receive at all times a fair wage and have healthful and moral surroundings while engaged in such labor; and that capital invested therein shall receive at all times a fair rate of return to the owners thereof. The right of every person to make his own choice of employment and to make and carry out fair, just and reasonable contracts and agreements of employment, is hereby recognized. If, during the continuance of any such employment, the terms or conditions of any such contract or agreement hereafter entered into, are by said court, in any action or proceeding properly before it under the provisions of this act, found to be unfair, unjust or unreasonable, said Court of Industrial Relations may by proper order so modify the terms and conditions thereof so that they will be and remain fair, just and reasonable and all such orders shall be enforced as in this act provided.
Sec. 10. 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.
Sec. 11. Said Court of Industrial Relations may employ a competent clerk, marshal, shorthand reporter, and such expert accountants, engineers, stenographers, attorneys and other employees as may be necessary to conduct the business of said court; shall provide itself with a proper seal and shall have the power and authority to issue summons and subpoenas and compel the attendance of witnesses and parties and to compel the production of the books, correspondence, files, records, and accounts of any industry, employment, utility or common carrier, or of any person, corporation, association or union of employees affected, and to make any and all investigations necessary to ascertain the truth in regard to said controversy. In case any person shall fail or refuse to obey any summons or subpoena issued by said court after due service then and in that event said court is hereby authorized and empowered to take proper proceedings in any court of competent jurisdiction to compel obedience to such summons or subpoena. Employees of said court whose salaries are not fixed by law shall be paid such compensation as may be fixed by said court, with the approval of the governor.'
Sec. 12. In case of the failure or refusal of either party to said controversy to obey and be governed by the order of said Court of Industrial Relations, then and in that event said court is hereby authorized to bring proper proceedings in the supreme court of the state of Kansas to compel compliance with said order; and in case either party to said controversy should feel aggrieved at any order made and entered by said Court of Industrial Relations, such party is hereby authorized and empowered within ten days after service of such order upon it to bring proper proceedings in the supreme court of the state of Kansas to compel said Court of Industrial Relations to make and enter a just, reasonable and lawful order in the premises. In case of such proceedings in the supreme court by either party, the evidence produced before said Court of Industrial Relations may be considered by said supreme court, but said supreme court, if it deem further evidence necessary to enable it to render a just and proper judgment, may admit such additional evidence in open court or order it taken and transcribed by a master or commissioner. In case any controversy shall be taken by either party to the supreme court of the state of Kansas under the provisions of this act, said proceedings shall take precedence over other civil cases before said court, and a hearing and determination of the same shall be by said court expedited as fully as may be possible consistent with a careful and thorough trial and consideration of said matter.
Sec. 13. No action or proceeding in law or equity shall-be brought by any person, firm or corporation to vacate, set aside or suspend any order made and served as provided in this act, unless such action or proceeding shall be commenced within thirty days from the time of the service of such order.
Sec. 14. Any union or association of workers engaged in the operation of such industries, employments, public utilities or common carriers, which shall incorporate under the laws of this state shall be by said Court of Industrial Relations considered and recognized in all its proceedings as a legal entity and may appear before said Court of Industrial Relations through and by its proper officers, attorneys or other representatives. The right of such corporations, and of such unincorporated unions or associations of workers, to bargain collectively for their members is hereby recognized: Provided, That the individual members of such unincorporated unions or associations, who shall desire to avail themselves of such right of. collective bargaining, shall appoint in writing some officer or officers of such union or association, or some other person or persons as their agents or trustees with authority to enter into such collective bargains and to represent each and every of said individuals in all matters relating thereto. Such written appointment of agents or trustees shall be made a permanent record of such union or association. All such collective bargains, contracts, or agreements shall be subject to the provisions of section nine of this act.
Sec. 15. It shall be unlawful for any person, firm or corporation to discharge any employee or to discriminate in any way against any employee because of the fact that any such employee may testify as a witness before the Court of Industrial Relations, or shall sign any complaint or shall be in any way instrumental in bringing to the attention of the Court of Industrial Relations any matter of controversy between employers and employees as provided herein. It' shall also be unlawful for any two or more persons, by conspiring or confederating together, to injure in any manner any other person or persons, or any corporation, in his, their, or its business, labor, enterprise, or peace and security, by boycott, by discrimination, by picketing, by advertising, by propaganda, or other means, because of any action taken by any such person or persons, or any corporation, under any order of said court, or because of any action or proceeding instituted in said court, or because any such person or persons, or corporation, shall have invoked the jurisdiction of said court in any matter provided for herein.
Sec. 16. It shall be unlawful for any person, firm, or corporation engaged in the operation of any such industry, employment, utility, or common carrier willfully to limit or cease operations for the purpose of limiting production or transportation or to affect prices, for the purpose of avoiding any of the provisions of this act; but any person, firm or corporation so engaged may apply to said Court of Industrial Relations for authority to limit or cease operations, stating the reasons therefor, and said Court of Industrial Relations shall hear said application promptly, and if said application shall be found to be in good faith and meritorious, authority to limit or cease operations shall be granted by order of said court. In all such industries, employments, utilities or common carriers in which operation may be ordinarily affected by changes in season, market conditions, or other reasons or causes inherent in the nature of the business, said Court of Industrial Relations may, upon application and after notice to all interested parties, and investigation, as herein provided, make orders fixing rules, regulations and practices to govern the operation of such industries, employments, utilities or common carriers for the purpose of securing the best service to the public consistent with the rights of employers and employees engaged in the operation of such industries, employments, utilities- or common carriers.
Sec. 17. It shall be unlawful for any person, firm or corporation, or for any association of persons, to do or perform any act forbidden, or to fail or refuse to perform any act or duty enjoined by the provisions of this act, or to conspire or confederate with others to do or perform any act forbidden, or to fail or refuse to perform any act or duty enjoined by the provisions of this act, or to induce or intimidate any person, firm or corporation engaged in any of said industries, employments, utilities or common carriers to do any act forbidden, or to fail or refuse to perform any act or duty enjoined by the provisions of this act, for the purpose or with the intent to hinder, delay, limit, or suspend the operation of any of the industries, employments, utilities or common carriers herein specified or indicated, or to delay, limit, or suspend the production or transportation of the products of such industries, or employments, or the service of such utilities or common carriers: Provided, That nothing in this act shall be construed as restricting the right of any individual employee engaged in the operation of any such industry, employment, public utility, or common carrier to quit his employment at any time, but it shall be unlawful for any such individual employee or other person to conspire with other persons to quit their employment or to induce other persons to quit their employment for the purpose of hindering, delaying, interfering with, or suspending the operation of any of the industries, employments, public utilities, or common carriers governed by the provisions of this act, or for any person to engage in what is known as “picketing” or to intimidate by threats, abuse, or in any other manner, any person or persons with intent to induce such person or persons to quit such employment, or for the purpose of deterring or preventing any other person or persons from accepting employment or from remaining in the employ of any of the industries, employments, public utilities, or common carriers governed by the provisions of this act.
Sec. 18. Any person willfully violating the provisions of this act, or any valid order of said Court of Industrial Relations, shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction of this state shall be punished by a fine of not to exceed $1,000, or by imprisonment in the county jail for a period of not to exceed one year, or by both such fine and imprisonment.
.Sec. 19. Any officer of any corporation engaged in any of the industries, employments, utilities or common carriers herein named and specified, or any officer of any labor union or association of persons en gaged as workers in any such industry, employment, utility or common carrier, or any employer of labor, coming within the provisions of this act, who shall willfully use the power, authority or influence incident to his official position, or to his position as an employer of others, and by such means shall intentionally influence, impel, or compel any other person to violate any of the provisions of this act, or any valid order of said Court of Industrial Relations, shall be deemed guilty of a felony and upon conviction thereof in any court of competent jurisdiction shall be punished by a fine not to exceed $5,000 or by imprisonment in the state penitentiary at hard labor for a term not to exceed two years, or by both such fine and imprisonment.
Sec. 20. In case of the suspension, limitation or cessation of the operation of 'any of the industries, employments, public utilities or common carriers affected by this act, contrary to the provisions hereof, or to the orders of said court made hereunder, if it shall appear to said court that such suspension, limitation, or cessation shall seriously affect the public welfare by endangering the public peace, or threatening the public health, then said court is hereby authorized, empowered and directed to take proper proceedings in any court of competent jurisdiction of this state to take over, control, direct and operate said industry, employment, public• utility or common carrier during such emergency: Provided, That a fair return and compensation shall be paid to the owners of such industry, employment, public utility or common carrier, and also a fair wage to the workers engaged therein, during the time of such operation under the provisions of this section.
Sec. 21. When any controversy shall arise between employer and employee as to wages, hours of employment, or working or living conditions, in any industry not hereinbefore specified, the parties to such controversy may, by mutual agreement, and with the consent of the court, refer the same to the Court of Industrial Relations for its findings and orders. Such agreement of reference shall be in writing, signed by the parties thereto; whereupon said court shall proceed to investigate, hear, and determine said controversy as in other cases, and in such case the findings ahd orders of the Court of Industrial Relations as to said controversy shall have the same force and effect as 'though made in any essential industry as herein provided.
Sec. 22. Whenever deemed necessary by the Court of Industrial Relations, the court may appoint such person, or persons, having a technical knowledge of bookkeeping, engineering, or other technical subjects involved in any inquiry in which the court is engaged, as a commissioner for the purpose of taking evidence with relation to such subject. Such commissioner when appointed shall take an oath to well and faithfully perform the duties imposed upon him, and shall thereafter have the same power to administer oaths, compel the production of evidence, and the attendance of witnesses as the said court would have if sitting in the same matter. Said commissioner shall receive such compensation as may be provided by law or by the order of said court, to be approved by the governor.
Sec. 23. Any order made by said Court of Industrial Relations as to a minimum wage or a standard of wages shall be deemed prima facie reasonable and just, and if said minimum wage or standard of wages shall be in excess of the wages theretofore paid in the industry, employment, utility or common carrier, then and in that event the workers affected thereby shall be entitled to receive said minimum wage or standard of wages from the date of the service of summons or publication of notice instituting said investigation, and shall have the right individually, or in case of incorporated unions or associations, or unincorporated unions or associations entitled thereto, collectively, to recover in any court of competent jurisdiction the difference between the wages actually paid and said minimum wage or standard of wages so found and determined by said court in such order. It shall be the duty of all employers affected by the provisions of this act, during the pendency of any investigation brought under this act, or any litigation resulting therefrom, to keep an accurate account of all wages paid to all workers-interested in said investigation or proceeding: Provided, That in case said order shall fix a wage or standard of wages which is lower than the wages theretofore paid in the industry, employment, utility or common carrier affected, then and in that event the employers shall have the same right to recover in the same manner as provided in this section with reference to the workers.
Sec. 24. With the consent of the governor, the judges of said Court of Industrial. Relations are hereby authorized and empowered to make, or cause to be made, within this state or elsewhere, such investigations and inquiries as to industrial conditions and relations as may be profitable or necessary for the purpose of familiarizing themselves with industrial problems such as may arise under the provisions of this act. All the expenses incurred in the performance of their official duties by the individual members of said court and by the employees and officers of said court, shall be paid by the state out of funds appropriated therefor by the legislature, but all warrants covering such expenses shall be approved by the governor of said state.
Sec. 25. The rights and remedies given and provided by this act shall be construed to be cumulative of all other laws in force in said state relating to the same matters, and this act shall not be interpreted as a repeal of any other act now existing in said state with reference to the same matters referred to in this act, except where the same may be inconsistent with the provisions of this act.
Sec. 26. The provisions of this act and all grants of power, authority and jurisdiction herein made to said Court of Industrial Relations shall be liberally construed and all incidental powers necessary to carry into effect the provisions of this act are hereby expressly granted to and conferred upon said Court of Industrial Relations.
Sec. 27. Annually and on or before January first of each year, said Court of Industrial Relations shall formulate and make a report of all its acts and proceedings, including a financial statement of expenses, and .shall submit the same to the governor of this state for his information All expenses incident to the conduct of the business of said Court of Industrial Relations shall he paid by the said court on warrants signed by its presiding judge and clerk, and countersigned by the governor and shall be paid out of funds appropriated therefor by the legislature. The said Court of Industrial Relations shall, on or before the convening of the legislature, make a detailed estimate of the probable expenses of conducting its business and proceedings for the ensuing two years, and attach thereto a copy of the reports furnished the governor, all of which shall be submitted to the governor of this state and by him' submitted to the legislature.
Sec. 28. If any section or provision of this act shall be found invalid by any court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section or provision, and the act as a whole shall not be declared invalid by reason of the fact that one or more sections or provisions may be found to be invalid by any court.
Sec. 29. All acts and parts of acts in conflict herewith are hereby repealed.
Sec. 30. This act shall take effect and be in force from and after its publication in the official state paper. | [
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Per Curiam:
This was a contention between the plaintiff in error, who claimed a stock of goods under a chattel mortgage, and James McClain, a constable of Cowley county, who claimed a part of the same goods by virtue of the levy of an attachment thereon, and the Winfield National Bank, which claimed an interest in the same goods by virtue of a chattel mortgage which it claimed to be prior to both the liens of the other parties.
The goods — a stock of groceries — belonged to L. M. Davis, but were managed by her husband, N. G. Davis.
The case was tried to the court, who made special findings of fact, which show that at the time of the execution and delivery of the chattel mortgage under which the plaintiff claimed, it was agreed that the mortgage should not be filed for record, that the grocery business should be continued by Davis in the usual manner, and that there was no change in the possession of the stock of goods or the manner of transacting the business.
Some forty days thereafter and on September 3, 1895, without any other agreement having been made, the chattel mortgage was filed for record, and on the same day an agent of the plaintiff went to the store of Davis, obtained possession of a key thereof, and attempted to put the husband, N. G. Davis, in charge as agent of the plaintiff, but there was at no time any visible change in the possession of the stock of goods, or in the manner of conducting the business, and it was the understanding between the agent of the plaintiff and Davis that he should. continue in the possession of the goods and the conduct of the business in the same manner as theretofore. No notices were posted nor advertisements given of the change or attempted change of possession of the stock of goods. A written agreement, however, was entered into between the plaintiff and N. G. Davis, to which L. M. Davis was not a party, and which did not purport to in any way bind her, that N. G. Davis should remain in possession of the goods as agent of the mortgagee and have notices posted up, that he should keep strict account of all sales and sell for cash only, keep strict account of all expenses, and report to the mortgagee weekly all sales made and pay over to it on demand all moneys.
The attachments, under which the constable claimed were levied on the 4th and 5th of September.
At the time when the agent of the plaintiff attempted to take possession of the goods on September B, the agent went to the Winfield National Bank, where he learned that the bank had a chattel mortgage on the goods given by Mrs. Davis, which had not been filed for record, and which was claimed to be prior to the mortgage of plaintiff, and it was there agreed that if the bank would mot interfere with the business of L. M. Davis, but permit her to continue in business, she should pay out of the proceeds of the sale of the goods the sum of fifteen dollars per week upon the debt secured by the bank’s mortgage, the balance of the proceeds of the business, after paying the running expenses, to be remitted to the plaintiff.
The action was one in replevin and the plaintiff claimed its right to recover solely by reason of the special ownership conferred by its chattel mortgage.
The trial court found as a matter of law that both of the mortgages of the plaintiff and the bank were void as against the attachment levies, and directed judgment in favor of the constable, and further found in favor of the bank as against the plaintiff for the amount of its claim.
We do not think we ought to disturb the judgment of the court below. Under the agreement which accompanied the making of the mortgage that instrument was clearly void as to all third parties. It would not even support a possession taken thereunder. Another agreement was attempted to be made on September 3, but it is observed that this was not made — even if it is sufficient for any purpose — with the owner of the goods. It did not purport to be her agreement. Further than this, it is very far from clear that the plaintiff ever had actual possession of the goods, either under its chattel mortgage or under this agreement, for we find by looking into the evidence that on September 5, and after the attachment had been levied, N. G. Davis denied that he was the agent of the plaintiff and refused to recognize its right to the possession or control of the goods.
Objection is made to the rendition of a money judgment of $96 against the plaintiff in favor of the bank. That was the amount remaining unpaid on its note secured by the Davis mortgage. The plaintiff in error had taken the entire stock of goods on which the bank had a mortgage and converted it to its own use, and on the trial denied the bank’s lien, and justified its conversion of the goods by virtue of its void chattel mortgage. We think under the circumstances no substantial error was committed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for a real-estate agent’s commission.
The plaintiffs, as real-estate agents, brought the defendant and a buyer together and the latter two effected a bargain for the sale of a valuable farm. The plaintiffs claimed a commission of 3% on the purchase price, $729, and sued for that amount. Defendant’s answer admitted the plaintiffs’ services, admitted that the original agreement between him and plaintiffs was that their commission should be $700, but that this agreement was based on the expectation that the farm should be sold for cash; and that when it transpired that only a part of the purchase price could be paid down by the buyer and that time would have to be given on the balance, the plaintiffs agreed to accept $300 in full for their services.
,On this issue, the cause was tried before a jury. The trial court gave pertinent instructions including the following:
“1. In this case the controversy between the parties is as to whether the commission due is $700 or $300. That is the sole question you have to determine in this case. The plaintiffs performed the service and brought about the sale. That is conceded. The plaintiffs claim that they were to receive three per cent but agreed on $700 for this commission, and the defendant contends that, by reason of some changes in the terms, they agreed upon a commission of $300.
“10. You will have but one form of verdict in this case. It will be for the plaintiffs, and you will return a verdict for either $700 or $300, as you find the facts to be.”
The jury returned a verdict for plaintiffs for $500. This verdict the trial court refused to receive. The court .then further addressed the jury:
“I want to say to you that your verdict should be for either $300 or $700. There is no basis for finding a verdict of $500. It 'must be for either $300 or $700. I will cross out this $500, and you may go back into your jury room'and see if you can find a verdict in one of the amounts I have named.”
The jury retired and later returned with a verdict for plaintiffs for $700, and judgment was rendered accordingly.
Defendant appeals, basing error on the trial court’s refusal to accept the jury’s verdict for $500 and in its instructions that the verdict should be for $700 or $300.
There was no excuse whatever for a verdict for $500. Plaintiffs asked for $729, but acquiesced in defendant’s contention that $700 should be the commission as first agreed upon. That sum, therefore, was the only verdict which the jury could return unless they believed the defendant’s evidence that a later agreement was made fixing the commission at $300 when it transpired that the farm could not be sold for cash. In the course of the evidence, defendant testified that-while he was arguing with plaintiffs to induce them to accept $300 one of them offered to accept $500. But he did not testify that he closed a bargain with them at that figure. He admitted that he agreed to pay $700 originally. He pleaded and testified that later plaintiffs agreed to accept $300. Therefore the court correctly instructed the jury — and no objection to that instruction was made — that their verdict should be for either $700 or $300, according as they believed or disbelieved the evidence adduced to settle the only disputed point in issue. It is beside the case to argue that the jury’s discretion should not be controlled by the trial court. The only discretion the jury had was to determine whether it was the plaintiffs or defendant who were telling'the truth as to the matter of the alleged second agreement. The jury had no right to split the difference, or otherwise to disregard the issue upon which they had received instructions/ A jury must follow instructions as they are sworn to do.
In Tatlow v. Bacon, 95 Kan. 695, 700, 149 Pac. 745, where the jury obviously erred in the amount of their verdict, the trial court called their attention to the inconsistency and directed them to return and reconsider the matter, and to return a consistent verdict. This was held to be lawful trial practice. (See, also, Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080; 38 Cyc. 1893-1895, and notes; 27 R. C. L. 890.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
While Victor Vietti was mining coal for the George K. Mackie Fuel Company, a rock fell from the roof of the mine upon him, which resulted in instant death. At the time of his death he was eighteen years old and had been living with and helping to support his parents. They demanded compensation under the workmen’s compensation act and were awarded the sum of $3,435.12. The only complaint made is as to the amount of the award.
The plaintiffs, dependents of the deceased, are aliens, natives of Italy, who had resided in this country for about twenty-five years. About sixteen years ago the father of deceased took out his first papers, and since that time he has exercised the privileges of a voter but final papers were never applied for or issued to him. Both say that they have no intention of returning to Italy, but do intend to be loyal citizens of this country. The contention of the defendant is that under our compensation act an alien dependent of a deceased workman is limited in the compensation that may be demanded and can recover no more than $750. The pertinent provision of the act under which defendant makes the contention is:
. . and provided however, that if the workman does not leave any dependents citizens of and residing at the time of the accident and injury in the United States or the Dominion of Canada, the amount of compensation shall not exceed in any case the sum of seven hundred fifty dollars.” (Laws 1917, ch. 226, § 3.)
It appears to have been held by the trial court that this provision did not bar a full recovery by plaintiffs, because, although aliens, they were residents of this country at the time of the accident. This result was reached by the substitution of the word “or” for “and” in the provision interpreting it so as to take a resident, although an alien, out of-the limitation. We think it is not open to that interpretation. Sometimes the word “and” in. a. statute may be construed as “or” but the substitution is not permissible unless the manifest intention of the legislature requires it. Nothing in the context of the act nor in the reason or spirit of it appears to warrant such robust treatment. The legislature was prescribing limitations on the recovery of compensation by dependents of the workmen, and made a clear discrimination on grounds of nationality and residence. The word “and” as used expresses the idea of addition and evidences a purpose that only citizens who are residents of this country or Canada can recover full compensation. The word was evidently used in a cumulative sense rather than disjunctively and we find nothing in the act that requires the substitution of one word for the other. No more reason is seen for substituting “or” for “and” than there would be in the familiar provision fixing the penalty of fine and imprisonment for certain offenses.
However, there is another and more serious objection to applying the limitation of the statute to the plaintiffs. The treaty between the United States and Italy contains a provision that:
“The citizens of each of the High Contracting Parties shall receive in the States and Territories of the other the most constant security and protection for their persons and property and for their rights, including. that form of protection granted by any State or national law which establishes a civil responsibility for injuries or for death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs; and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter.” (38 U. S. Stat. 1670.)
The treaty is not only binding on the contracting parties but must be regarded as a part of our own law effective and binding upon legislatures and courts. The Federal constitution in the second clause of article six 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.”
If there is a conflict between the treaty and the statutory provision in question, the treaty must control and the statute give way during the existence of the treaty. It will be observed that the treaty plainly purports to place citizens of the two nations upon an equality in respect to their persons and property rights where citizens of one country are domiciled in the other, and there is also a stipulation that the relatives and heirs of an injured party shall be given a right of action which shall not be restricted on account of the nationality of such relatives or heirs; and there is the further added condition that aliens who submit themselves to the conditions imposed on nationals, shall enjoy the same rights and privileges as nationals. Under these provisions the citizens of Italy who may be in this country and who are not enemies of the country are entitled to the same rights and privileges in respect to their persons and property as are enjoyed by our own citizens. One of the rights enjoyed by our citizens is the recovery of compensation for injury sustained while engaged in certain hazardous employments. It has been suggested that as specific mention is made in the treaty in regard to civil responsibility for injuries resulting in death caused by neglect or fault, a recovery of compensation where negligence or fault is not an element is necessarily excluded. It will be noted that this form of protection is only one of the rights for which provision was made. The protection guaranteed is equality and reciprocity of rights including the one specifically mentioned and the emphasis placed on one does not exclude others plainly provided for in the treaty. The provisions of a treaty are to be given reasonable interpretation, one that will effectuate the obvious purpose of the contracting powers, .and if it were deemed to be open to construction, one which would restrict rights that might be claimed under it and the other favorable to them, the latter is to be preferred. (Hauenstein v. Lynham, 100 U. S. 483-487; Geofroy v. Riggs, 133 U. S. 258-271.) The remedy giving compensation to an injured employee is a substitution for the common-law remedy for damages and when the employer and employee have elected to come under the act, a claim for compensation is the exclusive remedy afforded. (McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247.) Here the employer and the deceased employee had been brought within the provisions of the act and the only right the plaintiffs had by reason of dependency upon their deceased son was that given by the act. This right we think is clearly one of those provided for in the treaty and under it plaintiffs were entitled to be placed upon an equality with our own citizens as to the amount recoverable as compensation. The limitations of the statute being against both the letter and the spirit of the treaty, it must be held to be nugatory as against the plaintiffs.
It may be added that the statutory limitation is also in contravention of the fourteenth amendment of the Federal constitution which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Aliens lawfully resident in the state are within the protection of this clause. The plaintiffs were lawful inhabitants of Kansas, and therefore had a right to invoke the protection of the amendment. The equality clauses of the amendment, it has been determined, “are universal in their application to all persons within the territorial jurisdiction without regard to any difference of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” (Yick Wo v. Hopkins, 118 U. S. 356, 369.) In the late case of Truax v. Raich, 239 U. S. 33, the court had under consideration a statute of Arizona requiring employers of five or more workers to employ not less than 80 per cent qualified electors or native-born citizens of the United States, and imposing penalties upon employers for a violation of the act and also penalties against employees who should make any false statements as to their nativity or citizenship. The validity of the statute was challenged by a native of Austria, who was an inhabitant of the state, but not an elector. It was held that he was entitled to invoke the equality clause of the constitution and further, that the statute was a violation of the fourteenth amendment and could not be justified as an exercise of the power of the state to make reasonable regulations for the promotion of the health, safety, morals and welfare of those within its jurisdiction. (See, also, Wong Wing v. United States, 163 U. S. 228; United States v. Wong Kim Ark, 169 U. S. 649.) Following these authorities it must be held that the statutory limitation in question cannot be applied as against the plaintiffs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In an action under the workmen’s compensation act the plaintiff recovered judgment. The appeal presents the sole question whether his injuries were caused by an accident which arose out of and in the course of his employment.
Benjamin Haas, an oiler of engines and pumps, employed at defendant’s power house in Kansas City, received serious injuries when his right hand came in contact with electrical appliances known as bus bars; the current passing through his body, and he was so badly burned that his right arm had to bo amputated two inches below the elbow, and he received other serious injuries. The petition alleged that at the time of the accident he was working in the due course of his employment.
The answer alleged that the accident did not arise out of -or in' the course of plaintiff’s employment, but that plaintiff negligently left his place of work and went into a room of the plant where he had no duty to perform and where he had been instructed not to go, which room was necessarily filled with high-voltage machinery, dangerous to life, and that while in the room the plaintiff carelessly attempted to reach into and between parts of the dangerous machinery, not in performance of any duty in relation thereto, but for his own purposes, and thus came into contact with the electric current.
The power house of defendant is 170 feet in length north and south, and a little over 60 feet in width. The 'engines and pumps at which plaintiff worked as an oiler were those on the upper floor, and others which were just north of the center of the basement floor. The bus room extends clear across the south end of the basement and is about 60 feet east and west and 25 feet north and south. The room is set apart from the rest of the basement by a brick wall which extends from the floor to the ceiling, and the only way of getting into the room is through narrow archways two feet wide at the east-and west ends of the room.
The bus room is filled with powerful electrical equipment, conducting wires and switches. Oil switches receive their name from the fact that the parts carrying current separate under oil when the circuit is broken. The container in which each switch is located stands on a stone slab of shelf supported by a brick structure. The bus bars are placed in a wall of the room in recessed compartments which are eighteen inches deep from front to back, the bus bars extending through the center of these spaces. The reason for putting them in the recesses is to prevent accidental contact with the bars and also to provide insulation. The bars run behind columns which cover up the face of the bus structure. There were a dozen of these oil switches in the bus room extending from the floor upward about seven feet. No portion of the electrical apparatus in the bus room requires the attention of anyone except that of the chief electrician or his assistant. When the services of a construction gang are required in the .bus room the current is cut off. The room and the numerous passageways between the different high-power appliances and machinery are ail lighted with 100-watt lamps and outside each of the narrow entrances leading into the bus room is a sign reading, “No Admittance.” Immediately inside of each archway there is a sign reading, “6600 Volts Danger.” The testimony of the plaintiff’s witnesses as well as those of the defendant is that an oiler never has any occasion to go into the bus room because there is no-machinery there that requires oiling or attention.
Before the accident plaintiff had been in the employ of the defendant for six weeks; first in the construction gang about the power house, and six days before the accident he was given a place as an oiler. His testimony is that he was instructed as to his duties by Arthur Ravinaw, who was an experienced oiler. The testimony of plaintiff, in substance, was as follows:
He is 22 years old and had been oiling for five days before the accident. Ravinaw gave him instructions ás oiler. His duties were to oil pumps downstairs and one pump upstairs. He worked at nights. The night he was injured he went to work at six o’clock. After oiling the machinery “got my check and Schultz and I went to the state line and got them cashed.” After his return he went downstairs and started to oil machinery. He went from the boiler room into the engine room, and while there he heard a noise and walked back upstairs to Ravinaw — “heard noise something like it was cutting or dragging,- needing oil.” It sounded like it was in the south part of the building. Ravinaw had told him to report to him anything he did not understand. He had never been in the bus room, did not know it was dangerous to go in there.and had never seen any sign of danger or any sign of volts. He told Ravinaw to come downstairs — wanted to show him something or tell him something — did not know which. “Went downstairs. Ravinaw went down. Went toward bus room, still hearing noise; went into bus room, turned around to see if Ravinaw was there.” That was the last he remembered. He could not tell where he got to in the büs room. He did not have a bottle of whisky with him in there. He didn’t know where Ravinaw was when he turned around and did not remember anything after starting to turn around. He was lower oiler and the things he had to oil down there were the oil pump on the west side of the basement about the middle of the room, two pumps on the east side of the basement about the middle at base of engines, and one pump near the south end of the base of the north engine. There was nothing south of that in the basement that he had to oil — nothing that he knew of that had to be oiled. Neither Mr. Ravinaw nor anyone else had pointed out any machinery of any kind to him to oil south of where he worked in the basement. All his work in the basement was at or north of the center of the building on that floor.
On cross-examination he said that on the night of the accident he went with Schultz to the saloon to cash checks. Schultz bought beer for himself and plaintiff and plaintiff bought beer for himself and Schultz. Schultz bought a half pint of whisky. Plaintiff did not say to Schultz, “Think I will get a half pint and take ... to Ravinaw.” When he went back to the plant he léft Schultz in the boiler room and went down to the basement to'oil pumps on the west side and went up from there to the boiler room where Ravinaw was. They were alone. “Can’t say whether I said to him, I wanted to tell him something or show him something, or ask something, one of the three. Nothing to prevent me telling him right there. Said nothing to him about noise; noise was not up there. . . . No one told him not to go into the bus room; didn’t know what was in there; didn’t know what was in the south end of the building at all; never had been in there.” He did not know how he got his hand in the hole behind the column. He was asked:
“When you first went into the passageway, what about this supposed' noise you have been talking about? A. Well, I think it was some kind of machinery that needed oil.
“Q. . . . Now then you knew when you were going in around there [bus room], as you say, that there was not any noise in there, and the noise, if there was any you heard, was upstairs? A. Yes, sir.
“Q. . . . And you haven’t any explanation of how you got in there . . . ? A. No, sir, only just . . . when I went in there, was looking for this noise.”
Ravinaw, the. first witness called by plaintiff, testified that when Haas began as an oiler he gave him his instructions, told him what he was to oil and where, which was in part of the basement and part of the upper floor. Ravinaw knew there were oil switches in the bus room but did not know how many, and knew that there was nothing in the bus room that called an oiler in there — nothing that needed to be oiled. Just before the accident he had a conversation with plaintiff in the boiler room. Plaintiff said to come downstairs, that he wanted to show the witness something or tell him something; witness could not say which it was. Haas started downstairs and witness followed him; he went straight on; saw him going into the bus-room door. Witness had never instructed him not to go in there. He followed him in rapidly; found him standing with his hand against the wall, facing west; his right hand was next to the wall. It was light in there; his right hand was up on top of the bus bars and witness tried to pull him off and got an electrical shock; told the switchboard operator6, and the current was cut off. When Haas told him to come downstairs —that he wanted to show him something, or tell him something, the witness did not know what it was, but there was nothing to prevent the plaintiff from telling him right there; he could see no reason why he could not tell it right there if there was anything to be said.
On cross-examination he admitted .testifying in the Federal court that when he found Haas the latter was standing with his “hand stuck into that hole in the wall,” and he said that that was where the plaintiff’s hand was. His testimony was that a person passing through where Haas was injured could not reach the bus bars except by putting his hand in through the opening. Ravinaw said that when he went to work there he was told not to go into the bus room because of the danger; that he had been in by himself, and once with the electrician— just walked through; but that nobody had any business in that room except the electrician and his helper.
Doctor Frank J. Iuen, a witness for defendant, testified that he was the surgeon for the company and treated plaintiff after his injuries at a hospital in Kansas City, Mo.; that he was present at an interview that took place between the claim adjuster of the company and the plaintiff at the hospital when the plaintiff was practically sitting up in bed, and in the opinion of the witness was perfectly clear mentally; and that plaintiff made the following statement to the claim adjuster which was taken down by the latter:
“I just walked into the bus room and must have gotten hooked up the moment I got in there. There was no one in the room when I went in, and, as for. what I had to tell Ravinaw, it was a little foolishness, and it does not matter. . . . My duties were to oil the engines on the first floor and basement. I had no business in the bus room, as my duties did not take me there and the bus room was forty-five or fifty feet south of the pump which I was employed to oil.”
The plaintiff, on cross-examination, was asked whether he made these statements and answered:
“I think I did, yes, sir, I remember his being there but don’t remember a thing I told him.”
Mr. Myers, night operator of defendant’s switchboard, who shut off the power when notified of the accident, testified that the bus room was as light as day; and he, with other employees who went to the relief 'of the plaintiff at the time of the accident, identified photographs showing the footprints of the plaintiff burned into the concrete by contact with the bars. The night operator testified also that there is still the burned place on the bus bar where the plaintiff’s hand came in contact with it at a point eight inches back from the opening in the recess compartment.
Schultz testified that on the night of the accident he went with Haas to the saloon; that they both bought beer and that Haas said, “I believe I will get a half pint of whisky and give Ravinaw a drink,” and that he bought the whisky. When the accident happened and the current was cut off he ran and told Anderson and then went to the bus room. “Ravinaw said when we got down there, ‘the bottle of whisky is in the little pigeon hole there, don’t say anything to Anderson about it.’ After the lights went out I put my hand in there and got it and broke it. It was against the rules to have whisky around the plant.” The witness was the first person in there after the lights and power were turned off. He also testified that Anderson brought the plaintiff to him to be instructed as oiler and directed the witness in plaintiff’s presence to show him where to oil and to show him about the bus room, and that Anderson said not to'go in there; that he told Haas about the bus room; and that there was nothing in there to oil.
The plaintiff in support of the judgment cites the case of Brick Co. v. Fisher, 79 Kan. 576, 100 Pac. 507. That was a case under the factory act, where four men were employed to work at a certain machine, and the rules permitted each one to take a turn at resting while the others operated the machine. It was held that a resting employee was engaged in the performance of duty the same as if he were occupied at the machine and that the employer’s duty to guard machinery according to the factory act (Laws 1903, ch. 356) extends to all places which employees may reasonably be expected to use in the performance of their duties, including the taking of turns in resting.
We do not believe this case falls within the doctrine of the cases where, during rest periods or at the noon hour, workmen have sustained injuries on the premises where they are employed' — as was held in Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372, where a seventeen-year-old girl who re-' mained on the premises where she was employed during a half-hour intermission at noon, and after eating her. lunch, was injured by falling from a truck pushed or drawn by a fellow employee. Nor does the present case fall within the doctrine of Chance v. Coal & Mining Co., 108 Kan. 121, 193 Pac. 889, where it was ruled that an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises “out of and in the course of his employment.”
The words, “out of and in the course of the employment” have been uniformly held by the British courts and many American courts to be used conjunctively and not disjunctively. In the case of Fitzgerald v. N. G. Clark & Son, (1908) 2 K. B. 786, Buckley, L.-J., after stating this rule, said:
“The words ‘out of and in the course of the employment’ are used conjunctively and not disjunctively. Upon ordinary principles of construction they are not to he read as meaning ‘out of’ — that is to say, ‘in the course of.’ The former words must mean something different to the latter words. The workman must satisfy both the one and the other. The words ‘cut of’ point, I think, to the origin or cause of the accident. The words ‘in the course of’ to the time, place and circumstances under which the accident takes place. The former words are descriptive of the character and quality of the accident, the latter words, relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words ‘out of’ involves, I think, the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment.” (p. 799.)
In Craske v. Wigan, (1909) 2 K. B, 635, Cozens-Hardy, M. R., said:
• “I think it would be dangerous to depart from that which, so far as I am aware, has been the invariable rule of the Court of Appeal since these Acts came into operation, namely, to hold that it is not enough for the applicant to say ‘The accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place.’ He must go further and must say ‘The accident arose because of something I was doing in the course of my employment or because I was exposed by the nature of my employment to some peculiar danger.’ ” (p. 638.)
Following this construction of the statutes it has been held that an engine driver who goes across the rails to a signal box to inquire the time for his own purposes, when his path does not cross the rails, is not in the course of his employment. (Benson v. Lancashire & Yorkshire Railway Company, [1904] 1 K. B. 242.) And in Keen v. St. Clement’s Press, Ltd., 7 B. W. C. C. 542, it was held that a workman, who in order to conceal from the night shift of workmen a tin of milk used by him in his tea, attempts to put it on a ledge in close proximity to a reciprocating plant and is thereby injured does not suffer injury by accident arising out of and in the course of his employment.
The English courts have consistently ruled that where a workman attempts to do work around a machine with which his duties have no connection, he cannot recover under the compensation acts.
Among the American cases cited by the defendant are two which we think illustrate the rule which controls the present case. In Mann v. Glastonbury Knitting Co., 90 Conn. 116, the rule was stated to be that an injury to an employee does not arise out of and in the course of his employment under the workmen’s compensation act “unless it was received by him while he was acting within the scope of his employment, and unless there was a causal connection between the conditions surrounding the performance of his work and the resulting injury,” and that where the injury arises from a risk of the business but is received while the employee has turned aside from his employment for his own purposes without the knowledge or consent of the employer, it does not arise out of the employment. In that case the employer knew that its em ployees were accustomed to heat their luncheon bottle of tea or coffee in the hot-air pipe of the dry room of its plant and made no objection thereto. “Held that such tacit or implied assent by the master to the custom of heating bottles at that particular place could not reasonably be said to involve permission to an employee to go into another room and put his bottle inside of the hot-air pipe through a door therein which-opened upon a revolving fan; and that in so conducting himself the employee was not acting within the scope of his employment, nor was there any causal connection between the conditions under which his work was required to be done and the injury to his hand from the revolving fan.” (Syl. ¶ 4.)
The opinion recognizes the right to compensation if an injury arising from a risk of the business is sustained while the employee is doing something which, although quite outside of his particular duty, is permitted by his employer for their mutual convenience, such as eating his dinner on the premises or any similar act, to the performance of which the employer has assented. But in the opinion it was said:
“On the other hand, if the injury, although it arise out of a risk of the business, is received while the employee has turned aside from his employment for his own purposes so'that he is not acting within the scope of his employment, no compensation can be given.” (p. 120.)
Another case cited by the defendant is Spooner v. Detroit Saturday Night Co., 187 Mich. 125. There a workman was employed to operate an engine and dynamo in the basement and no duty called him to the upper floors. He received injuries which caused his death while running an elevator from the second to the third floor, in attempting to accommodate some fellow workman. It was held that the accident did not arise out of and in the course of his employment. It was said in the opinion:
“In the instant case Spooner was rendering no service which was either accepted by or known to his superior, but was engaged in a voluntary, friendly act entirely outside the scope of his employment upon the night in question.” (p. 132.)
In the case at bar the evidence shows conclusively that the plaintiff abandoned the work he had been employed to do and the place where he was employed to work and went on a considerable journey into a dangerous part of the plant where his own admissions and all the testimony show he knew he had no business to be. From the plat of the building and the testimony it appears that in order to get to the place where he received his injuries he had to leave the center of the basement, go to the west wall of the building, then, a distance of •about 25 feet to the west archway, and after passing through •that, 25 feet to the south wall, then east about 25 feet to the first opening to the north, and then about 10 feet to the place of the accident, the distance from the entrance into the bus room being about 60 feet.
It must be held, therefore, that the accident which caused the plaintiff’s injuries did not arise because of anything he was doing in the course of his employment, nor because he was exposed by the nature of his employment to that particular danger. The accident did not arise out of and in the course of his employment.
It follows that the judgment is 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.:
A collision between one of appellant’s street cars and an automobile on which John Morris was riding as a passenger resulted in the death of Morris and in this lawsuit to recover damages.
Quindaro boulevard in Kansas City runs, at the place of the accident, east and west, and Seventeenth street crosses the boulevard running north and south. The accident occurred between 8 and 9 o’clock on a morning in July. The street car was running west on Quindaro boulevard at a speed of about thirty miles per hour. The automobile was a Ford truck driven by the defendant, D. L. Fry. A man named Van Hooser, with Fry and Morris had started to do some work in the country. Van Hooser sat on the front seat to the right of Fry, the steering wheel being on the left side. The deceased, John Morris, was not in the automobile but was standing on the left running board about eighteen inches behind Fry, and was holding on with his hands, his face being toward the west.
The petition alleged that Morris’s death was caused by the concurrent negligence of both the appellant and the defendant, D. L. Fry, the driver of the automobile. It was alleged that Morris was a passenger in the automobile, and that before crossing Quindaro boulevard and the tracks of the appellant, the driver halted the car and then proceeded southward across the street, and that the collision was caused by the negligent manner in which the street car was operated. However, on the trial, the plaintiff amended his petition and alleged that before the automobile reached the car tracks, Fry attempted to turn west on Quindaro boulevard. The distance between the north rail of the track and the curb line on the north side of Quindaro boulevard was twelve feet, so that the car could have been driven to the west and kept between' the curb and away from the street car.
In answer to a special question the jury found that the collision occurred a little to the west of the center of Seventeenth street. The general verdict was against both the appellant and the defendant Fry and necessarily includes a finding that both were guilty of negligence. . There was no special finding of what the specific acts of negligence were.
A store building stands at the corner of the boulevard and Seventeenth street and the front of the building is twenty-three feet from the north rail of the car track, so that a person standing on that side of the street even with the front of the store building can look east on Quindaro boulevard and see a street car for a distance of at least 200 or 250 feet, there being nothing to interfere with his vision except two telephone poles standing near the curb line.
The jury found that when the automobile was between eight or nine feet from the north rail of the car track the street car was from 200 to 250 feet east, coming at a rate of thirty miles per hour; and that the automobile from this point until the collision traveled a distance of twelve feet at a rate of eight miles per hour. The appellant contends that if the jury were correct in finding that the automobile was traveling eight miles per hour, then the street car, in order to travel a distance of 204 feet, necessarily had to be traveling seventeen times as fast as the automobile or 136 miles an hour, which, of course, was an impossible rate of speed for a street car. Because of this inconsistency, it is insisted that the jury disregarded the testimony in part. We may ignore the apparent inconsistency of some of the findings with respect to the rate of speed and the distances, because in our view the case turns upon other special findings which establish the contributory negligence of the deceased.
Aside from the findings, there is no dispute over the fact that when the automobile was approaching the boulevard and was twenty-three feet north of the car track there was nothing to prevent Morris from looking east and seeing the street car approaching. He would have had ample time to have stepped off the running board and have avoided the collision.
Finding number four is as follows:
“When D. L. Fry in his car and John Morris standing on the east running board were within eight or nine feet of the north rail of the defendant railway company’s track at the' intersection of Seventeenth street and Quindaro boulevard, what was there, if anything, to prevent them seeing or hearing the approaching street car? Answer: Nothing.”
Finding number 9 is as follows:
“Had John Morris looked east when the portion of the motor car Fry Qccupied was eight or nine feet from the north rail of the track, what was there, to prevent him seeing the car and warning Fry of its approach? Answer: Nothing.”
Finding number 10 is as follows:
“Had Morris looked east when the portion of the motor car Fry occupied was eight or nine feet from the north rail of the track, what was there to prevent Morris from seeing the car and stepping from the running board of the motor car before the collision? Answer: Nothing.”
The deceased was required to look and listen for an approaching street car as much as was the driver. If he had discovered the approaching street car it would have been his duty to warn the driver. If by looking he could have discovered the approaching car and stepped from the running board in time to have avoided injury, and failed to do so, his contributory negligence prevents recovery.
It is appellant’s contention that it is impossible that Fry, the driver of the automobile; was guilty of negligence without Morris also being guilty of contributory negligence, because Morris was in a better position to look and see an approaching street car from the east than was the defendant Fry. The appellee lays much stress upon the presumption that Morris exercised due care. Because of the natural love of life, the instinct of self-preservation, and the disposition of all men to avoid injury, this presumption obtains in cases where evidence as to what actually occurred is lacking, but the presumption does not amount to proof. It is nothing more than a presumption, the force of which is destroyed at once by proof to the effect that the person injured or killed did not exercise due care. In this case, the presumption, if it could be said to have existed at all, is destroyed by the finding of the jury to the effect that if Morris had exercised due care— had looked — he would have seen the approaching car in time to have stepped from the running board and to have saved himself from injury.
The appellee argues that the rule applied to a pedestrian about to cross a street-car track is the one which controls the situation in which Morris was immediately before the collision. But obviously, a man walking on a street can take care of himself in an emergency much more readily than one riding in or upon an automobile driven by some one else, because he can step quickly to one side, or forward or backward as the situation may demand.
The jury found the appellant and the driver of the car both negligent. But it is inconceivable that Fry, who had not so good an opportunity to see the approaching car as had Morris, could be guilty of negligence and the man who was in the better situation to see and protect himself be free from contributory negligence.
The effect of the contributory negligence of the deceased cannot be minimized by laying stress upon the negligence of the defendant or by characterizing it as gross or wanton. Besides, gross or wanton negligence was not alleged in the petition.
The appellee seeks to avail himself of the doctrine of the “last clear chance,” but because the negligence of Morris was in operation until the collision occurred that doctrine has no application. Besides, the question does not appear to have been presented to the trial court either by a requested instruction or otherwise.
The findings lead to but one conclusion, which is, that the negligence of Morris contributed to his injury and that the appellee is not entitled to recover.
The judgment is reversed and the cause remanded with directions to enter judgment in favor of the appellant. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from an order denying its motion to strike out certain allegations of the plaintiff’s petition and from an order overruling a demurrer to it. The petition of the plaintiff alleged:
“3. That on the 2d day of May, 1920, he was bitten by a dog, and from its conduct and actions, plaintiff was reasonably apprehensive that it had hydrophobia.
“4. That said plaintiff, reasonably apprehending that said dog had hydrophobia, after consulting two or more doctors decided to have an examination made of said dog.
“5. That the head of said dog was cut off and prepared for shipment by Dr. J. H. Knapp; and that said dog’s head was packed in ice by Dr. Knapp and delivered to the aforementioned defendant.
“6. That the package containing said dog’s head was delivered to the defendant on May 2, 1920, said package being addressed to the Veterinary Department, Kansas State Agricultural College, Manhattan, Kansas, and that the charges-were prepaid thereon.
“7. That the package containing said dog’s head was marked ‘Dog’s Head, Rush,’ and that Dr. J. H. Knapp specifically called defendant’s attention to the fact that said box contained a dog’s head and that the dog had bitten plaintiff that day and that the head was being sent to Manhattan to be examined by a state officer who would ascertain whether or not said dog had the hydrophobia when it bit the plaintiff, and the defendant thereupon promised to express the same on the first train and that the same was shipped from Arkansas City, Kansas, on the evening of May 2, 1920, on train No. 18.
“8. That the plaintiff is informed and believes that specialists in the Veterinary Department of the Kansas State Agricultural College can ascertain by testing and examining a dog’s head whether or not said dog had hydrophobia when it died and that the head was sent for this purpose so that it might be determined whether or not the plaintiff, who had been bitten by said dog, was in danger of having hydrophobia.
“9. That the plaintiff is informed and believes that a dog which has hydrophobia can by its bite communicate this disease to a person unless certain remedies be taken within a short time from the time being bitten, but if these remedies be taken'the disease can be avoided.
“10. That the dog’s head was never delivered to the aforementioned Veterinary Department; and that the defendant willfully and wantonly failed to deliver the same.
“11. That if the defendant had done its duty and delivered the package containing the head of said dog to the address it would have been ascertained to a certainty whether or not said dog had hydrophobia when it bit the plaintiff and the plaintiff would have been informed of the result of said examination.
“12. That by reason of the negligence, carelessness, willfullness and wantonness of the defendant in failing to deliver said dog’s he'ad the plaintiff was compelled to receive medical attention for the purpose of avoiding possible hydrophobia, being reasonably apprehensive of the same -and not knowing whether or not said dog had said disease.
“13. That by reason of said treatment and medical attention plaintiff was unpble to work for twenty-six days, which resulted in a loss of $338 to said plaintiff; and that the cost of said treatment and medical attention was $150; and that the plaintiff underwent grevious physical pain and mental suffering and was sick for weeks, all of which would not have occurred had it been ascertained that said dog did not have hydrophobia, since which time plaintiff has become convinced that said dog did not have hydrophobia.”
Judgment was asked for $2,990. The motion was as follows :
“Defendant moves to strike paragraphs 3, 4, .5, 8, 9, 11, 12 and 13 from the petition on the ground that the same charge damages sustained by defendant because of the alleged fact that it did not prevent the neces sity of plaintiff’s taking treatment to prevent hydrophobia that might possibly have resulted from the bite of the dog in question; which said damages are remote, speculative, immaterial and uncertain and not recoverable in this action, and the allegations do not tend to furnish any measure of damages recoverable in the case.”
It is argued on both the motion and the demurrer, that the defendant’s negligence was not the proximate cause of the fear and anxiety of the plaintiff and of his being compelled to submit to medical treatment for the purpose of preventing hydrophobia, but that the proximate cause of these things was the bite of the dog.
The defendant was negligent in not delivering the dog’s head. The damages that resulted from that negligence can be recovered. The charges that were paid for the shipment can be recovered and thus far the petition states a cause of action sufficient to justify the court in overruling the demurrer; but this does not meet the questions argued. What damages set out can be recovered under the allegations of the petition? The difficulty is in correctly answering this question. The defendant knew or ought to have known that delay would cause intense anxiety on the part of the plaintiff; that delay would cause him to seriously consider the matter of taking treatment without waiting until the last minute for a report from an examination of the dog’s head; that the plaintiff would probably feel compelled to take treatment even though it should afterward prove unnecessary to do so; and that time would be lost while medical treatment was being taken. All these things must have been anticipated by the defendant and must have been within the contemplation of the parties at the time the shipment was made; damages can be recovered therefor.
This principle, the one which should be applied, is found in Hanna v. Railway Co., 89 Kan. 503, 132 Pac. 154, where the following language was used:
“The principles of negligence and of liability therefor are the same whether the negligence is a breach of duty implied by law, in the absence of all contract, or a breach of duty arising out of a contractual relation; the difference' being only as to the extent of liability. Where the duty arises out of contract, such damages only can be recovered for a breach of the contract as, under all the circumstances, could, at the time of the making of the contract, have been reasonably anticipated from a breach thereof.” (Syl. ¶ 1.)
In the Hanna ease the plaintiff recovered substantial damages for inconvenience, physical pain, and suffering caused by the failure of the defendant to send a telegram transmitting railroad tickets and money to the plaintiff in the union, depot at St. Joseph, Mo., where she was at the time with three small children without money or food. The defendant was informed of the situation and 'agreed to transmit the tickets and money, but failed to do so. ' In the present case, the defendant was notified of the contents of the package and of the purpose for which it was being shipped. Failure to deliver was not the proximate cause of the injury to the plaintiff, but it was a proximate cause of his anxiety and of his unnecessarily taking treatment to prevent hydrophobia.
A case on all fours with this one is Miller v. Express Company, 99 S. C. 333. There a dog’s head had been shipped by the father of the plaintiffs, who were children, for the purpose of ascertaining whether the animal had hydrophobia at the time it bit the plaintiffs. There was delay in delivering the head, and the express company was held liable.
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The opinion of the court was delivered by
Horton, C. J.:
The issues formed by the pleadings in this case were submitted to the court, a jury being waived. At the commencement of the trial the National Bank of Emporia requested that the court find the facts specifically, aud state its conclusions of law thereon. The bank did not consider the findings of fact first made by the court sufficient upon the questions of law involved in the trial, and therefore asked the court to make additional findings of fact. The court complied with this request. We therefore must consider all of the special findings of fact made by the court, and such findings of fact must be made to harmonize with each other, if possible, and are conclusive upon all disputed and doubtful questions.
The actual name of the person who executed the notes and mortgages and indorsed the draft issued to him by the Exchange Bank of El Dorado is not disclosed in the findings of the trial court; yet, it appears therefrom that such person applied for the loan from Shotwell in the name of Daniel Guernsey; that in his letters he assumed the name of Daniel Guernsey; that he signed the notes and mortgages as Daniel Guernsey; that he indorsed the draft as Daniel Guernsey; that he stated to the cashier of the National Bank at Emporia his name was Daniel Guernsey; and that Harvey, who identified him at the bank, also stated to the cashier that the name of the holder of the draft was Daniel Guernsey. It also appears that Harvey, who inspected the Guernsey land upon the application for the loan and identified the payee of the draft at the bank, claimed to know Daniel Guernsey, and inquiries were made of him by Shotwell in reference to the party making the application previous to sending the draft. If we assume that the real name of the party who indorsed the draft and obtained payment thereof from the National Bank was Daniel Guernsey, although not the Daniel Guernsey who owned the real estate described in the mortgages, the case is very similar to Maloney v. Clark, 6 Kas. 82. If, however, it be conceded that the real name of the party who executed the notes and mortgages and indorsed the draft is not Daniel Guernsey, a somewhat different question is presented, but a like result follows; and therefore the judgment is erroneous, for the reason that it is not sustained by the findings of fact of the trial court, and is contrary to the law which is applicable thereto. After Shotwell had obtained the draft from the Exchange Bank he delivered it to his agent, Lobdell, to be sent to the party executing the notes and mortgages, under the belief that such party was the Daniel Guernsey who owned the real estate described therein. This belief was induced by the letters written by the person obtaining the draft and the application he had made for the loan. Lobdell sent the draft to the address of Daniel Guernsey, at Florence, through the mail, and in sending the same he intended that the person who executed the notes and mortgages should receive it, then believing such person was the real Daniel Guernsey. Therefore it appears that Shotwell and Lobdell thought the person to whom they sent the draft was the Daniel Guernsey who owned the quarter-section of land upon which the loan was placed by them.
The case of Robertson v. Coleman, N. E. Rep., (S. C. of Mass.,) vol. 4, No. 7, p. 619, is an authority directly in point. There, a thief had stolen a team of horses. He went to Boston, and registered his name at the Metropolitan Hotel as Charles Barney. There was living at Swanzey, Mass., a reliable and responsible man of that name. The thief turned the stolen team over to a firm of auctioneers to sell for him, giving his name as Charles Barney. The auctioneers sold the team, and after deducting their commission, gave the thief, calling himself Charles Barney, a check for the balance of the proceeds, the check being payable to the order of Charles Barney. The thief indorsed the check in blank with the name of Charles Barney, and disposed of it to the proprietor of the hotel where he was stopping. Subsequently the auctioneers learned that the team of horses had been stolen, that they had received them from the thief, and that his true name was not Charles Barney. Upon being notified by the auctioneers, the bank upon which the check was drawn refused to pay it. The holder brought suit, and recovered. Judge Field, in delivering the opinion in that case, said:
“The defendants, for a valuable consideration, gave the check to a person who said his name was Charles Barney, and whose name they believed to be Charles Barney, and they made it payable to the order of Charles Barney, intending thereby the person to whom they gave the check. The plaintiff received this check for a valuable consideration, in good faith, from the same person, whom he believed to be Charles Barney, and who indorsed the check by that name. It appears that the defendants thought the person to whom they gave the check was Charles Barney, of Swauzey, a person in existence.
“ It is clear, from these facts, that although the defendants may have been mistaken in the sort of man, the person they dealt with was the person intended by them as the payee of the check designated by the name he was called in the transaction, and that his indorsement of it was the indorsement of the payee of the check by that name. The contract of the defendants was to pay the amount of the cheek to this person or his order, and he has ordered it paid to the plaintiff. If this person obtained the check from the defendants by fraudulent representations, the plaintiff took it in good faith and for value.”
So, in this case, Shotwell, for the notes and mortgages received by him, sent the draft to a person who said his name was Daniel Guernsey, and whose name Shotwell believed to be Daniel Guernsey, and Shotwell made the draft payable to the order of Daniel Guernsey, intending thereby the person to whom he sent the draft. The National Bank of Emporia received this draft for a valuable consideration in good faith from the same person whom the bank believed to be Daniel Guernsey, and who indorsed the draft by that name. When the holder of the draft presented it to the National Bank for the purpose of having it cashed, he stated 'that he was the Daniel Guernsey who was named in the draft as the payee thereof, and that the draft had been sent him for the notes and mortgages which he had delivered to Shotwell. Harvey, who identified the holder of the draft at the bank, stated to the cashier that he knew that such holder was Daniel Guernsey “from having knowledge of the fact that this man had executed certain notes and mortgages and delivered them to Shotwell for a loan.” This is not like a case where a draft falls into the hands of the person by theft, for which the party sending is not responsible. It appears that Shotwell thought the person to whom the draft was sent was the real Daniel Guernsey who owned the land in Butler county, and the false Daniel Guernsey did not obtain the letter sent him containing the draft by theft from the mail. Shotwell and Lobdell dealt with the false Daniel Guernsey as though he were the real Daniel Guernsey. Such person, it is true, obtained the draft from Shotwell by fraudulent letters and representations, but the National Bank is not responsible for the letters and representations of the false Daniel Guernsey, and as it took the draft in good faith and for value, it cannot be holden for the conversion of it, nor is it liable for the return of the money which it paid to the holder thereof upon his indorsement. The National Bank of Emporia paid the draft to the person to whom it was sent by Shotwell, and such person received the money from the bauk theyeon.
Counsel for Shotwell claims that the National Bank did not use sufficient care and diligence in having the payee of the draft identified. This is not important, under the circumstances presented. The vital point in this case is, that Shotwell intended the draft to be sent to the party executing the notes and mortgages, and intended it to be paid to the person to whom he sent it and whom he designated by the name of Daniel Guernsey, because that was the name which he assumed in executing the notes and mortgages; and therefore the National Bank is protected'in paying the draft to the •very person whom Shotwell intended to designate by the name of Daniel Guernsey. Counsel also comments upon the fact that he refused to send currency to Florence, as requested, but sent, instead, the draft, payable to the order of Daniel Guernsey. If it were not for the other facts, this finding might tend to show caution and prudence on the part of Shot-well, but as all of the findings must be considered together, it may be that Shotwell “preferred to send the money in the way of a draft” as a matter of convenience only.
Counsel for Shotwell claims that Dodge v. Bank, 30 Ohio St. 111, is decisive in favor of his client. The court in that case recognized, the exact ruling and principle decided in this, but refused to apply it to that case, because the facts did not seem to warrant its application. The court said in that case that the bank paying the check upon the forged indorsement “had the right to show, if it could, that the person to whom the check was delivered was in fact the person whom the drawer intended to designate by the name of Frederick B. Dodge.” In that case the drawer of the check refused to recognize the person presenting the voucher for which the check was given as the owner, without proof of identity, and for that reason made the check payable to the order of Dodge, the owner of the voucher. In this case the draft was sent to a false Daniel Guernsey, under the belief that he was the real Daniel Guernsey, and it was the intention of Shotwell and his agent, Lobdell, that the person who had executed the notes and mortgages should receive the draft sent by them.
It was said in argument that the trial court decided this case upon the authority of Kohn v. Watkins, 26 Kas. 691. That case is no authority for the decision. There, the draft was sent by Watkins to his correspondent, McLain, to be delivered to the.payee thereof, Michael A. Becker. McLain forged the name of Becker upon the draft, then indorsed his own name thereon and negotiated the same. The draft was never delivered as Watkins had given instructions. He never intended it to be paid to McLain, to whom it was sent. McLain, the correspondent, was solely responsible for the fictitious application and the forgery. It is true that there is-some resemblance between the case at bar and the cases of Dodge v. Bank and Kohn v. Watkins, yet an examination of these cases shows a fine distinction in each, and such a distinction that neither of the latter cases controls the decision of the former.
Upon the findings of fact of the trial court, the judgment must be reversed, and the cause will be remanded with the direction for the court below to render judgment in favor of the plaintiff in error.
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The opinion of the court was delivered by
Horton, C. J.:
This is an action in the nature of quo warranto, brought by the plaintiff to remove the defendant from the office of probate judge of Coffey county, in this state, because of an alleged failure to perform the duties imposed by §3, chapter 8, Special Session Laws of 1874. This section reads as follows:
“It shall be the duty of the probate judge in each county, once during each quarter of each year, without' notice to said county treasurer, to examine and count the funds in the hands of the county treasurer; and the county commissioners of each county shall, prior to each examination, appoint two persons, citizens and tax-payers of the county, whose duty it shall be to assist the probate judge in making the examination aforesaid; but no person so appointed shall act as examiner more than once in the same year.” (Comp. Laws of 1879, ch. 25, § 7 5c.) '
It has already been decided'that the legislature may confer new duties—judicial, quasi judicial, or ministerial — upon probate courts or probate judges in this state, aside from the ordinary powers authorized by the constitution. (In re Johnson, 12 Kas. 102; Young v. Ledrick, 14 id. 92; The State, ex rel., v. Majors, 16 id. 440; Intoxicating-Liquor Cases, 25 id. 751.) Whether they could be compelled to perform the duties which the various acts of the legislature undertake to require of them, outside of the jurisdiction defined by the constitution, has never been settled by this court. The decisions recognizing the authority of the legislature to confer upon probate courts .and probate judges additional powers or duties not defined by the constitution, seem to assume that the authority thus exercised constitutes powers and duties distinct from those of a probate court or probate judge. Thus, in granting injunctions for the district court, a probate judge acts in the capacity of a commissioner of that court; a probate judge in granting a druggists’ permit, acts somewhat as a commissioner of licenses or permits. (In re Johnson, supra; Intoxicating-Liquor Cases, supra; State v. Laughton, [S. C. of Nev.] 8 Pac. Rep. 344. See also the decisions of Benson, J., and Spilman, J., upon the power to appoint a county auditor, 2 Kas. Law Jour. 39-57.) To require of a probate .judge the performance, of the duties imposed by said chapter 8, none of which pertain to the judicial office, and for the performance of which the judge must leave his court room and enter an office separate from his own and there perform purely ministerial acts for several days in each year, is in the nature of attempting to put upon- him the duties of another' office, although in the discharge of such new duties he still may be styled a probate judge. In the performance of such duties he is not acting as a judge or as a court. Therefore we cannot say in this proceeding that the defendant’s right to hold the office of probate judge.and enjoy the powers and emoluments thereof, depends upon a faithful discharge -of the duties imposed by the statute above cited. If the defendant has failed or neglected to do something which said statute requires, he may, perhaps, be removed from such new office or position; but because he does not comply with that statute, he has not forfeited his office as probate judge* and• therefore cannot be-removed therefrom under the allegations of'the petition.
The State, ex rel. the Atty. Gen., v. The Judges of the Court of Common Pleas, 21 Ohio St. 1, to which we are referred, is npt in accordance with the prior adjudications of this court.
The demurrer will therefore be sustained.
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The opinion of the court was delivered by
Horton, C. J.:
It is alleged that the court erred in sustaining the demurrer filed by plaintiff below to the third defense set up in the answer of defendant. We think not. The order or contract provided that the defendant was to take possession of the old safe accepted in exchange from Loomis Bros., on the arrival of the new safe. The third defense interpolated in the contract, after the word “arrive,” “and acceptance.” The defendant cannot be permitted x . . to give his own construction oi the contract by adding other words. The interpretation or construction of a writing, unambiguous in its terms, is a matter of law for the court to pass upon.
It is next alleged that the district court erred in sustaining the exceptions filed by plaintiff below to a deposition in behalf of defendant. The deposition was that of Pliram Stockbridge, the general manager of the business of the defendant. It showed, among other' things, that on May 31, 1883, the defendant received at his office at Rochester, New York, an order for a safe from Loomis Bros., McPherson, in this state, and at the same time the order from plaintiff below for the old safe to be taken in exchange from Loomis Bros.; that the defendant sent printed notices to Loomis Bros, and plaintiff below, and that the defendant acknowledged receipt of the orders; that on Juné 21, 1883, the safe ordered by Loomis, Bros, was shipped them by the defendant in exact accordance with their agreement of June 11th, and that the defendant sent to plaintiff below a-bill for the old safe on the terms of his order, and also an order on Loomis Bros, for its delivery to him; that Loomis Bros, refused to take the new safe from the depot, or to deliver the old safe to the plaintiff, although the defendant made repeated efforts to induce them to do so. The part of the deposition that the court ruled out was as follows: “The order of said Thompson was contingent upon his taking possession of the safe as stipulated in his order, and has never been approved or accepted by the said H. H. Warner upon any other consideration; that said H. H. Warner never agreed to deliver possession of the safe to Thompson;” and also, “believing Loomis Bros, to have received their ngw safe, said Warner sent Thompson a bill for the old safe.” We perceive no material error in the rejection of this testimony. The contract is in writing, and speaks for itself; and all the testimony attempting to vary or contradict the written order or agreement was incompetent. The defendant was to deliver to Loomis Bros, a new safe, and was to cause Loomis Bros, to deliver the old one to the plaintiff, and defendant was responsible for any failure on the part of Loomis Bros, to deliver the old safe to plaintiff, whatever may have been the cause of such failure. (Thompson v. Warner, 31 Kas. 533.) If Loomis Bros, were guilty of a breach of the contract with the defendant, plaintiff below was not responsible, and if tbe defendant has suffered damages on account of the action of Loomis Bros., plaintiff ought not also to suffer. The defendant was evidently bound to see that the old safe was delivered to plaintiff. If he failed so to do, he was liable for a breach of his contract, as it clearly appears from the evidence in the case that he approved the order or agreement signed by the plaintiff and dated May 26, 1883.
After an examination of the record, we find that there was sufficient evidence to sustain the findings and judgment of the trial court; therefore the judgment must be affirmed.'
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant in this action was prosecuted before a justice of the peace, and afterward on appeal in the district court, on a criminal complaint charging him with unlawfully buying and receiving stolen property. The only question presented to the supreme court is, whether the complaint upon which he was prosecuted in the courts below is sufficient or not. The complaint reads as follows:
“State oe Kansas, Franklin County, ss.: Edward Heckler, being duly sworn, on oath says, that on the — day of October, 1885, in the county of Franklin and state of Kansas, William H. McLaughlin, then and there—one handsaw, of the valué of one dollar and fifty cents; one monkey wrench, of the value of fifty cents, of the goods and chattels of one David Miller, then lately before feloniously stolen, taken and carried away, unlawfully and feloniously did buy and receive, he, the said William H. McLaughlin, then and there well knowing the said goods and chattels to have been feloniously stolen, taken and carried away as aforesaid, contrary -to the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”
This complaint was attacked in the court below by a motion to quash, by a motion for a new trial, and by a motion in arrest of judgment—all of which motions were overruled by the court below. The particular ground upon which it is claimed that the complaint is not sufficient is, that it does not state that the property alleged to have been stolen was “ stolen from another,” within the meaning of § 92 of the crimes act, but states the supposed offense in such an equivocal or ambiguous manner as to leave it open to be inferred that the property might have been stolen from the defendant himself. Now while the complaint is not as explicit as it might be, yet when fairly construed we think it is not open to the construction placed upon it by counsel for the defendant. The complaint states that the stolen property was “the goods and chattels of one David Miller, then lately before feloniously stolen, taken and carried away,” and also states that the defendant “unlawfully and feloniously did buy and receive” the same, “contrary to the statute in such case made and provided.” Under such a complaint it must be considered that the property was stolen from David Miller, and not from the defendant himself, and that the defendant “unlawfully ” and “ contrary to the statute” bought and received the property so stolen, and did not innocently “buy and receive” his own property, which had previously been stolen from himself.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This case can be easily disposed of. The only question presented arises upon the refusal of the court to enter judgment in favor of the plaintiff upon the findings of the jury for the amount of money taken from the bank by the defendant as interest on demand certificates of deposit that had been issued to himself while he was serving as president and cashier of the bank. The defendant admits that he took the money at the times and in the amounts charged by the plaintiff, and the jury have found that during all the time the defendant was acting as an officer of the bank, there existed a rule or by-law of the bank which prohibited the payment of interest on demand certificates of deposit, and” that at no time while the defendant was an officer of the bank did he ever inform the board of directors that he had taken interest on these certificates; and it was also found that the directors did not at any meeting of the board authorize or ratify the action of the defendant in taking interest. The defendant contended and contends that although his act in taking the money was contrary to the by-laws of the bank, yet that there had been a ratification of the unauthorized act by the board of directors which is binding upon the bank. After stating that the directors had never at any meeting of the board ratified the taking of interest by the defendant, the question was asked the jury: “Did the board of directors at any time ratify the taking of the several amounts of interest?” To this question an affirmative answer was given; but in the next finding the jury explained particularly how the supposed ratification had been made, finding that it was “ by individual consent of a majority of the board.” The last finding, stating particularly what was done, controls and. prevails over the former one stating the general conclusion that there had been a ratification. These findings clearly show that the only sanction which the unauthorized acts of the defendant have received from the plaintiff, was given by the individual members of the board acting singly and separately, and not as a board. Action thus taken is not binding on the bank, and does not constitute a defense to the plaintiff’s claim. The statute declaring the method in which the bank may exercise corporate power provides ■ that the appointment and dismissal of its officers, the enactment of by-laws regulating the manner in which its officers and agents shall conduct its business, and the general supervision and management of its affairs, shall reside in and be exercised by a board of directors. (Rev. Stat. U. S. § 5136.) This statute provides for the election of , 1 a president of the board, and otherwise assumes that the directors shall act unitedly as an organized body. The election of an individual as a director does not constitute him an agent of the corporation with authority to act separately and independently of his fellow-members. It is the boai’d duly convened and acting as a unit that is made the representative of the company. The assent or determination of the members of the board acting separately and individually is not the assent of the corporation. The law proceeds upon the theory that the directors shall meet and counsel with each other, and that any determination affecting the corporation shall only be arrived at and expressed after a consultation at a meeting of the board attended by at least a majority of its members. As the only powers conferred upon directors are those which reside in them as a board and when acting collectively as such, the individual consent of a majority of the members acting separately is not enough to ratify the unauthorized appropriation of the money of the bank by the defendant. (Angell & Ames on Corporations, § 504, et seq.; Morawetz on Private Corporations, § 247; Field on Corporations, § 242; Baldwin v. Canfield, 26 Minn. 43; First National Bank v. Christopher, 11 Vroom, 435; Junction Rld. Co. v. Reeve, 15 Ind. 236; In re Marseilles Rly. Co., Law Rep., 7 Ch. App. 161; D’Arcy v. Tamor &c. Rly. Co., Law Rep., 2 Exc. 158; Schunn v. Seymour, 24 N. J. Eq. 143; Cammeyer v. United German Churches, 2 Sandf. Ch. 186; Edgerly v. Emerson, 3 Foster, 555; Stoystown & Greensburg Turnpike Road Co. v. Craver, 45 Pa. St. 386; Keeler v. Frost, 22 Barb. 400. See also the following cases, which are somewhat analogous and applicable: Aikman v. School District, 27 Kas. 129; Mincer v. School District, 27 id. 253; Comm’rs of Anderson Co., v. P. & F. R. Rly. Co., 20 id. 534; P. & F. R. Rly. Co. v. Comm’rs of Anderson Co., 16 id. 302; Herrington v. District Township of Liston, 47 Iowa, 11; McCortle v. Bates, 29 Ohio St. 419.)
The conclusion which we have reached renders it unneces sary to consider the other questions so much and so well argued by counsel with regard to the relations existing between the cashier and the board or directors, and which both of them sustain toward the bank, and whether the doctrine of ratification can have application to a transaction wholly between the Board of directors'and the cashier.
The ruling of the district court disallowing the plaintiff’s motion for judgment non obstante veredicto' will be reversed, and the cause remanded with directions to enter judgment on the special findings of the jury for the additional amount appropriated by the defendant without authority of the bank as interest on demand certificates of deposit, in accordance with the plaintiff’s application.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action, as it was tried in the court below, was an action to compel the specific performance of an alleged contract for the sale and purchase of real estate. The case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment upon such findings and conclusions in favor of the defendants and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review.
The plaintiff challenges the correctness of both the findings of fact and the conclusions of law, but we-are inclined to think that both are correct, and that the final judgment rendered thereon is also correct. It is admitted that the defendants were and are husband and wife, and that the property in controversy was and is their homestead; therefore any alienation of this property, or any contract for the alienation thereof, to be of any validity requires that the “joint consent” of both the husband and wife should be given thereto; and this consent must not be brought about by any fraud, deception, or misstatement of material facts by the other party to the alienation, but must be the voluntary and intelligent consent of both the husband and wife. Does the contract in the present case meet these requirements? The defendants were ignorant, illiterate colored people, who did not know how to write even their own names, and could have no knowledge of the written contract sued on except as they were informed by other persons. On November 28, 1882, the plaintiff held a mortgage on the property in controversy, which mortgage, including principal and interest, amounted to $192.31. He also paid one of the defendants, Isaac Logan, $30 in money, and agreed to pay him $100 more, making in all $322.31, and for this amount Logan executed the instrument in writing sued on, which was a bond and contract for the conveyance of the property in controversy to the ¡plaintiff. Whether Logan knew what the exact consideration for this instrument was, we shall not now stop to consider, but will pass on to the more important question—the one concerning the execution of the instrument by the other defendant, Anna Logan. In this connection the questions arise: What was the real consideration for the instrument? and what was it represented to be to Mrs. Logan? The property at the time of the execution of the instrument was worth from $400 to $450. It was worth about $700 at the time of the trial, which was July 22, 1884, without any improvements having been made thereon since the execution of the written instrument. The plaintiff alleged in his petition in the court below that the consideration was $350. The instrument itself showed that the consideration was $350. J. P. Adams, a witness for the plaintiff, who was present and heard the pai'ties make the contract, testified that he understood the consideration to be $350; and the court below found that such was the consideration. In fact, however, the plaintiff has all the time treated the consideration as only $322.31, and has all the time claimed that $100 in addition to the mortgage of $192.31, including principal and interest, and the $30 paid by the plaintiff to Logan, constituted the entire consideration and the entire purchase-money for the real estate in controversy. On November 29, 1882, the next day after the instrument had been executed by Logan, J. P. Adams, a notary public, went to the house of Logan and found Mrs. Logan alone, who had no knowledge of the transactions previously had between the plaintiff and Logan. He explained to her the nature and character of the instrument, ¿old her the consideration therefor, and as the instrument itself showed that the consideration was $350, and as he believed that such was the consideration, he evidently told her that such was the consideration. She refused to sign the instrument. He further told her that there was still $100 to be paid on the contract—leaving it to be inferred, if he did not tell her so in express terms, that the claim of the plaintiff against Logan was $250. He also referred to the mortgage held by the plaintiff on the property, of which mortgage she of course had knowledge, although it is not probable that she knew what the exact amount of the mortgage was. In all probability he inadvertently led her to believe that the claim of the plaintiff against the land was $250, when in fact it was only $192.31, principal and interest; and the court below found from the evidence that all this occurred. It is even doubtful whether all of the $192.31 was due in equity. They also had conversation concerning the troubles existing between Logan and his wife, and after a great deal of conversation Mrs. Logan finally consented to sign the instrument upon the consideration that the $100 still due should be paid to her and not to Logan. She at that time knew nothing about the transactions that had previously taken place between, the plaintiff' and Logan, or about the instrument which she executed except what was told to her by Adams; and the only way in which she executed the instrument was by touching the pen that made the mark which represented her signature. If the real consideration for the contract was $350, then the plaintiff would still be owing the defendants on the contract $127.69; but he has never admitted that he owes more than $100, and has never tendered more than that amount, and the record does not show that he has even kept that tender good. Therefore, when Mrs. Logan executed the instrument she was laboring under at least two misapprehensions: First, she believed the claim existing against the land was about $57.69 more than it actually was, and that the consideration for the sale of the land was $27.69 more than the plaintiff admits it to be; and these misapprehensions were induced and bropght about by Adams, who was evidently acting as the plaintiff’s agent. Under the circumstances of this case, we do not think that the defendants ought to be compelled to specifically perform their supposed contract. The contract, under the circumstances, did not embody such a joint consent of the husband ind wife as would under the homestead laws and in equity make the contract binding. Assuming that Logan himself had knowledge of all the circumstances that led to the execution of the contract, and knew precisely what the consideration was, still, Mrs. Logan did not have any such knowledge, and she signed and executed the contract under misapprehensions brought about by the plaintiff’s agent. Now taking the nature and character of the contract, the inadequacy of the consideration for the property in controversy, the fact that the contract was signed at different times and without any consultation between the parties signing the same, and the fact that Mrs. Logan signed the same under misapprehensions as to the amount of ■ the consideration and the amount of the mortgage lien, and misapprehensions induced by the agent of the plaintiff, we do not think that there is sufficient equity in the plaintiff’s claim to authorize the specific enforcement thereof.
“ Upon breach of a contract for the sale of real estate, it is not a matter of course for the court to enter a decree of specific performance. That will be done only when upon all the facts it is equitable it should be done. He who asks specific performance should show the facts which make such a decree equitable; and a failure to do this justifies a refusal of the decree.” (Fowler v. Marshall, 29 Kas. 665, syl., ¶¶ 1 and 2.)
“While in legal contemplation two persons may make a contract that would be enforced at law, yet if it should seem probable from the facts of the case that the parties did not in fact and in equity agree to the same thing, the supposed contract would not be decreed inequity to be enforced specifically.” (Burkhalter v. Jones, 32 Kas. 5, syl., ¶ 1; same case, 3 Pac. Rep. 559.)
In the Kansas report the word “specifically” is erroneously changed to “especially.” In the Pacific Reporter it is printed correctly. We have discussed the questions involved in this case as though Mrs. Logan only was misled into signing the contract through misapprehensions. We think, however, that the same result would follow, possibly not for stronger reasons but for slightly different reasons, if both Logan and Mrs. Logan were so misled. A contract will be specifically enforced only where its specific enforcement is equitable; and generally, only where the plain*ív»i* • . . . tin has m equity and good conscience a right to demand its specific enforcement; and generally, where a contract is itself inequitable, and where the defendant has been misled by the plaintiff or his agent into executing it, the contract will not be specifically enforced.
The plaintiff did not ask to have his mortgage foreclosed in this case, and therefore there was no error in the failure of the court below to order or adjudge its foreclosure. The plaintiff may still enforce his mortgage in another suit, if he chooses.
This, we think, disposes of all the substantial questions involved in this case.
The judgment of the court below will be affirmed.
All the Justices concurring. • | [
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