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The opinion of the court was delivered by
Horton, C. J.:
Edmond Harris and his wife Maria, on June 2, 1880, executed a mortgage to R. D. McCrossen upon lots 3 and 4, in block 94, in the city of Wyandotte, in this state, to secure the payment of a note for $275 with interest. On January 3, 1883, McCrossen obtained a judgment of foreclosure of the mortgage, and in the judgment the taxes then due on the premises were decreed to be a lien thereon. It was also provided in the decree that if McCrossen should pay such .taxes, he should be repaid out of the sale of the property. Appraisement having been waived in the mortgage, the sale, under the decree of foreclosure, was stayed six months. A sale was made December 3, 1883, but on account of informalities this was set aside. On December 20,1883, McCrossen paid $41.58 for taxes upon the premises upon which the judgment was a lien. On February 15, 1884, he filed his precipe for an alias order of. s.ale upon the judgment, but before it' was placed in the hands of the sheriff, Edmond Harris paid off the judgment, interest, and costs, and all taxes up to and including those assessed for 1882, 'but refused to repay plaintiff the taxes of 1883. This action was brought to recover the taxes so paid by him,- and to declare the same a lien upon the premises. The premises were subsequently sold to George Grúble, and Gruble and his wife mortgaged the property to Adeline Crane to secure the sum of $500. The petition charged that George Gruble and Adeline Crane took their conveyances with full knowledge of the alleged lien of McCrossen.
At the time the plaintiff paid the taxes, the mortgage had been extinguished by being merged into the judgment; thei’efore the taxes were not a lien in connection with the mortgage. Therefore no action can be maintained to recover these taxes upon any of the covenants of the mortgage, nor upon the provisions of §148, ch. 107, Comp. Laws of 1879, permitting a mortgagee to pay taxes where the mortgagor fails or neglects so to do. (Vincent v. Moore, 17 N. W. Rep. 81; Hitchcock v. Merrick, 18 Wis. 375; Johnson v. Payne, 11 Neb. 269.) After the judgment was rendered, the amount thereof was a specific lien upon the real estate described therein. Under some circumstances perhaps a party might pay the taxes for the protection of his- lien, and for such payment equity might give him a lien in connection with the judgment; but such a case is not presented. All of the taxes prior to 1883 were included in thejudgment. For the protection of his judgment lien, it was not necessary to pay the taxes of 1883. Section 56, of
chapter 107, Comp. Laws of 1879, provides that where any real estate is sold at judicial sale, the court shall order all taxes and penalties thereon against the land to be discharged out of the proceeds of the sale. Therefore if the plaintiff had not paid the taxes of 1883, and if a sale had been made of the premises, the taxes would have been satisfied out of the proceeds. (Sec. 56, ch. 107, supra.) If the plaintiff had not paid the taxes at the time the judgment debtor paid the judgment and costs, the taxes would no longer have been of any concern to him. There is no allegation in the petition that the real estate was insufficient security for the judgment lien, or any other special facts set forth showing the necessity for the payment of the taxes, after judgment, to protect the judgment lien. Under the circumstances, we must regard the payment of the taxes by plaintiff as voluntary, and such payment will not support an action to constitute the taxes so paid a separate aud independent lien on the land. It seems very unjust that the plaintiff should pay these taxes and not be able to recover the amount thereof. But as the payment must be regarded as voluntary, the law does not give a remedy.
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
Horton, C. J.:
The complaint in this case is, that the district court erred in refusing to discharge the defendant, under the provisions of § 221 of the criminal code. Instead of granting the application made, the court remanded the defendant to custody until he should give bail, and ordered the case to be continued for trial at the next regular term. There fore, the cause is still pending. A defendant in a criminal case can only appeal after judgment against him, that is, after final judgment; and intermediate orders can be reviewed only on such an appeal. The order refusing a discharge is not a final judgment. The appeal is premature, and must be dismissed. (Criminal Code, §§281,282; Cummings v. The State, 4 Kas. 225; The State v. Freeland, 16 id. 9; The State v. Horneman, 16 id. 452.) If we were to pass, however, upon the merits of the case, under the authority of In re Edwards, just decided, the order of the district court would have to be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Louis Sarbach against Mary Newell and Samuel H. Newell to have certain real estate situated in the city of Holton, Jackson county, partitioned between them. On June 16, 1882, judgment was rendered in the case partitioning the property as follows:
“ To the plaintiff, two-elevenths part of said premises without the stone store building thereon, if the same can be done without manifest injury; but if such partition cannot be made without manifest injury, then that said commissioners shall appraise the value of said lot, without the said stone store building, and make a report of their proceedings to the court forthwith. It is further decreed, that in case the plaintiff shall-elect to take the property, he shall pay the found value of said stone store building, nine-elevenths of the appraised value of the lot, aud his proportionate share of the costs and attorney's fees to be taxed; and in case the defendants shall elect to take the property at its appraised value, they shall pay two-elevenths of the appraised value of the lot, and nine-elevenths of the costs and attorney’s fees herein to be taxed. It is further adjudged .and decreed, that in case of a sale of said property the proceeds arising from such sale shall be applied as follows, to wit :
“1. In payment of the costs of this proceeding, including attorney’s fees, hereafter to be ascertained and taxed.
“ 2. That said defendants be paid that proportion of the residue which the found value of said stone store building shall bear to the appraised value of the lot, and the balance then ' remaining shall be divided as follows: Two-elevenths to the plaintiff, and nine-elevenths to the said Mary Newell.”
At the July term of the supreme court in 1882 this judgment was affirmed. (Sarbach v. Newell, 28 Kas. 642.) After ward, and at the January term of the supreme court in 1883, on a motion for a rehearing, the judgment of the district court was modified, by an order of the supreme court, as follows:
“The order, of the district court for theAommissioners making partition to set off to the plaintiff the two-elevenths part of the premises without the stone store building thereon, if the same can be done without manifest injury, must be affirmed. But if partition cannot be made without manifest injury, the commissioners must appraise the value of the lot without the stone store building, and also the value of the lot with all the improvements thereon. The difference between the value of the lot without the stone store building and the value of the lot as improved, will be the amount which the improvements add to the value of the premises, or, in other words, will be the enhanced value of the property resulting from the improvements erected thereon.
“ The proceeds of the sale of the premises must be applied as follows: First, the costs as adjudged by the district court; second, the said defendants shall receive that proportion of the residue which the enhanced value of the premises, resulting from the improvements, shall bear to the appraised value of the lot; and the remainder of the proceeds shall, be divided as decreed by the district court. As the taxes on the vacant lot have equaled the annual net value of the rents, issues and profits thereof, and as the taxes have been paid by the defendants, the plaintiff is not entitled to recover any sum for rents, issues or profits, or any damage for the withholding of the premises.” (Sarbach v. Newell, 30 Kas. 102, 104.)
Afterward, the commissioners appointed to partition the property examined the same, and Reported to the district court that the same could not be partitioned without manifest injury • and they also appraised the lot without the stone store building at $1,200, and the lot with all the improvements thereon at $4,750. The report of the commissioners was filed in the district court on February 29, 1884. Afterward, and on March 21, 1884, the case came on for further hearing in the district court, when the following proceedings were had, to wit:
“And thereupon and then and there the defendants offer to take the said property at the appraisers’ value. And then and there the plaintiff offers to taire the same at the appraised value. And thereupon the defendants in open court withdraw their offer. And then and there the plaintiff withdrew his offer. And then and there the defendants offered again .to take the said property at the appraised value. And thereupon the plaintiff offered to take the said property at its appraised value, and asked for an order of sale. And thereupon it is ordered and adjudged by the court, that the sheriff of Jackson county proceed to advertise and sell said property,” etc.
On May 31, 1884, the sheriff sold the property to Samuel H. Newell, for $4,500. On June 21,1884, on motion of the .defendants, the sale was confirmed; and thereupon the court ordered the proceeds thereof to be distributed as follows:
“To the defendants herein, their share as and for the stone store building the sum of $3,363.15; and that from the balance the proportional share which said lot brought at said sale, $1,136.85, be paid: First, the costs, including attorney’s fees, $225, (one-half to be paid to plaintiff’s attorneys, and one-half to defendants’ attorneys;) and the balance to be paid, two-elevenths to the plaintiff, and to the defendants nine-elevenths of the residue of said proceeds or share.”
Of this order of distribution the plaintiff complains, and brings the case to this court for review. He claims that the costs, attorney’s fees and expenses should be first paid out of the entire proceeds of the sale of the property, and then that the remainder of the proceeds'should be divided between the plaintiff and the defendants in proportion to their respective interests in the property; while the court in effect ordered that the defendants should be first paid their share resulting from the enhanced value of the property by reason of the stone store building, without such share being subject to the payment of any of the costs, attorney’s fees, or expenses accruing in the litigation, and then that the costs, attorney’s fees and expenses of the litigation should be paid from the remainder of the proceeds. In other words, the plaintiff claims that the costs, attorney’s fees and expenses should be first paid, and then that as the value of the lot without the stone store building was yf-ff or -ff- of the entire value of the property, and that as the enhanced value of the lot resulting from the stone store building was J-ffy or of the entire value of the property, and that as he owned T2T of the lot, he should receive T2T of |4- or T-|fT of the remainder of the proceeds ; and that the defendants, who owned yt- of the lot and were entitled to all the enhanced value resulting from the stone store building, should receive T9r of and or - of the remainder of the proceeds; or, in other words, that the amount which the plaintiff and defendants should receive respectively after the costs, attorney’s fees and expenses were paid, should be as 48 is to 997. Under this view the plaintiff claims that he should pay only yjjf-g- or less than -Jj- of the costs, attorney’s fees and expenses, while under the order of the court below he is required to pay T2T of the same. The statute relating to costs in actions for partition reads as follows:
“Sec. 628. The court making partition shall tax the costs, attorney’s fees and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, and may award execution therefor, as in other cases.” (Civil Code, § 628.)
We think the claim of the plaintiff is substantially correct, both under the statute and under the order of the supreme court made at its January term, 1883. (Sarbach v. Newell, 30 Kas. 104.) The costs, attorney’s fees and expenses should first be paid out of the entire proceeds of the sale of the property, and then the parties should receive their respective shares out of the remainder of the proceeds. By such a distribution and apportionment, the costs, attorney’s fees and expenses, as well as tbe amounts to be paid to the parties, would be apportioned “among the parties according to their respective interests.”
The order of apportionment made by the court below on June 21, 1884, will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought in the district court of Chase county by Joseph L. Crawford against David P. Shaft, to recover a certain piece of land situated in that county. The case was tried be fore the court without a jury, and the court found generally in favor of the defendant and against the plaintiff, and rendered judgment accordingly. The plaintiff brings the case to this court for review.
It appears from the undisputed evidence introduced on the trial, that the plaintiff holds the original patent title, and that the defendant claims title under a tax deed issued by the county clerk of Chase county on July 12,1875, recorded July 30, 1875, based upon a tax sale made June 24, 1872, for the taxes due on the land for the year 1871. At the time the land was sold it belonged to a minor, Seymour L. Byington, who did not become of age until March 29, 1883; hence under the statutes in force during that time and still in force, he had a right to redeem the land up to March 29, 1884. (Gen. Stat. of 1868, ch. 107, §101; Comp. Laws of 1879, ch. 107, §128.) On December 20, 1883, he attempted to. redeem the land from the taxes, and paid an amount to the county treasurer sufficient to redeem the same from the taxes, if the tax law of 1868 was to govern, (Gen. Stat. of 1868, ch. 107, §§101, 105;) but not enough if the tax law of 1876 was to govern. (Comp. Laws of 1879, ch. 107, §§127,128,132.) The county treasurer accepted the money, and issued a certificate of redemption to the owner, which certificate was duly countersigned by the county clerk. Upon these facts, the court below held that the redemption was not sufficient; that it should have been had under the laws of 1876, and not under the laws of 1868, and therefore that the attempted redemption was a nullity, that the certificate of redemption is void, that the tax deed is good, and that the holder of the tax deed holds the superior and paramount title. The plaintiff in error, however, claims that this .holding of the district court is erroneous. He claims that the tax laws of 1868 govern in this case, and not the aforesaid §132 of the tax laws of .1876, and therefore that the redemption was good, and therefoi’e that he «holds the better and paramount title; and he claims this, first, because of a certain saving clause contained in the tax law of 1876, (Comp. Laws of 1879, ch. 107, §155;) second, because of a certain saving clause contained in the act of 1868 relating to the construction of statutes, (Comp. Laws 1879, ch. 104, § 1, subdiv. 1;) third, because, as he claims, the owner of the property had a vested right under the tax laws of 1868, not merely a privilege, to redeem his property from any taxes which might be levied against the same from the year 1871 up to the date of redemption, or until March 29, 1884, which vested right the legislature could not take away from him by any change of the law, or by a repeal of the same or otherwise; fourth, because the attempted redemption was a bona fide attempt, and as his money was received by the county treasurer and a formal certificate of redemption was duly issued to him and duly countersigned, his attempted redemption was good, whether he paid a sufficient amount therefor or not, and whether the laws of 1868 or the laws of 1876 are to govern; and if he did not in fact pay a sufficient amount of money to redeem, still the attempted redemption is good, leaving the tax-deed holder to recover the remainder of the taxes in an action of ejectment under §142 of the present tax laws, §117 of the laws of 1868, or in an action brought specifically for that purpose, which unpaid taxes are still a lien upon the land.
The saving clauses above mentioned read as follows:
“Sec. 155. 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.” (Laws of 1876, ch. 34, §155; Comp. Laws of 1879, ch. 107, §155.)
“Sec. 1. In the construction of the statutes of this'state, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the statute: First, the repeal of the statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any j>roceediug commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Gen. Stat. of 1868, ch. 104, § 1; Comp. Laws of 1879, ch. 104, § 1.)
We are inclined to think that § 155 of the tax laws of 1876 is broad enough to apply to this case. The defendant claims, however, that it can be applied only to the mere sale and mere conveyance of lands sold for taxes and to nothing else; but such is not the language of the statute. The language of the statute makes it apply to “ all matters relative to the sale and conveyance of lands for taxes;” and these “matters” are to “be fully completed according to the laws uuder which they originated, the same as if such laws remained in force.” A conveyance of lands sold for taxes is never in form a conveyance absolute, but is always in form only a conveyance upon condition. It is a conveyance “ subject, however, to all rights of redemption provided by law.” (Gen. Stat. 1868, ch. 107, § 112; Comp. Laws 1879, ch. 107, § 138.) And the tax deed in the present case conveyed the property to the defendant’s grantor, W. R. Beebe, expressly and in terms, “subject, however, to all rights of redemption provided by law.” It will therefore be seen that under the statutes and as a matter of fact the conveyance by the tax deed under which the defendant now claims, was a conveyance only upon condition and not a conveyance absolute; and this conveyance would become absolute only upon the condition that the original owner did not redeem the land from the taxes within the period of time given him by law for redeeming the same, and only when such period of time had expired, which period of time, in the present case, was that period of time elapsing from the date of the tax sale, -which was June 24', 1872, up to the time when the plaintiff’s grantor, Seymour L. Byington, became twenty-two years of age, which was on March 29, 1884. Of course the title to the property passed to the tax-deed holder when the tax deed was executed; but it passed to him-only upon a condition subsequent— a condition that it might be defeated as to him and be restored to and reinvested in the original owner. Now, as the conveyance of the property by the tax deed could not become absolute until March 29,1884, becauge 0f original owner’s continuing right up to that time to redeem the land from the taxes and his right thereby to defeat and destroy the conveyance, such right of redemption was necessarily one of the “matters■ relative to the . . • . conveyance,” which the legislature had in contemplation-when it enacted said § 155 of the tax law of 1876, and being one of such “ matters,” such right to redeem under the tax law of 1868 is saved by said section.
The case of Briscoe v. Comm’rs of Ellsworth Co., 23 Kas. 334, has no application to this case. That ease was decided under chapter 43 of the Laws of 1879, (Comp. Laws 1879, ch. 107, ¶¶ 5911 to 5914,) which chapter contains no saving clause, and it is clear from the contents of that chapter, that it was “the manifest intent of the legislature” enacting it, that the prior statute should be changed -and modified, and that the law, as the legislature then enacted it, should be just what that chapter shows it to be. Besides, in that case it was a county that claimed vested rights under the prior statute, and not an individual person, as in this case; and all the authorities hold that the legislature has' more power over the affairs of counties in regulating and determining rights, than it has over the affairs of individual persons.
If the view that we have taken of § 155 of the tax law of 1876 is the correct view, and we think it is, it will not be necessary for us to further consider any of the other questions presented in the case, and therefore we shall not further consider them.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action in ejectment, brought by Michael Darcy to recover from William F. McCarthy the possession of the northeast quarter of section 9, in township 10 south, of range 5 west. The judgment rendered at the first trial was vacated upon a demand made under § 599 of the code, and the second trial was had before the court without a jury. To maintain his action, the plaintiff offered in evidence the duplicate receipt of the receiver of the United States land office at Concordia, Kansas, which is as follows:
“Receiver’s Office, Concordia, Kansas.—No. 2495. Preemption act of 1841; (see commissioner’s letter G, of September 10, 1883; September 14, 1884.)—Received from Michael Darcy, of Ottawa county, Kansas, the sum of two hundred dollars, and — cents, being in full for the northeast quarter of section No. 9, in township No. 10 south, range No. 5 west, containing one hundred and sixty and — hundredths acres, at $1.25 per acre, $200. E. J. Jenkins, Receiver.”-
There was also offered in evidence by the plaintiff a certified copy of a letter of the commissioner of the general land office, which is as follows:
“Washington, D. C., September 10,,1883.—Register and Receiver, Concordia, Kansas—Gentlemen: I am in receipt of your letter of the 31st ult., transmitting preemption proof of Michael Darcy for my consideration. Darcy filed D. S. 10,186 for N.E.-jj; 9, 10 S., 5 W., Dec. 11, 1882; alleged settlement, Nov. 6,-1882. W. F. McCarthy made H. E. 16,880, Nov. 11, 1882. There is no reason why, upon proof being made to your satisfaction, you should not allow Darcy to make his cash entry, he having complied with the requirements of the law in the matter of giving notióe of such intention. I return the papers transmitted with your letter.
Respectfully, N. C. McFarland, Commissioner.”
This, with testimony showing the value of the possession to be $100, was all the evidence offered by the plaintiff, and the defendant then offered in evidence a copy of another communication from the commissioner of the general land office, which, with the certificate of the register of the local office, is as follows:
“ Department of the Interior, General Land Office, Washington, D. C., October'4, 1883.—Register and Receiver, Concordia, Kansas — Gentlemen: By my letter G, of September 10, 1883, you were instructed to allow Michael Darcy to make entry, upon proofs admitted, of N.B.-J 9, .10S., 5¥., recorded by his D. S. 10,186. It appears from a letter of Messrs. Olney & Co., who write in behalf of Wm. F. McCarthy, who made IT. E. 16,880 on said tract Nov. 11, 1882, and the records of this office corroborative of their statements, that McCarthy had instituted a contest against II. E. 15,673 by Darcy on this same land, which he prosecuted to a final decision, canceling said H. E. 15,673, October 30, 1882. This action gave McCarthy a preference right for thirty days, under act of May 14,1880. As McCarthy made his JET. E. October 11, 1882, he was strictly within the law, and any action allowing Darcy’s entry was erroneous. I have therefore now to rescind said letter of September 10,1883, of which action you will advise Darcy. Respectfully,
N. C. McFarland, Commissioner.”
“U. S. Land Office, Concordia, Kansas, November 26, 1883.—I hereby certify that the above and foregoing is a true’ copy of the U. S. land commissioner’s letter G, now on file among the records of this office.
S.. H. Dodge, Register.”
The plaintiff objected to the admission of this testimony, but- the court received it, and gave final judgment in favor of the defendant; and the only ground of reversal urged here is the admission of the commissioner’s letter. One objection is, that the letter was not properly certified. We deem the certificate to be sufficient. Copies of any official letter or communication received by the register or receiver of any land office of the United States, from any department of the government, that have been duly certified by the register or receiver having the custody of such official letter or communication, are admissible in evidence, the same as the original. (Code, §384.) The certificate is claimed to be defective because it fails to show that the letter to which it is attached is the copy of an official letter. It appears to be a letter addressed by the commissioner of the general land office to his subordinates upon a matter which clearly comes within the scope of the official duty of those officers. The official character of the letter is clearly disclosed upon its face, and no statement in the certificate could change or make its character more apparent.
It is also claimed that the action of the register and receiver in allowing the cash entry of the plaintiff is conclusive on the land department, and that the commissioner had no authority to do that which his letter attempted to do. Although proof of the right to enter land must be made to the satisfaction of the register and receiver, they are not the final arbiters of such right. They make returns of entries of land to the general land office, which is under the charge of the commissioner. That officer has supervisory control over the subordinate officers in the land department, and can revise and correct their decisions. The entry relied oír by the plaintiff was allowed by mistake and without authority of law, and it was clearly competent for the commissioner to cancel and set it aside. (Bellows v. Todd, 34 Iowa, 31.) It seems that before the entry was made the plaintiff and defendant had both settled upon and were seeking to acquire title to this land. The plaintiff then claimed it under a homestead entry, but the defendant instituted a contest, which resulted in the decision made October 30, 1882, canceling the entry. Under an act of congress, this gave McCarthy, the successful contestant, thirty days in which to enter the same land. (21 U. S. Stat. at Large, ch. 89, § 2.) During this time a preference was given to the defendant, which was availed of and exercised by him on November 11,1882, when he made a homestead entry. This homestead entry gave the defendant the superior right, and barred the plaintiff from acquiring any right to the land until the entry was contested and canceled. Notwithstanding this, the officers of the' land department, through a mistake, permitted a filing to be made on the land by the plaintiff on December 12, 1882, in which he claims settlement on November 6, 1882. As the land-had already been taken, and was not subject to entry by the plaintiff, this mistaken. action of the officers gave him no right. It is argued for the plaintiff that under § 383 of the code, his duplicate receipt is proof of title against all but the holder of the actual patent, which is not in the hands of the defendant. This is a rule of evidence prescribed by the code, and is applicable iñ a controversy between citizens where the duplicate receipt is held with the. concurrence of the United States authorities. The title to the public lands belongs to the United States, and congress is given full authority to dispose of the lands, and to make all needful rules and regulations respecting the same. (U. S. Const., art. 4, § 3.) A land department has been created by congress and rules prescribed for the disposal of the public lands, and to the officers of that department the duty of selling and disposing of the lands is committed. They can only sell or dispose of these lands in the manner prescribed by congress. In disposing of them there are doubtless many mistakes made, but the matter is within the control of the land department until the patent issues, and the mistakes may be corrected by the officers of that department. • The entry of the' plaintiff, having been made without authority, was rightfully canceled and set aside by the commissioner, and the effect of the duplicate receipt as evidence of title was destroyed. It being within the scope of the duties of the commissioner to make the correction and to cancel the erroneous entry, it will be presumed in the absence of evidence to the contrary, that it was done in accordance with the rules governing such action, and upon sufficient evidence. His action left the whole matter before the land department of the government for adjustment, where the rights of the parties could be further contested, and an appeal from the decision of the commissioner could be taken to the secretary of the interior. Whatever may be the status of the controversy between the parties there, it is plain from the evidence in the record here, that the plaintiff was not entitled to recover.
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
Johnston, J.:
This action was brought by William H. Irwin against the Atchison, Topeka & Santa Eé Railroad Company, to recover for personal injuries sustained by him while serving the company as brakeman. It was tried by a jury, and resulted in a verdict and judgment in favor of the plaintiff. The defendant brings the case here upon alleged errors in the instructions given to the jury. The plaintiff, after stating his employment as brakeman, and that while so engaged on April 14, 1883, it became necessary for him to couple-together the engine and a certain car, set forth the cause of the injury and the' liability of the defendant therefor, in the following language:
“That the engineer of said strain, who was then an employé of the defendant, and a coemployé of the plaintiff; and controlling and operating his said engine at the time, backed his said engine toward the plaintiff and the said car for the purpose of permitting the plaintiff to couple together the engine and said car; that w'hen the engine had approached to the proper distance from the said car, the plaintiff signaled the engineer to stop the engine, and stepped in the proper manner, and at the proper time, between the engine and the car for the purpose of making the coupling aforesaid; but plaintiff avers that the said engineer, neglecting the legal duty which he owed himself, this plaintiff, and defendant, negligently and unlawfully failed, neglected and refused to stop his said engine when so signaled as aforesaid by plaintiff, or to pay any attention to the plaintiff’s said signal, by reason whereof, through the gross negligence and default of the said engineer, and without any negligence or fault of the plaintiff, the said engine •was propelled against the said car with such terrific force and a terrible jar as to nearly throw the plaintiff from his feet, and to catch the thumb and finger of his left hand between the bumpers of the said engine and car,” etc.
The petition contains no averment that the injury occurred by reason of any other cause, or through the negligence or fault of any coemployé of the plaintiff, other than the engineer. The defendant denied the allegations of the plaintiff, and alleged that the injury resulted from the plaintiff’s own carelessness.
The jury were instructed, among other things, that—
“The plaintiff here seeks to recover against the defendant for a claimed injury which he says life received while in the employment of the defendant company in the operation of its railroad, and he says that.he is entitled to recover by reason of the negligence of certain other employés of the company, to wit, -the engineer or fireman, or both. Now I say to you that under the laws of this state, if this injury occurred while these parties were in the performance of their duty in operating cars on the line of this defendant’s railroad, then the acts of this engineer and fireman were the acts of this defendant, and they are liable for the acts of the engineer and fireman.”
In another part of the charge it is stated:
“Now the question is, what may be the improper acts of these men in the law, so that this defendant company will be liable for it? The rule of law incumbent upon them was — both the engineer and fireman—that in the performance of their duties in operating the engine at the time the accident occurred, was the use of ordinary care and attention,” etc.
And in still other portions of the charge the jury were told that the defendant would be liable for the negligence of the fireman as well as for that of the engineer. The exceptions taken to these instructions are well founded. It is well established that the plaintiff is not entitled to recover upon any other basis or cause of action than that alleged in his petition. The only issued ■ tendered by him was the alleged J J 0 negligence of the engineer. The petition contained no general charge that the injury resulted from the negligence of the defendant, and no intimation that it was occasioned by any fault or neglect of the fireman. The court, therefore, by its charge, undertook to enlarge the issue, and to present to the jury a case not made by the pleadings. This was error. ( U. P. Rly. Co. v. Young, 8 Kas. 658; Price v. Railway Co., 72 Mo. 414; Edens v. Railroad Co., 72 id. 212; Waldhier v. Railroad Co., 71 id. 514; Ely v. St. Louis &c. Rld. Co., 16 Am. and Eng. Rld. Cases, 342.)
Undoubtedly the company is liable for the negligence of the fireman as well as for that of the engineer, but the plaintiff cannot plead that the liability arose from the negligence of the engineer, and sustain his action by showing negligence in the fireman or in some other servant of the company. If the proof disclosed that the injury was occasioned by the negligence of the fireman, or through some joint fault of the engineer and the fireman, the plaintiff might, under the liberal provisions of the code, have obtained leave to amend his petition. But in that case the defendant would have been entitled to a continuance, as it could not be compelled to enter at once upon the trial of a wholly different issue than that which had been formed by the pleadings. The defendant had a right to assume that it would not be called upon.to meet any issue of negligence in the fireman, and may have gone there entirely unprepared to try that question. But the plaintiff made no application to amend, and no amendment was made. If the evidence indisputably showed that the injury was caused by the negligence of the engineer, and not through any fault of the fireman, we might hold the instruction to be harmless, but such is not the case. The evidence is conflicting with regard to the fault of the engineer, and there was incidentally brought into the testimony some proof tending to show negligence in the fireman. In view of this condition of the evidence, we are unable to say that the directions given by the court that the defendant might be held liable, for the negligence of the fireman did not mislead the jury, and we must therefore reverse the judgment, and remand the cause for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The makers of the note and mortgage upon which this action was brought, have made no defense. J. J. Hoffman, who was made a defendant in the action, claimed under a tax deed, which, if valid, would extinguish the mortgage lien, and vest the absolute title to the land in himself. The mortgaged land was subject to taxation in 1873, and the taxes not being paid, it was offered for sale in 1874, and there being no bidders, it was struck off to the county. The subsequent taxes, for the years 1882 to 1884 inclusive, were not paid, but were charged up against the land. On May 1, 1884, the county clerk, by order of the board of county commissioners, and in accordance with the provisions of chapter 43 of the Laws of 1879, assigned the tax-sale certificate to Hoffman. The tax deed in question was based on that, assignment, and was issued on the 4th of November following, and its validity was the principal question before the court. It was held by the district court to be invalid for several reasons; the first of which is that the county treasurer in his notice of the tax sale omitted to state that the land would be offered for sale at public auction. The statute, in terms, requires that the land shall be sold at public auction, and also that the notice shall contain the statement that the sale will be so made. It has been held that the omission of this statement in the notice, if taken advantage of before the statute of limitation runs, will defeat the deed. (Hafey v. Bronson, 33 Kas. 598; Belz v. Bird, 31 id. 139; Corbin v. Young, 24 id. 198.) Counsel for Hoffman contends that the tax deed is not based on a sale made pursuant to the defective notice, but is based wholly on the authority of chapter 43, Laws of 1879. The first section of that act reads as follows:
“Whenever any lands or town lots .that may have been or shall hereafter be sold for any taxes due thereon, that may have been or shall hereafter be bought in by any county for such taxes, are or hereafter shall be unredeemed for three years from date of such sale, and no person shall offer to purchase the same for the taxes, penalties and costs due thereon, the county commissioners of the county where such lands or town lots are located, may permit the owner, his agent or attorney, to redeem the same, or may authorize the county treasurer to execute, and the county clerk to assign, tax-sale certificates for such lands or town lots, for any sum less than the legal tax and interest thereon, as shall be in their judgment for the best interest of the county; which assignment shall have the same force and effect as if the full amount of all taxes, interest and penalties had been paid therefor: Provided, however, That no deed shall be issued upon any certificate so assigned until six months after such assignment has been made.”
There is no authority given to the couuty commissioners in this section to make a sale of the lands which have been struck off to the county. They are only authorized to order the execution and assignment of tax-sale certificates for lands that have been previously sold for taxes.. The assignment in such a case differs from an assignment of lands held by .the county in other cases, only in this, that instead of the purchaser being required to pay the full amount charged against the land, he may be allowed by the commissioners to purchase the interest of the county in the land for a reduced amount. The tax-sale certificate executed by the county treasurer and assigned by the county clerk under this statute, is based upon the anterior tax proceedings, and upon the sale which was made when the land was bid in by the county; and therefore a legal notice of the sale is a prerequisite to the validity of the tax deed issued under the statute, and the omission to state in the notice that the land would be sold at public auction must be held to be a fatal defect in the deed in question.
The mortgagee was at liberty to question the validity of Hoffman’s tax title, as he held under the original owner, and may protect the interest conveyed by the mortgage to the same extent as the original owner might do. It being an action to foreclose the mortgage, .Hoffman, who claimed an interest in the land, was properly made a defendant. He set up his tax title, which, if upheld, divested the mortgage lien, and it was the duty of the court to determine the existence and priority of the liens claimed by the respective parties, and in such a case no tender of the taxes was necessary. The whole matter was before the court for equitable adjustment, and as the foreclosure has been decreed, the proceeds of the sale will be brought into court for distribution, and the interest of the holder of the invalid tax deed is fully protected.
The only other question which we need to notice is as to the amount allowed by the court to Hoffman. He was allowed $265.50, which was the amount actually paid to the county on the tax-sale certificate, together with interest thereon, and the value of the improvements, but he claims that he was entitled to receive $455.99—the full amount of taxes, interest and penalties legally charged against the 'land. Section 142 of the act relating to taxation provides that the successful claimant in an action where the tax deed is found to be invalid, shall be adjudged to pay the holder of the tax deed, or the party holding under him, the full amount of all taxes paid on such' land. By § 2 of the chapter under which the' cer tificate was assigned and the deed issued, it is provided that the party desiring to redeem as therein prescribed —
“Shall pay to the purchaser or holder of the tax certificate, his heirs or assigns, in money, the amount paid for the property, and all subsequent taxes paid thereon, with interest from the date of each payment, at the rate of twenty-four per cent, per annum.”
The court allowed the full amount to which he would have been entitled if the land had been redeemed, and he is entitled to no greater sum where the deed is held to be invalid.
The further claim of Hoffman for a greater rate of interest than was awarded by the court, has been determined against him. By the terms of the decree he was to receive interest at seven per cent, per annum on the amount of recovery from that date, the same as an ordinary judgment draws; and it has been decided that the amount due for taxes in any action in which the tax deed is set aside, draws interest thereafter at the rate of seven per cent. (Corbin v. Young, 24 Kas. 198.)
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
Horton, C. J.:
In the spring and summer of 1881, D. P. Hazeltine constructed a stone building, with a brick front and tin roof, upon his premises, in the city of Columbus, the side walls of which, from the top to the foundation, were about twenty-one feet; the length of the building one hundred and twenty feet; the foundation about three feet deep in the earth; and the walls above the foundation two feet thick; the east wall of the building being located oue inch west of the east line of his lot. In August, 1881, Hazeltine moved into his building, and opened up a hardware store. He had shelves on the inside of his east wall, where he kept spoons, scissors, knives, locks, screws, hinges, etc. In April or May, 1881, Daniel Edgmand purchased the Commercial House, a two-story frame building, about twenty feet wide, with a main part about sixty feet long, and a kitchen extending back. This building was situated upon a lot adjoining and east of Hazeltine’s premises. The building had a shingle roof, sloping east and west from the center, about one-third pitch. On the west side the roof had no eaves-trough, gutter, or other conductor for catching and carrying off the rain or water falling upon the building. At the south end, near the ground, the walls of the buildings were from five to seven inches apart. Upon the ground, at the north end, they were from twenty to thirty inches apart. The wooden building leaned to the east, and the space between the buildings gradually widened from the south to the north end, and from the ground up, so that the space between the walls of the buildings, at the top, ran from ten to thirty-three inches. The roof of the wooden building was about two feet below the top wall of the stone building. The eaves of the wooden building projected beyond the face of the walls. In the petition, it is alleged that the rain and water falling upon the roof of the wooden building was discharged and thrown against and upon the east wall of the stone building; that the rain and water penetrated through the wall and plastering, staining the wall and crack ing the plastering, whereby the shelf hardware in the stone .building became damp and rusty.
Upon the trial the court, over the objection of plaintiff below, charged the jury as follows:
“While buildings are necessary for business and the habitation of man, and essential for all affairs and uses in business, yet the owners of them are called upon to exercise the highest degree of care to prevent their becoming a nuisance to others, and it is the duty of the owner and occupier of a building on a division line to keep gutters, or other appliances for the discharge of water from the roof of his building in proper repair and condition to cany off the water that collects thereon, and he is bound to have them of sufficient capacity to carry off the water that may fall in -storms likely to occur. And if, in this case, the defendant, (and whether he did or not is for you to determine,) from any cause that could have been prevented, and by the exercise of ordinary care, failed to carry the water from his roof, whereby the building or property of the plaintiff was damaged, as alleged in the petition, the defendant is liable for all the consequences resulting from such defects or acts, unless the same resulted from extraordinary or 'accidental circumstances.”
' This instruction is unfortunate in the language employed^ and was very liable to mislead the jury. All the evidence shows that the defendant below had no gutters or other appliances to catch and carry off’ the rain or water falling on his west roof. Therefore it is clear that he did not exercise any care to prevent the water falling upon his own roof from being discharged upon the wall of plaintiff. No principle is more firmly established than that contained in the familiar maxim, “Sic utere tuo ut alienum non Icedas/” and • if the water from, the defendant’s roof fell upon plaintiff’s building on account of the neglect of defendant to have a . ( _ _ trough or gutter, or some other conductor, to the injury of plaintiff’s wall and hardware, the defendant is liable. Then again, there was no evidence in the case tending to show that any water or rain was discharged upon plaintiff’s building from extraordinary or accidental circumstances. Extraordinary and accidental circumstances are sometimes construed to mean something in opposition to the act of man, as storms. In any event, the law would require the defendant to have troughs or gutters of sufficient capacity to prevent the rain or water falling upon his building in all storms likely to occur, from being discharged upon plaintiff’s building. (Bellows v. Sackett, 15 Barb. 96; Wood on Nuisances, §118.) In addition to there being no evidence tending show the circumstances referred to in the 0}jarge> without further explanation the jury would be very liable to misunderstand and misconceive the purport of the words “ extraordinary or accidental.” The paragraph commencing “And if in this case,” etc., should have: been omitted.
Again, in another part of the charge, the following language was used:
“ The court says to you, that a person has the right to do any act upon his own property or land, or make such erections thereon, or have buildings thereon, which do not violate the rights of his neighbor or his property; and to this extent he has full control over his premises in the erection or maintaining of his buildings already erected. He has no right to make any erections thereon and allow them to remain so near another’s land that the rain falling thereon is discharged from the eaves upon adjoining buildings or land, except upon or by express grant or permission, or else by prescription far such a length of time as furnishes a presumption of a grant so to do, which is usually for a term of years —twenty years or more for prescription, but if by permission or grant, no particular length of time is required.”
There was ho evidence tending in any way to show that the defendant had the right to let the water falling on the roof of his building be discharged upon or against the plaintiff’s building by grant, permission, or prescription. All of the exceptions stated should have been left out of the charge, as they were liable to mislead and confuse the jury.
As far as possible, instructions should be applicable to the evidence presented upon the trial, and we think, considering the verdict in this case, that the jury were probably misled by portions of the charge which were not supported by the evidence, and in this case were wholly irrelevant. The evidence is very conflicting and contradictory as to whether the water from the defendant’s roof actually fell upon the wall or building of the plaintiff, and therefore the mischief is the greater from the instructions given, upon matters not in evidence. 7(Savings Association v. Hunt, 17 Kas. 532; Raper v. Blair, 24 id. 374; Railway Co. v. Peavey, 29 id. 169; Feineman v. Sachs, 33 id. 621; Railway Co. v. Fray, 31 id. 739.)
. The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action upon a note, and the sole defense was payment. The facts are these: The defendants doing business at Alma, Kansas, executed their note dated August 12th 1872, due in thirty days, and payable to the order of plaintiffs at the Boatman’s Savings Institution in St. Louis. This note was duly received by the plaintiffs in St. Louis, and placed with their other valuable papers.. These papers were, according to the testimony of J. J. Ostrander, their bookkeeper and treasurer, kept at night locked in their safe, and during the day in a drawer in the witness’ desk, and were all the time under the sole charge of said witness. Both safe and desk were in the office which is in the second story of the building occupied by plaintiffs, and separated from the rest of the story by a glass partition. This office was occupied only by the witness and two bookkeepers. The witness was absent about an hour at noon of each day, but .then locked the drawer where the notes were, and left the key in a drawer of the desk of Moses Rumsey, in another room. When the note became due, it was missed, and after about a week’s delay, notice of the loss was sent to the defendants. At about the time the note became due plaintiffs discharged their shipping clerk, who however according to the testimony continued in St. Louis. In response to the notice of loss, and on October 20th, defendants wrote a letter requesting plaintiffs to forward the note to'certain bankers in Wamego, and it would be paid. This was the only note they had ever given plaintiffs. The plaintiffs never received anything on account of the note. On the other hand the defendants showed by August Meyer, one of the partners, that on the 80th of September a party came into their store at Alma, and handing them the business card of plaintiffs said, “Anything you want in our line?” They gave him an order for goods, which they never received. After taking the order he presented the note, and they paid it. They produced the note in court, and it was unindorsed. They did not know the agent, they had never dealt with him before. Their prior purchases had been by mail. He said nothing about the plaintiffs, but simply presented their card, took the order for goods, presented the note, and received payment. This was on the 30th of September. Two days afterward they received a notice from plaintiffs that they wanted money. Witness wrote the letter of October 20th, thinking that plaintiffs might have another note of theirs signed by his partner, Schmitz, who had signed this. Upon the testimony the court found for the defendants. And the only question is, whether the evidence warrants such finding; or rather, whether it is so clearly against such finding that it is the duty of this court to reverse the judgment. Two things are evident — first, that the plaintiffs have never received any pay for the note, and second, that the defendants have paid the full amount of it. It is hard for the plaintiffs not to receive the money due them, and it is equally hard for the defendants to pay a second time. It is also clear that there was no intentional wrong on the part of either. The possession of the note by the. party receiving payment, is the fact upon which the defendants must and do rest their case. The possession of the plaintiffs’ business card, which is intended for general circulation, amounts to little or nothing. And the question really presented is, whether the mere possession of a negotiable instrument, unindorsed, protects the maker in payment, notwithstanding that the possessor is in fact unauthorized to receive payment, and has improperly obtained possession. It is undeniably true, that the possession of the instrument is often a decisive fact in determining whether the payment to the agent is a protection to the payor. To that extent are the authorities cited by the learned counsel for the defense. And in Story on Agency, § 104, it is said, “And generally the possession of a negotiable instrument is deemed sufficient prima fade evidence of the title of the possessor to secure payment of it.” See also Doubleday v. Kress, 60 Barb., 181; Tappan v. Norseman, 18 Iowa, 499; Williams v. Walker, 2 Sand. Ch., 325. In these last two cases the absence of the instrument was considered decisive against the power of the agent, though in the one case the owner had given the defendant to understand that he would place the matter in the hands of the supposed agent, and in the other the supposed agent had in fact negotiated the loan, had possession of the instrument, and had properly received some payments. In this last case quite an examination .is made into the English authorities, and a number of cases cited in which a party negotiating a loan has afterward received payment of principal or interest, and the general conclusion appears to have been that the borrower was protected in such payments only when the party receiving had the instrument still in his possession. But in this class of cases it must be noticed that the party receiving payment had been the agent of the owner, and the question was as to the duration and extent of his authority. The fact, that the owner permitted him to retain possession of the instrument, was deemed sufficient evidence of a continuation of his authority in the premises, and of his right to receive payment according to the terms of the instrument. The distinction between those cases and the present is obvious. Here the possessor had never been the agent of the owners in this transaction, had never had any connection with it, or dealings with the defendants. Pie had never had any rightful possession of the note, but had somehow improperly obtained it. The possession of the note was the sole evidence of the fact of agency as well as the extent of authority. The defendants pay to a stranger a debt they owe to the plaintiffs, and the sole protection they present for such payment is the fact that this stranger had possession of the evidence of such indebtedness. There had been nothing in their prior dealings with the plaintiffs to justify such confidence. They had had no dealings with any runners for them. Their purchases had been by mail. They were wholly unacquainted with' the party to whom they made payment. He bore no credentials from the plaintiffs, other than such as can be picked up in any hotel. He presented a note payable to the order of plaintiffs, and unindorsed by them. Yet this unindorsed note they pay to this stranger wrongfully in possession, and having actually no authority to bind the plaintiffs in any way. We cannot think a- payment thus made discharges the debt. This proposition may be laid down as correct: Payment of a past-due negotiable note, drawn to the order of the payees and unindorsed, made to a stranger who is in fact no agent of the owners, and without authority to receive payment, but who has surreptitiously obtained possession of the note, and whose only evidence of authority is the possession of the note and the general business card of the payees, and where there has been no laches on the part of the owners, and nothing in the prior transactions between the parties to induce credence in the authority of such stranger, is no defense to an action by the owners on such note.
We are aware of the rule which forbids the court to set aside a finding of fact made by a district court upon conflicting testimony; but here there seems to be no conflicting testimony. The manner of payment as stated by the witnesses for the defendants is taken as strictly true. Indeed, full credence is given to their entire testimony, and it is rather a conclusion of law to be drawn from undisputed facts, than a finding of fact from conflicting testimony.
The judgment will be reversed, and the case remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of, the court was delivered by
Brewer, J.:
The only ground of error pressed for our consideration is, that the verdict is against the evidence; and the question arises in respect to the counterclaim of defendants. Some correspondence passed between the parties in March 1873, in consequence of which defendants shipped some onion sets to plaintiff, at St. Louis. On receiving the bill of lading the plaintiff, claiming not to be in the commission business, turned it over to a commission merchant, who received the onions, and sold for much less than defendants claim they had sold them to plaintiff for. The negotiations between the parties were by letter. These letters, and the conduct of the plaintiff on receipt of the onions, constituted all the evidence of a contract. The following is the correspondence in the order in which it passed — defendants writing from Junction City, Kas., and plaintiff from St. Louis, Mo. Defendants to plaintiff-" What will you give us for 40 barrels onion sets, ohoiee, on board cars here?” Plaintiff to defendants.-" We will give you $3.50 per bu., delivered here, for choice top onion, if they are the right hind; would prefer to see a sample.” Defendants to plaintiff'Our onion sets came from Indiana, and are choice sifted sets, no chaff or dirt, and are the best sets we ever saw. We want $3.50 per bu. here on cars. Freight will be 70c. per 100 lbs., although we may get a lower rate. Can’t you stand it?” Plaintiff to defendants.-" We cannot pay more than $3.50 per bushel for onion sets delivered here, and would not care to buy at that now, as we have a large lot on hand.” Defendants to plaintiff.-" We ship you to-day per M. K. & T. road 25 bbls. onion sets. We hope they will reach you safely, and in good order. They are in good condition now. As soon as received please send us statement. We shall expect the highest market-price.” Upon receipt of the onions the-plaintiff disposed of them as stated above, and notified the defendants thereof, who objected to the disposition made, and claimed a sale to plaintiff. Upon this the jury found that there was a sale. Will the evidence sustain the verdict? It is clear, that up to the time of the shipment of the onions no contract had been closed between the parties. The only'offer made by the plaintiff had not been accepted by the defendants. Their minds had not come to any point of agreement. The one had offered $3.50 in St. Louis. ' The other, not accepting that, demanded the highest market-price. Clearly then, they had not agreed. The plaintiff therefore, notwithstanding the prior negotiations with a view to purchase, was at liberty on receipt of bill of lading to withdraw its offer, decline to purchase, and refuse to receive the goods. How far did the subsequent conduct of the plaintiff render it liable as on a purchase? What a consignee, under the circumstances indicated, may do with the consignment, must be viewed in the light of the prior negotiations. It was made not to a stranger, but to one with whom the consignors had had prior dealings, and made in pursuance of negotiations, with reference to the sale of the very articles shipped. Clearly, the consignee might refuse to receive the consignment, and suffer the carrier to make such disposition as it saw fit. So doing, he would place himself under no liability to the consignor. Or, he might place the goods in some ordinary and safe place of storage, either in his own warehouse or elsewhere, and notify immediately the consignor of the place of storage, and that they were subject to his (the consignor’s) order. And where the goods are of a perishable nature, and liable to total loss unless immediately cared for, the consignee may, acting in good faith, and with ordinary and reasonable prudence and care, place them as the goods of the consignor in the hands of a responsible - commission merchant for immediate sale. And in this, although the goods might not properly perhaps be classed as perishable goods, still we think the consignee, if acting in good faith, and with reasonable prudence, would not be responsible as purchaser, if it turned the bill of lading over to a responsible commission merchant. They were shipped with a view to a sale. The highest market-price was expected. The consignors knew that they had not accepted the offer of the consignee, and that no contract having been consummated, the latter was not bound to receive or pay for the goods. The consignee was but carrying out the expressed wishes of the consignors in placing the goods where they would be most likely to realize the highest market-price. So doing, and acting in good faith, it does not seem just that it should be held responsible as purchaser.
The case seems to have been tried in the district court upon the supposition that the jury might from the correspondence and the shipment infer a contract. For included in the shipment were some goods not spoken of in the prior correspondence, and though the jury found for the defendants as to these also, the district court compelled a remittitur of this amount as a condition of judgment. Plainly therefore, the learned court did not consider that the conduct of the plaintiff in St. Louis, by itself alone, rendered it responsible. The same thing also is evident from the instructions. But in this supposition the court erred. It was its duty to construe the writings, and it should have charged the jury that by those letters no contract was consummated between the parties. However, as no exception was taken to the instructions, any error in them was doubtless waived.
Counsel has urged and we are not insensible to the rule that forbids us to disturb the verdict of a jury, which has any testimony tending to establish all the essential facts to sustain it. But that rule is scarcely applicable. Here was a case tried upon an erroneous theory of the law. If that theory were correct, there was some testimony to sustain the verdict. But that theory being incorrect, both the district court and this court concur in holding there was no testimony to sustain it. The district court, acting upon this erroneous view of the law, upheld the verdict in part. This court takes the view of the testimony which the trial court took, and applying to it the law as rightfully construed finds that the entire verdict should follow the part reje'oted by that court. In this way justice between the parties will be more certainly reached, for upon a second trial any testimony tending to show bad faith, or want of reasonable care on the part of the consignee, can be introduced.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
As the record stands in this case there is scarcely any question which has not already been decided by this court. The action was on an account for rent, brought first before a justice of the peace, and taken on appeal to the district court. No question is made as to the sufficiency of the bill of particulars. There is nothing in the record to show that all the testimony has been preserved. Indeed, it is evident from instructions asked that it has not been. Of course then, we must presume that it was sufficient to sustain the verdict. Some instructions were asked by defendant, plaintiff in error, which were refused, but the record fails to show that all the instructions which were given have been preserved, and as often said, the instructions refused may have been so refused because already once substantially given.
A single matter may however properly be noticed. The rent claimed was for rooms rented for county offices. It is admitted that there was at the time belonging to the county, a court-house, and such being the case it is contended that the commissioners had no power to rent other offices, or bind the county by a contract therefor. By the third clause of §16 of the act concerning counties and county officers the commissioners are empowered, “ to purchase sites for, and to build and keep in repair, county buildings, and cause the same to be insured in the name of the county treasurer for the benefit of the county; and in case there are no county buildings, to provide suitable rooms for county purposes.” Now the contention of counsel is, upon the maxim, expressio unius, exclusio alterius, and upon the rule that the grant of a specific power upon certain conditions is by implication a denial of that power except upon those conditions, that as the power is in terms granted to provide rooms for offices in case there are. no county buildings, it is not granted and does not exist in case there are such buildings. It does not appear what kind of a court-house the county had, whether adequate to the needs of the various county offices or not; and to sustain the claim of counsel would deny to the commissioners the power to provide rooms for county offices,- and facilities for the transaction of county business, whenever the county chanced to possess a court-house, however unsuitable for occupation, or inadequate to the wants of the public. So strict a construction would simply illustrate the saying, that the letter killeth while the spirit maketh alive. We do not think the language quoted sustains the- claim of counsel. It justifies, and should receive, a more liberal construction. The commissioners are the general guardians and agents of the county, and have the general management of its affairs; and the quoted clause empowers them, if the county has no buildings reasonably suited or adequate therefor, to rent any requisite number of rooms for county offices. And under all ordinary circumstances, the judgment of the commissioners is conclusive as to the unfitness or insufficiency of the buildings owned by the county.
The judgment of the district court will be affirmed.
It is understood that the case of same plaintiff against Barnett, Morrill & Co., is similar to this, and must be decided in the- same way.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on two promissory notes and a mortgage. The facts in the case are substantially as follows: The plaintiffs in error, Samuli O. Swenson and John P. Swenson, executed to the defendant in error C. M. Albinson two promissory notes and a mortgage on real estate to secure the payment of the notes. Afterward Albinson assigned one of said notes to the other defendant in error, the . Moline Plow Company. The notes were not paid at maturity, and this action was commenced by Albinson and the Moline Plow Company jointly against the Swensons to recover the amounts which they respectively claimed on said notes and mortgage. The only question which we are asked to decide is, whether a joint action may be maintained by the two plaintiffs below, or whether each had his separate action. In this state -the debt secured by a mortgage is the real subject of the action; the note given therefor is the principal evidence thereof, and the mortgage is merely ancillary thereto. The mortgage follows the note. Whoever owns the note owns the mortgage. When the note is paid the mortgage is paid. When the action on the note is barred by the statute of limitations, the action on the mortgage is also barred. Indeed, any defense that may be set up against the note may be set up against the mortgage. But there is no separate action on the mortgage. The action must always be on the note, and it may be on the note either with or without the mortgage, And the action'on the note, whether with or without the mortgage, is, so far as the note is concerned, substantially an action at law.. The action is tried, so far as the note is concerned, in the same manner as any other action on a promissory note. Either party has a right to a jury, and the judgment is a personal judgment against the defendant, substantially the same as any other personal judgment. The judgment is much like a judgment in an ordinary attachment case. The judgment is for the amount due on the note, with an order that the mortgaged property be first sold to satisfy the judgment, and that if it does not. satisfy the judgment then that a general execution be issued against the property of the defendant. Where more than one note is given, there are as many causes of action as there are notes; and if any of the notes are assigned, then each owner of a note has a separate cause of action, and each has a right to have the mortgaged property sold to satisfy his claim. The mortgage is a security for each note. It is substantially the same as several mortgages for the several notes. The mortgage liens in favor of all the notes may be equal, or the lien in favor of one note may be prior to that in favor of another note. In the present case, when Albinson assigned one of said notes to. the Moline Plow Company the company became the owner thereof, with the right to a separate action thereon. Each plaintiff then had á separate action, and a separate right to have the mortgaged property sold to satisfy his or its own note. Although the two notes were secured by one mortgage, yet the rights of the parties were the same as though the two notes had been secured by two different mortgages on the same piece of land. The notes are the principal thing, and the mortgage is ancillary. And as the notes are separate, the mortgage must be considered as a separate mortgage for each note. In the present case, Albinson wanted a judgment in his favor for the amount due on his note, and the mortgaged property sold to satisfy his judgment. The Moline Plow Company wanted a judgment in its favor for the amount due on its note, and the mortgaged property sold to satisfy its judgment. Now where is there any community of interest ill this? It is true, both want the property sold, but each wants it sold for a different purpose. What interest has Albinson in having the property sold to satisfy the Moline Plow Company’s claim ? And what interest has the Moline Plow Company in having the property sold to satisfy Albinson’s claim ? Each really wants the property sold to satisfy his or its own claim, and not to satisfy that of the other. Instead of there being a community of interest there is really an antagonism of interest between the plaintiffs. Either might have sued on his or its own note, and made the other a defendant, so as to have the priority of their liens on the mortgaged property determined, for in this there is a conflict of interest; but they cannot sue jointly as plaintiffs, for they have no interest in common. As to joinder and misjoinder of parties plaintiff, see Harsh v. Morgan, 1 Kas., 293; Winfield Town Co. v. Maris, 11 Kas., 148, et seq.; Hudson v. Comm’rs of Atchison, 12 Kas., 140; Newcomb v. Horton, 18 Wis., 566; Barnes v. City of Beloit, 19 Wis., 93; Howland v. Supervisors, 19 Wis., 247.
The judgment of the court below is reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case was tried by a judge pro tem., and without a jury, upon an agreed statement of facts. The charge was, that defendant voluntarily and unlawfully threw down a fence other than that “that led into his own inclosure,” and was brought under § 2 of the “ act to prevent certain trespasses,” Gen. Stat., 1096. Defendant was found guilty, and sentenced to pay a fine of five dollars, from which sentence he has appealed to this court. As this case was tried uPon an agreed statement of facts, and without the introduction of witnesses, it is presented to ug veiy much as it was to the trial court. Those
considerations so often adverted to, which uphold the decision of the lower tribunal in doubtful cases, have no application here. We can act upon it in almost the same manner as though it were an original case in this court. Kansas Pacific Rly. Co. v. Butts, 7 Kas., 308. Do the facts as agreed upon show a violation of this statute, by the defendant ? It seems to us, clearly not. The facts are substantially these: For months prior to the alleged misdemeanor, defendant and one Kennedy were occupying the same tract of land, and contesting the right to purchase it from the government. A trial in the local land-office had resulted in favor of Kennedy, but an appeal therefrom was still pending before the Commissioner of the General Land Office. Kennedy had a field fenced on the south side of the tract. On the north, defendant had built a house and was occupying it. This house was about forty yards from a county road, which ran along the west line of the tract. Around this house defendant had built a fence, the west line of which was on the county 'road, through which, at a place where was a “slip-rail gap, or loose rail,” he .passed to and from his house. About a week or ten days before the commission of the alleged offense, Kennedy built a fence so as to entirely inclose defendant’s house and field, the west fence of which along the county road was- only eighteen inches to two feet from defendant’s fence. In building this fence he put a post opposite the center of the “slip-gap” above referred to, to which he nailed some rails or slats. Defendant knocked off the slats, and pulled up the post, and passed in and out with his team and wagon. Kennedy replaced the post and slats, and defendant a second time removed them, and this removal was the offense charged. In this there was no criminal offense. It did not come within the statute. The fence thrown down was between his house and the public road, placed across the very way he had been accustomed to pass in and out from his home. It was not therefore, in the language of the statute, one “other than those that lead into his own inclosure.” If this conviction be right, any man may have his homestead fenced in by an outer fence, and be thus debarred ingress and egress. Such is not the law. The contest between Kennedy and defendant cannot thus be carried on through the aid of the criminal law. With equal propriety might defendant surround Kennedy’s field with an outer fence, and then ask to have him punished criminally if he broke it down to get into his field.
The judgment will be reversed, and the case remanded with instructions to discharge the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
But a single question is presented in this case for our consideration, and that is, the constitutionality of | the act of the last legislature entitled “An act authorizing Ítownships to issue bonds for relief purposes.” (Laws of 1875, p. 53, ch. 42.)The matter has been pressed upon our early attention and decision for these reasons: The time within which these bonds may be .issued is limited, the purposes sought to be accomplished thereby must be speedily accomplished. An impression widely prevails, supported by an official opinion of the attorney general, that the act is beyond the scope of the legislative authority, and that the bonds provided for in said act would, if issued, be destitute of legal obligation. Hence it is said, and with great propriety, that an authoritative decision is of public importance; that if the act be constitutional, such townships as desire may avail themselves of its benefits, and negotiate more easily and at higher figures the bonds they may issue, and that, on the other hand, if the act be unconstitutional no steps may be taken under it, the evil of repudiation be avoided, and other measures of relief be resorted to. Impressed with the force of these considerations, we have given the matter our early attention, and proceed now to state briefly the conclusions we have reached.
TwO propositions may be considered settled: first, that taxation to be sustained must be for a public purpose; and second, that where municipal bonds are issued, whose payment is provided for solely by taxation, their validity depends upon the question whether the purposes to which the proceeds of such bonds are to be applied are public purposes. Leavenworth County v. Miller, 7 Kas., 479; The Citizens Savings and Loan Association v. The City of Topeka, recently decided by the supreme court of the United States; (23 Wallace.) It is also conceded by counsel that the entire purpose, or, if there are several, and no rule of apportionment as to the application of the proceeds, that all the purposes must be public. In other words, that the legislature cannot validate bonds for private purposes by declaring that the authorities may apply an indefinite portion of the proceeds to some public purpose. With these preliminary remarks let us turn to the act in question, and see to what purposes the proceeds of the bonds authorized by it are to be applied. The first four sections provide for the amount of bonds that may be issued, their form, title, time, rate of interest, the limit of the price for which they may be sold, and the placing of the proceeds to the credit of the relief fund. The last clause of section four then reads: “Provided, that no part of such fund shall be used except for the specific objects hereinafter named.” Sec. 5 is as follows:
“Sec. 5. The trustee, clerk and treasurer of such township, or a majority of them, shall, as soon as practicable, sell and dispose of the bonds issued by them under the authority of this act to the best possible advantage, and invest the proceeds, or so much thereof as in the judgment of said officers may be necessary, for the purpose of providing the destitute citizens of such townships with provisions and with grain for seed and feed; and the officers aforesaid shall distribute such articles of necessity amongst the destitute citizens of such township in proportion to their several necessities, under such rules and regulations as may be prescribed, in accordance with the provisions of the fourth section of this act: Provided, That no family shall receive more than seventy-five dollars in value.”
The relief of the poor; the care of those who are unable to care for themselves, is among the unquestioned objects of public duty. In obedience to the impulses of common humanity, it is everywhere so recognized. Our own constitution but gives utterance to the universal voice when it says, “The respective counties of the state shall provide, as may be' prescribed by law, for those inhabitants who, by reason of age, infirmity, or other misfortune, may have claims upon sympathy and aid of society.” Art. 7, § 4. It must be borne in mind however that the term “poor” is used in two senses, We use it in one sense simply as opposed to the term “rich.” Thus we speak of the ordinary laborers, mechanics and artisans as poor people, without a thought of describing persons who are other than self-supporting. Indeed, the large majority of our people are poor people, and yet they would feel insulted to be told that they are objects of public charity. We use’the term also to describe that class who are entirely destitute and helpless, and therefore dependent upon public charity. The dictionaries recognize this two-fold sense. Thus, Webster gives these definitions: “1. Destitute of property; wanting in material, riches, or goods; needy, indigent. <It is often synonymous with indigent, and with necessitous, denoting extreme want. It is also applied to person who are not entirely destitute of property, but who are not rich; as, a poor man or woman; poor people. 2. (Law.) So completely destitute of property as to be entitled to maintenance from the public.” Now, when.we speak of the relief of the poor as a public duty, and one which may justify taxation, we use the term only in the latter sense. We have no thought of .assérting that because a man is not rich, or even because he has nothing but the proceeds of his daily labor, therefore taxation may be upheld in his behalf. Such taxation would be simply an attempt on the part of the state to equalize the property of its citizens. .Something more than poverty, in that sense of the term, is essential to charge the state with the duty of support. It is, strictly speaking, the pauper, and not the poor man, who has claims on public charity. It is not one who is in.want merely, but one who, being in want, is unable to prevent or remove such want. There is the idea of helplessness as well as of destitution. ■ We speak of those whom society must aid, as the dependent classes, not simply because they do depend on society, but because they cannot do otherwise than thus depend. Cold and harsh as the statement may seem, it is nevertheless true, that the obligation of the.state to help, is limited to those who are wnable to help themselves. It matters not through what the inability arises, whether from age, physical infirmity, or other misfortune; it is enough that it' exists. It is doubtless true, that in the actual administration of the poor-laws, many who are not properly entitled thereto receive public support; but failures in the administration of laws do not change the principles upon which they must rest. It is important to bear this distinction in mind, for, as will appear hereafter, it is really the former and not the latter class which is sought to be relieved under this law. It may be remarked in passing, that it was claimed by counsel as one of the objections to this act, that under the rule, “expressio mdus, exclusio alterius,” inasmuch as the constitution casts upon the respective counties the care of the destitute, there was an implied prohibition upon casting it elsewhere. Much might be said, and with great force, in support of this objection; but we do not care to decide whether it be well taken or not, much less to rest this case upon it, for such a decision might be construed as. an implied recognition of the validity of the principle which we are constrained to believe cannot be sustained.
The purpose of the act, as expressed in the section quoted, is to provide the destitute with provisions and with grain for seed and feed. This legislation must be construed in the light of known facts. For reasons unnecessary here to recount, in some portions of the state last season there was a total, and in others a partial failure of the crops. It was generally understood that many farmers would come to this spring’s sowing with little or no seed, and with stock weakened for lack of grain. To make good this lack is the evident purpose of the act, to provide grain for seed and feed. Its aim is not to furnish food to the hungry, clothing to the naked, or fuel to those suffering from cold. It is not the helpless and dependent, whose wants are alone sought to be relieved. If it were, the fact that many who are neither helpless nor dependent might obtain assistance through its administration, would be no valid objection to the constitutionality of the law. It contemplates a class who have fields to till and stock to care for, and purposes to help them with seed for their fields and grain for their stock, that thus they may pursue with better prospects of success their ordinary avocations. It taxes the whole community to assist one class, and that not for the purpose of relieving actual want, but to assist them in their regular occupations. These people are engaged in the business of farming. This business cannot be successfully carried on without seed, nor without stock strong enough to do the ordinary work. They are destitute of seed, and their stock require grain. Hence the tax upon the community. The principle would be the same if their supply of grain was sufficient, but through the prevalence of the epizooty, or some other disease, their stock had all died. Could a tax be sustained to purchase stock for their ordinary farm work? Or again, suppose some prairie fire driven by a fearful wind sweeps through a county, consuming its fences and farming tools: can a tax be sustained to supply this loss, and enable the farmers to prosecute their labors? Nor need the inquiry be limited to a single class. Were the carpenters or shoemakers, or any other industrial class, located in a separate quarter of a city, and their tools and stock in trade swept away by fire, could a tax be sustained to purchase new sets of tools and new stock in trade to enable them to reprosecute their business and secure support for themselves and families? No distinction in principle can be made between these different supposed cases, and the case at bar. They all rest upon this proposition, that a tax is laid upon the public to furnish to one class the means of carrying on its regular occupation./ A further examination of this act will but strengthen the views herein expressed. The four succeeding sections are as follows:
Sec. 6. Each person receiving any portion of the aid provided for in this act, shall take and subscribe the following oath:
I do solemnly swear (or affirm) that I am buying the aid, this day furnished to me, for myself, and not for speculation, but in good faith, for the use of myself and family, and that I am unable to procure the same on my own account. {Name.)
Attest:--
Sec. 7. Each person receiving any part of the aid provided for in this act shall execute his or her note to such township for an amount equal to the cost of the aid received by him; and if the maker of such note be a married man, the same shall be signed by his wife, which note shall bear the same date as the bonds herein provided for, shall bear interest at the rate of ten per cent, per annum, payable semiannually; and the principal of the note shall be payable in two equal annual installments; and the said note shall be payable at the treasury of such township, and such township shall have a lien against the real and personal property of the makers of such note until the amount thereof is fully paid. Said township clerks shall immediately make a register of all such notes, in a book to be kept for that purpose, showing the names of the maker or makers of such note or notes, the number and dates thereof, and the amounts of the same, and so soon as such register is made, such notes shall be delivered to the several treasurers of such township, who shall immediately make a like .record of such notes, and shall file such notes in their respective offices; and within thirty days after the making of the abstract aforesaid, by the township clerks as aforesaid, said clerks shall make out and deposit in the office of the register of deeds of their respective counties a full and complete certified copy of such abstracts; and such register of deeds shall enter such abstract in a book to be kept by him for that purpose. The note provided for in this section shall be in form substantially as follows:
$- ---187—
For value received —r promise to pay to the township of- in the county of-, the sum of- dollars, payable in installments as follows: - dollars on the - day of- 187 — , and - dollars on the- day of- 187 — , with interest on said sums at the rate of ten per cent, per annum until paid; and this note shall be a lien upon the real and personal property now owned or hereafter acquired by - until the said note is fully paid.--
Sec. 8. The treasurers of such townships shall collect said notes as they become due, and credit the amounts so collected to the “relief fund” of such township; and it shall be the duty of such treasurers to take all proper and needful action for the purpose of enforcing the claims of such township against the property of the makers of said notes.
Sec. 9. Upon the recommendation of the proper officers of such townships, the proper officer or officers of the county in which such township is situated, shall annually, when other taxes are levied, levy and collect, as other taxes are levied and collected, a sufficient tax to pay the interest on the bonds' provided for in this act, as the same falls due, and to provide a sinking fund for the final payment of the principal of said bonds; but in no case shall any such tax be levied if the payments made on the notes provided for in the seventh section of this act shall be sufficient to meet the interest and principal of such bonds as they fall due.
These various provisions show that the idea of the legislature was not the relief of the helpless and dependent, but the assistance of a class temporarily embarrassed. The recipient is required to make oath that he is buying the aid for himself, and not on a speculation. He is to give a note for the amount received, and if a married man the note must also be signed by his wife. The note is to bear the same date and draw the same interest as the bonds, and the interest is payable at the same time as the interest on them. This note is to be a mortgage as well, and the most sweeping kind of a mortgage too, embracing all the real and personal property of the maker, whether owned at the time of its execution or subsequently acquired. And finally, it is made the express duty of the township treasurer to see to the collection of this note, and to take all proper and needful action therefor. Nothing is contemplated but a loan, and a secured loan at that. The credit of the township is invoked to procure funds for the accommodation of a single class temporarily and through unexpected calamity embarrassed in the prosecution of its ordinary business. Can this be called a.public purpose ? Clearly not. It would doubtless relieve the temporary wants of that class, would enable it to enter upon the business of the year with increased hope and a reasonable expectation of ordinary success in that business, and thus indirectly result in great benefit to the general public. But a similar result would follow the .success and prosperity of any other class in business. And if the principle be once recognized in its application to this class, who can tell how soon it may be invoked in aid of another? If one hundred farmers may receive seventy-five dollars each to assist them in their farming, why may not one hundred mechanics with equal propriety receive seventy dollars each to assist them in their business ? or a single manufacturer who employs one hundred hands receive seventy-five hundred dollars to assist him in his manufacturing ? A difference in amount makes no difference in the principle.
But it may be said that this legislation can be defended as preventive and anticipatory. To prevent the spread of disease quarantine regulations are enforced, and ships coming from certain places are with all their passengers detained in quarantine even when not a solitary case of sickness exists on board. To prevent ignorance in the voter, the child is compelled to be educated. To prevent crime in the man, the boy is sent to the reform school. To prevent the spread of fire, valuable'buildings are pulled down and destroyed. Grant that these parties are not now helpless and dependent; that they are not a public charge. Unless they are able to make and harvest a crop they may become so the ensuing' winter. Is it not the part of wisdom to expend a little now to purchase seed and feed, rather than run the risk of having them become paupers hereafter? Under the peculiar circumstances of this case, this argument is a strong one. We are not disposed to belittle the magnitude of the calamity, or make light of the hardships of those upon whom it has principally fallen. If we consulted simply our own feelings we should gladly approve of this, as of every effort to mitigate the severity of the blow. But, though this calamity is great, and though by reason thereof it may seem wise to appropriate out of the public funds a little now to guard against the risk of future want, yet the principle is dangerous and unsound.',; Let the doorways of taxation be opened, not merely to the ;i' relief of present and actual distress, but in anticipation of [ and to guard against future want, and who can declare the result? How certain must be the expectation of want? how nigh its approach? What efforts must the individual make to ward it off? May he do nothing, and demand that the public make provision to guard against the possibility of future suffering? Must widespread and general calamity precede the granting of such anticipatory relief, or is it enough that individual misfortune or indolence render probable the approach of want? The mere mention of these questions suggests the dangers which would follow the adoption of this as a rule of public conduct. But the attendant dangers of such a rule are., not the sole or the controlling' considerations. The relief provided in this act is only indirect, and contingent.' There is no direct appropriation to meet future want. The appropriation is for present use, and the relief is contingent on the successful prosecution of the business of the recipients during the ensuing year. If the crop proves a failure, the public funds are lost, and no relief is secured. Itjs a speculation, which however proper and reasonable for individuals, is not a legitimate part of public duty. The same principle would justify assistance to a mechanic destitute of tools, to enable him to purchase tools, and through their use in his regular calling prevent his becoming a public burden. Indeed, it would be difficult to deny its application in any case where by present assistance, either in the purchase of implements or stock in trade, the recipient might reasonably be expected to earn a subsistence in the prosecution of his regular business. We should expect to find but few authorities to throw any light upon this question. The case of the Citizens Savings and Loan Association v. The City of Topeka, heretofore cited, decides that taxation cannot be invoked to assist private manufacturing establishments. The propositions laid down by Mr. Justice Miller in reference thereto are broad. • It matters not how great may be the necessities of such’an establishment, or how much it may indirectly benefit the community, it cannot be aided by taxation. The same propositions were asserted by the supreme court of Maine in the case of Allen v. Inhabitants of Joy, 60 Maine, 124. That was a case of an attempted loan of the credit of a town to certain parties in consideration of their engaging in some manufacturing enterprises for their private emolument. In delivering the opinion of the court C. J. Appleton uses this strong language: “But whether the money raised is to be distributed per capita, or loaned, can make no difference in principle. If towns can assess and collect money to be again loaned to such persons as the majority may select for such purposes as it may favor, with such security, or without security, as.it may elect, property ceases to be protected in its acquisition or enjoyment. * * * If the loan be made to one or more for a particular object, it is favoritism. It is a discrimination in favor of the particular individual, and a particular industry thereby aided, and is one adverse to and against all individuals, all industries, not thus aided. If it is to be loaned to all, then it is practically a division of property under the name of a loan. It is communism incipient, if not perfected.”. But the case most nearly in point is that of Lowell v. The City of Boston, recently decided by the supreme court of Massachusetts. In that as in this, it was the circumstance of a great public calamity, the Boston fire, and a praiseworthy effort on the part of the legislature to provide assistance for the sufferers thereby. An act was passed authorizing the city of Boston to loan its credit to assist in rebuilding the burnt district. But this was declared to be outside the purposes for which taxes could be levied, or bonds issued. We have been able to find nothing more in point than these authorities, and they all point in the same direction as the considerations we have heretofore adverted to.
It is with reluctance that we have reached the conclusion that this act cannot be sustained. But ours is an unmixed duty, to declare the law as it is, and not as we might wish it to be. Especially imperative is that duty when as in cases like the present there is in the surrounding circumstances a strong appeal to overlook permanent rules in favor of a present and pressing want.
The judgment of the court below is reversed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin for 422 head of cattle. Judgment was rendered in favor of the plaintiffs below, (defendants in error.) The plaintiff in error claims that on the pleadings, with or without a trial, the judgment below should have been rendered in his favor; and this he does on the ground that he set up new matter in his answer constituting a complete defense to the plaintiffs’ action, to which answer the plaintiffs did not reply. No such question as this was raised in the court below, but the trial there proceeded in all respects as though the new matter set up in the defendant’s answer was. duly controverted. Two questions are really involved in this question: first, was a reply necessary? second, if so, did not the defendant waive the reply by going to trial without it, and by not in any manner raising the question of its necessity in the court below? Both of these questions have been answered in the case of Wilson v. Fuller, 9 Kas., 177, 189, et seq. We adhere to that decision. A reply was not necessary in this case. And if it had been the defendant below waived it.
All of said cattle except three head belonged to the plaintiffs below as copartners. These three head belonged to another copartnership consisting of Orson Smith (one of the plaintiffs below) and one Tappan. The only interest that the defendant below ever had in any of said cattle was an interest which he obtained as sheriff of Saline county by attaching said cattle as the property of said Tappan. If Tappan had owned said cattle, and there had been no liens in favor of the plaintiffs, or either of them, existing against the cattle, the judgment in this case should have been in favor of the defendant below. But as Tappan had no interest in any of the cattle, except said three head, the defendant below, as plaintiff in error, now sets up other grounds than that of ownership or the right of possession on the part of Tappan as a foundation for his (plaintiff in error) supposed right of recovery. He claims that he should recover judgment for the whole of said cattle. He claims that he may recover upon the following grounds: As Tappan had an interest in said three head .of cattle, he claims that he as sheriff of said county had a right to attach them and hold them for the satisfaction of Tappan’s debts; ■ and as these three head of cattle were kept and herded with the other 419 head which belonged to the plaintiffs below, and as said Orson Smith neglected and refused to point out the interest of Tap-pan in said cattle, he claims that he as sheriff had a right to attach the whole of said herd, and hold them for the satisfaction of Tappan’s debts. Had the sheriff, by virtue of the writ of attachment which he held against the property of Tappan, a right to take possession of said three head of cattle, and to hold them for the payment of Tappan’s debts? We think not. Orson Smith not only had his partnership interest in said three head of cattle, but he and his brother (the other plaintiff below) had other interests in said cattle. The firm of Smith & Tappan owed the firm of Smith Brothers for keeping said three head of cattle and other cattle belonging to Smith & Tappan during the fall, winter and spring, before said attachment was levied upon said cattle. And for thus keeping said cattlg said Smith Brothers had a lien upon the cattle, (Gen. Stat., 548, § 2,) which lien neither Tappan nor Tappan’s creditors could divest except by paying the amount due for keeping said cattle. (See Drake on Attachment, § 245.) Also, Orson Smith by agreement with Tappan and with certain of Tappan’s creditors assumed the payment of certain debts, which Tappan owed to said creditors, and Smith was to retain enough out of the proceeds of the sale of said cattle to pay himself therefor. This constituted another lien on said 'cattle. Orson Smith had the actual custody, care and control of said cattle. His possession however we suppose was the possession of the Smith Brothers, and neither Tappan, nor Tappan’s creditors, nor the sheriff acting for Tappan’s creditors, had any right to disturb that possession until all of said claims against Tappan were paid. Whether either would then have any right to disturb Orson Smith’s possession, we do not decide. There would still be the partnership interest of Orson Smith. This partnership interest alone might be sufficient to prevent the sheriff from taking possession of the cattle. The above claims were really charges upon said cattle in favor of Orson Smith, and of the Smith Brothers. When the sheriff inquired of Orson Smith what interest Tappan had in said cattle, the cattle were eight miles away, and of course Smith could not point them out or designate them. And Smith told the sheriff that he could not tell what interest Tappan had in the cattle without consulting his books. And there is nothing in the case which tends to show that this was not true. It does not appear from the record what precise interest Tappan had in said cattle, nor does it appear that Smith then knew or has at any time since known Tappan’s precise interest in the cattle. It appears that Smith could have known what said interest was by examining his books, but he refused to do so, or to tell what the interest was. We do not think that this refusal authorized the sheriff to attach said cattle and take them from the custody of Smith. (In this connection see Treat v. Barber, 7 Conn., 275; Holbrook v. Hyde, 1 Vt., 286; 47 N. H., 502; 28 Maine, 429.) The creditors of Tappan had another and an ample remedy by a proceeding of garnishment. (Gen. Stat., 666, § 200, et seq.)
We suppose it is hardly necessary for us to say that if the sheriff had no right to take possession of said three head of cattle under his writ of attachment, he had no right to consider that the Smith Brothers forfeited their whole herd simply because Orson Smith refused to point out to the sheriff Tappan’s interest in said three head of cattle. The three head were differently branded from the others, and could easily have been pointed out to the sheriff by the herder, if the sheriff had inquired of the herder.
The damages allowed by the court were not excessive, nor speculative. The court allowed damages for a decrease in the market value of the cattle during the time that they were wrongfully detained by the defendant from the plaintiffs. This was right. (Young v. Willett, 8 Bosw., 486; Rowley v. Gibbs, 14 Johns., 385; Allen v. Fox, 51 N. Y., 565; Beveridge v. Welch, 7 Wis., 465; Gordon v. Jenney, 16 Mass., 470.) There was evidence however tending to show that the damage was much more than the court allowed.
The judgment of court below is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
Neitzel was convicted in the police court of the city of Concordia upon a charge of selling liquors without a license, and fined one dollar. He appealed to the district court, where he was again found guilty, and sentenced to pay a like fine. This judgment he seeks to reverse in this court, and he has brought it here by case made, and petition in error; and the first point made is, that this is a criminal case, and can be brought to this court only by appeal, and by notice to the clerk and attorney. No notice-appears in the record; and it is well settled that notice to the clerk is essential to perfect the removal of a criminal case to this court for review: The State v. King, 1 Kas., 466; Carr v. The State, 1 Kas., 331; The State v. Brandon, 6 Kas., 243; The State v. Baird, 9 Kas., 60; The State v. Boyle, 10 Kas., 113. The only question then is, whether a prosecution for selling liquor without a license from a city, commenced in the municipal court of such city, is a criminal action. The sale of liquors without license is by statute a criminal offense; and when the prosecution is for a violation of the state law, it is unquestionably a criminal action. (Dramshop Act., Gen. Stat., 400, § 2; The State v. Volmer, 6 Kas., 371.) It may be remarked that the. two cases against Volmer reported in the 6th Kansas were really brought to this court by appeal, and not on “ error,” as stated in the report. (See “Errata,” 6 Kas., p. 14, and the last line of the “statement of the.case,” 6 Kas., pp. 373, 381.) In the subsequent case of The City of Emporia v. Volmer, 12 Kas., 622, it was decided that notwithstanding §17 of art. 3 of the constitution, which provides that all prosecutions shall be in the name of the state, prosecutions by a municipality in its own courts, for a violation of one of its ordinances, might be in the name of the municipality. It was not intended by that decision to hold that such prosecutions were not .criminal actions, but that they were not the kind of prosecutions intended by the constitutional provision. That applies to prosecutions brought by the state in its own courts, the courts -provided for in the article of the constitution in which this provision is found. The authorities cited in'the opinion in that case, particularly that of The City of Davenport v. Bird, 34 Iowa, 524, sustain that distinction. Following that, in the case of The City of Burlington v. James, brought here on appeal, counsel (probably misled by the opinion in the Volmer case,) filed a motion to dismiss the appeal on the ground that not being a criminal action it could only be brought here on error. This motion was overruled, though the case not being finally disposed of no opinion in it has yet been written. . In the decision of that motion we reached the conclusion that, so far at least as cases of this kind are concerned, that is, cases in which the matter of the charge is penal under the laws of the state, or made penal because of its supposed ■ evil consequences to society, the prosecution, though under a city ordinance, and in municipal courts, is to be deemed a criminal prosecution. As to all those prosecutions which are merely to enforce some private right of the city, the question is left open for further consideration. See upon this question, Goddard, Petitioner, 16 Pick., 504; State v. Stearns, 11 Fost., (N. H.) 106; Fink v. Milwaukee, 17 Wis., 26. The matter is somewhat discussed in Dillon on Munic. Corp., §§ 344 and 345, and in the cases cited in the notes thereto. We are aware of some definitions in the statute which seem to contradict the opinions here expressed. See particularly, Gen. Stat., p. 631, §§7 and 8, civil code. Rut it is not in the power of any body, legislative or other, by definitions to change the inherent nature of things. The legislature cannot by calling an action on a note a criminal action make it one. And again, subsequent to 1868, and in 1871, the legislature provided for these prosecutions in cities of the third class, (Laws of 1871, pp. 118,136, 140,) and therein authorized proceedings consistent only with the idea that they are criminal actions. Upon the case therefore, as it is 'presented to us, we are of the opinion that it is a criminal action, and can only be brought to this court by appeal.
The petition in error must therefore be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Proceedings were had before the county commissioners of Miami'county under the general road law of 1868, which resulted in the establishment of a road through the land of plaintiff in error. Being as he thought wronged by such proceedings, Casey filed his petition in error in the district court of that county to set them aside. The district court found no error, and affirmed the action of the commissioners. That ruling he now brings to this court on error.
The record of the proceedings before the commissioners is full, and contains the notices, with proof of posting and advertisement, the petition, bond, order, appointing viewers, notice to viewers, notice to plaintiff in error of time and place of meeting of viewers, plaintiff’s claim for damages, report of-viewers with plat of road, etc., remonstrance of Casey and others, and order of commissioners approving report of viewers, and ordering road established and opened. The principal question presented by counsel for plaintiff in error is as to the effect of chap. 181 of the laws _ , ot 1872 upon these proceedings. That act m the first section declares that all section lines in certain counties, among them the county of Miami, are public highways. The second and third sections provide for the contingency of a hedge or other valuable improvement being upon the section line, and the steps that must be then taken to open the road. Section four provides that when it shall be impracticable to open a road on any part of a section line the commissioners shall direct the road-overseer to take three disinterested freeholders and view the part said to be impracticable, and lay the road as near to the section line as practicable. There is in this act no express repeal of the general road law. So far from it, upon the same day by the same legislature was passed an act amending that law. And waiving the question discussed by counsel as to whether these proceedings were or were not commenced before the law of 1872 took effect, it seems to us there is nothing in that law which in any way militates against their legality and sufficiency. Both the laws may stand. Neither conflicts with the other. Because certain lines are declared to be highways, no restraint is thereby put upon the power to open other roads where the public interest demands it. This is not a case where the maxim, “expressio unius, exolusio alterius,” applies. The law of 1872 does not purport to cover the whole ground. It is in no sense, even for the counties therein named, a general road law. It simply as to those counties aims to supplement that law. Effect must if possible be given to both enactments. Repeals by implication are not favored. No attempt was made in this case to lay out a road upon the section line or upon the nearest practicable route thereto. It starts at the northeast corner of plaintiff’s quarter-section, and ends at the southwest corner of the same quarter, passing in its intermediate course in a very circuitous and zigzag manner through this and an adjacent quarter. The entire proceeding was under the general road law of 1868, and that law remains in full force, so far as anything in this case is concerned, notwithstanding the section-line road law of 1872. It is useless to inquire what effect the latter law would have had if the application had been to open a road upon the section line.
A second objection is, that the bond which was given did not in its description of the road conform to the petition, etc. The road prayed for and located commenced at the southeast corner of section 20, etc. The bond referred to a road beginning at the northeast corner of section 20, etc. This was doubtless a clerical error, and would probably under no circumstances have vitiated the bond, other matters therein showing clearly for what it was given. But even if the bond were fatally defective, that would not now vitiate the proceedings, for this, like all such bonds, was only conditioned to pay the costs and expenses in case the application for the road failed. It did not fail, but was sustained. If the objection had been made pending the proceedings, and the bond had been fatally defective, 'it might have stayed the proceedings until a sufficient bond had been given. But after the proceedings had terminated successfully, and in the establishing of the road prayed for, the bond ceased to have any value, and became wholly immaterial.
Another objection made is, that “the description of the road as proposed does not show it to be east or west of any particular meridian, nor the county or state in which the proposed road is to be located.” "We think this , , /»ni , , n objection not iuliy borne out by the record, or at least that there is sufficient description to make clear and certain the location of that road. The petition recites that-“your petitioners are all residents of the county of Miami, and along and near the proposed line of said road” — gives the location of the road, as “commencing at the. southeast corner of section 20, town 16, range 23,” without it is true there giving the county or state, or stating whether the range was “range east,” or “range west” of any meridian — states as one of the intermediate points, “the crossing of Rock Falls on Bull creek,” and as the terminus the “ Paola and Marysville road.” There seems to have been no difficulty in ascertaining the location of the road, and we think the description was sufficient.
These are the principal matters complained of, and in them appearing no error, the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover damages for the killing of a span of horses. The errors assigned are in refusing certain instructions asked by the plaintiff in error, and in overruling a motion for a new trial. So far as the first of these errors is concerned, it would be sufficient to say, that the record fails to give the charge of the court, or the instructions (if any) given at the instance of the defendant in error, or to show that the instructions preserved were the only ones given. It may be that the instructions refused were so re fused because already once given. Wilson v. Fuller, 9 Kas., 176; DaLee v. Blackburn, 11 Kas., 190; Furguson v. Graves, 12 Kas., 39.
We think the rulings of the court in this matter would however have to be'upheld upon other grounds. It seems to us that the instructions refused were incorrect, or inapplicable, or in substance already sufficiently given. Thus, the sixth instruction, viz., “That it is carelessness on the part of the owner of horses and cattle to allow them to roam at large in the vicinity of an unfenced railroad,” was clearly inapplicable. The only testimony in the case showed that Brown was not in the habit of letting his horses run at large, and that on the night preceding the injury he had shut them up in his barn from whence they had gotten out into his barn-yard, and thence through .the gate into the street, and wandered away. So that whatever of blame might attach to the plaintiff. it did not lie in the direction of this instruction. The seventh instruction asked for was as follows: “It is no part of the duty of those in charge of moving railroad trains to keep watch for cattle or horses that may accidentally have strayed upon the track of the railroad.” Now whatever of truth there may be in this, as an abstract proposition, it would under the circumstances of this case have been apt to convey a wrong impression. The place of the accident was visible for half a mile in either direction along the track. There was testimony to show that the speed of the train was not slacked, that no warning was given by whistle, or bell, or letting off of steam. There was no testimony offered for the defense, and none for the plaintiff from which the jury could infer that any of the train-men knew of the presence of these horses oh the track before the moment Sf injury. Would not a jury gather the impression from such an instruction, then, that there was no breach of duty, no negligence, on the part of the train-men even if they remained thus wholly unaware of the presence of the horses on the track until the very moment of striking them, and therefore took no measures to prevent the injury? We think therefore that the court properly refused the instruction. It could have sub-served no proper purpose, and was liable to mislead. A similar criticism may be passed upon another instruction, asked, viz., that “It is. a presumption of law that the employes of moving trains do their duty in all respects as well to those on their own train and the property of the company as to those off the train and their property.”
The motion for a new trial was also properly overruled. The testimony of the plaintiff tended to show negligence on the part of the defendant, and the defendant introduced no testimony. Defendant claims that the answer of the jury to a certain question showed contributory negligence on the part of the plaintiff. That answer stated that plaintiff had a horse which was in the habit of opening the gate of his barn-lot, and did on the night in question open the gate and let the team that was killed out into the road.- There was no testimony tending to show where the plaintiff resided, or how near to the railroad track. We cannot think that this is such contributory negligence as to defeat the plaintiff’s recovery. If negligence at all, it was both slight and remote.
Upon the whole record we see no error, and the judgment must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This is the second time that this action has been brought to this court. (K. P. Rly. Co. v. Salmon, 11 Kas., 83.) When here first it was reversed, and sent back to the court below for a new trial. On being returned to that court the plaintiff below (Margaret Salmon) with leave of the court, but over the objections of the Railway Company, amended her petition. This is the first ruling of the court below now complained of as error. It is claimed that such ruling was erroneous, because the amendment, as is claimed, changed substantially the cause of action and defense. Stion 139 of the civil code reads as follows:
“The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense. And when any proceeding fails to conform, in any respect, to the provi sions of this code, the court may permit the same to be made conformable thereto by amendment.” (Gen. Stat., 655.)
With the view that we have taken of the question now under consideration we do not think that it is necessary for us to determine whether the phrase, “when such amendment does not change substantially the claim or defense,” applies to and qualifies all that precedes it, or whether it merely applies to and qualifies the words, “or conform the pleading or proceeding to the facts proved.” That it does one or the other, seems to be evident; and yet, whichever way we view it, we are led into serious difficulties. It is certain however, as we think, that under said section any pleading may be amended by correcting any mistake therein, “ or by inserting other allegations material to the case, when such amendment does not change substantially the claim or defense.” In the present case we do not think that the amendment changes substantially the claim or defense. The action under the original petition was an. action brought by Margaret Salmon as administratrix of the estate of Daniel Salmon deceased against the Railway Company under § 422 of the civil code, (Gen. Stat., 709,) for damages resulting from the death of said Daniel, wrongfully caused by said Railway Company; and the action as now prosecuted, is still precisely the same. The parties are the same. .The action is still prosecuted by the same plaintiff, in the same capacity, against the same defendant, for wrongfully causing the death of the same person, at the same time and place, by the same means, and in the same manner. The amendment is simply this: The original petition stated that Salmon was killed by the Railway Company while being transported by the company as a passenger. The amended petition states that he was killed by the Railway Company while béing transported by them as an employe of the company. In all other respects the two petitions are alike. And as to the proof: Under the original petition the plaintiff had the right to prove that the death of Salmon was caused by the Railway Company through the negligence of any one or more of its servants, agents, or officers, superior or inferior. Under the amended petition the plaintiff had to show that the death was caused by the railway company through the negligence of some one or more of its superior agents, servants or officers. Under the amended petition, if the death had been caused merely through the negligence of some fellow-servant, some co-employe, then the plaintiff could not recover. (Dow v. K. P. Rly. Co., 8 Kas., 642; U. P. Rly. Co. v. Milliken, 8 Kas., 647; K. P. Rly. Co. v. Salmon, 11 Kas., 83.) These are the only differences required in the proof. The amended petition simply restricts the plaintiff’s right to recover by making it necessary for her to show that the death was caused through the negligence of some superior officer, agent or servant of the company, instead of allowing her to show that it was caused through the negligence of any officer, agent, or servant of the company, superior or inferior, as the original petition did.
But suppose the amended petition has made such a change that the negligence required to be proved under it is the negligence of an entirely different set of officers, agents or servants, from that required by the original petition, and still such a change does not necessarily change the cause of action or defense. It is not the officers, agents or servants of the company that are sued; and it is not their negligence as such of which the plaintiff complains. But it is the railway company that is sued, and the negligence of the railway company (through its officers, agents or servants,) of which the plaintiff complains. It can certainly make but very little difference whether the railway company was guilty of negligence through one set of employes, or through some other set, for if the company was guilty of negligence at all it is liable for the same kind and character and amount of damages in one case as in the other; and in either ease it devolves upon the plaintiff to show the negligence. The substantial question in the case is, whether the company was guilty of negligence at all; and this was sufficiently charged in either petition.
But it is said that the contract under which a passenger is carried differs widely from the contract under which an em ploye is carried, and therefore, that as the original petition alleged that Salmon was carried as a passenger, while the amended petition alleges that he was carried merely as an employe of the company, the cause of action must necessarily have been changed. This need not necessarily be so. In neither case would the obligation of the railway to carry Salmon safely rest wholly or even mainly upon the contract between the parties; but in each case it would rest principally upon the laws of the state. But wherever it might rest, this action was not brought for any breach of contract. The action is not founded upon contract at all. It is more in the nature of an action of tort. It is an action for damages, resulting from a neglect on the part of the railway company to perform a duty imposed upon it by law. It is true, the contract may be shown. Indeed, it must be shown — not for the purpose of recovering for a breach of the contract however, but incidentally for the purpose of showing the status of the parties with relation to each other — of showing the legal obligations resting upon each with respect to the other, and of determining whether either has been guilty of negligence or wrong toward the other. And whether Salmon was a passenger, or an employe, the contract between him and the company must thus be incidentally shown merely for such purpose. The legal obligation resting upon railway companies to exercise care and diligence toward their employes does not differ so very much from the legal obligation resting upon them to exercise care and diligence toward their passengers, except in extent. It is the duty of a railway company toward both passengers and employes to see that all its officers, agents and servants, of whatever grade, who have the power from the company to employ, retain, or discharge other employes, or who have the power from the company to furnish implements, machinery or materials to the other employes, for them to operate with, shall exercise reasonable care and diligence in furnishing a sufficient number of competent employes for the work to be done, and in furnishing a sufficient number and amount-of proper implements, machinery and materials for the employes to operate with in accomplishing such work. And the company is liable to either passengers or employes for any injury resulting to them from any want of care or diligence in these respects. Laning v. N. Y. C. Rld. Co., 49 N. Y., 521; Flike v. Boston & Alleghany Rld. Co., 53 N. Y., 549. (The latter case is very much like the case at bar.) These officers, agents or servants of the company, upon whom such powers are bestowed, are what we would designate as the higher or superior officers, agents or servants of the company. And these higher officers, agents or servants cannot with any degree of propriety be termed fellow-servants with the other employes who do not possess any such extensive powers, and who have no choice but to obey such superior officers, agents or servants. Such higher officers, agents or servants must be deemed in all cases, when they act within the scope of their authority, to act for their principal, in the place of their principal, and in fact to be the principal. We also think that it is the duty of a railway company, with reference to both passengers and employes, to exercise reasonable care and diligence in making sufficient regulations for the safe running of trains, so as to avoid danger from collision or from any other source. (Shearman and Redñeld on Neg., § 93, and cases there cited.) And a railway company is also responsible for the negligence of its higher or superior officers, agents and servants, even to other employes, when they act within the scope of their authority. Thus far the duty of the railway company toward its passengers and employes is about the same, and here the similarity of duty probably ends. The duty toward employes here stops, while the duty toward passengers extends further. A railway company is not responsible to one employe for the negligence of another employe where they are both engaged in the same common employment. But a railway company is always responsible to a passenger for the negligence of any employe. The grade of the employe within the particular employment does not generally make much difference. If the employe performs the duties of one of the higher officers, agents or servants, of which we have already spoken, the company is generally responsible for his negligence, whatever may be his grade. But if he is engaged in the same common employment with other employes, the company is generally not responsible for his negligence to the other employes, although he may be in fact the foreman for that particular work. The main issue in the present case is, whether the. railway company was guilty of negligence or not toward Salmon. And whether Salmon was a passenger, or merely an employe, is a question of fact brought into the case merely for the purpose of showing the status of Salmon toward the company, and thereby of showing whether the things charged against the company amount to negligence or not, and if they do amount to negligence, its nature and character. The fact of Salmon being a passenger, or an employe, is not the cause of action, or the foundation for the cause of action. The negligence of the company, whereby the iniury occurred, may more properly termed tne foundation of the cause of action. The fact of Salmon being a passenger, or an employe, is simply one of the facts, which enter into the description of the cause of action. It of course is a material fact. The allegation in the petition which sets it forth is a material allegation. But said § 139 of the code authorizes a pleading to be amended “by inserting other allegations material to the case.” Immaterial amendments need not be made at all, and every material amendment of a petition must of necessity change more or less the nature of the cause of action. But if the amendment does not change the cause of action, or the defense, from one thing to another, we think it may be made. That material amendments may be made, where the amendments are merely of facts descriptive of the cause of action, and do not change the cause of action from one thing to another, we would refer to the following authorities: Prater v. Snead, 12 Kas., 447, 449, and cases there* cited; Spice v. Steinruck, 14 Ohio St., 213; Knapp v. Hartung, 73 Penn. St., 290. If the plaintiff should state a cause of action in a petition, and the defendant should take issue upon one of the facts only stated therein, then whether the plaintiff could so amend his petition as to abandon that fact and set up an entirely new and distinct fact, and thereby wholly change the issue, we are not called upon to decide, as such question is not in this case. In this case the defendant filed a general denial to the plaintiff’s petition, denying every fact alleged by the plaintiff. Before passing from this subject it is proper to say, that the power of trial courts to allow or refuse amendments to pleadings, rests to some extent within the sound judicial discretion of such courts; and that appellate courts will seldom reverse the rulings of the trial courts in such cases unless such discretion has been abused. Therefore a decision of an appellate court, sustaining the ruling of a trial court, where the amendment has been refused, is but very little evidence that the appellate court would reverse the ruling of the trial court if the amendment had been allowed.
We have now disposed of the main question involved in this case; and in discussing it we have discussed some of the other questions propounded by counsel. The questions which we have already discussed we shall not again refer to; and those which we have not yet discussed we shall merely decide, without discussing them in detail. It was not error for the court below to allow evidence to be introduced which tended to show that the president and directors of the railway company resided in other states, a long way from the railroad, and that they gave but very little personal attention to the operating of the road. The witness Brownhill was so obviously a “fast witness,” that we suppose the jury knew it, and that they gave to his testimony only such credit as it was properly entitled to. We think however that his testimony sufficiently showed him to be such an expert that the court below did not err in permitting it to go to the jury, and be weighed by them along with the. other evidence in the case, for what it was worth; although it afterward appeared that he testified concerning some things as though he had knowledge of them, when in fact he had no knowledge of them whatever. A small portion of his testimony was stricken out, on motion of the railway company. But there was no motion made to strike out any other portion of his testimony, after it became apparent that it was incompetent. It was not error for the court below to permit evidence to be introduced tending to show incompetency on the part of the conductors or engineers operating the colliding trains; as such evidence along with other evidence tending to show that the collision occurred from such incompetence, and that the railway company was aware of such incompetence, would be strong evidence against the company. As to the order in which the various portions of the evidence should be introduced, where it takes various and distinct portions of evidence to prove any particular fact in issue, the trial court is clothed with a very large discretion.
Whether Salmon was guilty of contributory negligence or not was a question of fact properly submitted to the jury for their consideration. And the finding thereon by the jury that “The death of said Daniel Salmon was caused by the gross negligence of the defendant without any fault of the said Daniel Salmon,” was a sufficient finding with regard to said fact. It is substantially a finding of the affirmative fact that Salmon during the whole transaction exercised due care and diligence to protect himself from injury, and to do his duty toward the railway company. It is not an uncommon thing for adverse counsel to characterize a broad and comprehensive statement of a fact, or perhaps what might more properly be termed a simple but comprehensive statement of a compound fact, as a conclusion from facts, a conclusion of law, or a conclusion from facts and of law, forgetting of course that every fact that comes within our comprehension, however simple and diminutive it may be, must be composed of a vast number of other facts more simple and more diminutive. There can probably be no such thing as an. ultimate fact, or an absolutely simple fact. All are compounded of other facts. And the division of facts into smaller facts is philosophically as. illimitable as the division of time or space into smaller portions. It takes events to make facts; and events must occur within time and space, and must therefore be equally divisible with time and space. As to the extent of the detail with which the statement of any particular fact must be governed, the trial court must always be vested with a very broad and extended discretion. More detail is probably required in the statement of facts in the introduction of evidence than anywhere else in judicial proceedings. The whole of the 6th instruction asked for by the railway company, and refused by the court, was substantially given in other instructions. The 9th instruction asked for by the defendant, and refused by the court, is not, as there asked, good law for this case. It attempted to make the court upon a single fact find that Salmon was guilty of contributory negligence, and withdraw the question from the jury, while this single fact could not conclusively prove contributory negligence, and there were other facts that should have been taken into consideration along with it. The court properly instructed the jury that the plaintiff could not recover if Salmon was guilty of contributory negligence. If the court below erred as to what should constitute the measure of damages, it was the fault of the railway company. The court adopted the theory of damages suggested by the railway company, and whether right or wrong we shall not now reverse the judgment of the court below because of any supposed error committed by it with regard to the measure of damages.
This case was very fairly tried in the court below, so far as the judge had anything to do with it, except possibly that he ought to have granted a new trial because the verdict of the jury was not sustained by sufficient evidence. The jury made the principal mistake that was made in the case, in finding a verdict for the plaintiff against the weight or preponderance of the evidence. The verdict ought probably to have been, set aside by the court below, and a new trial granted for this reason. But as the court below sustained the verdict, and rendered judgment thereon, thereby presumptively approving the verdict; and as there was evidence to sustain the verdict in every essential particular, we cannot now reverse the judgment merely because the verdict does not seem to be sustained by sufficient evidence. Numerous decisions of this court may be found laying down this doctrine.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Two errors are alleged in this case, first in overruling a motion for a continuance, and second, in sustaining a demurrer to the evidence. The motion for a continuance was supported by a single affidavit of one of plaintiff’s attorneys. Several objections may be noticed to the sufficiency of this affidavit. It alleges failure to obtain a copy of certain testimony given on a hearing of a contested claim before the officers of a land office, that the proper custodian had made diligent search and was unable to find such testimony, and that it must have been stolen or removed from his possession without his knowledge, that there had not been time enough to procure a copy of the duplicate of this testimony from the General Land-Office at Washington. But it fails to disclose what that testimony was. The court could not therefore see that it was material, nor was there anything for the opposite party to admit, as provided in § 317 of the code. The theory of our law of continuance is, that if one is sought upon the ground of absent testimony, the opposing party may defeat the application therefor by consenting that such absent testimony may be considered in evidence. It is essential therefore, that the testimony be disclosed as a basis for this consent. It may also be stated that the affidavit alleged, upon information, that a copy of this testimony was in possession of ’ defendant’s attorney, and that they had been served with a subpoena duoes teowrn to produce it. The court properly overruled the motion for a continuance.
In reference to the other question, the record discloses these facts: The action was brought by one who had unsuccessfully contested before the department the right to enter a certain tract, against the successful contestant and holder of the title from the government, and the plaintiff contends that notwithstanding the decision of the department the matter is still open for judicial inquiry, and that upon the facts as dis-. closed by the plaintiff’s evidence clear and prior equity to this land was shown in him, and that it was error then to withdraw the case from the jury. The first claim of the plaintiff is undoubtedly good. For whatever doubts may have heretofore existed thereon, they have been put at rest by the decision of the supreme court of the United States in the case of Johnson v. Towsley, 13 Wall., 72, where it is held that “if it appears that the party claiming has established his right to the land to the satisfaction of the land department in the true construction of the acts of congress, but that by an erroneous construction the patent has been issued to another, the court will correct the mistake.” This was as far as it was necessary for the court to go in that case, but it unquestionably fails to state the full limits of judicial inquiry. They extend to the full bounds of equity jurisdiction. But the other part of the plaintiff’s claim cannot be sustained, for this'reason — it does not appear that we have all the testimony before us upon which the district court acted. The only au thentication of the evidence is, that it is signed by the plaintiff’s attorneys without any preceding statement whatever, and that then follow these words:
“The above record of evidence is substantial^ correct as far as given, but is incomplete in several instancés, and does not give all the evidence in the case.
Hudson & Chase, Defendant’s Attorneys.
“Signed, settled and allowed as and for a case made, this 12th day of August 1873. John R. Goodin, Judge.”
Now whatever other questions may be raised upon such a record, whenever we are asked to reverse the decision of the district court upon the weight and effect of evidence we must have all the evidence upon which that court based its decision, or if only a part is presented it must be of such a character as under no circumstances can be overthrown by other evidence — something which is, of itself, and despite of all antagonistic facts, conclusive. We cannot say that a district court erred unless we know upon what it ruled. Though a mass of testimony may be presented, non eonstat, but that the pivotal fact upon which the decision turned, a fact conclusive in support of the finding, is omitted. The same principle controls, though perhaps applied in a different manner, whether a ruling upon a demurrer to the plaintiff’s-evidence, or a finding of fact based up'on the testimony of both parties, is challenged. All the presumptions, in the absence of a complete record, are in favor of the ruling already made. This is familiar law, and needs no citation of authorities to support it. Such is this case. We are not advised by the record that all the testimony upon which the court acted is before us. The signature of the judge imports the truthful-' ness of the preceding statements of the record, nothing more. Turning to those statements we find nothing which even by implication asserts the presence of the entire testimony. Certain testimony appears, but it is introduced by no statement, and followed by only such as has been quoted. And this, if it implies anything, implies that a portion of the testimony is omitted. And while it may be conceded that the testimony as stated tends to support the plaintiff’s case, yet it is easy to perceive that many things might have entirely overthrown it. We cannot therefore affirm that there was error in this ruling of the court.
The judgment must be affirmed.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error claims that the district court erred in permitting parol testimony to vary the terms of a written contract. The facts are these: On the 3d of February 1873 the defendants signed and handed to the agent of the plaintiff the following order:
“Leland A. Babcock, M. D., Freeport, Illinois:
“Dear Sir: Please send us six of your pure solid silver uterine supporters as follows, to-wit: * * * at ten dollars each, on six months time, with printed matter. "Very truly yours, D. Deford & Co.
“Ottawa, Kansas, February 3d, 1873.”
This order was on a printed blank, only the words in italie being in writing. The supporters were sent, and at the end of six months a draft drawn for the $6,0, which was protested for nonpayment. Suit was immediately commenced, and on the trial one of the defendants, over the objection of plaintiff, testified that this order did not show the entire contract between the parties; that the contract was in substance that defendants should take the supporters conditionally, and if at the end of six months they had not been able to sell any the plaintiff would take them back; that they had tried, but had been unable to sell a single one, and had notified the plaintiff to take them back, and held them subject to his order. It is not disputed but that, if this testimony was competent, and the contract as thus stated, the defendants were not liable. It is undisputed law that parol testimony is inadmissible to contradict the terms of a written, contract; but it is also settled that, notwithstanding the written agreement, proof may be made of a cotemporaneous .parol agreement, and that where the written agreement is fairly susceptible of two constructions parol testimony is admissible of the surrounding circumstances, including the conversations between the parties, for the purpose of determining which construction should obtain. And these rules, we think, justified the admission of the parol testimony. There is no contradiction between the parol and written agreement. Both may have been made. The writing orders the goods to be sent, specifies the number, the price, ° ,. and the time, lhe paroi testimony does not dispute either. It concedes all to be as stated in the writing, but asserts that the vendor also agreed to receive the goods back if the vendee during the six months should be unable to resell any. Though the writing in terms asserted an absolute purchase, and contained an express promise to pay, it would still be consistent with an agreement to repurchase. Both might have been made at the same time, and both expressed in writing, or one in writing and the other in parol. . But the writing does not in terms assert an absolute purchase, or contain an express promise to pay. True, the law will, in the absence of other testimony, upon a receipt of the goods, imply a promise to pay; but this is not a necessary inference from the language, and might be changed by extrinsic circumstances. Thus, if the defendants were only commission merchants seeking consignments, known to be. such by plaintiff, the course of business might be such between the parties as to justify the inference that this was but an application for a consignment, with limit as to price and time. If then under any circumstances this language will permit a construction consistent with a conditional purchase, testimony is admissible to show that such was really the intention of the parties in the transaction, and such therefore the proper construction. Reverse the condition, and suppose that it was orally agreed between the parties that upon delivery of the goods, security should be given as a condition of the time: could not the plaintiff show this fact, and upon failure to receive security commence suit at once? The contract is silent as to security. Does it prove that there was no agreement concerning it? It is silent as to agreement to repurchase. Does it follow that there was none?
This agreement was made between the defendants and one Ross, who was the agent and commercial traveler of plaintiff; and it is objected that there is no proof that Ross had power to bind the plaintiff by such an agreement. The defendants had no personal acquaintance, no p x x ? negotiations directly with 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. Ross was the agent of plaintiff, agent to make sales, and the plaintiff is bound by the conditions he attaches to such sales. At least he cannot enforce the sales, and reject the conditions. We see no error, and the judgment will be affirmed.
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The opinion of the court was delivered by
DawsóN, J.:
This appeal is taken by the holders of a chattel mortgage on an automobile which was condemned and forfeited as a nuisance under chapter 217 of the Session Laws of 1919.
The state charged the defendant Stephens with three offenses, (1) having intoxicating liquors in- his possession unlawfully, (2) bringing intoxicating liquors into the state unlawfully, and (3) maintaining a nuisance in a Ford automobile, on a certain public highway in Cherokee' county—
“Where intoxicating .liquors, as a beverage, were and are sold, bartered and given away in violation of law, and where patrons were and are permitted to resort for the purpose of drinking intoxicating liquors, as a beverage, and where intoxicating liquors were and are kept for sale, barter and delivery in violation of law, . . . and that said automobile was and is used for transporting intoxicating liquors from without the state of Kansas, to within and into the state of Kansas, and' for transporting intoxicating liquors from one place within the state of Kansas to another place within the state of Kansas^ which said place . . . and said automobile, were and are a common nuisance.”
The1 defendant was arrested and pleaded guilty on the first and third counts., The automobile was seized by the sheriff and the proper preliminary steps prescribed by the statute were taken to forfeit the automobile.
Within time, the appellants, Rothchild and Little, of Chicago, 111., a firm which deals in chattel mortgages on automobiles, were permitted' to interplead, claiming that they held a valid and duly recorded chattel mortgage on the automobile, and that they had neither knowledge nor notice that the automobile was being used or had been used for the unlawful transportation of liquors; and that the chattel mortgage by its terms provided that the mortgagor should not remove it' from Tulsa county, Oklahoma, and that in case of such removal or if the mortgagee should “fear removal,” the right of immediate possession of the automobile inured to the mortgagee, etc.
The evidence fully supported the claims of the interpleaders, but they did formally admit—
“That at the time the automobile in question was seized by the sheriff of Cherokee county, Kansas, that it was in possession of one R. L. Stephens, the defendant in this action and that it was being used by him for the purpose of transporting intoxicating liquors from without the state of Kansas to within and into Cherokee county, Kansas.”
The findings and judgment of the trial court (abridged) read:
“The court further finds that the interpleaders have a bona ficLe mortgage on said automobile in question as alleged in the interplea and that same was duly and legally filed and recorded as required by law, . . . and the court further finds that the above named interpleaders had no knowledge of the use of said automobile for such unlawful purpose, and the court further finds that said automobile was a common nuisance as defined by section 1 of chapter 217, Session Laws of the state of Kansas for the year 1919. It is therefore by the court considered, ordered and adjudged that said automobile in question be, and the same is hereby forfeited as a common nuisance,” etc.
The interpleaders appeal, contending that the statute does not contemplate the forfeiture of the interest of an innocent chattel mortgagee, that if so construed the statute violates the fourteenth amendment, and that the court erred in finding that the automobile was a nuisance and in forfeiting it as such.
Touching these points in order, it would seem that there is scarcely room for two opinions touching the legislative intention. Section 1 of the statute (chapter 217, Laws of 1919) reads:
“All automobiles, vehicles and other property used in the transportation or carrying of intoxicating liquors into this state or in carrying and transporting intoxicating liquors from one place to another within this state are hereby declared to be common nuisances.”
Sections 2 and 3 of the act relate to the procedure for the seizure, notice, condemnation and forfeiture of automobiles (and other property) unlawfully used in violation of the intoxicating-liquor law. In part, section 3 also provides:
“At or before the time fixed by notice, any person claiming an interest in the vehicles, automobiles or other property seized, may file his answer in writing, setting up his claim thereto, and shall thereupon be admitted as a party defendant to the proceedings against such- vehicles, automobiles or other property.”
Section 4 provides:
“If the court shall find that such vehicles, automobiles or other property or any part thereof were at the time a common nuisance, as defined in section No. 1, it shall adjudge forfeited so much thereof as' the court shall find was such common nuisance, and shall order the officer in whose custody it is to sell the same publicly, and said officer shall cause notice to be given by publication for at least two weeks in the official county paper of the time and place of the sale of said property and shall file in said court his return showing the sale of said property and the amount received therefor and shall pay the same into court to await the order of the court. The court, if it approves such sale, shall declare forfeited the proceeds of said sale and shall order the money received for said property at said sale paid into the treasury of the county for the support of the common schools, after paying out of the proceeds of said sale the costs of the action, including costs of sale and the keeping and maintenance of said property.”
The appellants cite decisions from other jurisdictions which seem to uphold their first contention — that the interest of an innocent holder of a chattel mortgage on: property used in an unlawful way is to be protected from forfeiture. Doubtless those decisions are interpretations of the statutes with which they deal. 'But under our statute there is no room for such interpretation. Our statute says without qualification that automobiles used for the purpose of transporting intoxicants unlawfully are common nuisances and forfeitures shall be adjudged thereon. Such property, so used, is a nuisance. The forfeiting of the interest of a chattel-mortgage holder in property unlawfully used is merely one of the more or less regret-able, but nevertheless necessary, results incidental to the proper execution of the judgment.
In The State v. Peterson, 107 Kan. 641, 193 Pac. 342, most of the questions so urgently presented here were considered by this court, and the contentions of appellants were not sustained. The court there held that the act did not show a legislative intention to exclude from forfeiture the interest of a chattel mortgagee of an automobile used in the unlawful transportation of intoxicating liquors. In the opinion it was said:
“Doubtless the legislature realized that any provision for the protection of a lien of a mortgagee would open the door to collusion and afford a ready means of evading the law. How readily such a provision might be used for defeating the purpose for which the law was enacted is apparent when we consider that any person desiring to engage in the illegal transportation of intoxicating liquors could, by placing an incumbrance upon ap automobile, minimize the financial investment and hazard of the business.” (p. 645.)
But it is urged that if this be the correct interpretation of the statute, the act is unconstitutional. The matter was fully considered, in The State v. Peterson, supra, and it is needless to extend this opinion by a rediscussion of the point. The court is still satisfied with its decision there made — that the act does not offend against the fourteenth amendment or any other constitutional principle. And since that decision, the supreme court of the United States, in Grant Co. v. United States, 41 Sup. Ct. Rep. 189, has authoritatively spoken to the same effect. In that case, an automobile had been used for the removal and concealment of intoxicating liquors in evasion of the Federal ■revenue laws. The Grant Company owned the automobile in question and sold it, retaining title for unpaid purchase money, to Thompson, a taxicab operator, and to Lamb, a newspaper man. Thompson used the car for the unlawful removal of the liquors. None of the other parties claiming an interest in the automobile knew or had reason to suspect that it would be illegally used. The Federal statute declared it to be unlawful to remove, deposit or conceal goods or commodities with intent to defraud the government of its taxes, and—
“All such goods and commodities . . . shall be forfeited; . . . and every . . . carriage, or other conveyance whatsoever, and all horses or other animals, and all things used in the removal or for the deposit or concealment thereof, respectively, shall be forfeited.” (14 U. S. Stat. 151, ch. 184, § 14.)
The Grant Company contended on appeal that the act of congress violated the fifth amendment (which limits the power of the nation over persons and property substantially the same as the fourteenth amendment limits the power of the state). This contention was not sustained. The court, in part, said:
“It is the illegal use that is the material consideration, it is that which works the forfeiture, the guilt or innocence of its owner being accidental. If we should regard simply the adaptability óf a particular form of property to an illegal purpose, we should have to ascribe facility to an automobile as an aid to the violation of the law. It ia a ‘thing’ that can be used in the removal of ‘goods and commodities,’ and the law is explicit in its condemnation of such things.” (p. 191.)
It is finally contended that the automobile was not a nuisance because it was only used unlawfully in “one isolated instance of violation of the statute.” We find no evidence in the record to support that contention. The extent of its use was not the subject of judicial inquiry. The pertinent entry in the record recites that the interpleaders admitted that at the time it was seized by the sheriff it was being used “for the purpose of transporting intoxicating liquors from without the state of Kansas to within and into Cherokee county, Kansas.” In Stephens’ application for a parole from the jail sentence, he made a self-serving statement to the trial judge that he had never violated the law before and never would violate it again, and that he was only carrying home from Joplin, Mo., to Tulsa, Okla., two pints of apricot brandy for his wife. But that statement or affidavit of Stephens in seeking a parole was not presented as evidence on the issue between the state and the inter-pleaders touching the unlawful use or the extent of the unlawful use of the automobile. Indeed, no such issue was raised in the trial court. Moreover, the all-inclusive language of the Statute will not permit of an interpretation that an automobile is to be exempt from forfeiture when it has only been used unlawfully for the transportation of liquors on “one isolated instance of violation of the statute.”
The record contains no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
The information filed in this case charges John R. Miller with the murder of Delbert J. Tunison, and also charges John Cranshaw and Albeit Whitaker with having aided, abetted and assisted in the commission of the crime. John R. Miller was convicted of murder in the second degree, from which he appealed to this court. The opinion of this court was handed down, affirming that conviction. [The State v. Miller, ante, p. 328.)
Whitaker was convicted of murder in the first degree, at the October term of the district court of Osborne county for 1885, from which conviction he appeals.
It is claimed that the information upon which he was tried charges only an assault upon Delbert J. Tunison, and that if it charges anything more than an assault, it does not charge murder in the first degree. While'the language of the information is subject to some criticism, we think it is sufficient within the authority of Smith v. The State, 1 Kas. 365, and The State v. Brown, 21 id. 38, as an information for murder in the first degree. It alleges, among other things, that on May 19th, 1885, in the county of Osborne and state of Kansas, John R. Miller, John Cranshaw and Albert Whitaker did then and there unlawfully, feloniously, purposely, and of their deliberate and premeditated malice, make an assault upon Delbert J. Tunison; that John R. Miller did, purposely and of his deliberate and premeditated malice, shoot off and discharge against the said Tunison a double-barreled shot-gun, loaded with gunpowder and shot, then and there held in his hands, giving him a mortal wound, of which he died in a few hours thereafter; that John Cranshaw and Albert Whitaker then and there, by the means and in the manner aforesaid, aided, abetted and assisted John R. Miller to do the acts set forth, and that said John R. Mijler, John Cranshaw and Albert Whitaker, in the manner and by the means stated, purposely and of their deliberate and premeditated malice, did kill and murder said Tunison. ■ Th.e information, taken together, alleges that the killing of Tunison was willful, deliberate, and premeditated.
The evidence on the part of the state conduced to show that on Saturday, May 16, 1885, a difficulty occurred between Tunison and his wife; that her father, Jeremiah Miller, who lived a few miles away, learned of the trouble on Sunday evening, and went at once to the residence of the defendant —Whitaker—who was a near neighbor of the Tunisons, and remained until Monday forenoon. In the forenoon of that day, while Tunison was absent from, home, Jeremiah Miller, accompanied by Albert Whitaker, went to Tunison’s house, hitched up a pair of horses found there to a wagon, and took Mrs. Tunison and her children to his home, carrying with him some goods and a cow, which property, together with the horses, Mrs. Tunison claimed as her own; that on Sunday preceding the killing of Tunison, as' James Dwyer and wife were driving up to the house of Richard Dey, Whitaker came out from the stable up to the wagon, and handed Dey a chain, saying ■“ Here’s your chain; I will let you take it home; ” that Dey then reached down in Whitaker’s shirt-pocket and pulled out a pistol; that Dey asked Whitaker what use he had for it; that he answered, “ He might have use for it before to-morrow morning; ” that Dey asked him who he was about to get into trouble with, and that Whitaker said, “The man in the stone house,” pointing to where Tunison lived; that he said he had been looking in his trunk for cartridges, but had not found' any; that he was going up to where Dey was to see if he could get some; that on the same Sunday night Whitaker said to George Piatt “ He wanted to see Dick Dey to get some cartridges of him; that he had laid out a couple of men in his time, and expected to have another laid out before sundown—a person about six feet ánd a half tall;” that upon being asked “Who he was in trouble with,” he said “ Plis cousin —Del. Tunison; ” that Whitaker brought word to the Millers on Monday, the 18th, that Tunison was to come up that night and take the horses away; that John R. Miller and Charles .Miller are sons of Jeremiah Miller and brothers to Mrs. Tunison; that John Cranshaw is a son-in-law of Jeremiah Miller, and Albert Whitaker, the defendant, a cousin of Tunison, and that all of these persons were at Miller’s the night of the murder; that about eleven o’clock p. M. of said May 18th, John R. Miller and Charles Miller went down to the stable in anticipation of Tunison coming to re take the horses; that about twelve or one o’clock that night John E. Miller, without any excuse or justification, shot and killed Tunison at the stable; that on Tuesday morning, May 19th, Whitaker told John Loe “Del. Tunison was dead; that he came up to the Millers for the property the night before, and John Miller shot him;” that upon being asked whether Tunison tried to get away, he said “No, we surrounded the stable;” that Mrs. Loe asked who was there, and he answered, “John Cranshaw, Charley and John Miller, and himself; that John and Charley Miller were in the stable when Tunison came for the horses, and Cranshaw and himself were on the outside of the stable.”
Upon the evidence introduced by the state, there was sufficient before the jury to justify the verdict rendered, because if the killing of Tunison by Miller was wholly without justification, and Cranshaw and Whitaker were outside of the barn while John and Charles Miller were in the inside, the evidence is amply sufficient to show that Cranshaw and Whitaker were aiding and abetting the commission of the crime; therefore, if no question was before us other than the one urged so strenuously, that the evidence does not support the verdict, we would necessarily decide the appeal adversely.
A serious question, however, is presented upon the following instruction of the trial court:
“If you believe from the evidence that John E. Miller was justified in killing Tunison, then you will find the defendant not guilty, unless you shall find that defendant falsely reported, directly to John E. Miller, or through others to John E. Miller, certain threats, which he claimed deceased had made to him with reference to the persons and property of the Millers, and thereby produced in the mind of John E. Miller such a reasonable and honest conviction that he (John E. Miller) was in danger of his life from Tunison at the time of the shooting, as would justify John E. Miller in killing Tunison, when, as a matter of fact, the deceased, Delbert J. Tunison, did not utter to the defendant the threats which he so reported, directly or indirectly, to John E. Miller. Under these circumstances, if you shall find that defendant falsely reported such threats, directly or indirectly, or through others, to John E. Miller, with intent to cause John R. Miller to kill deceased, and you shall find that John R. Miller did kill the deceased by reason of the honest and reasonable fear, induced by said threats so communicated, and that it was not actually necessary for John R. Miller to kill deceased to preserve his own life, then you may find the defendant guilty, although you may believe John R. Miller was justified in killing the deceased, or you may find the defendant guilty of a higher degree of crime, if any, than you believe John R. Miller guilty of.”
On the part of the defense, evidence was offered showing that on May 18th Delbert J. Tunison said to Richard Dey, “He would go up to the Millers’, steal the horses, murder the outfit, set the things on fire, and skip the country.” William Price also testified that he saw Tunison with Whitaker on May 18th, and that Tunison said to Whitaker at the time, “He was going over to get his brother Bill and a couple of six-shooters, and go and get his property at the Millers’.” Mrs. Tunison testified that on Monday, the 18th, between five and six o’clock, after she had reached her father’s house, Whitaker came to the house and told them “Del. said he would go over and get his brother Will and two six-shooters, and come up and take his property, set the ranch on fire, and if any of us interfered, he would kill us;” that “there were present at this conversation, besides herself, her father and mother, Mrs. Cranshaw, and her three younger sisters; that John R. Miller and John Cranshaw came to the house that night at about nine o’clock, and she communicated to them the threats Whitaker said Del. had made.” 'Mrs. Jeremiah Miller also testified that these threats reported by Whitaker as coming from Del. Tunison, were communicated by her to John R. Miller, on the evening of May 18th.
What occurred at the stable when Tunison was killed, on ■ the night of May 18th, according to the defense, is as follows:
“Charles Miller took a gun from his father’s house down to the stable that night a little after eight o’clock, and set it down just on the inside, and then went back to the house and watched to see if anyone came to the, stable; that about a quarter of eleven he heard a noise, at the stable, and John went' with him down there; that both of them went into the stable and sat down; after being there about an hour, Del. Tunison came into the stable at an opening, went up to a horse which belonged to Cranshaw; he untied it and took it but; he tied this horse to a post near by and returned to the stable; at this time John had the gun which Charles had taken to the stable. When Tunison came in, John said to him, ‘Halt;’ Tunison said, ‘ Go to hell, you damned son-of-a-bitch; I’ve got the drop on you, and I shall kill you for luck,’ drawing a revolve1’ from his coat. As these words were uttered, John Miller shot Tunison in the neck; he fell backward, and died in a few hours afterward.”
In regard to the instruction complained of, the argument of the state is as follows:
. “A homicide is committed. A deliberately and premeditatedly procures B to do it. Knowing that the deceased will be át a certain place at a certain time, he reports to B false threats of an intent on the part of the deceased to do great bodily harm to B. At the time and place B meets the deceased, and his mind being poisoned by the communications of A, he believes that he is in danger of his life or of great bodily harm, and to prevent it the homicide is committed by him. So far as B is concerned, the homicide is justifiable. But A, deliberately and premeditatedly intending to accomplish the killing of the deceased, adopted such means as would effect that end, and the killing results by reason of the means A deliberately adopted for that purpose. A would be guilty of murder in the first degree, although B’s act, so far as he alone was concerned, was justifiable.- B was but the blind, irresponsible instrument of another mind.”
The proposition thus stated is a sound one, but we do not think the evidence in the case warrants the instruction. It is probably true that John and Charles Miller were at the stable on the night of the killing of Tunison, on account of the threat reported by Whitaker that Tunison said he was ctíming after the horses which had been taken away from his house. But there is sufficient evidence in the record to show that Tunison intended to come that night to retake the horses, and it is undoubtedly true he gave out that he was coming so to do. This is corroborated by the fact that he did come that very night for that purpose.
The court in its instruction suggested that this threat, as well as the others, was falsely reported by Whitaker; the suggestion of its falsity, in the absence of any proof, ought not to have been made by the court, and it was not consistent with 'the evidence for the court to intimate that this threat was not uttered by Tunison. ■ There is no affirmative evidence in the record that the other threats reported by Whitaker to-have been made by Tunison, were not so made, but the other threats are so extravagant and so unlikely to have been made by any person about to commit such acts, that we suppose the jury might have inferred the threats “ to burn the house and kill the Millers” were never uttered by Tunison.
We cannot perceive that the extravagant threats about the killing and burning, reported by .Whitaker to have been made by Tunison, induced in John R. Miller such an honest and reasonable fear as caused him to believe it was actually necessary to kill Tunison to preserve his own life. Upon the facts disclosed in the record, we do not think that the court ought to have intimated to the jury that the-threats so communicated were likely to have that effect upon Miller. If the killing of Tunison was justifiable, it was upon the testimony of the defense that when he entered the opening of the stable at the time he was shot, he drew a revolver as if to shoot Miller, at the same time stating: “I’ve got the drop on you, and I shall kill you for luck.” The defense attempted to show thatTunison was not only trying to get possession of the horses which his wife had taken away, but was also attempting to steal the horse owned by Cranshaw, and when Miller called on him to halt as he was entering the stable, he attempted to take his life. Upon the evideuce offered by the state, the threats communicated to John R. Miller were no justification to Miller for the killing of Tunison. Upon the theory of the defense, the threats communicated were not the direct cause of the killing of Tunison.
Again, the threats reported by Whitaker were communicated to John and Charles Miller several hours before the killing of Tunison. There was ample time after the report of these threats for the parties to have had Tunison arrested, if these threats in any way created fear in their minds that their lives were in danger, or great bodily harm likely to occur; no such steps were taken. (The State v. Rose, 30 Kas. 501.) Upon no view of the evidence embraced in the record can we assume that John E. Miller was an “innocent agent” in the killing of Tunison; nor does the evidence show in any way that he was the blind and irresponsible instrument of Whitaker. No fair inferences from the facts in evidence upon the trial, warrant the theory that John E. Miller was the “ innocent agent.” Miller was either guilty of murder in killing Tunison, or else the homicide was justifiable on account of the words and acts of Tunison at the timé that Miller shot him. Only upon the theory that John E. Miller was the “innocent agent” of Whitaker, could the court have given the instruction complained of. It is impossible for us to say that this instruction was not the controlling one with the jury. In our opinion, it is wholly erroneous.
Because of the instruction given, herein referred to, the judgment is reversed, and the prisoner will be remanded for a new trial.
All the Justices concurring. | [
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The 'opinion of the court was delivered by
Horton, C. J.:
The question in this case is one of fact. L. M. Lowenthal, one of the defendants, testified in person before the district judge, and the plaintiff to sustain his ground of attachment introduced affidavits of admissions of the said Lowenthal. It is sufficient to say that we think there is sufficient evidence to sustain the finding of the district judge—at-least it does not appear that his finding was clearly erroneous. It is not necessary for us, in affirming the decision of the district judge; to say that the decision was absolutely right, or that we would have decided so if we had heard the case. (Urquhart v. Smith, 5 Kas. 447; Tyler v. Safford, 24 id. 580; Harris v. Capell, 28 id. 117; Brown v. Mabbett, 28 id. 723; Wilson v. Lightbody, 29 id. 446.)
Counsel comments upon the fact that one of the partners, A. F. Lowenthal, made way with fourteen or fifteen hundred dollars’ worth of diamonds. This, however, was prior to the execution of the notes sued on. A. F. Lowenthal went away with the diamonds belonging to the partnership in September, 1884. The notes in suit were not executed until November 29, 1884. Subsequently, and before suit, the partnership was dissolved. Counsel refers to the fact that the notes were executed for goods and' merchandise sent by the plaintiff to defendants in-June; 1884, and asserts that the notes were-given only as collateral evidence of the preexisting debt. There is evidence in the record tending -to show that the, notes were given as the absolute payment and extinguishment of said debt. The account for. goods and merchandise is not sued upon, but the action is upon the notes only. The evidence also shows that an account was taken in'November, 1884, between the plaintiff and the defendants, and that the note sued upon, with other notes, were taken at the time by the plaintiff from the defendants in settlement of the open account between the parties. Upon this matter the district judge decided in favor of the defendants, and we cannot disturb that decision. (Shepard v. Allen, 16 Kas. 182; Medberry v. Soper, 17 id. 369.) . The acceptance of the new notes in .settlement of the open account was the creation of a new debt, the consideration of the notes being the former account. Therefore the wrongful disposition of the diamonds in September, 1884, cannot be urged as a ground for attachment upon the notes executed November 29, 1884.
The ruling and order of the district judge will be affirmed.
Valentine, J., concurring.
Johnston, J., not sitting. | [
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The opinion of the court was delivered by
Valentine, J.:
In the year 1877, John W. Hoffman, who was the sheriff of Columbia county, Pennsylvania, held in his hands a writ of fieri facias, or in other words, an execution, in favor of Thomas C. Bitter, and against Barney Weiss'and L. Weiss, under which execution he, the sheriff, levied upon certain property as the property of the defendants in the execution. Hannah Weiss claimed the property, and there being an uncertainty as to whom it belonged, Ritter and his father, Abraham Ritter, gave to the sheriff, Hoffman, an indemnity bond, with a confession of judgment for $300. Thi^ bond and confession were executed June 7,1877. At that time the Ritters resided in Columbia county, Pennsylvania. Afterward, and sometime in February, 1878, they removed to Saline county, Kansas, where they have resided ever since, and have not been in Pennsylvania since their removal to Kansas. The property levied on was sold by the sheriff, and the proceeds applied in partial satisfaction of the execution. The property, however, did not in fact belong to Barney Weiss and L. Weiss, or to either of them, but belonged to Hannah Weiss; and on April 22, 1878, she commenced an action against the sheriff, and recovered a judgment against him, for the value thereof, $168 and costs of suit, $82.40, which judgment Hoffman paid. - This judgment was rendered on May 16, 1879. Afterward, and on May 28, 1879, Hoffman, the sheriff, procured a judgment to be rendered in the court of common pleas of Columbia county, Pennsylvania, in his favor and against .Thomas C. Ritter and Abraham Ritter on the indemnity bond, for $300. Afterward, and sometime in August or September, 1883, Hoffman commenced this present action in Saline county, Kansas, which involves in its determination the legal effect of the “foregoing facts. Judgment was rendered in this action in favor of the plaintiff, Hoffman, and against the Ritters, on December 22,1884, for $348.50 and costs of suit; and on February 25, 1885, the defendants brought the case to this court for review.
' The plaintiffs in error, defendants below, claim that the judgment rendered against them and in favor of Hoffman in the common pleas court of Columbia county, Pennsylvania, on the indemnity bond and confession of judgment, is an absolute nullity, for several reasons, which we shall hereafter mention; and further claim that upon the other facts of the case Hoffman is not entitled to any relief, for the reason that they do not constitute a cause of action; that the court erred in overruling the defendants’ demurrer to the plaintiff’s petition and in permitting the plaintiff to amend his petition, and in overruling the defendants’ motion for a new trial. On the other hand, the defendant in error, plaintiff below, claims that the judgment rendered in Pennsylvania on the indemnity bond and confession of judgment is valid, but even if not, still that upon the other facts alleged in his amended petition he is entitled to recover, and that the court below did not err in any of the respects claimed by the defendants, plaintiffs in error. A judgment rendered in Kansas in the manner and form in which the Pennsylvania judgment was rendered would be an utter nullity in Kansas; but according to the evidence introduced on the trial in this case such is not the case in Pennsylvania. According to the evidence introduced on the trial of this case, the judgment rendered in Pennsylvania is absolutely good and valid in the state of Pennsylvania; and, according to the decisions rendered in Pennsylvania, we would also think that the judgment is absolutely good and valid. A valid judgment may be rendered in Jrennsyivama upon a confession, as this was, without summons or pleadings, and by the clerk of - the court in vacation, or by the prothonotary, as the clerk is called in Pennsylvania. It may be rendered merely upon the personal appearance and confession of the defendant himself, or upon the appearance and confession for the defendant by an attorney at daw, duly authorized in writing to do so by the defendant, or upon a confession contained in a written instrument executed by the defendant, without any appearance by the defendant himself or any person for him, but- merely at the request of the holder of such instrument; and the judgment thus rendered may be upon a debt due, or for an agreed amount to secure a future or contingent liability, or unascertained and unliquidated damages. Among the numerous decisions rendered in the state of Pennsylvania concerning these matters we would cite the following: Holden v. Bull, 1 Pen. & W. 460; Miller v. Howry, 3 id. 374; Stewart v. Stocker, 1 Watts, 135; Pennock v. Copeland, 1 Phil. 29; Moore v. Hutchinson, 1 id. 377; McCalmont v. Peters, 13 Serg. & R. 196; Cook v. Gilbert, 8 id. 567; Ely v. Karmany, 23 Pa. St. 314; McClure v. Boman, 52 id. 458; Shenk’s Appeal, 33 id. 371; Parmentier v. Gillespie, 9 id. 86; Terhoven v. Kerns, 2 id. 96; Sheble v. Cummins, 1 Brown, 253.
We think the only question for us to determine in this case is, whether the judgment rendered in Pennsylvania is’ equally as good in Kansas as it is in Pennsylvania. If it was rendered without jurisdiction personally of the defendants, of course it would be void in Kansas; but if it was rendered with such jurisdiction, then it would be equally as good and valid in Kansas as it is in Pennsylvania; for, under § 1, article 4, of the federal constitution, “ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” The defendants claim that the judgment is void in Kansas for the following reasons:
“The record made by the prothonotary is designated ‘judgment docket entry.’ It is entered as at the September term, 1879. No. summons was’ ever issued and no appearance was ever made by either of the defendants. No judgment was ever rendered by the court itself. No finding was ever made by the court as to the amount due Hoffman, if anything, on said bond. The action of the prothonotary was never ratified and confirmed by the court at or during the subsequent September term. As far as appears from the record, and as far as the Pennsylvania law is concerned, upon which defendant in error relies, he was at liberty to take judgment on said bond the next day after it was executed, and it would have been just as valid in our courts as the one sued on. . . . It does not appear from the face of the instrument the amount that is due; in fact it does not appear from the instrument that any amount was due at the time it was filed by the prothonotary.”
The defendants further claim that the judgment is void in Kansas for the reason that it was rendered for the amount of a penal bond given to secure a future and contingent liability, and to secure at most only unascertained and unliquidated damages which had not yet accrued; also for the reason that these damages were not proved at the time when the judgment was rendered; and also for the reason that the defendants were in Kansas and not in the state of Pennsylvania at the time when the judgment was rendered. The question, however, as to how far these matters may affect the validity of the judgment in Pennsylvania, or as to whether they can have the effect to render the judgment invalid in Pennsylvania, has been completely answered by the evidence introduced on the trial of this case. The judgment was shown by the evidence, parol and statutory, to be valid in Pennsylvania; and while it seems that judgments may sometimes be rendered in Pennsylvania before the ultimate liability of the defendant occurs, and for more than the amount of that liability, yet the courts of Pennsylvania seem to be ever watchful that no injustice shall be done. It seems that the courts there hold that whatever in equity and good conscience ought to be a satisfaction of such judgments will in fact be a satisfaction thereof; and therefore, whenever a judgment is rendered on a penal bond, as in this case, for the full amount of the penalty, the plaintiff holds the judgment, in effect, only as a security, and may collect on the judgment only his real and actual damages. At common law, as contradistinguished from equity, judgments were rendered on penal bonds for the full amount of the penalty. (2 Blackstone’s Com. 841; 1 Tidd’s Pr. 585.) And in this very case the district court of Saline county, Kansas, rendered judgment only for the plaintiff’s real and actual damages, including interest, and not for the full amount of the penalty of the bond, with interest, nor for the full amount of the Pennsylvania judgment, with interest. Is the Pennsylvania judgment valid to this extent in Kansas? This question depends solely, as we think, upon the further question whether the court of Columbia county, Pennsylvania, which rendered the judgment, had at the time sufficient jurisdiction of the persons of the defendants to render the judgment. In several of the states, judgment may-be rendered in vacation by the clerks of the courts, or by the prothonotaries, as they are called in Pennsylvania, and in several of the states judgments may be rendered upon instruments in writing, executed by the defendants as this was, confessing judgment; and in Pennsylvania, and perhaps in some of the other states, and at common law, judgments may be rendered on penal bonds for the full amount of the penalty. All this is shown to have been regularly and properly done, under the laws of Pennsylvania, in the present case. Under the laws of Pennsylvania, as shown by the evidence, parol and statutory, we think the Pennsylvania court rendering the judgment in the present case j urisdiction of the persons of the defendants. It is -not necessary in all cases that a summons should be issued and served upon a party to the action in order to give the court j urisdiction over him personally. A summons is never issued against a plaintiff, and still the court has, the same jurisdiction of the plaintiff that it has of the defendant. A voluntary appearance in the court is all that is required of either the plaintiff or the defendant. Neither is it necessary that the appearance of the party should be in person. It may be by attorney. In many cases neither the plaintiffs nor the defendants ever appear personally in the court, and yet the court may have ample jurisdiction of both. A plaintiff, by the voluntary appearance of his authorized counsel, may give such personal jurisdiction of his person to the court that a personal judgment rendered against him would be valid everywhere in the United States, although he had never in fact made any personal appearance in the court, nor even been in the state where such court was held, or such judgment rendered. He has given such jurisdiction by simply authorizing an attorney to appear for him, and by the appearance of such attorney in the case. In the present case, while the defendants were residents of the state of Pennsylvania they executed an instrument in writing, which under the laws of Pennsylvania gave any proper court authority to take such jurisdiction of their persons as to render a valid personal judgment against them; and by leaving the state of Pennsylvania without attempting to revoke or cancel that instrument, we do not think that they so revoked the power of the courts of Pennsylvania that they could not afterward take jurisdiction of the defendants’ persons, and render a valid personal judgment against them. And here we might say, that when the defendants executed the instrument in writing, confessing judgment, and upon, which the Pennsylvania judgment was rendered, they were bound to know what the laws of Pennsylvania were, and such laws became a part of their contract, and by their contract they surrendered jurisdiction of themselves personally to the courts of Pennsylvania. A Pennsylvania judgment similar to the one in question in this case, has been held to be valid in Iowa. (Crafts v. Clark, 38 Iowa, 237; see also Patterson v. The State, 2 G. Greene, 493.) About the only differences between the Pénnsylvania judgment held to be valid in Iowa and the one now in question, are that the Pennsylvania judgment held to be valid in Iowa was rendered upon the authority given in writing to any attorney of any court of record in Pennsylvania to enter judgment, and was rendered upon a promissory note nearly five years before it was due, and there is nothing to show where the defendants were at the time, whether in Pennsylvania or elsewhere; while the judgment in question in this case was rendered upon a written confession of judgment by the defendants themselves, upon a penal bond, after condition broken, and the defendants at the time the judgment was rendered were in, Kansas, and resided in Kansas. These differences are certainly not sufficient to authorize a holding that the judgment in question in this case is invalid, if it was rightly held that the judgment in question in the Iowa case was valid. We think, under the facts of this case, the Pennsylvania judgment must be held to be valid; and we further think that even if it were invalid, still that the facts alleged in the plaintiff’s amended petition constitute a good cause of action, and authorize the judgment that was in fact rendered by the court below.
Whether the court below erred in overruling the defendants’ demurrer to the plaintiff’s original petition is wholly immaterial, for the plaintiff subsequently filed an amended petition which we think states a good cause of action. And we do not think that the court below erred in overruling the defendants’ motion for a new trial. Indeed, we do not think that the court below committed any material 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 brought by Daniel Weyand and others in the district court of Republic county, to enjoin the defendánt, S. G. Stover, treasurer of Republic county, and others, from collecting .certain taxes because of their supposed .invalidity. A demurrer to the plaintiffs’ petition was interposed by the defendants, upon the ground that the petition did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the district court. The plaintiffs bring the case to this court.
The taxes sought to be enjoined in this case depend for their validity upon chapter 80 of the Laws of 1883. If that chapter is valid as applied to Republic county, then the taxes are valid; but if that chapter is void as applied to that county, then the taxes are void; and the question of the validity or invalidity of that chapter is the only question involved in the case. The plaintiffs claim that it is void for several reasons. They claim: First, that the subject of the act is not clearly expressed in its title, within the meaning of § 16, article 2 of the constitution; second, that the act contains more than one subject, in violation of said § 16, article 2 of the constitution; third, that the act was not legally passed.
The title to the act reads as follows:
“An act authorizing the board of county commissioners of Ottawa county, aDa other counties therein named, to provide' a fund and appropriate the same for the purpose of building county buildings in said counties."
Republic county is expressly named in the body of the act, and the act expressly applies to' Republic county. The “ subject ’’ of the act is the creation and use of a fund to build county buildings, and the act expressly applies to the three counties of Ottawa, Washington, and Republic. This sufficiently appears by the body of the act and also by the title thereto having reference to the body of the act. This is only one “subject," and it sufficiently appears in the title to the act. We do not think that the first two grounds for claiming that the act is invalid, are tenable. Questions with regard to the titles to acts have been elaborately discussed by this court in many prior cases. (The State v. Barrett, 27 Kas. 213, and casejs cited on page 218; Martin v. Borgman, 21 id. 672.; Board of Education v. The State, 26 id. 44.)
The plaintiffs also claim that the act was not legally passed. The act was senate bill No. 226, and was introduced in the senate on February 9, 1883, and was read a first and a second time on that day, and referred to the committee on judiciary. The plaintiffs claim that this reading of the bill twice on the same day, without its being shown on the journals or elsewhere that a case of emergency existed, and what that emergency was, is in violation of § 15, article 2 of the constitution, which requires that “every bill shall be read on three separate days in each house, unless in case of emergency.” Now we tihmk that each house of the legislature is the exclusive judge as to when a case of emergency arises or exists, within the meaning of the constitution; and it is not necessary, in order that the reading of the bill shall be considered valid, that the emergency shall be stated upon the journal.
The title to the bill when the same was introduced in the senate, was, as shown by the senate journal, as follows:
“An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county buildings, and to provide for the building of the same.”
In many of the subsequent proceedings the title to the bill is not stated in the journals in these words. In some places where the word “buildings” is used, the word “bridges” is substituted. The journals also show that before the bill passed the senate, the counties of Washington, Jewell and Republic were added to the bill, and the title was so amended that when the bill was engrossed the title read as follows:
“An act authorizing the board of county commissioners of Ottawa county, and other counties therein named, to provide a fund and appropriate the same for the purpose of building county buildings, and to provide for the building of the same.”
Several times afterward, however, the word “bridges” appears in the place of the word “buildings.” It appears, however, from the legislative journals, that the last act that was done by either house, was the act of the senate in concurring in the house amendment to the bill, and in that place the bill is described as—
“ Senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county, and' other counties therein named, to provide a fund and appropriate the same for the purpose of building county buildings, and to provide for the building of the same.”
It is clear from the legislative journals that there was no attempt made to describe the bill or the title thereto literally and with exact precision in the journals, but only an attempt to describe the substance of the bill or the title. In several instances the literal terms of the title were not used, and in a ^ew ^stances the word “bridges” was substituted where the word “buildings” should have been used. We do not think that these discrepancies or irregularities render the act void. In all probability the bill itself was right. The title to a bill is the last thing agreed to in either house. We shall have more to say hereafter with regard to this and other questions.
It is further claimed by the plaintiffs in error that the act is void for the reason that the bill was not read section by section on its final passage, as required by §15, , ,* article 2 of the constitution. Presumptively, it was so read, and there is nothing showing the contrary.
It is further claimed that the bill was not read three time's in the house, but only once.- Now the house journal shows expressly and affirmatively that the bill was p]acec[ Up0n jts third reading in .the house, and that afterward it “was read the third time” in the house. Now it could not have been read the third time in the house unless it had been read a first and a second time; and there is nothing anywhere showing that it was not read a first or a second time.
Irregularities in the passage of bills have been elaborately discussed in several cases in this court, and we would refer to those cases: Division of Howard Co., 15 Kas. 194; Comm’rs of Leavenworth Co. v. Higginbotham, 17 id. 62; Prohibitory-Amendment Cases, 24 id. 700; The State v. Francis, 26 id. 724; In re Vanderberg, 28 id. 243.
In the case of The State v. Francis, 26 Kas. 731, the following language is used:
“The enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and ^hat ^ ^ conclu.sive evidence of such regularity and validity unless the journals of the legislature show clearly, conclusively and .beyond all doubt, that the act was not passed regularly and legally. . . . If there is any room to doubt as to what the journals of-the legislature show, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is-correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.” .
This language is cited with approval in the case of In re Vanderberg, 28 Kas. 254; and we think it fairly states the law.
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.:
The plaintiff in error, Billard (defendant below), is the owner of a mill located at the corner of Kansas avenue and “A” (formerly Curtis) street, North Topeka. For several years there has been a scale for weighing located upon the sidewalk of “A” street, near the corner, for the use of the mill. Doors were arranged along the north side of the mill, also on “A” street, east of the scale, for loading and unloading from wagons, grain and other commodities. Erhart and the other plaintiffs below filed their petition asking that Billard and all persons acting for him be enjoined from using the scale, and from permitting wagons to stand upon the sidewalk for the purpose of loading or unloading grain, etc. The petition was demurred to upon the ground that the plaintiffs were not shown to have any interest in, or .to have suffered auy loss or injury by the acts complained of, different from the public generally, and that the petition showed affirmatively upon its face that they had no special loss, and therefore that as plaintiffs they had no capacity to bring the action. This demurrer was overruled, and the defendant excepted.
In Mikesell v. Durkee, 34 Kas. 509, it was held that where a person or corporation attempts to construct a purely private railroad upon any of the public streets of a city, any abutting lot-owner whose property is or may be injured thereby, may maintain an action to perpetually enjoin such person or corporation from making such use of the streets.
In Heller v. Railroad Company, 28 Kas. 625, it was decided that where a part of a street is attempted to be vacated, and the owners of lots abutting thereon do not complain, the owner of a lot in another block in front of whose lot the street is left its full width, and access to whose lot is in no respect disturbed or abridged, cannot maintain an action to restrain the vacation, although thereby the general course of travel will probably be thrown on some other street and no longer pass in front of said lot-owner’s property.
The question is, by which of these decisions the present case is to be governed? Upon the whole, we are satisfied that this case falls within the principles decided in Heller v. Railroad Company, supra. The difference in facts does not place them upon any different ground of principle. The obstruction complained of is not in front of the lots owned by the plaintiffs below, and their property is not opposite or contiguous to the obstruction. The case therefore differs from Mikesell v. Durkee, as in that case the defendants were attempting to excavate and build a private railroad in a public street in front of the plaintiff’s lots. In Heller Railroad Company, the plaiutiff alleged that the railroad company was occupying a portion of the street which the city council had attempted to vacate, and was commencing to lay tracks and erect buildings thereon; that thereby the travel was diverted from plaintiff’s property, and if the vacation of the street was permitted, that the property would cease to be of any value for business purposes, and of small value for residence purposes. In that case we said:
“The fact that as an indirect consequence injuries may result, gives no cause for interference. Only when the injury is direct, when the individual suffers some special wrong, something different from that experienced by other members of the community, may the party injured challenge the action. It is not always easy to draw the dividing-line between those cases in which the injury is direct and special, and those in which it is indirect and general. . . . The closing up of access to the lot is the direct result of the vacating of the street, and the owner, by the loss of access to his lot, suffers an injury which is not common to the public; but in the case at bar, access to plaintiff’s lots is in no manner interfered with. The full width of the street in front and on the side is free and undisturbed, and the only real complaint is, that by the vacating of the street away from the lots, the course of travel is changed. But this is only an indirect result. There is nothing to prevent travel from coming by the lots if the travelers desire it. The way to the heart of the city by the lots is a little more remote than it was before, but still free passage is open to all who wish-to pass thereby. No one is compelled to stay away. Access to-the lots is the same that it was before, so that the injury is only the indirect result of the action complained of, and it is an injury which, if it exists at all, is sustained by all other lots along the street west of the parts vacated.”
In this case the property of the plaintiffs below abuts on a part of the street distant from the alleged construction, and the damage they suffer is sustained by the public generally. (High on Injunctions, 2d ed., §§.594, 827; id., §819, and cases cited; Williams v. Smith, 22 Wis. 594, and cases cited; Shaubut v. Railroad Company, 21 Minn. 502; Craft v. Jackson, Co., 5 Kas. 521; Bobbett v. The State, ex rel., 10 id. 15.)
The judgment of the district court will be reversed, and the case remanded for further proceédings, in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The mayor and council of the city of Wyandotte, by an ordinance adopted in 1871, which was amended in 1881, authorized the Kansas City & Wyandotte Street Eailway Company, of which the appellant is general, manager, to construct and operate a street railway upon and along certain streets and avenues within the city. In the ordinances granting the franchise, it was provided that it should be constructed and maintained as a double-track railway; that the tracks should be laid flush with the streets and with flat rails, so as not to interfere with public travel, and should be kept in good repair; also that the company should operate its railway in connection with one in Missouri, so that cars should be run over both lines without change, making a through line on which cars should be run at all reasonable hours and times, and further providing a maximum fare which should be charged for transportation over the company’s line. From the record presented in this case, it does not appear that any other duties or obligations were imposed upon the company by the ordinance granting the franchise, nor does it appear that it contained any express exemption from municipal regulation or control, nor from the liability of others doing business within the city. The defendant urges that the granting of the franchise and its acceptance by the company constituted a contract within the protection of the federal constitution, which could not be impaired by any subsequent legislation of the city without the assent of the company; and he contends that no other or different conditions or burdens could be imposed than those mentioned in th'e ordinances, and therefore that the license tax could not be enforced against the company, or any of its agents. It may be conceded that the grant and its acceptance constitute a contract the obligation of which comes within the protection invoked; but the extent of the contract is not what is claimed. It does not involve any conditions or exemptions beyond those which are clearly expressed or necessarily implied. It is well settled that grants of this class are not to be extended by construction beyond the plain terms in which they are conferred, but should be construed strictly against the corpo-. ration, or those claiming under the grant, and in favor of the public. It has been said in respect to grants of special privileges, that—
“Nothing is to be taken as conceded, but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown; silence is negative, and doubt is fatal to the claim.” (Fertilizing Co. v. Hyde Park, 97 U. S. 659.)
The application of this rule will overthrow the contention of the appellant. As has been seen, the ordinance conferring the grant provided only for the manner of constructing, main-taining and operating the road. Nothiug in the letter or spirit of the ordinance indicates any intention on the part ot the city to relinquish municipal regulation and control of the company,- if, indeed, it can be done, nor to relieve it from taxation, or the ordinary burdens to which other corporations and natural persons within the city are subject. The company must be held to have taken the franchise knowing that the business of operating the road must be conducted under such reasonable rules and regulations as the municipality might impose, and subject to its share of the burdens incident to the conduct of the municipal government. The requirements mentioned in the ordinance do not embrace, and are- not in any sense inconsistent with, the one now made, and of which the appellant com- . plains. Express authority is conferred upon cities of the second class to levy and collect a license tax upon the business of operating a street railroad,' (Laws of 1871, ch. 40, § 3,) and the validity of such legislation has been considered and sustained. (City of Newton v. Atchison, 31 Kas. 151.)
We have examined the authorities cited by plaintiff in error, but in them we find nothing in conflict with the conclusion which we have reached. There has been..considerable discussion in regard to whether the imposition of the license tax is an exercise of the police power, or of the power of taxation, but this is a matter of indifference in this case, as it is manifest from the contract made that it was not intended by the parties that either should be bargained away or surrendered. We conclude, then, that the conditions stated in the charter, providing how and when the road shall be constructed, and the manner in which it shall be maintained and operated, will not exempt the company from reasonable regulation in other respects, or from bearing its share of the public burdens. (San Jose v. S. J. & S. C. Rld. Co. 53 Cal. 475; Frankford &c. Rld. Co. v. Philadelphia, 58 Pa. St. 119; Johnson v. Philadelphia, 60 id. 445; City of St. Louis v. Manufacturers’ Sav ings Bank, 49 Mo. 574; City of St. Louis v. Mo. R. Co., 13 Mo. App. 524; Wiggins Ferry Co. v. E. St. Louis, 107 U. S. 365; Union Passenger Rly. Co. v. City of Philadelphia, 83 Pa. St 429.)
The appellant further contends that he cannot be held criminally responsible for the failure of the company to pay the license tax, claiming that the ordinance did not impose the duty of paying such tax upon any officer, servant or employé of the company. This contention has no ground upon which to rest. A corporation can only act through its agents, and by the agreed facts it is shown that the appellant is the general manager of the company, and that he was actually engaged in running cars and operating a street railway at the time charged when the license tax provided by the ordinance, was unpaid. The ordinance makes it unlawful for any person or firm, as we^ as a corporation, to engage in any of the occupations or classes of business mentioned, withou^ procuring a license and paying the tax, and provides further that whoever shall engage in such business in violation of such ordinance shall be convicted.and punished. It is immaterial whether the appellant was acting for himself or for the company. He was engaged in the business of operating a street railway within the city while the tax was unpaid, and must therefore suffer the penalty.
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 was a prosecution upon a criminal information filed in the district court of Cloud county, on October 22, 1885, charging the defendant, Israel Longton, with selling intoxicating liquors in violation of law, and without first taking out and having a permit authorizing him to make such sales. The information contained two counts, and was verified by the county attorney upon information and belief, and by the affidavit of another person, filed with the information, and this affidavit was sworn to positively, and was a sufficient verification of all the material allegations of the information, except that the defendant made the unlawful sales complained of “ without first taking out and having a permit therefor.” Upon this information,'and on October 23, 1885, a warrant was issued for the arrest of the defendant. On October 24, 1885, he was arrested, and on the same day entered into a recognizance for his appearance at the next term of the district court, and was discharged from the arrest. On October 26, 1885, the warrant was returned to the district court. On February 17, 1886, the case was called for trial, and the defendant then filed a motion to set aside and quash the warrant, and that he be discharged without day. This motion was overruled. The defendant was then arraigned, but refused to plead, and the plea of “ not guilty ” was entered for him. He was then tried before the court and a jury, and was found guilty under the second count of the information and not guilty under the first count, and was sentenced to imprisonment in the county jail of Cloud county for the term of forty days, and that he pay a fine of $125 and the costs of the prosecution. Prom this sentence he appeals.
The only grounds urged in this court for a reversal of the sentence and judgment of the court below, are that the information was not properly verified, and therefore that the warrant was improperly issued; that the defendant was wrongfully arrested thereunder, wrongfully required to enter into a recognizance for his aj>pearance at court, and wrongfully tried upon the information. The case of The State v. Gleason, 32 Kas. 245, is relied on by the defendant as decisive of this case in his favor. He also cites the following cases: In re Lewis, 31 Kas. 71; The State v. Blackman, 32 id. 615; The State v. Brooks, 33 id. 708, 712; The State v. Goodwin, 33 id. 538. None of the authorities cited by the defendant goes to the extent which he claims, and some of them are directly opposed to what he claims. See also the case of The State v. Bjorkland, 34 Kas. 377, which enunciates doctrines which we think require a decision in this case adverse to the defendant. The defendant was not under arrest at the time he made his motion to set aside the warrant and to be discharged. The warrant had long before that time spent its force and had been returned by the sheriff to the court, and so far as the warrant was concerned, the defendant had a right to go when and where he pleased. Of course the defendant was under recognizance to appear at court, but he made no motion to set' aside the recognizance. Besides, he probably could not have had it set aside even if he had made the motion, for this court has decided, in both the Blackman ease and the Bjorkland case, ante, that the verification of an information by the county attorney upon information and belief is sufficient for all purposes, except for the purpose of issuing a warrant for the arrest of the defendant. We think when the defendant entered into a recognizance for his appearance at court, without making any objection to the sufficiency of the warrant, or the sufficiency of the information, or the sufficiency of the verification thereof, he waived the supposed defects in the verification of the information and the irregularity in issuing the warrant without, a sufficient verification.
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.:
In an action of ejectment brought by William B. Hazen against Harvey M. Bouusaville, it was found and adjudged that Hazen was the owner and entitled to the possession of lots Nos. 3.85 and 387 Taylor street, in the city of Topeka. The judgment was brought to this court for review, and in January, 1885, a decision was rendered affirming the same. (Rounsaville v. Hazen, 33 Kas. 71.) When the mandate of the supreme court was presented and an entry thereof made in the district court, an application was made by Harvey M. Bouusaville for the benefit of the occupying-claimant law. The court thereupon ordered that a hearing of said application be had on' a .future day, at which time considerable testimony was taken upon the application regarding the improvements placed upon the lots by the defendant, and his rights as an' occupying claimant. The court sustained the request aud application of the defendant, and held that he was entitled to the relief asked for, and allowed further proceedings to be taken in the premises in accordance with the provision of the statute. W. B. Hazen excepted to this ruling, and now prosecutes a petition in error to reverse it.
No appearance has been made here for the defendant, which may perhaps be accounted for by the fact that he does not deem the ruling one of which we may take cognizance at this time. It is clear that such is the case, and that the ruling made is not before us for review. It is not a judgment or final order, nor does it fall within any of the orders specifically enumerated in § 542 of the code as subject to review in this court. In fact, no adjudication was necessary, nor should any have been made upon the application. The statute declaring the steps that are to be taken at this stage of the proceedings is as follows:
“The court rendering judgment in any case provided for by this act against the occupying claimant, shall, at the request of either party, cause a journal entry thereof to be made, and the sheriff and clerk of the court, when thereafter required by either party, shall meet and draw from the box a jury of twelve men of the jurymen returned to serve as such for the proper county, in the same manner as the sheriff and county clerk are required by law to draw a jury in other eases, and immediately thereupon the clerk shall issue an order to the sheriff under the seal of the court, setting forth the name of the jury and the duty to be performed under this article.” (Civil Code, §603.)
This provision plainly indicates the procedure to be pursued when judgment is rendered against the party in possession. Upon the mere request of the occupant, a journal entry of the request is allowed and made. The defeated occupant is entitled to have inquiry instituted under the provisions of the occupying-claimant act, upon proper application, and the court is without discretion in allowing it. It is given as a matter of course, just the same as a second trial of the action for the recovery of real property is allowed upon a proper demand. When the application is made and allowed, either party may continue the investigation by the calling of a jury. The assessments and valuations made by the jury are reported to the court, and at the succeeding term action is taken thereon and such judgment is rendered as the findings of the jury, as well as the nature of the case, will warrant. The judgment then rendered may properly be brought before this court for review, and the questions sought to be raised in this proceeding may then be raised and determined. The record, however, shows that the request of the defendant for an investigation of his rights as an occupying claimant was allowed and entered, and this ruling is not reviewable here.
The petition in error will therefore be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Washington Mason and others, in the superior court of Shawnee county, to enjoin the defendants, Charles F. Spencer, county clerk, and others, from collecting certain sewer taxes levied by the city of Topeka upon certain lots in such city belonging to the plaintiffs, which taxes are alleged to be illegal and void. The plaintiffs also applied for a temporary injunction. This application was heard upon evidence, and the court below refused to grant the injunction. The defendants demurred to the plaintiffs’ petition upon the ground, among others, that the petition did not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer. To reverse this ruling the plaintiffs bring the case to this court.
Somé of the principal facts involved in this case are reported in the case of Gilmore v. Hentig, 33 Kas. 156, et seq. After the case of Gilmore v. Hentig was decided by the supreme court, and on March 2, 1885, the legislature passed an act which .it is claimed cures all the irregularities which occurred in the original construction of the sewers or in connection therewith. That portion of the act which has application to this case, reads as follows :
“ Sec. 2. That in any case where any sewer or sewers have been heretofore constructed in any city of the first class by order of or under contract authorized in fact by the mayor and council thereof by resolution or ordinance, and the same shall not have been fully paid for, the mayor and council of such city shall have authority at any time to make provision for such payment by the levy of taxes upon the property properly taxable therefor at large or in the proper district as originally intended, or the issue of the bonds of such city, or the warrants or other evidences of indebtedness of such city, to amount not exceeding the amount of such principal indebtedness and interest at the rate of not to exceed seven per centum from time when same shall have been paid; or may re-fund or re-issue any bonds or other evidences of indebtedness which may in fact have been theretofore issued on account of any such improvement and then remaining unpaid.” (Laws of 1885, ch. 95.)
After the foregoing statute was passed by the legislature, the city of Topeka again levied taxes to pay for the sewers mentioned in the case of Gilmore v. Hentig, ante; and these are the taxes which the plaintiffs now claim are illegal and void.' It is claimed they are illegal and void for the reasons given in the said case of Gilmore v. Hentig; and also for the reason that the foregoing statute is unconstitutional and void.
It is claimed that the foregoing statute is unconstitutional and void for the reason that its passage by the legislature was the exercise of judicial power, and not the exercise of legislative power. This point must be overruled, and there is really so little in it that we do not think it is necessary to discuss the same.
The plaintiffs also claim that the foregoing “ act is unconstitutional and void for the reason that it attempts to confer corporate powers upon certain cities only, and cannot possibly at any time apply to other corporations, public or private, and is in contravention of § 1, article 12, of the constitution.” This point presents a much more difficult question. The plaintiffs refer to the case of City of Topeka v. Gillett, 32 Kas. 431, as authority for their claim that the statute is unco ustitutional and void. The two cases, however, are not alike. In the case of City of Topeka v. Gillett, the legislature attempted to confer corporate powers, while in the present case the legislature intended only to cure irregularities; not to create powers, but only to remove restrictions. In that case the legislature clearly intended that the act should be -a special act, while in this present case we cannot say that such was the intention of the legislature. In that case it was intended by the legislature that the act should apply, not to a whole class, but only to a portion of a class, to wit, to only three cities of the Second class out of ten such cities. At that time there were ten cities of the second class in the state of Kansas, and it was possible for- the act to apply to three of them and to no more, and it was not possible for the act to apply to any other city or corporation; and the act was so limited with regard to the time for its operation that in all probability it could practically have operation only as to one of such cities—a single city. In the present case, however, the act is not only general in its form and general in its terms, but it is made to apply to an entire class of cities, and a dass as broad and general as any class for which any of the general laws for cities of the first class are enacted. It applies to all cities of the first class, and the time given for its operation is not limited; and any city of the first class coming within its terms may act under it, or not, as it chooses. All that the statute attempts to do in the present case is to dispense with certain preexisting legislative requirements; to cure certain irregularities existing because of a failure to comply with such requirements, and to relieve cities of the first class from what would otherwise be the effect of such irregularities. Such an act we think is constitutional and valid. As sustaining these views, see the cases of City of Emporia v. Norton, 13 Kas. 569; Tift v. City of Buffalo, 82 N. Y. 204. In connection with the last-mentioned Kansas case we would say, that it appears from the reports of the decisions of this court that in 1871 the city of Emporia, a city of the second class, levied special taxes to macadamize, curb and gutter a certain street. These taxes were held to be illegal and void because of certain irregularities; and this notwithstanding the fact that a special act of the legislature (Laws of 1872, ch. 13) had been passed for the purpose of curing such irregularities. (Gilmore v. Norton, 10 Kas. 491.) Afterward, the city of Emporia relevied the taxes, or rather levied other taxes of a similar character, under a general law passed after the improvements had been made, and passed for the purpose of curing irregularities such as had intervened in that case, and which rendered the previous taxes in that case illegal and void, which general law reads as follows :
“Sec. 41. In case the corporate authorities of any city have attempted to levy any taxes or assessments for improvement, or for the payment of any bonds or other evidence of debt, which taxes, assessments or bonds are, or may have been informal, illegal or void, for the want of sufficient authority or other cause, the council of such city, at the time fixed for levying general taxes, shall relevy and reassess any such assessments or taxes in the manner provided in this act.” (Laws of 1872, ch. 100, § 41.)
This act of 1872 was enacted for cities of the second class and for them only, and it was held to be constitutional and valid, and the taxes levied under it were upheld and sustained. (City of Emporia v. Norton, 13 Kas. 569; City of Emporia v. Norton, 16 id. 236.) This act of 1872 was also in substance reenacted by the legislature of 1885, (Laws of 1885, ch. 101;) therefore the legislature of 1885 not only enacted the curative statute now in question, which applies only to cities of the first class; but it also enacted a curative statute, (said chapter 101, Laws of 1885,) of a similar character for all cities of the second class. By the enactment of these two statutes it clearly appears that the legislature of 1885 had no intention of passing special acts conferring corporate powers, as was the case when the legislature of 1875 passed the act held P ^ to be void m the case of City of Topeka v. Gillett, ante; but the legislature intended to pass only general laws. We think that § 2 of chapter 95 of the Laws of 1885 is constitutional and valid.
This we think substantially disposes of this case. It is true that the plaintiffs have alleged a great many irregularities, but the object of the legislature in passing the foregoing statute, (ch. 95, Laws of 1885,) was to cure such irregularities, and we think they are cured. It would seem from the ordinance passed by the city of Topeka subsequent to the passage of the foregoing statute, that the city of Topeka in relevying the taxes, or rather in levying the present taxes, attempted not only to come within the provisions of such statute and of all other statutes as modified by this statute, but also attempted to come within and to comply with all the decisions of this court and all the suggeátions made by this court in the case of Gilmore v. Hentig, ante, so far as such decisions and suggestions can apply to this case. The irregularities in the original proceedings of the city and its officers in connection with the construction of the sewers were in the main mere irregularities, mere failures to comply with certain provisions of the statutes which the legislature could have dispensed with by previous enactments if it had so chosen, and were therefore such irregularities as the legislature could waive or cure by subsequent enactment. It is a general rule that -where the legislature can dispense with a thing or render it immaterial by prior enactment, it may dispense with such thing or render it immaterial by a subsequent statute. In other words, where an irregularity rendering an act of a city or subordinate agency illegal or void is simply a failure to comply with some provision of the statutes, the compliance with which the legislature might hi advance have dispensed with, the legislature can by a general curative statute subsequently passed, dispense-with such compliance and thereby render the act of the city or subordinate agency legal and valid. All the authorities support this proposition; and we think this case falls within them.
As before stated, we think this case comes within the decision made in the ease of City of Emporia v. Norton, 13 Kas. ■569. That some of the lot-owners may be required to pay more than a fair proportion of the cost of constructing the sewers, .will not necessarily and of itself invalidate the taxes. The taxes in the present case were levied, as we understand, in accordance with the value of the lots without the improvements thereon, in accordance with the suggestion of this court in the case of Gilmore v. Hentig, ante, and in .accordance with the decisions of the supreme court of Massachusetts in the cases of Downer v. Boston, 61 Mass. 277, and Wright v. Boston, 63 id. 233. In cases where all the lots taxed are actually benefited by the sewers, we.think that such an apportionment of the taxes must be held to be legal and valid, although in some few instances on account of peculiar circumstances or mistakes in the appraisement of the lots, some one or more of the lot-owners may have to pay more of the cost of the construction of the sewers than is fairly his or their proportion to pay. Absolute and exact justice in such cases can never be attained. In all cases some persons will be required to pay slightly more, and some slightly less, than their fair proportion. We do not understand that any of the lots taxed in this case are not benefited by the sewers. All, as we understand, are benefited more or less, though some are benefited less than others, and some less than the amount of the taxes levied upon them. The taxes, however, are only equal to the actual cost and fair value of the improvements. We might further say in this case, that the plaintiffs have not tendered any portion of the taxes levied upon their lots, and therefore if in equity they should pay any portion of such taxes, they must fail in this action. (City of Ottawa v. Barney, 10 Kas. 270.)
We perceive no sufficient grounds for equitable interference in this case, and therefore the judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by George W. Watson against James W. Spalding, F. H. Foster and F. M. Hayward, to recover the northwest quarter of section 33, township 13, range 13, in Wabaunsee county. The case was tried before the court, without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff and against the defendants for the recovery of the land, and for costs. To reverse this judgment the defendants now bring the ease to this court.
The plaintiff below claims title under the original patent, issued by the United States on September 10,1860, to Samuel McClellan, and also under a tax deed issued by the county clerk of Wabaunsee county to C. F. Kenderdine, on September 8, 1882, and recorded on the same day. The defendants claim title under a tax deed executed by the county clerk of Wabaunsee county to B. W. Clark, on July 29, 1870, and recorded on the same day. We shall assume that the tax deed under which the defendants make their claim of title is valid, and that it cuts off all titles existing at the time when it was executed and recorded. The question then arises: Is the plaintiff’s tax deed valid, or not? If it is valid, it will also cut off all prior titles, and give to the plaintiff a perfect title to the land; for the plaintiff’s tax deed is the last one executed, and was executed nearly twelve years after the defendants’ tax deed. The plaintiff’s tax deed is founded upon a tax sale made in the year 1879 for the taxes of 1878, and the principal objection urged against its validity is, that the land in dispute was not assessed and taxed in 1878 as one tract, but was assessed and taxed as two eighty-acre tracts, to wit: “ The east half” of said quarter-section, and “the west half” of said quarter-section. Now why this mode of assessment should render the tax deed void, or, any of the tax proceedings void, we cannot understand. Eighty-acre tracts of land, or half-quarter-sections, are legal subdivisions, and when government lands are offered for sale at public auction, they are always so offered in half-quarter-sections. (U. S. Rev. St., ch. 7, § 2353.) And in Iowa, when the owner- of any real estate is-unknown, it is always required that each sixteenth part of the section, or other smallest subdivision of land, shall be assessed and taxed separately. (McClain’s Annotated Stat. of Iowa of 1882, title 6, ch. 1, § 826.) And it is generally safer, where the names of the owners of lands are unknown, and where separate portions ' of the lands are susceptible of clear description, to assess them in separate tracts, as they may be owned by different persons; and if they are, and a joint assessment should be made and all the lands taxed together, the owner of one tract could not ascertain the amount of the taxes due on his land or pay the same, nor could he, redeem his land from the taxes when sold, without paying all the taxes imposed upon all the other lands assessed and taxed with his. (Shimmin v. Inman, 25 Me. 228, 233. See also Shaw v. Kirkwood, 24 Kas. 476; Kregelo v. Flint, 25 id. 695.) At the time when the assessment was made in the present case, and now, the act relating to taxation provided, among other things, as follows:
“Sec. 44. Each assessor shall make out, from such sources, of information as shall be within his reach, a correct and per-. tinent description of each piece, parcel or lot of real property, in numerical order as to lots and blocks, sections or subdivisions, in his township or city, as the case may be, and he may require the owner or occupant of such property to fimnish such description.” (Comp. Laws of 1879, ch..l07, §44.)
In the absence of anything to the contrary, it will be presumed the assessor did his duty. Indeed, in the absence of anything to the contrary, it will always be presumed that all officers do their duty. We might further say, that the land in controversy was vacant and unoccupied from the beginning up to March 1, 1883; that the patent for such land was not recorded in the county until sometime in the year 1883; and that the land was continuously assessed and taxed in separate eighty-acre tracts from the year 1864 up to the present time— from 1864 up to 1870 as “unknown,” and from that time up to 1878 in the name of B. W. Clark, the grantor of the defendants, and presumably it was so assessed and taxed from the year 1870 up to 1878 with the approval of Clark, and presumably he paid the taxes, as thus imposed, up to and including the year 1877; and if so, why should his subsequent grantees, the present defendants, now complain? It is also provided .in the act relating to taxation as follows:
“Sec. 139. No irregularity in the assessment roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding or the title conveyed by the tax deed; nor shall any failure of any officer or officers to perform the duties assigned to him or them, upon the day specified, work an invalidation of any such proceedings or of said deed.” (Comp. Laws of 1879, ch. 107, §139.)
"We have examined the authorities cited by counsel for the defendants (plaintiffs in error), and do not think that they are applicable under the facts of this case and the statutes of this state. We think the tax deed under which the plaintiff claims title is valid. There are some other objections urged against the validity of this tax deed, but we do not think that they are at all tenable.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
F. E. Hendricks brought this action against the board of county commissioners of Chautauqua county, and in his petition alleged substantially that on November 25, 1883, the sheriff of Chautauqua county and his deputies arrested one Cyrenius B. Hendricks, and that while they had him in .custody at a point fifteen miles from Sedan, where the county jail was located, he was shot, and so severely wounded that he could not be removed or taken to the county jail, and that his condition resulting from the wound was such that it was impossible for him to receive the treatment and attention in the county jail actually necessary to his recovery; that thereupon the sheriff and his deputies, with the knowledge and consent of the defendants, removed the wounded prisoner, who was then expected to live only a short time, to the residence of the plaintiff, which was about one-fourth of a mile from the place where the prisoner was shot, and that the sheriff then requested the plaintiff to give the prisoner such treatment, nursing and medicines as his condition required. It was alleged that the plaintiff, at the instance and request of the sheriff, took charge of and attended upon and nursed the prisoner from the 25th day of November, 1883, till the 25th day of February, 1884, dui’ing which time he furnished and provided fuel for the benefit of the prisoner and beyond what was necessary for the personal use of the plaintiff, of the value of $12, and that he expended for medicines' and remedies for the prisoner the sum of $118.65, which it is alleged were necessary, and were prescribed by the attending physician; and that he attended and waited upon the prisoner -for the period of ninety days, and that his services were necessary and reasonably worth $3 per day, and of the- aggregate value of $270, after which time the sheriff again took charge of the prisoner and conveyed him to the county jail. He alleges that the articles furnished, money expended, and services rendered, were necessary for the recovery of the prisoner, and were furnished, expended and rendered at the request of the sheriff, and with the knowledge, consent and approval of the defendants; that in 1884 Cyrenius B. Hendricks was convicted of murder in the first degree, and sentenced to suffer death, and that he is now in the penitentiary awaiting the execution of that sentence; that Cyrenius B. Hendricks has no estate, property or means of any kind to pay the plaintiff’s claim, and that he will lose the same unless it is paid by Chautauqua county; that on the 5th day of January, 1885, the plaintiff duly presented his claim to the county commissioners for allowance, which was rejected, and he avers that it is now due and unpaid. The defendant board demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action against it. The demurrer was sustained by the court, and the plaintiff is prosecuting this petition in error to reverse that .ruling.
The facts stated in the petition fail to show a liability of the county of Chautauqua in favor of the plaintiff. The statute provides that jails shall be established and kept in every county, at the expense of the county, for the safe-keeping of the prisoners lawfully committed. The sheriff of the county is required to keep the jail, and is responsible for the manner in which it is kept, and he is required to supply the prisoners with proper food and drink at the expense of the county. (Comp. Laws of 1879, ch. 53, §§ 1, 3, 10.) In another chapter the liability of the county for the boarding and lodging of prisoners is fixed and limited. The sheriff is allowed forty cents per day exclusive of fuel, lights, furniture and bedding, where a jail is provided, and sixty cents per day where no jail is provided. (Laws of 1881, ch. 107, § 1.) The county commissioners are not compelled to allow or pay more than the fees above named for everything included within the terms “ boarding and lodging,” nor is the county liable to any other officer or person for the same than the sheriff. The duty and responsibility of keeping the jail and supplying and caring for the prisoners, is devolved by law upon the sheriff. The care and safe-keeping of the prisoners are committed to him, and in regard to their board and lodging the board of county commissioners deals only with him. The only statute authorizing the payment of compensation by the county board provides that it shall be paid to the sheriff, and to him alone is the county liable for supplying board and lodging for the prisoners. (Comm'rs of Atchison Co. v. Tomlinson, 9 Kas. 167.)
It appears that the prisoner was held and cared for by the plaintiff at the request of the sheriff, outside of the jail, although there was a jail at the county seat. "Where the jail is over-crowded or insufficient, or where for some other good reason the prisoner cannot be properly kept and supplied in the jail, as was the case here, he may be temporarily held and supplied outside of the jail. In such a case the county would doubtless be liable for the statutory compensation. Where the' jail is insufficient for the safe-keeping of prisoners, the sheriff may employ such guards as are actually necessary, and for the service of such guards “the board of county commissioners shall allow the sheriff reasonable compensation, to be paid out of the county treasury.” (Laws of 1881, ch. 107, §1.) The liability of the county for the services of these guards, or for the temporary restraint and maintenance of the prisoners outside of the jail, is to the sheriff, and therefore while the sheriff has a right to claim compensation for holding and supplying the prisoners outside of the jail, the plaintiff has not.
The items of the plaintiff’s account, and for which he sues,, do not fall within the service and supplies of which mention has been made, and which are to be furnished by the sheriff as board and lodging. There is another section, however, which does include them. It reads as follows:
“Whenever the tribunal transacting county business of any county in which the offender shall have committed any crime for which he is imprisoned, may be satisfied of the necessity of so doing, they may make an allowance for ironing the prisoner, and may allow a moderate compensation for medical services, fuel, bedding and menial attendance for any prisoner, which shall be paid out of the county treasury.” (Crim. Code, § 331.)
Under this authority, the tribunal transacting county business may make an allowance for medical services, fuel, bedding, and menial attendance furnished for prisoners to any person who furnishes the same, and n°t conned to dealing with the sheriff alone. The authorization of or allowance for such services is, however, discretionary with the board. The board “may allow a moderate compensation ” when it is “ satisfied of the necessity of so doing.” The county cannot be held liable because the service and supplies were furnished upon the request of the sheriff; nor by reason of the individual consent or action of the members of the county board. (Roberts v. Comm’rs of Pottawatomie Co., 10 Kas. 29.) The liability of the county can only arise upon an order made by the county commissioners duly convened and acting as a board. The petition alleges, it is true, that the prisoner was placed by the 'sheriff in charge of the plaintiff, with the knowledge and consent of the county commissioners, and that the supplies were furnished and the services rendered by the plaintiff at the request of the sheriff, and with the knowledge, consent and approval of the county commissioners. This is insufficient to bind the county. It is nowhere alleged that the county board consented that the plaintiff should be employed or should furnish the supplies at the expense of the county. Physicians and nurses might have been employed and medicines furnished at the instance of the sheriff, the compensation to be paid by the prisoner or by his friends, and the consent of the commissioners to such action would of course create no liability against the county. According to the petition, the only formal presentation of the matter to the county board was when the claim was presented in January, 1885, at which time the board, as it had the option and right to do, refused to make the allowance and rejected the claim. It is clear that the petition as it now stands does not state a cause of action in favor of the plaintiff and against the county, and the ruling of the court in sustaining the demurrer must therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Two cases, arising substantially out of the same facts, have been presented to this court. It appears that on February 12, 1885, a prosecution was commenced before the police judge of the city of Miltonvale, a city of the third class in Cloud county, in the name of the city, and . against S. C. Lanoue, for an alleged violation of a city ordinance prohibiting the sale of intoxicating liquors. The com plaint contained two counts. The defendant was tried and convicted on both counts, aqd afterward appealed to the district court, where he was again tried and convicted on both counts; and it was adjudged that—
“He pay a fine of $100 on the first count in said complaint, and a fine of $100 on the second count in said complaint, and the costs of this prosecution, taxed at $281.20, and that he stand committed to the jail of Cloud county, Kansas, until the amount of said fine and costs shall be paid; and hereof let execution issue.”
The defendant then appealed to the supreme court, and completed his appeal on July 21, 1886, by filing in the supreme court a transcript of the proceedings of the courts below. On July 27, 1886, the defendant applied to the supreme court for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty by Edward Marshall, sheriff of Cloud county, Kansas,'in pursuance of the foregoing judgment and order. The writ of habeas corpus prayed for was allowed and issued, and the sheriff made a return thereof, admitting that he restrained the defendant of his liberty in pursuance of said judgment and order up to July 27, 1886, when he released him from his custody, in pursuance of an order from the supreme court.
The defendant now claims, (1) that the court below erred in ordering that he be committed to the county jail, and indeed he claims that the court below had no jurisdiction to make any such order; and he further claims, (2) that even if the court below had jurisdiction to’ make any such order, and even if the order when made was valid and proper, still that when the defendant appealed to the supreme court, the appeal had the effect to suspend such order, and indeed to suspend the entire judgment of the district court pending the appeal, and that the defendant was then entitled to be discharged from custody until the appeal should be determined, and finally unless the judgment of the district court should be affirmed.
We shall consider the last question first. We think the defendant is entitled to be discharged from custody pending his appeal in the supreme court. We have previously had occasion to examine this question, and have decided it in other cases, although no written opinion has ever before been delivered. Where the payment of a fine and the costs of suit are imposed upon the defendant, it is always the duty of the trial court to order “ that the defendant stand committed to the'city prison, or the jail of the county in which the judgment is rendered, until the judgment is complied with.” (Laws of 1879, ch. 84, §1; Comp. Laws of 1879, ¶ 943. See also Crim. .Code, §251; also Comp. Laws of 1879, ch. 83, ¶ 4876.) And always where an appeal is taken in such a case, the judgment itself with regard to the fine and costs is suspended pending the appeal. (The State v. Volmer, 6 Kas. 379, 384.) Indeed it is a general rule that an appeal suspends the judgment or order appealed from, and everything connected therewith, unless the statute in express terms or by the clearest of implications provides otherwise; and there is no statute providing otherwise in the present case. In an ordinary criminal prosecution, where imprisonment is imposed upon a defendant as a part of the punishment, then the statute provides that there shall be no stay of the execution of the judgment pending the ap'peal. (Crim. Code, § 287 ) But there is no statute providing that there shall be no stay where the judgment imposes only a fine and costs. Hence a judgment imposing only a fine and costs must be stayed pending an appeal. And if the judgment for the fine and costs is to be stayed, it would seem to follow that all incidents thereof, all judgments or ordershaving for their object merely the enforcement of the judgment for the fine and costs, should also be stayed or be suspended pending the appeal. And clearly, we think, such is the case.
The imprisonment fixed by the trial court in cases of this kind is not for the purpose of punishment, but like the issuing of an ordinary execution, is resorted to merely as a means of enforcing the judgment for the fine and costs. (Comp. Laws of 1879, ch. 19a, ¶¶ 928, 943, 944; In re Boyd, 34 Kas. 573.) Now if the imprisonment in cases of this kind is resorted to only for the purpose of enforcing the judgment for the fine and costs, and if the judgment for the fine and costs is suspended pending the appeal, it would be improper during such suspension to imprison the defendant, or to issue an execution against him. It would be improper to imprison him for the purpose of requiring him to do something which for the time being he is not required to do. It would be improper to imprison him for the purpose of requiring him to pay a fine or costs when for the time being he could not legally or properly be required to pay the same. But if he should pay the fine and costs for the purpose of avoiding the imprisonment, then what would become of his appeal? Prom the time of such payment his appeal would be valueless. Pending the appeal in the supreme court, we think the entire judgment is suspended—that with regard to the imprisonment, as well as that with regard to the payment of a fine or costs. The doubt expressed in the case of In re Chambers, 30 Kas. 455, was there inserted in deference to the opinion of an able and learned district judge of this state; but after a careful examination of the entire question, we are of the opinion that there is not much room for such doubt.
The only other question presented in this case is, whether the court below erred in ordering that the defendant be committed to the county jail of Cloud county until the fine and costs adjudged against him should be paid. We do not understand that it is claimed by the defendant that the ordinance under which the defendant was convicted and sentenced is invalid or void; indeed, we think he admits that it is valid; and that it is valid we would refer to the case of Franklin v. Westfall, 27 Kas. 614. But the defendant claims that there was no authority for the court below to commit the defendant to the county jail; that if there was any authority to commit him at all, it was to the jail of the city of Miltonvale, and not to the jail of Cloud county. Now this is a question of but slight importance; for if the court below had the power to commit the defendant to the jail of the city, and not to the jail of the county, then we could order that the judgment of the court below be modified and corrected to that extent; but is not the judgment of the court below correct? It is true that § 66 of the act relating to cities of the third class, which took effect April 3, 1871, provides among other things that cities of the third class shall have the power to pass ordinances for the confinement of persons in the city prison who may fail to pay fines, forfeitures, etc., and does not mention the county jail. (Comp. Laws of 1879, ¶ 928.) And it is also true that the ordinance under which the defendant was convicted provided for the imprisonment of violators of the ordinance in the city jail, and did not provide for imprisonment in the county jail. But § 1 of chapter 84 of the Laws of 1879, which amends chapter 81 of the act relating to cities of the third class, and which took effect on March 15, 1879, provides, as already stated, that in cases of this kind “ it shall be pai’t of the judgment that the defendant stand committed to' the city prison or. the jail of the county in which the judgment is rendered until the j udgment is complied with ” From this section it clearly appears that the court in rendering the judgment has a discretion whether to commit the defendant to the city prison, or to commit him to ‘ A . the county jail; and this statute, being the last expression of the will of the legislature upon the subject, must govern; and we do not think that the city or the city council has the authority by ordinance or otherwise to take away this discretion from the court trying the cause. Besides, it does not appear that there was any city jail in existence at Miltonvale at the time the judgment in this case was rendered. From anything appearing in the case, there may not have been any such city jail; or if there was, then it may not have been in a suitable condition for the confinement of prisoners in it. In all probability, the court below exercised a proper judicial discretion in committing the defendant to the county jail, and therefore we cannot reverse or modify its judgment because of any supposed abuse of judicial discretion.
In the case brought to this court' on appeal, the judgment of the court' below will be affirmed.
Iu the habeas corpus case it is adjudged iu favor of the defendant that the imprisonment from July 21, 1886, to July 27, 1886, was illegal, and that from July 21, 1886, up to the present time the defendant has been entitled to his liberty; but, as the defendant’s appeal has now been determined and adjudicated against him, his right to his liberty has also terminated. From this time on, until the,fine and costs shall be paid, any imprisonment to enforce the payment of such fine and costs may be legal. The defendant will be remanded to the custody of the sheriff until such fine and costs are paid.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an action in the nature of quo warranto, brought by Joseph T. Ward to try the title to the office of justice of the peace of the city of Topeka, which office, he alleges, has been usurped and is unlawfully held by the defendant, H. S. Clark. The case has been presented here upon the defendant's demurrer to the petition of the plaintiff. From the petition it appears that J. M. Matheny wras elected to the office in question in April, 1885, and resigned it in August of that year. Immediately upon the resignation of Matheny, and more than thirty days preceding the general election in November, 1885, the defendant, H. S. Clark, was appointed by the goveimor to fill the vacancy caused by such resignation. At the general election held on November 3,1885, the plaintiff was voted for, and received the highest number of votes, for justice of the peace, to fill out the unexpired term for which Matheny was elected. The plaintiff claims the office by virtue of this election, contending that under the provisions of §11 of article 3 of the constitution, it was a proper election to fill the vacancy occasioned by the resignation of Matheny, while the defendant claims that the vacancy could not be filled by election until the regular city election held in April, 1886, and that he was.entitled to hold the office by virtue of the appointment of the governor until that time. The question raised by the pleadings has been practically determined by former decisions of this court. In §11 of article 3 of the constitution it is provided that “ In case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur, more than thirty days after such vacancy shall have happened.” , The phrase “next regular election,” found in the above provision, has been defined to be “ the next election held conformably to established rule or law,” and also “the regular - election prescribed by law for the election of a particular officer to be elected.” (The State, ex rel. Watson, v. Cobb, 2 Kas. 32; Matthews v. Comm’rs of Shawnee Co., 34 id. 606.)
It is true that the statute provided for the annual election of township officers at the general election held in November, 1886, (ch. 195, Laws of 1885,) and if the particular office in contest was a township office, or one to be filled at the annual township election, the contention of the plaintiff would be correct. But we must take notice of the fact that Topeka is a city of the first class, with a population in excess of fifteen thousand. In §48 of chapter 110 of the General Statutes of 1868, it is enacted that in cities having more'than two thousand inhabitants, justices of the peace shall be elected at the regular city election. This is a valid statute, and still remains in force. (Borton v. Buck, 8 Kas. 302; The State, ex rel., v. Farrell, 20 id. 214.) It-therefore furnishes the rule for determining the time when the vacancy in question should be filled, and settles it that the regular city ejeC£ion in qggg was the next regular election occurring more than thirty days after the resignation of Matheny; and therefore the defendant was entitled to hold the office as justice of the peace until that time, and until his successor then chosen had qualified. Nothing in the constitution requires that justices of the peace shall be elected at a general election, nor that all justices of the peace shall be chosen at the same election. The legislature has full power to classify the cities and townships of the state, and to prescribe that the .election of justices of the peace in cities of the first class shall be held at one time, in cities of the second class at another time, and in townships outside of such cities at still another time, or to make'any other like classification of the townships which it may deem proper. A law fixing the time for the election of justices of the peace in any such class, as has been done by said §48,- and which operates alike upon all townships coming within that class, is a general law, and not obnoxious to the constitutional requirement that all laws of a general nature shall have a uniform operation throughout the state.
It follows that no election for the office of justice of the peace could have been or was held in the city of Topeka at the general election in November, 1885, and therefore the demurrer of the defendant must be sustained.
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The opinion of the court was delivered by
Horton, C. J.:
The question in. this case is, whether the bail have been exonerated- from the obligation of the undertaking executed by them March 17, 1882. Judgment , was rendered against Knotts & Wallace -on April 8, 1882, and Knotts, who was released at the .time of the execution of the undertaking, has not rendered himself amenable to the process of the court below. It appears that he cannot be found in Sumner county. If the terms of the undertaking solely, controlled, the bail would be charged; but §§ 168, 169 and 170 of the code are very important in the consideration of this question. These sections are as much a part of the undertaking as if their terms were incorporated therein. Section 168 provides: “That the bail may surrender the defendant to the sheriff at any time before the return-day of the summons in an action against the bail;” and section 169 authorizes the arrest of the defendant by his bail, at any time, for the purpose of surrender. Section 170 further provides: “The bail will be exonerated ... by his [defendant’s] legal discharge, or his surrender to the sheriff of the county in which he was arrested.”
On March 22, 1882, the judge of the district court vacated the order of arrest on account of alleged insufficiency of the affidavit upon which the arrest was made. At the time of the vacation of the order of arrest, the plaintiff asked leave to make the affidavit sufficient, by amendment, but' leave was refused, the judge holding that he had no power at chambers to grant leave to amend. To this ruling the plaintiff excepted, and on March 20, 1883 — nearly a year after the discharge of the defendant—filed its petition in error in this court to review such ruling. On September 6,1883, the opinion of this court was handed down, reversing the' ruling of the district court, and remanding the case with instructions to the court to permit the amendment of the affidavit. No stay of the ruling of the district court was obtained by the plaintiff, and from ■ March 22, 1882, until September 6, 1883, the bail had no legal right to arrest or surrender the defendant; the sheriff had no right to hold him even for an instant, and had no right to accept his surrender from the bail; therefore the right to arrest and surrender their principal given by the statute to the bail as their security, was by the statute taken away when the defendant Knotts was discharged, on March 22, 1882. The sureties executed the undertaking signed by them, upon the faith of the provisions of the law that permitted them at any time to arrest and surrender the defendant. The discharge of the defendant, on March 22, 1882, exonerated the bail. At that time the defendant Knotts was entitled to his immediate discharge, and neither the bail nor the sheriff had any custody or control of him. (Duncan v. Tindall, 20 Ohio St. 567.)
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on two promissory notes and a mortgage. The notes were executed by William M. Ayres alone. The mortgage was executed (as it appears upon its face) 'by both Ayres and his wife, Melissa T. Ayres, and both the notes and the mortgage were executed to Richard Probasco. Probasco was the plaintiff in the court below, and Ayres and wife, Frank Sutter, and W. L. Challiss were the defendants. The defendant. Ayres and wife set up as defenses to the action that the notes were usurious, and the mortgage was void. The transactions connected with the execution and delivery of said notes and mortgage were, so far as they are necessary to be stated, substantially as follows: Mrs. Ayres owned, and she and her husband occupied as a part of their homestead, the W.J of the S.E.J of section 18 in township 4, of range 21 east, in Doniphan county, less ten acres out of the southwest corner of said land. Said land was mortgaged to one A. B. Symns, who was foreclosing his mortgage in the district court of Doniphan county, and the land was about to be sold to ■satify said Symns’ mortgage. B. O’Driscoll was the attorney for Ayres and wife in said foreclosure suit. In order to save their land from being sacrificed, Ayres and wife concluded to try to borrow the money and pay off the mortgage. O’Driscoll acted as their agent in attempting to procure and negotiate the loan. He had an interview with W. L. Challiss, of Atchison, about the matter, and from what transpired they all expected to borrow the money of Challiss. They expected to borrow $1,000, and to pay interest thereon at the z’ate of fifteen per cent, per annum. O’Driscoll furnished an ordinary printed blank mortgage, and Ayres and wife signed and acknowledged the same before E. W. Stratton, a justice of the peace of Doniphan county. O’Driscoll and Ayres then took said blank mortgage to Atchison, and went to the office of said W. L. Challiss. Challiss however was not loaning money for himself, but was loaning money for Richard Probasco, of Maryland. He required a greater rate of interest than fifteen per cent, per annum. O’Driscoll and Ayres finally agreed to the terms proposed by Challiss, and Ayres executed his two promissory notes which read as follows:
“$550.00. Atchison, Kas., Dec. 1,1871.
“ One year after date I promise to pay to Richard Probasco, or bearer, five hundred and fifty dollars, value received, payable at Exchange Bank, with interest at 12 per cent, per annum from date until paid, and payable semi-annually.
“William M. Ayres.”
The other note is precisely the same as the above, except that it is made payable in “two years after date,” instead of in one. The two notes together amounted to $1,100. O’Dris coll and-Challiss then filled up the said blank mortgage so as to make it correspond with said notes, and so as to make it a security for the payment of said notes, O’Driscoll doing the principal part of the writing. They filled up the blank for the description of the land with the same land that hád prior to that time been mortgaged to Symns; and they made Probasco the mortgagee. ■ The notes and the mortgage were then delivered to Challiss, as the agent of Probasco, and in consideration therefor Challiss paid Ayres $1,000, and only $1,000. Ayres, being present all the time, agreed to all that was done/ and ratified and qonfirmed the same. He therefore has no right to raise any question of mere irregularity in the execution of said mortgage. But the question of the execution of said mortgage is one of power, and not a question of mere irregularity, as we shall presently see. After Ayres received said money from Challiss he paid off the mortgage to Symns therewith. The notes and the mortgage to Probasco are the instruments upon which the present suit is brought.
Ayres and wife now claim that said mortgage is void, and that said notes are tainted with usury, and these are the main questions in the case. It is true that a vast number of other questions are raised, but they are mainly technical and frivolous. For instance, the first question raised, , ' (both iu tms court and in the court below,) is# upon the ground that the court below allowed the plaintiff to ask O’Driscoll a leading question. Five such questions are raised in this court, and seven such questions were raised in the court below. Indeed, the defendants even objected to the plaintiff asking the defendant Ayres a leading question, although it was asked in a legitimate cross-examination of said Ayres. We have already stated something of the connection which O’Driscoll had with the transactions out of which this cause of action arose. O’Driscoll was also the attorney for Ayres and wife in this case in the court below. He was called as a witness for the plaintiff below. He did not show himself to be a “fast witness” for the plaintiff, but on the contrary plainly showed himself to be obviously the reverse. Yet notwithstanding all this, seven different questions that were put to him by the plaintiff were objected to-by the defendants on the ground that they were “leading.” Some of them were leading; but still there was scarcely the remotest possibility that the witness could be led, either from inclination on his part or from inadvertence, into testifying too favorably for the plaintiff. His evidence abundantly shows this. The court therefore did not err in permitting leading questions to be put to him. Indeed, it possibly would have been an abuse of judicial discretion if the court had refused to permit such questions to be aske^l.
We will now pass from the many immaterial and unsubstantial questions raised by the defendants below to the more material ones. The whole of the transactions out of which this cause of action arose, were oarrie(j on anc[ consummated on the part of Probasco through his agent Challiss. Therefore, whatever came to the knowledge of Challiss, pending the negotiations for said loan, must be presumed to have come to the knowledge of Probaseo. Notice to the agent is notice to the principal, in such a case. Greer v. Higgins, 8 Kas., 519; 1 Parsons on Contracts, 74. And delivery of the notes and mortgage to Challiss, was delivery to Probaseo. Challiss was really standing in the place of Probaseo in every particular.
Were said notes usurious? Certainly they were. Only $1,000 was loaned, although the notes were given for $1,100. And while under our statutes the highest rate of interest allowed to be contracted for is’ only twelve per cent, per annum on the amount of the debt or loan, yet in this case interest at the rate of twelve per cent, per annum was contracted for on an amount greater than the amount loaned. Twelve per cent, interest on $1,100 is more than twelve per cent, interest on $1,000. Twelve per cent, interest on $1,100 is equal to thirteen and two-tenths per cent, interest on $1,000. In 1871, when these notes were executed, all interest was forfeited if the parties contracted for more than the highest rate of interest allowed by law. (Gen. Stat., 526, ch. 51, §4.) And the laws in force, when these notes were executed is the law that now governs, although a subsequent law (Laws of 1872, page 284,) has been passed by the legislature. (Jenness v. Cutler, 12 Kas., 500, 510 to 512.)
Is said mortgage void? We are reluctantly compelled to answer this question in the affirmative. Mrs. Ayres never executed said mortgage. She signed and acknowledged a paper, but this paper in legal effect was nothing. It was just such a blank mortgage as mav be purchased at almost any printing office for a few cents. At the time 'she signed and acknowledged the same she had never heard of Richard Probasco. She did not expect the mortgage to be so filled up as to make him the mortgagee. Nor did she expect to have it filled up so as to make it a security for the payment of any sum greater than $1,000. She expected to have the mortgage filled up so as to make W. L. Challiss the mortgagee, and so as to secure the payment of just $1,000. This it may be said she authorized to have done. But even this-authority was given by her only by parol. She never authorized in writing any portion of said mortgage to be filled up. It was therefore not her mortgage, even when filled up. An estate in land is usually transferred by deed. An interest in land less than an estate may probably be transferred by, a simple contract in writing. But no interest in land, if it is to continue for more than one year, whether it be an estate or less than an estate, can be transferred except in writing or by operation of law. (Statute of Frauds, Gen. Stat., 505, ch. 43, § 5.) And if the transfer is to be made through an agent, the agent must be authorized in writing; (Id.) It is true, an owner of real ° ' ' ' estate may by parol authorize an agent to make a simple contract concerning such real estate which will bind the owner personally; (Rottman v. Wasson, 5 Kas., 552;) but in such a case no interest in the land is transferred from the owner to the agent, or from the agent to the person with whom the agent contracts. No interest in the land passes from the owner to any one, and the person with whom the agent contracts gets no interest in the land. If the contract is broken by the owner, the remedy of the other party is an action against the owner personally, either for the specific performance of the contract, or for damages. There is a vast difference between authorizing an agent to transfer an interest in land, and authorizing him to make a contract which will have the effect to compel the owner of the land personally to transfer at some future time such interest. The agent cannot be authorized to do the first by parol: (see said § 5 of the Statute of Frauds.) But he may be authorized to do the second by parol: (Rottman v. Wasson, supra.) Now, a mortgage of real estate, although it may not be technically an estate in land, yet it certainly is an interest in land. It is in form a conveyance, and is in fact, a lien that may be paramount to any subsequent conveyance, lien, or incumbrance. It is an incipient and conditional alienation of the estate that may eventually overturn and destroy the homestead interest of the mortgagor, and may wholly absorb and swallow up every other right or interest which he may have in the mortgaged premises. It is indefinite in its duration. It is coexistent and co-extensive. with the debt which it is made to secure; and nothing but the extinguishment of the debt will destroy it. In the present case, one of the notes which the mortgage was made to secure, was to run two years before it became due. Therefore, as a mortgage of real estate creates an interest in the land of indefinite duration, even if Mrs. Ayres had authorized O’Driscoll or her husband by parol to fill up said blank mortgage, as it afterward was filled up, the authority would have been void. Upon this proposition the authorities in the different states' are conflicting; or at least, the law upon this subject is different in the different states, as shown by the decisions thereof. But the great preponderance of authority, both in this country and in England, lays down the doctrine as we have stated it. See the following authorities: Burnes v. Lynde, 6 Allen, 305; Preston v. Hull, 23 Grattan, 600; People v. Organ, 27 Ill., 27; Ingram v. Little, 14 Geo., 173; Upton v. Archer, 41 Cal., 85; McMurtry v. Frank, 4 Monroe, 435; Cummins v. Casserly, 5 B. Mon., 75; Williams v. Crutcher, 5 How., (Miss.) 71; Mosby v. State of Ark., 4 Sneed, (Tenn.) 324; Graham v. Holt, 3 Iredell (N.C.) Law, 300; Byers v. McClanahan, 6 Gill & J., 250; Blood v. Goodrich, 9 Wend., 68; 12 Wend., 525; Worrell v. Munn, 5 N. Y., 229, 239; Cross v. State Bank, 5 Pike, (Ark.) 525; Ayers v. Horness, 1 Ohio, 368; Perminter v. McDaniel, 1 Hill, (S.C.) 267.
Is Mrs. Ayres estopped from denying that said mortgage is her mortgage? We think not. This case is obviously dissimilar from the case of Knaggs v. Mastin, (9 Kas., 532, 548, et seq.) It may be just as immoral for Ayres and wife to claim that their mortgage is void, as it was for Knaggs and wife to claim that their deed was void; but still there are distinctions between the two cases which render them very dissimilar from each other. The instrument in this case was not filled up as Mrs. Ayres had directed that it should be filled up, while the instrument in the other case was filled up just as Mrs. Knaggs had directed. And the mortgagee in this case, through his agent Challiss, was perfectly cognizant of all the facts connected with the execution of the mortgage at the time the mortgage was delivered to him, and at the time he parted with his money, while the grantee in the other ease was wholly ignorant of all the irregularities in the execution of said deed at the time the deed was delivered to him, and at the time he parted with his money, and for a long time afterward. Both Mrs. Ayres and Mrs. Knaggs enjoyed the benefit of the money, or a portion thereof, procured by means of their respective instruments, and in this respect only (so far as any foundation for equitable estoppel is concerned,) are the two cases similar. But merely enjoying the benefit of money, procured irregularly and wrongfully, is not of itself a sufficient ground upon which to found an equitable estoppel, so as thereby to make what would otherwise be a void deed or mortgage a valid instrument. A party invoking the aid of estoppel must himself show that he has been vigilant and careful in the protection of his own rights and interests. Where a person negligently or knowingly puts it within the power of some other person to swindle and defraud him, and he is thereby swindled and defrauded, he is generally allowed to suffer the consequences of his own negligence and folly. Neither the courts nor the law can undertake to protect men of sound mind from all the consequences of their own negligence and follies. The rule of estoppel in pais will be found stated in the case of Clark v. Coolidge, 8 Kas., 189, 196. Mr. Probasco ought to have said, through his agent Challiss, when O’Driscoll and Ayres desired to borrow said money from him, and offered to deliver said mortgage to him, “I know that mortgage is void, as a mortgage of Mrs. Ayres; I will therefore not receive it. You must furnish me a better' mortgage if you want the money.”
If said mortgage had been on the property of Ayres, and on any other property than the homestead of Ayres and wife, it would have been valid as to Ayres, although void as to his wife. But this mortgage was on the property of Mrs. Ayres, and on property occupied as the homestead of herself and husband. Is the mortgage therefor valid as to Ayres, (the husband,) or is it absolutely void? We think it is absolutely void. (Const. of Kas., art. 15, § 9; Morris v. Ward, 5 Kas., 239; Dollman v. Harris, 5 Kas., 597.) A mortgage is a contingent alienation of the mortgaged premises. It is a lien thereon that may finally engulf and swallow up the whole estate. And such alienation ctm only be effected, and the lien created, by the joint consent of the husband and wife. (Const., art. 15, § 9, and cases above cited.) Now as Mrs. Ayres did not give her consent to said mortgage, it is void as to her; and, being void as to her, it must also necessarily be void as to her husband, there being no joint consent of the husband and wife. This virtually leaves Probasco without any security on his notes, so far as the case is now presented to us. It is true, that Challiss received from Ayres, as collateral security, two other notes, given by Lloyd McNamee to Ayres on the purchase by McNamee of another portion of the Ayres homestead, which notes were merely delivered to Challiss without indorsement, (McCrum v. Corby, 11 Kas., 465, 470.) And as Ayres and wife had never made a deed to McNamee for the premises, Ayres made a deed to Challiss therefor, in order to enable Challiss to make a deed to McNamee for the premises, and then to collect the McNamee notes. But as this deed was executed by Ayres alone, and for a portion of his homestead, it was also void. And.as Ayres and wife now refuse to make a good deed to either Challiss or to McNamee, or to any one else on said sale to McNamee, said collateral security may not be worth very much. As McNamee was not made a party to this suit, and as there has not been any sufficient showing as to whether Ayres and wife could.be compelled to make a good deed .for said premises to McNamee, we cannot tell whether Challiss and Probasco may have said premises sold to satisfy the McNamee notes and the proceeds thereof applied in payment or part payment of the notes given by Ayres to Probasco. (Stevens v. Chadwick, 10 Kas., 406.) The only judgment that could be rendered in this case in favor of Probasco, as the case is now presented to us, would be a personal judgment against William M. Ayres for the amount of the first note, without interest. Perhaps however, upon a second trial, with the pleadings amended, and other evidence introduced, and other findings made, other and additional relief may be granted to the plaintiff Probasco.
The judgment of the court below will be reversed, and cause remanded for a new trial.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
An affidavit made by an agent of another verifying a statement of a claim filed with the clerk of the district court under section 3 of the mechanic’s-lien law of 1871, (Laws of 1871, page 254,) for the purpose of procuring a mechanic’s lien on certain real estate, should be sworn to positively. (See Atchison v. Bartholow, 4 Kas., 124; Ex parte The Bank of Monroe, 7 Hill, 177.) An affidavit for such a purpose, made by such an agent, stating that “the facts as above set forth are true and correct, according to the best of his [the agent’s] knowledge and belief,” without showing that he had any knowledge upon the subject, is not sufficient.
Where an affidavit made in such case is defective, it can be amended only by attaching a sufficient affidavit to the statement within the time allowed by law for filing the statement with the clerk. Code, § 139.-
It is error to tax attorney-fees in a foreclosure suit unless the mortgagor has stipulated to them. (Coburn v. Weed, 12 Kas., 182; Foote v. Sprague, 13 Kas., 155.)
This case will be remanded to the court below with the order that the judgment of the court below be modified by striking out the amounts allowed as attorney-fees to A. Crozier & Co., and to V. C. Jarboe. In other respects 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
Price, C. J.:
This is a workmen’s compensation case. Respondent-employer and its insurance carrier have appealed from a lump-sum judgment entered pursuant to K. S. A. 44-512a.
The specific questions will appear as the facts are related.
Claimant workman sustained a compensable accidental injury on August 22, 1966. An award was entered on October 14, 1966, based on temporary total disability and it provided for weekly payments of $42.00 for 415 weeks. Respondents were further ordered to furnish medical treatment by Dr. Reiff Brown in an amount not to exceed $6,000.00.
No question is raised as to the propriety of the award.
K. S. A. 44-512a. provides that if any compensation awarded or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and written demand for payment has been made and payment of such demand is thereafter either refused or not made within 20 days from the date of service of such demand, the entire amount of compensation awarded shall become immediately due and payable and the employee or other person entitled thereto may maintain an action for the collection of such amount.
On October 25, 1966, claimant, through his counsel, made written demand on respondents for “payment of all compensation and all other obligations under the award” of October 14,1966.
This action was filed on January 13, 1967. On May 8, 1968 the court found that all medical charges of Dr. Brown due on the date of the demand were not paid within 20 days thereafter, and entered judgment for claimant in the full amount then found to be due— $15,225.00. This appeal followed.
Disposition of this case depends upon the construction to be placed on Dr. Brown s charges as shown on a statement rendered by him which appears as Exhibit B in the record.
This statement lists charges totaling $173.00 with a credit of $23.00 for a payment made on October 24, leaving a balance due of $150.00 as of October 25 — the date of the demand. The record further shows that on November 7 — which was within the 20-day period — respondents paid to Dr. Brown, $127.00 — which, according to claimant — left a balance due of $23.00 — and it is contended this came about because respondents erroneously took credit a second time for the $23.00 payment of October 24.
Although immaterial to the case, it should be stated that an additional $10.00 charge was made on November 18 which increased the balance due to $33.00. This amount was paid in full on December 6, which was after the 20-day period had expired.
In support of the trial court’s judgment that all charges of Dr. Brown were not paid in full within 20 days after the demand, claimant contends the statute (K. S. A. 44-512a.) is to be strictly construed and that mistake or inadvertence is no defense (Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 664, 665, 313 P. 2d 267).
Respondents — on the other hand — contend that except for a $20.00 charge, all other bills of Dr. Brown were not received by them until after their receipt of the demand for payment. Their other contention concerns the item of “deposition expense”.
The statement rendered by Dr. Brown and heretofore referred to as Exhibit B, included a $50.00 charge for his deposition taken on October 6, 1966. The award of October 14 was based largely upon the medical testimony as to claimant’s injuries contained in this deposition. We believe the fact to be immaterial — but the record does not show at whose instance the deposition was taken.
As here material — K. S. A. 44-510, which fixes the amount of compensation to be awarded in a given case — provides that it shall be the duty of the employer to provide the services of a physician or surgeon, and such medical, surgical and hospital treatment, including nursing, medicine, medical and surgical supplies, ambulance, crutches, apparatus, and so forth, as may reasonably be necessary to cure and relieve the workman of the effects of his injury, but that the cost thereof shall not be more than $6,000.00.
K. S. A. 44-553 and 44-554 have reference to witness fees and the taking of depositions in proceedings before the workmen’s compensation director.
K. S. A. 44-573 provides that the director may adopt and promulgate such rules and regulations as he shall deem necessary for the purposes of administering and enforcing the provisions of the workmen’s compensation act. Pursuant to such authority, Rule 51-9-7 of the director, relating to “Medical fee schedules”, includes (9078) a charge for “appearance in court for expert testimony”. (In passing — we see no material distinction between a doctor testifying by deposition and appearing in open court.)
The rule is that the furnishing of medical aid to an injured employee is payment of compensation within the meaning of the act, and that an award providing for payment of medical expenses for the care and treatment of an injured employee is an award of compensation as that term is used in K. S. A. 44-512a. to the same extent as the provision in the award for weekly payments of compensation (Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168).
This leads, then, to the question whether the deposition fee of $50.00 charged by Dr. Brown falls within the scope of K. S. A. 44-510 providing for the furnishing of medical treatment to an injured workman. In other words — is such a fee to be considered as “compensation” — the nonpayment of which would support an action under K. S. A. 44-512a. for a lump-sum judgment?
In our opinion it is not.
With respect to the director’s Rule 51-9-7 above referred to— it appears merely to be a “medical fee schedule” adopted and promulgated pursuant to a further provision of K. S. A. 44-510 to the effect that all medical charges shall be fair and reasonable and subject to regulations by the director.
This decision is not to be construed as holding that respondents were not liable for the payment of costs — including witness (deposition) fees — in the hearing before the director (examiner). That question is not before us. The extent of our holding is that the deposition (witness) fee of the doctor was not a charge for “medical treatment” within the meaning of K. S. A. 44-510 and therefore was not “compensation”. Respondents’ failure to pay such charge in full within the 20-day “demand” period therefore did not provide a basis for bringing an action under K. S. A. 44-512a. for a lump-sum judgment.
Application of what has been said brings about this obvious result—
As of October 25, 1966 — the date of the demand — there was a balance of $150.00 due to Dr. Brown. Included in that balance, however, was the $50.00 charge for his deposition. Deducting that amount left a balance of $100.00 for medical treatment such as office and hospital calls, examinations, and the like. On November 7, 1966, respondents paid to the doctor $127.00. Therefore — all charges for medical treatment (compensation) owed as of the date of the demand — were paid within 20 days from the date thereof. The requirements of K. S. A. 44-512a. being complied with — there was no basis for the bringing of this action under that statute.
The judgment is therefore reversed with directions to vacate and set it aside. | [
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The opinion of the court was delivered by
Fontron, J.:
When, in the year 1923, Frank Bauman took Bertha Frame as his second wife, it is doubtful that either party could have foreseen the tempest which would rage over their wordly possessions, once they had finished with them. The record presently before us mirrors the violence of the storm that has ensued.
This action was filed by Frank Frame, Bertha’s brother, as the administrator of her estate. The defendants are two brothers, the only sons of Frank Bauman, and stepsons of Bertha. The plaintiff administrator seeks to set aside certain conveyances made by Bertha to her stepsons after Frank’s death. The trial court, after a lengthy hearing, entered judgment in favor of the defendants, Marion and Boyce Bauman, and the administrator has appealed.
Although the evidence was highly conflicting for the most part, many of the facts forming the background of this lawsuit were not in dispute.
Bertha had no children of her own, while Frank, at the time of his marriage to Bertha, had two boys from a former marriage, Boyce and Marion, then approximately eight and six years of age. The marriage was apparently a happy and successful one. Bertha made a good home for Frank and the two boys, caring for the boys like a mother. Both boys called Bertha “Mom” and we think it is evident from the record that relations between Bertha and her stepsons were close and affectionate.
Frank Bauman died testate on March 11, 1964. Under his will, to which Bertha had consented, Bertha took approximately one-third (%) of the estate in value, and Frank’s two sons took the remaining two-thirds in approximately equal shares.
On July 19, 1965, Bertha died intestate, leaving an estate consisting of an 80-acre farm in Barber County, which she owned at the time of her marriage to Frank, together with bonds and cash in an undisclosed amount. The record indicates Bertha’s gross estate to be slightly over $40,000.
The three transactions which gave rise to this lawsuit took place after Frank’s death in the following sequence:
Frank Bauman owned an interest in certain Texas real estate which originally had belonged to his father. Under Frank’s will, a one-half interest in this property passed to Bertha and the other half to Boyce and Marion, jointly. On April 25, 1964, Bertha entered into a written agreement in which she agreed to convey her interest in the Texas land to Boyce and Marion in consideration of their agreement to pay her their share of the oil and gas royalties, in addition to her own, so long as she lived. Royalty payments from the entire property amounted to some $210 per month. Pursuant to this agreement, Bertha conveyed her interest in the fee, and the oil royalty payments going to Bertha are presently a part of her estate.
Under date of July 13, 1964, Bertha conveyed to Boyce and Marion Bauman, by duly executed warranty deeds, eighty (80) acres of land in Reno County, Kansas, one hundred sixty (160) acres in Pratt County, Kansas, and three hundred twenty (320) acres in Baca County, Colorado, for the sum of $21,500, and reserving unto herself a life estate in all three pieces of real estate.
The final transaction occurred October 21, 1964, when Bertha purchased a house in Turón, Kansas. Title to this property was conveyed by the seller to Bertha E. Bauman and Marion R. Bauman as joint tenants.
Highly summarized, the plaintiff’s petition alleges that between the dates of Frank’s and Bertha’s deaths, Bertha, who was approximately 78 years of age, was in poor physical and mental condition, having previously spent two periods in the Larned State Hospital; that Marion Bauman took charge of Bertha’s affairs, and made all decisions of consequence; that Bertha became wholly dependent on Marion and a confidential relationship came into being between them which existed at all times during which the transactions heretofore noted took place; that all of the conveyances were obtained from Bertha through undue influence and overreaching; that the consideration for all the conveyances was inadequate and that Bertha was not afforded independent advice in connection with the transactions. The plaintiff prayed for cancellation of the deeds, for a reconveyance of the properties, and for an accounting.
For their answer, the defendants admitted the conveyances, denied any undue influence, harassment or misrepresentation, and alleged that the conveyances were made for valuable consideration and according to Bertha’s wishes.
The case was tried to the court, and consumed four days time. At its conclusion the trial court entered extensive findings which so far as need be set out at this point may be summed up in this wise: that Bertha was mentally competent and of sound mind at all times involved in this action; that a confidential relationship existed between Bertha Bauman and the defendant, Marion Bauman; that the defendants had the burden of showing all the conveyances were knowingly made, and were not induced by undue influence; that the defendants’ evidence met such burden and overcame the presumption of undue influence in this case; that all conveyances were freely, voluntarily and knowingly made by Bertha Bauman, who was satisfied with what she had done and that she never took any overt action during her lifetime to set aside or retract her actions.
The court concluded by finding generally in favor of the defendants and against the plaintiff. We will have occasion to refer to specific findings, not summarized above, later on in this opinion.
During his case in chief, the plaintiff called Marion Bauman as his witness, and examined him. He now complains, as his first point on appeal, that defense counsel was permitted to cross-examine Marion concerning matters not touched on direct examination. We have carefully examined both the direct and cross-examination, and while the latter may have gone beyond the direct in a few instances, we cannot say the trial court abused its discretion in overruling objections to the cross-examination, or that any prejudice is shown to have resulted therefrom to the plaintiff.
This court has held in general that a good deal of latitude should be afforded in the cross-examination of witnesses; that the trial court is vested with discretion in determining the scope thereof; and that its rulings on objections interposed to questions asked on cross-examination will not be disturbed in the absence of a showing that its discretion has been abused. (State v. Carter, 148 Kan. 472, 83 P. 2d 689; State v. Stewart, 179 Kan. 445, 296 P. 2d 1071; State v. Greenwood, 197 Kan. 676, 684, 421 P. 2d 24.)
Although plaintiff asserts that Marion was called solely to identify exhibits and to establish the existence of a confidential relationship between himself and his stepmother, his testimony on direct examination concerned matters which lay at the very heart of this lawsuit; it opened more doors than plaintiff may have realized or bargained for. In the early case of Schuster, Tootle & Co. v. Stout & Wingert, 30 Kan. 529, 2 Pac. 642, the syllabus reads, in part:
“It is a general proposition that a cross-examination may extend to all matters drawn out on the direct examination. . . .” (Emphasis supplied.)
In the recent case of Humphries v. State Highway Commission, 201 Kan. 544, 442 P. 2d 475, this court cited Schuster with approval. We also quoted, in the Humphries opinion, a passage from 58 Am. Jur., Witnesses, § 632, p. 352, reciting in substance, that when direct examination has opened up a general subject, the cross-examination may go into any phase thereof and may extend to the entire subject matter; it is not restricted to the identical details developed on direct examination or the specific facts testified to in chief.
The record discloses no abuse of discretion. But even though the cross-examination could be said to have exceeded proper limits, there is no showing of prejudice to the plaintiff. (Minx v. Mitchell, 42 Kan. 688, 22 Pac. 709; Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120.)
The plaintiff further complains that the trial court refused to permit inquiry into alleged irregularities in Marion s administration of his father’s estate. We discern no error in this respect. Marion’s final account had been approved by the probate court and an order of final settlement entered. No appeal was taken from that order and it is not subject to collateral attack. (Middendorf v. Kansas Power & Light Co., 166 Kan. 610, 203 P. 2d 156.)
It is urged, however, that evidence of discrepancies occurring in the administration of Frank Bauman’s estate, if proved against Marion, would be admissible under the provisions of K. S. A. 60-455 as tending to show motive, opportunity, intent, preparation, plan, etc. We are not impressed with this argument. In the first place, we are not convinced that irregularities in the administration of Frank’s estate are sufficiently similar in character to the alleged exercise of undue influence upon Bertha to come within the purview of 60-455. Moreover, we believe the general rule to be as stated in 32 C. J. S., Evidence, § 578, p. 703:
“The trial court has a wide discretion with respect to the admission of evidence of similar acts or occurrences as proof that a particular act was done, or that a certain occurrence happened.”
We are aware that the admission of evidence of this character may involve the practical inconvenience of trying collateral issues which protract the trial and that it may, also, surprise the opposing litigant to his prejudice. In exercising its discretion in this area, the trial court must consider not only the extent of similarity, and the presence or absence of modifying conditions, but the foregoing possibilitions, as well. We believe that no abuse of discretion is shown.
Objection is next made to the trial court’s finding that Bertha was mentally competent and of sound mind at all times material to this action. In support of this objection the plaintiff says he never contended otherwise. He should examine his own petition and read the record of trial. In paragraph three of his own pleading he depicts Bertha as “of a very questionable mentality, having spent two periods of time previously in the Larned State Hospital for the insane.”
The record is full of references to Bertha’s stays at the State Hospital, In the plaintiff’s Supplemental Record are page after page of staff reports concerning Bertha’s condition. Among other examples of the aspersions cast upon her mentality, we note that during Marion s cross-examination, plaintiff’s counsel offered a deed in evidence signed by Bertha on October 23, 1964, “to show the court the difference in signatures as showing that her mind was slipping.” (Emphasis supplied.) Plaintiff’s objection to the finding is wholly unjustified.
The main thrust of the plaintiff’s attack is leveled against the trial court’s salient findings. Although couched in various and alternative ways, the remaining points of error challenge the sufficiency of the evidence to support the findings and the judgment based thereon. A determination of the question will dispose to the appeal.
We shall not attempt to compare the version of events related by members of the House of Bauman, and that given by members of the House of Frame. The two versions were, to say the least, contradictory in their total impact. A lone exception is found in the testimony of Kendall Means, a blood nephew of Bertha who will inherit a share of her estate. Mr. Means appeared as a defense witness, and his testimony largely corroborates the Bauman version.
As we have previously said, the trial court found a confidential relationship to exist between Bertha and her stepson, Marion. Accordingly, the court placed the burden upon the defendants to show that the transactions between Bertha and themselves were conducted in good faith and that Bertha’s conveyances were not induced by undue influence. With this ruling we agree. The law governing transactions entered into by parties between whom a confidential relationship exists is applicable to this case even though a fiduciary relationship may not have existed between Bertha and Boyce. Marion could not legally have obtained a conveyance to himself through the exercise of undue influence; neither could he legally have secured a conveyance to his brother by such means. (Miller v. Henderson, 140 Kan. 46, 52, 33 P. 2d 1098; Rathbun v. Hill, 187 Kan. 130, 143, 144, 354 P. 2d 338; Windscheffel v. Wright, 187 Kan. 678, 688, 689, 360 P. 2d 178, 89 A. L. R. 2d 636.
A confidential relationship, however, does not poison or brand as fraudulent every transaction between parties, one of whom occupies a fiduciary status toward the other. Where good faith has been established on the part of the beneficiary and no undue influence has been exerted, and where the transaction under scrutiny is shown to have carried out the true and freely formed intentions of the grantor, the law does not stigmatize it as fraudulant and void simply because of the relationship existing between the parties. The rules applicable to transactions between individuals, where a confidential relation exists, are not intended to preclude gifts which honestly reflect the unfettered wishes of those who make them but, rather, are intended to prevent persons who stand in positions of confidence and trust from taldng advantage of their positions at the expense of those entitled to their loyalty and protection.
Whether in fact a conveyance has been induced through the exercise of undue influence on the part of a party standing in a confidential relationship to the grantor, is primarily a question of fact to be determined by the facts and circumstances which attend the particular case. In the recent case of Cersovsky v. Cersovsky, 201 Kan. 463, 441 P. 2d 289, this court said:
. . The test of undue influence is whether the party exercised his own free agency and acted voluntarily by the use of his own reason and judgment, which may be determined from all the surrounding circumstances, including the relation of the parties, the time and manner of making suggestions or giving advice, the motive, if any, in making suggestions, and the effect upon the party so acting. (Homewood v. Eggers, 132 Kan. 256, Syl. ¶ 5, 295 Pac. 681.) . . .” (p.467.)
It is for the trial court to determine, in the first instance, whether the presumption of undue influence existing by virtue of a confidential relationship has been satisfactorily overcome by the party on whom the burden rests. That court bears the responsibility of weighing conflicting evidence and assessing the credibility of witnesses.
Under familiar rules, our responsibility on appeal is to ascertain whether the findings of the trial court are supported by substantial competent evidence. (Cersovsky v. Cersovsky, supra.) In making this determination, we are required to consider the evidence in its most favorable aspect in relation to the party who prevailed in the court below. (Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521.)
We have heretofore mentioned that the trial court found no undue influence was exercised by either defendant, but all conveyances were freely, knowingly and voluntarily executed by Bertha. We think this finding is substantially supported by the record.
Turning to the transaction of April 25, 1964, concerning the Texas oil property, we note the trial court’s finding that “no independent advice was received by Bertha Bauman regarding the Texas property but this court is unable to find that undue influence was used or that either defendant intended to take advantage of their stepmother.”
It is argued that Bertha’s conveyance of the Texas land is void for lack of independent advice. However, the requirement of independent advice does not extend to every transaction between parties, one of whom is the confidant of the other. The rule is applicable only where the circumstances of the situation so warrants.
In the recent case of In re Estate of Carlson, 201 Kan. 635, 443 P. 2d 339, we had occasion to review our decisions on this subject, and held:
“The requirement of independent advice is designed to provide assurance that the aged or infirmed or otherwise dependent person conferring the benefit knew what he was doing and did it of his own free act and will, and to see that no undue advantage was taken of him.
“The rule of independent advice is applicable only under circumstances where the evidence warrants it. Our decisions do not require application of the rule where the beneficiary or party upon whom is cast the burden of proof presents substantial evidence that the gift, deed or contract was made in good faith, not induced by undue influence, and for a valuable consideration. (Following Jernberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 131 P. 2d 691.)” (Syl. ¶¶ 5, 6.)
In the course of its opinion, the court, speaking through Mr. Justice Fatzer, had this to say:
“The existence of a confidential or fiduciary relationship between persons does not, as a matter of law, operate to bar the right of the beneficiary to enter into a contract or to receive a gift. If the person who conferred the benefit was at the time of sound mind and clearly understood the transaction, and executed a free will in the act, being under no restraint or undue influence, and, where the evidence requires it, there was adequate consideration, the transaction will be sustained. While we have no desire to detract from our decisions applying the rule of independent advice if the circumstances warrant it, the evidence clearly does not require its application in the instant case. (Jernberg v. Evangelical Lutheran Home for the Aged, supra; Barger v. French, supra.)” (pp. 645, 646.)
The Texas property was so-called “Bauman land.” It had descended from Frank Bauman’s father. There is considerable evidence in the record that Bertha wanted “the boys,” Marion and Boyce, to have the “Bauman land.” Moreover, Bertha’s conveyance cannot strictly be said to have been without consideration. She bargained her interest in the fee for a lifetime interest in the royalty payments. While, at first blush, the consideration might appear inadequate, it is clear from the record that Bertha’s primary concern was income. Who can say the consideration was not a sufficient quid pro quo in Bertha’s eyes?
The trial court specifically found Bertha received independent advice in regard to deeding the farms. The record supports this finding. Mr. F. B. Hettinger, of Hutchinson, a member of the bar of this state and a former district judge, is shown to have prepared the deeds to the three properties as well as a revocation of a power of attorney which Bertha had previously given to Louis Frame, a nephew. Judge Hettinger took the papers to the bank at Turón where he talked to Bertha about the deeds out of the presence of the defendants, both of whom had left the room to see the bank’s president about raising the money to pay for the land. The judge’s conversation with Bertha took place, for the most part, with her alone although Mr. John W. Shive, vice-president of the Turón State Bank, was present part of the time.
Judge Hettinger’s testimony is significant, not only on the question of independent advice, but as an aid in understanding Bertha’s motives in conveying the farms and the cordial and affectionate relationship existing between her and the stepsons. Mr. Hettinger testified that he first asked Bertha if she realized what she was doing — that she was selling the land to the boys but would get all the income for the rest of her life, to which Bertha replied “Yes, I want the income.”
Continuing, Judge Hettinger computed the income Bertha would get from $20,000 in “H” bonds which she planned to buy with the money from the sale; estimated what she would receive from the farm income; added these together and, after deducting taxes, arrived at a net; divided this by twelve; and then told Bertha she would have an income of something over four hundred dollars ($400) per month; his testimony continues:
“. . . Then I told her, ‘Now, you understand that when you sign these deeds, this land will all belong to the boys when you are gone and your brothers and sisters and nieces and nephews will get the bonds and what money you have in the bank and any other personal property you might have but they won’t get this land, this will belong to the boys,’ and she said, ‘Well, I want the boys to have it.’ She said, ‘It’s Bauman land and the boys should have it,’ and I said, ‘Well, that’s right, it is Bauman land but you don’t have to sign it away if you don’t want to,’ and she said, ‘Well, I want them to have it but I want the income, I want the income.’ I think three or four times at least during our conversation she said, ‘Well, I want the income.’ She seemed to have that very much on her mind. And when I told her this approximate figure she’d get per month of income, she said, ‘Oh, that is a lot of money,’ and I said, ‘Yes, it is, it’s a lot more than you will spend,’ and so that was about the gist of our conversation. . . .”
Mr. Shive testified that after Judge Hettinger concluded his talk with Bertha, portions of which he had heard, the judge stepped out of the room and he, Shive, asked Bertha if she thoroughly understood what it was all about; that she said yes, but wanted to know if it was drawn up in proper form; that he said it looked all right to him, and Bertha then signed and he acknowledged the papers.
After assessing the Hettinger and Shive testimony, only a fractional part of which has been cited, we believe it clear that the finding of independent advice as to the farm conveyances is supported by substantial competent evidence. An outcry is raised against Judge Hettinger as being the Baumans’ personal attorney. The record, however, reflects that he was only the attorney for Marion, as executor of his father’s estate; that he considered the drafting of the deeds to be a part of the estate business; that he has never been paid by either Marion or Boyce personally, nor does he expect to be; and that he refused to represent them in this action.
The judge’s meticulous explanation to Bertha, which he testified was given to satisfy himself that she knew what was going on and that her rights were being protected, should suffice to dispel any genuine doubt as to his impartiality. Judge Hettinger is known to this writer as a respected member of the Reno County bar, as well as an able lawyer. We believe his advice to Mrs. Bauman was substantial and sufficient.
Bertha’s conveyance was not wholly without consideration. She received $21,500, one-half the appraised value as filed in Frank’s estate, plus reserving a life estate. It happens that she did not long survive Frank — some sixteen months — but the trial court found “no one on earth could predict for how long she might live.” The record supports this finding. There is even evidence that Mr. Shive told the defendants that in view of Bertha’s health, they might be making a bad deal.
It was stipulated that Bertha bought a house from Irv Bauman in October, 1964, for $10,500; that it was titled in joint tenancy with Marion; and that at the time of trial (November, 1966,) it was valued at $6,750. The evidence concerning the transaction is somewhat scarce. Marion testified he had nothing to do with the pur chase; that when he first heard of it, shortly before Bertha’s purchase, he did not think she should move from where she was, and told her she had a good place; that Bertha called and wanted to go to the bank; that he took her to the bank and left her there; on his return to the bank he found she had taken a joint tenancy deed with himself named as joint tenant.
John Shive testified that when he drew up the deed only Irv Bauman, Irv’s wife and Bertha were present; Marion was not there at the time. He further testified:
“I drew the deed and asked her how she wanted it made and she told me she wanted Marion put in as a deed in joint tenancy, and that is the way I drew it.”
Mr. Shive also stated he was satisfied Bertha was competent and capable on that occasion, and knew what she was doing; that he loaned her $6,500 to complete the purchase and her note is still at the bank, although some of it has been paid.
Related to this purchase is Bertha’s sale of her former home. There is evidence that Bertha wanted a house located closer to Ella Lamont, the woman who looked after her, since Ella did not like walking to the edge of town. Two days after buying Irv’s place, Bertha sold her old house. Mr. Buckwalter, the buyer, had thought the original asking price too high, so his wife went to see Bertha and the two women arrived at the final figure. The circumstances, in their entirety, justify the conclusion that Bertha engineered the deal, and we cannot quarrel with the court in finding there was no evidence that Marion influenced his stepmother in buying the house and including his name on the deed.
There is other evidence of record which can be said to support the court’s findings. Sampling a bit of this evidence, we find the testimony of Luke Chapin, an eminent and capable lawyer of Barber County bar, to whom Louis Frame took Bertha after she had conveyed the farms.
During the conference, Mr. Chapin inquired of Bertha what she would do with her property, if it were returned to her, and Bertha said very probably, or possibly (Chapin was not sure which), the stepsons would receive the property or share therein on her death. Chapin then told Bertha she had no need for his services unless she made up her mind to set aside the arrangements already made and make different ones. Bertha did not return to Mr. Chapin after that.
It may be conceded that evidence introduced on behalf of the plaintiff would have provided support for findings contrary to those returned by the trial court. Such, however, is not the standard by which evidence is measured to ascertain whether the findings are sufficiently supported. (Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988.)
Before closing the book on this opinion, we are constrained to comment on certain procedural irregularities which this case presents. The record is in three volumes, the first being produced by appellant, the second by appellees, and a third, designated as a supplemental record, again by the appellant. This proliferation apparently originated when appellant failed to reproduce what appellees designated for inclusion in the record.
It is impossible to say what was contained in the designation of either party, since the designations, themselves, have not been reproduced. Rule 6 (q) provides in part that the reproduced record shall always include the designation or stipulation of the parties as to matters to be included in the record. Had the appellant complied with this provision, much of the bickering between counsel might have been avoided.
As we understand from motions filed with this court, the appellant objected to much of appellees’ designation either as unnecessary, since it was already set out in the record, or as immaterial. The upshot was that appellees were reluctantly granted leave to prepare a separate record.
Orderly appellate procedure is delineated in our rules. Rule 6 (d) requires an appellant to serve and file with his designation a statement of points on which he intends to rely. This, the appellant failed to do. The rule further provides that after appellant files his designation and statement of points other parties to the appeal may serve and file counter designations containing additional matters to be included.
After all designations have been filed, the appellant shall reproduce the record. The record as reproduced shall contain all matters designated by the parties. If the appellant believes the appellee has designated material which is duplicitous or irrelevant, his remedy is to apply to the district judge to require appellee to advance such costs of reproduction as the judge deems appropriate. The record shall then contain a statement of the respective portions of the expense paid by each party. (See rule 6 [g] and [h].)
We have before us a motion to tax, to the appellant, the cost of printing the record which appellees prepared. As we read the appellees’ production, it duplicates a good deal of the material contained in the original record. After due reflection, we believe it fair to tax one-half the cost of printing the record prepared by appellees, to the appellees themselves, and the balance thereof against the appellant. Other costs on appeal are assessed to the appellant.
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The opinion of the court was delivered by
Harman, C.:
Primarily, this appeal involves procedural problems in the licensing of a group day care home for children.
Briefly, the state board of health, appellant herein, denied Dorothy C. Rydd a license to operate such a home and she appealed to the district court. That court ruled against appellant on procedural aspects and remanded the proceeding to the board, which has now appealed to this court.
Mrs. Rydd, appellee herein, is the mother of six children, three by a former husband and three by her present spouse. At the time of the hearing in district court the oldest was eleven years of age and the youngest was an infant. Appellee had operated a day care home for children near Manhattan, Kansas, for more than three years. In 1966 she moved to a diffei-ent address, at the edge of Manhattan, where she had remodeled a house in which to live and operate a group day care home. She applied to appellant board for a license to operate at this new location. Her application was referred to the division of child welfare services of the state department of social welfare for investigation and report. While appellee’s application was pending her oldest son Mike, then ten years old, was charged in the juvenile court of Riley county as a dependent and neglected child as a result of mistreatment by his mother. The probation officer for that court made an investigation and reported on three separate instances of alleged abuse, one of a severe beating administered for lying, another in which the boy’s head was cut from being knocked against a door frame, and the third in which the back of his hand was cut with a butcher knife.
On November 15, 1966, Mike was found to be a dependent and neglected child and was removed from appellee’s custody and made a ward of the juvenile court. Parental rights were not permanently severed.
November 23, 1966, appellant denied the application for license. Appellant states now that this decision was based on three documents: The report of the probation officer for the Riley county juvenile court, the report of a social worker for the social welfare department and the journal entry of judgment in the juvenile court proceeding. Appellee was given no notice of any hearing on her application nor any opportunity to be present at a hearing.
Appellant’s order denying the application was as follows:
“After considering all the evidence and being fully advised of the premises by his staff, Robert H. Riedel, M. D., State Health Officer for the State Department of Health and Executive Secretary for the State Board of Health, does hereby deny this application and order the file closed since the home does not meet the Day Care standards set out in the Department’s regulations 28-4-13 since all the staff members directly responsible for the children -will not be able to give the proper amount of time nor would all of them be of the proper temperament for looking after children.”
Appellant clarifies the first part of its order, referring to all staff members not being able to give the proper amount of time, as being based on the fact appellee was then pregnant with her sixth child. Appellant has virtually abandoned that ground stated in its order, saying now the license was denied primarily because of Mike’s mistreatment.
Appellee appealed from the board’s order to the district court. That court heard evidence and in a comprehensive memorandum opinion discussed legal principles applicable to administrative bodies and made the following findings of fact and conclusions of law:
“3. That the order of the Kansas State Board of Health denying a license to Dorothy C. Rydd to operate a Group Day Care Center in Manhattan, Kansas, does not set out any findings of fact upon which this order was based.
“4. The Court further finds that the petitioner Dorothy C. Rydd was never given the opportunity of a hearing before the State Board of Health prior to the denial of her license.
“5. The Court further finds that in a proceeding of this nature that before a license may be denied to an applicant, that the State Board of Health must advise said applicant of her right to a hearing and to be represented by counsel, and any order issued must set forth findings of fact supporting the conclusions of law determined by the State Board of Health.
"Conclusions of Law
“1. That the State Board of Health was arbitrary and unreasonable in denying the license of Dorothy C. Rydd for the reason that she was not afforded a hearing by the State Board of Health and that the denial of her license was based upon an ex parte investigation of said board, and for the further reason that any order denying a license must set forth in full the facts upon which any decision of the Board is based.
“It is therefore the order of the Court that the application of Dorothy C. Rydd, before the Kansas State Board of Health, for a Group Day Care Center license be reinstated and that the said Dorothy C. Rydd be afforded a hearing before the State Board of Health.”
Appellant brings the matter here for appellate review.
We should first note applicable statutes. K. S. A. 65-501 makes it unlawful for anyone to operate a boarding, receiving or detention home for infants or for children under sixteen years of age without a written license from the state board of health. 65-503 defines a boarding home for children.
Other sections of the same chapter provide for license fees, records, equipment, supplies and accommodations for homes to be licensed, and semiannual inspections, and authorize the board to make further needful regulations for the protection of the lives, health and welfare of inmates of the homes to be licensed. 65-504 provides in pertinent part:
“The state board of health shall have the power to grant license to a person, firm, corporation or association to maintain a maternity hospital or home or a home for infants under three years of age, or children under sixteen years of age. . . . No license shall be granted for a term exceeding one year; and the state board of health shall grant no license in any case until careful inspection of the maternity hospital or home or home for infants or children shall have been made according to the terms of this act; and until such maternity hospital or home or home for infants or children has complied with all the requirements of this act. No license shall be granted, without the approval of the division of child welfare services of the state department of social welfare.
“In all cases where the state department of social welfare deems it necessary, an investigation of said home shall be made under the supervision of the division of child welfare services by the county welfare department or other designated qualified agents. ... In all cases where an investigation is made, a report of the investigation of such home shall be filed with the state board of health.
“Whenever the board of health shall refuse to grant a license to an applicant it shall issue an order to that effect stating the reasons for such denial; and within five (5) days after the issuance of such order shall notify the applicant by certified mail of such refusal by forwarding to such applicant a certified copy of the order.
“When the state board of health shall find upon investigation or is advised by the state department of social welfare that any of the provisions of this act are being violated, or such maternity hospital or home, or home for infants or children is maintained without due regard to the health, comfort or morality of the inmates, it shall after reasonable notice issue an order revoking such license; and such order shall clearly state the reason for such revocation. Such revocation shall be noted upon the face of the record and the board shall give notice in writing of such revocation by forwarding a certified copy of the order to the licensee by registered or certified mail.
“Any applicant or licensee aggrieved by the order of the state board of health in denying or revoking a license may appeal therefrom by filing a petition specifying the action of the board appealed from, in the district court of the county in which the applicant or licensee resides, within thirty (30) days after receipt of a copy of the order of the board, and said court shall have jurisdiction to affirm, reverse, modify or vacate the order complained of if the court is of the opinion that the order was arbitrary, unlawful or unreasonable. Such an appeal shall be tried de novo and the court shall receive and consider any pertinent evidence, oral or documentary, concerning the order of the board from which the appeal is taken. . . . Upon receipt of such notice [of appeal], the board of health and the department of social welfare shall, forthwith make available, for examination and inspection, to the applicant and his attorney all their records pertaining to such matter.
“From the judgment of the district court, appeal may be taken to the supreme court as in other civil actions.”
Appellant strenuously urges the trial court erred in ruling a hearing must be afforded an applicant before denial of a license under 65-504. It points out the fact the statute makes no such requirement, and that the statute was followed. Appellant says, despite lack of statutory requirement, it customarily grants a hearing when one is requested, but none was requested here. It argues if a hearing is to be held mandatory, then 65-504 should be ruled unconstitutional as a denial of due process, but that without statutory authority an administrative hearing should not be ordered. Appellee, in turn, makes no constitutional attack on 65-504, only on its use by appellant.
This court has on several occasions held that legislation is not rendered constitutionally invalid because of omission of certain procedural safeguards which may be supplied, by rule or otherwise, by the agency administering the law (see Brankley v. Hassig, 130 Kan. 874, 289 Pac. 64). In Cities Service Gas Co. v. State Corporation Commission, 192 Kan. 707, 391 P. 2d 74, it was stated:
“. . . this court has recognized the rule that where no express provision for notice is made in the statute, if there be nothing in the statute which prevents notice from being given, the requirement of reasonable notice will be implied. [Citations] In reality, the court simply reads the provision into the statute in order to uphold its validity as against the Fourteenth Amendment and Sections 2 and 18 of the Bill of Rights of the Constitution of Kansas.” (p. 713.)
Should an opportunity for hearing after reasonable notice be required under 65-504 prior to denial of a license under the particular circumstances of this case?
Before answering this question we should look again’ at the nature of the reason given for denial of the license: “. . . nor would all of them [staff members directly responsible for the children] be of the proper temperament for looking after children.” This order was based upon the board’s rule which provides:
“All staff members directly responsible for children shall be qualified to give care to children by temperament, emotional maturity, sound judgment, education, experience, and an understanding of children.” (1 Weeks, K. A. R. 28-4-13 [c].)
The reason given went to appellee’s individual fitness or character and to that extent was adjudicative in nature. The denial was not the result of a test or examination nor because from inspection the proposed premises failed to meet required specifications. The license was denied because of particular facts pertaining to the appellee — the land of facts which normally ought not to be found without allowing the party a chance to rebut, explain and cross-examine (see 1 Davis, Administrative Law Treatise, § 7.20).
Formerly emphasis was placed on the distinction between a privilege and a right, and a license was sometimes held to be a privilege which could be withheld without regard to procedural niceties. Now few licenses are regarded as privileges in terms of procedure required. The tendency seems to be that a trial type hearing is required on issues of adjudicative fact where important interests are at stake (1 Davis, Administrative Law Treatise, § 7.18). In Goldsmith v. Bd. of Tax Appeals, 270 U. S. 117, 70 L. ed. 494, 46 S. Ct. 215, an accountant, who was qualified to practice in New York, had applied for admission to practice before the United States Board of Tax Appeals. The board rejected the application upon charges of unfitness without giving him opportunity to be heard. Of the board’s rule that “the Board may in its discretion deny admission” the court said “this must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process.” The court further stated the appli cant should not have been rejected upon charges of unfitness without 'giving him an opportunity by notice for hearing and answer. The charges in the Goldsmith case were adjudicative facts relating to the particular individual, in which instance the court made clear that due process entitled the applicant to a chance to rebut and explain the evidence against him.
In Schware v. Board of Bar Examiners, 353 U. S. 232, 1 L. ed. 2d 796, 77 S. Ct. 752, involving an applicant for admission to the bar, the court held that whether the practice of law is deemed a right or a privilege, an application for admission is governed by the principle of procedural due process, declaring:
“A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.” (pp. 238, 239.)
In Willner v. Committee on Character, 373 U. S. 96, 10 L. ed. 2d 224, 83 S. Ct. 1175, the court held that one who had passed the New York bar examination was entitled to notice of, and a hearing upon, the grounds for his rejection. The court said it was concerned “with what procedural due process requires if the license [to practice law] is to be withheld” and further that “procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.” (p. 103.)
In Matter of Perpente v. Moss, 293 N. Y. 325, 56 N. E. 2d 726, a refusal to grant a license to conduct an employment agency was challenged on the ground no hearing had been had. The court held:
“Though formal hearings and formal findings may not be required, a license may not be refused on the ground that the applicant Is not a person of good character’ unless the applicant has fair opportunity to meet a challenge to his good character and unless the court of review is apprised of the basis for the finding against the applicant. The procedure of the Commissioner must conform to recognized standards of fairness and a record must be made which permits a review of the action of the Commissioner by the court.” (p. 329.)
Bennett v. Arizona State Board of Public Welfare, 95 Ariz. 170, 388 P. 2d 166, presented a factual situation similar to the case at bar. There petitioner, who had previously operated a nursery, was, without hearing, denied a license to operate a child’s care nursery. The court stated:
“We observe, as did the United States Supreme Court, that the multiplication of administrative agencies and the expansion of their functions to include adjudications which have serious impact on prior rights has been one of the dramatic legal developments of the past one-half century. Wong Yang Sung v. McGrath, 339 U. S. 33, 70 S. Ct. 445, 94 L. Ed. 616.” (p. 172.)
Further:
“It is too well settled, to permit any argument to the contrary, that procedural due process requires petitioner be given an opportunity to be heard upon the matters which the Board of Welfare acted in denying a license. . . . Petitioner must be given notice of time and place of hearing, a reasonable definite statement of the grounds for denial of her application, the right to produce witnesses in her own behalf, the right to examine witnesses who testify against her and a full consideration and a fair determination according to the evidence by the body before whom the hearing is had.” (p. 173.)
We have little precedent of our own in the licensing area but in Cities Service Co. v. Koeneke, 137 Kan. 7, 20 P. 2d 460, the court dealt with the state bank commissioner’s refusal to give approval to the plaintiff to list its stock pursuant to statute, without plaintiff being given notice and opportunity for a hearing, and roundly denounced the procedure employed. This court has always taken cognizance of the procedural requirements of due process. In Carrigg v. Anderson, 167 Kan. 238, 205 P. 2d 1004, it is stated:
“The fundamental requisite of due process is notice and an opportunity for a full and complete hearing.” (p. 246.)
In Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 28 P. 2d 976, a case involving bylaws of a fraternal benefit society providing for expulsion without notice or hearing, the court said:
“Generally speaking, both our federal (5th and 14th amendments) and state (bill of rights, § 18) constitutions provide for due process of law. Whatever may be said of the exact definitions of that term, said to be synonymous with ‘the law of the land’ (12 C. J. 1189), it is well settled that its ‘essential elements . . . are notice, and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.’ ” (p. 847.)
Appellant argues appellee had her requisite due process when she presented her side of the matter to the district court. This argument does not take into account the limited authority the the district court has upon appeal, particularly the constitutional limitation imposed by the separation of powers doctrine upon the judiciary in review of actions of administrative agencies, to which doctrine this court has always been committed.
The scope of judicial review of administrative action was recently discussed in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828, and summarized:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a mat ter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.” (Syl. f 1.)
In that case a medical license had been revoked by the licensing agency upon the ground of professional incompetence. The licensee argued, in effect, the district court upon appeal could make its own findings de novo on the issue of competence. This court rejected the argument, saying: “Courts are not to be thus thrust into the licensing business.” (p. 451.)
It is true the appeal statute here (65-504) provides for trial de novo; however, as in Foote, the statute is to be construed in the light of the constitutional inhibition prescribed by the separation of powers doctrine. This means the legislature may not impose upon the judiciary the function of a trial de novo of action of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.
65-504 authorizes the court to act if it finds the board’s order arbitrary, unlawful or unreasonable. The issue, then, before the district court upon appeal is the reasonableness and legality of the order appealed from. Upon that issue the trial is de novo, but that does not mean the district court is at liberty to make an independent finding on the right to a license. Hearing before a district court upon appeal is thus not the equivalent of the initial hearing before the licensing agency which has the responsibility of weighing controverted evidence and arriving at an independent judgment, on the merits, as to entitlement to a license.
Appellee concededly had a significant interest at stake in appellant’s action on her application for license. We are aware of no societal interest sufficient to deny her notice and hearing prior to denial of that application, and none is urged by appellant. Other regulatory statutes which it administers call for notice and hearing prior to adverse action; for example, K. S. A. 65-430 provides for notice and opportunity for hearing prior to denial of a license to operate a hospital. Appellant is authorized to appoint hearing officers (K. S. A. 74-901e) and has supplemented this authority by its own rules governing hearings (1 Weeks, K. A. R. 28-3-1, et seq.). The scope of appellant’s current child care licensing program is shown in Kansas Biennial Report, 1968, pp. 388-395.
We hold then that procedural due process requires that an applicant for license pursuant to 65-504 be given notice and opportunity for hearing by the state board of health before he may be denied a license on the ground of personal unfitness. This result we reach is in harmony with the broad remedial purpose sought by the proposed Revised Model State Administrative Procedure Act (1967 Supp. 9C U. L. A. 142-161) and the Federal Administrative Procedure Act (5 U. S. C. 1964 ed., §§ 1001 et seq.), although neither has application in Kansas. In leaving the point, it should be noted we make no attempt to prescribe a single rule applicable to denial of all licenses.
Appellant also challenges other of the trial court’s rulings. It says the court erred in holding that the order denying a license must set forth in full the facts upon which the decision of the board was based. Essentially, we agree with the court’s ruling.
The statute (65-504) provides: "Whenever the board of health shall refuse to grant a license to an applicant it shall issue an order to that effect stating the reasons for such denial. . . .”
We think the sense of the foregoing proviso is that the grounds upon which an administrative agency has acted should be clearly disclosed. Reasons for such a requirement were well stated in Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572, as follows:
"The requirement that an administrative agency such as the State Corporation Commission make basic findings of fact is to facilitate judicial review, avoid judicial usurpation of administrative functions, assure more careful administrative consideration to protect against careless and arbitrary action, assist the parties in planning their cases for rehearing and judicial review, and keep such agency within its jurisdiction as prescribed by the Legislature.” (Syl. 112.)
See, also, Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660.
In order for a reviewing court under 65-504 to determine whether the decision reached is reasonable and lawful, it is necessary the decision contain the pertinent facts upon which it is based. A mere statement of a generality or of a general conclusion, such as found in the order in question, does not reach the degree of specificity required. The evidence need not be detailed or even summarized but a concise, explicit statement of the basic, underlying facts relied upon to support the order should be given.
Appellant contends the trial court erred in remanding the cause to it for hearing upon appellee’s application. The statute provides the court may “affirm, reverse, modify or vacate the order complained of.” We have already determined appellee was not afforded fundamental due process. And we have indicated it would have been beyond the scope of the trial court’s authority to make its own independent finding on the merits of appellee’s fitness for a license. That function lay exclusively with the board. As the matter stood, the court could have made no conclusive order in favor of either of the litigants without substituting its judgment for that of the board. What course then could have been taken by the trial court other than to remand the proceeding for further hearing? We think none. The trial court’s order in effect set aside appellant’s denial order and left appellee’s application as a pending matter before appellant, to be heard and disposed of by appellant on the merits, procedural due process to be observed. In 2 Am. Jur. 2d, Administrative Law, § 764, the rule is stated:
“. . . the general rule is that even in the absence of statute, a court which sets aside an administrative determination has the power to remand the case to the administrative agency where such power is necessary to effectuate the demands of justice, and statutes frequently grant such authority to the courts. The court does not encroach upon the administrative function by such procedure, and there is nothing in the principles governing judicial review of administrative acts which precludes the courts from giving an administrative agency an opportunity to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in its record, or making additional findings where these are necessary, or supplying findings validly made in the place of those attacked as invalid.”
The rule is further elaborated in the same work § 765, as follows:
“The court must remand, or the administrative agency is entitled to have the proceeding returned to it, where the agency has taken action without meeting procedural requirements, has made invalid, inadequate, or incomplete findings . . . where judicial review discloses material errors but the reviewing court cannot enter a conclusive order. . . .”
The trial court properly remanded the proceeding.
Although it does not affect the case’s immediate disposition, one further matter as to a reviewing court’s authority in this kind of action remains which we deem appropriate to discuss. The trial court concluded it could not consider evidence which had not been presented to the state board of health. The lack of uniform requirements and resultant practice in recording evidence supporting administrative action, as well as the indiscriminate use of the term trial de novo, has contributed to some confusion in our law and points up the desirability of greater uniformity in our statutes gov eming hearings by administrative agencies and judicial review of their actions. This problem was recently discussed-in Bodine v. City of Overland Bark, 198 Kan. 371, 424 P. 2d 513, where it was stated that evidence submitted upon judicial review of a zoning action was to be received in accord with our evidentiary code (K. S. A. Chap. 60, Art. 4). The trial in district court then is de novo in the sense the court may take its own evidence and is not necessarily limited to the evidence presented before the administrative board. The power to receive and consider such evidence, however, is not to be employed for the purpose of enlarging the scope of judicial review — the test being, the evidence must be relevant to the limited issue before the court on appeal; namely, the reasonableness and legality of the order appealed from. Aside from this, 65-504 expressly provides “. . . the court shall receive and consider any pertinent evidence, oral or documentary, concerning the order of the board from which the appeal is taken.”
The judgment appealed from was correct and it is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal in a criminal action wherein the appellant-defendant was tried by a jury and convicted of robbery in the first degree (K. S. A. 21-527). Having had one prior felony conviction the defendant was sentenced under the Habitual Criminal Act for a term of not less than twenty nor more than forty-two years (K. S. A. 21-530 and 21-107a).
The only substantial question presented is whether the evidence is sufficient to sustain the verdict.
The evidence establishes that a man with a pistol or revolver in his hand entered the Jack Wheeler Grocery Store in Wichita at about 8:50 p. m. on January 14, 1967, and took $95 from the cash register. Jack Wheeler, owner of the store, his wife and two employees, Leroy Brown and Joe Davis, were in the store at the time. Wheeler testified that he was working in his store with his wife when he heard her yell for him. When he looked up he saw a man with a gun in his hand. Wheeler picked up a meat cleaver but made no attempt to use it. He testified his wife had left the cash drawer open when she was ordered away from the cash register by the man with the gun who scooped up the money and left by the front door. Wheeler followed the man out of the store and observed him going down the street, saw him fall down and roll over and get up and continue on. Wheeler further testified the gun appeared to be a .22 caliber short barrel, black, cylinder type. He observed that the hammer was not cocked at the time of the robbery. Wheeler testified that the man was not disguised at the time of the robbery and identified defendant the same night of the robbery in a police lineup. Wheeler testified that his identification of defendant in court and at the lineup was positive.
Davis, a meat cutter at the store, testified that he also heard Mrs. Wheeler yell at approximately 8:50 p. m. that evening; that he observed a man with a gun, which he thought was a .22 caliber pistol, the man took the money and left by the front door. Davis further testified that at the time of the holdup he was told to lie down on the floor. He identified the defendant at the police station lineup on the night of the robbeiy and also made an identification of defendant in the courtroom.
Brown, a butcher at the store, corroborated Wheeler’s testimony. Brown also identified defendant in court and at the police station lineup. On cross-examination Brown conceded that he did not know if the gun was capable of firing.
William A. Cornwell, a detective for the Wichita Police Department, testified that he arrested defendant at 10:45 p. m. on the night in question at 2023 North Volutsia, which was later identified as defendant’s home. Cornwell was present at the police lineup and testified as to the circumstances and identifications made by Wheeler, Davis and Brown. He further testified that when defendant was arrested a lady named Bernice who was present said that defendant had been there all evening except when he left to go to a liquor store about 9 p. m. Cornwell also stated that 2023 North Volutsia is about twenty-five blocks from the Wheeler store.
Although he filed no plea of alibi, defendant claims he could not have been at the store at the time of the robbery. He took the stand in his own behalf. He admitted two previous convictions of robbery but denied his guilt in the instant case. He testified that he was employed and had been paid on the day in question. In his first appearance on the witness stand, defendant testified that during the evening in question he was at his residence about twenty-five blocks from Wheeler s store; that he left about 9 p. m. to go to a liquor store about three blocks away; and that he had no automobile available to him. He further testified that he had never owned a gun; that he did not have one in his possession on January 14, 1967; and that he had never been in Wheeler’s Grocery Store on the date in question.
Defendant called Kenneth W. Hadley who testified that he arrived at defendant’s residence about fifteen to twenty minutes before the police; that defendant was there when he arrived; and that he saw defendant arrested.
In rebuttal the state called Willie L. Truitt who testified he was at the home of Mr. and Mrs. Clarence Scott, located about two blocks from the Wheeler store, at about 7 or 7:30 p. m., on the evening in question, when defendant came there and that defendant was there about thirty minutes.
The state also called as a rebuttal witness Jacqueline Bryant who testified that she was at the Scott home on the evening in question; that defendant was there; and that she and her husband took defendant to his home on North Volutsia and enroute they observed police cars at Wheeler’s store.
In surrebuttal defendant called Mr. and Mrs. Scott who testified that defendant came to their house at 1212 Wabash at about 7:30 or 8:00 p. m. and offered to pay back some money that he owed Mr. Scott.
Defendant was recalled in his own behalf and admitted that on the evening in question he was at Scott’s home on Wabash and that the Bryant’s took him from Scott’s to his home on North Volutsia.
By its verdict it is apparent the jury rejected the testimony of defendant and his witnesses and adopted that of the state’s witnesses.
The trial court approved the verdict and overruled defendant’s motion for a new trial. It was the function of the jury and the trial court to pass upon the credibility of witnesses and the weight to be given to the evidence.
In discussing the scope of review by this court on appeal it has been repeatedly stated that in criminal prosecution it is first the function of the jury and then that of the trial court after verdict to determine what facts are established by the evidence. Before a verdict, which has been approved by the trial court, may be set aside on appeal on the ground of insufficiency of evidence it must be made to clearly appear that upon no hypothesis whatever, is there sufficient substantial evidence to support the conclusion reached in the trial court. (State v. Scoggins, 199 Kan. 108, 427 P. 2d 603; State v. Walker, 198 Kan. 14, 422 P. 2d 565; and State v. Shaw, 195 Kan. 677, 408 P. 2d 650.)
In the instant case the testimony of defendant and his witnesses, by which defendant attempted to show that he could not have been at the store at the time of the robbery, is refuted by the positive identification of the state’s three eyewitnesses.
The claim of defendant as to his whereabouts at the time of the robbery is further disputed by the state’s witness Jacqueline Bryant who fixed the time of defendant’s return to his residence as subsequent to the robbery, since police cars were observed at the store while the Bryant’s and defendant were enroute from Scott’s to defendant’s residence.
The conflicts in the evidence have been resolved by the jury and we hold there was sufficient substantial evidence to support the verdict of guilty.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The appellant, Bobby Dan Sharp, was convicted on charges of robbery and burglary. He has appealed. In this opinion we shall refer to him either by name or as defendant.
The state’s evidence showed that approximately 1:00 or 2:00 a. m., May 8, 1966, a car containing what the victim called a group of “boys” drove up to the John Price residence. Mr. Price, the victim, and a man 55 years of age, lived alone and was asleep at the time. The “boys” proceeded to break the latch on the rear door and then entered the kitchen, where they turned on the light. Mr. Price was aroused by the noise and raised up on his elbow in bed. The gang, one of whose members was identified as the defendant, proceeded into Price’s bedroom where they had him turn on a bedside light.
One of the “boys,” Howard White by name, rifled the pockets of Price’s trousers, which lay by the bed, taking some four dollars and seventy-five cents. White also took the victim’s knife and wrist watch. Members of the group then proceeded to beat Mr. Price with their fists and with a grass sickle whip in a vain effort to find where the rest of his money was. One of the “boys” stated during this attack that he knew Price had more money because he had worked all week.
After becoming convinced by Price’s denials that he had no more money, the “boys” retired to the kitchen where, following an argument, they split the money between them and left the house. Price observed them leaving in a blue and white Ford with a convertible top. There appeared to be five in the car.
Mr. Price then put on his clothes, turned off the lights, and sat on the porch with his dog. About 3:00 a. m. Price saw the same car return with about the same group on board. He thereupon retreated in the dark to the hill back of his house, taking his dog along, and watched proceedings from there. Again the same group of “boys” turned on the kitchen light and went through the house. After they left, a radio was missing and some food was gone from the icebox.
Several points are raised on appeal. The first relates to a remark made by the prosecutor in closing argument which Sharp alleges incorrectly stated the law, to his prejudice. The challenged remark occurred in the following sequence:
“Mr. Whyte talked about burden of proof all through this and I have, also. The burden of proof is upon the State to prove a case, and I don’t think there is anything in the record that will disprove that Bobby Dan Sharp committed these two crimes.
“Mb. Whyte: To which we object; the burden never shifts to the defendant. The defendant never has to disprove anything.
“Mr. Grauberger: If you’d let me finish. There is nothing in the record that shows that the State has not proved Bobby Dan Sharp guilty of these two crimes. A positive identification of this man was made by the complaining witness, the only man we had to present the evidence.”
It is contended this line of argument misstated the law and “violated a basic principle of criminal law, in that it attempted to shift the burden of proof from the State to the Defendant.”
The trial court did not instruct the jury to disregard the prosecutor’s remarks but we are nonetheless disinclined to view the incident as constituting prejudicial error.
Considering the language as a whole, we question whether it can be construed as an argument by the state that the defendant had the burden of establishing his own innocence. We note, especially, that the challenged language is immediately preceded by the prosecutor’s statement that “The burden of proof is upon the State to prove a case . . .” What followed, although it may have been awkwardly composed and phrased, amounts to no more, in our judgment, than an expression of belief on the part of the speaker that the state’s evidence had not been counterbalanced or impugned.
Moreover, no exception is taken to the court’s instructions, which appear to have been somewhat lengthy, nor is any contention made that they unfairly or inadequately set out tire relevant law. We may assume, in the absence of a contrary showing, that the jury was properly instructed on the burden of proof, for it is presumed that a judicial officer will properly perform his duties. (Lyerla v. Lyerla, 195 Kan. 259, 264, 403 P. 2d 989.)
The court, in ruling upon defendant’s objection to the state’s argument at an out of court hearing, remarked that tire jury had been adequately instructed on the law in that area. Moreover, the court observed, it had several times warned and cautioned the jury not to consider comments made by counsel as evidence. This wholesome advice would tend to provide a further safeguard against possible prejudice.
It is next argued that the trial court erred in overruling a motion to quash count two of the information. Omitting formal parts, count two charged:
. . on or about the 8th day of May, 1966, one Howard Lawrence White, one Bobby Dan Sharp, one Nathana Davis Bey, one Oscar Thomas Cloinch and one James William Bailey, -with deadly and dangerous weapons, to wit: their fists, did unlawfully, wilfully and feloniously make an assault upon one John Price, with intent him, the said John Price, unlawfully, wilfully and feloniously to rob, and the money and personal property of the said John Price to unlawfully, wilfully and feloniously steal, take and carry away:
Cash ....................................... $4.40
Motorola Radio .............................. $15.00
Swiss made watch........................... $17.00
Pocket knife.............................. $1.00
Total and aggregate value of................. $37.40
from the person, in the presence, against the will, and by putting the said John Price in fear of some immediate injury to his person, the said items, they, the said Howard Lawrence White, Bobby Dan Sharp, Nathana Davis Bey, Oscar Thomas Cloinch and James William Bailey did unlawfully, wilfully and feloniously steal, take and carry away, the said items being then and there the property of the said John Price . . .” (Emphasis supplied.)
The defendant argues that “fists” do not constitute or come within the category of “deadly and dangerous weapons.” We are not prepared to say that under no circumstances may human fists be considered dangerous or deadly weapons, especially when applied in concert by members of a gang of thugs. However, we need not decide this interesting question here. The statute defining first degree robbery, K. S. A. 21-527, does not require the use of deadly and dangerous weapons in the commission of that offense. It provides simply that any person who takes property of another from his person or in his presence and against his will by doing violence to his person or putting him in fear of immediate injury to his person shall be guilty of robbery.
Every one of the elements required by statute to constitute the offense of robbery in the first degree are set out in count two of the information. The addition of the words “with deadly and dangerous weapons, to-wit: their fists,” is entirely superfluous and clearly surplusage. It is a generally recognized rule that where a pleading contains unnecessary allegations they may be treated as surplusage. (4 Hatcher’s Kansas Digest (Rev. Ed.) Pleadings, § 76; State v. LeVier, 202 Kan. 544, 451 P. 2d 142.)
The rule is applicable in both civil and criminal proceedings. In the recent case of State v. Lee, 197 Kan. 463, 465, 419 P. 2d 927, which involved a charge of robbery, we quoted from 42 C. J. S., Indictments and Information, § 250, p. 1267, to the effect that immaterial and unnecessary allegations in an indictment which might have been omitted therefrom without affecting the charge, could be considered surplusage and disregarded. (See, also, State v. Brown, 171 Kan. 557, 236 P. 2d 59 and State v. Bilby, 194 Kan. 600, 400 P. 2d 1015.)
The defendant next maintains that his motion for acquittal should have been sustained because he was not identified, and it may here be remarked that evidence going to the identity of the individuals who entered Price’s house the second time was somewhat scanty. However, the defendant was positively identified by Price as one of the group present in his bedroom when he was robbed and beaten. This was immediately after the lock on the back door was broken and the house entered the first time. That entry was violent and for an illicit purpose, robbery. The record contains adequate evidence of identity as to both burglary and robbery.
But it is argued there was no evidence that Sharp took Price’s property by violence or putting him in fear, or that he . actually struck him. This is a strained, if not to say, a strange argument. Mr. Price identified Sharp as one of the “boys” who was present in his bedroom. One of the other “boys” took Price’s money, his wrist watch and his knife, after which the gang beat the wretched victim in a futile effort to unearth more money. The atmosphere from the beginning to end of the bedroom episode was one of threats and violence, well calculated to induce fear in the intended victim.
Mr. Sharp can hardly be termed an innocent young lad; he was sentenced in this case as a “two-time loser,” who twice before had been convicted of felony. Nor is there anything in the circumstances shown by the record which suggests that Sharp’s companions were just carefree “boys” out for an innocent lark. One of the group was armed with a formidable weapon, a grass sickle whip. Another turned out the bedside lamp because he wanted “no identification on this deal.” And all of them “began to pow’ all their dukes” into Mr. Price, as he put it, and the unfortunate Mr. Price wound up, according to statements in final argument, with three broken ribs, among other injuries.
That the defendant may not personally have taken Price’s money, or his watch and knife, is not of controlling importance. He was identified as being personally present in the bedroom and his presence there could only have intensified the ominous atmosphere which pervaded that chamber. An inference that Sharp participated in splitting the loot can also be drawn from the evidence. It has long been the law that one who aids and abets in the commission of an offense may be charged, tried and convicted as a principal. (State v. Sims, 192 Kan. 587, 389 P. 2d 812; State v. Gates, 196 Kan. 216, 410 P. 2d 264.) There was sufficient evidence to justify the court in submitting instructions to the jury on the law relating to principals and accessories before the fact, as well as to justify the jury in finding the defendant guilty as a participant in both the robbery and the burglary.
A final complaint concerns the ruling by the trial court which prohibited counsel from referring to certain testimony on final argument. The defendant argues that he was thus deprived of his right to counsel in violation of § 10 of the Kansas Bill of Rights. This argument we believe is unfounded.
The circumstances are these: the defendant, in presenting his case in chief, called his brother, Oscar, to the stand. Oscar testified that on the night in question the defendant was home, had slept in the same room with him, and did not leave the house that night. The state faffed to object when this evidence was given, but after the witness had been questioned for some time and in considerable detail, counsel interposed a motion to strike Oscars testimony for the reason that proper notice of alibi had not been served.
Following considerable colloquy between the court and counsel on both sides, the court ruled there had been no compliance with the statutory provisions relating to the service of notice of alibi. In so ruling we believe the court was correct. K. S. A. 62-1341 provides that notice of a plea of alibi, together with the names of witnesses expected to be used, shall be served on the county attorney as much as seven days before trial. It is clear from the record before us that no more than five days notice had been given in this case. We have repeatedly held alibi evidence to be inadmissible where there has been no compliance with the statute. (Burns v. Amrine, 156 Kan. 83, 131 P. 2d 884; State v. Parker, 166 Kan. 707, 204 P. 2d 584; State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Trams, 189 Kan. 393, 369 P. 2d 223; State v. Rider, 194 Kan. 398, 399 P. 2d 564.)
It is true the statute further provides that the court, on due application and for good cause shown, may permit the notice to be served at any time before the jury is sworn. Permission under this provision is, however, discretionary with the court, and its refusal to grant permission will not be overturned in the absence of a showing that its discretion was abused. (State v. Rafferty, 145 Kan. 795, 67 P. 2d 1111; State v. Berry, 170 Kan. 174, 223 P. 2d 726.)
In our judgment no abuse of discretion is shown by this record. The case was tried for the first time on May 17 and 18, 1967. That trial resulted in a hung jury. The defendant’s present counsel, privately employed, represented his client at both the first and second trials. At the first trial, evidence of the same alibi was offered by the defendant and was refused admittance because of the defendant’s failure to give the required notice. Thereafter, the defendant had a period of twenty days between the first and second trials to serve notice of alibi, but did not do so.
The trial court would have been justified in striking Oscar’s testimony completely from the record and instructing the jury to disregard it. However, this was not done. Instead, the court observed that it doubted the effectiveness of such an instruction, and rather than call more attention to the situation, it would rule that further alibi testimony would not be admitted, and that counsel should restrict final argument as to the defendant’s whereabouts to the defendant’s personal testimony.
Specific objection does not appear to have been made to this ruling but we do not care to base our judgment on that alone. The trial court was obviously trying to be fair. Oscar’s damaging testimony had been given and was before the jury. Although the evidence was inadmissible, and subject to a motion to strike, the court permitted it to remain before the jury. The sole condition imposed was that counsel not comment thereon, although this restriction was not applied to the defendant’s own personal testimony.
In the absence of a contrary showing, we believe the ruling cannot be said to have been prejudicial. It might even be considered as having a contrary tendency. In any event, Oscar’s testimony as to his brother’s alibi remained before the jury and we cannot say, from this record, that the court’s refusal to permit comment thereon resulted in prejudice to the defendant’s substantial rights. This court has often held that where error does not result in prejudice, reversal is not justified. (2 Hatcher’s Kansas Digest (Rev. Ed.), Criminal Law, § 439.)
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The opinion of the court was delivered by
Harman, C.:
Appellant was convicted by a jury of the offenses of burglary in the second degree, larceny of a television set in connection with the burglary (count one), and of larceny of an automobile (count two). A previous felony conviction being shown he was sentenced on the burglary charge to a term of not less than ten nor more than twenty years, on the larceny in connection with the burglary to a term of not less than ten years, and on the larceny of the automobile to a term of not less than ten nor more than thirty years, all sentences to run concurrently. He has appealed.
Appellant was charged jointly in the commission of these offenses with one Gerald Lee, also known as Gerald El; however, the two were tried separately. Lee’s conviction was recently affirmed by this court. (State v. Lee, 201 Kan. 177, 440 P. 2d 562).
We consider first two specifications of error directed against appellant’s conviction of all offenses. Appellant insists the trial court erred in denying his request for a continuance. The record reveals the following occurring on tire first day of trial, March 22, 1966:
“Mr. Yohe: If it please the Court, the defendant does have a couple of motions he would like to make before the trial starts.
“The Court: All right.
“Mr. Yohe: The oral motion, one of them, Your Honor, is that the defendant, Mr. Towner, has informed me that he does not feel that he is ready to go to trial at this time, and we bring that matter to the Court. It might be well as to this particular motion to ask Mr. Towner to appear here before the Court to give a fuller explanation of what he has in mind.
“The Court: Come up, Mr. Towner.
Mr. Yohe: Mr. Towner, I just informed the Court that you have stated to me that you felt that you were not ready to go to trial at this time, and I brought the matter before the Court, before Judge McHale here, and suggested to him that for purposes of clarification it might be well that you be before His Honor and explain why you think that — you think perhaps you need some more time to prepare for the defense in this case.
“Defendant Towner: That is correct.
“The Court: What?
“Defendant Towner: I feel I need a little more time for my case.
“The Court: Why?
“Defendant Towner: I just don’t feel I am ready to go to trial yet.
“The Court: That motion will be disposed of; that motion is overruled.”
Appellant argues the appointment of his attorney was made by the district court only fifteen days prior to commencement of trial and this allowed insufficient time for trial preparation. Appellant fails to inform this court that more than two months prior to trial in district court the same attorney was appointed for him in magistrate court to represent him upon preliminary examination, which was held. It is abundantly clear appellant’s attorney was appointed a sufficient length of time prior to trial. Significantly, the request for continuance was made by appellant personally rather than by his attorney. Despite ample opportunity, appellant presented nothing tangible to support his request. The granting of a continuance in a criminal case is largely within the discretion of the trial court and its ruling will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent defendant’s substantial rights have been prejudiced (State v. Dickson, 198 Kan. 219, 424 P. 2d 274). No prejudice resulting from the ruling is shown, and the specification of error cannot be sustained.
Appellant asserts prejudicial error in the prosecution’s closing argument to the jury. He says he is a Negro and therefore the statements made were inflammatory and designed to raise prejudice in the minds of the jurors regarding the alleged connection of certain racial groups to a high incidence of crime in the local community. The remarks complained of were:
“Now, we have presented our case as best we can. I think it was a bit of good fortune and good police work that they were able to happen upon the scene just as Mr. Towner and his accomplice were leaving from in front of the loan company; and it was good fortune for us, the people of Wyandotte County, that they saw this man leaving with this television set and that they were able to apprehend them in such a short distance.
“Now, you all know there is a lot of crime in Wyandotte County. Our police, our Prosecutor’s Office, we are all attempting to do the best job we can. We need your help. We need juries’ help. We put on the best case we have, and in this particular case I think the evidence is very strong in the case. I think that when you get upstairs you won’t have any difficulty in deciding what actually happened in this case; and when you get up there I might add one thing, that you are not up there as twelve men with twelve independent opinions to — you are not up there to go up there and fight over what really happened. You are to get together and talk this over and reach one conclusion, what really happened in this case. You are the triers of the facts.”
No objection to the argument was made at the time it occurred or in the motion for new trial. We have examined the entire argument for the prosecution. It contains no mention or insinuation of race, either directly or indirectly, and we cannot read into it an appeal to racial prejudice. A high crime rate everywhere is a fact of life, well known to all. Less innocuous remarks denouncing crime were held not prejudicial in State v. Griffin, 161 Kan. 90, 166 P. 2d 580. We cannot predicate error here.
The other specifications of error are directed toward appellant’s conviction of the offense of larceny of an automobile and these may be considered together. Count two of the amended information charged appellant with the felonious taking of a 1958 Oldsmobile four door sedan belonging to another. The information contained no allegation as to value of the vehicle. Appellant went to trial upon the information without making any request that it be made more definite and certain as to value. The only evidence as to the character of the automobile, other than the fact it was driven on the streets of Kansas City on the night of November 7, 1965, was that of the owner. The owner testified it was a 1958 white Oldsmobile four door sedan which he had owned six or eight months. There was no mention of value.
As to count two the trial court fully and correctly instructed the jury on both grand larceny (K. S. A. 21-533) and the lesser included offense of petty larceny (21-535). The jury was given the alternative of returning a verdict of guilty as to either offense, depending on its finding of value of the automobile in accord with the applicable statute. Separate forms of guilty verdict as to count two were submitted to the jury, one for use in event of a finding of guilt of grand larceny and one for a finding of guilt of petty larceny. The jury found appellant guilty of grand larceny. The verdict contained no statement of value of the property stolen as called for in K. S. A. 62-1503. Upon this verdict appellant was given the statutory penalty for grand larceny of an automobile (K. S. A. 21-534), it being doubled under the habitual criminal act (K. S. A. 21-107a).
Appellant attacks this conviction and sentence from several approaches, including those of insufficient pleading and proof that the automobile was of a value of $50.00 or more as required by K. S. A. 21-533. Appellee counters with the argument that in order to establish grand larceny value is immaterial when the subject of the theft is an automobile. This was the state of our law until 1959 when our grand larceny statute was amended to its present form. Appellee overlooks the effect of that amendment which was the subject of the appeal in State v. Burney, 194 Kan. 292, 398 P. 2d 335. Our statute defining grand larceny (K. S. A. 21-533) now provides :
“Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of fifty dollars ($50) or more, shall be deemed guilty of grand larceny.”
K. S. A. 21-534, which has remained unchanged since 1920, provides:
“Persons convicted of grand larceny shall be punished in the following cases as follows: First, for stealing any automobile or motor vehicle, by confinement at hard labor for not less than five years and not more than fifteen years; second, for stealing a horse, mare, gelding, colt, filly, neat cattle, mule or ass, by confinement at hard labor not exceeding seven years; third, in all cases of grand larceny, except as provided in the two succeeding sections, by confinement at hard labor not exceeding five years.”
In the Burney case 21-533 and 21-534 were discussed and construed together as applied to the theft of an automobile. Suffice it to say, it was there stated that in the 1959 amendment resulting in our present 21-533 the legislature abolished the form or kind of property taken as a factor in the definition of grand larceny, and after the amendment, value rather than form is the distinguishing characteristic of property subject to grand larceny. It was held that grand larceny under 21-533 is predicated solely on the value of the property, regardless of its form and that decision is controlling here.
Once the offense of grand larceny of an automobile is established, then the first provision of 21-534 prescribes a more severe sentence based upon theft of that character of property than for property of an unspecified character. But, before that provision becomes applicable, it must first be established that the offense of grand larceny, as definied in 21-533, has been committed, that is, that property of a value of $50.00 or more has been stolen.
This brings us to consideration of the evidence showing the value of the automobile. All that was shown was the make, year and model of the automobile, that it was second hand and operable. At the time taken it was approximately eight years old. Although from the description the vehicle could be inferred to be of some intrinsic value and could be inferred to be of a value sufficient to support a conviction of the offense of petty larceny (52 C. J. S., Larceny, § 133a), we are cited to no authority or line of reasoning whereby from the showing made the inference could be drawn that the vehicle in question was of a value of $50.00 or more, and we know of none.
We would not say the diacritical amount could never be inferred in a particular case where property has been sufficiently described or exhibited to the trier of the fact. However, prices of automobiles of the vintage in question are negotiable over a considerable range and are in part at least dependent upon condition. Possibly this vehicle was in fact worth $50.00 but upon the showing made, this fact would not be a matter of unquestionable common knowledge. We think the only safe rule is that the prosecution be re quired to make a sufficient showing and that was not done here. We hold as to the offense charged in count two that the evidence, although sufficient to support a conviction for the lesser included offense of petty larceny, was insufficient to support a conviction of grand larceny. The judgments and sentences for the offenses contained in count one are affirmed. So much of the judgment in count two as convicts appellant of the offense of petty larceny (K. S. A. 21-535) is affirmed. That part which convicts him of the offense of grand larceny and the sentence imposed for grand larceny is modified and reversed. As to the offense contained in count two the cause is remanded to the district court with direction to recall appellant for resentencing for the offense of petty larceny in accord with the provisions of K. S. A. 21-535.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
This is a workmen’s compensation case arising from the death of Walter E. Ford caused by a coronary occlusion suffered by him while driving a truck for his employer.
The Workmen’s Compensation Examiner found that the injury did not arise out of the decedent’s employment and denied compensation. The examiner’s award was reversed by the Workmen’s Compensation Director. Respondent and its insurance carrier appealed to the district court which reversed the director’s award and from that judgment claimants have taken this appeal.
The sole question presented for appellate review is whether there was sufficient competent evidence to support the district court’s finding.
The record consists of the deposition of Dr. Fred E. Brown and a stipulated narrative of the testimony of decedent’s foreman, describing the duties of decedent.
Decedent was in his fifties. He had a good work record and was a well-developed, husky man with no known health problems. He had worked about a year and a half for his employer. His duties consisted of general work in a warehouse, packaging, shipping, receiving and making local deliveries by truck in Wichita. About once a week, as orders required, he made out of city deliveries.
On the day of his death, decedent left his employer s warehouse at about 7 a. m. His assignment for the day was to deliver, in a two and one-half ton truck, a load of fifteen drums of chemical spray weighing 550 pounds each to the Garner Flying Service at Emmett, Kansas.
The unloading operation, accomplished by the use of a two-wheel hand truck, was not shown to be a difficult physical feat. The evidence does not disclose to what extent, if any, decedent participated in unloading the drums.
Following the unloading, decedent proceeded from Emmett toward St. Marys and, while driving, experienced a pain in his chest. He stopped the truck and got out onto the roadway, where he was found by a passerby (Frank Gideon) and taken to the office of Dr. Brown in St. Marys at about 1:30 p. m. He died approximately one hour later.
Dr. Brown diagnosed the decedent’s attack as a coronary occlusion.
In a comprehensive memorandum the trial court reviewed the evidence, set out verbatim the critical portions of Dr. Brown’s testimony, and made an analysis and interpretation thereof. The trial court found that Dr. Brown’s testimony failed to establish a direct causal connection between the work being done and the coronary occlusion and, therefore, concluded that claimants had failed to prove the injury arose out of decedent’s employment.
Dr. Brown was unable to express an opinion as to whether the work engaged in by decedent had precipitated his heart attack. The doctor testified that coronaries have been produced by strain, but he pointed out that one school of medical thought holds that first occurrences of heart attacks are purely coincidental with the activity engaged in, while a second occurrence can be precipitated by strain. Dr. Brown further testified that decedent stated he had never suffered any prior heart trouble.
Since we are concerned with an appeal from findings of fact made by a district court in a workman’s compensation proceeding, we next shall consider rules established by this court governing appellate review in such cases.
In an action under the Workmen's Compensation Act it is the function of the trial court to pass upon the facts and its factual findings cannot be disturbed on appellate review if they are supported by any substantial competent evidence. (McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652, and Kafka v. Edwards, 182 Kan. 568, 322 P. 2d 785.)
In testing the record, as to whether it contains substantial competent evidence to support the judgment of the trial court, we are required to consider the evidence in the light most favorable to the prevailing party below. Further, we are concerned only with evidence which supports the findings of the trial court and not with evidence which would support a contrary finding. (Lyon v. Wilson, 201 Kan. 768, 443 P. 2d 314, and cases cited therein.)
This court will not examine the facts in a compensation case for the purpose of reweighing them in an effort to arrive at a conclusion and result different from that arrived at by the trial court. (Karle v. Board of County Commissioners, 188 Kan. 800, 366 P. 2d 241.)
When a coronary occlusion results in the death of a workman, the claimant has the burden of proving that the fatal occlusion arose out of the workman's employment — that is, there must be some causal connection. (Lyon v. Wilson, supra; and Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205.)
This court has applied the above mentioned rules in three recent workmen’s compensation cases dealing with cardiac or vascular accidents. The cases referred to are Meyers v. Consolidated Printing & Stationery Co., 201 Kan. 806, 443 P. 2d 319; Lyon v. Wilson, supra; and Janousek v. Western Star Mill Co., 201 Kan. 380, 440 P. 2d 616.
As to the instant case, it suffices to say that after a careful examination of the record we are convinced it discloses sufficient competent evidence on which the trial court, as was its province, could arrive at the findings made. It follows that under the decisions to which we have referred such findings cannot be disturbed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant was found guilty in the police court of the city of Abilene, Kansas, of driving an automobile while under the influence of intoxicating liquor on the streets in Abilene, in violation of ordinance on the 8th day of March, 1967, and upon appeal to the district court was found guilty of such offense by a jury. Appeal has been duly perfected.
The questions pertain to the admissibility of evidence at the trial in the district court.
Only the facts necessary to determine this appeal will be stated. Robert Harvey, a chemist employed by the Kansas State Department of Health, was called as a witness. He holds a Bachelor of Science Degree in chemistry from Washburn University at Topeka, Kansas, and had performed blood alcohol examinations for the State Department of Health for approximately two and one-half years prior to the time of his testimony. He received his training from Dr. Glendening, who is head of the chemistry section of laboratory services at the Kansas State Department of Health. Approximately 85 percent of Robert Harvey’s time was spent with the State Department of Health in making blood alcohol analyses.
Harvey performed the blood alcohol test on the sample of blood taken from the defendant relative to the offense charged herein, and upon the evidence there is no question but that the specimen of blood analyzed was traced to the defendant as the specimen taken from him at the time of his arrest.
The method used in making the blood alcohol test was that of “Gas Chromatography” using an instrument known as a “Beckman GC-4 Gas Chromatograph.”
Upon direct examination Harvey testified he determined the percent by weight of ethyl alcohol in the sample of blood taken from the defendant and determined the percentage to be 0.288. He further testified he was fully familiar with the machine he was using and with its operation. He testified this method of determining the alcoholic content in blood is accurate and scientifically accepted.
The questions presented are confined to the method used in determining the blood alcohol content, the Beckman GC-4 Gas Chromatograph being a new device used to determine blood alcohol content. The appellant contends the trial court erred in accepting the testimony of Harvey regarding blood alcohol test procedures and results because Harvey was not acquainted with the testing device. He further contends the court erred in not requiring a sufficient foundation prior to the acceptance in evidence of an exhibit disclosing the blood alcohol test results.
Harvey testified the gas chromatograph instrument, used in determining blood alcohol content, is much more complicated and sophisticated than any of the other methods previously used in determining blood alcohol content. Highly summarized from his testimony on both direct and cross examination we glean a description as follows:
The Beckman GC-4 Gas Chromatograph is an instrument used for detecting various organic vapors. The process begins by placing one cubic centimeter of whole blood in a 35 cubic centimeter serum bottle and sealing it, allowing the sample to come into equilibrium with vapors forming above the liquid. One cubic centimeter of the vapor is then withdrawn and injected into the machine. From this point on the process becomes completely mechanical save the interpretation of the graphic results. After injection the vapor passes through one of two vertical six-foot stainless steel columns which have an inside diameter of one-fourth inch. The other column is identical and is used solely for control purposes. The columns are packed with a white, ground firebrick material known as chromosorb, and helium gas under pressure is utilized as a vehicle. The columns are enclosed in an oven which is maintained at a constant temperature of 100° centigrade.
At the terminus outside of each column is a flame, itself enclosed in the instrument and whose burning is controlled by an independent supply of hydrogen and oxygen. Before a sample is injected for analysis these flames are completely balanced. When the sample reaches the one flame the balance is upset and a change is caused in the intensity of burning which is noted by means of an electronic detector and recorder. The recorder is set to plot a straight line prior to injection of the sample. It is the change in this line or peaks on the graph which determine the quantity of the substance present. Likewise, it is the time it takes for the substance to pass through the column which determines the character of the substance. The time the substance is retained in the column varies with its molecular weight and structure, and the retention time is measured on the same graph and is determined by the graph or chart moving through the pen of the detector at the rate of one-half inch per minute. It is the difference in burning of the flames and the retention time in the column that determines the character of the substance and its quantity.
Harvey testified the retention time of ethyl alcohol is three minutes.
On cross examination Harvey testified that on the particular day he ran the test on the sample of blood taken from the appellant he made a test run on known concentrations of blood and alcohol samples by running them through the machine prior to making the test on this particular sample. Accuracy of the instrument is checked by running the standard samples through. This was normal daily procedure.
When Harvey was asked on cross examination how he determined the alcoholic content when the gas passed through the column and reached the flame, he said:
“A. Well, there’s a detector, and don’t ask me how it works, because I really couldn’t tell you, but there’s a detector at the end of both of these flames which can detect the flame height and burning characteristics of the flame. When the sample hits the hydrogen flame it’s going to cause a change in the characteristics of the burning. The detector senses this and it’s sent to a — uh, the recorder, which amplifies—
“Q. Now, just a minute before we go further. The sample has now reached the flame, and the detector device has come into play.
“A. Yes, sir.
“Q. Then from that time forward — I believe you indicated in the rest of your answer that this is mechanical?
“A. Sir?
“Q. That it was mechanical what the detector did and whatever else happened; is that right? The device activates itself and goes through certain procedures or makes certain marks on something?
"A. I inject the sample, and from that time on until it is plotted on the chart paper, I — it’s all done within the instrument.
“Q. I see. And you can’t explain this detector to us?
“A. That’s a very sophisticated electronic piece of equipment. I wouldn’t even begin to be able to explain it.
“Q. And is this considered a new device in the field for making these analyses?
“A. Yes — gastromatography. It’s real new. A detector is attached to the standard column as well as the column used for analysis. A chemist can tell if the detector attached to the analysis is functioning properly by running standard solutions and plotting the standard results.” (Emphasis added.)
By the provisions of K. S. A. 8-1005, applicable herein, the legislature has authorized the admission of evidence of the amount of alcohol in the defendant’s blood at the time alleged in a prosecution for driving while under the influence of intoxicating liquor. The statute reads in part:
“Any criminal prosecution for the violation of the laws of this state relating to driving of a motor vehicle while under the influence of intoxicating liquor, . . . or in any prosecution for a violation of city ordinance relating to the driving of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted, and shall give rise to the following presumptions:
“(a) If there was at that time less than 0.15 percent by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
“(b) If there was at that time 0.15 percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.”
Courts are in accord that to be permitted to evaluate the findings or results of any chemical tests for alcoholic content of blood the witness must be an expert on that subject, having the proper academic background and practical experience. The cases seem to indicate that a properly educated and practicing medical doctor, chemist, medical technologist, biologist, biochemist or toxicologist has the necessary qualifications. (77 A. L. R. 2d 971, 973; and see, State v. Foster, 198 Kan. 52, 422 P. 2d 964, including cases cited therein; and State v. Bailey, 184 Kan. 704, 339 P. 2d 45.)
In one of the earlier cases of this type involving a breath test by means of a drunkometer, the Supreme Court of Michigan extended the state’s burden in presenting chemical test evidence. While it did not hold this type of evidence inadmissible, it ruled that the state must show the particular test method employed had received general acceptance by the medical profession, or that it had been given scientific recognition as being capable of accurately establishing the alcoholic content of the subject person’s blood. Because the prosecution had failed to show this as a condition precedent to the admissibility of such evidence, to the satisfaction of the Supreme Court of Michigan, the conviction was reversed. (People v. Morse, 325 Mich. 270, 38 N. W. 2d 322 [1949].)
The Michigan rule, however, has not generally been followed. Appellate courts in other jurisdictions have generally held that the fact there may be some disagreement on the part of a few in the scientific and medical community as to the reliability of a particular test method is a matter affecting the weight of such evidence and not its admissibility. They have held such evidence admissible as long as a qualified expert witness testifies that the particular test method employed in a given case is reliable and accurate in his opinion, and also that it is generally accepted as such by other experts in the field. (McKay v. State, 155 Tex. Cr. R. 416, 235 S. W. 2d 173 [1951]; People v. Bobczyk, 343 Ill. App. 504, 99 N. E. 2d 567 [1951]; Commonwealth v. Mummert, 183 Pa. Super. 638, 133 A. 2d 301 [1957]; People v. Garnier, 20 Ill. App. 2d 492, 156 N. E. 2d 613 [1959]; Toms v. State, 95 Okla. Cr. 60, 239 P. 2d 812 [1952]; and see, State v. Wardlaw, 107 So. 2d 179 [Fla. App. 1958].) These cases seem more persuasive to us and we adhere to the rule they announce.
A comprehensive study of decisions dealing with the proper presentation of chemical tests for intoxication is found in Donigan on Chemical Tests and the Law, pp. 62-71.
In People v. Bobczyk, supra, the court had before it a breath test by means of a drunkometer, and in affirming a conviction for driving while under the influence of intoxicating liquor, refused to follow the Michigan rule, stating:
“Defendant argues that there is a lack of unanimity in the medical profession as to whether intoxication can be determined by breath. Even so we think this objection goes to the weight of the testimony and does not destroy its admissibility. The evidence in this case shows that the experts called by the State are eminently qualified in the field in question. . . .” (pp. 510, 511.)
The Uniform Vehicle Code, adopted by the National Committee on Uniform Traffic Laws and Ordinances, specifically provides that:
“Chemical analyses of the person’s blood, urine, breath, or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the State Department of Health and by an individual possessing a valid permit issued by the State Department of Health for this purpose. The State Department of Health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and ' competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the State Department of Health.” (UVCA § 11-902 [c] [1962].)
Although the Uniform Vehicle Code has not been adopted by Kansas, it is to be noted Harvey testified he was employed by the State Department of Health; that he received his training under Dr. Glendening; and that he was supervised in his work by Dr. Glendening. Harvey also testified the method used herein to determine the alcoholic content of the appellant’s blood was adopted by the State Department of Health only after the method had been researched for months. It may be said, therefore, the method used to determine the alcoholic content of the appellant’s blood was approved by the State Department of Health, and that Harvey, who made the test, had the necessary qualifications as an expert, authorized by the State Department of Health, to make an analysis of the alcoholic content of the appellant’s blood by the gas chromatograph method. He had sufficient education, training and experience, and had a complete and full understanding of the device which he was using to make the test.
This court in City of Wichita v. Showalter, 185 Kan. 181, 341 P. 2d 1001, held the testimony of the officer administering a test on the alcometer was properly received in evidence even though the prosecution failed to show that the operator of the machine fully understood all the workings of such machine.
A paper entitled “Determination of Alcohol and Other Volatiles in Blood by Gas Chromatography” was presented.at the Laboratory Section of the American Public Health Association at its 96th annual meeting in Detroit, Michigan, November 14, 1968, prepared by Blaine L. Glendening, Ph. D., and Nicholas D. Duffett, Ph. D., F. A. P. H. A., they being the Chief, Chemistry Section and Director, of the Laboratory Services of the Kansas State Department of Health. It states:
“Comparison determinations on tire gas chromatograph of a number of samples were made with two other standard methods, the autoclave diffusion method of Kingsley and Current and the distillation method of Heise. . . (p. 7.)
The report discloses the percentages shown on all three methods were substantially identical. The following is stated in the summary:
“The method described using the gas chromatograph for the determination of blood alcohol on a routine basis is simple, convenient, specific and reliable.” (p. ID
We hasten to add the above paper prepared by Dr. Glendening and Dr. Duffett, reported as above indicated, was not before the trial court as evidence in this case, nor was either Dr. Glendening or Dr. Duffett called as a witness in the case.
While evidence of this character may have strengthened the prosecution’s case, we do not think its absence fatal for the reasons heretofore stated.
We do not think the failure of the witness Harvey to understand the intricate functioning of the sophisticated electronic detector and recording device employed by the Beckman GC-4 Gas Chromatograph, used to determine the alcoholic content of the appellant’s blood, is vitally material to the admission of Harvey’s testimony in evidence, or a prerequisite to the admission of the test results in evidence. Of vital importance, we think, is the fact that Harvey testified, before making the particular test in the instant case on. the sample of blood taken from the appellant, that tests were run on known concentrations of blood and alcohol samples by using the gas chromatography instrument to check the accuracy of its operation, and that before running any tests this was normal daily operating procedure.
Of course, the expert who performs a blood alcohol analysis may be cross-examined in detail as to whether the proper procedures were followed; the equipment was in proper working order; the exact quantities of the proper substances were measured out; the exact temperatures were employed; and the operator, after a course of instruction, was qualified to make the test. On many of these matters cross examination was waived.
As a qualified expert Harvey testified the gas chromatograph method employed herein was reliable and accurate in his opinion, and also generally accepted as such by other experts in the field.
Accordingly, we hold the objections made by the appellant herein to the admission of the testimony of the witness Harvey, and to the results of the test determining the alcoholic content of the appellant’s blood ascertained by using such instrument, go to the weight of the evidence rather than to its admissibility, and the trial court did not err in admitting such evidence at the trial.
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The opinion of the court was delivered by
Hatcher, C.:
This is an opinion on a post-decision motion. The movant requests that we overrule our previous decision in the entitled matter and consider his appeal on the merits.
This court had before it the appeal of the appellant from an order of the district court denying consideration of the petition for relief under K. S. A. 60-1507 for the reason the petitioner had filed a previous petition for relief under the same statute. On November 5, 1966, we remanded the case to the district court directing that the action be dismissed. We concluded in the opinion:
“Under the provisions of K. S. A. 60-1507 (c) a prisoner may not challenge the validity of a sentence where, despite an adjudication finding the challenged sentence void, he would still be confined under another sentence resulting from a conviction for another offense. (Lee v. State, 197 Kan. 371, 416 P. 2d 285.)” (Jackson v. State, 197 Kan. 627, syl., 419 P. 2d 937.)
The decision was based on Supreme Court Rule No. 121 (c) (2) which read:
“• • • a prisoner has no right to an adjudication of a motion challenging the validity of a sentence where notwithstanding an adjudication of invalidity of the sentence challenged he would still be confined under another sentence, . . .” (194 Kan. xxvn.)
The above rule was taken from the federal rule announced in McNally v. Hill, Warden, 293 U. S. 131, 79 L. Ed. 238, 55 S. Ct. 24 (1934). The McNally case was overruled in Walker v. Wainwright, 390 U. S. 335, 19 L. Ed. 2d 1215, 88 S. Ct. 692 (March 11, 1968).
In view of the recent United States Supreme Court decision we deleted the above quoted provision from our rules and it is no longer given effect. (Davis v. State, 202 Kan. 192, 446 P. 2d 830.)
Under the present existing circumstances the mandate should be withdrawn and the original appeal determined on the merits.
The first petition presented to the district court was in letter form and did not raise the questions presented in the second formal opinion. The situation here would appear to be covered by the rule laid down in McQueeney v. State, 198 Kan. 642, 426 P. 2d 114. We quote from page 644 of the opinion:
“. . . When a 60-1507 motion is filed on the prescribed form, the presumption is that all grounds upon which a petitioner is relying have been listed in his answer to question No. 10. Under such circumstances, the sentencing court is not required to entertain a second or successive motion, even though it contains additional grounds for relief (Smith v. State, 195 Kan. 745, 408 P. 2d 647); however, where, as here, the first motion was filed prior to the adoption of Rule No. 121, the district court is required to consider any additional grounds in the second motion not previously alleged and determined (Perrin v. State, 196 Kan. 228, 410 P. 2d 298). After examining the present grounds alleged, we are of the opinion they were not squarely presented in the first motion, and hence, it was proper for the district court to proceed to adjudicate such grounds on their merits.”
We conclude that the trial court should have considered the second petition on the merits.
The mandate issued on November 29, 1966, from this court shall be recalled, the judgment of the district court is reversed and the case remanded with instructions to the district court to determine the issues present in the formal petition filed February 15, 1965.
approved by the court. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action was brought by the widow of a United States Air Force officer to collect the proceeds of an insurance policy issued by the defendant on the life of her husband. Plaintiff predicated her right to recover on two alternative theories: (1) upon the policy as written, and (2) upon the policy as sought to be reformed. The trial court sustained separate motions for summary judgment in favor of the defendant on each theory, and plaintiff has appealed.
Two points are presented for our consideration. The first relates to the claim upon the policy as written and involves the question of whether or not the insured’s death, under the circumstances alleged in the petition, was a risk excluded by the terms of an aviation exclusion rider attached to the policy. The second point has to do with the statute of limitations barring the claim for reformation of the policy on the ground of fraud. Because the two points involve different questions, they will be discussed separately.
The pertinent portions of the aviation exclusion rider are as follows:
“Military Exclusion
“Aviation Exclusion
“Death of the Insured occurring as a result of operating, riding in or descending from any kind of aircraft (1) operated for military or naval purposes, or (2) operated for any aviation training, or (3) of which the Insured is acting as a pilot or member of the crew, is a risk not assumed under said Policy.
“The limitation of liability set forth above shall not apply if the death of the Insured occurs as a result of operating, riding in or descending from a licensed commercial aircraft provided by an incorporated commercial carrier on a scheduled air line service regularly offered over an established route.”
The essential facts surrounding the insured’s death are gathered from plaintiffs original petition filed June 29, 1966. Plaintiff’s hus band, Oscar Goforth, was a navigator, serving in the United States Air Force. While stationed at Forbes Air Force Base on October 14, 1959, he purchased the life insurance policy, upon which recovery is sought, through the defendant’s agent, a retired Air Force colonel, R. W. Rodieck. Plaintiff was named as the beneficiary in the policy. On July 1, 1960, a military aircraft upon which Lt. Goforth was serving as a navigator was fired upon by Russian aircraft over international waters of the Barents Sea. As a result of the damage inflicted on the plane, the crew bailed out, abandoning the aircraft. Two crew members were taken alive from the sea by a Russian ship, and the body of another was later recovered by the Russians. The bodies of Lt. Goforth and the two other crew members were never found. The temperature and weather conditions were such that it was impossible for a person to survive in the water for more than a few hours. Lt. Goforth was officially declared dead one year later (July 1, 1961). Plaintiff alleged her husband died as a result of conditions existing after his descent, and that the proximate cause of his death was exposure rather than any failure of the aircraft in which he was riding. She further alleged that the insured’s death was not excluded by the aviation exclusion clause contained in the policy.
Defendant filed a motion to dismiss plaintiffs original petition as to both theories of recovery. Insofar as it related to her right to recover on the policy as written, defendant contended the aviation rider specifically excluded the insured’s death and there was no coverage under the terms of the policy. The parties stipulated the policy should be considered by the trial court in ruling on the motion. A part of the court’s memorandum opinion follows:
“Defendant’s motion to dismiss for failure of the petition to state a claim upon which relief can be granted has been treated as a motion for summary judgment under K. S. A. 60-256 for the reason that matters outside the pleadings were presented and not excluded by the Court. Specifically, the Court considered the insurance policy.
“. . . Assuming for the purpose of this motion that all the facts alleged in plaintiff’s petition are true and considering said facts in the light most favorable to the plaintiff, the Court rules that the facts alleged in plaintiff’s petition conclusively show, as a matter of law, that the insured’s death occurred as a result of operating, riding in and descending from an aircraft operated for military purposes.
It would appear that plaintiff in her brief concedes that death by drowning or exposure after the forced landing of a land-based airplane in a body of water has been held by a number of courts to be within the terms of a variety of aviation exclusion clauses and hence not to be a risk assumed by the insurance company. (Citing cases.)
“However, plaintiff seeks to distinguish the instant case on the ground that the aircraft upon which the insured was riding was disabled by Russian gunfire making it necessary for all members of the crew including the insured to parachute from the aircraft. Enemy gunfire has been discussed in several cases. . . .
“The aviation provision in the instant case differs [from other cases] in that the risk relating to aircraft operated for military purposes is specifically excluded. The allegations of the petition clearly indicate that the insured was riding in an aircraft operated for military purposes. Certainly, a familiar and ordinary risk of operating military aircraft is the danger of being ‘shot down’ by unfriendly forces. The risk that a land-based military aircraft might be ‘shot down’ or forced down over water by gunfire of unfriendly forces is equally ordinary and familiar.
“It is, therefore, the ruling of the Court that the facts as alleged in plaintiff’s petition constitute a risk excluded by the terms of the aviation provision of the insurance policy and that the defendant is liable to the plaintiff only for the amounts due under the terms of said aviation provision. If the beneficiary has been previously paid said amounts, then no further liability exists on the part of the defendant.”
Plaintiff first attacks the trial court’s ruling on the basis the entry of summary judgment was premature because the case was not at issue, discovery had not been completed, and pretrial had not been conducted. We are unable to agree. At the time of the ruling the court had before it plaintiff’s petition. As against a motion to dismiss, all well-pleaded facts in the petition were fully admitted. (Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347.) The basis of plaintiff’s claim was that the insured’s death was not excluded by the aviation provision. The facts and circumstances of his death were fully alleged, and for the purposes of the motion, the cause of death was undisputed. By agreement, the policy, which had not been a part of plaintiff’s petition, was also before the court for consideration. The posture of the proceedings at this point left merely a question of law for the court to determine, namely, whether or not the insured’s death was a risk excluded by the terms of the rider. This involved interpretation of the policy in light of the undisputed facts. As a general rule, the construction and effect of a written contract of insurance is a matter of law to be determined by the court. If the facts are admitted, as they were here, then it is for the court to decide whether they come within the terms of the policy. (St. Paul Mercury Ins. Co. v. Huitt, 332 F. 2d 37 [6th Cir. 1964]; 1 Couch on Insurance 2d § 15.3.)
The stage of the proceedings does not necessarily determine the propriety of summary judgment being rendered. The criteria is whether or not at the particular stage at which summary judgment is sought it is shown conclusively that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment guidelines have been discussed in numerous cases, including Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P. 2d 838, Bowen, Administrator v. Lewis, 198 Kan. 605, 426 P. 2d 238, Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976, Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, and need not again be repeated. Suffice it to say, summary judgment was not premature on the question of coverage under the terms of the policy in the instant case.
Before proceeding to the merits of the first point, we must be mindful of certain fundamental principles regarding the construction of insurance contracts.
The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting or susceptible of more than one construction, the construction most favorable to the insured must prevail. Since the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage provided in the policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured. If, however, the contract is clear and unambiguous, the words are to be taken and understood in their plain, ordinary and popular sense, and there is no need for judicial interpretation or the application of rules of liberal construction; the court’s function is to enforce the contract according to its terms. (Fowler v. United Equitable Ins. Co., 200 Kan. 632, 438 P. 2d 46, and numerous authorities therein cited. Also, see, Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310.)
In her petition plaintiff alleged that her husband’s death was the result of conditions after his descent into the sea and that the proximate cause of death was exposure in the water. As in the lower court, plaintiff in her brief concedes that numerous cases have held that death by exposure or drowning after the descent of a land-based aircraft is a hazard normally understood to attend aerial flight and is a risk clearly intended by the parties to be excluded under various types of aviation exclusion clauses. Decisions supporting this proposition are Order of United Commercial Travelers v. King, 161 F. 2d 108 (4th Cir. 1947), affirmed 333 U. S. 153, 92 L. Ed. 608, 68 S. Ct. 488, rehearing denied 333 U. S. 878, 92 L. Ed 1153, 68 S. Ct. 900; Hobbs v. Franklin Life Insurance Company, 253 F. 2d 591 (5th Cir. 1958); Rauch v. Underwriters at Lloyd’s of London, 320 F. 2d 525 ( 9th Cir. 1963); Green v. Mutual Ben. Life Ins. Co., 144 F. 2d 55 (1st Cir. 1944); and Neel v. Mutual Life Ins. Co. of New York, 131 F. 2d 159 (2d Cir. 1942).
The rationale of the courts in denying recovery under such circumstances is illustrated in Order of United Commercial Travelers v. King, supra. There the insured was a flight observer with the Civil Air Patrol. The plane in which he was riding was a land-based plane which was forced down at sea because of engine trouble. The plane safely landed in the water and the insured managed to inflate his life jacket and free himself from the aircraft before it sank. The insured’s body was later recovered, and death was determined to have been caused by drowning as a result of exposure in the water. The policy excluded coverage for “death resulting from participation, as a passenger or otherwise, in aviation or aeronautics.” The court held the exclusion clause comprehended the very situation that developed. The reasoning of the court is expressed as follows:
“. . . In undertaking an aerial flight over the ocean in a land-based plane, man must reckon with the perils of the sea which are as imminent and real as the unrelenting force of gravity. Just as flight over the land brings forth the danger of violent collision with the earth, we have the dangers of the sea in overwater flight. That men may remain alive for varying periods of time before succumbing does not change the picture. We think it a rather violent fiction to say that death, under such circumstances, comes from accidental drowning. Common knowledge and experience fairly shout of the dangers of shock, exposure and drowning when a flight is taken over water in the winter time in a land-based plane.” (p. 109.)
Likewise, in Green v. Mutual Ben. Life Ins. Co., supra, the policy excluded death occurring by reason of any aerial flight. It was held there could be no recovery on the policy where the insured, while in training as a naval aviation cadet, lost his life when, unable to land upon a carrier because of a sudden snow storm, he was forced to land in the water, the court saying:
“The natural and obvious meaning of the aviation clause in the case at bar is that the insurer declines to assume those extra risks of death ordinarily associated with aerial flight. Where death admittedly results from the opera tion of one of those familiar and popularly understood risks there cannot be any issue of proximate causation for a jury to determine. . . .” (p. 57.)
In all of the above-cited cases it was recognized that the risk of death by drowning or exposure was inherent in the flying of a land-based plane over water. The attendant risk of an insured losing his life in the water as the result of engine trouble or adverse weather conditions was a normal, anticipated risk clearly contemplated by the terms of the aviation exclusion clauses.
The aviation activity must in some way be regarded as a proximate cause of the harm sustained in order to bring the harm within an aviation exception. In this sense, however, proximate cause is often said to refer to risks the parties contempleted and intended to include or exclude from coverage. Judge Cardozo, in Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 120 N. E. 86, 13 A. L. R. 875, said:
“General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts . . . The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms of speech and modes of thought must tell us when to stop. It is an act of‘judgment as upon a matter of fact’. . . .” (p. 51.)
Also, see, Order of United Commercial Travelers v. King, supra, where the court chose to attach to the word “resulting” the ordinary meaning given it by laymen rather than any technical or legal connotation borrowed from the law of torts pertaining to causation.
Plaintiff looks to other portions of her petition and urges the instant case is distinguishable from the foregoing cases in that her husbands death occurred as a result of an outside or intervening cause, namely, Russian gunfire, and was not an excluded risk under the clause in question. She relies principally on Boye v. United Services Life Ins. Co., 168 F 2d 570 (D. C. Cir. 1948), cert. denied 335 U. S. 828, 93 L. Ed. 381 69 S. Ct. 54, Bull v. Sun Life Assur. Co., 141 F. 2d 456 (7th Cir. 1944), cert. denied 323 U. S. 723, 89 L. Ed. 581, 65 S. Ct. 55, and Riche v. Metropolitan Life Ins. Co., 84 N. Y. S. 2d 832, holding generally that death of an insured resulting from a hostile third party is not excluded by an aviation clause, since such was a risk of war rather than a risk of aviation. Plaintiff also directs our attention to statements in Barringer v. Prudential Ins. Co., 62 F. Supp. 286 (D. C. Pa.), affirmed 153 F. 2d 224 (3d Cir. 1945), and Massachusetts Mut. Life Ins. Co. v. Smith, 193 F. 2d 511 (5th Cir. 1952), rehearing denied 194 F. 2d 1006, cert. denied 344 U. S. 823, 97 L. Ed. 641, 73 S. Ct. 22, which tend to support her argument.
In Boye v. United Services Life Ins. Co., supra, the insured was a bomber pilot who failed to return from a mission on which his plane was believed to have been lost as a result of enemy antiaircraft fire. The court held death was not due to “operating or riding in any kind of aircraft” within the aviation exclusion clause of the policy, but was the result of gunfire, which was a risk of war not excluded by the policy. The court likened the situation to that where a policy excluded death “due to operating or riding in an automobile” and the insured had been killed by gunfire while driving an army car.
Likewise in Bull v. Sun Life Assur. Co., supra, the policy excluded death “as a result, directly or indirectly, of service, travel or flight in any species of aircraft.” The insured’s seaplane, after being damaged by enemy fire, made a forced landing in the water. While the insured was attempting to launch a life raft, a Japanese seaplane strafed the crippled aircraft. The plane blew up and insured was never seen again. The court concluded the intention of the parties was to exclude only the risks of aviation and to assume war risks not connected with aviation. The court held the flight was completed when the plane landed, and death was due solely to a risk of war, not of aviation. Therefore, recovery was allowed on the policy. There was a strong dissent pointing out that death was at least the indirect result of an airplane flight.
Also, in Riche v. Metropolitan Life Ins. Co., supra, recovery was permitted under an identical exclusion clause as found in the Bull case. The insured was killed during World War II when his plane was struck by enemy fire. The court said:
“As pointed out above, the defendant apparently did not concern itself with the exclusion of war risks at the time the policy was issued, even though it must have been apparent at that time that such risks might well materialize. Defendant did seek to exclude certain aviation risks. The risks it intended to exclude would seem logically to be only the risks ordinarily attendant upon flight, and not special war risks which it could have but did not choose to exclude. . . . Assured’s death was not the result of any event proceeding out of the flight of the airplane. Assured died from enemy fire just as certainly as though he had been an infantryman occupying a foxhole in the front lines. Death was the result of a deliberate act of a third person, and was not connected in any way with any risk ordinarily associated with aerial flight.
“This Court concludes that the death of the insured, Wilson A. Riche, was the direct result of an act of war or of violence on the part of a third person or third persons and that his death was not the result, directly or indirectly, of travel or flight in any species of air craft.” (pp. 835, 837.)
A review of the cases upon which plaintiff relies discloses the aviation exclusion clauses differ greatly from the clause in the policy here. At least on this basis we think the cases are readily distinguishable and are not controlling.
Clauses which seek to except or limit the liability of an insurer where death or injury of the insured is the result of his connection with aviation or aeronautics take many forms. (Annos. 155 A. L. R. 1026, 17 A. L. R. 2d 1041, 36 A. L. R. 2d 1018.) It would appear the particular language of the clause in question is unusual. Our limited research discloses the identical clause was before an appellate court in Tennefos v. Guarantee Mutual Life Company, 136 N. W. 2d 155 (N. D. 1965), but the case turned on a portion of the clause not directly involved here.
Although the policy contains no so-called war risk exclusion, the aviation clause, by its first subsection, specifically excludes death occurring as a result of operating, riding in or descending from any kind of aircraft operated for military or naval purposes. The caption of the rider containing the words “Military Exclusion” may properly be read and construed with the language of the rider itself. (Coit v. Jefferson Standard Life Ins. Co., 28 Cal. 2d 1, 168 P. 2d 163, 168 A. L. R. 673.) Both refer specifically to “military.” The word must have been used for a purpose. Undoubtedly, the risks reasonably to be anticipated and incident to aircraft operated for military purposes are greater than those arising from the operation of civilian aircraft. We believe the reference to any kind of aircraft operated for military purposes includes the very risk involved here. In other words, the disablement of Lt. Goforth’s plane by gunfire of unfriendly aircraft which immediately led to his death after his descent may reasonably be said to be a risk contemplated by the parties and intended by them to be excluded by the clause in the present policy.
Under the world situation as it existed at the time of the issuance of the policy, and as it continues to exist, the cold war between the United States and Soviet Russia is a fact of reality marked with grave implications arising from incidents involving the military and naval forces of this country. Aerial reconnaissance missions by military aircraft are not unusual, and attendant with such operations is the risk of being “shot down” or “forced down” by unfriendly forces. We believe the specific wording of the first subsection of the aviation provision here represents a conscious effort on the part of the insurance company to cope with the volatile world conditions of this era and exclude the risk of an insured being killed as the result of a military aircraft being shot down by the aggressive act of an unfriendly power. The risk of death under such conditions is one that we consider neither unusual nor unanticipated in relation to aircraft operated for military purposes.
In answer to plaintiff’s argument that the absence of a specific war risk exclusion compels a different conclusion, we need only point to two of our own cases.
In Knouse v. Equitable Life Ins. Co., supra, the insured was a gunner on an Army bomber returning from a mission when the plane ran out of gas. The insured bailed out and was killed in the jump. The policy contained a clause excluding death “as a result, directly or indirectly, of service, travel or flight in any species of aircraft.” There was no provision regarding military service. The contention was made that the absence of a specific military service provision combined with the insured’s answers to questions in the application for insurance rendered the exclusion clause ambiguous and called for its application only to civilian aviation. In a comprehensive opinion by Justice Thiele the court reviewed many decisions, including Green v. Mutual Ben. Life Ins. Co., supra, and Bull v. Sun Life Assur. Co., supra, and held:
“It may not be doubted that the insurer prepared the contract and if it did not make its meaning clear, it must suffer. It is to be remembered that the company, however, could determine what risks it would cover by the policy it issued. It was at liberty to assume war risks and aviation risks as it chose. On the basis of the above answers, it did not attach a war clause but it did attach the aviation provision. Did the fact the company did not attach a war clause make the aviation provision ambiguous? We think not. As has been noted in some of the cases reviewed above, it is fallacious reasoning to say that because a policy fails to exclude war risks, the scope of the contract which clearly excluded certain deaths in aerial flights, is, because of such failure, to be construed to cover all war risks and so to cover deaths in aerial flights of the excluded kind. [Citing cases.] The language in the aviation provision stating that death as a result of flight ‘in any species of aircraft’ except as a passenger under stated circumstances ‘is a risk not assumed,’ is clear and is not ambiguous because there was no war risk clause attached to the policy.
“Neither may it be said that the clause refers only to civilian flights and not to military flights. Its language refers to flight ‘in any species of aircraft,’ about as all-inclusive language as could be used. We are not warranted in reading into this plain language, any words that would modify that language and make it say something other than was said. As was said at an earlier part of this opinion, where a contract is not ambiguous this court may not make another contract for the parties; our function is to enforce the contract as made. [Citing cases].” (pp. 223-224.)
More analogous factually to the instant case is McKanna v. Continental Assurance Co., 165 Kan. 289, 194 P. 2d 515, where the insured was a bomber pilot flying a mission over Italy when his plane was hit by enemy antiaircraft fire and exploded in the air. There were no survivors. The aviation clause limited the company’s obligation to payment of the reserves under the policy “Should the death . . . result from bodily injuries sustained while in or on, or in consequence of having been in or on any device for aerial navigation. . . .” The decision dealt with the propriety of the trial court’s overruling plaintiff’s demurrer to defendant’s answer. In affirming the lower court, we observed there was no difference between the meaning of this clause and the one contained in the policy in the Knouse case. Furthermore, it was held the clause was not ambiguous.
Despite the fact that the exclusion clauses in both cases made no specific reference to “military aircraft” such as in the case here, the phrases “in any species of aircraft” and “any device for aerial navigation” were said to apply to risks attending military flights. Further, in McKanna no attempt was made to distinguish a situation where death resulted from enemy gunfire.
The language in the aviation provision excluding death “occurring as a result of operating, riding in or descending from any kind of aircraft operated for military or naval purposes” is clear and unambiguous. Consequently, the court’s function is to enforce the provision according to its terms. We hold that Lt. Goforth’s death was a risk not assumed by the insurer under the terms of the policy, and that the trial court properly rendered summary judgment for the defendant.
We turn now to plaintiff’s second point that the lower court erred in holding her claim for reformation of the policy on the ground of fraud was barred by the statute of limitations. We note that in ruling on defendant’s motion to dismiss plaintiffs original petition in respect to reformation of the policy, the district court held she stated a claim for relief on the basis of mutual mistake of fact. After several procedural problems not now important, plaintiff filed a second amended petition basing her claim for reformation solely on fraud.
Plaintiff alleged that sometime prior to purchasing the policy she and her husband reviewed and discussed the life insurance policies already in force on his life. Concluding that none of the policies covered Lt. Goforth when he was engaged in his regular occupation, the couple agreed to secure additional life insurance which would provide coverage while he was flying. They consulted Col. Rodieck and expressly told him they wanted insurance which would cover the lieutenant when he was engaged in his occupation as a navigator in the Air Force. Col. Rodieck assured the Goforths he would secure from the defendant company an insurance policy which would meet their specific needs. Relying on the colonel’s statements, Lt. Goforth signed an insurance application prepared by the colonel. When the policy was purchased, the Goforths assumed it provided the coverage they had specifically requested. Plaintiff further alleged the facts and circumstances surrounding her husband’s death which were narrated earlier in this opinion. Additionally, she alleged that after Lt. Goforth was officially declared dead, officials of the insurance company visited her and paid her a relatively small sum, and advised her the sum was only a refund of premiums because her husband’s death was not covered by the policy. Finally, she alleged that the insertion of the aviation exclusion clause was contrary to the intention of the parties, and because of the fraud on the part of defendant’s agent, she was entitled to reformation of the policy and recovery of the full amount thereof.
Following the filing of plaintiff’s second amended petition, defendant took her deposition, wherein many of the factual statements set out in her petition were again repeated. Additionally, her deposition testimony disclosed that shortly after she received word on July 1, 1960, that her husband’s plane had been shot down, Col. Rodieck, who was no longer an agent for the defendant insurance company, contacted her and told her she would be receiving three checks, including one for the face amount of the policy. Approximately one year later, in July or August 1961, after her husband had been officially declared dead, a Mr. Belden, an agent of the insurance company, called on plaintiff and informed her the policy provided no coverage for her husband while flying in a military aircraft. He tendered her a check for premiums paid, which she refused. After Mr. Belden departed, plaintiff read the policy for the first time and discovered the exclusionary clause. Several days later she contacted an attorney by the name of Mr. Probasco. Within a few weeks after her conference with Mr. Belden, and still in 1961, plaintiff decided to accept the check for refund of premiums in lieu of pursuing the matter further. She so informed Mr. Belden and told him she was tired of “fighting.” Thereupon, she surrendered the policy and accepted the check for return of premiums. She decided to do nothing more about collecting the proceeds of the policy.
Plaintiff eventually contacted Mr. Tim Murrell, a Topeka attorney, sometime during the early part of 1962. She conceded it was her fault that nothing was done until the present action was filed, and stated that her reason for delaying action on the matter was because she wanted no publicity.
After plaintiff’s deposition had been filed, defendant filed its answer admitting the facts surrounding Lt. Goforth’s death, denying any fraud on its part or that of its agents, and affirmatively alleging the defenses of statute of limitations, laches and accord and satisfaction. On the same date defendant filed its motion for summary judgment, asserting that the pleadings and admissions of plaintiff in her deposition established as a matter of law that her claim based on fraud was barred by the statute.
Five days later plaintiff served written interrogatories upon the-defendant. The time for answering these interrogatories was periodically extended by orders of the district court until disposition of defendant’s motion for summary judgment. Pending ruling on the motion, plaintiff filed no affidavit or other documents for the-court’s consideration. The trial court sustained the motion and entered summary judgment for the defendant upon the ground that plaintiff’s claim for reformation was barred by the statute of limitations.
As before, plaintiff complains of the trial court’s ruling on the basis, the entry of summary judgment was premature, principally because-discovery had not been completed and there were material facts in dispute. She specifically points to the fact that her interrogatories, were never required by the court to be answered by defendant.
When the court ruled on the motion for summary judgment it had before it plaintiff’s second amended petition, defendant’s answer and plaintiff’s deposition. In view of plaintiff’s admissions in her discovery deposition bearing directly on the limitations question, we think summary judgment was proper. At the taking of her deposition her counsel engaged in no cross-examination. Plaintiff made no objection to any part of her deposition; in fact, she submitted nothing for the trial court’s consideration in opposition to the motion or to alter the effect of her admissions. (See, Wilson v. Deer, 197 Kan. 171, 415 P. 2d 289.) It is true there were disputed factual issues raised by the pleadings, but they related to the merits rather than to the statute of limitations. A disputed question of fact which is immaterial to the controlling issue does not preclude summary judgment. (Shehi v. Southwest Rentals, Inc., supra; Secrist v. Turley, supra.)
A similar argument to that here was advanced in Bowen, Administrator v. Lewis, supra, where summary judgment was entered on the basis that there were no genuine issues of material.fact raised by the petition and answer relating to the statute of limitations. There, we said:
“The appellant first suggests that discovery was incomplete when the motion for summary judgment was considered and that the record clearly reflects material issues of fact. It may be said that appellants position would be correct if the case were to be tried on the merits. However, such matters did not reflect on the question of the statute of limitations. If the case was to be determined by the statute of limitations the factual issues to which reference is made were immaterial. Although summary judgment should not be rendered if there remains a genuine issue of fact (citing cases), the fact is not genuine unless it has legal probative force as to a controlling issue. In City of Ulysses v. Neidert, 196 Kan. 169, 409 P. 2d 800, we held:
“ ‘Where a defending parly pleads a statute of limitations and moves for summary judgment, and it appears that the action is barred by the appropriate statute of limitations and there is no genuine issue as to any material fact in connection with such statute, or such motion, then the motion for summary judgment should be granted.’ (Syl. 3.)” (p. 608.)
In regard to the interrogatories submitted, plaintiff urges that had defendant been required to answer them, they may have revealed something on which she could rely to have tolled the statute. We are unable to agree, for the simple reason the interrogatories, for the most part, called for answers pertaining to the merits of the fraud claim. While there were several interrogatories where the substance of the answers called for might possibly have revealed contacts or communications between plaintiff and defendant after her discovery of the alleged fraud, this remote possibility was foreclosed by plaintiff’s own admissions in her deposition. She had testified that at the time of her last conference in 1961 with Mr. Relden she knew of the alleged fraud but, nevertheless, accepted the refund of premiums; that Mr. Relden gave her no assurances she would receive anything more; and that from and after that date she did not see anyone else from the insurance company, nor did she receive any communication from the company.
From these admissions it is beyond dispute plaintiff knew in 1961 that the policy was not the one she and her husband had intended to purchase. At that time she had fully discovered the alleged fraud. (City of Ulysses v. Neidert, supra; Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693.) Despite her discovery, plaintiff’s original petition was not filed until June 29, 1966 — long after the two-year statute of limitations had expired.
K. S. A. [now K. S. A. 1968 Supp.] 60-513 provides in part:
“The following actions shall be brought within two (2) years:
“(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.”
The limitation imposed by the foregoing statute applies to equitable proceedings founded on fraud, including actions for reformation. (Cooksey v. Jones, 184 Kan. 300, 336 P. 2d 422 [rescission]; Brown v. Wolberg, 181 Kan. 919, 317 P. 2d 444 [rescission]; Woodworth v. Kendall, 172 Kan. 332, 239 P. 2d 924 [reformation]; Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302 [reformation].)
From what has been said, it follows that the trial court properly rendered summary judgment in favor of defendant on plaintiff’s claim for reformation on the ground of fraud.
Other contentions advanced by plaintiff do not warrant discussion. They have been examined and found to be without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by F. E. Smith to recover from Ellis Jones the possession of the west half and the northeast quarter of the northeast quarter of section twenty-two, township twenty, range eleven, situated in the county of Lyon and state of Kansas. Judgment on the second and final trial was given in favor of the defendant. The plaintiff claimed under a sale of the land for taxes, made to T. Johnson, on May 5, 1874, for $9.76, being the taxes thereon for 1873, and an assignment of the tax-sale certificate from Johnson to Noyes Spicer on May 6, 1874; a tax deed to Noyes Spicer, executed May 6,1880, and recorded on May 8,1880; and a quitclaim deed from Spicer and wife to himself, executed August 22, 1883. The taxes assessed against the land for the year 1874 were not paid, and at a sale held on September 7, 1875, it was again offered for sale, and there being no bidders, it was bid off by the county treasurer in the name of the county for the amount of taxes, charged against it; and the taxes for the two subsequent years, not being paid, were entered up against the land. On September 6,1877, Ellis Jones, the defendant, paid into the county treasury the sum of $44.06, which was the amount required for the redemption of the land, at which time he received a certificate of sale; and on September 23,1878, a tax deed was executed by the county clerk to him for the land. Jones went into possession and began improving the land in September, 1878, and has been continuously in possession of the land since that time. Among other defenses, the defendant urged that the plaintiff could not maintain his action because it was not commenced within two years after the tax deed under which he claimed was recorded. The contention of the defendant is, that the limitation provided in § 16 of the civil code applies, and effectually bars the plaintiff’s recovery. That section reads:
“Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter. . . . Third. An action for the recovery of real property sold for taxes, within two years after the date of the recording of the tax deed.”
He also insists that the five-year limitation provided in § 141 of the tax law applies, and has run in favor of the tax deed executed to him in September, 1878. It is unnecessary to de termine the applicability of the five-year limitation provided in the statute last mentioned, as we think the two-year statute provided in the code bars a recovery by the plaintiff. His action was not begun until about four ° years after the tax deed was executed and recorded. During this time, and earlier, the defendant was in the actual possession of the land. The defendant was not there as a trespasser, but was in actual possession under a claim of ownership in the land. We need not inquire whether his claim of title was strong or weak, because “possession with claim of ownership is not only evidence of title, but it is of itself title in a low degree” — and one which may in time ripen into a perfect title. (Hollenback v. Ess, 31 Kas. 87.) The defendant was therefore in a position to contest the plaintiff’s right to recover. The plaintiff must recover upon the strength of his own title, and not upon the weakness of that asserted by Jones. To maintain his action he must establish not only his paramount title to the land, but also that he has brought his action within the time allowed by the law. By virtue of the defendant’s possession and claim, the plaintiff’s cause of action, if he had one, was maintainable immediately on the recording of his tax deed. He was a tax-title holder out of possession seeking to recover upon the strength of a tax title. The limitation insisted on is applicable to all such persons, and an action cannot be maintained for the recovery of the land unless it is brought within two years after the recording of the tax deed under which he claims. (Thornburgh v. Cole, 27 Kas. 490; Myers v. Coonradt, 28 id. 215.)
The plaintiff raises a question in regard to the recording of the tax deed. He claims that it cannot be regarded as recorded, because the register of deeds made an error in recording it. The deed recited a sale made to T. Johnson on May 5, 1874, and an assignment to Noyes Spicer on May 6,1874; but as recorded, it recites that the sale occurred on the 15th day of May, 1874. No change was made, except to write “fifteen” where “five” should have been written. He now savs that, as the record shows the assignment to have occurred before the sale, the recorded deed is void on its face, and would not impart notice, and cannot be treated as recorded within the statute on that question. We cannot agree with this claim. The rights of parties are not so easily destroyed, and cannot be sacrificed by the official delinquency of the register of deeds. The statute upon the subject provides that from the time of filing the instrument with the register of deeds for record it will impart notice to all persons of the contents thereof. (Comp. Laws of 1879 ch. 22, § 20.) The duty of recording the deed devolves by law upon the register of deeds, and when the grantee causes it to be filed with that officer he has done all that the law requires of him. He has done that which is to impart notice to all the world of what the deed itself contains. This notice is not to be brushed away by the incompetent or fraudulent action of the officer in wholly or partially failing to spread it on the record. The legislature has recently provided that all tax deeds thereafter issued shall be void unless they are recorded within six months from the date of their issuance, and that all tax deeds theretofore issued shall be void unless they are recorded within one year from the taking effect of the act. (Laws of 1886, ch. 31.) Will the plaintiff contend that a tax deed which is deposited with and filed by the register within the prescribed time would be rendered void by the willful or negligent omission of the officer to copy it at length upon the record books ? Will he insist that a mere inaccuracy in transcribing the deed would destroy it? We think not. Under the statute referred to the notice arises on the filing of the deed for record, and does not depend on the act of the officer in writing it out at length on the books provided for that purpose. In contemplation of law, the tax deed in question was recorded when it was received and filed by the register of deeds. The inaccuracy in transcribing it did not prevent it from thereafter being notice to all the world, nor prevent the statute of limitations from running against an action to recover the land under a tax deed so recorded. As having some application, see Nattinger v. Ware, 41 Ill. 245; Merrick v. Wal lace, 19 id. 486; Craig v. Dimock, 47 id. 308; Kiser v. Heuston, 33 id. 252.
There must be an affirmance of the judgment.
All the Justices concurring. | [
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Opinion by
Glogston, C.:
In the course of the three trials of this case many rulings were made by the court, which are now urged as errors, but we shall pass them by, except the ruling of the court after the last trial by the jury. After the court sustained the demurrer to the defendant’s answer, leave was asked to amend the same, and this leave was refused by the court. We think this was error. This answer had been twice attacked by the plaintiffs before the last trial': first, by demurrer; and second, by objection to the introduction of evidence théreunder. These objections were by the court overruled, and by these rulings the defendant was assured that his answer contained a defense to the plaintiffs’ action, if the facts alleged in said answer were true; and at the trial these facts were so far established that under the instructions of the court a jury returned a verdict for the defendant. Now while it was discretionary with the court to permit the plaintiffs to withdraw their reply and refile a demurrer, and discretionary to permit the defendant again to amend his answer, yet under the facts of this case we think it was an abuse of discretion to refuse to permit the amendment asked for by the defendant. The court, as well as the defendant, had been misled up to this time as to the allegations in this answer. The answer had been treated by the court as sufficient to raise an issue of fact. Then if the defendant could amend his answer by alleging facts that would' raise such an issue, he ought not to be deprived of that right simply because he, as' well as the court, had been misled as to the allegations in the former answer. The court iu justice to the parties might have permitted the amendment, upon such terms as it thought just; but to refuse after large costs had been made in former trials was unjust to the defendant. As this case must be reversed, we express no opinion upon the amended answer.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The law of this case has been settled by the decision in McGarry v. The State, ante, p. 9, (14 Pac. Rep. 491.) The record before us sufficiently shows that the defendant below voluntarily appeared and surrendered himself into the custody of the court, as required by §13 of the act relating to illegitimate children; and therefore it fully appears that no breach of the recognizance or bond has taken place. (McGarry v. The State, supra.)
The judgment of the superior court must be reversed, and the case will be remanded for further proceedings in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Johnston, J.:
By this proceeding Bruce McNally seeks to obtain a reversal of a judgment rendered in favor of L. W. Keplinger by the district court of Allen county, at its June term, 1885. The action was for the recovery of the northeast quarter of section six, in township twenty-six, range twenty-one, situate in Allen county, alleged to be in the wrongful possession of McNally, as well as for $250 as damages for the unlawful detention of possession; and Keplinger prevailed. McNally asserts a single ground for a reversal, which in effect is, that the evidence is insufficient to sustain the allegations of the petition and the judgment that was given. We cannot consider the question raised, because the plaintiff in error has not placed himself in a position to be entitled to a review of the same. He has never made or filed a motion in the district court asking for a new trial for that or any other reason. It has long and frequently been held that, to reverse a judgment on the ground stated, a proper motion for a new trial, founded upon that ground, must have been made and overruled. (Nesbit v. Hines, 17 Kas. 316; Rice v. Harvey, 19 id.144; Fowler v. Young, 19 id. 150; Lucas v. Sturr, 21 id. 480; City of Atchison v. Byrnes, 22 id. 65; Holland v. Mudenger, 22 id. 731; Gruble v. Ryus, 23 id. 195; Pratt v. Kelley, 24 id. 111; Clark v. Imbrie, 25 id. 424; Kerner v. Petigo, 25 id. 652; Mills v. Kansas Lumber Co., 26 id. 576; Hover v. Tenney, 27 id. 133; Decker v. House, 30 id. 614.)
The judgment rendered is warranted under the pleadings, and as no error appears, it must be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The plaintiff filed in the district court his petition, the first item of which is: “ October 24, 1874, to balance due as per settlement, $73.03;” then follows a very long open itemized account, none of the items of such account being a part of the $73.03. The defendant filed his motion to compel the plaintiff to separately state and number his causes of action contained in the petition. The court sustained his motion; plaintiff refused to amend, and elected to stand upon his petition; the defendant then obtained twenty days from the rising of the court to answer the petition of the plaintiff. A few days afterward, on the motion of the defendant, the court vacated the order permitting the defendant to answer, and dismissed this cause without prejudice to a future action, the plaintiff being present and objecting. The plaintiff complains of the decision of the district court in compelling him to separately state and number his causes of action, aud also of the order dismissing the action. The petition embraces a cause of action on a settlement, and also one upon an open account. These constitute two separate and distinct causes of action, aud the order of the court compelling him to separately number aud state them was correct. When the plaintiff refused to amend, and determined to stand upon his petition, he compelled the trial court either to violate its own order and try the case in disregard of the long-established rules of practice, or to dismiss the action without prejudice. The trial court very properly refused virtually to nullify its own reasonable decision, and dismissed the action. This was right. We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Adolph Ehrhard brought an action against D. M. Osborne & Company, a corporation under the laws of the state of New York, alleging in substance that on or about the 28th day of June, 1883, he purchased from the agent of the company at Clay Center, Kansas, a combined reaper and binder, for the sum of $165; that by the terms of the contract he was to return the machine if it did not work in a good and satisfactory manner; that in payment he gave his negotiable promissory note for $150, due the first day of the following October, and paid in cash the sum of $15; and that by the terms of the contract the note was to be returned to him if the machine did not work in a good and satisfactory manner. He alleges that after repeated trials of the machine it was found that it would not do the work for which it \vas sold, and that it was utterly worthless to the plaintiff, whereupon he returned the machine to the defendant’s agent and demanded his note. He further states that the agent accepted the machine when so returned, and agreed to return the note as soon as it could be obtained from the company, but instead of doing so, the note was sold and transferred before due to one James Lyon; that on the 10th day of March, 1883, James Lyon brought suit against him in the district court of Clay county upon the note, and that on the 24th day of September of the same year a judgment was rendered against him and in favor of Lyon, for the sum of $168.60, together with costs, taxed at $15.25, which judgment he was compelled to pay. Ehrhard further alleges that, believing the note was not transferred to James Lyon before maturity and that he had a good and sufficient defense to the action thereon; he in good faith employed attorneys to defend for him in that action, and paid them the sum of $25 for their services therein. He therefore prayed for judgment against the company for the sum of $223.80 with interest. The defendant company answered by a general denial, and at a trial had with a jury in May, 1885, a verdict was returned in favor of Ehrhard, assessing his damages at $245, and the court gave judgment for that sum.
D. M. Osborne & Company, as plaintiff in error, is here asserting that the court below erred in not granting its motion for a new trial of the cause. The grounds of the motion were, “First, that the damages given by the jury in this case are excessive; second, that the verdict given in the case is against and contrary to the weight of the evidence and the law of the case; and third, that the court erred on the trial of the case in giving the sixth and eighth instructions to the jury.” Counsel for Erhard claim that the rulings of the court are not reviewable here, for the reason that the motion for a new trial was not reduced to writing, and filed as prescribed by the code; and they cite Douglass v. Insley, 34 Kas. 604. The present case does not fall within that authority. The record here does not in terms state that a written motion was filed, but that much is fairly implied. The motion copied in the record is full and formal. It includes the style of the case, formally states the grounds on which it was based, and then purports to be signed by counsel. The record, respecting the motion, recites that “thereupon the defendant filed his motion for a new trial as follows.” The fair implication # # of this language is that it was a written motion, as it could not well be filed if not in writing.
The first contention of the plaintiff in error is, that the damages awarded are excessive to the extent of the allowance manifestly made for counsel fees in defending the action brought by Lyon on the note. The testimony respecting the counsel fees was received without objection, and the only basis for the claim that the expenses should not have been allowed is, that he had notice before the commencement of that suit that Lyon was the bona fide holder of the note before due, and that therefore the expenses incurred were not judicious or necessary. It appears that when the action was brought on the note, Ehrhard consulted reputable counsel, who, after hearing the facts, advised him to defend against the note on the theory that the transfer to Lyon was not bona fide. The defense was made, but was unsuccessful, and he paid his counsel the moderate fee of $25. Ehrhard claims, and not without some cause, that he had reason to believe that it was still owned and held by the company. When the defective machine was returned by Ehrhard to the agent of the company, the note was then in the hands of the agent. Although demanded by Ekrhard, the agent failed to deliver it, but stated to Ehrhard that he would try and get it for him. He was also informed by the same person that he had seen the note in the hands of an agent of the company, a few days before it was due. In addition to these facts, the attorneys who held the note for collection sent him a notice stating, “We hold for collection against you, a note for $150 in favor of D. M. Osborne & Co.” It is true that the company offered some testimony which conflicted with the theory of Ehrhard, and tended to show that he had notice of the transfer to Lyon before the bringing of the action, but upon this question the jury have made a special finding that he had no notice until after the Lyon suit was brought, that the note had been transferred to Lyon before it became due. There was testimony upon which to base this finding, and it practically disposes of the claim made -by .the plaintiff in error. If no transfer had actually been made, it was the duty of Ehrhard to interpose his defense in that action. In making the defense he acted on the advice of counsel, and, from' the testimony, his doing so was reasonable, judicious and apparently necessary. Under all the circumstances we think the jury were justified in taking into consi¿[eration the expenses of the litigation — expenses which were incurred in good faith and as a legitimate consequence of the wrongful action of the plaintiff in error.
The next ground of error assigned, is that the verdict is contrary to the weight of the evidence. This is not a sufficient ground for a reversal. We are not permitted to enter upon the task of weighing conflicting testimony with a view of determining where the preponderance is. ' A verdict cannot be set aside in this court if there is testimony which fairly tends to support it, although the preponderance might appear to us to be against the result reached. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145.) There is evidence here to establish every essential fact relied on. In fact, the testimony satisfactorily shows that the machine utterly failed to come up to the requirements of the alleged warranty. The agent from whom it was purchased, as well as the general agent of the company, both tried to remedy the defects, and both failed to make it do the work for which it was intended, and the former admitted on the witness stand that it did not work well.
The giving of the sixth and eighth instructions is a subject of complaint. The sixth instruction states the measure of damages to which Ehrhard would be entitled in case there was a breach of the warranty alleged to have been given; and the eighth states, “If the jury find from the evidence that the plaintiff had a right to return the machine in question, then it makes no difference whether the defendant or defendant’s agent refused to receive the machine, or not.” The complaint is that no contract of warranty was shown, and that therefore there was no foundation for these instructions. On this question there is the testimony of Ehrhard that the local agent who sold the machine warranted that it would work well, and, if not, that the note would be returned to him upon the return of the machine. The written contract between the company and its local agent was offered in evidence, which showed that he had the authority to make the agreement of warranty which he did make. He gave Ehrhard a book containing a printed warranty which the company gave to purchasers, and which contained the stipulation that—
“All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If on starting the machine it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine taken back, and the payment of money or notes returned.”
Notice was given on the day succeeding the purchase that the machine failed to work, and the agents of the company endeavored to remedy the defects as required by the warranty. After it had been demonstrated that the machine was a failure, and it had been returned, the agent of the company agreed to procure a return of the note. All these things tend strongly to support the theory that a warranty was given, and they are certainly sufficient to authorize instructions upon that theory. The fact that the machine was sold at a reduced price is suggested as an argument that no warranty was given. The plaintiff below accounts for this by stating that the machine was one which had stood over one year, had been exposed, and was badly weather-beaten; but that the agent claimed that aside from this the machine was as good as a new one. The weather-beaten appearance of the machine and the reduced price at which it was sold cannot -overthrow the direct testimony that a warranty was given. If, under the warranty, the failure of the machine and its return entitled Ehrhard to a return of the note and money paid, the subsequent ac<:iori oi the company or its agent in refusing to receive the machine could not defeat his right to the note and money, or to an action for damages in case they refused to. surrender the same. His right to maintain this action accrued when he properly returned the machine and demanded the return of what he had given for it, and therefore no error was committed in giving the eighth instruction.
Objections are made to the rulings of the court upon the admission of testimony, and upon other instructions; but as these were not included in the grounds stated in the motion for a new trial, they are not before us for consideration. (Nesbit v. Hines, 17 Kas. 316; Decker v. House, 30 id. 614.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Malone, J.:
Treva L. Knop, Arlene Barlow, Rodney Barlow, Mymice M. Reimer, and Gary Reimer, plaintiffs, appeal the district court’s decision granting Gardner Edgerton Unified School District No. 231’s (U.S.D. No. 231) motion to dismiss the plaintiffs’ petition for failure to state a claim upon which relief can be granted. U.S.D. No. 231 purchased land from the plaintiffs under threat of condemnation for the stated purpose of building a school. Less than 2 years later, without building a school on the land, U.S.D. No. 231 sold the property to a developer for a profit of over one million dollars. Plaintiffs filed a petition for breach of contract against U.S.D. No. 231 and sought to recover tire profit. For the reasons set forth herein, we conclude the district court did not err in granting the motion to dismiss.
Prior to the summer of 2004, the plaintiffs owned 80 acres of land located in Johnson County, Kansas. Through letters and telephone calls, U.S.D. No. 231 had expressed an interest in acquiring the property from the plaintiffs. U.S.D. No. 231 informed the plaintiffs that it had purchased 40 acres of land adjacent to the plaintiffs’ property and the school district wanted the plaintiffs’ land for the purpose of building an elementary, junior high, and high school. U.S.D. No. 231 repeatedly indicated to the plaintiffs that if they did not sell the property, then the school district intended to condemn the land by use of its powers of eminent domain. :
On August 7, 2004, the parties executed a real estate purchase agreement. The pertinent sections of the contract stated:
Under Section 2, U.S.D. No. 231 agreed to pay the plaintiffs $18,500 per acre for the land.
Under Section 4, the plaintiffs agreed to deliver a general warranty deed suitable for recording and conveying to U.S.D. No. 231 a good, marketable, and indefeasible fee simple title to the land, subject only to covenants, easements, and restrictions of record, and other encumbrances expressly approved by U.S.D. No. 231 in writing.
Under Section 9, if U.S.D. No. 231, prior to closing, discovered a condition that caused the land to be unsuitable for school purposes, then it would notify the plaintiffs of the condition and give them 30 days to correct the condition. If the plaintiffs were unable to correct the condition within 30 days, then U.S.D. No. 231 could: (1) proceed with the purchase, (2) give the plaintiffs additional time to correct the condition, or (3) cancel the agreement to purchase the land.
Under Section 13, the parties agreed that the covenants, representations, and warranties set forth in the Agreement survived the closing and delivery of the deed.
Under Section 21, U.S.D. No. 231 stated that it was purchasing the land in lieu of proceeding with any condemnation action. Furthermore, U.S.D. No. 231 stated that it was purchasing the land for the purpose of building a school and/or for other school purposes.
The parties closed on the contract on December 16, 2004. The total price U.S.D. No. 231 paid for the land was $1,433,154.30 (approximately 77.5 acres sold at $18,500 per acre). On July 26, 2006, the plaintiffs learned from their local newspaper that U.S.D. No. 231 had agreed to sell the land to a developer. The school district subsequently sold the land to Gardner Property LLC for $2,476,470.40, or approximately $32,000 per acre.
On September 13, 2007, the plaintiffs filed a petition for breach of contract against U.S.D. No. 231. According to the plaintiffs, U.S.D. No. 231 breached the contract when it sold the land to a developer after promising it would use the land for school purposes. The plaintiffs did not attempt to enjoin the school district from selling the land. Instead, the plaintiffs sought judgment against U.S.D. No. 231 for $1,043,316.10, representing the profit the school district realized from the sale of the land.
U.S.D. No. 231 filed a motion to dismiss the petition pursuant to K.S.A. 60-212(b)(6) for failure to state a claim upon which relief can be granted. In the motion, U.S.D. No. 231 stated that the plaintiffs had conveyed an indefeasible fee simple title to the land and, therefore, the school district could do with the land whatever it wished. U.S.D. No. 231 contended that its statement in the contract concerning the purpose for buying the land was merely a general purpose clause expressing the school district’s intent at the time the contract was executed and it did not place a condition or covenant on the land that restricted its use.
The plaintiffs filed a response to the motion to dismiss and argued that because they sold their land to U.S.D. No. 231 under threat of condemnation, the school district’s acquisition of the land constituted a taking under the Eminent Domain Procedure Act, K.S.A. 26-501 et seq., and, as a result, K.S.A. 2008 Supp. 72-8212a applied to the transaction. According to the plaintiffs, this statute provided them with an option to repurchase the property from the school district at the contract price when the school district faded to use the property for school purposes.
On December 10, 2007, the district court conducted a hearing on the motion to dismiss and the parties argued their respective positions. On January 4, 2008, the district court filed a memorandum opinion and granted the school district’s motion. The district court determined the petition failed to state a claim for breach of contract. The district court agreed with U.S.D. 231 that its state ment in the contract concerning the purpose for buying the land was merely a general purpose clause expressing the school district’s intent at the time the contract was executed and it did not place a condition or covenant on the land that restricted its use. Furthermore, the district court rejected the plaintiffs’ argument that because they sold their land to U.S.D. No. 231 under threat of condemnation, the school district’s acquisition of the land constituted a taking under the Eminent Domain Procedure Act, and, as a result, K.S.A. 2008 Supp. 72-8212a applied to the transaction. The plaintiffs timely appeal.
On appeal, the plaintiffs claim the district court erred in granting U.S.D. No. 231’s motion to dismiss. The plaintiffs contend that the district court should have found the petition stated sufficient facts to support a claim of breach of contract. Furthermore, the plaintiffs argue that the district court failed to consider whether the facts alleged in the petition would have allowed the plaintiffs to prevail against the school district on any other possible theory. Finally, the plaintiffs argue that because they sold their land to U.S.D. No. 231 under threat of condemnation, the school district’s acquisition of the land constituted a taking under the Eminent Domain Procedure Act, and, as a result, K.S.A. 2008 Supp. 72-8212a applied to the transaction.
“When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issues concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff s petition.” Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001). “The question for determination is whether in the light most favorable to the plaintiff and with every doubt resolved in plaintiffs favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” 271 Kan. at 656.
When the district court has granted a motion to dismiss for failure to state a claim, the appellate court must accept the facts alleged by plaintiff as true, along with any inferences that can be reasonably drawn therefrom. The appellate court then decides whether those facts and inferences state a claim based on plaintiff s theory or any other possible theory. Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007).
Breach of contract claim
The plaintiffs first argue that the district court should have found the petition stated sufficient facts to support a claim of breach of contract. The interpretation and legal effect of a written instrument are questions of law over which an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005).
“The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. [Citation omitted.]” Anderson v. Dillard’s Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007). Here, neither party suggests that the terms of the written contract are unclear or ambiguous.
The district court found that the language of the contract unequivocally stated that the plaintiffs intended to convey an indefeasible fee simple interest in the land to U.S.D. No. 231. We agree. The written contract stated that the plaintiffs agreed to sell to U.S.D. No. 231 all of their “right, title, and interest in that certain real property located in Johnson County, Kansas . . . together with all appurtenances, improvements, and fixtures thereon, and subject to all easements, restrictions, and rights of way affecting said real property and now of record.” Furthermore, the plaintiffs agreed to deliver to the title company involved in the transaction a general warranty deed “suitable for recording and conveying to [U.S.D. No. 231] good, marketable, and indefeasible fee simple title to the Premises, subject only to taxes for the year 2004 not yet due and payable; covenants, easements, and restrictions of record; and other encumbrances expressly approved by Purchaser in writing .. . .”
K.S.A. 58-2202 states that “every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.” Here, there was no reverter clause contained in the contract and no language to indicate that the plaintiffs intended to convey to U.S.D. No. 231 anything less than an indefeasible fee simple interest in the land. Generally, when a seller conveys an indefeasible fee simple interest in the land, the purchaser is free to use the land for whatever purpose it wishes, subject to existing restrictions of record.
Even though U.S.D. No. 231 received a fee simple interest in the land from the plaintiffs, the plaintiffs argue that the written contract contained a covenant or restriction preventing the school district from using the land for any purpose other than building a school. The plaintiffs cite Section 21 of the real estate purchase agreement, which provides that “purchaser hereby represents and warrants . . . that the Premises is being purchased for the purpose of building a school and/or other school purposes on the Premises.” The purchasers argue that this contract language created a covenant running with the land and U.S.D. No. 231 breached the contract when it resold the property to a developer without building a school.
U.S.D. No. 231 argues, and the district court agreed, that the contract language did not create a restrictive covenant running with the land that prevented the school district from conveying the land to a third party. Instead, U.S.D. No. 231 contends that its statement in the contract concerning the purpose for buying the land was merely a general purpose clause expressing the school district’s intent at the time the contract was executed and it did not place a condition or covenant on the land that restricted its use.
A well-settled rule is that covenants and agreements restricting the free use of property are strictly construed against limitations upon such use. Such restrictions will not be aided or extended by implication or enlarged by construction. Doubt will be resolved in favor of the unrestricted use of property. South Shore Homes Ass’n v. Holland Holidays, 219 Kan. 744, 751, 549 P.2d 1035 (1976). Furthermore, “[a] promise must also be distinguished from a mere statement of intention . . . .” 1 Williston on Contracts § 1:2 (4th ed. 2007). One legal encyclopedia has stated:
“Restrictive covenants must be certain; they will not be applied unless the language used is clear and unambiguous. So, a restriction should be expressed in clear and certain terms in the deed, or it should contain a promise, agreement, or undertaking on the grantee’s part, or it should contain such terms as have a certain legal operation from which a covenant would necessarily arise.” 26A C.J.S., Deeds § 344, p. 368.
We agree with the district court that U.S.D. No. 231’s statement in the contract concerning the purpose for buying the land was merely a general purpose clause expressing the school district’s intent at the time the contract was executed. As U.S.D. No. 231 notes, Section 21 of the contract provides that the property “is being purchased” for the purpose of building a school. This statement is in the present tense. However, the school district never represented or warranted in the contract that the property will only be used for school purposes. The isolated contract language about the purpose for buying the land cannot reasonably be construed in such a way as to conclude that U.S.D. No. 231 promised to the plaintiffs that it would forever use the land for school purposes.
This interpretation of U.S.D. No. 231’s general purpose clause is logical when read in conjunction with the rest of the contract. Section 9 of the contract gave U.S.D. No. 231 the right to proceed with the purchase of the land even if it was determined prior to closing that the land was not suitable for school purposes. To conclude that the contract restricted U.S.D. No. 231’s use of the land to only school purposes, when that same contract also gave U.S.D. No. 231 the right to purchase the land if it could not be used for school purposes, would result in an unreasonable interpretation of the contract.
Furthermore, the plaintiffs’ own evidence corroborates U.S.D. No. 231’s intention to purchase the land for school purposes. Exhibit B attached to the plaintiffs’ petition included a letter from U.S.D. No. 231’s superintendent expressing an interest in purchasing the 80-acre tract of land for the purpose of building an elementaiy school. According to the letter, the board of education believed that purchasing land at the present time for future school needs would save the taxpayers money. The plaintiffs have no evidence to dispute that when the real estate purchase agreement was executed on August 7, 2004, the school district did not intend to use the land to build a school or for other school purposes.
Section 4 of the contract provided that the plaintiffs agreed to deliver a general warranty deed to U.S.D. No. 231 at closing. This deed is not included in the record on appeal. However, if the plaintiffs intended to create a covenant running with the land that restricted the school district’s use of the property, one would expect such a covenant to have been clearly expressed in the deed. The language in Section 13 of the contract indicating that any covenants set forth in the Agreement survived the closing and delivery of the deed is insufficient to create a covenant running with the land because the Agreement created no covenant in the first place.
Finally, even if the contract language created a restrictive covenant preventing the school district from using the land for any purpose other than building a school, we note that such a restrictive covenant is usually enforced by injunction. South Shore Homes Ass’n, 219 Kan. at 751. Here, the plaintiffs made no attempt to enjoin the school district from selling the land. Instead, the plaintiffs sought a money judgment against U.S.D. No. 231 representing the profit the school district realized from the sale of the land. Thus, to the extent the plaintiffs’ equitable rights may have been violated by the school district’s attempt to sell the land, the plaintiffs sought an incorrect remedy from the district court.
We conclude that U.S.D. No. 231’s statement of purpose for buying the land did not create a restrictive covenant running with the land and the school district did not breach the contract when it resold the property to a developer without building a school. As this was the plaintiffs’ only claim in their petition, the district court did not err in dismissing the petition for failure to state a claim under a breach of contract theory.
Other possible theories
The plaintiffs do not dispute that their petition alleged only a breach of contract claim. However, the plaintiffs argue that the district court failed to consider whether the facts alleged in the petition would have allowed the plaintiffs to prevail against the school district on any other possible theory. A district court may not dismiss a petition under K.S.A. 60-212(b) unless the facts and inferences fail to state a claim on any possible theory. Nungesser, 283 Kan. at 559.
The plaintiffs’ appeal brief alludes to a potential fraud claim against U.S.D. No. 231. It appears that the plaintiffs’ fraud claim would be based on an allegation that U.S.D. No. 231 misrepresented its purpose for acquiring the plaintiffs’ land and that this misrepresentation induced the plaintiffs to enter into the contract with the school district. The elements of fraud are: (1) The defendant made a false statement concerning an existing and material fact; (2) the defendant knew the statement was false or recklessly made the statement without knowing its validity; (3) the defendant intentionally made the statement for the purpose of inducing the plaintiff to act upon it; (4) the plaintiff reasonably relied and acted upon the defendant’s statement; and (5) the plaintiff sustained damage by relying upon the statement. PIK Civ. 4th 127.40; Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 422, 109 P.3d 1241 (2005).
However, the plaintiffs’ petition alleged no facts to support a claim that U.S.D. No. 231 deceived the plaintiffs about the reason for purchasing the land at the time the real estate purchase agreement was executed. As previously indicated, the plaintiffs’ own petition provides evidence that U.S.D. No. 231 intended to purchase the land for school purposes. Exhibit B to the plaintiffs’ petition included a letter from U.S.D. No. 231’s superintendent expressing an interest in purchasing the 80-acre tract of land for the purpose of building an elementary school. The fact that the school district resold the land 2 years later without building a school is insufficient to create an inference of fraud.
Furthermore, any possible fraud claim against U.S.D. No. 231 would have been procedurally barred for two reasons. First, fraud claims must be pled with particularity. K.S.A. 60-209(b). Second, any fraud claim against U.S.D. No. 231 had to be brought under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. See K.S.A. 2008 Supp. 75-6102(b) (defining “municipality” as, among other things, a “school district”). Thus, before the plaintiffs could file a fraud claim against U.S.D. No. 231, they would have been required to provide written notice to the school district pursuant to K.S.A. 2008 Supp. 12-105b.
The plaintiffs also argue in their brief that the facts alleged in their petition could support a claim under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. The KCPA applies to deceptive or unconscionable acts or practices committed by “suppliers” in connection with “ ‘consumer transactions.’ ” K.S.A. 50-626(a); K.S.A. 50-627(a). K.S.A. 50-624(c) defines “consumer transaction” as “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(b) defines “ ‘consumer’ ” as “an individual, husband and wife, sole proprietor, or family partnership who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” (Emphasis added.) K.S.A. 50-624(j) 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. Supplier does not include any bank, trust company or lending institution which is subject to state or federal regulation with regard to disposition of repossessed collateral by such bank, trust company or lending institution.”
Here, the KCPA is clearly inapplicable to the transaction between the plaintiffs and U.S.D. No. 231. The plaintiffs were not seeking to acquire property. Instead, they entered into a contract to sell their land to U.S.D. No. 231. Simply stated, based on the facts alleged in the plaintiffs’ petition, they were not “consumers” under K.S.A. 50-624(b), U.S.D. No. 231 was not a “supplier” under K.S.A. 50-624(j), and their transaction was not a “consumer transaction” within the meaning of K.S.A. 50-624(c).
Condemnation and K. S.A. 2008 Supp. 72-8212a
Finally, the plaintiffs argue that because they sold their land to U.S.D. No. 231 under threat of condemnation, U.S.D. No. 231’s acquisition of the land constituted a taking under the Eminent Domain Procedure Act, and, as a result, K.S.A. 2008 Supp. 72-8212a applied to the transaction. The plaintiffs argue this statute provided them with an option to repurchase the property from the school district at the contract price when the school district failed to use the property for school purposes.
The plaintiffs’ argument involves statutory interpretation. The interpretation of a statute is a question of law over which an appellate court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
K.S.A. 2008 Supp. 72-8212a(a) provides:
“A unified school district may acquire by condemnation, for school purposes, any interest in real property, including fee simple title. If, within 10 years after entry oí final judgment under K S.A. 26-511, and amendments thereto, the school district fails to construct substantial buildings or improvements,that are used for school purposes on any real property acquired under this subsection, the school district shall notify the original owners or their heirs or assigns that they have an option to purchase the property from the school district for an amount equal to the compensation awarded for the property under the eminent domain procedures act. Such option shall expire if not exercised within a period of six months after the date of the expiration of the 10-year period.” (Emphasis added.)
The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determining what the law should or should not be. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). Furthermore, when a statute is plain and unambiguous, an appellate 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.” (Emphasis added.) In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
The plaintiffs cite two cases from other jurisdictions which hold that land sold under threat of condemnation has the same legal effect as if the land was actually taken under eminent domain proceedings. See Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 931 A.2d 837 (2007), and Fuddy Duddy’s v. State, Dep't Transp., 113 Nev. 1452, 950 P.2d 773 (1997). In both cases, the courts had to determine whether a lease agreement remained enforceable even after the owner sold the premises to a government entity under threat of condemnation. Both leases had condemnation clauses which stated that if the land was condemned, the lease agreement between the owner and the lessee would terminate. In both cases, the courts held that land sold under the threat of condemnation had the same legal effect as if the land was actually taken under eminent domain proceedings and, thus, the lease agreements were terminated when the owner sold the land to the government entity. Bristol, 284 Conn. at 12-14; Fuddy Duddy’s, 113 Nev. at 1454-55.
The plaintiffs also cite City of Carrollton v. Singer, 232 S.W.3d 790 (Tex. App. 2007). In this case, the Singers negotiated a contract to sell property to the City of Carrollton (City) for the construction of a roadway. In exchange for the conveyance, the City agreed to construct a new entrance into the Singers’ property. The City completed the roadway project, but the Singers were not satisfied with the quality and appearance of the new entrance. The Singers sued the City for breach of contract and claimed the City did not have immunity from suit because its contract with the Singers was, in essence, a settlement agreement of an eminent domain claim. The Texas Court of Appeals agreed and stated: “An agreement to sell property to a governmental authority for public purpose has the same effect as a formal condemnation proceeding.” 232 S.W.3d at 798.
The cases cited by the plaintiffs are all distinguishable from the present case. Bristol and Fuddy Duddy’s concerned the enforcement of a lease agreement after a-government entity acquired ownership of the land through the threat of condemnation. City of Carrollton involved the issue of immunity from suit after a party sold property to a governmental authority for a public purpose. Here, we are being asked to determine whether the plaintiffs have a statutory right under K.S.A. 2008 Supp. 72-8212a(a) to repurchase land from U.S.D. No. 231 when the school district failed to use the land for school purposes. The plaintiffs have cited no case with facts similar to the present case to support their claim that land purchased under threat of condemnation has the same legal effect as if the land was actually taken under eminent domain proceedings.
However, U.S.D. No. 231 has cited a case from another jurisdiction that is more closely on point. In Coleman v. City of Pikeville, 994 S.W.2d 524 (Ky. App. 1999), the Kentucky Court of Appeals construed a statute similar to K.S.A. 2008 Supp. 72-8212a(a) and held that the statute did not apply when property was sold by contract under threat of condemnation. The landowner in Coleman sold property by contract to a local urban renewal agency which had threatened condemnation if the landowner refused to sell. The agency subsequently deeded the land to the City of Pikeville (City). Under the Kentucky statute, a party acquiring property through condemnation must begin to develop the property for the purpose for which it was condemned within 8 years or the landowner is entitled to repurchase the property at the price paid through condemnation. See Ky. Rev. Stat. § 416.670(1). When it appeared that the property was not being developed after 8 years, the landowner’s successors in interest sued the City, claiming a right to repurchase the property under the condemnation statute. However, the court held that the condemnation statute was inapplicable because the property was not condemned but had been sold by agreement. 994 S.W.2d at 526.
In order to determine whether K.S.A. 2008 Supp. 72-8212a(a) is applicable to the transaction between plaintiffs and U.S.D. No. 231, we must briefly review the statutory framework under the Eminent Domain Procedure Act, K.S.A. 26-501 et seq. Under K.S.A. 2008 Supp. 26-501(b), a public entity wishing to acquire real estate files a petition in the district court of the county where the land is located. The district court then appoints three disinterested residents of the county where the land is located to appraise the value of the property at issue. K.S.A. 2008 Supp. 26-504. After the appraisers view the property and take testimony at a public hearing, they file a report with the district court, establishing the compensation due to the owner of the affected property. K.S.A. 2008 Supp. 26-505. The condemning authority then has 30 days in which to pay the award into court. Failure to pay the award within the 30 days results in an abandonment of the condemnation. K.S.A. 2008 Supp. 26-507.
Assuming the condemning authority pays the appraisers’ award into court, the second step of the condemnation process is then triggered. K.S.A. 2008 Supp. 26-508 states that either party may appeal from the appraisers’ award, and if such an appeal is filed, the district court clerk dockets the appeal as a “new civil action.” The district court then conducts a trial de novo to determine the compensation to be given to the owner of the land. K.S.A. 26-511(a) provides:
“If the compensation finally awarded on appeal exceeds the amount of money paid to the clerk of the court pursuant to K.S.A. 26-507, the judge shall enter judgment against the plaintiff for the amount of the deficiency, with interest. If the compensation finally awarded on appeal is less than the amount paid to the clerk of the court pursuant to K.S.A. 26-507, the judge shall enter judgment in favor of the plaintiff for the return of the difference, with interest.” (Emphasis added.)
A “final judgment under K.S.A. 26-511”—the key language in found in K.S.A. 2008 Supp. 72-8212a(a) that triggers a landowner’s rights — is only entered if either the condemning authority or the landowner appeals from the appraisers’ award. If both the condemning authority and the landowner are satisfied with the appraisers’ award, that award is paid into court and the case ends without a “judgment” of any kind being entered. K.S.A. 2008 Supp. 26-507.
Based on the plain language of K.S.A. 2008 Supp. 72-8212a(a), in order for a former landowner to be able to repurchase his or her land from a school district, three elements must be satisfied: (1) The land at issue must have been taken pursuant to the Eminent Domain Procedure Act, K.S.A. 26-501 et seq., (2) an appeal must have been taken from the original appraisers’ award pursuant to K.S.A. 2008 Supp. 26-508, and (3) the appeal must have resulted in a final judgment being entered pursuant to K.S.A. 26-511.
Here, because their was no final judgment entered under K.S.A. 26-511, K.S.A. 2008 Supp. 72-8212a(a) did not apply to the transaction. Stated differently, acquiring property under a threat of condemnation is not the same as acquiring property under an actual eminent domain proceeding. U.S.D. No. 231 purchased the plaintiffs’ land under written contract, and the amount paid was not determined through any judgment under the Eminent Domain Procedure Act. Under these circumstances, the school district’s acquisition of the land did not constitute a taking under the Eminent Domain Procedure Act and K.S.A. 2008 Supp. 72-8212a(a) did not apply to grant the plaintiffs an option to repurchase the land at the contract price when the school district failed to build a school.
We appreciate the perceived inequities presented by the outcome of this case. Even the district court judge referred to the result as “distasteful.” However, contracts must be enforced according to their plain and unambiguous language, and statutes must likewise be applied according to their plain and unambiguous meaning in order to carry out the legislature’s intent. Had the plaintiffs desired an option to repurchase their land from U.S.D. No. 231 if the school district failed to use the land for school purposes, the plaintiffs could have negotiated an enforceable option into the contract. However, courts will not interpret a contract to include language that is not readily found therein. Based on the contract entered between the parties, we conclude that the district court did not err in granting U.S.D. No. 231’s motion to dismiss the plaintiffs’ petition for failure to state a claim upon which relief can be granted.
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Green, J.:
Pioneer Ridge Nursing Facility Operations, L.L.C. (Pioneer), appeals from the trial court’s judgment dismissing its collection action against Randy Ermey. The trial court held that Pioneer Ridge had failed to state a claim against Ermey. Ermey signed a promissory note with Pioneer for his mother’s care. When Ermey neglected to malee the payments under the note as promised, Pioneer sued Ermey. Ermey moved to dismiss the action. The trial court agreed, dismissing the action based on the Nursing Home Reform Act and on a failure of consideration to support the note. Because we are unable to state with certainty the untenability of Pioneer’s position, we determine that Pioneer’s petition should not have been dismissed for a failure to state a claim. Accordingly, we reverse and remand.
On February 21, 2006, Ermey’s mother, Neva Ermey, executed a general durable power of attorney appointing Ermey as her attomey-in-fact, giving him legal access to her income and resources. Neva was then admitted to Pioneer, where she resided from February 22, 2006, until her death on June 25, 2006.
Because Neva’s status at the time of her admission to Pioneer was “Medicaid eligibility pending,” Neva was originally classified as a “private pay” resident. As a result, she was responsible for paying for her own care. Although eventually approved for Medicaid assistance, Neva incurred $13,424.99 in nursing care expenses during her stay as a private pay resident.
On May 10, 2006, Pioneer sent Neva a notice of discharge because she had not paid on her private pay account. On June 9, 2006, Neva received approval for Medicaid assistance, and she was not discharged from Pioneer.
On June 13, 2006, Ermey met with Pioneer staff to discuss Neva’s private pay account balance; Ermey signed the promissory note agreeing to pay the $13,424.99 balance in installment payments. Both parties agree the promissory note was signed. Nevertheless, Ermey contends that Pioneer made Neva’s continued stay at Pioneer conditional on his signing the promissory note.
Neva died on June 25, 2006, less than 2 weeks after Ermey signed the promissory note. On July 13,2006, Ermey’s counsel sent Pioneer a letter telling Pioneer that Neva probably died without assets. Moreover, the letter reminded Pioneer that federal law prohibited a third-party guarantee of payment as a condition of continued stay at a nursing facility. Pioneer responded by sending Ermey two bills — one for $13,424.99 (effectively accelerating the private pay account debt as provided for in the promissory note agreement) and the other for $632 (for non-Medicaid covered expenses incurred between June 9 and June 25, 2006).
On October 31, 2006, Pioneer sent another billing for $623 (the discrepancy was not explained.) On November 10, 2006, Ermey sent Pioneer a $623 check in an attempted accord and satisfaction; however, Pioneer returned the check to Ermey within 90 days of receipt. Ermey made no further payments on the debt, and on February 8, 2007, Pioneer brought this action against Ermey.
Ermey moved to dismiss, and the trial court granted the motion on two grounds. First, the court found that Pioneer was prohibited from personally requiring Ermey to guarantee payment as a condition of his mother s continued stay at its facility under the Nursing Home Reform Act. The court found that, as Neva’s attorney-in-fact, Ermey was required to pay for Neva’s nursing care services only from his mother’s income and resources, notshis own. Moreover, in carrying out his fiduciary responsibility to his mother, this fiduciary responsibility did not make him personally responsible for her nursing care charges, even valid ones, incurred by her. Second, the trial court found that the promissory note was signed without consideration because (1) Pioneer was prohibited from discharging Neva because of her protected Medicaid recipient status, (2) Ermey did not have personal liability for Neva’s nursing care expenses, and (3) Pioneer did not give Ermey anything in exchange for signing the promissory note.
Did the Trial Court Err in Granting Ermey’s Motion to Dismiss for Failure to State a Claim?
“When a district court has granted a motion to dismiss for failure to state a claim, an appellate court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably be drawn therefrom. The appellate court then decides whether those facts and inferences state a claim based on plaintiffs theory or any other possible theory. If so, the dismissal by the district court must be reversed. Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007).” Rector v. Tatham, 287 Kan. 230, 232, 196 P.3d 364 (2008).
A. NURSING HOME REFORM ACT
Congress enacted the federal Nursing Home Reform Act (NHRA) as part of the Omnibus Budget Reconciliation Act of 1987. See Pub. L. No. 100-203, 101 Stat. 1330-160-221 (codified, in large part, at 42 U.S.C. § 1395i-3 [2007] and 42 U.S.C. § 1396r [2007]). Under the NHRA, skilled nursing facilities (including nursing homes) accepting Medicare and Medicaid assisted residents are governed by the NHRA. See 42 U.S.C. § 1396a(28)(A) (2007); 42 U.S.C. § 1396r(b)-(d); see generally 42 U.S.C. § 1395 (2007).
According to the NHRA, skilled nursing facilities cannot “require a third party guarantee of payment to [its] facility as a condition of admission (or expedited admission) to, or continued stay in, [its] facility.” 42 U.S.C. § 1395i-3(c)(5)(A)(ii); 42 U.S.C. § 1396r(c)(5)(A)(ii). Nevertheless, this restriction does not prevent “a facility from requiring an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care.” 42 U.S.C. § 1396r(c)(5)(B)(ii); see 42 C.F.R. 483.12(d)(2) (2009).
In this case, Pioneer clearly had the right to require Ermey to sign the promissory note because he was Neva’s attorney-in-fact, which obligated him to use Neva’s income and resources to reimburse Pioneer on the past due account. Furthermore, although Kansas has not directly addressed this issue, other states have allowed breach of contract actions in cases involving the fraudulent transfer of assets from a Medicaid recipient to an individual contractually bound to pay a skilled nursing facility according to a contract signed under 42 U.S.C. § 1396r(c)(5)(B)(ii). See, e.g., Manor of Lake City, Inc. v. Hinners, 548 N.W.2d 573 (Iowa 1996); Putnam Nursing & Rehab. Center v. Bowles, 239 App. Div. 2d 479, 658 N.Y.S.2d 57 (1997).
This brings us to our current issue: Is it permissible for a skilled nursing facility regulated under the NHRA to obtain a third party’s personal payment guarantee if it does so in a way that does not make a resident’s admission, or continued stay, at its facility conditional on a resident’s ability to obtain a third-party guarantor? Although Kansas has not addressed this issue, some states have allowed skilled nursing facilities to obtain third-party guarantees when they are voluntarily given. See, e.g., Podolsky v. First Healthcare Corp., 50 Cal. App. 4th 632, 58 Cal. Rptr. 2d 89 (1996); Manor of Lake City, Inc., 548 N.W.2d 573. These courts reason that “had Congress intended to forbid third party guarantees under any circumstances, ... it would have said so.” 50 Cal. App. 4th at 646. Furthermore, no court has held that the NHRA requires disclosure on the part of a skilled nursing facility to obtain a third-party guar antee. In his brief, Ermey argues that the Podolsky court’s analysis of 42 U.S.C. § 1396r(c)(5)(B)(ii) included an extensive disclosure and waiting period requirement. Nevertheless, Ermey cites Podolsky out of context: the Podolsky court was clearly discussing the effect of California’s Business and Professions Code on obtaining a third party’s personal guarantee to pay for another’s nursing home expenses—not its interpretation of requirements imposed under the NHRA. See 50 Cal. App. 4th at 647-56.
As a skilled nursing facility accepting Medicaid recipients, Pioneer was required to comply with the NHRA in its dealings with Neva and with Ermey as her attomey-in-fact and third-party guarantor. Specifically, Pioneer was prohibited from threatening to discharge Neva in order to coerce Ermey into personally guaranteeing payment for Neva’s nursing care expenses. Nevertheless, in its response to Ermey’s motion to dismiss, Pioneer made the following assertions:
“11. The resident’s stay at the facility from February 26, 2006, through June 9, 2006, did not qualify for Medicaid due to a ‘transfer or property penalty’ and as such was deemed a private pay stay.
“12. The resident was sent a discharge letter on May 10, 2006, because of the outstanding private pay balance. When the resident qualified for Medicaid on June 9, 2006, however, the discharge was abandoned.
“13. The defendant signed the note to make payments on June 13, 2006, after discussions with the Regional Director regarding payment of the private pay arrearages.
“14. The note was signed after the resident’s discharge was withdrawn, thereby eliminating the argument the note was signed as a condition of the resident’s continued stay at the facility.”
Paragraphs 12 and 14 of Pioneer’s response created a factual question regarding whether Ermey’s signing of the promissory note was a condition precedent to Neva’s continued stay at the facility.
In Rector, our Supreme Court stated that disputed issues of fact cannot be settled or determined on a motion to dismiss for failure to state a claim upon which relief can be granted:
“In addition, we have observed that factual disputes cannot be resolved or decided on a motion to dismiss for failure to state a claim. Judicial skepticism must be exercised when the motion is made before the completion of discovery. Under Kansas’ notice pleading, the petition is not intended to govern the entire course of the case. Rather, the ultimate decision as to the legal issues and theories on which the case will be decided is the pretrial order. Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001). A motion to dismiss typically is filed early in a case, when many of the facts have not yet been discovered and legal theories may be in flux. ARY Jewelers v. Krigel, 277 Kan. 27, 38, 82 P.3d 460 (2003).” 287 Kan. at 232-33.
Moreover, Kansas currently follows a notice pleading system. Plaintiffs do not have to establish all possible legal theories in their initial petition so long as it provides enough facts to establish that the plaintiff is entitled to relief. A petition that can support a cause of action based on any theory is sufficient to survive a motion to dismiss. Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991).
Next, we consider that part of the trial court’s holding that stated: “ ‘Pioneer Ridge was prohibited [by NHRA] from personally requiring defendant to guarantee payment as a condition of his mother’s admission or continued stay at its facility.’ ” This statement of the trial court is correct. Nevertheless, the trial court’s holding fails to account for the fact that Ermey could have voluntarily made himself responsible for any valid charges incurred by his mother. See Podolsky, 50 Cal. App. 4th at 646; Manor of Lake City, Inc., 548 N.W.2d at 576 (The court considered whether a son had waived his rights under 42 U.S.C. § 1396r(c)(5)(A)(ii) not to be required to become personally hable for his mother’s nursing home expenses as a condition of her admission to the facility and had voluntarily agreed to become personally hable for her debt to the nursing home.).
When a written agreement is ambiguous, such as whether Pioneer voluntarily or involuntarily obtained Ermey’s signature on the promissory note, facts and circumstances existing before and connected with the signing of such contract are competent to clarify the intent and purpose of the agreement. See Skelly Oil Co. v. Savage, 202 Kan. 239, 248, 447 P.2d 395 (1968). Here, because a factual question existed whether Ermey’s signing of the promissory note was a condition precedent to his mother’s continued stay at the facility, we determine that the trial court erred in its interpretation of the NHRA.
B. CONSIDERATION
In its decision, the trial court held that the promissory note was signed without consideration because (1) Ermey did not have personal liability for Neva’s nursing care expenses; (2) Pioneer was prohibited from discharging Neva because of her protected Medicaid recipient status; and (3) Pioneer did not give Ermey anything in exchange for signing the promissory note.
First, because a question of fact existed regarding whether Ermey had voluntarily signed the promissoiy note, as previously discussed, the trial court incorrectly held that Ermey had no personal liability for Neva’s nursing care expenses.
Second, the trial court correctly asserts that Pioneer was prohibited from discharging Neva. Under the NHRA, a skilled nursing facility must also permit its residents to remain in its facility and may only discharge its residents under very limited circumstances, such as when a resident fails to pay for his or her stay at its facility. 42 U.S.C. § 1396r(c)(2)(A)(v). Furthermore, “[f]or purposes of [42 U.S.C. § 1396r(c)(2)(A)(v)], in the case of a resident who becomes eligible for [Medicaid] assistance . . . after admission to the facility, only charges which may be imposed under [42 U.S.C. § 1396r are] allowable.” 42 U.S.C. § 1396r(c)(2)(A). In other words, when an individual originally admitted as a “private pay” resident later qualifies for Medicaid assistance, the individual cannot be discharged for failing to pay the debt he or she has incurred as a “private pay” resident. Under the NHRA, the individual can only be discharged for “failing to pay” certain permitted Medicaid charges. See generally 42 U.S.C. § 1396r.
In this case, Neva became Medicaid eligible before Ermey met with Pioneer staff and agreed to sign the promissory note. Consequently, when Ermey signed the promissoiy note, Pioneer did not have the authority to discharge Neva for failing to pay on her past due “private pay” account nor the authority to discharge her for any of the other reasons. See 42 U.S.C. § 1396r(c)(2)(A) (listing those circumstances in which a skilled nursing facility may transfer or discharge a resident). Nevertheless, Neva’s Medicaid eligibility was not fatal to Pioneer’s argument that the promissoiy note was supported by consideration.
This brings us to the trial court’s third reason: failure of consideration. Kansas courts have long held that a party’s forbearance to sue can constitute valid consideration sufficient to support a contract. See, e.g., Mitchell v. Miller, 27 Kan. App. 2d 666, 672, 8 P.3d 26 (2000). Furthermore, “ ‘[a]n extension of the time of payment of an obligation constitutes in legal effect a forbearance to sue and ... is a sufficient consideration for a [third-party] guaranty of the obligation.’ 38 Am. Jur. 2d, Guaranty § 47, p. 1051.” Ryco Packaging Corp. v. Chapelle Int’l., Ltd., 23 Kan. App. 2d 30, 38, 926 P.2d 669 (1996), rev. denied 261 Kan. 1086 (1997). In this case, Neva’s private pay account was past due and the promissory note provided Neva, iiirough Ermey as her attorney-in-fact, an extension of time to pay on the past due account. Consequently, Pioneer asserts in its brief that the promissory note was based on a forbearance to sue, which furnished sufficient consideration to support the note.
Nevertheless, under Kansas law, “ ‘ “forbearance to press [a claim] is not a sufficient consideration if there is no possibility of enforcement and collection, [which makes] both the claim and the forbearance valueless.” [Citation omitted.]’ ” 23 Kan. App. 2d at 40 (quoting State ex rel. Ludwick v. Bryant, 237 Kan. 47, 52, 697 P.2d 858 [1985]). Ermey contends that the promissoiy note he signed was not supported by adequate consideration because Neva was insolvent, as evidenced by her Medicaid status, and therefore Pioneer could not hope to collect the debt from Neva and so its claim and forbearance was valueless and could not furnish consideration sufficient to support the promissory note. Yet, this begs the question.
The fallacy of begging the question occurs when a claim is dependent on another claim that is implicitly assumed but has not been established in the argument. To illustrate, Ermey argues that Neva was insolvent when he signed the promissory note because she had qualified for Medicaid assistance. The premise offered to justify the conclusion (Neva’s insolvency) implies it (Neva’s Medicaid status), but there is no independent evidence showing what, if any, financial resources Neva had when the promissory note was signed. The mere fact that Neva had qualified for Medicaid assis tance did not show that she would have been unable to make the agreed payments under the promissory note.
Finally, there seems to be a judicial attitude, due in part to the concept of notice pleadings under K.S.A. 60-208(a)(1), that pleadings are not a good mechanism for screening cases, especially when a better screening device is available: the motion for summary judgment. This reasoning applies to the present case.
K.S.A. 60-208(a)(1) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Pioneer stated in its petition that “[o]n or about June 13, 2006, for valuable consideration, Defendant executed and delivered a promissory note to Plaintiff for the principal sum of $13,424.99.” (Emphasis added.) “A rule of liberal construction applies when judging whether a claim has been stated.” Montoy v. State, 275 Kan. 145, 148, 62 P.3d 228 (2003). As stated earlier, Kansas courts will not sustain a motion to dismiss unless it seems almost inconceivable that, under the pleadings, the plaintiff could produce evidence justifying some form of relief. Noel v. Pizza Hut, Inc., 15 Kan. App. 2d at 231. Pioneer s petition and response to Ermey’s motion to dismiss was sufficient to survive the motion to dismiss.
Reversed and remanded. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is, whether the plaintiffs’ statement for a mechanics’ lien is sufficient or not. The court below held that it is not.
I. It is claimed that the statement is not sufficient because it does not contain the name of the owner of the property sought to be charged with the plaintiffs’ lien. We do not think that this claim is tenable. The statement shows, among other things, as follows:
“Name of owner, George A. Woods. . . . Said contractors and claimants [ Deatherage & Ewart] claim a lien upon the following-described property, [here the property is described,] ... for that they did, under contract with said owner, furnish material for erecting the two-story frame building in and upon said property.”
This is certainly a sufficient statement of the name of the owner of the property. It is fully as definite as the statute itself is.
II. It is claimed that the statement is insufficient because it' was not signed. Now the statute does not require that the statement shall be signed; and if the statement is otherwise sufficient, the signature is unimportant. (White v. Dumpke, 45 Wis. 454.) The statute, however, requires that various things shall be shown by the statement, as “the amount claimed and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property subject to the lien, verified by affidavit;” all of which the statement in this case shows. The affidavit in this case follows immediately after the statement, and the affidavit is signed by one of the plaintiffs, who are partners in the business of furnishing lumber and building materials. This would seem to be sufficient. ( White v. Dumpke, ante; Hicks v. Murray, 43 Cal. 515.)
III. It is claimed, however, that the statement is not properly verified by affidavit. The verification may be a little irregular, or a little informal, and yet we think it is sufficient. It was verified by William I. Ewart. He is one of the plaintiffs in this action, and is one of the partners who furnished the building materials for which this action is brought, and for which this lien is claimed. His name indicates who he is, and the evidence shows it. The verification itself shows that he verified the statement “ for Deatherage & Ewart, claimant.” This we think is sufficient. (White v. Dumpke, ante.) We suppose it will not be claimed that the verification for a firm should be made by all the members of the firm. A verification by any one of them would be sufficient, and probably a verification by any agent of the firm would be sufficient.
IY. It is further claimed that the statement is insufficient for the reason that it was not filed by the firm of Deatherage & Ewart, but was filed by William I. Ewart in his individual capacity. We do not think that this claim requires any discussion. It is not good.
The case of Charles P. Deatherage and William I. Ewart (partners as Deatherage & Ewart) v. Eli Henderson, et al., involves the same questions as are involved in the case which we have just been considering, and the two cases were submitted to this court at the same time. In the last-mentioned case still another question is presented. It is urged that even if it was an error on the part of the court below to exclude the statement for the mechanics’ lien, still, that the error was immaterial and harmless. Now we cannot say that the error was immaterial or harmless. By the exclusion of the plaintiffs’ statement for a mechanics’ lien, their power to maintain or enforce their lien was utterly and hopelessly overthrown and defeated, whatever other evidence they might have had or might have introduced, and we cannot know what evidence they would have introduced if their statement for a mechanics’ lien had not been excluded; possibly they might have introduced a great deal more. We can say this, however: the evidence which they did introduce did not necessarily defeat or destroy their mechanics’ lien, but on the contrary it tended to sustain and support it. It is useless to comment upon this evidence, however, for when the entire evidence is introduced of both the plaintiffs and the defendants, it may make a very different showing from what this portion of the evidence already introduced by the plaintiffs does. With reference to the questions that might arise upon the evidence, we would refer to Phillips on Mechanics’ Liens, §§124 to 127.
The judgments rendered in both the above cases, so far as they affect the plaintiffs’ alleged mechanics’ lien, will be reversed, and both causes will be remanded for further proceedings.
All the Justices concurring. | [
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Green, J.:
Chrysler Financial Company, LLC, n/k/a Daimler-Chrysler Financial Services Americas, LLC (Chrysler), appeals from the trial court’s judgment denying Chrysler’s motion to set aside the default judgment for $80,700 entered against it and in favor of First National Bank in Belleville (Bank). First, Chrysler argues that the trial court abused its discretion in not setting aside the default judgment under K.S.A. 60-260(b)(1) or (b)(5). Nevertheless, we agree with the trial court that Chrysler failed to show that there was excusable neglect to warrant setting aside the default judgment under K.S.A. 60-260(b)(1). Moreover, K.S.A. 60-260(b)(5) is inapplicable to this case because the Bank’s money judgment against Chrysler did not have prospective application and because there was no change in conditions occurring after the entry of default judgment that would make continued enforcement of the judgment inequitable.
Next, Chrysler contends that because the damages requested in the Bank’s petition were unliquidated, the Bank’s failure to comply with Supreme Court Rule 118 (2008 Kan. Ct. R. Annot. 200) makes the default judgment voidable. We agree with Chiysler’s argument. There is nothing in the record to establish the date on which the damages claimed in the Bank’s petition became due and the actual amount that Chrysler owed the Bank. As a result, we determine that the damages claimed in the Bank’s petition represent an unliquidated amount. The Bank’s failure to comply with Supreme Court Rule 118(d) in notifying Chrysler of its motion for default judgment renders the default judgment voidable. Because Chrysler, the named defendant in this case, has successfully challenged the entry of default judgment, the judgment is declared void. Accordingly, we reverse and remand.
In 2004, the Bank entered into a financing arrangement with Ronald and Rhonda Sankey and Sankey Motors, Inc. (Dealership), in which the Bank provided operating funds and purchase money for automobiles and real property for the Dealership. The Bank secured this financing arrangement with promissory notes, various mortgages, and Uniform Commercial Code (UCC) filings. The UCC filings included, among other things, a security interest in the Dealership’s accounts receivable. The Sankeys and the Dealership eventually defaulted on their financing arrangement with the Bank.
On Januaiy 26,2006, the Bank sued the Dealership; the Sankeys; Chiysler; and Republic County, which held a tax lien against certain real property owned by the Dealership. In Count II of its petition, the Bank claimed that the Dealership had an $80,700 account receivable due to it -by Chrysler. The Bank asked that Chrysler be ordered to pay the outstanding balance of the account receivable. In addition, the Bank asked for a money judgment against the Sankeys and the Dealership; for rulings regarding the Bank’s interests in certain real and personal property; and for the sale of the real and personal property.
Chrysler’s registered agent was served with the petition. Nevertheless, Chrysler failed to answer the Bank’s petition or to file any other responsive pleading in the case. On April 24, 2006, the Bank moved for default judgment against Chrysler. The Bank mailed Chrysler a copy of its motion for default judgment by regular mail. The trial court entered a default judgment against Ronald Sankey and the Dealership on June 6, 2006. The journal entry of default judgment against Sankey and the Dealership provided that Chrysler was in default but that the Bank’s claim against Chrysler would be determined at a separate time.
Apparently, on June 6, 2006, a subpoena was sent to Chrysler requesting all of its records regarding its contractual relationship with the Dealership. Chrysler did not respond to the subpoena. On June 12, 2006, a second copy of the motion for default judgment was sent to Chrysler via its registered agent. The Bank also attempted to contact an individual from Chrysler through Chrysler’s automated voice answering system.
The trial court entered a default judgment against Chrysler on July 28, 2006. Although the journal entry of default‘judgment indicates that an evidentiary hearing was held on Chrysler’s motion for default judgment, there is no transcript of this hearing in the appellate record. In awarding the Bank judgment of $80,700 plus interest, the journal entry provides:
“5. The Court generally finds in favor of Plaintiff and finds that the allegations of First National Bank of Belleville’s Petition are true and correct.
“6. Defendant Sankey Motors, Inc., has an account receivable due to it by Defendant Chrysler Financial Company, LLC in the amount of $80,700.00.”
The trial court determined that the Bank had a perfected security interest and was entitled to the account receivable from Chrysler. A copy of the journal entry was sent to Chrysler’s registered agent by regular mail.
The Bank later contacted another local Chrysler dealership regarding the best way to contact an attorney for it. Thereafter, a Chrysler attorney contacted the Bank and requested a copy of the legal proceedings. A complete copy of the legal proceedings was sent to Chrysler’s attorney on September 28, 2006.
On February 13, 2007, Chrysler moved to set aside the default judgment entered against it. Chrysler acknowledged that service of process had been made on its registered agent. Nevertheless, Chrysler argued that the default judgment should be set aside based on excusable neglect under K.S.A. 60-260. Chrysler asserted that the registered agent miscoded the action as a foreclosure action. Therefore, all pleadings had been forwarded to the wrong Chrysler service center and mistakenly designated as related to foreclosure.
Chrysler further maintained that because it had no judgment against the defendants or claims that it wished to make in the foreclosure action, it had taken no action in the lawsuit. Chrysler further argued that it had a valid defense to the lawsuit because there was no evidence that Chrysler had any liability. Chrysler asserted that the Bank had sued the wrong entity as part returns are an obligation of the manufacturer or supplier, which presumably would be the separate entity of Chrysler Corporation or Daimler Chrysler Corporation. Moreover, Chrysler argued that the Bank's claim against it appeared to be for unliquidated damages and that the Bank’s failure to comply with Supreme Court Rule 118 (2008 Kan. Ct. R. Annot. 200) rendered the default judgment voidable.
The Bank filed a written objection to Chrysler’s motion to set aside the default judgment. After holding a nonevidentiary hearing, the trial court denied Chrysler’s motion to set aside the default judgment. The trial court determined that Chrysler could not meet its burden to establish excusable neglect in its decision to not respond to the Bank’s petition and other documentation. The trial court further determined that Supreme Court Rule 118(d) had no application to the instant case because the specific sum of $80,700 recited in the petition represented liquidated damages. Moreover, the trial court noted that Chrysler had been notified by mail that the Bank had intended to proceed to obtain a default judgment. The trial court found that the default judgment was not entered until 3 months later, which gave Chrysler ample opportunity to investigate and respond to the Bank’s motion for default judgment.
I. Did the trial court abuse its discretion in not setting aside the default judgment under KS. A. 60-260(b)P
First, Chrysler argues that the trial court abused its discretion in not setting aside the default judgment under K.S.A. 60-260(b). “In determining whether to set aside a default judgment, a court should resolve any doubt in favor of the motion so that cases may be decided on their merits. [Citation omitted.]” Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989), cert. denied 495 U.S. 932 (1990). Nevertheless, a decision to set aside a default judgment rests within the discretion of the trial court and will be disturbed only upon a showing of abuse of discretion. Producers Equip. Sales, Inc. v. Thomason, 15 Kan. App. 2d 393, 396, 808 P.2d 881 (1991). An abuse of discretion will be found only when no reasonable person would take the view of the trial court. In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008).
K.S.A. 60-260(b) states in relevant part:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or odrer misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.”
In interpreting K.S.A. 60-260(b), our Supreme Court has stated that a motion to set aside a default judgment maybe granted whenever the court finds the following: “(1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a willful act.” State ex rel. Stovall v. Alivio, 275 Kan. 169, Syl. ¶ 2, 61 P.3d 687 (2003). An appellant’s failure to show all three elements dooms the appeal. 275 Kan. at 173.
Here, the trial court determined that Chrysler was unable to meet the excusable neglect element because Chrysler had chosen not to respond to the Bank’s petition and to the Bank’s other documents which it served on Chrysler. Leading to its decision, the trial court relied on Producers, 15 Kan. App. 2d 393. In Producers, default judgments were granted to the plaintiff on its petitions filed in three different counties against the defendant. Although the defendant had been served with the petitions, the defendant chose to ignore them, concluding that they were mechanics’ hen foreclosure petitions and did not seek money damages against the defendant. The defendant received no other pleading or documentation in the case before the default judgments were entered. After tire default judgments were entered, the defendant received a letter from the plaintiff demanding payment of its judgments. The defendant then moved to set aside the default judgments under K.S.A. 60-260(b) for mistake, inadvertence, or excusable neglect. Finding no excusable neglect, the trial court denied the defendant’s motion to set aside the default judgments.
On appeal, this court in Producers found no abuse of discretion in the trial court’s determination that there was not excusable neglect. 15 Kan. App. 2d at 397. This court noted that the petition stated a claim for a money judgment and that the defendant simply examined the petition and concluded it sought foreclosure of the liens without seeking legal counsel or further information from the plaintiff. This court concluded that the defendant had failed to show that its defaults were caused by excusable neglect. 15 Kan. App. 2d at 397.
The facts of this case are nearly identical to Producers in that the defendants in both cases were properly served with petitions that requested money judgments against the defendants. Additionally, the defendants in both cases examined the petitions and mistakenly identified them as relating to foreclosure actions and chose not to file responsive pleadings. Moreover, in the instant case, Chrysler was sent additional documentation in the action, including a subpoena for records and the motion for default judgment. Nevertheless, Chrysler did not file anything in the action or seek any information from the Bank until after the Bank attempted to con tact Chrysler to enforce its money judgment. Under those circumstances, the trial court properly determined that there was no excusable neglect to warrant setting aside the Bank’s default judgment against Chiysler.
Nevertheless, Chiysler maintains that the trial court should have set aside the default judgment under K.S.A. 60-260(b)(5), which allows relief if it is no longer equitable that the judgment should have prospective application. Chrysler argues that it would be inequitable to let the judgment stand when Chiysler did not owe any money to the Dealership, the Sankeys, or the Bank. Chrysler points out that it presented evidence to the trial court that it was not the proper party that owed money to the Dealership or the Sankeys for part returns.
Although the Bank contends that this argument was never presented to the trial court, Chrysler correctly points out that it was contained in its request for hearing on its motion to set aside the default judgment that was filed with the trial court.
In arguing that K.S.A. 60-260(b)(5) is inapplicable here, the Bank cites the federal case of Stokors S.A. v. Morrison, 147 F.3d 759 (8th Cir. 1998), which has interpreted Federal Rules of Civil Procedure 60(b)(5). Because Rule 60(b) of the Federal Rules of Civil Procedure is virtually identical to K.S.A. 60-260(b), the federal decisions and the treatises interpreting this rule provide guidance to this court’s interpretation of K.S.A. 60-260(b)(5). See Giles v. Russell, 222 Kan. 629, 632, 567 P.2d 845 (1977); In re Marriage of Larson, 19 Kan. App. 2d 986, 990, 880 P.2d 1279 (1994), aff'd 257 Kan. 456, 894 P.2d 809 (1995).
In Stokors, the defendant owed a money judgment of over $4 million. The federal district court granted the defendant’s motion for satisfaction of the judgment under Rule 60(b). The court held under Rule 60(b)(5) that it was no longer equitable that the money judgment should have prospective application. The Eighth Circuit Court of Appeals reversed. The court noted that most courts have agreed that “a money judgment does not have prospective application, and that relief from a final money judgment is therefore not available under the equitable leg of Rule 60(b)(5).” 147 F.3d at 762. The court quoted Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir. 1995), and it stated:
“ ‘Virtually, every court order causes at least some reverberations into the future, and has, in that literal sense, some prospective effect. That a court’s action has continuing consequences, however, does not necessarily mean that it has prospective application'for the purposes of Rule 60(b)(5). The standard used in determining whether a judgment has prospective application is whether it is executory or involves the supervision of changing conduct or conditions. . . . The construction of the Rule sought by [the movant], which apparently is to the effect that a judgment has prospective effect so long as the parties are bound by it, would read the word ‘prospective’ out of the rule.’ ” 147 F.3d at 762.
The court then cited numerous federal cases that have recognized that money judgments do not have prospective application and do not come within Rule 60(b)(5). See DeWeerth v. Baldinger, 38 F.3d 1266, 1275 (2d Cir. 1994) (interpreting United States v. Swift & Co., 286 U.S. 106, 76 L. Ed. 2d 999, 52 S. Ct. 460 [1932], and stating that “ ‘[i]n practical terms, these standards mean that judgments involving injunctions have “prospective application,” while money judgments do not’ ”); Gibbs v. Maxwell House, 738 F.2d 1153, 1155-56 (11th Cir. 1984) (“ The judgment of dismissal in this case was not prospective within the meaning of 60[b][5]. It was final and permanent. That plaintiff remains bound by the dismissal is not a “prospective effect” within the meaning of rule 60[b][5] any more than if plaintiff were continuing to feel the effects of a money judgment against him.’ ”); Marshall v. Board of Ed., 575 F.2d 417, 425 (3d Cir. 1978) (agreeing that “‘Rule 60[b][5] “does not cover the case of a judgment for money damages” ’”).
The court in Stokors held that while the judgment against the defendant “may be ‘prospective’ to the extent that he has failed to pay it in a timely manner, it is nevertheless a final order and is not ‘prospective’ for purposes of Rule 60(b)(5).” 147 F.3d at 762. The court concluded that Rule 60(b)(5)’s equitable leg cannot be used to reheve a party from a money judgment. As a result, the court determined that the trial court abused its discretion in granting relief to the defendant under Rule 60(b)(5). 147 F.3d at 762.
In its reply brief, Chrysler attempts to distinguish Stokors and the federal cases cited in Stokors on the basis that none of those cases involved an allegation that the defendant never owed the money awarded in the default judgment. Nevertheless, Chrysler cites no authority to support its argument that K.S.A. 60-260(b)(5) allows relief from a default judgment under such circumstances. Moreover, such a factual distinction would not implicate the application of Rule 60(b)(5) or K.S.A. 60-260(b)(5).
Rule 60(b)(5) “applies to any judgment that has prospective effect as contrasted with those that offer a present remedy for a past wrong.” 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2863, pp. 337-38 (1995). “It does not allow relitigation of issues that have been resolved by the judgment. Instead it refers to some change in conditions that makes continued enforcement inequitable.” 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2863, p. 340 and pp. 127-28 (2008 Supp.). See Schildhaus v. Moe, 335 F.2d 529, 530 (2d Cir. 1964); Federal Deposit Insurance Corp. v. Alker, 234 F.2d 113, 116 n.4 (3d Cir. 1956) (Rule 60(b)(5) applies “only to cases where a judgment which was valid and equitable when rendered is rendered prospectively inequitable by subsequent events.”).
Here, there was no change in conditions occurring after the entry of default judgment that would make continued enforcement of the judgment inequitable. Although the Bank discovered after the entry of default judgment that Chrysler might not be the proper entity that owed the Dealership money for returned parts, this was not a change in conditions. The record establishes that if Chrysler was indeed not the entity owing money to the Dealership for the returned parts, then it had never been the entity owing money to the Dealership. There had never been a change in the entity that actually owed money to the Dealership. Moreover, based on the reasoning in Stokors and the other federal cases cited in that opinion, K.S.A. 60-260(b)(5) properly applies only to judgments with prospective effect and, therefore, does not apply to a judgment for money damages. See Ryan v. United States Lines Company, 303 F.2d 430, 434 (2d Cir. 1962). As a result, Chrysler s argument on this issue fails.
II. Was the Bank required to follow Supreme Court Rule 118?
Next, Chrysler argues that the damages requested in the Bank’s petition were unliquidated and that the Bank’s failure to comply with Supreme Court Rule 118 (2008 Kan. Ct. R. Annot. 200) makes the judgment against Chrysler voidable. “The interpretation of a Supreme Court rule, like the interpretation of a statute, is a question of law.” Kansas Judicial Review v. Stout, 287 Kan. 450, 459, 196 P.3d 1162 (2008). An appellate court’s scope of review of questions of law is unlimited. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
Supreme Court Rule 118(d) states:
“Before any default judgment is taken in any action contemplated by this rule, the party seeking relief must notify the party against whom relief is sought of the amount of money for which judgment will be taken. Said notice shall be given by certified mail, return receipt requested, or as the court may order, at least ten (10) days prior to the date judgment is sought. Proof of service shall be filed and submitted to the court.” (2008 Kan. Ct. R. Annot. 201).
This court has stated that “compliance with Rule 118(d) is mandatory.” Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 300, 720 P.2d 1121 (1986). The “provisions of Rule 118(d) apply when default judgment is sought on any pleading of unliquidated damages.” Winner v. Flory, 11 Kan. App. 2d 263, 265, 719 P.2d 20 (1986). Failure to comply with Rule 118 renders a resulting default judgment voidable. Universal, 11 Kan. App. 2d at 302.
Here, the trial court determined that Rule 118(d) was inapplicable because “[t]he specific sum recited in the [Bank’s] petition of $80,700 represents liquidated damages.” Nevertheless, Chrysler argues that the damages recited in the Bank’s petition were unliquidated because the amount of damages was never fixed or certain and because it was unknown as to when the damages were allegedly due.
It is well established that “ ‘[a] claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same becomes definitely ascertainable by mathematical computation.’ ” Producers, 15 Kan. App. 2d at 402-03 (citing Plains Resources, Inc. v. Gable, 235 Kan. 580, 583, 682 P.2d 653 [1984]; First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 537, 562 P.2d 32 [1977]). Thus, in order for a claim to be liquidated, two things must be shown: (1) the amount due must be fixed and certain or definitely ascertainable by mathematical computation; and (2) the due date must be fixed and certain or definitely ascertainable by mathematical computation.
In arguing that its claim against Chrysler was liquidated, the Bank bases its argument on Producers, 15 Kan. App. 2d 393. In that case, the plaintiff was the operator of oil and gas leases which had been assigned to the appellant, who was a defendant in the case. The plaintiff filed mechanics’ liens against property, equipment, and the leases and then sought to foreclose those liens in the amounts of $6,453.33, $815.43, and $14,362.12. In its petitions, the plaintiff asked for those specified amounts plus interest and further stated that charges continued to accrue for labor and materials. The appellant failed to answer the petition, and the trial court entered default judgment against it. The default judgments, however, were in excess of the amounts requested in the plaintiff s petition. The trial court denied the appellant’s motion to set aside the default judgments.
On appeal, this court in Producers held that a default judgment in excess of the amount claimed in the petition violates K.S.A. 1990 Supp. 60-254(c), and such judgment should be vacated or considered voidable to the extent of the excess. Moreover, this court held that the default judgments were voidable in part because the plaintiff had failed to comply with Supreme Court Rule 118(d). In so holding, this court noted that it was dealing with a claim for both liquidated and unliquidated damages: “The specific sums recited in the petitions represent liquidated damages. The claims for future or continuing services constitute unliquidated damages at the time the petitions were filed.” 15 Kan. App. 2d at 403. The court pointed out that Rule 118(d) is applicable to any damages claim which is unliquidated when the petition is filed. This court determined that “since the petitions clearly sought liquidated damages, with unliquidated damages allowed at the time of judgment” and since it had already concluded that the amount of the judgment in excess of the amount in the petition should be vacated, the unliquidated damages amount in the judgment should be set aside. 15 Kan. App. 2d at 403.
Producers will not bear the weight of reliance that the Bank attempts to impose on that case. This is because the appellant in Producers never challenged whether the amount claimed in the petition was liquidated. Instead, the appellant in Producers argued that the default judgments were voidable under K.S.A. 1990 Supp. 60-254(c) and Supreme Court Rule 118(d) because they granted relief in excess of the amounts requested by the petitions. 15 Kan. App. 2d at 399, 402. With this argument, the appellant in Producers implicitly agreed that the amount in the petition was liquidated. Moreover, Producers involved foreclosure of mechanics’ liens, which often have supporting documentation attached. Nevertheless, because the appellant in Producers never argued that the amounts requested in the petitions were unliquidated, the opinion is devoid of any discussion of essential facts supporting the amounts requested in the petitions.
We turn now to the facts of the instant case. The Bank’s petition in this case outlined its claim against Chrysler as follows:
“21. Upon information and belief Sankey Motors, Inc., has an account receivable due to it by Defendant Chrysler Financial Company, LLC in the amount of • $80,700.00.
“22. Plaintiff has a perfected security interest in said account receivable and is entitled to any and all payments made or to be made by Chrysler Financial Company, LLC on said account receivable.”
In its prayer for relief at the conclusion of its petition, the Bank asked “[t]hat Chiysler Financial Company, LLC be ordered to pay the outstanding balance of the above described account receivable to the Plaintiff.”
A. Due Date
Nowhere in the Bank’s petition does it list the date on which the-account receivable became due. Further, there is no evidence in the record indicating when the account receivable became due. We are guided in this inquiry by several prior cases that have considered when a claim becomes liquidated. Most significant, in Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P.2d 555 (1969), the trial court and our Supreme Court were able to ascertain the date when the plaintiff s claim became liquidated: based upon the dates identified in the pleadings and the evidence contained in the record. There, the plaintiff was awarded judgment against the defendants for money damages based on copper products that it had sold and delivered to the defendants. In determining the date that damages had been liquidated, our Supreme Court noted:
“There has been no dispute as to what Alpha owed Phelps Dodge for goods sold and delivered, nor as to terms of payment. The agreed price was admitted by Alpha in response to a request for admissions and the date of payment was established by invoice as 30 days after date. The pleadings established that materials were supplied by Phelps Dodge from November, 1964 to October, 1965, and the trial court found, without objection, that tire final delivery date was October 22, 1965. Thus payment was due November 22, 1965.” 203 Kan. at 594.
Based on those undisputed facts, our Supreme Court held that there could be no doubt that the claim became liquidated as of November 22, 1965, thus entitling the plaintiff to interest on the liquidated amount. 203 Kan. at 594.
In this case, the Bank had the opportunity to present evidence that the damages claimed in its petition were a liquidated amount. In granting default judgment against Sankey and the Dealership, the trial court noted that Chrysler was also in default. The trial court noted that “all other claims will be determined at such separate time as may be necessary and expedient, including but not limited to the claims asserted against Chrysler Financial Company, LLC, which is also in default hereunder.” The Bank, however, never filed anything with tire trial court to establish that its claim was liquidated. For example, there is no invoice from the Dealership showing when the parts were returned for a refund. There is no indication as to when the parts were returned by the Dealership. Further, there is no return slip indicating when a refund could be expected or any information concerning the Dealership’s past practices as to when a refund for returned parts was normally received.
Finally, there is not a specific finding by the trial court as to when the $80,700 amount claimed by the Bank became liquidated. See Plains Resources, 235 Kan. at 583-84 (where trial court made no finding that plaintiff s claim became liquidated as of particular date and gave no other reason for allowance of prejudgement interest on compensatory damages award, trial court’s award of prejudgment interest was in error). The journal entry of default judgment did award the Bank interest “from and after January 1,2006, at the rate of $22.11 per day until fully paid.” Nevertheless, there is nothing in the record that would support the award of interest from that date. Instead, it appears that the January 1, 2006, date was taken from the journal entry of default judgment against San-key and the Dealership; the record, however, contains supporting documentation and shows that calculations had been made as to the amount owed by Sankey and the Dealership to the Bank as of January 1, 2006. The record contains no such calculations and supporting documentation as to the amount owed by Chrysler. As a result, the due date of the $80,700 amount was never “fixed and certain” or “definitely ascertainable by mathematical computation.” Therefore, the damages claimed against Chrysler were never liquidated.
B. Amount Due
Moreover, there is no documentation in the record from which a “fixed and certain” amount due could be reconstructed. The only indication in the record of the amount owing to the Dealership was in a Loan Comment Sheet, which was attached to Chrysler’s motion to set aside the default judgment and which the Bank had faxed to Chrysler in October 2006. The Loan Comment Sheet, which apparently was drafted by the Bank’s president, provided as follows:
“Ron called me today to tell me that he had flown to Denver to meet with Dave Rhodonas in the Chrysler office for this area, about the amount of monies he is owed. He said that Chrysler agreed that he is owed $42,700 on his parts returns, but there is a difference in what other monies he is owed by an amount of $9,000.00. Ron has documentation that he is owed an additional $38,000 and Chrysler says they owe him $29,000. There still is no indication as to when Chiys ler will pay him. I told him we needed documentation as to what was said. He said he would send me the information he had.”
Based on this Loan Comment Sheet, there had never been an agreement as to the amount owed on the account receivable. The Loan Comment Sheet establishes that the Bank was aware that the $80,700 amount claimed in its petition was a disputed amount.
Our research has revealed no Kansas case that involved the application of Supreme Court Rule 118 when the petitioner has claimed a particular damages amount in the petition but is aware that the amount is uncertain. Nevertheless, the Supreme Court case of First National Bank, 221 Kan. 528, gives guidance as to when a claim becomes liquidated. There, the plaintiff bank, as shipper, sued a motor vehicle carrier to recover damages for the loss of two packages of checks. Damages were awarded to the plaintiff in the lawsuit. On appeal, our Supreme Court had to determine when the plaintiff s claim became liquidated so that it could compute the allowance of interest on the damages award. Our Supreme Court determined that the plaintiff s loss became liquidated when the plaintiff was able to reconstruct the lost checks and determine the expenses involved in reconstruction. 221 Kan. at 536-38.
Here, the record fails to establish that there was any effort made by the Dealership or the Bank to reconstruct the actual amount that was owed on the account receivable. For example, there was no invoice of the parts that had been sent back by the Dealership. There was no other itemization of the parts that had been returned for a refund. Based on the record in this case, it cannot be said that the $80,700 amount claimed in the Bank’s petition was fixed and certain or definitely ascertainable by mathematical computation. As a result, the $80,700 amount did not represent liquidated damages.
Because the damages claimed in the Bank’s petition against Chrysler were unliquidated, the Bank was required to comply with Supreme Court Rule 118(d) in seeking a default judgment. Under Supreme Court Rule 118(d), the Bank was required to notify Chrysler by certified mail, return receipt requested, of its motion for default judgment at least 10 days before the date it sought default judgment. The Bank’s failure to comply with Supreme Court Rule 118(d) renders the default judgment voidable. Because Chrysler, the named defendant in this case, has challenged the default judgment under Supreme Court Rule 118(d), the judgment is declared void.
Reversed and remanded. | [
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Opinion by
Clogston, C.:
The prosecution of which the defendant in error complains was commenced by plaintiff in error, S. B. Bell, upon the following complaint:
“State oe Kansas, County op Wyandotte, ss.: Simeon B. Bell, of lawful age, being first duly sworn, says that at the county of Wyandotte and state of Kansas, and on or about the 24th day of March, 1885, one Keepers did unlawfully and willfully enter into and destroy personal property and trespass upon the premises of the affiant, contrary to statute in such case made and provided. S. B. Bell.”
A warrant was issued substantially following the complaint. It is now claimed that this complaint does not state a criminal offense, and for this reason plaintiff insists that no action for malicious prosecution can be maintained for the arrest made thereunder. This is no longer an unsettled question in this state. This court has repeatedly held that it cannot protect a complainant who, after procuring a warrant to issue on his complaint, to say in answer to a charge of malicious prose cution, that the complaint charges no crime. A void process procured through malice, and without probable cause, is even more reprehensible, if possible, than if it charges a criminal offense. The wrong is not in the charge alone, but more in the object and purposes to be gained, and the intention and motive in procuring the complaint and arrest. The contents of the complaint, when maliciously made and without good cause, are of but little consequence, and can give no protection. (Parli v. Reed, 30 Kas. 534; Shaule v. Brown, 28 Iowa, 37; Bauer v. Clay, 8 Kas. 580.)
The record presents a more serious question than that urged against the complaint. At the trial, the written contract of the sale of the property in dispute was introduced in evidence. To this contract we must look to determine the rights of the respective parties, and from their interests and rights thereunder, as they were then placed, must be gathered something of the intention, objects and inducements that led to the procuring of the complaint and arrest. It is not the act alone that we are to judge, but the intentions and motives that prompted the act. This contract was admitted in evidence for this purpose; and as this contract fixed their interests in and relations to the property in dispute, then what those interests and relations were was a question of law to be determined by the court, and not a fact to be determined and found by a jury.
The court, upon this contract, gave the following instruction to the jury:
“20. The written contract offered in evidence tends to show, and does show, the existing relations as respects the barn and attachment between plaintiff and defendant at the time the affidavit was filed and warrant issued for the arrest of the plaintiff by Justice Stine. This contract, with all the other evidence in the case, will be considered by the jury. The point to which this evidence has application as to whether this written and the other evidence was at the time of the arrest sufficient to create a reasonable suspicion that the acts and conduct of the plaintiff in removing parts of the barn and other fixtures was a crime as alleged in the affidavit of the defendant, upon which the warrant of arrest issued. Were all these facts of such a character and sufficiency as to create a reasonable suspicion in the mind of a reasonable man that John Keepers was at the time guilty of the offense as alleged by the'defendant in said affidavit? And if the jury should so believe, on consideration of the terms of said contract and of other circumstances in the case, it will be their duty to find for the defendant.”
We think this instruction was erroneous. The court ought to have defined the rights and interests of the parties in this property, and so instructed the jury, and not left them to draw their own conclusions from this contract.
The court also instructed the jury as follows:
“11. To constitute probable cause for a prosecution, there must be such reasonable grounds for suspicion, supported by circumstances sufficiently strong to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged.”
“14. To authorize a recovery in this class of eases it must not only appear that the defendant was actuated by malice, but the jury must further believe from the testimony that the defendant had no probable cause or no reasonable grounds to believe the plaintiff was guilty of the offense charged against him; and the court further instructs the jury that probable cause means a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a reasonably cautious man to believe that the person accused is guilty of the offense charged.”
By these instructions the court gave to the jury the question of probable cause, and left them to determine what facts would constitute probable cause. This was error. Probable cause, or the want thereof, is a question of law to be determined by the court, and not a question of fact to be found by the jury. True, if the facts upon which probable cause is to be founded are in dispute, the court may submit to the jury the questions of fact; but even in that case, the instructions must state what facts, when found by the jury, will be sufficient to establish probable cause. The relations of the parties, their rights and interests in the property in dispute, being fixed by the written contract, no question then of probable cause was in dispute, and the court ought to have instructed the jury as to whether ■or not plaintiff had established the want of probable cause. Justice Brewer held, in Parli v. Reed: “ The court passes upon the law. It is its province to say what constitutes probable cause, for that is a matter of law.” (30 Kas. 534. See also Thaule v. Krekeler, 81 N. Y. 428.)
There aré other questions complained of by the plaintiff in error, but as the errors already discussed will require a reversal of the case, we shall not examine them.
It is therefore recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
Talbot commenced his action before a of the peace of Cherokee county, against McAboy, to recover $63.67, alleged to be due for pasturage of certain stock. McAboy filed an answer containing a general denial, and also alleging that Talbot took and accepted twenty-eight head of stock from him, to pasture, thereby becoming a bailee for hire; and that through his negligence three of the cattle were lost, and therefore that he was entitled to recover the value of the same, being $75, for damages. Upon the trial before the justice of the peace, McAboy recovered judgment for $12.10, with his costs. Talbot appealed to the district court, and the case was tried at the April term, 1885. The jury returned a verdict for Talbot for the sum of $39.40, and judgment was rendered thereon, with costs taxed at $49.85. McAboy excepted, and brings the case here.
It is contended that the bill of particulars setting forth the account or claim is insufficient, and that no evidence ought to have been received against the objections presented. We think otherwise. Pleadings in actions commenced before a justice of the peace are generally not required to be as formal as pleadings in actions commenced in the district court. (Galbraith v. McCormick, 23 Kas. 706.)
It is further contended that the evidence does not support the verdict. This case comes within the rule so often declared by this court, that where the testimony sustains every essential fact, and the verdict has received the approval of the trial court, this court will not interfere, although the testimony seems to preponderate the other way. This court is not a trier of questions of fact. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145.)
The judgment of the district court will be affirmed. | [
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Opinion by
Holt, C.:
The defendants in error, plaintiffs below, brought their action against plaintiff in error in the superior court of Shawnee county, for their commission for selling lands for defendant. They alleged that they were real-estate agents; that the defendant came to them in the spring of 1884, ánd placed his farm in their hands for sale. The agreement entered into between the parties was not in writing, and the parties differ in regard to its terms. The plaintiffs claim that if they should procure a purchaser ready, willing and able to buy, that they would receive a commission of five per cent, upon the price for which the land should be sold. • The defendant stated that he placed the farm in their hands to sell; that he was to pay them a commission of five per cent, when a sale was made to a person willing and able to pay for the same. Sometime in October of that year, M. J. Eiley, one of the plaintiffs, took a man by the name of Neiswinder, a stranger, to the house of the defendant, to show him the land. Defendant states that Eiley told him he had found out that Neiswinder wanted a farm, and was able to buy, and had brought him over for the purpose of making a trade; that he had “looked him up,” and he was worth $25,000. He said this statement was made to him in the absence of Neiswinder. Eiley testified, however, that Neiswinder and Stewart talked over the financial standing and ability of Neiswinder to pay, and after investigation Stewart seemed to be satisfied that he was able to pay for the farm. An agreement "was entered into that day, by which Neiswinder paid Stewart $350 in hand, and' the next day it was reduced to writing in the office of plaintiffs in Topeka. By that agreement Neiswinder was to pay Stewart $650 in addition to the $350 already paid, and on the 17th day of February following was to pay the further sum of $4,000 in cash, give security by first mortgage on the property for $5,000, due in three years at eight per cent.; and upon the payment of the money and the execution of the mortgage, Stewart was to give a deed to the place, and give him the possession thereof on the 1st day of March following. The $650 was paid, but there was no further payment made, nor demand for a deed by Neiswinder of Stewart, nor any demand by Stewart for the $4,000 or the execution of the mortgage.
The first complaint of defendant is as to the ruling of the court excluding a letter written by Neiswinder to Stewart in regard to the payment for the land. There is no offer to show the contents of the letter, and we are left to presume what it contained; we would not be justified in presuming that an ordinary business letter written by Neiswinder to this defendant could have been competent and relevant evidence in this action between the agents of the defendant and the defendant himself.
The defendant claims there was error in the charge given by the court to the jury. We do not find any exception taken to the general instructions or any part thereof. The defendant, however, offered three instructions, which were refused. We shall examine the instructions given only for the purpose of seeing whether the instructions asked and refused were given elsewhere in substance by the court. The first instruction asked by defendant and refused by the court is:
“If the plaintiffs agreed and undertook to sell the defendant’s farm for a commission upon the price realized, then in order to earn their said commission it must appear by a preponderance of the evidence that they effected a sale of the farm to a party ready, willing and able to perform the conditions of the sale. The mere procuring of a person to enter into a contract to purchase the land unless such purchaser was ready, willing and able to make the cash payments named in the contract, and to make the mortgage therein named for the deferred payments, would not be sufficient to entitle the plaintiffs to their commission.”
We think that instruction ought to have been given under the testimony of the defendant about the terms of his agreement with plaintiffs, unless he had in some manner waived his rights by entering into a sale with Neiswinder. This necessitates an examination of the contract entered into between Stewart and Neiswinder on the 25th day of October, 1884. The contract is substantially as follows: This agreement, made and entered into this 25th day of October, 1884, by and between J. N. Stewart and Reuben Neiswinder, witnessed : That said party of the first part, for the consideration hereinafter mentioned, covenants and agrees to sell unto the said party of the second part, his heirs and assigns, the following property: [Here follows description.] The considerations and conditions of this agreement are as follows, to wit: The party of the second part is to pay in full consideration for said premises the sum of ten thousand dollars, in the manner and upon the conditions hereinafter expressed, to wit: three hundred and fifty dollars cash in hand; the further sum of six hundred and fifty dollars in notes secured by first mortgage, fifteen days from date; the further sum of four thousand dollars" cash, to be paid on or before the 17th day of February, 1885; the further sum of five thousand dollars to be secured by mortgage ou said premises, and held by said Stewart for three years, to draw eight per cent, interest, payable semi-annually; the said party of the first part to give possession on March 1,1885, upon compliance with the within agreement. In consideration of which, said party of the second part covenants and agrees to pay unto said party of the first part for the same the sum of ten thousand dollars, as follows, in the manner and within the time and with the interest as herein above mentioned and specified. ... If default be made in fulfilling this agreement or any part thereof, by or on behalf of said party of the second part, this agreement shall, at the option of the first party, be forfeited and determined, and said party of the second part shall forfeit all payments made by him on the same; and such payments shall be retained by said party of the first part in full satisfaction of all damages by him sustained, and he shall have, the right to enter and take possession of said premises.
Was this a contract to sell, or was it a sale within itself? Certainly it was not a conveyance; at most it'was only a contract to convey by deed, when Neiswinder should perform certain conditions specified in the agreement. There was something to be done by each party before there could be a completed sale; Neiswinder was to pay in the future a definite sum of money, and execute a mortgage upon the land; and on the other hand the defendant, upon the payment of the money and the delivery of the mortgage, should execute a deed and give possession of the farm to him. There was, however, a part of the consideration named in the contract paid in cash at the time it was entered into; whatever effect such payment would ordinarily have in contracts relating to real estate, we think the conditions in this agreement about the payments made by Neiswinder show clearly the intentions of the parties. It is therein provided that if Neiswinder should fail to pay the $4,000, and execute the mortgage, then all payments made by him should be retained by the defendant in satisfaction and liquidation of all damages he had sustained. We think this provision of the agreement was been treated by the parties thereto as a contract decisive of its character. It was a contract to sell. It appears by the evidence in this case that it has to sell, rather than a sale. No sale having been made, it would follow, if the defendant’s statement of the contract for commission between himself and plaintiffs were true, that he had thae rigLt to insist that at the time specified for the sale to wit on the 17th day of February, 1885, Neiswinder should have been ready, willing and able to purchase the farm of defendant. It might fairly be inferred from the evidence, that he was unable to buy at that time. His ability to pay should have been shown affirmatively; the burden was upon the plaintiff to establish it.
In view of the conflict of evidence about the terms of the contract for a commission, this instruction should have been given. The defendant was entitled to have his theory of the action, when supported by material testimony, fairly pre matter of vital importance to him, for if his version of the contract was correct, then the instruction refused stated the controlling rule of law in the case. The court did not elsewhere give an instruction embodying it in substance; on the other hand, it did instruct the jury that the agreement between defendant and Neiswinder was a sale, and not a contract to sell. If it had been a sale, then defendant in making it would have waived the question of the ability of Neiswinder to pay, and this instruction would have been properly refused ; but if it was a mere contract to sell, there would have been no waiver by defendant, and . J the question of what the contract for a comrmssion was should have been determined by the jury under proper instruction of the court.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The sole question presented in this case is, whether a justice of the peace can revive a judgment rendered before him which has become dormant. The district court held that a justice possesses the power. In-this view we concur. There is no express provision in the justices code for the revivor of dormant judgments, but under § 185 of this code the provisions of the civil code for the revival of judgments are applicable to a judgment rendered before justices of the peace, where the judgment has not been transferred to the district court by appeal or otherwise. (Civil Code, §440; Angell v. Martin, 24 Kas. 334; Miller v. Curry, 17 Neb. 321.) Section 522 of the civil code prescribes the mode of reviving judgments of justices of the peace, after they have been docketed or transferred to the district court; hence that section does not conflict with the conclusion reached. (Rahm v. Soper, 28 Kas. 529.)
The order and judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The facts as found by the court show that one J. W. Sharp was the patentee of the land, and that he conveyed the same to W. A. Arnold, and in part payment therefor received a note for $1,500, secured by mortgage on the land; that on the 7th day of October, 1870, Arnold and wife conveyed by the instrument attached to defendant’s answer, being exhibit “A,” the east half of the land in controversy to the defendant, for a consideration of $1,000, $250 cash, and $750, with interest, to be paid on the mortgage executed by Arnold and wife to Sharp. Defendant went into possession of the land, and retained possession until 1872, when defendant entered into a contract in writing for the sale and transfer of the land to John Q. White, but said contract was never of record. White took possession of the land, and remained in possession until about the first of January, 1875. The consideration of the contract between defendant and White was, that White was to pay the defendant $550, for which sum he executed his notes, and was also to pay the Arnold mortgage to Sharp of $750, which Finch had agreed to pay as purchase-money for the land. White abandoned the land, and the same remained unoccupied until 1881. Neither Finch nor White paid any part of the $750 on the Sharp mortgage, except one installment of interest, and one year’s taxes on the land. In 1874, Sharp brought an action to foreclose the mortgage, making Arnold and wife and John Q. White defendants. A decree of foreclosure was entered, and the land sold thereunder, and was purchased by Sharp. Sharp, by will, conveyed the land to Davidson, who conveyed the land by deed to plaintiff. In 1881, plaintiff took and retained possession of the land, and made valuable improvements thereon. The land, at the time of the foreclosure, was of the value of $1,200; it is now of the value of $2,500.
Defendant now claims that he was not made a party to the foreclosure proceedings in the suit by Sharp; that he still has a title and interest in the land, and a right to redeem from the mortgage. Tt will be remembered that White was in possession of the land at the time of these foreclosure proceedings, under some contract in writing, and that he had executed his notes for the balance of the purchase-money after deducting the Sharp mortgage. What the nature of this written instrument was is not clearly shown by the evidence. In fact, the only evidence given of this instrument was by the defendant, and he testified that it was lost, and that he did not recollect what it contained, or whether it was signed by his wife, or acknowledged; but thought it was a contract to convey the land upon the payment of the purchase-money. The burden of establishing the character and nature of this instrument was upon the defendant. He had conveyed the land by some instrument to White; White was in possession, claiming title to the land. If this contract or deed, or whatever it was, was of the same character as the conveyance by Arnold to Finch, then it would have conveyed all the interest and right that Finch had to the land, and White would have been a necessary party in the foreclosure, but Finch would not be. This conveyance from Arnold to Finch was not an absolute conveyance; it was coupled with conditions; it was only to become absolute and indefeasible upon the payment of this $750, and that was never paid; and in the absence of better evidence than that given by the defendant, we shall presume that the transfer of what right Finch had to the land was of as high a character as that received by him from Arnold.
Taking into consideration the lapse of ten years since the sale of the land under the mortgage, its increased value, and the fact that the defendant paid no part of the mortgage debt, but seemingly abandoned the land, we do not think that he now ought to be heard to urge his right to redeem, when all the presumptions are against that claim. (Fowler v. Marshall, 29 Kas. 665.)
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
There is but a single question for consideration in this case: Whether the district court erred in overruling the motion for a continuance, made by plaintiff in error. The facts in the case are briefly these: On the 10th day of September, 1884, Minerva Wilkinson saved the life of her widowed sister’s child, two years of age, snatching it from the track of defendant’s railroad in front of one of its locomotives. As she caught the child, she was struck by the engine in the left temple and instantly killed. She left her husband and five children. An administrator of her estate was appointed, not her husband; action was brought and the case was at issue for the first time at the December term, 1884, of the district court of Greenwood county. It met in that county on the 7th day of December; this cause was tried on the 17th of the same month. The affidavit for a continuance states facts that would have been material and relevant on the trial of the cause; the only question is, whether the plaintiff used sufficient diligence in attempting to procure the testimony of the absent witness, William Wilkinson, the. husband of Minerva Wilkinson.
Ordinarily the question of sustaining or overruling a motion for a continuance lies largely in the discretion of the trial court, and when it sustains the motion for a continuance, its decision, unless it is manifest that there is an abuse of discretion, will be upheld. This rule does not have the same force when the motion is overruled, and the parties are compelled to go to trial at once; yet it is a fact then, that the trial judge, knowing all the circumstances surrounding a case, can properly exercise a wide discretion, and is often justified in compelling the parties to immediately proceed to trial.
In his affidavit plaintiff states that the absent witness was the husband of the woman killed; that for three years he had been living four miles west of Eureka, the county seat, and continued to reside at said place after the death of his wife up to about the last of November, 1884, and up to within nine days of the beginning of the then present term of court; that said witness had frequently promised the plaintiff that he would certainly be present at the trial to testify as a witness for the plaintiff, and that nothing but sickness or death would prevent him from doing so; that plaintiff knew nothing of said witness’s (Wilkinson’s) intention to leave, did not know that he had gone until the fifth day of December, and did not know where he was; that he made diligent inquiry and every effort to find out the whereabouts of the witness since he left, but he was unable to ascertain anything about it. There is no statement as to where or how plaintiff inquired, or what efforts he made. The fact that Wilkinson with five children lived only four miles from Eureka, would indicate that every effort and diligent inquiry would have led plaintiff to go to his usual place of residence and to his neighbors. Plaintiff could ordinarily have ascertained from some one of the five children of witness the whereabouts of their father, or if they had left home with him, he could have ascertained from some of the neighbors in what manner they left, the place of their destina tion, and the probable length of their absence. None of these facts are set forth. It is simply stated that plaintiff’s efforts to procure the witness by diligent inquiry and by every means in his power were useless, without attempting to detail what he actually did, but simply stating the conclusion that he drew himself. If he had set forth the details of his inquiry, the court might not have considered it diligence, and his efforts entirely misdirected and inadequate. It is to be remembered that this witness was the husband of the woman who was killed, and that his interest in the action must have been as great as that of any other person — certainly as that of the plaintiff, who was appointed administrator of the estate of the deceased woman. Having such interest, and leaving the short time that he did before the action, has much to do with our sustaining the ruling of the court below.
There is no showing that the whereabouts of the witness could have been ascertained, or that he could be procured as a witness at the next term of court, or that his deposition could be taken, except the bare assertion in the affidavit of plaintiff that he had every reason to believe he could procure his evidence at the next term of court. He failed to set forth a single fact upon which he could rest his belief. It seems strange that a party interested in the result of an action as this witness must have been, left just before the commencement of the term of court at which it would probably be tried. The fact that a subpena was issued on the tenth day of December for the witness, if the plaintiff knew that he was out of the county, was made as a mere matter of form, that it might be stated in an affidavit for a continuance as proof of diligence. It is not very strong evidence of diligence to issue a subpena for a witness if he is known to be out of the county at that time, and no probability of his being in the county before or at the trial of the cause. Proper diligence would have been to have made inquiries where such inquiries would probably have been answered, and where some clue to the whereabouts of the absent witness could have been found, or some reason ascertained for his strange departure.
Although it appears from the record here, that it would have been no error to have granted a continuance, yet we cannot say that the court below abused its discretion in compelling the plaintiff to go to trial.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an action in ejectment. The petition was filed on the 28th day of November, 1879, and j udgment by default was taken on the 22d day of January, 1880. Sometime in the month of December, and before the answer-day named in the summons, Francis L. Sanders, one of the defendants in the court- below, employed an attorney to defend the action against him and his co-defendants, stating to him all the facts, and receiving from him an assurance that the defendants had a good defense upon the merits to said action. On the 6th day of January, the attorney employed by Francis L. Sanders was suddenly called to Washington on important business, and before leaving requested a brother attorney to go into court, then in session, state the facts, and ask leave to file an answer for the defendants. On the 7th or 8th day of January, the attorney went into court, called the attention of the court to the case, and requested leave to file an answer, and was informed by the judge that the case would not be for trial at that term, and that the attorney employed would have time to answer after his return from Washington. On the 22d day of January, judgment was taken by default, against the defendants, and on the 9th day of February an execution was issued on the judgment. On that day, the attorney employed being still absent, the other attorney filed in the clerk’s office a written demand for another or second trial of the action, and presented this motion to the court, and made such a showing that the court made an order reciting that a motiou having been filed to set aside the judgment in said action, it is ordered and directed that the execution issued in the action be returned, and that further proceedings be stayed thereon until the 8th day of March, 1880. On the 5th day of March the court sustained the demand of the defendants for another or second trial, and made an order granting a new or second trial of this action in accordance with § 599 of the code. To this ruling of the court an exception was taken, and the plaintiff given until the 20th day of March to present his bill of exceptions — the defendants at the same time giving notice pf a motion for leave to file an answer. They filed their motion on the same day, and it was heard on the 10th day of April. The court granted them leave to file an answer instanter, for good cause shown, and required them to pay all costs to that date. The answer of the defendants was filed on the 10th day of April, and on the 21st of the same month they paid all the costs as required, amounting to the sum of $13.50. In the meantime the plaintiff had taken the case to this court, and no further proceedings were had in the district court until the 30th day of January, 1883, when a mandate was presented and spread upon the journal of the district court reversing its order granting the defendants a second or new trial. (See Hall v. Sanders, 25 Kas. 538.)
On the 12th day of March, 1883, the death of Francis L. Sanders was suggested, and by stipulation an order was entered reviving the judgment against Mary A. Sanders, administratrix of the estate of Francis L. Sanders, deceased, in her official capacity as such administratrix. On- the 16th day of March, 1883, the defendants filed 'their motion to set aside and vacate the judgment rendered against them by default, on the 22d day of January, 1880, with leave to file an answer, and with an offer to pay all costs accrued in the action to date, and also presented a verified answer. Notice was given the attorneys of record of the plaintiff that this motion would be heard on the 16th day of April, and that the affidavits of certain persons would be read in support thereof. This notice was duly served on the 16th of March. The Hon. John Martin, judge of the district court of Shawnee county from almost the 1st day of February, 1883, until the second Monday in January, 1885, refused to hear said motion, because he had been of counsel, and the hearing was postponed from time to time until the Hon. John Guthrie became judge, in January, 1885. The motion was then heard before him sometime in January, and taken under advisement by him, and on the 24th day of February, 1885, he denied said motions, and each one of them; to which ruling the defendants excepted, and bring the case here for review.
We have very carefully considered the questions involved, and have with great care examined all the facts and circumstances, and are of the opinion that it would be an abuse of that wise discretion vested in the district court to .. n . prevent a failure of justice, to deny to the plaintiffs in error a fair opportunity to be heard upon the merits. There is no laches that can be attributed to them,- and while it is a fact that the attorney employed permitted the time for answer to expire without filing, he made an application for leave to file within a very reasonable length of time thereafter, and was certainly misled by the statement of the judge that the case would not be for trial at that term, and that, he would have time to answer after his return from Washington. This fact is not controverted, but is strengthened by the prompt action of the judge in the order for a recall of the execution and the stay of further proceedings, and his subsequent order allowing the defendants to file an answer upon the payment of all costs. All these things occurring so soon after he had made this statement to the attorney who first made application for leave to file an answer out of time, seem almost absolutely conclusive that the defendants were to be protected by that promise of the judge, and were to be given an opportunity to contest the case on its merits. In giving the plaintiffs in error an opportunity to present their defense, we are doing only what the court below, which was conversant with all the facts, tried to do, and only failed to do because its order to that effect was powerless — the case at that time being beyond its control. Had the same judge remained upon the bench, it is absolutely certain that when the case went back from this court he would have set aside the judgment, and given the plaintiffs in error leave to plead to the petition. This is assumed because of his unauthorized action in that regard, based, we have no doubt, upon his recollection of what had occurred. We now do what he vainly tried to accomplish — we having the power, and the circumstances not only justifying but seemingly requiring this exercise of the authority.
It is recommended that the ruling of the court below denying the motions be reversed, and the cause remanded to the district court, with instructions to sustain the motions to vacate the judgment, and allow the plaintiffs in error to file an answer to the petition on the terms specified in the motions.
By the Court: It is so ordered.
All the Justices concurring. | [
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Hill, J.:
Through enactment of the statute of repose, the Kansas Legislature has granted immunity to defendants for claims made 10 years after a defendant’s acts or omissions give rise to a cause of action. Here, the defendants bought an apartment building in Manhattan in 1990. The plaintiff fell down a set of stairs in one of the apartments and broke his leg in 2004; he claims a handrail could have prevented his fall and has sued the owners for personal injuries because'they failed to install a handrail. No handrail was installed on those stairs in the apartment when they purchased the place, and the defendants, have not installed one since their purchase. Because 14 years have elapsed since they purchased the building and failed to install a handrail, the statute of repose bars the plaintiffs negligence claim for personal injury arising from that failure. The negligence per se claims of the plaintiff arising from any alleged breach of the Code of Ordinances for the City of Manhattan have no merit as the code does not grant a private cause of action. However, because thé Kansas Residential Landlord and Tenant Act establishes a duty for every residential landlord to comply with the requirements of applicable building codes materially affecting safety, we remand the case for the district court to determine if the landlords had knowledge, actual or imputed, of the requirement to install a handrail and if the plaintiff was on the" premises with the consent of the tenants. We must affirm the district court’s grant of summary judgment in part and reverse and remand with directions.
We give a brief background of the case.
James and Evelyn Dunham, the defendants, bought an apartment building at 718 Kearney in Manhattan in December 1990. The building has two apartments: apartment 1 is upstairs and apartment 2 is downstairs. Apartment 2 has a 5 x 3% foot landing inside the apartment, not in a common area, with five steps descending from the landing into the apartment. The parties agree that apartment 2 had no handrail when the Dunhams bought the building and that they have not installed one.
Simon J. O’Neill, the plaintiff, attended a party in apartment 2 on the night of July 23, 2004. He was neither a tenant nor was he invited to the party. In his deposition, the plaintiff testified that while he was trying to get another beer, someone bumped him while he was on the landing and he then fell down the stairs and suffered a broken leg.
Seeking damages for his personal injuries, O’Neill sued the Dun-hams, making several contentions in his petition, all centering on the lack of a handrail. He asserted the defendants had failed to exercise reasonable care by keeping the property without handrails. O’Neill also contended the defendants failed to exercise ordinary care and maintain the property in a safe condition by failing to install handrails. He also alleged the defendants negligently failed to install handrails on the staircase in direct violation of section 306.1 of the International Property Maintenance Code of 2003 as adopted in section 8-176 of the Code of Ordinances for the City of Manhattan, Kansas. That code calls for a handrail on at least one side for any set of stairs that has more than four risers. He sought damages for past and future medical expenses, lost wages, pain and suffering, and disabilities.
The district court closed the case by granting summary judgment to the defendants based on the statute of repose. The defendants argued the plaintiffs claims were barred by K.S.A. 60-513(b) and the plaintiff did not have a negligence per se claim because the Manhattan Code does not provide a private right of action. Without considering the merits of any of the plaintiffs negligence per se arguments, the district court granted the defendants’ motion for summary judgment.
Specifically, the court found that if the defendants had been negligent, they were negligent in failing to install a handrail, and such negligence would have occurred YVA years before plaintiff s fall and injury. The district court likened the case to Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999), and found that the plaintiff s claims were barred by the 10-year statute of repose in K.S.A. 60-513(b). O’Neill appeals that judgment.
Where there is no factual dispute, as in this case, appellate review of an order regarding summary judgment is de novo. Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008). We will therefore look at the matter without limitation.
We make some observations on the statute of repose.
It is seldom helpful to consider a statute out of context, and this principle applies to the statute of repose because the legislature has intended the rule to be read in conjunction with the statute of limitations. The two statutes, when read together, express the public policy of Kansas concerning when claims for personal injury can be pursued in court. Under K.S.A. 60-513(a), an “action for injury to the rights of another, not arising on contract” must be brought within 2 years. Such actions are deemed to have accrued when “the act giving rise to the cause of action first causes substantial injury.” K.S.A. 60-513(b). But K.S.A. 60-513(b) provides that “in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” These two laws set out clear limits on claims: the statute of limitations eliminates stale claims, and the statute of repose provides immunity for claims.
Our Supreme Court has addressed these distinctions.
“ ‘A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive. [Citations omitted.]’ ” See v. Hartley, 257 Kan. 813, 818, 896 P.2d 1049 (1995).
The rule is clear. The statute of repose operates as a general grant of immunity against claims arising more than 10 years after the defendant’s actions and abolishes a cause of action even if if has not yet accrued. Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 663, 831 P.2d 958 (1992); Four Seasons Apts. v. AAA Glass Service, Inc., 37 Kan. App. 2d 248, 251, 152 P.3d 101 (2007).
We apply the rule of repose to the facts of this case.
The defendants concede that apartment 2 had no handrail from 1990 until July 2004, the date of plaintiff s injury. They also admitted in their depositions it was their responsibility, not the tenant’s, to install and maintain a handrail on the stairs of apartment 2 according to the language in the rental agreement as well as the Code of Ordinances of the City of Manhattan, Káñsas. The code requires every flight of stairs with more than four risers to have a handrail on one side of the stairs. Manhattan Code, secs. 8-176 to 8-178; International Property Maintenance Code of 2003, secs. 106, 306.
Fundamentally, in order to determine if the statute of reposé is applicable, a court must decide whén an act that gives rise to a cause of action happens. The logic used by the district court here is straightforward. The first time the Dunhams could have installed a handrail was the day after they bought the building. They failed to act, and if that failure is considered to be negligence, then it happened 14 years before the plaintiff fell down the stairs. The court used Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999), as its guide. In Klose, a child was injured during a tennis tournament when he ran into a concrete wall next to his court at the defendant’s racquet club. The plaintiff brought personal injury claims against the club, arguing the wall was placed too closely to the court under United States -Tennis Association rules. Our Supreme Court held the claims were barred by the statute of repose in K.S.A. 60-513(b) because more than 10 years had lapsed between the wall’s construction in 1974 and plaintiff s 1994 injuiy. 267 Kan. 165, 172-74.
In relying on Klose, the court said:
“This case is more similar to Klose than Dobson. In Klose, the plaintiff collided with a concrete wall, as in this case Plaintiff fell on stairs. In Klose, the alleged negligence was not that the defendants owned a structure with a concrete wall, but that they placed the tennis court too near that wall, as in this case the alleged negligence is not that Defendants’ apartment contained these stairs, but that they failed to install a handrail for them. As in Klose, the act giving rise to the cause of action occurred well outside the limit set by the statute of repose, and the cause of action is, therefore, barred.”
The plaintiff urges us to reject the trial court’s analogy to Klose for the first time on appeal, contending instead the analysis in Dunn v. U.S.D. 367, 30 Kan. App. 2d 215, 40 P.3d 315 (2002), is more appropriate. In Dunn, two schoolboys were injured when a glass plate in a school’s hallway door broke, cutting them both severely. They sued the school district, alleging various claims of negligence, failure to replace the plate glass with safety glass, and failure to warn about the plate glass. The school district raised the affirmative defense of the statute of repose, arguing that the students’ claims were barred because more than 10 years had passed between the door’s installation in the late 1960’s and the 1995 injuries.
Actually Dunn offers the plaintiff scant help. The Dunn panel decided the controversy based upon the school district’s “breaches of duties other than failure to replace the plate glass with safety glass” and assumed without deciding that the school district could not “be held hable for any design or planning defect that led to the installation of the plate glass.” Dunn, 30 Kan. App. 2d at 217-18. That language does not support the plaintiff.
Furthermore, other panels of this court have followed the Klose court’s analysis and defined the defendant’s wrongful act as the date of negligent installation, construction, or demolition. See Kerns v. G.A.C., Inc., 255 Kan. 264, 875 P.2d 949 (1994) (holding that plaintiff s negligence claims were barred by statute of repose because more than 10 years lapsed between installation of fence in 1968-1969 and plaintiff's 1990 injury); Dobson v. Larkin Homes, Inc., 251 Kan. 50, 832 P.2d 345 (1992) (finding that plaintiffs claims against builder for negligence and insurer for wrongful refusal to pay on loss claim were barred by statute of repose because more than 10 years elapsed between construction of home in 1972 and plaintiff s claim in 1990); Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 690-700, 820 P.2d 578 (1992) (holding that Admire Bank’s property damage claim against City of Emporia was barred by statute of repose because City’s wrongful act of negligent demolition of party wall in 1970 occurred more than 10 years before bank’s purchase of property in 1990); Four Seasons, 37 Kan. App. 2d at 250-51 (holding that defendant’s wrongful act under K.S.A. 60-513[b] occurred during the defendant’s 1993 installation of new doors on plaintiff s apartment building; therefore, plaintiff was deprived of remedy by statute of repose before it discovered that doors did not adhere to building code requirements in 2005); Dobson v. Larkin Homes, Inc., 251 Kan. 50, 832 P.2d 345 (1992) (finding that plaintiff s claims against builder for negligence and insurer for wrongful refusal to pay on loss claim were barred by statute of repose because more tiran 10 years elapsed between construction of home in 1972 and plaintiff s claim in 1990).
Here, it is clear that the plaintiff s claims are barred by the statute of repose in K.S.A. 60-513(b). The record does not provide evidence of when apartment 2 was constructed, but the defendants purchased the apartment in 1990. From 1990 to the date of plaintiff s injury in 2004, apartment 2 remained without a handrail. We conclude 14 years passed between the defendant’s wrongful act of failing to install the required handrail and plaintiff s 2004 injury. We hold his claim is barred by law.
The plaintiff urges this court to find defense counsel in violation of Kansas Rule of Professional Conduct 3.3(a)(2) (2008 Kan. Ct. R. Annot. 531) for failing to cite Dunn at the trial court level, especially in light of the fact that counsel’s firm represented the school district in Dunn. While it is true that Rule 3.3(a)(2) states an advocate has a duty to disclose directly adverse authority from the controlling jurisdiction, Dunn, as we have previously pointed out, does not control this issue. We make no finding of any professional misconduct by defense counsel not mentioning the case.
We examine the negligence per se claims.
We must point out that whether a private cause of action for negligence per se exists under a statute is a question of law over which this court exercises unlimited review. Nora H. Ringler Rev ocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App. 2d 122, 126, 958 P.2d 1162 (1998). We will therefore address the issue.
Under Kansas law, a plaintiff has a claim for negligence per se if he or she can demonstrate the following: “ ‘(1) a violation of a statute, ordinance, or regulation, arid (2) the violation must be the cause of the damages resulting therefrom.’ ” Pullen v. West, 278 Kan. 183, 194, 92 P.3d 584 (2004). In addition, a plaintiff must also prove “ ‘that an individual right of action for injury arising out of the violation was intended by the legislature. [Citation omitted.]’ ” 278 Kan. at 194. The determination of whether a private cause of action exists under a statute is a question of law analyzed under a two-part test. First, “the party must show that the statute was designed to protect a specific group of people rather than to protect the general public. Second, tire court must review legislative history in order to determine whether a private right of action was intended. [Citations omitted.]” 278 Kan. at 194; Ringler, 25 Kan. App. 2d at 126. If the plaintiff can prove that a statute, ordinance, or regulation was enacted to protect a specific group of people, he or she must prove that he or she is a member of the protected class. See Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 127, 804 P.2d 978 (1991).
Article VIII, section 8-176 of the Manhattan Code adopts the International Property Maintenance Code “for the purpose of establishing standards for the protection of the public health, safety and welfare, in all existing structures within the corporate city limits of the City of Manhattan.” Most relevant to plaintiff s allegations of negligence is section 306.1, which provides: “Every exterior and interior flight of stairs having more than four risers shall have a handrail on one side of the stair.”
The intent of both codes is to ensure public health, safety, and welfare insofar as they are affected by die continued occupancy and maintenance of structures and premises. Under section 1-7 of the Manhattan Code, whenever the code or city ordinances prescribe that “an act is prohibited or is made or declared to be unlawful or an offense or a misdemeanor . . . the violation of any such provision of this Code or any such ordinance shall be punished by a fine of not exceeding $500.00 or by imprisonment for a period not exceeding six months.” Section 106.4 of the International Code contains similar language regarding punishment of violations, providing that “[a]ny person who shall violate a provision of this code . . . shall be prosecuted within the limits provided by state or local laws.” In addition to criminal penalties, section 106.5 of the International Code permits a legal officer to institute an “appropriate action to restrain, correct or abate a violation, or to prevent illegal occupancy of a building, structure or premises, or to stop an illegal act, conduct, business or utilization of the building, structure, or premises.” Importantly, both the International Code and the Manhattan Code are silent about any civil remedies.
With this analysis of the relevant provisions of both codes, it becomes clear that plaintiff has no private negligence per se action. The purpose of their enactment- is to protect the public health, safety, and welfare of the residents of Manhattan. This leads to the conclusion that the ordinances are designed to protect the public and do not create a specific duty to any group of individuals. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991); Schlobohm, 248 Kan. at 126-27; Estate of Pemberton v. John’s Sports Center, Inc., 35 Kan. App. 2d 809, 818, 135 P.3d 174 (2006). We hold there was no negligence per se claim created by the city code or the International Code.
The Kansas Residential Landlord and Tenant Act presents a problem for summary judgment.
In his response to the defendant’s motion for summary judgment and in the pretrial order, the plaintiff maintained that the Kansas Residential Landlord and Tenant Act, by requiring the defendants to comply with all building codes, obliged the defendants to install a handrail. The plaintiff suggests that since the building code was adopted by Manhattan in 1998, the defendants’ failure to comply with the code must have occurred sometime after that but in any event well within 10 years of the accident in 2004. Therefore, the plaintiff reasons, the statute of repose has no effect on this cause of action.
In response, the defendants contend the plaintiff s petition made no allegations about the Kansas Residential Landlord and Tenant Act and the matter is not properly before us. Second, in their view, the Act provides no relief for nontenants or uninvited strangers and since the plaintiff, clearly not a tenant, was merely an uninvited person at a party, the Kansas Residential Landlord and Tenant Act offers him no cause of action against the defendants. Because the plaintiff brought up this issue in response to the summary judgment motion and in the pretrial order, we hold that the matter is properly before us and consider the argument.
In order to sort this out, it is beneficial to review the law that gave rise to the plaintiff s argument. In 1975, our Supreme Court in Borders v. Roseberry, 216 Kan 486, 488, 532 P.2d 1366 (1975), instructed on the law of premises liability. Basically, the tenant was responsible to keep the leasehold reasonably safe:
“Traditionally the law in this country has placed upon the lessee as the person in possession of the land the burden of maintaining the premises in a reasonably safe condition to protect persons who come upon the land. It is the tenant as possessor who, at least initially, has the burden of maintaining the premises in good repair. [Citations omitted.] . . . When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the responsibilities of one in possession, both to those who enter onto the land and to those outside of its boundaries.” 216 Kan. at 488.
With that background, the Borders court acknowledged that rules change with the times and recognized six exceptions to the common-law rule of tenant liability and landlord nonliability arising from a defective condition existing at the time of the lease. They are:
1. Undisclosed dangerous conditions known to lessor and unknown to lessee.
2. Conditions dangerous to persons outside of the premises.
3. Premises leased for admission of the public.
4. Parts of land retained in lessor’s control which lessee is entitled to use.
5. Where lessor contracts to repair.
6. Negligence by lessor in making repairs. 216 Kan. at 488-93.
Exception five recognized by the Borders court, where the landlord agrees in the lease to make repairs, served as the basis for a panel of our court to conclude the three duties of a landlord, found in the Kansas Residential Landlord Tenant Act, must be incorporated into residential leases in Kansas. See Jackson v. Wood, 11 Kan. App. 2d 478, 483, 726 P.2d 796 (1986). In Jackson, the district court granted summary judgment to a landlord after finding he had no duty to a social guest of one of his tenants. The guest had died from inhalation of carbon monoxide emitted by a poorly maintained heater in one of the landlord’s rental units. The heirs appealed the district court’s grant of summary judgment, and this court reversed and remanded. 11 Kan. App. 2d 478.
The Jackson court ruled the Kansas Residential Landlord and Tenant Act in K.S.A. 58-2553(a) (1), (2), and (3) imposes three duties upon all residential landlords in Kansas. Those duties are:
1. Comply with the requirements of applicable building and housing codes materially affecting health and safety.
2. Exercise reasonable care in maintenance of the common areas.
3. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air-conditioning appliances including elevators supplied or required to be supplied by such landlord. See 11 Kan. App. 2d at 481.
These three duties have been described as “duties which cannot be delegated to a tenant” in State v. Mwaura, 4 Kan. App. 2d 738, 741, 610 P.2d 662 (1980).
In the Jackson panel’s view, because the landlord had the duty under K.S.A. 58-2553(a)(3) to maintain the heater in his apartment in good and safe working order, it was irrelevant that the woman who died was a guest, but the panel by remaining silent did not extend the duty to trespassers. The court was very specific about the holding when it reversed the summary judgment and remanded the case:
“Accordingly we hold that if the landlord knew or reasonably should have known of a defective condition in the heating stove or ventilation, then the landlord owed a duty of reasonable care to repair so as to maintain the heating stove and ventilation in good and safe working order and condition. We further hold that duty is owed not only to the tenant but to others on the premises with the consent of the tenant.” (Emphasis added.) Jackson, 11 Kan. App. 2d at 483-84.
In an action for nonpayment of rent and possession of the premises, not a tort claim, a panel of this court dealt with building code violations in Joe v. Spangler, 6 Kan. App. 2d 630, 631 P.2d 1243 (1981). In Spangler, a housing inspector sent notice to the landlords of violations of the Kansas City, Kansas, Housing Code for exposed wiring, improper ventilation of the bathroom, and uncovered electrical outlets. The tenants, who were the defendants in the case, made a counterclaim for damages arising from the landlords’ breach of duties arising from K.S.A. 58-2553(a)(1), (2), and (3). The trial court found that the landlords had violated the Kansas City code but not the Kansas Residential Landlord and Tenant Act. This court reversed saying:
“The evidence showed and the trial court found that there were ‘defects in and on the premises that constituted violations of the building and housing code of the City of Kansas City, Kansas.’ This finding would compel a conclusion that the landlord breached his duty under the statute unless the violated provisions did not materially affect health and safety.
“. . . Therefore, under these circumstances, we must conclude as a matter of law that the conditions found to exist on plaintiff s property materially affected the health and safety of the tenants and violated the landlord’s duty under K.S.A. 58-2553(a)(1).” Spangler, 6 Kan. App. 2d at 632.
When Jackson and Spangler are read together, it is clear that both courts recognized that it was important to determine whether a landlord knew or should have known of a violation of the applicable building code. In Jackson, the panel remanded the case to the district court to make such a determination. In Spangler, the trial court had already found as true the facts that the building inspector had sent notice to the landlord who therefore had knowledge of the violation of the building codes. We think this comports with traditional views of fairness in cases arising from premises liability.
These principles, when applied to this case, lead us to conclude that we do not have enough information to affirm summary judgment on this point. Although not necessarily controlling here, the facts reveal that the Dunhams, in their lease with the three young men who rented apartment 2, agreed to make all necessary repairs, alterations, and improvements to the dwelling unit with reasonable promptness at the landlord’s expense. The ruling in Jackson impels us to incorporate into this lease the three duties of a landlord found in K.S.A. 58-2553(a)(1), (2), and (3) and apply those duties to the Dunhams. In other words those three duties were owed by the Dunhams to the tenants and to all on the premises who were there with the consent of the tenants.
We hold that K.S.A. 58-2553(a)(1) requires residential landlords to comply with the requirements of applicable building and housing codes materially affecting health and safety. This means the statute of repose does not negate any claim arising from a violation of one of the duties imposed by the Kansas Residential Landlord Tenant Act in this case since only 6 or fewer years had passed from the adoption of the building code and O’Neill’s fall.
Therefore, we must remand this case for the district court to find the facts. First, the court must determine if the landlords, the Dunhams, knew or had reason to know of a violation of the applicable building and housing codes that materially affected health and safety. Second, the court must determine whether the lack of a handrail materially affected the safety of all in the apartment who were there with the consent of the tenants. And, finally, the court must determine if O’Neill was present on the premises with the consent of the tenants of apartment 2. If the answer is yes to all three questions, then the Dunhams owed O’Neill a duty of care and are liable. If the answer to any is no, then there can be no liability under this theory.
Since we are remanding this case we will not review the plaintiff s claim of error that the district court failed to grant his motion for reconsideration.
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The opinion of the court was delivered by
Valentine, J.:
The defendants in error, plaintiffs below, move to dismiss the petition in error and case from this court, for the reason that the case was not brought to this court within one year after the judgment of the court below was rendered. It appears from the record that the judgment of the court was rendered on April 28, 1885. When the motion for a new trial was overruled, whether before or after the rendering of the judgment, or at the same time, is not shown. The petition in error, the case, and a precipe for a summons, were all filed in this court on April 22,1886. The summons was issued on April 28, 1886. On May 1,1886, a paper, signed by the attorneys of the defendants in error, plaintiffs below, waiving the issuance of a summons and accepting the service thereof, was filed in this court. When this paper was signed, is not shown. On May 6, 1886, the summons was served upon the defendants in error, plaintiffs below; and the motion to dismiss the case from this court was not filed until October 20, 1887.
We know of no good reason why this proceeding in error should not be deemed to have been commenced in this court on April 22, 1886, when the plaintiff in error filed in this court its case, its petition in error, and its precipe for summons. But even if there should be some reason for considering this proceeding in error as not having been commenced at that time, then we would think that undoubtedly it should be considered as having: been commenced on April 28, 1886, when the summons was issued. (Thompson v. Wheeler & Wilson Mfg. Co., 29 Kas. 476.) And if the proceeding in error was commenced at that time, then it was commenced within proper time, and within one year after the judgment of the court below was rendered. Under § 722 of the civil code, time is to be computed by excluding the first day and including the last, except when the last day falls on Sunday, and then Sunday is also to be excluded. Now if we exclude the first day in the present case, to wit, April 28, 1885, which was the day on which the judgment was rendered, then the year within which the case is to be brought to this court would commence on April 29, 1885, and it would not end until the last moment of April 28, 1886; hence, under the civil code, it is clear that this case was brought to this court within proper time.
From the record in this case the following facts appear: C. C. Labore is the father of Lewis W. Labore and Arthur C. Labore. Each owns a quarter-section of land in Smith county, Kansas. These three tracts of land adjoin each other, are used together, and in fact constitute one body or tract of land. It is principally grazing land, and is used by the three Labores jointly for the purpose of raising and pasturing cattle thereon, which cattle they own in common as partners. The water for the cattle is principally, if not entirely, on the land of C. C. Labore. The partnership between the Labores was created by a written contract, in January, 1883, and was to continue for the period of twelve years. A public road was established across this land in July, 1884, which took a portion of each quarter-section, and separated a large proportion of the grazing land from the water. This separation of the grazing land from the water injured the value of the land as a whole, and if the use of the water may be considered in connection with the use of each quarter-section, then such separation also injured the value of each quarter-section. If, however, the use of the two' quarter-sections belonging to Lewis W. Labore and Arthur C. Labore, and on which the water is not situated, are not to be considered in connection with the use of the water which is situated on the land of C. C. Labore, then the separation of the grazing land from the water cannot affect the value of such two quarter-sections. In the court below it was held in substance, if not in terms, that the injury to each quarter-section by reason of the separation of the water from the grazing land was $136.66§; and that the injury to the whole of the land, in the aggregate, was $410; and for this amount, together with the other damages to the land, the court below awarded damages in favor of the Labores and against the county; and whether this award for the $410 damages is correct, or not, is the only material or substantial question involved in this case.
We think the decision of the court below is correct. Where land is taken for public purposes, the owner is entitled to full compensation for all the resulting loss sustained by him, whatever the elements of that loss may be; and he is entitled to compensation not only for the loss of the land actually taken, but also for the loss of the value, or the depreciation in the value of that not taken. It is really the loss of the value of his property for which he receives compensation — the difference in value with the road and without it, where he suffers loss; and there may be innumerable elements constituting or contributing to that value. Land is never valued solely because of its inherent qualities, or merely for what is in it, or upon it.. Its value depends as well upon many extrinsic circumstances. Vacant and unimproved land near some one of our large cities, which once might have been purchased for less than $5 per acre, might now, in many cases, be sold for more than $1,000 per acre. In such cases it is not anything in the land itself, or upon it, which has brought about this great increase in the value, but the increase has been brought about solely by extraneous circumstances; and yet if the land were taken from the owner for public purposes, he would be entitled to recover from the public the full amount of its enhanced value. Or, if a part only were taken, and a part left, then he would be entitled to recover not only for the part taken but also for the entire depreciation of this enhanced value of the part left. We suppose it will be admitted that any one of the Labores would have a right to an award of damages for all the loss which he might sustain by reason of having his own grazing land separated from his own stock water. But that is not precisely this case. In this case the grazing lands of Lewis W. Labore and Arthur C. Labore were separated from the stock water on the land of C. C. Labore. But still the right of Lewis W. Labore and Arthur C. Labore, under the written contract with C. C. Labore to use the stock water on C. C. Lahore’s land, made their lands more valuable than they otherwise would be; while the right of C. C. Labore, under the contract to use the land of the other two Labores for pasturing his cattle thereon, made his land more valuable than it otherwise would be. This right made his stock water immensely more valuable to him, because he could use so much more of it at a profit. Now may the Labores be deprived of all these benefits and profits, and the enhanced value of their lands resulting therefrom, without their having any remedy? May not each be awarded damages for the loss of value as to his own land ? May not each be awarded damages for the difference in value of his own land with the road and without the road, where he suffers loss, although a portion of this enhanced value may be the result of his having the right to use the lands of others ? It is claimed, however, by the plaintiff in error, defendant below, that this enhanced value is based solely upon a lease and the fact of tenancy, and that tenants or lessees have no right to have damages awarded to them in condemnation proceedings. Now it is not necessary in this case, in order to sustain the judgment of the court below, that any one of the Labores should be awarded anything as a tenant or lessee, or anything for any injury done to the land of either of the others: Each originally claimed, and we may consider each as still claiming, damages only for injuries done to his own land. But may not tenants or lessees have an award of damages for losses sustained by them by reason of condemnation proceedings ? (Turnpike Road v. Brosi, 22 Pa. St. 29; Brown v. Powell, 25 id. 229 ; N. P. Rld. Co. v. Davis, 26 id. 238; Dyer v. Wightman, 66 id. 425; B. & O. Rld. Co. v. Thompson, 10 Md. 76; Gerrard v. O. N. & B. Rld. Co., 14 Neb. 270; same case, 20 Am. and Eng. Rld. Cases, 423; Renwick v. D. & N. W. Rld. Co., 49 Iowa, 664; Kimball v. C. Rld. Co., 7 Foster, 448; Coutant v. Catlin, 2 Sandf. Ch.485; Astor v. Hoyt, 5 Wend. 605; Turner v. Williams, 10 id. 140; Gillespie v. Thomas, 15 id. 464; In re Streets, 19 id. 678; Wiggin v. Mayor of N. Y., 9 Paige’s Ch. 16; Parks v. Boston, 32 Mass. 198; State Lunatic Hosp. v. County of Worcester, 42 id. 437; Ashby v. Eastern Rid. Co., 46 id. 368; Edmands v. Boston, 108 id. 535; Cobb v. Boston, 109 id. 438.) The word “ owner,” as used in the statutes relating to condemnation proceedings, may perhaps be construed to apply to every person having any interest in the property to be taken. Such seems to be the purport of the above-cited cases.
We would think that justice had been done in this case, and that no material error has been committed; and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This action was tried in the superior court of Shawnee county, before the judge and a jury. The court sustained a demurrer to the evidence of the defendant, and directed the jury to find a verdict for the plaintiffs. The defendant below, plaintiff in error, filed no motion for a new trial. Therefore the judgment must be affirmed. (Pratt v. Kelley, 24 Kas. 111; Gruble v. Ryus, 23 id. 195, and cases therein cited.) | [
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Abbott, C.J.:
The defendants, Evelyn F. Fomby and Calvin Fomby, appeal from a judgment against them for actual and punitive damages. The action was instituted by the State of Kansas ex rel. the Secretary of Social and Rehabilitation Services (SRS) for fraud and recovery of overpayment of public assistance, of food stamps, and of benefits under the Aid to Families with Dependent Children Program (AFDC).
SRS asserted two causes of action against Evelyn Fomby: recovery of overpayments of public assistance as authorized by K.S.A. 39-719b and fraud. The remaining cause of action was asserted against Calvin Fomby for aiding and abetting in the commission of fraud.
The trial court found that Evelyn had failed to report a change of circumstances and that there was a lack of deprivation of parental support, making Evelyn ineligible for assistance. In addition to actual damages for recovery of overpayment for the period October 1, 1981, through February 28, 1983, totaling $7,230, punitive damages were assessed against each defendant in the amount of $2,500.
Calvin’s liability in this case is premised solely upon a fraud theory. He was not the recipient of, or applicant for, public assistance. The statutory action authorized by K.S.A. 39-719b is irrelevant insofar as Calvin is concerned. Calvin contends that an aiding and abetting offense is criminal in nature and affords no basis for civil fraud liability. We agree. The aiding and abetting language on which the trial court relied was apparently drawn from K.S.A. 39-720, the provision expressly recognizing criminal liability for welfare fraud. See State v. Ambler, 220 Kan. 560, 552 P.2d 896 (1976).
As we view this case, even assuming that SRS is authorized to bring a common-law action for fraud, the evidence is wholly lacking to support the trial court’s findings and conclusions as they relate to Calvin. Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury. Scott v. Strickland, 10 Kan. App. 2d 14, 691 P.2d 45 (1984). Fraud may encompass anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty and resulting in damage to another. Goben v. Barry, 234 Kan. 721, 676 P.2d 90 (1984). The alleged fraud in this case lies in the failure to report a change in circumstances, namely the possession of resources which rendered the recipient ineligible for assistance (checking account, Calvin’s unemployment compensation checks). At the outset, Calvin Fomby was not the recipient of or applicant for public assistance. Moreover, there is no evidence to indicate that Calvin had any knowledge of the content of the assistance forms filled out by Evelyn. He did not, therefore, make an untrue statement of fact with knowledge thereof. The trial court’s finding that Calvin was aware that Evelyn was a recipient of public assistance does not prove fraud. And when fraud must be proven by clear and convincing evidence, this case wholly fails to satisfy that standard as to Calvin. Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980).
The judgment against Calvin is reversed and remanded with directions to vacate the judgment as to Calvin.
The trial court assessed $2,500 in punitive damages, finding Evelyn committed fraud in receiving public assistance overpayments. Evelyn contends that the SRS has no statutory authority entitling the State to recover punitive damages.
An argument can be made that K.S.A. 39-720 gives authority for an action for punitive damages. Evelyn argues that the SRS, as an administrative agency, is a creature of statute which has only those powers which are conferred by statute, either expressly or by implication. Here, there is no statutory authority for the SRS to maintain a common-law fraud action; therefore, an award of punitive damages was erroneous. Evelyn relies on K.S.A. 39-719b, which limits the SRS’s recovery to recoupment of the overpayment, and K.S.A. 39-720, which is confined to criminal liability. Finally, Evelyn cites Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982), in support of her argument. The holding of Woods is that the Kansas Commission on Civil Rights, an administrative agency, has no statutory authority to order awards for pain, suffering, and humiliation or for punitive damages.
The SRS counters with several arguments. First, nowhere in the statutory provisions is an award of punitive damages specifically prohibited. Moreover, because the statute (K.S.A. 39-719b) does not define the type of action to be used to recoup over- payments, by implication, a common-law fraud action may be maintained. In addition to case law from foreign jurisdictions, the SRS claims support from a decision rendered by this court, U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981), in which it was held that a political corporation can avail itself of any legal remedy or any form of action that would be available to a private suitor under similar circumstances. Finally, the SRS argues that the trial court was merely giving effect to the legislative intent of the statute by awarding punitive damages for fraudulent activity by a participant in the public assistance programs. Kansas statutes do not expressly provide for a common-law fraud action for punitive damages by the SRS. Hence, if the statutes authorize a fraud action, it must be by implication.
The legal principle is well established that administrative agencies are creatures of statute and their power is dependent upon authorizing statutes; therefore, any exercise of authority claimed by the agency must come from within the statutes either expressly or by clear implication. There is no general or common-law power that can be exercised by an administrative agency. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983); Woods v. Midwest Conveyor Co., 231 Kan. at 770; 1 Am. Jur. 2d, Administrative Law § 70, p. 866.
The statutes which address the public assistance system, including the AFDC (Aid to Families with Dependent Children) program, are found at K.S.A. 39-701 et seq. The powers of the SRS, when overpayments because of a recipient’s fraudulent act or ineligibility are involved, are limited to two statutory provisions: K.S.A. 39-719b and K.S.A. 39-720. Those provisions provide as follows:
“39-719b. Duty of recipient to report changes which affect eligibility; actions by secretary; recovery of assistance obtained by ineligible recipient. If at any time during the continuance of assistance to any person, the recipient thereof becomes possessed of any property or income in excess of the amount ascertained at the time of granting assistance, or if any of the recipient’s circumstances which affect eligibility to receive assistance change from the time of determination of eligibility, it shall be the duty of the recipient to notify the secretary immediately of the receipt or possession of such property, income, or of such change in circumstances affecting eligibility and said secretary may, after investigation, cancel or modify the assistance payment in accordance with the circumstances.
“Any assistance paid shall be recoverable by the secretary as a debt due to the state. If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient, the total amount of the assistance may be recovered by the secretary as a fourth class claim from the estate of the recipient or in an action brought against the recipient while living.” (Emphasis supplied.)
“39-720. Penalty relating to fraudulent acts; civil actions, evidence. Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K.S.A. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act. In any civil action for the recovery of assistance on the grounds the assistance was fraudulently obtained, proof that the recipient of the assistance possesses or did possess resources which does or would have rendered him ineligible to receive such assistance shall be deemed prima facie evidence that such assistance was fraudulently obtained.” (Emphasis supplied.)
K.S.A. 39-719b authorizes a recoupment action by the SRS such as was initiated in the instant case. This would appear to be solely a statutory action. The language of the statute indicates that the action requires a showing that the recipient was ineligible for assistance in order to recover the assistance paid. The statute further empowers the SRS to cancel or modify assistance payments when a change in eligibility is discovered or reported. This statute does not, however, authorize punitive damages. The remedy is confined to recouping the amount of the assistance.
An argument can be made that K.S.A. 39-720 gives authority for an action for punitive damages. The legislature recognized the option of prosecuting recipients for theft where they fraudulently obtained public assistance overpayments. However, as the statute’s heading indicates, it also deals with civil actions. The statute’s language provides; “In any civil action for the recovery of assistance on the grounds the assistance was fraudulently obtained . . . .” Although the statute continues on to create an evidentiary presumption, at least implicitly, various civil actions may be maintained when overpayments are fraudulently obtained. If the only civil action available to the SRS was the recoupment provision (K.S.A. 39-719b), the use of “any civil action” is overly broad. The statute could simply have stated; “In any action brought pursuant to K.S.A. 39-719b.” It could be argued it is inherent by the language employed and the separate statutes that K.S.A. 39-719b is not limited to overpayment situations where fraud is involved and that K.S.A. 39-720 is confined to the SRS’s remedies when fraudulent overpayments are involved, be they criminal or civil in nature. In nonfraud situations, it would appear the SRS is limited to recoupment pursuant to K.S.A. 39-719b. There it can be argued that when overpayments are fraudulently obtained any civil action is authorized that may be appropriate to the circumstances.
The Kansas case law does not aid the conclusion that a common-law fraud action, by implication, may be brought by the SRS. The decisions cited by SRS are all distinguishable. As pointed out by defendants, U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d at 357, is to no avail to the SRS’s position. The rule in Celotex, that a political corporation can avail itself of any legal remedy or any form of action that would be open to a private suitor, is inapplicable here. The SRS is not a political corporation but an administrative agency. And the decision upon which the defendants rely, Woods v. Midwest Conveyor Co., 231 Kan. 763, can also be distinguished. In Woods, the administrative agency (KCCR) made an award of compensatory damages for pain and suffering for discrimination. The statutory authority pertaining to the KCCR does not include an award of compensatory damages among its remedial orders. K.S.A. 44-1001 et seq. The KCCR’s administrative regulations, which purportedly authorized compensatory and punitive damage awards, were held by the Kansas Supreme Court to be void, as beyond the authority conferred upon the KCCR by statute. Moreover, there are numerous decisions from other jurisdictions which do not permit recovery of punitive damages in antidiscrimination suits.
The remaining two Kansas cases can also be distinguished on their facts. In re Estate of Butler, 159 Kan. 144, 152 P.2d 815 (1944), was an action to establish a claim against the estate of a welfare recipient to recover assistance paid out. The county welfare board tried to bring the civil proceeding under the earlier version of K.S.A. 39-720. The Kansas court held that G.S. 1935, 39-720 (1943 Supp.) afforded no ground for relief in a civil proceeding since it was purely a penal statute. The statute, as it appeared at that time, did not contain the language found in the present version referring to “any civil action” when fraud is involved. At the time Butler was decided, K.S.A. 39-719b did not even exist. Moreover, the question of punitive damages was not even addressed. The county board was only seeking to recover the overpayments.
Erwin v. Leonard, 166 Kan. 630, 203 P.2d 207 (1949), also decided prior to the enactment of the recoupment statute, K.S.A. 39-719b, recognized the power of the State Board of Social Welfare to recover payments on account of fraudulent claims. The Kansas Supreme Court found such power inherent in the State Board’s duties to carry out and promote social welfare in the state. The court noted: “We see no reason for making a narrow construction of the above statutes in order to defeat the real purpose of the legislation, which was in fact to enable the state board to administer the social welfare program with a minimum of loss on account of fraudulent claims . . . .” 166 Kan. at 635. Although it is not precisely clear what type of action would be permitted, the case clearly allows a civil proceeding (other than a statutory action) to recover assistance fraudulently obtained. Unfortunately, the case did not address the availability of punitive damages because no attempt to recover them was pursued by the State Board of Social Welfare. See also In re Estate of Ward, 176 Kan. 614, 272 P.2d 737 (1954); Redding v. Burlington Cty. Welf Bd., 65 N.J. 439, 323 A.2d 477 (1974) (the county welfare board has inherent power to bring civil action to recover overpayments to welfare recipients in administering the AFDC program; punitive damages was not an issue in this case). Finally, the case which appears to be based on the common-law theory of fraud sought only a recovery of the overpayments. No issue with respect to punitive damages was raised. See Utah State Dept. of Soc. Serv. v. Pierren, 619 P.2d 1380 (Utah 1980).
In summary, we conclude that in the absence of specific statutory authority the SRS cannot maintain an action for punitive damages.
The trial court found that the defendant Evelyn Fomby was a recipient of public assistance from October 1, 1981, through February 28, 1983. The court further found that during this period there was a change in circumstances which would affect Evelyn’s eligibility for assistance and that her children were not deprived of parental support during this period by reason of the defendant father’s continued absence from the home. Evelyn was ordered to repay the overpayments of public assistance received during the entire period.
Evelyn’s contention on appeal is that these findings are not supported by the evidence for a portion of the period in question in which she received assistance, June 1, 1982, through October 31, 1982. Evelyn argues that during this limited five months in 1982 she was entitled to AFDC assistance because the children were deprived of support, since no unemployment compensation was received from the children’s father. Furthermore, she argues that the children were deprived of parental support by reason of their father’s absence from the home during this period. The gist of her argument is that the SRS must show her ineligibility for the entire period in order to recover all assistance she received during this period.
The relevant provisions, when applied to the facts of this case, will determine whether we have “dependent children,” as that term is defined, making Evelyn eligible for AFDC assistance. The Kansas provisions are substantially the same as their federal counterparts. K.S.A. 1985 Supp. 39-702(g) [42 U.S.C. § 606(a) (1982)] defines dependent children as follows:
“(g) ‘Dependent children’ means needy children under the age of 18, or who are under the age of 19 and are full-time students in secondary schools or the equivalent educational program or are full-time students in a program of vocational or technical training if they may be reasonably expected to complete the training before attaining age 19, who have been deprived of parental or guardian support or care by reasons of the death, continued absence from the home, or physical or mental incapacity of a parent or guardian . . . .” (Emphasis supplied.)
Both parties agree that the “deprivation of parental support by reason of continued absence of a parent” is the eligibility question in issue here. It is the application of this language upon which the parties disagree. The regulations extend further and determine the requisites for what constitutes a “continued absence.” K.A.R. 30-4-73(b) [45 C.F.R. § 233.90 (c)(1)(iii) (1985)] provides:
“(b) Continued absence from the home. Continued absence from the home of either or both natural or adoptive parents shall be established as a basis for ADC when the parent is physically absent from the home and the absence interrupts or terminates the parent’s functioning as a provider of maintenance, physical care, or guidance for the child. Absence of a parent based solely on active military service shall not constitute deprivation under this provision.” (Emphasis supplied.)
As the regulation clearly defines a “continued absence,” a mere physical absence is insufficient to establish a deprivation of parental care and thereby create eligibility for AFDC. The absence must, in addition, interrupt or terminate the parent’s ability to give physical care, guidance, or maintenance.
The trial court determined that Calvin Fomby was not an absent parent and, therefore, Evelyn was ineligible for AFDC.
While the evidence is conflicting, there is substantial competent evidence in the record to support the trial court’s finding that Calvin Fomby was not an absent parent and further that Evelyn had concealed not only a checking account, but two savings accounts from SRS. Clearly, Evelyn had a statutory duty to report these accounts (K.S.A. 39-719b), and the record amply supports that she was so advised and failed to reveal this information in monthly reports that were filed with SRS. If the unreported change makes a recipient ineligible for assistance, the benefits may be cancelled and recovered from the recipient The record in this case is borderline as to the five-month period from June to October of 1982. We are satisfied, however, that when the record is considered as a whole, the trial judge did not commit reversible error in allowing recovery for that period of time.
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Medley, J.:
This is a legal malpractice case. Plaintiffs sought the recovery of damages for both a breach of contract and negligence. They appeal the amount of the damages awarded on the negligence claim and the denial of any recovery for breach of contract.
On February 13, 1981, Joyce Johnson retained the defendant, Lyle Baker, a practicing attorney in Wichita, to represent her in a divorce from her husband, Richard Lee Johnson. Joyce Johnson’s primary concern was that defendant secure an agreement from her husband to pay the expenses and cost of college for the parties’ daughter, plaintiff Kelly Ann Johnson. Defendant negotiated a property settlement agreement between the Johnsons and incorporated it into the decree of divorce and the journal entry of judgment. Defendant made no attempt, nor did he advise Joyce Johnson to attempt, to secure the signature of Richard Johnson on the journal entry. Baker also did not attempt to reduce the parties’ agreement to writing in any instrument other than the journal entry of judgment. He stated that he did not think it was necessary for the parties to sign the journal entry and decree of divorce, although he admitted he was familiar with the provisions of K.S.A. 1980 Supp. 60-1610a (repealed L. 1982, ch. 152, § 30) with respect to agreements for support of children who have reached the age of majority.
Thereafter, defendant Baker learned that Richard Johnson refused to pay college expenses for his daughter. Baker informed Mrs. Johnson that she should retain another lawyer to represent her in enforcing the provisions of the journal entry because he would undoubtedly be needed as a witness on her behalf in any court hearing. Plaintiff Joyce Johnson hired attorney Keith Richey to represent her and Richey filed a motion to compel Mr. Johnson to perform the obligation stated in the journal entry. Judge Beasley of the Sedgwick County District Court denied the motion concluding that the court lacked jurisdiction to enforce the provision in question because there was no prior written agreement pursuant to K.S.A. 1980 Supp. 60-1610a. Mrs. Johnson did not appeal from this ruling although she was aware that she had the right to do so.
In February 1983, the plaintiffs filed this action against Baker for breach of contract and negligent failure to obtain an enforceable agreement against Richard Johnson for Kelly’s college expenses. The district court denied any relief on the breach of contract claim holding that the journal entry in the divorce was a prior written agreement under K.S.A. 1980 Supp. 60-1610a and was legally binding on Richard Johnson. Thus, the court concluded that defendant had performed the contractual duty which he owed plaintiff Joyce Johnson. However, the court held that defendant was liable for negligence because his failure-to obtain a separate signed agreement did not meet the standard of care normally exercised in the community and resulted in the unfavorable ruling by Judge Beasley.
The trial court assessed Joyce Johnson’s damages at $559.40 and fixed Kelly’s damages as equivalent to the cost of tuition ($5,380) plus room and board ($3,600) for the two years she has attended college, reduced by the $6,042 received in grants and scholarships, for a net recovery of $2,938. Plaintiffs appeal the amount of damages awarded and the denial of the contract claim.
Plaintiffs initially contend that the defendant should have been collaterally estopped from claiming performance of the contractual obligation to obtain an enforceable agreement with Richard Johnson because Judge Reasley had already ruled that the agreement was unenforceable. Plaintiffs argue that the trial court erred in permitting a collateral attack on the earlier judgment. However, collateral estoppel only bars relitigktion of an issue when the parties to the subsequent action are the same or in privity therein. Wells v. Davis, 226 Kan. 586, 589, 603 P.2d 180 (1979). Defendant was not a party to the prior case, nor was he in privity with either party in the proceeding brought to enforce the divorce decree. Collateral estoppel was not applicable.
K.S.A. 1980 Supp. 60-1610a states in part as follows:
“Any order requiring either parent ... to pay for the support of any child . . . shall terminate when such child attains the age of eighteen (18) years, unless by prior written agreement approved by the court such parent . . . specifically agreed to pay such support beyond the time such child attains the age of eighteen (18).”
The findings of fact entered by the trial court indicate that defendant negotiated with Richard Johnson concerning the controversial demand that he pay Kelly’s college expenses. Mr. Johnson reviewed a copy of the journal entry containing the proposed agreement at defendant’s office and, after minor modifications, agreed fully to its terms. This agreement, as manifested in the journal entry, was subsequently approved by the court granting the Johnson divorce. Although Richard Johnson never signed a written instrument reflecting the agreement, the evidence indicates, and the court held, that he agreed to the provision in question and that the journal entry was a written memorandum of that agreement. We agree with the district court’s holding that no greater documentation is required by K.S.A. 1980 Supp. 60-1610a. Therefore, since the journal entry of divorce constituted an enforceable agreement under the statute, the court’s conclusion that there was no breach of contract as a matter of law is correct.
Plaintiffs contend that the trial court erred in calculating the damages of Kelly Johnson because it failed to award damages equivalent to the cost of tuition, room and board for her remaining two years of education. Defendant contends that the evidence of future damage was too speculative to justify a greater award.
Damages cannot be awarded when they are too conjectural and speculative to form a sound basis for measurement. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 277, 662 P.2d 1214 (1983). It has also been held, however, that absolute certainty is not required in establishing damages. See, e.g., Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 650-51, 567 P.2d 856 (1977); Vickers v. Wichita State University, 213 Kan. 614, 618-21, 518 P.2d 512 (1974).
From the record we have before us, it is clear that Kelly Johnson had enrolled at Kansas Newman College for at least twelve hours a semester during her first two years and had made passing grades. All contingencies of the parties’ agreement were met during the first two years of Kelly’s college education and it does not appear to us to be too speculative or uncertain to conclude that those contingencies would have been met for the next two years. However, the record reveals that Kelly was enrolled in a two-year program at Kansas Newman and her testimony was unclear with respect to the amount of additional time she would need to complete her education. We conclude that the trial court’s refusal to assess damages for tuition, room and board for future educational endeavors by Kelly is supported by the evidence.
Plaintiffs also contend that the court should have included in its award the cost of Kelly’s books for a four-year education. However, the testimony offered to prove the amount of this expense was vague and indefinite. In addition, the exhibit which plaintiffs assert estimates the cost of books was not included in the record on appeal. The burden is upon the appellant to designate a record sufficient to present its points to the appellate court and to establish the claimed error. State ex rel. Ludwick v. Bryant, 237 Kan. 47, Syl. ¶ 6, 697 P.2d 858 (1985). When appellant fails to include an exhibit as part of the record, questions regarding information contained therein cannot be answered on appeal. Kohn v. Babb, 204 Kan. 245, 248, 461 P.2d 775 (1969).
Plaintiff Joyce Johnson claims that the court disregarded the evidence in failing to award her $500 for attorney fees paid to defendant to obtain her divorce. In reviewing the record and paragraph 13 of the divorce decree, it appears that Richard Johnson paid the $500 attorney fee. Since there was no contrary evidence, we conclude that the trial court did not err in refusing to award this item of damages to plaintiff.
Finally, plaintiffs contend that the trial court erred in reducing the award of damages to Kelly Johnson by the amount of aid she received in grants and scholarships. They contend that under the collateral source rule, this independent source of compensation could not diminish the amount of her recovery.
The collateral source rule was recently defined as follows:
“ ‘The collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor. The rule also precludes admission of evidence of benefits paid by a collateral source, except where such evidence clearly carries probative value on an issue not inherently related to measurement of damages. [Citation omitted.]’ ” Wentling v. Medical Anesthesia Services, 237 Kan. 503, 515, 701 P.2d 939 (1985).
Defendant contends that because the receipt of the grants and scholarships was wholly gratuitous, the collateral source rule should not apply. This appears to be a minority view. See, e.g., Fla. Physician's Ins. Reciprocal v. Stanley, 452 So. 2d 514, 515-16 (Fla. 1984), and cases cited therein. The majority rule is that gratuitous payments received by injured parties cannot be used to mitigate damages. See, e.g., Werner v. Lane, 393 A.2d 1329, 1335-36 (Me. 1978). In a diversity action brought in the federal district court of this state, Judge Frank Theis stated that “[t]he general rule in Kansas is to exclude evidence which would show damages claimed by a party were in fact paid by someone else, or that services had been provided gratuitously.” Doran v. Priddy, 534 F. Supp. 30, 35 (D. Kan. 1981). Subsequently, our own Supreme Court adopted much of the reasoning and holding of Doran when it held that a statute which sought to abrogate the common-law collateral source rule in medical malpractice actions, K.S.A. 60-471 (repealed, L. 1985, ch. 197 § 5), was unconstitutional. Wentling, 237 Kan. at 516-18. Although the application of the collateral source rule to gratuitous payments was not at issue in Wentling, the Court gave tacit approval to Doran s characterization of the Kansas common law as consistent with the majority rule.
In light of Wentling and Doran, we conclude that the collateral source doctrine applies to payments or services received gratuitously as well, as those received as the result of some obligation. Therefore, the trial court erred in deducting the value of the scholarships and grants received by Kelly Johnson from the damages awarded.
The judgment of the trial court is affirmed in all respects except insofar as the award of damages was reduced in contra diction of the collateral source rule. The judgment on the latter point is reversed and remanded to the trial court with directions to enter judgment in favor of the plaintiff Kelly Johnson in accordance with this opinion. | [
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Jackson, J.:
The defendant, Donald E. Hicks, was charged with two counts of forgery in violation of K.S.A. 1984 Supp. 21-3710. Count I charged the defendant with making the check in question and Count II charged the defendant with having issued or delivered the check in question. The charges were brought under subsections (a) and (b) of the statute, respectively. Defendant was convicted by a jury on both counts and appeals.
At the trial of the case, the victim, Edmond Brown, testified that he had known the defendant for approximately two years and that he had leased an apartment to him. On August 4, 1984, defendant came to Mr. Brown’s home to make a payment on the $259 debt he owed for damages to Mr. Brown’s property. The defendant gave Mr. Brown a check for $349 which he said he received from a law firm as partial settlement on a car accident he was in. The check was made out to the defendant on the account of Gott, Young and Bogle, P.A., a Wichita law firm, and was signed “Gott Young.” Mr. Brown did not know that “Gott Young” was not a real person connected with the firm. When Mr. Brown asked why all the names at the top of the check were not on the signature line, the defendant explained that they were not all on the case, only the man who worked for him. The defendant assured Mr. Brown that the check was good.
The defendant said he would pay $100 on his debt at that time and that he would get another settlement check on the 17th of August and pay the balance at that time. Mr’. Brown took the check and gave the defendant the $249 difference between the amount of the check and the $100 paid on account. Defendant endorsed the check on the back and Mr. Brown deposited it.
On August 7, 1984, Mr. Brown received another check on the account of Gott, Young and Bogle, P.A., from a Charles Smith. The man who represented himself as Charles T. Smith was also known as James Gardner. Mr. Brown had seen Smith/Gardner with the defendant several times. Smith/Gardner told Mr. Brown that he was in the accident with the defendant, that he got a settlement like the defendant did and that the defendant told him Mr. Brown would cash the check. Smith/Gardner explained that he did not cash the check at the store because he lost his driver’s license.
After Mr. Brown had cashed Smith/Gardner’s check, he noticed that the address Smith/Gardner had given was a vacant lot. Mr. Brown contacted the defendant to see if the check was good and was assured by defendant that he and Smith/Gardner had been in an accident together and that the check was good.
On August 14, 1984, the check given to Mr. Brown by defendant was returned by the bank. Mr. Brown called the law firm and spoke to Mr. Bogle, who came out to Mr. Brown’s house. The checks were among some 25 checks which had been stolen from Mr. Bogle’s law firm and were not signed by any authorized person. There was no such person as “Gott Young” associated with the firm. The firm had never represented either the defendant or Charles Smith. Mr. Bogle suggested that Mr. Brown go ahead and deposit the second check so it could be dishonored by the bank and prosecuted.
Detective Thomas Mayhill, a Wichita Police Department Documents Examiner, examined the check given Mr. Brown by the defendant and compared it to a known sample of defendant’s handwriting. Detective Mayhill concluded that the defendant signed his own name on the back of the check and that it was highly probable that most of the writing on the face of the check was done by J. D. Portley. Detective Mayhill was not sure who signed the maker’s signature “Gott Young” but it was not the defendant. On rebuttal, Mr. Brown testified that he knew J. D. Portley and that he had seen the defendant and J. D. Portley talking together sometime during the summer of 1984. Detective Roy Rains testified that, during his investigation of the case, he spoke to J. D. Portley, James Gardner/Charles Smith and Garland Martin and they indicated that they knew each other.
The defendant testified at trial that he got the check which he gave to Mr. Brown from a man he did not know who said his name was Garland Martin. On direct examination, he said he sold the man a transmission out of a Buick for $400 but on cross-examination, he said he sold the whole car. He testified Martin told him the $349 check on the law firm’s account was out of petty cash. The defendant did not question, that, in spite of the fact that defendant never thought Martin was an attorney and had no idea what kind of business Martin had, if any. Defendant testified he then took the check to Mr. Brown, told him the check represented proceeds from the sale of a car transmission, and only mentioned he had been in an accident because he was wearing a brace. Mr. Brown then cashed the check and gave him $249.
Defendant testified he did not know J. D. Portley, whom Detective Mayhill had identified as the person who wrote the date, payee and amount on the check in question. Mr. Brown testified on rebuttal that the defendant had been with J. D. Portley, and that he had seen the defendant with Smith/Gardner several times. Mr. Brown also testified that he knew Garland Martin and had seen defendant in the company of Garland Martin.
After the jury found defendant guilty on both counts of forgery, the court ordered a presentence investigation. On January 17, 1985, the State moved to impose the Habitual Criminal Act on the basis of a prior federal felony conviction.
At the sentencing on February 13, 1985, the trial court overruled defendant’s motion for judgment of acquittal. The State presented no documentary evidence of a prior felony conviction, but presented the testimony of Mr. Witham, the presentence investigator, who testified defendant told him he had previously been convicted of a federal felony. The trial court relied on this testimony to impose the Habitual Criminal Act and sentenced defendant to a period of not less than two years and not more than ten years on each charge, the sentences to run consecutively. Defendant was also ordered to make restitution in the amount of $249.
Defendant first contends in this appeal that the charges in Count I of “making” the check and Count II of “issuing” the check are multiplicitous because they are based on one check and that he cannot be punished twice for one offense of forgery.
Multiplicity is the charging of two or more counts where only a single criminal act is involved. State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978); State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). K.S.A. 1984 Supp. 21-3107(1) statutorily allows charging a criminal defendant with multiple violations arising from a single transaction “[w]hen the same conduct . . . may establish the commission of more than one crime under the laws of this state . . . .”
The test to determine whether the charges are in fact mul tiplicitous is whether one offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous. See State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984); State v. Chears, 231 Kan. 161, 643 P.2d 154 (1982); State v. James, 216 Kan. 235, 531 P.2d 70 (1975).
In this case, defendant was correctly charged with violating subsection (1) (a) of K.S.A. 1984 Supp. 21-3710, which defines the crime of forgery as making, altering or endorsing any written instrument fictitiously or without authority. In Count II, defendant was charged with knowingly issuing or delivering a forged instrument in violation of subsection (1) (b) of the forgery statute.
The two offenses do not require proof of the same elements. Forgery under (l)(a) requires proof the defendant made, altered, or endorsed the check with the intent to defraud. Forgery under (l)(b) requires proof the defendant issued or delivered the check knowing it had been thus made, altered or endorsed.
This issue has been dealt with in prior decisions concerning the former forgery statutes. It has been repeatedly held that the crimes of forgery and uttering a forged instrument are separate and distinct offenses and conviction of one is not dependent upon conviction of the other. See State v. White, 207 Kan. 800, 803, 486 P.2d 1381 (1971); State v. Murphy, 145 Kan. 242, 65 P.2d 342 (1937).
In this case, the two charges against the defendant were not multiplicitous. Each offense requires proof of an element not necessary to prove the other.
The defendant next contends that the trial court erred in refusing to grant a judgment of acquittal on Count I when the State failed to produce any evidence that he “made” the check as charged in the information. Defendant argues the evidence at trial showing he endorsed the check does not support his conviction in Count I of making a check. Because the State never amended the charge in Count I from making to endorsing the check, defendant argues his motion for a judgment of acquittal should have been sustained.
On a motion for judgment of acquittal, the trial judge determines whether, from the evidence presented, a reasonable mind might fairly conclude that the defendant was guilty beyond a reasonable doubt. If the judge concludes from the evidence that a reasonable mind might fairly decide that a defendant is guilty beyond a reasonable doubt, the case must go to the jury. On appellate review, the appellate court does not decide whether the evidence establishes guilt beyond a reasonable doubt but whether a rational factfinder could have found the accused guilty beyond a reasonable doubt. State v. Fosnight, 235 Kan. 52, 679 P.2d 174 (1984).
In this case, the evidence established the following:
1. The check was stolen;
2. The signature of Gott Young was unauthorized;
3. No person by the name of Gott Young worked at the firm of Gott, Young & Bogle;
4. Defendant was not a client of that law firm;
5. Defendant was payee on the check;
6. Defendant endorsed the check;
7. Defendant delivered the check to Mr. Brown;
8. A documents expert testified the handwriting on the face of the check did not belong to the defendant;
9. The expert did not know who signed the check as maker;
10. The expert testified it was highly probable the handwriting on the face of the check pertaining to the payee, the date and the amount belonged to a J. D. Portley;
11. Although defendant testified he did not know Portley, Brown testified he saw Portley and defendant together once in the summer of 1984;
12. Brown testified defendant represented the check was from a settlement of a lawsuit;
13. Defendant testified Garland Martin gave him the check when Martin purchased a 1973 Buick transmission from defendant.
There is a well-recognized presumption to the effect that one who utters or seeks to utter a forged instrument, without any reasonable explanation of how he acquired it, may be presumed to be the person who forged it, or an accessory to the forgery. State v. Gates, 196 Kan. 216, 410 P.2d 264 (1966); State v. Johnson, 189 Kan. 571, 370 P.2d 107 (1962); State v. Murphy, 145 Kan. at 242; State v. Earley, 119 Kan. 446, 239 Pac. 981 (1925).
The inference defendant is a guilty accessory to the commission of the forgery is applicable in this case in light of the evidence. Defendant’s explanation he received the check from a Garland Martin, who bought a car transmission, is certainly not reasonable in light of the facts Martin stated the funds were petty cash and the signature on the check was Gott Young and not Garland Martin. Nor is Brown’s version of defendant’s explanation to him reasonable. Brown testified defendant told him the check was a settlement from a lawsuit where that firm represented him. Yet a member of that firm testified defendant had never been their client. Additionally, defendant was charged as a principal in the information. A person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted the same as the principal. K.S.A. 21-3205; State v. Payton, 229 Kan. 106, 622 P.2d 651 (1981); State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976).
Defendant next contends that the trial court erred in allowing the State to introduce hearsay statements concerning the connection of the alleged maker of the forged check and the man defendant claimed he got the check from. The statement in issue was elicited from Detective Roy Rains, who testified in substance that, during his investigation of the case, he spoke to J. D. Portley, James Gardner/Charles Smith and Garland Martin. The detective testified that the three indicated that they knew each other. Defendant contends the statement is inadmissible hearsay and the trial court improperly instructed the jury it was admitted to prove the statement was made and not to prove the three individuals knew each other.
In its brief, the State concedes that the statement in question is hearsay and we are unable to conclude that it fits any exception to the hearsay rule. The State now contends its admission constituted harmless error and that it was merely cumulative evidence.
“The defendant is entitled to a fair trial, but not a perfect one. The erroneous admission of evidence during a trial does not require reversal in every case. A conviction is to be reversed only where the erroneous admission of evidence is of such a nature as to affect the outcome of a trial so as to amount to a denial of substantial justice. State v. Ambler, 220 Kan. 560, 564, 552 P.2d 896 (1976); State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975); K.S.A. 60-2105. Whether inadmissible testimony constitutes harmless or reversible error depends upon particular evidence and the circumstances of the case in which the question arises. State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976). Where evidence of guilt is of such direct and overwhelming nature that it can be said that erroneous admission of other evidence could not have affected the result of trial, such admission is harmless error. State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978); State v. Thompson, 221 Kan. 176, 558 P.2d 93 (1976).” State v. Turbeville, 235 Kan. 993, 996, 686 P.2d 138 (1984).
The testimony that Portley, Gardner and Martin knew each other was not of such a nature to affect the outcome of the trial so as to deny defendant substantial justice. The effect of the testimony perhaps circumstantially impeached defendant’s credibility but, recognizing it is the province of the jury to disbelieve defendant’s credibility, there was a substantial amount of evidence introduced for the jury to disbelieve defendant’s story. It suffices to say that there were numerous inconsistencies between defendant’s testimony and that of other witnesses.
The admission of the hearsay statement was harmless error. In light of the inconsistencies in defendant’s testimony, it cannot be said the statement affected the outcome of the trial.
The defendant next contends that the court erred in its instructions to the jury in several respects. He asserts that the court erred in instructing the jury on Count I that the defendant was charged with having “made, altered or endorsed” the check, when the State had only charged that the defendant did “make” the check in the information.
Count I of the information charged defendant with making the check. The jury instruction setting forth the elements of forgery under Count I stated in part:
“To establish this charge, each of the following claims must be proved:
1. defendant, or someone acting in concert with him, knowingly and with intent to defraud the First National Bank, or others,
(a) made,
(b) altered, or
(c) endorsed a written instrument, a bank check, for $349, drawn on the First National Bank in Wichita.”
Defendant’s objection at trial to the instruction on Count I was based on the same contention as his motion for judgment of acquittal. He asserts he was charged with making the check which the State failed to prove. He argues on appeal that he was convicted on a charge not made in the information under the expanded instructions and was denied due process.
It is a general rule that instructions should be confined to the charge in the information and should be neither broader nor narrower. However, a violation may be excused where the rights of a defendant have not been prejudiced. State v. Turbeville, 235 Kan. 993. It is also a well-settled rule that the adequacy of instructions is to be determined by considering them as a whole, each in conjunction with all the other instructions. State v. Trotter, 203 Kan. 31, 453 P.2d 93 (1969).
After reviewing the record and the instructions given as a whole, we are unable to conclude that the expanded instruction violated the substantial rights of the defendant. There was evidence to support the giving of the aiding and abetting instruction because it was the expert’s opinion that the handwriting on the face of the check in question belonged to J. D. Portley and there was evidence that defendant had been seen in the presence of Mr. Portley. The fact that defendant was charged as a principal in making the check does not make it erroneous for the trial court to give an instruction on aiding and abetting. State v. Singleton, 223 Kan. 559, 575 P.2d 540 (1978).
Defendant contends this case is similar to State v. Reed, 213 Kan. 557, 516 P.2d 913 (1973), where the expanded jury instructions constituted reversible error. There, the charge in the information was for corruptly influencing a witness by threat. The jury instructions stated the elements to be proved were that the defendant “deterred or attempted to deter [the witness] by threat or other means. . . .” Ruling the instructions were erroneous by the phrase “or other means” the court stated that phrase is vague and the charge should describe with particularity the “other means” defendant allegedly used in order for the defendant to defend against the charge. The expanded instruction of “making, altering, or endorsing” the check is not vague in the sense defendant was denied the opportunity to defend against the charge.
Defendant also relies on State v. Chatmon, 234 Kan. 197, 671 P.2d 531 (1983), in support of his argument. In that case, the defendant’s conviction was reversed because he was convicted of the offense of battery which the trial court mistakenly instructed was a lesser included offense. The decision is clearly factually distinguishable from the case at bar.
Defendant also complains that the trial court failed to define the phrase “or someone acting in concert with him” in the instruction discussed above. The record reflects that defendant did not request such a definition. The failure to give such a definition is not a ground for reversal in the absence of a request for it by the defendant. State v. McMahan, 131 Kan. 257, 291 Pac. 745 (1930).
K.S.A. 22-3414(3) provides:
“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 clearly erroneous.”
Defendant argues the jury was misled by the two instructions: Count I stated defendant could be found guilty if he or someone acting in concert with him made, altered or endorsed the check; however, the instruction based on K.S.A. 21-3205 requires defendant to have intentionally aided, abetted, counseled or advised another before being found guilty as an aider or abettor.
Black’s Law Dictionary explains that “a person is deemed to act in concert when he acts with another to bring about some preconceived result.” Black’s Law Dictionary 262 (5th ed. 1979). (Emphasis supplied.) To “intentionally aid and abet” another would be similar. I.e., there is a common design or plan and one party purposefully assists the other in its accomplishment.
When all the instructions are read as a whole, the phrase “or someone acting in concert with him” does not render the instruction clearly erroneous.
The defendant asserts that the trial court erred in giving its “theory of the case” instruction because' it instructed the jury that defendant was guilty if he knew the law firm had not issued the check to him. The instruction stated:
“If you find the defendant endorsed the check, with intent to defraud the First National Bank or others, and
(a) the check was not issued with the authority of Gott, Bogle & Young, P.A.; and
(b) defendant knew Gott, Bogle & Young, P.A., had not issued the check to him; and
(c) this occurred in Sedgwick County, Kansas, then the defendant is guilty of forgery (endorsing) as set out in count 1.
“If you find the defendant issued, or delivered, the check to Edmond Brown, with intent to defraud the First National Bank, or others, then defendant is guilty of forgery (by issuing or uttering) as set out in count 2.
“It is no defense that someone other than defendant may have made out part of the check.
“If the defendant believed the check was validly issued to him, and acted with no intent to defraud in endorsing and delivering the check to Edmond Brown, then he cannot be found guilty.”
The record reveals defendant questioned part (b) of that in struction. The court added the last sentence and defendant’s attorney stated “that would suffice.” Where no objection is given to the instruction at trial, the instruction must be clearly erroneous to warrant reversal. State v. Gasser, 223 Kan. 24, 574 P.2d 146 (1977).
While it might have been preferable if the trial court had relied on the substance of PIK Crim. 2d 59.11 to define the elements of forgery in this case, after reviewing the instruction complained of, together with the other instructions as a whole, we are unable to conclude that it was clearly erroneous.
The defendant next contends that the trial court erred in imposing the Habitual Criminal Act when the only evidence of prior convictions was the testimony of a court services officer that defendant had told him during the course of the presentence investigation that he had a prior federal felony conviction. Defendant argues that the Habitual Criminal Act was imposed on the basis of incompetent evidence and that his Fifth Amendment right against self-incrimination was violated.
K.S.A. 1984 Supp. 21-4504(e) provides:
“A judgment may be rendered pursuant to this section only after the court finds from competent evidence the fact of former convictions for felony committed by the prisoner, in or out of the state.”
The issue as to what evidence may be used to enhance sentencing has been discussed in a number of prior cases. A journal entry of former convictions (State v. Messmore, 175 Kan. 354, 264 P.2d 911 [1953]), and commitment papers from U.S. and state penitentiaries (State v. Loyd, 187 Kan. 325, 356 P.2d 825 [1960]), have been allowed. If the record of the prior felony conviction is silent regarding the presence of counsel or waiver thereof, it alone cannot be used to enhance the sentence. State v. Duke, 205 Kan. 37, 468 P.2d 132 (1970). The court has held documentary evidence is not necessary where the defendant testified and admitted the felony conviction. Goodwin v. State, 195 Kan. 414, 407 P.2d 528 (1965); State v. Stubbs, 195 Kan. 396, 407 P.2d 215 (1965); State v. Lewis, 195 Kan. 389, 405 P.2d 796 (1965) (overruled on other grounds, State v. Bly, 215 Kan. 168, 523 P.2d 397 [1974]); State v. Engberg, 194 Kan. 520, 400 P.2d 701 (1965), cert. denied 383 U.S. 921 (1966) (overruled on other grounds, State v. Duke, 205 Kan. 37, 468 P.2d 132 [1970]); State v. Watkins, 190 Kan. 446, 375 P.2d 634 (1962); State v. Graham, 172 Kan. 627, 242 P.2d 1067 (1952). Where the defendant and his counsel have admitted to prior felonies, that can be used to enhance. State v. Ralph, 194 Kan. 356, 399 P.2d 548 (1965).
The record in this case discloses that the State had not been able to obtain documentary evidence of a prior federal felony conviction for interstate transportation of forged securities at the time of sentencing. The trial court did not want to grant a continuance. Therefore, the State put Mr. Witham, the presentence investigator assigned to this case, on the stand to testify regarding the defendant’s previous felony convictions. He testified to the effect that defendant admitted to 7 or 8 prior convictions, including the federal felony for forged securities which the State had given defendant notice it would use to impose the Habitual Criminal Act. There was no evidence to confirm this testimony nor was there any showing that the defendant had been represented by counsel at the time of the federal conviction.
Whether the information obtained from a presentence investigation can be used to enhance sentencing pursuant to the Habitual Criminal Act appears to be a case of first impression in Kansas.
In this case, the defendant’s attorney admitted that defendant was “no stranger to the court system” but did not admit specific felony convictions. Mr. Witham’s statements were made in the presence of defendant and the defendant did not dispute making the disclosures, but objected on the basis of the Fifth Amendment.
Defendant argues the Fifth Amendment should protect him from receiving a higher sentence based on a report which he was required to assist in compiling. The first case defendant cites, Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977), concerned the trial court’s use of a confidential portion of a presentence investigation report which was not disclosed to defense counsel to impose the death sentence rather than the jury’s recommended sentence of life imprisonment. Viewing death as a different kind of punishment along with the fact that the defendant had no opportunity to admit or explain the information in the report because the trial court did not detail the information, the court ruled defendant was denied due process of law.
Gardner is not applicable to the case at bar. Here, defendant’s counsel read the report, as reflected by his remarks to the court, and defendant was given an opportunity to admit or explain that information when the court asked defendant if he had anything to say before the court imposed sentence.
Defendant also cites Jones v. Cardwell, 686 F.2d 754 (9th Cir. 1982). There, after conviction but before sentencing, while being interviewed by a State probation officer, the defendant confessed to an additional uncharged crime. That confession was then used to enhance the defendant’s sentence. The court stated:
“It does not follow necessarily from this conclusion that every encounter between the state and a convicted but unsentenced defendant brings the Fifth Amendment privilege into play. But, where, as here, the state’s agent seeks from the convicted defendant a confession of additional criminal activity and that confession is used to enhance a defendant’s sentence, we think it beyond peradventure that the defendant may properly claim the protection of the privilege against self-incrimination.” Jones, 686 F.2d at 756.
Furthermore, in Baumann v. United States, 692 F.2d 565, 578 (9th Cir. 1982), the court stated:
“[A] routine presentence interview of an individual convicted of a noncapital federal offense is not ... a critical stage of the proceeding in which counsel’s presence, or advice, is necessary to protect the defendant’s right to a fair trial.”
We are unable to conclude that the defendant’s Fifth Amendment rights against self-incrimination were violated in this case. He voluntarily admitted to Mr. Witham the extent of his criminal record. There is nothing in the record to indicate Mr. Witham pressured or compelled the defendant to admit the convictions. He did not confess to any uncharged criminal activity. As defendant’s counsel stated, he was no stranger to the court system and it is probable that he had experienced a presentence interview before and knew of its purpose.
However, we are constrained to hold that Mr. Witham’s testimony did not constitute sufficient competent evidence under K.S.A. 1984 Supp. 21-4504(e) and the authorities cited above. A presentence investigation report is prepared to help the trial judge determine an appropriate sentence. It is not prepared to discover prior convictions for enhancement purposes. Here, neither the defendant nor his counsel admitted in court to any prior felony convictions. It should also be noted that there was no evidence of any kind produced to corroborate the statement made to the court services officer and there was no affirmative showing that defendant had been represented by counsel at the time of the claimed felony conviction as is required by State v. Duke, 205 Kan. 37, Syl. ¶ 3.
Finally, the defendant contends that the trial court erred in ordering him to pay restitution at the same time it sentenced him to prison. We agree.
The journal entry of judgment reflects defendant was sentenced to two sentences of from two-to-ten years to run consecutively. It also reflects the trial court ordered the defendant to make restitution in the amount of $249 to the victim, Mr. Brown.
In State v. Chilcote, 7 Kan. App. 2d 685, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982), the court held it is improper to order immediate restitution and incarceration at the same time because the two are not harmonious, and therefore the combination is not appropriate under K.S.A. 1984 Supp. 21-4603(2)(e). Restitution may only be ordered with probation or suspended sentence.
Chilcote is cited with approval in the later case of State v. Dubish, 236 Kan. 848, 696 P.2d 969 (1985). See also State v. McNaught, 238 Kan. 567, Syl. ¶ 7, 713 P.2d 457 (1986).
While the trial court may not order immediate restitution at the same time as incarceration, it may set guidelines as to the manner and amount of restitution in its journal entry. Those guidelines then aid the Kansas Adult Authority if it grants a defendant parole. K.S.A. 1984 Supp. 22-3717(j) states that when the authority orders parole it “shall order as a condition of parole that the parolee make reparation or restitution to the aggrieved party ... in an amount and manner specified in the journal entry of the court that sentenced the inmate or, if not specified in the journal entry, in an amount and manner determined by the adult authority.”
In this case, the State argues that the decision in Chilcote, 7 Kan. App. 2d 685, has been modified by the decision of the supreme court in State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982). Apparently, the trial judge had adopted this view at the time he sentenced the defendant to incarceration as well as to pay restitution. The State’s argument on this issue is without merit. In Yost, it was held that restitution ordered to be made to the “aggrieved party” includes a third party who was not the immediate victim of the crime. The defendant in that case was granted probation subject to making full restitution to the victim. The defendant gave the victim a worthless check on the purchase of cattle. The victim, however, had been compensated by a third party, the person to whom the cattle were delivered for sale on consignment. The court allowed the third party to be substituted as the aggrieved party to whom the defendant was required to make full restitution. The supreme court’s decision in Yost in no way modifies the holding in State v. Chilcote, 7 Kan. App. 2d 685.
The Oregon statute cited by the court in Yost specifically allows a combined order of restitution and incarceration. This statute was cited by the court in support of the proposition that the term “aggrieved party” should be broadly construed for the purpose of restitution. The Kansas statute, K.S.A. 1984 Supp. 21-4603(2), has been interpreted not to allow that particular combination of incarceration and restitution because it is not harmonious.
After reviewing the record in its entirety, we are obliged to conclude that the order of restitution made by the trial court was not advisory but was ordered immediately, contrary to the ruling in State v. Chilcote, 7 Kan. App. 2d 685.
Defendant’s conviction is affirmed. The sentence as to restitution imposed by the trial court is vacated. Defendant’s prison sentences as heretofore imposed by the trial court are vacated and the case is remanded to the trial court for resentencing of defendant. | [
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Parks, J.;
Petitioner, Steven Joe Andrews, appeals from the district court’s denial of his K.S.A. 60-1507 motion to vacate his sentence.
On October 1, 1979, petitioner entered a plea of nolo contendere to a charge of felony theft. The court found the petitioner guilty of the charged offense and sentenced him to a term of one to five years in the custody of the Kansas Secretary of Corrections. In reliance upon petitioner’s representation to the court that he had never been in trouble before, the court granted petitioner’s motion for a probated sentence. Petitioner was placed on supervised probation for a term of two years and ordered to make restitution. A few days after petitioner was released on probation, the court learned that he had been convicted of several prior felony crimes in other jurisdictions. The court issued a bench warrant for petitioner’s arrest stating that the October 1 sentencing should be “held for naught.”
Petitioner was arrested and brought before the court. Without finding that petitioner had violated any of the terms or conditions of his probation, the court effectively revoked petitioner’s probation on the grounds that he had lied to both the court and his counsel. Petitioner was resentenced to a term of two to ten years’ imprisonment without objection from his counsel. Petitioner filed this motion only after serving five years of his sentence and being placed on parole. He appeals from the district court’s denial of any relief on his motion to vacate the second sentence.
Initially, petitioner contends that the sentencing court lacked the authority to revoke his probation without a showing that he violated its terms and conditions. He contends that considerations of due process and the provisions of K.S.A. 1985 Supp. 22-3716 permit the revocation of probation only upon evidence of a violation of its terms. However, in Swope v. Musser, 223 Kan. 133, 136, 573 P.2d 587 (1977), our Supreme Court recognized an exception to this rule which is widely accepted. The Court stated as follows:
“[W]hen misrepresentations have been made to the court by or on behalf of a defendant at the time of granting probation which misrepresentations were a basis for granting probation in the first place, the prior misrepresentations may be grounds for revocation. (United States v. Ecton, 454 F.2d 464 [9th Cir. 1972].) It has also been held that probation may be revoked for fraudulent concealment of facts and circumstances existing at the time of the hearing at which probation is granted.” 223 Kan. at 136.
Although the Court did not find that the circumstances of Swope justified application of this exception, we believe the exception itself is appropriate. See United States v. Torrez-Flores, 624 F.2d 776, 784 (7th Cir. 1980); Annot., 36 A.L.R.4th 1182. Therefore, when a defendant is granted probation in reliance upon misrepresentations made to the court by or on behalf of the defendant, the probation may be summarily revoked without evidence that the terms or conditions of probation have been violated.
Petitioner admitted at the second hearing that he had lied to a court services officer and to the sentencing court by stating that he had not been in trouble before. Petitioner admitted that he had previously been convicted of auto theft in both Texas and Indiana. The record reveals that the misrepresentations were made by the petitioner at the time probation was granted and that the sentencing court relied upon those misrepresentations in granting probation. Accordingly, it was clearly within the discretion of the trial court to revoke petitioner’s probation.
Petitioner’s second argument has greater merit. He contends the sentencing court exceeded its authority in imposing a new, increased sentence after revoking his probation. We agree.
K.S.A. 1985 Supp. 22-3716(2) specifically sets out the sentencing options of the court when probation is revoked. The pertinent portion of the statute states as follows:
“If the violation is established, the court may continue or revoke the probation or suspension of sentence and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.”
The sentencing options included in K.S.A. 1985 Supp. 22-3716(2) clearly differentiate between the situation in which probation has been imposed and that which arises when sentencing is suspended. Probation is defined as “a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment subject to conditions imposed by the court.” K.S.A. 1985 Supp. 21-4602(3). By contrast, suspension of sentence is the procedure by which a guilty defendant is released by the court without the imposition of sentence. K.S.A. 1985 Supp. 21-4602(2). Therefore, K.S.A. 1985 Supp. 22-3716(2) indicates that when probation is revoked, the court may either reinstate the sentence already imposed or it may impose a different, lesser sentence. If no sentence has previously been imposed because the sentence, and not just the execution of the sentence, was suspended, the court may impose whatever sentence it could have originally imposed. K.S.A. 1985 Supp. 22-3716(2) does not authorize the imposition of a greater sentence than that originally imposed when probation is revoked.
Although K.S.A. 1985 Supp. 22-3716(2) has not been previously construed, there is considerable authority from other jurisdictions consistent with our interpretation. The federal courts have long held that the sentencing court lacks the authority to impose a harsher sentence after revoking probation and suspending execution of the initial sentence. Roberts v. United States, 320 U.S. 264, 88 L. Ed. 41, 64 S. Ct. 113 (1943). In addition, the language of the current federal statute governing probation, 18 U.S.C. § 3653 (1982), which is nearly identical to that of the Kansas provision, is construed as limiting the sentencing power of the court upon revocation of probation. For example, in United States v. McDonald, 611 F.2d 1291 (9th Cir. 1980), the court stated that where imposition of sentence was originally suspended, the sentencing court was free to impose any sentence it might have imposed upon revocation of the suspension, but where execution of the sentence was suspended, the court revoking probation is limited to execution of the original sentence or imposition of a lesser sentence. Similarly, while some states have very different statutory authority, those with provisions similar to ours have concluded that the court revoking probation may not impose a new, increased sentence. See, e.g., Nelson v. State, 617 P.2d 502 (Alaska 1981). See generally Annot., 23 A.L.R.4th 883.
Petitioner was originally given a lawful sentence and the court had no authority to set this sentence aside once it was put into execution. State v. Lyon, 207 Kan. 378, Syl. ¶ 3, 485 P.2d 332 (1971). When sentence is imposed but its execution suspended, the sentencing power of the court on the subsequent revocation of probation is controlled by K.S.A. 1985 Supp. 22-3716(2), which permits the court to impose the original or a lesser sentence. Therefore, we conclude that the sentencing court exceeded its authority when it imposed an increased sentence and the district court which denied petitioner’s K.S.A. 60-1507 motion to vacate the unlawful second sentence erred. The motion to vacate the second sentence is granted and, since defendant has served the maximum term of the original sentence, he is ordered discharged from any remaining restrictions on his liberty. | [
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Pierron, J.:
This is an appeal from a district court order directing the parties to share equally the payment of a portion of the charges by two expert witnesses as fees for preparation for discovery depositions. Plaintiffs Frances Balagna and Joshua Balagna appeal; defendants Van Doren-Hazard-Stallings and Dallas W. Freeborn cross-appeal.
The controversy arose out of a wrongful death action filed by plaintiffs. In the normal course of the litigation, the plaintiffs named four expert witnesses whom they intended to call at trial. The defendants did not immediately depose them and in a letter dated April 17, 1981, stated the depositions would not be taken. Some time thereafter defendants were successful in a summary judgment motion, but upon appeal the Supreme Court reversed the summary judgment as to the above-mentioned defendants and remanded the case for trial. Balagna v. Shawnee County, 233 Kan. 1068, 1069-85, 668 P.2d 157 (1983).
After remand, the trial court, over the objection of the plaintiffs, granted defendants’ oral motion to extend discovery, thus requiring plaintiffs to make their experts available for deposition.
Defendants took the depositions of the four experts on April 10 and 11, 1984. The case went to trial and resulted in a verdict for the plaintiffs in the amount of $208,250 on June 1, 1984.
Pursuant to K.S.A. 60-226(b)(4)(C)(i), all four experts subsequently submitted to defendants bills for their preparation, expenses, and services which they claimed had arisen out of the defendants’ depositions. All four experts, Michael McNutt (expert on liability), Gerald Olson (economic expert), Wayne Williams (expert on liability), and Melvin Sierakowski (expert on liability), had been scheduled to testify at trial. All of them did testify with the exception of Sierakowski, who apparently did not do so at the election of plaintiffs.
Defendants paid the bills of Olson and McNutt without dispute. However, defendants disputed in part the bills submitted by Sierakowski and Williams. The disputed portions concerned the time spent by the two experts to prepare for the deposition. For Sierakowski, this constituted $780 or approximately half his total charge for his deposition; for Williams, the preparation expense accounted for approximately $950, slightly more than half of his total charge for his deposition. According to the brief of plaintiffs, Sierakowski’s deposition lasted eight hours while Williams’ deposition lasted four hours.
Plaintiffs moved the trial court to rule on the question of who should pay for the preparation time for the depositions. The plaintiffs’ position was and is that K.S.A. 60-226(b)(4)(C)(i) requires the court to order the party seeking discovery to pay the deponent expert a reasonable fee for his time spent in responding to discovery, which would include the preparation time for the deposition. The defendants take the position that under K.S.A. 60-2003 and the case of Wood v. Gautier, 201 Kan. 74, 439 P.2d 73 (1968), costs of preparation for trial are not ordinarily recoverable as costs and these particular experts’ extensive review of the record less than two months prior to trial were exactly for that. At best, defendants contend, plaintiffs were entitled to defendants’ payment of only one half of the preparation expenses as the trial judge might award in the exercise of his discretion.
With these arguments, the trial judge weighed the approximate benefit to both sides of the preparation and assessed half the cost thereof to each.
The depositions with which we are here concerned were taken pursuant to K.S.A. 60-226(b)(4)(A)(ii). The pertinent language of K.S.A. 60-226(b)(4)(C) dealing with the depositions of opposing experts reads as follows:
“Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery . . . .”
The parties have not presented, and we have not found, any cases dealing with this precise question. (Wood v. Gautier. 201 Kan. 74, the case on which defendants rely, is inapposite as it was decided before this section of K.S.A. 60-226 was enacted.) However, the language of the statute is quite clear that the party seeking discovery is to pay the expert a reasonable fee for time spent in responding to discovery unless manifest injustice would result from that order. The question presented is whether a “manifest injustice” results when plaintiffs benefit from the defendants’ taking of plaintiffs’ expert witnesses’ depositions so close to the time of trial that plaintiffs are able to use the preparation for the depositions as preparation for trial.
Although there was no concrete evidence as to what further preparation might have been necessary for trial, on appeal we will presume that the trial court’s finding that the plaintiffs did substantially benefit from the preparation for the deposition was correct. See Stayton v. Stayton, 211 Kan. 560, 506 P.2d 1172 (1973).
The resolution of this issue hinges on what meaning should be given to the term “manifest injustice.” As was stated above, no factually similar cases have been found. In the instant case, there is nothing in the record to indicate that either party proceeded in an inappropriate manner. Although the depositions were de layed three years, the delay was essentially due to the summary judgment being granted and its subsequent appeal and reversal. The time spent by the experts and the fees charged do not appear to be unreasonable considering the amount involved in the case and the apparent complexity of the depositions. There is no indication that the depositions were unnecessary or were unduly prolonged due to the actions by plaintiffs. The timing of the depositions was determined by defendants, who delayed taking them for valid economic reasons until six weeks before trial.
The trial court’s rationale coincides with defendants’ argument on appeal that since plaintiffs derived benefit from the preparation their experts did for the depositions, the costs of preparation should either be split or totally disallowed. The trial court and defendants have thus implicitly asked this court to interpret the statute to read that if a plaintiff benefits from the taking of the deposition, the trial court must determine the amount of benefit received by the plaintiff and deduct that benefit from the amount to be paid by the defendant or a manifest injustice will result.
We do not see this as a proper interpretation of the statute. Depositions of opposing experts in this matter took place only at the insistence of the defendants over the objections of the plaintiffs. It was the defendants’ choice to depose the witnesses at a time close to trial. To give the statute the interpretation proposed by defendants would not heed the language of the statute. Manifest injustice does not result simply because the plaintiffs may be benefited by the timing of the defendants’ depositions. To find so would needlessly complicate the administration of this statute by requiring the trial judge to make a determination in each instance of how much a plaintiff was benefited by having his expert’s deposition taken by the opposition. The party whose expert’s deposition is taken will usually gain something, if only an insight into the possible lines of attack, or giving his experts an opportunity to deal with cross-examination prior to trial. More to the point, it can always be argued that when preparing for the deposition the expert also was preparing for trial even if the trial is some period of time in the future.
In sum, we believe defendants’ contention — that plaintiffs’ experts’ preparation for the depositions was also preparation for the trial — is irrelevant to the determination whether the preparation was necessary for the depositions. It is presumed that an expert will be well prepared for the deposition so as to be able to respond appropriately to it. Moreover, the fact that plaintiffs may have also benefited from defendants’ deposing of plaintiffs’ expert witnesses does not as a matter of law reach the level of manifest injustice which must be found before the defendants can be released from any of the costs of the depositions that they requested.
We therefore hold that the trial court erred in holding that the defendants should be required to pay only one half of plaintiffs’ experts’ preparation time for the depositions. The matter is therefore remanded to the trial court for disposition consistent with this decision.
Reversed and remanded with directions. | [
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Meyer, J.:
This is an appeal from an order sustaining defendants’ motions for summary judgment in an action brought to recover collision benefits from an automobile insurer and its agent.
Plaintiff brought suit against the defendants alleging that the defendants had ineffectively cancelled plaintiffs automobile policy in August 1984, and that he, therefore, had insurance coverage in an automobile accident in December 1984. The defendant company filed a motion for summary judgment on November 1, 1985, and the defendant agent (Pomerenke) filed a motion for summary judgment on November 13, 1985, having mailed copies to plaintiff s counsel on November 11, 1985.
On November 25, 1985, the trial court heard both defendants’ motions for summary judgment. Plaintiff did not file a response to either defendant’s motion nor did plaintiff or counsel appear at the hearing. The trial court sustained both defendants’ motions for summary judgment.
The plaintiff contends the trial court violated the provisions of Supreme Court Rule 141 (235 Kan. cx) in granting defendants’ motions for summary judgment. In particular, plaintiff asserts that the court erred in granting the motions before the mandatory twenty-one days plaintiff had to respond to the motions had passed.
Supreme Court Rule 141 provides:
“SUMMARY JUDGMENTS
"No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and
“(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra).
“The motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such cases the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party. In determining a motion for summary judgment the judge shall state the controlling facts and the legal principles controlling the decision in accordance with Rule No. 165.” (Emphasis added.)
According to the express provisions of Rule 141, a trial court may not hear a motion for summary judgment until twenty-one days have expired after the movant has filed his motion with the court and served it on opposing counsel.
Defendant Pomerenke filed his motion for summary judgment on November 13, 1985, having mailed notice of it to plaintiffs counsel on November 11, 1985. The motion was heard on November 25, 1985, less than twenty-one days after movant’s motion had been filed and served. In Bowen v. City of Kansas City, 231 Kan. 450, 646 P.2d 484 (1982), the supreme court held that the trial court erred in prematurely granting a motion for summary judgment that was filed and heard the same day. Bowen, 231 Kan. at 453-54. While it is true that in Bowen the trial court granted summary judgment the same day the motion for it was filed, the Bowen parties had been in court for some two years prior thereto. In any event Bowen, at least, stands for the proposition that the opposing party must have an opportunity to respond, and, absent some agreement of the parties, or absent actual response, we conclude the express provisions of Rule 141 must apply and that the trial court erred in granting defendant Pomerenke’s motion for summary judgment before the twenty-one days had passed.
The defendant company filed its motion for summary judgment on November 1, 1985, and mailed notice thereof to plaintiff. The court heard the company’s motion on November 25, 1985. Although twenty-four days passed from the date of service and filing until the date of the hearing, we conclude the trial court also prematurely granted the defendant company’s motion.
Supreme Court Rule 141 provides that “[n]o motion for summary judgment shall be heard . . . until . . . [t]he moving party has filed ... a memorandum or brief’ and “[a]ny party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter ... a memorandum or brief.” We have been unable to find any case directly stating that the twenty-one-day period mentioned in Rule 141 denotes the time a party opposing the motion has to respond. However, we believe that such a conclusion is warranted by the literal language of the rule. Clearly, a party is entitled to a period of time to respond to a motion for summary judgment. See Bowen, 231 Kan. at 453-54. The applicable statute, K.S.A. 60-256, does not specify the length of time an opposing party has to respond to the motion. The only guidance as to this period is found in Rule 141. While we recognize that the twenty-one-day period refers to the time a court must wait to hear the motion, we conclude that the twenty-one-day period also denotes the time an opposing party has to respond to the motion.
Because a party has twenty-one days to respond to a motion for summary judgment, the provisions of K.S.A. 60-206(e) are relevant. That statute provides:
“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail, three (3) days shall be added to the prescribed period.”
The provisions of K.S.A. 60-206 expressly apply to supreme court rules. State v. Nelson, 208 Kan. 404, 405-06, 496 P.2d 498 (1972). Because the motion for summary judgment was served on the plaintiff by mail, and, as concluded above, plaintiff “had the right” to file a response within twenty-one days thereafter, the plaintiff had an additional three days to respond to the defendant company’s motion for summary judgment. Thus, the plaintiff had a total of twenty-four days to respond to the motion.
In calculating these twenty-four days, K.S.A. 60-206(a) is instructive. That statute provides:
“In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.”
According to the provisions of K.S.A. 60-206(a), because service occurred on November 1, the twenty-four-day period began to run on November 2,1985. The last of the twenty-four days fell on November 25, 1985. Because Rule 141 requires the “expiration” of the required number of days before the court may hear the motion, we conclude the trial court prematurely heard the defendant company’s motion on November 25,1985. Therefore, the trial court erred in not allowing plaintiff the full amount of time to respond to either defendant’s motion for summary judgment.
Defendants contend that, notwithstanding the trial court’s failure to comply with the provisions of Rule 141, they were entitled to summary judgment as a matter of law. We disagree, and hold that a trial court’s compliance with the provisions of Supreme Court Rule 141 is mandatory, and the court’s failure to comply with the rule precludes summary judgment.
Again, Rule 141 expressly provides that “[n]o motion for summary judgment shall be heard or deemed finally submitted for decision until” the twenty-one-day period in which the party opposing the motion has to file a response has passed. The rule’s unambiguous language requires the twenty-one-day period to pass before the trial court can hear the motion and render judgment. In this regard, we rely on the following statement from Bowen v. City of Kansas City, 231 Kan. at 453-54:
“The City filed its motion [for summary judgment] on June 5, 1981 .... The appearance docket of the trial court reflects that the summary judgment motions of all defendants were ruled on June 5, 1981, and the court’s letter decision was dated and filed June 8,1981. Obviously the plaintiffs were given no opportunity to respond to or request argument on the motion of the City. Despite the unreasonable delays that occurred in this case, once the City filed its motion for summary judgment, the plaintiffs had the right to respond. The trial court’s ruling on the City’s motion for summary judgment was premature and the judgment of the trial court as to the City must be reversed.”
While the plaintiff in>the present case had some time to prepare a. response to the defendants’ motions for summary judgment, he was not allowed the full time allotted by Rule 141. We therefore hold that the court committed reversible error in granting defendants’ summary judgment motions.
In McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984), the court stated:
“Rule 141 is not just fluff — it means what it says and serves a necessary purpose. Contrary to the opinion of Stubblefield’s counsel, a moving party’s compliance with Rule 141(a) is even more crucial in complex cases than in simple ones. In accordance with the express language of the rule, the district court could not even hear the motion until the moving party was in compliance with the requirements of the rule. On this basis alone, the summary judgment for Stubblefield must be reversed.” (Emphasis added.)
We hold that a district court does not have the power to hear a motion for summary judgment until the full twenty-one-day period found in Supreme Court Rule 141 has passed, and a court’s premature ruling on the motion must be reversed, without requiring a showing of prejudice. However, the district court does have the power to rule on the motion provided the party opposing it has responded or has agreed to a disposition before the expiration of the twenty-one-day period. We realize that our holding may, in certain cases, sacrifice the policy of judicial economy. However, we consider a trial court’s compliance with the rules of our supreme court, which assure to each party the opportunity to express its views, to be more important.
Reversed and remanded. | [
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Jackson, J.:
The defendant, Max Potts, appeals from his conviction of four counts of selling drugs. He argues on appeal that he was denied due process based on pre-accusation delay and that the sentence imposed under the Habitual Criminal Act constitutes cruel and unusual punishment.
The facts are that Kathleen Dye, a police officer on temporary assignment with the Narcotics Division of the Wichita Police Department, gave her phone number to Mr. Potts on February 3, 1984. Mr. Potts called that number on February 6, 1984, and left a message for Ms. Dye to call him. She returned his call and she asked to buy two preludin tablets or “peaches” (phenmetrazine). She was told to meet him in Central Riverside Park in Wichita. She met him that night (February 6, 1984) and purchased two peaches for $30.
On February 9, 1984, Ms. Dye phoned a certain number and left a message “Max, call Kathy” and her number. Mr. Potts returned her call within three minutes. She asked to buy eight peaches and Mr. Potts told her to meet him at a gas station at 13th and Hydraulic. This time, she took Detective Miller with her. Mr. Potts and Ms. Dye transacted the buy through their car windows. Ms. Dye paid $120 for the eight pills. These pills were determined to be phenmetrazine.
Ms. Dye next phoned Mr. Potts on March 13, 1984, at the Chateau Lounge in Wichita. She and Detective Miller drove to the club. Inside the club, Mr. Potts asked what she needed and Ms. Dye asked if Mr. Potts had three types of drugs — preludins, ritalins or dilaudids. Mr. Potts replied no, and Ms. Dye then asked if he knew anyone she could contact. Mr. Potts offered to obtain some heroin for which she agreed to pay $80. Mr. Potts and the barmaid, Ms. Byrd, left the club together, and Ms. Byrd returned alone with two balloons. Ms. Dye and Ms. Byrd exchanged money and drugs. Ms. Dye saw Mr. Potts standing outside the club near his car and thanked him.
On March 14, 1984, Ms. Dye phoned Mr. Potts at the club and said she liked the stuff from the night before and that she had a lot of money. The decision had previously been made to arrest Mr. Potts that night. Mr. Potts told her to come to the club. Detective Miller and Ms. Dye went to the club together. When they arrived, Mr. Potts was on the phone. After his call ended, he asked Ms. Dye what she needed and she said she had $500 and wanted what she bought the night before. Mr. Potts said he didn’t have that riiuch. Ms. Dye asked him if he knew whom she could contact and Potts said no, that he had been on the phone to somebody but couldn’t get it until the next night. Ms. Dye then left Mr. Potts. A few minutes later, Mr. Potts approached Ms. Dye and asked her to come outside alone. Carl Jordan was outside with Mr. Potts and had heroin to sell Ms. Dye. She purchased four balloons for $260, gave the money to Mr. Jordan and then gave the code for the backup officers to arrest Mr. Potts. Mr. Jordan gave Mr. Potts the marked money and, when the arrest took place, Mr. Potts let the money drop from his hands.
The substance in the balloons were chemically proved to be heroin.
Mr. Potts was convicted on August 8,1984, of two counts of the sale of phenmetrazine and two counts of the sale of heroin.
The presentence investigation report recommended that the maximum sentence on each count run consecutively. The report stated Mr. Potts’ criminal activity began 24 years ago; he has a strong pattern of criminal conduct which will continue in the future.
The State moved to impose the Habitual Criminal Act and on October 17, 1984, the court found Mr. Potts had been convicted two or more times of a felony and sentenced Mr. Potts to a period of 15 to 60 years on each charge, the sentences to run consecutively.
Mr. Potts' argument he was denied due process of law is based on two contentions: (1) that the State had probable cause to arrest Mr. Potts after the first drug buy on February 6, 1984, and Mr. Potts’ rights were violated when the three additional buys took place; (2) that the pre-accusation delay meets the two-part test of State v. Royal, 217 Kan. 197, 202, 535 P.2d 413 (1975).
In State v. Royal, 217 Kan. 197, the Kansas Supreme Court discussed the problem of pre-accusation delay and adopted the reasoning of the United States Supreme Court in United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). The court stated:
“The rights of a defendant under the due process clause of the Fifth Amendment are not violated by pre-accusation delay in the absence of a showing that actual prejudice resulted from the delay and that the delay was intentionally designed to gain tactical advantage over the defendant or to harass him.” 217 Kan. 197, Syl. ¶ 2.
See also United States v. Reitscher, 467 F.2d 269 (10th Cir. 1972); United States v. Tager, 481 F.2d 97 (10th Cir. 1973).
In the later case of United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977), the Supreme Court of the United States again addressed the practical difficulties which may be encountered in the application of the rules concerning pre-accusation delay. The Court stated:
“ ‘There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the F ourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.’ ” 431 U.S. at 792 n. 13, quoting Hoffa v. United States, 385 U.S. 293, 310, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966).
“It requires no extended argument to establish that prosecutors do not deviate from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. . . . From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried. These costs are by no means insubstantial since, as we recognized in Marion, a formal accusation may ‘interfere with the defendant’s liberty, . . . disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ 404 U.S., at 320. From the perspective of law enforcement officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited. And from the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only some of the responsible parties or some of the criminal acts. Thus, no one’s interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.” 431 U.S. at 790-92.
In United States v. Marion, 404 U.S. at 321, n. 13, the Court stated:
“ ‘Allowing inquiry into when the police could have arrested or when the prosecutor could have charged would raise difficult problems of proof. As one court said, “the Court would be engaged in lengthy hearings in every case to determine whether or not the prosecuting authorities had proceeded diligently or otherwise.” [Citation omitted.]’ ”
In the case at bar, the undercover officer first purchased drugs from the appellant on February 6, 1984, and he was arrested on March 14, 1984. We cannot conclude from the record that this delay of a little more than a month from the date of the first buy to the time of appellant’s arrest was prejudicial. It is incumbent upon the appellant to establish that he has suffered actual or substantial prejudice by reason of the delay. It might be that he has been hampered in his effort to mount a defense because of a loss of evidence, memories have dimmed, witnesses have died or documents have been destroyed. The appellant in this case has failed to demonstrate that he has suffered such actual prejudice and the record does not support his contention that he has been prejudiced by reason of the delay in question here. See United States v. Marion, 404 U.S. at 321; United States v. Lovasco, 431 U.S. 783; United States v. Pino, 708 F.2d 523 (10th Cir. 1983); United States v. MacClain, 501 F.2d 1006 (10th Cir. 1974).
With respect to the second part of the two-part test established in State v. Royal, 217 Kan. 197, we must next consider whether the delay was purposefully designed to gain some tactical advantage over this appellant. United States v. MacClain, 501 F.2d at 1009-10. A delay brought about by a good faith investigation is fundamentally different from a delay designed to gain tactical advantage. United States v. Lovasco, 431 U.S. at 795; Stoner v. Graddick, 751 F.2d 1535, 1541 (11th Cir. 1985).
The delay in this case resulted in the State’s obtaining sufficient evidence to support three additional charges of selling drugs after the initial purchase of drugs from this appellant. Here, it appears that the prejudice complained of is due to the appellant’s continuing to sell drugs. There is no showing that the State obtained any tactical advantage at trial by reason of the delay in question.
The record is silent concerning any reason given for the delay. The State argues on appeal there was a good faith reason to continue to investigate after the one sale, to determine who defendant’s suppliers were. The State also argues repeated sales help to dispel a possible entrapment defense. Appellant, however, contends he was a “target” and the delay was solely to accumulate charges.
The record reveals each buy is different. The first buy on February 6 was for two pills of phenmetrazine. The second buy on February 9 was for an increased amount, eight pills. Over a month later at the third buy, the undercover agent asked appellant if he had two other different drugs and the appellant replied he did not but he knew someone who had heroin. A buy of $80 worth of heroin then took place. The next night, on the fourth buy, the undercover agent attempted to purchase $500 worth of heroin, but the appellant said he couldn’t get that much until the next night. She bought $260 worth of heroin.
We conclude that the record supports the State’s argument that the investigation was continued in order to determine the appellant’s suppliers. Each buy was for a greater quantity of drugs and the last two involved significant amounts of heroin. It appears from the record that the undercover agent was attempting to learn the identity of the appellant’s suppliers or other persons who might be involved with him in the sale of drugs. On the fourth buy, two other individuals involved with the sale were arrested along with the appellant.
Appellant’s final contention is that his sentence to four consecutive terms of 15 to 60 years based on the totality of circumstances was an abuse of judicial discretion and constitutes cruel and unusual punishment.
The transcript reflects the defendant stipulated to the penitentiary packet which contained the certified copies of appellant’s prior convictions, including felonies for which appellant was incarcerated in the penitentiary. Appellant, however, opposed the invoking of the Habitual Criminal Act. Appellant argues the presentence investigation was not as complete as it should have been. Appellant argues he is presently employed, is attempting to correct his lifestyle, the crimes charged were not serious, and he can be rehabilitated.
The court found the presentence report complete and also found from the evidence introduced defendant had more than two prior felony convictions. The previous convictions were of a violent nature — first-degree robbery, unlawful possession of a pistol, maiming and wounding, voluntary manslaughter and aggravated battery. The court stated rehabilitation didn’t make any sense in light of appellant’s past criminal record and the four new convictions.
After stating the above reasons, the court imposed the maximum sentences on each count allowed under the law for a class C felony: 5-20 years. The court then tripled the sentences under K.S.A. 1984 Supp. 21-4504(b) to 15-60 years, and held the four sentences of 15-60 years each are to run consecutively.
The provisions of the Kansas Habitual Criminal Act are constitutional. State v. Caldrone, 205 Kan. 828, 473 P.2d 66 (1970), cert. denied 401 U.S. 916 (1971). K.S.A. 1984 Supp. 21-4504(b) provides that upon a third or subsequent felony conviction the court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence au thorized for the particular crime involved and the court may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence authorized. The enhanced sentences are within the statutory limits applicable to this case. The minimum sentence for a class C felony is 3 to 10 and the maximum is 5 to 20 years.
The court’s tripling of the sentence is authorized by the legislature. The record discloses no abuse of discretion by the trial court, nor oppression or prejudice. While stating appellant’s arguments not to enhance were well presented, the court remained concerned with the violent nature of appellant’s past crimes, his long criminal record, and the improbability of rehabilitation.
Appellant argues the court should apply the proportionality analysis to this sentence to determine whether its length is disproportionate to the extent of his crimes. The proportionality test involves (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed in other jurisdictions for the same crime. State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
It is not necessary to apply the proportionality test, however. The most recent United States Supreme Court case to address the applicability of the proportionality test to a sentence of imprisonment is Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983) (5-4 decision). The court recognized the great deference a reviewing court should give to the legislature’s determination of appropriate punishment and concluded:
“Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” 463 U.S. at 290 n. 16.
In this case, the individual sentences imposed were within the statutory limits prescribed by the legislature. We cannot conclude that the sentences were disproportionate to the appellant’s crimes. The determination whether separate sentences imposed on the same day should be concurrent or consecutive is discre tionary with the trial court. Burns v. State, 215 Kan. 497, 500, 524 P.2d 737 (1974); McCarty v. Hudspeth, 166 Kan. 476, 480, 201 P.2d 658 (1949); In re MacLean, 147 Kan. 678, 681, 78 P.2d 855 (1938).
As a general rule, consecutive sentences imposed on separate and distinct offenses will not constitute cruel and unusual punishment. 21 Am. Jur. 2d, Criminal Law § 629; Note, Disproportionality in Sentences of Imprisonment, 79 Colum. L. Rev. 1119 (1979); Annot., 33 A.L.R.3d 335.
Here the offenses were for separate and distinct offenses. Each offense occurred on a different night and involved a different amount of drugs, although the sales were with the same undercover officer. The trial judge orally stated his reasons for imposing the maximum sentences and the Habitual Criminal Act as required by State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977).
For the foregoing reasons, we conclude that the contentions raised by the appellant in this appeal are without merit and the judgment of the trial court is affirmed. | [
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Briscoe, J.:
Wichita Wire, Inc., doing business as Plaza Towel Holder Company (Plaza), filed suit against Arlene Lenox and her company Lenox Manufacturing for “Breach of Contract,” “Breach of Duty of Good Faith and Fair Dealing,” “Interference with Prospective Business Advantage,” and “Unfair Competition.” As part of its requested relief, Plaza sought and was granted a temporary injunction of six months’ duration against Arlene Lenox and Lenox Manufacturing. Arlene Lenox and Lenox Manufacturing appeal after first obtaining a stay of the injunction.
The sole issue raised by this appeal is whether the trial court, erred in issuing the temporary injunction.
Plaza was originally a family owned and operated corporation founded by Arlene Lenox’s father in the 1950’s. Plaza manufactured and sold towel holders, coat racks, and other items used in the hotel industry. When Wichita Wire purchased Plaza in November 1984, there were four shareholders, each holding 25 percent of Plaza’s shares. Each 25 percent interest was purchased for $90,000 for a total purchase price of $360,000.
According to the purchase agreement, each shareholder agreed to consult and advise Wichita Wire during a six-month transition period. Since Plaza’s day-to-day activity had been conducted by its shareholders, Wichita Wire also requested each shareholder to sign a noncompetition agreement in exchange for an additional $10,000. Only Arlene Lenox refused to sign the noncompetition agreement.
Shortly after the sale of Plaza, Arlene Lenox formed Lenox Manufacturing and began to produce a line of products competitive with those produced by Plaza. Arlene Lenox, on behalf of Lenox Manufacturing, solicited business from her former Plaza customers. In December 1984, Plaza’s largest customer for a number of years, American Hotel, started doing business with Lenox instead of Plaza. Plaza then filed suit against Arlene Lenox and Lenox Manufacturing. In its petition, Plaza alleged Arlene Lenox had breached the sales contract, breached her duty of good faith, engaged in unfair competition, and interfered with Plaza’s prospective business advantage. Plaza requested a permanent injunction and monetary relief, and also moved for a temporary injunction against Arlene Lenox and Lenox Manufacturing until the controversy could be resolved.
A hearing was conducted pursuant to Plaza’s motion for a temporary injunction and evidence was presented. At the close of the evidence, the trial court entered a temporary injunction against Arlene Lenox and Lenox Manufacturing which enjoined both from engaging in any business competitive with Plaza for a period of six months. The scope of the temporary injunction is specifically set forth in paragraph 18 of the trial court’s order:
“The Court therefore finds and holds that from April 25, 1985, until October 25, 1985, a period of six months, defendants Arlene Lenox and Lenox Manufacturing, Inc., are temporarily enjoined from directly or indirectly competing with Plaza Towel Holder Company, Inc., in the lodging industry by acting as an employee, consultant, owner, partner, or stockholder for any competitor in the manufacture, distribution, or sale of towel and coat holders and racks, robe hooks, towel rings, hat racks or shelves, and or coat or hat hanger bars.”
An injunction is an equitable remedy and its grant or denial in each case is governed by principles of equity. U.S.D. No. 503 v. McKinney, 236 Kan. 224, Syl. ¶ 1, 689 P.2d 860 (1984). The purpose of a temporary or preliminary injunction is not to determine any controverted right, but to prevent injury to a claimed right pending a final determination of the controversy on its merits. The grant of a temporary injunction would not be proper if it would appear to accomplish the whole object of the suit without bringing the cause or claim to trial. A temporary injunction merely preserves the status quo until a final determination of a controversy can be made. Comanche County Hospital v. Blue Cross of Kansas, Inc., 228 Kan. 364, 366, 613 P.2d 950 (1980); Evco Distributing, Inc. v. Brandau, 6 Kan. App. 2d 53, 56, 626 P.2d 1192, rev. denied 230 Kan. 817 (1981).
A trial court’s decision to grant or deny an injunction is discretionary and will not be disturbed on appeal absent a showing of an abuse of discretion. Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 5, 668 P.2d 172 (1983). The burden is on an appellant to show that the trial court abused its discretion by issuing the temporary injunction. Comanche County Hospital v. Blue Cross of Kansas, Inc., 228 Kan. at 367.
At the trial level, the burden of proof in an injunction action is upon the movant. U.S.D. No. 503 v. McKinney, 236 Kan. at 227. In defining this burden, it has been generally held that the movant must establish a prima facie case showing a reasonable probability that he will ultimately be entitled to the relief sought. The movant has the additional burden of showing a right to the specific injunctive relief sought because irreparable injury will result if the injunction is not granted. There must be a probable right and a probable danger. Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969). This test has often been expanded into four prerequisites which the moving party seeking a temporary or preliminary injunction must establish:
“(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing parties; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.” Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980); Uarco Inc. v. Eastland, 584 F. Supp. 1259, 1261 (D. Kan. 1984).
While this four-factor analysis has never been expressly applied by Kansas state courts, it appears an appropriate standard. Kansas injunction cases have, in fact, never discussed in detail the standards for analyzing an injunction, although reference is frequently made to the prerequisite of irreparable injury. U.S.D. No. 504 v. McKinney, 236 Kan. at 227; Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 242-43, 523 P.2d 755 (1974), and cases cited therein. The four-factor analysis is well established in the federal courts (Lundgrin v. Claytor, 619 F.2d 61; Wagner Elec. Corp. v. Thomas, 612 F. Supp. 736, 741 [D. Kan. 1985]; 7 Moore's Federal Practice § 65.04[1] [1986]; 11 Wright & Miller, Federal Practice and Procedure: Civil § 2948 [1973]; 42 Am. Jur. 2d, Injunctions § 285) and was used by the trial court in the present case.
Substantial likelihood of prevailing
First, Plaza presented evidence that Arlene Lenox failed to fulfill her obligations under the purchase agreement. She agreed under the purchase agreement to advise and consult with Plaza’s new owners during a six-month transition period. During this period, Plaza requested Arlene Lenox to help them regain American Hotel as a customer. She could offer no assistance in this regard since American Hotel had ceased doing business with Plaza in order to do business with Lenox Manufacturing.
Second, Plaza also presented persuasive evidence that Arlene Lenox violated her duty of good faith, engaged in unfair competition, and interfered in Plaza’s business by engaging in conduct which damaged Plaza’s goodwill. Since Plaza was purchased as a going concern, the company’s goodwill passed to its new owners. See, e.g., Tobin v. Cody, 343 Mass. 716, 720, 180 N.E.2d 652 (1962); Baldwin v. Stuber, 182 Mont. 501, 597 P.2d 1135 (1979) (both cases recite the rule that goodwill passes by implication in the sale of a business). See Annot., 65 A.L.R.2d 502, 504; 2 McCarthy, Trademarks and Unfair Competition § 28:2 (2d ed. 1984). The Kansas Supreme Court has stated that goodwill is property and can be damaged. Avery v. City of Lyons, 183 Kan. 611, 621, 331 P.2d 906 (1958).
Plaza argued that once Arlene Lenox had sold the company’s goodwill she was precluded from engaging in conduct which would derogate its value. There is some authority for this position:
“Although the sale of the goodwill of a business implies that the buyer will enjoy the former patronage, in the absence of a restrictive agreement, the seller has the right to engage in a rival business. This includes the right to attract trade by any honest method and to deal with any of his former customers who choose to trade with him. The seller cannot, however, directly solicit his old patrons by dissuading them from dealing with his vendee and inducing them to trade with him. Any such implied restriction can only be viable for a reasonable period of time so as to allow customers to attach themselves to the purchaser’s business.” 2 Callmann, Unfair Competition, Trademarks and Monopolies § 16.14 (4th ed. 1982).
Although we find no Kansas case law to support Plaza’s argument, the argument has sufficient authority to enable the trial court to consider it for temporary injunction purposes. “It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.” Atchison, T. & S.F. Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981).
The evidence presented to the trial court strongly suggests that Arlene Lenox’s conduct damaged Plaza’s goodwill. She contacted Plaza customers and induced them to continue to do business with her and “the old Plaza team.” Plaza presented evidence that Arlene Lenox caused confusion about its operation by her correspondence with Plaza customers, by using pictures of Plaza’s products in Lenox advertising, and by using Plaza’s catalog numbers and pricing lists to sell Lenox products.
“Generally it is recognized that copying or imitating circulars and advertisements is strong evidence of fraud and unfair competition, especially where the advertisement is calculated to deceive the public and pass the goods off as those of another. [Citation omitted.] Where one manufactures a product similar to his former employer’s product and sells such goods without distinguishing marks, using similar sales methods and advertisements in order to appropriate his good will, a charge of unfair competition has been sustained.” Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 261, 531 P.2d 428 (1975).
Taken as a whole, the evidence and authority presented provides support for the trial court’s conclusion that Plaza had shown a likelihood to succeed in the merits. We remind the parties that our findings and conclusions regarding this requirement are made on the basis of the record generated at the temporary injunction hearing and are not in any manner intended as a final decision on the merits.
Irreparable injury
Plaza’s only evidence of irreparable injury was the testimony of Plaza’s president that the damage done to Plaza’s goodwill could not be calculated. This statement is not persuasive. First, most of the alleged damage to Plaza’s goodwill, the loss of American Hotel as a customer, had already occurred. A temporary injunction cannot be used to remedy past injury. State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc., 232 Kan. 843, 844-45, 659 P.2d 213 (1983). Second, the damage caused by its loss of established business customers is insufficient to establish irreparable injury because it is easily calculated by determining the amount of business Lenox conducted with former Plaza customers. See Merrill Lynch, Pierce, Fenner & Smith v. de Liniere, 572 F. Supp. 246 (N.D. Ga. 1983). In Merrill Lynch, a former employee began selling securities for another firm. Merrill Lynch sued its former employee for breaching his agreement not to solicit business from Merrill Lynch clients for a one-year period. On the issue of irreparable harm, the federal district court held:
“that any loss of business to Merrill Lynch may be adequately redressed with money damages for breach of contract. The only possibly irreparable result would be some vaguely defined loss of business momentum, but the Court finds that to be unrealistic in the securities field. The real loss is in commission revenue generated by Mr. de Liniere from former Merrill Lynch customers, and that can be readily calculated from the commissions he and his new firm derive from the old Merrill Lynch customers. As a result, there will be no injury to the movant that cannot be remedied later.” 572 F. Supp. at 249.
In response to Merrill Lynch, Plaza cites Uarco Inc. v. Eastland, 584 F. Supp. 1259. Uarco brought an action against two of its former sales representatives to enforce a noncompetition clause. Uarco is a corporation with offices nationwide and conducts the business of designing, manufacturing, selling, and distributing business forms. The noncompetition clause precluded salesmen who signed the agreement from contacting or selling to Uarco customers for a period of two years after leaving the corporation. In Uarco, the court concluded:
“The evidence also demonstrates that without a preliminary injunction, the plaintiff might well suffer irreparable harm. In fact, the evidence suggests that plaintiff may have already suffered irreparable harm by the loss of customers due to solicitations by the defendants and by the loss to plaintiff of the contacts and relationships . . . with plaintiffs customers.” 584 F. Supp. at 1262.
The court in Uarco failed to set forth what evidence it considered or why it believed the damage could not be calculated. For this reason, we adopt the better reasoned analysis in Merrill Lynch and conclude loss of identifiable customers, who had generated a known dollar amount of business, is a calculable injury which is insufficient to establish irreparable harm justifying the entry of a temporary injunction. Where there is a full, complete, and adequate remedy at law through recovery of calculable money damages, the injury is not irreparable and equity will not apply the extraordinary remedy of injunction. 42 Am. Jur. 2d, Injunctions § 49. In the present case, Plaza offered no rationale to support its opinion that the injury caused by Lenox could not be calculated. Furthermore, by the trial court staying the temporary injunction on June 17, 1985, any arguable irreparable harm to Plaza that might have been prevented has already occurred and will not be corrected by our now giving effect to the temporary injunction.
Threatened injury outweighed damage
At trial Arlene Lenox testified that, if her company lost American Hotel as a customer, Lenox would go out of business. Arlene Lenox stated that in the first three months of business, Lenox Manufacturing had net sales of $11,100 and of that amount $8,700 was with American Hotel. Plaza, on the other hand, offered no evidence that it would be unable to continue in business without American Hotel as a customer.
Adverse to public interest
While there was no specific evidence presented concerning this factor, the trial court concluded that the irreparable harm to Plaza outweighed the potential harm, if any, to the public. This conclusion appears sound as there was never any suggestion that the public interest would be affected by the outcome of the case, much less that it would be affected adversely. We do not have here the public interest in the enforcement of valid contracts as recognized in Uarco because, unlike the salesmen in Uarco, Arlene Lenox did not sign a noncompetition agreement.
We conclude that the trial court’s issuance of the temporary injunction against Arlene Lenox and Lenox Manufacturing was an abuse of discretion. Although Plaza did establish a likelihood of success when this case is tried on its merits and no adverse effect to public interest, there was no showing that Plaza would suffer any irreparable harm should the injunction not be granted or that the threatened harm to Plaza should the injunction not issue outweighed the harm to Lenox if it did issue. Further, even if we were to conclude Plaza had carried its burden of proof to establish entitlement to an injunction, the injunction entered here was too broad and therefore improper. An injunction should be no broader than the occasion shown requires. Wyoming v. Colorado, 286 U.S. 494, 508, 76 L. Ed. 1245, 52 S. Ct. 621 (1932). Here, the trial court enjoined Arlene Lenox and Lenox Manufacturing from engaging in competition with Plaza for six months. Arlene Lenox did not sign a noncompetition agreement and therefore the trial court had no authority for completely enjoining her rival business. At most, the trial court should only have enjoined Arlene Lenox and Lenox Manufacturing from engaging in unfair competition, or perhaps restricted her from soliciting Plaza customers.
The trial court’s order entering a temporary injunction against Arlene Lenox and Lenox Manufacturing is reversed. | [
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Nyswonger, J.:
The First National Bank & Trust Company of Salina (First National Bank) appeals a judgment granting First Agency of Leoti, Inc., (First Agency) priority to proceeds from the condemnation of real property belonging to a debtor of both parties. To resolve the dispute we must determine whether entry of a partial summary judgment “pursuant to K.S.A. 60-254(b)” satisfied the requirements for certification in K.S.A. 60-254(b).
The parties submit the case on an agreed statement of facts pursuant to Supreme Court Rule 3.05 (235 Kan. lxiv). A summary of the pertinent facts is as follows.
On August 28, 1981, R & D Investments, a Kansas general partnership composed of Royce D. Patton, Delores M. Patton, Donald W. Ogborn, and Rosetta Ogborn, entered into an installment real estate contract for the purchase of the Great Plains Building.
On September 21,1981, the Pattons and the Ogborns acquired title to real estate known as The East Bank Properties, which they mortgaged to First National Bank, a Kansas banking corporation in Salina.
On February 6, 1984, in connection with the sale of First National Bank, two promissory notes executed by R & D Investments and secured by the mortgage on The East Bank Properties were assigned to First Agency. On March 8, 1984, First Agency commenced an action against R & D Investments and the individual partners for judgment on the two promissory notes and foreclosure of the mortgage on The East Bank Properties. First Agency of Leoti, Inc. v. R & D Investments, et al., District Court of Saline County, Case No. 84 C 64.
On August 3,1984, in a signed document entitled “Assignment of Equitable Interest as Collateral Security,” Royce Patton and Rosetta Ogborn assigned their purchasers’ equitable interest in the Great Plains Building to First National Bank as security for loans made by the bank to R & D Investments. The security interest was not recorded with the Saline County Register of Deeds until May 8, 1985.
On September 11, 1984, the trial court granted First Agency leave to file a second amended petition in the foreclosure action. The second amended petition alleged that two strips of land providing access to the mortgaged property had been omitted inadvertently from the mortgage and requested that the court reform the mortgage to include them. Following the filing of answers and counterclaims by R & D Investments and the individual partners, First Agency filed a motion for summary judgment. On November 8, 1984, the court issued a memorandum decision granting partial summary judgment to First Agency against R & D Investments and the individual partners and ordering the mortgage foreclosed. The court reserved for later trial the request that the mortgage be reformed to include the omitted strips of land.
A proposed journal entry was prepared by First Agency’s counsel and forwarded to R & D Investments. Royce Patton, on behalf of R & D Investments, objected to the proposed journal entry and, after a hearing, a journal entry of partial summary judgment was signed and filed by Judge Daniel L. Hebert on November 30, 1984. The journal entry began, “Now on this 8th day of November, 1984, pursuant to K.S.A. 60-254(b), and a hearing [on] a Motion to Settle Journal Entry, pursuant to Supreme Court Rule No. 170, the Court enters the following judgments,” but contained no statement that there was no just reason for delay or reasons for certifying the judgment pursuant to K.S.A. 60-254(b).
On February 19, 1985, following trial, the court filed a journal entry decreeing an equitable reformation of the mortgage to include the omitted strips of land. Pursuant to order, the sheriff sold The East Bank Properties on May 22, 1985. The court confirmed the sale on March 28, 1986.
On December 3, 1985, the City of Salina commenced a condemnation action, from which this appeal has been taken. The Great Plains Building was among the property sought by the city. First National Bank, which claimed an interest in the building resulting from the August 3, 1984, assignment by Royce Patton and Rosetta Ogborn, was joined as a defendant in the action, as was First Agency, which claimed a judgment lien on the property of R & D Investments based on the November 30, 1984, entry of partial summary judgment in the foreclosure action. On January 21, 1986, the court determined the fair market value of the Great Plains Building and entered judgment against the City of Salina and in favor of the various defendants.
On March 7,1986, First Agency and First National Bank filed a Joint Motion for Determination of Entitlement to Proceeds, as provided in K.S.A. 26-517. First Agency argued that the November 30,1984, partial summary judgment was a final judgment because the court had certified it under 60-254(b) and that pursuant to K.S.A. 1984 Supp. 60-2202(a) its judgment lien on the real property of R & D Investments related back four months, to July 30, 1984. First National Bank contended that the partial summary judgment was not a final judgment because the court failed to make an express direction for entry of judgment and express determination that there was no just reason for delay as required by 60-254(b). It argued that judgment for First Agency in the foreclosure action did not become final until February 19, 1985, when the court reformed the mortgage and, thus, that First Agency’s judgment lien on R & D Investment’s real property did not become effective on July 30, 1984, but on November 19, 1984, well after the bank obtained the August 3, 1984, security interest in the Great Plains Building.
The court held that First Agency had priority to the proceeds. The court noted that in the memorandum decision granting First Agency partial summary judgment, Judge Hebert directed that judgment become “effective” when a journal entry was filed. The court found that “effective” meant “final.” It found “no ambiguity” in the November 30, 1984, journal entry. The court then concluded that, by directing entry of judgment “pursuant to K.S.A. 60-254(b),” Judge Hebert fulfilled the requirements for certification under 60-254(b):
“5. The Court further finds and concludes the language in the journal entry executed by Judge Hebert and entered November 30,1984, states unequivocally that judgment is entered ‘pursuant to K.S.A. 60-254(b)’; that by expressly and directly referring to K.S.A. 60-254(b) Judge Hebert has expressly determined there was no just cause for delay, and that reference does constitute an express determination there is no just cause for delay, and, additionally it constitutes an express direction by Judge Hebert for the entry of judgment. Both the negative and positive aspects of the statute are certified in, and determined by the Court by that express statutory reference.”
The court ruled that the final judgment entered on November 30, 1984, related back to July 30, 1984, and that First Agency’s judgment lien was prior to and superior to the August 3, 1984, security interest held by First National Bank.
On appeal, First National Bank asserts that the trial court erred by concluding that the entry of partial summary judgment for First Agency in the foreclosure action satisfied the requirements of K.S.A. 60-254(b).
An examination of the language and purpose of K.S.A. 60-254(b) convinces us that the trial court erred by holding that “an express determination that there is no just reason for delay” may be implied from the words “pursuant to K.S.A. 60-254(b).” We hold that the reference “pursuant to K.S.A. 60-254(b),” unaccompanied in the record by a statement that there is no just reason for delay or reasons for certification, did not satisfy the requirement in K.S.A. 60-254(b) that the court make “an express determination that there is no just reason for delay.”
At the outset, we note that both parties correctly assume that a judgment lien does not attach as a result of summary judgment on one of multiple claims or for one of multiple parties in an action until the trial court properly certifies the judgment as final under K.S.A. 60-254(b) or adjudicates the remaining claims in the action. K.S.A. 1984 Supp. 60-2202(a) provides that a judgment “lien shall be effective from the time at which the petition stating the claim against the judgment debtor was filed but not to exceed four months prior to the entry of the judgment.” (Emphasis added.) K.S.A. 60-258 governs entry of judgment:
“60-258. Entry of judgment. Entry of judgments shall be subject to the provisions of section 60-254(b). No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court.” (Emphasis added.)
See Carnation Co. v. Midstates Marketers, Inc., 2 Kan. App. 2d 236, 577 P.2d 827 (1978) (date of entry of judgment for purposes of attachment of judgment lien under 60-2202[a] determined by reference to 60-258).
K.S.A. 60-254(b) provides as follows:
“(b) Judgment upon multiple claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and .liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision, at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” (Emphasis added.)
See McGuire v. Sifers, 235 Kan. 368, 382, 681 P.2d 1025 (1984) (“A final judgment of one or more claims in a lawsuit pursuant to K.S.A. 60-254[b], to be effective, must follow the filing requirements of K.S.A. 60-258.”).
Entry of a final judgment as to less than all the claims or for less than all the parties in an action involving multiple claims or parties is not effective unless the court makes “an express determination that there is no just reason for delay” and “an express direction for the entry of judgment,” as required by K.S.A. 60-254(b). Fredricks v. Foltz, 221 Kan. 28, 31, 557 P.2d 1252 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 107, 562 P.2d 108 (1977); 1 Gard's Kansas C. Civ. Proc. 2d Annot. § 60-254, Comments (1979). If the court grants judgment on less than all the claims or for less than all the parties in an action, but does not certify the judgment as required in K.S.A. 60-254(b) and 60-258, it has not made an entry of judgment required by 60-2202(a), and no judgment lien attaches to the property of the adversely affected party or parties. See Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944, 951 (7th Cir. 1980); Redding & Company v. Russwine Construction Corporation, 417 F.2d 721, 727 (D.C. Cir. 1969); Gauthier v. Crosby Marine Service, Inc., 590 F. Supp. 171 (E.D. La. 1984); Gull Industries v. Mustang Gas and Oil Co., 73 Or. App. 557, 699 P.2d 1134, rev. denied 299 Or. 583 (1985); 10 Wright & Miller, Federal Practice and Procedure: Civil § 2661 (1983).
By its terms, K.S.A. 60-254(b) requires more than a statutory citation for effective entry of final judgment on less than all of the claims or for less than all of the parties in an action. To enter final judgment under 60-254(b), the court must make “an express determination that there is no just reason for delay” and “an express direction for the entry of judgment.” (Emphasis added.) The statute’s broad exclusionary language — ’’any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties” — emphasizes that the determination must be express, not implied, to be effective. (Emphasis added.)
The requirement that the court make an express determination that no just reason exists to delay entry of judgment ensures that the policy against piecemeal appeals will not be disregarded lightly. In Fredricks v. Foltz, 221 Kan. 28, the Kansas Supreme Court explained the purpose of K.S.A. 60-254(b):
“Rule 54(b) re-establishes the ancient federal policy against piecemeal appeals with clarity and precision, with the addition of a discretionary power to afford a remedy in the infrequent harsh case. [Citation omitted.] A similar policy against piecemeal appeals which tend to extend and prolong litigation exists in Kansas. [Citations omitted.]
“The policy against piecemeal appeals is implemented in Kansas by [K.S.A. 60-254(b)]. When the district court under this rule has fully disposed of the interest of one or more but fewer than all of the multiple parties, its order lacks finality unless the district court makes an express ‘direction for the entry of judgment’ and a ‘determination that there is no just reason for delay.’ The combination of the direction and determination can be referred to as a ‘certification’ that a particular judgment is ripe for review. [Citations omitted.]
“An express direction for the entry of judgment as to one of several defendants, without an express determination that there is no just reason for delay, is insufficient to support an appeal under Rule 54(b). [Citations omitted.]” 221 Kan. at 31.
See Dennis v. Southeastern Kansas Gas Co., 227 Kan. 872, 877-78, 610 P.2d 627 (1980).
Like its federal counterpart, K.S.A. 60-254(b) “attempts to strike a balance between the undesirability of more than one appeal in a single action and the need for making review available in multiple-party or multiple-claim situations at a time that best serves the needs of the litigants.” 10 Wright & Miller, Federal Practice and Procedure: Civil § 2654 (1983); see Dennis v. Southeastern Kansas Gas Co., 227 Kan. at 878. The trial court should not certify a judgment under K.S.A. 60-254(b) routinely or by rote or to accommodate counsel, but only after carefully determining that sound judicial administration or the prospect that delay might seriously and unjustly prejudice the interests of one or more of the parties outweighs the concerns raised by piecemeal appeals and justifies immediate appellate review. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980); Burlington Northern R. Co. v. Bair, 754 F.2d 799, 800 (8th Cir. 1985); Jasmin v. Dumas, 726 F.2d 242, 244 (5th Cir. 1984); Morrison-Knudsen Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir. 1976); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 363-65 (3d Cir. 1975); Panichella v. Pennsylvania Railroad Company, 252 F.2d 452, 454-55 (3d Cir. 1958).
When a court makes an express determination that no just reason exists for delaying entry of judgment under K.S.A. 60-254(b), it confirms that it has reflected on the appropriateness and fairness of entering final judgment on less than all the claims or for less than all the parties in an action. To guarantee that motions to certify are considered carefully and to effectuate appellate review, the majority of federal courts of appeal urge or require district courts to articulate the reasons for certification. See Compact v. Metro. Gov. of Nashville & Davidson Co., 786 F.2d 227, 230-31 (6th Cir. 1986); Mooney v. Frierdich, 784 F.2d 875 (8th Cir. 1986); Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1415-16 (9th Cir. 1985); Ansam Associates, Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 445-46 (2d Cir. 1985); Pahlavi v. Palandjian, 744 F.2d 902, 904-05 (1st Cir. 1984); Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d at 948-49; Rothenberg v. Security Management Co., Inc., 617 F.2d 1149, 1150 (5th Cir. 1980); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d at 364.
Faced with the clear requirements of K.S.A. 60-254(b) and the strong policy against piecemeal appeals, we will not assume that the court made an express determination that there was no just reason for delay merely because it entered judgment “pursuant to K.S.A. 60-254(b).” The conclusion that there is no just reason to delay entry of final judgment must appear affirmatively in the record, either by a recitation of the statutory language or by a statement of the reasons for the decision to certify. See Mooney v. Frierdich, 784 F.2d 875; Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414. The record fails to disclose that Judge Hebert made an express determination that there was no just reason for delay when he rendered the November 30, 1984, partial summary judgment.
First Agency suggests that the failure of the trial court in the foreclosure action to certify the judgment can be remedied by a nunc pro tunc order. See K.S.A. 60-260(a). We disagree. In Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 125, 542 P.2d 669 (1975), the court explained the purpose and limits of a nunc pro tunc order:
“A nunc pro tunc order may not be made to correct a judicial error involving the merits, or to enlarge the judgment as originally rendered, or to supply a judicial omission, or an affirmative action which should have been, but was not, taken by the court, or to show what the court should have decided, or intended to decide, as distinguished from what it actually did decide. The power of the court is limited to making the journal entry speak the truth by correcting clerical errors arising from oversight or omission and it does not extend beyond such function.”
The absence of an express determination of no just reason for delay in the journal entry was a judicial, not a clerical, omission. The court does not make a K.S.A. 60-254(b) certification until it expresses its finding of no just reason for delay affirmatively in the record. The court may not alter the effective date of a final judgment by certifying it under 60-254(b) in a nunc pro tunc order.
Because the court failed to make an express determination that there was no just reason for delay, the November 30,1984, partial summary judgment for First Agency in the foreclosure action did not become final until February 19, 1985, when the trial court reformed the mortgage and adjudicated the remainder of the action. Pursuant to 60-2202(a), First Agency’s judgment lien on the Great Plains Building attached on November 19, 1984, several months after First National Bank acquired its security interest in the building. The trial court erred by holding that First Agency had priority over First National Bank to the proceeds of the condemnation of the building.
Reversed. | [
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Abbott, C.J.:
This is a direct appeal by Kim Dodd from his conviction of unlawful possession of a firearm, contrary to K.S.A. 21-4204(l)(b). The sentence imposed was enhanced under the Habitual Criminal Act (K.S.A. 1985 Supp. 21-4504).
The defendant contends that the evidence is insufficient to sustain the conviction; that an authorized amendment of the information was not completed, thereby leading to a number of errors; and that the Habitual Criminal Act could not be used to enhance defendant’s sentence for unlawful possession of a firearm.
1. Sufficiency of the Evidence.
In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine, if the essential elements of the charge are sustained. State v. Pink, 236 Kan. 715, 729, 696 P.2d 358 (1985).
The jury had before it photographs of the defendant holding a firearm less than twelve inches in length. There was testimony from a witness, who appears in one of the photographs, that these photographs were taken sometime in April or May of 1985. Other witnesses testified that they had seen the defendant with a gun at various times in 1985. The defendant argues that the gun in the photographs was a starter gun used at track meets and not a firearm within the meaning of K.S.A. 21-4204. The jury had before it the testimony of one witness who said it was a starter gun. The prosecution effectively impeached this witness. A rational jury could reasonably conclude that the weapon was not a starter gun.
The defendant also argues that the State did not prove he “possessed” a firearm within its meaning as defined by case law. The defendant compares his alleged amount of control and management of the firearm with that of the defendant in State v. Neal, 215 Kan. 737, 529 P.2d 114 (1974). He argues that in Neal die defendant had more control over the firearm, and the Kansas Supreme Court reversed Neal’s conviction for unlawful possession and granted him a new trial. What the defense fails to mention is that in Neal, the issue was whether the trial court erred in refusing to submit the defendant’s requested instruction on possession to the jury. 215 Kan. at 738. There, the trial court did not instruct the jury that possession meant more than innocent handling of a firearm. This was essential to the defense. That is the reason the conviction was reversed. In the present case, instruction No. 9 clearly defines possession of a firearm as control of its management and use and not merely the innocent handling thereof. The jury therefore had the option of deciding, after hearing all the evidence, that defendant only innocently handled the gun. The jury chose to find otherwise, and the evidence is ample to support the verdict. The remaining arguments concerning the sufficiency of the evidence are without merit.
2. Amended Information.
The information charged defendant with unlawful possession of a firearm on or about June 26, 1985. The prosecution requested and was granted permission to amend the information to conform to the evidence. Both the prosecution and the trial judge failed to amend the information in writing. The jury was instructed pursuant to the oral amendment. Defendant argues this resulted in the jury being allowed to convict him of an offense for which he had never been charged.
The amendment, even though it was oral, was made on the record. In Cox v. State, 205 Kan. 867, 875, 473 P.2d 106 (1970), the court considered the same problem in the context of double jeopardy and held an oral amendment made on the record to be binding. We therefore hold the failure to file an amended information in writing was not reversible error. See also K.S.A. 1985 Supp. 22-3201(4).
The defendant also argues the trial judge erroneously instructed the jury that it could convict the defendant if he possessed a firearm within a five-year period after his release from imprisonment for a felony. His argument is that the instruction increased the two-year statute of limitations applicable to this crime to a five-year period.
The trial court clearly erred in so instructing the jury. The offense must occur within the two-year statute of limitations applicable in this case. K.S.A. 21-3106(2). Simply put, the defendant could not willfully possess a firearm with a barrel less than 12 inches long within five years of being convicted of, or released from imprisonment for, a felony. Prosecution for a violation of 21-3106(2) must be commenced within two years of the offense.
Not all error is reversible error, and the trial court’s error in instructing the jury that the act must have occurred within a five-year period instead of a two-year period is harmless error.
Defendant was released from prison on November 3, 1983. The defendant was charged on July 18, 1985. The information charged the crime was committed on or before June 26,1985. All the evidence was directed at the time period between November 4, 1983, and June 26, 1985, a period of less than 20 months, which is well within the statute of limitations. Thus, defendant cannot show prejudice by virtue of the erroneous instruction, and the error is harmless.
Defendant also argues that when the district court instructed the jury it could find the defendant guilty if it found the offense had been committed within a five-year period, and it allowed an amendment of the information to that effect, it no longer had jurisdiction over the defendant and was powerless to pronounce judgment on him. In support of this argument, the defendant cites State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966). In Minor, the information charged manslaughter in the fourth degree, but the defendant was convicted of manslaughter in the first degree. The court in that case stated that “a judgment of conviction for manslaughter in the first degree based upon an information which does not charge such offense is void for lack of jurisdiction of the subject matter.” 197 Kan. at 299. Obviously, Minor is distinguishable from the present case in that here the information charged the defendant with unlawful possession of a firearm and the defendant was convicted of unlawful possession of a firearm. Defendant’s argument is without merit.
State v. Ferguson, 221 Kan. 103, 558 P.2d 1092 (1976), is cited by defendant to support the allegation that defendant’s substantial rights were prejudiced because the amendment to the information was not made until after the close of the evidence. In Ferguson, the original information charged commission of the offense on or about July 1, 1974. At trial the State moved to amend the date of the offense to on or about May 21,1974, and on or about June 7, 1974. The defendant requested and was allowed a continuance until the next day. After the close of the evidence, the State’s motion to amend was granted. 221 Kan. at 105. The defendant argued that the amendments changing the dates of the commission of the offense confused the jury. In holding that the amendment was proper, the Court in Ferguson noted:
“The fact the dates were amended to conform with the evidence is not prejudicial. It was not a critical issue. No statute of limitations was involved. Alibi was not a defense to make dates important. Time was not an element of the offense. (State v. Sisson, 217 Kan. 475, 536 P.2d 1369.) This court has approved amending dates in an information where such factors are not critical. (State v. Reed, 214 Kan. 562, 565, 520 P.2d 1314; State v. Osbey, 213 Kan. 564, 569, 517 P.2d 141.) Furthermore, a continuance was granted to defendant when the dates were first amended. There is nothing in the record to support his allegation the jury was confused.” 221 Kan. at 105-106.
Here, defendant concedes that time is not an essential element of unlawful possession of a firearm. See State v. Rasler, 216 Kan. 582, 533 P.2d 1262 (1975). Also, as in State v. Ferguson, alibi was not a defense. The date was not a critical issue and no statute of limitations was involved.
We do not find reversible error.
We have examined defendant’s other arguments concerning the oral amendment and find them to be without merit.
3. Habitual Criminal Act.
Prior to this offense, the defendant had been charged with, and pled guilty to, armed robberies in Montgomery and Labette Counties. He was paroled from prison from those sentences on November 3, 1983.
The information charging the defendant with unlawful possession of a firearm after release for a felony identifies the underlying felony as “armed robbery on 5-17-79.” Since the defendant pled guilty to two armed robberies in Montgomery County on that date, and had previously pled guilty to armed robbery in Labette County on May 7, 1979, it is obvious that none of the three armed robberies occurred on May 17, 1979. At the trial for unlawful possession of a firearm, evidence was introduced as to both the Montgomery and Labette County convictions. Also introduced at trial was evidence that the sentences from both convictions were to be served concurrently, and that defendant was paroled from both on November 3, 1983.
The jury was instructed that defendant was released from imprisonment for aggravated robbery. No dates or case numbers were included in the instructions, so it is unclear which conviction was used for the underlying felony element of the offense.
After the defendant was convicted of unlawful possession of a firearm, the trial judge, over defendant’s objections, enhanced the defendant’s sentence under the Habitual Criminal Act (K.S.A. 1985 Supp. 21-4504) which reads, in pertinent part, as follows:
“(a) If a defendant is convicted of a felony a second time, the punishment for which is confinement in the custody of the secretary of corrections, the trial judge may sentence the defendant as follows, upon motion of the prosecuting attorney:
“(1) The court may fix a minimum sentence of not less than the least nor more than twice the greatest minimum sentence authorized by K.S.A. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and
“(2) the court may fix a maximum sentence of not less than the least nor more than twice the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.
“(d) The provisions of this section shall not be applicable to:
“(1) Any person convicted of a felony of which a prior conviction of a felony is a necessary element.” (Emphasis supplied.)
The trial judge’s reasoning was that only one conviction was used as an element in this case and the State could rely on the other conviction to enhance the sentence under the Habitual Criminal Act.
Defendant argues that the State relied on both the Montgomery and Labette County felony convictions to prove a necessary element of the firearm offense. We do not believe it matters how the crime was charged or whether the State relied on one or both charges. The issue is legislative intent in adopting 21-4504(d), coupled with the cardinal rule of construction that a criminal statute should put a reasonable person on notice of prohibited conduct when construed most strongly against the State.
The defendant relies on State v. Porter, 201 Kan. 778, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108 (1969), and State v. Ware, 201 Kan. 563, 442 P.2d 9 (1968), for the proposition that a previous felony conviction, which was relied upon as a necessary element of the firearm offense, may not be used to invoke the Habitual Criminal Act. We do not deem Porter and Ware as controlling the issue before us. In Porter, two prior convictions were utilized to sentence the defendant as a “‘three time loser’” under the Habitual Criminal Act. 201 Kan. at 779. Porter is distinguishable from the present case, in that here the prosecution is utilizing the two prior convictions in a different way. Instead of using them to convict defendant as a “three time loser,” the prosecution is using one prior felony as an element of the offense, and one to invoke the Habitual Criminal statute to double, not triple, defendant’s sentence. And in Ware only one prior felony conviction was involved, not two as in the present case. 201 Kan. at 565. Porter and Ware were decided under the predecessors of the present firearm statute and the present Habitual Criminal Act.
The Kansas Supreme Court has commented on this issue and we believe that language to be dispositive. In State v. Turbe ville, 235 Kan. 993, 1005, 686 P.2d 138 (1984), the Supreme Court said:
“The language of this provision is clear and unambiguous. It provides only that a conviction of a felony, i.e., unlawful possession of a firearm, may not be enhanced where evidence of a prior conviction is a necessary element of that conviction.”
The language quoted is dicta because Turbe ville’s sentence for unlawful possession of a firearm was not enhanced. The Supreme Court specifically noted the unlawful possession sentence was not enhanced because of 21-4504(d).
We thus conclude the trial court erred in enhancing the defendant’s sentence under the Habitual Criminal Act.
The conviction is affirmed and the enhanced portion of the sentence is vacated. | [
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Davis, J.:
The defendant, Laura Brown, appeals from a jury conviction in the Franklin County District Court for driving with an alcohol concentration of .10 or more in violation of the Municipal Code of the City of Ottawa 13-102(b) (1986) (referred' to by the parties as Ottawa Municipal Ordinance No. 30).
The parties have submitted the following agreed-upon statement of facts pursuant to Supreme Court Rule 3.05 (235 Kan. lxiv):
“The defendant, on January 6, 1986, was operating a 1969 Chevrolet 4-door sedan in the City of Ottawa. She was stopped by an Ottawa public safety officer for disobeying a traffic signal. The public safety officer noticed an odor of unknown alcohol beverage about the subject and requested that the defendant perform field sobriety tests. Based upon the performance on the field sobriety test and the driving that the officer observed, he placed the defendant under arrest for driving under the influence of alcohol. The police officer read the defendant both her rights under Miranda and the implied consent advisory form. The defendant consented to and took a breath test which was properly administered by the Ottawa public safety officer. The test results showed a .14 blood alcohol content. The defendant requested a blood test and the Ottawa public safety officer transported the defendant to a hospital where she took a blood test. The test result at the hospital showed a .12 blood alcohol content. All blood alcohol tests were administered within two hours of defendant’s last operation of her vehicle.
“At the trial, the City of Ottawa called Marion Cowan and Dr. S. N. Bishara. Cowan and Bishara were qualified in the field of analytical chemistry. Both testified to the fact that the defendant’s blood and breath test results were in number of grams of alcohol per 100 milliliters of blood. Mr. Cowan explained that the breath test actually converts the test results from a breath alcohol reading to a blood alcohol reading. Therefore, it was proper to talk about hundred milliliters of blood rather than 210 liters of breath.
“The defendant was charged with violating Section 30 Subsection [l][i] of the Ottawa Municipal Ordinance which provides: ‘Driving under the influence of intoxicating liquor or drugs; penalties. [1] No person shall operate or attempt to operate any vehicle within this city while: [i] The alcohol concentration in the person’s blood or breath, at the time or within two hours after the person operated or attempted to operate the-vehicle, is .10 or more; . . .’The defendant filed a motion prior to trial to declare the Ottawa Municipal Ordinance Number 30 unconstitutional and being void for vagueness. The trial court heard the motion prior to trial. The trial court ruled that it had a duty to construe a statute so that it conforms with the constitution if at all possible. The trial court found that K.S.A. 8-1005 applies to prosecution in Municipal cases and that Subsection (b) of that statute provided an adequate definition for the term ‘alcohol concentration’ which is used in the Ottawa Municipal Ordinance Number 30. The trial court instructed the jury at trial:
“ ‘The ordinance of the City of Ottawa makes it unlawful for a person to operate or attempt to operate any vehicle within the City while the alcohol concentration in the defendant’s blood or breath at the time or within two hours after he or she operated or attempted to operate the vehicle was .1 or more. The defendant is charged in Count I of the complaint with violating this ordinance. The defendant pleads not guilty.
“ ‘To establish this charge, each of the following claims must be proved: (1) That the defendant drove or attempted to drive a vehicle; (2) That the defendant, while driving or within two hours after she operated or attempted to operate the vehicle had an alcohol concentration in her blood or breath of .1 ormore; (3) That this act occurred on or about the 6th day of January, 1986, in the City of Ottawa, Kansas. As used in this instruction, the phrase “alcohol concentration” means the number of grams of alcohol per 100 milliliters of blood or 210 liters of breath.’ ”
“The jury found the defendant guilty of operating a vehicle in the City of Ottawa while her alcohol concentration was .1 or more or [was .1 or more] within two hours of driving.”
The sole issue on appeal is whether Ottawa Municipal Ordinance No. 30 is unconstitutionally vague because it fails to define “alcohol concentration." Defendant raised other issues during oral argument. We, however, do not address these issues because she did not present them to the trial court. State v. Hunt, 8 Kan. App. 2d 162, 167, 651 P.2d 967 (1982).
The trial court instructed the jury to use the definition of “alcohol concentration” in K.S.A. 1985 Supp. 8-1005(b). Defendant argues that by instructing the jury to use the statutory definition of “alcohol concentration,” the court violated the principle that criminal laws should be construed strictly in favor of the defendant.
When a defendant attacks the constitutionality of a statute, we presume that the statute is constitutional and resolve all doubts in favor of its validity. Our duty is to uphold the statute, if possible, and to do so we will adopt any reasonable construction consistent with the purpose and intent of the enacting body. State v. Kee, 238 Kan. 342, 351, 711 P.2d 746 (1985) (citing State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 [1985]). The rule that a penal statute must be construed strictly in favor of the defendant simply means that ordinary words are to be given their ordinary meanings. We will not add to or take from the ordinary meanings of the words used in the statute. State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984) (citing State v. Martin, 232 Kan. 778, 781, 658 P.2d 1024 [1983]).
In State v. Kee, 238 Kan. 342, the court set forth the following standard for determining if a criminal statute is unconstitutionally vague:
“ ‘The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.’ State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).” 238 Kan. at 351-52 (quoting State ex rel. Murray v. Palmgren, 231 Kan. 524, 532, 646 P.2d 1091 [1982]).
Defendant was convicted under subsection (1)(i) of Ottawa Municipal Ordinance No. 30:
“Section 30. Driving under the influence of intoxicating liquor or drugs; penalties.
“(1) No person shall operate or attempt to operate any vehicle within this city while:
“(i) The alcohol concentration in the person’s blood or breath, at the time or within two hours after the person operated or attempted to operate the vehicle, is .10 or more;
“(ii) under the influence of alcohol.” (Emphasis added.)
Ordinance No. 30, an amended version of section 30 of the “Standard Traffic Ordinance for Kansas Cities,” published by the League of Kansas Municipalities in 1985, is virtually, as defendant puts it, a “carbon copy” of K.S.A. 1985 Supp. 8-1567. K.S.A. 1985 Supp. 8-1005(b) supplies the definition for “alcohol concentration” in K.S.A. 1985 Supp. 8-1567, providing that “[f]or the purpose of this act, ‘alcohol concentration’ means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.” See L. 1985, ch. 48, secs. 7, 9. Defendant agrees that the definition of “alcohol concentration” in K.S.A. 1985 Supp. 8-1005(b) is adequate.
Tested by the standard enunciated in State v. Kee, Ordinance No. 30 is not unconstitutionally vague. A person of common intelligence could not doubt that the definition of “alcohol concentration” in K.S.A. 1985 Supp. 8-1005(b) applies to the ordinance.
Our conclusion that the definition of “alcohol concentration” in K.S.A. 1985 Supp. 8-1005(b) applies to Ordinance No. 30 does not rest solely on the similarities between the ordinance and K.S.A. 1985 Supp. 8-1567. K.S.A. 1985 Supp. 8-1005(a) effectively imposes the definition of “alcohol concentration” in 8-1005(b) on municipal ordinances that outlaw driving under the influence and removes any reasonable doubt that the definition of “alcohol concentration” in 8-1567 and in Ordinance No. 30 are one and the same:
“8-1005. [Tests for alcohol or drugs]; results admissible in prosecutions; weight to be given evidence; ‘alcohol concentration’ defined, (a) In any criminal prosecution for violation of the laws of this state relating to operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, or the commission of vehicular homicide or manslaughter while under the influence of alcohol or drugs, or both, or in any prosecution for a violation of a city ordinance relating to the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, evidence of the concentration of alcohol or drugs in the defendant’s blood, urine, breath or other bodily substance may be admitted and shall give rise to the following:
“(1) If the alcohol concentration is less than .10, that fact may be considered with other competent evidence to determine if the defendant was under the influence of alcohol, or both alcohol and drugs.
“(2) If the alcohol concentration is .10 or more, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely.
“(b) For the purpose of this act, ‘alcohol concentration’ means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.” (Emphasis added.)
Had defendant been charged with driving under the influence of alcohol in violation of subsection (1) (ii) of Ordinance No. 30, K.S.A. 1985 Supp. 8-1005(a) would have required that the court consider her “alcohol concentration,” as defined by K.S.A. 1985 Supp. 8-1005(b), as prima facie evidence that she committed the offense. The argument that the definition of “alcohol concentration” in 8-1005(b) applies to a charge for driving under the influence brought under subpart (ii) of subsection (1) of Ordinance No. 30, but not to a charge for driving with an alcohol concentration of .10 or more brought under subpart (i) of the same subsection, defies common sense. Both subparts prohibit alcohol-related offenses involving motor vehicles.
When measured by common understanding and practice, the Ottawa ordinance conveys a sufficiently definite warning about the conduct proscribed to withstand constitutional challenge. The trial court did not err by instructing the jury to use the definition of “alcohol concentration” in K.S.A. 1985 Supp. 8-1005(b).
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Meyer, J.:
Defendant appeals the district court’s award of $3,460.00 in damages to plaintiff in her action against defendant arising out of a contract to repair plaintiffs basement. After defendant furnished its initial work, plaintiff s basement continued to leak, despite defendant’s frequent efforts to repair it.
Plaintiff filed suit against defendant under the Limited Actions procedure, seeking damages in the amount of $5,000.00. She based her cause of action on the theories of fraud, breach of express and implied warranties, and violation of the Consumer Protection Act.
Defendant asserts the trial court erred in allowing plaintiff to recover on all the theories. We agree that the court erred in concluding that she could recover on her fraud and implied warranty claims. Further, plaintiff s counsel stated at oral argument that plaintiff had abandoned her express warranty theory, and sought recovery only under the provisions of the Kansas Consumer Protection Act. Consequently, this cause of action is the only one we will address herein.
The defendant contends the trial court erred in allowing the plaintiff to recover under the provisions of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., because the action is barred by the statute of limitations. We disagree.
K.S.A. 60-512(2) provides:
“The following actions shall be brought within three (3) years: . . . An action upon a liability created by a statute other than a penalty or forfeiture.”
The appropriate inquiry to determine whether a liability is created by a statute (thus making K.S.A. 60-512[2] applicable) is whether liability for resultant damages would not arise but for the statute. Pecenka v. Alquest, 6 Kan. App. 2d 26, 28, 626 P.2d 802, cert. denied 229 Kan. 670 (1981). We conclude that the liability imposed by the KCPA fits in this category.
The KCPA gives consumers a private right of action against suppliers who commit deceptive and unconscionable practices. K.S.A. 50-623(b); K.S.A. 50-634(b). Although the actions upon which a consumer may establish liability under the KCPA sound largely in fraud, see K.S.A. 50-626, a critical element of a common-law fraud action, the intent to defraud, need not be proven. Willman v. Ewen, 230 Kan. 262, 267, 634 P.2d 1061 (1981) (“there may be liability even though the deception or unconscionable practice was performed innocently and without the intent to injure the consumer”); Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d 131, 133, 561 P.2d 907 (1977). Further, it has been written:
“In determining the elements of proof required in a damage suit under the [KCPA,] proof of the ‘deceptive trade practice’ proscribed by the Act does not require proof of all the elements of a common law fraud.” Note, A New Kansas Approach to an Old Fraud, 14 Washburn L.J. 623, 635 (1975).
We hold that because a supplier’s liability to a consumer is created by the provisions of the Kansas Consumer Protection Act, the three-year statute of limitations for an action upon a liability created by statute, K.S.A. 60-512(2), applies to suits brought under the Act. That statute’s three-year limitation has been clearly met in this case. The defendant completed its work in September of 1981 and plaintiff filed suit in February of 1984, within three years of the act giving rise to injury. We hold that plaintiff s petition was timely filed.
However, defendant contends that either the two-year statute of limitations in K.S.A. 60-513(3) or the one-year statute of limitations in K.S.A. 60-514(3) bars plaintiffs action under the KCPA. We disagree.
K.S.A. 60-513(3) is the two-year statute of limitations which applies to fraud actions. Defendant asserts that because an action under the KCPA is, in fact, an action based on fraud, the provisions of that statute should apply to bar plaintiffs action. As stated and cited above, and as supported by other Kansas authority, a plaintiff pursuing a cause of action under the KCPA may establish a supplier’s liability without proof that the supplier intended to injure the consumer. This difference clearly distinguishes the KCPA action from the common-law fraud action. A violation of the KCPA is not the same as a common-law action for fraud such as is contemplated by the provisions of K.S.A. 60-513(3). Therefore, the defendant’s argument that K.S.A. 60-513(3) bars plaintiff s action is not persuasive.
Defendant argues in the alternative that the one-year statute of limitations found in K.S.A. 60-514(3) bars plaintiffs action. That statute states:
“The following actions shall be brought within one (1) year. . . . An action upon statutory penalty or forfeiture.”
The defendant contends that because a violation of the KCPA may give rise to a statutory penalty (see 50-634[b]), K.S.A. 60-514(3) is the appropriate statute of limitations. We disagree.
Defendant’s argument is specifically addressed in Holley v. Coggin Pontiac, 43 N.C. App. 229, 259 S.E.2d 1, cert. denied 298 N.C. 806 (1979). Although the case is from a different jurisdiction, we believe its legal analysis is relevant to the issue. The most enlightening aspect of the opinion is the court’s emphasis on the nature of the right which has been injured and not the remedy therefor. Holley, 43 N.C. App. at 241. According to the court, “to let the limitations be determined by the remedy would be to have the tail wag the dog.” We conclude the North Carolina court properly stated the focus of the issue presented to this panel.
The nature of plaintiff s action was to recover upon a liability created by statute and not upon a statutory penalty. She sought to bring defendant within the scope of the KCPA and establish its liability thereunder rather than to recover upon a statutory penalty.
Additionally, the Holley court noted that “where there is doubt as to which statute of limitations should apply, the longer statute should be chosen.” Holley, 43 N.C. App. at 240-41. This statement is a general rule of construction applied to statutes of limitations and, while not stated specifically in Kansas cases, finds support in other jurisdictions. See San Manuel Copper Corporation v. Redmond, 8 Ariz. App. 214, 218, 445 P.2d 162 (1968); Jefferson v. Nero, 225 Ark. 302, 306, 280 S.W.2d 884 (1955); Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970); Sprecher v. Magstadt, 213 N.W.2d 881, 883 (N.D. 1973); Shew v. Coon Bay Loafers, Inc., 76 Wash. 2d 40, 51, 445 P.2d 359 (1969).
Further, we believe that applying the three-year statute of limitations promotes the policy of the KCPA, which is designed in part to protect consumers from suppliers who commit deceptive practices. K.S.A. 50-623(b). Many deceptive practices could go undiscovered for over a year, thus preventing consumers from protecting their statutory rights.
Finally, our conclusion that the three-year statute applies is in accordance with the general rule of statutory construction that statutes should be interpreted so as to give them their ordinary meaning. See, e.g., Phillips v. Vieux, 210 Kan. 612, 617, 504 P.2d 196 (1972). It is clear that, under the terms of K.S.A. 60-512(2), an action under the KCPA is an action upon a liability created by statute. There is no corresponding action in the common law. Therefore, based upon the plain meaning of K.S.A. 60-512(2), we conclude that it is the appropriate statute governing actions under the KCPA.
Defendant contends the trial court’s findings relating to the defendant’s liability under the KCPA are not supported by substantial competent evidence. We disagree.
The trial court made the following conclusions relating to the defendant’s alleged violation of the KCPA:
“Defendant has committed unfair and/or deceptive acts in violation of K.S.A. 50-626(b)(l)(A) and K.S.A. 50-626(b)(2). Defendant represented to plaintiff its services had benefits or qualities that they do not have. Defendant intentionally used exaggeration as to a material fact.”
“Defendant has committed unconscionable acts and practices in violation of K.S.A. 50-627 by its demand, within the 3 year warranty period, of a $487.00 payment from plaintiff for labor and material to stop the seepage.”
The scope of appellate review when the trial court has been the factfinder is discussed in Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d at 134:
“ ‘Upon appellate review this court accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Where findings are attacked for insufficiency of evidence, or as being contrary to the evidence, this court’s power begins and ends with determining whether there is evidence to support such findings. Where the findings are so supported, they will not be disturbed on appeal. It is of no consequence there may have been contrary evidence adduced which, if believed, would have supported different findings.’ ”
Upon review of the record, we conclude that the trial court’s finding that the defendant represented that its services had benefits or qualities the services in fact did not have is supported by substantial competent evidence. Plaintiff testified that defendant’s agent told her that defendant could fix the problem and that plaintiff would have a dry basement. Such was not the case. Plaintiff s basement leaks water to this day.
Likewise, the trial court’s conclusion that defendant intentionally used exaggeration as to a material fact is supported by the evidence. Defendant told plaintiff that it guarantees its work for three years, and that it fixes any additional seepage problem at no additional charge. Again, such a statement was not true in this case. Defendant told plaintiff that, in order to fix her problem, she would have to pay an additional $487.00, in excess of the contract price, to install a sump pump system to remedy the problem. The defendant initially told her that (1) it could fix the problem and (2) she would not be charged additional monies if the basement leaked. We believe the trial court’s conclusion is supported by substantial competent evidence.
Because we conclude that substantial evidence supports the trial court’s finding of unfair and/or deceptive acts in violation of K.S.A. 50-626, we do not deem it necessary to analyze whether defendant’s acts were “unconscionable” under K.S.A. 50-627(b).
The defendant contends that the trial court’s award of $3,460.00 in damages is not supported by substantial competent evidence. Although the trial court miscalculated the damages, we conclude the miscalculation was favorable to defendant and that award cannot be reduced.
The determination of the amount of damages is a factual issue, and the trial court’s calculation will be upheld if supported by substantial competent evidence. In order for the evidence to be sufficient to warrant a recovery of damages, there must be some reasonable basis for computation which will enable the fact-finder to arrive at an approximate estimate thereof. Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974).
The plaintiff s testimony established that she suffered damages of at least $3,746.00, as follows:
Contract with defendant............................. $2,250.00
Miscellaneous damages: dehumidifier $259; loveseat $100;
damage to ceiling $600; 2 chairs $50 ................... 1,009.00
Sump pump needed................................ 487.00
$3,746.00
There was also testimony that another contractor would charge her $3,419.00 to waterproof her basement, and this, plus the $1,009.00 of miscellaneous damages shown above, totals $4,428.00. As can be seen, each of these damage computations exceeds the $3,460.00 awarded to plaintiff by the trial court. We thus disagree with defendant’s contention that there was insufficient evidence to support the judgment of the trial court. Under the evidence, plaintiff was entitled to a dry basement, and therefore to the $3,419.00. See, e.g., Mahoney, Inc. v. Galokee Corporation, 214 Kan. 754, 756, 522 P.2d 428 (1974). Further, under the provisions of the KCPA, plaintiff may recover her actual damages, and she was entitled, in addition, to the $1,009.00 miscellaneous damages. On appeal, plaintiff does not assert that she was entitled to increased damages. There being ample evidence to support the findings of the trial court, its determination of damages cannot be disturbed.
Defendant contends the trial court erred in failing to sustain its motion to alter or amend the judgment. We are not persuaded. Because the trial court did not err in its original judgment, it did not err in failing to sustain defendant’s motion.
Affirmed. | [
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Opinion by
Holt, C.:
The plaintiff in error complains, first, that the court was not authorized to make certain findings of fact under the pleadings in the case which were made; and second, that the findings of fact were not sufficient to authorize the conclusions of law and the judgment of the court. The question to be decided in this case is, whether the writing-signed by Henry Ricket and John Hazleton, called an article of agreement, is in reality a contract, or an instrument testamentary in its character. If it is a contract so far as it relates to the land in dispute, then the judgment of the court below is correct, and should be affirmed; if it is testamentary, it should be revérsed. We have not been able without difficulty to determine the nature of this written instrument. It was evidently prepared by some one not accustomed to drawing written instruments, and unacquainted with the usual legal terms. We have not been able to find an instrument like this in all the numerous authorities cited by the parties, and such authorities have been of little service to us, except as they contain the general rules that mark the distinction between contracts and papers testamentary, and we have found it much more difficult to apply the rules of law to this article of agreement than to ascertain what the true rules are.
There are two parts to the instrument which we are now considering: one concerning the disposition of his personal property by Henry Ricket, which we are not called to pass upon, directly at least; the other having reference to his real estate, the title and possession of which is the subject of this controversy. The first part of this instrument is a contract between Eicket and Hazleton; but from that alone it does not follow that the second part is a contract also. One provision of an instrument in writing may be a contract and another, concerning different property, testamentary. (Kinnebrew v. Kinnebrew, 35 Ala. 628.) We shall not discuss the alleged error that the findings of fact are not within the issues of this case; if they are, they would not alter the construction which we believe ought to be placed upon this instrument; but we will say in passing to the main question to be decided in this action, that the fourth finding is probably within the objection made by the plaintiff. The rule established by the authorities, and applicable to this case, is substantially this: If an instrument of writing passes a present interest in real estate, although the right to its possession and enjoyment may not accrue until some future time, it is a deed or contract; but if the instrument does not pass an interest or right until the death of the maker, it is a will, or testamentary paper. (Sperber v. Balster, 66 Ga. 317; Turner v. Scott, 51 Pa. St. 126; Burlington University v. Barrett, Ex'r, 22 Iowa, 60; 19 Cent. L. J. 46.) We shall accept this as the correct rule, and apply it to this instrument. Did Eicket by this instrument give, or intend to give, to Hazleton, a present interest in this land ? Let us examine. The first provision therein contained is that Eickett shall retain full and peaceful possession of the premises during his lifetime, and the last thing said of the land is, that after his death the title .thereof shall vest in Hazleton. These two clauses embrace all that is stated directly about the title and possession of this land. It is provided, however, that Hazleton shall have his home with Eicket. Where? We might possibly, perhaps fairly, infer upon these premises, though it would be but an inference, and that should not control the provisions which are plainly written.. Before his death Eicket left this tract; would Hazleton, under the terms of this instrument, have been compelled to go too, in order to keep his home with Eicket ? It will •be noticed that it was not Ricket that was to live with Hazleton, but Hazleton who was to have his home with Ricket. This instrument, as we have suggested,, may have been inartistically drawn so far as legal forms are concerned, but when .it has reference to the possession of this land during the lifetime of Ricket, its language is strong and explicit. He was to retain — to hold, not to lose — full, i. e., complete, entire— and peaceable possession. There is no joint possession, sharing it with another, nor was it to be divided, but entire. We cannot therefore believe that that part of this instrument which provides that Hazleton should have his home with Ricket gave him any right of possession in this land against Ricket, when it is construed with the unambiguous statement that Ricket-should have full and peaceable possession.
Under the view which we take of this instrument, it will be unnecessary to examine the nature of a contract of bargain and sale and a covenant to stand seized to the use of th'e grantee, which are discussed in the briefs filed in this action. We believe that it ought not to be placed in either of those classes of conveyances. We fail to find in the instrument the ordinary words employed in a conveyance, “give, grant, bargain, and sell,” nor are there other words of like signification which would establish an intention to convey a present estate. In a word, this article of agreement does not contain any of the usual operative words of a conveyance, with the possible exception of this clause: “After the death of the said Henry Ricket of the first party, the right and title of the land in question shall vest in the said John Hazleton of the second party.” That provision had no present operation, and could be revoked by the grantor at any time. It was testamentary. (McKinney v. Settles, 31 Mo. 541: Tiedeman on Real Property, 803.)
By this instrument the possession of the personal property was given to Hazleton, while Ricket retained possession of the real estate. When the provisions are so explicit in reference to Hazleton’s possession of the personal property, we cannot believe that the failure to make any reference to the right of Hazleton to possession of the real estate in this instrument of writing, was unintentional. The old man wisely kept possession and control of his home, to prepare for the possible change in the feelings of himself and Hazleton. Hazleton was not without recourse if he had performed services for Avhich he had not been paid. He could have presented his claim against the estate, and the courts Avere open to aid him in obtaining his dues.
• It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by the Marion & McPherson Railway Company against the treasurer of McPherson county, the sheriff and board of commissioners of that county, and also against the townships of Canton, Empire, McPherson, Jackson, and Castle, of that county, to enjoin the collection of certain township road taxes levied in 1884, under the authority of the eighth subdivision of § 22, chapter 110, Comp. Laws of 1879. This subdivision reads:
“Eighth. [The township trustee] shall superintend all the pecuniary concerns of his township, and shall, at the July session of the board of county commissioners, annually, with the advice and concurrence of said board, levy a tax on the property of the citizens of said township, for township, road and other purposes, and report the same to the county clerk, who shall enter the same on the proper tax-roll, in a separate column or columns, and the treasurer shall collect the same as other taxes are collected; but in a failure of such trustee and commissioners to concur, then the board of county commissioners shall levy such township, road and other taxes.”
The contention is, that as subdivision 8 of § 22 provides for the levying of taxes upon the property of citizens only, the provisions are in conflict with that part of §1, article 11, of the constitution of the state, which ordains that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” Under the provisions of the statute the property in a township owned by non-residents and all persons or corporations not citizens is exempt from the taxes levied for township, road and other purposes. These taxes cannot be regarded as license, or occupation, or other than property taxes levied upon property owned by citizens only. (City of Leavenworth v. Booth, 15 Kas. 628; Fretwell v. City of Troy, 18 id. 271; City of Newton v. Atchison, 31 id. 151; In re Dassler, 35 id. 678.) If a state tax is levied upon property, it must be> uniform over all the state. If a county, town or city tax is levied upon property, it must be uniform throughout the extent of the territory to which it is applicable. It must also be extended to all property subject to taxation, so that all the property may be taxed equally. This is taxation by a uniform rule. We do not think that the taxes provided for in said subdivision 8 can be imposed upon the citizens of a township only. The taxes provided for should be levied upon all the property of a township, to comply with the constitution of the state. We are of the opinion, therefore, that the provisions of said subdivision 8, authorizing a levy of the taxes therein named on the property of citizens only, is unconstitutional; and that the taxes levied cannot be collected. (Hines v. City of Leavenworth, 3 Kas. 200; Graham v. Comm’rs of Chautauqua Co., 31 id. 473.)
In 1885, subdivision 8 of said § 22 was amended so as to omit the word “citizen,” and to permit the taxes therein named to be levied upon all the property in a township. (Laws of 1885, ch. 194.)
Our attention is called to § 38, ch. 34, Laws of 1876; and it is claimed that the taxes complained of were properly levied thereunder. This section makes no provision for the township trustee and board of county commissioners to levy township taxes, but merely provides that when the county clerk shall have received the return of railroad assessment from the auditor of state, he must certify to the proper officer of the different school districts, cities and townships of his county, in or through which any portion of the railroad is located, the amount of assessment that is to be placed on the tax-roll for the benefit of such school district, city, or township; and must at the proper time place such assessment on the tax-roll of his county, subject to the same per cent, of levy for different purposes as on other property. In these provisions there is no warrant for the county clerk to levy any taxes. After taxes are properly levied, the county clerk extends the same upon the tax-rolls. Section 38 of chapter 34, Laws of 1876, did not amend or repeal § 22, chapter 110, Comp. Laws of 1879.
The judgment of the district court will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was brought by Bierer and Downer against Fretz. At the September term, 1885, a trial was had, and a judgment rendered for the defendant. Plaintiffs bring the case here for review.
The defendant Fretz, in his answer, sets forth as a defense to plaintiffs’ cause of action that the same matter had once before been adjudicated and decided in an action wherein Fretz was plaintiff, and Bierer and Downer were defendants. All the evidence introduced in this case was on that issue; and the only question we are called upon to consider is, whether the subject-matter of this action has once before been passed upon. In the action referred to in defendant’s answer, Fretz, the defendant now, the plaintiff then, obtained a judgment against the plaintiffs in this action. Bierer and Downer carried the same to the supreme court. (Bierer v. Fretz, 32 Kas. 329.) The facts detailed in that opinion will more fully explain the circumstances under which this action was brought.
In the first action Bierer and Downer set forth in their answer about all the facts set forth in their petition in this action, although not with the same fullness and amplitude. During the progress of the former trial they obtained leave of the court to withdraw their counterclaim. Whatever is meant by counterclaim in this connection, we can judge best by the record, from which it appears that they withdrew their prayer for affirmative relief, but that the statement of facts was left in their answer as a defense to' the claim set forth in the plaintiff’s petition, exactly the same as it was when they asked for a judgment thereon in their favor for $1,000.
The plaintiffs offer as evidence all the testimony introduced in the former case. They also complain of some of the rulings in that action; or, as the plaintiffs state in their brief, in substance, that, notwithstanding there were allegations of-fraud and misrepresentations used and practiced on the part of Fretz,. in the answer of these plaintiffs (then defendants in the former action), which were similar to the allegations of fraud and misrepresentations set up by the plaintiffs in the petition in the present case, yet the real issues raised by the petition in this case and the first count of the answer, a general denial, were not then tried. Then, in their brief, they say:
“When the counterclaim of defendants in the original case was withdrawn by consent of the court, it was intended by defendants’ counsel, and was so asked of the court, that all the matter and allegations in said answer charging fraud and misrepresentations upon Eretz should be eliminated and withdrawn from said answer. But while the court permitted the bare counterclaim of $1,000 to be withdrawn, it refused to let defendants withdraw and eliminate from their answer the statements and charges of fraud and misrepresentation upon which their counterclaim was based. And then afterward, upon trial, the court did the defendants the great injustice of refusing to permit them to introduce in their defense any evidence of the fraud and misrepresentations charged, excepting some small fractions of such testimony which were incidentally brought out in relation to the other issues in the case.”
And further, they state:
“ It certainly comes with an ill grace for the same court in the present action to refuse plaintiffs a hearing and ‘ their day in court,’ because, forsooth, the charges of fraud, artifice and misrepresentation in their petition in the present case are substantially the same as those contained in their answer in the former action.”
We presume it will be conceded, that when a fact has once been determined in the course of judicial proceedings and a final judgment has been rendered in accordance therewith, from motives of public policy it ought not and cannot be litigated again between the same parties. . “ It is a rule of law that a man shall not be twice vexed for one and the same cause.” This rule has been so long established, and is so salutary in its results, and the reasons therefor are so generally and thoroughly understood, that it needs no comment or explanation here.
Was the cause the same in the former action between these parties, as the one we are now considering ? Let us examine the matter from the statements of plaintiffs’ brief, which states the matter as strongly in their favor as the record justifies them in doing. The plaintiffs in this action, defendants in the former one, at their own request withdrew their prayer for affirmative relief, in the nature of a counterclaim, and asked to amend their answer, and make the allegation of fraud' more specific and certain. The court refused to allow them to make the amendments asked. The defendants then stood upon their defense as set forth in their answer, but the court refused to allow testimony to be introduced on the allegation of fraud, except as it was relevant to the other issues in the case. The statement of facts remained in the answer in the former case substantially the same as the statement in the petition in the action we are now considering, and all the questions in the issues in this case were necessarily within the issues in the former case, whether formally litigated or not, and the determination of which was of necessity included in that judgment. In that action, if the answer had been true, there could have been no recovery on the part of Fretz, and the defendants would haye recovered a judgment for their costs, at least. / We do not see how the same facts can be held to be worthless as a defense and good as a counterclaim, in a cause of action between the .same parties, arising out of the same transaction./ A party cannot split up his defenses and present them by piecemeal in successive suits arising out of the same transaction, nor can he relitigate matters which he might have interposed, but failed to do, in a prior action between the same parties about the same subject-matter; and this rule holds true whether the matter that might have been litigated in the former trial would have been therein a ground of action or a defense to the action then pending. A judgment for Fretz in the former action disposed of not only the defenses supported by evidence, but all others that were tried or ought to have been tried, and swept them all away, and that too for the purposes of all subsequent actions which might have been founded upon the same transaction.
The plaintiffs in error seem to rely upon what the court said in the action of Bierer v. Fretz, 32 Kas. 333, 334. Mr. Justice Valentine, speaking for the court, says:
“The plaintiffs in error, defendants below, make the further points, that this instrument is void for various uncertainties and obscurities in its terms; that it does not contain the entire contract between the parties; that other and additional matters were agreed to between the parties; and that its execution was procured by fraud of Fretz and others.”
Then, after citing some evidence that might be held to sustain the points claimed, he says further:
“We do not think that these matters will render the written contract between Fretz and Bierer and Downer void. They are no part of the written contract; they do not show such fraud in its inception as to render it void; and if they form a separate and independent contract, or if in any manner they may be considered as constituting the basis or foundation for a cause of action, Bierer and Downer may set them forth in some other action.”
The petition filed in this action, though lengthy and elabo-^ rate, does not set forth a contract separate and distinct from the one pleaded in the former action; but, on the other hand, it does set forth the same transaction, the same written contract, the other and additional matters agreed to between the, parties, and the same allegations of fraud. The plaintiffs complain of the ruling of the court, in the former action, in excluding evidence tending to establish fraud. It is not our province to examine this objection. The judgment in the former trial has been complained of heretofore in this court, and on review it was held to be correct, necessarily including the rulings upon the exclusion of testimony. We presume, however, that plaintiffs urge such ruling upon the attention of this court for the purpose of showing that the question of fraud was not tried in the former case. If it were not for the answer of defendants in that action, it is possible that the claim of plaintiffs might have some force, though the record would not of itself necessarily establish it; but under the petition of the plaintiffs in this action, and their answer in the former one, they have no ground to complain of the judgment of the trial court. They show conclusively that the same cause of action, arising out of the same transaction, between the same parties, was attempted to be relitigated. The court held the former judgment a bar. That is correct.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: On March 25,1882, J. M. Frederick and wife executed and delivered to Skelton Birkett a bond for a deed of three hundred and fifty-one acres of land in Greenwood county, in this state; the bond was of the penal sum of eight thousand five hundred dollars, and was conditioned that Frederick and wife should execute and deliver to Birkett, on or before March 1, 1883, “a good and sufficient warranty deed, conveying an absolute and indefeasible estate in fee simple, with the usual covenants, in and to said tract and parcel of land.” The consideration expressed in the bond was fifteen hundred dollars in cash, to be paid upon its execution, and eight thousand five hundred dollars to be paid on March 1,1883. By the agreement of the parties, the deed was to be deposited in the Eureka Bank, at Eureka, in this state, to be delivered to Birkett upon his payment of the remainder of the purchase-money. In February, 1883, Frederick and wife executed a warranty deed for the conveyance of the premises to Birkett, and deposited the same in the Eureka Bank, together with the note of Birkett for the remainder of the purchase-money, with instructions to deliver the deed upon the payment of the note. On March 5,1883, Birkett and his attorney met Frederick and his attorney, and there was some talk between them about the residue of the purchase-money. At this time Frederick offered to accept the money and deliver the deed he had executed. Birkett refused to do this, claiming that the deed was not good, and that Frederick did not have a good title.
Subsequently, Birkett brought his action in the district court of Greenwood county to recover fifteen hundred dollars as damages, with interest thereon at seven per cent, from March 25, 1882; and alleged in his petition that at the execution of the written bond the defendants did not have an absolute and indefeasible estate in fee simple to the lands therein described, and that they had not since that time acquired such estate and title.
Trial was had before the court with a jury, which resulted in a judgment in favor of Birkett for the sum of $1,500, with interest and costs. Complaint is made of the rendition of this judgment. Upon the trial it was shown on the part of Birkett that, after the execution of the bond, taxes to the amount of about seventy dollars had been levied upon the premises. These taxes were alleged to be an incumbrance upon the land, and therefore that Birkett was not required to accept the conveyance tendered him. The court instructed the jury as follows:
“Taxes assessed against real estate for any year become a lien on said real estate on the first day of November of that year. If one-half of the taxes due and payable in any year are paid on or before December 20 of that year, then the other one-half is not due and payable until the following June; but if the first one-half is not paid on or before December 20, then the whole amount becomes due and payable, with five per cent, added as penalty, and the whole amount becomes a lien on said land. If there was a tax lien on the lands in controversy at the time plaintiff demanded a deed from the defendant, then the plaintiff was not bound to accept a deed while said lien remained on the land; and in such case you will find for the plaintiff.”
We think these instructions under the circumstances of this case, erroneous and misleading. Birkett was not put in possession of the land after the execution of the bond, and as that instrument required Frederick to execute a good and sufficient warranty deed, conveying the premises to Birkett in fee simple, with the usual covenants of title, on March 1,1883, all taxes levied prior to that date must fall upon Frederick, and not upon Birkett. But it appears, by the findings of the jury, that Birkett never tendered, nor paid to the defendants, on or before March 1,1883, the remainder of the purchase-money; and that he did not, on or before that day, demand or request a conveyance of the land under the terms of the bond. Further, that when Frederick deposited his deed, and offered to deliver the same upon the payment of the residue of the purchase-money, nothing whatever was said by Birkett concerning the unpaid taxes, and no objection was made to the acceptance of the deed therefor. The refusal was based upon the ground that the deed was not good, and that Frederick did not have a good title. If Birkett had objected to the deed because of the tax incumbrance, Frederick would have undoubtedly paid the same and released the lien.
Subsequently, and on June 16, 1883, all the taxes and the penalties were paid. This action was not brought until after that date. The petition did not refer to the unpaid taxes, nor make any reference whatever to the alleged incumbrance therefor. This incumbrance was removed before this action was commenced, and long before the trial. At the time the action was commenced there was no tax lien or incumbrance against the land; and upon the facts disclosed upon the trial, the taxes should have been wholly omitted from the instructions, and also from the consideration of the jury. Indeed, a careful perusal of the whole record convinces us that the objection to the deed on account of the failure of Frederick to pay the taxes of 1882 was an afterthought, not contemplated when Birkett talked about making a tender of the remainder of the purchase-money, nor even considered at the time he commenced this action to recover damages. If Birkett declined to complete his purchase upon the ground that Frederick did not have any title, or that his deed was not in proper form, and if these alleged defects did not exist, in an action to recover a payment made he ought not to succeed because certain taxes were not paid, when it appears that prior to the commencement of his action these taxes had been discharged: (Bell v. Wright, 31 Kas. 236; Welch v. Dutton, 79 Ill. 465; Ashbaugh v. Murphy, 90 id. 182.)
It is a rule of equity to decree a specific execution of a contract for the sale of land on the application of the vendor, if the latter is able to make a good title, at any time before the decree is pronounced; therefore if Frederick within a reasonable time after March 1,1883, had sued Birkett for a specific performance of the contract, he could have recovered if he had established his own title, and showed that he had discharged the taxes alleged to have been an incumbrance. Again, it appears that the third finding of fact of the jury is not only contrary to the evidence, but not sustained by any testimony. Frederick deposited with the Eureka Bank a warranty deed, with the usual covenants, for the land in controversy, before March 1, 1883, according to the terms of the bond, and was ready to deliver it to Birkett at any time, upon the payment of the remainder of the purchase-money.
There is considerable discussion in the briefs of the omission of the court to charge the jury that Frederick had obtained title by adverse possession under the statute of limitations, but no instruction embracing this point was requested; so we shall make no comment thereon.
The judgment of the district court will be reversed, and the cause will be remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a prosecution upon an information for murder in the first degree. The defendant, Carl McClintock, was charged with the murder of his wife, Julia A. McClintock. The only defense interposed by him was that he was insane. He was found guilty of murder in the second degree, and was sentenced to imprisonment in the penitentiary for the term of fifteen years. He appeals to this court.
Many errors are assigned, but the prosecution urges as a preliminary question, that none of the supposed errors are presented by the record brought to this court. The real question is, whether the proceedings had in the court below concerning the examination of jurors upon their voir dire, the evidence introduced on the trialj the rulings of the court below admitting and excluding evidence, the instructions of the court given to the jury, and the instructions asked for by the defendant and refused by the court, are legally embodied in the record as brought to this court. The prosecution claims that they are not; while the defendant claims that they are. The only bill of exceptions found in the record as brought to this court, reads as follows:
“Be it remembered, that on the trial of this cause a verdict was rendered November 25,1886, finding the defendant guilty of murder in the second degree; and that on the 27th day of November, 1886, the defendant filed a motion for a new trial, in words and figures as follows; said motion being hereto attached, marked ‘ Exhibit A/ and made a part of this bill of exceptions. And on the 29th day of November, 1886, certain affidavits were filed in support of said motion for a new trial, which said affidavits are hereto attached, marked ‘Exhibit B/ and made a part hereof. And on the first day of December, 1886, said motion for a new trial came on for hearing, and on the second day of December, 1886, after hearing argument on said motion, and being fully advised in the premises, the court overruled said motion for a new trial, to which ruling of the court the defendant at the time duly excepted. And thereupon the court sentenced said defendant to hard labor in the penitentiary for a term of fifteen years, to which sentence the defendant at the time duly excepted.”
The exhibits above referred to are as stated, except that “Exhibit A” contains only an amendment to the motion for a new trial. Attached to the record brought to this court is what purports to be the testimony of jurors on their voir dire, and the testimony of witnesses introduced on the trial; but there is nothing in the record or elsewhere making this testimony a part of the record, or authenticating it in any manner, except a certain certificate, which reads as follows:
“State of Kansas, Sedgwick County, ss. — In the District Court in and for the County and State aforesaid. — The State of Kansas v. Carl McClintock. — I, Florence Hartley, do hereby certify that I am the legally appointed and authorized official stenographer and reporter of the district court of Sedgwick county, Kansas; and that the hereto attached testimony is a true and correct transcript of all the testimony of all the witnesses who testified on the trial of the above-entitled cause; and also of all the testimony of the jurors, Scott, Frank Blackburn, and M. D. Wemple, given on their voir dire.
January 28th, 1887. Florence Hartley,
Oficial Stenographer.”
The paper to which this certificate is attached was filed in the office of the clerk of the district court on February 3,1887.
Assuming that Florence Hartley, at the time of the trial of this case, and also on January 28, 1887, when she certified to the foregoing testimony, was the official stenographer of the district court of Sedgwick county — but there is nothing in the record tending to show that she was — then is the aforesaid testimony a part of the record of this case?. We think not. There is nothing in the statutes making the stenographic notes of the official stenographer in any case, or any copy thereof, whether written out in full or not, a part of the record of such case; and the only way to make the testimony or statements of j urors on their voir dire, or the testimony of witnesses introduced on the trial, a part of the record, whether the testimony and statements are taken by a stenographic reporter, or not, is to embody such testimony or statements in a bill of exceptions allowed and signed by the judge of the trial court. The acts relating to official stenog raphers will be found in Compiled Laws of 1879, chapter 28, article 2; and Compiled Laws of 1885, chapter 28, article 2. As to how exceptions may be taken and bills of exceptions made, see §219 of the criminal code, and §§299 to 305 of the civil code. See also The State v. Wilgus, 32 Kas. 128, 129. At the time the aforesaid stenographer’s certificate was made, her notes of evidence had never been filed in the district court; but if they had, it would make no difference, for they could become a part of the record only by being embodied in a bill of exceptions allowed and signed by the j udge of the trial court in accordance with the statutes.
Section 236 of the criminal code reads as follows :
“ Sec. 236. The judge must charge the jury, in writing, and the charge shall be filed among the papers of the cause. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are exclusive judges of all questions of fact.”
Whether the charge under this statute becomes a part of the record without being embodied in a bill of exceptions has been questioned, but not decided. (The State v. Lewis, 10 Kas. 157, 160.) And .it is not necessary to decide the question now. But it is clear that instructions asked for by the defendant and refused by the trial court cannot become a part of the record unless they are embodied in a bill of exceptions. Taking the record as it has been brought to this court, and neither the testimony or statements of the jurors on their voir dire, nor the testimony of witnesses on the trial, nor the instructions asked for by the defendant and refused by the trial court, can be considered as any part of the record; and therefore it would be useless to discuss any of the questions that might be supposed to arise upon such testimony or refusal; and, taking the record as it is, we do not think that it can be said that the trial court committed any material error.
The judgment of the court below will therefore be affirmed.
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Opinion, by
Simpson, C.:
We confess our inability to determine with any degree of precision the cause of action stated, or attempted to be set forth in the petition filed in this case in the district court of Leavenworth county, by the plaintiffs in error. The prayer for relief, instead of affording some indication of the cause of action alleged, is as confusing as the statement of facts; and all we can do is, to pass upon all the allegations of the petition as they are recited.
The plaintiff in error, Van Vliet, alleges that he recovered a judgment against Madison Mills, at the February term, 1873, of the district court of Leavenworth county, for $2,575.21, and costs, and that said judgment has not been paid or reversed, and that the same is in full force and effect; that Mills died on the 28th day of April, 1873, at his residence in New York city; that on the 20th day of May, 1873, A. C. Van Duyn was duly appointed administrator of the estate of Mills, by the probate court of Leavenworth county; that on the 11th day of October, 1875, said judgment in favor of Van Vliet was revived against Van Duyn as administrator of the estate of Mills; that on the 3d day of April, 1874, the said judgment was duly exhibited against the estate of Mills in the probate court of Leavenworth county, and on the 6th day of April, 1874, was duly probated and allowed, and the estate was adjudged to be indebted to Van Vliet in the sum of $2,843.43; and that said judgment was assigned by the probate court to the fourth class of debts against said estate, and ordered to be paid in due course of administration.
Among the numerous prayers for relief contained in the petition, is one for judgment for the amount due and allowed and adjudged to Van Vliet by the courts aforesaid, (meaning the probate and district courts of Leavenworth county.) Now, whatever had been in the mind of the pleader, it is perfectly evident that this action was not intended as a suit on the judgment of Van Vliet against Madison Mills.- The petition alleges the judgment, its revivor against the administrator, that it has never been paid or reversed, and that it is in full force and effect; and these, coupled with other allegations, seem to us to conclusively negative any presumption that it was intended to state a cause of action on the judgment. This disposes of the first prayer for relief, and the allegations of the petition supposed to authorize such a judgment.
The next prayer is, that the plaintiffs be declared to be judgment creditors of Madison Mills and his estate. If it be true that they have such a judgment against Mills, duly revived against his administrator, they are judgment creditors to all intents and purposes, and cannot be benefited by such a declaration. No additional rights can be given them by a naked declaration of the district court of Leavenworth county. They come within the definition of judgment creditors by virtue of the fact that they have in full force and effect a judgment rendered against Madison Mills in his lifetime, and duly revived against his regularly appointed administrator.
The next series of allegations in the petition seems to be directed to a statement of facts to establish the proposition that this judgment is a lien on the land described; and there is a prayer that the court so declare. This court held in the case of Halsey v. Van Vliet, 27 Kas. 474, that this judgment was not a lien on the land; and as there has been nothing done since the rendition of the judgment in the district court, except to exhibit the judgment against the administrator of Mills, and have it classified by the probate court of Leavenworth county as a demand against the estate of Mills, this certainly would not have the effect to make it a lien.
There are numerous allegations in the petition reciting a state of facts upon which it is contended that the court would be empowered to make such a decree, and among them are the' following: That the land was conveyed to Halsey by Mills with the expressed agreement that Halsey should pay the liens of this and other incumbrances upon it; that Halsey directed this land to be sold at sheriff's sale to pay the residue of the judgment in the foreclosure action of Dennis-town v. Mills's administrator and others; that in the assignment of Halsey and in the schedule of his creditors, no mention is made of his ownership of this land and of the indebtedness of the Mills estate to him. Disposing of these in their order, it is only necessary to say of the first allegation that if Halsey accepted the conveyance of this laud with the agreement to pay the lien of the judgment, he has been relieved of that by a decision of this court; and if he agreed to pay the judgment, a direct action against him is the proper remedy.
The second proposition is, that Halsey directed that this land be sold by the sheriff to pay the remainder of the judgment in the foreclosure action of Dennistown v. Van Vliet, the administrator of Mills, and others. The pleader makes this allegation with the view that it is an admission by Halsey that this land belongs to the estate of Mills, and that he is therefore estopped from denying it in this action. If the plaintiff in error Van Vliet had been a party to that action, there would be some foundation for such a belief, but as he was not, the element of mutuality that is characteristic of estoppel is wanting.
Other allegations of the petition furnish a very good reason why Halsey should direct this quarter of land to be sold to satisfy the residue of the Dennistown judgment. It is stated that Halsey had a note for $18,000 against Mills, secured by other real estate owned by Mills in Leavenworth county; that after Mills’s death, this mortgage was assigned by Halsey to Dennistown, and an action for the foreclosure commenced in the district court of Leavenworth county; that as the mortgaged premises did not sell for a sufficient sum to satisfy the judgment, an execution was issued for the remainder due, and this quarter-section of land was sold. The petition does not allege that the assignment of Halsey to Dennistown was only colorable, and made with the intent and for the purpose of having this land sold, aud thus preventing the plaintiff in error, Van Vliet, from subjecting it to the payment of his judgment; but it does allege that there was an assignment of the note and mortgage to Dennistown. In the absence of any claim to the contrary, it must be assumed that the assignment was in good faith, and for a valuable consideration, and that to prevent recourse on him, Halsey could have this land sold for the benefit of Dennistown, to pay him in full and to relieve Halsey of any liability on the assignment. This land was bid off to Dennistown, the sale confirmed, and a sheriff’s deed made to him on the 15th day of January, 1875; and at that time, by the decision of this court, the plaintiff in error had no lien on the land, and his judgment had not been revived against the administrator of Mills.
Under the state of facts alleged in the petition, showing that the title to this land had passed to and been vested in Dennistown, with no allegations respecting him as participating in any attempt to prevent the plaintiff in error from enforcing his judgment by the sale of this land, with his heirs-at-law parties to this action, and made so probably for this purpose, and yet not charged through their ancestor with notice or knowledge, how can the court grant the prayer for relief?
The plaintiff in error also alleges that Halsey, on the 5th day of March, 1876, made a general assignment for the benefit of his creditors, and that he filed an inventory under oath of his property, and a schedule of all debts to him, verified by his oath; that there was no mention of this land in his inventory, and no reference to the debt Mills owed him in the schedule.
Accepting the other facts recited in the petition as true, (being admitted by the demurrer,) they furnish a complete answer to all allegations. They recite the assignment of the note and mortgage for $18,000 by Halsey to Dennistown long before this assignment for the benefit of the creditors is made, and this is all the indebtedness by Mills to Halsey that is described. They recite the sale of this particular quarter-section of land on the Dennistown judgment by the direction and consent of Halsey, and thus the petition shows that the statement made by Halsey both in his inventory and schedule was in exact accordance with the facts recited.
In the brief of counsel for plaintiff in error it is claimed that the action is one to set aside a fraudulent conveyance made by Mills to Halsey of the land described, but there is not, a single allegation in the petition which authorizes even an inference that this was the intention of the pleader. On the’contrary, the petition distinctly avers that the conveyance was made for the consideration and on the promise of Robert Halsey, to pay the incumbrances and liens on the lands of Mills in Leavenworth county. If we adopt the theory that the sale to Mills by Halsey, and the assignment of the mortgage by Halsey to Dennistown, the foreclosure by Dennistown, and the subsequent sale of this land to pay the unsatisfied residue of the judgment in the foreclosure action, were but parts and parcels of a general plan to cover up the property of Mills for his benefit or the benefit of his heirs, there is no such statement of facts recited as would authorize a judgment to that effect.
There are many different views that can be taken of the various statements in this petition, and there may be much speculation as to what was intended; but the petition does not state a cause of action against any one or all the defendants in error, but on the contrary it does state that the land which is sought to be subjected to the payment of the demand of the plaintiff in error, Yan Yliet, against the estate of Madison Mills, had been sold at a judicial sale long before the commencement of this action. We do not doubt the power of a court of equity to reach the property of a debtor, justly applicable to the payment of his debts, however elaborately it may be covered over with conveyances, decrees or judicial sales, all made and procured to avoid payment of such demands, but the exercise of such a power must first be invoked by the statement of such facts as will constitute a cause of action against all persons who are parties to such a transaction.
There is no view to be taken of this petition wherein it states a cause of action, and with this conclusion there is no necessity for a discussion of other questions raised on the argument. We see no error in the ruling in the district court .sustaining the demurrer, and therefore recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by D. H. Williams against Samuel M. Johnson for the recovery of certain real estate in Elk county. The record clearly shows that Williams is the legal owner of the land in controversy ^unless his title thereto has been divested by a certain tax deed and other proceedings founded thereon, which will be hereafter mentioned. On September 17,1881, the aforesaid tax deed was executed by the county clerk of Elk county to AnnaEby, and was recorded on September 20,1881. On said day, Anna Eby executed a quitclaim deed for the land to Lark Vinson, which deed was recorded on December 10, 1881. On September 26,1881, Vinson commenced an action in the district court of Elk county against the said defendant, D. H. Williams, and others, to quiet his title to the property in controversy, and obtained service of summons by publication only. On December 8, 1881, a judgment was rendered in that action, quieting Vinson’s title as against all the defendants in that action. On December 10,1881, Vinson exe cuted a quitclaim deed for the property to Richard M. Roe, which deed was recorded on December 19, 1881. On July 22, 1882, said Roe by his quitclaim deed remised, released and quitclaimed unto Samuel M. Johnson, the plaintiff in error, defendant below, all his right, title and interest in and to the land, which deed was duly recorded on July 25, 1882. On October 12,1882, Williams filed his motion in the district court of Elk county to open up said judgment under § 77 of the civil code; and such proceedings were had that on November 8,1883, the motion was sustained and Williams permitted to defend in the action. On March 7, 1884, a trial was had in the action, and judgment was rendered in favor of Williams and against Vinson, decreeing Williams to be the owner in fee simple of the land, and quieting his title as against Vinson and all persons claiming under him. This present action of ejectment was commenced on August 8,1884, and was tried before the court without a jury, and judgment was rendered in favor of Williams and against Johnson for the recovery of the land and for costs. Johnson brings the case to this court for review.
It is admitted that Johnson in purchasing the property paid value therefor, and at the time had no knowledge of the claim of Williams; or, in other words, it is admitted that Johnson was “a purchaser in good faith” of the property, provided a purchaser taking a quitclaim deed for the property can be “a purchaser in good faith.” In this state a quitclaim deed to land will convey to the grantee all the rights, interests, title and estate of the grantor in and to the land, unless otherwise specified by the deed itself. (Conveyance Act, § 2; Utley v. Fee, 33 Kas. 683, 691.) Such deed will convey such of the covenants of former grantors as run' with the land. (Scoffins v. Grandstaff, 12 Kas. 467.) And the grantee in a quitclaim deed will be entitled to such further title or estate as may inure at any time to the grantees of such former grantors by virtue of such covenants as run with the land. (See case last cited.) But a quitclaim deed will not estop the maker thereof from afterward purchasing or acquiring an adverse title or interest, and holding it as against his grantee. (Simpson v. Greeley, 8 Kas. 586, 597, 598; Bruce v. Luke, 9 id. 201, 207, et seq.; Scoffins v. Grandstaff, 12 id. 469, 470; Young v. Clippinger, 14 id. 148, 150; Ott v. Sprague, 27 id. 624.) And a person who holds only by virtue of a quitclaim deed from his immediate grantor, whether he is a purchaser or not, is not a bona fide purchaser. (Bayer v. Cockerill, 3 Kas. 283, 294; Oliver v. Piatt, 44 U. S. 333, 410; May v. LeClaire, 78 id. 217, 232; Villa v. Rodriguez, 79 id. 323; Dickerson v. Colgrove, 100 id. 578, 584; Baker v. Humphrey, 101 id. 494, 499; Runyon v. Smith, 18 Fed. Rep. 579; United States v. Sliney, 21 id. 895; Watson v. Phelps, 40 Iowa, 482; Smith v. Dunton, 42 id. 48; Besore v. Dosh, 43 id. 211, 212; Springer v. Bartle, 46 id. 688; Pastel v. Palmer, [Sup. Ct. of Iowa,] 32 N. W. Rep. 257; Bragg v. Paulk, 42 Me. 517; Coe v. Persons Unknown, 43 id. 432; Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 id. 147; Mann v. Best, 62 id. 491; Rodgers v. Burchard, 34 Tex. 441, 452; Harrison v. Boring, 44 id. 255; Thorn v. Newsom, 64 id. 161; Richardson v. Levi, [Sup. Ct. of Tex.,] 3 S. W. Rep. 444; Smith’s Heirs v. Branch Bank of Mobile, 21 Ala., 125, 134; Derrick v. Brown, 66 id., 162; Everest v. Ferris, 16 Minn. 26; Marshall v. Roberts, 18 id. 405; Woodfolk v. Blount, 3 Hayw. [Tenn.] 146; Smith v. Winston, 3 Miss. 601; Kerr v. Freeman, 33 id. 292, 296; Learned v. Corley, 43 id. 688; Leland v. Isenbeck, 1 Idaho, 469; Baker v. Woodward, 12 Ore. 3, 10; same case, 6 Pac. Rep. 174, 178; Richards v. Snyder, 11 Ore. 511; same case, 6 Pac. Rep. 186; Snowden v. Tyler, [Sup. Ct. of Neb.] 31 N. W. Rep. 661, 668; McAdow v. Black, 6 Mont. 601; same case, 13 Pac. Rep. 377, 380, 381; Martin v. Morris, 62 Wis. 418; same case, 22 N. W. Rep. 525; Laurens v. Anderson, [Tex.] 1 S. W. Rep. 379; Dodge v. Briggs, 27 Fed. Rep. 160; Peaks v. Blethen, [Me.] 1 Atl. Rep. 451.) It may be that with reference to some equities or interests in real estate, the purchaser who holds only under a quitclaim deed may be deemed to be a bona fide purchaser; for equities and interests in real estate may sometimes be latent, hidden, secret and concealed,. and not only unknown to the purchaser, but undiscoverable by the exercise of any ordinary or reasonable degree of diligence. It is possible also that a purchaser taking a quitclaim deed may under the registry laws be considered a bona fide purchaser with reference to a prior unrecorded deed with respect to which he has no notice nor any reasonable means of obtaining notice. (Bradbury v. Davis, 5 Col. 265; Butterfield v. Smith, 11 Ill. 485; Brown v. Banner Coal and Coal Oil Co., 97 id. 214; Fox v. Hall, 74 Mo. 315; Graff v. Middleton, 43 Cal. 341; Pettingill v. Devin, 35 Iowa, 344. But, contra, see Thorn v. Newsom, 64 Tex. 161; same case, 53 Am. Rep. 747, and note; Pastel v. Palmer, supra.)
We would think that in all cases, however, where a purchaser takes a quitclaim deed he must be presumed to take it with notice of all outstanding equities and interests of which he could by the exercise of any reasonable diligence obtain notice from an examination of all the records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon, or of any person who might, from any record or from any knowledge which the purchaser might have, seemingly have some interest in the property. In nearly all cases between individuals where land is sold or conveyed, and where there is no doubt about the title, a general warranty deed is given; and it is only in cases where there is a doubt concerning the title that only a quitclaim deed is given or received; hence, when a party takes a quitclaim deed, he knows he¿s taking a doubtful title and is put upon inquiry as to the title. The very form of the deed indicates to him that the grantor has doubts concerning the title; and the deed itself is notice to him that he is getting only a doubtful title! Also, as a quitclaim deed can never of itself subject the maker thereof to any liability, such deeds may be executed recklessly, and by persons who have no real claim and scarcely a shadow of claim to the lands for which the deeds are given; and the deeds may be executed for a merely nominal consideration, and merely to enable speculators in doubtful titles to harass and annoy the real owners of the land; and speculators in doubtful titles are always ready to pay some trifling or nominal consideration to obtain a quitclaim deed. This kind of thing should not be encouraged. Speculators in doubtful titles are not so preeminently unselfish, altruistic, or philanthropic in their dealings with others as to be entitled to any very high degree of encouragement from any source. There are cases which are claimed to be adverse to the opinions herein expressed. They will be found cited in Martindale on Conveyancing, §§ 59 and 285, and notes, and 12 Cent. L. J. 127.
Not wishing to decide anything further in this case than is necessary to be decided, our decision will be as follows: A person who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he js a purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Marquardt, J.:
Maurice J. Walker appeals his convictions of possession of cocaine and possession of marijuana. We affirm.
On September 16, 2006, Kansas City Police Officer Jason Pittman responded to a report of an automobile burglary. The victim did not speak English; however, two children translated the victim’s description of the suspect as “a black male wearing a black shirt and black shorts” last seen walking east on Central Avenue.
Traveling east on Central Avenue, Officer Pittman began searching for an individual who matched the suspect’s description. Within blocks of the reported burglary, Officer Pittman saw Walker, a black male wearing a black shirt and black shorts, sitting next to a bus stop.
Officer Pittman approached Walker, informed him that he matched the description of a burglary suspect, and requested identification. Walker provided Officer Pittman with a Missouri identification card. Officer Pittman contacted dispatch and requested a records check. Dispatch reported that Walker had an outstanding arrest warrant. Officer Pittman handcuffed Walker and placed him under arrest.
In searching Walker, Officer Pittman discovered a plastic bag with suspected marijuana in it and a plastic bag containing suspected cocaine. Another officer conducted a field test of the two substances and confirmed that the substances were marijuana and cocaine. The automobile burglary victim could not identify Walker as the suspect.
Walker filed a motion to suppress the evidence of the drugs based on the lack of a warrant and the lack of probable cause to search. Walker argued that Officer Pittman contacted dispatch and learned of Walker’s outstanding warrant after illegally searching and finding marijuana and cocaine. Walker also claimed that the victim’s description of the burglar was “grossly inadequate [for Officer Pittman] to go start talking to people,” Walker’s counsel argued that Walker did not match the suspect’s description because Walker’s shirt was actually dark blue, not black, and had a picture of Mickey Mouse on the front.
In overruling Walker’s motion, the district court found that Officer Pittman approached an individual who matched the burglaiy suspect’s description, ascertained Walker’s identity, and subsequently made a legal arrest based on an outstanding warrant. The district court also found that the search and arrest were constitutional.
At trial, Walker testified that while walking through an alley to get to his cousin’s house, a young child placed cocaine in his hand and ran away. Walker decided to continue to his'cousin’s house where he planned to flush the cocaine down the toilet.
Walker also testified that while waiting at a bus stop, Officer Pittman approached him, asked for identification, then placed him in handcuffs. Officer Pittman began searching Walker’s backpack for his identification.
Walker also testified that the automobile burglary victim told a different officer that Walker was not the suspect and the officer told Officer Pittman to release Walker. According to Walker, Officer Pittman told the other officer that he would not release Walker and radioed dispatch for a records check. After being informed of the outstanding warrant, Officer Pittman searched Walker and found the marijuana and cocaine.
A juiy convicted Walker of possession of cocaine and possession of marijuana. The district court sentenced Walker to a presumptive sentence of 17 months in prison for his cocaine possession and 12 months’ incarceration for his marijuana possession, then converted the sentence to 12 months’ probation with 12 months of post-release supervision.
Walker did not file a motion for a new trial; however, he appeals the district court’s denial of his motion to suppress, claiming: (1) Officer Pittman lacked reasonable suspicion to detain him; (2) the search exceeded the investigatory nature of the stop; and (3) the subsequent discovery of his outstanding warrant did not purge the taint of the illegal detention.
When reviewing a district court’s decision on a motion to suppress evidence, this court first determines whether substantial competent evidence supports the district court’s findings; however, the appellate court does not reweigh the evidence. Next, we review the district court’s ultimate legal conclusion respecting the suppression of evidence using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
A. Reasonable Suspicion to Detain Walker
Walker argues that Officer Pittman lacked reasonable suspicion to seize him based on an “extremely deficient” physical description. Walker cites K.S.A. 22-2402(1) and Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), to suggest that absent specific articulable facts, Officer Pittman did not have reasonable suspicion to stop Walker.
K.S.A. 22-2402(1) provides that a law enforcement officer, without making an arrest, “may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.” This provision is a codification of Terry, 392 U.S. at 21. See City of Topeka v. Grabauskas, 33 Kan. App. 2d 210, 220, 99 P.3d 1125 (2004).
There are four types of police-citizen encounters. See State v. Gonzales, 36 Kan. App. 2d 446, 451, 141 P.3d 501 (2006). The first is a voluntary encounter, which is not considered a seizure under the United States Constitution’s Fourth Amendment. Nickelson v. Kansas Dept. of Revenue, 33 Kan. App. 2d 359, 363, 102 P.3d 490 (2004). The second is an investigatoiy 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 Terry, 392 U.S. at 24, 30-31. During a Terry stop, the officer is allowed to frisk the person seized for weapons if necessaiy for the officer’s personal safety. K.S.A. 22-2402(2). The third type 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. State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992), disapproved in part on other grounds State v. Field, 252 Kan. 657, Syl. ¶ 6, 847 P.2d 1280 (1993). The fourth type of encounter is an arrest. State v. Hill, 281 Kan. 136, 142, 130 P.3d 1 (2006).
An investigatory detention requires that an officer have a reasonable suspicion, based on objective facts, that the suspect is in volved in criminal activity. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). Reasonable suspicion requires a minimal level of objective justification. State v. Moore, 283 Kan. 344, 354, 154 P.3d 1 (2007) (quoting State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 [1998]). Something more than an unparticularized suspicion or hunch must be articulated. DeMarco, 263 Kan. 727 Syl. ¶ 4.
At the. suppression hearing, Officer Pittman testified that.the victim described the suspect as “a black male wearing a black shirt and black shorts.” Within minutes after the crime, Officer Pittman checked the area and found Walker, a black male wearing a midnight blue shirt and black shorts, 2 blocks from the crime scene. The district court concluded that Walker matched the general description of the automobile burglary suspect. Given Walker s proximity in time and location to the crime and that Walker matched the general description of the burglary suspect, the district court’s decision is supported by substantial competent evidence.
This court in State v. Anguiano, 37 Kan. App. 2d 202, 151 P.3d 857 (2007), discussed reasonable suspicion with regard to a suspect’s “semifit” description. In- Anguiano, an arrest warrant was issued for a Hispanic suspect who “wore a coat and ‘dark-type green’ colored pants.” On St. Patrick’s Day 2005, police officers apprehended Anguiano, a Hispanic man who wore grayish-green pants, not dark green pants. In reversing the district court’s denial of his motion to suppress, this court stated that “merely being Hispanic and wearing a coat with green pants niay have described much of the population of Seward County on St. Patrick’s Day, March 17, 2005.” 37 Kan. App. 2d at 207. This court determined that the warrant’s description was “so nonspecific or generic in nature as to defy reasonable suspicion of criminal activity.” 37 Kan. App. 2d at 207.
Although the facts in Anguiano are similar to the instant case, Anguiano is distinguishable. In Anguiano,' the sole basis for his detention was a “semifit” general description. Here, the victim gave Officer Pittman the direction the suspect was last seen traveling. The crime occurred only a few minutes prior to Officer Pittman’s arrival. And unlike in Anguiano, September 16 is not trádi tionally a day when individuals dress similarly by wearing dark-colored clothes.
Under the totality of the facts and circumstances in this case, Officer Pittman had a reasonable suspicion based on articulable facts that Walker had just committed the automobile burglary, which allowed him to lawfully request Walker s identification during the investigatory detention. The district court did not err in denying Walker’s motion to suppress evidence.
B. Was the Extension of the Investigatory Stop an Illegal Detention?
Walker argues that even if Officer Pittman had reasonable suspicion to detain him, Office Pittman lacked justification for performing a records check. Citing Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), Walker suggests that Officer Pittman abandoned his initial investigation of whether Walker was the alleged burglary suspect when he conducted a general records check and “unnecessarily prolonged the encounter.”
The State claims that K.S.A. 22-2402(1) clearly allows a law enforcement officer to ask for identification during a stop. The State asserts that Officer Pittman merely approached Walker and asked for his identification, which Walker voluntarily provided.
A seizure’s scope and duration “must be strictly tied to and justified by the circumstances that rendered its initiation proper.” State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990).
K.S.A. 22-2402(1) allows an officer to ask for identification during a stop, but the statute does not state that an officer may run a warrants check. Kansas case law allows police officers, during routine traffic stops, to check a “motorist’s driver’s license, car registration, and proof of insurance; conduct a computer check; issue a citation; and take those steps reasonably necessaiy to protect officer safety.” State v. Smith, 286 Kan. 402, 410, 184 P.3d 890 (2008). There is no Kansas statute or case that deals with a police officer running a warrants check during a street encounter.
Finding no Kansas case direcdy on point, the United States Court of Appeals for the Tenth Circuit recently decided the specific issue of whether a wants and warrants check during an inves tigatory detention exceeded the initial scope of the detention. See United States v. Villagrana-Flores, 467 F.3d 1269 (10th Cir. 2006), cert. denied 549 U.S. 1149 (2007).
In Villagrana-Flores, police responded to a call from a Denny s restaurant patron stating that “ ‘a man outside was trying to kill himself.’ ” 467 F. 3d at 1272. The police identified the man as Villagrana-Flores. An ambulance transported Villagrana-Flores to a nearby hospital for an emergency mental health evaluation. After his release, Villagrana-Flores walked to a nearby office building and entered a stairwell. Observers stated that Villagrana-Flores appeared delusional and disoriented and was talking to door knobs. An individual called the police when Villagrana-Flores began hitting his head against the office building’s windows and walls.
Police officers detained Villagrana-Flores because he “was a danger to himself and possibly to others” and ran a warrants check. 467 F.3d at 1272. Finding outstanding warrants, the police placed Villagrana-Flores under arrest. Villagrana-Flores appealed and claimed, inter alia, that police violated his constitutional rights when they ran a warrants check, exceeding the permissible scope of the initial detention — i.e., for exhibiting mentally ill behavior. Finding no violation of the Fourth Amendment, the court stated:
“Officer safely, however, is just as strongly implicated where the individual being detained for a short period of time is on foot, rather than in an automobile. An officer detaining a pedestrian has an equally strong interest in knowing whether that individual has a violent past or is currently wanted on outstanding warrants. The citizen’s interest, on the other hand, is no more robust merely because a short detention occurs while traversing on foot. Moreover, permitting a warrants check during a Terry stop on the street also promotes the strong government interest in solving crimes and bringing offenders to justice.’ [Citation omitted.] Indeed, an identity’s utility in ‘inform [mg] an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,’ [citation omitted], would be non-existent without the ability to use the identity to run a criminal background check.” 467 F.3d at 1277.
Thus, applying the reasoning in Villagrana-Flores, we hold that permitting a warrants check during a Terry investigatory stop on the street promotes the strong government interest in solving crimes and bringing offenders to justice. Officer Pittman’s inves tigatory detention did not exceed the permissible scope of Walker’s detention.
C. Did the Discovery of the Warrant Cure the Extension of the Detention?
Walker claims that under State v. Martin, 285 Kan. 994, 179 P.3d 457 (2008), the subsequent discovery of an outstanding warrant did not cure the taint of the illegal detention. The State contends that even if Officer Pittman’s conduct was improper, his subsequent discovery of Walker’s outstanding warrant cured such conduct.
In Martin, the Kansas Supreme Court considered three factors in determining whether the taint from illegal conduct has been sufficiently attenuated from the causal chain to cure the improper conduct: (l) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. 285 Kan. at 1003.
According to Officer Pittman, upon learning of Walker’s outstanding warrant, Officer Pittman immediately handcuffed and searched Walker for weapons and illegal contraband. Thus, very litde time elapsed between the detainment and Officer Pittman’s discovery of Walker’s cocaine and marijuana.
When Officer Pittman learned of Walker’s outstanding warrant, he was placed on notice that there was probable cause to believe that Walker had committed a crime. The Martin court recognized that a warrant arrest “was a lawful, perhaps mandatory, act” and “K.S.A. 22-2501 permitted, and officer safety recommended” that Officer Pittman search Walker after discovery of the warrant. See 285 Kan. at 1004. The Martin court noted that “the lawful warrant arrest for a prior crime, and ensuing lawful search incident to arrest, represent a potential break in the causal chain between [any] unlawful conduct” in detaining Walker and the discoveiy of Walker’s possession of illegal narcotics. See 285 Kan. at 1004.
As in Martin, Officer Pittman was drawn to Walker because Walker matched the description of a burglary suspect. There is no evidence in the record on appeal that Officer Pittman’s purpose for the stop was to search Walker for drugs. Additionally, requesting identification for a warrants check is not flagrant conduct. See Martin, 285 Kan. at 1004.
Thus, there was substantial competent evidence to support the district court’s decision that an officer’s request for identification after an investigatory stop to run a warrants check is not illegal, and the search and seizure did not violate Walker’s constitutional rights.
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Opinion by
Holt, C.:
The first question that presents itself is, was the contract between Bates and Clark a conditional sale, or was it a mortgage on the property in controversy? The testimony is not uniform concerning the agreement. Some of the witnesses testify that the title should pass, and the property become absolutely the property of Bates at once. They all agree that the title to the property should be in Bates un til the notes were paid to the bank, but there is some testimony showing that the title to the property remaining should revert to Clark upon the payment of the notes, at once, and without any formal transfer. The testimony shows that Clark fed his stock out of a part of the property purchased. The writer of this opinion is inclined to believe that the agreement constituted a mortgage, yet there was testimony enough introduced tending to show that it was a conditional sale, so that it might have been a proper question for the jury to determine whether the transaction was á mortgage or^a sale. ( Goodwin v. Kelly, 42 Barb. 194.) If it had been a sale of the property, then certainly Bates, the owner of the same, could maintain his action for the possession of it.
The defendant contends that if it was an oral mortgage it would be void without an actual delivery of the property to Bates. We do not believe that claim is tenable. There is a distinction between mortgages and pledges, but there is no distinction, nor reason for a distinction, between oral and written mortgages in this respect. There is no provision in our statutes, as there is in some states, that the sale of personal property of a certain value, unaccompanied by delivery, shall be void unless a memorandum of the sale iu writing be made and signed by one of the parties thereto. There is no question of purchaser or creditor arising in this action under the evidence brought here. It is simply a controversy between Bates and the receiver of H. B. Clark. Such receiver took the property of Clark subject to all existing equities and liens, and has no greater rights than Clark himself would have against Bates, and can interpose no defense that Clark could not. (In re Gutta Percha Co., 17 How. Pr. 549; Lorch v. Aultman & Co., 75 Ind. 162; Highton Receivers, §138.)
The testimony in this action tends to show that this transaction wasjjentered into in good faith, and that the conditional sale or mortgage, whichever it may be, was given upon a sufficient consideration; and when inquired into between the parties themselves, or between parties having no greater or different rights, we know of no rule, or reason for a rule, that would make delivery indispensable as between them any more than under a written mortgage. (Jones on Chattel Mortgages, §2; Morrow v. Turney, 35 Ala. 131.) If a sale of chattels, not in writing, is valid without delivery, we know of no reason why an oral mortgage should be void between the parties thereto, without delivery.
In the view we take of this case, it is of very little importance whether the transaction was a conditional sale or a mortgage. If it was a mortgage, it was a transaction to secure two thousand five hundred dollars; and the statement of the values in the affidavit of the plaintiff shows the total value of the property claimed to be only one thousand four hundred and thirty-nine dollars and seventy-five cents, much less than the amount sought to be secured.
It is contended that if this transaction is a mortgage, the plaintiff could not maintain an action of replevin for this property until he had paid the notes, or some part thereof, upon which he was surety. Whatever the general rule may be, we believe where the surety has a mortgage on the property of his principal to secure him for signing his principal’s notes, after the maturity of the debt, he is not bound to wait until he has actually paid as surety, but may have the mortgage foreclosed at once; and where the principal is insolvent, he may retain any funds in his hands to apply to the discharge of his liability.
The purpose of this contract between Bates and Clark was to hold Bates harmless against loss or damage by reason of his signing Clark’s notes at the bank as surety. At the commencement of this action he was legally liable on the notes, and was entitled to obtain possession of the property given him to save him harmless, because he signed the same. (Brandt on Suretyship and Guaranty, §193; Baylies on Sureties and Guarantors, 352; DeCottes v. Jeffers, Cothran & Co., 7 Fla. 284; Succession of Montgomery, 2 La. An. 469; Daniel v. Joyner, 3 Ired. Eq. 513.)
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Hill, J.:
This appeal raises the question of whether the State can charge two stabs of a knife attack as two distinct counts of aggravated batteiy. When several charges arise from the same conduct, under Kansas law there can be only one conviction for each unit of prosecution. The scope of conduct comprising one violation of a criminal statute defines the unit of prosecution.
In this direct appeal, Miguel D. Mendoza was convicted of one count of aggravated batteiy of the penis and one count of aggravated battery of the right leg of Raul C. Lopez. Because Mendoza cut Lopez’ penis after stabbing him in the right leg, stomach, arm, and other body parts and because all of this happened in the same room as part of the same altercation, we hold these charges and convictions arose from the same conduct. Going further, because our aggravated batteiy statute encompasses all physical harms, disfigurements, and physical contacts on the person and not on separate body parts, we hold the unit for prosecution of the aggravated battery statute is the person harmed. Therefore, in our view the two aggravated batteiy convictions here cannot stand since they arose from the same conduct, and by law, there can be only one aggravated batteiy conviction for this knife attack on Lopez’ person. Each stab or cut is not a separate crime. We therefore reverse one conviction of aggravated batteiy and. remand the case for re-sentencing and correction of Mendoza’s criminal history by removing one aggravated batteiy conviction.
The facts reveal a surprise attack from a bedroom closet.
On June 11, 2000, at 2:30 a.m., Sergeant Mark Smith was dispatched to the Country Club Estates in Newton, where he found Debra Winters with a towel wrapped around her right wrist. Winters said that when she was in her bedroom with another man, her ex-boyfriend, Miguel D. Mendoza, jumped out of the closet with two butcher knives. Winters claimed Mendoza stabbed her and the other man. She said Mendoza then drove off in her vehicle.
Smith looked inside Winters’ trailer and saw blood everywhere. When he walked around the back side of the trailer, Smith saw Raul Lopez lying on the ground, bleeding profusely. The officer found a bloody butcher knife about 10 feet from the trailer.
More details of the attack come out at the trial.
Earlier, during the evening of June 10, Winters had gone to Wichita where she met Lopez. Winters and Lopez went back to Winters’ trailer and went into Winters’ bedroom and laid down in bed. At that time, Winters heard the closet doors rattle and saw Mendoza come out. She testified Mendoza was angry and was holding two knives. He lunged after her, struck at her, and cut her hand. But when Lopez grabbed an alarm clock and threw it at Mendoza, Winters took off running out the front door and ran to another residence and called 911. Winters later saw Mendoza exit her trailer and leave in her car.
Lopez testified there was no indication that anyone was in the trailer when he and Winters entered. After he and Winters got in bed, Lopez heard noises and saw someone come out of the closet. Lopez testified the person, later identified as Mendoza, looked angiy and was holding a knife in each hand with die blades pointed toward Lopez and Winters. Lopez testified Mendoza said he was going to kill him. Mendoza first went after Winters and struck her with a knife. Lopez then threw an alarm clock at Mendoza, and Winters ran out. Mendoza attempted to follow and grab Winters but came back and began to attack Lopez with the knives. Lopez was first struck in the right leg. Lopez fell down on the carpet and was lying on his back. Mendoza then started to knife Lopez in the stomach. As some defense, Lopez covered his face and chest. Mendoza then put the knife in Lopez’ arm. Lopez was also stabbed in the buttocks and right thigh. Mendoza then pulled down Lopez’ undershorts and cut his penis. Mendoza then said he was going to go get Winters so he could kill her next to Lopez and left the room. Lopez testified he got up, left the trailer, and fell down outside.
Mendoza admitted he went to the trailer on June 10, where he claimed he saw Winters and Lopez standing at the door of the bedroom. Mendoza testified Lopez hit him with an alarm clock, which made him angry, and he and Lopez started to fight, moving down the hallway. Mendoza stated they both saw a knife and tried to grab it. Mendoza claimed they both received injuries and only admitted to striking Lopez in the stomach.
The relationship between Winters and Mendoza involved many threats of violence.
Winters testified she and Mendoza began dating in the early spring of 1999. They moved to a trailer located in Country Club Estates in 2000. Winters testified Mendoza threatened her many times during their relationship. One of the main things Mendoza said was that he would cut an “M” in Winters’ face so she would remember him every time she looked in the mirror. Winters testified Mendoza made this particular statement back in 1999 and also several times during the time they split up. Witness Misty Penny testified she heard Winters and Mendoza fighting in September 1999 and heard Mendoza tell Winters he was going to put an “M” on her forehead. Winters also claimed Mendoza threatened to kill, shoot, and stab her between January and June 2000. Winters also testified Mendoza threatened to Mil her and put an “M” on her face if he caught her with another man.
Winters testified she told Mendoza to leave the trailer sometime prior to June 11, 2000. During the time of their breakup, Mendoza came to El Toro, her place of work, and threatened to Mil her. Sergeant Scott Powell, who was dispatched to El Toro on June 3, testified Winters reported that Mendoza had been arrested for coming to El Toro because he had shown up that day and refused to leave. Powell found Mendoza less than a block away from El Toro. Witness Brenda Larez testified that Mendoza came into the restaurant and said he was going to Mil Winters.
The State charged Mendoza with attempted first-degree murder of Winters, attempted first-degree murder of Lopez, aggravated batteiy of Lopez’ penis, aggravated batteiy of Lopez’ right leg, aggravated burglary, aggravated batteiy of Winters, criminal threat of Winters on June 3, criminal threat of Winters by telling her he would Mil her if she were with another man, criminal threat of Winters by threatening to cut a letter “M” in her face, and theft of Winters’ vehicle. The jury convicted Mendoza on all ten counts.
In his appeal, Mendoza contends his aggravated batteiy convictions are multiplicitous, his criminal threat convictions are multiplicitous, and the court should have given a limiting instruction when it admitted evidence of his prior crimes. Finally, he argues the trial court incorrectly instructed the jury about heat of passion and the prosecutor made improper comments about the definition of voluntary manslaughter. We will deal with the issues in that order.
We examine the aggravated battery convictions.
Originally, the State charged Mendoza with one count of aggravated battery of Lopez. At the preliminary hearing, the State asked to amend the complaint and charge Mendoza with an additional count of aggravated battery, specifying one charge for cuts on the penis and one charge for the severe injury to the right leg. Mendoza objected. The district court allowed the additional count, noting multiplicity issues “would be addressed at sentencing.” Thereafter, the charge was one count aggravated battery of the right leg and one count aggravated battery of the penis.
Our Kansas Supreme Court in State v. Schoonover, 281 Kan. 453, 462-505, 133 P.3d 48 (2006), established the framework for examining multiplicity issues. The court held that to violate double jeopardy, two components must be met: (1) The convictions must arise from the same conduct and (2) by statutory definition, there must be only one offense. 281 Kan. 453, Syl. ¶ 15. We must therefore determine if the same conduct was involved here and then what the unit of prosecution is for aggravated battery.
When determining whether convictions arise from the same conduct, Schoonover suggested that courts consider: (1) whether the acts occurred at or near the same time; (2) whether the acts occurred at the same location; (3) whether there is a causal relationship between the acts, particularly whether there was an intervening event; and (4) whether there was a fresh impulse motivating some of the conduct. 281 Kan. at 497.
Same conduct
We look first at prior cases. In State v. Potts, 281 Kan. 863, 865-66, 135 P.3d 1054 (2006), the defendant Potts hit, grabbed, and pushed V.H. when she refused sex. Potts threatened to kill V.H. Potts then became calm. When V.H. again refused sex, Potts forced sex. Holding Potts’ convictions arose from the same conduct, the court on appeal explained:
“Potts’ actions in this case occurred at nearly the same time and location. Although the defendant calmed down momentarily when he lay down on the bed, the record suggests that only a few minutes went by before he told V.H. to perform oral sex on him. All of the acts seemingly stemmed from V.H.’s refusal of Potts’ sexual advances, and the evidence does not demonstrate a fresh impulse motivating some of the conduct. Rather, the evidence demonstrates that the charges arose out of the same continuous transaction involving Potts’ violent reaction to V.H. repeatedly refusing his sexual advances.” 281 Kan. at 872.
Compare State v. Dorsey, 224 Kan. 152, 156, 578 P.2d 261 (1978) (held three attempted rapes multiplicitous where separated by only a few minutes); State v. Long, 26 Kan. App. 2d 644, 645-50, 993 P.2d 1237 (1999), rev. denied 268 Kan. 892 (2000) (held five rape convictions not multiplicitous where defendant raped victim in three different rooms in various positions within 1-or 2-hour period).
We look now at the facts of this case. Lopez testified Mendoza first stabbed him in the right leg. Lopez then fell down on the carpet and was lying on his back, and Mendoza started to knife Lopez in the stomach, while Lopez covered his face and chest. Mendoza then stabbed the knife into Lopez’ arm. Lopez was also stabbed in the buttocks and right thigh. Lopez testified that at no point did Mendoza stop attacking him until he left the room. Lopez stated that when he was still lying on the floor, Mendoza “finished attacking” him by pulling down his undershorts and cutting his penis. Mendoza told Lopez he was going to go get Winters so he could kill her next to Lopez and then left the room.
Applying the Schoonover factors, it appears the aggravated battery convictions indeed arose from the same conduct. First, the stabs occurred at or near the same time. Although the record fails to establish a time frame, Lopez’ testimony indicates Mendoza cut his penis immediately after stabbing his right leg, stomach, arm, and other body parts. Second, the batteries occurred at the same location. Lopez’ testimony does not indicate he and Mendoza changed location during the time Mendoza stabbed his right leg and cut his penis. Third, there was a causal relationship between the batteries in that both were done in a concerted effort to seriously harm or kill Lopez for engaging in a relationship with Winters. Fourth, the record reveals no fresh impulse motivating Mendoza’s final act of cutting Lopez’ penis. Instead, it appears the sequence of stabs was one continuous altercation and the record reveals no evidence of an intervening event. We must now look at the statute.
The unit of prosecution
When there are multiple counts for violation of a single statute, Schoonover stated the test to determine whether there is only one offense is to determine how the legislature has defined the scope of conduct that comprises a violation of the statute. 281 Kan. at 497. The court explained that the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution.
We first look at prior cases. In State v. Gomez, 36 Kan. App. 2d 664, 143 P.3d 92 (2006), the defendant (Gomez) was charged and convicted of two counts of criminal discharge of a firearm. The charges stemmed from an incident in which Gomez fired shots at a vehicle in which both Kutilek and Swiler were located. On appeal, Gomez argued the convictions were multiplicitous because the statute only prohibited discharge into a vehicle in which a human being is present. Gomez argued that the fact there was more than one human being in the vehicle was immaterial.
The first component of Schoonover was satisfied in Gomez, as neither party argued the convictions did not arise from the same conduct. See 281 Kan. at 496-97; 36 Kan. App. 2d at 669-70. The court then applied Schoonover s “unit of prosecution” test because Gomez challenged multiple violations of a single statute. 36 Kan. App. 2d at 670-71. The court noted that the key in determining the minimum unit of prosecution is legislative intent, a determination dependent upon the nature of the conduct proscribed. 36 Kan. App. 2d at 670. The court noted that the court in United States v. Chipps, 410 F.3d 438, 447-48 (8th Cir. 2005), was presented with deciding whether Congress intended to punish assault as a course of conduct or as separate individual acts within an assaultive episode. Chipps ultimately held that because Congress had not specified the unit of prosecution with clarity, the rule of lenity applied. 410 F.3d at 449. The court therefore resolved doubt in Chipps’ favor and interpreted assault as a “course-of-conduct offense.” 410 F.3d at 449.
Holding that Gomez’ convictions were multiplicitous, Gomez reasoned that the statutory language did not state that each occupant is presence in the vehicle constituted an additional violation. 36 Kan. App. 2d at 672-73. The court stated: “As our Supreme Court instructed in Schoonover, it is the language of the statute, not the number of persons injured, which controls. [Citation omitted.]” 36 Kan. App. 2d at 672. The court reasoned that although the legislature could have provided that each occupant’s presence constitutes a separate violation of the statute, it did not do so. 36 Kan. App. 2d at 673.
In State v. Thompson, 287 Kan. 238, 200 P.3d 22 (2009), the court similarly reasoned that the legislature did not state whether possession of each item listed in K.S.A. 65-7006 could be prosecuted separately and the unit of prosecution was not defined by the language of the statute when holding that multiple convictions under the same statute were multiplicitous. 287 Kan. at 246-52.
Turning to the aggravated battery statute, K.S.A. 21-3414(a) defines aggravated battery as:
“(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
“2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
The statutory language clearly indicates aggravated battery is inflicted upon another person. The nature of the conduct proscribed appears to encompass all physical harms, disfigurements, and physical contacts inflicted upon the person. See Gomez, 36 Kan. App. 2d at 670. As the Gomez court reasoned, the statute does not state that harm to each individual body part constitutes a separate violation of the statute. See 36 Kan. App. 2d at 672. The legislature could have provided this language when enacting K.S.A. 21-3414 but chose not to do so. Thus, the unit of prosecution is the person harmed. The district court erred in permitting two convictions for aggravated battery of the same person. See Schoonover, 281 Kan. at 497-98.
The State argues this was harmless because the aggravated battery sentences were made concurrent to the attempted first-degree murder sentences. We disagree. In Gomez, the court noted that when there are multiplicitous convictions, the defendant should only be sentenced on the more severe offense, and it reversed one conviction and ordered that the district court resentence Gomez because the sentences were consecutive. 36 Kan. App. 2d at 673. Here, the severity level of the aggravated battery charges are identical. We reverse the aggravated battery of the penis conviction because it was added later and remand to the district court for resentencing and to remove the additional conviction from Mendoza’s criminal history score, as the inclusion of this conviction would adversely affect that score.
We now examine the criminal threat convictions.
Mendoza next argues that two of three convictions for criminal threat were multiplicitous. Count 8 charged Mendoza with criminal threat in violation of K.S.A. 21-3419(a)(1) for telling Winters he would “kill her if she were to be with another man, or words to that effect.” Count 9 charged Mendoza with violating the same statute for threatening to cut a letter “M” in Winters’ face. In Mendoza’s view, the jury could have found these statements were made during the same time period and that the State did not establish the statements were made during separate incidents, noting Winters testified that Mendoza made a threat containing both statements. He argues the unit of prosecution for criminal threat is the actual threat, not the various statements that comprise the threat.
We must apply the Schoonover factors here. First, the record fails to establish whether Mendoza’s statements were made at or near the same time. The record only establishes that the statements were made between 1999 and June 2000. Second, the record fails to establish whether the statements were made at the same location. Other than Penny’s testimony, the testimony fails to establish where any of the statements were made. Third, although there is likely a causal relationship between the statements, as they were both clearly made in an effort to threaten Winters, there is no evidence regarding intervening events or fresh impulse.
Based on the above, there is no evidence that the statements arose from the same conduct or were part of one transaction. The appellant has the burden to establish a record supporting his claim on appeal. City of Mission Hills v. Sexton, 284 Kan. 414, 435, 160 P.3d 812 (2007). “If the conduct is discrete, i.e., committed separately and severally, the convictions do not arise from the same offense and there is no double jeopardy violation.” Schoonover, 281 Kan. at 496. Because there is no evidence Mendoza’s convictions for criminal threat arose from the same conduct, the convictions are not multiplicitous, and Mendoza was properly convicted.
Mendoza failed to object to the K.S.A. 60-455 evidence.
In this issue, Mendoza claims the State elicited extensive testimony about uncharged crimes, focusing on the many times Mendoza threatened Winters during their relationship.
Mendoza failed to object at trial to the admission of K.S.A. 60-455 evidence he now challenges. Evidence admitted by authority of K.S.A. 60-455 must be objected to at trial in order to preserve the issue for appeal. See State v. Gaither, 283 Kan. 671, 689-90, 156 P.3d 602 (2007); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006); K.S.A. 60-404. Thus, Mendoza failed to preserve the issue for purposes of appeal, and this court will not address the issue.
We examine the “heat of passion” issue raised by Mendoza.
Mendoza finally challenges both the district court’s jury instructions defining “heat of passion” and the prosecutor’s closing statement defining voluntary manslaughter. We note that he did not object to either. Therefore, we examine the instruction complaint for clear error, see State v. Castoreno, 255 Kan. 401, 403-04, 874 P.2d 1173 (1994), and the prosecutor’s comments to see if any error was harmless or rises to the level of violating the defendant’s constitutional rights to a fair trial and due process. State v. Kunellis, 276 Kan. 461, 467, 78 P.3d 776 (2003).
K.S.A. 21-3403(a) defines voluntary manslaughter as the intentional killing of a human being committed upon a sudden quarrel or in the heat of passion. PIK Crim. 3d 56.04(e) states that heat of passion is “any intense or vehement emotional excitement which was spontaneously provoked from circumstances” and that “[sjuch emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.” Our Supreme Court recently agreed that heat of passion is any intense or vehement emotional excitement prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror, that would cause an ordinary man to act on impulse without reflection. State v. Vasquez, 287 Kan. 40, 54, 194 P.3d 563 (2008) (citing State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 [1985]).
Here, the court instructed the jury that the elements of voluntaxy manslaughter are (1) the defendant intentionally killed, (2) upon a sudden quarrel or in the heat of passion, and (3) on June 11, 2000. The jury was provided the definition of “heat of passion” set forth in PIK Crim. 3d 56.04(e). In closing, the prosecutor stated, “Voluntary manslaughter is sudden passion, sudden quarrel. Trying to kill but not developing the intention to kill. It’s kind of an unintentional — it is an intentional killing but not intending to kill.”
Mendoza challenges the prosecutor’s statement that voluntaxy manslaughter is sudden passion. He emphasizes that the concept of “sudden passion” was based on an earlier version of the manslaughter statute that required a killing “without a design to effect death.” Mendoza suggests that because the phrases “impulse without reflection” and “spontaneously provoked” were used when the “sudden passion” statute was in effect, these phrases now should be discarded. Thus, Mendoza challenges the jury instructions in this regard as' well.
We are not convinced for two reasons. First, it is very unlikely the prosecutor’s use of the phrase “sudden passion” misled the jury. The Supreme Court has held that “heat of passion” is not a concept that is “so foreign to the vocabulary of the average juror as to require definition.” State v. Stafford, 223 Kan. 62, 66, 573 P.2d 970 (1977). Moreover, PIK Crim. 3d 56.04(e) defines heat of passion as excitement spontaneously provoked that causes an ordinary person to act on impulse without reflection. It is not a far stretch to characterize the passion required as “sudden.”
Second, our Supreme court has recognized the “impulse without reflection” and “spontaneously provoked” phraseology set forth in PIK Crim. 3d 56.04(e) since the date of the cases cited by Mendoza and has never suggested this language is outdated or improper. See State v. Gallegos, 286 Kan. 869, 874-75, 190 P.3d 226 (2008); State v. Brown, 285 Kan. 261, 301-02, 173 P.3d 612 (2007); State v. Robertson, 279 Kan. 291, 305-06, 109 P.3d 1174 (2005).
Citing State v. Follin, 263 Kan. 28, 37-38, 947 P.2d 8 (1997), Mendoza argues that it makes no sense to require that a killing be sudden or spontaneous because case law allows for a reasonable passage of time after provocation for passion to cool. Indeed, the court in Follín explained that heat of passion dissipates as time passes. 263 Kan. at 37-38. This suggests there may be some time frame after the event causing heat of passion has passed in which a subsequent killing would still be considered voluntary manslaughter. Nevertheless, this idea does not alter the long-recognized concepts of impulse, sudden action, or spontaneity as it pertains to voluntary manslaughter. See State v. Henson, 287 Kan. 574, 583, 197 P.3d 456 (2008) (noting district court determination voluntary manslaughter instruction was not warranted because 20 to 30 minutes passed between punch and shooting is supported by law).
Next, Mendoza complains the prosecutor incorrectly told the jury that an intent to kill was not required for purposes of voluntary manslaughter. Indeed, the prosecutor in closing inartfully described voluntaiy manslaughter as [t]rying to kill but not developing the intention to kill. It’s land of an unintentional — it is an intentional killing but not intending to kill.” K.S.A. 21-3403(a) defines voluntary manslaughter as an intentional killing. Thus, the prosecutor’s statement indicating voluntary manslaughter does not involve an intent to kill was clearly incorrect and confusing to the jury. Nevertheless, when the defendant fails to object to alleged prosecutorial error at trial, this court must consider whether the error was harmless. Kunellis, 276 Kan. at 467.
Here, the jury was correctly instructed that voluntary manslaughter is an intentional killing. Moreover, there is ample evidence to support Mendoza’s convictions for attempted first-degree murder (i.e., any overt act toward the perpetration of killing a human being intentionally and with premeditation by a person who intends to commit the crime but fails in the perpetration or is prevented or intercepted in the execution). K.S.A. 21-3301(a); K.S.A. 21-3401(a).
Lopez and Winters testified there was no sound or signal that anyone was in the trailer when they entered, although Winters noticed a pantiy door was open. Both testified Mendoza came out of the bedroom closet holding two knives pointed toward them. Winters testified Mendoza had on white gloves. Winters testified that when she returned to her trailer at a later time, she discovered the two largest knives from her butcher block were missing. Winters found a hammer and curling iron, both normally kept elsewhere, inside the closet from which Mendoza emerged.
Mendoza admitted he went to the trailer on June 10 but testified he saw Lopez and Winters standing at the door of the bedroom, and that Lopez hit him with an alarm clock which made him get angry, and they started to fight. Mendoza stated both he and Lopez saw a knife and tried to grab it, and both received injuries. Notably, Mendoza’s own testimony did not appear to claim heat of passion for purposes of voluntary manslaughter but suggested self-defense.
The above facts indicate Mendoza’s actions were both intentional and premeditated. Thus, the prosecutor’s statement was harmless and is not a reason for reversal of Mendoza’s convictions.
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Rulon, C.J.:
J.D., the natural mother of S.D., appeals the district court’s termination of her parental rights. We conclude that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that mother’s parental rights should be terminated and that termination was in the child’s best interests. Accordingly, we affirm.
Factual and procedural background
S.D. was taken into protective custody on February 6, 2007, on suspicion she was the victim of physical abuse. That day, mother’s live-in boyfriend, A.Q., brought 2%-year-old S.D. to the Geary Community Hospital. S.D. had multiple injuries, including a cut lip; injuries to both thighs; an injuiy to her right leg, which had a shoe print on it; marks on her neck; and what appeared to be belt marks on her back. A.Q. had been taking care of S.D. while mother was at work.
During the ensuing police investigation, both mother and A.Q. initially said they did not know how S.D. was injured. A.Q. claimed the injuries must have happened when he was sleeping. A.Q. suggested perhaps a stack of DVDs had fallen on S.D. and S.D. may have been scratched by their puppies. Upon being shown pictures of S.D.’s injuries, A.Q. began crying and eventually admitted to being responsible for a couple of the injuries, including the marks on S.D.’s back.
When mother was questioned, she told police she had bathed S.D. the night before and did not see any injuries on her. However, mother told police that about 2 weeks prior, mother returned home from work to find A.Q. had handcuffed S.D. to the bed. After police showed mother pictures of S.D.’s injuries, mother began to cry and told police she did not want A.Q. in her home any more. A.Q. was arrested and charged with child abuse.
Police questioned mother again the next day after they learned not all of S.D.’s injuries had been inflicted recently. Eventually, mother admitted she had lied about bathing S.D. the night before; she hadn’t bathed S.D. in days. Mother told officers that A.Q. had been spanking her and S.D. for over a month. Mother told police she was afraid to leave A.Q. because he had threatened to kill her and harm S.D. if she left him. Mother was arrested and charged with aggravated child endangerment and obstruction of official duty.
S.D. was placed in the custody of SRS, which placed S.D. in an out-of-home placement. A hearing was held April 4, 2007, on the State’s petition alleging S.D. was a child in need of care. At the hearing, mother stipulated to the allegations of the petition, including S.D. had been physically abused. Thereupon, the district court found S.D. was a child in need of care.
SRS’s investigation into the physical abuse led to a substantiated finding of child abuse as to both A.Q. and mother. Mother’s substantiated finding was based on failure to protect S.D. from abuse.
On April 16, 2007, mother was convicted of aggravated child endangerment and was sentenced to probation, with one of the conditions being she have no contact with A.Q. A.Q. pled guilty to a reduced charge of attempted child abuse. Although the record is unclear on this point, we understand A.Q. received probation.
Mother’s initial case plan goal was reintegration and she was assigned various tasks to complete in order to achieve reintegration. During the first 4 months that S.D. was in custody, mother made very good progress on her case plan tasks. Mother completed a drug and alcohol assessment; completed parenting classes; completed a psychological assessment; submitted to UAs prior to all visits, testing clean on all but one of the first tests; cooperated with social workers; and kept regular visits with S.D. By early June 2007, because of her progress, mother was having unsupervised visits with S.D. and the agency was considering allowing overnight unsupervised visits.
One of the requirements of mother’s case plan was she have no contact with A.Q. There was a dual no contact order between S.D. and A.Q., issued by the district court when S.D. was taken into custody. In mid-June 2007, the caseworker received information mother was having contact with A.Q. When asked about contact with A.Q., mother admitted having contact with him about 3 weeks prior. When the caseworker expressed her concern about this, mother replied she believed people could change and she wanted to be in a relationship with A.Q. Mother told the caseworker she would never allow S.D. to be alone with A.Q. We understand when S.D. was taken into custody, mother was pregnant with A.Q.’s child; she gave birth to A.Q., Jr. in September 2007.
The next day, two family support workers went to mother’s home for an unannounced visit. Mother delayed letting them in. Once inside, they saw a man, whom modier later admitted was A.Q., leaving out of the back door. Mother’s unsupervised visits were terminated, and mother signed a safety plan in which she agreed to not have contact with A.Q. and to contact law enforcement and the agency if A.Q. tried to contact her.
On September 21, 2007, A.Q. escaped from custody (it is not clear from the record why A.Q. was in custody at that time). The investigation led officers to believe A.Q. was staying with mother. However, when police and a caseworker confronted mother about this, mother denied having any contact with A.Q. Eventually, police went to an apartment in Manhattan where they believed A.Q. might be located. Mother was at the apartment. Although mother told police she did not know if A.Q. was in the apartment, he was found hiding under the kitchen sink. Both A.Q. and mother were arrested. Subsequently, mother admitted she had been having on going contact with A.Q. When the caseworker asked her why she was having contact with A.Q., mother said he had been threatening and controlling her. Mother told the caseworker she had contact with A.Q. because he wanted to see his new son. Mother told the caseworker she was done with A.Q.; she had decided not to be in a relationship widi him for the sake of her children.
Mother was convicted of three counts of violation of a PFA order and felony obstruction of official duty. Because mother was on felony probation on the aggravated child endangerment conviction at the time of the new offenses, she was sent to prison. Mother s earliest possible release date is May 4, 2009. A.Q. was also sent to prison, and his earliest possible release date is May 23, 2009.
On February 20, 2008, the State filed a motion to terminate mother’s parental rights. A trial was held on June 13, 2008. Both mother and A.Q. testified. A.Q. testified he did not abuse S.D., but took the blame so he would go to jail rather than her.
Mother testified she had not been truthful with the police. She said A.Q. had never abused or threatened her and she had lied about the handcuffs incident. She testified she loves A.Q. and would be with him if she could. Although she testified she wanted the no contact order lifted, she said she would abide by it if it was not lifted, as being in prison had taught her the value of complying with court orders. However, during the trial, one of the correctional officers charged with escorting mother and A.Q. saw A.Q. slip a note to mother — a violation of the continuing no contact order. In the note A.Q. professed his love for mother and told her he will come back to Junction City.
Mother had several character witnesses who testified that she loves S.D., is a good mother, and would always place S.D.’s needs before her own.
Other evidence at the hearing showed S.D. has special needs. S.D. suffers from post traumatic stress disorder, has behavioral issues, and her speech is delayed. S.D. is in therapy for her mental health issues and in speech therapy.
The agency caseworker testified she did not believe it would be in S.D.’s best interests to wait until mother is released from prison to again attempt reintegration with mother. She based this opinion on the following facts: At the time of the hearing, S.D. had been in an out-of-home placement for almost IV2 years; S.D. had not had contact with her mother for 9 months because of mother s incarceration and, at the time of the hearing, mother s earliest possible release date was 11 months away. The caseworker testified even if mother is released in May 2009, she would be subject to postrelease supervision and thus would still not be in a position to provide permanency for S.D. in a timely fashion. The caseworker testified any reintegration plan after mother is released would include a no contact order and she doubted, based on mother s past conduct, whether mother would comply with such an order.
At the conclusion of the trial, the district court terminated mother’s parental rights to S.D. The court found the State had proved by clear and convincing evidence that mother was unfit by reason of conduct or condition that rendered her unable to properly care for S.D. and such conduct or condition was unlikely to change in the foreseeable future. The district court further found, considering the physical, mental, or emotional health of the child, termination of mother’s parental rights was in S.D.’s best interests.
Mother timely appeals.
K.S.A. 2008 Supp. 38-2269(a) provides that the district court may terminate parental rights after finding by clear and convincing evidence that “the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” Clear and convincing evidence is evidence which shows that the truth of the facts asserted is highly probable. In re B.D.Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594 (2008). When an appellate court reviews a trial court’s determination to terminate parental rights, it considers whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that the parent’s rights should be terminated and such termination was in the child’s best interests. In re B.E.Y., 40 Kan. App. 2d 842, Syl. ¶ 1, 196 P.3d 439 (2008).
K.S.A. 2008 Supp. 38-2269(b) and (c) provide a nonexclusive list of factors the court may consider in determining unfitness and in terminating parental rights. The existence of any one of the statutory factors “standing alone may but does not necessarily establish grounds for termination of parental rights.” K.S.A. 2008 Supp. 38-2269(f).
The district court based its finding of unfitness on the following statutory factors: K.S.A. 2008 Supp. 38-2269(b)(2) (conduct toward a child of a physically emotionally or sexually cruel or abusive nature); K.S.A. 2008 Supp. 38-2269(b)(5) (conviction of a felony and imprisonment); K.S.A. 2008 Supp. 38-2269(b)(7) (failure of reasonable efforts by the agency to rehabilitate the family); K.S.A. 2008 Supp. 38-2269(b)(8) (lack of effort by mother to adjust her circumstances, conduct or condition to meet the needs of S.D.); and K.S.A. 2008 Supp. 38-2269(c)(3) (failure to cany out a reasonable court-approved plan directed toward reintegrating the child into the home).
The district court found the following facts supported its determination that mother was unfit: S.D. was taken into SRS custody in Februaiy 2007, after mother s boyfriend allegedly battered S.D. and mother allegedly knew about the ongoing abuse and failed to protect the child; mother failed to comply with the case plan requirements by not remaining crime free, by violating the terms of her probation, and by having contact with the child’s abuser; mother’s felony probation was revoked and she was sent to prison; and mother was convicted of new crimes, which caused her to receive an additional sentence of imprisonment.
Mother essentially challenges the sufficiency of the evidence to support the district court’s finding of unfitness based upon the statutory factors set out above.
Mother contends the evidence did not support the finding she engaged in conduct toward S.D. of a physically, emotionally, or sexually cruel or abusive nature. See K.S.A. 2008 Supp. 38-2269(b)(2)—conduct toward a child of a physically, emotionally or sexually cruel or abusive nature. In support, she makes two arguments. First, mother suggests her testimony at the trial in which she “cover[ed] up for A.Q.” “maybe indicative of battered woman syndrome.” She asserts some states allow victims of domestic violence to introduce such evidence to explain the failure to protect.
There is no evidence in the record mother suffered from battered woman syndrome — a fact mother s counsel ostensibly recognizes in suggesting the evidence “may” indicate such. There is some evidence in the record mother told others A.Q. had abused her and she was afraid of A.Q. However, mother never argued to the district court that physical abuse by A.Q. should be considered as a defense for the failure to protect S.D. At trial, mother denied that A.Q. had ever abused her. In any event, mother s argument invites this court to reconsider the evidence in a different light— something we will not do. Under our standard of review, we view the evidence in the light most favorable to the State. In re B.D.-Y., 286 Kan. 686, Syl. ¶ 4. Thus, we do not reweigh the evidence or substitute our judgment for that of the district court. In re M.B., 39 Kan. App. 2d 31, 44, 176 P.3d 977 (2008).
Mother also argues K.S.A. 2008 Supp. 38-2269(b)(2) requires proof she directly participated in physically abusing S.D. She argues mere inaction, such as the failure to protect a child from abuse, is insufficient.
Mother s argument requires we interpret the meaning of K.S.A. 2008 Supp. 38-2269 (b)(2). “Interpretation of a statute is a question of law, and the appellate court’s review is unlimited.” In re T. S., 276 Kan 282, 287, 74 P.3d 1009 (2003), disapproved on other grounds In re B.D.-Y., 286 Kan. 686.
We note first mother did not raise this argument before the district court. As a general rule, an appellate court will not consider arguments raised for the first time on appeal. In re S.M.H., 33 Kan. App. 2d 424, 429, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005). Exceptions to this general rule have been recognized where: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 311, 75 P3d 1222 (2003).
We will address this issue under the second exception. Addressing the purely legal issue of whether K.S.A. 2008 Supp. 38-2269(b)(2) applies where a parent fails to protect his or her child from abuse serves the interests of justice by providing guidance to the bench and bar. Cf. State v. Miller, 284 Kan. 682, 709, 163 P.3d 267 (2007) (issue raised for the first time on appeal considered because “further discussion” of the issue necessary to serve the ends of justice); State v. Harned, 281 Kan. 1023, 1045, 135 P.3d 1169 (2006) (issue raised for the first time on appeal not novel and therefore addressing it would not serve the ends of justice). Additionally, termination of parental rights implicatés a parent’s fundamental right to custody and control of his or her children. See In re J.L., 20 Kan. App. 2d 665, Syl. ¶ 2, 891 P.3d 1125, rev. denied, 257 Kan. 1092 (1995).
Mother supports her argument with a Texas case that held that a 1-day delay in reporting father’s abuse of child was insufficient to support termination of her parental rights. See Shapley v. Texas Dept. of Human Resources, 581 S.W.2d 250 (Tex. Civ. App. 1979). That case is not on point. It does not address whether or not a statute similar in wording to K.S.A. 2008 Supp. 38-2269(b)(2) requires actual physical abuse.
Mother further cites a 1995 Family Law Quarterly article for the proposition that terminating an abused mother’s parental rights for failure to protect her child imposes “an affirmative legal duty not found in statutory or common law to protect a child from abuse.” Davidson, Child Abuse and Domestic Violence: Legal Connections and Controversies, 29 Fam. L. Q. 357, 366 (Summer 1995).
We conclude mother’s argument unpersuasive. First, in Kansas, it has been recognized that parents have a natural, as well as common-law, duty to protect their children from abuse. Cf. State v. Edgar, 281 Kan. 47, 68, 127 P.3d 1016 (2006) (quoting 59 Am. Jur. 2d, Parent & Child § 22, p. 190) (prosecutor did not commit misconduct by cross-examining defendant about his failure to intervene to stop abuse of his child; parents have a legal duty to protect their children from abuse). Moreover, our criminal statutes impose a duly on parents to protect their children from abuse. K.S.A. 21-3608 (child endangerment); K.S.A. 21-3608a (aggravated child endangerment).
Moving to the language of the statute, we are guided by the fundamental rule of statutory construction: 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). We “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).
K.S.A. 2008 Supp. 38-2269(b)(2) concerns conduct toward a child of an “abusive nature.” The ordinaiy meaning of the phrase “abusive nature” as opposed to the term “abuse” plainly evidences the intent to cover abusive conduct other than actual direct physical abuse. This reading is bolstered by the language of one of the other statutory factors, K.S.A. 2008 Supp. 38-2269(b)(4), which concerns “physical, mental or emotional abuse or neglect or sexual abuse of a child.” That subsection plainly applies to direct abuse of a child. See State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008) (when construing statutes to determine legislative intent, appellate court must consider various provisions of an act in pari materia). If we were to accept mother’s construction, there would be no need for subsection (b)(4), as it would be duplicative of K.S.A. 2008 Supp. 38-2269(b)(2).
Last, we note a parent’s failure to protect a child from abuse has been found sufficient to support termination of parental rights. See e.g., In re J.D.D., 21 Kan. App. 2d 871, 876-77, 908 P.2d 633 (1995).
We hold a parent’s failure to protect their child from abuse constitutes “conduct toward a child of a physically, emotionally or sexually cruel or abusive nature” under K.S.A. 2008 Supp. 38-2269(b)(2).
Mother argues the evidence was insufficient to establish mother’s incarceration was a valid factor to support termination of mother’s parental rights. See K.S.A. 2008 Supp. 38-2269(b)(5)—felony conviction and imprisonment. She contends evidence she tried to get pictures of S.D. while incarcerated showed mother had made a reasonable attempt to maintain an ongoing relationship with S.D. Mother argues because she was scheduled to be released in just under 1 year, the evidence was insufficient to support a finding her present inability to care for S.D. was unlikely to change in the foreseeable future. Mother contends it would not be unreasonable to require S.D. to wait that long for reintegration.
We have recognized a parent incarcerated for a long term obviously cannot “provide the customary parental care and guidance ordinarily required.” In re M.B., 39 Kan. App. 2d 31, Syl. ¶ 10. In that situation, the court must consider the extent to which the “imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship” with her child. The sufficiency of those efforts is for the trial court to determine. 39 Kan. App. 2d 31, Syl. ¶ 10.
Here, mother s incarceration on a felony conviction was sufficient to support this factor. Mother s only effort to maintain contact with her child while imprisoned was a request for her picture. There was no evidence of any other efforts on mother’s part to attempt to fulfill the customary duties of a parent.
The evidence also supported the district court’s finding mother’s condition would not change in the foreseeable future. What is the “foreseeable future” is to be considered “from the child’s perspective, not the parents’, as time perception of a child differs from that of an adult.” In re M.B., 39 Kan. App. 2d at 45. At the time of the hearing, mother was not scheduled to be released for 11 more months. We have found incarceration for as few as 7 additional months from the date of the hearing, along with other factors, was sufficient to establish that the parent’s condition would not change in the foreseeable future. See In re M.B., 39 Kan. App. 2d at 47-48; see also In re D.T., 30 Kan. App. 2d 1172, 1175, 56 P.3d 840 (2002) (under circumstances, which included infrequent contact, it would be unreasonable to require child to wait an additional 10 months for parent’s release from prison).
Here, S.D. had already been in out-of-home placement for 7 months when mother was imprisoned. By the time mother is released from prison, S.D. will have been in out-of-home placement for 27 months — almost half of her life. The district court found it especially pertinent mother’s incarceration was the direct result of mother s conduct in violating the no contact order put into place to protect S.D. Under the circumstances, we conclude there was sufficient evidence to support the district court’s determination mother’s incarceration on a felony conviction supported a finding mother was unfit by reason of conduct or condition that was not likely to change in the foreseeable future.
Mother argues reasonable efforts by the agency failed to rehabilitate the family. Mother claims she had completed all of her case plan tasks and was only unable to reintegrate with S.D. because she went to prison. See K.S.A. 2008 Supp. 38-2269(b)(8) and (c)(3).
Mother’s argument does not account for the seriousness of her failure to comply with the no contact order. The no contact order was a reasonable requirement of the reintegration plan that was intended to protect S.D. from her abuser. It was mother’s repeated failure to comply with that order and mother’s resulting imprisonment for her conduct that supported the finding that mother had failed to carry out the reintegration plan and that rehabilitation efforts had failed. Considering all of the evidence before the district court in the light most favorable to the State, we conclude the evidence was sufficient to support the district court’s finding that rehabilitative efforts had failed and mother had failed to carry out the reintegration plan.
Briefly stated we conclude the evidence in the record was sufficient to establish mother demonstrated a lack of effort to adjust her circumstances and conduct to meet the needs of her child. See K.S.A. 2008 Supp. 38-2269(b)(8).
In summary, considering all the evidence in the record before us, we are convinced by clear and convincing evidence a rational factfinder could have found it highly probable that mother was unfit by reason of conduct or condition that rendered her unable to properly care for S.D. and that conduct or condition was unlikely to change in the foreseeable future. Moreover, in terminating mother’s parental rights, the district court found that termination was in S.D.’s best interests, in light of her physical, mental, and emotional needs. Accordingly, we affirm. | [
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Malone, J.:
Sean Schuff appeals his conviction of one count of possession of marijuana. Schuff claims the district court erred by denying his motion to suppress the evidence. Specifically, Schuff argues that the district court erred in determining that his initial encounter with a police officer was justified as either a public.safety stop or a voluntary encounter. We hold the encounter was justified as a public safety stop, and we decline to address the voluntary encounter issue.
On September 27, 2007, at 12:40 a.m., the Salina Police Department dispatch received a phone call from a young woman who expressed concern about seeing a car drive off the road near her neighborhood. The audio CD of the original phone call is included in the record on appeal. The caller did not state her name but indicated she lived in the area of Cedar Creek Community Park. She informed dispatch that she saw a white car “drive through the dead end on Marcella Drive” and did not return. She indicated that she did not know whether the car went into a field or down into a creek. The caller further informed dispatch that she just wanted to make sure somebody was not “stuck out there.” The dispatch officer informed the caller that the police would check the matter out.
Following the phone call, Officer Matthew Gaywith was dispatched to the 3300 block of Marcella Drive. The dispatch officer informed Gaywith that a white car had driven through the dead end of Marcella Drive and he was supposed to check out the sit uation. Gaywith arrived at 12:49 a.m., and he located a.white car near the dead end of Marcella Drive. An aerial map introduced into evidence showed that the car was found in a remote area away from any houses. The car was parked off the paved road next to a field. The engine was not running and all the lights were off. Gay-with parked his patrol vehicle about 20 yards behind the car. He testified there was room for the car to turn around and leave the area if it had attempted to do so. The car s interior was dark and Gaywith was unable to see what the occupants of the car were doing.
Gaywith activated his patrol vehicle’s emergency overhead lights. He testified that he did so because he did not want someone to run into the back of his patrol vehicle. On cross-examination, however, Gaywith admitted that activating the emergency lights was a signal for the occupants of the car “to stay put.”
Gaywith approached the car without drawing his weapon. He testified that his purpose in approaching the car was “just to check on those folks, make sure they were alright, no car problems, you know, just to check on the situation.” On cross-examination, he admitted he did not observe anything that caused him to believe that anyone in the car was in any type of distress.
When he reached the driver’s door, the window was down and Gaywith observed four people inside the car. Gaywith identified himself as a police officer and “asked them what they were doing out there.” Schuff, the driver, responded they were just sitting there. Gaywith immediately smelled the odor of marijuana, and he observed marijuana on the window frame of the car door. This prompted Gaywith to call for a canine unit. The police later found additional marijuana inside the car.
The State charged Schuff with one count of possession of marijuana. Schuff filed a motion to suppress the evidence and argued that Gaywith had no lawful justification to stop and approach his car. The State argued that the initial encounter was justified as either a community caretaking stop or a voluntary encounter.
After hearing the evidence, the district court found that the encounter was lawful under both legal theories. The district judge stated that “this was [an] officer responding to a call from a con cerned citizen, it’s not a normal place or a normal time for a vehicle to be parked in a remote location. ... So in this particular case I can’t imagine what any reasonable officer would have done other than what this officer did . . . .” The district court further stated, “There is no particular level of suspicion which is required for the officer to strike up a conversation with the occupants of the vehicle.” Based on these findings, the district court denied the motion to suppress. Schuff was convicted as. charged. He timely áppeals.
Schuff claims the district court erred by denying his motion to suppress the evidence. Schuff doés not dispute the fact that once Gaywith smelled the odor of marijuana and observed marijuana in the car, he had reasonable suspicion to extend the scope and duration of the stop. However, Schuff argues that Gaywith had no lawful justification to stop and approach his car in the first place. The State argues that the encounter was justified as either a community caretaking stop or a voluntary encounter.
An appellate court reviews the district court’s decision on a. suppression motion using a bifurcated standard. Without reweighing the evidence, the appellate court reviews the district court’s findings to determine whether they are supported by substantial competent evidence. The appellate court then reviews the ultimate legal conclusion regarding the suppression of evidence using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
We will first examine whether Gaywith’s encounter with Schuff can be justified as a community caretaking stop, sometimes called a public safety stop. The Kansas Supreme Court first recognized the concept of a community caretaking stop in State v. Vistuba, 251 Kan. 821, Syl. ¶ 1, 840 P.2d 511 (1992), disapproved in part on other grounds State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). In Vistuba, the officer testified that she observed erratic driving and was concerned that the driver might be impaired. However, the officer specifically stated that she did not suspect any criminal activity from her observations. The Supreme Court determined the stop was lawful and held: “[A] civil or criminal infraction is not always essential to justify a vehicle stop. Safety rea sons alone may justify the stop, if the safety reasons are based on specific and articulable facts.” 251 Kan. at 824.
In State v. Gonzales, 36 Kan. App. 2d 446, 141 P.3d 501 (2006), this court further refined the appropriate justification for a public safety stop and the limited duration and scope of such a stop. In Gonzales, an officer stopped the defendant’s vehicle when the officer observed a “bouncy” rear tire and an open hatch over the fuel cap. After the stop, the officer immediately asked for information about ownership of the vehicle and demanded the occupants’ driver’s licenses, rather than examining the problematic tire. After several minutes of questioning, the driver consented to a search of the vehicle. The court upheld the initial stop for public safety reasons, but the court also held the subsequent search of the vehicle was illegal because the duration of the stop exceeded the scope of the public safety justification. 36 Kan. App. 2d at 458.
The Gonzales court determined that the legality of a public safety stop can be evaluated in fhreé steps. First, as long as there are objective] specific, and articulable facts from which a law enforcement officer would suspect that a citizen is in need of help or is in peril, the officer has the right to stop and investigate. Second, if the citizen is in need of aid, the officer may take appropriate action to render assistance. Third, once the officer is assured that the citizen is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment to the United States Constitution. 36 Kan. App. 2d at 456.
Courts must employ careful scrutiny in applying the public safety rationale. Public safety stops should be “ Totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” City of Topeka v. Grabauskas, 33 Kan. App. 2d 210, 214-15, 99 P.3d 1125 (2004) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 93 S. Ct. 2523 [1973]); see Gonzales, 36 Kan. App. 2d at 457. Unless a public safety stop is based upon specific and articulable facts, the concept could “ ‘emasculate the constitutional protection afforded a motorist’s privacy under Terry.’ ” Nickelson v. Kansas Dept. of Revenue, 33 Kan. App. 2d 359, 364, 102 P.3d 490 (2004) (citing State v. Ludes, 27 Kan. App. 2d 1030, 1035, 11 P.3d 72, rev. denied 270 Kan. 902 [2000]); see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
In Nickelson, a Kansas Highway Patrol (KHP) trooper was on routine patrol at approximately 1 a.m., when he observed a driver turn off the highway into a “ ‘farm plug’ ” or driveway. 33 Kan. App. 2d at 360. The vehicle made a circle and stopped, and. the driver turned off his car lights. There were no farm buildings, outbuildings, businesses, or residences in the area, and the weather was cold but clear. The trooper testified he was concerned that the driver might be in distress because he had turned into an isolated area and turned off his car lights. He testified that it was KHP policy to check on the welfare of any stranded motorist and that his supervisors had given him instructions to stop and assist people on the highways. The trooper stopped his patrol vehicle next to the driver’s vehicle and blocked it from the highway. He then approached the vehicle and asked the driver if he was okay. When the driver rolled down the window in order to respond, the trooper immediately smelled a strong odor of alcohol. The driver subsequently failed a breath test, and the district court upheld the suspension of his driver’s license.
On appeal, this court held the initial encounter was justified as a lawful public safety stop because the trooper expressed specific and articulable facts for approaching the vehicle for public safety concerns. 33 Kan. App. 2d at 365. The court further held that once the trooper had lawfully stopped the vehicle, the trooper’s detection of the odor of alcohol from the vehicle constituted a sufficient reason to extend the scope and duration of the stop. 33 Kan. App. 2d at 367.
In In re J.M.E., 38 Kan. App. 2d 229, 162 P.3d 835 (2007), this court faced a nearly identical factual scenario to Schuff s case. An officer was dispatched at night to an area because a resident had reported that a white car was parked at the dead end of a road with its lights off. The officer parked approximately 20 to 25 feet behind the car and activated her emergency lights. The officer admitted she did not have any reason to believe the occupants of the car were or were not safe or that criminal activity was occurring. How ever, the officer testified that any time a suspicious car is reported, the main goal of any officer is to malee sure everyone in the car was safe. When the officer exited her patrol vehicle and approached the car, she immediately smelled marijuana emanating from the car. Once she smelled the marijuana, the officer pursued a criminal investigation. In analyzing whether the stop was justified, this court stated: “This encounter clearly fell under the community caretaking function.” 38 Kan. App. 2d at 234.
Turning to our facts, Gaywith had been dispatched to the area just before 1 a.m., based on a citizen’s call that a white car had driven through a dead-end road. The caller was concerned that the car- had driven into a field or went down into a creek. Gaywith located the white car in a remote area parked off the paved road next to a field. The engine was not running and all the car lights were off. Gaywith could not see what was going on inside the car, so he approached the car “just to check on those folks, make sure they were alright, no car problems, you know, just to check on the situation.”
Safety reasons alone may justify a stop, if the safety reasons are based on specific and articulable facts. Vistuba, 251 Kan. at 824. Gaywith approached Schuff s vehicle based on the following specific and articulable facts: (1) He had been dispatched to the area specifically to check on the welfare of a white car which had driven off the road, (2) it was just before 1 a.m., (3) the car was in a remote area, and (4) the car was parked off the paved road next to a field. It is important to view the encounter based on what Gaywith knew at the time rather than exercising hindsight. At the time of the encounter, Gaywith expressed specific and articulable facts for approaching the vehicle for public safety concerns.
Gaywith acknowledged on cross-examination that he did not observe anything that caused him to believe that anyone in the car was in any type of distress. This statement alone does not preclude the finding of a lawful public safety stop. There is a difference between the public safety rationale, which can be used to justify a car stop, and the emergency doctrine which can be used to justify a warrantless search. Under the emergency doctrine, the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or properly. There must also be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Horn, 278 Kan. 24, Syl. ¶ 2, 91 P.3d 517 (2004). Under the public safely rationale for car stops, there must be specific and articulable facts from which a law enforcement officer “would suspect that a citizen is in need of help or is in peril.” Gonzales, 36 Kan. App. 2d at 456.
Here, Gaywith did not have to actually observe an emergency at hand or an immediate need for his assistance for the protection of life or property in order to check on the welfare of the occupants of the vehicle. The fact that it was late at night and the car was in a remote area parked off the paved road next to a field provided sufficient justification for Gaywith to suspect that a citizen was in need of help or was in peril, especially in fight of the phone call from a citizen to check on the welfare of the occupants of the car.
Whether a police-citizen encounter can be justified as a public safety stop turns on the facts of each particular case. We conclude that Gaywith expressed specific and articulable facts for approaching Schuff s vehicle for public safety concerns. To paraphrase the district court’s finding, we cannot imagine what any reasonable officer would have done other than what Gaywith did. Under the totality of the circumstances, we conclude that the initial encounter between Gaywith and Schuff was justified as a public safety or community caretaking stop.
The State also argues that the initial contact between Gaywith and Schuff was a voluntary encounter. Because our ruling on the public safety justification is dispositive, we decline to address the voluntary encounter issue.
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Standridge, J.:
M.D. (Father) appeals the district court’s order terminating parental rights to his children J.M.D. and K.N.D. and permitting the children’s stepfather (Stepfather) to adopt them. We reverse the district court’s decision.
Facts
Father and S.H. (Mother) were married in 1993 in Missouri. During the marriage, Father and Mother had two children: J.M.D. was bom in 1996, and K.N.D. was bom in 1998. In 1999, J.M.D. was diagnosed with cancer. As a result, J.M.D. underwent numerous hospitalizations, as well as a year of chemotherapy and radiation treatments.
In October 2001, Father and Mother were named managing conservators, or guardians, of Mother’s 5-year-old stepsister (H.R.B.) and Mother’s 3-year-old half-sister (L.H.D.).
During the summer of 2002, Father was unemployed and, as a result, became the primary caretaker for all four children at the family’s home in Missouri. On July 18, 2002, Father called Mother at work to report that L.H.D. had been flown to the hospital as a result of serious physical injuries. L.H.D. ultimately died from these injuries. Social service workers removed the remaining three children from the home in order to investigate what role Father may have played in L.H.D.’s injuries and death.
On July 23, 2002, Father was charged with felony abuse of a child. More specifically, charges were lodged against Father for inflicting cruel and inhuman punishment on his 3-year-old ward by “beating, kicking, hitting, knocking to the ground and by throwing water on L.H.D.” Father adamantly denied the physical abuse with which he was charged and was released on bond pending trial, a condition of which was to refrain from having any contact with the children.
Meanwhile, social service officials informed Mother that in order to regain custody of the three remaining children, she would have to divorce Father and refrain from any further contact with him. Mother was granted a default divorce on October 23,2002. As part of the divorce, Mother was given sole custody of the children and Father was ordered to pay $254 per month in child support.
On December 8, 2002, Father’s bond was revoked on grounds that he met with his children in violation of the court’s order prohibiting contact with them. Although still maintaining his innocence, Father ultimately pled guilty to the charges against him. To that end, Father stated that Mother requested he take the plea agreement, even though it involved a longer sentence than Father hoped, so the children would not have to testily.
In March 2003, Mother moved to Wichita with all three children. In September 2003, Father was sentenced to a term of 17 years in prison, with a mandatory release date of December 8, 2014.
In August 2004, Mother married Stepfather.
In June 2007, Stepfather filed a petition, with Mother’s consent, to adopt J.M.D., and K.N.D. Counsel for Stepfather filed a petition for habeas corpus to bring Father from the Missouri South Central Correctional Center to Kansas to participate in the adoption trial. Because Missouri prison officials refused to honor the Kansas ha beas corpus writ, the court ordered Father to participate in the trial by telephone. A trial was set for October 24, 2007.
Citing his right to due process, Father requested to delay the trial until he could appear in person. The court denied the motion, noting that Stepfather had made every effort to get Father to Kansas for trial. The court further noted that, although Father s earliest possible parole date for the 17-year sentence was July 2008, there was no guarantee Father would be granted parole on that date or at any time prior to his mandatory release date of December 8, 2014. The district court specifically found that, given the children’s interest in a timely decision and the demands of judicial economy, Father’s ability to participate by telephone satisfied his right to due process.
The trial commenced on October 24, 2007, and was completed on November 1, 2007.
During trial, Stepfather presented the testimony of a school counselor and the children’s treating psychologist concerning the impact of L.H.D.’s death and Father’s incarceration on J.M.D. and K.N.D. The treating psychologist noted the children had experienced a number of additional stressors as well, including J.M.D.’s cancer, placement in foster care and separation from their mother for 3 months, and the illness and subsequent death of their grandmother from cancer. Both the counselor and the treating psychologist testified that the children suffered from anxiety and symptoms of posttraumatic stress disorder and would benefit from the closure and permanency offered by adoption.
Father’s sister, Tina Riley, also testified. Tina stated that while Father was in prison, she remained in contact with Mother and the children through e-mail and personal visits. Tina testified that at the beginning, Father would call and talk to the children during these visits, but then Mother asked Tina not to allow Father to call while the children were there. Tina stated she would buy $10 and $20 gift cards, at Father’s request and expense, for the children. On behalf of Father, Tina also sent the children cards and money on their birthdays and for Christmas. Tina reported that Father directed his veterans disability check be sent to her in order to pay for the purchases of gifts and gift cards for the children.
Father testified via telephone. Father recalled spending time with the children when they were young and how much fun they had together just playing and going swimming, camping, and fishing. Father testified he helped with meals and baths, and, during the summer of 2002, he was a stay-at-home dad.
At the end of the hearing, the court made lengthy factual findings, which it incorporated into its subsequent journal entry. In its conclusions of law, the court held Father failed to assume the duties of a parent for 2 consecutive years prior to the filing of the adoption petition. The court also determined Father was unfit to be a parent and that adoption by Stepfather was in the best interests of the children. For these reasons, the district court terminated Father s parental rights and determined it was not necessary to have Father’s consent in order to grant Stepfather’s petition for adoption.
On appeal, Father contends: (I) The district court misinterpreted and misapplied the stepparent adoption statute by considering Father’s fitness and the best interests of the children as overriding factors in granting Stepfather’s petition for adoption; (2) there was insufficient evidence to support a finding that Father’s consent to the adoption was not required; and (3) Father was denied due process when the court refused to continue the trial until he could be released from prison and attend the trial in person.
Analysis
1. K.S.A. 2008 Supp. 59-2136(d)
Father asserts the district court misinterpreted and misapplied the stepparent adoption statute, K.S.A. 2008 Supp. 59-2136(d). More specifically, Father argues that the court improperly considered Father’s fitness and the best interests of the children as overriding factors in terminating his parental rights and granting Stepfather’s petition for adoption. In so arguing, Father concedes the stepparent adoption statute was revised in 2006 to add “best interests of the child” and “fitness of the nonconsenting parent” as factors the court may consider to determine whether a petition for stepparent adoption should be granted. See L. 2006, ch. 22, sec. 1(d). Father argues, however, that these two factors may be con sidered only if the court independently decides, without considering these two factors, that consent to the adoption by the biological father is not required. Father maintains that in order to decide his consent is not required, the court must find he failed to carry out his parental duties on both sides of the parental ledger — financial support and emotional support.
We agree with Father’s interpretation of K.S.A. 2008 Supp. 59-2136(d). We disagree, however, with Father’s contention that the district court misapplied the statute in considering Father’s fitness and the best interests of the children without first making an independent finding that Father’s consent to the adoption was not required.
a. Interpretation of the Statute
K.S.A. 2008 Supp. 59-2136(d) provides in relevant part:
“[A natural father’s consent to an adoption is required] unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption .... In determining whether a father’s consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. . . . [T]here shall be a rebuttable presumption that if the father . . . has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent. The court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted.”
In the case of In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245 (2008), our Supreme Court examined prior cases relating to this statute and concluded that “all surrounding circumstances are to be considered when determining whether a natural parent must consent to a stepparent adoption — that is, whether the natural parent has ‘assumefd] the duties of a parent for two consecutive years next preceding the filing of the petition.’ [Citations omitted.]” 286 Kan. at 1053-54.
To that end, the courts use a “two-column ledger” approach in analyzing the requirements of K.S.A. 2008 Supp. 59-2136(d). See 286 Kan. at 1054; In re Adoption of B.M.W., 268 Kan. 871, 882, 2 P.3d 159 (2000). First, the adoption petitioner must show that the parent has faded to demonstrate love and affection toward the child by fading to visit, contact, communicate with, or make contributions to the child for the 2 years preceding the filing of the adoption petition. Second, the adoption petitioner must show that the parent has failed to support the child by failing to provide a substantial portion of child support “as required by judicial decree,” if financiady able to do so, for the 2 years preceding the filing of the petition. K.S.A. 2008 Supp. 59-2136(d); see In re Adoption of G.L.V., 286 Kan. at 1053-54. G.L.V. reaffirmed that these two elements are the sine qua non of a K.S.A. 2008 Supp. 59-2136(d) analysis because these duties are specifically contemplated by the statute. See 286 Kan. at 1054.
The “best interests of the child” and the “parental unfitness” factors were added to K.S.A. 2008 Supp. 59-2136(d) in 2006. The effect of the 2006 amendment with respect to the best interests of the child consideration, according to our Supreme Court, was to provide a trial court
“with additional discretionary powers to consider the best interests of the child in denying the adoption — even where a natural parent has not assumed the duties of a parent as articulated by this court — for unique reasons. For example, a court may determine, based upon testimony of tire child or other evidence, that the child desires to remain the son or daughter of the natural parent based upon the parent’s promise of commitment to the child, based upon friction in the stepparent family, or a pattern of instability in the stepparent history.” In re Adoption of G.L.V., 286 Kan. at 1064.
Although the Supreme Court did not discuss the significance of the “parental unfitness” provision, the Court of Appeals majority in G.L.V. specifically stated:
“Simply put, the court may consider the best interests of the child and the fitness of the nonconsenting parent in a stepparent adoption case, but it can only grant the adoption without tire natural parent’s consent if [the court first finds] the natural parent has failed to fulfill his or her parental duties under the statute.” In re Adoption of G.L.V., 38 Kan. App. 2d 144, 152, 163 P.3d 334 (2007), aff'd 286 Kan. 1034, 190 P.3d 245 (2008).
Consistent with the plain language of the statute and relevant case law interpreting the statutory language, we conclude that de terminations regarding the best interests of the child and die fitness of the nonconsenting parent do not “permit a court to override the requirement” in K.S.A. 2008 Supp. 59-2136(d) “of mandatory consent when a natural parent has assumed his or her parental responsibilities.” In re Adoption of G.L.V., 286 Kan. at 1064-65.
b. The District Court’s Application of the Statute
There is no dispute that the district court determined Father was unfit to be a parent and that it was in the best interests of the children to grant Stepfather’s petition for adoption. Instead, the dispute here is (1) whether the court erroneously considered these factors in conjunction with its determination that Father’s consent to the adoption was not required or (2) whether the court resolved the consent issue before considering fitness and the best interests of the children as relevant factors to the overall question of whether the Father’s parental rights should be terminated and the petition for adoption should be granted. We find it was the latter.
To that end, the district court specifically found that “[Father] failed to assume the duties of a parent for two consecutive years next preceding the filing of the petition.” The court concluded financial support provided by Father for the 2 years prior to the petition was incidental, did not satisfy the court order, and was not what Father could have contributed. The court further concluded that, due to his incarceration and overall physical absence from his family as the result of his own conduct, Father’s contact with his children was only incidental.
These conclusions sufficiently establish that the court made the decision that Father’s consent to the adoption was not required without taking into consideration Father’s fitness to be a parent or the best interests of the children. It was only after making this prehminary decision regarding consent that the district court independently considered Father’s fitness and the best interests of the children as relevant factors to the overall question of whether the petition for adoption should be granted. Regardless of whether, in the next section, we find sufficient evidence to support the district .court’s decision that Father’s consent was not required, we do find the district court did not err in its application of the analysis required by the stepparent adoption statute.
2. Sufficiency of the Evidence
Even if the district court correctly applied the requisite statutory analysis, Father goes on to claim that, under this analysis, the district court erred in finding Father s consent was not required. More specifically, Father states there was insufficient evidence to find Father failed to assume his parental duties for the 2 years before the petition for adoption was filed. Here, the applicable 2-year period ran from June 2005 to June 2007.
Whether a parent has refused or failed to assume parental duties for the 2 years prior to the filing of the adoption petition presents a question of fact. Thus, an appellate court reviews the decision to determine whether it is supported by substantial competent evidence presented at a hearing on the matter. An appellate court does not reweigh the evidence or pass on the credibility of witnesses. Instead, an appellate court reviews the facts in the light most favorable to the prevailing party to determine whether die decision of the trial court is properly supported by the evidence. In re Adoption of A.J.P., 24 Kan. App. 2d 891, 892-93, 953 P.2d 1387 (1998).
The duties of a parent under K.S.A. 2008 Supp. 59-2136(d) require not only financial support, but also love, affection, and interest toward the children. See In re Adoption of K.J.B., 265 Kan. 90, Syl. ¶ 3, 959 P.2d 853 (1998), modified in part by In re Adoption of G.L.V., 286 Kan. at 1058-61. The statute is to be strictly construed in favor of maintaining the rights of natural parents. 265 Kan. at 95. When determining whether a nonconsenting parent in an adoption proceeding has failed to assume parental duties for 2 consecutive years, all of the surrounding circumstances must be considered. In re Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987).
We note that when a parent is incarcerated, as here, different standards must be applied than when the parent is free from such constraints. See F.A.R., 242 Kan. at 236. “When a nonconsenting parent is incarcerated and unable to fulfill the customary parental duties required of an unrestrained parent, the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability.” In re Adoption of S.E.B., 257 Kan. 266, 273, 891 P.2d 440 (1995).
a. Financial Support
As part of the October 23, 2002, divorce decree, Father was ordered to pay $254 per month in child support. From June 2005 through June 2007, which is the 2-year period relevant to our analysis, Father earned prison wages of approximately $20 per month and received his veterans disability payments of approximately $105 per month. During this time period, Father directed his veterans disability checks be sent to his sister so that she could pay for the purchase of gifts and gift cards for the children. Thus, although there is no dispute that the funds were used to buy gifts for the children, there also is no dispute that none of the $105 per month was directed to pay his child support obligation from June 2005 to June 2007.
In September 2006, Father was contacted by child support enforcement authorities regarding his failure to pay child support. Given his limited income, Father requested a reduction in his monthly obligation. The request was granted, and his monthly child support obligation was reduced from $254' to $5. Based on the arrearage, Father instructed child support payments in an amount of $8.50, which is 170% of the required amount, be withdrawn directly from his prison wages. Thus, Father was financially able to pay, and did pay, his $5 court-ordered child support obligation from September 2006 through June 2007.
Notwithstanding these facts, the district court found a rebuttable presumption under K.S.A. 2008 Supp. 59-2136(d) that Father “knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption.” Based on the undisputed evidence that Father satisfied in full his court-ordered child support obligation for the 10 months immediately prior to Stepfather s filing of the petition for adoption, we find the district court’s conclusion that Father failed to meet his financial obligations for the entire 2-year period at issue is not supported by substantial competent evidence.
Even if Father had failed to fully pay his child support for those 10 months, the district court’s finding that Father failed to assume his financial parental duties for the full 2-year period would still be in error. Although Father failed to pay $254 per month in child support for the 14-month period from June 2005 through August 2006, Father’s income ($20 per month in prison wages and $105 per month for veterans disability benefits) rendered him financially unable under the statute to pay his $254 court-ordered child support obligation during this 14-month period. See K.S.A. 2008 Supp. 59-2136(d) (specifically stating that a knowing failure to provide a substantial portion of court-ordered child support can be found only when the parent at issue is financially able to pay the amount ordered).
The fact that Father failed during this time period to request a reduction in child support or make partial payments of some sort does not render him financially able to pay the $254 per month. To that end, the statute does not require a parent to provide court-ordered child support to the extent to which the parent is financially able in order to establish such parent has assumed his or her duties under K.S.A. 2008 Supp. 59-2136(d). Instead, the statute plainly states that financial inability to meet court-ordered child support cannot be used as evidence that such parent failed to assume the financial duties of a parent. See In re Application to Adopt H.B.S.C., 28 Kan. App. 2d 191, 201, 12 P.3d 916 (2000) (when parent is incarcerated and unable to provide financially for child, the side of ledger dealing with financial support becomes irrelevant and focus of inquiry must shift to love and affection side of parenting). For these reasons, we find the district court’s conclusion that — from June 2005 through August 2006 — Father was financially able but failed to assume the financial duties of a parent pursuant to K.S.A. 2008 Supp. 59-2136(d) is not supported by substantial competent evidence.
b. Emotional Support
In order to support a determination terminating parental rights and, therefore, that the father’s consent to a stepparent adoption is not required, “there must be a failure of both financial and emotional support.” (Emphasis added.) In re Application to Adopt H.B.S.C., 28 Kan. App. 2d at 201 (citing In re Adoption of K.J.B., 265 Kan. at 101-02). In the preceding section, we found insufficient evidence to support the district court’s finding that Father failed to provide financial support as required by the statute. We make a similar finding with regard to the district court’s finding that Father failed to provide emotional support.
To determine whether a father’s consent is required with regard to the emotional side of the ledger, K.S.A. 2008 Supp. 59-2136(d) provides that “the court may disregard incidental visitations, contacts, communications or contributions.” “ ‘Incidental’ has been defined as ‘casual, of minor importance, insignificant, and of little consequence.’ [Citation omitted.]” In re Adoption of C.R.D., 21 Kan. App. 2d 94, 98, 897 P.2d 181 (1995), modified in part by In re Adoption of G.L.V., 286 Kan. at 1058-61. The question of whether the contacts between the parent and the children are incidental such that the contact may be disregarded is reviewed on a case-by-case basis. In re Adoption of A.J.P., 24 Kan. App. 2d at 892-93.
When a parent is in prison, “[t]he trial court must consider whether the [incarcerated] parent has made reasonable attempts, under all the circumstances, to maintain a close relationship with his or her child, and whether those attempts are sufficient to require the parent’s consent be given to an adoption. [Citation omitted.]” In re Adoption of A.J.P., 24 Kan. App. 2d at 893.
Here, the district court found Father failed the emotional support side of the ledger because his voluntary criminal acts removed him from his children. We find whether Father was incarcerated as a result of his own conduct is immaterial to whether Father made reasonable attempts while incarcerated to maintain a close relationship with his children pursuant to K.S.A. 2008 Supp. 59-2136(d). Under the reasoning of the district court, no incarcerated parent could ever fulfill his parental duty of love and affection.
The district court further found Father failed the emotional support side of the ledger because any efforts he did make to contact or communicate with the children were minor and incidental. This court’s review is limited to determining whether substantial competent evidence exists to support these findings. See In re Adoption of A.J.P., 24 Kan. App. 2d at 892-94.
While Father was in prison, Mother facilitated phone contact between Father and the children. Mother also arranged for the children to visit their paternal aunt, during which time an estimated three or four telephone visits between Father and the children took place. On one occasion, Mother took the children to personally visit Father at the prison.
Father sent letters to his children every week. In addition, Father participated in a program that allowed him to tape record himself reading a book to the children. Father sent 14 books and recordings to his children through this program. Father also made sure Christmas and birthday gifts were sent to the children each year.
Mother readily admitted Father wrote to the children on a weekly basis. Mother, however, stated that she became concerned about the letters when Father began making references to time Father and the children would spend together when Father was released from prison. Mother felt these references were misleading, in that the children were unable to realize the time frame involved.
In March 2006, Mother let lapse the lease on her post office box, the mail address to which Father sent letters to his children. Mother maintains she accidentally let the lease lapse, as she was occupied with her mother’s cancer and her own miscarriage. In light of this lapse, Father obtained a calling card and thereafter called the children once a month.
Even if we review the facts presented above in a light most favorable to Stepfather, we conclude there simply is insufficient evidence to support the district court’s finding that Father did not make reasonable efforts to contact or communicate with his children and that any such contact that did occur was minor and incidental. In so concluding, we have taken into account, as we are required to do, that by virtue of his incarceration, Father possessed limited control over his ability to contact and communicate with his children. For example, he sent letters to his children every week until Mother let the post office box lapse. Even then, Father switched to monthly telephone calls instead of breaking off communication. And, although Father regularly spoke to his children when they went to visit his sister, Mother ultimately asked that his sister stop facilitating this communication. Given the constraints imposed upon him, we are not persuaded that Father failed to make reasonable efforts to maintain significant contact with his children.
Based on the discussion above, we find insufficient evidence to support the district court’s finding that Father failed to assume his parental duties in the 2 years prior to the filing of the adoption petition and the termination of his parental rights. Accordingly, we conclude Father’s consent to the adoption was required under K.S.A. 2008 Supp. 59-2136(d). In so concluding, we do not consider, and are prohibited from considering in this stepparent adoption proceeding, the events leading up to Father’s incarceration or his fitness as a parent in light of the events that transpired.
Because Father’s consent was required, the district court erred in relying on subsequent determinations regarding Father’s fitness and the best interests of the children in granting Stepfather’s petition for adoption. See In re Adoption of G.L.V., 286 Kan. at 1064-65 (Determinations regarding the best interests of the child and the fitness of the nonconsenting parent do not “permit a court to override the requirement in K.S.A. 2007 Supp. 59-2136[d] of mandatory consent when a natural parent has assumed his or her parental responsibilities.”).
3. Due Process
Father also complains on appeal that he was denied due process when the district court refused to continue the trial until after his possible release on parole in July 2008. Father renewed his objection to his requested delay at the beginning of the trial.
The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Whether due process under the Fourteenth Amendment to the United States Constitution has been protected in a particular case is a question of law. In re J.D., 31 Kan. App. 2d 658, 666, 70 P.3d 700 (2003).
In this case, Stepfather took every reasonable action to permit Father s presence at the adoption hearing, even filing a petition for habeas corpus with Missouri prison officials. When that request was denied, Father was allowed to proceed via telephone, during which he heard all the testimony and was able to testify on Iris own behalf. Father also was allowed several breaks, which required everyone except Fathers attorney to leave the courtroom so the two could consult about the process of the hearing.
We find Father had both notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Given Father was provided with the appropriate level of due process to which he was entitled, we affirm the district court’s decision to deny Father’s request for an 8- to 12-month continuance based on the mere possibility that Father would be paroled. As noted in other contexts involving children and their need for permanency, time frames are viewed from the children’s perspective, not the parent’s, as the time perception of children differs from that of an adult. In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008).
4. Attorney Fees
Appellate counsel was appointed by the district court to pursue this appeal on behalf of Father, who is indigent. Pursuant to this appointment, appellate counsel now seeks payment of costs and attorney fees incurred in conjunction with this appeal. Notably, Stepfather has not filed any opposition to this request for costs and fees.
This court may award attorney fees for services on appeal in any case where the district court had authority to award the fees. Supreme Court Rule 7.07(b) (2008 Kan. Ct. R. Annot. 60). To that end, we note that the district court here did, in fact, award attorney fees to appointed trial counsel for Father in the proceeding below. We further note that the attorney fees were assessed, not against the county, but against Stepfather pursuant to a proposed journal entry to which both Stepfather and Father agreed. For the reasons stated below, we find the district court had full authority to approve the parties’ jointly proposed journal entry ordering Stepfather to pay the fees for Father’s court-appointed attorney.
In In re Adoption of D.S.D., 28 Kan. App. 2d 686, 19 P.3d 204 (2001), also a stepparent adoption case, a panel of this court found the district court had authority to award attorney fees. In that case, the district court appointed counsel to represent the father in an adoption proceeding in which father’s parental rights ultimately were terminated. Once the adoption was finalized, the district court assessed as costs a portion of the biological father’s attorney fees against the adoptive parents. The adoptive parents appealed the district court’s order.
In evaluating the adoptive parents’ appeal, a panel of this court cited K.S.A. 59-2134(c), which states that the “ ‘costs of the adoption proceedings shall be paid by the petitioner or as assessed by the court.’ ” (Emphasis added.) 28 Kan. App. 2d at 687. Although this particular statute does not specifically reference attorney fees, the In re Adoption of D.S.D. court read this language in conjunction with K.S.A. 2000 Supp. 59-104(d), which specifically defined the word “costs” (as used in Chapter 59) to include attorney fees.
K.S.A. 2008 Supp. 59-104(d) states in relevant part:
“(d) Additional court costs. Other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute. Other fees shall include . . . attorney fees .... All additional court costs shall be taxed and billed against the parties or estate as directed by the court.” (Emphasis added.)
The In re Adoption of D.S.D. court concluded that the legislature “intended that the fees of an attorney appointed to represent an indigent biological parent could be included as costs that may be assessed against a petitioner in an adoption proceeding.” 28 Kan. App. 2d at 688. For this reason, the court ultimately held that the district court had authority to assess the attorney fees of the biological father’s court-appointed attorney against the adoptive parents. 28 Kan. App. 2d at 689.
Applying In re Adoption of D.S.D. to this case, the district court below had the authority to assess the fees of Father’s court-ap pointed trial counsel against Stepfather. Therefore, we have discretionary authority to assess against Stepfather the attorney fees incurred by Father’s court-appointed appellate attorney. See Supreme Court Rule 7.07(b). The question is whether we should exercise our discretion to do so.
While it may appear harsh to require a prospective adoptive parent to pay attorney fees for an attorney appointed to represent the parental rights of a indigent biological parent, this is precisely the result the legislature intended. To that end, our legislature did not create a provision in the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., providing for payment of an indigent parent’s court-appointed attorney by the county. Legislative intent for payment of attorney fees by the county in other matters are, however, expressly stated elsewhere in our code. For example, payment of certain attorney fees from the county’s general fund is provided in the Kansas Parentage Act, K.S.A. 38-1122 (providing for payment of indigent party’s portion of reasonable fees of counsel and child’s guardian ad litem from county’s general fund); the Kansas Juvenile Offenders Code, K.S.A. 2008 Supp. 38-1613(b) (providing for payment of court-appointed attorney fees from county’s general fund in juvenile offender cases); and the Revised Kansas Code for Care of Children, K.S.A. 2008 Supp. 38-2205(e) and K.S.A. 2008 Supp. 38-2215(b) (providing for payment of fees for child’s guardian ad litem or attorney appointed for parents from county’s general fund). Simply put, the legislature did not specify that the attorney fees of an indigent parent are to be paid by the county but, instead, expressly provided in K.S.A. 2008 Supp. 59-104(d) and K.S.A. 59-2134(c) that attorney fees may be assessed against prospective adoptive parents. Accordingly, we find assessing attorney fees against Stepfather (as the petitioner) is appropriate here.
Given this finding, we turn now to the reasonableness of the amount of fees requested. Counsel attaches to her motion an affidavit setting forth a detailed billing statement for a total of 47.6 hours of attorney time and $133.76 in total costs advanced to Father. The attorney fees set forth are predicated on a billing rate of $200 per hour. Counsel avers that this rate is based on fee rates customarily charged in Wichita, Kansas, and her experience and ability as an attorney with 29 years of practice.
Although we do not dispute that $200 per hour is the customary rate in Wichita for a case such as this with an attorney of counsel’s experience and ability, we do not think assessing fees against Stepfather at such a rate is reasonable. To that end, we will use our discretion to award fees for appointed counsel’s time on appeal at a rate of $80 per hour, which is the rate our legislature has designated to compensate court-appointed counsel for representing indigent defendants in criminal cases. See K.S.A. 22-4507(c) (requiring court-appointed attorneys to be compensated at rate of $80 per hour). Accordingly, appellate counsel’s motion, which is unopposed, is granted and Father’s appellate attorney fees and costs are hereby assessed against Stepfather in the amount of $3,941.76 (47.6 hours at $80/hour plus $133.76 in costs).
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Rees, J.:
In this action, plaintiff Universal Modular Systems, Inc., (UMS) seeks to remove a cloud on title to realty created by defendant Mary K. Forrest’s judgment lien, which lien arose by reason of a default judgment secured by Forrest against a third party in an underlying action. UMS appeals a district court order (1) barring its collateral attack on the ground Forrest’s failure to comply with the notice requirement of Supreme Court Rule 118, 235 Kan. cv, did not render void her default judgment; and (2) holding that Forrest’s judgment lien was not invalidated by virtue of her default judgment debtor’s subsequent discharge in bankruptcy. We affirm.
On May 19,1980, Forrest filed suit against one Gary L. Shively seeking recovery on five claims for both liquidated damages and unliquidated actual and punitive damages “in an amount in excess of $10,000.00.” Personal service was obtained upon Shively on July 27, 1980.
Shively did not answer or make other appearance. While the suit was pending, Shively, on December 23, 1980, conveyed a tract of land to UMS. Subsequently, on March 26, 1981, the district court entered default judgment against Shively on Forrest’s claims in the aggregate amount of approximately $195,611.26 plus interest. Shively did not appeal and to date has not brought proceedings to set aside that judgment.
On April 2,1981, UMS, by corporate warranty deed, conveyed the tract it had purchased from Shively to Hecox Investments, Inc. Upon learning of Forrest’s judgment lien on the property, Hecox demanded that UMS.act to protect Hecox’s interest. UMS accordingly brought this suit against ’ Forrest on July 1, 1983, alleging that Forrest’s failure to comply with Supreme Court Rule 118(d) rendered her default judgment against Shively void. One month later, UMS filed suit against Johnnie Darr, Sedgwick County Sheriff, now succeeded by Mike Hill, seeking to restrain him from selling the property in question at a sheriffs sale scheduled in August at the behest of Forrest.
The two actions were consolidated and heard on November 3, 1983. In a well-written opinion, the trial court held that Forrest’s failure to give notice to Shively of the amount of money sought at least ten days in advance of entry of default judgment in compliance with Supreme Court Rule 118(d) rendered her judgment merely voidable at the instance of Shively. The trial court thus refused to clear title to the real estate as requested by UMS, and issued an order vacating a temporary restraining order against the sheriff. UMS appealed.
While the case was pending before this court, Shively filed for bankruptcy in the United States Rankruptcy Court, District of Kansas. This court accordingly remanded the case to the district court.
UMS then filed a K.S.A. 60-260(b) motion for relief in the district court. Upon a showing that Shively’s judgment debt to Forrest was an indebtedness asserted in the bankruptcy proceeding and that Shively had been discharged in bankruptcy, the district court denied the motion, finding that the discharge in bankruptcy extinguished only Shively’s personal liability but not the debt so that Forrest’s judgment lien remained in effect. UMS filed a subsequent notice of appeal and the issues in both appeals were consolidated for this court’s determination.
At the outset, and as the parties correctly note, UMS, as subsequent purchaser of land on which there is a judgment lien, cannot collaterally attack the underlying judgment for mere irregularities; rather, the subsequent purchaser may only successfully attack the underlying judgment if it is void. A void judgment or order is a nullity and may be vacated at any time on motion of a party or any person affected thereby. Friesen v. Friesen, 196 Kan. 319, 321, 410 P.2d 429 (1966). Thus, the first issue for our consideration is whether lack of compliance with Supreme Court Rule 118(d) on the part of the judgment creditor renders a resulting default judgment void.
Supreme Court Rule 118(d) provides as follows:
“Before any default judgment is taken in any action contemplated by this rule, the party seeking relief must notify the party against whom relief is sought of the amount of money for which judgment will be taken. Said notice shall be given by certified mail, return receipt requested, or as the court may order, at least ten (10) days prior to the date judgment is sought. Proof of service shall be filed and submitted to the court.”
Rule 118(d) has recently been held to apply when default judgment is sought on any pleading of unliquidated damages. Winner v. Flory, 11 Kan. App. 2d 263, 719 P.2d 20 (1986).
On appeal, UMS emphasizes the mandatory language of Rule 118(d) in support of its position that the Rule is jurisdictional. UMS also points out that Rule 118(d)’s operation is more “stringent” than that of its companion statute, K.S.A. 60-255 (entry of default judgments), and notes that in Simmon v. Bond, 6 Kan. App. 2d 766, 634 P.2d 1148 (1981), this court held that a trial court could not have granted a default judgment because of the plaintiff s failure to comply with a three-day notice requirement of K.S.A. 60-255(a). We do not believe that either observation is controlling in this case.
We agree that compliance with Rule 118(d) is mandatory. A judgment is not void, however, merely because it is erroneous. A judgment is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner inconsistent with due process. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976). In this case, the district court had both personal and subject matter jurisdiction. Therefore, for UMS to succeed in its argument to us it must contend that a plaintiff s noncompliance with Rule 118(d) somehow operates either to intervene and wrest away district court jurisdiction or to deprive the nonappearing defendant of due process. We see nothing in the language of Rule 118(d) leading us to conclude that the Supreme Court intended noncompliance to carry such a severe penalty. Nor are we convinced that Forrest’s failure to serve notice of the exact amount of damages she sought upon Shively is so fundamentally unfair or inconsistent with the dictates of due process that the judgment should be void for the purpose of allowing third parties to collaterally attack it. Shively, upon whom personal service was obtained, was notified in compliance with K.S.A. 60-208 that Forrest sought unliquidated damages in excess of $10,000, and we believe that minimum notification — that Forrest sought damages in excess of $10,000 — was sufficient to comport with due process requirements.
Moreover, we find the Simmon case inapposite. In Simmon, our court reversed a judgment entered on the pleadings for the trial court’s failure to allow defendant to file an answer out of time, noting that the trial court “could not” have granted a default judgment because the three-day notice of K.S.A. 60-255(a) had not been given. Simmon was a direct appeal by the losing defendant and the issue whether the judgment was void or voidable simply was not reached. See also Sharp v. Sharp, 196 Kan. 38, 409 P.2d 1019 (1966); Hood v. Haynes, 7 Kan. App. 2d 591, 598, 644 P.2d 1371 (1982). Rather, we find this case similar to Becker v. Roothe, 184 Kan. 830, 339 P.2d 292 (1959), which was an appeal from a trial court’s order refusing to open a default judgment for the trial court’s failure to take evidence of plaintiff s claims for unliquidated damages in compliance with a former default judgment statute, G. S. 1949, 60-3109. The issue on appeal important for our purposes was whether that failure rendered a default judgment for unliquidated damages void or voidable.
The Supreme Court in Becker held that compliance with G. S. 1949, 60-3109 was mandatory. Nonetheless, the trial court having obtained jurisdiction over the subject matter and the parties, the Supreme Court found the subsequent default judgment not to be void, “however irregular or erroneous some of the court’s proceedings may be, or voidable the judgment might be.” Becker v. Roothe, 184 Kan. at 834. See also City of Eudora v. French, 204 Kan. 258, 265, 461 P.2d 762 (1969); Anchor Savings & Loan Ass'n v. Dysart, 189 Kan. 147, 368 P.2d 293 (1962); Cadwallader v. Bennett, 187 Kan. 246, 356 P.2d 862 (1960).
We accordingly hold that failure to comply with Rule 118(d) renders a resulting default judgment voidable but not void. Accord Winfield Associates, Inc. v. Stonecipher, 429 F.2d 1087, 1091 (10th Cir. 1970); Trohiani v. Racienda, 95 Ill. App. 2d 228, 234, 238 N.E.2d 177 (1968). But see Stevenson v. Turner, 94 Cal. App. 3d 315, 156 Cal. Rptr. 499 (1979). The trial court thus did not err in holding that UMS cannot collaterally attack Forrest’s default judgment.
UMS next contends that Shively’s discharge in bankruptcy extinguished the debt Shively owed Forrest and that in the absence of a debt no lien can exist; therefore, the Hecox property is no longer subject to execution and UMS is entitled to a judgment removing the cloud on title created by the Forrest lien. We disagree.
In Garnett State Savings Bank v. Tush, 232 Kan. 447, 456, 657 P.2d 508 (1983), an analogous case, our Supreme Court stated:
“[W]hile a discharge in bankruptcy will prevent the bankrupt from being personally liable on a dischargeable debt, the debt itself is not extinguished and a creditor holding a security interest in exempt property may look to that property for satisfaction of the debt.”
See also Polk County Fed'l Savings & Loan Ass'n v. Weathers, 234 Kan. 410, 411, 672 P.2d 596 (1983).
The case UMS relies on, In re Ray, 26 Bankr. 534 (Bankr. D. Kan. 1983), holds directly to the contrary and is representative of the minority view. In the absence of an indication that our Supreme Court intends to reverse its position, we must hold that the trial court was correct in concluding that the bankruptcy discharge order extinguished only Shively’s personal liability for the judgment obtained by Forrest and that the debt and judgment lien on the Hecox property continue to exist.
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Abbott, C.J.:
This is an appeal by Calvin L. and Martha L. Caulfield from a judgment denying their setoffs in a mortgage foreclosure action. The Caulfields claim they are entitled to certain refunds and penalties as setoffs to their obligation to Valley View State Bank because of alleged violations of the Uniform Consumer Credit Code (UCCC) by Valley View.
The salient facts can be highly summarized in this case. The Caulfields executed a series of mortgages to Valley View from 1977 through 1980. As many as forty-seven notes were executed over the years, culminating in a single note of $90,000.
Valley View filed a mortgage foreclosure action in 1984. The Caulfields raised several defenses and, in addition, claimed they were entitled to setoffs to their obligation, and to attorney fees, based on some sixteen alleged violations of the UCCC. All of the alleged violations are time-barred by K.S.A. 16a-5-201.
The issue is whether K.S.A. 16a-5-202 applies under the facts of this case. If so, the Caulfields are entitled to certain setoffs despite the fact the alleged violations are time-barred.
K.S.A. 16a-5-502 provides as follows:
“Refunds or penalties to which the consumer is entitled pursuant to this part may be set off against the consumer s obligation, and may be raised as a defense to a suit on the obligation without regard to the time limitations prescribed by this part.” (Emphasis supplied.)
In a pretrial order the parties stipulated that the Caulfields had defaulted on the $90,000 promissory note and that the note was secured by five previous real estate mortgages. The parties further stipulated that the Bank was entitled, pursuant to the terms of the note and mortgages, to foreclose these mortgages to satisfy the defendants’ indebtedness.
The trial court heard Valley View’s motion for partial summary judgment on the issue of whether the Caulfields could, pursuant to 16a-5-202, assert as defenses or counterclaims prior UCCC violations which occurred on notes other than the $90,000 note. The trial court granted summary judgment to Valley View. The court found, as a matter of law, that “the statutory construction of the legal definition of the term obligation as used in K.S.A. 16a-5~202 refers to the note or contract on which suit was brought, and further, there is no statutory provision which would allow a defendant to rely on previous obligations of the Defendant to the Plaintiff which are no longer in existence and the statutory time for bringing such claims has passed.”
What was the legislative intent in adopting K.S.A. 16a-5-202, and did it intend “obligation” to include prior notes?
The word “obligation” has a variety of meanings, depending on the context in which it is used. It is derived from the Latin word “obligatio,” which corresponds nearly to the word “contract.” Black’s Law Dictionary 968 (5th ed. 1979). “An obligation or debt may exist by reason of a judgment as well as an express contract, in either case there being a legal duty on the part of the one bound to comply with the promise.” Black’s Law Dictionary 969 (5th ed. 1979). Webster’s Third New International Dictionary 1556 (1976) defines “obligation” as “an act of obligating oneself to a course of action: a putting under a promise, vow or oath, ... a formal and binding agreement or acknowledgment of a liability to pay a specified sum or do a specified thing”; synonymous with duty and debt. The word “obligate” is defined as “to constrain or bind to some course of action.” Webster’s Third New International Dictionary 1556 (1976).
Of significance is the Official Kansas Comment to 16a-5-201, which states in pertinent part:
“Given its strong minimum civil penalty approach, this subsection also provides for a relatively short statute of limitations: one year after the last installment is due under a closed-end contract and two years after the violation occurs under open-end credit.”
Without 16a-5-202, a creditor who had committed a violation could wait one year under the closed-end contract, and two years under open-end credit, and commence an action and not be concerned with any violations. K.S.A. 16a-5-202 prevents that from occurring, and we are of the opinion that is all the legislature intended 16a-5-202 to accomplish. Had the legislature desired to include prior notes and prior agreements, we believe it would have been more precise in doing so.
The legislature is aware that most farmers and small businesses in this state are financed much as Valley View financed the Caulfields: that is, one or more real estate mortgages is filed of record, authorizing renewal notes or future advances, and the bank finances the farm operator or business without the added expense of filing a new mortgage for each transaction. The borrower, who pays the cost of filing mortgages and obtaining title (loan) opinions, benefits immensely from this method of financing. We do not believe the legislature intended a debtor to litigate as a setoff all notes that had ever been given on a mortgage. In this case, as many as 47 notes were given. Obviously, this is a small number in comparison to many other similar financing operations.
There is only one note evidencing one debt which Valley View is suing on. The fact that this final note is the culmination of several notes does not change its status. The parties bargained for this arrangement. The Caulfields benefited from this arrangement in that they were able to extend the period of time when payment was due from them without continually incurring added expense.
We deem it insignificant whether the $90,000 note is viewed as a renewal note or as a consolidated note. It is still one note. The Caulfields no longer have several outstanding debts which they are obligated to pay; instead, they have only one debt as evidenced by the note in question. The $90,000 note is valid and is the “consumer’s obligation.” It is the only obligation the Caulfields have that is the subject of the lawsuit, and the only obligation that is enforceable. The trial court did not err in so holding.
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Briscoe, J.:
The Kansas Department of Revenue and the State Self-Insurance Fund appeal the district court’s determination in a workers’ compensation proceeding that Betty Bigger, claimant, sustained a 100 percent permanent partial disability to the body as a whole.
Approximately three weeks after claimant began her employment with the Department of Revenue, she slipped and fell and broke her ankle. Claimant was employed by the Department as a Clerk I. Her job duties consisted of pulling and filing tax returns for a week, and then on alternating weeks, sorting or merging tax returns into numerical order. According to the job description, a Clerk I would spend 50 percent of her time filing and 50 percent of her time merging. Filing required an employee to stand all day, to climb ladders and stools to reach the upper shelves, and to bend over to work with the bottom shelves. During the week of merging, an employee would sit at a table and arrange the tax returns in numerical order.
During her three weeks with the Department, the claimant only did filing and did not perform the task of merging. Claimant’s supervisor testified that she did not spend a week merging because at that time two employees were in their final months of pregnancy and were assigned the sitting duty.
The test to determine whether claimant suffered permanent partial disability as a result of her accident is set forth in K.S.A. 44-510e, which provides in relevant part:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the workman to engage in work of the same type and character that he was performing at the time of his injury, has been reduced.”
See Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 330, 606 P.2d 484, rev. denied 227 Kan. 927 (1980). The pivotal question is, what portion of claimant’s job requirements is he or she unable to perform because of the injury? Ploutz v. Ell-Kan Co., 234 Kan. 953, 955, 676 P.2d 753 (1984); Ploutz v. Ell-Kan Co., 9 Kan. App. 2d 9, 668 P.2d 196 (1983). See Maxwell v. City of Topeka, 5 Kan. App. 2d 5, 611 P.2d 161, rev. denied 228 Kan. 807 (1980).
Appellants contend the district court did not properly apply the test for permanent partial disability. They argue that the terms “total” and “partial” are mutually exclusive; therefore, a claimant cannot be 100 percent, or totally, partially disabled.
We cannot agree with appellants’ analysis. Under the statutory definition of permanent partial disability, a claimant could be found to be totally unable to perform any portion of work of the same type and character he was performing at the time of the injury, yet still be able to engage in gainful employment. The propriety of a 100 percent permanent partial disability finding was recognized in Grounds v. Triple J Constr. Co., 4 Kan. App. 2d at 330:
“Conceivably, a worker could be employed full time at a higher paying job and still be considered 100 percent less able to find and retain work of the same type and character as he was performing at the time of his injury. In such case a 100 percent permanent partial disability rating might be appropriate.”
Appellants also argue that claimant is not entitled to compensation because she has not suffered a loss of earning capacity. They maintain that the claimant could continue to work in a job of the same type and character because (1) she could be placed in another Clerk I position, or (2) her specific job duties could be modified to accommodate her physical restrictions. This argument misconstrues the statutory test. K.S.A. 44-510e makes it clear that “work of the same type and character” refers to the job the claimant was performing at the time of the injury, not to any job for which the claimant might be qualified. The percentage of claimant’s disability must be calculated on the basis of her impaired ability to perform the job she held, and not on the basis of her ability to perform the duties required of other Clerk I positions.
Appellants also allege the trial court’s finding is not supported by the evidence. They argue the claimant can still perform a significant portion of her job — the sitting portion.
The standard of review in a workers’ compensation case was stated in Maxwell v. City of Topeka, 5 Kan. App. 2d at 6:
“When reviewing a trial court’s findings, it is not the function of an appellate court to judge the credibility of witnesses in workmen’s compensation cases or to determine what weight should be given their testimony. The test on appeal is whether the record contains any substantial competent evidence which on any theory of credence justifies the trial court’s findings. [Citation omitted.] In reviewing the record to determine if it contains substantial evidence to support the district court’s factual findings, this Court is required to review all evidence in the light most favorable to the prevailing party below; when the findings of fact made by the district court are based on substantial evidence, they are conclusive. [Citation omitted.]”
See Carr v. Unit No. 8169, 237 Kan. 660, Syl. ¶ 2, 703 P.2d 751 (1985); Dieter v. Lawrence Paper Co., 237 Kan. 139, 144-45, 697 P.2d 1300 (1985); Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442-43, 625 P.2d 453 (1981).
In this case, Dr. Kroll stated that the claimant should avoid bending, lifting, stair climbing, and prolonged standing or walking. He said the most claimant could be on her feet is an hour a day. It is clear that the claimant is totally unable to perform the task of filing, which involved standing, climbing and bending. The trial court did not err in finding the claimant was 100 percent unable to perform the work she was doing at the time she was injured.
According to her job description, claimant was required to spend alternating weeks filing and merging. Even if the sitting portion is considered as part of claimant’s job in determining the percentage of disability, the evidence supports a finding that claimant was totally unable to perform her job. On two occasions the claimant returned to work and performed a task that allowed her to sit. Both times, Dr. Kroll ordered her to quit because even the small amount of walking and standing involved caused problems with her ankle. Although these attempts to return to work involved a different job entirely, and not just the sitting portion of her original job, claimant’s inability to perform a “sitting” job provided the court with substantial evidence to conclude that claimant could not have performed just the sitting portion of her original job.
A trial court’s finding that a claimant sustained a particular percentage of disability is a factual finding. Brozek v. Lincoln County Highway Dept., 10 Kan. App. 2d 319, 322, 698 P.2d 392 (1985); Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 678 P.2d 178 (1984). The evidence in this case supports the finding that the claimant is 100 percent permanently partially disabled.
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Abbott, C.J.:
This is a K.S.A. 60-1507 proceeding. The defendant, Philip Anthony Niblock, argues that the Honorable Richard W. Wahl should have been disqualified from hearing the 60-1507 motion because of the judge’s prior ex parte communication with the Kansas Correctional Institution at Lansing concerning defendant’s sentence, and that defendant’s sentences should all run concurrently.
The defendant was convicted and sentenced in 1980 as follows:
Count I - Aggravated robbery, K.S.A. 21-3427, five to twenty years, beginning September 22, 1980.
Count II — Felony theft, K.S.A. 21-3701, two to five years, to be served concurrently with Count I.
Count III — Aggravated assault, K.S.A. 21-3410, three to five years, to be served consecutive to the sentence imposed in Count I.
Count IV — Unlawful possession of a firearm, K.S.A. 21-4204(l)(b), two to five years, to be served concurrently with the sentence imposed in Count III.
On appeal, the Kansas Supreme Court reversed the conviction on Count III. State v. Niblock, 230 Kan. 156, 165, 631 P.2d 661 (1981). When the time came for defendant to be considered for parole, his unit team manager at the Kansas Correctional Institution at Lansing (KCIL) wrote to Judge Wahl to determine whether the sentence on Count IV, which had been anchored to the vacated Count III sentence, should run consecutive to or concurrent with Count I. Judge Wahl’s response by letter was that the Count IV sentence should run consecutive to Count I. The result of this was that defendant was not eligible for parole consideration at that time.
Thereafter defendant filed a motion pursuant to K.S.A. 60-1507 along with a motion and supporting affidavit for change of judge pursuant to K.S.A. 20-311d. Defendant’s 20-311d affidavit sets forth the above correspondence between KCIL and Judge Wahl as evidence that Judge Wahl had prejudged the issue raised by defendant in his 60-1507 motion, and that Judge Wahl was personally biased and prejudiced against defendant.
Defendant’s motion for change of judge was considered and denied by Judge David S. Knudson.
Subsequently, Judge Wahl presided at defendant’s 60-1507 hearing. After hearing argument from counsel and allowing defendant time to file a supporting brief, Judge Wahl concluded that the sentence imposed on Count IV was to be served consecutive to the sentence on Count I. Defendant appeals.
In Hulme v. Woleslagel, 208 Kan. 385, 392, 394, 493 P.2d 541 (1972), our Supreme Court held that the Kansas procedure for disqualifying a judge contemplated, first, a hearing on the legal sufficiency of the affidavit and, if sufficient, a hearing on the fact of bias or prejudice. The court further held that “the affidavit must contain facts and reasons which give fair support for the belief that on account of the bias or prejudice of the judge the affiant cannot obtain a fair trial.” p. 392. The sufficiency of the affidavit is a question of law which the appellate court may determine. The court emphasized that the statute concerns the belief of the party. 208 Kan. at 397. However, general allegations by the defendant are not sufficient. State v. Logan, 236 Kan. 79, 85, 689 P.2d 778 (1984).
Defendant’s affidavit set out, as facts and reasons for his belief that Judge Wahl’s determination of his 60-1507 motion would not be impartial, the ex parte correspondence between the judge and KCIL wherein the judge indicated what his finding would be on the very issue raised in the 60-1507 motion. Further, defendant argues Judge Wahl did not have defendant’s records before him when he so advised KCIL.
Defendant also argues that Judge Wahl’s ex parte letter concerning defendant’s sentence was a violation of Supreme Court Rule 601, Canon 3(A)(4), which states that a judge should “neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.” 235 Kan. clxiv. Neither the defendant nor his attorney was advised of the correspondence between KCIL and Judge Wahl.
Whether an attorney violates the Code of Professional Responsibility or a judge violates the Code of Judicial Conduct are matters within the sole province of the Kansas Supreme Court, except this court can consider any alleged violation if it might constitute reversible error.
Hindsight tells us that Judge Wahl should have notified the defendant, his counsel and the State and given them an opportunity to respond. That he did not, and then subsequently heard the 1507 motion, does not amount to reversible error under the circumstances. We, however, need not even decide if it constitutes error, because the issue presented is one of law that we must decide independent of the trial judge’s decision; thus, whether the trial judge should have recused himself is of no significance.
The determinative issue is whether the vacation of the sentence imposed on Count III caused Count IV to run concurrent with Count I.
It is settled that when multiple sentences are imposed at the same time, and the record is silent or fails to clearly express otherwise, the sentences will be construed to run concurrently. State v. Thornton, 224 Kan. 127, 577 P.2d 1190 (1978); In re Weisman, 93 Kan. 161, 163, 143 Pac. 487 (1914); K.S.A. 1984 Supp. 21-4608(1). The record in this case, however, is not silent or ambiguous.
Criminal sentences should clearly reveal the intention of the sentencing court. That intention should be determined by “the reasonable and natural implication from the whole entry.” United States v. Daugherty, 269 U.S. 360, 363, 70 L.Ed. 309, 46 S.Ct. 156 (1926).
Although this issue has never been considered in Kansas, we do have guidance from the federal courts. In Watson v. United States, 174 F.2d 253 (D.C. Cir. 1948), the court held that the whole record must be considered to determine the intent of the sentencing court. The defendant in Watson argued that the vacated “anchor sentence” could not be considered in ascertaining the intent of the, sentencing court. The Circuit Court held: “That a sentence may be void as an agency of punishment does not obliterate it from the records of the court so far as concerns its effect to evidence the intention of the court in respect of connected sentences.” p. 254. Accord Dailey v. United States, 303 F.2d 364 (7th Cir. 1962).
In Dailey, the defendant was sentenced to five years on count one and to five years on count two, to be served consecutively to count one. Several other sentences were to run concurrently with count two. When count two was subsequently vacated, the defendant contended the voiding of the count two anchor sentence left no direction as to when the concurrent sentences should begin and therefore they should run concurrently with count one. The court cited Watson with approval and held that it was the clear intention of the sentencing judge that the defendant serve five years under count one and that all remaining sentences run consecutively to count one.
The defendant urges this court to follow Jenkins v. United States, 389 F.2d 765 (10th Cir. 1968). In Jenkins, the defendant was sentenced in the district court of Kansas to concurrent sentences on counts two and three. A sentence on count four was to run consecutive to the sentence imposed on count two. After the conviction and sentence on count two were vacated, the trial court held that count four should run consecutive to count three. On appeal the Tenth Circuit noted that the consecutive sentence was specifically anchored to count two, after the sentence on count three had been pronounced, and no indication of the total number of years to be served had been made. The Tenth Circuit reversed the trial court, holding that count four should run concurrently with count three. Since the count four sentence was consecutive only to count two, when count two was vacated, the sentence on count four began on the date defendant was received for service (concurrent with count three).
We disagree with defendant’s argument that the Jenkins court disapproved of Watson and Dailey. Jenkins cited Watson and Dailey as cases in which the intention of the sentencing court to impose a group of concurrent sentences to run consecutive to another sentence was clear. Finding no such clear intention in Jenkins, the Tenth Circuit Court interpreted the sentences imposed literally. 389 F.2d at 766-67.
The case of United States v. Welty, 468 F.2d 594 (3d Cir. 1972), involved a defendant originally sentenced to consecutive sentences on counts one, two and three, with sentences on counts four and five to run concurrently with each other and with count three. When counts two, three and four were vacated, the district court held that the sentence under count five was consecutive to count one, finding Jenkins inapplicable. United States v. Welty, 330 F. Supp. 699 (E.D. Pa. 1971). On appeal, the Third Circuit Court affirmed. 468 F.2d at 595.
In the case at bar, it is clear to us it was the intention of the sentencing court to impose two concurrent sentences following a valid existing sentence; that is, that Counts I and II were to run concurrently, and that Counts III and IV were to run concurrently with each other but consecutive to Counts I and II. Although Count III was vacated, it was the intention of the sentencing court that Count IV be served consecutive to Count I.
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Jackson, J.:
Appellant, Carl D. Tucker, appeals the denial of relief requested pursuant to K.S.A. 60-1507. On February 8, 1983, appellant was convicted of aggravated battéry. On February 25, 1983, sentence was imposed by the trial court. The journal entry of judgment concerning the sentencing reads as follows:
“IT IS THE SENTENCE OF THIS COURT AND IT IS HEREBY CONSIDERED, ORDERED, ADJUDGED AND DECREED that the defendant is hereby committed to the custody of the Secretary of Corrections for imprisonment for a period of not less than three (3) nor more than ten (10) years on the charge of Aggravated Battery, contrary to K.S.A. 21-3414 and in accordance with K.S.A. 21-4501(c). Defendant shall pay the costs of this action, including witness fees and miscellaneous expenses, to the Clerk of this Court. The Court further finds that restitution in the amount of $294.56 is owing to Violet Waggoner, 1502 Haskell, Wichita, Kansas.”
After his motion to grant probation was denied, Tucker ap pealed to this court raising two issues: (1) sufficiency of the evidence to support his conviction and (2) the constitutionality of K.S.A. 21-3414. While free on an appeal bond, Tucker paid the restitution of $294.56. His conviction was later affirmed in an unpublished opinion, State v. Tucker, No. 55,912, filed March 15, 1984. The factual statement in the opinion included the following:
“On February 25,1983, the trial court denied defendant’s motion for judgment of acquittal and/or new trial and sentenced defendant to three to ten years imprisonment. Defendant was also ordered to pay restitution of $294.56 to Violet.”
Tucker’s petition for review was subsequently denied.
Appellant filed a second motion for an order “granting probation from the confinement portion of the sentence” on May 24, 1984, apparently within 120 days after the district court received the mandate from this court. At the hearing on that motion, appellant’s attorney questioned the propriety of sentencing Tucket to a term of imprisonment and ordering that he pay restitution. The motion to modify was denied by the trial court. Tucker’s attorney filed a timely second notice of appeal apparently seeking review of the order denying modification. However, the appeal was never docketed and it was dismissed by the district court on February 1, 1985.
Meanwhile, Tucker filed the instant pro se motion pursuant to K.S.A. 60-1507 oil December 3, 1984, in which he contends that he has been illegally sentenced to a term of imprisonment and ordered to pay restitution contrary to this court’s ruling in State v. Chilcote, 7 Kan. App. 2d 685, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982). Tucker further argues that since he has satisfied the order of the court by paying restitution, the court has no jurisdiction to order incarceration.
On February 1, 1985, appellant’s 60-1507 motion was denied by the trial court without an evidentiary hearing. The district court ruled that Tucker had never been ordered to pay restitution and stated, “The voluntary payment of restitution by the Movant in the absence of a court order requiring such payment in his hope to obtain probation from this court does not forbid incarceration upon the sentence imposed in such case.” From this ruling, Tucker appeals.
The State contends that this court should not address the merits of the movant’s appeal, arguing that appellant abandoned the issue by failing to raise it on direct appeal from his conviction and by failing to prosecute the appeal from his second motion to modify. Further, the State contends that the appellant has failed to demonstrate any exceptional circumstances which would excuse his failure to raise the issue on direct appeal.
K.S.A. 60-1507 provides in substance that a prisoner in custody who claims that his sentence was imposed in violation of the law may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence. The statute also provides that the trial court is not required to entertain successive motions. Supreme Court Rule 183(c)(3) (235 Kan. cxviii) provides:
“[A] proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.”
Exceptional circumstances are most often found where there has been an intervening change in the law. White v. State, 222 Kan. 709, 712, 568 P.2d 112 (1977).
Here, this court’s decision in State v. Chilcote, 7 Kan. App. 2d 685, was handed down approximately eight months before the appellant was sentenced. Clearly, judicial economy would have been better served had appellant questioned his sentence on direct appeal. In any event, the contention that his sentence was contrary to the mandate of Chilcote is without merit.
In State v. Chilcote, this court held that K.S.A. 21-4603(2) prohibits a sentencing court from ordering that a felon be imprisoned and required to pay immediate restitution. The case was remanded with instructions that the sentencing court vacate its order that Chilcote make restitution since he had also been ordered to serve a term of imprisonment.
Subsequent to our decision in Chilcote, the legislature enacted K.S.A. 1984 Supp. 22-3717(j), which provides:
“Whenever the Kansas adult authority orders the parole of an inmate, the authority, unless it finds compelling circumstances which would render a plan of reparation or restitution unworkable, shall order as a condition of parole that the parolee make reparation or restitution to the aggrieved party for the damage or loss caused by the parolee’s crime, in an amount and manner specified in the journal entry of the court that sentenced the inmate, or if not specified in the journal entry, in an amount and manner determined by the adult authority.” (Emphasis added.)
Appellant contends that the sentencing court’s statement in the journal entry “the Court further finds that restitution in the amount of $294.56 is owing to Violet Waggoner, 1502 Haskell, Wichita, Kansas” cannot be construed as conforming to the statute above set out. However, the trial judge in ruling upon the K.S.A. 60-1507 motion interpreted the language in the journal entry to comply with the language of the statute. We are constrained to give great weight to the trial court’s interpretation of its own judgment. A judgment capable of more than one interpretation should be given that which will make it valid rather than that which will make it invalid. Sharp v. McColm, 79 Kan. 772, 101 Pac. 659 (1909); see also Allison v. Allison, 188 Kan. 593, 363 P.2d 795 (1961).
It would have been preferable if the journal entry had clearly stated,that the amount of restitution was being specified for parole or probation purposes pursuant to K.S.A. 1984 Supp. 22-3717(j). A common-sense reading of the language in question leads to the conclusion that appellant was not sentenced to imprisonment and ordered to pay immediate restitution. The sentencing judge ordered that the appellant be committed to the custody of the Secretary of Corrections for a specified term and that he pay the costs of the action. The sentencing judge merely found that restitution in the amount of $294.56 was owing.
In the factual statement of this court’s opinion rendered on Tucker’s direct appeal, it was stated that Tucker was imprisoned and ordered to pay restitution. However, this statement was not determinative of the issue at hand because an interpretation of the appellant’s sentence was not one of the issues before this court at that time. The statement should not be considered as controlling in the former appeal or in this appeal. State v. Six Slot Machines, 166 Kan. 361, 365, 201 P.2d 1039 (1949); State, ex rel., v. Stonehouse Drainage Dist., 152 Kan. 188, 102 P.2d 1017 (1940); and Hartman v. Nordquist, 8 Kan. App. 2d 213, 653 P.2d 1199 (1982).
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Brazil, J.:
Oil and gas lessors appeal the trial court’s holding that the words “growing crops” in their lease did not include naturally occurring pasture.
In 1977, J. David, Claude, and H. Darby Trotter purchased some land in Chautauqua County, in David’s name. David, a Texas attorney specializing in oil and gas law, and his wife executed an oil and gas lease to the property in 1980. David and his wife deeded the property to Claude and Darby in 1981. The various defendants all have a portion of the lessee’s interest in the lease.
The trial court summarized the Trotters’ claims, only some of which might have involved damage to “growing crops.” Those involving possible crop damage are: (1) reasonable rental value of pasture for four years, including pasture on the south half of the section where the defendants’ wells are located and on two adjoining sections; (2) reasonable rental value for grazing of winter wheat for four years for the cultivated portion of the section where the wells are located; (3) complete loss of six acres of pasture used for roads to the wells; and (4) $1,000 per well for damage to approximately three acres of pasture, which twelve of the wells occupied. The court then reached the following pertinent conclusions:
“4. . . . Plaintiffs offered no evidence of damage to growing wheat. Other jurisdictions are not in conformity as to whether native pasture constitutes a “growing crop.” There are no reported Kansas decisions on point. In Texas, where the original lessor, J. David Trotter, practices oil and gas law, native pasture is not considered a “growing crop” and it seems appropriate in this case to follow the Texas precedent and deny recovery for any damage to the pasture, which has not actually been used for grazing since before 1977.
“5. Plaintiffs’ claim for damages for loss of pasture rental is not supported by the evidence. There was only one well in the pasture during 1981, 1982, and 1983. More wells were drilled in 1984 and 1985. However, with respect to that portion of Plaintiffs’ land, the evidence is that the property was never suitable and made ready for leasing. Even if it were, plaintiffs had an affirmative duty to mitigate damages by installing the 300 to 400 feet of fence necessary to segregate the pasture, which they chose not to do. Fundamentally, plaintiffs have never leased this land for pasture, have never offered it for lease, and have never been refused [by a potential tenant] on account of defendants’ ongoing operations. . . .
“7. Plaintiffs’ claim for damages for construction of the new roadway ... is unsupported by the facts and the law. . . . Plaintiffs offered no evidence upon which to base their claim . . . except that approximately one acre of cultivated land was taken out of production. However, no growing crops were damaged in the process.”
The parties appear to agree that this issue involves the interpretation of an ambiguous phrase in the lease. However, in construing written instruments “[t]he fundamental rule ... is that the intent and purpose of the parties be determined from an examination of the entire instrument or from its four corners. Thus the language used anywhere in the instrument should be taken into consideration and construed in harmony with other provisions.” Heyen v. Hartnett, 235 Kan. 117, 122, 679 P.2d 1152 (1984). “The interpretation of a written contract which is free from ambiguity is a judicial function.” Hall v. Mullen, 234 Kan. 1031, 1037, 678 P.2d 169 (1984). “[A]mbiguity in a conveyance does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning.” Brungardt v. Smith, 178 Kan. 629, 636, 290 P.2d 1039 (1955). See Hall v. Mullen, 234 Kan. at 1037. The first question is: Does the lease indicate whether the original lessor and lessee intended to include native grasses in the phrase “growing crops”?
“[A]n oil and gas lessee or mineral owner usually is entitled to enjoy reasonable surface user necessary or convenient for his exploration and development operations, absent express provision to the contrary in the lease or instrument severing the mineral interest.” 1 Williams & Meyers, Oil and Gas Law § 218.7 at 225 (1986). However, if the lease specifically provides for the recovery of damages, or if the conduct of the lessee is tortious, or if the surface use rights of the lessee are exercised unreasonably and excessively, the lessor is entitled to recover his damages. Annot., 87 A.L.R.2d 236.
Appearing as typewritten provisions in a space between printed portions of the lease are the following:
“Lessee shall have the right to use, free of cost, gas, oil and water produced on said land for its operations thereon, except water from lessor’s wells, lakes & streams.
“Lessee shall bury his pipe lines below plow depth and promptly cover and level all pits.
“No well shall be drilled nearer than 200 feet to the house or barn now on said premises without the written consent of the lessor.
“Lessee shall pay for all damages caused by its operations to growing crops, terraces, fences and gates on said land.
“Lessee shall have the right at [any] time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing.
“Lessee shall restore each drill [site] to its original condition promptly upon plugging or abandoning each well.
Where an oil and gas lease provided that “the lessee shall bury its pipe lines below plow depth and shall pay for damages caused by its operations to growing crops on said land,” a federal court applying Texas law held that native pasture grass was not included in the phrase because the reference to “plow depth” in the same sentence indicated that the parties intended to cover only items which resulted from planting, cultivation, and labor. Wohlford v. American Gas Production Company, 218 F.2d 213 (5th Cir. 1955). See Annot., 87 A.L.R.2d 235, 238 (discussing Wohlford). Wohlford provides some support for the trial court’s decision here since the crop damage clause is within two sentences of a reference to “plow depth.” However, this reasoning is not strong enough to be dispositive in this case since the phrases were not in the same sentence, as in Wohlford.
Several Kansas cases have involved a clause for crop damage, but none have considered the precise issue involved here. In Fast v. Kahan, 206 Kan. 682, 481 P.2d 958 (1971), the court held no damages could be recovered under such a clause without proof of crop damages. In Berns v. Standish Pipe Line Co., 152 Kan. 453, 105 P.2d 893 (1940), the court affirmed an award for lost grazing where the lease required the lessee to pay for damages not only to “crops” but to “pasturage.” The court relied on the latter term. 152 Kan. at 457-59. See also Thompson v. Phillips Pipe Line Co., 200 Kan. 669, 438 P.2d 146 (1968) (claim for loss of pasture where damages to “crops [and] pasturage” covered by clause). In Hiatt v. Natural Gas Co., 108 Kan. 472, 196 Pac. 448 (1921), the court held a clause covering crops and fences did not include damages caused when a right of way owner’s construction operations caused cattle to be so nervous they would not feed. Finally, in Monfort v. Layton, 1 Kan. App. 2d 622, 571 P.2d 80 (1977), the court stated that a covenant to “ ‘pay for damages caused by [the lessee’s] operations to growing crops’ ” (1 Kan. App. 2d at 623) would not support a claim for “ ‘loss of anticipated future crops occasioned by damage to the soil.’ ” 1 Kan. App. 2d at 628. These cases, especially Hiatt and Monfort, suggest that the clause in this case would not support the Trotters’ claim for loss of pasture rental since it appears to be based on the theory that the defendants’ operations rendered it impossible to pasture cattle on the land, not that the operations actually harmed all the native grasses growing on all the potential pasture.
On the whole, neither Wohlford nor the Kansas cases cited provide a basis for resolving this issue simply by construing the language used in the lease. The trial court relied on its understanding of Texas law on the subject and the fact the original lessor was an expert on Texas oil and gas law to conclude that the parties intended to exclude native grasses from the crop damage clause. Wohlford does not, however, resolve for all cases that “growing crops” does not include native grasses; it resolves the question only when a reference to “plow depth” appears in the same sentence with “growing crops.” Thus, based on our review of the record we find no evidence outside the lease which explains the parties’ intent on this issue.
The cases the Trotters rely on actually offer a sound basis for concluding their pasture is not included in “growing crops.” As explained in Annot., 87 A.L.R.2d at 238-39, the Oklahoma cases they cite all involved plants which had been seeded, fertilized, or otherwise tended; no evidence was offered in this case to indicate the Trotters in any way cultivated or worked their pasture to alter its natural growth. While other cases may arise which would raise the question how much cultivation, if any, is enough to make native grasses a “growing crop,” this case avoids that possibly difficult problem. Furthermore, the Trotters never used the land for pasturage nor did they attempt to lease it to anyone for that purpose.
Wohlford indicates an argument might be persuasively made where all the lease land is uncultivated sod and a crop damage clause is contained in the lease since the reference cannot be to cultivated grounds. 218 F.2d at 215. Nearly half of the section at issue in this case, however, was cultivated, so the clause could refer just to that portion of the lease.
We conclude that completely uncultivated and never utilized native grass is not, absent some contrary indication of the parties’ intent, a “growing crop” under an oil and gas lease clause providing the lessee must pay for damage to “growing crops.”
Affirmed. | [
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Spencer, J.:
The Board of County Commissioners of Sedgwick County appeals from an order of the Shawnee County District Court which overturned a decision of the Board of Tax Appeals (BOTA) denying a property tax exemption under K.S.A. 79-201k to aircraft owned by the Cessna Employees’ Flying Club (Cessna). BOTA had considered the aircraft exempt from taxation prior to 1984.
Cessna is a non-profit corporation whose purpose is to promote and encourage private flying and to provide economical flying for its members. The members, largely Cessna Aircraft employees, pay a membership deposit, monthly dues, and rental costs on the aircraft. Cessna owned nine aircraft which were rented to members for private flying or flight instruction and generated $217,043 in rental revenue in 1984. In addition, Cessna employs a manager, a secretary, a flight instructor, and a mechanic on a full-time basis.
Cessna paid the first half of the 1984 taxes assessed against its aircraft under protest and filed an application for a refund of the taxes with BOTA. BOTA denied the request for failure to show an established business or industrial operation within the purview of the exemption statute.
The standard of review to be applied by this court in reviewing a decision of the BOTA was recently stated in Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d 108, 108-09, 673 P.2d 456 (1983), rev. denied 234 Kan. 1078 (1984):
“Two rules are applicable:
“1. ‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.’ [Citation omitted.]
“2. ‘The interpretation of a statute is a question of law and it is the function of a court to interpret a statute to give it the effect intended by the legislature.
“ ‘While the administrative interpretation of a statute should be given consideration and weight it does not follow that a court will adhere to the administrative ruling where the statute is clear and the administrative ruling is erroneous. The final construction of a statute rests within the courts.’ [Citation omitted.]”
This court applies the same standard and may conduct the same review of the administrative decision as did the district court. Board of Johnson County Comm'rs v. J. A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 (1986); In re Order of Board of Tax Appeals, 236 Kan. 406, Syl. ¶ 2, 691 P.2d 394 (1984).
In this case the facts are not disputed. Both sides agree that Cessna owns planes, services and maintains those planes, and rents them to its members on an hourly basis. There is no dispute over what Cessna does — the question is solely whether what Cessna does is a “business” which would entitle it to fall within the statutory interpretation. See National Collegiate Realty Corp. v. Board of Johnson County Comm'rs, 236 Kan. 394, Syl. ¶ 6, 690 P.2d 1366 (1984).
The rules applicable to statutory construction were reiterated in Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 634-35, 694 P.2d 462 (1985):
“Where the interpretation of a statute is a question of law, it is the function of the court to interpret the statute to give it the effect intended by the legislature. [Citation omitted.] The purpose and intent of the legislature governs when that intent can be ascertained from the statute. [Citation omitted.] Words in common usage are to be given their natural and ordinary meaning in arriving at a proper construction of the statute. [Citation omitted.] When a statute is susceptible of more than one construction, it must be construed to give expression to its intent and purpose, though such construction is not within the strict literal interpretation of the statute. [Citation omitted.]”
In T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645-46, 693 P.2d 1187 (1985), the court stated:
“In cases involving questions of claimed exemption from ad valorem taxation, the following rules and legal principles have been established as guidelines to be followed by the courts:
“(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. [Citation omitted.]
“(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.]”
The statute, K.S.A. 79-201k, provides an exemption for “all aircraft actually and regularly used exclusively in the conduct of a business or industry”:
“(a) It is the purpose of this section to promote, stimulate and develop the general welfare, economic development and prosperity of the state of Kansas by fostering the growth of commerce within the state; to encourage the location of new business and industry in this state and the expansion, relocation or retention of existing business and industry when so doing will help maintain or increase the level of commerce within the state; and to promote the economic stability of the state by maintaining and providing employment opportunities, thus promoting the general welfare of the citizens of this state, by exempting aircraft used in business and industry, from imposition of the property tax or other ad valorem tax imposed by this state or its taxing subdivisions. Kansas has long been a leader in the manufacture and use of aircraft and the use of aircraft in business and industry is vital to the continued economic growth of the state.
“(b) The following described property, to the extent herein specified, is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“First. For all taxable years commencing after December 31,1982, all aircraft actually and regularly used exclusively in the conduct of a business or industry.” Emphasis added.
BOTA, in denying Cessna an exemption, concluded that because of its lack of profit-making motive the ownership of the airplanes did not constitute a business. The district court found BOTA placed too much emphasis on the lack of profit-making or intent to make a profit in determining Cessna was not a business under the terms of the statute. The phrase “in the conduct of a business or industry” has not previously been defined by the court.
Black’s Law Dictionary 179 (5th ed. 1979) defines “business” as:
“Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit, advantage or livelihood. [Citation omitted.] Enterprise in which person engaged shows willingness to invest time and capital on future outcome. [Citation omitted.] That which habitually busies or occupies or engages the time, attention, labor, and effort of persons as a principal serious concern or interest or for livelihood or profit.”
Here, Cessna employs a full-time staff for the management and maintenance of the rental aircraft. Furthermore, Cessna uses its aircraft exclusively for rental to its membership. Cessna is both organized and operated as a business. We conclude it is entitled to an exemption from taxation under the provisions of K.S.A. 79-20lk.
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