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Pierron, j.;
In 1998, the Board of Zoning Appeals of Marion County (Board) held that a quarter section of property owned by M.S.W., Inc., (MSW) was zoned agricultural and that a conditional use permit (CUP) had been granted for the property in 1992 to permit continuation of landfill activity occurring since 1974. The Board held that the CUP was lawfully adopted in 1992 but was forfeited by closure of the landfill in 1996, and no nonconforming use had ever been created on the property. MSW appeals the district court’s decision upholding the Board’s ruling.
Tom Grosse owned the property in question in 1974 and, in that year, entered into a 20-year agreement with Marion County to provide a sanitary landfill. In 1976, Grosse received a permit from the Kansas Department of Health and Environment (KDHE) to operate a sanitary landfill on the entire quarter section. The property was unzoned prior to December 1, 1992.
On November 9, 1992, the initial zoning regulations for the unincorporated portions of Marion County were adopted by passage of Resolution 92-32 by the Marion County Board of County Commissioners (County). Pursuant to Resolution 92-32, the zoning regulations took effect on December 1, 1992. As part of the adoption of the initial zoning, the property was zoned agricultural with a CUP allowing use as a solid waste landfill (CUP-landfill). Neither the zoning of the property nor the issuance of the CUP-landfill were undertaken upon application by Grosse. Approximately 115 other CUPs were issued in a similar manner for unincorporated properties with the adoption of the initial zoning regulations in December 1992.
Grosse died in 1993 and Marion County Landfill, Inc., (MCLI) was formed to operate the landfill. On December 12,1994, MCLI contracted with the County to extend the landfill use until October 8, 1996. In October 1995, KDHE notified MCLI that it was operating a landfill without a permit and steps would need to be taken to bring the operation into compliance with state law. Later in October 1995, Browning Ferris Industries of Kansas (BFI) announced its intent to purchase MCLI and to develop the landfill into a full federal Subtitle D landfill. MCLI communicated this intent to the KDHE. On June 10, 1996, the December 12, 1994, agreement between the County and MCLI was terminated by the County and acquiesced to by MCLI. The KDHE entered an order on June 11, 1996, permitting MCLI to continue solid waste disposal until October 9, 1996.
On August 8, 1996, BFI signed a contract to buy the property. On September 9, 1996, MCLI advised the County in an open meeting that a vertical expansion permit application had been completed for the current landfill which would be for 5 years or until BFI opened a Subtitle D landfill. The minutes of the open meeting state that MCLI was “informed that the proposal for vertical expansion should have been on the table before now as other arrangements were nearing completion for disposal of solid waste and that the proposal would require some thought.”
After October 8, 1996, the landfill closed and to date has not received any waste. The October 8, 1996, date coincides with the date when Subtitle D landfill standards took effect and the requirement that in order to continue operations, a landfill was required to have a vertical expansion certificate. On September 2,1997, BFI terminated its purchase agreement with MCLI.
In 1998, MSW purchased the property from MCLI. On February 27, 1998, MSW filed an application for approval to establish and operate a municipal solid waste disposal site located on 130 acres of the property. The other 30 acres of the property is where the old MCLI landfill existed.
In order to receive the necessary landfill permits from the KDHE, MSW was required, pursuant to K.S.A. 1997 Supp. 65-3407, to obtain certification by the local planning and zoning authority that the proposed disposal area was consistent with local land use restrictions. In a February 27, 1998, letter, MSW requested certification under K.S.A. 1997 Supp. 65-3407. The Marion County Zoning Administrator, Herb Bartel, responded to MSW by letter dated March 2, 1998, stating: “I can only sign the certification as [is not] consistent with the local zoning. Both the nonconforming status and conditional use permit for a landfill located in the SW Vi, Section 14, T-20-S, R-3-E have lapsed.”
MSW appealed Bartel’s decision to the Board. The Board conducted public hearings on the matter on April 23 and 30, 1998. The Board held the record open for public comment and response and also received an in-depth summary and report concerning the matter. The Board found no nonconforming use ever existed on the property because the property’s use conformed with the agricultural zoning classification and the CUP-landfill designation that was granted as part of the initial zoning. The Board stated its conclusion was consistent with the law of existing uses of property under K.S.A. 2000 Supp. 12-758 because the landfill was not nonconforming. The Board then concluded that MCLI forfeited its CUP since it had not received any solid waste since October 8, 1996, and was subject to violation of § 21-104 of the Marion County Zoning Regulations that CUPs were forfeited where the permitted use was discontinued for a period of 6 months or longer.
Having found there was not a nonconforming use, the Board found it unnecessary to address whether MSW’s operation of the Subtitle D landfill would be an illegal expansion, enlargement, or change in the nonconforming use. Parenthetically, it is difficult to see how it would not have been.
MSW appealed to the district court. MSW filed motions to admit additional evidence, have the court take judicial notice of a number of records, conduct a de novo hearing on the issue of preexisting nonconforming use, and also a summary judgment motion. The court denied all the motions and found the Board’s decision was legal in all respects and conformed to state law and zoning regulations. The court adopted the Board’s findings and conclusions as its own. MSW appeals to our court.
The parties disagree on the proper standard of review to be utilized by a district court in examining a zoning appeal. In Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), the court set forth the following rules to govern the scope of judicial review for zoning matters. These concepts have been applied to the review of special use permit decisions. See Daniels v. Board of Kansas City Comm’rs, 236 Kan. 578, 585-86, 693 P.2d 1170 (1985).
“(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
“(2) The district court’s power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
“(3) There is a presumption that the zoning authority acted reasonably.
“(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
“(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
“(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were .presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” Combined Investment, 227 Kan. at 28.
MSW argues the district court failed to consider additional, relevant evidence. The court in Combined Investment stated: “A district court reviewing a zoning decision of an administrative agency may take additional evidence that is relevant to the limited issues of reasonableness and legality of the order appealed.” 227 Kan. 17, Syl. ¶ 1. MSW asked the court to take judicial notice of 19 documents consisting of over 300 pages.
K.S.A. 60-409 contains the standards for taking judicial notice. MSW partially relies on the district court’s duty to take judicial notice of specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute under K.S.A. 60-409(a). MSW also relies on the court’s discretionary ability to take judicial notice of duly enacted ordinances, government regulations, and specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy under K.S.A. 60-409(b). A court is required to take judicial notice of the items listed in K.S.A. 60-409(b) if a party makes a request, furnishes the court with sufficient information to comply with the request, and adverse parties are given notice to respond to the request. K.S.A. 60-409(c).
The district court was not clear in its decision concerning the motion to take judicial notice. However, in its final journal entry, the court denied the presentation of any additional evidence be yond that which was presented to the Board. MSW’s request for judicial notice is a mix of documents, some of which were already in the administrative record such as the 1992 zoning regulations and the zoning maps. MSW requested that the court take judicial notice of factual determinations such as that no CUP was ever physically issued to MCLI or Grosse when initial zoning was passed in 1992 and the zoning regulations do not specifically adopt any CUPs.
In Combined Investment, 227 Kan. at 27, the court stated: “Records of prior proceedings and also relevant evidence not presented to the commission are admissible, subject to judicial discretion. Keeney v. City of Overland Park, 203 Kan. 389, 394, 454 P.2d 456 (1969). See also Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239 (1969).” Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. Saucedo v. Winger, 252 Kan. 718, 733, 850 P.2d 908 (1993) (McFarland, J., dissenting).
As appears below, none of the documents which the district court refused to take judicial notice of, if they were not already in the record, would have changed the decision. Even if the evidence would have been considered, it appears the trial court committed no error as the documents in question could not have affected the final ruling.
MSW also argues the district court erred in not conducting a de novo hearing on the issue of whether the nonconforming use had been abandoned. The court held that under the laws of the State of Kansas, an appeal from an administrative body is not entitled to a trial de novo by reason of being an appeal from an administrative body.
MSW’s claim that it is entitled to a de novo hearing is clearly contrary to the principle set forth in Golden v. City of Overland Park, 224 Kan. 591, 595-96, 584 P.2d 130 (1978), that a district court is not free to make findings or factual determinations independent of those found by the governing body but is limited to determining whether facts could reasonably have been found by the zoning body to justify its decision. MSW correctly cites Union Quarries, Inc., v. Board of County Commissioners, 206 Kan. 268, 274, 478 P.2d 181 (1970), where the Kansas Supreme Court stated: “The district court ruled correcdy that it had jurisdiction to determine in a de novo inquiry whether there had been a voluntary discontinuance of a nonconforming use for a particular period of time so as to result in its loss [under a zoning regulation].” However, the court in Landau v. City Council of City of Overland Park, 244 Kan. 257, 271, 767 P.2d 1290 (1989), held the trial court could not conduct its own review of the evidence in a zoning appeal and stated: “The trial court was definitely not to retry the case on the merits of the application.”
The Board in the present case did not make a factual determination that MSW had abandoned a nonconforming use. Rather, the Board found there was never a nonconforming use of the property and that MSW had forfeited a CUP granted on the property in 1992. We do not find the district court erred in limiting itself to the record before the Board, unless the issue of the existence of the nonconforming use is resolved by us in M.S.W.’s favor, which it is not. On this issue, MSW argues the district court erred in not granting its motion for summary judgment.
MSW argues the Board violated Supreme Court Rule 141 (2000 Kan. Ct. R. Annot. 189) by failing to set forth in separately numbered paragraphs a concise summary of the conflicting evidence or testimony of the controverted factual contentions of the summary judgment motion. See Bus. Opportunities Unlimited, Inc. v. Envirotech Heat, & Cooling, Inc., 26 Kan. App. 2d 616, 618, 992 P.2d 1250 (1999) (“ ‘Rule 141 is not just fluff—it means what it says and serves a necessary purpose.’ ”).
In the present case, the district court held that MSW’s summary judgment motion was another attempt to introduce extraneous evidence which had not been presented to the Board. The court stated MSW’s summary judgment motion was an attempt to alter the standards of review for an administrative appeal. The court stated that summary judgment motions are for cases where factual questions are not in dispute and there is simply a question of law and that in an administrative appeal the only question is one of law and not fact. The court held that summary judgment adds nothing to an administrative appeal and MSW’s request to add evidence was inconsistent with its own motion.
The district court did not err in denying MSW’s summary judgment. We agree with the court that MSW’s attempt to add evidence to the record to create issues of material fact contravenes the purposes of summary judgment. Although MSW relies on Davis v. City of Leavenworth, 247 Kan. 486, 802 P.2d 494 (1990), to support its argument that summary judgment was proper, the Davis court clearly stated that the conclusion of law to be rendered was “[wjhether the City’s action was reasonable [which was] a question of law to be determined upon the basis of the facts which were presented to the City.” (Emphasis added.) 247 Kan. at 498. In an appeal of a zoning decision, the inquiry is whether the action was reasonable and lawful. Again, the additional evidence would not have changed the result.
The pivotal issue in this case is the legality of the County’s initial zoning of the unincorporated, unzoned areas of Marion County and the simultaneous granting of 116 CUPs for existing uses. MSW argues the County acted illegally in granting the CUP in 1992. Pursuant to our standards of review, there is a presumption that the County acted legally and reasonably, and MSW has the burden of proving otherwise by a preponderance of the evidence. Combined Investment, 227 Kan. at 28. MSW also argues the Board’s decision was arbitrary and capricious for essentially the same reasons.
MSW argues the procedures for the adoption of CUPs as set forth in the zoning regulations were not followed, namely that Grosse never applied for the CUP, the County never specifically voted on or adopted the CUP, there was never a development plan prepared, and a written document was never issued.
The zoning regulations have procedures and requirements for obtaining a CUP. Pursuant to the zoning regulations, the only way property can be used as a landfill in Marion County is by a CUP. Pursuant to Regulation § 21-103, a CUP can be granted for: “Solid waste disposal area, construction/demohtion landfills, industrial landfills, or other solid waste processing facility or scrap material recycling and processing facility.” The zoning regulations set forth the following procedures to obtain a CUP:
“Before the location or establishment thereof, or before any change or use of the premises existing at the time of the effective date of these Regulations or permitted as herein provided is made, a development plan in sufficient detail and a statement as to the proposed use of the buildings, structures, and premises shall be submitted to the Planning Commission as specified in Article 14 of these Regulations. The Planning Commission shall hold a public hearing following the provisions also outlined in Article 28 of these Regulations and shall review such development plan and statements and shall, after a careful study of the effect that such buildings, structures, or uses will have upon the surrounding property, submit a recommendation to the Governing Body.
“. . . In this regard, the Governing Body may impose reasonable conditions on the approval of a Conditional Use Permit including, but not limited to, those items identified in Article 14 of diese Regulations.” Regulation § 21-101.
MSW argues several Kansas cases hold that a zoning authority must have standards for the issuance of special permits before a special permit can be issued. However, both of the cases cited by MSW stand for the principle that a zoning authority cannot have arbitrary power to grant or refuse a special permit. See Community Antenna TV of Wichita, Inc., v. City of Wichita, 205 Kan. 537, 543, 471 P.2d 360 (1970) (“ordinance puts it in the power of the city commission to grant or refuse a franchise at will”); Hudson Properties, Inc., v. City of Westwood, 181 Kan. 320, 321, 310 P.2d 936 (1957) (ordinance failed to establish a uniform standard for application in that governing body was final arbiter of property rights). MSW states that in the case at bar, it was the testimony of Herb Bartel, the zoning administrator, that he made the sole decision which properties were given CUPs in 1992 and that it was the express intended purpose in granting the CUPs to “avoid the creation of nonconforming uses.”
A municipality has no inherent power to enact zoning laws, and the power of a local government to accomplish zoning exists only by virtue of authority delegated by the state. Julian v. Oil Co., 112 Kan. 671, 212 Pac. 884 (1923); 83 Am. Jur. 2d, Zoning and Planning § 4, p. 37. The planning and zoning powers of Kansas municipalities are derived from the grant contained in K.S.A. 12-741 et seq. Pursuant to K.S.A. 12-741(a), the municipalities can enact or enforce any zoning laws and regulations as long as they are not in conflict with Kansas statutes.
Under K.S.A. 12-753, the board of county commissioners is authorized to divide the land within its boundaries into zones and districts. The statute further allows the municipality to regulate and restrict uses within each zone or district. K.S.A. 12-755(a) provides a nonexhaustive list of zoning regulations the governing body may adopt:
“(1) Provide for planned unit developments;
“(2) permit the transfer of development rights;
“(3) preserve structures and districts listed on the local, state or national historic register;
“(4) control the aesthetics of redevelopment or new development;
“(5) provide for the issuance of special use or conditional use permits;
“(6) establish overlay zones.”
In its findings, the Board stated that K.S.A. 12-755 authorizes counties to adopt “ ‘zoning regulations . . . which . . . include . . . conditional use permits.’ ” MSW argues there is a substantial difference in what is stated in K.S.A. 12-755 and how it was quoted by the Board in its ruling. MSW argues K.S.A. 12-755 grants counties the authority to adopt zoning regulations which provide for the issuance and procedures in obtaining a CUP but not which allow the counties to issue CUPs themselves. MSW argues that neither K.S.A. 12-755 nor the Marion County zoning regulations allow for CUPs to be issued within the initial zoning regulations. MSW maintains it is impossible to impose a CUP on a zone or district that does not yet exist.
The Board contends the necessary precautions in considering a CUP for a new use are not needed in the consideration of allowing a CUP for an existing use. For an existing use, the surrounding property owners are already aware of the nature of the use and its impact on neighboring properties. The Board argues no purpose is served in requiring the existing use owner to take the necessary steps for granting a CUP to a use existing at the time initial zoning is adopted.
There is no authority in the Kansas statutes expressly authorizing a county to adopt CUPs at the same time initial zoning regulations are established under K.S.A. 12-753. By the same token, there is no authority expressly prohibiting the county from doing so. The fact that the legislature has provided a nonexhaustive list of zoning regulations in K.S.A. 12-755, in conjunction with the policy that zoning authorities have control over zoning matters as long as there is no conflict with state law, supports the Board’s position that the Kansas statutes do not prohibit the establishment of CUPs at the time of initial zoning.
Counties and cities have the authoriiy to adopt zoning for the betterment of the community. The court in Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 102, 453 P.2d 82 (1969), stated:
“It is conceded by appellant that since the adoption of the Home Rule Amendment (Art. 12, Sec. 5, Kansas Constitution) the cities have broad powers of self determination. It has always been the policy of this state to confer on cities the power to pass ordinances to protect the safety, health and general welfare of its citizens.”
Was the County required to follow the procedures for issuing a CUP when the CUP was issued simultaneously with the initial zoning in Marion County?
We agree with the statement in The Summary and Report to tire Marion County Board of Zoning Appeals: “The issuance of a CUP-Landfill has the same consequence for the landowner as a zoning classification of 'Landfill,’ had such zoning classification existed as part of the County’s zoning regulations, i.e., [b]oth allow land to be legally used for landfill purposes.”
We do not believe this case is substantially different from one where the zoning authority, in its initial zoning regulations, zones certain property as landfill instead of zoning it agricultural. There are no statutory provisions that would prevent the zoning authority from making the landfill designation.
There is, however, a strong counter argument. K.S.A. 2000 Supp. 12-758(a) provides: “Except as otherwise provided by this section and K.S.A. 2000 Supp. 12-770 and 12-771, and amendments thereto, regulations adopted under authority of this act shall not apply to the existing use of any building or land.” If the County is allowed to adopt CUPs within the initial zoning regulations, does such a process eliminate the existing use provision in K.S.A. 2000 Supp. 12-758(a) and give the statute no effect? K.S.A. 12-741 allows municipalities to enact or enforce any additional laws and regulations as long as they are not in conflict with Kansas statutes. MSW argues the County’s adoption of the CUP in 1992 violated the statutory language in K.S.A. 2000 12-758(a) prohibiting zoning regulations from applying to existing uses of buildings or land.
By definition, an existing or nonconforming use is a lawful use of land or buildings which existed prior to the enactment of a zoning ordinance and which is allowed to continue despite the fact it does not comply with the newly enacted use restrictions. See Johnson County Memorial Gardens, Inc. v. City of Overland Park, 239 Kan. 221, Syl. ¶ 4, 718 P.2d 1302 (1986); City of Norton v. Hutson, 142 Kan. 305, Syl. ¶ 1, 46 P.2d 630 (1935); 1 Anderson, American Law of Zoning § 6.01 (2d ed. 1976).
MSW argues the protection of existing uses in K.S.A. 2000 Supp. 12-758 and various provisions of the zoning regulations prohibit the granting of CUPs within initial county zoning regulations. The zoning regulations address nonconforming uses in two respects. First, the regulations define “Nonconforming Buildings, Land and/ or Use” in Regulation § 1-102(157). Second, Article 24 of the zoning regulations is devoted entirely to nonconforming uses. Regarding nonconforming uses of land, Regulation § 24-102 provides:
“Where open land is being used as a nonconforming use at the time of the enactment of these Regulations, and such use is the principal use and not accessory to the main use conducted in a structure, such use may be continued; provided, such nonconforming use shall not be extended or enlarged, either on the same or adjoining property. The protection afforded to nonconforming use of land by this section applies only to such land held under ownership or lease agreement for said activity on or before the effective date of these Regulations, but shall not apply to new lands purchased or leased after said date. In addition, said protection shall not apply to any activities not legal under the terms of the regulations which these Regulations replace.”
MSW reminds the court that zoning ordinances, being in derogation of the right of private property, should be liberally construed in the property owner s favor, and where exceptions appear they are liberally construed in favor of the property owner. Koppel v. City of Fairway, 189 Kan. 710, 713, 371 P.2d 113 (1962) (citing 8 McQuilhn, Municipal Corporations, 3 Ed. Rev., § 25.72).
MSW’s main contention is that the Board’s action converted its vested right of a nonconforming use landfill into a nonvested right of a conditional use of property as a landfill without any due process.
In order to avoid violation of constitutional provisions preventing the taking of private property without compensation, zoning ordinances must permit continuation of nonconforming uses in existence at the time of their enactment. Missouri Rock, Inc. v. Winholtz, 614 S.W.2d 734, 739 (Mo. App. 1981). MSW argues the Board’s conversion was an unconstitutional taking of private property without compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. See Hoffmann v. Kinealy, 389 S.W.2d 745 (Mo. 1965); State ex rel. Capps v. Bruns, 353 S.W.2d 829 (Mo. App. 1962); Lewis v. City of Atlantic Beach, 467 S.2d 751 (Fla. App. 1985).
One of the cases relied heavily on by MSW is Browning-Ferris Indus., v. City of Maryland Heights, 747 F.Supp. 1340 (E. D. Mo. 1990). In Browning-Ferris, the subject property was a landfill located on unincorporated property. The facts are not clear as to the property’s zoning classification, but the owner of the property received licenses from the county to operate a private dump or sanitary landfill. Later incorporation of the property into a city led to the eventual denial of an application to continue using the site as a landfill.
The Browning-Ferris. court found the landfill had a “vested property right in the property as a perfected prior non-conforming use which lawfully existed prior to the existence of the Defendant City and the enactment of any of the City’s zoning and regulatory ordinances.” The court held fhat since the landfill continued after the incorporation and passage of the ordinances, the City’s denial of a permit based upon the regúlations constituted a taking of property without compensation. 747 F.Supp. at 1348.
The distinguishing factor in Browning-Ferris is that a nonconforming use existed. In the present case, the County did not offend an existing or nonconforming use but instead prevented the creation of a nonconforming use in its initial zoning regulations. Further, there is no evidence presented in the record that the operation of the landfill by Grosse in 1992 was changed, altered, or even affected by the County’s issuance of the CUP. The Board indicated that in 1992 Grosse received all the protection under the zoning regulations he was entitled to. The Board stated:
“By giving landowners CUPs that matched their existing uses—and thereby avoiding creating nonconforming uses—those landowners received a clear benefit. Nonconforming use status subjects the landowner to the risk of loss of that status due to a number of reasons, including damage by fire, windstorm or other act of God; abandonment; amortization; expansion or enlargement; and change in nonconforming use.
“By receiving zoning in the form of both ‘A’ classification and a CUP-Landfill, the owner of this quarter section in December 1992 got from Marion County all the zoning protection he could under the County’s regulations. The County made its zoning conform to the use existing on the quarter section, and thereby protected the existing uses from the negatives of nonconforming use status. By granting zoning of ‘A’ classification and CUP-Landfill, Marion County did not attempt to prohibit the use of the quarter section as a landfill or prohibit use for maintenance and storage facilities for equipment and operations related to landfill activities. The County allowed this property to be used for landfill purposes by its application of the available zoning categories, land use and development controls.”
The Board claims the recipients of the 116 CUPs in 1992 were affected by the zoning regulations only in the sense that the actual use of their property was automatically deemed in compliance and protected for as long as the identified conditional use continued without an interruption of 6 months or longer.
We recognize that a nonconforming use is a vested right in Kansas. Only vested rights are protected by due process. It is essential to the establishment of a nonconforming use that the use be commenced prior to the enactment of the ordinance restricting such use. Goodwin v. City of Kansas City, 244 Kan. 28, Syl. ¶¶ 3-4, 766 P.2d 177 (1988). The term “nonconforming use” means a use of land which lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of the ordinance even though not in compliance with use restrictions. See Johnson County Memorial Gardens, 239 Kan. 221, Syl. ¶ 4.
We disagree with MSW’s claim that the landfill on the property became a nonconforming use the instant the zoning regulations were passed in 1992 and such use remains until it is lost. The problem with MSW’s position on nonconforming use is that the facts do not demonstrate that any landfill use on the subject property was ever nonconforming. The underlying purpose and intent of the nonconforming use doctrine and K.S.A. 2000 Supp. 12-758(a) is to protect those uses when new ordinances or regulations are enacted. The County’s approval of the CUP-landfill fulfilled that intent and provided protective status for the recognized use.
The County’s granting of CUPs simultaneously with the initial zoning regulations in order to avoid the creation of nonconforming uses is consistent with the disfavored status of nonconforming uses. The doctrine of nonconforming uses is recognized in Kansas but is not a favored status under the law. The court in Goodwin, 244 Kan. at 32, stated: “Courts have recognized and approved this policy of restriction and eventual elimination by ruling that the right to a nonconforming use is to be strictly construed. See, e.g., Wyatt v. Board of Adjustment-Zoning, Etc., 622 P.2d 85 (Colo. App. 1980); 1 Anderson, American Law of Zoning § 6.07.” See also Boyce Industries v. Mo. Hy. and Transp. Com’n, 670 S.W.2d 147, 150 (Mo. App. 1984) (The protection afforded to a nonconforming use is not absolute and is subject to limitations as to the extension of the use, both in a functional and a temporal sense.); Hoffmann, 389 S.W.2d at 750 (“the spirit of zoning ordinances always has been and still is to diminish and decrease nonconforming uses”).
Even the statutory authority protecting existing uses, K.S.A. 2000 Supp. 12-758(a), eliminates die use: “If a building is damaged by more than 50% of its fair market value such building shall not be restored if the use of such building is not in conformance with the regulations adopted under this act.” Additionally, in K.S.A. 2000 Supp. 12-771, the legislature enacted statutory authority permitting the gradual ehmination of nonconforming uses: “Nothing in this act is intended to prevent cities or counties from enforcing local laws, enacted under other legal authority, for the gradual elimination of nonconforming uses.” K.S.A. 2000 Supp. 12-771 was a codification of prior case law, e.g., Spurgeon v. Board of Commissioners, 181 Kan. 1008, 317 P.2d 798 (1957). In Spurgeon, the court upheld a Shawnee County zoning resolution which required the removal within 2 years of auto wrecking yards located in residential zones, even though they were lawful prior nonconforming uses.
The County was not secretive with its intention to avoid nonconforming uses by granting the 116 CUPs with the initial zoning regulations. In a situation of existing use, the zoning authority is faced with the choice of allowing the property owners to continue the nonconforming use or compensating the property owner for the value of the taken use. See City of Monett, Barry County v. Buchanan, 411 S.W.2d 108, 115 (Mo. 1967). In the case at bar, the County allowed Grosse to continue the existing use and made the use conforming by granting a CUP.
Having found the Board correctly determined that the property was properly zoned in 1992 as agricultural with a CUP-landfill, the resolution of this case depends upon whether the CUP was allowed to lapse. The Board found the 1992 CUP was forfeited as a result of closure of the landfill and discontinued operation of the permitted use.
Zoning regulation 21-104 provides with respect to continuance of a conditional use:
“A Conditional Use Permit shall be allowed to continue, unless specified otherwise as a condition of authorization, as long as all conditions placed on it are met; however, if that particular use ceases to exist for a period of six months, it will forfeit its Conditional Use Permit and will not be allowed to exist again unless a new application is made, a public hearing held and a new Conditional Use Permit approved.”
The Board made a factual finding concerning the lapse of the CUP. Our standard of review does not permit us to substitute our judgment for that of the Board but requires us to determine whether (1) the Board acted fraudulently, arbitrarily, or capriciously, (2) the administrative order is supported by substantial evidence, and (3) the Board’s action was within its scope of au thority. See Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999).
We find the Board’s decision is supported by substantial evidence and is otherwise valid. “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). It is undisputed that the landfill closed on October 8,1996, and discontinued its business of accepting and disposing of solid waste. The discontinuance of operations apparently remains today, and the landfill has clearly met the condition in zoning regulation § 21-104 of ceasing the approved CUP use for a period of 6 months. Further, during the 6-month period, the County no longer had a contract with Grosse, MCLI, or MSW for solid waste disposal serv-
ices.
MSW finally contends the Board is estopped from making a determination different from it had in 1996. MSW cites a report from the Marion County Planning Commission (Commission) concerning BFI’s application for a CUP for a large-volume landfill. In that report, the Commission stated:
“Marion County first implemented zoning regulations in 1992, locating the existing closed landfill site in the ‘A’ Agricultural zone, which does not permit sanitary landfill uses as-of-right. The Marion County Landfill has not applied for any permits under the current zoning regulations. Therefore, the closed landfill operated as a legal, nonconforming use.”
MSW argues the Board should be estopped from holding that there had never been a nonconforming use landfill on the property.
First, the Board is not bound by any decision of the Commission. Second, MSW’s claim is similar to that of someone claiming estoppel based on comments of city officials. The Goodwin court held: “A landowner is charged with knowledge of the zoning ordinances. Approval by city officials of a use which is prohibited by the ordinances is without effect.” 244 Kan. 28, Syl. ¶ 7. Further, MSW can show no detrimental reliance on the Commission’s statements.
The issue of waiver was also raised in argument by the Board to the district court. There was no objection in 1992 by Grosse to the proposed zoning regulations or the issuance of the CUP on his property. The minutes of the Commission’s meeting on September 22 and 24, 1992, state that the list of the CUPs that would be approved with the initial zoning was made available. The minutes state:
“In conclusion, Mr. Yearout [the zoning consultant from Wichita] pointed out the maps on the wall, showing proposed zoning districts, cities, and explained the legends. He pointed out that there were computer printouts that identify all conditional uses that would be included in this regulation. He invited those in attendance to inspect the maps and printouts.”
The notice of the public hearing in all the area newspapers read in part: “Any person wishing to be heard regarding this matter [Marion Co. Zoning Regs.] may submit written comments to the Planning Commission prior to or at the public hearings or may present written and/or oral comments at such public hearings.” There is no evidence Grosse ever objected to the CUP or the process by which it was granted. However, since we resolve this matter on more substantive grounds, we need not reach this issue.
MSW has failed to meet its burden of demonstrating by a preponderance of the evidence that the Board acted illegally or in an arbitrary manner.
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Marquardt, J.:
The Kansas Department of Transportation (KDOT) appeals the trial court’s refusal to grant its motion for summary judgment and motion for a directed verdict. We reverse.
Everett and Sylvia Jones leased approximately 40 acres on the west side of Highway 69 from the Van Kirks. Part of the property along Highway 69 contained a fence that was constructed by KDOT. The fence was built up and around the double box culvert on the Van Kirks’ property.
Sylvia admitted that she and Everett had trouble keeping their cattle from going through the culvert to Lee Phillips’ orchard on the east side of the highway. The Jones constructed a fence across the culvert on the west side of the highway, but found it difficult to keep it repaired when the weather was bad.
In response to a report in August 1997, Trooper Richard Lohse found 10 or 12 cows along the fence line on Highway 69. Officers cut the fence and herded the cows into their pasture; however, one escaped and got onto the highway.
While discussing a plan for locating the owner of the cows, Deputy Phillip Campbell heard a “thud.” A car driven by Arnold Reynolds struck the escaped cow. The car went off the roadway and struck a rock embankment. Arnold’s wife, Connie, did not survive the accident. Arnold’s daughter, Rhonda, suffered severe injuries.
In March 1998, Arnold filed a lawsuit against the Van Kirks, KDOT, and Everett, on behalf of himself, individually, and on Connie’s behalf, claiming negligence for failing to repair, construct, and/or maintain a fence that would have prevented an escaped cow from entering the highway. Rhonda joined in the lawsuit.
The Van Kirks and KDOT filed separate motions for summary judgment. While the summary judgment motions were pending, Arnold and Rhonda settled their case against Everett. The Van Kirks’ motion was granted. KDOT’s motion was denied. Arnold and Rhonda proceeded to trial against KDOT.
After the close of evidence, KDOT moved for a directed verdict, claiming that the only issues raised were issues of law that should not be decided by a jury. The trial court denied KDOT’s motion. The jury returned a verdict that found KDOT 35% at fault, Everett 45% at fault, and Arnold 20% at fault. The jury awarded Rhonda $705,521.65 and Arnold $473,774.70. KDOT timely appeals.
In ruling on motions for a directed verdict and summary judgment, the trial court is required to resolve all facts and inferences to be drawn from the evidence in favor of the party against whom the ruling is sought and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. The same rule applies when appellate review is sought. See Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000); Reeves v. Carlson, 266 Kan. 310, 313, 969 P.2d 252 (1998). Summary judgments are to be granted with caution in negligence actions. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998).
KDOT claims that it has no statutory duty to maintain its fence in a manner that would prevent an escaped cow from entering the highway and the duty for controlling an animal lies solely with the owner of the animal. The resolution of the issues in this case is not that simple.
Kansas fence law is contained at K.S.A. 29-101 et seq. Generally, all domestic animals, excluding cats and dogs, are required to be enclosed within a fence. The statute does not designate who is responsible for erecting and maintaining the fence. In 1986, the legislature moved away from strict liability and enacted the rule of ordinary negligence when dealing with domestic animal trespass. See K.S.A. 29-108. Common sense tells us that the owners of animals should be responsible for keeping them enclosed. However, in those instances where KDOT has constructed a fence, further analysis is required.
KDOT contends that there is no case law to support the notion that it must maintain a cattle-tight fence. Arnold and Rhonda agree that KDOT is not required to maintain a cattle-tight fence; however, their contention is that KDOT was negligent in not repairing a damaged fence designed to limit access to the highway.
David D. Arbogast, a maintenance supervisor for KDOT, testified that not all fences are repaired immediately when KDOT receives a damage report. KDOT makes a differentiation between fences that are erected to keep individuals and vehicles from entering or leaving the roadway in unauthorized areas, and fences that are erected where livestock is pastured. In places where livestock is pastured, the fence is repaired immediately, “day or night.” There is no record that anyone reported to KDOT that this fence was damaged. There was no evidence that the cow had escaped where the fence was damaged.
Under K.S.A. 2000 Supp. 75-6103 of the Kansas Tort Claims Act, the State is liable for damages (1) caused by the negligent or wrongful act or omission of any of its employees; (2) while the employee was acting within the scope of the employment; and (3) under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. State ex rel. Franklin v. City of Topeka, 266 Kan. 385, 387, 969 P.2d 852 (1998).
Arnold and Rhonda claim that KDOT was negligent in failing to repair the fence. In order to establish liability for negligence, the plaintiff must establish: (1) the defendant owed a duty to the plaintiff; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiff s injury; and (4) the plaintiff sustained damages. Kirk v. City of Shawnee, Kansas, 27 Kan. App. 2d 946, 950, 10 P.3d 27 (2000). The threshold question here is whether KDOT owed a duty to Arnold and Rhonda, which is a question of law. Whether the duty has been breached is a question of fact. Calwell v. Hassan, 260 Kan. 769, 777, 925 P.2d 422 (1996).
Arnold and Rhonda claim that KDOT owed them a duty under § 324A of the Restatement (Second) of Torts (1977). The initial requirement for the application of § 324A is that the defendant undertook to render services to another. However, the services rendered must be those which the defendant recognizes as necessaiy for the protection of a third person. Moreover, in order to meet this threshold requirement, the evidence must show that the defendant did more than act but through affirmative action assumed an obligation or intended to render services for the benefit of another. Calwell, 260 Kan. at 784-85.
It is undisputed that KDOT did not fence the area across the mouth of the culvert on the Van Kirks’ property. William Lackey, a retired KDOT employee, testified that KDOT would never put a fence across the mouth of a culvert. Lackey testified that it was up to the individual farmer to fence along the property line. Lackey noted that the purpose of the fence KDOT erected was to prevent landowners from driving through a ditch and onto the highway at random points. Lackey stated that no drainage structure in the state was fenced and the fence was not a cattle fence.
The trial court, in denying KDOT’s motion for directed verdict, ignored the issue of whether KDOT had a duty to Arnold and Rhonda with regard to the fence repair. The trial court stated that there was a jury question regarding whether the maintenance of the fence contributed to the accident. That would indeed be the case if KDOT had constructed a fence across the entirety of the Van Kirks’ property and failed to perform necessary maintenance. It is undisputed that the cattle escaped the Van Kirks’ property through the culvert.
Both parties cite Trout v. Koss Constr. Co., 240 Kan. 86, 727 P.2d 450 (1986), in their briefs. In Trout, KDOT had contracted with Koss Construction Company (Koss) to resurface a portion of Interstate 70. Koss hired P.J. Fulsom, Inc. (Fulsom) to perform fence removal and renovation. Fulsom removed a section of fence which was not replaced before it ceased work for the evening. A KDOT inspector saw the fence and knew that the wire had been removed and no temporary fence had been installed. Some horses strayed onto the highway through the gap in the fence. The horses were hit by a tractor and semi-trailer driven by Trout. Trout was seriously injured and brought suit against KDOT, Koss, and Fulsom. The jury apportioned the fault of 25% to KDOT, 25% to Koss, 40% to Fulsom, and 10% to Trout.
In Trout, The Kansas Supreme Court affirmed the jury’s verdict against KDOT, noting that KDOT owed the public the same duty as any private individual doing the same work. 240 Kan. at 93-94. Moreover, the court recognized that the State has a duty to maintain its highways in a reasonably safe condition and that a violation of that duty was negligence. The court recognized that a “reasonably safe condition” will vary according to terrain, time of day, weather conditions, and othér factors. 240 Kan. at 90-91. The facts of the instant case are distinguishable in almost eveiy aspect from the Trout case.
While it is true that KDOT has a duty to protect the motoring public, we do not believe this duty requires KDOT to fence every inch of land along our state’s vast highway system.
This accident was a tragedy. However, the cows escaped through an unfenced area. The fact that an area of fence across the street from the culvert may have been damaged is of little consequence, because the Reynolds failed to come forward with evidence to support their theory that the cow they hit came through that part of the fence after its initial escape from the Van Kirks’ property.
KDOT also addresses the impact of its maintenance manual. We would be faced with a different question if KDOT would have fenced the entire length of the Van Kirks’ property. KDOT correctly notes that it did not undertake to confine the Jones’ cows.
The question of whether KDOT owed a duty to Arnold and Rhonda is a question of law. See Calwell, 260 Kan. at 777. We hold that KDOT did not owe a duty to Arnold and Rhonda and, thus, could not have been found negligent. The trial court erred by not granting KDOT’s motion for a directed verdict.
KDOT also contends that there is insufficient evidence of a causal link between any alleged act of negligence by KDOT and the accident for the case to have gone to the jury. KDOT maintains that it is unclear how the cow came to be on the highway.
The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury and without which injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. Ordinarily, questions of negligence, including proximate cause, are questions of fact to be resolved by the trier of fact. However, where all the evidence relied upon by a party is undisputed and susceptible of only one inference, the question of proximate cause becomes a question of law. Cullip v. Domann, 266 Kan. 550, 556, 972 P.2d 776 (1999).
We believe that the proximate cause of the accident was the escape of the cow through the culvert. As we have noted, KDOT is not responsible for the Jones’ failure to construct a fence across the culvert. Without a duty, KDOT cannot be held liable for the accident.
The fencing on the east side of Highway 69 was damaged. It was estimated that the fence had a cracked post that had been leaning for approximately 18 months. Phillips, whose property was bordered by the damaged fence, testified that deer went through the fence and knocked it to the ground.
Deputy Campbell, who herded the Jones’ cows back into a pasture, saw the cow jump a guard rail, run 25 or 30 feet, and then “[clear] with no problem at all a four-foot high fence.” However, he did not see the cow enter the roadway. Deputy Nick Rothwell also saw the cow jump several fences and a guard rail.
A witness who inspected the section of damaged fence did not see any cow hair, manure, or trampled foliage and grass to evidence that a cow crossed at that point.
We agree with Arnold and Rhonda’s assertion that causation may be proven by circumstantial evidence. However, in this case, there is no evidence that the cow crossed through the damaged fence. Eyewitness accounts and physical evidence point to the cow that escaped again which jumped any number of intact fences before making its way back to the highway. The evidence presented did not prove that any negligence by KDOT was the proximate cause of the accident. Accordingly, the jury’s verdict must be reversed. The trial court is instructed to enter a verdict on behalf of KDOT.
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Rulon, C.J.:
Defendants Allen Jay Clinton and Connie Kay Clinton appeal the district court’s refusal to hear their appeals from their municipal court convictions. We reverse and remand for further proceedings.
The undisputed facts are as follows:
Defendants were convicted in municipal court on September 20, 2000. Defendants filed notices of appeal with the municipal court clerk on September 25, 2000, within the 10-day window of K.S.A. 2000 Supp. 22-3609(2). The municipal court clerk did not file the notices of appeal with the district court until October 17, 2000, well beyond the 10-day window of K.S.A. 2000 Supp. 22-3609(2). The district court refused to consider the case because defendants failed to “file the Notice of Appeal with the Clerk of the District Court within 10 days after the date of the judgment appealed from.”
Defendants argue on appeal that their notices of appeal filed with the municipal court clerk were sufficient to confer jurisdiction on the district court under K.S.A. 2000 Supp. 22-3609(2). The district court held the statute requires a notice of appeal to be filed in the district court, not the municipal court. The existence of ju risdiction is a question of law over which this court’s scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). Likewise, the interpretation of a statute is a question of law' over which this court has unlimited review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
Defendants’ interpretation of K.S.A. 2000 Supp. 22-3609 is a logical interpretation most consistent with case law and historical practice. K.S.A. 2000 Supp. 22-3609(2) provides:
“An appeal to the district court shall be taken by filing, in the district court of the county in which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court. Municipal court clerks are hereby authorized to accept notices of appeal and appearance bonds under this subsection and shall forward such notices and bonds to the district court. No appeal shall be taken more than 10 days after the date of the judgment appealed from.” (Emphasis added.)
The first sentence of K.S.A. 2000 Supp. 22-3609(2) unambiguously requires an appellant to file a notice of appeal with the district court clerk. The question in this case involves the meaning of the italicized sentence. Specifically, what does “accept . . . under this subsection” mean? The most logical interpretation requires us to equate “accept . . . under this subsection” with the filing required in the first sentence. As such, “accept . . . under this subsection” is read to make filing with the municipal court clerk equivalent to filing in the district court.
The City’s interpretation of the second sentence suggests that while an appellant could file a notice of appeal with the municipal court clerk, the appellant could merely hope the papers would be forwarded. Such an interpretation would render the sentence meaningless because attorneys could not rely on the municipal court clerk’s prompt action to preserve their appeals. Under such an interpretation, there would be no reason to authorize the municipal clerks to accept notices of appeal in the first place. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
The validity of a notice of appeal filed with the municipal court clerk is consistent with recent historical practice. When the legislature first enacted the modern version of K.S.A. 2000 Supp. 22-3609, appellants from municipal court were directed to file the notice of appeal with the municipal court clerk:
“An appeal to the district court shall be taken by filing a notice of appeal in the court where the judgment appealed from was rendered. No appeal shall be taken more than 10 days after the date of the judgment appealed from.” L. 1970, ch. 129, § 22-3609(2).
Filing a notice of appeal with the district court as is presently required in the first sentence of K.S.A. 2000 Supp. 22-3609, was adopted in L. 1982, ch. 149, § 1. For a year following the 1982 amendment, this particular subsection included nothing that authorized a municipal court clerk to receive a notice of appeal. But in 1983, the subsection was again amended to create the current language authorizing the municipal court clerks to accept notices of appeal. L. 1983, ch. 115, § 1. There is nothing shocking about a rule allowing a notice of appeal to be filed with the municipal court clerk.
The City emphasizes the strong “mandatory” language in the first sentence of K.S.A. 2000 Supp. 22-3609(2) and then characterizes the second sentence as “directory.” The City argues that the first sentence shows what is required and the second sentence merely “directs” the municipal court clerk how to act should a party file a notice of appeal with the municipal court clerk. The City makes a good point in arguing that the first sentence is strong mandatory language, but that position ignores the intent of the legislature in light of the presumption against meaningless legislation. See Marais des Cygnes Valley Teachers’ Ass’n v. U.S.D. No. 456, 264 Kan. 247, 250, 954 P.2d 1096 (1998); KPERS, 262 Kan. at 643.
The logical interpretation of K.S.A. 2000 Supp. 22-3609(2) is consistent with case law and historical practice that allow a party appealing a municipal court judgment to file a notice of appeal with the municipal court clerk.
Reversed and remanded for further proceedings. | [
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Beier, J.:
Defendant-appellant James Wren, Jr., appeals his convictions on two counts of aggravated robbery, arguing that the evidence was insufficient to support the convictions and that the trial judge erred in failing to supply the juiy a copy of his instructions for 2 hours.
A brief review of the facts is necessary to an understanding of our holding on the sufficiency of the evidence.
In the first incident leading to Wren’s convictions, a young 5'9" to 6'2" white man with a medium build and severe acne came into a video store in Fort Scott and inquired about when the store would close. About half an hour later, a man dressed in a “Scream” costume came into the store and demanded money from the cashier. The man had a blue glove over his left hand and had a plastic bag with what appeared to be a gun in his right hand. Witnesses described the man as 6'2" tall and black, based on his voice and demeanor. Witnesses also noticed a tear in the costume revealing a red shirt or sweater underneath.
In die second incident leading to Wren’s convictions, approximately 2 weeks later, a young 6'2" black man entered a grocery store in Fort Scott and requested a job application. The man was wearing red pants and a hose stocking hat. About 9:30 p.m. the store’s employees were preparing to close when a young white man with severe acne came in and requested a price check on some groceries for his grandmother. During this time, a man in a “Scream” costume and holding what appeared be a gun entered the store and asked for money. The cash registers were emptied into grocery bags, which were given to him. Witnesses identified the man in the costume as the same young black man who had been in the store earlier to request an application for employment. They also noticed he was wearing red underneath the costume. One witness recognized the costumed man’s voice and said his name was James. This witness had known James for 2 years and said James had asked for a cigarette earlier in the evening of the same day.
Police discovered that James lived in a nearby boys’ home and that someone at the home could provide his last name. They were then able to identify the young white man as Jacob York and the young black man as James Wren.
The police went to York’s aunt’s home, believing they could find him there, and obtained permission to search the house. They found York and a large amount of cash hidden under a bed. This visit also yielded an address at which police could find Wren. When police searched at that address, they found Wren hiding underneath a blanket, $16 in cash, a “Scream” costume tom as witnesses at both stores had described, and red pants. Moreover, a resident at this address said that Wren had returned about 11 p.m. on the evening of the second robbery and that he was carrying a grocery bag with a dark item she believed to be the costume.
During Wren’s trial, the district judge read the instructions aloud to the jury. He did not give the jury a copy of the written instructions until deliberations had been under way approximately 2 hours. When the trial court inquired if the delay in receiving the written instructions caused any difficulty with deliberations, the presiding juror replied, “No.”
Sufficiency of the Evidence
Wren argues there was insufficient evidence to find him guilty of the aggravated robberies because no eyewitness positively identified him and there was nothing to support a finding that a gun was used in the robberies.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Aggravated robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person, committed by one armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3426; K.S.A. 21-3427.
“ Whether or not a robber is “armed with a dangerous weapon” for aggravated robbery (K.S.A. 21-3427) purposes is determined from the victim’s point of view. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon.’ ” State v. Holbrook, 261 Kan. 635, 639, 932 P.2d 958 (1997) (quoting State v. Colbert, 244 Kan. 422, Syl. ¶ 3, 769 P.2d 1168 [1989]).
We are confident a rational factfinder could have found Wren guilty beyond a reasonable doubt. Both the testimony and the physical evidence supported the convictions.
York, Wren’s codefendant, testified that Wren was present at both the video store and the groceiy store. One witness identified Wren as the person in the costume at the groceiy store, and the other witnesses described the robber as a young black man similar in height to Wren. In addition, witnesses from both stores consistently testified they were fearful they might be hurt by what they believed was a gun, and the police found the torn “Scream” costume and red pants at Wren’s residence. A witness at Wren’s residence said Wren had returned home carrying a grocery bag and a dark item like the costume at a time consistent with his presence during the grocery store robbeiy.
Wren’s jury was charged with evaluating of all of this testimony and physical evidence, as well as witness credibility. It is not our place to repeat this task. See State v. Saiz, 269 Kan. 657, 664, 7 P.3d 1214 (2000).
Delivery of Written Jury Instructions
Wren next argues the district judge erred in allowing the jury to deliberate for more than 2 hours without written instructions, although the judge had read the instructions aloud to the jury before deliberations began.
K.S.A. 2000 Supp. 22-3414(3) requires the trial judge to instruct the jury on the applicable law at the close of the evidence. It does not require that the instructions be provided to the jury in writing.
In State v. Norris, 10 Kan. App. 2d 397, 699 P.2d 585 (1985), the appellant complained of the opposite omission. The trial judge had supplied the juiy with a copy of the written instructions as jurors began deliberations but had not read the instructions aloud. We held the judge’s decision to forgo oral delivery of the instructions erroneous and prejudicial.
“Historically, instructions to the jury were delivered orally and somewhat extemporaneously. In order to facilitate review of the law stated by the court and to permit the parties to have the opportunity to review and suggest changes in the proposed instructions, statutes were passed requiring judges to reduce their instructions to writing before reading them to the jury. [Citations omitted.] The written instructions could then be given to the jury for reference during deliberations at the discretion of the judge. [Citation omitted.]” 10 Kan. App. 2d at 399-400.
Norris does not require reversal of Wren’s convictions. Although we approve of the practice of trial judges giving juries copies of the written instructions as a supplement to reading the instructions aloud, such a practice is not required by statute or under our previous case law. Oral reading of the instructions—with its attendant guarantee that all jurors are exposed to exactly the same words as well as any arguable inflection and emphasis—safeguards a defendant’s rights better and more completely than any distribution of a copy of the written instructions could.
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Per Curiam,:
The Johnson County Housing Coalition (JCHC) appeals from the Board of Tax Appeal’s (BOTA) denial of its application requesting an exemption from ad valorem taxes. We affirm.
JCHC was organized as a nonprofit, § 501(c)(3) corporation in the State of Kansas. It is a State-recognized nonprofit community housing development organization whose stated purpose is to provide low income persons, handicapped persons, elderly persons, and persons with special needs with housing facilities and services.
JCHC filed an application for exemption from ad valorem taxation for a residential apartment complex consisting of 5 structures totalling 40 living units. The property was acquired by JCHC on January 31, 2000, and JCHC applied for the exemption under K.S.A. 2000 Supp. 79-201b Fourth, Fifth, and Sixth. The apartment complex is used predominately as low income housing, housing for the disabled, and housing for handicapped persons. The Johnson County appraiser (County) recommended the exemption be granted.
BOTA determined the applicable statutes were K.S.A. 2000 Supp. 79-20lb Fourth and K.S.A. 2000 Supp. 79-201 Ninth. In the order, BOTA found that as of June 2000, 23 of the 40 units appeared not to be rented by low income, elderly, or handicapped persons. It also found JCHC did not use the subject property exclusively for housing the elderly, handicapped persons, or persons with limited or lower income pursuant to K.S.A. 2000 Supp. 79-20lb Fourth and the property was not used predominately for humanitarian purposes pursuant to K.S.A. 2000 Supp. 79-201 Ninth. In addition, BOTA noted that K.S.A. 2000 Supp. 79-201b Fourth was a more specific statute addressing property operated under United States Department of Housing and Urban Development guidelines and, as such, should be the statute applied to the subject property. BOTA denied the exemption.
In its petition for reconsideration, JCHC clarified that 35 of the 37 habitable units were rented to low income households. The other two units included one unit where the tenant was simply delinquent in reporting income and one unit in which an eviction was pending. The three remaining units were being renovated, used for storage, or for the management office.
In its order denying JCHC’s petition for reconsideration, BOTA reiterated K.S.A. 2000 Supp. 79-201b Fourth still controlled as it was the most specific statute addressing real property. BOTA then found JCHC had not demonstrated it had satisfied the requirements of K.S.A. 2000 Supp. 79-201b Fourth. There was no evidence JCHC used the property exclusively for cooperative housing for persons having limited or low income and operated the property pursuant to Sections 236 or 221(d)(3) of tire national housing act. BOTA also stated the evidence did not show the property was used exclusively for elderly and handicapped persons having a limited or low income.
On appeal, JCHC argues BOTA erred in its determination that K.S.A. 2000 Supp. 79-201b Fourth applied and asserts that K.S.A. 2000 Supp. 79-201 Ninth is the applicable statute and that the exemption should be granted accordingly. This issue involves the interpretation of statutes. The County contends BOTA was correct in finding K.S.A. 2000 Supp. 79-201b Fourth applied but asserts BOTA erred in denying the exemption pursuant to that statute. The County, however, did not cross-appeal.
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference and is called the doctrine of operative construction. Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. [Citation omitted.]” In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999).
JCHC candidly concedes the subject property does not fall within the exemption created by K.S.A. 2000 Supp. 79-201b Fourth. The statute reads:
“The following described property, to the extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“Fourth. Ail real property and tangible personal property, actually and regularly used exclusively for housing for elderly and handicapped persons having a limited or lower income, or used exclusively for cooperative housing for persons having a limited or low income, assistance for the financing of which was received under 12 U.S.C.A. 1701 et seq., or under 42 U.S.C.A. 1437 et seq., which is operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in tins state as a foreign, not-for-profit corporation; and all intangible property including moneys, notes and other evidences of debt, and the income therefrom, belonging exclusively to such a corporation and used exclusively for the purposes of such housing. For the purposes of this subsection, cooperative housing shall mean those not-for-profit cooperative housing projects operating pursuant to sections 236 or 221(d)(3), or both, of the national housing act and which have been approved as a cooperative housing project pursuant to applicable federal housing administration and U.S. Department of Housing and Urban Development statutes, and rules and regulations, during such time as the use of such properties are restricted pursuant to such act, statutes or rules and regulations.”
Clearly, the subject property is not used exclusively as housing for elderly and handicapped persons having a limited or lower income. There is also no evidence the property is used exclusively for cooperative housing as defined in the aforementioned statute. This much is admitted by JCHC. However, JCHC contends the subject property falls within the exemption created by K.S.A. 2000 Supp. 79-201 Ninth. It reads:
“The following described properly, to the extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“Ninth. All real property and tangible personal property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services, which is owned and operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in this state as a foreign not-for-profit corporation if: (a) The directors of such corporation serve without pay for such services; (b) the corporation is operated in a manner which does not result in the accrual of distributable profits, realization of private gain resulting from the payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered or the realization of any other form of private gain; (c) no officer, director or member of such corporation has any pecuniary interest in the property for which exemption is claimed; (d) the corporation is organized for the purpose of providing humanitarian services; (e) the actual use of property for which an exemption is claimed must be substantially and predominantly related to the purpose of providing humanitarian services, except that, the use of such property for a nonexempt purpose which is minimal in scope and insubstantial in nature shall not result in the loss of exemption if such use is incidental to the purpose of providing humanitarian services by the corporation; (f) the corporation is exempt from federal income taxation pursuant to section 501(c)(3) of the internal revenue code of 1986 and; (g) contributions to the corporation are deductible under the Kansas income tax act. As used in this clause, ’humanitarian services’ means the conduct of activities which substantially and predominantly meet a demonstrated community need and which improve the physical, mental, social, cultural or spiritual welfare of others or the relief, comfort or assistance of persons in distress or any combination thereof including but not limited to health and recreation services, child care, individual and family counseling, employment and training programs for handicapped persons and meals or feeding programs. Notwithstanding any other provision of this clause, motor vehicles shall not be exempt hereunder unless such vehicles are exclusively used for the purposes described therein.”
This court must determine the applicable statute: K.S.A. 2000 Supp. 79-201b Fourth or K.S.A. 2000 Supp. 79-201 Ninth.
When reviewing decisions made by BOTA, certain guidelines and legal principles have been developed by the courts. Taxation is the rule; exemption is the exception. Any doubts are to be resolved against the exemption and in favor of taxation. The burden of establishing exemption from taxation is on the one claiming it. In re Tax Exemption Application of Via Christi Regional Med. Ctr., 27 Kan. App. 2d 446, 447, 6 P.3d 896 (2000). Tax exemption statutes are to be construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify. Presbyterian Manors, Inc. v. Douglas County, 268 Kan. 488, 492, 998 P.2d 88 (2000).
BOTA ruled K.S.A. 2000 Supp. 79-201b Fourth controlled over K.S.A. 2000 Supp. 79-201 Ninth because it is the most specific statute addressing residential property. K.S.A. 2000 Supp. 79-201b Fourth specifically deals with exemptions of low income housing while K.S.A. 2000 Supp. 79-201 Ninth is a more general statute that deals with property used for the predominant purpose of providing humanitarian services. General and specific statutes should be read together and harmonized whenever possible. “[T]he rule is that to the extent they conflict, the special statute will prevail unless it appears the legislature intended the general statute to be controlling.” Wilkerson v. Brown, 26 Kan. App. 2d 831, 834-35, 995 P.2d 393, rev. denied 269 Kan. 941 (2000).
If K.S.A. 2000 Supp. 79-201 Ninth controlled, there would be virtually no purpose for any section of K.S.A. 2000 Supp. 79-201b. All exemptions listed in K.S.A. 2000 Supp. 79-20lb can necessarily be classified as humanitarian activities. When a conflict exists between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling. In re L.D.B., 22 Kan. App. 2d 821, 824-25, 924 P.2d 642 (1996). K.S.A. 2000 Supp. 79-201 Ninth deals generally with providing humanitarian services while K.S.A. 2000 Supp. 79-20lb Fourth refers specifically to low income residential housing.
Legislative history makes it clear the legislature did not intend K.S.A. 2000 Supp. 79-201 Ninth to control over K.S.A. 2000 Supp. 79-201b Fourth in cases such as this. K.S.A. 2000 Supp. 79-201 Ninth was adopted largely in response to a BOTA decision which required the subject property be used “exclusively” for charitable, educational, scientific, or religious purposes. House Bill 2651 expansively defined the term “humanitarian services” in response and in contrast to the narrow interpretation of the term “charitable and benevolent purposes” as used in K.S.A. 2000 Supp. 79-201 Second adopted by the Supreme Court in Lutheran Home, Inc., v. Board of County Commissioners, 211 Kan. 270, ¶¶ 6-7, 505 P.2d 1118 (1973). K.S.A. 2000 Supp. 79-201 Ninth also eliminated the language about “investment income” that had been included in K.S.A. 2000 Supp. 79-201 Second and abandoned the “exclusive use” requirement of earlier exemptions in favor of the provision the property be used for the “predominant purpose” of providing humanitarian services. In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 756-57, 973 P.2d 176 (1999).
As evidenced by case law and the plain reading of the statute, K.S.A. 2000 Supp. 79-201 Ninth was not designed to govern residential housing facilities. The nonexclusive list of activities classified as “humanitarian services” in the statute include health and recreation services, child care, counseling, employment and training programs for handicapped persons, and meals or feeding programs. Existing case law applying this subsection reinforces this position. See Via Christi Regional Med. Ctr., 27 Kan. App. 2d 446 (health care facility); Univ. of Kan. School of Medicine, 266 Kan. 737 (health care facility); 9200 Santa Fe Corp. v. Board of Johnson County Comm'rs, 19 Kan. App. 2d 91, 864 P.2d 742 (1993) (YWCA building provided community services such as child care, teenage job readiness programs, and programs for child fitness).
K.S.A. 2000 Supp. 79-201 governs service-oriented facilities including religious, educational, literary, scientific, benevolent, charitable, or alumni associations or institutions; veterans’ organizations; parsonages; and community service organizations providing humanitarian services. Here, the subject property is a residential housing complex. K.S.A. 2000 Supp. 79-201b governs housing facilities. K.S.A. 2000 Supp. 79-20lb Fourth is a more specific statute and is applicable to the facts of this case.
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Johnson, J.:
Maria Prugue filed this lawsuit after her son, Martin, was injured in an automobile accident with Jeff David Monley. At the time of the accident, Monley was an employee of Coyote’s, Inc. (Coyote’s), a bar in Lawrence, Kansas. Prugue appeals from the district court’s grant of summary judgment in favor of defendant Coyote’s. We affirm.
In the early morning of April 26, 1997, on Kansas Highway 10 in Douglas County, Monley drove his vehicle across the centerline and collided head-on with Prague’s vehicle. Prague suffered severe and extensive injuries. Monley was the manager of Coyote’s. Shortly before the accident, Monley had completed his shift at Coyote’s and closed the bar.
Prague filed this lawsuit against defendants Monley, Richard M. Monley (the owner of Monley’s vehicle), and Coyote’s (Monley’s employer). Prague’s claims against the Monleys are not involved in this appeal. Prague’s claim against Coyote’s is based on Monley’s alleged alcohol consumption while on duty prior to the accident. There is no evidence of Monley’s blood alcohol level in the record, but Monley admitted to consuming four or five mixéd drinks between 7 and 9 p.m. on the night of the accident.
The district court found there was no legal or factual basis upon which Coyote’s could be liable to Prague for Monley’s off-duty actions. Prague argues his action against Coyote’s should survive summary judgment because: (1) Coyote’s had a duty of reasonable care in preventing Monley from harming or creating a foreseeable risk of harm to third parties, as set forth in § 317 of the Restatement (Second) of Torts (1977); (2) Coyote’s gratuitously undertook a duty to prevent its employees from drinking on duty because of the foreseeable risks posed to third parties, creating liability pursuant to § 324A of the Restatement (Second) of Torts (1977); (3) Coyote’s should be held liable on a theory of negligent hiring, retention, or supervision; and (4) Monley’s alcohol consumption was within the scope of his employment, creating Coyote’s liability on the theory of respondeat superior.
The standard of review on summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rales and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
Whether a legal duty exists is a question of law over which this court has unlimited review. Gragg v. Wichita State Univ., 261 Kan. 1037, 1044, 934 P.2d 121 (1997).
Restatement (Second) of Torts §317
Section 317 “imposes a duty on the employer to exercise control over the employee acting outside the scope of employment under limited circumstances.” Meyers v. Grubaugh, 242 Kan. 716, 720, 750 P.2d 1031 (1988). These limited circumstances exist when:
“(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and “(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts § 317.
Comment (b) to § 317 states:
“A master is required to police his own premises .... On the other hand, the master as such is under no peculiar duty to control the conduct of his servant while he is outside of the master’s premises, unless the servant is at the time using a chattel entrusted to him as servant.”
Prague makes the creative argument that: (1) the liquor was Coyote’s’ chattel; (2) Monley ingested the liquor while on duty; and (3) Monley was continuing to use Coyote’s’ chattel (liquor) at the time of the accident. Coyote’s counters with the equally creative argument that, following ingestion, the liquor became a part of Monley by accession and ceased to be Coyote’s’ chattel.
Fortunately, we need not ruminate on the question of whether ingested alcohol remains a chattel until fully metabolized by the body. The facts of this case are virtually indistinguishable from those in Thies v. Cooper, 243 Kan. 149, 753 P.2d 1280 (1988). In Thies, the employer, a beer wholesaler, provided a hospitality lounge on the premises for the use of its employees in which cereal malt beverages, soda pop, and coffee were provided free of charge. After consuming seven beers at work, the defendant struck and killed a pedestrian while driving home. The Thies court noted that “[t]he majority of jurisdictions have refused to impose liability on employers who have furnished liquor to employees for injury which occurred when the employee became intoxicated and caused injuries to a third party off the premises.” 243 Kan. at 154. Specifically finding § 317 did not apply, the court held that under Kansas law, an employer who makes available uncontrolled amounts of free alcoholic beverages to its employees on the premises may not be held hable for any tort committed by an employee while driving home from the workplace in an intoxicated condition. Thies, 243 Kan. at 150, 156.
Prugue unsuccessfully attempts to distinguish Thies, by claiming the Thies employees were only permitted to drink alcohol after work hours. However, in Thies, the parties stipulated that, despite a policy prohibiting the consumption of alcohol during work hours, it was a common practice for employees to drink the beer while on duty. 243 Kan. at 150. Viewing the facts of the instant case in the light most favorable to the plaintiff, we can conclude that Monley occasionally drank alcohol on duty despite a policy prohibiting such behavior. The holding in Thies controls this issue. Coyote’s owed Prugue no duty under the circumstances.
Restatement (Second) of Torts § 324A
According to Coyote’s’ employee manual, drinking alcohol while on duty was strictly prohibited. The manual provides: “Anyone caught consuming alcoholic beverages while on duty will be terminated immediately. No questions asked, no second chances.” The manual did not exempt managers from the rule.
Prugue argues that by adopting the rule, Coyote’s gratuitously undertook a duty to prevent its employees from drinking on duty to protect third parties from the foreseeable risks created by alcohol consumption. Prugue cites § 324A of the Restatement (Second) of Torts:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
A similar question was presented to the court in Meyers, 242 Kan. 716. In Meyers, the court refused to impose liability on the defendant’s employer when the defendant drank alcohol during work hours and injured a third party off duty, off the employer’s premises. 242 Kan. at 716-17. The employer, the State of Kansas, prohibited the consumption of alcohol by employees during work hours pursuant to its contract with the federal government and various statutes and regulations. The court held that these provisions did not operate to establish any duty to third parties. 242 Kan. at 719-21.
Section 324A does not apply here because Coyote’s did not undertake to render any service to Monley which was necessary for the protection of third parties. See Meyers, 242 Kan. at 723. Coyote’s’ owner, Joseph K. Benskin, stated that the alcohol policy was in place to make certain employees could perform their jobs and to shield Coyote’s from litigation. There is simply no evidence, as Prague suggests, that Coyote’s adopted the policy to protect third parties from injuries inflicted by its intoxicated employees. Coyote’s owed Prague no legal duty.
Negligent hiring, retention, or supervision
Next, Prague argues Coyote’s should be held liable on a theory of negligent hiring or retention. Kansas has long recognized a cause of action for negligent hiring. An employer may be held liable for injuries to a third party which are the result of the unfitness or incompetence of the employee. The employer is negligent in hiring or retaining such an employee when the employer knew or should have known of the employee’s incompetence or unfitness. Schmidt v. HTG, Inc., 265 Kan. 372, 397, 961 P.2d 677 (1998). However, in every Kansas case where an employer s liability for injuries to a third party was predicated on a negligent hiring theory, “the existence of a duty to the injured party was based on actions against a customer or co-worker which took place on the working premises during the time employment services were normally rendered.” Schmidt, 265 Kan. at 401. A similar fact situation is not present in this case.
Moreover, the only evidence even suggesting Monley would be unfit for his employment in a drinking establishment was the DUI citation he received almost 5 years prior to the accident. Even assuming Benskin knew about the DUI, he still was not negligent in hiring, retaining, or promoting Monley to manager of Coyote’s. At no time was Monley ineligible to work in a drinking establishment in the state of Kansas. See K.S.A. 41-2610. Monley was never actually convicted of driving under the influence of alcohol because he was allowed to enter into a diversion agreement. See K.S.A. 8-1009.
Prugue also argues Coyote’s was negligent in failing to supervise Monley. For support, Prugue cites 30 C.J.S., Employer-Employee § 186: “The master, in selecting an employee, must exercise a degree of care commensurate with the nature and danger of the business in which he is engaged and the nature and grade of service for which the servant is intended . . . .” Prague’s argument fails even according to his own authority. As manager, Monley was in charge of most of Coyote’s’ operations, including the supervision of all other employees. Monley was subordinate only to Benskin. The nature of Monley’s position as manager implies that he was not really supervised by anyone. Again, Benskin had no reason to believe Monley was unfit, even considering the DUI diversion. Benskin’s cursoiy supervision of Monley was therefore not inappropriate under the circumstances.
Viewing the evidence in the light most favorable to the plaintiff, there is simply no evidence that Monley was unfit for his employment at Coyote’s. Consequently, Benskin could not possibly have foreseen this tragedy would occur. Accordingly, the district court’s grant of summary judgment in favor of Coyote’s on Prugue’s negligent hiring, retention, or supervision claim should be affirmed.
Respondeat Superior
Each of the above arguments assumes Monley acted outside the scope of employment when he consumed alcoholic beverages during work hours and subsequently caused a motor vehicle accident. Thus, in the alternative, Prague argues that Monley’s alcohol consumption was within the scope of his employment. Accordingly, Prague contends, Coyote’s may be held liable for the foreseeable consequences of those actions on the theory of respondeat superior.
The question is well settled that the acts of an agent within the scope or apparent scope of his or her authority are binding upon his or her principal. Cross v. Aubel, 154 Kan. 507, 119 P.2d 490 (1941). Prague correctly points out that Thies recognizes cases from other jurisdictions where the facts were held sufficient to raise a jury question of whether an employee’s alcohol consumption was within the scope of employment. 243 Kan. at 154 (citing Harris v. Trojan Fireworks Co., 120 Cal. App. 3d 157, 174 Cal. Rptr. 452 [1981]); Romeo v. Van Otterloo, 117 Mich. App. 333, 323 N.W.2d 693 (1982), overruled by Millross v. Plum Hollow Golf Club, 429 Mich. 178, 413 N.W.2d 17 (1987); Dickinson v. Edwards, 105 Wash. 2d 457, 716 P.2d 814 (1986). Thies did not squarely address this issue.
An employee acts within the scope of employment if he or she performs services for which he or she has been employed or does anything reasonably incidental to the employment. “The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it.” Commerce Bank of St. Joseph v. State, 251 Kan. 207, 210, 833 P.2d 996 (1992). Here, however, the facts simply do not indicate that drinking alcohol was within the scope of Monley’s employment at Coyote’s.
The cases finding alcohol consumption within the scope of employment may be easily distinguished from the facts of this case. In those cases, the employee’s consumption of alcohol benefitted the employer in some way. Harris, 120 Cal. App. 3d at 164; Dickinson, 105 Wash. 2d at 469. Even assuming Monley’s on-duty alcohol use was ratified by Coyote’s, the evidence in no way suggests that drinking alcohol was inherent in the nature of Monley’s other job responsibilities. For example, there is no evidence that Monley was required to socialize or have a drink with customers to promote business. Monley’s alcohol consumption benefitted only himself.
Prague’s contention that drinking alcohol, even in the regular course of business, was within the scope of Monley’s employment is wholly without support. Again, the facts of this case, when construed in the light most favorable to the plaintiff, are indistinguishable from Thies. In both cases, alcohol consumption by employees during work hours was prohibited by company policy. Nevertheless, employees regularly drank alcoholic beverages while on duty. In neither case was there any evidence that drinking alcohol was within the scope of employment. The district court correctly rejected this argument.
Summary
Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. In addition, the injured party must show a causal link between the breach and the injury and that he or she suffered damage as a result. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). Absent special circumstances, a private employer owes no duty to a third party for the tortious acts committed by an employee who, after consuming alcohol on the employer’s premises, leaves the premises and injures a third party while off duty. Meyers, 242 Kan. at 724.
There are three exceptions to this general rale. First, liability may be imposed when an off-duty employee is either on the employer’s premises or using a chattel owned by the employer. Second, the employer may be held liable when it knowingly and voluntarily assumes a duty to control the employee. Third, liability may result when the employer is negligent in employing or in retaining an employee whom tire employer knew or should have known to be incompetent or otherwise unfit. 242 Kan. at 724. None of these exceptions apply to the facts of this case. Moreover, Coyote’s may not be held liable for Prague’s injuries on a theory of respondeat superior because Monley’s drinking of alcohol and subsequent accident did not occur within the scope of his employment. The district court correctly granted summaiy judgment in favor of Coyote’s.
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Knudson, J.:
The plaintiff, Martha B. Hall, appeals the grant of summary judgment in favor of the defendant, Darrell Miller. The trial court concluded that as a matter of law Hall’s claims of negligence against Miller, a psychologist, and Sheridan G. Tucker, M.D., are barred under the applicable statute of limitations. Hall contends the trial court erred in granting summary judgment to Miller as there are material issues of fact precluding summary judgment. We agree and reverse the decision of the trial court.
This is not your conventional professional negligence case. Miller' is a licensed clinical social worker who professionally counseled Hall from May 1984 through July 1994. Hall was referred back to Miller by Dr. Tucker for therapy as a result of depression ostensibly brought on by a bitter child custody dispute. In this htigation, Hall contends that during her years of treatment Miller and Tucker implanted false memories of satanic ritual abuse, causing her present mental illness.
Gradually, over a lengthy period of time, Hall began to lose confidence in Miller’s therapy and discontinued her individual counseling in October 1993. However, she did continue to attend Miller’s group therapy classes through July 1994.
According to Hall, in May 1995, she told Dr. Tucker she did not believe Miller was correct that she had suffered from satanic abuse. Tucker told her that she had re-repressed her memories because she had stopped therapy and she would be forced to return when the memories reappeared. He assured her the memories would return within 5 years. Tucker even attempted to give Hall a copy of a satanic bible to help her accept the fact that satanic ritual abuse exists.
Sometime in early 1995, Hall read a magazine article which referred to false memories and subsequently, in July 1995, attended a local chapter meeting of the False Memory Syndrome Foundation (FMSF). According to Hall, this was the first time she was told of Miller’s reputation for advocating the existence of Satanic cults and the fallacies of Satanic Ritual Abuse therapy. Hall next saw Dr. C. Raymond Lake, a psychiatrist. In Hall’s supplemental response to Miller’s motion for summary judgment, Dr. Lake’s affidavit testimony was:
“1. I am a medical doctor with a Ph.D. in pharmacology. I am Board certified by the ABPN in general psychiatry and geropsychiatay, and by the ASCP in clinical psychopharmacology. I am currently a Professor with the Department of Psychiatry and Behavioral Sciences and Department of Pharmacology at the University of Kansas School of Medicine ....
“2.1 first met Martha Hall on July 13,1995, as a result of a referral from Howard Fishman. She made and [sic] appointment and we met at my office at the KU School of Medicine.
“3. At that initial meeting, she related to me that she had recently attended a meeting with a local chapter of the False Memoiy Syndrome Foundation, and expressed a desire for a ‘mental health check-up.’
“4. She related her original diagnosis of depression in 1984, and her subsequent course of treatment with Darrell Miller and Dr. Sheridan Tucker.
“5. At that initial visit, it was my opinion that she was not aware of the potential iatrogenic and destructive nature of die diagnoses and subsequent treatment advice given her by Darrell Miller.
“6. Over the course of subsequent visits (July 26, 1995 and August 8, 1995) Martha Hall began to gradually accept the causal link between her overall deterioration in function and the treatment she received from Darrell Miller.
“7. I do not believe that Martha Hall possessed sufficient facts or information that would have led her to believe that her therapist (Miller) was responsible for her deterioration in function prior to her attendance of the July 1995 FMSF meeting and her subsequent appointment with me.”
The trial court made the following findings in granting summary judgment to Miller:
“Plaintiff alleges negligence on the part of defendant Miller in misdiagnosing her as a multiple personality, leading her to believe a number of things that she claims to be untrue, including the following: that she had a history of sexual and/or satanic ritual abuse; that she had been impregnated by an alien; that her house had demons; and, therefore, that she should sell her house and family possessions; that she should sever her ties with her family; that her parents had pledged her to Satan; that her brother would kill her if she did not return to die cult; that she was a breeder for the cult; and, that she was a multiple personality. It is uncontroverted that by January of 1994, the plaintiff knew that she had not been in a Satanic cult nor was she a Satanic ritual abuse victim or a victim of sexual abuse; that she was not a multiple personality; that her house was not inhabited by demons; and that she was, in fact, back in contact with family members or in the process of getting back in contact with family members. To the extent that defendant’s statement of uncontroverted facts are consistent with the court’s statement of uncontroverted facts outlined above, those uncontroverted facts asserted in defendant Miller’s Motion for Summary Judgment and Memorandum in Support thereof and Supplemental Memorandums in Support thereof are hereby adopted and incorporated as though fully set out herein.
“The Court further finds that the statute of hmitations, K.S.A. § 60-513(b)(c) [sic], as interpreted by Kansas appellate courts requires that the standard for determining the statute of hmitations is an objective standard that is based upon the surrounding circumstances and, therefore, it is objective knowledge that triggers the running of the statute of hmitations. Applying that objective standard, the statute of hmitations in this case commenced to run as to defendant Miller by January of 1994 and the facts surrounding that are uncontroverted.”
In announcing his rating from the bench, the trial judge acknowledged:
“The uncontroverted facts are as follows: [Hall] received individual therapy from the Defendant Miller prior to October 29 of 1993; tire individual therapy ceased at that time. She continued in group sessions with the Defendant Miller through July 30 of 1994, and I don’t believe there’s any specific claim of any particular act that occurred on the 7-30-94 date in this case. This case was filed July 26,1996.
“In this case, the plaintiff claims that—and I’m going to focus primarily on Miller misdiagnosed her as a multiple personality and led her to believe a number of what I could characterize as bizarre things that were, she claims to be, untrue.
“It is uncontroverted by January of 1994 that the plaintiff knew that she had not been in a Satanic cult nor was she a satanic abuse victim; that she was not a multiple personality; that her house was not inhabited by demons; and that she was at that time in the process—in fact, back in contact with family members.
“. . . Objective knowledge, then, triggers the running of the statute of limitations.
“Certainly in this case I wish that there was a bright-line event. For example, in many cases there’s a death; there’s a doctor saying, ‘oops’; there’s sex between a patient and a therapist; or there is some specific injury. In this case, there certainly is not—no bright fine when this statute of limitations would have commenced to run. However, I’ve concluded, I would have to say, with a lot of anguish that, applying the objective standard, that the statute of limitations would have commenced to run ... by January of 1994.”
The trial court also granted Dr. Tucker’s motion for summary judgment.
Hall has filed a timely appeal, contending there are genuine issues of fact that preclude the grant of summary judgment to Miller. Specifically, Hall argues there are disputed facts as to when she knew or should have reasonably known she had sustained an iatrogenic injury as a result of Miller’s therapy and counseling.
Discussion
“The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
The parties agree the following provision under K.S.A. 2000 Supp. 60-513(b) is controlling:
“(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
The question of when the fact of an injury is reasonably ascertainable has been the subject of much analysis and discussion.
In Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971), the plaintiff sued physicians who treatéd her for Hodgkin’s disease with x-ray treatments. The trial court dismissed the suit after finding the claim was barred by the statute of limitations.
The plaintiff in Hecht had been diagnosed in 1964 with Hodgkin’s disease and had completed a course of 20 radiation treatments with no significant adverse effects. In November 1965, she noticed lumps on her groin area, and in January 1966, she was diagnosed as suffering from a reoccurrence of the disease.
Twenty more treatments were planned. After the first treatment, given in January 1966, plaintiff complained of a strange “crawling like” sensation. 208 Kan-, at 87. She received a second treatment. After the second treatment, the defendants determined she had suffered an abnormal skin reaction to the first treatment. She was given four more reduced treatments and then the treatments were totally discontinued because of the adverse skin reaction. Two weeks later, she was again examined by the defendants, who both told her the reaction was subsiding.
Approximately 2 weeks after her exam by the defendants, she had a consultation with a separate physician. The consulting physician confirmed the opinion given by the defendants. It was not until December 1966 that the plaintiff was advised by another physician that she had an ulcer in her groin area, the ulcer had been caused by the radiation, and the ulcer would never heal without surgical intervention. Plaintiff filed her petition in 1968.
The trial court, in granting summary judgment to the defendants, held: “ Tn this case the fact of injury not only became ascertainable to the plaintiff before March 13,1966, but she also had full knowledge of the fact of the bum injuiy and its progression to ulceration before that time.’ ” 208 Kan. at 85. In reversing the lower court, the Kansas Supreme Court observed:
“We believe a fair analysis of the testimony of the three physicians deposed clearly indicates that as of March 13, 1996, none of them had made a diagnosis or prognosis of plaintiff s condition in terms of substantial injuiy since it was too early to do so with reference to the time of the treatments and the healing condition of plaintiff at the time. We do not believe that plaintiffs knowledge of her condition from her own observation, and that acquired from her physicians, is sufficient to justify a determination, as a matter of law, that she knew or could have reasonably ascertained on March 13,1966, that she had suffered substantial injury caused by the alleged negligent treatment of defendants.” (Emphasis added.) 208 Kan. at 92.
We find Hecht helpful in our analysis. Here, just as in Hecht, the issue is when Hall knew or could have reasonably ascertained that a substantial injury had been caused by Miller. Based upon the record before us, it is difficult to conclude that as a matter of law Hall, in her fragile mental state, knew or “could have reasonably ascertained” before 1995 when she first became aware of false memory syndrome that her psychiatric injury was caused by Miller. Significantly, it must be remembered that any reservations expressed by Hall as to the reliability of Miller’s diagnosis were rebuffed by her physician and Miller’s collaborator, Dr. Tucker.
In Seymour v. Lofgreen, 209 Kan. 72, 495 P.2d 969 (1972), the plaintiff was mistreated and misdiagnosed by a medical doctor, who did not diagnose her as suffering from mental illness. She was treated by the doctor between 1964 and 1967. In 1967, her family intervened and took her to a psychiatrist, who immediately admitted her to Research Hospital in Kansas City where she underwent shock treatments; from there, in 1968, she went to Osawatomie State Hospital. She filed her claim in 1970, approximately 1 year after she was discharged from Osawatomie. The Kansas Supreme Court affirmed the trial court’s dismissal of her suit because it was not timely, finding the record showed “the fact of injury was as certained no later than April 25, 1967, by her family, her psychiatrist, and herself, when, having changed doctors, she began a new course of treatment.” 209 Kan. at 77.
In the case now before us, Miller and Tucker successfully convinced Hall that she was a survivor of abuse suffered at the hands of her parents and friends, effectively ehminating her outside support system. Also, unlike Seymour, as soon as Hall discovered through evaluation by independent clinicians that Miller had caused her illness, not merely misdiagnosed it, she filed suit.
In P.W.P. v. L.S., 266 Kan. 417, 969 P.2d 896 (1998), the court was asked to decide when a cause of action for negligent counseling services accrued. The court, relying on Davidson v. Denning, 259 Kan. 659, 914 P.2d 936 (1996), found that the term “reasonably ascertainable” in 60-513 requires application of an objective standard to the surrounding circumstances in order to determine when a patient obtains objective knowledge of an injury. P.W.P, 266 Kan. at 424-25.
In P.W.P., the plaintiff obtained counseling services from L.S. The plaintiff claimed L.S. had engaged in an improper social and sexual relationship with her, beginning in 1985. The relationship continued until mid-1993. The plaintiff admitted she knew that the sexual relationship was wrong the first time she engaged in the activity. She sought out opinions about the relationship from other counselors between 1987 and 1994. At least one therapist informed plaintiff that the relationship was inappropriate and unethical.
The trial court found that it was uncontroverted that plaintiff was well aware of her injuries as early as 1986 and at the latest by 1990, so her 1995 suit was barred by the 2-year statute of limitations. 266 Kan. at 422.
In upholding the trial court’s decision, tire Kansas Supreme Court found that under an objective standard the only possible conclusion, based on the record provided, was that the plaintiff was well aware of her injury prior to 1993. 266 Kan. at 425.
In dismissing plaintiffs claim that the statute of limitations should have been tolled because she continued treatment with the negligent therapist, the court noted that in some cases such continuing relationships may create a fact issue as to when an injury is ascertainable. However, the court found that in plaintiff s case the record conclusively showed she was well aware she had suffered an injury prior to 1993. 266 Kan. at 427.
In Davidson, 259 Kan. 659, there was a bright line event, a death, that placed the plaintiff on notice that something out of the ordinary had occurred. The Davidson court found the statute of limitations began to run at that moment. 259 Kan. 659, Syl. ¶ 2; see Roe v. Diefendorf, 236 Kan. 218, Syl. ¶ 1, 689 P.2d 855 (1984); Friends University v. W.R. Grace & Co., 227 Kan. 559, 563, 608 P.2d 936 (1980). However, when dealing with a person’s mental condition, such bright line events may not be present that would trigger the discovery rule in K.S.A. 2000 Supp. 60-513(b). Clearly, in P.W.P., the plaintiff was aware from the moment she engaged in sexual activities that something was wrong. She sought out advice from independent therapists who told her the behavior was wrong. The facts in P.W.P. are analogous to the facts in Davidson because both cases contain bright line events. Unfortunately, the present case does not involve a bright line event, therefore, P.W.P. and Davidson are factually distinguishable and, in our estimation, legally distinguishable.
Finally, we note Lujan v. Mansmann, 956 F. Supp. 1218 (E.D. Pa. 1997), because the factual underpinnings of that case are strikingly similar to those in this appeal and there is a good discussion regarding what is called the “discovery rule” under a statute of limitations analysis.
In 1990, Lujan sought treatment from the defendant psychologist for emotional problems, including bulimia. During treatment, the psychologist persuaded Lujan to believe: (1) she had been a victim of satanic cult abuse; (2) was being stalked by a cult; (3) she needed to sever ties with her family and friends, except when requesting money; and (4) she needed plastic surgery to alter her features so she could escape the cult. In July 1992, the defendants advised Lujan they were discontinuing her therapy for 2 years “until the danger from the cult subsided.” 956 F. Supp. at 1222.
Lujan’s parents had paid for her therapy and brought suit in 1994, alleging the treatment given to their daughter was negligent. See Tuman v. Genesis Associates, 935 F. Supp. 1375 (E.D. Pa. 1996). Lujan found out about her parents’ lawsuit in December 1995. “As a result of this information, Lujan discovered the techniques and unethical practices employed by Defendants, and for the first time, understood that Defendants’ mind control techniques had harmed her.” 956 F. Supp. 1222.
In denying the defendants’ motion to dismiss Lujan’s amended petition because the . applicable statute of limitations had run, the court noted application of the discovery rule depends largely on the nature of the injury alleged. The court then made this telling observation:
“The dynamics of the psychiatrist-patient relationship contribute to this finding. Patients do not immediately assume their treating psychiatrists are perpetrating tortious acts through harmful and psychologically damaging treatment. Instead, patients are reluctant to either impute ulterior motives to the advice of the psychiatrist or automatically question the propriety of the psychiatrist’s treatment.” 956 F. Supp. at 1226.
The above reasoning expressed in Lujan is equally applicable in this case. Admittedly, Hall knew before terminating her counseling relationship with Miller that he had misdiagnosed her mental problems. However, prior to meeting with the individuals from the FMSF, Hall had no reason to believe Miller had caused her injury.
Under the circumstances of this case, we conclude that when the fact of injury became reasonably ascertainable cannot be determined as a matter of law but rather should be submitted to the trier of fact for determination. We hold the trial court erred in granting the defendant Miller summary judgment.
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Paddock, J.:
In an action to collect on a past-due note once barred by the statute of limitations, the district court ruled circumstances under which part payment was made revived only the principal obligation of the promissory note, but not the obligation to pay interest. Creditor Phillip H. O’Malley appeals, claiming it was error to only revive the principal term of the note. In addition, the debtors, Ronald L. and Kathryn A. Frazier, cross-appeal, claiming that the trial court erred in reviving the principal portion of the note.
On May 24,1984, in consideration of a loan of $27,000 made to them by O’Malley, the Fraziers executed a 90-day note to O’Malley for the amount of the loan with interest at 14% per annum. The Fraziers defaulted on the note but made sporadic interest payments until September 9, 1987. Over 12 years later on January 24, - 2000, the Fraziers delivered a $5,000 check to O’Malley as a principal payment on the note and indicated the balance of $22,000 principal would be paid in the near future.
Shortly thereafter, Mr. Frazier offered to pay O’Malley the remaining principal balance of $22,000 in full satisfaction of the debt. O’Malley refused the offer.
On July 13, 2000, O’Malley sued the Fraziers for the balance of principal and interest due on the note.
The Fraziers defended by claiming the debt was barred by the statute of limitations. The parties filed cross-motions for summary judgment, and tire district court entered judgment for O’Malley for $22,000 but denied his claim for prejudgment interest.
The applicable limitation period for an action upon any agreement, contract, or promise in writing is 5 years. K.S.A. 60-511. It is without dispute that the period had run by the time the Fraziers paid the $5,000 and that O’Malley sued the Fraziers within 5 years of the $5,000 payment.
The district court ruled the $5,000 payment was made toward the principal and was applied on the principal and that the Fraziers had always indicated their intention to repay the principal, but the same could not be said for the interest. The court reasoned it could split the note into two claims and grant judgment for the principal but deny the claim for interest. We disagree.
This case is controlled by K.S.A. 60-520(a), which states:
“(a) Effect. In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.” (Emphasis added.)
In interpreting a statute, our review is unlimited. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000).
Under the plain language of the statute, part payment by the debtor will toll the statute of limitations. Any of the three means mentioned in the statute—payment, acknowledgment, or promise—starts anew the period of hmitations which would have been ■applicable had an action been brought on the original debt or claim. See Morton v. Leslie, 150 Kan. 213, 215, 92 P.2d 90 (1939) (citing G.S. 1935, 60-312, the predecessor of K.S.A. 60-520[a]). The statute provides no means for reviving one part of the debt and not another. When the statute is clear, it must be applied without judicial construction. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 682, 847 P.2d 1292 (1993).
The district court, in support of its decision, cited Golden Rule Oil Co. v. Liebst, 153 Kan. 123, 109 P.2d 95 (1941). In Golden Rule, the court refused to revive the note by relying on the identical predecessor to K.S.A. 60-520. However, the critical distinction between the facts in Golden Rule and the instant case was that the debtor in Golden Rule did not make a part payment on the debt.
The Golden Rule court was scrutinizing the text of letters written by the debtor to see if they operated as an “acknowledgment” in removing the limitations bar. 153 Kan. at 124. Part payment does not require such scrutiny as it speaks for itself. See Fisher v. Pendleton, 184 Kan. 322, 336 P.2d 472 (1959); accord Hustead v. Bendix Corp., 233 Kan. 870, 666 P.2d 1175 (1983).
In Hustead, the court made it clear that part payment and acknowledgment are distinct means to revive a time-barred claim under K.S.A. 60-520. The court pointed out that pursuant to K.S.A. 60-520, a part payment is an executed acknowledgment that requires no writing to establish it and has the effect of tolling the statute of limitations. 233 Kan. at 877.
Both parties rely on Jarnagin v. Ditus, 198 Kan. 413, 424 P.2d 265 (1967). Such reliance is misplaced. That case differs significantly in reason and facts from the instant case. First, the case did4 not discuss the effect of K.S.A. 60-520. Second, the issue was whether there was an authorized payment on a debt barred by limitations. Here, authority to apply the part payment to the time-barred debt is not an issue.
The Fraziers’ part payment revived the promissory note as to principal and interest.
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The opinion of the court was delivered by
Brewer J.:
Action on recognizance. Demurrer to peti-' tion was sustained, and this ruling is the alleged error. The petition alleges in substance, the filing of an information against Crissy, his appearance in court, entering into a recognizance, (a copy of which is given,) the filing of the recognizance, Crissy’s failure to appear at the next term, and the forfeiture of the recognizance. It is not claimed by the attorney general that this petition was sufficient under the rules of common-law pleading, but it is insisted that under the liberal provisions of section 154 of the code of criminal procedure, (Gen. Stat. 844,) it must be held to be-sufficient. But we think under that section there is .still a fatal omission. That section provides that no action upon a recognizance shall be defeated on account of any irregularities, omission, etc., “ so that it be made to appear, that the defendant was legally in custody, charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance,” etc. Now this last matter does not appear from the petition. It does not follow, from the mere giving of a recognizance, that the accused was discharged from custody by reason thereof, or indeed that he was discharged at all. For all this petition discloses, the accused may never have been discharged from custody, and the reason why he did not appear was because he was confined by the sheriff in the jail, and could not come to the court-house. Where a party relies upon the liberal provisions of this section to sustain his pleading, he must make all the matters named therein clearly appear, or his pleading will, on demurrer, be held insufficient.
The ruling of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The controversy in this case grows out of the same facts as in the case of Colby v. Crocker, 17 Kas. 527, and which are fully stated in the opinion filed therein. Gilbert and Gay foreclosed their mortgage, and in the decree, with their consent, it was ordered that the property other than the homestead be first sold. To this LaRue, the administrator of the estate of the mortgagor, and holder of a judgment rendered against the. mortgagor in his lifetime, and which was a lien subsequent to the mortgage upon the property other than the homestead, objected, and insisted that the order should be for the sale of the homestead first. We held in that case that an unsecured creditor had no superior equities over the family of the deceased mortgagor, which was continuing to occupy the homestead, and that, therefore, the mortgagee would not be required to exhaust his security in the homestead before touching the other property mortgaged. Does the holder of a judgment-lien stand in any better condition-? Are his equities paramount to the homestead right? We think not. The same reasoning which led to the decision in that case, compels an affirmance of the judgment here. It is useless to restate it. The preservation of the homestead is, under the policy of our law, considered of more importance than the payment of debts. That is what a homestead means, exemption from debts. It is not so much for the debtor, as for the debtor’s family. And the family of the debtor have in this respect equities superior to the creditor. In giving a mortgage on the homestead, the debtor waives this homestead right, but only to the mortgagee, and does not thereby open the door to other creditors, or increase their equities. The case of Chapman v. Lester, 12 Kas. 595, cited by counsel for plaintiff in error, does not conflict with these views. In that we held that a mortgagee, holding a mortgage on both homestead and other property, might release the latter and still maintain his lien on the former. Both kinds of property were given as security, without any express preference of the one over the other, and we held that nothing was to be interpolated into the contract, no implied agreement to treat the outside property as the primary, and the homestead as only secondary security. But this was between the mortgagee and mortgagor, and the latter by giving the mortgage had waived his homestead-rights as against the mortgagee. We closed the opinion however by a recognition of the right of a court in foreclosure proceedings to direct that the homestead be the last, property offered for •sale.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Action of ejectment by Devoe against Waterson. Defense, tax deed, and possession thereunder for more than two years after the date of the recording of the tax deed. Reply, that the tax deed was void upon its' face, and that as Waterson was the mortgagee of Devoe, and had foreclosed his mortgage prior to the purchase of the tax cer tificate, he was under such obligation to pay the taxes as to be precluded from acquiring and holding a tax deed against his mortgagor. .The cause was tried to the court, a jury being waived. The court stated in writing the conclusions of fact found, separately from the conclusions of law. Among other findings of fact, the court found the following:
“On the 1st of May 1861 a patent from the United States was issued to Devoe, conveying to him the land in question, and said patent was recorded December 15th 1873.
“On the 11th of May 1865, the tax deed was executed to Waterson for said land, by the county clerk of the county of Marshall, and the tax deed was recorded July 24th 1865.
“Defendant Waterson took possession of and made lasting and valuable improvements on the land in controversy, in the spring of the year 1869, and has been in peaceable possession ever since.
“Defendant Waterson paid for the assignment of the tax certificate February 10th 1865, $37.33, the same being the taxes, interest and penalties on said land at that time; and defendant paid • subsequent taxes on said land as follows: November 13th 1865, $8.65, being the taxes for the year 1865; February 8th 1867, $11.84, being the taxes for 1866; December 16th 1867, $17.78, being the taxes for 1867; January 4th 1869, $17.15, being the taxes for 1868; January 8th 1870, $16.57, being the taxes for 1869; December 5th. 1870, $23.75, being the taxes for 1870; December 25th, 1871, $25.36, being the taxes for 1871; December 31st 1872, $24.68, being the taxes for 1872; January 10th 1872, $27.65, being the taxes for 1873; and December 3d 1874, $30.72, being the taxes for 1874.
“The land was regularly assessed for the year 1862, and the plaintiff did not pay the taxes levied thereon for that year, nor the taxes for any subsequent year.
“A description of said land was not entered on the tax-roll for the year 1862. A description of said land was not. published or advertised in the list of lands advertised for sale for taxes of the year 1862. The tax-sale record in the county treasurer’s officé, of lands sold in May 1863 for taxes of the year 1862, showed that the land in question in this case was sold to Marshall county.
“The plaintiff executed and delivered to the defendant a mortgage on the land in dispute on the 28th of January 1862, to secure the payment to the defendant of the sum of $72.43, and said mortgage was foreclosed at the December term of the district court for Marshall county, in the year 1864, but the land was never sold under such judgment. Such judgment, so far as it was in personam, was kept alive by the issuing of executions, and was finally paid and satisfied in full on the 26th of December 1873, by the voluntary payment thereof by plaintiff.”
The conclusions of law were —
“1st, That the tax deed above set out is void on its face.
“2d, That the possession of the defendant together with the tax deed did not start the statute of limitations to running in favor of said deed.
“ 3d. That plaintiff’s right of action is not barred by the statute of limitations.
“4th, That the defendant, being a mortgagee of the land in dispute, could acquire no tax deed for the same under a sale for taxes for the year 1862.
“.5th, That the defendant has a lien on said land for the amount paid for the assignment of the certificate, and for the amount of all subsequent taxes paid on said land, and that he is entitled.to interest on the amount paid for the assignment of the tax certificate at the rate of twenty per cent, per annum, and also to interest on the amount of taxes paid subsequent to the date of said tax deed at the rate of twenty-five per cent, per annum, and said defendant also has a lien on said land for the amount of said interest. The amount of defendant’s lien for taxes and interest is $434.17, that being the total amount said defendant paid as taxes, and for the assignment of certificate, and interest to the first day of this term of court.
“ 6th, That the defendant has a lien for the improvements made on said land.” (The plaintiff' excepted to the fifth conclusion of law. Defendant excepted to all the findings and conclusions.)
The material questions presented in this case for our determination relate, first to the effect of a tax deed, void upon its face, in starting, or setting in motion the statute of limitation, (which statute is, “ that an action for the recovery of real property sold for taxes can only be brought within two years after the date of the recording of the tax deed,”) when the party claiming title thereunder has actual, open and notorious possession of the premises described in the tax deed; and second, to the validity of the purchase of a tax certificate by a mortgagee, and of the deed to him on the certificate, before a sale under foreclosure, and when the mortgagee'is not in the possession of the mortgaged premises.
In this ease, the tax deed was made to'Waterson on May 11th 1865. It recites that on the 5th of May 1863, the land in dispute was sold to Marshall county for the taxes of the year 1862, and that on the 10th of February 1865, the tax-sale certificate, which had been issued to Marshall county for said land, was assigned by the county treasurer of Marshall county to Water-son. Within the decision of Shoat v. Walker, 6 Kas. 65, the deed relied upon by Waterson is void upon its face. This court has frequently held that the statute of limitation will not run in favor of such a tax deed, while the land intended to be conveyed by the tax deed remains vacant and unoccupied. Shoat v. Walker, supra; Sapp v. Morrill, 8 Kas. 677; Hubbard v. Johnson, 9 Kas. 632. This court has also.held, that the statute of limitations will not run in favor of a tax deed void upon its face, where the owner of the land is in possession of and occupies the same. Sapp v. Morrill, supra.
Does the actual, open and notorious possession of the premises by the holder of a tax deed, void upon its face, change the rule, as above cited ? The authorities upon this question are conflicting. The Wisconsin decisions support the doctrine, that a person who has been in possession of the real estate for the time within which an action can be brought to recover property sold for taxes, after the date of recording of the tax deed, (and in that state the time is three years,) claiming title in good faith under the tax deed, can successfully plead the statute of limitations, although the deed is void upon its face. We are however not satisfied with the reasoning of the decisions of that state in reaching this conclusion. The decision strongly relied upon, is the case of Lindsay v. Fay, 25 Wis. 460. That decision is based mainly upon the case of Fdgerton v. Bird, 6 Wis. 527, decided in 1858. That the opinion in Edgerton v. Bird was not so luminous and satisfactory as to be entirely acceptable'to the bar of that state, is evident from some of the remarks in the decision rendered in the case of Lindsay v. Fay. In commenting upon the cases of Edgerton v. Bird, supra, and Sprecker v. Wakeley, 11 Wis. 432, Dixon, C. J., says:
“And yet, notwithstanding those decisions, the question has of late years been often raised in this court, as if it was still an open one; and now this case comes up, and most elaborate printed arguments have been submitted on the same supposition. It is certainly time the question was put at rest, and an end had of argument upon it. Aside from the considerations generally prevailing to induce an adherence to past decisions, and settled points, the question here is one to which the doctrine of stare deeisis applies with somewhat peculiar force. It is certainly better that almost any question should be settled, if even upon doubtful principles, than that it should not be settled at all.”
The case of Edgerton v. Bird, from the argument therein adduced, was decided principally upon some statute of that state making possession an aid of a tax deed, or making adverse possession or claim under color of title a basis for the statute of limitation. The court discusses at considerable length “color of title,” and holds, “that the tax deed was sufficient to show color of title in Bird, without regard to its intrinsic worth as a title, or the informality in its execution,” and is of the opinion, “ that the tax deed was properly admitted in evidence in that case to show colorable title in the husband of the defendant, and the character of that possession.” In the conclusion of the opinion, “the limitation of three years” within which an action must be brought from the time .of recording the tax deed of sale, is referred to as also decisive of the case, but no authorities are stated in support of this conclusion, and the judge merely adds:
“If any force or effect is given to this provision of law, it must, under the facts and circumstances of this case, defeat the action. The defendant has possession under a recorded tax deed, and had had possession under such a deed more than three years at the time the suit was brought. The tax deed was given in 1841, and it does not seem very inequitable to apply this statute of repose as a shield to protect the possession of the defendant.”
In the case of Sprecker v. Wakeley, 11 Wis. 432, the case of Edgerton v. Bird, supra, is cited and affirmed, and the only additional argument added to the former opinion, as to the three-years statute of limitation, is the language of Cole, J., to the effect, that, “this is substantially the plain, positive and express language of the statute, and must be regarded by the courts,-unless they are able to discover some principle by which they can overrule or disregard it. I have not been able to discover any ground upon which I could declare this provision of law void, unless I went to the extent of denying to the legislature power to pass statutes of limitations, a position which would be contrary to all the authorities.” In the opinion in Lindsay v. Fay, supra, the learned judge concedes, “that as the statute is silent upon the question of possession, and bona fide claim of title, if it is extended to tax deeds void upon their face, it must be by the spirit of it, and by analogy to the provisions of the other statute, and not because such cases are within the letter of it.” We do not note the cases of Hill v. Erick, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245, and others of like character, holding that the recording of a tax deed draws after it the constructive possession in a case where the premises are unoccupied, as this court in cases already decided, and hereinbefore cited, has not sanctioned this rule, when applied to tax deeds void upon their face.
We have thus fully quoted from the Wisconsin decisions, because they are relied upon in this case to sustain the claim of plaintiff in error, and are so frequently cited as conclusive .upon this question. The case of Moore v. Brown, 11 How. 414, is in direct conflict with the decisions in 6 Wis. 527, 11 Wis. 432, and 25 Wis. 460, as the supreme court of the United States therein hold, that a tax deed, void upon its face, does not bring a defendant within the benefit of the statute of limitations. Most, if not all of the adjudged cases referred to in the text-books in support of the propositions maintained by the Wisconsin decisions on this point, are made under statutes differing materially from those of Kansas. Notably is this true, in the decisions of Cofer v. Brooks, 20 Ark. 542; Hoffman v. Harrington, 28 Mich. 90, and Washburne v. Cutler, 17 Minn. 361. All of these latter cases are upon the question that tax deeds, even if irregular and worthless, are admissible in evidence, in connection with proof of possession, to show claim under color of title in good faith to let in the statute of limitations. While such decisions to some extent tend to support the position of counsel for plaintiff in error, they are not exactly in point, and hence not conclusive, even if sustained by reason. The fact of possession, and claim or color of title in good faith under a tax deed in this state, does not enter into, or constitute an element in the limitation prescribed in the two-years statute of 1862, (Comp. Laws, §11, p.879,) or in the statute now in force, (Gen. Stat. of 1868, 633, §16, subdivision 3d.) We cannot change said subdivision third to read that, “an action for the recovery of real property sold for taxes, can only be brought within two years after the date of the recording of the tax deed, where the person holding such deed has been in possession of the premises from the date of such recording under claim or color of title made thereunder in good faith.” The law, as it stands upon the statute book, is the same as to persons out of possession, and claiming title to property under tax deeds, as to those in possession. The statute of the two years, by its terms, applies as much to the one, as to the other. Possession is not referred to therein; nor does any claim of title, or entry under color of title in good faith, or otherwise, make a part of the provision of limitation. We have no right to extend its conditions. We are only interpreters of the law. This court having already held that a tax deed, void upon its face, will not start the statute of limitation of two years, it follows also, that a tax deed void upon its face will not protect a person in possession of the premises for two years under a like deed.
In answer to the conclusion to which we have arrived, it may be urged, that no distinction should be made against a party in possession, claiming title in good faith, between a tax deed void upon its face, and one regular in form, but •which on account of a fact existing outside of the deed may be invalidated in a court by the introduction of evidence de hors the deed. We do not think this suggestion, or rather objection, of any great weight. The law makes a tax deed, valid on its face, prima facie evidence of the regularity of all proceedings,' from the valuation of the land by the assessor, inclusive, up to the execution of the deed; and a person receiving such a deed may justly and properly rely on its recitals. . He need not look, and indeed is not expected to look, into the facts appearing elsewhere in the recorded proceedings for the levy and collection of the tax. The legislature intended to extend its protection of the two-years statute of limitation to persons holding tax deeds, regular in form, against proof aliunde which would rebut or destroy such prima facie title, when such tax deeds have been duly recorded, whether the party claiming title thereunder takes possession of the premises or not. If he takes possession, the law wisely provides, that he shall- recover for all lasting or valuable improvements made upon the premises, whether the tax deed be void upon its face, or may be avoided by a fact existing in the proceedings for the assessment and collection of the tax for which the land was sold. Smith v. Smith 15 Kas. 290. Nor do we think the principle we have ‘adopted, inequitable or unjust. At the time Waterson took the assignment of the tax certificate from the treasurer, the treasurer had no more authority to assign the same to him, than the counsel appearing in this case, or any other person not an officer of Marshall county. In March previous to the assignment of the tax certificate, the law giving the county treasurers the right to make such transfers, was repealed. Referring again to the case of Shoat v. Walker, supra, we quote: “ A tax deed to be sufficient, when recorded, to set the statute of limitation in operation must of itself be prima fade evidence of title. It is not necessary that the deed be absolutely good under all circumstances. It is not necessary that it be sufficient to withstand all evidence that may be brought against it to show that it is bad; but it must appear to be good upon its face; it must be a deed that would be good, if not attacked by evidence aliunde. When the deed discloses upon its face that it is illegal, when it discloses upon its face that it is executed in violation of law,.the law will not assist it. No statute of limitations can then be brought in to aid its validity. The party accepting it, and claiming under it, has full notice of its illegality, and must abide the consequences of such illegality. He has no reason to complain.” And we add, that actual, open and notorious possession will not bring such a deed within the provisions of the two-years statute of limitations.
This conclusion disposes of the case against the claim of the plaintiff in error; but as a very important question has been presented by the defendant in error, which is in the record, and which has been argued to the court in regar<l the relations of mortgagors and mortgagees in tax matters, we will consider ether the situation of Waterson, as mortgagee, would prevent him from acquiring title to the mortgaged premises by his purchase of the tax certificate, if the assignment had been valid, and obtaining thereon a tax deed, so as to cut off the rights of Devoe, his mortgagor in the premises. This involves two inquiries- — -first, was there any obligation on the part of Waterson to pay the taxes? and second, was there such a relation of trust or confidence existing between Waterson, the mortgagee, and Devoe, the mortgagor, as to preclude the former from becoming a purchaser of a tax title on the mortgaged premises in his own behalf? It is settled, that a party under obligation to pay taxes cannot acquire a title at a tax sale. In this state, the common-law attributes of mortgages have been by statute wholly set aside, and the ancient theories demolished. The mortgagee has a mere security, creating a lien upon the property, but vesting no title, and giving no right of possession whatever, either before or after breach. The statute confines the remedy of the mortgagee to an ordinary action, and sale of the mortgaged premises. Clark v. Reyburn, 1 Kas. 281; Chick v. Willets, 2 Kas. 385. Waterson neither had the actual possession, nor the right of possession of the premises, as mortgagee. He was required to pay taxes to the' state on his note and mortgage, and he performed his obligation, so far as his mortgage and note were concerned, when he discharged that duty. By loaning money to Devoe, and taking mere security, it cannot be said that he either covenanted or promised to pay Devoe’s taxes. The contrary is true. Devoe was not only under obligation to pay the taxes on the land he owned, but he was under duty to protect the lien, or security, of Waterson, by providing for the payment of the taxes, so that such lien or security should not be destroyed by his default or negligence. It is a well-settled rule of equity, that a party shall not take advantage of his own wrong. Yet the argument is made in this case, that because Devoe refused to perform his obligation to pay taxes, refused to comply with his written pi’omise to pay his note, so acted as to compel Waterson to advance additional moneys, not contemplated when the loan was made and the security taken, in order to save his security, that thereby, such a relation of confidence existed between Waterson and Devoe as to make the taking of a tax deed by the former an act of fraud against the rights of the latter. The argument is fallacious. The reasons are all in favor of holding that a mortgagee, under our laws, not in possession of the premises may obtain title to the mortgaged property by a fair purchase at a tax sale. It cannot be said that Waterson was under obligation to pay the taxes, he not having been in possession at the time of the assessment; nor were the lands assessed against him, nor was there any agreement with the mortgagor to pay the same. He cannot be held liable as having any title in the land, as our statute negatives the idea of title in the mortgagee. If the theory be advanced, -that the mortgagee is precluded from accepting a tax deed for his own benefit, because the law will presume that he did so for the protection of his own interest merely, and not to acquire title, we answer, then, in this case such a presumption of the law cannot be sustained. Water-son did not step forward and redeem the property from sale, but he took or attempted to take a transfer of the tax certificate, and thereafterward obtained the tax deed. This action on his part, and like action on the part of any mortgagee similarly situated, shows an intention, or an election on the part of such person, to occupy the relation of purchaser, with all the rights and incidents which the law attaches to it. The acts of a person, under such circumstances, do not support the presumption which the authorities holding contrary to the doctrine herein expressed would have the law imply. The fact that, under our statute, the mortgagee may pay and discharge the taxes on the mortgaged premises, and collect the amount so paid in his foreclosure suit, does not change the rule. Such provision of the law gives him the choice, if he desires, of paying the taxes, and secures him in the way of a lien for the amount so paid. It does not make it obligatory upon him to do so, nor does it create the relation of trust and confidence between him and the mortgagor. This statute does not change the obligation, in this respect, of the mortgagee. Section 135, Gen. Stat. 1868, p. 1062; §148, Laws 1876, p. 97. We think that a review of the authorities will sustain our conclusion. In the case of Williams v. Townsend, 31 New York, 415, the question was directly presented and decided, as above stated. Smith v. Lewis, 20 Wis. 369, is in support of the same view. In Chapman v. Mull, 7 Ind. Eq. R. (N. S.) 292, it is held, “ that the principles in relation to dealings between trustee and oestui que trust, as adopted by courts of equity, do not apply to the case of mortgagor and mortgagee. Dependence, and the duty of protection, are not involved in this relation, and they may deal, subject only to the ordinary principles.” In Walthall’s Ex’rs v. Rives, 34 Ala. 91, it is held, “that the acceptance of a mortgage does not estop the mortgagee from purchasing the mortgaged property under judgments having a lien paramount to that of the mortgage.” In Harrison v. Roberts, 6 Florida, 711, it is also held, “that there is no rule of law, or principle of equity, which prevents a first mortgagee from purchasing the mortgaged property when sold at sheriff sale under a judgment prior to the mortgage; and, in such a case, he takes absolute title.” The cases that support the rule, that a mortgagee cannot affect the rights of a mortgagor by purchasing the property at a sale for delinquent taxes accruing on the premises, are either made in states where the common law prevails as to the character of mortgages, or in actions in which the mortgagee was in the actual possession of the premises. In Chickering v. Faile, 26 Ill. 507, the argument of the court shows that, in that state, by the mortgage-deed the legal title passes to the mortgagee, but in equity the right of redemption remains in the mortgagor, even after condition broken. Upon a failure to perform the condition, the title apparently becomes absolute in the mortgagee, and is clearly color of title, and, after condition broken, the mortgagee, at law, may bring his action of ejectment and recover possession. This is not so in Kansas; and hence, in this state, the Illinois authorities are not in point on the question decided. In Brown v. Lemons, 44 N. H. 475, where it was held the mortgagee could not acquire title against the mortgagor, the mortgagee was in actual possession, taking the rents and profits. The court below held differently in its conclusions of law as to the rights of a mortgagee, than here decided; but as the deed was properly held void on its face, and the statute of limitations held not applicable, and as Waterson was allowed by the court the benefit of both the occupying-claimant act, and section 117 of the tax-law, (Gen. Stat. 1868, p. 1057,) no error was committed affecting any right of the plaintiff in error to his prejudice.
The counsel for the defendant in error, assuming that this court would hold the purchase of the tax certificate, and the acceptance of the tax deed by the mortgagee, as redemption of the land from taxes for the benefit of the mortgagor, asks us to modify the judgment of the court below, so as to allow to Waterson only seven per cent, interest upon the taxes paid by him, and to refuse him the benefits of the occupying-claimant act. We do not think the questions can be raised by the defendant in this way. The only party who has filed a petition in error here, is Waterson. Devoe does not come to this court alleging error in the action of the court below. He has filed no motion for a new trial, and he cannot now, simply on his brief, ask the rulings of the court below to be reversed or modified at his instance. He is not the complaining party. He has filed no petition , in error. He is held satisfied with the judgment originally rendered.
The judgment will be affirmed.
Brewer, J., concurring.
Valentine, J., not expressing any opinion.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, commenced under section 595 of the code, (Gen. Stat. 747,) and under section 118 of the tax law of 1868, (Gen. Stat. 1057,1058.) The answer of the defendants .... T 1 was a general denial. U nder such an answer we think the defendant had a right to show, by any legal evidence that he might have had, that he was the owner of the property in controversy. (Gen. Stat. 748, §596; Bancroft v. Chambers, 10 Kas. 364.) In this respect this kind of action is similar to' the action of replevin. In this case, the defendant attempted to show that he was the owner of the property in controversy, by introducing in evidence two certain tax deeds. If these tax deeds were valid, then he is undoubtedly the owner of said property, and is entitled to recover in this action; but if on the contrary such deeds are invalid, then he is not the owner, but the plaintiffs, who hold their title directly from the original patentee, are the owners; and in that case it seems to be admitted by the defendant that they are entitled to recover. That is, the defendant has raised no question either in this court or in the court below as to the right of the plaintiffs to recover, provided the defendant’s tax deeds are void. Both parties seem to desire to have the case decided upon its merits, and do not raise any technical objection to the plaintiffs’ right to maintain this particular action, provided the property in law belongs to them. The only question then for us to determine is, whether said tax deeds are valid or not. They are alike in form, and in every essential particular, except as to the descriptions of the land, and the amounts of the taxes. Both were executed July 24th 1865, for the taxes of 1862,1863 and 1864, upon a sale made 5th May 1863 for the taxes of 1862; and both deeds were recorded July 28th 1865. This action was commenced July 13th 1872.
Each tax deed is for several separate and distinct tracts of land, situated in different parts of Lyon county, and in dif* ferent townships and ranges; and each deed shows that all these different tracts were sold together in one 0 single sale, Now, such a sale is void; and a tax s]lowjng such a sajej js -also void. This follows from general principles, and is also in consonance with all the statutes of this state, which may in any manner affect the question. Sections 31, 36, and 38, of the act having application to this case, (Comp. Laws of 1862, pp.865, 866,) tend to prove it, and section 40 is not at variance with it. Of course, where two or more tracts of land adjoin each other, and are used and occupied as one tract, they may all be taxed together and sold together as one tract. (M’ Questen v. Swope, 12 Kas. 32.) But that is not this case. In this case the different tracts do not adjoin each other, but 'are widely separated. Said deeds are void upon their face; that is, they present the evidence of their own invalidity upon their face. Such a deed cannot even when recorded set the statute of limitations in operation. (Shoat v. Walker, 6 Kas. 65, 75.) In the case just referred to, this court said: “A tax deed, to be sufficient when recorded to set the statute of limitations in operation, must of itself be prima facie evidence of title. It is not necessary that the deed be absolutely good, under all circumstances. It is not necessary that it be sufficient to withstand all evidence that may be brought against it to show that it is bad; but it must appear to be good upon its face; it must be a deed that would be good if not attacked by evidence aliunde. When the deed discloses upon its face that it is illegal, when it discloses upon its face that it is executed in violation of law, the law will not assist it. No statute of limitation can then be brought in to aid its validity. The party accepting it, and claiming under it, has full notice of its illegality, and must abide the consequences of such illegality. He has no reason to complain.” In the case of Sapp v. Morrill, 8 Kas. 667, 685, this court said: “There would seem to be no reason why a void tax deed should cause the statute «of limitations to run in its favor. Does a party holding such a deed constructively oust the original owner by simply putting his deed on record, whether the original owner be in the actual possession of the property covered by the tax deed, or not? A void tax deed cannot draw after it, nor to it, the constructive possession of the property, although the property may be vacant and unoccupied. Then why should the original owner commence any action to test the validity of the tax deed ? He need not commence an action for the recovery of his property, for he is already in the constructive if not in the actual possession thereof; and his title is as good as it ever was. He need not commence an action to remove a supposed cloud from his title, for a deed void upon its face is no cloud upon his title. He need not commence an action to have the deed declared void, for the deed itself upon its face furnishes sufficient evidence of that fact, and about as good evidence as a record of a court declaring the fact would be. Indeed, there would seem to be no reason whatever in any such case for the owner of the land to invoke the interposition of a court of justice. The instrument itself would always furnish sufficient evidence to defeat any claim set up under it.”
In the present case the property is vacant and unoccupied, and it never has been in the actual possession of the defendant. And the tax deeds of the defendant being void, they could not draw to him the constructive possession of the property. He has therefore never had any mterest in the’property. His tax deeds, being . -. ,. .. ,. . void upon their face, could not give him any title, or any possession, constructive or otherwise, and he never had any actual possession. It seems to be admitted that the defendant had no interest in the land under his void deeds until the two-years statute of limitations are supposed to have run, and then it is claimed that his title became complete. That is, the whole title, and the whole possession, constructively were in the plaintiffs, and no part of the title or possession or any other interest was in the defendant, until the end of the two years, and then at the expiration of the two years, and at the commencement of the third year, the whole title and whole constructive possession all at once passed from the plaintiffs to the defendant simply because the defendant had had a void tax deed on record for two years! We think this can hardly be'so. (With reference to the operation of the statute of limitations, see Taylor v. Miles, 5 Kas. 515, 516; Bowman v. Cockrill, 6 Kas. 337, 338.) It is claimed that the supreme court of Iowa held that their five-years statute of limitation will run in favor of a tax deed like those we now have under consideration. The cases of Thomas v. Stickel, 32 Iowa, 71, and Douglas A Tullock, 34 Iowa, 262, come the nearest holding as defendant claimed, and yet they probably do not intend to go to the extent that he claims. If they do, then we cannot agree with them. But see Boardman v. Bourne, 20 Iowa, 134; Byam v. Cook, 21 Iowa, 392; Ferguson v. Heath, 21 Iowa, 438; Harper v. Sexton, 22 Iowa, 442; Hurlburt v. Dyer, 36 Iowa, 474; Weaver v. Grant, 39 Iowa, 294; Greer v. Wheeler, 41 Iowa, 85, 86, 87, 88. These cases will hardly sustain the claim of the defendant; and they go to the extent of holding that a tax deed, showing that two or more tracts of land were sold ■ together for a gross sum, is void. In this we agree with them. There, is no necessity for a party putting a defective or void tax deed upon record in this state; for where a person is entitled to a good tax deed he may have as many tax deeds executed as he desires until he gets a good tax deed.
We think there is no necessity to discuss in this case any distinctions which may exist between a tax deed which is incurably void upon its face, and one which though void on its face may be aided and cured by the introduction of extrinsic evidence; for there was no such evidence introduced in this case. We would think however that the statute of limitations would not run in any case in favor of a tax deed void on its face.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
The petition filed in the court below in this case alleged that the railway company was duly incorporated, and was in 1874 engaged in operating a railroad from Carbondale,in Osage county, to Lawrence, in Douglas county; that said railway company in its capacity as common carrier was engaged in transporting live stock from Wichita, in Sedgwick county, Kansas, to St. Louis, Mo.; that J. M. Webster was the general agent and manager of the railway company; that on the 6th of June 1874, the railway company by Webster its agent agreed with J. E. Maddox, and employed him to act as the agent of the company in procuring live stock to be shipped from Wichita, by and with said railway company, and over the line of railroad by the way of the town of Carbondale to St. Louis; that the railway company agreed to pay said Maddox $3 for each and every car-load of live stock which should be shipped over the defendant’s line of railway to the National stock-yards, at the city of St. Louis, during the shipping season of 1874, and pay a drawback to said Maddox of all the money over the sum of $80 per ear which defendant should charge and collect of shippers of live stock over the St. Louis, L. & W. railway to the said National stock-yards, and to pay said Maddox $2 per car-load of live stock which should be shipped over said railway to Chicago, Ill., during the said shipping season, and pay Maddox a drawback of all money over $93 per car which said railway company should charge and receive from shippers of said live stock over its railway to Chicago; that to evidence the amount of compensation so to be paid to Maddox, and the rates at which the railway company was to contract the shipment of cattle and other live stock, a memorandum thereof was reduced to writing, a copy of which is as follows:
“Wichita, Kas., 26th, 6, 1874.
“Agreement by and between J. M. Webster, of Lawrence, Kas., and J. E. Maddox, viz.: for every car-load of cattle or live stock shipped by the way of Carbondale, Kas., to Chicago, Ill., $2.00 per car to be paid to said J. E. Maddox, and if said live stock is sold at St. Louis, then $3.00 per car-load will be paid. To be paid on shipment of each 100 car-loads. Eate to Chicago, $95. Eate to St. Louis, $75. Eate to National yards, $80. • Jno. E. Maddox.
J. M. W.”
The petition further averred, that said Maddox spent his time in procuring live stock to be shipped in the season of 1874 from the city of Wichita over the said St. Louis, L. & W. railway to St. Louis and Chicago; that there were shipped from Wichita over said railway4 to the said National stockyards in the said city of St. Louis, during the shipping season between July 1st 1874, and November 10th 1874, 306 cars of live stock; and to Chicago there were shipped two cars; that the said railway company received $85 per car for stock to the National stock-yards, and $110 per car for stock shipped to Chicago; that the said railway company had not paid Maddox except $123, and demanded judgment for $2,349.00.
The railway company filed an answer containing a general denial, and setting up accord and satisfaction by the payment of the $123. Maddox replied with a general denial, and that he did not sign the receipt pleaded. Upon the issues, the jury returned a verdict for Maddox for $758, and judgment was duly entered therefor. The errors relied on for the reversal of the judgment are — that there was no evidence to justify the verdict; that the court erred in the admission of testimony offered by the plaintiff, and that the court erred in the rejection of testimony offered by defendant.
The main question for our consideration is, whether the court below committed substantial error in the admission of evidence against the objections of the plaintiff in error. If such error was committed, the'judgment must be reversed. A verdict based upon improper testimony, prejudicial to the rights of a party to an action properly excepting thereto, cannot be justified. At the trial of the case, the defendant in error, to prove the number of car-loads of cattle or live stock shipped from Wichita to Chicago and St. Louis via Carbondale and the St. Louis, Lawrence & Western railway during the shipping season of 1874, produced and read in evidence, against valid exceptions, a book or record of the Atchison, Topeka & Santa Fé railroad company, kept at Wichita, and puporting to relate to the shipment of stock over that road from Wichita in 1874, and billed to St. Louis and Chicago via Carbondale and the St. Louis, L. & W. railway. It appears from the evidence that such book was the letter-press copies of quarterly reports of the shipment of live stock from Wichita station, made by an agent of the A. T. & Santa Fé railroad company to the general freight-agent of the said company. The statements on the originals were made from dray tickets, which were all on file. From examination, it seems the book, or rather the letter-press copies therein inserted, contained the date of shipment, number of the manifest, number of cars, names of consignor and consignee, number of station manifested to, destination, kind, whether cattle or hogs, number of head, rate per car, and amount. It must necessarily have been made at intervals of three months, of the previous three months’ transactions of the A. T. & Santa Fé railroad company, made up in such manner and form, that by reference to the manifests, each of which were numbered, approaching one hundred in all, the whole transaction would appear. It was not a book of origi-' nal entries, nor an account book, and clearly comes within the definition of hearsay evidence. It was incompetent to be received, and should have been rejected by the court on the objections of the plaintiff in error. Such records would have been competent evidence in an action against the A. T. & Santa Fé railroad company to charge it with the shipment of cattle therein entered; but as to such book, the plaintiff in-error was a stranger, and could not be bound in any way thereby. The original records in the hands of the general freight-agent of the A. T. & Santa Fé railroad company could not have been used, if they had been produced, in place of the press copies. It is urged that because the defendant in error was the agent of the St. Louis, L. & W. railway at Wichita, and the A. T. & Santa Fé railroad was a connecting line with the St. Louis, L. & W. railway, that the A. T. & Santa Fé railroad company was the agent of the St. Louis, L. & W. railway company, and therefore an admission which would be good against the A. T. & Santa Fé railroad company would be equally binding in the same matter upon the St. Louis, L. & W. railway company. But neither by the pleadings, written memorandum, or the evidence of the contract, does it in any way appear that the A. T. & Santa Fé railroad company occupied any such relation with the St. Louis, L. & W. railway company. On the other hand, it does distinctly appear that the purpose of the agreement, oral and written, between the parties to this action, was, that the defendant in error should use his influence to ship cattle over the St. Louis, L. & W. railway to Chicago and St. Louis, for certain compensation agreed upon; and if the cattle had been driven from Wichita to Carbondale, instead of being conveyed in cars, and then shipped in accordance with the contract, the defendant in error would have been entitled to compensation. The evidence thus improperly admitted was very prejudicial to the plaintiff in error. It was the only definite testimony offered by him to support the allegation in the petition as to the number of cars shipped during the season of 1874 tinder his' contract. In the absence of this proof, he must have failed in the trial. The judgment of the district court was therefore erroneous.
In view of a new trial, and the many objections to the petition in this case, made by the plaintiff in error, and of the questions raised as to the written memorandum, it is proper that we should state, that a contract which is not required by statute to be in writing may be partly expressed in writing, and partly in an unwritten understanding between the parties; and if so, such understanding may be proved by parol. As it cannot be contended that the memorandum copied in the petition contained all the terms of the contract, and as it appears from the evidence that it was merely incidental and subordinate to the principal contract, and as its expressions are so obscure and indefinite, that without oral testimony, its meaning cannot be understood, the court below properly allowed extrinsic evidence to explain its terms, and to supply all omissions. Shepard v. Haas, 14 Kas. 443; Hope v. Balen, 58 N. Y. 380.
The judgment of the district court will be reversed, and the case remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Action of replevin for a watch. Defense, general denial, and claim that the watch belonged to estate of I. Nicklisson, of which defendant was administrator. The testimony is not preserved, and the case is before us upon the pleadings and findings. Judgment was rendered in favor of the plaintiff, and of this, defendant, as plaintiff in error, now complains. Arid first, he claims that upon the facts found, and admitted by the pleadings, judgment should have been in his favor. We think not. The court finds, that in the autumn of 1873, Nicklisson gave the watch to plaintiff, a girl then about twelve years of age, delivered it into her possession, requesting her to keep it and wear it in remembrance of him; that some months thereafter her father induced her to let Nicklisson, who was an old man, have the watch to take care of for her until she should become old enough to have the care of and wear it; that Nicklisson never claimed the watch after his gift, spoke of it to defendant as Mary Horn’s watch, and during his last-sickness directed the delivery of it to her, and that at the time of the gift Nicklisson was solvent. Possession by Whit-ford, and demand by plaintiff, were also found.
What more was necessary ? That the title passed by the gift accompanied by delivery of possession, is clear. Nicklisson being then solvent, the gift could not be , , ... ’ . get aside by creditors as void against them. Nor does the finding of the condition of Nicklisson’s estate, militate with the finding of his solvency nearly two years prior to his death. He might have had an abundance of property then, and lost or squandered it all before his death. The judgment awarding her the possession of the watch was right.
Again, defendant claims that no judgment should have been rendered against him individually for the costs, as in his answer he disclaimed any property, or right of possession, in. his private capacity, but claimed it , L J 7 only as administrator of Nicklisson’s estate. We think the judgment must stand as it is. He was in the actual possession of the watch, and refused to surrender it to the owner when demanded. She had the right to recover the possession from him as the party in actual possession; and in an action for the recovery of specific personal property, costs are allowed of course to the successful party. (Gen. Stat. 746, §589.) Section 587 applies to cases where there is a full disclaimer. When that is made, there is no need of further litigation. But here, though defendant disclaimed any personal interest, he nevertheless retained possession, and asserted the right thereto as administrator. Perhaps too the court thought that the fact that Nicklis^on spoke of it to him as Mary Horn’s watch, and directed in his last sickness that it be delivered to her, was a sufficient reason under that section for charging him personally with the costs. Whether the costs thus paid by defendant can afterward be allowed as a claim against the estate, will depend upon his good faith in making the defense. If made with full knowledge of plaintiff’s title, and without reasonable warrant therefor, he cannot charge the estate; but if made in good faith, and in honest and reasonable belief that the property belonged to the estate, he may; but that is a question which can be settled in the probate court.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action to recover damages for personal injuries alleged to have been received by defendant in error through the negligence of plaintiff in error in knowingly employing and retaining an incompetent, reckless and unfit servant, and in providing an unsafe and unsuitable handcar. The petition states in substance that .plaintiff in error was a corporation organized under the laws of Illinois, and was, on the day of the injury therein complained of, operating a line of railroad, extending from Leavenworth, Kansas, east through the county of Platte, in the state of Missouri; that defendant in error was employed by one Kirwin to work in connection with an extra gang of track-repairers under said Kirwin, in repairing the track of the railroad in Platte county; that as foreman of this gang of men, Kirwin had full power to hire and” discharge the laborers so under his control; that Kirwin was a reckless, careless man, entirely unfit to have charge and control of men, and utterly unfit for his position; and then follows this allegation, viz.:
“And plaintiff alleges that said defendant knew that said Kirwin was a reckless, careless and incompetent man, and that he was utterly unfit for the position he occupied; that said defendant knew these facts at the time of the occurring of the injury hereinafter stated, and had had full knowledge of such facts for a long time prior to the occurring of such injuries, to-wit, for the space of two’years, more or less; and that defendant, knowing said Kirwin to be a reckless, careless man, and one utterly unfit to have charge of men upon a railroad, and after full knowledge of his reckless and careless character had been brought home to it, continued said Kirwin in its employment as foreman as aforesaid, and gave him charge of a gang of men on said road; and that said defendant willfully, carelessly and negligently continued and retained said Kirwin in its employ after it had full knowledge of his unfitness for his said position, and of his reckless and careless character; and that said defendant had so retained and continued said Kirwin in its employment at the time of the occurring of the wrongs and injuries hereinafter stated, and after knowledge of his said careless and reckless character» for a long space of time, to-wit, one year, more or less.”
The petition further states that the railroad company employed Kirwin carelessly and negligently, with full knowledge that he was a careless, reckless man, and one unfit to have charge of men; that Doyle did not know of the unfitness of Kirwin until after he received the injuries complained of; that through the recklessness of said Kirwin iu running and conducting a hand-car, upon which Doyle and his fellow-servants were proceeding to their work, in said Platte county, and while in said county, the hand-car was thrown from the track, whereby Doyle received the injuries complained of. It was also charged that the hand-car was defective; but as the jury found for the company on that issue, it will not be necessary to consider it here. The railroad company answered, denying generally the allegations of the petition, and afterward filed a supplemental answer, setting up a sixth defense, in which it pleaded a written release, executed by said Doyle, releasing his right of action for the injuries complained of, if any he had. To the answer of the company, a general denial of all new matter was filed by Doyle, and also a verified reply to the new, or sixth, defense, denying the execution of 'the instrument for the purposes set forth on its face, alleging that Doyle made his mark to the same, if he did make his mark to it, believing it was simply a refceipt for wages; that at the time he was not.in his right mind, was suffering intensely from pain, and laboring under the influence of drugs, opiates, etc., taken to alleviate his • pain and suffering; was not in a condition to know what he was doing, but supposed it was a pay-roll.
On the trial, after defendant in error had introduced his evidence and rested, the plaintiff in error demurred to the evidence on the ground that no cause of action was proven, which demurrer the court overruled. The jury returned a general verdict for defendant in error, and assessed his damages at one thousand dollars; and answered particular questions of fact submitted to them. The plaintiff in error filed its motion for a new trial, which being overruled it moved the court for judgment on the verdict and special findings. This motion was overruled, and judgment entered on the general verdict for Doyle, to which actions of the court the company duly excepted, and now brings the case here by petition in error.
I. As both parties proceeded with the trial, and introduced further and additional evidence, after the demurrer to the evidence by plaintiff in error had been overruled, we do not think it necessary to discuss the question of alleged error in the action of the court below in overruling such demurrer. Simpson v. Kimberlin, 12 Kas. 579. We have recently held that, “as sustaining a demurrer to evidence works a final disposition of the case, the court does not err in overruling such a demurrer, whenever there is testimony which although weak and inconclusive, yet fairly tends to prove every essential fact, and is sufficient to justify a court in overruling a motion to set aside a verdict based thereon.” K. P. Railway Company v. Couse, 17 Kas. 571. See also Jansen v. City of Atchison, 17 Kas. 358.
II. Plaintiff in error contends that the reply of Doyle to the sixth defense is wholly insufficient to avoid the effect of the release. We think otherwise. If Doyle was in the condition stated in that part of the reply, he was incapacitated to contract with the railroad company. He could give no sufficient assent to the release. Assuming, as the reply states, that he was laboring under intense suffering, and was unable to move or turn himself; that his mind was wandering, and that he was under the control of drugs and medicines taken to subdue and ease his sufferings, and in no condition to know what he was doing, it would not only be inequitable, but against authority, to hold him responsible for a settlement made by him in writing with the company for his personal injuries for the sum of $33. The decisions are manifold, that contracts entered into when, from intoxication, the party was incompetent to contract, may be avoided. In the case at bar, the reasons' are very much stronger for holding, if Doyle signed the release, as he sets forth in his reply, that he should not be bound thereby. In the case of intoxication, the party inexcusably “drinks, forgets the law, and perverts his judgment.” In this case, Doyle, with a broken thigh, lying in a hospital on his cot, and so affected that he could only turn with great difficulty, naturally demanded opiates to assuage his suffering; and if he used them either to excess, or without the knowledge of his nurse or physician, his act in so doing is at least excusable, perhaps fully justifiable. If he was not competent to contract, (and of this the jury had the right, under the evidence, to judge,) then the release was not effective. Counsel for plaintiff in error, however, insist that unless Doyle offered to rescind the contract, and pay back the money received, the release is binding, and he could not recover in the case, and claim that the charge of the court, which directed the jury to give the company credit for the money paid for the release, provided Doyle did not intend to execute it, was erroneous. In support of this proposition, they say: “ It gave him the privilege of rescinding the contract, without surrendering the consideration received. It gave him permission to play the game of ‘head I win, tail you lose,’ a doctrine that is seldom sanctioned in a court of justice. A court of equity can reform a contract only in case of a mutual mistake. In this case, while it is claimed that Doyle was mistaken, there is no pretense that there was any mistake on the part of the company. It is well settled that a mistake of one of the parties to a contract is not enough to authorize a court to reform it.”
The argument is faulty, in that it assumes that Doyle made a contract, and also seems to assume that before bringing his suit he had knowingly ratified the release. If Doyle’s theory is correct, there was no release, no contract, no ratification within his knowledge. He sighed a writing which was voidable for want of capacity on his part to execute. Not until the suit was tried, was he fully informed of the circumstances under which he made his mark thereto, and hence we hold that under the facts stated in such reply it was not necessary for him to tender the money back. Nor did the court below commit error in instructing the jury, if they found for Doyle, to give the company credit for the $33 paid him at the time the release, so-called, was signed. If Doyle was incompetent to understand or know the character of the paper signed by him, owing to his being under the influence of opiates to surcease his pains, and such paper was never afterward-read or explained to him, it cannot be reasonably said that he affirmed the instrument, which he did not in the first instance assent to, and never afterward saw or knew of, until he met it on the trial.
III. It is alleged that the motion for judgment for the railroad company ought to have been sustained. In addition to the general finding by the jury for Doyle, the following particular questions of fact, among others, were also submitted to them, and answered:
“$.-Was the John Kirwin mentioned in the petition in this action incompetent or unfit to occupy or hold the position of foreman of such a gang of men as he was foreman of at the time when plaintiff was injured? A.-We believe he was competent, but unfit to hold the position.
“Q.-Was the John Kirwin mentioned in. the petition in this action so careless or reckless as not to be a fit person to occupy the position he held at the time when plaintiff was injured? A.-We believe he was too reckless.”
With these special facts so found, together with the general verdict for the plaintiff in the court below, the allegations in the petition, that the railroad company was liable for th.e negligent injuries inflicted by Kirwin upon Doyle, are fully sustained, unless some special finding df fact is inconsistent with the general verdict. Counsel for plaintiff in error claims that the following question and answer, namely—
“Did any of the officers or agents of defendant know that John Kirwin was not an ordinarily competent and careful person for the performance of the service in which he was engaged at the time of the accident to plaintiff, complained of? If so, what officers-and agents; what is the name of each of such officers and agents? * A.-There is not evidence to show whether they did or did not know”—
is a finding that the railroad company had no notice of the unfitness and recklessness of Kirwin, and therefore that said finding is inconsistent with the general verdict; and as the former controls the latter, the court should have given judgment accordingly. Counsel insisting upon this construction of the finding last named, concede that there are four cases in which an employer will be liable to an employé for negligent injuries inflicted by a co-employé: first, where the employment was without due inquiry as to the employé’s fitness; second, where the employment is with notice of the employé’s unfitness; third, where the employé is continued in service with notice of his unfitness; fourth, where the employé is so grossly and notoriously unfit that not to know of his unfitness is negligence: in such a case notice will be presumed. The finding relied upon to defeat the verdict is to the effect that no particular officer or agent of the railroad company knew that Kirwin was not an ordinarily competent and careful person. Does this finding rebut the presumption of the law, that notice will be presumed where the employé is so grossly and notoriously unfit that not to know of his unfitness is negligence? We think not. If it was the intention of the special finding to meet also this charge or allegation, then another and entirely different inquiry should have been given to the jury. If Kirwin.was retained by the railway company, after it should have known his unfitness and recklessness, the company actually had in law notice of such unfitness and recklessness, although neither the court nor the jury could name any officer or agent of the company in the possession of such knowledge. Hence, the fact that the jury virtually said that the evidence did not point out any officer or agent of the company who knew Kirwin’s unfitness and recklessness, did not in any manner do away with the notice presumed by the law. If the circumstances of the case were such as that, in the judgment of the jury, the railway company did not actually know of the unfitness of Kirwin, and nevertheless ought to have knoVn it, it is the same as if the company had such actual notice. Every presumption is in favor of the general verdict; and the court will presume that every fact was found, which there was evidence tending to prove, that is necessary to support such verdict; and a general finding in favor of Doyle, is a finding in his favor of all the facts necessary to constitute his claim. The question then arises, whether the allegations in the petition authorized the proof of such acts of negligence on the part of Kirwin as would make it negligent in the railway company not to know of his unfitness, and thus be bound in law with notice. In other words, does the .charge that the railroad company willfully, carelessly and negligently continued and retained said Kirwin in its employ, after it had full knowledge of his unfitness for his-position, and of his reckless and careless character, and such knowledge had been brought home to it, permit Doyle to show that the company ought to have known of such incompetency, and thus have actual knowledge in law? We think it does. The petition charges actual knowledge, and thereunder evidence could have been offered, showing that the unfitness and recklessness of Kirwin were known or ought to have been known by the railroad company. The obligation of the former tenders the same issue as the latter, and opens the door to every inquiry in relation to it. The petition would sustain a finding that the railroad company ought to have known the unfitness and recklessness of Kirwin, and in law had notice thereof. A statement of facts proven, which show that the railway company ought to have knowledge of the conduct of an employé, presumes notice, and is evidence of notice.
As to the other matters submitted in favor of sustaining the motion for judgment for plaintiff in error, it is sufficient to say that the general verdict fully covers all of said objections, and that the court committed no error in overruling the same.
In this case the evidence was very conflicting upon every material point, excepting as to the injuries received by Doyle; yet as there was testimony tending to support the verdict which would be sufficient therefor, if it was not contradicted by other testimony, and as the district court has approved the verdict, we cannot reverse the judgment and order a new trial on the ground that the verdict is not sustained by sufficient evidence. Our view of the weight of evidence might differ very widely from that of the trial jury, but we have no right to usurp their powers after a trial judge has approved their verdict. American Bridge Co. v. Murphy, 13 Kas. 35, and the authorities there cited.
We have not thought it necessary to examine or pass upon the point raised in the brief, as to the allegation of error in the instruction of the court as to the question whether the release was obtained by imposition on the part of the agents of the company. We have already decided that if Doyle signed the same without having capacity so to do, it was no defense to his action; and as the counsel for the plaintiff in error, who argued orally the case to this court, clearly and emphatically disavowed any claim to have the judgment reversed upon any technical question not affecting the ultimate rights of the parties, or not liable to result in a final judgment for the plaintiff in error, we have contented ourselves with reviewing the questions before considered.
The judgment of the court below will be affirmed.
All the Justices concurring.
The “release” so pleaded, and which was given in evidence on the trial, is as follows:
For the Consideration of the sum of thirty-three dollars received to my full satisfaction of the Chicago, Rock Island & Pacific Railway Company, I hereby release and discharge the said company from all claims and demands which I have, or may be entitled to have, against it, either in my own name or in that of any one else, and especially from all liability to me for loss or damage which has resulted or may result to me from injury suffered by me by reason of being thrown from hand-car between Beverly and Platte City while in performance of duty, and (by no act or carelessness of my own) injured so as to be unable to work for twenty-two days, which occurred on or about the 5th of June 1873. Received payment, July 8th, 1873. ' his
Thomas W Doyle,
mark.
The above was read to and signed by the said Thomas Doyle in our presence, at Leavenworth, on the 8th day of July 1873. E. Baker.
Ch. & N. W. F. 0. Sherman, Auditor. W. McCullom.
Examined) and correct: Geo. F. Walker.
Approved: Hugh Riddle, GenHSupt. | [
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The opinion of the court was delivered by
Brewer, J.:
The plaintiff sued the defendant before a justice of the peace, on a bond. The defendant appeared by himself and attorney, but introduced no testimony, and judgment was rendered, 22d July 1875, in favor of the plaintiff for $60 and costs. The defendant had not filed, and had not been required to file, any pleading in the justice’s court. The defendant duly appealed on July 28th. ■ At the September term of the district court, and on October 6th, the case was called and continued, and the following journal entry made:
[Title!) “By consent of parties, defendant to answer in twenty days from the rising of this term of court, and plaintiff five days to reply. This action is continued until next term.”
The case was reached at the next term of court on December 24th. The defendant had filed no pleading whatever, and the twenty days had long expired. Upon the call of the case the parties announced themselves ready, and entered upon the trial, whereupon plaintiff moved for a judgment upon the pleadings, as for a default. The defendant interposed a verbal plea of payment, and objected. The court sustained defendant’s objection, and the plaintiff excepted. The plaintiff then offered in evidence the original bond sued on, and then rested. The defendant offered the evidence of two witnesses to prove payment, to which plaintiff objected, on the ground that the defendant had not answered in the case, and that there was no issue joined, and that the evidence offered by the defendant tended to establish no issue made by the defendant, .or by the pleadings in the case. The court overruled the objection, and the plaintiff duly excepted. Finding and judgment in favor of defendant. Two motions for a new trial were also overruled and excepted to.
Was there error in the rulings of the court at the trial ? We are inclined to think there was, and that the error was one of sufficient importance to compel a reversal. At the time of these proceedings, cases on appeal from a justice’s court to the district court were to be tried upon the original papers, unless the latter court “in furtherance of justice allow amended pleadings to be made, or new pleadings to be filed.” (Laws 1870, p. 184, § 7.) The court then had power to require an answer to be filed, for though the language of the statute is, “allow,” yet we think this grants something more than mere authority to consent. But even if not, the order in this case was by consent of parties, and the court certainly had the power to enforce compliance with an order to the entry of which the parties had consented. It seems to us also, that it was the duty of the court to enforce the order, and that the plaintiff had a right to rely upon compliance, or take advantage of the default. We are aware that the matter of filing pleadings is largely within the discretion of the trial court, and that this court will not interfere unless that discretion appears to have been abused. In this case the court might at the time of trial have allowed an answer to be filed, although the twenty days named in the order had elapsed, though in such event the plaintiff would doubtless have been entitled to a continuance. It might too upon a proper show ing have set aside this consent-order for pleading, and left the case to-be tried upon simply the original papers. But nothing of this kind occurred. No order was made before that; no application for an order. The trial commenced upon simply the bill of particulars, with defendant in default for want of answer. Even on the trial no leave was sought or given ’to file answer, nor was any motion made to set aside the order for pleading. In short, the court ruled as though no answer were necessary, and no order had ever been made to answer. This ruling was erroneous. There was no exercise of discretion as to filing pleadings, but a direct ruling upon the legal rights of parties under existing pleading and order. It is precisely the same- as though a petition had been originally filed in the district court, and the defendant had failed to answer. It would then clearly be error-for the court upon trial to permit defendant to prove payment; and it would be none the less error because of the power of the court to permit defendant to file an answer alleging payment.
For this error the judgment must 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
Valentine, J.:
This was an action on four certain bonds issued by Leavenworth county to the Union Pacific Railway Company. These bonds are part of the same issue of bonds as those which were held to be valid and binding obligations against the county of Leavenworth in the cases of Leavenworth County v. Miller, 7 Kas. 479, and Leavenworth County v. Higginbotham, 17 Kas. 62; and nothing therefore need be said in this case with regard to their validity. The judgment rendered by,the court below in this case was in favor of Houston, plaintiff below, for the sum of $3,033. It was so rendered that Houston might collect the whole of the judgment from the county of Leavenworth, or might collect $910 of the same from John Hannon, (one of the defendants below, and now plaintiff ¿n error,) and the balance from Leavenworth county. But in case he collected the whole of the judgment from Leavenworth county, then the county was given the right to collect said $910 from Hannon. Both Han-non and the county now claim that said judgment was erroneous, and both .now seek to have the same reversed so far as it was rendered in favor of the plaintiff Houston. Both Hannon and the county will therefore be considered in this court as plaintiffs in error, upon the errors assigned by each respectively. Said bonds belonged to Houston, and were sold by one George H. Spry to Hannon; and the principal question involved in the case is, whether Spry had any authority to so sell said bonds.
The facts of the case so far as it is necessary to state them, are as follows: Houston resided in Philadelphia, Pennsylvania. The other persons hereinafter mentioned resided in Leavenworth county, Kansas, and the most of them in Leavenworth city. Said bonds were for $500 each, and were numbered respectively 38, 39, 40, and 41. Each bond had one or more interest coupons attached to it, and there were eight coupons in all. These coupons were for the semi-annual interest accruing on the bonds, and each coupon was for $17.50. Both the bonds and the coupons were payable by the county of Leavenworth at the Metropolitan National Bank of New York. On the 2d of March 1875, Houston, who was then the owner of the bonds, with said coupons attached, sent them all to one William A. Martin at Leavenworth with the following letter, to-wit:
Philadelphia, March 2d, 1875.
Wm. A. Martin, Leavenworth — Dear Sir: I send you the following bonds and coupons of the county of Leavenworth, which you will please do the best you can in settlement. Treat them the same as you would if they were your own. Nos. 39, 41, two bonds, series B, each $500, due Mch. 1, 1868, with coupons for $17.50, each. Nos. 38, 40, two bonds, series C, each $500, due Mch. 1, 1869, with three coupons for $17.50 each. Nos. 51, 56, 58, three bonds, series D, each $1,000, due Sept. 1, 1865, with fifteen coupons for $35 each. We had the bonds and coupons that were due presented for payment at the Metropolitan Bank, N. Y. They said there was no money to meet them, and had not been for years. Hoping you may be able to make a settlement, I am yours truly, H. H. Houston, (Pr. Geo. B. B.)
Said bonds numbered 51, 56 and 58 have nothing to do with this case. On May 3d 1875, (which was the first Monday of May,) the board of county commissioners of the county of Leavenworth were to meet in session. On that day, Martin handed said bonds and coupons to Spry to collect, or to get new bonds in their place, or partly both. Spry was at that time an attorney-at-law and business agent, but he was not at that time a dealer in bonds. If he ever was or had been a dealer in bonds, it is not shown in this case. About three, or four, or five years .prior to that time, he was a partner in the firm of Atwood & Russell, who were real estate agents and dealers in securities. But it is not shown in this case that Spry ever sold or offered to sell a single bond except the bonds in controversy in this case. Spry, immediately after receiving said bonds and coupons from Martin, collected' so much of the interest due on said bonds as was represented by said eight coupons, amounting in the aggregate to $140. On the next day, to-wit, May 4th, Spry presented to the county board of Leavenworth county — the board then being in session — the following petition, to-wit:
Office of Geo. H. Spry, Attorney-at-Law, No. S15, Delaware St.,
Leavenworth, Kansas, May 4th, 1875.
To the Hon. Board of Commissioners of Leavenworth Co., Has.
Dear Sirs: I have in my hands for collection four bonds of Leavenworth county, which were issued to the “Union Pacific Railway* Company, Eastern Division.” These bonds are for five hundred dollars each. The interest coupons attached to them have all been paid, but the interest accrued from maturity of such bonds is still due. These bonds belong to an estate in which, I understand, some minor heirs are interested, and the reason why they have not been previously presented for payment is because the administrator of the estate was not, for a long time after qualifying as such, aware of their existence. I am authorized to state that if the interest now due on these bonds is paid at once, and new bonds for the principal are given, such an arrangement will now be accepted. I trust that your honorable board will fully appreciate this matter, and beg a prompt settlement of the interest; and an issue of new bonds will indicate the honor and credit of our county. Yours truly, George H. Spry.
All the italics in the body of this petition, and in the foregoing letter of Houston’s, except the words “at once,” and “now,” are ours. Said Hannon was at that .time a member of the board of county commissioners of Leavenworth county, and was also chairman of the committee of ways-and-means; and Spry’s petition was referred to that committee. Hannon at that time told Spry in substance, that said petition could not be allowed, that the bonds were barred, and the county under no legal obligation to pay them. No report was ever made by the committee concerning said bonds. Spry kept the bonds for about three weeks, and in the meantime offered them for sale to several persons. He received several offers for them, the highest of which was $500. John Higginbotham offered him $500 for them, and Herman Markson offered him $300 for them. Prior to receiving these offers however, Spry asked Martin if the bonds were for sale. Martin answered, “that would depend on the owner, Mr. Houston.” Spry then said: “Suppose I see if I can get an offer?” Martin answered: “That is all right; you can see what is offered, and I will write to Mr. Houston.” Afterward Spry reported Markson’s offer to Martin, and wanted Martin to write to Houston. Martin said it would be useless. Spry then said “perhaps he could get a better offer.” Some days afterward Spry reported Higginbotham’s offer, and then Martin consented to write to Houston. Martin did not write however, but telegraphed to Houston. Houston replied both by telegram and by letter, declining the offer. As soon as Martin received the telegram he informed Spry that Hous ton declined the offer. These two offers were the only offers that Spry ever reported to Martin. And Spry during all that time never informed Martin that he had ever offered said bonds for sale, or that he had ever entertained any intention of selling them unless he first got the consent of Houston and of Martin; and there was no evidence introduced tending to show that either Houston or Martin knew, during any of said time, that Spry was offering said bonds for sale. As before stated, Martin telegraphed to Houston Higginbotham’s offer. And in answer thereto Houston returned the following telegram:
Philadelphia, Penn., 5, 26, 1875.
To W. A. Martin: Do not feel like selling at five hundred. Will write. H.- H. Houston.
Martin also received in answer the following letter from Houston, to-wit:
Philadelphia, May 27th, 1875.
Wm. A. Martin, Esq. — Dear Sir: We received your dispatch yesterday, reporting that you had an offer of' $500 for the $2,000 Leavenworth county bonds overdue and unpaid, which we telegraphed you to decline. We understand that that if suit is brought in the U. S. court for the amount of overdue bonds, it could be collected. Will you please consult Mr. Hurd, an attorney of your town, who has had experience in this matter — he having brought suit and collected moneys on these bonds for other parties. If he advises that you can collect by bringing suit, please let him do so on the bonds you hold in the name of H. H. Houston,-a citizen of Philadelphia, if the name of a non-resident is required. Yours truly, H. H. Houston.
About May 20th, to 28th, 1875, Hannon borrowed $1,000 of Thomas Leonard, and handed the same to one Patrick H. Madden, with the instructions for Madden to purchase said bonds for Hannon, and that Madden might retain all of said money that might remain after paying for said bonds. ■ Madden purchased the bonds of Spry, paying Spry therefor $960, and retained the other $40. At this time said bonds had long been overdue and dishonored, and their negotiability destroyed. About this time, eight new bonds, each for $250, with interest coupons attached, payable to the “Union Pacific railway company, eastern division, or bearer,” were issued by W. T. Ashby, chairman, and Oliver Diefendorf clerk of said county board, in lieu of said four Houston bonds. These new bonds were delivered to Hannon. It would seem that the interest on the Houston bonds amounted on 1st March 1875 to the sum of $910. Of this interest, $490 had accrued prior to 1st March 1872, and $420 afterward, and up to 1st March 1875. Eor the interest which accrued subsequent to 1st March 1872, overdue coupons representing the same were attached to said new bonds. But no provision was made in the new bonds for the payment of the interest which accrued prior to 1st March 1872. Hannon therefore procured one Edmund Rupert to collect said interest which had accrued on said Houston bonds prior to 1st March 1872. Rupert thereupon signed receipts for the amount thereof to-wit, $490, on the backs of said Houston bonds, and the county treasurer, in consideration thereof, issued to him a check for the same amount on a certain bank in which the’ county funds were deposited. This cheek was dated May 28th 1875, and was payable to “E. Rupert or order.” Rupert then indorsed said check and handed it to Hannon. Hannon then delivered said check, without other indorsement, to Thomas Leonard in part payment of said $1,000 borrowed of Leonard. Leonard then indorsed said check and drew the money thereon. This money belonged to the county; and although Leonard drew it, Hannon was the only person who is really chargeable therewith. There were six of said overdue coupons attached to each of said new bonds, or forty-eight in all. Each was for $8.75, or for $420 in the aggregate. These coupons, as before stated, represented the interest which had accrued on said Houston bonds subsequent to 1st March 1872 and up to 1st March 1875. For these coupons Hannon received, in June 1875, $420 of the county funds deposited by the county in New York city. Hannon therefore received in the aggregate $910 of the county funds (for past-due interest on said Houston bonds;) and for this amount said judgment was rendered against him.
Martin was not informed until the 9th of June 1875 that Spry had sold said bonds of Houston. As soon as Martin was informed, he went to Spry, and to Madden, and repudiated the sale, claiming that Spry had no authority to sell the bonds, and tried to get the bonds back. Martiu could not at that time ascertain for whom Madden had purchased the bonds. Although Madden admitted that he did not purchase them for himself, yet he refused to tell for whom he did purchase them. Spry testified that he (Spry) did not know at the time of the sale for whom they were purchased, but supposed they were purchased for Madden. Spry at the time of said interview, and in the presence of Madden, told Martin that he (Spry) received $500 for the bonds, and Madden neither assented nor dissented. On that same day, June 9th, Spry deposited in the First National Bank of Leavenworth $475 to the credit of Martin. Therefore out of the $140 received by Spry for coupons, and $960 received by him for the bonds, (total, $1,100,) he kept $625. On the next day Spry left Leavenworth and went to Minneapolis, Minnesota, where he still resides. Martin never received nor accepted any portion of said $475, but it still remains in said bank. Afterward Martin ascertained that Hannon was the purchaser of said bonds, and in July 1875 Houston commenced this action. The county commissioners of Leavenworth county ldvied taxes for the years 1868, 1869, 1871, 1873, 1874, and 1875 for the purpose of raising funds to pay interest on the bonds issued to the Union Pacific Railway Company, E. D. Such funds were raised, and the county treasurer paid interest on said bonds, evidently as it was intended that he should by the county board when they raised the funds. He paid $140 interest on the Houston bonds to Spry; he paid $490 interest on the Houston bonds to Rupert; and he paid $420 interest on the new bonds, which was really overdue interest on the Houston bonds, to Hannon. And this was all done in May and June 1875. The treasurer reported all of these payments.to the county board, and the county board, with said coupons and other vouchers of the treasurer before them, approved the treasurer’s report, and gave to him full credit for all of said payments. Spry also in his said petition to the county board had previously informed them that “the interest coupons attached to” said bonds had “all been paid.” (In this connection see brief of counsel for Houston, and statutes and authorities there cited.)
We know of no other facts than the foregoing that would tend to show that Spry ever had any authority to sell said bonds. If Spry had any such authority it must A ^ J % J because such authority tvas given by Houston to Martin, and by Martin to Spry, or because something had transpired which would estop Houston from denying Spry’s authority. Now certainly Houston never gave to Martin any such authority, nor did Martin ever give to Spry any such authority. Houston simply said to Martin concerning said bonds and coupons, “You will please do the best you can in settlement; treat them [in such settlement] the same as you would if they were your own. * * * Hoping you may be able to make a settlement, I am yours,” etc. There is not the remotest reference to a sale in Houston’s letter.' Martin at first simply authorized Spry to make a settlement with the county of Leavenworth, getting what he could in money and the balance in new bonds.' Afterward Martin told Spry that he might receive offers to be sent to Houston, but Martin •never authorized Spry to”sell the bonds. Martin however could not have given to Spry any such authority, even -if he had so desired, for he had no authority himself to sell the bonds.
Nor is there any sufficient ground for setting up any estoppel as against Houston. The bonds and coupons were all overdue and dishonored, and their negotiability destroyed long before Hannon purchased them. It was not shown that either Martin or Spry was a dealer in bonds, and the evi dence would certainly show that Spry was not a dealer in bonds. Spry did not claim to own the bonds, Qn con£rary informed the county commissioners (of whom Hannon was one) that he had the bonds in his hands merely “for collection.” Neither Houston nor Martin knew anything about the sale to Hannon until some days after it occurred, and neither of them ever ratified the same. Indeed, neither of them knew that Spry was offering said bonds for sale. But Martin’s knowledge or acts, whatever they might have been, would not affect Houston except so far as they were within the scope of Martin’s agency, and connected with the business of the agency. A principal is often responsible for the unauthorized acts of his agent; but still he is not so responsible unless such acts are connected with the principal’s business, and done within the course of the agent’s employment. In,this case Houston would have been responsible for all that Martin (and probably also that Spry) might have done in the settlement of his (Houston’s) claim against the county; for in this they would have been acting within the scope of their authority, and their acts would have been connected with the business for which they were employed. But to sell said bonds, was wholly outside of their agency, and had no connection whatever with the business for which they were employed. If a farmer should take his horse into a blacksmith-shop to be shod, and would step out for a short time leaving the horse with the blacksmith, the blacksmith could not sell the horse. Of course, Spry did wrong in selling said bonds; but Hannon is the person who enabled him to do wrong. He did not do wrong as the agent of Houston. Of course, neither Martin nor Houston is responsible for the $475 deposited by Spry in the First National Bank. They never had anything to do with it. They never owned the money. It was deposited there without, their knowledge; and they have never ratified the act of depositing it there. "We think that Hannon got no title to said bonds; and in this connection would refer to the following authorities: Foley v. Smith, 6 Wall. 492; Farring ton v. Park Bank, 39 Barb. 645; Thomas v. Kinsey, 8 Georgia, 421. See also authorities cited in brief of counsel for Houston.
We think the court below committed no substantial error in this case, and therefore that the judgment rendered by it was correct.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark, J. :
This is a prosecution for a violation oían ordinance of the city of Kansas City. The facts are similar to those in the case of City of Kansas City v. Hescher, ante, p. 782, and several of the questions raised are identical with those decided in that case. The record, however, fails to show that the defendant personally appeared before the police court for trial, but it does show that he appeared .by his attorney, waived arraignment, and pleaded not guilty ; that on the same day a trial was had, the officer making the arrest being sworn and testifying as a witness, but no evidence being offered on behalf of the defense.. Fagan was found guilty, fined $50, and ordered to stand committed to the jail of the city until the fine should be paid. Six days thereafter he filed with the police judge & recognizance, which was conditioned in exact conformity to the requirements of paragraph 612, General Statutes of 1889. This recognizance was on that day approved, and thereafter,.together with a transcript of the proceedings had in said cause, was certified to the district court of Wyandotte county, where the city filed its motion to dismiss the appeal, the motion being based upon the same grounds as were set out in the motion filed in the Hescher case, but also alleged that the recognizance was not acknowledged by either of the parties thereto before the police judge or police court of Kansas City, nor filed within 24 hours after the rendition of the judgment. This motion was supported by the affidavit of the police judge and was sustained by the court, and from the order of dismissal this appeal is prosecuted by the defendant.
At common law, it was essential to the validity of a recognizance that it be entered into before the court or officer authorized to take the same. It was not signed, but was simply spread upon the record, and the parties sought to be charged thereby were informed as to its terms and conditions, to which they orally assented, and a record was in a like manner made of that fact. This constituted it an ‘ ‘ obligation of record,” and it amounted in reality to a conditional judgment. It is contended by counsel for the city that, notwithstanding paragraph 5201, General Statutes, 1889, provides that all recognizances shall be in writing and shall be subscribed by the parties to be bound thereby, such instruments are still “ obligations of record,” and that in order to be of any validity they must be executed and acknowledged before the proper court or officer, and that an instrument, although in form a recognizance, if it is not in fact so executed or acknowledged, does not rise to the dignity of an “obligation of record,” and is consequently insufficient upon which to base an appeal in a criminal action, and is wholly void. The statutes of this state do not in terms require that a recognizance shall be either executed or acknowledged in the manner above indicated, nor is this court advised as to any valid reason for adhering to the common-law rule which requires the recognizance to be entered into before the court in which the proceedings are pending, or before an officer specially authorized to take the same. Under our statutes no judgment is rendered ; simply a written acknowledgment of the indebtedness is filed. Tlie only evidence that a party to a common-law recognizance ever assented to its conditions is the record itself, while the assent of a recognizor to the terms and conditions of a recognizance executed under the statute may be shown by proof of the signature thereto. In one case it is given orally, in the other in writing. The only purpose which could be subserved in requiring the recognizors to execute a recognizance in the presence of the court, or to acknowledge such execution before an officer, would be to secure evidence of the assent to the terms and conditions therein prescribed, and without which no recovery could be had in case of a breach thereof. As already stated, this fact may be otherwise shown.
The city contends that paragraph 612, General Statutes, 1889, is wholly void because of the provision therein that the defendant, upon an appeal from a judgment rendered in the police court for an offense criminal in its nature, and which is prohibited by a city ordinance, shall be entitled to an appeal only upon the execution of a recognizance conditioned for the payment of the fine and costs of appeal if it should be determined against him. It is .true that the supreme court, in the case of In re Jahn, 55 Kan. 694, held that a clause in paragraph 1010, General Statutes, 1889, similar to the one to which objection is here made, was an unreasonable restriction on the right of appeal, and in conflict with the constitutional guaranty that "thé right of trial by jury shall be inviolate” ; but we do not think that, because the right to a jury trial cannot be made contingent upon the execution by the defendant of a recognizance conditioned for the payment of the fine, it necessarily follows that the entire section of the statute which contains such a requirement, and which also allows the defendant 10 days from the date of the rendition of the judgment in which to perfect his appeal, is absolutely void, and that, under paragraph .617, which provides that, “in all cases not herein specifically provided for, the process and proceedings shall be governed by the laws regulating proceedings in justices’ courts in criminal cases,” an appeal can only be had by complying with the statute authorizing an appeal from a judgment rendered before a justice of the peace, which allows but 24 hours after the rendition of the judgment in which to perfect an appeal. (¶5454.) In answer to the argument of counsel, we need only repeat what was said in the Hescher case :
“The record fails to show that the defendant interposed any objection to being tried in the police court without a jury, or that he objected to giving a recognizance conditioned for the payment of any judgment which might be rendered against him. . . . He did not complain in the district court that, in order to secure a jury trial, he was required to give security for the payment of the judgment, but on the contrary he resisted the motion to dismiss his appeal, and he is here contending that the court erred in sustaining that motion. . . . The recognizance is not void upon its face, nor is there anything in the record from which an inference could fairly be drawn that it was not voluntarily executed.”
The defendant was entitled to 10 days in which to perfect his appeal. The recognizance 'which was given is not void upon its' face, and in view of the facts disclosed in the record the presumption cannot be indulged that it was not voluntarily executed.
The court erred in dismissing the appeal, and the judgment will therefore be reversed, and the cause remanded for further proceedings in accordance with-the views herein expressed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
This action was originally brought by the plaintiffs in error against Robert Eaves, as sole defendant, to recover the value of certain personal property and damages for its detention. They alleged ownership and right of possession of one black horse, a wagon, and set of harness, under and by virtue of a chattel mortgage given by one Diehl to Henry Hursh, dated March 12, 1889, and filed in the office of the register of deeds of Shawnee county on April 11 thereafter-, to secure the payment of a note for $265, bearing interest at the rate of 10 per cent, per annum from date, which had been transferred to the plaintiffs by a-written assignment thereon, and which note bore indorsements of payments amounting in the aggregate to $175. They also alleged that they were the owners and entitled to the immediate possession of said property, and, in addition thereto, one bay horse, by virtue of a bill of sale executed by Hursh to them on December 12, 1889 ; that the value of said property was as follows: The black horse, $100, the bay horse, $5, the wagon, $10, and the harness, $10 ; and that they had been damaged by reason of the unlawful detention of the property in the sum of $50, and prayed judgment for $175. A writ of replevin was issued in the action, and the bay horse, wagon and harness were taken into the possession of tne officer, but were afterward returned, to Eaves upon the execution by him of a redelivery bond. On January 16 the plaintiffs amended their petition by attaching thereto a copy of the note and mortgage referred to in the petition, and making one John Spear a party defendant, and alleging that Spear had wrongfully detained from them, since December 18, 1889, the black horse, of the value of $100, mentioned in the petition, and that the value of its use was $1 per day; that the said note was long past due; that possession of the horse had been demanded of Spear, and its delivery refused by him, and that the plaintiffs had been damaged by such wrongful detention in the sum of $50 ; that there was due on the note and mortgage $150, for which amount they demanded judgment against the defendants. Spear answered, denying that he wrongfully detained the possession of the black horse, denying that it was in his possession at the commencement of this action or at any subsequent date, and alleging that he claimed no interest in or right to its possession, and asked that he be dismissed, with costs. Eaves answered, admitting that he had de tained the harness, wagon, and bay horse, alleging that he was ready and willing that the plaintiffs should have judgment' against him for their return, offering to confess judgment therefor, and denying the wrongful detention of the black horse. On April 18 the plaintiffs again amended their petition, by alleging that, on or about December 17, 1889, Spear wrongfully took possession of the property described in the original petition, and, without any authority for so doing, sold and delivered the same to defendant Eaves, and wrongfully appropriated the same and the proceeds thereof to his own use; that Spear and Eaves colluded and conspired to put said property into the possession of Eaves, for the purpose of keeping it away from - and beyond the reach of the plaintiffs, and that Eaves then secreted the black horse so that he could not be found; that the said property was then of the following value : The black horse, $125, the bay horse, $25, harness, $20, and the wagon, $30 ; that the value of the use of the black horse was $1 a day, and of the other property a like sum, from the 17th day of December, 1889, and that no part thereof had been paid ; and prayed judgment against Spear for the sum of $250, with costs. To this amended petition Spear filed a general denial. A trial was had on June 10,1891, and, after all the evidence had beenintroduced, the plaintiffs, by leave of court, again amended their petition “ to conform to the proofs,” by alleging that the value of the property in controversy was as follows : The black horse, $125, the bay horse, $30, the harness, $25, and the wagon, $40 ; that the property had a usable value since the 12th day of December, 1889, of $2 per day; and prayed judgment “for the return of said property or the value thereof, to wit, the sum of $250, and for damages in the sum of $2 per day from the 12th day of December, 1889, to the present time, and for costs.”
From the foregoing statement, it appears that under the original petition the plaintiffs sought to recover from Eaves $175, for the conversion by him of two horses, a wagon, and a set of harness, and the damages resulting therefrom. Under the original amendment, it'was sought to recover from Eaves and Spear $150, the amount due on the Diehl note and mortgage, because of the alleged detention by Spear of the black horse. Under the second amendment, a judgment for $250 was' sought to be recovered against Spear alone, because of an alleged conspiracy between him and Eaves to keep the plaintiffs from recovering the possession of the property described in the petition, and the subsequent acts of Eaves in. secreting the black horse; while, by the third amendment, which was made at the trial "to conform to the proofs,” a' judgment was sought, presumably-against both defendants, for the return of all the .property described in the petition or the value thereof, which was claimed to be $250, and for damages based upon the usable value of the property. We think the allegations of the last amendment are controlling as to the nature of the cause of action upon which the plaintiff relied for a recovery, and that these allegations, when considered in connection with the prayer for judgment, stated an action of replevin, and this was the construction placed thereon by the trial court, which found in favor of the plaintiffs, as against the defendant Eaves, for the return of the property described in the petition, or the value thereof, which was found to be $100, and judgment was entered in accordance therewith. The findings and judgment were in favor of the defendant Spear, for his costs. A motion for a new trial was. duly filed, based on the ground of newly-discovered evidence, and which also alleged that the decision was nob sustained by sufficient evidence, and that errors of law occurred at the trial to which exceptions were duly saved. Ten days thereafter the plaintiffs asked leave to amend their motion for a new trial by adding thereto the following additional specifications : “ Error in the assessment of the amount of the recovery, the amount being too small.” The motion so to amend, 'as well as the original motion for a new trial, were overruled, to which the plaintiffs excepted, and they have brought the case to this court for review.
An elaborate brief has been filed, in which counsel has reviewed the evidence, attempting to show that the court erred in its findings of fact. But the record shows conclusively that these findings were based upon conflicting evidence. Spear held a bill of sale of the property described in the petition, dated June 11, 1889,' which was executed by the then owner, Henry Hursh, and was intended by the parties thereto to operate only as a security for the payment to Spear of the sup of $15, then due him. This bill of sale was filed in the office of the register of deeds two days after its execution. The lien created by it would; of course, be subject to that of the prior mortgage set up in the petition. The property was afterward removed to Butler county, where it remained until December 14, 1889, which was two days subsequent to the date that Hursh executed the bill of sale to Perry'& Go. At the time of the execution of this bill of sale the plaintiffs had not seen the property, but Hursh agreed it should be delivered to them within three days from that date. One Gillespie, who brought the property from Butler county under the directions of a man by the name of Cook, claimed a lien thereon of $22.50 for his services and for the amount claimed to have been paid by him for feed for the stock. The bill of sale to Perry & Co. recited that
“this bill of sale is given subject to the chattel mortgage of $40 in Cook’s hand for collection, also a first mortgage given to Diehl for $265, of which there is unpaid $60; this bill of sale to be void in case the said Henry Hursh shall pay back to E. H. Perry & Co. $85 and all costs, with interest at 10 per cent, from date, on or before January 1, 1890.”
From these recitals, it would appear that the plaintiffs purchased the property subject to the liens of two mortgages to secure the payment of $100, being a balance of $60 due under the Diehl mortgage, which had been assigned to the plaintiffs prior to the commencement of this action, and of $40 under another mortgage which was held by CoOk for collection. There is nothing in the record aside from the recitals of the Perry & Co. bill of sale to indicate in whose favor the mortgage for $40 was given, nor of the existence of such an instrument, save that Spear’s bill of sale was intended to operate as a chattel mortgage for the payment of $45, and that a payment of $5 had been indorsed thereon. When the property was brought from Butler county it was driven in front of the office of the plaintiffs in error, and Gillespie then claimed a lien thereon for his services, which Perry & Co. declined to pay. Acting upon the advice of an attorney, Gillespie directed Cook, who was a constable, to sell the property for the payment of the alleged lien of $22.50. It brought at sale somewhere in the neighborhood of $130. The defendant Eaves was the purchaser ; he paid Spear $40, and took an assignment of his bill of sale, and one witness testified that Eaves then tendered to Perry & Co. $60-, in satisfaction of the Diehl mortgage, but that they declined to accept it; $62.50 was then deposited in the Citizens Bank to the • credit of Spear fqr the benefit of Perry & Co., it being supposed by Eaves that this would be a sufficient tender to the plaintiffs of that amount of money. Afterward this suit was brought. As a surety for Eaves, Spear signed the redelivery bond in a sum double the value of the property taken under the writ of replevin, and held' $50 of the amount so deposited to his credit, to indemnify him as such surety, and paid the balance of the deposit, $12.50, to Eaves’s attorney. Probably the sale by Cook was unauthorized, as not having been made in accordance with the requirements of the statute, but neither he nor Gillespie is a party to this action, and, under the findings of the court, Cook was not acting as the agent of either of the defendants in making the sale. While the court erred in several of its rulings upon the admission of evidence, these rulings were generally in favor of the plaintiffs in error. Their witnesses were permitted, over the objection of the .defendants, to detail conversations had between the witnesses and third parties in the absence of the defendants, as to statements made by the latter with reference to certain disputed transactions.
Taken as a whole, we think the plaintiffs in error have no just cause for complaint as to the rulings of the court, and that the finding in favor of Spear is supported by the evidence. While the plaintiffs were entitled' to recover damages from Eaves for the unlawful detention of the property, the error of the court in failing to allow a recovery therefor must be deemed to have been waived, as a motion for a new trial did not call the attention of the court thereto. One of the specific grounds enumerated in the statute upon which a new trial may be granted is “error in the as sessment in the amount of the recovery, whether too large or too small, where the action is upon a contract, or for the injury “or detention of property.” The court properly overruled the motion to amend the motion for a new trial, as it set up a new ground therefor and was not filed within the time allowed by the statute. The evidence that was termed newly discovered” was either cumulative in its character, or its introduction sought for the purpose of discrediting defendants’ witnesses ; hence, no error was committed in overruling the motion based on tíre ground of newly-discovered evidence. {The State v. Hughes, 3 Kan. App. 95.)
It follows from what has been said that the judgment must be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver., J. :
The Concordia Fire Insurance Company issued a policy of insurance September 12, 1889, insuring IT. F. Johnson against loss by fire on a certain building owned by him in Kansas City, Kan., for a period of one year to the amount of $1,500. The property insured was destroyed by fire July 11, 1890. November 12, 1890, this action was commenced in the court of common pleas of Wyandotte county to recover the amount of said policy. On a trial had by jury, a verdict was returned and judgment rendered in favor of the plaintiff for the full amount of plaintiff’s claim. Of this judgment the insurance company complains, assigning for error various rulings of the court occurring upon the trial.
The main contention of the insurance company is, that by reason of certain conditions of the policy it had been released from liability, and the policy had become void prior to the time of the fire. The principal matters relied upon are the conditions with reference to incumbrances, other insurance, change of occupancy, and unlawful use. The policy provides that it shall become void and of no effect if, without the consent of the company, the property shall become incumbered, if other insurance shall be taken thereon, if the premises shall at any time be occupied or used for any purpose different from that written in the policy, if the premises shall become vacant or unoc cupied, or if they shall be occupied or used for any purpose contrary to and in violation of any law or police ordinance. It.contains the further provision that no agent of the company is authorized to waive any of the conditions therein printed. The policy, was written and issued by one Robert L. Marshman, the duly commissioned agent of said company located at Kansas City, Kan., and recited that the building insured was occupied as a schoolroom. The evidence show's that about January 1, 1890, the building ceased to be used for school purposes, and remained vacant and unoccupied until the following April, when it was rented to one Henry Reed, who took possession and occupied the same until the time of the fire; that after the issuance of the policy in question the plaintiff placed a mortgage upon the premises for $(¡00 ; that he also took out another policy of insurance for $1,800, in the Niagara Insurance Company. The evidence also tends to show that the premises were occupied by Reed in the conduct of an unlawful business— that of gambling — and that they were so used up to the time -when the building was destrojTed. The principal furniture in the house consisted of billiard-, pool- and gambling-tables, and gambling devices of different kinds. The gambling appears to have been conducted principally by .one William Tillman, but with Reed’s knowledge and consent. About June 7, 1890, in a raid by the police of Kansas City, a large number of men were arrested in the house, who were at the time engaged in a gambling game known as “craps.” This the plaintiff claims was the first information he had that the house was being so used, and that he immediately notified the occupants that such use would not be permitted. Tillman, however, testified that the building was thereafter used the same as before.
The terms and conditions of a contract of insurance, the same as of any other contract, are binding upon .the parties thereto, and must control in the determination of their respective rights. The defendant insurance company had a right to require, as the condition upon which its contract of indemnity should continue, that the hazard or risk should remain unchanged from what it was when the policy was written. It had a right, also, within reasonable limits, to stipulate what should be regarded as an increased hazard, and that if at any time such existed the policy should become null and void. But while this-is so, all the conditions and provisions were subject to change, and might be waived by the party for whose benefit they were inserted. There was sufficient evidence with reference to the mortgage, the additional insurance and the change of occupancy of the building to show that, as to them, there had been a waiver by the company, through its agent.. Counsel, however, contend that Marsh man, the agent, had no authority to waive any of the conditions of the policy, and that such want of authority was known to the plaintiff. With this contention we cannot agree. Whatever the rule may be elsewhere, it is well settled in this state that an agent such as Marshman is shown to have been can bind the company by a waiver of the conditions of a policy issued by him, and that a general limitation upon the authority of all agents of the company, such as is contained in this policy, is nugatory. (German Ins. Co. v. Gray, 43 Kan. 497 ; Phenix Ins. Co. v. Hunger, 49id. 178 ; Long Island Ins. Co. v. G. W. Hfg. Co., 2 Kan. App. 377.) To constitute a waiver, how ever, there must be something more than mere knowledge on the part of the agent. His language or conduct must be such as to show an intention to waive the particular condition of the policy which is the subject of controversy, or to evidence his consent to any change made which affects the hazard of the risk, when consent is necessary. In this réspect the instructions of the court are open to objection.
A more serious question is presented concerning the unlawful use of the premises. The insurance company contracted that it should be relieved from all liability for loss, if the premises were used in a manner prohibited by the imlicy. An unlawful use is expressly designated as an increased hazard and risk which the insurer will not assume. On his part, the assured binds himself that the premises shall not be put to the prohibited use. Having control of the property, it is not unreasonable to hold him responsible for the nature of its occupancy and for the consequences of the acts of -those who have occupied it with his permission. If his tenant, or the person in possession with his consent, does that which the policy says shall forfeit its benefits, his knowledge of the doing of the forbidden thing is immaterial. If done by him, or by one occupying the premises with his assent, it is sufficient. (German Ins. Co. v. Comm’rs of Shawnee Co., 54 Kan. 732.) We do not think that the mere fact of occasional gambling in the building could of itself be said to be making an unlawful use thereof within the meaning of this condition of the policy. Something of a more habitual or permanent character is doubtless contemplated. With reference to unlawful use, and knowledge thereof by the assured, the court instructed the jury as follows :
“If gambling-tables were set up and used for that purpose, and continued for some considerable length of time, then', I say to you, the plaintiff could not excuse himself by pleading ignorance of that fact. While he would not be charged with the occasional violation of the law, when done without the plaintiff’s knowledge, yet he would be charged if that was one of the principal uses that the building was put to, and for such length of time that a reasonably prudent man ought to have been aware of what was going on in the building. But, though it may have been used for such purpose some time before the fire, and it was not being used for any such purpose at the time of the fire, and the fire had no connection with such use of it, then, I say to you that that fact alone, while it would suspend the force and effect of the policy during the illegal use of the premises, yet, if that had ceased some time prior to the time of the fire, that of itself would not avoid the policy.”
This instruction, we think, was erroneous and misleading. In the first place, it tells the jury that the unlawful use of.the premises would hot avoid the policy unless the plaintiff either had actual knowledge thereof, or it had continued for such a length of time that he must, as a reasonably prudent man, be presumed to have known of the same. In the next place, the jury is instructed that the unlawful use of the building would not avoid the policy, if it was not being so used at the time of the fire and the fire had no connection with such use. As to the knowledge of the plaintiff, this instruction is erroneous, under the authority of■ German Ins. Co. v. Comm’rs of Shawnee Co., supra. Neither do we think it necessary that any connection should be shown between the fire and the unlawful use. The insurance is forfeited because of the recognized increase of the risk which such use naturally occasions, without showing that in the particular instance it contributed to the loss. The ex press contract of the parties is, aláo, that the unlawful use shall render the policy void and of no effect; not that it shall merely suspend it during the time it is so used. That being the contract which the parties themselves. have written, a court has no right to make for them another and different one. If the policy has, for such reason, become null and void, it cannot be revived and again become effective without anything further being done between the parties. (Insurance Co. v. Gunther, 116 U. S. 113 ; Bond v. Endicott, 149 Mass. 282; May, Ins. § 245.) Moreover, in this case, the evidence'shows that on the eve of the fire the same parties occupied the premises with the same furniture and appliances, and, as stated by Tillman, with the same use of the building. Even conceding that a prior unlawful use of insured premises would not affect the insurance as to a loss which occurred after the unlawful use had ceased, yet such cessation must be something more than a mere temporary quitting for the night. This distinction the court failed to make.
Other errors are assigned upon the rulings of the court, but, as they are not likely to occur upon another trial, we deem it unnecessary to consider them.
The j udgment will be reversed, and case remanded for a new trial.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J.:
This suit was commenced by the Rutland Savings Bank against Richard White, Julia White and J. W. Duncan to foreclose a mortgage given by Richard White and Julia White to E. M. Shelden, on the southwest quarter and northwest quarter of the southwest quarter of section 2, also the northwest quarter of the southeast quarter of section 3, all in township 27, range 9, in Greenwood county, Kansas, and for a personal judgment against J. W. Duncan, the grantee of Richard White and Julia White, for the reason that., in the deed of conveyance to him, he assumed and agreed to pay off said mortgage indebtedness.
The note and mortgage given to E. M. Sbelden was by him duly sold and assigned to the Rutland Savings Bank. The Kansas Loan and Trust Company, James Shultz and E. C. Shultz were made parties defendant by Order of the court. Duncan answered the petition of the plaintiff below and denied generally each and every allegation thereof, and specifically denied that he ever in any manner promised or agreed to assume or pay said mortgage indebtedness, as set out in. the petition of plaintiff below. Afterward H. Bancroft was made a party defendant by order of the court, and voluntarily appeared and filed his answer, setting up that he was a tenant of the owners of the land and in possession, and had paid the rents to the landlord, and asking to have his rights in the crops growing on the land protected.
The case was afterward tried on the issues joined between the parties, by the court -without a jury, and resulted in a decree of foreclosure pf the mortgage and for an order for the sale of the mortgaged premises to satisfy said indebtedness. The plaintiff below filed a motion to set aside and vacate the findings and decision of the court and for a new trial, which was overruled, and judgment of the court excepted to, and for good cause plaintiff was given 60 days’ time to make and serve a case for the supreme court. The case was made and settled and duly filed in the supreme court, and certified to this court for review.
The only error complained of in the brief of plaintiff in error is, that on the trial of the case J. W. Duncan claimed that he assumed and agreed to pay the mortgage, not the note, and therefore he was not liable. In the answer of Duncan he denies that he ever in any manner promised or agreed to assume or pay said mortgage indebtedness set out in the petition of the plaintiff. We find no reply to this answer in the records, and do not think that any reply was necessary, for the petition alleged that he assumed the payment of the mortgage and his answer denies that allegation. None of the evidence on the trial of the ease is preserved in the record. We are unable to determine whether he ever assumed the payment of the mortgage or not. It is true that a copy of the deed from Richard White and Julia White conveying certain lands to J. W. Duncan contains a covenant that they are lawfully seized of the premises conveyed ; that said premises are free and clear from all incumbrances except a certain mortgage of $1,500, which is assumed by the party of the second part. This deed was executed by Richard White and Julia White, but there is no evidence that it was ever accepted by J. W. Duncan, or that the mortgage referred to in the petition of the plaintiff below was the same mortgage referred to in the deed. Duncan would not be liable to pay the mortgage indebtedness unless he accepted the deed. By his general denial he put the question of his promise and agreement in issue, and it cast the burden of proof upon the plaintiff to prove the assumption by Duncan of the mortgage debt. Unless he accepted the deed with the conditions written therein, there would be no assumption or promise on his part to pay the mortgage debt.
The record not containing any of the evidence, we are unable to determine whether the court erred in rendering the judgment it did. There being no error apparent in the record, the judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
On March 1, 1889, James Phillips commenced an action in the district court of Cowley county upon two promissory notes for $650 each against Aaron H. Harnley, Martha J. Harnley, and James Hill. Each of these notes had been made by Aaron H. Harnley and Martha J. Harnley in favor.of James Hill, and had been sold 1yj him to the plaintiff, James Phillips, and indorsed in blank. TheHarn- • leys, being husband and wife, had given a mortgage to secure these notes to James Hill, and at the time the notes were indorsed by Hill to the plaintiff in that case he also delivered to the said Phillips the mortgage securing said notes, and Phillips also, in the same action, asked to have his mortgage foreclosed and the mortgaged property sold without appraisement, as provided in the mortgage, to satisfy the debt, and also asked for personal judgment against the defendants, Aaron H. Harnley, Martha J. Harnley, and James Hill. The two notes sued upon were made payable at different times, and at the maturity of one of the notes it was duly protested for nonpayment, but the other note was not protested, and therefore the action afterward proceeded, so far as the indorser, .James Hill, was concerned, upon the note which was protested only.
After the commencement of the action upon the notes and to foreclose the mortgage, and before judgment, 'the defendant James Hill died testate, and the defendants in error in this case, J. Mack Love, William Upton, and Eliza Hill, were duly appointed the executors of his last will and testament, and the foreclosure action was revived in the district court of Cowley county in the name of said executors. At about the same time the plaintiff, James Phillips, died, and La-Quincy Phillips and Edward D. Keys, plaintiffs in error in this case, were duly appointed administrators of his estate, and the foreclosure action was revived in the district court of Cowley county in the names of such administrators.
After this petition in error was filed in the supreme court, the plaintiff in error LaQuincy Phillips married one Benson O. Lent, and after such marriage the said LaQuincy Phillips died testate and without children, leaving the said Benson O. Lent as her sole and only heir at law, and he was also appointed executor of said will; and, as there was no other administrator appointed for the estate of James Phillips, deceased, upon the death of said LaQuincy Phillips Lent the said Edward D. Keys became the sole surviving administrator of said estate, and on the 5th day of December, 1893, this action was revived in the supreme court of this state in the name of Benson G. Lent, as sole heir at law and executor of the last will and testament of LaQuincy Phillips Lent, deceased, and Edward D. Keys, sole surviving administrator of the estate of James Phillips, deceased, and it now stands in this court revived in manner and form above stated.
After the revivor of the original action, as stated, in the district court of Cowley county, the necessary amended pleadings were filed and the issues made up, and the case was finally reached for trial in said court on the 1st day of February, 1890, and on that day j údgment was rendered in favor of the plaintiffs against the defendants Aaron H. Harnley and Martha J. Harnley for the full amount due upon both promissory notes sued on in this action, and also a judgment foreclosing the mortgage and ordering the property described therein to be sold without appraisement, after six months from the date of said judgment, and barring the defendants Plarnley from any interest in the mortgaged property. By consent and agreement between the plaintiffs and'the-defendants, the executors of James Hill, deceased, the case was continued until the next regular term, as to the liability of the exec utors of the Hill estate. At the next term, and on the 26th day of April, 1890, the case was reached for trial as between the plaintiffs and the executors of the Hill estate, and on that day judgment was rendered in favor of the plaintiffs against the executors of the Hill estate for the full amount of the note which had Tzeen protested, together with interest, amounting at that date to the sum of $810.67, and in the same judgment it was ordered that the real estate described in plaintiff’s petition, and thez’etofore ordered sold by said court, be sold, as provided in the decree of said court theretofore entered in said action, and that after the payment of costs and taxes the balance of the purchase price be applied to the payment of the judgment. against the executors of the Hill estate. All of the parties to that action were present in open court by their respective attorneys at the time both judgments were rendered, and no exceptions were taken by either party to any part of either of said judgments.
Afterward, and on the 11th day of August, 1890, being more than six months after the rendition of the first judgment above referred to, and in which decree of foreclosure was entered, the plaintiff caused a’n order of sale to issue izi said case, commanding the sale of the real estate described without appraisement, as provided in said decree. Said order of sale was delivered to the sheriff on the 11th day of August, 1890, and he proceeded to advertise said real estate for sale in the manzier provided by law, and gave public notice that he would sell the property without appraisement on the 15th day of September, 1890. This notice was published the regular length of time in the Arkansas .City Dispatch, that being a weekly newspaper, printed and published in Arkansas City, in Cowley county, being' the same city in which the executors of the Hill estate resided. On two different occasions; about one week or 10 days before said sale, Charles L. Brown, one of the attorneys for the plaintiffs in that case, called the attention of J, Mack Love, who was one of the executors of ’the Hill estate, and also a member of the law firm of Eaton, Pollock & Love, who were the attorneys for said executors, to the fact that the sale was being advertised. On the day of sale the sheriff offered said property for sale to the highest bidder, pursuant to said advertisement. The executors of the Hill estate were not present at said sale, nor was any one there to represent them. Charles L. Brown, one of the attorneys'for the plaintiff, attended said sale* and purchased the real estate in the name of LaQuincy Phillips, for $150, that being the highest and best bid for said property, and the money bid was paid to the sheriff, and the proper credit given.
Afterward, and on the 17th day of September, 1890, the plaintiffs filed in said court their motion to confirm said sale, the return of the sheriff having been made at that time. On the same day that said motion was filed, J. Mack Love, one of the executors of the Hill estate and one of the attorneys for the executors, saw the motion on file and examined it. Afterward, and on the 19th day of September, 1890, there having been no objections made to the confirmation of said sale, the motion to confutan was considered by the court, and the decree rendered and entered to confirm said sale, and ordering the sheriff to make a deed to the purchaser. After the confirmation of said sale, and on the 1st day of October, 1890, the executors 'of the Hill estate filed a motion in said court to set aside said sale, which motion was con sidered by the court, and on the 2d day of October, 1890, upon objection being raised, the court held that it had no jurisdiction to consider said motion, and thereupon dismissed said motion without prejudice. Afterward, and on the 16th day of October, 1890, the sheriff-made to the purchaser at said sale a sheriff’s deed for the property sold, which deed was recorded on the 17th day of October, 1890. Afterward, and on the 25th day of October, 1890, the defendants in error in this case, as plaintiffs, commenced this action against LaQuincy Phillips alone to set aside said sale and set aside said deed. To that petition the defendant in that case, LaQuincy Phillips, filed a demurrer, upon the following grounds : (1) That there was a defect of parties defendant, as shown by said petition ; (2) that said petition did not state facts sufficient to constitute a cause of action in favor of plain tiffs and against the defendants. That demurrer was heard on the 21st day of April, 1891, and was by the court sustained as to the first ground therein, that there was a defect of parties defendant, but was overruled by the court as to the second ground therein, to which ruling the defendant at the time duly excepted.
Afterward, and on the 1st day of May, 1891, the plaintiffs filed their amended petition in said case, making LaQuincy Phillips and Edward D. Keys, administrators of the estate of James Phillips, deceased, additional parties defendant. Service was made upon said additional defendants, and on the 31st day of July, 1891, all of the defendants joined in an answer to said amended petition. Afterward, and on the 22d day of September, 1891, the case was regularly l’eaehed for trial. The defendants at the time of trial objected to the introduction of any evidence by the plaintiffs under said amended petition upon the ground that the amended petition, together with the exhibits, did not state facts sufficient to constitute a cause of action, which objection was by the court overruled, and excepted to, and, a jury having been waived, the case was then tried to the court. At the close of plaintiffs’ testimony the defendants filed a demurrer to said testimony, which was by the court overruled and exceptions ta-ken. The court, upon full hearing, rendered judgment in favor of plaintiffs, the executors of the Hill estate, and against the defendants in that case, these plaintiffs in error, setting aside said sale and setting aside the deed .to said real estate. The defendants below then filed their motion for a new trial, which was by the court, on consideration, overruled. The defendants below, having saved exception to all the rulings of the court, took time, made a case, and bring the matter here for review.
' We are met at the first step in the review of this case with a motion to dismiss the petition in error for the reason that the case made ivas not settled, allowed and signed by the judge who tried the case, as required by law. The case does show that the attorneys for defendants consented in writing that the case might be presented to the judge who tried the case for allowance and settlement on the 24th day of December, 1891. It nowhere shows that the attorneys for plaintiffs waived their right to suggest amendments to such case made, nor does it show that amendments were not suggested by counsel for plaintiffs. It does not show that counsel for plaintiffs were present when such case made was settled, nor does it show that amendments suggested by counsel for plaintiffs were considered or passed upon by the judge in settling the case made, or that the right of the plaintiffs to suggest amendments to such case made was ever in any way considered by counsel for defendants or by the trial judge. The record shows that the case was made and served on the attorneys for' the plaintiffs below within the time allowed by the court, and that they consented that the case made might be presented to the Hon. M. G. Troup, judge of the court, for allowance and settlement, on the 24th day of December, 1891, and that they waived notice of the time and place of settlement. The case was signed by the judge December 24, 1891.
Section 548 of the code of civil procedure provides :
“ The case so made, or a copy thereof, shall, within three days after the judgment or order is entered, be served upon the opposite party or his attorney, who may within three days thereafter suggest amendments thereto in writing, and present the same to the party making the case, or his attorney. The case and amendments shall be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. . .
The record fails to show that the attorneys for the plaintiffs were present at the signing of the case. They had waived the service of notice of.time and place and consented that the case made might be presented to the judge for settlement, but they did not agree or consent that the judge should sign the case as thus prepared, which was to be presented for allowance and settlement. The record does not show that the plaintiffs had waived their right to suggest amendments to the case as thus made, or that they had not suggested amendments, in writing, nor does it show that the judge settled the case. It shows that he signed and allowed it as a case made. It nowhere appears that the judge considered any amend ments or that none was suggested, or that the counsel had none to suggest, or that they had waived in any manner their right to suggest them. (Safford v. Turner, 53 Kan. 729 ; Weeks v. Medler, 18 Kan. 427 ; M. K. & T. Rly. Co. v. Greenwood, 1 Kan. App. 330 ; Boot and Shoe Co. v. Martin, 45 Kan. 767; M. K. & T. Rly. Co. v. Roach, 18 Kan. 592.)
The case made not showing that the same '.was. settled by the trial judge as required by section 548 of the code of civil procedure, the case will be dismissed at the cost of the plaintiffs in error.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J.:
This is an action to recover the possession of a certain piano. The findings and judgment were in favor of the defendants. The material facts connected with the transaction out of which this controversy arose, as disclosed by the record, are as follows : April 19, 1890, the plaintiffs sold and delivered to one J. B. Albaugh, at New Albany, Ind., the piano in controversy, under a conditional sale whereby the plaintiffs retained the title until the purchase price therefor should be fully paid. Some time thereafter, and prior to October 19 of that year, Albaugh, without the knowledge or consent of the plaintiffs, left the state of Indiana, taking the piano with him, and located at the city of Hiawatha, in* this state, where, on November 2 thereafter, he sold it to the defendant Fred T. Hill for the sum of $200, the latter paying $100 in cash and giving Albaugh his note for $100, payable six months thereafter. ' The plaintiffs were ignorant of the fact that Albaugh had removed from the state of Indiana until after he had sold the piano to Hill, and they had no knowledge that the piano had been moved to Kansas until July 27, 1891. At the time of the sale to Hill there was- due from Albaugh to the plaintiffs on the contract of purchase about $250, all of which remained unpaid on September 18, 1891, the date of the commencement of this action. Under the laws of the state of Indiana, a conditional sale of personal property wherein title is retained by the seller is valid not only between the parties thereto, but as to innocent purchasers as well; and. the laws of that state at the time this contract was made did not require that the contract itself or a copy thereof should be recorded in any of the public offices of that state, and such continued to be the law of Indiana up to the date of the commencement of this action. The defense interposed by Fred T. Hill was that, as neither the contract nor a copy thereof was deposited in the office of the register of deeds in and for Brown county, Kansas, after the removal of the property to that county, and as he purchased the property in good faith, without knowledge of plaintiff's’ claim, he acquired a good title thereto. Chapter 255 of the Laws of 1889 is relied upon as sustaining those views. Section 1 of that act reads as follows:
“ Section 1. That any and all instruments in writing, or promissory notes, nowin existence or hereafter executed, evidencing the conditional sale of personal property, aijd that retains the title to the same in the vendor until the purchase price is paid in full, shall be void as against innocent purchasers, or the creditors of the vendee, unless the original instrument or a true copy thereof shall have been deposited in the office of the register of deeds in and for the county wherein the property shall be kept, and when so deposited, shall be subject to the law applicable to the filing of chattel mortgages ; and any conditional verbal sale of personal property reserving to the vendor any title in the property sold shall be void as to creditors and innocent purchasers for value.”
' It is contended by the plaintiffs in error that this law does not apply to a contract entered into and to be wholly performed in another state, and which relates to property which at the date of the contract is located in such other state, and that, even' though it should be held to apply to such a contract, it should not be held to apply in this particular case. • As the plaintiffs had no notice until after Hill purchased the piano from Albaugh that the property had been removed to Kansas, and as the object in view of such statute was to give notice to creditors or persons contemplating a purchase of the property that the one in possession was not in fact the owner, as this sale from Albaugh to Hill was made prior to the date that the plaintiffs first learned that the piano was in Kansas, a subsequent depositing of the contract with the register of deeds would have been no protection to Hill, and for this reason the plaintiffs were excused from complying with the terms of the statute. The contention of the plaintiffs in error must be sustained. The laws of a particular state have no extra territorial force. This original contract of sale was entered into in Indiana between the plaintiffs in error and Albaugh. Under this contract, the title to the piano remained in Baldwin & Oo. until full payment of the purchase price thereof. The property 'which was the subject of the contract was at that time in Indiana, and was to remain there until paid for in full, unless written consent for its removal should be given by Baldwin & Co. The notes evidencing the purchase price were made payable at the First National Bank of New Albany, Indiana., Under the laws of Indiana, until the purchase price was fully paid, Albaugh had no valid title to the piano which he could convey. Without the knowledge or consent of the owners of the property he removed it to Kansas, and before they learned of such removal he sold it to Hill. Chapter 255 of the Laws of 1889 has no application to such a state of facts as is presented by this record. Baldwin & Oo. would not be required to file either the original contract or a copy thereof with the register of deeds of Brown county at a time when they had no knowledge or information that Albaugh had removed the property to Kansas, nor would they be required, in order to protect their rights as against a purchaser from Albaugh, to file the same immediately after learning that the property had been so removed, if, prior to such time, it had been sold to one who had no notice of their claim of ownership. We think that, undér the facts as disclosed by the record, the title to this piano was no more affected by the attempted sale to Hill than would have resulted had Albaugh’s title thereto been based wholly upon a felonious possession of the property.
The court erred in directing a verdict in' favor of the defendant. The judgment will be reversed, and the cause remanded for a new trial.
All the Judges concurring. | [
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The opinion of the court*was delivered by
Code, J. :
This action was brought to enjoin the sheriff of Crawford county from selling certain rea,l estate under an execution to satisfy a judgment rendered against the plaintiff.' The injunction was asked upon the ground that the real estate about to be sold was the homestead of the debtor. A temporary injunction was granted by the probate court of Crawford county at the commencement of the action, and afterward the defendant filed a motion to dissolve the temporary injunction. Upon a hearing, the district court sustained the motion, and made an order dissolving the temporary injunction, of which order the plaintiff in error complains.' Several objections are raised which challenge the jurisdiction of this court to hear and determine the questions presented by the record. It is urged by the defendant in error: (1) That there is no proper and sufficient certificate authenticating the record in this case ; (2) that the certificate is made by the deputy clerk of the district court; (3) that no errors are pointed out in the brief or in the petition in error ; (4) that the brief of the plaintiff in-error was not served or filed in accordance with the ruling of this court.
This case is presented to us upon what purports to be a transcript of the record, but it nowhere appears that the record contains a complete transcript of the proceedings in the case. The certificate states, in substance, that the record contains a true and correct copy of the bill of exceptions, pleadings, journal entries, and orders, but this is not sufficient. Where the record brought up for a review of the ruling of the district court is based upon a transcript, it is essential that it shall contain all the proceedings of the case as shown by the record in the court below, and that it is a complete transcript must appear from the certificate of the clerk. (Westbrook v. Schmaus, 51 Kan. 214; Heaston v. Miller, 1 Kan. App. 157.)
There is no force in the objection that the certificate was made by the deputy clerk. The clerk of the district court is a ministerial officer, and, even under the common law, all ministerial officers were empowered to appoint deputies. Our statute especially provides that the clerk of the district court may appoint one or more deputies, and there is no statute either defining or limiting the power of the deputy. A natural inference is, that the deputy clerk may do anything that the clerk himself may do, and it has been so held in Ferguson v. Smith, 10 Kan. 396.
The only error complained of in this case is, that “the court erred in sustaining and allowing said motion of said J. T. Deets, sheriff of Crawford county, to dissolve said temporary-injunction.” This is not setting forth the errors complained of,” as provided by paragraph 4644, General Statutes of 1889. It is the duty of the plaintiff in error to specify the manner in which the, court erred in making the ruling complained of.. In this case, plaintiff simply alleges that the court committed an error in sustaining the motion to dissolve the injunction ; but whether such error was because improper evidence was admitted, to the admission of which plaintiff duly excepted, or whether there was error in the conclusion of law arrived at by the court, or that the decision was contrary to law, or not sustained by evidence, or what reason is relied upon, is not stated either in the brief of counsel or the petition in error. Where it is alleged that the trial court erred in its rulings, it is the duty of the party complaining to indicate wherein the error consists, as well as the particular ruling of which he complains. (The State v. Jennerson, 14 Kan. 133.)
The rulings of this court with regard to the form of briefs and the time of serving and filing the same were made after due consideration, and must be followed by the members of the bar. Yet it frequently happens, that counsel may urge some valid excuse for the failure to file a brief within the time prescribed by the rule. In. this'case we do not feel that the proceedings should be dismissed upon that ground, but because of a failure properly to point out the errors complained of, 'and because the record is not properly certified.
The objection^ raised by counsel for defendant in error must be sustained, and the petition in error dismissed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
This petition in error is prosecuted for the purpose of reversing an order of the district court of Oowley county, granting a new trial in the case of The Winfield Building and Loan Association v. J. O. McMullen. The original action was brought to recover upon a bond alleged to have been executed to the loan association by J. F. McMullen, as principal, and J. C. McMullen, as surety, upon which default is alleged to have been made. The 'answer of J. C. McMullen was verified, and denied the execution of the bond by him as surety, denied that J. F. McMullen had defaulted, and pleaded the statute of limitations. These three questions were put in issue'by the pleadings, and upon them the trial was had.
Upon the trial the bond was not produced. It was claimed to have been delivered to J. F. McMullen and its contents were proved: Several witnesses testified that the bond contained the signature of J. C. McMullen and that the signature was genuine. J. F. McMullen testified that J. C. McMullen signed the bond in his presence. J. C. McMullen testified that he had signed a bond about three years prior to this bond, but that he had refused to sign this one for the year of 1885. The jury returned a verdict for the defendant, J. C. McMullen. Afterward the plaintiff filed a motion for a new trial, alleging as the ground therefor newly-discovered evidence, and setting up that the bond had been found and would be produced upon a new trial of the case. The district court sustained the petition and granted a new trial, upon the payment of the costs of the original action and of this proceeding, and the plaintiff in error brings the case here to procure a reversal of the order granting such new trial.
The petition in this case alleges as the ground for a new trial the seventh subdivision of paragraph 4401 of the General Statutes of 1889, which reads as follows :
“The former verdict, report or decision shall be vacated, and a new trial granted upon the application of the party aggi'ieved, for any of the following causes, affecting materially the substantial rights of such party: . . . Seventh, Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.”
This subdivision presents three questions to be considered by the trial court in passing upon the application for a new trial: (1) The question of the evidence being newly discovered ; (21 its materiality ; (3) the question of diligence. If we add to this a fourth question, Is the newly-discovered evidence cumulative? we have all the questions necessary to be considered by the trial court upon the hearing of the application for a new trial.
In the trial of the original action, J. O. McMullen denied the execution of the bond by him. The question was, Did the name of J. C. McMullen appear on the bond, and, if so, did he put it there? There was no controversy as to the contents of the bond. The 'absence of the bond was accounted for and its con tents shown. The disputed point to be settled by the bond was the genuineness of the signature of J. C. McMullen. The bond was afterward discovered. The newly-discovered evidence is claimed to be the’ bond itself.
"We think the court was justified in finding that the evidence was newly discovered. The counsel for the plaintiff in error contends that the evidence, even if newly discovered, was not material to all the issues raised by the pleadings. The issues were : (1) The execution of the bond by J. C. McMullen; (2) the default of J. F. McMullen ; (3) the statute of limitations. It must be admitted that the bond introduced in evidence could tend to prove but one of these issues, the execution of the bond by J. C. McMullen.- It must also be admitted that if any one of these issues is found in favor of the defendant, the verdict and judgment are correct. We cannot adopt the theory of counsel for plaintiff in error that the newly-discovered evidence must be material to all the issues. If it is material to the issue upon which the verdict of the j ury was founded, it is sufficient. In this case the j ury found specially that J. C. McMullen did not execute the bond. The plaintiff in error contends that the jury were instructed not to answer the special qiiestions if they found for the defendant below. However, they did answer this question and the general verdict of the jury must have been arrived at in accordance with this finding.
Upon the question of diligence we think that it is a matter so largely in the discretion of the trial'court that the ruling thereon should not be disturbed except for a very gross abuse of such'discretion. In this case no such abuse of discretion is shown.
The only other question is whether the evidence is merely cumulative. At tlie trial of the original action the plaintiffs introduced evidence tending to - show that the bond had been delivered to J. E. McMullen and was not in the possession of the plaintiffs and could not be procured by them. They thereupon offered evidence to prove the existence, execution and contents of the bond. There was evidence tending to prove that J. C. McMullen signed the bond, and there was evidence tending to prove that he did not sign the bond. The evidence in the .original action is all before this court and we can easily determine whether the newly-discovered evidence is.cumulative.
In the original action J. S. Mann, W. C. Robinson and Henry Goldsmith testified, in effect, that they had seen the bond in question; that it contained the signature of J. O. McMullen; that they were acquainted with his signature and that it was the genuine signature. In their affidavits attached to the petition for a rehearing, they testified, in effect, that they had the bond in question before them; that it contained the signature'of J. C. McMullen ; that they were acquainted with his signature and that it was his genuine signature. The only variation in their testimony is, that in the original action they testified in relation to the .signature upon a bond that they had formerly inspected, while in the affidavits they testified in relation to the signature upon a bond they were then inspecting.
We are irresistibly forced to the conclusion that the evidence contained in the affidavits is so nearly the same as that given upon the original trial that the court erred in not holding it cumulative and in not denying the petition fora new trial. “Cumulative evidence is evidence of the same kind, to the same point.” (1 Greenl. Ev. §2.) There was no attempt made to compare the signature on the bond with an acknowledged signature of J. C. McMullen, nor was there any showing made that such a comparison could or would have been made upon the new trial if one should be granted. It is with very great reluctance that we reverse the ruling of the trial court granting a new trial in any case, and we are fully cognizant of the fact that a much stronger case must be made for a reversal where a new trial has been granted than where it is refused, but we feel confident' that in this case the trial court erred in its legal conclusions, and that except for such error the new trial would not have been granted. That newly-discovered evidence, merely cumulative, is not a sufficient ground for a new trial, see Clark v. Norman, 24 Kan. 515, and many other Kansas cases.
The order of the ’ district court in granting a new trial is reversed, and the case remanded, with instructions to deny the motion for a new trial.
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The opinion of the court was delivered by
Johnson, P. J. :
This action was brought by Benjamin J. Stucki against ' the Travelers Insurance Company to recover $200, as penalty for refusing on demand to release and discharge of record a certain mortgage on real estate given by Stucki and his wife ¡ó the Travelers Insurance Company, and to remove ,i cloud upon his title by reason of such mortgage. The mortgage was given November 15, 1887. The petition, of the plaintiff below alleges that, on the 131 day of November, 1890, he paid to one E. G. Clarl the full amount of said note and mortgage ; that Clark was the duly authorized agent of the insurance company ; that on November 3,1893, he made demand upon the insurance company to release the mortgage ; that the demand was by letter to the insurance company, and was received by it at Hartford, Conn.
The plaintiff in error states in its brief five specifications of error for which it asks the consideration of this court. We will consider only such of the assignments of error as we deem material to a full determination of this case.
The first assignment of error complained of is that the court erred in overruling the motion of defendant below to dissolve the attachment. This action was brought under chapter 175, Laws of 1889, which provides ;
“When any mortgage of real property shall have been paid, it shall be the duty of the mortgagee or his assignee, within 30 days after demand, in case demand can be made, by the mortgagor, his heirs or assigns, or by an}? one acting for such mortgagor, his heirs or assigns, to enter satisfaction or cause satisfaction of such mortgage to be entered of record without charge ; and any inortgagee or assignee of such mortgagee who shall refuse or neglect to'enter' satisfaction of such mortgage as is provided by this act shall be liable in damages to such mortgagor or his grantee or heirs in the sum of $100, together with a reasonable attorney’s fee for preparing and prosecuting such suit; and the plaintiff in such action may recover any additional damages that the evidence in the case will warrant. Civil actions may be brought under this act before any court of competent jurisdiction, and attachment may be had as in other cases.” (Gen. Stat. 1889, <¶ 3892.)
Paragraph. 4273, General Statutes of 1889, provides :
“The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated : First, when the defendant or one of several defendants is a foreign corporation or a nonresident of this state; (but no order of attachment shall be issued on the ground or grounds in this clause stated for any claim other than a debt or demand arising upon contract, judgment, or decree, unless the cause of action arose wholly within the limits of.this state, which fact must be established on the trial.)”
The statute authorizes the granting of an attachment for refusal to enter satisfaction of a mortgage on demand, after payment in full, as in other cases. The ground laid in the affidavit for the attachment is that the defendant below is a foreign corporation, and, if all other conditions exist authorizing the at? tachment of the property of a foreign corporation, an attachment may be maintained for refusal or neglect to release a mortgage on real estate that has been fully paid,' when demand has been properly made.
It is claimed that the petition and affidavit for attachment of the plaintiff below show that his cause of action did not wholly arise within the state of Kansas, and for this reason an attachment could not be maintained. The petition alleges the borrowing of a certain sum of money, the giving of a note therefor, and the execution of a mortgage on land in McPherson, county, Kansas, to secure the payment of the same, the recording of the mortgage in the office of the register of deeds in said county, and the payment of the note and mortgage in full. All of these acts were alleged to have been done in Kansas. The Travelers Insurance Company, being, a foreign cor poration and haying its general office and place of business at Hartford, Conn., the demand for the release of the mortgage was made on it by letter, and received by it at its office in Hartford, Conn. The mortgage is alleged to have been paid November 13, 1890, and demand made November 3, 1893, upon the insurance company to release the mortgage.
Section 190 of the code of civil procedure, which specifies the grounds for which an attachment may issue, provides .that an attachment ■ may issue where the defendant or any one of the defendants is a foreign corporation, or a nonresident of the state, but no order of attachment shall be issued on the grounds of foreign corporation or nonresidency for any claim other than a debt or demand arising upon contract, judgment, or decree, unless the cause of action arose wholly within the limits of this state. The cause of action in this case is not a debt or demand arising upon contract, judgment, or decree. Then the question arises, Did the cause of action arise wholly within the limits of this state?
The statute makes it the duty of a mortgagee or his assignee, whenever the mortgage has been paid in full, to enter satisfaction within 30 days after payment and demand to release the mortgage, and, if the mortgagee or his assignee refuse or neglect to enter satisfaction of the mortgage within 30 days after payment and demand to release, he becomes liable in damages to the mortgagor or his grantee or heirs in the sum of $100, together with a reasonable attorney’s fee for preparing and prosecuting a suit to recover such damages. No cause of action arises against a mortgagee or his assignee until 30 days after demand has been made upon him to release the mortgage. No cause of action arose against the Travelers Insurance Company until 30 days after it received the letter making demand, and it then had its general office and place of business-outside of the state, and the demand was made outside of the state, and its refusal or neglect to release the mortgage occurred outside of the state, and upon these facts it cannot be said that the cause of action arose wholly within the limits of this state, and the motion to dissolve the attachment should have been sustained. (Stone v. Boone, 24 Kan. 337.)
We pass now to the third assignment of error. The defendant below demurred to the first cause of action set up in the petition of the plaintiff below, for the reason that the petition showed upon its face that the plaintiff’s cause of action was barred by the statute of limitations. The petition alleges that he paid the mortgage in full on November 13, 1890, and the only demand that he made for its release was made November 3, .1893; by letter delivered to the Travelers Insurance Company at the city of Hartford, Conn., three years after the payment of the mortgage. The petition states no reason or gives no excuse why the demand was not made sooner. This was an action to recover a penalty for refusal to release a mortgage. The act prescribing the penalty provides no limitations within which the action must be brought. The mortgagor is then remitted to his rights and remedies under the code of civil procedure, which limits his right to bring his action within one year after the fight of action has accrued.
In the case of Wey v. Schofield, 53 Kan. 249, Johnston, J., delivering the opinion of the court, says :
“While there is some contention that the whole of the debt secured by the mortgages had not been paid, the principal contention is that the action to recover the penalty has been bax-red by the statute of limitations. There being no limitation upon the bringixig of the action in the statute imposing the penalty, it can only be brought within one year after the cause of action shall have accrued. (Civil Code, § 18, subdiv. 4.) Before an action can be maintained to recover this penalty, a demand must be made by the mortgagor for the release of the mortgages, but he cannot extend the statutory period of limitation by an unreasonable delay in making such demand. Much more than a year elapsed between the time of. payment and when a demand for a discharge of record might have been made before the demand was actually made. The preliminary step essential to the maintenance of an action was to be taken by the mortgagor, and it is generally held that a party who must take affirmative action to obtain a right or remedy cannot safely sit still when he might act, nor long delay the taking of such initiatory steps as would enable him to maintain an action and avert the ordinary penalty of delay. The statute of limitations 'will begin to run within a reasonable time after he could by his own act have perfected his right of action, and such reasonable time will not in any event .extend beyond the statutory period fixed for the bringing of such action.’ (A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628 ; Rorh v. Comm’rs of Douglas Co., 46 id. 175 ; Bauserman v. Charlott, 46 id. 480 ; Kulp v. Kulp, 51 id. 348 ; Bauserman v. Blunt, 13 Sup. Ct. Rep. 466.) As the demand was not made until after the statutory period of limitation had'elapsed, and no good excuse is given for the delay, it must be held that the mortgagor was too late in bringing the action.”
'The judgment of the district court must be.reversed.
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The opinion of the court was delivered by
Dennison, J. :
The object of this petition in error is to reverse an order of the judge of the district court, made at chambers, discharging the property from an attachment levied in the case of Moffett et al. v. Frank Boydstun. This defendant in error filed a motion'in said action asking for the discharge of the property levied upon under said attachment, claiming' that the said property belonged to her. This motion was heard by the judge of the district court at chambers, and was by him sustained and the attached property discharged.
The petition in error alleges four grounds for a reversal, as follows:
“ 1. That the said’ judge erred in assuming jurisdiction at chambers to try the issues raised and presented by defendant in error’s motion.
“ 2. That the court erred in admitting incompetent and improper testimony, over the objections and exceptions of plaintiffs in error.
“3. That the said judge erred in assuming to try , the merits of the main action between these plaintiffs and the defendant, Frank Boydstun, upon the hearing of the moiion filed by defendant in error to discharge the attached property.
“4. Said judge erred in overruling plaintiffs’ motion for a new trial in said action.” .
The judge did not err in assuming jurisdiction at chambers to try the issues raised upon a motion to discharge the attached property from the lien of the attachment and to order it returned to its owner, “A judge of the district court has power, at chambers, to discharge an attachment.” (Shedd v. McConnell, 18 Kan. 594, and cases there cited.)
The second and third specifications of error may be considered together. ■ The motion filed by this defendant in error reads as follows :
“Comes now Mrs. Euphemia Kittie Boydstun and respectfully represents to the court, and moves the court as hereinafter set forth : That the defendant in the above-entitled action is her husband ; that the 23 head of cattle attached as the property of the defendant in the above-entitled action are not, and never were, the property of said defendant, but are and have been for about two years last past the property of and in the possession of her, the said Euphemia Kittie Boydstun, all of which she is ready to make appear. She says further, that at the time the same were attached the said plaintiffs and the sheriff of Harper county, Kansas, well knew that the same were the sole and individual property of her, the said Kittie Boydstun. Further, she denies that her husband, Frank Boydstun, is, or was at the time of the commencement of this action against him, indebted to the plaintiff's in any sum whatever ; and especially denies the material allegations of plaintiffs’ petition. She says that her said 23 head of cattle (being the same cattle attached in this suit, as shown by the return of the sheriff of said county on the attachment order, reference to which is hereby made for a more particular description thereof) are unlawfully detained from her, to her great damage; and she prays the court on the hearing to make an order directing and commanding the said sheriff to restore and deliver the said cattle to her, and for her proper costs against the plaintiff's.”
This motion, to say the least, is very inartistically drawn. It seems to be intended, and has been treated by both sides and by the court, as a motion to discharge the property from the lien of the attachment, It alleges that the defendant in the action is her husband, and that the cattle attached are not his, but belong to her, and that the plaintiffs and the sheriff knew that they were her property. She also says that the cattle are wrongfully detained from her, and asks for an order restoring the same to her and for costs. Anything which is contained in the motion other than these allegations must be treated as surplusage. Certainly nothing relating to the merits of the issues raised by the orignal pleadings could be heard by the judge at chambers, or upon a motion to discharge an attachment filed by one not a party to the original action.
The real question to be determined by the judge was the ownership of the cattle attached. This is the only issue which was decided by the judge. The order was to the sheriff to restore and deliver the attached property to the said Euphemia Kittie Boyd-stun. Any evidence introduced which related to the merits of'the main action between these plaintiffs in error and Frank Boydstun did not relate to the issue decided. It was irrelevant and immaterial and could not have prejudiced the judge in'his final decision as to the ownership of the cattle. The substantial rights of these plaintiffs in error were not prejudiced thereby.
“Where irrelevant and immaterial evidence is introduced on the trial, but it appears that the adverse party’s rights were not prejudiced thereby, held, not material error.” (B. K. & S. W. Rld. Co. v. Grimes, 38 Kan. 241.)
The order of the judge of the district court discharging the attached property is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
BENSON, J.:
The appellees sued to recover for certain lots which the appellant had agreed to convey to them and to which he had no title. This appeal is from a judgment in their favor.
This action is based upon the following contract, made June 7, 1907:
“Article of agreement made and entered into this day by Maddux & Jessup of the first part and John Simon-son, of Media, Ill., of the second part:
“The parties of the first part have this day sold to the party of .the second part the following' tracts of land, situated in Finney county, Kan., to wit [describing two quarter sections], for the consideration of $3200, to be paid as follows: $500 cash which is to be deposited in Garden City National Bank, this city, with this contract, and the further sum of $2000 cash to be paid when the abstracts to above lands are accepted as showing good merchantable title to said lands,' and the further delivery to said first parties of abstract and warranty deed showing merchantable title to the following lots in the city of Wichita, Kan., description of lots as follows: Lots 28-30-32-34 in Woolman’s addition to the city of Wichita, Kan. Said parties are to furnish abstract to their respective lands within thirty days from this date, and deeds to be exchanged as soon as abstracts are made to show merchantable title; should abstracts not show merchantable title, then this sale is null 'and void and the $500 deposited shall be returned to said second party.”
The appellees furnished an abstract and made conveyances of the two quarter sections as agreed, which were accepted by the appellant, who paid the amount stipulated in the contract on July 3, 1907, and placed the deeds on record. Before receiving the deeds the appellant, who resides in Illinois,, had sent by mail a deed .purporting to convey the Wichita lots, as described in the contract, together with an abstract of title. The abstract was not complete and the appellees sent it to Wichita to be brought down to date. On the return of the abstract it was discovered by the appellees that the lots described therein were in Martin Wool-man’s addition, instead of Woolman’s addition, as described in the contract and in. the deed from the appellant to them. It appears that there is a Woolman’s. addition situated near the Atchison, Topeka &• Santa Fe railway station in Wichita, and a Martin Woolman’s addition situated about four miles north of that station. The lots in Woolman’s addition are much more valu able than the lots in the other addition. The appellees, who had already received the $2500, informed the appellant by letter that the lots abstracted were not those described in the contract, and that they could not accept the deed. Later, on August 19, they sent to the appellant a deed reconveying to him the property described in the conveyance to them. After this action was commenced the appellant tendered to the appellees a deed purporting to reeonvey to them the lands in Finney county.
The appellant in his answer alleged fraud on the part of the other parties, but upon sufficient evidence the court found against him upon that issue. He also offered to rescind the agreement. Other findings of fact were made substantially as stated above.
The record presents but one material question, and that arises upon the construction of the contract. The' appellant claims that, as his abstract did not show a merchantable title to the lots which he had agreed to convey, the sale was null and void by the express terms of the contract. We can not accept this view as correct. This is not a case where a title is merely defective, but one where the vendor has no title or interest whatever, and the condition referred to does not apply. (Fry, Spec. Per. of Cont., 3d Am. ed., § 1277.) The property described in the abstract and owned by the appellant was not in the minds of either of the contracting parties. As the appellant had no interest in the property, nothing passed by his deed, yet full payment was made to him. He did not offer to obtain the title to the property he had agreed to convey. In this situation the appellees should recover. The same result would have been reached had the deed been accepted and an action brought upon the covenants. The appellees do not seek to rescind, but to enforce, the agreement. As no title can be obtained to the property they are entitled to compensation. (Henry v. McKittrick, 42 Kan. 485; Huey v. Starr, 79 Kan. 781, 788.)
No evidence was offered of the value of the lots other than that afforded by the contract showing the amount for which they were to have been taken in exchange, and for this amount judgment was rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:'
In an action brought by Charles Hashman against the Wyandotte Gas Company he alleged that he was seriously injured by an explosion of gas that had accumulated in a catch basin from leaky and defective pipes which the gas company had laid and negligently maintained in the streets of Kansas City. The jury returned a verdict awarding damages to Hashman in the sum of $1500, and returned with it answers to a number of special interrogatories. The company appeals, and one of its principal contentions is that the findings and verdict are not supported by the evidence.
It is true, as appellant contends, that there is no direct evidence of the escape of the gas which exploded and injured the appellee, but there is testimony which appears to warrant the inference that it came from the defective pipes maintained by appellant and that appellant is responsible for the injury inflicted. Direct proof of negligence is not essential to a recovery, as negligence may be established by circumstantial evidence alone. If the circumstances proved fairly authorize the inference of negligence, and the jury have drawn that inference, it is enough. The fact that the result is not free from doubt or that different persons might draw different conclusions from the same testimony is not a good reason for disturbing the verdict. As was said in Railway Co. v. Wood, 66 Kan. 613:
“Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than the one arrived at by the jury.” (Syllabus.)
Here there was direct proof that quite a number of pipes for carrying gas were laid and maintained in the streets, near the point of the explosion. These pipes were of different sizes, some of them being twelve inches in diameter, some eight inches, some six inches, and some four inches. Some of them had been in the ground about nine years and were considerably rusted and scaled. To prove that gas escaped from them, testimony was offered to the effect that about two or three weeks before the accident gas which came up through the ground was found burning on the street near the corner where the explosion occurred. About four, days before the accident gas was found escaping from the pavement, about ten feet from the place of the accident, and it was burning. When appellee and his companion sat down on the edge of the catch basin he struck a match for the purpose of lighting his pipe, when an explosion occurred which threw him about fifteen feet, and the shock was sufficient to break plate-glass windows in the adjacent buildings. A witness who was uncertain about the time, but afterward said it was subsequent to the explosion in question, said that he saw gas escaping from the pipes, and that one of the pipes had a hole in it from which the gas 'whistled as it passed and he could feel its force against his hand. Another explosion occurred near the same place in July of the same year, but, of course, proof of what occurred subsequent to the explosion which caused the injury can only have a limited application. The appellant .finally took out an old service pipe which connected with the main pipe near the place of the accident. It passed under the tracks of the electric railway, and was subject to disintegration from electrolysis. After the removal of this pipe no escaping gas was found in that locality and there were no more explosions. These facts, including incidental ones of less importance, are sufficient to warrant the finding that gas escaped from the defective pipes of appellant through which it was being transported.
It is contended that if defects or leaks existed there was no proof that appellant had notice of them. Natural gas, as all know, is inflammable and explosive in a high degree — a very dangerous agency — and those who transport it are held to the exercise of great care; they are required to lay and maintain pipes that are safe and secure for transporting gas, and carefully to overlook and inspect the pipes in order to keep them in a safe condition, and to detect and repair any leaks or defects in them. Now there is no direct evidence that anyone informed appellant of escaping gas at the place where the explosion occurred, but the fact that gas was oozing through and burning on the streets in a densely populated part of the city several days before the explosion was sufficient to bring the matter to the attention of the gas company, if it had been using an efficient system of inspection. The taking of reasonable precautions for the detection of leaks would have acquainted defendant with the defects in ample time to have repaired them. The jury had a right to infer that the gas company either knew or should have known of the leaks and defects before the explosion. There is testimony that some inspection was made by the company to discover defects, but whether it exercised proper diligence or took the necessary precautions for the safe conduct of the gas through that portion of the city was a fair ■question of fact for the jury.
There is a contention that the special findings are inconsistent with the general verdict. One answer of the jury is that they did not know whether defendant had notice that the gas pipes in the vicinity of the explosion were old, worn and defective, and it is contended that this is equivalent to a finding that they had no notice. This answer manifestly meant that the company had no direct notice of the condition of the pipes, and this is disclosed by other findings of the jury. The next answer was to the effect that gas burning in the street of itself suggested to the company the likelihood that there were defects in its pipes in that section, and in still another finding they said the company had notice of a leak prior to the explosion. Reading the findings together, they show that the company knew or in the exercise of ordinary care should have known of the leakage m the pipes in time to have repaired them.
It is contended that another finding is inconsistent with the general verdict. To the question, “Aside from the fact that the defendant owned the gas mains in the street, and that gas accummulated in the catch basin in question, and exploded on March 18,1907, and was seen a couple of times within two weeks prior to the explosion along the curb line while paper was being burned, what other fact, if any, do you find showing any defects in the defendant’s gas mains prior to March 18, 1907 ?” the answer was, “None.” This general answer narrows to some extent the evidence of defects in the pipes, but when these facts are read in the light of the testimony relating to them and the inferences which go with them are considered it can not be said that it conflicts with the general verdict or that there is an insufficient basis for the verdict.
Two special questions asked were properly refused. Each was complex in construction and embraced a number of distinct facts. In submitting questions it is the duty of counsel to frame each question so as to present a single, direct and material fact involved in the issues of the case, and in that way give the jury a fair opportunity to return a positive, direct and intelligible answer. (Railroad Co. v. Aderhold, 58 Kan. 293.)
Complaint is made as to the admission of evidence as to the condition of the pipes subsequent to the explosion, but the trial court in its instructions properly limited the purpose and effect of this testimony, and of the instructions there is no complaint.
There is nothing substantial in the contention that the award of the jury was excessive, nor do we find any material error in the proceedings. The judgment is affirmed. | [
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Per Curiam:
J. W. Anders sued the Atchison, Topeka & Santa Fe Railway Company on account of an injury received while in its employ as a brakeman. A demurrer to his evidence was sustained, and he appeals. The negligence complained of was the furnishing of a poor quality of oil, that smoked up his lantern and caused it to give but a dim light. The only question presented is whether the evidence had any tendency to show that the injury was occasioned by the defective light.
The substance of the plaintiff’s testimony, so far as it bears upon the question, may be thus stated: In the performance of his duties he was walking east between two parallel tracks, about six feet apart, in a path about eighteen inches wide, on each side of which the ballast rose at a slant to a height of about a foot. His train was moving slowly east on the south track. He saw, about two steps ahead of him, some kind of an obstruction in the path which looked to him like a piece of wood of some kind. It was in fact a barbed wire spool, or reel, about sixteen inches long and a foot high, the ends in the form of a cross, connected by strips running lengthwise; but at the time he was unable to tell what it was. The narration of what followed is given in his own language:
“I saw an obstruction of some kind, but with the dim light I couldn’t distinguish exactly what the article was, until I stepped to one side and my foot rolled on a pebble or cinder or something of the kind, and it threw me to one side and my right foot struck the obstruction and threw me under the train — my right arm went under the train. ... I didn’t know exactly when I stepped on it, but after I fell I could distinguish what it was. ... I fell over this spool. ... It threw me against the train. . . . When I struck the train it turned me around to my left side to the train, as I fell on my back and the wheel passed over my arm.”
The record of a part of his cross-examination reads:
“Ques. Now, when you started to walk around it, then you came to it? Ans. When I first saw it I started to go around it.
“Q. Which way did you start to go around it? A. To the north side.
“Q. And as you started to go around it, which one of your feet turned on a stone? A. I stepped with my left foot up on the ballast, and started to step over it with my right foot; it was the left foot that slipped.
“Q. You stepped up on the ballast with your left foot? A. Yes.
“Q. Intending to step over this barbed wire spool or obstruction with your right foot? A. No, sir; I started to step around it.
“Q. When you stepped up on this ballast with your left foot, your left foot turned under a stone and you fell over on this obstruction; is that the way it was done? A. My right foot struck the obstruction and my left foot turned on the ballast.
“Q. Your right foot as you were going around it struck the obstruction ? A. Yes.
“Q. And your left foot turned on this ballast? A. Yes.
“Q. And you fell over this obstruction? A. Yes.”
The defendant maintains that the plaintiff’s injury was not occasioned by its failure to provide him with a better light, saying in its brief:
“By the aid even of the dim light furnished by his. lantern, he had all the notice and knowledge of the obstruction in his path that he could have had if his lantern had been burning brightly. He knew that the obstruction was there and tried to avoid it, but in doing so his foot turned on a piece of rock ballast, he stumbled over the obstruction and fell in such a way that his arm got under the wheels and was run over. . . . As he saw the obstruction in plenty of time to have avoided it with the aid of such light as his lantern afforded, he can not claim that the failure of the company to furnish him a better light in any degree caused, or occasioned the accident.”
The court, however, is of the opinion that the jury-might reasonably have concluded that if the plaintiff’s, lantern had given as much light as it should have done he could have seen, not only that there was an obstacle in the path, but of just what it consisted; that if he had been able to see it plainly he could have-passed it without injury, either by stepping over it, or, if he still thought it necessary to go around it, by preventing his right foot from striking it when his. left foot slipped. The fact that he fell over the reel, when he did not know what it was and could see it only dimly, does not prove that he could not readily have avoided it if he could have seen it distinctly. On account of its irregular shape it may have presented a dangerous obstacle to a passer-by in a dim light, although harmless in daylight or when there was sufficient illumination to disclose the details of its construction.
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The opinion .of the court was delivered by
Cole, J. :
In February, 1888, W. J. Wilson & Co. ■executed certain notes and chattel mortgages upon a stock of merchandise situated in the city of Wichita, Kan., to John V. Farweil & Co. and L. D. Skinner, cashier of the State National Bank of Wichita. It was agreed that the chattel mortgages should be concurrent liens and the proceeds of the sale should be divided pro rata between the mortgagees in proportion to their respective debts. The mortgagees took possession of the stock, and while -the same was in their possession, and before the amounts of their debts had been satisfied, the plaintiff in error, Hays, as sheriff of Sedgwick county, took from their possession a portion of the goods under an order of attachment issued at the instance of Blumenthal Bros, against W. J. Wilson & Co. This case was brought by the mortgagees against the sheriff for the conversion of said goods, and, a judgment having been rendered in favor of the mortgagees in the district court, the sheriff bi’ings the case here for review.
No controversy seems to have existed, or at least none is here urged, so far as the claim of L. D. Skinner, cashier, is concerned, but two assignments of error are made in connection with the trial of the case as to .the claim of Farweil & Co., the first being-that the court erred in refusing to give certain instructions requested by the plaintiff in error at the time of the trial. An objection is raised to. the consideration of this question for the reason that it is alleged no proper exception to the refusal of the court to give said instructions was saved, and for the reason that the record does not present to this court the instructions which were given by the court. These objections are well taken. The record in this case discloses that three separate instructions were asked by the plaintiff in error and refused by the court, and that a general exception only was taken to the ruling of the court. In the case of Bailey v. Dulge, 28 Kan. 72, it is held that where a party asks the court to give several separate written instructions to the jury, and the court refuses to give any of them, and a general exception is taken to such refusal, the exception is not sufficient, and this ruling has been followed and affirmed in The State v. Wilgus, 32 Kan. 128.
Again, the record shows upon its face that it does not contain all the instructions which were given by the trial court. But it is contended by plaintiff in error that the failure to present all the instructions to this court is remedied by the statement of the trial-judge, contained in the record, to the effect that, while the record does not contain all the instructions, no instruction was given which cured the error, if any there was, in refusing the instructions asked. This is a conclusion of law upon the part of the trial court, and one which,' in our opinion, was not within its province. All the instructions given should be presented, and it is then for the reviewing court to determine whether the instructions which were given cured the error, if any, in the refusal of the trial court to give such instructions, or any of them, as were requested.
The next assignment of error, is the ruling of the trial court excluding certain evidence offered by the plaintiff in error to prove certain statements made by W. J. WiRon. The facts in this case, so far as they relate to this controversy, are as follows : Certain indebtedness existed upon the part of the firm of Wilson & Pox to various parties, amongst whom were John V. Farwell & Co., E. H. Jaffray & Co., and J. H. Walker & Co. ; on account of dissensions between Wilson & Fox a dissolution was desired by both parties, but this could not be successfully carried out unless a re lease of Pox could be procured from the indebtedness due from the firm of Wilson & Fox; to obtain this release Wilson went to Chicago, and, after seeing the firm of John V. Farwell & Co., secured a release from them and J. H. Walker & Co., and then went to New York and presented a letter signed by Farwell & Co. and Walker & Co. to Jaffray & Co., procuring from them also a release of Fox. It is claimed in this case that at that time Wilson also showed this letter to Blumenthal Bros., and, on the strength of the statements therein contained, obtained credit for a large amount of goods. It is also claimed that the statements contained in the letter were false, and were known to be so by Farwell & Co. ; that they were made for the purpose of deceiving, and as a part of a fraudulent scheme whereby Wilson was to purchase a large amount of goods and secure Farwell & Co. by a mortgage upon the same.
We are of the opinion that the court properly withdrew the evidence in question from the jury. From an examination of the record we are convinced that no fraudulent purpose was shown upon the part of Farwell & Co., but, upon the other hand, that all the evidence tends to the contrary, and if such was the fact, it was immaterial what statements Wilson may have made. Wilson denies in his evidence in this case that he ever showed the letter in question to any one connected with Blumenthal Bros. The letter shows upon its face that it was written for the purpose of procuring the release of Fox from the indebtedness referred to. The mortgage in question was not taken for some six months .after the writing of this letter, and during that period the indebtedness due from Wilson to Blumenthal Bros, was materially decreased, while that due to Farwell & Có. was very materially increased. All the parties connected with the letter testify that it was written for the sole purpose of procuring the release of Fox. Before the statements contained in the letter could be of any avail to Blumenthal Bros., it would have to appear not only that the statements were false, but that they were made by Farwell & Co. with the intention of procuring a mortgage upon goods which might be purchased by reason of the letter. In other words, the fraud must inhere in the mortgage itself.
Perceiving no error, the judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
On the 16th day of March, 1894, Daniel Beedy filed his petition in the probate court of Rawlins county, Kansas, to purchase certain school-land in that county. The petition alleges :
“ That your petitioner would respectfully represent to this honorable court that he is over the age of 21 years, the head of a family, and that he did on the 20th of August, 1898, make actual settlement upon and has improved the southeast quarter of section 16, township 5 south, range 36, in the organized county of Rawlins, Kansas, and that he has resided thereon continuously and made it his only home since the 20th day of August, 1893, being a period of six months immediately prior to the appraisement of said land ; that said land was appraised on the 16th day of March, 1894, at the sum of $480, and that the improvements on said land made by your petitioner consist of a permanent dwelling-house, and the following other improvements : One horse and cow-stable, hen-house, hog-pen, feed-yards, well, pump and piping with barrels set in the ground, 1 grain granary connected to the house, 16x24, and were appraised at the sum of $242; that he has given 10 days' notice, through a newspaper of general' circulation of the hearing of this petition; that the names and residence of the witnesses by whom he expects to prove said settlement and improvement are as follows, viz. : C. M. Hunter, residence, Pentheka, Kan. ; J. Conner, Pentheka, Kan. ; that a copy of said notice is hereto ap pended; that he has not heretofore purchased school land under the provisions of the act providing for the-purchase of school-land, approved February 18, 1896, ’ or under the provisions of the act of which said act is amendatory. Now, therefore, your petitioner would respectfully ask that he be permitted to purchase said land at the appraised value thereof, as provided by law. And your petitioner will ever pray.
Daniel Beedy.”
“ State of Kansas, County of Rawlins, ss.
“I, Daniel ‘Beedy, being duly sworn, depose and say, that I have read the foregoing petition and know the contents thereof, and that each and all of the statements contained therein are correct and true. So help me God. Daniel Beedy.
“ Subscribed and sworn to in my presence and before me, this 16th day of March, 1894.
[seal.] G. Leeper, Probate Judge.”
And on the 23d day of March published his notice, as follows :
“The undersigned hereby gives notice that he will, on the 2d day of April, 1894, make an application to the probate court of Rawlins county, Kansas, to purchase the folowing-described school-land situated in the organized county of Rawlins, Kansas, viz., the S. E. quarter, S. W. quarter, N. W. quarter, N. E. quarter of the S. E. quarter of section 16, township 5, range 36. He names the following persons to prove his settlement, continuous residence and improvements, viz., C. M. Hunter, residence Pentheka,, Joe Conner, residence Pentheka, Kan. Done at Atwood, county of Rawlins, Kansas, this 16th day of March, 1894. Daniel Beedy, Petitioner.”
Due and legal proof thereof was made and returned to the court, as follows :
“ State of Kansas, Rawlins county, ss. -
“Proof of Publication.— J. F. Price, of lawful age, being first duly sworn, deposeth and saith : That he is the publisher of'-the Times, a weekly newspaper published in the city of Atwood, county of Nawlins, Kansas, and of general circulation in said county, and which said newspaper has been continuously and uninterruptedly published in said county during the period of 52 consecutive weeks immediately prior to the first publication of the notice 'hereinafter mentioned, and that a notice, of which a true copy is hereto attached, was published in the regular and entire issue of said newspaper for two consecutive weeks, the first publication being made as aforesaid on the 23d day of March, A. D. 1894. And affiant further says, that he has personal knowledge of the statements set forth, and that they are true. J. F. Price.”
“Subscribed and sworn to before me, this 2d day of April, 1894. A. K. Bone,
[seal.] Printer’s fee, $3. County Cleric.”
On April 2 the cause came on to be heard by the court and was refused. Beedy appealed to the district court. The county superintendent,' on the 19th day of April, filed his demurrer, as follows:
“And now comes the defendant in the above action, by the county superintendent of public instruction, W. McE. Whealen, and demurs to plaintiff’s petition for the following reasons: Defendant for ground of demurrer says, that the court has no jurisdiction of the subject of the action; defendant for further ground of demurrer says, that the petition does not state facts sufficient to constitute a cause of action.
W. McE. Whealen, County Supt.
Indorsement: “No. 1419. Demurrer, filed April 19, 1894. — S. W. Gaunt, Cleric.”
The demurrer was heard by the court on the 29th day of May, 1894, and the following order was made :
‘ ‘ Thereupon said cause came on for trial upon the petition of Daniel Beedy to be allowed to purchase the southeast quarter of section 16, in township 5 south, range 36, in Nawlins county, Kansas, and upon the demurrer to said petition by the superintendent, W. McE. Whealen. Thereupon- "said demurrer was duly argued and submitted to the court. The court, being fully advised in the premises, finds that said demurrer is well taken; that said petition does not state a cause of action; that said applicant, Daniel Beedy, is not entitled to purchase said school-land that said applicant, Daniel Beedy, did not.purchase said lands in his pretended notice of the presentation of his petition to be allowed to purchase school-land. It is therefore ordered, considered and adjudged by the court that said demurrer be sustained, and said petition dismissed at the costs of Daniel Beedy, herein, taxed at $58.85, for which let execution issue. To all of which the said Daniel Beedy objected and excepted.”
Motion for a new trial was filed and overruled. Beedy brings the case here for review.
Counsel for defendant in error contends that the judgment of the district court should be affirmed for three reasons : First, want of jurisdiction, for the reason that, on the 16th of March, 1894, when the petition was verified before the probate judge, the record does not show that the probate court was in session. That this is not well taken needs no agument — scarcely comment. We know of no law requiring the probate court to be in session to enable the judge thereof to administer oaths or for the purpose of filing papers therein.
The second reason is not as clear as it might be, and we will quote the statement:
“The publisher’s affidavit shows that the first publication notice was made on the 23d of March, 1894. The applicant, Daniel Beedy, claims the preferred right to purchase said school-lands under paragraph 5769, General Statutes of 1889, which lays down the conditions precedent to the acquiring of said preferred right; among others is the following, viz. : ‘Any person may . . . file in the probate court of his county a verified petition stating therein that he has given 10 days’ public notice through a newspaper of general circulation in the county wherein said land is situated, setting forth in said notice a description of the land, the'names and residence of two witnesses by whom he expects to jorove said settlement, . . . the time when (the time to be fixed by the probate judge) said petition will be heard by the probate court, and asking that he be allowed to purchase said land.’ This is a condition precedent, and must be done prior to the filing of said petition in said probate court, or the petitioner acquires no preferred right to purchase said school lands.”
From the statements above quoted we assume that the point intended to be raised is that, as the notice had not been published 10 days prior to the filing of the petition, it and all subsequent proceedings were invalid.
We cannot agree with counsel in this, nor do we think the section will bear any such construction. It does not say so in plain words, nor can it be inferred, and if, on the day of hearing, such notice has been given, we think it is sufficient. It is one of the things to be proved on the trial, the same as the service of any other notice. Its object is to notify the public that on a certain day he will ask to purchase. It is to protect the rights of others who may have claims thereto and to give them time to prepare for any resistance they may have to offer to prevent the school-lands from being surreptitiously obtained. It in no way .establishes his rights as a preferred purchaser ; these are established by compliance with the other provisions of the statute, viz., settlement and actual, continuous residence for six months, making it his only home for that period, improving the same, and having a permanent dwelling thereon .prior to the appraisement, then, as we have said, filing his petition within 60 days after its appraisement. If on the day of trial it is shown to the court by legal proof that the public have been notified, their rights, have been protected, no one can complain — no advantage has been taken. The notice has fulfilled its mission, and, if the proof sustains the allegations of the petition, the law has been complied with, and the right to purchase should be granted to the applicant.
For a third reason, they claim that the description of said land in said pretended notice of publication is defective, and indefinite, and uncertain, and capable of several meanings. What is defective, indefinite and uncertain in this description? “To purchase the following-described school-land situated in the organized county of Rawlins, Kansas, viz., the S.E. quarter, S.W. quarter, N.W. quarter, N.E. quarter of the S.E. quarter of section 16, township 5, range 36.” True, it is not as full as it might be. These abbreviations might all have been written out. We will concede, that if certain words had been written between certain words the meaning might be changed, but they are not so written, and our duty is to take it as it is, not as it might have been written, and say what it means. We think the description sufficient, and that it describes four legal subdivisions of the southeast quarter of section 16, township 5, range 36, and is located in Rawlins county, Kansas. What other meaning it is capable of has not been pointed out, and we have failed to discover it. Well-known abbreviations may be used in conveyances, and are sufficient, but such as do not permit that degree of certainty which admits of no reasonable doubt as to their meaning — upon which persons of ordinary intelligence or courts can differ — are not allowable. We do not think this description falls within the exception above stated. There can be no reasonable doubt as to the meaning. The record shows that in every instahce where this transaction has been referred to, either by courtor counsel for the state, it was thus understood — that Beedy was attempting to purchase a quarter-section of school-land. This being true, how could the abbreviations have reference to or mean anything except certain quarters of a certain quarter-section ? It is the duty of the courts to give effect to instruments of writing so as to carry out the intentions i of the parties when it-can be done consistently with the rules of law — not to defeat them.
We think that the court had jurisdiction of the subject-matter and the parties to the action, and that the petition states facts sufficient to constitute a cause of action.
The judgment of the court below will be reversed, and cause remanded for further proceedings, in ac- ' cordance with the views herein expressed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This is a case wherein the district court of Sumner county refused to enjoin the collection of a judgment rendered by a justice of the peace, which refusal is here presented as error. It is claimed that the judgment is void for want of jurisdiction, no legal summons having been served upon the defendant, who is the plaintiff in this suit.
. The justice of the peace issued a summons and delivered it to a constable. The writ was isued on the 17th day of February, 1909, and made returnable on the 25th day of February, 1909. The constable did not find the defendant, until February 26, when he changed the dates so as to show that the writ was issued February 22, 1909, and returnable March 5, 1909, served it upon the defendant as changed, and made the return accordingly. On the 5th day of March the defendant appeared before the justice of the péace and inquired why he was sued and what it was about. He denied ever having had any business transactions with the plaintiff in that action. He was sworn and testified concerning the claim, and was interrogated by the attorney for the plaintiff about the cause of action in detail. The justice of the peace, the attorney for the plaintiff and the defendant were present and had considerable talk about the suit. When they were through the defendant left, and the justice entered a formal judgment for the plaintiff.
The defendant gave the matter no further attention, and on March 17 the justice issued an execution which was levied upon the property of the defendant, who then commenced this action to enjoin the collection of the judgment. A restraining order was issued at the commencement of the action, but upon trial for a permanent injunction the restraining order was set aside and an injunction refused.
The application for an injunction was made upon the theory that the justice of the peace was without jurisdiction and the judgment void. The district court refused the injunction, for the reason, we suppose, that the'want of jurisdiction had been waived by the present plaintiff in appearing in court voluntarily on the day of the trial and participating in the proceedings, and then neglecting to appear or otherwise question the validity of the judgment until after an execution had been issued.
The method adopted to get jurisdiction- of the defendant in that action is not to be commended, but deserves to be severely censured. We regret that we can not make our disapproval of it more emphatic; but while the conduct of the appellees is highly reprehensible in this respect, we can not overlook the want of ordinary caution amounting to indifference shown by the appellant. When he was first served with summons he knew that steps were being taken for the purpose of obtaining a judgment against him, and went to the office of the justice of the peace at the time stated in the summons to see what was being done; and while at the justice’s office he saw and heard enough to convince a man of ordinary intelligence that a judgment would probably be entered against him. If in doubt as to the legal effect of what had been done, he should have acquired the requisite information, at least before the time for appeal had expired. Whether he fully understood the purport of the proceedings before the justice of the peace or not is a question of fact, which was determined by the district court; and if understood by him his conduct amounted to a waiver and a voluntary appearance, which was as binding as the service of a valid summons would have been.
We are unable to say that the district court erred in so finding, and therefore its judgment is affirmed. | [
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Per Curiam:
Special findings numbered 1, 2, 3, 4 and 7 give the situation of the parties for 1906. The letter of November 24, 1906, had but one purpose — -to fix the relations of the parties after 1906, if there were to be any. The letter and the reply altogether eliminated the notion of a yearly or other-time -contract after 1906, and of any “velvet,” except as the result of a full year’s work. Their legal effect was that if the plaintiff went to work in 1907 he did so subject to the defendant’s right to terminate the employment at any time, and without the payment of velvet if a year’s work was not performed. Such being the express conditions under which the plaintiff went to work in 1907, there is no room for the implication upon which he stands. In March, 1907, the plaintiff was notified that the terms of 1906 would not govern for 1907, and the employment was by mutual agreement established upon a new basis, as shown by findings numbered 8, 9 and 10. Under this agreement the discharge of the defendant before the end of the year and without velvet was rightful. These facts compel a judgment for the defendant, whatever the instructions to the jury may have been. The judgment is just, and is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action for rent of real estate. The property was owned and occupied by J. F. Pullen and wife. Pullen died testate, leaving his wife and nine children as his heirs at law. He owned, at the time of his death, three improved lots in the city.of Chanute. The character of the improvements does not appear. His children were all past the age of majority when he died, and were not living with him. His wife was not the mother of the children. By his will he bequeathed one lot to his wife, some personal property to five of his children, and the remainder to his wife and the appellees jointly, “share and share alike.” The widow rejected the will and elected to take under the law.
The testator and his wife occupied a part of the property as a homestead during his life, and she has continued to occupy it since. On June 14, 1907, the appellees commenced this action in the district court of Neosho county to recover rent from the widow. They recovered a judgment for rent from the date of their father’s death, and the Widow appeals. There never has been a division or partition of the land.
The sole question in the case, as stated by counsel, is: Can one tenant in common who occupies the premises be compelled to pay rent to his cotenants who are not occupants? It is conceded that the appellant and the appellees own the property as tenants in common. As we understand the rule, each tenant has the right to occupy the premises while it is undivided, and, until divided, none of them is entitled to recover rent from one who occupies, unless such occupant excludes his cotenants from possession. (Scantlin v. Allison, 32 Kan. 376; 23 Cyc. 491; 17 A. & E. Encycl. of L. 692; Hamby v. Wall, 48 Ark. 135.) There is nothing here which shows exclusive possession on the part of the appellant or that the appellees might not occupy the property at the same time. The appellant seems to have been rightfully in possession, and until she does something to exclude her cotenants from occupancy she can not be compelled to pay rent to them. In the case last cited the court said:
“It is a well-settled principle of the common law that the mere occupation by a tenant of the entire estate does not render him liable to his cotenant for the use and occupation of any part of the common property. The reason is easily found. The right of each to occupy the premises is one of the incidents of a tenancy in common. Neither tenant can lawfully exclude the other. The occupation of one, so long as he does not exclude the other, is but the exercise of a legal right. If for any reason one does not choose to assert the right of common enjoyment, the other is not obliged to stay out; and if the sole occupation of one could render him liable' therefor to the other, his legal right to the occupation would be dependent upon the caprice or indolence of' his cotenant, and this the law would not tolerate. 4 Kent’s Com. *369; Freeman on Cotenancy, § 258;. Evarts v. Beach, 31 Mich. 136; Israel v. Israel, 30 Md. 120; Fielder v. Childs, 72 Ala. 567; Hause v. Hause, 29 Minn. 252; Reynolds v. Wilmeth, 45 Iowa, 693; Pico v. Columbet, 12 Cal. 414; Becknel v. Becknel, 23 La. Ann. 150.” (p. 137.)
This rule does not apply where one tenant receives, rents and profits for the use and occupation of the-premises from another.
The judgment of the district court is reversed, with, directions to grant a new trial and proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Mason, J.:
In November, 1908, James H. Gillpatrick was elected judge of the district court of Leavenworth county, constituting the first judicial district, for the full term of four years. In October, 1909, he resigned, and William Dill was appointed to fill the vacancy. At the election of November, 1910, candidates for the place were voted for, J. H. Wendoríf receiving a majority of the votes. He brings action in this court for the possession of the office. The question involved is whether the title of Judge Dill under the appointment lasts until the election of November^ 1912, or expired with the qualification of a successor elected, in 1910. The decision depends upon the meaning of the phrase “next regular election” in the provision of the constitution (art. 3, § 11) 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.”
Originally, there was room for the contention that “regular” was used merely in distinction from “special,”' and designated any election, held under the general law, that provided machinery for receiving and canvassing votes for the office involved. However, in McIntyre v. Iliff, 64 Kan. 747, its meaning was restricted to “the next election regularly held conformable to law at which the particular class of judicial officers in question is to be chosen.” (p. 750.) The defendant maintains that for the purposes of applying this rule the class of officers to which he belongs does not include judges of all the district courts in the state, but only those normally elected at the same time. The constitution (art. 3, §§ 5, 18) created five judicial districts, the-judges of which were to be elected in 1860 and quadrennially thereafter. As each new district was formed the regular term of office of its judge was usually made-to begin in January after the ensuing general election. (The State, ex rel. Goodin, v. Thoman, 10 Kan. 191; Peters v. Board of State Canvassers, 17 Kan. 365; Smith v. Holt, 24 Kan. 771.) In 1902 general elections in the odd-numbered years were abolished (Const, art. 4, § 2), and since then a part of the district judges of the state have been chosen at each biennial election.. Therefore, by reason of the difference in the time of their selection, it may be said that in a sense there are now two classes of district judges, and as the first district was created by the constitution its judge belongs in the class with those ordinarily to be chosen in 1912. In The State v. Holcomb, ante, p. 256, where the tenure of the appointee to a newly created judgeship was discussed, the court said that his office “should be classified with that of the district judges whose successors are to be chosen at the election to be held in November, 1910” (ante, p. 260) ; but this language was used with no purpose to suggest that the two groups resulting .from this classification were to be regarded as separate classes in the sense in which the term was employed in the Mclntyre-Iliff case.
Under similar constitutional and statutory provisions it has in other states been held, in substance, that the words “next regular election” refer to an election at which the very office in question would ordinarily be filled. (People of North Carolina ex rel. Cloud v. Wilson, 72 N. C. 155; The State of Florida ex rel. v. Ansel B. Philips, 30 Fla. 579, 591; State ex rel. McGee v. Gardner, 3 S. Dak. 553.) Other decisions have a contrary tendency. (People v. Babcock, 123 Cal. 307; State of Missouri ex rel. Attorney-general, relator, v. Conrades, 45 Mo. 45.) Some of the cases cited, perhaps all of them, might be distinguished from the present ■one, on the ground of differences in the laws interpreted. We deem it unnecessary to discuss them in •detail, because we think the decision here must in any event be controlled by considerations now to be stated.
The words of the constitution may be open to a construction permitting one appointed to a judicial office to hold until the time when an election would regularly have been held to fill the office, if no vacancy had ■occurred. But to give them such a meaning would be to defeat the very purpose they were obviously designed to accomplish — that is, to further the policy of filling judicial offices by election rather than by appointment, and to shorten the time for which an appointee may serve. To allow a district judge appointed to fill a vacancy to hold until the election at which that particular office would ordinarily be filled would be much the same as letting him fill out the unexpired term. The interval between the election in November and the taking of the office in January is too small to have been of itself the object of any special solicitude on the part of the framers of the constitution. If it had seemed advisable to allow the appointee to hold until two months from the end of the term it would hardly have been thought worth while to dispossess him before the new term began. The constitution (art. 3, §2) provided for three members of the supreme court, a chief justice and two associate justices, one to be elected for six years at each biennial election. The convention can scarcely have intended that if a justice died in the first few months of his service the person appointed to fill the vacancy should hold for five years, during which time two elections for state officers should be held without choosing a successor, and then retire two months before the expiration of the regular term.
In the section of the Ohio constitution from which the provision under consideration was taken the expression used was “annual election.” (Ohio Const. 1851, art. 4, § 13.) As the provision was originally reported to the Kansas constitutional convention and adopted the phrase was “general election.” (Proc. & Deb. Const. Conv., pp. 67, 73.) The change from “annual” to “general” was doubtless occasioned by the fact that justices of the peace were required to be chosen at township elections, to be held in April. The work cited does not disclose at what stage of the proceedings the word “general” was changed to “regular,” but the change may be thus accounted for: In the original draft the term “general election” was made to embrace township elections, (p. 177.) Later, on the recommendation of the committee on phraseology, it was restricted to the annual elections in November, (p. 388.) The November and April elections could not both be covered by either the word “annual” or “general.” Some new term was necessary, and “regular” was doubtless adopted without a purpose to change, the spirit of the original provision.
From the earliest history of the state down to the present time the practice has been for one appointed district judge to hold under the appointment only until the qualification of a successor chosen at a general election, whether that particular office would ordinarily be filled at that time or not. So where a vacancy has. been created by the death or resignation of a justice of the supreme court who had several years still to serve, at the next election for state officers a successor has been chosen. In several cases in this court it has. been assumed that this established practice was in accordance with the requirements of the constitution. (See the cases cited in The State v. Holcomb, ante, p. 256; also, Bawden v. Stewart, 14 Kan. 355.)
In view of the history of the constitutional provision,, of its manifest purpose, and of the practical interpretation long placed upon it, we conclude that an election at which judges of the district court are to be chosen for a full term in any of the districts of the state is, as to that office in every district, a “regular election”' within the meaning of that expression as there used.
Upon these considerations judgment for the plaintiff has already been rendered. (Ante, p. 629.) | [
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The opinion of the court was delivered by
Mason, J.:
S. L. Clute, an implement dealer, ordered, several harvesting machines of the manufacturer, and they were shipped from Wichita to Minneola, consigned to him, over the Rock Island railroad. He claimed that there was an unreasonable delay in their transportation, and that they arrived too late to serve the purpose for which they were ordered, namely, for sale during the harvesting season, upon, orders already taken. He refused to receive them, and sued the railroad company for the profits he would have made by selling them if they had arrived in time. He recovered, and the defendant appeals.
The appellant claims that under the evidence the plaintiff bought the machines with the understanding that the manufacturer was to make delivery at Minneola; that therefore the title remained in the shipper, and as the plaintiff refused to receive them he never acquired any interest in the property and can not maintain the action. The abstract does not clearly show a retention of title by the shipper. Ordinarily the right of action for delay or damages is in the consignee. (6 Cyc. 510, 511.) In Savannah Ry. Co. v. Com. Guano Co., 103 Ga. 590, it was held that where by reason of injury to the goods in transit the consignee refuses to receive them the consignor may sue, but this does not negative the right of the consignee to recover for any loss on his part. The court said:
“In the event of liability by the carrier, the only question which remains for determination is whether or not the plaintiff who sues has been damaged,- and if so, to what extent.” (p. 593.)
■Much artificial and technical reasoning has been employed to determine the proper plaintiff in an action of this sort. The consignor has been allowed to recover for the benefit of the consignee (6 Cyc. 513, note 91), and the consignee for the benefit of-others having an interest (6 Cyc. 511, note 84). These refinements are not in harmony with the spirit of the code. Neither the consignor nor the consignee can be said tp be a stranger to the transaction. The carrier has notice of the interest of each, and if either suffers an injury through its fault he should be permitted to obtain redress in his own name in a direct action against the wrongdoer. This is the effect of the decision in Railway Co. v. Implement Co., 73 Kan. 295, where it was held that an agent to whom his principal sent goods for sale might recover for his commissions lost through the negligent delay of the carrier.
It is contended that the measure of damages for delay in the delivery of goods by a carrier is necessarily the difference between their value when actually delivered and what they would have been, worth upon seasonable delivery. This is the usual but not the universal rule.
“In addition to this difference in market value, the carrier will be liable also for such other and incidental damages as naturally and proximately flow from the delay.” (3 Hutch. Car., 3d ed., § 1366.)
It is also argued that the damages here recovered were too remote, and could not have been- anticipated by the carrier. The same contention was made under substantially similar circumstances in Railway Co. v. Implement Co., supra, and held untenable.
The trial court -required a remittitur from the verdict rendered, but the excess was not of such an amount or character as to' show passion or prejudice and did not require a new trial.
..Although the orders taken by the plaintiff for the machines were not unconditional, the evidence justified submitting to the jury whether his sales were lost by the unreasonable delay of the defendant, and the verdict is conclusive on those points.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Gottfried Longhofer, a minor, sued his stepfather upon three causes of action, the first based upon what was in effect a loan of money, the second upon a contract to pay for his services, and the third upon the conversion of personal property. He recovered judgment upon each, and the defendant appeals.
The appellant claims that the first count was barred by the statute of limitations, because action had accrued thereon in favor of trustees who represented the plaintiff immediately upon the making of the loan, in asmuch as the jury found that it was payable upon demand. The usual rule is that notes or similar obligations payable in terms “on demand” are deemed to be due at once, and that the statute begins to run against them without demand. (25 Cyc. 1100.) Where, however, the understanding of the parties is that one of them is to use the funds of the other for some considerable and indefinite period, and until repayment is requested, the continual retention of the money is permissive and rightful until demand is made, and no right of action accrues until that time.
“If it appears that the money or claim which is the subject of the contract is to be paid on demand in fact, the statute will not begin to run until an actual demand has been made.” (25 Cyc. 1209.)
(See, also, 25 Cyc. 1202; 19 A. & E. Encycl. of L. 198.)
Under all the evidence the finding of the jury may fairly be regarded as meaning that the plaintiff’s money was to be used by the defendant until called for.
The jury found, upon sufficient evidence, that the defendant had orally promised the plaintiff’s mother, as an inducement to their marriage, that he would pay her son wages for such services as he should render after reaching the age of thirteen years. The appellant contends that the promise is not enforceable because of the statute of frauds, which provides that no action shall be brought to charge any person upon any oral agreement made upon consideration of marriage, or not to be performed within a year. (Laws 1905, ch. 266, § 1, Gen. Stat. 1909, § 3838.) Under somewhat similar circumstances this court has held that an oral contract may be taken out of the statute by the rendition and acceptance of services under it. (Heery v. Reed, 80 Kan. 380, and cases there cited.) The usual rule is that the law implies an agreement to pay for services performed under a contract which is unenforceable because not in writing. (20 Cyc. 299.) Presumptively a minor living with his stepfather is not to be paid for his labor. (Smith v. Rogers, Ex’r, 24 Kan. 140.) In the present case, whether or not the plaintiff could maintain an action strictly upon the contract, proof of its existence gave him a right to recover the value of his services, by overthrowing the presumption that he and the defendant dealt with each other merely as parent and child.
“The verbal agreement is not the basis of an action . . . but evidence of its terms is often necessary to establish the implied contract upon which recovery is sought.” (Baldridge v. Centgraf, 82 Kan. 240, 244.)
The plaintiff’s mother filed a pleading in which she denied his right to recover, but asked that, if it should be found that he was entitled to receive anything from the defendant, the amount should be adjudged to belong to her as his natural guardian. She now maintains that the judgment on account of her son’s services should be made payable to her. There was no evidence that she expressly relinquished her right to his earnings or emancipated him. Such relinquishment or emancipation, however, may be implied from circumstances. (29 Cyc. 1626, 1675.) Assuming that the jury were correct in accepting the plaintiff’s version of the facts, we think they were justified in concluding that it was the understanding of the parties that the wages he earned should be paid to him personálly, especially in view of his mother’s repudiation of his entire claim.
It is also contended that the judgment on account of the alleged conversion of personal property- — -a colt— can not stand because the testimony showed that if the defendant converted anything it was the mare that foaled the colt. We think, however, there was some substantial evidence supporting the view taken by the jury.
A final complaint is that the plaintiff was allowed to testify to matters having no proper bearing upon the issues, but tending to create feeling against the defendant. The testimony seems to have been offered to explain the relation of the parties, and if it was' not material for that purpose we think it was not sufficiently prejudicial to require a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This action was commenced in the district court of Reno county by W. C. Burgess to recover damages for a personal injury received by being struck by one of the defendant’s passing trains. He recovered therefor, and the defendant appeals.
The plaintiff was at Ellinwood, and wished to go to Raymond. He boarded a train which did not stop at Raymond. When about two miles from Raymond the conductor asked him for his ticket. He had none. When he told the conductor that he wanted to stop at Raymond and would pay cash fare he was informed that he could not stop the train at that place, and that he must get off. The train was stopped and he was ejected. This was not negligence.
The plaintiff was intoxicated to the extent of being stupefied and drowsy. He was left by the side of the track, and he attempted to follow the train afoot, on the track. After walking a short distance he sat down on the end of a tie, and. was soon overcome with a stupor. While in this condition a train passed along and struck his side, whereby he was pushed off to the side of the track and severely injured.
It is claimed that the men in charge of the train which struck the plaintiff were negligent in not discovering him in time to avoid the injury. It was a clear day, about noon. The track was straight, the ground smooth, and practically level. It was in the month of January, when rank vegetation does not stand along the track. The plaintiff was sitting on the end of a tie, crouched down with his head between his knees, and partially lying down. He would not readily be taken for a human being. He was not at a crossing or where a human being would be expected. After the engineer discovered that the object was really a human being he attempted to stop the train, but did not succeed in doing so in time to avoid the injury. It must be remembered that when a person is upon a railroad track without leave, and has no business with the company, such person is a trespasser, and the company owes him no duty except not wantonly to injure him. It is not pretended here that the company was recklessly or wantonly negligent in this case. In the absence of such a degree of negligence the plaintiff has no cause of action, and should not recover a judgment. The rule of law controlling such a case was clearly and forcibly stated by Mr. Chief Justice Doster in the case of Railway Co. v. Prewitt, 59 Kan. 734. The following cases decide practically to the same effect: Louisville, H. & St. L. R. Co. v. Hathaway’s Ex’tx., 121 Ky. 666; Railway Co. v. Williams, 69 Miss. 631; San Antonio & Aransas Pass Ry.. Co. v. McMillan, 100 Tex. 562.
In harmony with these cases we hold that the company was not guilty of such negligence as creates a liability. The judgment is reversed, with direction to enter judgment for costs in favor of the defendant. | [
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The opinion of the court was delivered by
Benson, J.:
A judgment was rendered against the United States Gypsum Company and J. E. Drake for damages for the death of George A. Laffery, a laborer in the mines of the company. The defendants appealed, but no brief was filed or argument made for Drake.
The company owns and operates a mill for the manufacture of gypsum products, and owns adjacent mines from which gypsum is taken to supply the mill.- The mill and mines were formerly owned and operated by the Blue Valley Plaster Company. In the year 1900 the plaster company entered into a written contract with Drake, by the terms of which it was agreed that Drake should mine and deliver such gypsum as the plaster company might require at its mills, that company to furnish cars and rails to transport the material from the mine, the deliveries to be at the plaster company’s cable, and Drake to receive forty-five cents per ton therefor. The contract contained the following stipulation:
“It is further agreed that said party of the first part shall in nowise have control of the mine from which said gypsum is taken or any authority respecting the manner of, or means employed in and about, mining said gypsum.”
This agreement was by its terms to remain in force for one year.
In February, 1905, the plaintiff’s husband, a laborer employed by Drake, was killed by a rock which fell from the roof of the mine where he was at work. The plaintiff alleged that the death was caused by the negligence of the defendants in not properly inspecting the mine, and in not furnishing a reasonably safe place in which to work. The defendants answered by a general denial, and pleaded assumption of risk and contributory negligence. The defendant company also specifically denied that Drake was superintending the mine for it or that it was engaged jointly with him in mining.
The jury in answering special questions found that Drake was superintendent of the mine; that the company was negligent in not properly inspecting it; that the room where the deceased worked should have been but twenty feet in width, but was 27% feet wide; that the superintendent of the mine did not maintain a reasonably safe inspection; that the place where the deceased worked was not reasonably safe, and that his death would have been averted by a reasonably careful inspection. Other findings were made, but they are not material to this decision. It will be observed that the jury did not find that Drake was superintendent of the mine for the company. They were not requested to find on that issue, although quite material.
Drake had been superintendent of the mine for several years before this contract was made, and he continued to direct its operations afterward.' In the year 1902 the mills and mines were transferred to the gypsum company, and Drake continued to supervise the operation of the mines until the year 1906. Whether in this supervision after the transfer he acted as superintendent for the company or for himself as contractor, or whether he acted in both of these capacities, were questions of fact; but that he employed and discharged the laborers and superintended the mining generally in removing the material from the earth and delivering it at the mill is not disputed. The claim of the defendant company is that he acted solely as an independent contractor, under the contract with the plaster company, adopted and in force between the transferee and the contractor, the same as though it had been made between them. The claim- of the plaintiff is that Drake acted as superintendent of the mines for the defendant company, without reference to the contract, and that the contract was set up as a cover to relieve the company from responsibility for the negligence of its own superintendent. Evidence was offered tending to support the claims of each party. The court, however, in effect, took this question of fact from the jury by the following instruction :
“The owners and operators of a mine and mills engaged in the business of producing and manufacturing plaster from gypsum rock secured from an underground mine by the ordinary process of mining, and which in its nature is dangerous to others, are under obligation to see that it is carefully performed so as to avoid injury, and such person or corporation can not delegate the obligation to an independent contractor and thus avoid liability in case the work and operation of said mining business is negligently done to the injury of a servant employed in such mining operation, . . . and if you shall be satisfied by a preponderance of the evidence that said George A. Laffery, on the 20th day of February, 1905, while in the performance of his labor as a servant and miner in the Blue Valley Mine in Marshall county, Kansas, and without any fault or negligence on his own part, was killed as the result of the negligent inspection of said mine by the person in the immediate charge thereof and superintendency of the same, or by: reason of carelessly and negligently not being provided with a safe place in which to perform his work' as such miner, then you must find against both defendants, regardless of any suggestion in the evidence toward the claim that J. E. Drake was solely responsible for such negligence, if any existed.”
The plaintiff contends that this instruction is supported by the opinions of this court in Railroad Co. v. Madden, 77 Kan. 80, and Isnard v. Edgar, 81 Kan. 765. In the Madden case the question was whether a railroad company was liable to a landowner for damages caused by fire set out by a contractor to burn off the right of way — an entirely different question from that presented here, where it is contended by one party that the person injured was the employee of the contractor alone, and by the other party that he was the servant of the owner. The railroad company in that case had a duty to perform which it was bound to discharge in such a manner as not negligently tó injure third parties, and it could not in the situation there presented be relieved of that responsibility by committing the work to a contractor. The relation of master and servant did not exist, although an illustration was drawn from that subject. In the Isnard case the plaintiff was employed by the owner of the mill and was injured while working in a place and with appliances furnished by his employer, and it was held that the owner was liable for his own negligence causing the inj ury. By comparing the claim of the defendant company here, viz., that Laffery was the servant of an independent contractor, with the situation in either of the two cases relied upon by the plaintiff, it readily appears that they are not controlling.
The general rule, variously stated, is that when a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligent or improper execution' of the work by the contractor. (Wood, Mas. & Serv., 2d ed., p. 593; 26 Cyc. 1084; 16 A. & E. Encycl. of L. 192.) To this rúle there are many exceptions and limitations. (1 Thomp. Com. L. of Neg. §§ 621-627.) One of these exceptions relates to work intrinsically dangerous, and the plaintiff contends that this exception, instead of the general rule, applies here.
It has been held in many cases that an owner, or a contractee, is responsible for injuries to a third party caused by work done by an independent contractor where the contract directly requires the performance of work intrinsically dangerous, however skillfully done. (2 Dillon, Munic. Corp., 4th ed., § 1029.) This principle has been applied to injuries suffered by .persons upon streets and highways, and also by occupants of adjoining premises. Another class to which it is held applicable is that of persons invited to Come upon the contractee’s premises. (Citations are given under various classifications in notes in 65 L. R. A. 833, and 66 L. R. A. 941. See, also, 14 L. R. A. 828.) ‘
No effort will* be made to define precisely the expressions- “intrinsically dangerous” or “inherently dangerous,” or like phraseology, as used in the authorities. Regard must be had to the reason of the principle and the consequences flowing from its application in the given situation.
The .mere liability to injury from doing the work contracted for can not be the test, for injuries may happen in any undertaking, and many are attended with great danger if carelessly managed, although with proper care they are not specially hazardous. Ordinary contracts for buildings, Where the owner reserves no control but the usual right to see that the work is properly performed according to specifications, have not been held to. be within this principle, although the erection of high buildings in the manner and by the use of materials now common in large cities may be, and often is, attended with great hazards. In an early New York case this matter was discussed in an exhaustive opinion. The court, in speaking of the common case of a person about to build a house, said:
“He may, therefore, let out by contract the building of the house to some person who will undertake to furnish all the materials and complete the building in a specified manner, and for a stipulated compensation. Would he thereby become the master of all the contractor’s appurtenances, servants and men employed by him, and render himself liable for all the injuries to third persons which might be occasioned by their negligence or misconduct in doing any act tending to the construction of the house ? For instance, by the carpenter’s men in getting out timber in the forest; by the stone cutter’s servants in blasting stone in the quarry, or by the teamsters in handling materials. Such consequences would indeed shock the common sense of all men.” (Blake v. Ferris, 5 N. Y. 48, 61.)
In another case of a contract for building, where it was claimed that this exception applied, the court said :
“The exception relied upon is fully recognized by all of the authorities that we have examined, the doctrine being that if the enterprise entered upon by the owner of the premises is inherently and necessarily dangerous, or where danger and hazard must necessarily accompany the work, or where the doing of the work will necessarily create a nuisance, then the prosecution of the work becomes unlawful, and in such cases the owner can not escape personal liability by contracting with another to do the work.” (Richmond v. Sitterding, 101 Va. 354, 359.)
The court, however, held that the erection of a house fronting upon a city street was not work of the nature referred to, and that the owner was not liable for injuries caused by the falling of a plank negligently extended over the sidewalk by the contractor.
In Boomer v. Wilbur, 176 Mass. 482, in deciding a case where injuries had been suffered from the fall of bricks from a chimney which was being erected under a contract, the court said:
“If the performance of the work will necessarily bring -wrongful .consequences to pass unless guarded against, and if the contract can not be performed except under the right of the employer who retains the right of access, the law may hold the employer answerable for negligence in the performance of the work. . . . This is not a case where the work, even if properly done, creates a peril, unless guarded against. . . . If it had been necessary for him to topple the chimney oyer into the street, or to remove the bricks by letting them fall into it, or the contract had contemplated such action, the instructions would not have been objectionable; but as this was not necessary or intended the work could not be classed as work which, if properly done, was ordinarily attended with danger to the public.” (pp. 484, 485.)
In Engel v. Eureka Club, 137 N. Y. 100, in an opinion by Mr. Chief Justice Andrews, discussing the liability of an owner for the negligence of a contractor whereby a child was killed in taking down a wall, it was said:
“There are cases of still another class where the thing contracted to be done is necessarily attended with danger, however skillfully and carefully performed, or, in the language of Judge Dillon, is ‘intrinsically dangerous/ in which case it is held that the party who lets the hentract to do the act can not thereby esca,pe from responsibility for any injury resulting from its execution, although the act to be performed may be lawful.” (p. 104.)
In Bower v. Peate, L. R. (1876) 1 Q. B. Div. 321, Mr. Chief Justice Cockburn said:
“A man who orders a work to be executed, from which in the natural course of things injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and can not relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from which the danger arises or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted.” (p. 326.)
It may not be difficult in many cases to apply the distinction noted in the concluding sentence above, guided by numerous decisions by which it has been illustrated; still, cases may arise where the line of cleavage will be shadowy and indistinct. As remarked by the learned annotator in 65 L. R. A. 833, 840, “cases which lie near the border line, and which are not concluded by precedents so close as to be binding, will always continue to be a source of embarrassment.” (See, also, Hughes v. Percival, 52 L. J. [1883], n. s., Q. B. Div. 719.)
In the case of contracts to erect buildings and like undertakings it should be observed that the contractee may be liable for injuries if caused by defective plans, or, in some situations, by excavations necessarily made, causing injuries not resulting from the collateral negligence of the contractor but occurring in performing the contract. (Wiggin v. St. Louis, 135 Mo. 558; Bonaparte v. Wiseman, 89 Md. 12.) And manifestly, if the contract requires for its performance the creation of a nuisance or the doing of any unlawful act, the employer is not excused.
It is clear from the cases cited, and many others in which the subject has been considered, that the intrinsic danger of the undertaking upon which the exception is based is a danger which inheres in the performance of the contract, resulting directly from the work to be done and not from the collateral negligence of the contractor. (Water Company v. Ware, 83 U. S. 566; McDonnell v. Rifle Boom Co., 71 Mich. 61.) Because of the difficulty of expressing exact distinctions, apart from the facts of particular situations, the language used in many of the decisions must be carefully scrutinized and applied no farther than such facts require.
Passing from this brief review of authorities bearing upon the general subject, we proceed to consider cases relating especially to mining. The owner of a mine had contracted with certain persons to work it and deliver the ore for a specified price per ton. The mine was in safe condition when the contractors took possession. An employee of the contractor was killed by a rock falling from the roof of the mine where he was at work. An action was brought against the mine owner for damages, alleging negligence in failing to keep the mine reasonably safe. In the opinion by Mr. Justice Cooley the duties of a mine owner in such cases are considered at length. It was said:
“That the mine was at no time a place of absolute safety is conceded; but the danger was not peculiar to this mine, and by itself raised no presumption of negligence. . . . The question is whether defendant at the time of delivering possession to the contractors had neglected any precaution which ought to have been taken to guard against danger. We find no evidence of such neglect. The roof remained in place during the season of 1878, and the tendency of the plaintiff’s evidence is to show that the freezing of the following winter and the filtration of the water through it were chargeable with the disintegration and ultimate fall of the rock. The negligence, if any, must on this showing have consisted in the failure to inspect the roof frequently, and to bar down any rock that seemed likely to detach itself and fall, or to erect timbers to prevent the fall. •
“But plaintiff insists further that this duty of supervision and care at all times rested upon the mining company, and was not devolved upon the contractors by the agreement made with them. This is the point on which the plaintiff chiefly relies. It is not pretended that the mere ownership of real estate upon which there are dangers will render the owner liable to those who may receive in j ury in' consequence. Some personal fault must be involved, or neglect of duty, before there can be a personal liability.” (Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164, 171.)
After reviewing several cases of injuries to third persons by the negligence of contractors, where it had been claimed that the owner was responsible for failure properly to care for his own premises, and finding that such responsibility could only be based on some positive duty which the owner owed to the person injured, or upon some duty of a master which could not be delegated, the opinion proceeds:
“It remains to be seen, then, whether a personal duty to guard against danger to the miners was still incumbent upon the defendant as owner of the mine, and was continuous while the mine was being worked by the contractors. Mere ownership of the mine can certainly impose no such duty. The owner may rent a mine, resigning all charge and control over it, and at the same time put off all responsibility for what may occur in it afterward. If he transfers no nuisance with it, and provides for nothing by his lease which will expose others to danger, he will .from that time have no more concern with the consequences to others than any third person. If instead of leasing he puts contractors in possession the result must be the same, if there is nothing in the contract which is calculated to bring about danger. But if, on the other hand, he retains charge and control, and gives workmen a right to understand that he is caring for their safety and that they may rely upon him to guard against negligent conduct in the contractors and others, his moral accountability for their safety is as broad as it would be if he were working the mine in person; and his legal accountability ought to be commensurate with it.” (p. 173.)
In an action by a miner to recover for personal injuries suffered in a mine where he was at work for a contractor who had undertaken-to mine and deliver coal to the owner, a verdict was returned against both the owner and the contractor. The owner appealed, and it was held that he was not liable. The injury was caused by a falling roof over an entry. The court said:
“The evidence is undisputed that at the time of the accident, and for some months prior thereto, the mine was in the exclusive possession and control of defendant Dickenson, under a contract with Belshaw, who was the owner thereof; that under such contract Dickenson employed and paid the workmen, had entire charge of and authority over the mine, and received a fixed rate per ton, from Belshaw, for the coal taken therefrom, when the same was delivered to him.
“The principle of law is so well settled that where one carries on an independent employment, in pursuance of a contract by which he has. entire control of the work and the manner of its performance, his employer is not liable for any negligence of which he may be guilty in the course of his employment, that the citation of authorities is unnecessary labor.” (Smith v. Belshaw, 89 Cal. 427, 430.)
It was held in Missouri that a furnace company which owned a sand pit and which had 'made a contract for digging the sand and hauling it to the furnace at a stated price per load, without reserving any right to control the operation, was not liable for the negligence of the contractor in making an excavation for the pit whereby’a third person was injured. (Fink v. The Missouri Furnace Company, 82 Mo. 276.)
A contract was let by a mine owner to dig ore and deliver it upon cars furnished by the owner, at a fixed price per car. In an action for the death of an infant wrongfully employed by the contractor, and killed while at the work in the mine, it was held that the owner was not liable. (Harris v. McNamara et al., 97 Ala. 181.)
In another case it appeared that mining operations had been carried on by the mine owners and a contractor, the latter doing the work underground, the owners hoisting and preparing the ore for sale and selling it. The proceeds were divided. Reversing a judg ment for the owners, it was held that they were liable for injuries to a laborer underground, the liability being based upon the fact that the undertaking was joint, but the court said:
“The theory on which the defense of the court’s ruling is based is that Raynes was an independent contractor, operating the mine on his own account, that the deceased was in his employ holding no contractual relation with defendants and they owed him no duty.
“If the contract between Raynes and the defendants was simply to the effect that the former rented the land, or the mining plant, from defendants, who had no further interest in its operation than that in the nature of a lessor’s interest, that theory would be correct. Although under such conditions it might appear that that mine was in a dangerous condition and unfit for use, yet the miner could look no further than to Jiis employer for redress for his injuries.” (Rice v. Smith, 171 Mo. 331, 335.)
The reference to the condition of the mine in-the concluding'sentence of the quotation must have been to its condition at the time of the injury. If a mine is unsafe when a contract is entered into a different principle would apply.
Where a mining company contracting for the removal of ore reserved to itself arrangements necessary for the protection of the workmen, and a laborer was injured by a rock falling from a hanging wall in the mine, it was held that the mining company was liable, but that the liability arose from its failure to do the thing it had agreed by the terms of the contract to do. (Lake Superior Iron Co. v. Erickson, 39 Mich. 492.) In a similar case, where the owners of a mine agreed with the contractor to furnish and put up such props for the roof as would make the mine safe, it was held that they were liable for injuries to an employee of the contractor suffered because of the absence of such props, the liability resting upon the terms of the contract. (Kelly v. Howell, 41 Ohio St. 438.)
The principle as applied to mining is also stated in section 637 of volume 1 of Thompson’s Commentaries on the Law of Negligence.
In the absence of legislation upon the subject, the courts have not hitherto held, as a matter of law, that mining generally is so intrinsically or inherently dangerous as to make the owner of a mine liable for the negligence of an independent contractor resulting in injuries to a servant of such contractor, where it was not shown that the mine was unsafe when the contract was made or that the owner reserved some control of its operation. So to hold would go beyond the province of the j udiciary.
There is no evidence that the mine was unsafe at the time the contract was entered into or at the time the gypsum company commenced operating it.
If Drake was really acting for the company as its superintendent in overseeing and directing the mining operation by its authority, direction or agreement, or if the written contract was not in force between the company and Drake, or if with or without the contract the company really controlled and directed the operation of the mine, then it is liable for- any actionable negligence on his part or the part of the company.
The defendants predicate error on the admission of testimony showing that the gypsum company took out insurance indemnifying it against loss from injuries to Laffery and other laborers, and to the correspondence relating to such insurance, and to the terms of the policy. This testimony was admitted to show the real relation between Drake and the company. It was competent and was properly received. (Brower v. Timreck, 66 Kan. 770.)
It is contended that there was no negligence by Drake or the company; that the death resulted from an assumed risk of the deceased; and that it was caused by his own negligence. These claims, however, presented questions of fact determined by the findings of the jury in favor of the plaintiff. We have carefully ■examined the evidence and find that it supports the verdict and findings of the jury.
The real relation of Drake-to the company should have been determined by the j ury under proper instructions. For error in the instruction referred. to, the judgment is reversed and the cause remanded for a new trial.
The abstract of the appellant contains over 500 printed pages, embracing a copy of the evidence, with questions and answers in full, and all exceptions thereto, with accompanying remarks of counsel. This is not an abstract, but appears to be a transcript, and is not a compliance with the rules of this court. The expense of printing the abstract will not' be taxed as costs: | [
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Per Curiam:
This is an appeal from the district court of Wilson county for refusing to enjoin the county treasurer from collecting a sewer tax in the city of Neodesha which had been levied upon the property of the plaintiffs. This action was com menced July 21, 1906. The ordinance providing for the assessment of the tax was published September 8, 1906. This was the first time the amount of the tax was ascertained. An amended petition was filed by the plaintiffs November 3, 1906, by leave of court. On January 8, 1908, the case was dismissed by the court at the cost of the plaintiffs, and from this order they appeal.
The precise reason for the action of the court does not appear, but from what occurred at the time we assume that it was because of the time when the action was commenced. If it be said that the action was commenced when the original petition was filed, July 21, 1906 (forty-nine days before there was a cause of action in existence), then the case was prematurely commenced and that of itself was a sufficient reason for the dismissal. (Mason v. Independence, 61 Kan. 188; Andrews v. Love, 46 Kan. 264; Comm’rs of Seward Co. v. Stoufer, 47 Kan. 287; Dever v. Junction City, 45 Kan, 417; Challiss v. City of Atchison, 39 Kan. 276.) If, on the other hand, the permission to amend the petition granted by the court kept the case alive and it be said that the petition was not completed until the amended and supplemental petition was filed, November 3, 1906 (more than fifty days after the cause of action accrued), then the action was not commenced in time and for that reason the dismissal was correct. (Kansas City v. McGrew, 78 Kan. 335; Railway Co. v. Spaeth, 82 Kan. 861; Railroad Co. v. Kansas City, 73 Kan. 571.)
It may be said also that the petition contained allegations of mere irregularities of the council in taking the steps properly initiated and did not show sufficient cause for an injunction. (Railroad Co. v. Kansas City, 73 Kan. 571; Falloon v. Hiawatha, 66 Kan. 769.)
Upon the whole case we are unable to say that the court committed error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant appeals from a conviction under the prohibitory liquor law. At the time of the alleged offense he was running a livery barn in the city of Sedan. Two witnesses for the state testified that they went to him in the evening at his barn and requested him to'procure liquor for them; that he said he thought he could do so, and went away and was gone for some time, and returned with a gallon of whisky. One of the witnesses testified that he gave the defendant the money before he went to get the liquor. Eph Brown, who ran a “joint” located near the barn, and who plead guilty at the same term of court to a number of counts charging him with violating the prohibitory law, was a witness for the state, and testified that he sold the gallon of whisky to the defendant. The sole defense was that the defendant was acting as a friendly agent of the persons who purchased the liquor. He admitted that he got the liquor for them, and testified that they paid him the money in advance and that he acted merely as their agent.
One of the errors complained of is that the court withdrew from the consideration of the jury, by a special instruction, the consideration of the testimony of a number of witnesses which had been offered by the defendant to prove his good reputation as a peaceable and law-abiding citizen. The theory upon which the court withdrew this testimony appears to be that there was direct evidence against the accused; that he admitted the act of procuring the liquor, and therefore evidence as to his reputation could have no tendency to prove his innocence. This was manifest error. Whether the defendant was acting as a “bootlegger,” as the defendant was in The State v. Green, 69 Kan. 865, or simply purchased liquor as the agent of those who sent him for that purpose, was the question to be determined, and he was entitled to all the inferences which the jury could rightly draw from the evidence of his good repute.
In The State v. Deuel, 63 Kan. 811, a conviction was reversed for an erroneous instruction respecting evidence of previous good character. In the opinion it was said:
“Evidence of previous good character goes to meet every phase of a case involving the guilty knowledge or intention of a defendant, and should be considered by the jury in determining whether it is probable that the defendant is guilty.” (p. 818.)
To the same effect are: The State v. Douglass, 44 Kan. 618; The State v. Schleagel, 50 Kan. 325; The State v. Keefe, 54 Kan. 197; The State v. Pipes, 65 Kan. 543.
As said in section 79 of Underhill on Criminal" Evidence, “though good character is of especial importance when the incriminating evidence is wholly circumstantial, it is not to be rejected, or even disregarded, when the evidence against the accused is direct.”
It is also claimed that the court erred in refusing the following instruction:
“It is not unlawful for one person to act as the agent of another in purchasing intoxicating liquors. So that if you should find that the defendant has only acted for, and as the agent of, some person or persons wishing to purchase intoxicating liquors, and that the defendant was given the money with which to pay for the intoxicating liquors desired, and that he simply took the money and delivered it to a person who had intoxicating liquors for sale, and purchased the intoxicating'liquors with the money which had been given him, and then delivered the intoxicating liquors so purchased to the person who gave him the money and who instructed him to purchase the liquors for him, then you can not find the defendant guilty, for such acts would not be in violation of the law.”
Without approving the particular form of the instruction requested, it was sufficient at least to challenge the court’s attention to the only defense upon which the defendant relied, and which found some support in the evidence of the state as well as that of the defendant himself. Since no instruction given by the court touched upon the matter, it was error to refuse to give the instruction requested or some other in its place. In The State v. Cullins, 53 Kan. 100, the syllabus reads:
“The purchaser of intoxicating liquor, which is sold in violation of law., is not a participant with' the seller, and therefore is not guilty as the principal offender.”
A case directly in point is Reed v. State, [Okla. Crim. App. 1909] 103 Pac. 1070, 24 L. R. A., n. s., 268.
The demurrer to the state’s evidence was properly overruled. It is said in volume 23 of the Cyclopedia of Law and Procedure:
“Proof that defendant offered or was requested by another to procure liquor for him, and received the money therefor, and shortly after delivered the liquor to such person, puts the burden on defendant to explain where and from whom he got the liquor, and authorizes a conviction where he gives no explanation or one which the jury believe to be a mere subterfuge.” (p. 256.)
To the same effect is Mack v. The State, 116 Ga. 546.
We think the court unduly restricted the cross-examination of the witnesses for the state in calling for their knowledge and information as to whether the defendant had liquor himself or was to procure it from some one else.
The judgment is reversed and a new trial ordered. | [
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Per Curiam:
The action was brought by the state’ to dissolve the Traders’ Live Stock Exchange of Kansas City, and to enjoin the exchange and its members from violating the antitrust laws of the state. Judgment was rendered for the state, and the defendants appeal. The assignments of error are all based upon the insufficiency of the evidence.
There were two sides to this controversy in the district court and much evidence was introduced to support each one. That court has performed its function of ascertaining and declaring the facts. Its findings are abundantly sustained, and they are approved.
The appellants seek to draw too sharp a distinction between, the association and its members. The exchange is not a corporation. The members in their associate relation constitute the exchange.
It is said that the by-laws on their face, and inter preted by the preamble, disclose no wrongful purpose and do not have the necessary or direct effect of producing violations of the law, as was held in the case of Anderson v. United States, 171 U. S. 604; and it is further said that the court can not look beyond these bylaws to discover the true nature and actual purpose and effect of the organization. All this is to say that the statutes prohibiting trade trusts, combinations and ■conspiracies can be foiled with a set of by-laws; that the courts can not lift the sheep’s skin from the wolf’s head and know the creature. In practice and in fact rule 10 means that so far as possible no one shall be permitted to pursue the business of trading' in stockers •and feeders on the Kansas City market who is not a member of the exchange. The monopoly of ninety per cent of the trade in the largest stocker-and-feeder market of the world by the members of the exchange, and the wrecked business of practically every man and every company promising to attain prominence as an independent trader, prove the efficiency of the rule. True, the rule has another face — innocent, lawful and laudable; but the court declines to stultify itself by xooking upon that side only. The association did not go outside of its rules to enforce boycotts and the like, nor was such action occasioned by individual misinterpretations of the rules. The rules were the recognized basis and authority for those illegal measures.
The fact that approximately ten per cent of the stocker-and-feeder business done at th.e stockyards remains in the hands of outsiders does not take the case ■out of the statute.
Perhaps the volume of business done at the stockyards is not seriously reduced because of the existence" ■of the exchange; but free participation in that business is not merely restricted — it is actually suppressed as to everyone who seems likely to become formidable and who is not a member. The price of a membership is now fixed at $1000. When a partnership engages in trade all the partners must be members (rule 11), and every person employed by a member to buy or sell cattle must also be a member (rule 12).
It is said that the exchange buys nothing and sells nothing. True; but one of the functions of the association is to impose unlawful restrictions upon the full and free pursuit of the business of dealing in stock at the Kansas City yards. It does this as an organization by employing detectives to scent out transactions with outsiders, to warn against such practices and to report them if persisted in, by committee hearings upon such cases, by the .discipline of members, by the enforcement of boycotts, by coalition with the commission men’s exchange and by other means.
In the face of the testimony of Philo S. Harris and the testimony relating to the boycott of Joe Baker — not to mention plenty more — the protestation in the brief that there is no evidence whatever sustaining the seventh finding of fact is a mere lashing of language to an impotent fury.
It is said that the members compete among themselves in the purchase and sale of cattle. True; but they stifle all other competition as far as they can. It is said that they trade with none but outsiders. But how? Through commission men who must confine ■their dealings to the members of the exchange or be boycotted out of business.
The right of an individual to trade or to refuse to trade with whomsoever he pleases and the right of the members of this exchange to associate themselves in good faith for the purpose stated in the preamble of their by-laws are riot involved in this case or in any way infringed by the judgment. It is a vicious combination, conspiracy and trust to monopolize trade, restrict the pursuit of business and prevent competition, which the state has charged and proved, and which the statutes and the judgment condemn.
The foregoing observations are all that seem to be necessary to supplement the written opinion of the Honorable L. C. True, the judge who tried the case.
The district court enjoined the defendants, as individuals and in their associated capacity as the Traders’ Live Stock Exchange, from pursuing the illegal practices of which they were found guilty, and also dissolved the exchange. A plea is made against the dissolution of the exchange, based upon the genuine public service which it is capable of rendering and which it does in fact render at the Kansas City livestock market. The value of this service is not disputed. The trouble is that these traders have never been able to resist the temptation to grasp the reins of the market and sit in the seat of monopoly. If the rules of the exchange, particularly rule 10, were modified, and the functions of the organization were confined strictly within their legitimate field, there would be no occasion for a j udgment of dissolution. If, however, it can not operate without curtailing the full, free and fair diffusion of the benefits and opportunities of the Kansas City market, it ought to be dissolved.
The findings of fact are before this court and it has the power to render such judgment as justice to the state and to the defendants requires. Under the circumstances the following order will probably best meet the situation: The judgment of the district court, so-far as it enjoins the defendants individually and enjoins the exchange itself from the illegal practices stated in the findings, is affirmed, the state to recover all the costs of the case. The judgment of the district court dissolving the exchange is stayed until the further order of this court. Jurisdiction of this branch of the case is retained for the present. At some future time it may be brought upon the docket by either the plaintiff or the defendants for final disposition. The court will then exercise its discretion in the additional light afforded by any showing which may then be made. | [
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The opinion of the court was delivered by
Benson J.:
The only question for decision in this case is whether in an action brought by the state to enjoin the maintenance of a nuisance the state is required to advance the fees of witnesses in order to have compulsory process to enforce their attendance, the witnesses having. demanded their fees when served with a subpena.
A statute provides that witnesses may demand such fees, and, if not paid, shall not be obliged to obey the subpena. (Code 1909, § 327.) This provision does not apply to criminal prosecutions, and it is contended that it does not apply to a civil action like the present, brought by the state, under the prohibitory law (Laws 1903, ch. 338, § 1, Gen. Stat. 1909, § 4388) and the civil code (Code 1909, § 265).
While the language of the statute permitting disobedience of the subpena when fees are demanded and are not paid is broad enough to include all civil cases, consideration must be given to other provisions of the code and the. reason and effect of the privilege in determining its application.
The state is exempt from the requirement resting upon suitors generally to give security for costs. (Code 1909, § 606.) In obtaining injunctions, as in the present case, a bond is not required (Laws 1903, ch. 338, § 1, Gen. Stat. 1909, § 4388), and it is held by this court that the state is not required to give a bond in obtaining injunctions in other actions when it sues in its sovereign capacity. (Clay Center v. Williamson, 79 Kan. 485.) It was said in the opinion cited:
“It would require a most unreasonable construction ■of section 242 of the code [Code 1909, § 254] to presume an intention on the part of the legislature to place a limitation on the exercise by the state of its sovereign power.” (p. 490.)
It is also held that the general language of statutes will be limited to such persons and subjects as it is reasonable to presume the legislature intended. (The State v. Smiley, 65 Kan. 240.) It is a general rule that statutes limiting rights or interests will not be interpreted to include the sovereign power, unless it be expressly named or intended by necessary implication. (The State v. Book Co., 69 Kan. 1.)
Applying these principles to the statute in question, it must be held that the state in this action, expressly authorized as it is by statute and conducted by an assistant attorney-general, was not required to advance witness fees. Such a requirement would not only be unreasonable, but very difficult to comply with. Certainly the attorney-general should not be required to advance such fees. The performance of a duty required by law should not be accompanied by such a burden, and the citizen summoned as a witness should not be allowed to obstruct the administration of justice by such a demand. A fair interpretation of the statute in the light of well-settled principles obviates such unjust consequences.
The court erred in refusing the allowance of compulsory process against the defaulting witnesses. The order appealed from is reversed and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Porter, J.:
E. P. Riggle appeals from a judgment rendered against him for the amount of a promissory note. The case was tried to the court, and findings of fact were made from which it appears that Riggle and Charley E. Sullenger were partners as butchers, handling and selling meats of various kinds at Toronto, in Woodson county. The business of the firm was carried on under the name of Riggle & Sullenger. Riggle lived in Greenwood county. Sullenger lived at Toronto, and had the management and control of the business. On the 9th day of November, 1907, Sullenger went to the plaintiff and told him that the firm owed a number of bills and needed money, and borrowed from the plaintiff $60, giving a note for the amount signed by himself and wife and a chattel mortgage on personal property as security. In borrowing the money Sullenger was acting as the manager of the firm, and the plaintiff understood that he was loaning the money to Riggle & Sullenger. The proceeds were applied to the payment of indebtedness of the firm. Two days later Sullenger procured another loan of $75 from the plaintiff, under the same circumstances. A note for the amount was signed by Sullenger and wife, who gave as security another chattel mortgage. On the 4th day of December the partnership was dissolved, but the business was unsettled and the firm owed a number of debts. On the 9th day of December Sullenger borrowed $100 from the plaintiff, for the purpose of paying.debts of the firm, and the first two notes were canceled and a new note was given for $235, the amount of the three loans. This note and a chattel mortgage on some horses were likewise signed by Sullenger and wife. At the time the several sums were loaned by the plaintiff he knew that Riggle & Sullenger were partners, that Sullenger was in the active control of the business, and he knew from reputation that Riggle was financially responsible. Whether he was aware at the time the last loan was made that the firm had dissolved does not appear.
This action was brought against both members of the firm for the amount of the note and to foreclose the chattel mortgage. There were averments in the petition that Riggle had converted the property to his own use. An answer was filed by Riggle denying under oath the existence of the partnership and any authority on the part of Sullenger to bind him by executing the notes. The court found that the property covered by the mortgage belonged individually to Riggle, and that Sullenger had no authority to mortgage the same, and therefore no judgment was rendered affecting the property; but the court gave judgment against both defendants for the amount due on the note, holding that the debt was a partnership one and that each member of the firm was liable therefor.
Among the errors assigned is the denial of a motion to require the plaintiff to set forth the nature of the authority of Sullenger to execute the note. This was rightly denied for two reasons: (1) The petition alleged that Sullenger was in the active management and control of the business of the firm; (2) the action is not brought alone upon the note, but to recover the money loaned to the firm. The fact of the partnership having been established, it was not necessary to show special authority of one partner to'bind the firm by his contract. Partners are principals in every transaction of the firm, and any act done by one partner within the actual scope of the agency conferred upon him is binding upon the firm. The presumption always is that the partner was intended to have authority to bind the firm by all acts necessary to carry on the business in the usual way. (22 A. & E. Encycl. of L. 137.) A partner has.actual authority to that extent. (Lemon v. Fox, 21 Kan. 152.) In trading and commercial partnerships it is a general principle that each partner is the lawful agent of the partnership in all matters within the scope of the business. (Deitz v. Regnier, 27 Kan. 94; Horn v. Newton City Bank, 32 Kan. 518, 522.)
It is claimed in the appellee’s brief that the action was brought upon the authority of Fair v. Bank, 9 Kan. App. 779, and is not an action upon the note but one to recover the consideration thereof. We. think the averments of the petition are broad enough to authorize a recovery upon the consideration of the note. The syllabus in the case relied upon (Fair v. Bank, supra) reads as follows:
“While negotiable paper made in the name of one partner, when his name is not also that of the firm, is not ordinarily binding upon the partnership, yet such paper, taken when the obligation was incurred by the partnership and upon its credit, will be regarded as merely collateral, and the other partner will be held liable upon the original consideration.”
This court denied a petition to certify that case on appeal, and it stands as declaratory of the law. The doctrine upon which it rests seems to be firmly established by the great weight of authority. (Hoeflinger v. Wells, 47 Wis. 628; Savings Bank v. Butler Estate, 98 Mich. 381; Beckwith v. Mace, 140 Mich. 157; Carter v. Mitchell, Ass’ee, 94 Ky. 261; Williams v. Donaghe’s, ex’or, 1 Rand. [Va.] 300; Maffet v. Leuckel, 93 Pa. St. 468; Smith v. Collins, 115 Mass. 388; Folk & Smith v. Wilson, 21 Md. 538; Barcroft, Beaver & Co. et als. v. Snodgrass et als., 41 Tenn. 430; Annis et al. v. Lowes, 5 U. C. Q. B., o. s., 198; Story, Part., 7th ed., § 155; 4 A. & E. Encycl. of L. 180.)
The rule is otherwise where it appears that the money was advanced on the personal credit of the individual partner. (Farmers’ Bk. of Mo. v. Bayliss et als., 41 Mo. 274.) The mere taking of such note or security from a single partner will not of itself discharge the firm’s indebtedness. There must be either an agree-, ment to such effect or facts sufficient to warrant the inference that the parties intended that the partnership debt should be discharged. (Bonnell v. Chamberlin, 26 Conn. 487; Eaton & Gilbert, Com. Paper, § 30; Parsons, Part., 4th ed., § 138.)
In order to render the partnership liable in case of an ordinary written contract it is not essential that the name of the firm or partnership be mentioned in the writing. In the recent case of Marks v. Chumos, 82 Kan. 562, one of two partners entered ihto a contract in writing for the lease of a building for the benefit of the firm, and although the contract was made only in the name of one and signed by him alone as lessee, the partners having entered into the leased property and occupied it for a time, it was held that the lease was the written contract of both partners.
Of course, the taking of the individual note of one partner would on its face show that the money was not loaned to the firm and that the sole credit was given to the individual; but it would not be conclusive of that fact, and, upon proof sufficient to warrant a finding that, the money in fact was borrowed on the credit of the' firm and that the firm received the consideration, the; note will be held as merely collateral and the partnership will be liable in an action to recover the consideration.
Applying these well-recognized principles to the case at bar, the plaintiff was entitled to recover in this action as for money loaned the partnership. It is apparent, however, that the court actually rendered judgment against the appellant upon the $235 note, allowing interest from the date of the note at the rate •of ten per cent per annum, which was the rate provided for in the note. The plaintiff was only entitled to interest at the rate of six per cent on the amount borrowed. This slight error in the judgment can readily be corrected.
Since the note was only collateral, and the action •can be maintained to recover the consideration, it is of no importance that the note was executed five days after the actual dissolution of the partnership. Although the firm had been dissolved and had ceased to do business, it was still a copartnership for the purpose of settling its debts. (22 A. & E. Encycl. of L. 177 and cases cited in note 3.) The court found on sufficient evidence that the proceeds of the note were used by'the firm in payment of indebtedness of the copartnership, and every principle of justice requires that both partners be held liable for the money so bor.rowed and applied upon the debts of the firm.
It is claimed that the court erred in permitting the plaintiff to testify that at the time he made the loan he had heard that Riggle was financially responsible. It is insisted that this was hearsay. If the question had been asked in proof of the fact that Riggle was financially responsible the evidence would have been hearsay; but such was not the purpose of the question, which was to establish the fact that the plaintiff relied upon what he had heard as to the financial responsibility of Riggle. The fact to which the witness testified was original evidence, not hearsay. (Kaufman v. Springer, 38 Kan. 730; Bank v. Hutchinson, 62 Kan. 9.)
Since the evidence fully sustained the findings, the demurrer to the evidence was rightly overruled, as well as the motion to vacate certain of the findings. There was no error in refusing to compel the plaintiff to elect upon which cause of action he would rely, since only one action was stated, although it was for the recovery of a debt and the foreclosure of a chattel mortgage to secure it.
The judgment is modified and the court directed to enter judgment for the plaintiff for the amount of the note, together with six per cent interest. . | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal involves the right and power of the board of education of a city of the second •class to attach territory to the city for school purposes which adjoins the city school district but does not adjoin the corporate limits of the city. It appears that some time ago territory adjoining the city was attached to, and "made a part of, the city school district, and when the board of education undertook to attach a small tract of territory lying alongside of that previously annexed the question of the power of the board was raised. This tract, which adjoined the school district, was only one-fourth of a mile from the city limits, and the trial court made a'finding that “the distance from the city is such that pupils of school age residing thereon can easily reach and conveniently attend the public schools in said city.” The statute authorizing the annexation provides that “territory outside the city limits, but adjacent thereto, may be attached to such city for school purposes, upon application to the board of education of such city by a majority of the electors of such adjacent territory,” etc. (Laws 1903, ch. 324, § 1, Gen. Stat. 1909, § 7594.)
What does the word “adjacent” mean, as used in this statute? In the case of The State, ex rel., v. Kansas City, 50 Kan. 508, a statute authorizing the consolidation of adjacent cities was under consideration, and it was held that it was not essential that the cities proposed to be united should adjoin each other, but that “it is enough if they were ‘adjacent’; .and that term has been defined as lying near to, but not actually touching. Webster’s Unabridged Dictionary.” (p. 522.) In volume 1 of the Cyclopedia of Law and Procedure, at page 764, the term is defined as “lying close or near to; neighboring.” In volume 1 of the American and English Encyclopaedia of Law, at page 633, it is said that “adjacent has been defined as lying near to but not actually touching, in the vicinity or neighborhood of. The term, however, is sometimes used as synonymous with ‘adjoining.’ ” In an act of congress giving railroad companies a right of way through public lands it was provided that they might take timber, stone and other building material from lands adjacent to their line of road, and the supreme court of the United States held that it should be treated as land lying close at hand, but that it need not be adjoining or actually contiguous, and the interpretation of the act by the secretary of the interior to the effect that material might be taken from the tier of sections through which the right of way ex tends and also that it might be taken from an additional tier of sections on either side was approved. It was said:
“If the word ‘adjoining’ had been used instead of ‘adjacent,’ those sections touching the line of the road could be regarded as the adjoining lands, and when the word ‘adjacent’ instead of ‘adjoining’ is used, it might, not unnaturally, be said to include the next tier of sections away from the line of the road.” (United States v. St. Anthony R. R. Co., 192 U. S. 524, 538.)
In C. & N. W. Ry. Co. v. Mechanics’ Inst., 239 Ill. 197, the supreme court of Illinois held that in a provision giving a railway company power to condemn adjacent land for the enlargement of terminal facilities the word “adjacent” should be construed to mean lying near, — neighboring but not necessarily in contact. In Camp Hill Borough, 142 Pa. St. 511, there was an interpretation of a statute which provided that adjacent lands might be annexed to 'a borough, and it was held that the word “adjacent” was used in the sense of adjoining or contiguous. It was also held, however, that a number of contiguous properties might be annexed in a proceeding though some of them did not adjoin the borough. The term has been variously defined by the courts, some of which have held it to be synonymous, with adjoining, abutting, contiguous, bordering, neighboring, and close, the meaning being determinable principally by the context in which it is used and the facts of each particular case. (1 Words & Ph. Jud. Def. p. 184.) It has no arbitrary definition, but its meaning depends largely upon the subject matter to which it is to be applied and the object which the legislature is seeking to carry out. The manifest purpose of the legislature in providing for the annexation of outside-territory was that those living beyond the city limits, but sufficiently near to avail themselves of the privileges of the city schools, might, by paying their proportion of the city taxes, have the benefit of the city schools. Upon a majority petition of the electors so situated the board of education is given authority to annex territory to the district. It is adjacency instead of contiguity or actual contact which constitutes the test or determines the right to annexation. It is not* nearness alone, but it is in part whether those outside can conveniently attend the schools. That the term was not treated as synonymous with adjoining and contiguous is suggested by the use of the word “contiguous” in the latter part of the act, where it provides that outside territory when annexed shall be attached to a contiguous ward for election purposes. If the territory proposed to be attached had been included with that first attached, no question could have arisen as to the power of the board to make it a part of the city district; and it is hard to see why territory which might have been brought into the district by a single annexation may not be incorporated in two annexations, when the" conditions warranting it arise. In view of the provision that the added territory shall be attached to the contiguous ward, it is reasonably clear that the legislature intended that when the annexations are made the district shall be of compact territory, but that the board in its discretion may attach territory from time to time upon proper petition, where there are sufficient school facilities and where the territory upon which those applying to come in is adjacent — that is, sufficiently near to the schools so that those brought within the district may conveniently enjoy the benefits of the city schools.
It is suggested that the application for annexation was insufficient, but apparently that question was not raised nor decided in the district court. It is expressly found by that court to have been conceded that the only question for determination was whether upon a petition conforming in all respects with the requirements of the law the board of education had the power to make the territory in question a part of the district. Only such questions as have been raised and decided in the trial court'are open for review here. (Byington v. Comm’rs of Saline Co., 37 Kan. 654.)
The question presented appears to have been correctly decided by the trial court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff and defendant J. W. Bricker entered into a written agreement for the purchase and sale of a farm in Cowley county. The consideration was $35,200. The plaintiff deposited in the bank $1000, which was to be paid to Bricker provided he should, within a specified time, deliver to the plaintiff a warranty deed for the real estate, “with a good and merchantable abstract of title to the same,” when the plaintiff was to pay the balance of the purchase money. Alleging that Bricker had failed to furnish such title, the plaintiff brought this action against him and the bank to recover the $1000. Bricker answered with a general denial, and a cross-petition alleging that he had fully complied with the terms of the contract, that the land thereafter depreciated in market value $10 an acre, and asked damages in the sum of $3200 against the plaintiff for breach of the contract. There was a trial to the court and a finding that the title tendered was a good, merchantable one, that the averments in the cross-petition were true, and that the plaintiff had forfeited the $1000 paid; and the court rendered a judgment against him for $3200 damages and for costs. For obvious reasons the plaintiff was dissatisfied with the result of the litigation and brings the case here for review. .
The only question we have to determine is whether Bricker tendered to the plaintiff a merchantable title. The land originally belonged to Charles Louis Wiltberger. He died leaving a will, which was duly probated, and by the terms of which he devised to his wife, Emorette A. Wiltberger, a life estate in all his property, and provided that after her death the property should be equally divided among his four children, Walter, Ella, Frank L. and Dora A. Wiltberger. The will then directed as follows:
“If any of my children shall die before my wife, Emorette A. Wiltberger, then it is my will that the share which should go to my deceased child or children, if living, shall be divided among his or her children in equal parts; and if any of said children shall die without issue, prior to the death of my said wife, then it is my will that his or her share shall be divided equally among my children then living, or if any of them be deád, then, his or her share, equally among her children.”
. After the death of Charles Louis Wiltberger his widow and the four children named in the will conveyed the land in question by warranty deed to defendant Bricker, and his title rests upon the will and this conveyance. The widow is still living. Subsequent to the execution of the deed Frank L. Wiltberger died, leaving surviving him two minor children, and the doubt or menace to the title, if any exists, arises by reason of the possible claim that these children, at the death of their father before that of the widow, took the title which would have vested in him if he had survived the widow, and also the possibility of similar claims in the future by the children of Walter, Ella and Dora Wiltberger in the event they or any of them die before the widow, leaving children.
Bricker concedes that the only question is whether the title was merchantable, but insists that whether or not it is so is always a question of law and not of fact, and that the only way by which this controversy can be rightly determined is by an examination of the will in question and a determination by the court in this action as to whether under the will the fee to the lands in question vested in the four children of the testator at the time of his death. If it did, counsel say the title is merchantable and the judgment must stand. Such is not our understanding of the law which must control this case. Whether the title is merchantable depends upon whether it is free from reasonable doubt. In McNutt v. Nellans, 82 Kan. 424, it was said:
“In determining whether a title is so doubtful that equity will refuse to compel a purchaser to accept it the court is not required to pass upon the validity of the title itself; the parties whose possible claims may affect the title are not before the court, and no judgment which the court could render would bind them. . . . A marketable title in equity is one in which there is no doubt involved, either as to matter of law or fact. (Maupin Mark. Title to Real Estate, 2 ed., ch. 31; Herman v. Somers et al., Appellants, 158 Pa. St. 424; Fleming et al. v. Burnham et al., 100 N. Y. 1; Vought et al. v. Williams, 120 N. Y. 253.)” (p. 428.)
The same rule applies where the question of the sufficiency of the title is raised in an action for specific per formance, for the reason that the distinction which formerly prevailed between courts of law and equity with respect to marketable titles no longer exists. The same grounds which would justify a court of equity in refusing to compel the vendee to accept the title will now support a judgment to recover back the purchase money paid. (Ladd v. Weiskopf, 62 Minn. 29; Moore v. Williams, 115 N. Y. 586; Howe v. Coates, 90 Minn. 508.)
“It is a great, though perhaps a common, mistake to suppose that a doubtful title can be made marketable by an opinion of a court on a case stated between vendor and vendee.” (Pratt v. Eby, 67 Pa. St. 896, 404.)
In Townshend v. Goodfellow, 40 Minn. 312, it was said:
“It is not necessary that the title be shown to be bad, nor is it enough, even, that the court may on the whole consider it good, if there be doubt or uncertainty about it sufficient to form the basis of litigation; for if there be a doubt it can not be thrown upon the purchaser to contest that doubt. . . . The devisees, including infant heirs, are not parties, and would not be bound by the judgment of the court in this case.” (pp. 316, 319.)
In his classification of cases in which the title will be held doubtful, Maupin, in section 284 of the second edition of his work on Marketable Title to Real Estate, enumerates these cases:
“(1) Where the probability of litigation ensuing against the purchaser in respect of the matter in doubt is considerable; or, as it was put by Alderson, B., where there is a ‘reasonable decent probability of litigation.’ The court, to use a favorite expression, will not compel the purchaser to buy a lawsuit. If there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the title will be deemed unmarketable.
“ (4) Where the title depends on the construction and legal operation of some ill-expressed and inartificial instrument, and the court holds the conclusion it arrives at to be open to reasonable doubt in some other court. Generally, it may be said that the opinion of the court upon any question of law on which the title depends will not render the title marketable if the court thinks that another judge or other competent person might entertain a different opinion upon the same question. The test as to whether a title is doubtful or not upon a question of law has been held to be the certain conviction of the court, in deciding the point, that no other judge would take a different view.”
Authorities might be multiplied to show that the rule is well established that the title tendered need not in fact be bad in order to make it unmarketable or non-merchantable. The question is whether a reasonably prudent man, familiar with the facts and apprised of the question of law involved, would accept such a title in the ordinary course of business.
The will of Louis Wiltberger clearly expressed the purpose that his widow should take a life estate in the real property in question, that at her death it should pass to such of his four children as should then be living and to the children of any of the four who had died, the grandchildren to take collectively the shares that would have gone to their respective parents. After the death of the testator his widow and his four children united in a warranty deed to J. W. Bricker, and the question involved is whether this deed conveyed a perfect and merchantable title. When the deed was made the widow had a life estate, the four children a vested remainder (subject to be devested by their dying before the life estate ended), and the children of these children (there were at least two of them then in being) a contingent remainder. Defendant Bricker contends that the general doctrine of Bunting v. Speek, 41 Kan. 424, controls, although the language of the will there construed differs materially from that of the will in this case; that, under the terms of this will,-upon the death of the testator the fee title to the lands vested in the four children of the testator, subject to the life es tate of the widow, and subject to being devested by their death before the widow, leaving children surviving them; that the limitation over to the children of the children, depending as it does upon an event which may or may not happen, can not have the effect to retard the vesting of the fee in the children of the testator. It is claimed therefore that with the execution of the deed the life estate and the vested remainder united in the same person, and therefore merged, and that the contingent remainder then expired because there was no longer a life estate to which it could attach. This result would doubtless follow where the unmodified common law prevails. (16 Cyc. 656; 24 A. & E. Encycl. of L. 413.) It might, however, be seriously questioned whether it follows in Kansas, for this reason, among others: Here the union of two estates in one person does not necessarily result in a merger. (Loan Association v. Insurance Co., 74 Kan. 272; Shattuck v. Bank, 63 Kan. 443.) The merging of two estates by their union in a single individual is purely a matter of theory. The two estates are conceived as remaining separate whenever that view is to the advantage of their holder. There is the more reason that they should be kept apart when their merger would operate to the prejudice of one who is not a party to the transaction.
“At law, the rule that whenever a greater estate and a less coincide in the same person, without, any intermediate estate, the lesser is merged, is invariable and inflexible. In equity, the rules of law as to merger are not followed, and the doctrine of merger is not favored. Equity will prevent or permit a merger as will best subserve the purposes of justice and the actual and just intent of the parties. Whenever a merger would operate inequitably it will be prevented. ... In equity the merger will be prevented whenever necessary to protect the rights of an innocent third party, or of the person in whom the estates meet.” (16 Cyc. 665, 668.)
“In equity the legal rule of merger is not regarded as inflexible, and the question whether the doctrine of merger will be applied or not is determined by the intention of the party in whom the estates unite, provided that his intention shall not be enforced to perpetrate fraud or wrong. . . . The equitable doctrine has superseded the legal doctrine almost entirely at this ■day; for in England the equitable doctrine controls in courts of law by statute; while in many of the United .States equitable remedies can be had in courts of law.” (20 A. & E. Encyl. of L. 590, 591.)
“Merger takes place when a greater and a less estate come together in the same person, and when there is no reason for their longer existence as separate estates. The doctrine has its foundation in the convenience of the parties interested, and therefore whenever the rights of strangers, not parties to the act that would ■otherwise work an extinguishment of the particular estate, require it, the two estates will still have a separate •continuance in contemplation of law.” (Moore v. Luce, 29 Pa. St. 260, 263.)
It might well be argued that a merger ought not to ■be allowed in this case because it would defeat the purposes of the testator and deprive his grandchildren of their rights under the will. Since, however, no decision we could render would bind those whose possible •claims may affect the title, and any opinion we might •express would be merely obiter, it is unnecessary to pass upon the question of law upon which the suffi-ciency of the title depends. • Enough has been said to •demonstrate that the question is one upon which other •courts might entertain a different opinion, and that, of itself, is a sufficient reason for holding the title tendered unmarketable.
The judgment is reversed, with directions to proceed in accordance with these views. | [
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Per Curiam:
The appellees have made no claim to the whole estate. They have all the time acknowledged themselves to be cotenants with Rhodes. The case of Horner v. Ellis, 75 Kan. 675, was well decided, and is controlling here.
There is nothing in the facts to impeach the good faith' of the consideration- of the appellees’ quitclaim deeds. They were for fractional interests. Those interests were subject in any event to a large tax lien, and perhaps they had been extinguished by the tax proceeding. The appellees were not obliged under the circumstances to interrogate their grantors respecting the existence of a will, which, if there were one, should have been recorded years before. (Eger v. Brown, 77 Kan. 510.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action to recover damages for personal injuries received by the plaintiff'while engaged as an employee in the coal mine of the defendant company. The trial was had in the district court of Leavenworth county, where a demurrer to the evidence of the plaintiff was sustained, and he brings the case here. While the plaintiff was at work the roof of his room fell upon him and inflicted serious injuries. In that mine the roof is composed of slate and loose stone, which, unless securely propped, are liable to fall and injure the miners. The roof is propped with timbers ■cut the proper length and size, which the miners place under the roof to hold it in position. These props are placed within convenient reach of the miner, so that he ■can get them and put them in proper place, when needed, without unreasonable loss of time. At the time of the injury and for several years prior thereto there was a statute for the purpose of regulating the ■operation of mines and prescribing the duty of the operators in regard to the protection of employees. This ■statute reads, in part, as follows:
“In order to better secure the proper ventilation of ■every coal mine and promote the health and safety of the persons employed therein, the owner, agent or 'operator shall employ a competent and practical inside overseer, to be called 'mining boss,’ who shall keep a ■careful watch over the ventilating apparatus, the airways, travelingways, pumps and pump timbers and drainage, and shall see that as the miners advance their •excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways. . . . And every mine shall be supplied with sufficient prop timber of suitable length and size for the places where it is to be used, and kept in easy access to.
“For any injury to person or property occasioned by any violation of this act, or any willful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action against the party at default shall accrue to the party injured for the direct damage sustained thereby; and, in any case of loss of life by reason of such violation or willful failure, a right of action against the party at fault shall accrue to the widow and lineal heirs of the person whose life shall be lost for like recovery of damages for the injury they shall have sustained.” (Laws 1883, ch. 117, §§ 6, 12, Gen. Stat. 1909, §§ 4987, 4992.)
The petition contained the following allegations of negligence:
“And then and there willfully, wrongfully, carelessly and negligently failed to provide the said coal mine, and the roofing of the said coal mine, and this plaintiff, with sufficient prop timber of suitable length and size.for the place where the plaintiff was to use the same, and to keep such prop timber in easy access to for the use, safety and care of this plaintiff.”
The coal shaft was from 700 to 800 feet deep. About 150 miners were at work in the mine. The mines were so extensive that an underground “boss” was necessary to see that the requirements of the law were obeyed. Among these requirements was the one that the,men mining coal should be supplied with props such as were suitable and sufficient in kind, and easy of access. Whether this requirement was complied with was manifestly a question of fact, and should have been submitted to the jury. It was error to decide it upon a demurrer to the evidence. It can not be said that there was no evidence tending to support the allegations of the petition. The plaintiff repeatedly requested the “boss” to furnish props, which was not done. There was abundant evidence upon which this question might have been submitted to a jury.
The question of willfulness, as. presented here, was also a question of fact. The cases are not entirely harmonious as to what the word “willfully,” as used in the statute, means, and it does not appear what view the trial court took, and we therefore "do not express an opinion upon it; but because of the error already mentioned the judgment of the district court is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Benson, J.:
This action is in ejectment to recover eighty acres of land. The controversy is between C. L. Arnold, the plaintiff, and Matilda Arnold, his mother. This tract was school land, for which a certificate was. .issued in the year 1881, which was assigned to J. G. Arnold, the father of the plaintiff, in the year 1887. He occupied the land with his family until an action for divorce was commenced by his wife, Matilda, in which a., judgment was rendered on June 8, 1889, as follows:
“That the plaintiff be and is hereby divorced from the' said defendant and that she do have the complete, absolute and full control of said minor children during-.their minority, and that the legal title to said above-described homestead real estate be vested in the plaintiff in trust for and to the use and benefit of said children and any that may be hereafter born unto the plaintiff' and defendant, or the survivors of them, until the youngest of said children of the survivor shall come to the age of maturity, to be held and used as the home of the-plaintiff and the said children until said children or the youngest survivor of them shall come to his majority; and it is further ordered that said plaintiff do have all of' the aforesaid personal property, including all growing-crops on said farm, and that plaintiff do have the control of the contract of purchase of said land, and is authorized to perfect and complete the said purchase.”'
The judgment also provided that J. G. Arnold should pay the taxes on the land.
After the divorce Mrs. Arnold and her children continued to reside upon the land as their home. • She still, occupies it with two of her children, all of whom became of full age before this action was commenced. She has. made nine payments to the state, of $8.64 each, on the land, paid taxes for four years, amounting to $57.02, and has made improvements upon the land. On January 30, 1901, J. G. Arnold paid the balance due on the certificate, and a patent was then issued to him, and he afterward claimed to be the owner of the land. In consequence of this claim Mrs. Arnold wrote to her son, the plaintiff, the following letter:
“Marion, Kan., February 1, 1909.
“Dear Less : As I wrote you a few days ago, I will not write much this time. I hope you are all well. We are well except colds. We had the worst blizzard Friday of snow and dirt. It has been pretty cold to-day and yesterday, but is growing warmer this evening. Ruth and Ellery have gone to church to Youngstown this evening. I am alone, and thought I would write you a few lines to pass- off the time. The snow looks like large banks of dirt. I expect we will have some bad roads when this snow leaves. I did not go to Sunday school to-day. I thought it pretty cold to go out.
“Well, Less, this business concerning the home here will soon have to be settled. I am going to give your pa his choice, one way or the other, to come to settlement. I don’t know anything of his whereabouts and take this plan in sending this word in writing to you. If $1100 will satisfy him, I will give that amount; $1100 was what we paid for the eighty. Let me know and hear from you what he says about it. I put $1200 improvements on the place, and will fight for my rights if settled by law. So let me hear soon.
“With love to Georgia and little ones,
Your Mother.”
After receiving this letter the plaintiff had an interview with his mother concerning the matter, and thereupon he made an arrangement with his father for 'a conveyance of the land for $900, paying $100 down, and then entered into an agreement with his mother as follows:
“Marion, Kan., February 13, 1909.
“Contract — Charles L. Arnold and Matilda Arnold.
“This agreement, entered into this 13th day of February, 1909, by and between mother and son, as follows:
“Charles L. Arnold of Winfield, Kan., of the first part, hereby covenants and agrees to procure from his father, J. G. Arnold, an abstract of title and a quitclaim deed to the S. y% S. W. *4 (south half southwest quarter) of section thirty-six (36), township nineteen (19), range four (4) east of the sixth principal meridian, containing eighty acres more or less according to the U. S. government survey.
“And after such acquirement, to then in turn furnish said abstract and a quitclaim deed to said property to his mother, Mrs. Matilda Arnold.
“The consideration of this quitclaim deed from Charles L. Arnold and wife to his said mother, Mrs. Matilda Arnold, is eleven hundred dollars, to wit, one hundred dollars upon the execution of this contract and one thousand dollars upon the delivery to said Mrs. Matilda Arnold of the quitclaim deed to said south half southwest quarter of section thirty-six, township nineteen, range four, in Marion county, Kansas.
“It is distinctly understood that these transactions are for the sole purpose of transferring the father’s interest in this land and vesting it in the mother, without affecting in any degree the interest of this son as an heir. • C. L. Arnold,
' Mrs. Matilda Arnold.”
After this agreement had been made the plaintiff obtained from J. G. Arnold, his father, a conveyance to himself of the land in question for a consideration of $900, and at the same time a previous agreement for the support of the father by the son in consideration of a conveyance of forty acres of this land, which had been made on February 2,1901, was canceled. Afterward the plaintiff and his wife executed a conveyance of this eighty-acre tract to the defendant, Matilda Arnold, ex. pressing a consideration of $1100, and offered to deliver it to her on payment by her of $1000, the balance of the sum named in the contract. Mrs. Arnold refused to accept the deed or make the payment, and appears to have repudiated the contract.
Mrs. Arnold testified that her son had offered her the deed and that she did not accept it because “it was all a false pretense.” She further said:
“Ques. What was your purpose in carrying on these negotiations with your son? Ans. For the purpose of compromising the matter in settlement.
“Q. What is the fact in regard to your husband; has he been claiming all these years that he still owned the land ? A. Yes, sir; he has claimed it all these years, and tried to get it from me for several years.
“Q. State whether there has been a controversy between you and your husband ever since the divorce was granted? A. Yes, sir; he claimed it was all his.
“Q. What did you claim? A. That I had a right there and that it belonged to me.
“Q. What was the object of this controversy between you and your son? A. For the purpose of settling and stopping all controversy between us about it.”
Matilda Arnold claimed to own the land under the decree. J. G. Arnold claimed to own it under the certificate of purchase and the patent. It appears that Mrs. Arnold desired to have the controversy settled, and for that purpose entered into the contract with her son, who obtained the title accordingly; The contention of the defendant now is that the land was hers absolutely by the terms of the decree of divorce. The claim of J. G. Arnold was that she held it in trust until the youngest child became of age, and that all her interest terminated at that time. The language of the decree is clear and leaves no room for construction; it vests the legal title in her as trustee for the use and benefit of the children until the youngest shall come to the age of maturity, to be used as a home for her and her children until that time. The trust, the use and the limitation are clearly stated. It is said that this was an inequitable provision for the wife, who had the burden of supporting the family, but the court on the trial of this action could not reexamine the equities of a decree made more than twenty years before, in which both parties had acquiesced and under which the defendant now claims, and of course did not attempt to do so, but construed the decree as vesting the fee in Mrs. Arnold. There was in any event a substantial controversy between the defendant and her former husband as to the legal effect of the decree. In this situation the defendant sought the aid of her- son to effect a settlement. He proceeded to do as requested, and so far as the evidence shows carried out the agreement with his mother. He paid $900 to his father! and obtained the title, as he had agreed. It may be that he is not entitled to more than he actually paid, but that is a matter that should be determined in a further proceeding.
The judgment given for the defendant must be reversed, but, in view of the fact that the plaintiff acted as agent for his mother in procuring the title from his father, judgment can not be entered in his favor for the recovery of the land; nor should he be left without relief, but should have whatever is found to be equitably due to him upon the delivery of a proper conveyance to his mother. If the amount found to be due to the plaintiff is not paid at a time to be fixed he should have a lien upon the land therefor, to be enforced by sale in the usual way. That all the rights and equities of the parties may be fully adjusted, leave should be given to amend pleadings if found necessary.
The judgment is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Benson, J.:
This is an appeal by Hudson and wife from a judgment for the specific performance of' an .agreement to convey land. In the year 1902 Patrick, a real-estate and collection agent at Santa Fe, in Haskell county, sold land to Hudson, a lawyer, living in Missouri, and afterward sold one of the tracts to another party for Hudson, as his agent. In the same year Hudson bought lands in Haskell county at tax sales, and, following this, Patrick made collections from time to time of redemption money and purchased other tax-sale certificates for him, and sold county warrants to him. Considerable correspondence followed between them relating to these matters, and relating to a proposed purchase by them jointly of forty quarter sections of land, which, however, was not made. In the year 1905, while this business and correspondence was still in progress, P. A. Logsdon entered into partner ship with Patrick and the firm continued the business. Logsdon was the owner of a pasture which included a large number of tracts held by Patrick & Logsdon under tax titles and otherwise, taken and held in the name of James A. Hill, for their use. In the year 1906 Patrick & Logsdon purchased a quarter section — the subject of this action — which was included in this pasture, and upon which Hudson held a tax deed, taking a conveyance to Hill. Mr. Logsdon then wrote to Hudson, informing him that he (Logsdon) owned the land, that it was in his pasture, offering to redeem from the tax deed, and asking for a quitclaim deed. Several letters were written by them on this subject, and a suit was commenced by Logsdon to redeem from the tax deed. Hudson then took counsel to determine whether he should make the deed. Following the advice thus obtained he wrote to Logsdon, on September 15, 1906, a letter, too long to be inserted here, saying in substance that it was the duty of Patrick, as his agent, to buy in the outstanding title for him; that Logsdon, as a partner of Patrick, had no better right to hold the land against him than Patrick had; complaining that the circumstances of the purchase had been concealed from him, and adding:
“And I am further convinced that if all the facts were laid bare you would be defeated in a shit contesting the title to this land. I have decided, however, acting on the advice above referred to, to accept my money and a bonus of $5 offered by you. I have footed up the interest and expenses and it amounts to $66.76, a statement of which I enclose you. As I understand your law, my investment bears 12 per cent interest from the date of my deed; $33.65 of this amount was paid for your tax certificates. The following statement shows the items composing my expenses in this matter, to wit:
“Paid for tax deed....................... $10 21
“ county clerk fees................... 1 10
“ recording deed..................... 1 25
“ to redeem Logsdon tax certificate..... 33 65
“ taxes for year 1905................. 8 65
Interest since deed was issued, at 12 % on
$56.84 ............................... 6 90
Bonus offered .......................... 5 00
$66 76
“If you are satisfied, send draft for $66.76 and I will deliver you quitclaim deed to this land.”
Logsdon answered this letter at once, sending the amount, $66.76, which was duly received by Hudson, and by further letters it was agreed that he should execute the deed in a short time, on the return of his wife, then absent from home. The deed was made accordingly and taken by Hudson to Kansas, but on his arrival he found that Logsdon was dead, and it was not delivered. Afterward, in a division of the real estate of the firm between Mrs. Logsdon, sole heir of her deceased husband, and Patrick, this tract became the property of Patrick, although the legal title was still in Hill. Hudson finally refused to convey, and this suit was brought in the name of Mrs. Logsdon as plaintiff. After a partial trial Patrick was admitted as a party plaintiff, and the cause was continued; issues were then made up, and the cause was tried at the next term. In his answer Hudson pleaded the agency of Patrick, and his duty and the duty of the firm to act for him. He also pleaded fraud on the part of Logsdon in falsely representing that he was the owner of the land, and in concealing the real facts, and offered to return or to pay into court the consideration received.
There was a conflict in the evidence concerning the nature and extent of Patrick’s agency, but the evidence showed that the correspondence relating to the purchase of the tax title was carried on in Logsdon’s name, on the belief that Hudson would be more likely to make the conveyance if it appeared that Logsdon owned the land than he would if the true situation were stated. But after his suspicions were thoroughly aroused, with full knowledge that Logsdon was a partner with his own agent, with a suit to redeem from his title pending against him, acting upon advice of counsel, and with due deliberation, he proposed a settlement, and named the sum he would accept for. a conveyance, which was • promptly paid, and the time was fixed for making the deed. It is said, however, that he still did not know that Patrick was interested in the land. Even if this be true, the fact of the partnership, the nature of the business of the firm, and all the circumstances, as shown by the correspondence and his conduct, were sufficient to put him upon inquiry, which he ought to have made, if' he did not in fact do so. The letter of September 15, 1906, plainly stated that he believed that upon all the facts he could defeat the pending suit, and yet with this knowledge he made the compromise. Having done so, the action having been dismissed, and Mr. Logsdon having died, it would be inequitable now to set aside the settlement thus made. The law favors settlements, and they will not be disturbed except for cogent reasons.
Findings of fact were not requested or made, but the decision can, and we believe should, be sustained on the ground that whatever defenses existed were surrendered by the compromise. (Minor v. Fike, 77 Kan. 806.)
Complaint is made of the action of the court admitting Patrick as a plaintiff with Mrs. Logsdon, but full opportunity was given to meet the claim made by the new plaintiff, and whether Mrs. Logsdon had any interest in the controversy is immaterial to the defendants. All parties in interest were before the court, and their respective rights were .fully investigated and determined:
The alleged error in the admission in evidence of an answer filed in another action is regarded as immaterial.
The judgment is affirmed. | [
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Per Curiam:
As all the assignments of error are argued together, and, especially since none of them possesses merit, they will not be separately mentioned. The appellant was not. prejudiced by the slight variance in the proof and the allegations in the bill of particulars upon which the case was tried on appeal from the justice court.
A very substantial foundation was laid for the introduction of secondary evidence of the contents of the written contract. The testimony was undisputed that the appellee brought about the sale of the appellant’s farm, and that his compensation was fixed by the written agreement. All the questions Were fairly submitted to the jury, and no substantial reason is suggested why the judgment should be disturbed. It is therefore affirmed. | [
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Per Curiam:
The only ground urged for reversal is that the decision is not sustained by sufficient evidence and is contrary t-' law. Very little evidence was necessary, in view of the defendant’s admission that he executed the order for the goods,, received and retained them, and refused to pay for them. The only principle of law discussed relates to the necessity for the performance of a condition precedent, but the agreement of the plaintiff to advertise the goods was not such a condition. The court allowed the defendant to recoup his damages sustained by reason of the failure of the plaintiff to advertise the goods, and the defendant has no just complaint of the decision.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This appeal is from a judgment award-.ing damages for alleged negligence of the defendant in permitting, advising and directing a drowsy passenger to alight from a rapidly moving train in the nighttime,, at a - place where there was no platform or light,, whereby the passenger was killed.
The deceased, who was thirty-six years of age, took passage at Bison, Okla., about 5 o’clock p. M., holding-a ticket to Lost Springs, Kan., where the train arrived at about one o’clock A. M. It was the custom on the de .fendant’s trains over this route to turn down the lights in passenger coaches about 10 o’clock P. M., and pas.sengers who paid the charge therefor were furnished pillows by the train porter, and this was done on the might of the accident. Tickets were taken up by a train auditor and checks given to the passengers, and it was the custom of the porter on these night trains to •awaken passengers who were sleeping on approaching their destination, and take up their checks. Announcement of the station was given and the train made the usual stop at Lost Springs, where one passenger left “the train, and two others entered it. After the train left the station, and while it was moving with rapid and increasing speed, the deceased was observed, with the porter having hold of his shoulder, walking toward the platform. He appeared drowsy, and fell on or brushed against another passenger as he went by. The porter removed the check from his hat and went with him to the platform, where they disappeared down the steps together, and then the porter returned into the •car alone. The body was found about 250 yards from the depot. The deceased had been over this route on the defendant’s trains running on the same schedule ■on four previous occasions.
In answer to special questions the jury found that the custom of taking up checks and awakening sleepy passengers on night trains had existed for a long time prior to the injury; that the deceased was acquainted with this custom; that he was sleeping when the train reached Lost Springs; that he was taken out of his seat by the employees of the defendant and taken to "the platform for the purpose of getting him to leave the train while it was in motion, if they could get him-■off before it gained too much speed; that they knew he was in a sleepy, drowsy condition; that the night was dark; that the deceased was unfamiliar with the place; that the train was running rapidly; that there "was no conversation between the porter and the de ■ceased with respect to his waiting until the train ■stopped; and that he did not leave the train voluntarily.
The porter testified that the vestibule was not closed after leaving the station until after the deceased left the car. Before reaching Lost Springs he had been informed that this, passenger was destined for that place. There is some conflict in the testimony concerning the occurrences just before the deceased left the train. The porter testified that when he announced the station the deceased was talking with another gentleman in the seat; that, returning into the car after the train started, and when it had proceeded fifty to ■one hundred feet, he saw the deceased coming out toward the vestibule, and understood him to say that the ■conductor told him to get off; and that the conductor said “stop,” and pulled the bell rope. He also testified :
“Ques. Why didn’t he stop? You knew that train was going at a rapid rate? Ans. Yes, sir; I presume it was.
“Q. Didn’t you know that it was impossible for a man to get off or on that train when going at a rapid rate ? A. I did n’t know 'what he could do.
“Q. You thought that there was a great possibility that he would be injured? A. No, sir; I never gave it ■a thought.
“Q. Although the train was running rapidly? A. I ■did n’t.
“Q. Notwithstanding the fact that he got off in the dark there that night, the train running rapidly, you never undertook to stop that train after the man got off, or to pull that cord.once? A. I don’t remember whether or not I did.
“Q. You know, as a matter of fact, you did n’t, don’t you? A. I don’t think the train did stop any more. •. . . Well, it did n’t stop.”
The conductor testified:
“I started into a high-backed coach, the first car back of the smoker. . . . This gentleman came down toward me. I asked him if he wanted to get off there. He said yes, he did. I said, ‘Well, wait a minute, and. I’ll stop the train’; with that I reached up and pulled the cord, and at that he passed me, and I did not see him any more. This air did n’t sound very loud, and when I got out into the vestibule the porter was standing there. I said, ‘Did he get off?’ He said, ‘Yes.’ That ended it with me. ' I turned and went back; that was all that I knew about it.
“Q. Did you see him get off? A. No, sir.
“Q. Did you have any other conversation with him except that you have already detailed? A. No, sir.”
On cross-examination he said:
“Q. You did n’t stop that train? That train was going rapidly, was it not ? A. It was gaming speed right along.
“Q. It was going fast when this man was there at the door, was it not? A. Yes, sir.
“Q. You knew that it was dangerous to get off, did n’t you ? A. I would not have got off.
“Q. You know as a trainman that it was dangerous, for that man to get off? A. Yes, sir; he passed me in the alleyway.
“Q. That is where you pulled the cord? A. Yes,, sir.
“Q., When the porter told you a man got off there in the dark, and the train was running rapidly, why did n’t you stop the train when the porter told you? A. He told'me the man was gone.
“Q. Both of you knew that it was dangerous to get off and although the train was running fast and it was dark there, you just went on and paid no further attention to it; that is the way you done it, was it? A. Yes, sir.”
A passenger in another coach opening upon the same platform testified that he saw a man who seemed to be sleepy go to the platform, followed by the porter, and heard one of the employees say, “Let him get off if he will”; that the train was going rapidly at the time; and that the trainmen did not pull the bell cord and made no effort to stop it. Another witness testified that as the train started out of Lost Springs he saw some one shake another man and take him out of the coach just back of the smoker. This was the coach in which the deceased was riding.
The only errors specified are the decision overruling a demurrer to the evidence, and the refusal to instruct the jury to find for the defendant; and the question now to be decided is whether the evidence is sufficient to sustain the verdict.
It is contended that it is not the duty of a carrier to awaken a sleeping passenger in a day coach on arrival at his destination, if due announcement of the station is made and a reasonable opportunity is given for him to alight. This is the general rule, although it is said that exceptional circumstances might impose the duty. (2 Hutch. Car., 3d ed., § 1128.) It is also insisted that the custom shown by the evidence of turning down the lights and furnishing pillows on night trains, that passengers may sleep more comfortably, does not impose the duty. The defendant also contends that the proper announcement of the station having been made, and sufficient opportunity given for the egress of passengers, the deceased, by remaining in the coach until the train started, became a trespasser, to whom it owed no duty except to refrain from willfully or wantonly injuring him.
The district court did not instruct the jury that the custom, if proved, imposed the duty on the trainmen to awaken a sleeping passenger on arrival at his destination, but did instruct in substance that if they found the custom existed as alleged, and that it was known to the decedent, and that he was asleep on arrival at his destination, to the knowledge of the trainmen, and they failed to awaken him in proper time to leave the train, and that immediately after leaving the station they discovered that he had not left the train because of being asleep, he should be considered as a passenger; and if the trainmen were negligent in commanding or directing him to leave the train, which negligence caused his death, then the plaintiff might recover; but if the de ceased voluntarily left the train, without being ordered or directed tó do so, or if he was advised to wait and was told that the train would be stopped so that he might leave it, and notwithstanding this advice he left the train without, waiting for it to stop, there could be no recovery.
Cases are cited in support of the proposition that when a passenger fails to leave a train when his destination is reached, after a reasonable opportunity to do so, the relation of passenger and carrier is terminated and he then becomes a trespasser. This is not true, however, in all cases. If one in such a situation offers to pay fare to a station beyond, the relation continues unbroken. (Forbes v. Railway Co., 135 Iowa, 679.) It would be a harsh rule that would hold every person a trespasser who remains upon a train after it reaches the place designated in his ticket. Whether he is a trespasser must depend on the circumstances of each case, which may present questions for a jury. It is held that a person who goes aboard the wrong train,, or one upon which his ticket does not entitle him to ride, is nevertheless a passenger; and while he may be ejected, it must be done with all proper care. In such a case it was held that although the passenger has no right to a passage, he can not be expelled from the train as a trespasser, but must be treated as a passenger who by mistake has got upon a train on which, by his contract, he is hot entitled to ride. (Lake Shore & Mich. Southern R’y Co. v. Rosenzweig, 113 Pa. St. 519; Arnold v. Pennsylvania Railroad Co., 115 Pa. St. 135.) In a case in Michigan where a sleeping passenger delayed leaving the train after a full opportunity to do so had been given, and was afterward injured by the alleged negligent act of the conductor, it was held that the claim of the company that the relation of passenger and carrier had ceased and that the company owed him no duty of protection could not be sustained as matter of law, but was properly left to the jury. (Bass v. Cleveland, etc., R. Co., 142 Mich. 177.) In a note following a report of' that case in volume 7 of the American and English Annotated Cases it is said that the rule that no obligation to> arouse a sleeping passenger and to see that he gets off at his destination “has been laid down in cases where passengers have sought to recover damages for being-carried beyond their destinations, and is not in conflict, with the holding of the reported case.” (p. 721.)
It was held in Railway Co. v. Wimmer, 72 Kan. 566, that “the duty which a railway company owes to a passenger to exercise the highest degree of care for his. safety which is reasonably practicable does not cease-until the passenger has reached his destination and left the train.” (Syllabus.) It is probably true that if a. passenger should unreasonably delay his departure from, a train in such circumstances as to indicate a willful or wanton disregard for the rights of the carrier or the traveling public, thereby intending to compel a stop for his benefit, or because of ill will or to secure further passage without pay, or like wrongful purpose, he would', thereby forfeit his right to the high degree of care due to a passenger, and might, if the circumstances warranted the inference, be considered a trespasser; but the-question in case of any doubt or uncertainty of the facts-would be for a jury. Here it is not claimed, and the-circumstances do not indicate, that the delay of the deceased was caused otherwise than- by his being asleep- or bewildered because of sleepiness. In this situation the court could not arbitrarily declare that he had forfeited the ordinary rights of a passenger, and did not err in submitting that matter to the jury.
The case of C. K. & W. Rld. Co. v. Frazer, 55 Kan. 582, cited by the defendant, is not in conflict with these-views. It appeared there that passage had been taken-upon a construction train on an unfinished road. At the-end of the road, after nearly half an hour had elapsed and all others had left the caboose, a passenger who-without any apparent cause remained upon it was killed. in switching, his presence being unknown to the trainmen. It was held that instructions to the effect that he was entitled at the time of the injury to the extraordinary care due to a passenger were erroneous. The language of the opinion was correct as applied to the .facts of that case, but is not an authority for the contention that it should be held as a matter of law that the decedent in this case had forfeited his right to such care before he was killed.
The facts concerning' the custom to turn down the lights, furnish pillows for the comfort of those desiring "to sleep, and to awaken sleeping passengers and take up their checks, were circumstances for the jury explanatory of the delay of the passenger, and proper to be considered in deciding whether the relation of passenger and carrier had terminated before he stepped from the train.
It is also contended that the evidence shows such contributory negligence as to defeat a recovery. It is said that the night was dark, the train was running' rapidly, the place was unfamiliar, and the departure from the "train voluntary. The force of this argument is greatly ■diminished by the finding of the jury that the deceased did not leave the train voluntarily, and this finding we think is supported by the evidence. He was awakened while upon a moving train, which had just left the station where he desired to stop. The rate of speed could .hardly be determined by him on the instant, especially in his drowsy condition. Those upon whom he had a right to rely did not oppose, but one at least actually assisted him down the steps, according to the testimony. It is true the conductor says he told him to stop, and that he pulled the cord, but it is significant that the train did not stop, nor was its speed slackened, and the claim that the conductor pulled the cord is disputed by other testimony. The porter, who was in the vestibule with the passenger, testified that he (the porter) did not pull the ■cord, and according to testimony which the jury had a right to believe, although contradicted, one of the employees said: “Let him get off if he will.” It can not be said as a matter of law that a man of ordinary prudence in that situation would not have stepped off the train as he essayed to do. Happily for the traveling public the care, patience and fidelity of trainmen generally are such that passengers are accustomed to rely, and ordinarily may safely rely, upon their judgment, knowledge and skill in such matters; and one should not be held guilty of contributory negligence when he does so, merely because it is determined by a fatal result that his confidence was misplaced. It appears that while the danger was obvious to the porter and the conductor, it was not necessarily so to this passenger. (St. Louis, I. M. and S. R. R. Co. v. Cantrell, 37 Ark. 519; Jones v. Chicago, Milwaukee & St. Paul Ry. Co., 42 Minn. 183; McCaslin v. Railway Co., 93 Mich. 553; Waller v. The Hannibal & St. Joseph R. R. Co., 83 Mo. 608; Haug v. Great Northern Ry. Co., 8 N. Dak. 23; S. K. Rly. Co. v. Pavey, 48 Kan. 452.)
A passenger who, because of drowsiness or confusion caused by no wrongful act on his part, attempts to jump from a rapidly moving train in the darkness, while apparently unaware of the danger, is, we believe, entitled to the restraining care of those in whose protection he has placed himself, who fully understand the danger, and are in a situation to prevent it. The fact that he slept longer than he ought to have done, if that be a fact, ought not to deprive him of reasonable protection.
The evidence was sufficient to go to the jury, and sustains the verdict. Evidence explanatory of the conduct of the trainmen and to some extent excusing it is not further referred to, the only question here being whether there was competent evidence for the consideration of the jury sufficient to support their findings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action for rent. The controversy arises over the interpretation of the lease. The abstract does not give a copy of the instrument and we can only judge of it by the description given by counsel in their briefs. The lease is in the ordinary form of a lease for one year, ending upon July 1, 1906. It then provides for the future as follows:
“It is also agreed by party of the first part that party of the second part may, at their option, continue this lease to July 1, 1908, by paying thirty three and one third (33 %) dollars on the first day of every month during its continuation.”
The lessee occupied the premises for the one year. He afterward occupied it by exercising his option and the payment of rent as stipulated in the lease for about eighteen months, and then abandoned the premises and ceased payment. The landlord brought this action to recover the rent at thirty-three and one-third dollars a month for the unexpired term, to July 1, 1908, and recovered. The lessee appeals, contending that the option expired upon the first day of each month, if not exercised. The lessor, however, claims that at the expiration of the one year the option was one to continue the lease in force for the term of two years, or until July 1, 1908, and not for one month only, and that one .payment of the monthly rent was a sufficient exercise of the option and twenty-four unnecessary. No authorities directly in point have been cited. We think, however, that the interpretation of the court is correct. (18 A. & E. Encycl. of L. 687, 690.) The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Harvey Smith, charged with a felony, was arrested and brought before a justice of the peace for examination. The hearing was postponed and he entered into a recognizance for his appearance, J. W. Smith becoming his surety. He failed to appear at the time set and the justice made an order adjudging the forfeiture of the bond. Within a few days the recognizance, with a transcript of the proceedings, was cerT tilled to the clerk of the district court, and an action was begun against the surety. Judgment was rendered against the defendant and he appeals, urging that there should be a reversal for two reasons: First, because the petition did not allege that Harvey Smith’s failure to appear for trial was without sufficient excuse, and, second, because the action on the bond was prematurely brought.
Section 152 of the criminal code provides for the forfeiture of a recognizance when the defendant fails to appear, “without sufficient excuse.” The words quoted are omitted from a similar provision in section 46, which has special relation to proceedings before an examining magistrate. Assuming, however, that the section first referred to controls, it was not necessary to plead that the principal’s nonappearance was without sufficient excuse. The justice of the peace in deciding that the bond should be forfeited necessarily decided that no such excuse existed, and the order of forfeiture is conclusive unless attacked directly. (34 Cyc. 555.) The allegation that the bond had been forfeited implied that all the conditions existed that were necessary to justify such an order. Moreover, the statute provides (Crim. Code, § 149) that the bondsman may escape liability by producing his defaulting principal and presenting a satisfactory excuse for his absence. The inference seems fair that merely proving an excuse would not be sufficient.
The recognizance was certified to the clerk of the district court during vacation, and the action upon it was brought before the ensuing term began. The statute provides that “the prosecuting attorney may at any time after the adjournment of the court proceed by action against the bail upon the recognizance.” (Crim. Code, § 153.) This is held to imply that the action can not be begun until after the adjournment of the court. (Morehead v. The State, 20 Kan. 636.) Obviously, however, this provision only applies to ■ recognizances for appearance before a court having definite terms. It can have no application to an undertaking to appear before a justice of the peace. True, in such case the law provides that' the justice shall certify the recognizance to the district court, and that “like proceedings shall be had thereon as upon the breach of the condition of recognizance for appearance before that court.” (Crim. Code, § 46.) But this does not mean that the principal is required to appear in the district court, or that the surety has a full term of court in which to produce him there. The bond is certified to the district court merely for permanent preservation as a part of the files of a court of record. No new forfeiture or extension of time is contemplated.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Charles E. Gibson lives at West Newton, Mass. Harry W. Dunlap brought suit against Gibson to quiet title to a tract of land in Cheyenne county, and obtained service upon him by publication only. On May 28, 1907, judgment by default was taken in favor of Dunlap. On August 15, 1908, Gibson filed an application to open up the judgment under section 83 of the code of 1909, gave notice to the adverse party of his intention to make the application, as provided by the statute, and filed a full answer to the petition. The affidavits in support of this motion to open up the judgment alleged that he had no actual notice of the pendency of the' motion in time to appear and make his defense. The court denied the motion, and he appeals.
On the hearing the plaintiff, by way of counter affidavit, offered in evidence the deposition of Gibson, in which the latter testified that he had been engaged in western land business for twenty-three years, and, so far as possible, took personal charge of his business. He fuiffher testified:
“My Kansas interests are quite large and varied, and are in charge of different men. Albert E. King, of McPherson, Kan., has personal charge of my land business with a field force under his authority. My attorneys in different parts of the state have charge of foreclosures and other litigations.”
He was then asked:
“Has Mr. King authority from you to employ counsel to bring a legal action in the event that the same should be necessary? Ans. If my interests were jeopardized by any legal action, and there was not time for him to consult with or get written instructions from me, he would have authority to employ counsel in such emergency.”
The plaintiff then introduced evidence showing that A. E. King knew of the pendency of the suit as early as May 28, 1907, before.the default judgment was taken.
In our opinion the court should have opened the judgment. The statute expressly provides that the judgment may be opened up if it be made to “appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense.” (Code 1909, § 83.) The statute is remedial, and should be liberally construed. In Beckwith v. Douglas, 25 Kan. 229, it was held that by the words “actual nbtice” it is not necessary that the defendant be fully informed as to the time of commencing suit, the court in which it is commenced, the property attached, the exact amount claimed, nor the date named for the answer. It was further said:
“It is enough that he is distinctly and clearly -notified that such a suit has been commenced and is pending against him, and notified from such a source, and within such a time, that, by the exercise of ordinary and reasonable care and prudence, he can ascertain all details and make his defense. And where a good and meritorious defense is presented, courts will not scan too closely or technically any omission to pay prompt attention to uncertain and indefinite notices.” (p. 234.)
There seems to be an irreconcilable conflict in the authorities as to whether actual notice is synonymous with knowledge. (29 Cyc. 1113; 21 A. & E. Encycl. of L. 581, note 4.) The better rule seems to be that announced in Cleveland Woolen Mills v. Sibert, Ward & Co., 81 Ala. 140, where it was said in the opinion: “However closely actual notice may, in many instances, approximate knowledge, . . . there may be actual notice without knowledge.” (p. 145.) In section 594 of volume 2 of the third edition of Pomeroy’s Equity Jurisprudence the author says:
' “Within the meaning of the rules, notice may, I think, be correctly defined as the information concerning a fact actually communicated to a party by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent in its legal effects to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge.”
No doubt cases might arise where a party would be held to have had actual notice under section 83 of the code by proof of notice to an agent duly authorized to act for him in the matter. In our opinion, the appellee failed to prove by satisfactory evidence that King had authority to represent the appellant in the particular litigation concerning which the notice was given. The provision of the code authorizing judgments to be opened has always been liberally construed, and, where such an application is resisted, and it is attempted to bring to a party actual notice of the pendency of the action by showing notice to an agent, the authority of the agent to represent him with respect to the subject matter of the action should be established by clear and satisfactory proof. There must be facts shown from which the law will presume the party to have acquired information equivalent in its legal effects to actual knowledge.
The judgment is reversed and the cause remanded, with instructions to open up the judgment and allow the appellant to defend. | [
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The opinion of the court was delivered by
Graves, J.:
This is an appeal from the district court of Butler county. The controversy arises from a change of the boundary lines of a joint school district. Application was made by the voters of district No. 110, Which is a joint district, lying partly in the county of Butler and partly in the county of Sedgwick, and also by the voters of district No. 100, which lies wholly within Butler county, requesting that a part of the lands compassing district No. 100 be taken from that district and added to district No. 110. The application Was made to the superintendent of Butler county, who, after a conference with the superintendent of Sedgwick county over the telephone, proceeded to give notice that the application would be considered at El Dorado, in Butler county, on the 17th day of September, 1909.
At the appointed time the superintendent of Butler bounty was present, but the superintendent of Sedgwick county did not attend, being unable to leave home. 'The superintendent of Butler county heard all that was presented for and against the proposed change. He did not decide the case immediately, but took it under advisement, and went to Wichita to confer with the superintendent of Sedgwick county, taking all the papers, relating to the case with him. He met the superintendent of Sedgwick county and they conferred together-concerning the matters involved in the controversy. As a result of such conference, they jointly made an order that the proposed changes be granted. Notice of' the granting of this order was given by posting notices, in five public places in each of the districts concerned that such order had been granted, and that unless an appeal should be taken within ten days the changes, made would be completed. The notice was signed by the superintendent of Sedgwick county. An appeal was taken, the notice of which reads:
“To W. H. McDaniel, county superintendent of Butler county, Kansas; J. W. Swaney, county superintendent of Sedgwick county, Kansas; school district No. 110 (joint district); school district 100 in Butler county, Kansas; M. L. Arnold, county clerk of Butler-county, Kansas:
“You and each of you are hereby notified that we,, the undersigned, appeal to the board of county commissioners of Butler county, Kansas, from the decision rendered by the above-named W. H. McDaniel, superintendent of public instruction of Butler county, Kansas, and J. W. Swaney, superintendent of public instruction of Sedgwick county, Kansas, on the 23d day of September, 1909, altering and changing the boundary line of school district No. 100 in Butler county, Kansas, by detaching from said school district the following-described territory, to wit [here follows a description of the land], and attaching said land to school district No. 110; and said school district No. 100 feels, aggrieved at said decision, and the action and decision of W. H. McDaniel, superintendent of public instruction of Butler county, Kansas, and J. W. Swaney,. superintendent of public instruction of Sedgwick county, Kansas, for the following reasons: [Stating-reasons.]
“Wherefore, . . . appellants ask that their appeal be sustained, that the pretended decision of W. H. McDaniel and J. W. Swaney ... be reversed and! annulled, and that said territory be allowed to remain as a part of school district No. 100. Dated this first day of October, 1909. School District No. 100.
By Charles Walker, Treasurer.”
No other appeal was taken. The two county superintendents and the officers of district No. 110 were proceeding to make the changes specified in the order, and this action of injunction was commenced against them. The petition recited in substance the foregoing facts. A trial to the court was had and a perpetual injunction granted.
The only tribunal authorized by statute to change the boundaries of a joint district is the superintendents of the several counties interested in the district, acting jointly, and if any person shall feel aggrieved at the action taken such person may appeal to the state superintendent of public instruction. No other appeal is contemplated. (Laws 1879, ch. 158, § 1, Gen. Stat. 1909, § 7398.)
The appeal attempted to be taken in this case was to the board of county commissioners of Butler county. This board has jurisdiction over appeals taken from the county superintendent who changes the boundary lines of districts lying wholly, within the county of which he is an officer. It has no jurisdiction, however, over appeals taken from an order changing the boundary line of a joint district, made by the superintendents having charge of such matters.
It may not be assumed that because the interests of district No. 100 are affected by the order made by the joint action of the superintendents having control of the joint district, and because district No. 100 is wholly within Butler county, that an appeal may be taken to the county commissioners of that county for the purpose of reviewing such order. This can not be done. An appeal must take up for review the whole subject matter acted upon by the tribunal from which the appeal is taken. In this case the effect which the order had upon district No. 10Ó was merely incidental to the main question acted upon by the superintendents, which was, to change the boundary lines of joint district No. 110. An appeal can not be taken in fragments, but the whole question must be reviewed together. As we view the law, the appeal in this case to the board of county commissioners of Butler county was without jurisdiction and void. The appeal conferred no power upon the board, and everything it did in the premises was nugatory.
Application was made to the proper tribunal to change the boundaries of joint district No. 110. That tribunal acted upon the application presented to it. It had jurisdiction of the subject matter. Notice of its action was duly given, and no appeal was taken therefrom to any proper tribunal having authority to review the action taken. No other remedy is provided. The plain and adequate remedy provided by law for such cases not having been employed, injunction may not be invoked.
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Per Curiam:
In support of a motion to dismiss it is shown to the court, by documents duly authenticated, that after the judgment of the district court was rendered and before the appeal was taken the powers of a trustee, who was and is a very necessary party, ceased and a successor in trust to him was appointed. Although more than a year has elapsed no revivor has been attempted, no notice of appeal was served upon the successor in trust or any attorney of record for him, and the important interests which he represents are without the protection of a party to this appeal.
The court is very reluctant to dispose of cases otherwise than upon the merits and consequently has looked into the merits to ascertain what the situation of the appellant would be if the motion to dismiss were treated as not urged. The result is that in any event the judgment must stand.
The case stood for trial at the term at which it was disposed of, and was regularly called for trial on the day judgment was rendered. Personal notice to the appellant of the hearing was not essential. He was represented on the record by an attorney whose duty required him to follow the proceedings in court. The appellant’s attorney had no agreement with anyone, to advise him of the time of trial, and consequently the charges of accident and surprise and of misconduct are not established. The court had fair ground for believing that the appellant had joined with the other bondholders and for holding that all of them were duly represented by their trustee. Consequently the court was not guilty of any abuse of discretion. As the matter was finally presented, the formal introduction of evidence was not necessary for the information of the court. Nothing else is asserted against the validity of the judgment.
Under the circumstances it makes no substantial difference whether the appeal be dismissed or the judgment affirmed. The order is that the judgment of the district court be affirmed. | [
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Per Curiam:
The plaintiff was injured by his horses running away while he was driving across a railroad track. He sued the railway company for damages and recovered a judgment, from which the defendant appeals. The only question presented is whether the judgment is consistent with the special findings, which showed these facts: The highway on which the plaintiff was traveling crossed several tracks near the depot. As he approached the crossing from the west it was blocked by a passenger train, and he stopped thirty or forty feet from the first track. On the third track he saw an engine standing still, headed to the north, about seventy feet south of where the traveled part of the highway crossed that track. The passenger train pulled out, the engine on the third track remaining motionless, and the plaintiff attempted to drive across the tracks. About the time he got upon the first track, or immedi ately after, the engine started forward, emitting clouds of steam, which settled down toward the ground in the direction of the team, and, as they were crossing the third track, the engine being then about twenty or twenty-five feet away, frightened them so that they ran away. The fireman saw or could have seen the plaintiff as he was about to cross the first track, before the engine was started. The bell was not rung before starting. If it had been the plaintiff would not have attempted to cross. The engine had been standing still for at least five minutes before it was started across the street.
Under these circumstances it was for the jury to determine whether, inasmuch as the plaintiff started to cross the tracks while the engine was standing still, it was not the duty of the crew to wait until he had crossed before starting, and also whether it was not negligence on their part to start without some preliminary signal to warn thé plaintiff that they were about to do so.
The plaintiff’s conduct in starting to cross the tracks while the engine was standing near the crossing can not be regarded as necessarily constituting contributory negligence on his part, for he had no means of knowing when it would start. (Railway Co. v. Dawson, 64 Kan. 99; Railway Co. v. Wilkie, 77 Kan. 791; 33 Cyc. 1101, 1107, 1127; 11 L. R. A., n. s., 963, note.) If the plaintiff’s horses had become frightened by the engine while still at rest an entirely different question would be presented.
The jury found that the emission of steam from the engine just as the plaintiff was crossing the track was needless, but not careless on the part of the engineer. Other findings show their meaning to be that the fault lay with the fireman, since he could have seen the plaintiff, while the engineer could not.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In November, 1908, a stock of merchandise at Ottawa, Franklin county, Kansas, belonging to the appellee, W. H. Jones, was destroyed by fire. The appellee was insured against loss by a number of insurance companies, and in due time he brought suits to recover upon the policies. The case of Jones v. The American Central Insurance Company was tried in April, 1909, with the result that a judgment was rendered in favor of the plaintiff. On appeal to this court the judgment was reversed because an application for a change of venue, based upon the disqualification of the judge of the district court of Franklin county, was denied. (Jones v. Insurance Co., ante, p. 44.) On September 22 and 23, 1909, the cases of Jones v. The Westchester Fire Insurance Company and Jones v. The Prussian National Insurance Company were tried and verdicts were returned in favor of the plaintiff. The cases of the same plaintiff against the Williamsburg City Fire Insurance Company, The Concordia Fire Insurance Company, The Firemen’s Fund Insurance Company and The Mercantile Fire & Marine Insurance Company were then submitted to the jury which heard the Westchester company’s case, under stipulations which read in part as follow:
“It is hereby stipulated and agreed that the above-entitled cause shall be submitted to the court and the same jury that tried the case of W. H. Jones v. The Westchester Fire Insurance Company on September 22, 1909, upon the same evidence offered in that case,, and that the court shall instruct the j ury upon the same-evidence submitted in that cause except as hereinafter provided, as though it had actually been verbally given in this cause, and that the same jury before which the said cause of W. H. Jones v. The Westchester Fire Insurance Company was tried shall consider the evidence and instructions of the court as though such evidence and instructions were actually given verbally and read in this cause, and shall deliberate upon the same and render a verdict upon such evidence and instructions as. though actually given verbally and read in this cause to said jury, and if the finding be in favor of the plaintiff, the jury shall determine from the policy sued on in this case and the evidence given in said cause above referred to, and the instructions of the court, the amount due to the plaintiff under the policy sued on in this case, and that judgment shall be rendered accordingly.”
In these cases verdicts were returned in favor of' Jones. Judgments were rendered in his favor in all' the cases, and the various insurance companies appeal. In this court the four cases which went to the jury under the stipulation referred to have been consolidated. The six cases may be disposed of, however, by ’one opinion.
On July 27, preceding the trials, applications to change the venue were denied. The grounds stated were those which were considered in the case of Jones v. Insurance Co., ante, p. 44. In several of the cases: Jones filed an affidavit stating that he was able to pay his indebtedness to the First National Bank of Ottawa, amounting to $6000, independently of the result of the litigation with the insurance companies, and. consequently that the bank would not be affected should he lose. The affidavit did not remove the disqualification of the district judge. Optimistic general statements of this kind, relating to one’s resources, do not go very far in the business world. The adage is that “the eye of the master fatteneth the ox.” Its truth is illustrated by the fact that Jones was adjudged to be a bankrupt within a few months after his affidavit was filed. It does not appear from the affidavit, or otherwise, that the bank had been relieved of anxiety concerning the means and ability of Jones to discharge his indebtedness, and the proof was that this very matter had been the subject of discussion between the officers of the bank and its legal adviser, the trial judge, who. was also a stockholder and officer of the institution, drawing an annual salary from it. It is not necessary to add anything to what was said in the opinion in Jones v. Insurance Co., ante, p. 44. A change of venue ought to have been granted in each of the cases.
The insurance companies rely for reversal upon the refusal of the court to change the venue, and upon nothing else. The appellee argues that the error was impliedly waived because no objection to proceeding further was interposed when the cases were reached for trial. Some authorities are cited to support the claim. Those from this state are easily distinguishable. For various reasons those from other states are not controlling. The subject of a change of venue had been formally presented and fully considered. The district judge, acting conscientiously upon his best judgment, believed it to be his duty to preside at these trials. He so decided, exceptions were duly noted, and the proceeding was spread upon the record. No new fact or circumstance intervened to change the situation, and there was no occasion to reopen the subject and require the court to rule upon it again. An objection of the kind suggested had no function whatever to perform, consequently was not essential to preserve the rights of the parties, and if made would have had something of' the appearance of nagging the court.
The appellee further insists that the stipulations referred to constituted express waivers of the disqualification of the judge in the cases in which they were filed. These stipulations related solely to the manner in which the cases should be submitted, and it would be a gross misinterpretation of them to impress them now with a different purpose.
Finally, the appellee asserts that the error committed in refusing to change the venue was harmless. The defense of the insurance companies was .that the appellee had not complied with the conditions of his policies, that he was not the owner of the property burned, that he had not sustained loss to the amount claimed, that he had procured the policies through gross misrepresentation of the amount and value of the property insured,‘and that he had concealed and falsely misrepresented other material facts. At the trials the appellee produced evidence amply warranting recovery. The record is remarkably free from objections relating to evidence. The few which were made were inconsequential. The appellee was the chief witness in his own behalf and was cross-examined at length. No evidence was offered by the appellants, and the cases went to the jury upon simple and clear instructions, against which nothing can be urged. The verdict in each case was the necessary result of the trial, and would not have been allowed to stand had it been otherwise. No trial errors of any kind are assigned or could be sustained in this court.
In the case of Robinson v. Melvin, 14 Kan. 484, the court was called upon to review an order discharging an attachment. A portion of the opinion reads as follows:
“One other question is raised by counsel. After the dissolution of the attachment plaintiff moved to have the order dissolving the attachment set aside and the matter referred to a judge pro tern, on the ground of the interest of the judge, and in support of such motion filed an affidavit alleging that subsequent to the dissolution he had ascertained that the judge was security for defendant on a past-due note of $125, and that while the motion to dissolve was pending before him he had received from defendant a chattel mortgage on a span of horses worth not over $120 to indemnify him. We have taken this case as if originally presented to us, and considered it independent of any prior adjudication, because even though the judge was disqualified by reason of interest it would be wrong to the parties to remand it for examination before a judge pro tern, if it was reasonably clear to us that the attachment ought upon the evidence to have been discharged. That would be simply making additional costs with the same ultimate result. We do not mean to decide that the judge was actually disqualified. by interest, the showing having been entirely ex parte; but we can not forbear remarking that it is the duty, as it is generally the wish of a judge, to avoid sitting in judgment upon questions in which he has a direct, even though slight, pecuniary interest.” (p. 488.)
The conclusion to be drawn from this decision is that when upon an appeal to this court the record of the proceedings shows with reasonable clearness that the judgment rendered expresses the only result which could rightfully be reached, the defeated party has not been prejudiced in his substantial rights because his motion to change the venue was denied and he was obliged to go to trial before a judge who was disqualified.
The statute gives no right to an appeal immediately upon the denial of a change of venue. The trial must go on, and not until after final judgment has been rendered does an appeal lie. Shocking as the notion of a trial before an interested, prejudiced or otherwise disqualified judge may be, the law is practical and will not compel another trial merely to gratify a sentiment or to uphold a principle. If the party applying for the change of venue should win the case he is not permitted to say that his substantial rights were pre judicially affected by the erroneous ruling. If the facts should be agreed to and the judgment which the law requires should be pronounced upon them, no possible injury could follow from the refusal to change the venue. Many other situations can be imagined in which a ruling of the kind complained of would be harmless, and if the record should show that the party applying for the change had no defense to a well-proved, meritorious cause of action, it would be to indulge litigiousness at the expense of justice to remand the cause in order that the same adverse result might be stated in another court. Ordinarily, therefore, it is unavailing for a party, on appeal, to stand upon a well-grounded motion for a change of venue. If he brings up nothing but the ruling on his motion and the final judgment against him, the court can not say that prejudicial error is made manifest. It is true that the baneful influence of a biased or otherwise disqualified judge upon the proceedings can not be made to stand out upon a printed record. The embarrassment and constraint under which party and counsel rest in developing their case before one not authorized to hear it is often sufficient to place them at an unfair disadvantage. Therefore the statement that prejudice will be presumed when a change of venue is improperly denied is generally true. But it is true only with this limitation: It must appeár from the record that there is a substantial controversy to be determined, the result of which may be detrimentally affected by the officiating of the objectionable judge.-
In the cases under review the only serious dispute is that made by the pleadings. There is none of moment in the evidence. The plaintiff has been severely cross-examined, his demeanor on the witness stand has been observed by several juries, his proof of a right to recover is always abundant, and the result is always the same. The good faith of the insurance companies in contesting the losses is not questioned, but after sev eral opportunities nothing whatever has been produced by way of defense. If they have a defense, enough of it should have been disclosed to show with reasonable clearness that it ought to be considered in another forum.
The precedent of Robinson v. Melvin, 14 Kan. 484, has everything to commend it, and the court is far within the principle it enunciates in holding that the error of the trial court in refusing to change the venue of these cases is not sufficient to warrant a judgment of reversal. The doctrine of harmless error here given controlling effect was not urged in opposition to a reversal in the case of Jones v. Insurance Co., ante, p. 44.
The judgment of the district court is affirmed, and an order of affirmance will be entered in each of the five companion cases. | [
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The opinion of the court was delivered by
Mason, J.:
Jesse Casteel, between fifteen and sixteen years old, was injured while in the employ of the Pittsburg Vitrified Paving & Building Brick Company. He sued the company, and recovered upon the theory that his employment was in violation of the statute providing that “no person under sixteen years of age shall be employed at any occupation nor at any place dangerous or injurious to life, limb, health or morals,” and making it a misdemeanor to employ such a person in violation of that provision. (Laws 1905, ch. 278, §§ 1, 4, Laws 1909, ch. 65, §§ 2, 5, Gen. Stat. 1909, §§ 5095, 5098.) The defendant appeals, its principal contention being that the evidence was insufficient to show that the plaintiff was employed at any occupation or at any place that was “dangerous” within the meaning of the statute.
The evidence tended to show, and therefore for the present purpose may be regarded as haying shown, these facts: The defendant was engaged in the manufacture of brick. Shale for use in the process was excavated by a steam shovel and loaded into dumping cars, which were drawn by a horse along a track for a distance of about 800 feet and then hoisted up an incline by machinery to the brick plant. The plaintiff’s employment required him to ride upon the loaded cars from the shale pit to the incline, and upon empty cars on the return trip, driving the horse, which, however, was so well trained that no lines were used or needed. The car was not provided with a brake. The track was of uneven height, and curved often. For a part of the distance it ran so close to a perpendicular bank of shale, about twenty feet high, that the cars frequently scraped it in passing. The rails were about two feet and a half apart. The wheels were fourteen inches in diameter; the distance between the front and rear pair was two feet. The box was seven feet long, five feet wide, and fifteen inches deep, its top being five feet above the track. Each corner was fastened to the truck below it by a chain, and the car was emptied to either side by unfastening the chains on the other. The chains were loose, having about three or four inches slack, allowing that amount of play to the box, which swayed from one side to the other according to the inclination of the track and the disposition of the load. The plaintiff was directed so to ride the car as to keep it in balance by the weight of his body — to shift his position in going around curves to keep the car from jumping the track, which it did quite often, sometimes four or five times a day, more often when it was empty. Pieces of shale would sometimes fall to the track from the bank or from the cars. These were usually soon removed by other employees. On the day of his injury the plaintiff was riding in the front end of an empty car on the side opposite the high bank, in accordance with his instructions. A lump of shale about fourteen inches long and four or five inches thick each way had become wedged between the bank and the nearer rail. The horse was walking fast, when the hub of the forward wheel struck the shale, stopping the car and throwing the plaintiff to the ground, his arm being broken in the fall.
The statute provides a penalty for its violation but does not in terms give a right of action to any one injured thereby. Nevertheless, by the weight of authority and the better reason, such right exists. (Harrod v. Latham, 77 Kan. 466. See notes in 7 L. R. A., n. s., 335, and 9 L. R. A., n. s., 385; 2 Labatt, Mas. & Ser. §§ 799, 800.)
The' defendant maintains that the plaintiff’s occupation was not dangerous, but safe, since he had merely to drive a gentle horse a short distance back and forth, hitching and unhitching it to the cars, having no loading or unloading or lifting or carrying to do, and not being engaged about any machinery; that if he became exposed to any risk in the course of his employment through the failure of his employer to take proper precautions for his safety his remedy was in an action for common-law negligence, and not under the statute. Ordinarily whether an occupation is dangerous within the meaning of such a statute is a question of fact for the jury. (Hickey v. Taaffe, 39 N. Y. Supr. Ct. 7; Gallenkamp v. Garvin Machine Co., 91 N. Y. Supr. Ct., App. Div., 141; Braasch v. Michigan Stove Co., 153 Mich. 652, 655; Hankins v. Reimers, 86 Neb. 307, 309.) Both New York cases cited were reversed by the court of appeals (Hickey v. Taaffe, 99 N. Y. 204; Gallenkamp v. Garvin Machine Co., 179 N. Y. 588), the first upon a different question. In the latter case the court of last resort adopted a dissenting opinion, which seems to support the theory that a statute forbidding the em ployment of children at dangerous machinery has no application to a machine which is safe when carefully and skillfully handled. We do not accept that view. We think that an occupation is dangerous within the meaning of the Kansas act whenever there is reason to anticipate injury to the person engaged in it, whether the risk arises from the inherent character of the work or the manner in which it is in fact carried on, even although the danger may be reduced or eliminated by the exercise of due care and skill on the part of the employee. (See Frank Unnewehr Co. v. Standard Life & A. Ins. Co., 99 C. C. A. 490, and cases there cited.) A contrary view would defeat one of the manifest objects of the statute, which is to give a peculiar protection to children because they have peculiar need of it— to prevent their being so placed that their inexperience and immaturity would expose them to peril. In the present case it makes no difference whether the plaintiff was set at a task which was safe when he was employed but became dangerous by reason of subsequent acts of the employer, or whether it was unsafe from the beginning. The defendant’s liability depends upon whether the plaintiff’s, occupation as it was carried on at the time of the accident was such as to give reasonable ground to anticipate an injury, and we think that was a fair question for the determination of the jury. We can not say as a matter of law that the defendant could not reasonably-have expected such an accident as happened, or some similar one. The likelihood of the plaintiff’s being jolted from the car was suggested by the roughness of the track, the frequent curves, the nearness of the wall of shale, the readiness with which the car left the rails, and especially by the unstable poise of the box and the duty assigned the plaintiff to keep it in balance by shifting his own position.
The contention is also made that there was no evidence that the violation of the statute was the proximate cause of the plaintiff’s injury. The jury were justified in finding, and must be deemed to have found, that the defendant unlawfully employed the plaintiff at an occupation that placed him in peril; that he was injured in the course of his employment in consequence of that peril; that what happened was one of the very things the statute was intended to prevent. Such findings establish the necessary causal relation between the disobedience of the statute and the plaintiff’s injury. (21 A. & E. Encycl. of L. 480-482; Leathers v. Tobacco Co., 144 N. C. 330; Starnes v. Manufacturing Co., 147 N. C. 556; Syneszewski v. Schmidt, 153 Mich. 438; Perry v. Tozer, 90 Minn. 431, 437; 7 L. R. A., n. s., 337, second column of the note.) In Roberts v. Taylor, 31 Ont. 10, it is held in effect that the violation of the statute is not shown to be the proximate cause of the injury unless there is proof that the immaturity of the child contributed to the injury. We think this too rigorous a requirement. There is always at least this much connection between the youth of the employee and his injury — if he had been older he might have refused the dangerous employment.
A part of the defendant’s argument is based upon the theory that whatever danger there was in the plaintiff’s employment originated with the lodging of the lump of shale against the track. But the evidence warranted the view that a similar situation was likely to arise at any time and that the plaintiff was in constant peril of being thrown from the car in the same or some similar way.
Complaint is made of the admission of evidence showing all of the circumstances surrounding the incident. Some of.it may have been unnecessary, but none of it was prejudicial.
The contention is made that no recovery could be had unless the defendant knew the plaintiff’s occupation to be dangerous. The statute, however, bases liability upon the fact of danger, not upon the employer’s knowledge of it. Even a mistaken belief that the em ployee is over the prescribed age is held not to be a defense. (City of New York v. Chelsea Jute Mills, 88 N. Y. Supp. 1085. See note in 20 L. R. A., n. s., 500.) The case of Koester v. Rochester Candy Works, 194 .N. Y. 92, is to the contrary.
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The opinion of the court was delivered by
Graves, J.:
This is an action upon an administrator’s; bond to recover insurance money received upon the life of John H. Hunt, and used as a part of his, estate. The widow is dead; the plaintiffs are the children of John H. Hunt, deceased. It is claimed that this money belongs exclusively to the children of Hunt, and is no part of the estate of the insured, and that neither the administrator nor the probate court has any right to assume control of or to exercise any dominion over it.
On the 2d day of December, 1897, at Burlington, Iowa, John H. Hunt joined the association known as the Merchants’ Life Association, located at that place. He thereby became a member of that association, with his life insured in the sum of $2000. It was an insurance association organized upon the mutual plan. Hunt died intestate, April 30, 1907, at Gas, Allen county, Kansas, leaving three minor children as his sole heirs at law, his wife having died before he did. John D. Remsberg was duly appointed administrator of Hunt’s estate, and duly qualified and entered upon his duties as such. In May following he collected the $2000 insurance money from the association and reported it to the probate court.
When John H. Hunt received his certificate of membership he named as beneficiary his wife, Martha Elizabeth Hunt, who, on February 26, 1900, died at their home in Packwood, Iowa, where they resided when the insurance was obtained. A few years afterward the family removed to Allen county, Kansas, where they resided until the death of the insured.
There is a provision in the certificate of membership which reads: “In the event of the death of the beneficiary prior to that of the member, or in case none is named, the benefit then to be payable to the legal representative of the deceased member.” No other beneficiary was named by Hunt after the death of his wife, although he had a right to make such an appointment at any time after her death.
The administrator, under the directions and orders of the probate court, paid the proceeds of the insurance certificate to the creditors of Hunt’s estate, to the .•amount of $1500. Defendants J. S. Christian and T. J. -Anderson are sureties on the administrator’s bond. It is contended by the plaintiffs that the proceeds of the •certificate belong exclusively to the legal representatives, of John H. Hunt, and that his children are such .legal representatives, while it is contended by the defendants that the legal representative is the administrator, John D. Remsberg; and this constitutes the ¡sole question in controversy.
The question as to who constitutes the legal representative of the holder of an insurance policy is not very well settled. The proper interpretation seems to ■depend upon the context of the instrument where the term is used and the surrounding circumstances. In the case of Griswold v. Sawyer et al., 125 N. Y. 411, it was held, as summarized in 28 L. R. A. 383:
“The words ‘legal representatives’ mean, ordinarily, ■executors or administrators, and that meaning will be •attributed to them in any instance unless there be facts ■existing which show that the words were not used in their ordinary sense, but to denote some other and different idea. The facts in this case are not sufficient to ■change the ordinary meaning of this language, and we therefore must attribute to the insured an intention in conformity to the ordinary meaning given to those words.”
In Cox v. Curwen, 118 Mass. 198, the syllabus reads:
“A by indenture conveyed all the property inherited from his father to B in trust to retain and hold it ■during the life of A, to convert the real estate into personalty, to render accounts to him annually, and to pay to him from time to time the income, and, if necessary, part of the principal at the discretion of the trustee, for the benefit of A and his daughter, and after his death to transfer all the estate then remaining to his ‘legal representatives.’ Held,, that there was nothing in the indenture to show that the words ‘legal representatives’ were intended to have other than their ordinary meaning, ‘executors and administrators,’ and, A having devised the residue of the estate, that the trust estate should be conveyed by B to A’s executor, to be distributed according to the terms of the will.”
The second paragraph of the syllabus in the case of Johnson et al. v. Van Epps, 110 Ill. 551, reads:
“The words ‘legal representatives/ in a policy of insurance, as designating the beneficiaries, when there is nothing in the context or surrounding circumstances to indicate a contrary intention, mean ‘executors or administrators.’ A policy of insurance payable to the legal representatives of the assured is the same as if made payable to himself.”
In the case of Lodge v. Weld, 139 Mass. 499, it was said:
“There can be no doubt that the ordinary meaning of the term ‘legal representatives’ is executors and administrators. (Cox v. Curwen, 118 Mass. 198; Price v. Strange, 6 Madd. 159.) In wills the term may mean whatever the testator intended; but if the meaning is not controlled by the context, it means executors or adminisrators.” (p. 504.)
In volume 5 of Words and Phrases Judicially Defined (p. 4077) the case of Geoffroy v. Gilbert, 36 N. Y. Supp. 884, is summarized as follows:
“Primarily the words ‘legal representatives’ signify the executors or administrators of a deceased person. They, however, have been construed to refer to blood relations as heirs or next of kin, and are held to mean that class of persons where the circumstances indicate such intention, and where a father took out a life policy payable to his daughter four years old or her legal representatives, and she married and died before her father, her husband is not entitled to the proceeds of the policy.”
The ordinary meaning of the words “legal representative” is executors and administrators, and they will be given this meaning where there is nothing in the instrument in which they are used to indicate an intention to use them in any other sense. (Cox v. Curwen, 118 Mass. 198; Lodge v. Weld, 139 Mass. 499; Johnson et al. v. Van Epps, 110 Ill. 551.)
The insured in this case named his wife as beneficiary. After she died there remained three small children, and he might at any time for several years thereafter have named some other person, but did not do so. It must be assumed that he knew of this condition in his certificate and failed to appoint another beneficiary for some reason satisfactory to himself, but which is not clearly expressed. He evidently thought that a beneficiary and a legal representative were not persons belonging to the same class or they would not have been mentioned as they were in the certificate, which says if there be no beneficiary the money shall go to the legal representative of the deceased member. It would have been very easy to change the words “legal representative” to “children,” if that had been the desire, and then the intent would have been unmistakable. It seems unreasonable to assume that Hunt was familiar with the narrow margin of difference between these phrases, and how by interpretation they could be made to mean the same thing or otherwise. It seems more reasonable to assume that if he so understood he would have been sufficiently solicitious for his children to have made his meaning clear. We do not know why he neglected to appoint another beneficiary. We only know that he allowed to stand unchanged language which in its ordinary meaning justified the interpretation placed upon it by the insurance company when it paid the money, and by the administrator and the probate judge who officially exercised jurisdiction over it.
The ordinary meaning of the language used would lead to this conclusion, and we are unable to find anything either in the instrument where this language is used or elsewhere in the case which to our minds shows any other intent. The judgment is reversed, with direction to enter costs in favor of the defendants. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought in the district court of Dickinson county for the purchase price of a hot-air furnace ($125) and bath, lavatory and toilet fixtures ($434), and to foreclose a mechanic’s lien on residence property in the city of Hope. There was an oral contract of purchase made with defendant Alfred D. Martin, about which there is no dispute, while the title to the real estate was held by the wife, defendant Helen F. Martin.
The defendants answered jointly, and alleged that the furnace, bath and water fixtures were sold under a guaranty, but that they utterly failed to meet the requirements ; that defendant Alfred D. Martin agreed to pay the plaintiff for such improvements, provided the plaintiff should do the work as contracted; that after repeated notices on the part of the defendants of the failure of the improvements to meet the requirements, and repeated attempts on the part of the plaintiff to adjust and perfect the same, and its failure so to do, Alfred D. Martin had several times requested the plaintiff to remove and take away the furnace, bath, lavatory and toilet fixtures. The defendants also alleged that, as constructed, the improvements put in by the plaintiff were entirely worthless. They further alleged that the improvements were all completed and put in the residence by the plaintiff more than four months prior to February 13, 1908, which date seems to be the time of filing the mechanic’s lien statemient by the plaintiff.
The jury returned a verdict in favor of the plaintiff against defendant Alfred D. Martin in the sum of $45. The plaintiff filed a motion for a new trial on all the statutory grounds, which the court denied and rendered judgment against Alfred D. Martin for the amount of the verdict, but allowed no lien upon the property. There were no special questions submitted to the jury nor findings made by the court, and we are unable to say whether the lien upon the property for the amount of the judgment was refused on the ground that the installing of the fixtures was no improvement to the property — there being evidence to show that they were of a value, if taken out, at least equal to the amount of the verdict — or whether the court found that the statement of the lien had not been filed within the time prescribed by law. The abstract Contains no evidence as to the time of the filing of the statement of the lien, nor is it therein asserted that there was no evidence tending to prove that the work was completed more than four months before the filing of such statement. We must, therefore, assume that the court refused the lien for the reason that it found on the evidence that the work had been completed more than four months before the filing of the statement.
It is urged that the court erred in allowing a witness to testify, after he had shown some qualifications, that the heating and water plants as installed were worth nothing;, and it is contended that, as the defendants retained the property, they were under obligation to pay for it whatever it was worth for any purpose whatsoever, in accordance with the decision in Aultman v. Mickey, 41 Kan. 348. We have no intention of departing from that decision, but it was competent for the defendants in this case to prove that the machinery or appliances were worth nothing for the purpose for which they were installed, and for the plaintiff to prove, either by cross-examination or by independent evidence, their value for any other purpose, as it in fact did.
Again, it is urged that the court erred in its instructions to the jury. The record shows that the court instructed the jury orally, and one sentence of the instructions, as transcribed, appears to be so erroneous and so inconsistent with the other portions that it necessarily suggests that there was a mistake in transcribing. The correct rule on the same subject, however, follows in the very next sentence, and defines the true measure of the damages which the defendants were entitled to-offset against the purchase price. The motion for a. new trial is based upon the same alleged error. If we assume that the instructions were orally given to the-jury just as reported, still it must follow that the second statement of the rule was intended as a correction of the imperfect statement preceding it.
The verdict is sustained by ample evidence, and the-judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellee brought this action against the appellant in the district court of Johnson county for a divorce, on the grounds of extreme cruelty and gross neglect of duty. As provided by statute, the May term of the district court of Johnson county, in the year 1909, opened May 3. Judge Sheldon, who was the qualified and acting judge of the district embracing this county, was sick and unable to attend, and the members of the bar elected as judge pro tem. Hon. S. T. Seaton, who qualified and proceeded to discharge the duties of judge of the court during the entire term.
On May 22 Judge Sheldon died. Judge Seaton continued to act as judge pro tem. in this and other cases, and on the 24th day of May this case was called for trial, and was heard, and at the close of the hearing was taken under advisement until June 3, 1909, when it was decided in favor of the plaintiff. The plaintiff was awarded a divorce, and granted as alimony a tract of 41.53 acres of land, which was all the land owned by the defendant, who had little, if any, other property. On this tract of land there was, at the time of the marriage, a mortgage of $1500, which the plaintiff’s father subsequently paid off.
On June 5, 1909, a motion for a new trial was filed. On the same day, the governor of the state appointed Hon. J. O. Rankin district judge to fill the vacancy caused by the death of Judge Sheldon, and Judge Rankin duly qualified on June 7. Neither in the trial nor in the motion for a new trial was there any objection made to Judge Seaton’s acting as judge in the case, or to his right or authority so to do. On July 16, however, a notice was served upon the plaintiff’s attorneys by the defendant’s attorneys that the motion for a new trial would be presented on the 17th before Judge Rankin. It is stated in the briefs, however, that Judge Rankin did not appear at the courthouse in Johnson county on the 17th day of July, and Judge Seaton retained jurisdiction and denied the motion for a new trial.
On July 22 the defendant filed a motion to set aside the order of Judge Seaton denying the motion for a new trial and asking the reinstatement of the motion, and the court — Judge Rankin presiding — denied the motion.
Numerous objections are made to the legality of the judgment and decree in this case, and the proceedings upon the trial. There are only two questions, however, that we consider entitled to discussion: (1) Whether the judgment and decree rendered by Judge Seaton is valid as the act of a judge de jure or de facto, or void as being an assumption of power without color of title to the office; (2) whether the petition and evidence are sufficient to sustain a decree of divorce on the grounds charged — extreme cruelty and gross neglect of duty.
It will be observed that the defendant agreed, or at least acquiesced by making no objection thereto, in Judge Seaton’s acting as judge in the case, until after the motion for a new trial was filed. It is evident that Judge Seaton could not sit as judge to try the question whether or not he was the judge; and as a general rule a litigant in court, in which there is a judge assuming to preside under color of right so to do, can not raise the question as to the right of the judge so to act. To countenance such a proceeding would lead to endless confusion. The proper course to determine the right of' one assuming under color of authority to be judge to. act as such is an action in quo warranto by the county-attorney or the attorney-general in the name of the state. One adversely claiming the office may bring the: action in his own name. (Civ.. Code, § 654, Gen. Stat. 1901, § 5150, Code 1909, § 681.)
It has been said that a judge pro tem. is but a substitute judge, and that as Judge Sheldon died before the trial of this action the office was vacant, and as there, was no judge of the district living there could be no. substitute. Judge Sheldon, however, was living and was unable by reason of sickness to attend the district, court of Johnson county at the opening of the May term, and the members of the bar elected Judge Seaton, in conformity to the provisions of the statute. That, he was the de jure, as well as the de facto, judge of the court from the time of his election until the death of Judge Sheldon is not and can not be questioned. He. derived his title to act as judge by an election by the. members of the bar, held in accordance with the laws, of the state. His tenure of office would certainly have, expired, had Judge Sheldon recovered, upon the appearance of Judge Sheldon in court prepared to reassume his duties. It probably did expire upon the death of Judge Sheldon, but he continued to act as judge, and was recognized by the officers of the court, the members-, of the bar, and all connected with the court, up to and' including his decision of this case and the motion for a new trial therein. He was the de facto judge as to all' business during that time in that court. He acted in good faith and under the color of authority, and none of his acts as such is invalid by reason of technical want of authority.
The decree of divorce is based upon the charge of gross neglect of duty, and it is urged that neither the petition nor the evidence is sufficient to sustain the decree. No objection was taken to the sufficiency of the petition before answer, and no demurrer was filed to the evidence after it was introduced. Under these ‘circumstances, we think both the petition and the evidence are sufficient to sustain the decree. The defend■ant’s failure to furnish the means to support the plaintiff and her child, when he was able so to do, is the principal charge of gross neglect of duty; but there are also allegations of indignities offered, calling her bad names, and fighting with her, and these allegations are •somewhat weakly supported by the evidence.
It is further contended that the allowance of alimony is unreasonable, but it is shown by the evidence that, in addition to the 1500-dollar mortgage which the plaintiff’s father paid, the plaintiff had furnished her husband $750 in cash. It also appears that the defendant is an able-bodied man, and that the plaintiff’s health is not good, and that she has the support of their child. Everything considered, we can not say that the decree is inequitable.
The judgment is affirmed. | [
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Per Curiam:
The determining question in this case is whether the appellant’s claim to the school land in question was legally canceled before the purchase of the land by the appellee’s grantor.
The school land was first purchased in 1889, and in 1892 the certificate was assigned to the appellant. Thereafter no interest payments were made thereon. In 1896 the county clerk of the county issued a proper notice of forfeiture, and, on the return thereof by the sheriff, entered upon his school-land record, opposite the description of this tract, the words: “Reported September 15, 1896. Forfeited December 10, 1896.” It is conceded that if this were the only evidence in regard to the forfeiture it would be sufficient under chapter -378 of the Laws of 1907 (Gen. Stat. 1909, §§7692-7696), but it is contended by the appellant that the sheriff who made the return, being called as a witness, testified to facts which prove that no legal service of the notice was made. His evidence is not very positive, and is to some extent contradicted by the evidence of the appellant.
The court below having found in favor of the appellee, we should construe the evidence most favorably to sustain its finding. The sheriff testified, in substance, that at the time he had the notice for service and return it was his best recollection that the appellant was not in the county, and that the land in question was unoccupied; that he posted a copy of the notice on the land, and also a copy in the office of the county clerk. True, he does not say that he posted it in a “conspicuous place” in the office of the county clerk, but his evidence, under the provisions of the statute,, is immaterial, unless it tends to overcome the presumption which the statute provides shall arise from the indorsement by the county clerk of certain words upon the school-land record; and the sheriff’s evidence does not show that he did not post the notice in a “conspicuous place” in the county clerk’s office.
However this may be, we think the circumstances shown by the evidence — that the appellant lived quite near the land in question for about ten years after he had learned from the county clerk that his claim to the land was canceled, and during all those years exercised no act of ownership over the land, but to all appearances acquiesced in the forfeiture proceedings — es-topped the appellant from claiming this land as against, the appellee’s grantor. Therefore the appellee’s grantor had good title to the land, and his deed to the appellee conveyed good title to her.
Considering the evidence in the most favorable light to the appellant, we think it is sufficient, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Ella McMahan recovered a judgment in ejectment against S. S. Noble and L. G. Noble, who appeal.
The plaintiff claimed under a tax deed, good upon its face and over ten years old. The defendants maintain that the action was barred by the two-year statute of limitation. The trial court must have found that there had not been an adverse occupancy for that period, and we can not say that the evidence on this subject, which was somewhat vague and conflicting, compelled a contrary conclusion.
Apart from the statute of limitation, the rights of the defendants rest wholly upon a decree in favor of' their grantor barring the interest of the plaintiff. The plaintiff claims that the decree was void from the beginning, and has procured an order setting it aside. The defendants deny that it was void, and maintain that they are not affected by its vacation after their' rights had attached.
Gn March 15, 1906, Miss S. E. Knight, who then owned the property, save for the plaintiff’s tax title, executed a deed to Miss L. L. McGuire. An action to quiet title was begun April 6, 1906, in the name of L. L. McGuire, service being made upon Ella McMahan, the-present plaintiff, by publication. Judgment by default (the decree in question) was rendered May 31, 1906. L. L. McGuire deeded to L. G. Noble, June 1, 1906. The judgment was vacated, apparently without notice to-the Nobles, January 9, 1908.
Miss McGuire testified that she never had any interest whatever in the property, but that she consented to the use of her name in the litigation,' at the solicitation of a neighbor, a Mr. Waterbury; that she signed the affidavit for publication and acknowledged her signature to a notary public over the telephone, but did not in fact swear to it. This testimony does not warrant holding the judgment taken in her name a nullity. Inasmuch as she held the formal legal title,-she was competent to maintain the action although she had no beneficial interest. (30 Cyc. 77-82.) The affidavit was. good upon its face, and was genuine in the sense that the purported affiant really signed it and the notary attached his jurat. Its language showed that it was intended to be sworn to and to be used as a sworn statement. It was not wholly without evidential force. It served its purpose of advising the court whether conditions existed which authorized a service by publication ; it was found sufficient, and acted upon. The fact that no oath was actually administered does not render the judgment absolutely void. (See, as bearing upon somewhat similar questions: James v. Logan, 82 Kan. 285; Davis v. Land Co., 76 Kan. 27; Pennoyer v. Neff, 95 U. S. 714.)
But if the judgment itself was not a nullity, neither was the order vacating it. The* order was perhaps erroneous, since it was apparently based upon the theory that the j udgment was void. But as between the parties there were abundant grounds for setting aside the judgment, either for irregularity because the allegations of the affidavit for publication were untrue or under the statute authorizing the reopening of a judgment founded only on constructive service. It is said that generally the rights of third persons who have acted in reliance upon a judgment are not affected by its subsequent vacation, unless it was void from the beginning. (3 Cyc. 462; 23 Cyc. 973.) This is true as to purchasers at a sale under the judgment, and perhaps holds good wherever a title purports to be created or transferred by the judgment. But where the judgment merely declares a status, the effect of its vacation upon intervening rights is disputed, and depends upon the extent to which a stranger is chargeable with notice that it is not absolutely final, but is still open to attack. (See note, 27 L. R. A., n. s., 735.)
Assuming that in the present instance the Nobles were not affected by the setting aside of the decree, provided they purchased in good faith in reliance upon it, the trial court must be presumed to have found that they were not in fact innocent purchasers, and the evi dence warrants such finding.' Miss McGuire was obviously only a nominal plaintiff. She merely permitted her name to be used by someone who had a béneficial interest in the property. When the action to quiet title was brought in her name S. S. Noble had already contracted with Miss Knight for the purchase of the property and made a part payment, as the result of negotiations begun, according to some of the evidence, before the deed to Miss McGuire was executed. Clearly Miss McGuire was acting in behalf either of Miss Knight, the seller, or of the Nobles, the buyers. She herself knew only Mr. Waterbury in the ■ transaction, and the record fails to disclose for which party he was acting. The business was 'conducted for Miss Knight by her attorney, R. M. Piatt. He testified that he had nothing to do with the action to quiet title; that in February or March he told S. S. Noble of the outstanding tax deed, and told an occupant of the property that thereafter he would have to settle with Noble for the rent. To the question, “You contemplated a suit to quiet title at that time, didn’t you?” he answered, “I think he [Noble] did.” S. S. Noble testified that he had not had “personal knowledge” of the quieting title suit. The attorney who examined the abstract said that Noble mentioned, when he employed him for the purpose, that “it was a title that would go through a quieting suit.” Noble paid $50 at the time he contracted to buy the property. Miss Knight’s recollection was that she received some small amount of money at the time she made the deed to Miss McGuire, and it may be reasonably inferred that this was the part payment made by Noble. We think this evidence justified a finding that the Nobles bought the property with knowledge of the outstanding tax title and arranged to have the deed made to Miss McGuire, and to have her convey to them after the title should have been quieted in her name. In that case' Miss McGuire was acting for them, they were the persons beneficially interested in the suit to quiet title — were substantially the plaintiffs therein— and the order setting aside the judgment rendered it unavailable to them as a defense in this action.
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Per Curiam:
This action was commenced by the appellee, a minor, through his next friend, in the court of common pleas of Wyandotte county, February 6, 1907, to recover damages on account of injuries received while in the line of duty as an employee of the appellant. The plaintiff recovered a verdict for $2000, and the railroad company appeals.
The plaintiff was assisting in cutting rails, which required several employees — one, at least, to hold the rail, one to hold the chisel, and another to use the hammer, or sledge. The plaintiff was engaged in holding the rail. He charged negligence upon the part of the defendant in using a defective hammer and chisel, and in the negligent use of them, whereby a small piece' of metal hit him in the eye and destroyed it. On the trial . the jury returned findings of fact with the general verdict which read:
“(1) Ques. Did the plaintiff receive any injuries while working for the defendant? Ans. Yes.
“ (2) Q. If you answer question 1 in the affirmative, state whether his injury was caused by a piece of steel striking his eye. A. Yes.
“ (3) Q. If you answer question 2 in the affirmative, state where the piece of steel came from. A. From the chisel.
“(3-sf) Q. If you answer question 2 in the affirmative, then state what caused the piece of steel to break off. A. Through the inexperience or carelessness of the man striking or the man holding the chisel.
“ (4) Q. Was a rail being cut at the time of the accident? A. Yes.
“ (5) Q. What was plaintiff doing at the time of the accident? A. Holding the rail.
“ (6) Q. Was a chisel being used in cutting the rail? A. Yes.
“ (7) Q. What was the appearance of this chisel before the accident, as to its condition? A. It looked new.
“(8) Q. Were any defects observable on the chisel before the accident? A. We know of none.
“ (9) Q. If you answer question 8 in the affirmative, state fully the defects which were so observable. A. We know of none.
“(10) Q. Was the chisel in good condition and repair just prior to the accident? A. It looked new.
“ (11) Q. If you answer question 10 in the negative, state fully in what respect it was not in good condition or repair. A. Do not know.
“ (12) Q. If you answer question 10 in the negative, state how long it had been out of repair or in poor condition. A. Don’t know.
“ (13) Q. Was the chisel of an approved pattern for the work for which it was used and made ? A. Yes.
“(14) Q. Was the chisel made for the purpose of cutting rails? A. Yes.
“(15) Q. Do you find the defendant guilty of any negligence? A. Yes.
“(16) Q. If you answer question 15 in the affirma tive, state fully in what the negligence consisted. A. Of defendant not instructing plaintiff, who was inexperienced, as to the danger of the work he was assigned.”
From these findings it will be seen that the only negligence imputed to the defendant is the failure to warn the plaintiff of the dangerous character of the work he was doing. The plaintiff was a minor and without experience in that kind of work. It may be fairly inferred from the findings of the jury that all the utensils ■used in doing the work that was being done at the time the plaintiff was injured were, so far as could be observed, in perfect condition and of the most approved kind. It does not appear that there was any reason to anticipate danger upon that occasion or that there was any device known by which the plaintiff could have protected himself from injury if he had anticipated danger. It seems that any warning that could have been given to him would have been useless.
' . The evidence does not show where the piece of metal came from that struck the plaintiff, but the inference, is quite satisfactory that it came from a nick in the chisel, an accident that is said to be very rare, not having occurred before within the knowledge of the foreman, Lightfoot, during twenty years’ experience in that business.
In view of the facts found by the jury and the evidence in the case we think the mere fact that the plaintiff was not warnéd that he was working in a dangerous business will not sustain a verdict. The court should have granted a new trial. The judgment is reversed. | [
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Opinion by
Simpson, C.:
A motion was filed to discharge the attachment issued in this case, for the reason “that it is not true that at the commencement of this action, nor at the time of the issuance of said order of attachment in this cause, the said defendant was indebted to the plaintiff herein in the sum of $365, nor in any other sum of money.” The plaintiff sued for the yearly rent of a leased farm, and caused an attachment to issue, and she levied on the crops growing and gathered, under § 28, chapter 55, Comp. Laws of 1885, alleging as a cause for the attachment that the sum of $365, one year’s rent, was due and unpaid. The court below heard the evidence on the motion to discharge, and sustained it, and this is the error complained of here. It is urged that this ground of attachment cannot be inquired of, because that is the cause of action, and if the court should discharge the attachment it would be virtually a decision of the case on its merits. Without stopping to point out the distinction between a ruling on a mere ancillary question, and a decision on its merits, we have only to refer counsel to what is printed in their own brief, as the declaration of this court in the case of Bundrem v. Denn, 25 Kas. 430, and to declare that we are bound and concluded by the opinion in that case. It but announces the familiar law of the state, and the ruling of the learned judge below was in accord with it, and must 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 brought in the district court of Bourbon county, October 15, 1884, by S. P. Snow against C. W. Mitchell, for the recovery of $2,206, and interest and costs. The basis of this action is a judgment ren ■dered in the district court of Arapahoe county, Colorado, on March 3,1881, for $2,200.08, and $6 costs, in favor of Lucius Snow and against C. W. Mitchell, which judgment was duly assigned on June 5, 1884, by Lucius Snow to the plaintiff, S. P. Snow'. The basis of the Colorado judgment was a judgment rendered on November 30, 1877, in the circuit court of the United States for the district of Kansas, for the sum of $1,558.69, with 12 per cent, interest and $34.40 costs, in favor of Lucius Snow and against C. W. Mitchell and Samuel Sherrill. The basis of the judgment rendered in the United States circuit court for the district of Kansas, was a promissory note for $1,360, executed by the said Mitchell and Sherrill to the plaintiff, S. P. Snow, dated January 23,1875, and assigned to Lucius Snow'. Both the U. S. circuit court for the district of Kansas, and the district court of Arapahoe county, Colorado, had jurisdiction of the defendant, Mitchell, personally, and also had jurisdiction of the subject-matter of the action. On December 29, 1884, the defendant, Mitchell, filed an answer in this case in the district court of Bourbon county, which answer is in substance as follows: (1) A general denial, except as to such facts as are elsewhere admitted in the answer; (2) the plaintiff’s claim w'as based on a promissory note made by Samuel Sherrill and delivered to the plaintiff, S. P. Snow, for the sum of $1,360, dated January 23, 1875. Sherrill purchased of the plaintiff certain real estate and executed his several promissory notes for the purchase-price thereof, and the note of $1,360 was one of the notes so executed. About April, 1875, the plaintiff, S. P. Snow, requested the defendant Mitchell to indorse this note for the special benefit of this plaintiff; and without any consideration whatever this defendant wrote his name across the back of this note. When suit was brought on this note in the circuit court of the United States by Lucius Snow, he, the defendant, was advised by his attorneys, that, by reason of the assignment of the note to Lucius Snow, he, the defendant, could not plead that he indorsed the note without consideration therefor, and made no defense to the action. When suit was brought on the judg ment in Arapahoe county district court, Colorado, although believing that S. P. Snow was the real party in interest, he, the defendant, was again advised by his attorneys, that by reason of the assignment he could not interpose the defense of want of consideration for the indorsement, and no defense was made to the action. He has learned since said judgments were rendered that Lucius Snow never owned said note; that the suits were brought in his name solely, and for the express purpose of preventing this defendant from making any defense thereto, and that both of said judgments were obtained through fraud, and by a party who had no interest in the subject-matter of the action.
The plaintiff demurred to this answer upon the ground that it does not state facts sufficient to constitute a defense to the plaintiff’s action, which demurrer was overruled by the court, and the plaintiff excepted, and as plaintiff in error brings the case to this court for review.
We think the court below erred. The only defense set forth in defendant’s answer is, that the judgment which constitutes the basis of the plaintiff’s action was founded upon another judgment, which was founded upon a promissory note which was indorsed by the defendant without consideration. Now the fact that the note was indorsed without consideration can constitute no defense to this action. It might have been a defense in the action in the U. S. circuit court if it had-been properly interposed in that action. But it was not interposed in that action; and when judgment was rendered in that action, this indorsement without consideration ceased to be a defense in that or in any other action. No defense can be set up against a judgment which might with pr0per ¿lillgence have been interposed in the action in which the judgment was rendered.
The judgment and order of the court below will be reversed, and the cause remanded, with the order that the demurrer to. the defendant’s answer be sustained, and for such other and further proceedings as may be proper in the case.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is an action brought by Matthews, as plaintiff, against Bell, in the Shawnee superior court, to recover damages for a malicious prosecution. The material facts are, that on the 30th day of April, 1885, Bell caused the arrest of Matthews for a violation of the prohibitory law. Matthews was unable to give bail, and was confined in the county jail for several weeks. On the 28th day of May following, the county attorney, in open court, and in the presence of Bell and the witnesses he had procured to be subpenaed, dismissed the information, and Matthews was discharged from custody. The county attorney being examined as a witness in this case, stated that Bell came to him and stated what he himself had seen, and what he could prove about Matthews keeping whisky for sale at his house, and taking it out in baskets and selling it on the streets; of per sons who had bought whisky from him; of persons who had been seen carrying whisky away from the house; of persons who had been seen to go to the house sober and come away drunk. It seems that the witnesses by whom this state of facts was to be proven, according to the statements of Bell to the county attorney, were in the court house at the time of the dismissal of the information. They were subsequently examined as witnesses on the trial of this cause, and failed to substantiate a single statement made by Bell to the prosecuting officer. The case was tried by a jury at the March term of the court, 1886, and resulted in a verdict for Matthews for $350. There was a motion for a new trial overruled, and Bell brings the case here. The errors complained of and insisted upon in the argument and brief of the plaintiff in error, are: (1) that the dismissal of the criminal case by the county attorney, of his own motion, is not such a determination of the case in favor of the accused as will justify an action of this kind; (2) that the evidence as shown by the record is conclusive that the prosecuting witness Bell had probable cause for filing the information; (3) that Bell should have been permitted to testify “ that from what you saw yourself, and from the information you had from your wife and Mr. Manning and these other parties, that you believed yourself justified in filing this information;” (4) that Bell was entitled to have the first instruction asked by him, given to the jury without modification; (5) error in the twelfth instruction given by the court to the jury, “that they might take into consideration the proper and reasonable expenses of conducting this suit;” (6) that as Bell acted under the advice of the county attorney in causing the information to be filed against Matthews, there could be no recovery.
These are all the questions discussed, and we shall pay no attention to other questions which might arise on this record.
I. The first error assigned can be disposed of in a very few words. The cases of Marbourg v. Smith, 11 Kas. 562; Kelley v. Sage, 12 id. 109; Mitchell v. Sullivan, 30 id. 231, are against the contention of the plaintiff in error.
II. In this case, there being a dispute about the facts tending to show the existence or want of probable cause, that question was submitted to the jury, and their general verdict for Matthews is a finding of a want of probable cause. As we view the evidence, there was sufficient to sustain such a finding.
III. The question asked Bell on page 66 of the record was in the most objectionable form, and the ruling of the court must be affirmed ou that ground alone. He was not asked to state what his honest belief was as to the guilt or innocence of Matthews at the time he caused the information to be filed, and how the honest belief was produced; but the question asked him assumed that the witness saw things, that his wife told him other acts of Matthews, that other persons had given him information, that Mr. Manning had made certain statements to him, and that these things had made him feel that he was justified in filing the information. It is not denied but that the defendant, in actions of this kind, can testify to his honest belief as to the guilt of the plaintiff at the time of the arrest, but the questions propounded must not be leading and full of assumptions as this one was. It was objected to at the time, and the court refused to permit it to be answered. The plaintiff in error did not vary his questions, or try to divest them of their objectionable features, but dismissed his witness from the stand, and assigns this ruling of the court as error. No court would allow this mode of examination by a party of his own witness, if objection were made.
IV. The first instruction asked for by the plaintiff in error was, in substance, that if the jury believe from the evidence that the defendant acted on the advice of the county attorney in filing the affidavit upon which Matthews was arrested, and upon such advice had an honest belief in the validity of the proceedings in said action, and on such advice was under an honest belief that he was using such process as the law provided for the enforcement of the laws of the state, having first given a full statement of the facts of the case to the county attorney, then there was not such malice in the wrongful use of legal process by him as would entitle the plaintiff to re cover in this action. The court refused to give this instruction as written, but did in the general instructions give parts of it. The plaintiff in error excepted to its modification. Let us examine it. Its first assumption is, that Bell had acted on the advice of the county attorney in filing the affidavit upon which Matthews was arrested. The evidence shows that Bell went to the county attorney, told him what he saw, and what other persons would swear to, and the county attorney said: “If you can prove such facts, I can convict Matthews.” This clause of the instruction would impress the jury with the belief that all Bell had done had been on the advice of the county attorney, when nothing could be further from the fact. He could not prove what he told the county attorney he could, by other persons, and on the strength of which statement the county attorney said he could convict Matthews. This instruction was properly refused for this reason. The second clause in the instruction was not only misleading, but was not applicable to the facts developed in this case. Matthews had made no claim that the affidavit for his arrest or the information filed against him was of no validity. There was no such question in this case, and Bell had no honest belief about it. This clause was intended, with the one preceding, to fasten in the minds of the jury that all these things had been done on the advice of the county attorney. The third clause of the instruction, that on such advice he had an honest belief that he was using the process as the law provided for its enforcement, etc., is a part of the same plan and design. In this case all it was necessary for Bell to have was an honest belief in the guilt of Matthews, and that honest belief produced by the acts of Matthews which he saw, and the existence or performance of those other acts, information of which he obtained from persons he believed to be reliable and credible. If at the time he caused this arrest he had such honest belief, produced in such a manner, it would probably be not only the existence of probable cause, but the want of malice. The instruction was properly refused. The court subsequently gave the law, upon the subject of the conduct of Bell in consulting with the county attorney, so strongly in favor of the plaintiff in error that if the jury for a moment believed that the statements made by him to the county attorney were true, the verdict must have necessarily been in his favor.
y. In the twelfth instruction, this sentence occurs: “that they might take into consideration the proper and reasonable expenses of conducting this suit;” and this is said in connection with the question of damages. It is very evident from a cursory glance at the record, that the use of the words “this suit” is a clerical mistake, either made by the judge when he drafted the instructions, or by the clerk in transcribing them. This is proved by the connection in which they are used. The instruction is as follows:
“12. If you-find for the plaintiff, it will be your duty to award him such damages as will adequately compensate him for such loss and injury, which from the evidence you shall find he suffered. The plaintiff should be made whole for his loss of time, his anxiety and suffering, and any injury to his reputation, caused by his being arrested and imprisoned; and if you allow anything on account of vindictive or punitive damages, you may in your discretion in assessing the amount of such damages take into consideration the proper and reasonable expenses of conducting this suit.” .
Now the plaintiff below proved an attorney’s fee of $50 which he paid or became liable for in the defense of the criminal prosecution, but did not offer to make any such proof in this action. The instruction would not have been applicable to the state of facts presented here. There would have been no necessity for such instruction, if the evidence referred to had not been given. The court below, having in mind this evidence, instructed the jury very properly, that the plaintiff could recover for such fees, and no one better than the learned judge who tried this case knew the law on that question. It is one of those mistakes which sometimes creep into a record, and entirely change the meaning of an instruction, that seemingly no amount of care can guard against. The instruction as corrected is a proper one, and not subject to the objection made.
VI. The sixth-assignment of error has already been considered under that of the fourth, and it only remains to say that this plaintiff in error did not go to the county attorney with a frank statement of the facts. He misconstrued and distorted the acts of Matthews, and he failed to produce the witnesses to prove the other statements he made to the prosecuting officer. When the witnesses he named were produced in court they not only failed to sustain his assertions and promises to the county attorney, but testified to the reverse of what he had said. He sought the county attorney, he gave him his version of the acts of Matthews, and asserted what he could prove by others. Almost every statement he made turns out to be untrue, or so discolored that its resemblance to the truth is very faint. The county attorney told him that if he could prove his statements, Matthews could be convicted. This was not advice to Bell: it was an expression of opinion by the officer of a certain result if the facts were as stated. Bell made the affidavit for arrest because of his own assertion of the existence of certain facts, not because the county attorney advised him that it was his duty to do so. We see nothing in this state of facts that would defeat a recovery. This disposes of all the questions urged by counsel for plaintiff in error for reversal.
On the state of facts presented by this record there arises a well-grounded suspicion that the criminal process of the court was used for the purpose of dispossessing Matthews of a house he had rented from Bell; and if this is so it was such a prostitution of the instrumentalities of justice as not only to justify the very reasonable verdict of the jury, but to compel this court, in considering the various proceedings of the trial of this case, to look with a most lenient eye on all of the rulings of the court below, and sustain its judgment if there was not too great a departure- from thé principles and rules that conduce so much to the due administration of the law. We think that in this case substantial justice has been done, and we recommend an affirmance of the judgment*
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.:
The evidence and findings brought up in the record make it clearly appear that the land in controversy was purchased jointly by S. N. Simpson and William C. Tenney. It was a partnership transaction, engaged in for the profits to be derived from the sale of the land after it had been subdivided and platted into lots, blocks, streets and alleys. The lucky opportunity to buy was discovered by Simpson, and negotiations for the purchase from the prior owner were carried on by him. The tract, which consisted of ten acres, was purchased on January 31,1879, for $250 per acre, the agreement being that one-half of the price should be paid in cash, and the residue in one year or less, at the option of the purchaser, with interest on the unpaid portion at ten per cent, per annum. The money necessary for the purchase was to be procured from eastern parties, and as an inducement for them to furnish the money, they were to have a sum equal in amount to that furnished out of the first profits arising from the sale of the real estate. Tenney conducted the negotiations for the money, and procured from the defendant, John F. Moors, $2,500, upon an agreement to return that amount and $2,500 additional out of the profits of the enterprise. In accordance with the agreement, the title to the land was taken in the name of Tenney, and he conveyed it to Moors to secure the repayment of the money furnished for its purchase, and the payment of the additional $2,500 of profit. Moors and wife, by power of attorney, authorized Tenney to lease, bargain, sell or convey • the land in such portions and on such terms as he deemed advisable. Simpson devoted time and special attention to the platting and sale of the land, while Tenney executed deeds for that sold, attended to the financial details by receiving payment on sales made, and to discharging the expenses and debts incurred in carrying on the enterprise. The business of the partnership was conducted without interruption until December, 1883, when Tenney refused to further recognize the rights of Simpson in the land, or to convey the same when sold.
This case is very similar to the one recently determined in this court where Tenney and Simpson were the principal parties, (Tenney v. Simpson, ante, p. 353; 15 Pac. Rep. 187,) and very little need be added to what was there said. It is contended here that no trust was created in behalf of Simpson by the written contract, or by the acts and agreements of the parties. We have no doubt that the writing signed by them, and set out at length in the report of the referee, created an express trust in favor of Simpson. The plan and purpose of the parties seem to have been clearly understood by them, and to have been explicitly stated in the written agreement which they executed. The writing of February 7,1879, points out clearly the parties, the interest of each, and the nature and subject of the trust. It recites that the land was puchased by Tenney and Simpson, and not by Tenney alone, on January 31,1879. It is claimed that the writing fails to describe the land with sufficient certainty to make it capable of ascertainment. This objection is untenable. In the written agreement the ten-acre tract of land purchased by the parties from Thomas is referred to as being the 'same tract that was described in the receipt given for the first payment on the land, and which is dated at the time of the purchase made by Tenney and Simpson from Thomas. In that receipt, which is signed by Thomas, a definite description of the ten acres is given, as well as the terms upon which it was sold. By this reference the terms and conditions of the receipt became a part of the writing which the parties signed. No particular formality is required in the creation of a trust, nor need all the condi4 ' tions of the trust be expressed in a single paper. The terms of the trust may be embraced in several papers, and it will be valid and operative if they are so referred to and connected as to clearly show that they relate to the same transaction, and together clearly point out the nature and objects of the trust. The written agreement and the receipt must therefore be taken together and treated as one instrument, and so taken they sufficiently express and define the trust. They show that although the title to the land was taken in Tenney it was actually purchased by Tenney and Simpson jointly, not for permanent use, but to be subdivided and sold for the profits to be gained therefrom. They disclose that the money was to be obtained on the security of the land itself, and the eastern capitalists furnishing it were to be repaid out of the profits arising from the sale, and in addition to the amount furnished they were to be paid $2,500 out of the first profits arising from sales for furnishing the money. Simpson was to receive one-half of the profits derived from the enterprise, while Tenney was to receive the other half, less the profits paid to the eastern parties for furnishing the purchase-money. The land purchased was to be conveyed by Tenney, “ acting for himself and for S. N. Simpson,” to the eastern parties furnishing the money, who were to hold it until they received back the amount furnished and the $2,500 of profits, when they were to reconvey it to Tenney “ for the benefit of himself and Simpson,” in accordance with the written agreement. It is thus seen that the written contract fully identifies the land, the terms of its purchase and disposition, and that the persons interested, as well as the respective interests which each held and was to take, can be ascertained without difficulty or doubt. When Moors was paid, either directly or through his agent Tenney, the $5,000 and any interest which accrued thereon, it was his duty to reconvey to Tenney. When so re-conveyed Tenney would hold the legal title in trust- for the partnership — “for the benefit of himself and Simpson.” We fail to see how there can be any doubt with respect to the intention of the parties, or with the nature and purposes of the trust. A great deal has been said in argument about Simpson causing the legal title to be taken in the name of Tenney for the purpose of defrauding existing creditors, and it is claimed that under § 8 of the act concerning trusts, no trust could result in his favor unless it was made to appear that the title was placed in Tenney “ without any fraudulent intent.” The statutory provision referred to applies, however, only where a resulting trust is claimed, and not where there is a written express trust, such as there is found to exist in the present case. And if it were a resulting trust which was sought to be established, we hardly see how the fraudulent intent to defraud creditors, if there were such, would avail the plaintiffs in error. They were not creditors of Simpson, had no interest in, and were not in any way affected by the claims and judgments which they say existed against Simpson. The referee, however, finds that no such fraudulent intent existed, and certainly there is nothing in the record showing that Simpson dealt otherwise than openly and fairly with Tenney throughout the entire transaction.
All the Justices concurring.
It is further contended that the trust stated in the written agreement should not in any event be enforced, because it is inequitable and unjust. It is said that the land which was purchased for $2,500 is worth $40,000, and that by the decree Simpson is given $20,000 worth of real estate without having furnished anything toward its purchase, and without at any time having held the legal title to the same. While the profits of the enterprise were enormous, we discover nothing in the contract of the parties, or in its results, that can be regarded as unjust or inequitable as between them. The fortunate chance of buying the laud was found by Simpson, and the money with which to purchase the same was found by Tenney. The land was bought and owned by both, and the purchase-money found by Tenney was obtained on the security of the land, and repaid' out of the profits arising from its sale. Simpson gave time and special attention toward putting it in a salable condition by surveying and platting it, and he also devoted his time to selling and disposing of it. There was no fraud or deception practiced by Simpson, and we see nothing that may be deemed disproportionate or unjust between the shares taken by each in the enterprise, when considered in connection with what they each contributed. Although it is claimed by Tenney that the services rendered by Simpson in the transaction were inconsequential, it seems that a different estimate was placed on them when the transaction was entered into. In writing to the eastern parties with a view of inducing them to loan the money for the purchase of the land, Tenney stated that the trade had been brought about by Simpson, and “that great wariness, skill, patience, secresy and perseverance were necessary.” He stated that Simpson was to lay out and sell the land, and was to receive one-half the profits. He further said that he had earned that share, and that he was a very skillful manager, whose share of the work “ was and is indispensable to my (and to your) profit.” We think that Simpson was entitled to the remedy sought; that he was the ,real owner of an undivided one-halt interest m the real estate, and as the accounting made seems not to be questioned, that the judgment and decree must be upheld except in one particular. In the accounting it is found that Tenney is indebted to Simpson in the sum of $57.31, and the court decreed that .in addition to the share of the one-half which is set off to Simpson, be shall be given such portion of the remaining half as will equal in value the amount found due to Simpson, viz., $57.31. In this there was error, as a personal judgment should have been rendered against Tenney for the amount found due on the accounting, and the judgment so rendered should have been declared a lien on that portion of the real estate set off to Tenney. To this extent the judgment and decree of the court should be modified, and when so modified it will stand affirmed. For this purpose the cause will be remanded to the district court. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is claimed that the district court erred in overruling the motion to set aside the report of the referee and grant a new trial, for the following reasons: (1) That if the Allen county district court for the November term, 1881, expired November 18, (and that, it is urged, was the plain intent and purpose of the stipulation,) then the filing of the report by the referee subsequently was a mere nullity, being unauthorized and therefore void; (2) That if the Allen county district court extended to and included January 30, 1885, any attempt on the part of the court to confirm the report or render judgment after that date, was unauthorized by the stipulation, which required not only that the report be submitted for confirmation, but also that judgment be rendered thereon, before the close of the Allen county district court; (3) That the referee, by failing to give notice to the plaintiff in error of the time when he would file his report, prevented him from having any opportunity to prepare and present a bill of exceptions.
The written stipulation of 'the parties provided that the report of the referee should be made prior to the expiration of the November term of the district court of Allen county for 1884. The court continued to January 30, 1885. The report was made prior to that day. The judgment was entered in the journal of the district court of Woodson county as of October 21, 1884. The stipulation, therefore, in this respect, was fully complied with. The adjournment of the November term of the court for 1884, to January 5, 1885, was a continuation of the November term to that time, and such term did not expire until January 30, 1885. We can find no statement in the record that all of the evidence presented upon the hearing is embraced therein, and therefore we must presume -that the findings of the trial court were made upon sufficient testimony.
Under the stipulation of the parties, the application for confirmation was heard in vacation, before the judge at Iola. It was supposed that, by having the judgment entered as if rendered at the October term of the district court for Wood-son county for 1884, no objection would be made on account of its rendition in vacation. Plaintiff below complied with his part of the stipulation, and the judgment rendered in vacation was set aside upon the application of the defendant below. He is now complaining, and alleges that because the judgment was not rendered before the expiration of the Allen county court, the court had no power to render the judgment at any subsequent time. Even if the part of the stipulation providing for the rendering of the judgment in vacation is invalid, still the district court had the power to hear and dispose of the report of the referee, in term-time. The report of the referee was confirmed at the March term, 1885, of the court for Woodson county, and judgment rendered at that term. This was the first term of the district court for Woodson county, after the filing of the stipulation for the reference of the case. The terms of the district court for Woodson county commence as follows: The first Monday in March, the first Monday in June, and the second Monday in October, in each year.
We cannot perceive that the failure of the referee to give notice to the parties of the time he would file his report was in this case in any way prejudicial. On December 16, 1884, Messrs. Pickett & Smith, then attorneys for the plaintiff in error, accepted notice of the hearing of the motion confirm to the report of the referee before the district judge, on December 19,1884; but the report of the referee was not filed with the clerk of the district court of Woodson county until December 20,1884. Undoubtedly Messrs. Pickett & Smith could have examined the report before December 19, and prepared a bill of exceptions therefrom. Messrs. Knight & Foust were notified by the referee, about December 10, 1884, of the pur port of his report; and that the same, with the evidence, exhibits, etc., had been forwarded to the district judge. This was ten days before the report of the referee was filed, and several days before the hearing of the report. The district judge informed these attorneys that he had the report, papers, etc., at Erie, where they could see them; therefore Messrs. Knight & Foust had several days in which to go to Erie, and prepare a bill of exceptions.
There is no showing in the record that Knight & Foust appeared before the district judge on December 19, 1884, at the hour named in the notice for the hearing of the motion, to confirm the report. The record recites that the plaintiff below “'appeared by H. D. Dickson, his attorney, the defendant below not appearing.” The record further recites, that the defendant below “had been duly notified of the time and place of the hearing of the motion.” It would seem that Knight & Foust did not reach Erie on December 19th until the hearing upon the report of the referee had been acted upon. Again, when the motion to set aside the report of the referee was overruled, on March 11, 1885, the attorneys for plaintiff in error might have made their motion for a new reference of the case. This was not done.
There are other matters presented in the briefs, but upon the record before us we think comment not necessary.
'The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The only question to be determined in this case is one of practice. The action was commenced by filing the petition in the district court of Wyandotte county, on the 2d day of February, 1885. On the 2d day of March the plaintiff in error (defendant below) filed a demurrer. The decision of the court overruling the demurrer was entered on the journal on the 29th day of April, 1885, “and the defendant allowed thirty days to answer.” The petition in error, to reverse the ruling of the court below on the demurrer, was filed in this court on the 10th day of June, 1885. On the 17th day of May, 1885, the railway company filed an answer and the cause stood at issue until the April term, 1886, when the plaintiff amended his petition and a trial was had, which resulted in the disagreement of the jury. Thereupon, the plaintiff took leave to amend his petition, and on the 20th day of May, 1886, filed an amended petition, and on the 1st day of June thereafter the railway company filed its answer to this amended petition. A trial was had on the amended pleadings at the July term, 1886, resulting in a verdict and judgment for the plaintiff, and the railway company brings the case here for review; so that at this time the case is here on a petition in error to review the ruling on the demurrer, and another petition in error is filed to review the proceedings on the trial.
A party who seeks to have the ruling of the district court on a demurrer to the petition, reviewed in this court, must elect to stand on the demurrer and at once bring the case to this court; or, an answer may be filed, and when the case is finally tried, if it is tried on the original petition, and then brought to this court by the party demurring, the ruling on the demurrer will be passed on here. If, after an adverse ruling on a demurrer to the petition, the defendant files an answer, he cannot be permitted to file a petition in error in this court to reverse the adverse ruling; he must await the result of the final trial. When a demurrer to the petition has been overruled and the defendant answers, and the plaintiff then is permitted by the court to amend the petition, and to this amended petition the defendant answers, and after a trial is had on the amended pleadings the defendant brings the case here for review, this court will not consider the sufficiency of the original petition. (Moore v. Wade, 8 Kas. 380; Briggs v. Tye, 16 id. 285; Rosa v. M. K. & T. Rly. Co., 18 id. 124; Gilchrist v. Schmidling, 12 id. 263.)
It is recommended that the petition in error be dismissed.
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.:
At the April term, 1886, of the district court of Cowley county, Henry Mowry was prosecuted and convicted for the murder of James P. Smith. He seeks a reversal on the alleged insufficiency of the evidence and supposed errors in charging the jury. It is conceded that he shot and killed Smith on the afternoon of April 21, 1886; but he defended on the ground that he was insane and irresponsible. There is testimony that in December, 1884, he began boarding at the house of O. F. Godfrey, his partner in business, whose family consisted of himself, his wife and two ohildren. While boarding there he became enamored, with Mrs. Godfrey, and frequently declared his love for her. She listened to his protestations of love for some time without informing her husband; but later she discouraged his attentions, and requested him to remain away from the house. He then became moody and morose, and declared that it was more than he could bear to be separated from her. About this time he had an interview with his mother, who testified that he was then in great distress of mind because of the cold treatment received from Mrs. Godfrey. • He declared his affection for her, stating that she encouraged his attentions at first, and that he had had illicit connection with her, and was the father of her infant child, but that now she repulsed him, and he begged his mother to intercede with Mrs. Godfrey to allow him to continue his visits at her house. On the morning of August 21, 1885, the day that Smith was killed, he called on Mrs. Godfrey and again begged her to renew her former relations with him, but she refused, and stated that she would inform Mr. Godfrey of his. conduct toward her. He then asked if anything occurred by which she should be without home, friends, or money, she would call upon him; and inquired if she would marry him in case anything should happen to Mr. Godfrey. She told him she would not, and he said, “ That settles it; we can’t be friends any longer,” and left the house. Later in the day he returned to the house and found Mrs. Godfrey alone, when he demanded to know whether she intended to tell Mr. Godfrey upon him as she had threatened to do. She informed him that she would, and he replied that he would just as soon shoot her, and he thought he would do it before night. He had a shotgun with him, and during the parley pointed it at her. She ordered him to leave the house, saying that she would call her son Frank and send him for her husband, and she followed him out of the house and did call her son and directed him to go and bring his father. After leaving the house he met Mr. Godfrey and informed him that he had had trouble with his wife, and that she had a story to tell him; to go clown to the house and hear it; and he asked him if he would promise to come back and hear his side of the story. This was agreed to by Mr. Godfrey, who immediately went to the house and had an interview with his wife, and returned to the hotel, where he again met Mowry. Mowry inquired if Mrs. Godfrey had told her story, and Mr. Godfrey replied that she had, and informed him that he could not come to the house again. Mowry then insisted that he should listen to his story, stating to Godfrey that the youngest child was his, and that he was going to have it; that lie would spend every dollar he had on earth, but that he would ruin the family or have that child. Godfrey left him at once and returned to his home, and had been there but a short time when he discovered Mowry coming towards the house with a shotgun in his hand. Godfrey immediately took his gun and went to the front door, and as Mowry started through the gate towards the house he ordered him to go. Mowry said, “I don’t have to,” and stepped back into the street. At this time Mrs. Godfrey ran in front of her husband, who pushed her aside, and Mowry then raised his gun and fired two shots through a window in that part of the house to which Mrs. Godfrey had been pushed. Mrs. Godfrey ran and called some workmen, who were engaged upon a building near by, for help. Mowry immediately started away from the house, reloading his gun as he went. He was pursued by a large number of persons who were in the vicinity. Smith, the deceased, was in the lead of those in pursuit of Mowry, and gained ou him as they ran. When Smith came up within about fifteen feet, Mowry turned with his gun and ordered Smith to halt, which he momentarily did. Mowry ran on again, followed by Smith, when he turned, brought his gun up, and halted Smith a second time. There was only a brief halt, for Mowry made another dash to escape, but was still pursued by Smith, who was closing in on him, when Mowry turned and a third time ordered him to stop, and almost at the same time fired at Smith, discharging a load of shot into his face and neck. Some one near by came up where Smith fell, and the only words he was heard to utter were, “Catch that man;” and he died within a few minutes after he was shot. Mowry was pursued until he was captured, but not until he had shot another of his pursuers. There is testimony that after his capture he stated that he shot at Mrs. Godfrey, and supposed he had killed her; and further, when told that he had killed Smith, he said that he was sorry he shot him; that he had told him three times to stop and he would not do it, when he shot him, and that he would do the same thing again.
It is insisted by counsel for the appellant, that his conduct toward Mrs. Godfrey, and his acts immediately before and after the homicide, are evidence of insanity. They offered testimony tending to show that about the time of the homicide he acted differently from what he had before, in this, that he was moody and morose, restless at night, and absentminded in the daytime, complaining of pain in his head, and on several occasions becoming excited, when he would yell, cry, laugh and sob by turns; breaking furniture and threatening to injure and kill those who were his friends, and that these and other incidents, all of which have not been mentioned, show unsoundness of mind. Some of the medical experts expressed the opinion that a person acting in the manner in which Mowry was represented to have acted, must have been insane, and some of them characterized it as epileptic mania. On the other side, it is insisted that there was a complete failure to support the plea of insanity; that his conduct showed an infatuation, illicit and without hope; that when he was repulsed by Mrs. Godfrey he schemed to separate her from her husband by telling him that she was unfaithful to him, and that he was not the father of the infant child; and also by threatening to ruin the family, if the child was not given up; and that his purpose was further disclosed when he asked her to be his wife in case of Godfrey’s death. There is testimony that he purchased a bottle of liquor shortly before the shooting, and several of the witnesses say that he appeared to be drinking and drunk upon that day. It is claimed that partial intoxication accounts for some of his strange and unusual actions, and that when his relations with Mrs. Godfrey had been exposed, and he had failed to intimidate Godfrey and cause him to part from his wife, he then drank liquor to nerve him for what he was about to undertake, deliberately secured a gun, loaded it, and provided himself with ammunition, and called at Godfrey’s house for the purpose of killing Mrs. Godfrey, and sought to carry out that purpose by shooting into the room where he supposed her to be.
We shall not undertake, nor is it necessary, to give a detailed statement of the mass of testimony which was taken in the case. We have examined it carefully, and we readily reach the conclusion thatjthe verdict of the jury ought not to be disturbed. There is much in the testimony showing design and intelligent efforts to accomplish it. His consciousness of guilt, his fear and efforts to escape after committing the felony at Godfrey’s house, his coolness and deliberation in three times halting his pursuer, and in firing the fatal shot, and his subsequent recollection of all that occurred during his flight and capture, make an exceedingly strong case showing responsibility, and it is difficult to see how the jury could have reached a different result.
There is an objection made to an instruction wherein the court states the test of responsibility in a prosecution where insanity is asserted as a defense. The court directed the jury that—
“If he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong, then the law does not hold him responsible for his act. On the other hand, if he was capable of understánding what he was doing, and had the power to know that his act was wrong, then the law will hold him criminally responsible for it. . . . If this power of discrimination exists, he will not be exempted from punishment because he may be a person of weak intellect, or one whose moral perceptions are blunted or illy developed, or because his mind may be depressed or distracted from brooding over misfortunes or disappointments, or because he may be wrought up to the most intense mental excitement from sentiments of jealousy, anger, or revenge. . . . The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by law to be criminal, so long as the person committing the act had the capacity to know what he was doing, and the power to know that his act was wrong.”
We think the court stated the correct rule of responsibility where insanity is asserted as a defense. The « right - and - wrong test” was approved by this court in The State v. Nixon, 32 Kas. 205. It is there said that—
“Where a person at the time of the commission of an alleged crime has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong, he is generally responsible if he commits such act or acts, whatever may be his capacity in other particulars; but if he does not possess this degree of capacity, then he is not so responsible.”
This test has received the almost universal sanction of the courts of this country. (Lawson on Insanity, 231-270.)
The defendant urges that the instruction is erroneous because it excludes the theory of an irresistible impulse or moral insanity. This question' received the attention of the court, and was practically decided, in The State v. Nixon, supra, although the question was not fairly presented in that case. It is there recognized as a dangerous doctrine, to sustain which would jeopardize the interests of society and the security of life. Mr. Justice Valentine says that—
“It is possible that an insane, uncontrollable impulse is sometimes sufficient to destroy criminal responsibility, but this is probably so only where it destroys the power of the accused to comprehend rationally the nature, character and consequences of the particular act or acts charged against him, and not where the accused still has the power of knowing the character of the particular act or acts, and that they are wrong.”
Further along, he says that—
“The law will hardly recognize the theory that any uncontrollable impulse may so take possession of a man’s faculties and powers as to compel him to do what he knows to be wrong and a crime, and thereby relieve him from all criminal responsibility. Whenever a man understands the nature and character of an act, and knows that it is wrong, it would seem that he ought to be held legally responsible for the commission of it, if in fact he does commit it.”
In a very recent case the supreme court of Missouri considered the refusal of the trial court to charge that if the defendant obeyed an uncontrollable impulse springing from an insane delusion, he should be acquitted. The court repudiated that doctrine, and Judge Sherwood remarked, in deciding the case, that “ It will be a sad day for this state when uncontrollable impulse shall dictate a rule of action to our courts.” (The State v. Pagles, 4 S.W. Rep. 931.) It is true that a few of the courts have adopted this principle, but by far the greater number have disapproved of it, and have adopted the test which was given in the present case. (Lawson on Insanity, 270, 308.)
The court was requested to instruct that if there was a reasonable doubt as to whether the defendant was intoxicated or insane at the time the offense was committed, there must be an acquittal. This request was properly refused. Insanity is a defense, and upon that question the jury were correctly charged; but a reasonable doubt of the defendant’s intoxication, or even if his drunkenness at the time was undoubted, would not necessarily exempt him from legal responsibility. While voluntary intoxication is no excuse for crime, yet where the crime charged is murder in the first degree, which involves the condition of the mind when the act was committed, drunkenness may be considered by the jury in determining whether there was that deliberation, premeditation and intent to kill necessary to constitute the offense. This principle was fairly stated to the jury, and the elements of the crime charged, together with the doctrine of reasonable doubt, were fully placed before the jury-
Complaint is made of a charge of the court relating -to arrest. On this subject the court instructed that—
“Where a felony has been recently committed by any person, and a private citizen has reasonable cause to suspect that such person is guilty of its commission, the law authorizes such private citizen, while acting in good faith, to arrest the person who has committed the felony in order to prevent his escape, and in so doing he may use such personal force as appears necessary, under the circumstances, to effect the arrest; and in such case, if the person whose arrest is attempted has reasonable grounds for believing that is the actual intention of the person attempting the arrest, and his motives for so doing, he would not be justifiable in law in resisting the-arrest.”
This instruction is correct, and applicable to the facts in the case. Mowry had committed a felony, and was instantly pursued by the deceased in an endeavor to arrest him.The deceased was pursuing him m a temperate j. o r and proper manner, without arms and without violence, to make the arrest. He had the right to make the arrest in this manner without a warrant, and hence the request for an instruction upon the subject of a void and illegal arrest was properly refused; and the argument of the appellant upon that question does not apply.
Neither is there any force in the objection that the testimony fails to show that Mowry was not notified nor1 aware of the purpose of the deceased in pursuing him. Notice is only required to give the person an opportunity to desist from fight and unlawful action, and to peaceably surrender. If he necessarily knows the purpose of the pursuit and attempted arrest, no notice is needed. It is murder for a person to kill one whom he knows is pursuing him for a felony which he has just committed; and it has been said that “ where a party has been apprehended in the commission of a felony, or on fresh pursuit, notice of the crime is not necessary, because he must know the reason why he is apprehended.” (Wharton’s Crim. Law, 418.)
The further objection is made, that the court failed to charge the jury upon the law of all the degrees of the crime of homicide inferior to and included iu the one charged. The jury were instructed on the law of murder in the first and second degrees, and also upon the law of the third and fourth degrees of manslaughter. There was no testimony tending to show that the defendant was guilty of manslaughter in either the first or the second degree, and therefore no instruction on those degrees was required or proper,the instruction should conform to the testimony of the case. If there is even slight evidence that the defendant may have committed a degree of the offense inferior to and included in the one charged, the law of such inferior degree ought to be given, but should never be given upon a degree of the offense which the evidence does not tend to prove. An instruction upon either the first or the second degree of manslaughter would not have been wholly inapplicable to the facts in the case, and might have confused and misled the jury. The action of the court in this respect was not erroneous. (The State v. Mize, 36 Kas. 187; same case, 13 Pac. Rep. 1; The State v. Rhea, 25 Kas. 576; The State v. Hendricks, 32 id. 566.)
There are other objections to the charge, none of which are regarded to be material, and examination of the entire record satisfies us that the case was fairly tried, and that no sufficient ground for a reversal exists.
The judgment of the district court will therefore 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 in the district court of Johnson county by Frank Warren, by his next friend, W. H. Washburn, against the Southern Kansas Railway Company, for personal injuries alleged to have been caused by the negligence of the railway company. The case was tried by the court and a jury; and after the plaintiff had introduced all his evidence, and rested, the defendant demurred to the evidence, upon the ground that it did not prove any cause of action; and the court sustained the demurrer, discharged the jury, and rendered judgment in favor of the defendant, and against the plaintiff, for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review.
The alleged injuries were received on July 13,1885, at about 9 o’clock in the morning, at the railway company’s station, in the town of Edgerton, in Johnson county, Kansas. At the time of receiving the injuries the plaintiff was nineteen years and four months old. He had lived in the town of Edgerton for about one year, and seems to have been well acquainted there, and with the railway company’s mode of business and signals. The injuries seem to have occurred in the following manner: The plaintiff desired to go from Edgerton to Wells-ville, a town on the company’s railway about five or six miles southwest of Edgerton. He kuew that a freight train would soon be due, and that no passenger train would be due until about 12 o’clock. He went to the company’s ticket agent at Edgerton, William Walton, and inquired of him if the freight train was on time, and the ticket agent answered substantially that it was; and the plaintiff then said to the ticket agent, “Do they carry passengers on that train yet?” and the ticket agent answered, “They do;” and then the plaintiff said to the ticket agent, “Well, then, Billy, give me a ticket to Wellsville; ” and the ticket agent then stamped a ticket for Wellsville, and handed it to the plaintiff, and the plaintiff paid him therefor sixteen cents. This was about all that was said or done at the time. No one at any time told the plaintiff when, or how, or where to get on ,the train, or what car to get on. Soon afterward the train came in from the northeast, and stopped, with the engine standing at the water tank southwest of the station platform -and about 100 feet therefrom. The caboose was about 300 or 400 feet northeast from the platform. The -train remained several minutes while taking, in water, and then backed up about 300 or 400 feet to the east end of the yard for some switching to be done, where it remained about twenty or thirty minutes. The plaintiff, after purchasing his ticket, and during all the time that the engine was in taking water, and the train backing, and the switching being done, and until the train started to leave, stood on the southwest corner of the station platform talking with a friend. Prior to this time the company’s freight trains sometimes stopped at Edgerton with the caboose at the platform, and sometimes they did not. This was all well known to the plaintiff. When the switching was all done, the conductor gave a.signal for the train to start. The plaintiff understood this signal. The train then moved slowly in the direction of the platform, and the plaintiff went- to the edge thereof; and when the first car, the one immediately behind and attached to the engine, came opposite to the place where he stood, he attempted to jump upon it, but fell to the ground between the car and the platform, and received the injuries of which he now complains. The car was an ordinary stock car. The principal injury received by the plaintiff was the crushing of his left foot in such a manner as to require the amputation thereof, just above the ankle-joint.
Do these facts show a cause of action against the railway company? In order that the plaintiff shall recover in this action it is necessary for him to show that the defendant, through its servants or agents, was guilty of culpable negligence; that this negligence caused the injuries complained of, and that the plaintiff himself was free from all culpable, contributory negligence. Has he shown this ? It is difficult to see how the railway company, by any negligence on its part, caused the injuries. We suppose it will hardly be claimed that the company was guilty of negligence in stopping its train at the water tank to take in water, and in permitting the train to remain there for a few minutes; and here we might say that there was evidence introduced on the trial tending to show that while the train was standing at that place, two other passengers for this train walked back to the caboose and got upon it in safety. We suppose it will hardly be claimed that the company was guilty of negligence in moving the train back to the east side of the yard and allowing it to remain there for some twenty or thirty minutes, and in doing some switching in the meantime. Nor will it be claimed that the company was guilty of negligence in again moving the train forward toward the station; nor can it be claimed that in this last removal of the train the company was guilty of negligence in not stopping the train with the caboose immediately in front of the station, for before the caboose had reached that point the plaintiff had attempted to jum|> upon the first car arriving there, and had received the injuries of which he now complains. From anything that can positively be known, the train might have stopped with the caboose immediately in front of the station, if the plaintiff had only remained where he stood on the platform ready to get upon the caboose as soon as it arrived. We take it, however, that the principal negligence complained of is the conductor’s giving a signal for the train to start, and “to leave town.” The plaintiff himself testified that the conductor gave such a signal, and that he, the plaintiff, understood what it meant. The giving of this signal, however, did not cause the injuries. The injuries did not immediately flow from the giving of the signal, nor were they the natural or probable consequences thereof. The giving of the signal did not necessarily cause the plaintiff to attempt to jump upon a stock car while it was in motion, and which had no steps or other conveniences to enable persons to get upon it, except an iron ladder upon its side. Such a signal would not prevent the plaintiff from waiting where he stood on the platform until the caboose got to the point where he was standing, nor would it prevent him from attempting to get upon the caboose instead of upon the stock car; or, if that was dangerous, it would not prevent him from remaining at the station until the next train arrived, some three hours later. He knew when he bought his ticket that freight trains did not always or generally stop with the caboose immediately in front of the station, and undoubtedly he knew that it was not proper for him to attempt to get upon a stock car while in motion, or to ride upon or in any car of a freight train except the caboose. The entire negligence complained of, however, is the foregoing signal, coupled with the failure of the railway company through its agents and servants to instruct the plaintiff when and where and how to get upon the train, and upon what or into which car to get. We do not think that the railway company is required to give any such instructions, and especially not to a young man in his twentieth year, strong and healthy and ordinarily intelligent, and one who knew as much as the plaintiff did concerning the railroad business at that particular place. Under the circumstances, we do not think it devolved upon “Billy” Walton, the ticket agent, or upon any other one of the company’s agents or servants to instruct the plaintiff how to take care of himself. He well knew that it was not the custom for passengers intending to ride upon a railroad train, even upon a freight train, to attempt to jump upon a stock car while in motion, or in any case to ride upon or in a stock car. If the railway company did not furnish sufficient facilities to the plaintiff for him to get upon the caboose, and even if it would not have done so if he had waited for the caboose to arrive at the platform where he was standing, then his remedy was to let that train pass without attempting to get upon it, and to sue the company for damages.
It is probably unnecessary to say anything with regard to the plaintiff’s contributory negligence. Generally, it is not per se negligence for a person to get on or off a railroad train in the ordinary manner, and as people sometimes do, while the train is only slightly in motion. (A. T. & S. F. Rld. Co. v. McCandless, 33 Kas. 373, 374, and cases there cited.) But to attempt to get upon a traiu in the extraordinary manner in which the plaintiff attempted to get Up0n the train in this case, would seem to be per se culpable negligence. (Harvey v. Eastern Rld. Co., 116 Mass. 269; Rid. Co. v. Le Gierse, 51 Tex. 189.)
The judgment of the court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The defendant in error was the owner of certain real estate in Osborne county, subject to taxation in the year 1873. The taxes for that year not being paid, the land was sold to J. C. Horton in 1874, and described as the east half of the northeast quarter of section 24, township 7, range 13, in one certificate, and the west half of the same quarter, section, and range, in the second certificate of tax sale. Horton paid the taxes of 1874,1875,1876,1877, and 1878, and then assigned the certificates of sale to J. A. Wilson, to whom the county clerk, on the 31st day of December, 1879, executed tax deeds. J. A. Wilson and wife conveyed the land to George C. Wilson, the plaintiff in error, on the 23d day of November, 1882. Some time before the execution of the tax deeds, the defendant in error brought an action in the district court of Osborne county to restrain the county clerk from the execution and delivery of the tax deeds. It seems that it was claimed that the levy was greatly in excess of that allowed by law, for the year 1873, and the others mentioned, amounting each year to more than twenty-three mills. The temporary injunction granted at the commencement of this action was subsequently dissolved by the district court, for the reason that the plaintiff in that action (defendant in error in this) had not tendered the legal portion of taxes previous to the commencement of her suit. Immediately after such decision, and before the execution of the tax deeds, the defendant in error made a tender to the county treasurer of Osborne county of the full amount of all taxes charged against said lands, both legal and illegal taxes for all said years, with all interest, penalties, charges and costs, for the purpose of redeeming said land from tax sale. This tender was refused by the treasurer, and the tax deeds were executed.
This action was brought by Venitia E. Reasoner against George C. Wilson to set aside the two tax deeds, and was tried by the court, and a judgment rendered in favor of the defendant in error, finding that the tax deeds were void and of no validity; that the deed from James A. Wilson and wife to plaintiff in error conveyed no title; that the total amount of taxes, interest, penalties and costs paid by the said George C. Wilson and his grantors since the execution of the tax deeds, including the execution, filing for record, and recording the tax deeds, and twenty per cent, per annum on all moneys paid out by him or his grantors from the time of the payment until the present time, is $211.60; that the sum of $218.10 was the full amount paid, and was the consideration of said tax deeds, and was the full amount necessary to redeem said lands from tax sale at the date of the execution of said tax deeds. The defendant in error was ordered to pay into court the sum of $218.10, and the plaintiff in errror was adjudged to have a lien for the sum of $211.60. There was a motion for a new trial overruled, and all exceptions saved.
The counsel for the plaintiff in error insist that this action is barred by the five-years statute of limitation, and that, as the proof shows that the plaintiff in error is a non-resident of the state, this case falls within that of Beebe v. Doster, 36 Kas. 666; but this question is not in the case. The court below finds that there was a redemption of this land from tax sale before the tax deeds to Wilson were executed; that there was a legal tender made by the owner of sufficient money to redeem, and this in legal contemplation is the same as if redemption was an accomplished fact. This finding of the court is sustained by sufficient evidence, and is conclusive here.
The section of the tax law referred to by counsel is § 141, and it expressly excepts cases of this kind from the operation of the limitation therein provided for. There was a redemption in this case as provided by law. The owner had tendered to the county treasurer, before the execution of the tax deed, the full amount required to redeem, and the case is just as strong as if the owner had paid the taxes and held the county treasurer’s receipt for the same. The ruling of the court below on this question was right. There is no question here of the statute of limitation in favor of the tax-holder. The land was redeemed; he had no tax deeds.
Another assignment of error is, that the court erred in not computing interest on the amount of the tender from the time it was made. We think the court was right, the owner of the land having tendered the full amount due for redemption before the execution of the tax deed, had performed all the duty the law required, and the tender unquestionably had the effect not only to stop interest, but to prevent the officers of the county from executing any valid tax deed to the land. When the defendant in error offered to pay, and the county treasurer refused to receive, the amount tendered, it being sufficient for the purpose of redemption, right then and there the owner was discharged of all obligation to pay interest to anyone on the taxes due and tendered.
We see no error in the record, and recommend an affirmance of the judgment.
By the' Court: It is so ordered.
All the Justices concurring. | [
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Buser, J.:
Brian Jones appeals his conviction and sentence for aggravated robbery. We reverse the conviction, vacate the sentence, and remand for a new trial because, during the jury’s deliberations, the trial court erroneously responded to the jury’s question about fingerprint evidence in violation of K.S.A. 22-3420(3), and this error resulted in prejudice to Jones.
Factual and Procedural Background
This case arose from two different carjackings that occurred within 1 day of each other — one in Missouri and the other in Kansas.
The first carjacking occurred on the evening of February 21, 2005, in Kansas City, Missouri. Erin Adcock left her veterinarian’s office and entered the driver’s side of her Dodge Stratus. Without warning, a man armed with a handgun approached the car and told Adcock, “ ‘You can get out of the car, or I could shoot you.’ ” When Adcock tried to lock the car door, the man threatened, “ ‘You better not or I will kill you.’ ” The man opened the door and told Adcock to get out. As he pointed the weapon at Adcock, he repeatedly warned her not to look at him or she would be shot. The man then drove off in Adcock’s Stratus. Adcock, who was unable to get a good look at the assailant, described him as a slender, 5-foot 9-inch, black male, with a slender jaw line and smooth skin.
The next day, Eric Clark returned to work about 2 p.m. and parked his. Honda Accord in the parking lot of the Lighton Tower office building in Overland Park. As Clark started to get out of his vehicle, a man quickly walked up behind him, displayed a handgun, and demanded Clark’s wallet and keys. The assailant said something which Clark understood to mean that the man was on drugs and was not afraid to use the gun. Clark gave the man his keys, wallet, and cell phone before walking away. The assailant drove off in Clark’s vehicle. Clark was only able to give a general description of the man, whom he had not looked in the eye.
David Warner, who worked on the fifth floor of Lighton Tower, witnessed the carjacking of Clark’s Accord from his office window. Warner informed the police that prior to the carjacking, he saw the assailant standing beside a Dodge Stratus, which was later identified as Adcock’s vehicle that had been stolen the prior evening.
The following afternoon, Officer Frank Reaves, of the Kansas City, Missouri, Police Department, saw an Accord, later identified as Clark’s stolen vehicle, enter the parking lot of an apartment complex in Kansas City, Missouri. Officer Reaves saw two black men get out of the vehicle and walk toward the apartments. When Officer Reaves told the men to stop, they ran away. Officer Reaves apprehended the driver of the vehicle, Ronderrick Briggs. The other man escaped. Briggs had keys to Adcock’s Stratus in his hand when Officer Reaves detained him. Briggs was also carrying the insurance and registration papers for Clark’s Accord. During a subsequent search of the Accord, a silver-colored B.B. gun was found in the passenger compartment.
Two days later, Jones was interviewed by Overland Park Detective Jeff Cohee at the Kansas City, Missouri, Police Department. Prior to the interview, Jones was orally advised of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Jones also signed a written Miranda rights waiver.
Jones initially denied involvement in the aggravated robbery of Clark. Later, during the interview, he confessed. He subsequently agreed to provide Detective Cohee with a videotaped statement detailing his involvement in the aggravated robbery. A digital copy of the interview was shown at trial to the jury.
Jones admitted to police that Briggs had driven him in the Stratus to a parking lot near where his fiancée worked. Jones ingested some cocaine. At Brigg’s urging, Jones then confronted a white man and told him, “I’m sorry man but right now I got problems. I got a drug problem and I don’t want to hurt you.” After the aggravated robbery, Jones picked up Briggs and drove off in the Accord. Under questioning, Jones provided details about the carjacking, including how he had used the victim’s cell phone to make a phone call about selling the radio that had been removed from the Stratus. Jones also identified a photograph of the B.B. gun he used in the robbery.
Adcock’s Stratus and Clark’s Accord were processed for fingerprints and DNA. The latent evidence was then compared to known fingerprints and DNA of Briggs and Jones. Briggs’ fingerprints and/ or DNA were found in the Accord on the steering wheel, turn signal, gear shift, and a beer can. Briggs’ fingerprints were also found in the Stratus, and his DNA was found on the steering wheel and on a marijuana joint found in the vehicle.
Jones’ DNA was found on the steering wheel of the Stratus and on the marijuana joint. No latent fingerprints or DNA recovered from the Accord were positively identified to Jones.
The State charged Jones with the aggravated robbery of Clark.
About 4 months later, Jones wrote a letter to Detective Cohee. Jones stated in the letter that at the time of his confession, he had withheld information out of fear for his family’s safety. Jones said his family had since moved away and requested Detective Cohee come speak with him at the jail so Jones could tell him the truth about the case. The detective never contacted Jones.
At trial, Jones testified in his own defense, recanted his confession, and denied committing the aggravated robberies of Adcock or Clark. Jones also implicated Briggs and a person he knew only as Prince D in the robberies.
With regard to his confession, Jones explained he only confessed to the crime because the detectives were pushing him and “wouldn’t stop it until they got something . . . out of [him].” Jones insisted he figured out certain details about the aggravated robbery that he provided to Detective Cohee based on the detective’s accusations during the interrogation. Jones also suggested he confessed because he was led to believe he would receive only a brief time in drug rehabilitation by admitting to the aggravated robbery of Clark.
Jones provided the jury with a detailed explanation regarding why his DNA was found in Adcock’s Stratus. According to Jones, on the morning of February 22, 2005 (the day after the aggravated robbeiy of Adcock), he was walking in Overland Park when he saw a Stratus driven by an unknown man with Briggs in the passenger seat. Briggs introduced the man to Jones as Prince D. The men agreed to drive Jones to his fiancee Laldsha Lindsey’s workplace, which was located near the Lighton Tower office building. Jones sat in the back seat of the Stratus and shared two marijuana joints with Briggs and the driver.
When the men arrived at Lindsey’s workplace in the early afternoon, Jones borrowed her truck, and Briggs and Prince D left. Jones then went home, got dressed, and ran some errands. According to Jones, he and Lindsey spent the next day together, running errands and watching movies.
Jones testified that the following day, February 24, 2005, he encountered Prince D and two other men, one of whom Jones knew only as Coco. Prince D accused Jones of talking to the police. When Jones insisted he had not done so, Coco pushed Jones up against a wall, and Prince D put a gun to Jones’ head. Jones was taken into a nearby wooded area where Prince D threatened Jones and said that he would kill Jones or hurt Lindsey and her sister if Jones talked to the police. The men then took Jones’ money, watch, and chain and told Jones to run. As Jones ran into the woods, he heard the men laughing and several gunshots.
Jones also testified that Prince D had told him some details of the crimes which he later told the police. Because he was concerned about Lindsey’s and her sister’s safety, however, he did not mention Prince D’s name to the police. Jones further explained that he wrote the letter to Detective Cohee after Lindsey and Lake-eta had moved, so Jones knew they were safe.
Lindsey testified for the defense, and her account mirrored Jones’ version of the events. Lindsey also testified that when she was later approached by Briggs’ sister, she felt her life was in danger, so she moved away.
At the conclusion of the trial, the jury found Jones guilty of the aggravated robbery of Clark. Jones was sentenced to a standard presumptive sentence of 233 months in prison. He filed a timely appeal.
On appeal, Jones contends the trial court committed reversible error when it misstated the evidence in answer to this question posed by the juiy during deliberations: “Were there identified fingerprints on the gun?” Jones argues that the trial court’s response that “no evidence was presented about fingerprints on the gun” was erroneous and violated K.S.A. 22-3420(3).
Preservation of the Issue for Appellate Review
Before reaching the merits of Jones’ contention, we must first consider the State’s argument that this issue was not preserved for appellate review. In particular, the State contends that Jones’ failure to contemporaneously object to the trial court’s response constitutes a waiver of his right to appeal this issue.
In support, the State cites State v. Groschang, 272 Kan. 652, 36 P.3d 231 (2001). In Groschang, our Supreme Court held the “time-honored” rule that an issue not presented to the trial court may not be raised for the first time on appeal also applies to jury requests under K.S.A. 22-3420(3). 272 Kan. at 672. The court reasoned that a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. The record in Groschang reflected that, although the defendant had an opportunity, he did not object or suggest an alternative response to the jury’s request. As a result, our Supreme Court held the defendant waived his right to appeal this issue. 272 Kan. at 673.
Jones admits there was no contemporaneous objection to tire trial court’s response to the jury’s question. Jones notes, however, the record does not reflect the trial court sought or received input from the parties at the time the question was received from the jury or at any time prior to the trial court’s response. Moreover, the record does not show that Jones and his counsel were present in the courtroom when the trial court answered the juiy’s question.
Relying on State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994), Jones argues that under these circumstances he should not be held to have waived the right to appeal this issue. In Myers, the record did not disclose the presence of the defendant or his counsel when the trial court received questions from the jury and when the trial court responded to those questions. Nor did the record disclose any discussion between the trial court and counsel regarding the merits of the questions or the trial court’s responses. Our Supreme Court refused to infer the defendant’s presence and opportunity to respond from a silent record. Accordingly, the Supreme Court concluded the defendant did not waive his right to challenge the trial court’s responses to the juiy’s inquiries. 255 Kan. at 9.
The crucial distinction between the holdings in Myers and Groschang lies in whether the record indicates that the defendant had an opportunity to voice any objections or to suggest a different response to a jury’s question but remained silent or otherwise acquiesced in the trial court’s course of action. Where the record affirmatively reveals the defendant’s presence and an opportunity to participate in the formulation of the trial court’s response to a juiy’s question during deliberations (as in Groschang), our Supreme Court has found that a defendant’s failure to contemporaneously object constitutes a waiver to raise the issue on appeal. On the other hand, where the record is silent concerning the defendant’s presence or opportunity to participate (as in Myers), waiver may not be presumed.
Nothing in the record indicates that Jones or his counsel were present at the time the jury’s question was provided to the trial court. There is no indication from the record that Jones or his counsel participated in any colloquy with the trial court regarding an appropriate response to the jury’s question. Finally, the record does not disclose that Jones or his counsel were present at the time the trial court advised the jury of its response. Given this record, Myers’ holding controls, and we will not presume that Jones waived his right to raise this issue on appeal.
Trial Court’s Response to Jury’s Question During Deliberations
Turning to the merits, we note this is a novel legal issue. Our case law has frequently addressed situations wherein a trial court has responded to a question of law posed by the jury during deliberations. See, e.g., State v. Murdock, 286 Kan. 661, 681-83, 187 P.3d 1267 (2008) (jury requested clarification as to the difference between aggravated battery with a deadly weapon and aggravated battery in a manner whereby great bodily harm, disfigurement, or death can be inflicted.); State v. Dunnan, 223 Kan. 428, 431-33, 573 P.2d 1068 (1978) (jury requested clarification regarding lesser offenses of second-degree murder and the definition of “maliciously”).
On other occasions, our appellate courts have reviewed the trial court’s response to the jury’s request to review evidence, read transcripts of trial testimony, or have a read-back of trial testimony. See, e.g., State v. Boyd, 257 Kan. 82, 84-91, 891 P.2d 358 (1995) (jury requested portions of transcripts of child victim, police officers’ trial testimony, and portions of defense attorney’s closing argument); Myers, 255 Kan. at 4-9 (jury requested copies of police reports and transcripts of trial testimony).
In the present case, however, Jones requests that we review the trial court’s response to the jury’s specific question about certain evidence presented at trial. In particular, whether identified fingerprints were on the gun believed to have been used in the aggravated robbery of Clark.
K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Review of this issue requires interpretation of K.S.A. 22-3420(3). Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). Additionally, our Supreme Court has set forth the appropriate standard of review in matters involving K.S.A. 22-3420(3):
“A trial court may not ignore a jury’s request submitted pursuant to K.S.A. 22-3420(3) but must respond in some meaningful manner or seek additional clarification or limitation of the request. It is onlij when the trial court malees no attempt to provide a meaningful response to an appropriate request or gives an erroneous response that die mandatory requirement of K.S.A. 22-3420(3) is breached. Once die trial court attempts to give an enlightening response to a jury’s request or seeks additional clarification or limitation of die request, then any issue as to the sufficiency or propriety of the response is one of abuse of discretion by the trial court.” (Emphasis added.) Boyd, 257 Kan. 82, Syl. ¶ 2.
This passage from Boyd suggests a two-step approach when an appellate court reviews whether a trial court has violated K.S.A. 22-3420(3). First, we conduct a de novo review to determine if the statute has been breached because the trial court failed to respond to the jury’s question or because the trial court provided an erroneous response to the question. Second, if the trial court complies with these mandatory statutory requirements, our court will employ an abuse of discretion standard in evaluating the sufficiency or propriety of the response.
The case was submitted to the jury late in the day, and the jury opted to begin its deliberations on the following morning. At that time, the trial judge briefly addressed the jury:
“THE COURT: I’m trying to think. This won’t take very long, long enough to sit down.
“At the end of yesterday you sent out a question, ‘Were there identified fingerprints on the gun?’ Normally I answer questions about evidence in this way: You must rely on the evidence presented, but I can tell you that no evidence was presented about fingerprints on the gun.
“At this time, the jury is all present. I will send you back to the jury room to continue your deliberations.” (Emphasis added.)
Jones complains that the emphasized portion of the judge’s response misstated the evidence because Detective Cohee testified that Briggs’ fingerprints — and no others — were found on the gun used in the aggravated robbery of Clark. Specifically, during defense counsel’s cross-examination of Detective Cohee, the following colloquy occurred:
“Q. Later on that day you actually had tire opportunity to interview Mr. Briggs?
“A. Yes.
“Q. And you talked to him about the robbery of the [Accord]?
“A. Yes.
“Q. He admitted his fingerprints would be on that gun?
“A. Yes.
“Q. And indeed his fingerprints were on it?
“A. I believe so.
“Q. No other fingerprints on it?
“A. No.”
The State counters that the trial court’s response was not erroneous because Detective Cohee’s response, “I believe so,” was “equivocal” and “not exactly certain.” The State also points out “[t]here was no evidence presented that the crime lab had examined the gun for latent fingerprints.”
Having reviewed the record, we conclude the trial court’s response that “no evidence was presented about fingerprints on the gun” was erroneous because it was a misstatement of the trial testimony. Detective Cohee clearly testified that he believed Briggs’ fingerprints — and no others — were on the handgun used in the aggravated robbery of Clark. Accordingly, we hold the trial court violated the mandatory requirement of K.S.A. 22-3420(3) not to provide the jury with an erroneous response to their question.
Next, we must determine whether “ ‘the rights of the defendant were in any way prejudiced by the action of the trial court’ ” in misstating the evidence. Murdock, 286 Kan. at 680 (quoting State v. Wilson, 169 Kan. 659, 663, 220 P.2d 121 [1950]).
Jones argues:
“The court’s response also severely prejudiced Mr. Jones’ right to a fair trial. Det. Cohee’s testimony that Mr. Briggs’ fingerprints were on the gun was clearly exculpatory to Mr. Jones. Mr. Jones’ theory was that Mr. Briggs and Prince D committed the robbery, and Det. Cohee’s testimony about the gun supported that.”
The State rebuts Jones’ claim of prejudice by noting that Jones admitted committing the aggravated robbery of Clark and the “jury was well aware of the lack of Jones’ fingerprints and DNA in the vehicles. No physical evidence identifiable to Brian Jones could be located from the [Accord].”
Based on our review of the trial record, the critical issue for the jury’s determination was the identity of the man who robbed Clark. Both the State and Jones presented substantial conflicting evidence regarding this issue. Clark was unable to identify the robber. Jones confessed to the aggravated robbery and identified a picture of the B.B. gun recovered from Clark’s Accord as the weapon he used in the crime. Immediately prior to the recovery of the gun, however, Briggs was seen driving the Accord and, when confronted by the police, he attempted to flee. Although forensic evidence tied Briggs to Clark’s Accord, no such evidence linked Jones to this vehicle. Jones later recanted his confession at trial and incriminated Briggs and Prince D in the aggravated robbery. Jones also presented witnesses to corroborate his testimony that Briggs and Prince D, not Jones, committed the crime.
The jury’s question: “Were there identified fingerprints on the gun?” was specifically directed at the critical issue in the case, which was highly controverted — the determination of the robber’s identity. The correct answer to this question — that Detective Cohee testified that he believed Briggs’ fingerprints, and no others, were on the gun — supported Jones’ defense that Briggs, not Jones, committed the crime. The response provided by the trial court that “no evidence was presented about fingerprints on the gun” was not just erroneous but adverse to Jones’ defense. Under these circumstances, we find Jones was prejudiced and to not reverse his conviction and vacate his sentence would be “inconsistent with substantial justice.” K.S.A. 60-261; see State v. Drayton, 285 Kan. 689, 709, 175 P.3d 861 (2008).
Finally, we reiterate the guidance recently provided by our Supreme Court:
“Due to the grave risk of misleading the jury and the real risk of reversal, a judge responding to a jury question should avoid extemporaneous discussions with a jury on questions submitted. The better practice is to confer on the record with counsel and the accused before responding to the jury’s question. Counsel should be given the opportunity to provide input as to the final answer, preferably by way of written recommendations to the judge. Under such circumstances, the risk of misleading the jury or of committing reversible error in the answer given is greatly reduced, and tire potential that the answer will help the jury in its deliberations is greatly increased.” Murdock, 286 Kan. at 683.
Because our holding on this issue is determinative of the appeal, we decline to address the other issues raised by Jones.
The conviction is reversed, the sentence is vacated, and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in ejectment, brought by the plaintiffs. Trial by the court, without a jury. A general finding for defendant was entered, and judgment rendered thereon. Plaintiffs excepted, and bring the case here. The facts are these: On May 3, 1877, one Charles Ahrendt was the owner of the land in controversy. On that day he conveyed to Caroline Schutt, who took possession, and placed her deed on record. On June 21, 1877, J. G. Farlin, a creditor of Ahrendt, attached the land as his property. Judgment was rendered against Ahrendt, and Farlin purchased the land at sheriff’s sale. H. S. Sook obtained title to the land by virtue of a deed from Caroline Schutt. Subsequently, Fai'lin brought his action in ejectment against Sook, claiming that the conveyance from Ahrendt to Caroline Schutt of May 3, 1877, was void as against his creditors. In that action it was held that H. S. Sook’s title was perfect, and that the attachment proceedings of Farlin against Ahrendt did not avoid or affect his title. (Farlin v. Sook, 30 Kas. 401.) The action of ejectment of Farlin v. Sook was brought August 15, 1880, and judgment was rendered December 23,1882. During all the litigation between Farlin and Sook, the plaintiffs in this action were practicing attorneys at law, and were also the attorneys of Farlin. On September 2, 1879, while Farlin and Sook claimed to own the land in controversy, it was sold for delinquent taxes, and bought in by the county. On May 26, 1881, during the pendency of the litigation between Farlin and Sook, and while the plaintiffs were the attorneys of Farlin in that litigation, tax certificates of the land in controversy were assigned to W. E. Cunningham, one of the plaintiffs, who subsequently assigned an undivided one-half thereof to W. T. McCarty, the other plaintiff. On these certificates, a tax deed was issued September 13, 1882. The plaintiffs derive their alleged title from the tax deed.
The learned trial court rendered a judgment in favor of the defendant, upon the theory that plaintiff’s tax deed was void, because they were the attorneys for Farlin during all the time he was seeking to obtain title to and © possession of the land embraced in the tax certificates anq tax deed. In this view we fully concur. The purchase by an attorney of an interest in the thing in controversy in opposition to the title of his client during litigation concerning the same, is forbidden, because it places him under temptation to be unfaithful to his trust. (Weeks on Attorneys, §§ 274-277; Wright v. Walker, 30 Ark. 44; Wade v. Pettibone, 11 Ohio, 59; Zeigler v. Hughes, 55 Ill. 288; West v. Raymond, 21 Ind. 305; Simpson v. Lamb, 7 Ellis and Bl. 90.)
Plaintiffs concede this general doctrine, but contend that their purchase under the tax proceedings is not absolutely void, but voidable only at the election of their client; that as their client is not complaining of their conduct, no one else ought to be heard to object. It is undoubtedly true that the purchase of the plaintiffs might have inured to the benefit of their client if he had made a claim therefor; but does his failure to demand the benefits of their purchase condone the offense and render their title, so acquired, valid? We think not. An attorney, while acting for his client, is bound to the most scrupulous good faith. While the relation of an attorney and client continues, the courts will carefully and zealously scrutinize the dealings between them, and guard the client’s rights against every attempt by the attorney to secure an advantage to himself at the expense of the client. (Haverty v. Haverty, 35 Kas. 438.)
After the purchase by the plaintiffs of their title under the tax proceedings, their interest was antagonistic to that of their client. Therefore the purchase by them was such, we think, “as might have betrayed their judgment, and endangered their professional fidelity.” It is contrary to the policy of the law, and also contrary to the principles of equity, to permit an attorney' at law to occupy at the same time and in the same transaction the antagonistic and wholly incompatible position as adviser of his client concerning a pending litigation threatening the title to his property, and that of purchaser of such property, in opposition to the title of his client. Some of the courts have gone so far as to hold that where an attorney purchases from his client the subject of litigation, he must, before doing so, divest himself of the character of attorney, so that his former client may deal with him as a stranger. (Rogers v. Marshall, 3 McCr. 76-95.) Public policy seems to demand that there should be no temptation on the part of anyone occupying the important relation of an attorney, to make private gain out of the subject-matter of his professional employment, and therefore we think that the purchase by plaintiffs of the premises in dispute pending litigation, was as to them wholly void.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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Green, J.:
Stephano A. Herrera was convicted by a jury of aggravated indecent liberties with a child (solicitation), aggravated indecent liberties with a child (lewd fondling), sexual batteiy, and aggravated criminal sodomy. He was sentenced to 322 months in prison. Stephano sets out a number of issues in his appeal; however, we will address these issues in a different order than they were presented in Stephano’s brief. We first consider Stephano’s contention that the evidence was insufficient to support his solicitation conviction under K.S.A. 21-3504(a)(3)(B). We.agree that the evidence was. insufficient and reverse the conviction. Therefore, Stephano cannot be retried on the solicitation charge. Next, Stephano asserts that prosecutorial misconduct deprived him of a fair trial. We agree. As a result, we reverse his sexual battery, aggravated indecent liberties with a child (lewd fondling), and criminal sodomy convictions and remand for a new trial.
Stephano next argues that the trial court improperly admitted evidence of his prior bad acts. We disagree. Next, Stephano argues that the trial court improperly excluded evidence of a witness’ disbelief of another witness’ accusations. We disagree. Stephano also contends that the trial court’s calculation and imposition of his base sentence violated due process. We disagree. Finally, Stephano asserts that his right to a fair trial was prejudiced by cumulative trial errors. Because of our previous rulings in this appeal, we determine that this issue is moot. Accordingly, we reverse and remand for a new trial.
On January 18, 2005, D.H., bom on December 30, 1990, wrote a letter, while in school, to her parents alleging that her half-brothers, Raul Herrera, Jr. (also referred to as “Little Roy”) and Stephano Herrera, had sexually molested her. D.H. placed the note on the sink of her parents’ bathroom, where her mother discovered it that evening. D.H.’s mother showed the letter to D.H.’s father, who then spoke to D.H. about the abuse. According to D.H., she was not comfortable sharing the details with her father and merely confirmed that the abuse had occurred. The following morning, D.H.’s father confronted Stephano and kicked him out of the house.
On January 20, 2005, D.H.’s mother reported the allegations of sexual abuse to a friend, Christine Story, who worked in the Sedgwick County District Attorney’s office. Stray encouraged D.H.’s mother to visit Story’s office and then contacted the Exploited and Missing Child Unit (EMCU) of the police department. After D.H. had begun therapy, the EMCU scheduled an interview with D.H.
Deb Curley conducted the interview of D.H. During the interview, D.H. disclosed that the molestation began with Raul, Jr. when D.H. was in the third grade. D.H. could not recall precisely when Stephano began to molest her but recalled an incident involving Stephano when D.H. was 9 or 10 years old in the fourth grade.
D.H. told Curley that Raul, Jr. and Stephano would independently enter her bedroom in the middle of the night for the ostensible purpose of borrowing a video or a hairbrush but would then touch D.H. inappropriately. Both half-brothers would touch D.H.’s breasts, butt, or “lower part” in similar ways, which made D.H. wonder whether they had talked to each other about the molestation. Stephano’s conduct differed in that he frequently pressed D.H. to engage in sex. D.H. always refused Stephano’s requests for sex and threatened to tell her parents about the molestation.
D.H. further told Curley that Stephano had touched her “lower part” with his mouth on one occasion, when D.H.’s family was living in the Wyndam Court apartments and D.H. was 13 years old. D.H. had gone to sleep in her room and had awakened because someone was touching her. She discovered that her pants had been pulled down and that Stephano was straddling her. Before Stephano realized that D.H. had awakened, he slid down to her pubic area and kissed her vagina. D.H. then pushed Stephano away and demanded to know what he thought he was doing. Without responding, Stephano left the room.
D.H. also recounted an incident that had occurred while she was bathing. Stephano had walked into the bathroom, indicating that he needed to use the toilet. D.H. closed the shower curtain on the tub, but Stephano opened the curtain. Stephano’s pants were down, and he asked D.H. to perform oral sex on him. When D.H. refused, Stephano stuck his penis into D.H.’s face, brushing her mouth with it.
D.H. told Curley that, as time progressed, Stephano began seeking ways to be alone with D.H., such as providing rides to her dance classes. On the way to class, Stephano would often place his hand inside D.H.’s shirt as he drove. A couple of months before D.H.’s letter, Stephano had become more aggressive, attempting to steer the car with his knees so that he could shift gears with one hand and stick his other hand into D.H.’s pants. D.H. reported that, on one occasion, Stephano had penetrated her vagina with his finger. Because he had long fingernails, he scratched her, and she demanded that he stop.
Just before the reported abuse, Wichita experienced a severe ice storm that knocked out the power to residences. D.H.’s family went to stay with one of her aunts. D.H. slept in the living room on a couch, while her father slept on another couch in the same room. In the morning, D.H. was awakened by the sensation of someone’s hand going inside her shirt, but, when she opened her eyes, she saw no one but her father, who was still asleep. Since the abuse had started, D.H. had been dreaming of sexual contact, and she thought perhaps she had just dreamed the sensation of being touched. As she closed her eyes and prepared to return to sleep, however, she again felt a hand slip down her shirt. This time, D.H. sat up and looked around. She saw Stephano running up the stairs.
D.H. told Curley that she had discussed the abuse in general terms with her cousin, V.H., who had stated that Stephano had touched her inappropriately too. D.H. stated that V.H. had not shared how many times she had been molested.
Based on these allegations, the State charged Stephano with three counts of aggravated indecent liberties with a child involving D.H. in case No. 05 CR 272. Raul, Jr. was also charged with several offenses and ultimately entered a plea agreement with the State.
On March 8, 2005, Detective Bostick conducted a follow-up interview with D.H. While D.H.’s report of the incident during the ice storm was consistent with her earlier account, D.H. made additional allegations against Stephano. With respect to her rides with Stephano to dance class, D.H. stated that Stephano consistently attempted to put his hand in her shorts. She related that, on one occasion, Stephano unzipped his pants, played with himself, and asked D.H. to touch his penis. When she refused, Stephano allegedly grabbed her hand and placed it on his penis, moving her hand up and down on his penis. Stephano then instructed D.H. to take the steering wheel, while he placed his hand under her shirt and bra. In this interview, D.H. alleged that Stephano had touched her private area but denied that he had ever put his finger inside her.
D.H. also told Bostick that one time, when she was in the kitchen eating ice, Stephano asked D.H. to perform oral sex on him. D.H. feigned ignorance about Stephano’s suggestion, and, a moment later, Stephano’s girlfriend walked into the room. Later, after Stephano’s girlfriend had left the house, Stephano came into the living room, pulled down his pants, and masturbated in front of D.H. until he ejaculated.
On July 25, 2005, Stephano moved to dismiss the charges because D.H.’s letter to her parents indicated that the offenses occurred before the dates charged in the complaint. In response, the State filed an amended complaint. The case proceeded to trial but ended in a mistrial when a prosecution witness mentioned that Stephano was arrested when he visited his probation officer.
Before the second trial, V.H., bom October 12, 1988, reported her abuse. After D.H. had disclosed the possibility that V.H. had also been abused, the police contacted V.H., who, although admitting to the abuse, refused to discuss it with the police. V.H. stated that she decided to report her abuse when she discovered that Stephano was denying the allegations D.H. had made. V.H. was interviewed by Curley and Bostick on October 27, 2005.
V.H. reported that she was 11 or 12 years old and in the fifth or sixth grade when Stephano molested her the first time. She was visiting the home of D.H. on Maxwell and was sléeping on the floor in her aunt’s bedroom. Sometime at night, Stephano entered the room, put on a condom, pulled down V.H.’s pants, and penetrated her vagina with his penis. Afterward, V.H. went into the adjoining bathroom and noticed that she was bleeding. When she asked Stephano whether it was supposed to bleed, he confirmed that it was but told V.H. not to tell anyone what had happened.
Approximately 3 months later, V.H. was again- visiting D.H.’s house. All of the younger cousins were in the living room, where they had fallen asleep while watching the Cartoon Network. Stephano came, woke up V.H., and took her into D.H.’s bedroom. He pulled down her pants, lifted her up, and set her on top of his penis while he was still standing. After he penetrated her vagina once, however, Stephano set V.H. down again because she was too heavy for him to hold while engaging in sex. V.H. took tire opportunity to tell Stephano that she did not think that it was a good idea, and she returned to. the living room and went back to sleep. Stephano did not disturb her again that evening.
The third incident V.H. reported occurred on Thanksgiving Day 2004. Following dinner, Stephano invited V.H. to go to a movie with him. On the way to the theater, Stephano took V.H.’s hand and placed it outside his clothing in his crotch. After arriving at the theater, V.H. wanted to sit in the middle, but Stephano directed her towards the back of the theater. During the film, he again took V.H.’s hand and placed it outside his clothing in his crotch. V.H. could feel that Stephano had an erection. Stephano told V.H. that he wished she was his girlfriend, but V.H. did not respond.
In the .car after the movie, Stephano suggested that V.H. “go down on him,” which V.H. understood to mean oral sex. When V.H. declined, Stephano grabbed her head and forced her down into his lap. V.H. began to choke on Stephano’s sperm and started to spit it out. Stephano wanted her to swallow rather than spit it onto him, but V.H. rolled down the window, and Stephano gave her a cup in which to spit.
V.H. reported that Stephano then took her to her mothers house, instead of returning to the family Thanksgiving gathering. They went downstairs to V.H.’s bedroom, and Stephano had V.H. bend over, face down, on the edge of the bed. She told him that she could not have sex because she was on her period, but Stephano replied that he would put “it” somewhere else. He then proceeded to anally sodomize V.H. She wanted him to stop because it was painful, but he continued until he ejaculated. V.H. reported that she did not wish to rejoin her family immediately because she was experiencing pain in her bottom.
Based on these allegations, the State charged Stephano with sexual batteiy and two counts of aggravated criminal sodomy in case No. 05 CR 2887. The State also sought consolidation of case No. 05 CR 2887 with case No. 05 CR 272 for trial. The trial court granted the motion.
After discovering that V.H. was alleging a break in both the oral sodomy and the anal sodomy, the State amended the complaint in case No. 05 CR 2887 to charge Stephano with sexual battery and four counts of aggravated criminal sodomy. Following several amendments to the complaint, the State ultimately charged Stephano with three counts of aggravated indecent liberties with a child, two counts of aggravated criminal sodomy, and one count of rape in case No. 05 CR 272.
At trial, D.H. and V.H. testified fairly consistently with their accounts during the police interviews, which were played for the jury. In relating her account of Stephano kissing her vagina, D.H. reported that the event occurred at a different location than her earlier account had indicated. In discussing the shower incident, D.H. also provided additional details that she had not previously disclosed. With respect to the alleged digital rape in the car on the way to dance lessons, D.H. testified that she had taken the steering wheel, which was consistent with her statement to Bostick but inconsistent with her statement to Curley. D.H. also testified that Stephano had digitally penetrated her vagina, which was consistent with her statement to Curley but not with the statement to Bostick. D.H. explained these inconsistencies, by testifying that her statements to Bostick related to an incident occurring on the trip home from dance class, while her statements to Curley related to die ride to dance class.
V.H.’s trial testimony differed from her statement to the police in relating the circumstances under which the second rape incident had terminated. At trial, V.H. related that Stephano had let her go when she indicated that she heard someone coming. With respect to the events of Thanksgiving 2004, V.H. indicated at trial that Stephano had forced her to continue to engage in oral sodomy after she had choked and spit out the window. Yet, in her earlier interviews, V.H. had stated that Stephano had made her continue oral sodomy until he ejaculated, which was what caused her to choke. V.H. also testified at trial that, when Stephano was anally sodomizing her, she persuaded him to stop and get some lubricant, which she had not mentioned to the police in her interview.
Stephano’s trial defense involved allegations that D.H.’s mother had prompted the alleged victims to fabricate their accounts of sexual abuse to prevent him from reporting her husband’s drug activities. In pursuing this defense, Stephano called several witnesses who testified that they had observed drug activities in the household and that D.H.’s mother had a reputation for being dishonest and manipulative. The defense also obtained an admission from D.H.’s aunt that she had been convicted in 1998 of drug trafficking.
Raul, Jr. testified that he had entered a plea of no contest to an act of sexual abuse that had occurred years before the current allegations. Raul, Jr. also stated that the sexual abuse allegations made in this case occurred after he had confronted D.H.’s mother about involving Stephano in the family drug business and had threatened to report the drug activities.
Stephano testified that he had never touched D.H. and V.H. in a sexual manner and had learned of the sexual abuse allegations when his father confronted him about D.H.’s letter. Stephano testified that drug activity was normal for his family and that he grew up around drugs.
Following 2 days of deliberation, the jury acquitted Stephano of all charges except the following: In case No. 05 CR 272, the jmy convicted Stephano of Count 1 (aggravated indecent liberties with a child — solicitation) and Count 3 (aggravated indecent liberties with a child — lewd fondling). In case No. 05 CR 2887, the jury convicted Stephano of Count 1 (sexual battery) and Count 3 (aggravated criminal sodomy). The trial court sentenced Stephano to 200 months in prison for the base offense of aggravated criminal sodomy, 61 months in prison for each of the aggravated indecent liberties with a child convictions, and 12 months in jail for the sexual battery conviction. All sentences were ordered to run consecutively except the jail sentence imposed for the sexual battery conviction, producing a controlling sentence of 322 months in prison.
I. Does the record contain insufficient evidence to support Stephano’s conviction under K.S.A. 21-3504(a)(3)(B)P
Stephano alleges that his conviction for Count 1 of case No. 05 CR 272 was supported by insufficient evidence. When the sufficiency of the evidence is challenged in a criminal case, an appellate court reviews the evidence in a light most favorable to the prosecution to determine whether a rational factfinder was capable of finding the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
The challenged conviction is for aggravated indecent liberties with a child, as defined by K.S.A. 21-3504(a)(3)(B). K.S.A. 21-3504(a)(3)(B) states:
“(a) Aggravated indecent liberties with a child is:
(3) engaging in any of the following acts with a child who is under 14 years of age:
(B) soliciting the child to engage in any lewd fondlingor touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.”
K.S.A. 21-3504(a)(3)(B) was recently interpreted by our Supreme Court in the context of determining whether aggravated indecent solicitation of a child under K.S.A. 21-3511(a) was a lesser included offense. State v. Johnson, 283 Kan. 649, 653, 156 P.3d 596 (2007).
“As stated previously, K.S.A. 21-3504(a)(3)(B) criminalizes ‘soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.’ (Emphasis added.) Notably, the second half of the statute differentiates among (1) the child, (2) the offender, or (3) another. The legislature could have easily written the first part of the statute to include ‘fondling or touching of the offender or another’ but apparently chose not to do so. Similarly, subsection (a)(3)(A) differentiates between ‘the person of either [1] the child or [2] the offender.’ The plain and unambiguous language of (a)(3)(B) — ‘person of another’ — requires a third party.” Johnson, 283 Kan. at 654.
Clearly, a conviction under K.S.A. 21-3504(a)(3)(B) requires proof that a criminal defendant solicited a child to engage in lewd fondling or touching of a third party. In this case, there was no evidence that a third party was involved in any of the alleged sexual abuse between Stephano and either of the victims. As specifically related to Count 1 in case No. 05 CR 272, the State presented evidence that Stephano had solicited oral sex from D.H. while she was eating ice in the kitchen. The State presented no evidence that Stephano had solicited D.H. to engage in any activity that might be construed as lewd fondling or touching of any person other than Stephano. Therefore, the evidence was not sufficient to support Stephano’s conviction for aggravated indecent liberties with a child, as charged in Count 1 of case No. 05 CR 272.
On appeal, the State concedes that Johnson had interpreted K.S.A. 21-3504(a)(3)(B) to require that the solicitation involve fondling or touching of a third party but argues that Johnson does not control this case because Johnson did not directly address the sufficiency of the evidence. This argument is unpersuasive. As K.S.A. 21-3504(a)(3)(B) had been interpreted by our Supreme Court, the State’s evidence was insufficient to support Stephano’s conviction for aggravated indecent liberties with a child, as charged in Count 1 of case No. 05 CR 272. As a result, this conviction must be reversed.
Where a conviction is reversed due to insufficient evidence to support the charge and where the evidence presented would support a conviction of a lesser included offense, an appellate court may order a criminal defendant to be resentenced for the lesser included offense. See State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993). Nevertheless, the State does not suggest a lesser included offense for Stephano’s conviction under K.S.A. 21-3504(a)(3)(B). The most obvious candidate for a lesser included offense would be aggravated indecent solicitation of a child under K.S.A. 21-3511(a). Yet, the Johnson court has already determined that K.S.A. 21-3511(a) did not meet the elements test for a lesser included offense of K.S.A. 21-3504(a)(3)(B). 283 Kan. at 656. Therefore, we reverse Stephano’s conviction on Count 1 of case No. 05 CR 272.
II. Did prosecutorial misconduct deprive Stephano of a fair trial?
Next, Stephano contends the State committed prosecutorial misconduct in closing arguments by referring to multiple uncharged sexual acts. Specifically, Stephano objects to the following statements:
“[T]his case came to light and it was appropriately and conservatively charged for the sex acts he did and then the second victim also comes forward. You know, mind you he is not charged with the sex acts of what he did to [V.H.] that are outside the statutes of limitations. Mind you, he is not charged with additional sex act [sic] that came to light in [D.H.’s] second March 8th interview. There is one about a trip on the way to dance from April or May of ’04 and there is another shower incident when he molested her breasts and her vaginal area. He is charged with what initially came to light and then was later corroborated in the follow-up interview.”
Although Stephano failed to object to these statements at trial, appellate courts will review, a claim of prosecutorial misconduct for plain error, even in the absence of an objection at trial. State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008).
When a criminal defendant has alleged prosecutorial misconduct, this court applies a two-step review. First, the court considers whether the challenged conduct falls outside the wide latitude a prosecutor is allowed in choosing the language and manner of presentation with which he or she discusses the evidence presented at trial. Second, if the prosecutor s conduct is deemed to fall outside the permissible bounds of zealous advocacy, the court determines whether the misconduct constituted plain error. Misconduct constitutes plain error when it unfairly prejudices the defendant’s ability to obtain a fair trial. Warledo, 286 Kan. at 947.
In considering the prejudice part of the analysis, the court examines three factors: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct demonstrates ill will by the prosecutor; and (3) whether the evidence of guilt is so overwhelming that the misconduct would likely have been given little, if any, weight in the minds of the jurors. No one factor is controlling on the question of prejudice, and the third factor may override the first two factors only where the misconduct satisfies both the statutory and constitutional harmless error tests. Warledo, 286 Kan. at 947-48.
A. Were the prosecutor’s comments improper?
Stephano argues that the only purpose for discussing the uncharged crimes was to inflame the passions of the jury by suggesting that he had committed many other criminal acts that the State, in its mercy or by operation of law, had not charged and that, regardless of the proof related to the charged offenses, the jury should find Stephano guilty of some crime. In response, the State contends that, because the uncharged sexual acts of Stephano were admitted at trial without objection, the prosecutor was entitled to comment upon the evidence in closing arguments.
Nevertheless, the State’s comments upon the uncharged acts misrepresent the facts related to the crimes charged and introduce facts that were not admitted at trial, such as the reasons the State did not charge Stephano with additional offenses. Such commentary is improper and beyond the permissible bounds of closing argument. We recognize that a prosecutor has a wide latitude to explain evidentiary problems and to draw reasonable inferences from the evidence. See State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). Nevertheless, a deduction may be based only upon evidence which was actually introduced. State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008).
Moreover, because the comments emphasize uncharged crimes that, although admitted without objection at trial, tend to indicate the criminal defendant’s propensity to commit sex crimes and practically invite the jury to reach a compromise verdict, we cannot deem the comments to be insignificant. Multiple reasons might exist for the State’s decision not to charge crimes that have been alleged by a victim, not the least of which is the prosecutor’s belief that such crimes are not credible. By offering an explanation for fading to charge such crimes, the prosecutor in this case effectively testified and suggested that, save for the operation of law or the poor memory of a victim, Stephano should be facing an even greater punishment than permitted by the charged offenses. This argument was improper. See State v. Correll, 25 Kan. App. 2d 770, 775-76, 973 P.2d 197 (1998) (The court warned that a prosecutor’s closing argument implying that he had personal knowledge of other crimes committed by defendant not before the jury should be avoided on retrial.).
In addition, it was clearly improper for the prosecutor to go outside the record and tell the jury that Stephano was responsible for more crimes than just the offenses charged in the complaint. See Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. 1986) (Reversal was required when the prosecutor suggested that the defendants were responsible for the theft of over 300 pieces of heavy equipment other than those which the defendant had been charged with stealing.); see also Noel v. State, 754 P.2d 280 (Alaska App. 1988) (The prosecutor improperly implied that the defendant was guilty of a more serious offense than that for which he had been charged.).
B. Did the prosecutors comments unfairly prejudice Stephano?
1. Were the prosecutors comments gross and flagrant?
Because we have determined that die prosecutor’s comments were improper, we now proceed to the three factors under the second step of the prosecutorial analysis. Considering the first factor, whether the misconduct was gross and flagrant, we determine that the State intentionally attempted to taint the trial process with the improper argument that the State was barred by law from charging Stephano with other crimes that he probably committed against V.H. and that it had been lenient in not charging him with all the crimes allegedly committed against D.H. Based on the record, we determine that the prosecutor’s misconduct was gross and flagrant.
2. Did the prosecutors comments demonstrate ill will?
Next, we must consider whether the misconduct shows ill will by the prosecutor. Ill will has been described as “indifference to a court’s rulings, mocking of a defendant, or repeated acts of misconduct.” State v. Bunyard, 281 Kan. 392, 407, 133 P.3d 14 (2006). Here, while the challenged comments represent a small segment of the prosecutor’s closing argument, this was not the only act of misconduct by the prosecutor in her closing argument. Specifically, the prosecutor attempted to bolster D.H.’s credibility when she argued as follows:
“Who will you find credible? [D.H.] or [V.H.] or Little Roy, who stands in the unique position of being convicted for the same kind of crime. We know that Little Roy did molest her. We know that [D.H.] was truthful about this because he pled to it. How much more credibility does that give [D.H.] when she describes the molest [sic] in such detail? His conviction reaffirms [D.H.fs credibility about all the molests [sic].”
The prosecutor’s argument was based on a classic non sequitur: Little Roy pled to the crimes charged against him; therefore, D.H. must be telling the truth about the incidents with Stephano. The fact that Little Roy pled no contest in a separate criminal case to sexual acts against D.H. does not necessarily mean that Stephano committed the incidents against D.H. Little Roy’s no contest plea was based on discrete criminal acts that were committed separately from the acts charged in the instant case. The prosecutor’s use of Little Roy’s plea to bolster the credibility of D.H. was improper.
Throughout her closing arguments, the prosecutor recognized that the State’s entire case rested on credibility, and she repeatedly made improper arguments which could influence the jury’s credibility determination. The prosecutor’s repeated misconduct, which included the improper comments concerning the uncharged crimes against D.H. and V.H. and the improper bolstering of D.H.’s credibility, showed ill will by the prosecutor.
3. Was the evidence overwhelming against StephanoP
With regard to the third factor, whether the evidence of guilt was overwhelming, we note that the evidence against Stephano consisted of V.H.’s and D.H.’s accusations against him. There were no other witnesses to the abuse, and there was no physical evidence of the abuse. As a result, the jury’s verdict was based entirely upon a credibility determination between Stephano and V.H. and D.H. The jury obviously did not find V.H.’s and D.H.’s accusations credible for at least part of the charges, as Stephano was acquitted of one count of aggravated indecent liberties with a child, two counts of aggravated sodomy, one count of rape against D.H., and three counts of aggravated criminal sodomy against V.H. Based on the record in this case, we cannot say that the evidence was so overwhelming that the prosecutor’s comments would likely have been given little, if any, weight in the minds of the jurors.
When analyzing the prejudicial nature of the prosecutor’s improper comments, this court is constrained to examine the comments in the context of the trial record as a whole. See Warledo, 286 Kan. at 948. As related to the uncharged offenses against D.H., the prosecutor’s comments indicated that D.H. changed her story between her two police interviews and that the State charged only those acts that D.H. consistently mentioned. Such statements tend to lend credibility to D.H.’s testimony related to the charged offenses and suggest that the prosecutor had been lenient in charging Stephano with the crimes against D.H. Obviously, the jury did not find D.H. entirely credible in this case. The prosecutor’s comments could have influenced the jury to reach a compromise verdict and find Stephano guilty as to some of the crimes charged against him. As a result, we determine that the prosecutor’s comments did not constitute harmless error and that Stephano’s right to a fair trial was unfairly prejudiced in case No. 05 CR 272.
With respect to Stephano’s convictions in case No. 05 CR 2887, the prosecutor’s comments present two problems: (1) the comments suggest that Stephano committed other crimes that could have been proved by the prosecution but were barred by operation of law; and (2) the nature of the jury’s verdict with respect to the crimes against V.H. suggests the possibility of a compromise verdict.
As with the offenses charged in case No. 05 CR 272, the jury split its verdict with respect to the offenses charged in case No. 05 CR 2887 involving V.H. The jury convicted the defendant of sexual battery and only one of the four counts of aggravated criminal sodomy charged in the case. Unlike the offenses alleged by D.H., however, all of the charged offenses pertaining to V.H. related to the events on Thanksgiving 2004. The only evidence supporting any of these crimes was the testimony of V.H.
As a result, the jury’s verdict turned entirely upon a credibility determination between V.H. and Stephano. Clearly, the juiy did not find V.H.’s testimony regarding several of the alleged acts to be credible, but, according to the verdict, the jury found V.H. credible as to one count of oral sodomy. It is evident that the jury’s determination was influenced by the inconsistencies in V.H.’s accounts in that it convicted Stephano only on the one count that was supported by consistent testimony of V.H. Nevertheless, because the evidence against Stephano was not strong, the implication created by the challenged prosecutorial comments is sufficient to undermine confidence in the jury’s verdict. The natural implication of the prosecutor’s statements that the statute of limitations prevented the State from charging Stephano with two additional sex crimes is that Stephano was guilty of those crimes. As a result, the jury might have reached a compromise on the verdict, not being convinced of V.H.’s credibility with respect to the alleged sodomy charges, but believing Stephano had committed some sex crimes against V.H. for which he was not charged and convicting him on that basis.
The prosecutor’s comments concerning the uncharged crimes against V.H. suggested to the jury that the State had been prevented from charging Stephano with crimes that he had committed. Under such circumstances, the prosecutorial misconduct cannot be deemed harmless. See Warledo, 286 Kan. at 948. Consequently, we reverse Stephano’s convictions for sexual battery and aggravated criminal sodomy in case No. 05 CR 2887 and his conviction for aggravated indecent liberties with a child (Count 3) in Case No. 05 CR 272 and remand for a new trial on those counts.
III. Did the trial court improperly admit evidence of Stephano’s prior bad actsP
Next, Stephano challenges the admission of evidence related to several uncharged acts of sexual abuse against each of the victims. Specifically, Stephano contends that he was prejudiced by D.Ii.’s testimony that he had repeatedly solicited inappropriate sexual contact and by V.H.’s description of two uncharged acts of rape. Although we are reversing Stephano’s convictions in this case, we will briefly address Stephano’s argument because the question posed by the appellant is a recurring one and may present itself again at Stephano’s new trial.
Stephano admits that his trial counsel did not object to the- admission of this evidence. To preserve for appeal an issue related to the admissibility of evidence, a party must make a timely and specific objection to the admission of such evidence. K.S.A. 60-404; State v. Cook, 286 Kan. 1098, 1109, 191 P.3d 294 (2008) (refusing to review a claim that prior crimes evidence was erroneously admitted when the defendant failed to object to the admission of such evidence except within his motion for new trial after the jury had already considered the evidence). See also State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006) (where defendant failed to object at trial to the admission of evidence under K.S.A. 60-455, he was precluded from raising the issue on appeal); State v. Young, 14 Kan. App. 2d 21, 37, 784 P.2d 366, rev. denied 245 Kan. 788 (1989) (To preserve a K.S.A. 60-455 issue for appeal, a defendant must object on that ground at trial.). Here, Stephano has not even indicated that he attempted to limit the State’s use of the objectionable evidence by filing a motion in limine before trial. As a result, we determine that Stephano has failed to preserve this issue for appeal.
Admittedly, this court has considered issues raised for the first time on appeal: (1) when the new issue involves only a question of law arising on proved or admitted facts and resolution of the issue is finally determinative of the case, (2) when consideration of the issue is necessary to prevent the denial of fundamental rights and to serve the ends of justice, or (3) when the judgment of the district court may be upheld despite its reliance on erroneous reasoning. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). Nevertheless, Stephano has made no attempt to characterize this evidentiary issue as an issue deserving of consideration for the first time on appeal. Therefore, we determine that Stephano’s argument fails.
IV. Did the trial court improperly exclude evidence of a witness’ disbelief of another witness’ accusations?
Stephano next maintains that the trial court-erroneously excluded evidence intended to impeach the testimony of V.H. Although we are reversing Stephano’s convictions in this case, we include our analysis on this issue as the question may present itself again at Stephano’s new trial.
At trial, Raul, Jr. testified on behalf of the defense and told of a visit he received by V.H. after D.H. had reported the sexual abuse by Raul, Jr. and Stephano. Prompted by questioning by defense counsel, Raul, Jr. initially stated, ‘"We sat there and we were just talking at first, you know, just talking about random things and she [V.H.] told me she didn’t believe what [D.H.] had said and she didn’t believe none of it.” Later, Raul, Jr. clarified, “We were sitting there and she brought up what was being said with me and [V.H.] brought up what was being said about me and she told me she didn’t believe what was being — ”.
The State objected to the testimony because.it called for a witness’ opinion about the credibility of another witness, and the trial court sustained the objection. Defense counsel made no attempt to offer an alternative use for the evidence or to challenge the trial court’s ruling, perhaps relying on the possibility that the testimony would remain within the collective consciousness of the jury despite the State’s objection.
On appeal, Stephano concedes that the evidence was inadmissible as a comment on the credibility of D.H. but argues that the trial court should have admitted the evidence as impeachment of V.H.’s allegations of sexual abuse against Stephano. Essentially, Stephano requests this court to find reversible error in the exclusion of evidence when the court was never asked to consider an alternate basis for admission of the evidence.
Because the admission of evidence that is permissible for a particular use and impermissible for another use depends heavily upon the trial court’s assessment of the probative value of the evidence when weighed against its potential prejudice, this evidentiary determination is left to the sound discretion of the district court. See State v. Reid, 286 Kan. 494, 504, 186 P.3d 713 (2008). Moreover, it is apparent that Stephano failed to lay a proper foundation to admit Raul, Jr.’s testimony about V.H.’s earlier oral statement— not believing the allegations made by D.H. — as a possible prior inconsistent statement. “The proponent of a particular kind of evidence, whether it be a physical object or the testimony of a witness, is required to lay a foundation before it may be admitted into evidence.” 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Evidence § 1:9, p. 24 (5th ed. 2007).
For example, before extrinsic evidence of a previous inconsistent statement is admissible, it is generally required that a foundation be laid by asking the witness on cross-examination to admit or deny the making of the impeaching statement. K.S.A. 60-422(b). If the witness admits making the inconsistent statement, the impeachment has been accomplished and extrinsic evidence is ordinarily not necessary. State v. Schlicher, 230 Kan. 482, 492-93, 639 P.2d 467 (1982). On the other hand, if the witness is given an opportunity to identify, explain, or deny the statement, the extrinsic evidence must be admitted where the witness denies making the statement or testifies that he or she cannot remember making the statement. 230 Kan. at 493. Here, the record shows that Stephano neglected to lay a proper foundation for the admission of Raul, Jr.’s testimony. As a result, Stephano’s argument fails.
V. Did the calculation and imposition of Stephano’s sentence violate due processP
Although Stephano divides his argument into two separate issues, the two issues challenge the sentence imposed for Stephano’s base offense as a violation of due process. Citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Stephano first contends that the trial court unconstitutionally considered the facts of Stephano’s prior criminal convictions to calculate his base sentence without a jury finding that the prior convictions existed. Stephano further argues that the holding of Apprendi extends to the imposition of the aggravated sentence within the appropriate sentencing grid box under the United States Supreme Court’s ruling in Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007). Although we are reversing Stephano’s convictions, we include our analysis on this issue as it may become relevant if Stephano is convicted at a new trial.
Both arguments are controlled by decisions of our Supreme Court. See State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008) (ruling that the statutory maximum penalty imposed for a given crime is the aggravated sentence within the appropriate grid box and imposition of such sentence with a jury finding does not violate due process); State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002) (ruling that the holding of Apprendi does not extend to calculation of a defendant’s criminal history score under the Kansas Sentencing Guidelines Act).
This court is bound to apply our Supreme Court precedent absent some indication that the court is departing from such precedent. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Our Supreme Court has recently affirmed its reasoning in both Johnson and Ivory. See State v. Baker, 287 Kan. 345, 371, 197 P.3d 421 (2008); Warledo, 286 Kan. at 954. Consequently, these arguments provide no basis for relief.
VI. Was Stephano’s right to a fair trial prejudiced by cumulative trial errorP
Finally, Stephano contends that the cumulative effect of the errors committed during his trial deprived him of a fair trial.
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006).
The errors considered prejudicial enough to mandate reversal of Stephano’s convictions render this issue moot. See State v. Aleman, 16 Kan. App. 2d 784, 786, 830 P.2d 64, rev. denied 251 Kan. 940 (1992) (“An appellate court will not render opinions in appeals which present moot issues or where the judgment could have no practical effect on a then-existing controversy.”).
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The opinion of the court was delivered by
Valentine, J.:
The only thing necessary to be done in this case is to affirm the judgment of the court below. No comment is really necessary. The plaintiffs, by fraud and deceit, inveigled one of the defendants, John Wilson, into the jurisdiction of the district court of Pawnee county, for the purpose of obtaining service of summons upon him in an action intended to be brought against him and his partner, in that county. Such an abuse of judicial process cannot be tolerated in any court of justice. (Dunlap v. Cody, 31 Iowa, 260; same case, 7 Am. Rep. 129; Townsend v. Smith, 47 Wis. 623; same case, 32 Am. Rep. 793; Steel v. Bates, 2 Aikens, 338; same case, 16 Am. Dec. 720; Wood v. Wood, 78 Ky. 624; Williams v. Reed, 29 N. J. 385 ; Wanzer v. Bright, 52 Ill. 35; Allen v. Miller, 11 Ohio St. 374; Hevener v. Heist, 9 Phila. 274; Metcalf v. Clark, 41 Barb. 45; Goupil v. Simonson, 3 Abb. Pr. 474; Baker v. Wales, 14 id. 331.) The decision of the court below we think is undoubtedly correct, both as to the law and the evidence. The decision was rendered upon a motion made by the defendants to set aside the summons and the service thereof. The motion was heard upon affidavits and oral evidence. The appearance of the defendants was only special, and for the purpose of the motion only. No material error was committed by the court below. The testimony of the plaintiffs’ counsel, introduced by the defendants, was properly received. It was virtually a cross-examination of the counsel with reference to matters set forth in their affidavits previously and voluntarily filed by them and their clients in the case. Besides, no proper objection was made to this testimony. The only objection that was made with reference thereto was made before the counsel were sworn, and not afterward. Also, the most of this testimony was not with reference to confidential communications made between the counsel and their clients. The evidence rejected was not offered until long after the hearing was had; and it was then offered in the absence of defendants and their counsel, and without notice to them. It was also incompetent. As the service of summons upon Wilson, in Pawnee county, was obtained wrongfully and fraudulently and must be set aside, so also must the service of summons upon Fairchild, in Leavenworth county, be set aside. (Brenner v. Egly, 23 Kas. 123.)
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.:
This action was brought by the plaintiff in error to recover damages for personal injuries, which he alleges he sustained through the conduct of one of the servants or agents of the defendant in error. The defendant in his answer averred that the plaintiff sustained his injuries in attempting to climb upon a freight car while in motion, with the intention of riding on the car without paying any fare. On the trial, the plaintiff gave evidence tending to show that he is a Hebrew, and had been living in the United States only about two years; that just previous to his injuries he had started to go from Pueblo to Kansas City, and had purchased a ticket to be transported from Pueblo to Kansas City over defendant’s road; that he had a gripsack containing his personal effects, which he shipped by express to Kansas City, not wishing to be bothered with it on the cars; that when he had reached a point between Hutchinson and Burrton the conductor put him off the train he was riding on because he had either lost the pasteboard given him by a former conductor, or that conductor had taken it up; that when he was put off the train he had about five dollars in money; that he walked on to Burrton, reaching there shortly after noon; that while at Burrton he met a young man with whom he could talk a little, as this young man could talk German; that he gave this young man a half-dollar in exchange for a cigar case, and then walked around with him until towards evening, when they went into a private house and got a meal; that after this he left the young man and walked south of town some distance, ■ and while he was there the regular passenger train going east passed through Burrton; that shortly after ten o’clock he came back toward the depot, and as he came, he saw the emigrant train standing there, and he then concluded to purchase a ticket to go to Newton upon it; that he thereafter attempted to cross over the cars to the platform and to the station, which was on the other side, but as he got upon the platform of one of the cars, the cars started, and he gave up his attempt to get to the depot; that just as the cars started, a man having a lantern with letters upon it, and a cap with a badge on it, holding the lantern in one hand and a club in the other, jumped upon the same platform, and struck the plaintiff with both the club and the lantern, or with one, on the head, knocking him senseless on the ground; that plaintiff never saw the man before; that he had no words with him at the time, the only thing said by either preceding the blows being the words, “You God-damned son of a bitch !” uttered by the man who struck him; that plaintiff at the time could neither write, speak, nor understand English, and did not and does not know what the letters were which were on the lantern, or the badge on this man’s cap; that he thought this man was a railroad man because he had a lantern with letters on it, and a cap with a badge on it; that that was the only reason for saying or believing that he was a railroad man; that after plaintiff had lain where he fell for two or three minutes, this same man came running towards him and told him to get up, but plaintiff could not; that he seized the plaintiff, and raising him up with one hand, went through his pockets with the other; that as he did so, another man came running towards them, and as this man came, the one who had hold of him dropped him and ran off towards the town, away from the direction in which the train was; that this other man coming-up, an alarm was given, and the citizens came and carried him to Dr. McAtee’s office, where the doctor and his brother dressed his arm and set the bones; that the next morning Dr. Smalt, who was in the employ of the defendant, came and examined the arm and the dressing, and stated that it was all right; that afterwards his arm had to be amputated because of the unskillful and negligent manner in which it was set.
The defendant gave evidence tending to show that between ten and eleven o’clock on the night of June 26th, 1882, a train called “emigrant train,” consisting of an engine, freight and emigrant passenger cars, arrived at Burrión on its way east, and stopped there so that the engine could take water at the tank; that as the rear of the train passed the depot, the conductor, hearing some one hallooing as though he was hurt, caused the train to be stopped, and with the brakeman went to the spot where the noise proceeded from, and found two men, dressed and looking like tramps; one of them was lying on the ground, apparently hurt and in pain, and the other was holding this man’s head up and crying; that the one who was not hurt, upon inquiry as to what was the mat ter, stated in substance that he and the injured mau, whom he called “Joe” and “partner,” had been beating their way from Denver east, stealing rides when they could on the cars, and that they had been put off a train early that morning at Burrton, and that they had watched every opportunity to get upon this train, and started to climb up the side of one of the freight cars on the ladder after the train had started, and that the man who was hurt was clumsy and awkward about such business; that as he reached the top he fell and struck the ground, and severely hurt himself; that the conductor dispatched the man who was not hurt in search of a doctor, and soon a doctor arrived with some of the citizens of the town, and the man was carried to the doctor’s office, where it was found that his arm was badly broken; that after a while this arm was set, and the plaintiff was left in the doctor’s office that night in care of the man who was with him; that afterward it was ascertained the arm had not been properly set, and that amputation was necessary in order to save the plaintiff’s life, and therefore his arm was amputated; that when the plaintiff was taken to the doctor’s office, the city marshal, who was present, searched his pockets for such valuables as he might have, for the purpose of keeping them for him, but discovered nothing except a loaded revolver.
The case was submitted to the court with a jury, and the jury returned a verdict in favor of the defendant. The court subsequently approved the verdict, and rendered judgment accordingly. The plaintiff in his proceeding in error alleges that the district court improperly received upon the trial the declarations of a person known as “ Cooney,” who claimed to be the “partner” of the plaintiff, as to the manner of his receiving his injuries. Exceptions were also taken to certain instructions.
A careful examination of the record convinces us that the court below could not have committed any error prejudicial to the rights of the plaintiff. After the plaintiff had produced all of his evidence, the defendant demurred thereto, and the court overruled the demurrer. Thereupon, the defendant in troduced the evidence heretofore recited, tending to show that the plaintiff was accidentally injured while endeavoring to climb up the side of a car in motion, with the intention of stealing a ride thereon. The plaintiff did not show upon the trial that the person whom he alleges knocked him down and robbed him, was the servant or agent of the defendant; but even if we assume that because the man who assaulted him had a lantern in his hand with letters on it and wore a cap with a badge, that therefore he was an employé of the defendant, it does not follow that he was acting in the course of his employment in making the assault. It is not claimed that he was employed directly to make the assault; it does not appear that he had charge of .the train or of the car upon which the plaintiff was standing when he claims he was knocked off. The plaintiff testified that the person who struck and robbed him did not run towards the train after he had got his money, but ran the other way; that he went down town. The evidence of the plaintiff is insufficient in not showing that the person who assaulted him was in the employ of the defendant; even if we concede he has shown that much, yet his evidence is fatally defective in not showing that the wrongful acts alleged were done by the servant or agent of the defendant in the course or within the scope of his employment. (Hudson v. M. K. & T. Rly. Co., 16 Kas. 470.) This action was not brought against the defendant for its negligence in not protecting the plaintiff while a passenger on its train from the assault of some third party; and it nowhere appears in the evidence that he was thrown from the train by any person connected in any way with its operation.
The evidence offered by the defendant, after the demurrer was overruled, did not supply the omissions in the plaintiff’s case. Upon the evidence of the plaintiff, the trial court would have been justified in withdrawing the case from the consideration of the jury, and deciding it in favor of the defendant, After all the evidence had been presented on both sides, the court would have been justified in instructing the jury to ren der a verdict for the defendant. As there is no evidence in the record tending to show that the assaup; and robbery grew out of any service in which any employé of the defendant was engaged, or that was in the line of duty of any employé of the defendant, but appears to have been clearly disconnected therefrom, the judgment rendered is the only one that the evidence will support.
Under these circumstances, it is unnecessary to discuss the various alleged errors presented in the brief of plaintiff.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The only question for consideration is, whether the court erred in sustaining the demurrer to the plaintiff’s evidence. The record shows that there was but very little evidence given at the trial, and what little there was admitted must, when demurred to, be regarded in the most favorable light, and all reasonable presumptions to be drawn therefrom are to be resolved in favor of the plaintiff; and before a demurrer thereto can be successfully sustained, the court must be able to say that the plaintiff has entirely failed to prove his case. (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kas. 1.) The plaintiff showed by his testimony that he was a resident of the state, and the head of a family; that the two heifers in controversy belonged to him; that they were levied upon by a constable on execution in favor of the defendant; that before the sale of the property plaintiff notified the defendant not to buy them, and that he claimed them as exempt property; also, that the property was advertised and afterward sold, and the defendant became the purchaser at said sale. This evidence was, we think, sufficient when so attacked to prove the plaintiff’s cause. If the plaintiff had waived his right to select the property, or had done anything else that would reasonably prevent him from claiming the property as exempt, it would have been a proper defense to his claim. It was not necessary for the plaintiff, in the first instance, to show that he had not waived his right to claim the property under the exemption. The defendant however insists that the testimony of the plaintiff showed that he had no other cattle at the time of the trial, but that he did not show what other cows, if any, he had at the time the execution was levied upon the property in controversy. This was not necessary. If the cows in controversy were the only ones he owned at the time of the levy, then they were exempt; if he had other cattle, then he had the right to select which he would claim as exempt; and this right to select might be exercised by the plaintiff at any time before the sale. (Rice v. Nolan, 33 Kas. 28.) The exemption law was made for the benefit of a debtor and his family, and its provisions must be liberally construed in his favor. Where he made the selection before the sale and informed the defendant of that fact, and that he claimed the property as exempt, if after that the defendant retained them, he did so wrongfully, the plaintiff being entitled to their immediate possession.
Defendant claims that the court erred in overruling his motion to quash the affidavit, the foundation of the action; and also in overruling his objection to the introduction of any testimony thereunder. We suggest to counsel that before he can be heard to urge errors in his own behalf, he must have preserved the rulings of the court in a transcript or case-made. The defendant has filed no cross-petition in this case, and therefore none of the errors, even if they existed as claimed by him, can avail or be considered by this court. The demurrer was erroneously sustained.
We therefore recommend that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Green, J.:
After summary judgment was granted in favor of the Board of County Commissioners of Sedgwick County (Board), Park City received an extension to file a posttrial motion under K.S.A. 60-259(f). In addition, Park City moved for relief under K.S.A. 60-260(b), arguing that the trial court had improperly granted summary judgment in favor of the Board. The Board responded, arguing that the trial court had lacked the authority to extend the period to file the K.S.A. 60-259(f) motion. The trial court agreed and denied the motion. Moreover, the trial court denied the K.S.A. 60-260(b) motion. We dismiss in part for lack of appellate jurisdiction and affirm in part.
Greatly summarized, on December 21, 2006, the Board brought a lawsuit in Sedgwick County District Court challenging Park City’s annexation of property. On June 8, 2007, the Board moved for summary judgment. The sole issue the Board raised in its motion was whether K.S.A. 2006 Supp. 12-520a(d)(6) and K.S.A. 12-530 required Park City to give notice to the Park City Planning Commission (PCPC) that Park City intended to annex the property. The fact that Park City failed to provide the PCPC notice was not in dispute. In its summary judgment motion, the Board argued that because Park City had failed to give notice to the PCPC, Park City’s annexation of the property was invalid under K.S.A. 12-530(b) and K.S.A. 2006 Supp. 12-538.
Park City responded to the summary judgment motion, arguing that the only planning commission that was entitled to notice under the applicable statutes was the Wichita-Sedgwick County Metropolitan Area Planning Commission (MAPC). The trial court ruled from the bench that K.S.A. 2006 Supp. 12-520a(d)(6) and K.S.A. 12-530 required Park City to notify, not only the MAPC, but also the PCPC that it intended to annex the land. Therefore, the trial court ruled that the annexation was nullified.
After the hearing on the summary judgment motion, the City retained new counsel. Park City’s new attorney entered his appearance on August 3, 2007.
On August 15,2007, the trial court filed its journal entry granting the Board’s motion for summary judgment. On August 20, 2007, Park City (with the Board’s approval) made an oral motion to the trial court asking it to grant an extension of time to file a posttrial motion. The court granted the motion and extended the deadline to August 31, 2007. On August 30, 2007, Park City again (with the Board’s approval) made an oral motion to the trial court asking for another extension. The court granted the motion and moved the deadline to September 4, 2007. Finally, on September 4, 2007, Park City (again with the Board’s approval) made another oral motion for an extension. The trial court granted the motion and extended the deadline to September 5, 2007.
On September 5, 2007, Park City moved for relief under K.S.A. 60-259(f) and K.S.A. 60-260(b). In its motion, Park City argued that the trial court erred in its interpretation of the applicable statutes and, therefore, Park City was not required to give the PCPC notice that Park City intended to annex the property at issue. In regards to the 60-260(b) motion, Park City argued that the summary judgment order should be set aside because its previous counsel did not adequately oppose the summary judgment motion. Park City then submitted additional legal arguments and facts which it believed supported the conclusion that it was not required to give notice to the PCPC.
The Board responded on September 24,2007, arguing that Park City’s K.S.A. 60-259(f) motion was untimely filed because such a motion had to be filed within 10 days after the entry of judgment and K.S.A. 60-206(b) prohibited a trial court from extending this time period. In regards to Park City’s motion being treated entirely like a K.S.A. 60-260(b) motion, the Board argued that Park City’s previous attorney sufficiently argued against the summary judgment motion and that the additional facts Park City wished to now introduce had no relevance to the issue of whether the applicable statutes required Park City to notify the PCPC. Therefore, the Board argued that Park City did not make a showing of “mistake, inadvertence, surprise, or excusable neglect” that would reheve it from the summary judgment order.
The trial court denied the motions from the bench. A journal entry memorializing the trial court’s ruling was filed on February 1, 2008. In its journal entry, the trial court found that based on K.S.A. 60-206(b), Park City’s 60-259(f) motion was filed out of time and, as a result, had to be denied. In regards to Park City’s 60-260(b) motion, the trial court stated that none of the additional legal arguments or facts changed its conclusion that K.S.A. 2006 Supp. 12-520a(d)(6) and K.S.A. 12-530 required Park City to give notice to the PCPC. As a result, the trial court determined that Park City was not entitled to relief under K.S.A. 60-260(b).
On February 12, 2008, a hearing was conducted to determine whether the unique circumstances doctrine should be applied to allow Park City to file a late 60-259(f) motion. The trial court denied the motion from the bench.
Park City filed its notice of appeal on February 15, 2008.
I. Does this court have jurisdiction to review the trial court’s order granting the Board’s summary judgment motion ?
A. Jurisdiction
Our Supreme Court in Flores Rentals v. Flores, 283 Kan. 476, 480-481, 153 P.3d 523 (2007), stated:
“Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right. The only reference in the Kansas Constitution to appellate jurisdiction iterates this principle, stating the Kansas Supreme Court shall have ‘such appellate jurisdiction as may be provided by law.’ Kansas Constitution, Article 3, § 3. The Constitution is silent regarding the Court of Appeals, which is not a constitutional court but rather was statutorily created. In creating the Court of Appeals, the legislature limited its jurisdiction, defining the circumstances under which there is jurisdiction to hear an appeal. As a result, Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders. [Citations omitted.]”
Furthermore, the court stated in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 773-74, 148 P.3d 538 (2006), that “[p]arties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, nor can parties convey jurisdiction on a court by fading to object to its lack of jurisdiction. . . . Whether subject matter jurisdiction exists is a question of law over which [an appellate court’s] scope of review is unlimited.”
Because the right to appeal is entirely statutory, appeals must be taken in the manner prescribed by statute to invoke an appellate court’s jurisdiction. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003). A timely notice of appeal must be filed within 30 days from the “entry of the judgment.” K.S.A. 60-2103(a). Nevertheless, this time period can be tolled by filing (among other motions) a timely motion to alter or amend the judgment under K.S.A. 60-259(f). K.S.A. 60-2103(a). In order to be considered timely, a 60-259(f) motion must be in writing and be served and filed not later than 10 days after the entry of judgment. K.S.A. 60-207(b); K.S.A. 60-259(f); see Thomas v. Davis-Moore Datsun, Inc., 11 Kan. App. 2d 622, 624, 731 P.2d 1283 (1987). K.S.A. 2008 Supp. 60-206(b) clearly states that a trial court cannot extend the 10-day time period for filing a 60-259(f) motion. Once the trial court enters its order ruling on a posttrial motion, the 30-day time period for filing a notice of appeal starts running again in its entirety. K.S.A. 60-2103(a).
The trial court in this case filed its journal entry granting summary judgment on August 15, 2007. Therefore, Park City had until August 29, 2007, to serve and file a written 60-259(f) motion that would toll the 30-day time period for filing a notice of appeal. See K.S.A. 2008 Supp. 60-206(a); K.S.A. 60-207(b); K.S.A. 60-259(f); K.S.A. 60-2103(a). If Park City chose not to file a timely 60-259(f) motion, then it had until September 14, 2007, to file its notice of appeal. K.S.A. 60-2103(a). Neither of those things happened in this case.
As mentioned earlier, Park City asked (with the Board’s approval) for three extensions to file a 60-259(f) motion. The trial court, initially unaware that K.S.A. 2008 Supp. 60-206(b) prohibited extending the time period for filing a 60-259(f) motion, granted Park City’s request. Park City finally filed its 60-259(f) motion on September 5, 2007, 5 days after the deadline for filing such a motion had passed. Based on statutoiy rules mentioned earlier, the time period for filing a notice of appeal was never tolled; September 14, 2007, remained the deadline for filing a timely notice of appeal. As a result, we lack jurisdiction over Park City’s appeal of the underlying case because it was filed more than 30 days after the trial court’s entry of judgment, which is a jurisdictional requirement that cannot be waived or forfeited.
B. Unique Circumstances
Despite this conclusion, Park City argues in its brief that this court should apply the “unique circumstances doctrine” and find that it does have jurisdiction to determine the merits of the summary judgment order. Simply stated, this doctrine, which the United States Supreme Court recently disapproved in Bowles v. Russell, 551 U.S. 205, 168 L. Ed. 2d 96, 127 S. Ct. 2360 (2007), allows an appellate court to exercise jurisdiction over a late appeal if the appellant can show that he or she reasonably relied on some judicial action — taking place before the deadline for filing a notice of appeal — -which purportedly extended the time period for bringing an appeal. See Schroeder v. Urban, 242 Kan. 710, 712-14, 750 P.2d 405 (1988); Underhill v. Thompson, 37 Kan. App. 2d 870, 880-81, 158 P.3d 987, rev. denied 285 Kan. 1177 (2007).
The doctrine was first developed in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 9 L. Ed. 2d 261, 83 S. Ct. 283 (1962). In that case, after the trial court dismissed the petitioners complaint and entered judgment for the respondent on its counterclaim, petitioner asked for and received an extension of time to file a notice of appeal. Rule 73(a) of the Federal Rules of Civil Procedure allowed a trial court to extend the time period for filing a notice of appeal an additional 30 days only if the movant could show excusable neglect based on his or her failure to learn of the entry of die judgment. In Harris, the petitioner clearly knew about the entry of judgment but asked for the extension based on other reasons. The trial court, believing it had the authority to grant the petitioner an extension under Rule 73(a), did so, and the petitioner filed its notice appeal within the extended time period.
On appeal, a panel of the Seventh Circuit dismissed the case due to a lack of jurisdiction, stating that the petitioner did not make a showing of excusable neglect based, on its failure to learn of the entry of judgment. Therefore, according to the panel, the trial court did not have the authority to grant the extension of time under Rule 73(a). The Supreme Court reversed this holding, ignoring Rule 73(a)’s explicit language and stating:
“In view of the obvious great hardship to a party who relies upon the trial judge’s finding of ‘excusable neglect’ prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court. Whatever the proper result as an initial matter on the facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge’s ruling.” (Emphasis added.) 371 U.S. at 217.
The Supreme Court concluded that because the petitioner relied on the trial court’s erroneous finding that Rule 73(a) allowed for the extension, the petitioners appeal should not be dismissed. 371 U.S. at 217.
The unique circumstances doctrine was again applied by the Supreme Court in Thompson v. I.N.S., 375 U.S. 384, 11 L. Ed. 2d 404, 84 S. Ct. 397 (1964), a case with facts very similar to the ones here. In Thompson, the United States District Court for the Northern District of Illinois entered a final order denying Thompson’s petition for naturalization. The then applicable Rule 73(a) stated that Thompson had 60 days to file his notice of appeal and that the time period could be tolled by (among others) a timely motion under the Federal Rules of Civil Procedure, Rule 52(b) (amend or make additional findings of fact), Rule 59(b) (new trial), or Rule 59(e) (alter or amend judgment). In order for these motions to be considered timely, they had to be served within 10 days after the entiy of judgment. Rule 6(b) specifically stated that a trial court could not extend the 10-day time period for filing motions under Rules 52(b), 59(b), and 59(e). See 375 U.S. at 387-89.
Twelve days after the entry of judgment (2 days late), Thompson served notice on the government that he would appear before the trial judge with posttrial motions under Rules 52(b), 59(b), and 59(e). The government made no objection concerning the motions’ timeliness, and the trial court specifically declared that the motion for a new trial was made in ample time. A few days later, the trial court denied Thompson’s posttrial motions. Within 60 days of the denial of the posttrial motions but not within 60 days of the original entry of judgment by the trial court, Thompson filed his notice of appeal.
On appeal to the Seventh Circuit Court of Appeals, the government moved to dismiss the appeal on the ground that the notice of appeal had not been filed within the 60-day period prescribed by Rule 73(a) because Thompson’s posttrial motions were not timely and, therefore, did not toll the period for filing a notice of appeal. The Seventh Circuit granted the government’s motion to dismiss.
The Supreme Court applied its holding in Harris and reversed the Seventh Circuit, writing:
“The instant cause fits squarely within the letter and spirit of Harris. Here, as there, petitioner did an act which, if properly done, postponed the deadline for the filing of his appeal. Here, as there, the District Court concluded that the act had been properly done. Here, as there, the petitioner relied on the statement of the District Court and filed the appeal within the assumedly new deadline but beyond the old deadline. And here, as there, the Court of Appeals concluded that the District Court had erred and dismissed the appeal. Accordingly, in view of these ‘unique circumstances,’ [citation omitted], we grant the writ of certiorari, vacate the judgment, and remand the case to the Court of Appeals so that petitioner’s appeal may be heard on the merits.” 375 U.S. at 387.
In his dissent, Justice Clark noted that Rule 6(b) explicitly prevented the trial court from extending the time period for filing posttrial motions. 375 U.S. at 388. Therefore, regardless of the actions taken by the trial court and the government, Thompson’s late posttrial motions simply did not toll fhe 60-day time period for filing a notice of appeal. Justice Clark wrote:
"We have said that untimely motions to amend the findings and for new trial are of no legal significance whatsoever because the limiting language of Rule 6(b) is ‘mandatory and jurisdictional and [can] not be extended regardless of excuse.’ [Citation omitted.] In my view we should abide by [the Federal Rules of Civil Procedure] or amend them, rather than emasculate them.
“Rules of procedure are a necessary part of an orderly system of justice. Their efficacy, however, depends upon the willingness of the courts to enforce them according to their terms. Changes in rules whose inflexibility has turned out to work hardship should be effected by the process of amendment, not by ad hoc relaxations by this Court in particular cases. Such dispensations in the long run actually produce mischievous results, undermining the certainty of the rules and causing confusion among the lower courts and the bar. [Citation omitted.]” 375 U.S. at 389-90. (Clark, J., dissenting.)
Accordingly, the dissent would have found that Thompson’s appeal was out-of-time, thus affirming the Seventh Circuit’s conclusion that it did not have jurisdiction over his appeal.
In finding that the Seventh Circuit erred in concluding that it did not have jurisdiction over the appeals, the Harris and Thompson Courts clearly focused on the predicament appellants found themselves in when they relied on a district court’s action which purportedly tolled or extended the time period for filing a notice of appeal and, then, based on this reliance, the appellants refrained from filing a notice of appeal until the correct deadline had passed. Nevertheless, as Justice Clark alluded to in his dissent in Thompson, if the rules of civil and appellate procedure explicitly forbid a trial court from granting an extension of time, how can that extension have any sort of legal significance — such as, toll the time period for filing a notice of appeal? See 375 U.S. at 389-390 (Clark, J., dissenting). Cf. Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1024, 58 P.3d 1284 (2002) (“A judgment is void if the court that rendered it lacked subject matter jurisdiction, personal jurisdiction, or acted in a manner inconsistent with due process.”). Furthermore, if the rules of civil and appellate procedure explicitly forbid the extension of time that the appellant requested from the trial court, how can the appellant reasonably rely on that extension if it is granted? Cf. State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (“ Ignorance of the law is no excuse.’ ”); Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 88, 367 P.2d 44 (1961) (Parties in litigation are presumed to know the law.); Knight v. Myers, 12 Kan. App. 2d 469, 475, 748 P.2d 896 (1988) (“Everyone is presumed to know the law . . . including relevant statutes of hmitation.”); see also Miller v. Murdock, 788 P.2d 614, 616 n.2 (Wyo. 1990) (“It is difficult to understand how a party may reasonably rely on a court’s error in applying rules [of civil procedure] counsel is charged with knowing. . . . [I]gnorance of the rules is neither reasonable nor excusable.”).
Our Supreme Court adopted the unique.circumstances doctrine in Schroeder, 242 Kan. 710, a case substantially similar to Harris. In Schroeder, the trial court, before the deadline for filing a notice of appeal, granted the appellants a 30-day extension to file their notice. Because the appellants knew of the entry of judgment, the trial court did not have the authority under K.S.A. 60-2103(a) to grant the extension. The appellants, relying on validity of the ex tension, refrained from filing their notice of appeal until after the original deadline had passed. On appeal, this court dismissed the case for lack of jurisdiction. Our Supreme Court, however, held that the reasoning found in Harris and in Stauber v. Kieser, 810 F.2d 1 (10th Cir. 1982) (applying the unique circumstances doctrine to save an appeal where the trial court improperly granted an extension of time to file a posttrial motion), should be applied to save the appellants’ appeal and, therefore, remanded the case to this court for a determination on the merits. 242 Kan. at 712-14.
During the same term that Schroeder was decided, our Supreme Court applied the unique circumstances doctrine to Johnson v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 (1988), a case factually similar to Thompson, Stauber, and the present case. The trial court in Johnson granted Cyanamid a 10-day extension to file their posttrial motions which, like now, was not allowed under then applicable K.S.A. 60-206(b) (Ensley 1983). As a result, when Cyanamid filed its late posttrial motions, the 30-day time period under K.S.A. 60-2103(a) (Ensley 1983) was not tolled, making Cyanamid’s notice of appeal out-of-time. After quoting extensively from Schroeder (which included the citation to and quote from Stauber), our Supreme Court again found that the unique circumstances doctrine was applicable to save Cyanamid’s appeal. Our Supreme Court stated:
“In the ease before us, the extension did not come into being to extend, directly, the time for filing an appeal, but rather the ten-day period for filing post-trial motions. Had the court denied the motion, Cyanamid would still have had several days to appeal from the judgment by anyone’s calculation of precisely when the 30-day period commenced to run. Counsel for plaintiff not only did not object to the extension, he approved of it. The district court was presented with an order extending the time which was approved by the plaintiff, who now argues it was an invalid order of no force and effect. Yet, clearly, Cyanamid reasonably and in good faith relied upon the order extending the time for the filing of the post-trial motions. Within the time frame of the extension, Cyanamid filed its post-trial motions (June 21, 1984). The original 30-day appeal time from the entry of judgment had not yet expired when these motions were filed, but Cyanamid, in reliance on the extension, did not appeal until after its post-trial motions had been denied. The unique circumstances doctrine is particularly applicable to the facts herein.” Johnson, 243 Kan. at 301.
Over time, the legal foundation upon which Schroeder and Johnson was built has slowly eroded away, making the precedential value of those two cases questionable at best. First, Stauber, the Tenth Circuit Court of Appeals case that both the Schroeder and the Johnson courts had cited as support for applying the unique circumstances doctrine, was explicitly overruled by Weitz v. Lovelace Health Systems, Inc., 214 F.3d 1175, 1179-80 (10th Cir. 2000). Like the question presented here, the Weitz court had to determine whether the unique circumstances doctrine could be applied when the appellant asked for and received an extension to Ble a late Rule 59(e) motion (an extension which was and still is prohibited under Rule 6[b]), which had the effect of malting his notice of appeal also late. Though the Weitz court did not question the validity of the unique circumstances doctrine, the court did drastically limit its future applicability by stating that the doctrine would apply only if it was reasonable for the appellant to rely on the action taken by the trial court. 214 F.3d at 1178-80. The court then went on to hold that it was never reasonable for a party to rely on an act which is explicitly forbidden by the Federal Rules of Civil Procedure. 214 F.3d at 1180 (“In the present case, the rules expressly forbid any extensions for Rule 59[e] motions, and even a passing reference to the rules will reveal this fact. Consequently, the mere fact that a court has granted such an extension does not justify reliance that is clearly at odds with the text of the rules.”). As a result, the court found that the unique circumstances doctrine would not be applied to Weitz’ appeal. 214 F.3d at 1181.
Harris, the other case that the Schroeder and Johnson courts cited as support for applying the unique circumstances doctrine, was (along with Thompson) overruled recently by the United States Supreme Court in Bowles, 551 U.S. at 214. In Bowles, a trial court judge incorrectly told Bowles that he had 17 days to file his notice appeal when, in reality, the applicable statute only allowed for 14 days. On the 16th day, Bowles filed his notice of appeal. The Sixth Circuit Court of Appeals dismissed Bowles’ appeal, and the Supreme Court affirmed this decision. The Supreme Court reasoned that because the legislature, within constitutional bounds, limited the jurisdiction of appellate courts to hear only cases brought within the prescribed statutory period, appellate courts were not free “to create equitable exceptions to jurisdictional requirements” in order to exercise jurisdiction over untimely appeals. 551 U.S. at 214. As a result, the Court concluded that the unique circumstances doctrine was no longer valid. 551 U.S. at 214.
Numerous pronouncements from our Supreme Court concerning jurisdiction are consistent with the view taken by the Bowles Court. See, e.g., Flores, 283 Kan. at 480-81 (“Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders.”); Bruch, 282 Kan. at 764 (“Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, nor can parties convey jurisdiction on a court by fading to object to its lack of jurisdiction.”); State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004) (If the trial court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal.); Labette Community College v. Board of Crawford County Comm’rs, 258 Kan. 622, 626, 907 P.2d 127 (1995) (An agreement between the parties that the right to appeal is not waived cannot invest an appellate court with jurisdiction when it is otherwise lacking.).
Recently, our Supreme Court had a chance to consider Bowles and the effect it had on the continued viability of the unique circumstances doctrine in Kansas. See Finley v. Estate of DeGrazio, 285 Kan. 202, 170 P.3d 407 (2007). In Finley, the trial court initially granted the plaintiff s motion for an extension of time under K.S.A. 60-203(a)(1), which gives the trial court authority to extend the time to perfect service of process for an additional 30 days “upon showing of good cause.” Nevertheless, upon reconsideration, the trial court found that the plaintiff had failed to establish good cause, found the unique circumstance doctrine inapplicable, and dismissed the petition as time barred under the statute of hmitations in K.S.A. 60-513(a)(7). This court reversed, applying the unique circumstances doctrine in Finley v. Estate of DeGrazio, 36 Kan. App. 2d 844, 148 P.3d 1284 (2006).
In reversing this court’s decision, our Supreme Court specifically recognized Bowles’ conclusion that an appellate court lacks au thority to create equitable exceptions to jurisdictional requirements and, therefore, the “ ‘use of the “unique circumstances doctrine” is illegitimate.'” 285 Kan. at 210 (citing Bowles, 551 U.S. at 214. Despite its explicit recognition of Bowles’ holding, the Finley court, surprisingly, proceeded to consider the application of the unique circumstances doctrine, ultimately concluding that the doctrine did not apply because it “depends upon such concepts as equity, the interest of justice, good faith, estoppel, or nonparty error” — concepts the court concluded could not be applied to tire facts before it. (Emphasis added.) 285 Kan. at 209, 213.
As noted by this court in Rowland v. Barb, 40 Kan. App. 2d 493, 501, 193 P.3d 499 (2008):
“It appears the Finley couit interpreted Bowles to permit application of the unique circumstances doctrine only if equitable exceptions justifyits application— when in fact, Bowles ruled that courts have no authority to apply the doctrine ‘to create equitable exceptions to jurisdictional requirements.’ [Citation omitted.] Further, while our Supreme Court recognized that the unique circumstances doctrine had its roots in Harris Truck Lines, Inc., it failed to recognize that the United States Supreme Court explicitly overruled Harris Truck Lines to die extent it authorized an exception to a jurisdictional rule. [Citation omitted.] This overruling is significant in that, as discussed, our Supreme Court relied upon Harris Truck Lines in adopting the unique circumstances doctrine in Schroeder, 242 Kan. at 712-13.”
Even if the Finley decision can be interpreted to preserve the viability of the unique circumstances doctrine in Kansas, the case arguably narrowed the scope of the doctrine, making it inapplicable to this case. Our Supreme Court noted that the doctrine had only been applied in Kansas to cases involving “nonparty error,” citing, among other cases as support, Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972 P.2d 747 (1999), and Slayden v. Sixta, 250 Kan. 23, 30, 825 P.2d 119 (1992). Finley, 285 Kan. at 210-11. Nguyen was a workers compensation case where the administrative law judge mailed the notice of award to the wrong address, thereby causing Nguyen to receive the award after the deadline for filing an application for review had passed. Our Supreme Court, believing Nguyen should not be punished for a mistake that the ALJ had solely made, applied the unique circumstances doctrine and held that the time period for filing the application for review was tolled. As a result, Nguyen’s appeal was remanded to the Workers Compensation Board for a decision on the merits. 266 Kan. at 587, 590. In Slayden, our Supreme Court applied the unique circumstances doctrine in order to save a case from being barred by the statute of limitations because a clerk of the trial court issued a summons to the wrong address, contributing to the defendant being served out of time. 250 Kan. at 27-31.
Our Supreme Court’s statement in Finley, that the unique circumstances doctrine has been applied to situations involving only nonparty error (as depicted in Nguyen and Slayden), is not entirely correct. As pointed out earlier, our Supreme Court applied the doctrine in Schroeder and Johnson, cases clearly involving party error. Schroeder, 242 Kan. at 712-14 (appellants moved for an extension to file a notice of appeal which, based on a simple reading of K.S.A. 60-2103[a], was not allowed); Johnson, 243 Kan. at 293-94, 301 (appellants moved for an extension to file posttrial motions which, based on a simple reading of then applicable K.S.A. 60-206[b], was not allowed). Nevertheless, regardless of the previous statement’s accuracy in Finley, the Finley court obviously intended for the unique circumstances doctrine (assuming the doctrine would still be viable) to be applied in future situations involving only nonparty error (i.e., situations where the trial court is not lulled into erring by a party). Hence, we doubt whether Schroeder and Johnson are still good law.
Although this may seem a harsh result for Park City, because it relied on the extensions consented to by the Board and granted by the trial court, Park City is not without blame in this situation. For example, a careful reading of K.S.A. 2008 Supp. 60-206(b) would have given Park City notice that the trial court lacked authority to grant an extension of time to file a K.S.A. 60-259(f) motion. See Panhorst v. United States, 241 F.3d 367, 373 (4th Cir. 2001) (“Because a litigant ‘has a duty to familiarize himself with the [Federal Rules of Civil Procedure],’ which clearly prohibit an extension of time in which to file a Rule 59 motion, we cannot say that appellants’ reliance on the trial court’s acceptance of the submitted order was reasonable.”); Pinion v. Dow Chemical, U.S.A., 928 F.2d 1522, 1534 (11th Cir. 1991) (holding that an appellant’s rehance upon the trial court’s unauthorized extension of time to file a posttrial motion was not reasonable because “[s]imply scanning [Rule 6(b)] would have provided notice that there was an inconsistency between the Rule’s text and the court’s [extension] order”). For the reasons discussed earlier, we lack authority to invoke jurisdiction over this appeal under the unique circumstances doctrine. As a result, Park City’s argument fails.
II. Did the trial court err when it denied Park City’s K S.A. 60-260(b) motion?
Turning our attention to the next issue, we must consider if we have jurisdiction to address whether the trial court erred in denying Park City’s K.S.A. 60-260(b) motion. Park City filed a notice of appeal on February 15, 2008, from the trial court’s judgment denying its K.S.A. 60-260(b) motion. The notice of appeal concerning that issue was timely filed. See K.S.A. 60-260(b) (allowing a party to file a 60-260[b] motion within “a reasonable time,” or within 1 year, depending on the grounds for relief alleged). Because the notice of appeal on the 60-260(b) motion was filed within 30 days of the trial court’s entry of judgment (February 1, 2008) on the motion, we have jurisdiction to consider this issue.
As mentioned earlier, the Board’s motion for summary judgment centered on one issue: Does K.S.A. 2008 Supp. 12-520a(d)(6) and K.S.A. 12-530 require Park City to give notice to the PCPC that Park City intended to annex the property? The Board argued that the statutes required that, along with die MAPC, the PCPC be notified; Park City argued that the only planning commission that was entitled to receive notice was the MAPC.
Ultimately, the trial court agreed with the Board’s argument and concluded that the statutes required Park City to also provide notice to the PCPC. As a result, the court granted summary judgment in favor of the Board, invalidating Park City’s annexation of the property.
Apparently, Park City was not aware of the summary judgment motion until after the July 12 hearing. At that point, the attorney representing Park City in the case informed Park City that the trial court had granted summary judgment in favor of the Board. After retaining new counsel, Park City filed (along with its untimely 60-259[f] motion) a K.S.A. 60-260(b) motion. In the 60-260(b) motion, Park City argued that its previous attorney had failed to adequately raise legal and factual arguments in opposing the Board’s summary judgment motion. Though Park City did not come right out and say it, Park City implied in its motion that previous counsel’s performance (in his written response and oral argument against the motion for summary judgment) caused the trial court to grant the Board’s summary judgment motion. The trial court rejected Park City’s argument, stating that Park City’s previous attorney did an adequate job in opposing the summary judgment motion. Furthermore, the trial court considered the legal and factual arguments that Park City believed its previous attorney should have included in his response and concluded that the new arguments did not change its opinion that K.S.A. 2006 Supp. 12-520a(d)(6) and K.S.A. 12-530 required Park City to give notice to the PCPC before annexing the property at issue.
In its brief, Park City repeats the same arguments it made before the trial court, arguing that its previous counsel’s performance in opposing the summary judgment was lacking; therefore, it was entitled to be relieved of the summary judgment order under K.S.A. 60-260(b)(1) based on excusable neglect. Again, Park City does not explicitly state that its previous counsel’s performance actually caused the trial court to enter summaiy judgment against it. Park City merely complains that previous counsel should have performed better.
This court reviews a trial court’s decision on a K.S.A. 60-260(b) motion for abuse of discretion. In re Marriage of Laine, 34 Kan. App. 2d 519, 522, 120 P.3d 802 (2005). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).
K.S.A. 60-260(b)(1) states: “On motion and upon such terms as are just, the court may reheve a party or said party’s legal representative from a final judgment, order, or proceeding for the fol lowing reasons: (1) mistake, inadvertence, surprise, or excusable neglect.”
As support for its argument that the trial court should have granted its 60-260(b) motion, Park City cites Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P.2d 351 (1974). In Montez, the resident manager for the defendant apartment complex was served with summons and a copy of a personal injury petition. According to his affidavit in support of setting aside the default judgment against the complex, the manager placed the papers on his desk and neither he nor any one else ever saw them again; he simply forgot about them. He failed to tell the complex’s owners of the suit, and default judgment was taken. Our Supreme Court set aside the default judgment, holding that this was simple neglect, not inexcusable neglect or “reckless indifference.” 215 Kan. at 64-66.
This case is easily distinguishable from the facts in Montez. First, and most importantly, the facts here did not involve conduct that directly resulted in an adverse judgment. Park City’s previous attorney responded to the Board’s summary judgment motion, arguing why the statutes in question did not require Park City to give notice to the PCPC. Furthermore, the previous attorney made an appearance at the hearing on the summary judgment motion and presented arguments against the Board’s motion. Despite the previous attorney’s efforts, the trial court agreed with the Board’s argument and granted its summaiy judgment motion.
In its 60-260(b) motion for relief, Park City presented the arguments it believed its previous attorney should have raised in opposing the summary judgment motion. The trial court considered these arguments but was not swayed in its belief that the statutes required notice be given to the PCPC. As a result, it cannot be said that Park City’s previous attorney was directly responsible for the trial court granting summaiy judgment against Park City. Cf. Canaan v. Bartee, 272 Kan. 720, 723-26, 738-39, 35 P.3d 841 (2001) (setting aside a default judgment that was the direct result of actions taken by defense counsel). Park City is not entitled to relief based on the supposed deficiencies in its previous counsel’s legal argument opposing the summaiy judgment motion.
If anything, Park City, by filing a K.S.A. 60-260(b) motion, wanted to relitigate the merits of the Board’s summary judgment motion. Nevertheless, our Supreme Court stated in Vogeler v. Owen, 243 Kan. 682, 685, 763 P.2d 600 (1988):
“K.S.A. 60-260(b) was not intended as an alternative method of appellate review nor as a means of circumventing time limits on appeal, except where required by compelling considerations of justice. It does not provide a procedure to challenge a supposed legal error of the court, nor to obtain relief from errors which are readily correctable on appeal. [Citation omitted.]”
Based on our earlier discussion, it cannot be said that the trial court abused its discretion. In short, Park City failed to show that there was excusable neglect to warrant setting aside the summary judgment order. As a result, Park City’s argument fails.
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Standridge, J.:
Charles Risley appeals from the district court’s decision to extend his child support obligations to his disabled adult son past the age of majority. Sherri Goodner cross-appeals the district court’s denial of her motion for attorney fees. For the reasons set forth below, we reverse the decision regarding the child support obligation and affirm the decision with regard to the request for attorney fees.
Facts
Charles Risley and Sherri Risley (n/k/a Sherri Goodner) were granted a divorce on February 4, 1994. They entered into a property settlement agreement that was filed on February 4, 1994. In the property settlement agreement, they agree that the
“obligation to support a child hereunder shall terminate when such child dies, marries, becomes self-supporting or reaches the age of 18 years, whichever shall first occur. However, should the child be attending high school upon attain [sic] age 18, support will continue until June 1 of the year in which the child graduates from high school. The parties recognize and agree that any provision for the care, custody and control of a minor child are subject to further order of the Court and may be altered by any Court of competent jurisdiction.”
At the time of their divorce, the Risleys had two sons. The younger son was Darrin Risley. At around the age of 9 months, Darrin was diagnosed with cerebral palsy. Darrin’s condition left him unable to speak and with only a limited ability to communicate through sign language. Darrin cannot be toilet trained and is in diapers 100% of the time. Someone must feed him, bathe him, and attend to his personal hygiene.
During the time period relevant to the issues presented on appeal, Darrin attended a high school at which he was considered to be in the 10th grade. His expected graduation date was May 2009. With that said, Darrin is considered to be a 23-month-old in terms of his chronological equivalency. Although the high school Darrin attended was not a conventional high school, it was part of the Raytown C-2 School District in Raytown, Missouri.
On July 24, 2006 — -approximately 30 days before Darrin was to reach the age of majority — the Wyandotte County District Court Trustee filed a pleading in the divorce case, seeking to extend child support benefits paid by Charles until Darrin’s graduation from high school, which would occur well after Darrin turned 19 years old. Charles thereafter filed a pleading in which he opposed the pending motion to extend child support and requested full physical custody over Darrin. Sherri then filed a pleading in response to Charles’ request to change custody and submitted argument in support of the Trustee’s pending motion to extend child support.
An evidentiary hearing on the Trustee’s motion to extend child support was held on October 19, 2006. The district court took the matter under advisement. On October 26, 2006, Sherri filed a supplemental motion requesting the district court not only to extend the child support obligation past the age of majority, but to extend the obligation indefinitely. In support of this motion, Sherri referenced the common-law duty of parents to support their disabled child beyond the age of majority in the event the child is unable to support and maintain himself. Sherri also requested an award of attorney fees.
On October 27, 2006, the district court signed a Memorandum Decision finding that the January 19, 1994, settlement agreement between the parties in their divorce proceeding obligated Charles to make child support payments until June 1, 2009 — the year during which Darrin is scheduled to graduate from high school. Notably, the district court entered this order without considering Sherri’s supplemental motion requesting child support payments continue indefinitely. With regard to the amount of support that should be paid, the district court directed in the decision that the parties must submit to the court child support worksheets that included any income received for the care of Darrin and any income Darrin received himself.
On March 9, 2007, the district court filed a journal entry and order sustaining Sherri’s supplemental motion to extend child support indefinitely. In the order, the district court held that both parents remain obligated to support Darrin despite him having reached the age of majority, and that such support should continue so long as Darrin remains disabled.
On June 25, 2007, a hearing was held to determine (1) the amount of the child support that should be paid by Charles; (2) Sherri’s motion for attorney fees; and (3) Charles’ recently filed motion for paternity testing. With regard to an appropriate amount of child support to order, the district court openly expressed concern about using the Kansas Child Support Guidelines given the unique circumstances presented. To that end, the district court took the matter under advisement.
On July 10, 2007, the district court issued a memorandum decision that denied Charles’ request for paternity testing, denied Sherri’s request for attorney fees, and ordered Charles to pay child support in the amount of $900 per month until Charles’ death or the death of Darrin, whichever should occur first.
Analysis
On appeal, Charles asserts the district court was without statutory authority to order him to pay child support in the amount of $900 per month until Charles’ death or the death of Darrin, whichever should occur first. Sherri also appeals from the court’s order, asserting the district court abused its discretion in denying her request for an award of attorney fees.
1. Statutory Authority
Whether the district court exceeded its statutory authority is a question of law over which this court has unlimited review. Deffenbaugh Industries, Inc. v. Wilcox, 28 Kan. App. 2d 19, 23, 11 P.3d 98 (2000), rev. denied 270 Kan. 897 (2001). To that end, Charles argues that the district court lacked statutory authority to order him to pay child support for his disabled son beyond the age of majority. More specifically, Charles argues the authority conferred by K.S.A. 2008 Supp. 60-1610(a)(1) is extinguished when a minor child reaches the age of majority.
In response, Sherri contends the statutory provision cited by Charles is inapplicable when the child at issue is disabled. Sherri argues Kansas common law is the applicable standard and that the common law appropriately conferred authority upon the district court in this matter. See Keller v. Guernsey, 227 Kan. 480, 488, 608 P.2d 896 (1980) (holding parent’s duty of support may be judicially enforced by [1] proceedings under 60-1610[a]; [2] proceedings under K.S.A. 23-451 et seq.; or [3] an action to enforce the common-law duty of support). Sherri cites to three Kansas Supreme Court cases to support the proposition that common law imposes a duty upon every parent to support a disabled adult child, so long as such child remains disabled: In re Estate of Glass, 175 Kan. 246, 262 P.2d 934 (1953); Prosser v. Prosser, 159 Kan. 651, 157 P.2d 544 (1945); Sheneman v. Manring, 152 Kan. 780, 107 P.2d 741 (1940).
Contrary to Sherri’s assertion, we find Kansas common law no longer requires a parent to provide support for an adult incompetent child and thus the district court did not have authority under the common law to order the referenced support. See Arche v. United States of America, 247 Kan. 276, 289-91, 798 P.2d 477 (1990) (holding parents are not responsible for disabled child’s expenses after child reaches age of majority). Although the issue in Arche was presented in the context of a wrongful birth action, the court’s holding, which eliminates the common-law duty to support an adult incompetent child, is directly on point.
In its analysis, the Arche court noted that at the time Glass, Prosser, and Sheneman were decided, the Kansas Probate Code required parents to support incompetent children residing in a state hospital as patients. Arche, 247 Kan. at 288-89 (citing G.S. 1935, 59-2006 [1939 Supp.]). Finding such a statutory duty persuasive, the Glass, Prosser, and Sheneman courts similarly imposed upon parents a common-law duty to support an adult incompetent child, regardless of where he or she is residing. Arche, 247 Kan. at 286-90 (citing Glass, Prosser, and Sheneman).
When presented with the same issue almost 40 years later, the Arche court pointed out that the Kansas Legislature amended the probate code in 1967 to limit the duty of a parent to support of only incompetent minor children residing in state hospitals as patients. Arche, 247 Kan. at 289-90 (citing L. 1967, ch. 474, sec. 1). The Arche court then compared the duty imposed upon parents by the amended probate statute to the duty imposed by the unchanged common law and found a vital inconsistency in the state of the law:
“[U]nder the [amended] statute, parents of incompetent adult children are not bound by law to support such children if they are patients in state hospitals. On the other hand, if we apply our ‘common-law’ rule as expressed in Sheneman, Prosser, and Glass, parents are bound by law to support their incompetent adult children if the children are cared for at home, are patients in private institutions, or are anywhere except in state institutions. Such a ruling would create an inconsistency in our law and an incongruous situation.” Arche, 247 Kan. at 290.
Based on what had evolved to become an “inconsistent” and “incongruous” state of the law with regard to this issue, the Kansas Supreme Court in Arche modified its decisions in Glass, Prosser, and Sheneman to hold that Kansas common law no longer requires a parent to provide support for an adult incompetent child. Absent some indication that the Kansas Supreme Court is departing from its position, this court is bound by the holding set forth in Arche. But see Laterra v. Treaster, 17 Kan. App. 2d 714, 726, 844 P.2d 724 (1992) (without citing Arche, Glass, Prosser, or Sheneman, Court of Appeals panel summarily stated in the context of a wrongful death action that “Kansas law is clear that a parent has no legal duty to support a child beyond the age of majority, unless that child is physically or mentally unable to maintain and support himself or herself’).
Based on the discussion above, we find the district court did not have authority to order Charles to provide support for his adult incompetent child based on a parent’s common-law duty to provide support for his children. Nor do we find authority for the district court’s order pursuant to K.S.A. 2008 Supp. 60-1610(a)(1). That statute states:
“[T]he court may order the child support and education expenses to be paid by either or both parents for any child less than 18 years of age, at which age the support shall terminate unless: (A) The parent or parents agree, by written agreement approved by the court, to pay support beyond the time the child reaches 18 years of age; (B) the child reaches 18 years of age before completing the child’s high school education in which case the support shall not terminate automatically, unless otherwise ordered by the court, until June 30 of the school year during which the child became 18 years of age if the child is still attending high school; or (C) the child is still a bona fide high school student after June 30 of die school year during which the child became 18 years of age, in which case the court, on motion, may order support to continue through the school year during which the child becomes 19 years of age so long as the child is a bona fide high school student and the parents joindy participated or knowingly acquiesced in the decision which delayed the child’s completion of high school.”
Based on this language, it is clear that the district court did not have authority to order child support to continue for Darrin once he reached the age of 18 unless he fell under one of the narrow statutory exceptions. Here, there is no evidence of a court-approved written agreement signed by Charles stating that he will pay support beyond the age of Darrin’s majority; thus, the statute authorized the district court to decide only the issues set forth in subsection (a)(1)(B) and (C): whether Charles’ support of Darrin should continue through the school year during which Darrin becomes 18 and/or 19 years of age. Notwithstanding this limited authority, the district court ordered Charles to pay child support of $900 per month until Charles’ death or the death of Darrin, whichever should occur first. To that end, we find the district court exceeded its authority and hereby reverse that portion of the decision below that orders Charles to pay child support of $900 per month at any time after the end of the school year during which Darrin becomes 19 years of age.
2. Sherri’s Motion for Attorney Fees
Sherri argues the district court abused its discretion in denying her an award of attorney fees. In support of her argument, Sherri maintains (a) she does not have the financial resources to fully pay her attorney and (b) Charles’ unreasonable actions at the district court level caused her to incur unnecessary attorney fees.
The district court has the authority to award attorney fees for matters pertaining to child support pursuant to K.S.A. 60-1610(b)(4). Where the district court has authority to grant attorney fees, its decision is reviewed under the abuse of discretion standard. Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7; 137 P.3d 1030 (2006).
Here, we cannot say that the district court’s decision to deny fees is arbitrary, fanciful, or unreasonable. Although Sherri argues she incurred unnecessary attorney fees due to Charles’ actions in the proceedings below, we note that Sherri initiated the suit, Charles had a right to file responsive pleadings, and there is no evidence that Sherri attempted to resolve the child support issue without court intervention. Moreover, Sherri’s most recent domestic relations affidavit shows her with gross wages of $3,875 per month. We see no evidence that the district court’s ruling on attorney fees was an abuse of discretion.
Affirmed in part and reversed in part. | [
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Per Curiam:
This action was filed by plaintiffs, Western Kansas Express, Inc., and Jayhawk Truck Line, Inc., against Dugan Truck Lines, Inc., for damages allegedly arising out of the violation of regulations administered by the Kansas Corporation Commission (KCC). The district court granted defendant’s motion to dismiss and plaintiffs appeal.
Plaintiffs and defendant are corporate entities and public motor carriers regulated by the KCC pursuant to K.S.A. 66-1,108 et seq. (unless noted otherwise, all statutory references in this opinion are to the 1980 Ensley edition). In proceedings before the commission, it was determined that defendant had transported goods for hire between points and places in Kansas without authority and through territory lawfully served by plaintiffs under their certificates of convenience and necessity. A cease and desist order was issued by the commission June 8, 1983. On July 18, defendant requested a hearing. On November 1, the commission ordered that the cease and desist order should remain effective. On November 21, plaintiffs filed a motion to intervene in the proceedings before the commission, alleging that defendant was diverting traffic from plaintiffs and that their ability to serve the public as they were required to do by law was impeded. Plaintiffs were permitted to appear as intervenors at a hearing before the commission on December 12, but they sought no damages and requested no additional investigation.
On January 23,1984, the KCC issued its findings that between the approximate date of the cease and desist order and the approximate date it was ordered that the cease and desist order remain effective (July 19, 1983 to November 7, 1983), defendant violated its authority 38 times. A fine of $100 for each of 21 violations was imposed, the other violations being found insufficiently serious to warrant a penalty.
On July 9, 1984, plaintiffs filed this suit in district court seeking damages arising out of defendant’s unauthorized trans-portion of goods. Plaintiffs requested three times their actual damages, the costs of the suit, and a reasonable attorney fee pursuant to K.S.A. 66-176. Defendant moved to dismiss contending that the court lacked jurisdiction to consider plaintiffs’ claim and that the petition failed to state a claim for which relief may be granted.
The district court ordered dismissal of this case concluding that the KCC “has primary jurisdiction to hear alleged violations of [defendant’s] certificate of convenience and necessity.” The court based this conclusion on the broad powers given the KCC to regulate public motor carriers and the provisions of K.S.A. 66-176 which the court concluded “authorizes the SCC [State Corporation Commission] to award money damages to an aggrieved party, under the facts of this case.” For this reason, the court also concluded that plaintiffs had an appropriate administrative remedy “for an impartial resolution of the facts underlying their complaints against [defendant],” and that the district court action was barred by plaintiffs’ failure to exhaust the available administrative remedies.
The action filed by plaintiffs against defendant was for private damages arising out of defendant’s allegedly unlawful conduct. This is essentially a common-law action for negligence per se, which would ordinarily fall squarely within the jurisdiction of our district courts. Noland v. Sears, Roebuck & Co., 207 Kan. 72, Syl. ¶ 2, 483 P.2d 1029 (1971). Therefore, the dispositive issue in this case is whether the district court correctly held that plaintiffs had an administrative remedy for their claim for money damages which substitutes or supplements the common-law right. If such a remedy exists, it must ordinarily be exhausted before a litigant may resort to the courts. Pecenka v. Alquest, 232 Kan. 97, 99-100, 652 P.2d 679 (1982). On the other hand, if no administrative remedy is available or if it is inadequate to address the problem in issue, exhaustion is not required. Hamilton v. United Telephone Co. of Kansas, 6 Kan. App. 2d 885, 887, 636 P.2d 202 (1981), rev. denied 230 Kan. 817 (1982); Beaver v. Chaffee, 2 Kan. App. 2d 364, 369, 579 P.2d 1217 (1978). In addition, mere possession by some official body of a continuing supervisory or investigatory power does not itself suffice to afford an administrative remedy unless the statute or regulation under which that power is exercised established clearly defined machinery for submission, evaluation, and resolution of complaints by aggrieved parties. Beaver, 2 Kan. App. 2d at 369.
Initially, it must be concluded that none of the administrative provisions regulating common carriers are intended to substitute or eliminate private remedies provided at common law. K.S.A. 66-156, which gives the KCC general supervision over common carriers and the authority to inquire into any neglect of duty or violations of law, states that “[n]othing in this section shall be construed as relieving any public utility or common carrier from its responsibility or liability for damage to person or property.” In addition, K.S.A. 66-178 provides as follows:
“No statute providing for the regulation of public utilities or common carriers shall be construed to estop or hinder any person or corporation from bringing suit against any such public utility or common carrier for any violation of the laws of this state for the government of public utilities and common carriers.”
The district court held that a party pursuing actual damages resulting from a violation of authority granted by the KCC has a remedy before the commission pursuant to K.S.A. 66-176. This statute provides as follows:
“Any public utility or common carrier which shall violate any of the provisions of law for the regulation of such public utilities or common carriers shall forfeit, for every offense, to the person, company or corporation aggrieved thereby, three times the actual damages sustained by the party aggrieved, together with the costs of suit, and a reasonable attorney fee, to be fixed by the court; and if an appeal be taken from the judgment or any part thereof, it shall be the duty of the appellate court to include in the judgment an additional reasonable attorney’s fee for services in the appellate courts.”
Although this statute has been in effect since 1883, there are only two Kansas cases which have considered its significance. In Kearney v. Kansas Public Service Co., 233 Kan. 492, 505-06, 665 P.2d 757 (1983), the court held that the provision for treble damages did not apply to a damage action against a one-city gas public utility which is exempt from most state regulation. There was no contention raised or considered in Kearney that K.S.A. 66-176 described an administrative remedy rather than one which must be imposed by a court. Indeed, it was assumed in that case that the statute provided a penalty which is intended to be invoked against regulated utilities by a court finding the utility in violation of its regulations. The court simply concluded that the defendant in Kearney did not fall within the class of regulated utilities embraced by the treble damage penalty.
In the ancient case of Beadle v. K.C. Ft. S. & M. Rld. Co., 51 Kan. 248, 32 Pac. 910 (1893), the court discussed the 1883 version of the statute, which contained essentially the same language, but applied only to railroads. The Beadle court stated:
“The purpose of the statute is not merely to punish an offense against the public justice of the state, but to afford a private remedy to the person injured by the wrongful act. [Citation omitted.] The party aggrieved may recover a greater amount under the statute than at the common law.” 51 Kan. at 252.
The Beadle court also noted that “[t]he overcharges, however, may all be recovered under the statute, as at common law, with additional damages or penalty. No regulation or order of the board [of railroad commissioners] is necessary for the recovery of such overcharges.” 51 Kan. at 253. Thus, the court appears to have considered the statute as expanding the remedy available to a party bringing a lawsuit for damages resulting from the breach of a regulation. Beadle did not indicate that it was the administrative body which was to assess this additional remedy.
The district court’s conclusion that K.S.A. 66-176 describes an administrative remedy which must be exhausted before resort to the damage action brought by plaintiffs is also belied by the ordinary meaning of the statute. The fundamental rule of statutory construction to which all others are subordinate is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 703 P.2d 840 (1985). Courts are required to consider and construe all parts of an act in p,ari materia to ascertain legislative intent. To be in pari materia, statutes need not have been enacted at the same time; statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together. Claflin v. Walsh, 212 Kan. 1, 8, 509 P.2d 1130 (1973).
K.S.A. 66-176 uses language which specifically contemplates its application to a judicial, not an administrative, proceeding. The statute refers to “costs of suit” rather than those of the administrative proceeding. The provision also refers to “a reasonable attorney fee, to be fixed by the court.” Defendant contends that damages are to be assessed by the KCC and that only attorney fees are to be fixed by the court. However, this would require a plaintiff to split his cause of action and prove it before both the KCC and the court. Finally, the statute also refers to an appeal taken from the judgment and states that “it shall be the duty of the appellate court to include in the judgment an additional reasonable attorney’s fee for services in the appellate court or courts.” If the statute contemplated a damage award at the agency level, it would refer to the costs of appeal being incurred in the district court where the appeal of an administrative order would first lie. K.S.A. 66-118a. In short, there is no language in the statute which vests the power to award damages with the KCC.
We conclude that K.S.A. 66-176 is intended to grant the court in which a damage action has been filed against a public utility or common carrier the power to award treble damages, costs, and attorney fees as a penalty when it finds the defendant violated the provisions of the law regulating the utility or common carrier. The statute does not invest the KCC with the power to award damages to a party aggrieved by a violation of the law regulating common carriers.
We note briefly that none of the provisions defining the broad regulatory powers of the KCC and relied on by the district court persuade us away from this conclusion. In addition to the general authority to regulate public utilities and common carriers given the KCC under K.S.A. 66-111 and 66-129, statutory provisions regulating public motor carriers are found at K.S.A. 66-1,108 et seq., in some 38 separate provisions. These statutes include two penalty provisions — K.S.A. 66-1,126, providing that operating as a carrier without a certificate or license or in violation of the terms thereof is a misdemeanor, and K.S.A. 66-1,130, providing that a violation of the act is a misdemeanor to be punished by a fine not exceeding $500.00. In addition, fines may be imposed for violations of the regulatory laws. K.S.A. 66-138 and 66-177. However, all of these penalties are paid to the state treasurer and enforced by the attorney general. None of the provisions cited by defendant or relied on by the district court provide for a damage remedy to a third party which is to be assessed by the KCC.
Finally, we need to briefly attempt to clear up some confusion regarding the doctrine of primary jurisdiction. This doctrine of administrative law has been defined as the determination of whether a court or an administrative agency has the authority to make an initial rather than a final decision. Hamilton, 6 Kan. App. 2d 885. Primary jurisdiction does not allocate power between courts and agencies to make final determinations but guides the court in deciding whether the court should refrain from exercising its initial jurisdiction until after an administrative agency has employed its expertise to resolve some question best decided for reasons of uniformity or technical expertise by the agency. Davis, Administrative Law Text § 19.01, p. 373 (3rd ed. 1972). The doctrine of primary jurisdiction is different from the exhaustion of remedies requirement in that the exhaustion doctrine requires that judicial action on the claim be withheld when the law provides that such a claim may first be treated by the proper administrative agency. On the other hand, primary jurisdiction is invoked in situations in which the courts have jurisdiction over the claim from the outset but it is likely that the case will require resolution of issues which, under a regulatory scheme, have been placed in the hands of the administrative body. Sunflower Elec. Coop. v. Kansas Power & Light Co., 603 F.2d 791, 796 (10th Cir. 1979).
In this case, the issues which might profit from the expertise of the regulatory agency have already been addressed by the KCC. Since there was no remedy available to plaintiffs in that forum for the damages they may have sustained, there is no bar erected by the exhaustion doctrine or policy created by “primary jurisdiction” to prevent the district court’s resolution of this case.
The order of dismissal is reversed and the case remanded for trial. | [
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Briscoe, J.:
This is a direct appeal by Edward L. Clark from his jury conviction of three counts of indecent liberties with a child in violation of K.S.A. 1984 Supp. 21-3503. Each count involved a different child: Count I, ten-year-old L; Count II, five-year-old H; and Count III, eight-year-old B. We reverse and remand Count II for a new trial because the trial court failed to instruct the jury on child’s hearsay evidence. Counts I and III are affirmed.
The mother of L and H was dating Clark’s roommate. She and her children were invited to dinner at the home of defendant Clark on February 10,1985. They all had visited the Clark home on other occasions in January and February. That afternoon, while the other adults talked in the living room or prepared dinner in the kitchen, the children went into “Uncle Ed’s” (as Clark had instructed the children to call him) bedroom to get cándy from Clark and to talk on his CB radio. Clark asked L to sit on his lap. When the other children left Clark’s bedroom, Clark touched and rubbed L’s vaginal area, over her clothing, for about five seconds. Although L “kind of froze” for a few seconds, she was able to get up and leave the room. L realized that her sister, H, had seen Clark on other occasions and went outside to talk with her and ask if Clark had ever touched her. H responded that Clark had touched her and hesitantly showed L where he had touched her. H also indicated that Clark had touched her on more than one occasion and said that if she told anyone he would not give her any more candy. H and L later told their mother that Clark had touched them “in their private parts.”
On March 5, 1985, B went to Clark’s home to get her five-year-old brother, T, who was talking on Clark’s CB radio. The children went home but later returned to Clark’s home to get candy. While the children were eating candy, Clark offered B a one-dollar bill in exchange for allowing him to put his hand down her pants. Although B refused the dollar, Clark put his hand down her skirt and touched her “privates” over her underpants, for less than one minute. B testified that Clark had done this on three other occasions, each time offering her money or candy. T, who witnessed the incident, ran home to tell his mother. His mother sent T back to Clark’s house to bring B home. Upon questioning by her mother, B told her what had happened at Clark’s home.
Clark was charged with three counts of indecent liberties with a child. At trial, H and T, both five years of age, were found incompetent to testify. Although there is some confusion in the record whether H’s statements to L and to her mother were admitted under K.S.A. 1985 Supp. 60-460(d) or 60-460(dd), we attribute this confusion either to misstatement or transcription error. By the trial court’s reference to State v. Lanter, 237 Kan. 309, 699 P.2d 503 (1985), it is clear the court admitted H’s statements under (dd). Statements made by T to his mother were also admitted under 60-460(dd). Clark was convicted on all three counts.
Defendant’s first two issues concern the count involving H, Count II. Defendant contends the trial court erred in failing to give the child’s hearsay evidence instruction (PIK Crim. 2d 52.21) as mandated by K.S.A. 1985 Supp. 60-460(dd). He also contends the trial court erred in the admission of H’s out-of-court statements pursuant to 460(dd) because the statements lacked adequate indicia of reliability. We agree the trial court erred in its instructions and remand Count II for a new trial. Given our resolution of the instruction issue, we need not determine whether H’s out-of-court statements were admissible pursuant to 460(dd).
K.S.A. 1985 Supp. 60-460(dd), an additional exception to the general rule prohibiting hearsay evidence, provides for the admission of out-of-court statements of children but also safeguards a defendant’s Sixth Amendment right to confront witnesses by establishing conditions for the admissibility of the statements and by directing the trial court to give an instruction when such statements are admitted:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(dd) ... In a criminal proceeding or in a proceeding to determine if a child is a deprived child under the Kansas juvenile code or a child in need of care under the Kansas code for care of children, a statement made by a child, to prove the crime or that the child is a deprived child or a child in need of care, if:
“(1) The child is alleged to be a victim of the crime, a deprived child or a child in need of care; and
“(2) the trial judge finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable and the child was not induced to make the statement falsely by use of threats or promises.
“If a statement is admitted pursuant to this subsection in a trial to a jury, the trial judge shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, any possible threats or promises that might have been made to the child to obtain the statement and any other relevant factor.” Emphasis added.
PIK Crim. 2d 52.21 incorporates the language of the statute as it pertains to how the jury should be instructed when a child’s hearsay is received:
“It is for you to determine what weight or credit to give to the evidence of a statement claimed to have been made by__You should consider (her) (his) age and maturity, the nature of the statement, the circumstances existing when it was claimed to have been made, any possible threats or promises that may have been made to (her) (him) to obtain the statement, and any other relevant factors.”
This instruction was not given by the trial court. Instead, the following general witness instruction was given:
“It is for you to determine the weight and credit to be given the testimony of each witness. You may take into account his ability and opportunity to observe and know the things about which he has testified, his memory, manner and conduct while testifying, any interest he may have in the result of this trial, and the reasonableness of his testimony considered in the light of all the evidence in this case. You have a right to use that knowledge and experience which you possess in common with men in general, in regard to the matter about which a witness has testified, and you may, of course, utilize your common sense. You must not consider any knowledge or experience that you do not share in common with men in general.”
Defense counsel did not object to the instructions given by the trial court, nor did he request the child hearsay instruction (PIK Crim. 2d 52.21). “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.” K.S.A. 22-3414(3); emphasis added.
“An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict.” State v. Houck, 240 Kan. 130, 139, 727 P.2d 460 (1986).
See State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977). Defendant contends the purpose of PIK Crim. 2d 52.21 is to assist the jury with an evidentiary matter which affects the defendant’s Sixth Amendment right to confront witnesses testifying against him, and that the failure to give the instruction is reversible error.
The confrontation clause of the Sixth Amendment of the United States Constitution provides “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” In Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), the United States Supreme Court established a two-part test for determining whether admission of out-of-court statements of a witness who does not testify at trial violates the defendant’s right to confrontation. First, the witness must be unavailable. Second, the witness’ out-of-court statements must have “adequate indicia of reliability.” In State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985), the Kansas Supreme Court acknowledged the difficulty of proving the sexual abuse of children and recognized the necessity of using a child victim’s out-of-court statements because these statements are frequently the only probative evidence available. The court went on to uphold the constitutionality of 60-460(dd), specifically concluding the statute was not a violation of the defendant’s Sixth Amendment right to confront witnesses because the Roberts two-part test for admissibility was incorporated into the statute.
Once the hearsay statements are admitted under 60-460(dd), the legislature’s concern for the protection of defendant’s confrontation rights does not end. K.S.A. 1985 Supp. 60-460(dd) also provides “the trial judge shall instruct the jury that it is for the jury to determine the weight and credit to be given the [child’s hearsay] statement” and continues with an enumeration of factors the jury shall consider in this determination. PIK Crim. 2d 52.21 follows the language of 60-460(dd) and is specifically tailored to the unique problem presented by child’s hearsay testimony. The instruction focuses directly on the statements “claimed to have been made” by the absent child witness by naming the child in the instruction. The instruction reminds the jury to consider the age and maturity of the named child, the nature of the statement, circumstances surrounding the statement, any possible threats or promises made to obtain the statement, and other relevant factors.
The State in the case at bar argues valiantly that the witness instruction given “adequately advised the jury on the K.S.A. 1985 Supp. 60-460(dd) factors to be considered.” We disagree. The instruction fails to focus at all upon H’s out-of-court statement. Rather, the instruction provides factors to be considered in determining the weight and credit to be given the testimony of any and all witnesses who testified. The instruction specifically refers to the things about which the witness “has testified” and the conduct of the witness “while testifying.” No juror would interpret this instruction as addressing factors to be considered in determining the weight or credibility of the statement of H, who was neither called nor testified as a witness. Further, the factors listed in the instruction given do not equate with the factors enumerated in PIK Crim. 2d 52.21. For example, an instruction to consider a witness’ “ability and opportunity to observe and know” does not instruct a juror to consider five-year-old H’s age and maturity.
If the jury would have had the benefit of the child’s hearsay instruction (PIK Crim. 2d 52.21), is there a real possibility it would have returned a different verdict on Count II? The hearsay testimony of H, admitted through L and H’s mother, was the only evidence against the defendant on Count II. H was five years old at the time. She did not volunteer the information, but only responded to her older sister’s questioning. When L ques tioned H, L was upset at the defendant for what he had just done to her and had gone outside to confirm whether defendant had touched H. L testified that at that moment she “really didn’t like Ed,” that she “hated” him, and that she thought he was a “dirty creep.” L told H that the defendant had touched L and then L showed H where defendant had touched her. Then L asked H if defendant had touched her. H replied that defendant had touched her but was hesitant to point to the area of the body that defendant had touched. H did so only after she was assured by L that she had done nothing wrong. Given the circumstances surrounding H’s statements to L and the lack of any corroborating evidence in Count II, we find there is a real possibility the jury would have returned a different verdict on Count II if it would have been instructed to consider H’s statements in light of the factors enumerated in the child’s hearsay instruction, PIK Crim. 2d 52.21.
We do not reach the same result on Count III. Although T’s statements to his mother were admitted under 60-460(dd) in support of Count III, defendant’s conviction on this count was also supported by direct testimony from B. In addition, T’s hearsay statements to his mother were also admitted as part of the res gestae of the crime (K.S.A. 1985 Supp. 60-460[d]).
In his final issue, defendant contends the evidence was insufficient to sustain his conviction on any of the three counts. We need address only Counts I and III as they pertain to this issue.
Defendant specifically contends the State presented no evidence of “the intent to arouse or to satisfy the sexual desires of either the child or the offender or both,” an essential element of indecent liberties with a child. K.S.A. 1984 Supp. 21-3503. 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 a charge are sustained. State v. Baker, 239 Kan. 403, 409, 720 P.2d 1112 (1986).
In State v. Gilley, 5 Kan. App. 2d 321, 324, 615 P.2d 827, rev. denied 228 Kan. 807 (1980), also an indecent liberties case, the court noted: “Intent, like any other element of a crime, may be shown by circumstantial evidence.”
The incidents resulting in charges against defendant occurred while defendant was alone with the children after using candy, cookies, or money to lure them into his bedroom or to entice them to comply with his wishes. The evidence also indicated defendant’s touching of these children was intentional and not accidental. The location of the touching has no other logical explanation except that the touching was to satisfy the defendant’s sexual desires. We find this evidence sufficient to establish that the defendant had the requisite intent to commit the crimes charged in Counts I and III.
Defendant’s conviction on Count II is reversed and remanded for new trial. Defendant’s convictions on Counts I and III are affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
Mary F. Brown brought this action against Bentley, Hatfield & Bentley, to recover the sum of $1,071.60. They are lawyers who had been employed by her to attend to several matters and proceedings in which she was interested. While serving in that capacity they received from several sources moneys belonging to her, and for which this action was brought. They admitted the receipt of the money, and that they were accountable for the amounts charged against them; but they set up a claim that she was indebted to them in a much larger sum for the legal services which they had performed for her, and they prayed judgment against her for a balance of $580. She replied that a final settlement had been made, and that she had made payment in full for the legal services charged against her. The cause was tried without a jury, and the court found and stated the facts, and reached the conclusion that the plaintiff below was entitled to recover on her demand the sum of $972.45, for which amount judgment was given.
The complaint of the plaintiffs in error is, that the court disregarded the testimony in the findings which it made. There was a long list of charges for legal services which ran through a period of about two years, upon each of which the court found specially as to the nature and extent of the services rendered, and the value of the same. Several attorneys were called, who testified as experts in regard to the value of the services rendered, and it is now contended that the court erred in placing a lower estimate upon the value of the services than was done by the professional witnesses produced by the plaintiffs in error. The judge or jury trying the question of the value of professional services is not bound to accept as conclusive the opinions of the professional witnesses. In this case there was considerable testimony produced beside the opinions of the experts; and their opinions respecting the value of the services were not at all harmonious. There were before the court the terms of employment, the character of the litigation in which the services were rendered, the manner in which the services were performed, the time occupied, and the benefits resulting to the defendant in error from the services. It was the duty of the court to consider all these matters in determining the value of the services. The court could not abdicate the duty of exercising its own judgment, and blindly accept the judgment of the experts. The opinions of profes sional men who are conversant with the nature and value of legal services, are entitled to great weight, but such opinions are not binding or conclusive. They should be considered in connection with all the other testimony and circumstances of the case; and the court or jury trying the fact must not only weigh the conflicting opinions of the witnesses, but must use and apply its own general knowledge and judgment in the light of the testimony, to determine the value of the services. (Anthony v. Stinson, 4 Kas. 211; Head v. Hargrave, 105 U. S. 45; Rose v. Spies, 44 Mo. 20.) Although the plaintiffs in error were very successful in the litigation and business which they carried on and performed for the defendant in error, we cannot say that the court was unjust in the allowance of compensation, nor that the findings were without support.
But apart from the foregoing consideration, the findings of the court will compel an affirmance of the judgment. In the 28th finding it is stated “that on the 15th day of August, 1884, the plaintiff paid to the defendant, O. H. Bentley, the sum of $250 on account of his services, and that the said payment was understood by both parties at the time to be in full of all services rendered by the defendants, or either of them, to the plaintiff, up to that time.” There is a further finding that after this payment and settlement, the only service rendered by the defendants, or either of them, was in the trial of a certain case for which the compensation was fixed by agreement between the parties, together with some work which was done toward the making of a case for the supreme court, and an allowance was made for both of these items by the trial court. The testimony concerning the settlement is conflicting, but it is sufficient to sustain the finding when it is assailed here. A finding made by the trial court upon conflicting testimony is as conclusive when attacked in this court as is the verdict of a jury; and the findings alluded to practically dispose of all the objections which have been urged by the plaintiffs in error.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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Green, J.:
Tyler Penn appeals from his juiy trial convictions and sentences for four counts of rape and one count of sexual battery. Penn first argues that the trial court erred in excluding evidence of victim N.R.’s dishonesty. We disagree. Because Penn never es tablished a sufficient foundation to introduce opinion testimony and evidence of N.R.’s general reputation for untruthfulness in the community where she lived under K.S.A. 60-446, the trial court properly excluded the evidence at trial. Next, Penn contends that the prosecutor’s questioning of him during cross-examination, which violated the trial court’s order in limine, constituted prosecutorial misconduct. We again disagree. Although the prosecutor’s questioning was a violation of the order in limine, the record demonstrates that the violation did not substantially prejudice Penn.
Next, Penn maintains that the trial court erred in assessing attorney fees against him by failing to consider his financial resources or the burden those fees would impose on him, as required by K.S.A. 22-4513. We agree. Based on State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), we remand the case with directions for the trial court to comply with K.S.A. 22-4513 concerning the assessment of attorney fees. Finally, Penn contends that the trial court erred in using his criminal history to increase his criminal history score. We disagree. Because Penn’s argument is controlled by State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), we are unable to grant him relief on this issue. Accordingly, we affirm Penn’s convictions; we vacate the portion of his sentences assessing attorney fees; and we remand the case to the trial court with directions to comply with Robinson and K.S.A. 22-4513 concerning the assessment of attorney fees.
On the afternoon of April 18, 2006, N.R., a 17-year-old student at North High School, walked into the office of the school counselor, Jan Knabe, just after the lunch period had ended and asked to call her foster mother. N.R. had a speech impediment and hearing probléms and received special education services at North High School. Knabe noticed that N.R. was trembling, that N.R.’s shoulders were shaking, and that N.R. was beginning to cry. When Knabe asked N.R. why she wanted to call her foster mother, N.R. asked if an 18-year-old person could get into trouble for having sex with a 17-year-old girl.
Knabe told her that it depended upon whether both people agreed to it. N.R. stated that she did not agree to it. Knabe then called the school administrator and N.R.’s foster mother, R.H. The police were notified about the alleged rape.
N.R. told Knabe that she thought she was going to hang out with Penn, but he made her have sex with him. N.R. said that Penn had not worn a condom and she was worried that she might become pregnant. Knabe testified that when N.R. was describing the incident, she was wringing her hands and crying and had to stop talking a few times in order to catch her breath. When R.H. got to Knabe’s office, she noticed that N.R. was visibly upset and was sitting in a chair in the fetal position.
N.R’s Police Interview in Knabe’s Office
Officer Stephanie Hosmer was sent to Knabe’s office to investigate the alleged rape. Hosmer testified that upon speaking with N.R., she could tell that N.R. was somewhat mentally challenged. N.R. told Hosmer that she had been in the hallway at school that day when a classmate named Tyler, whom N.R. later identified as Penn, asked her if she wanted to come with him to his “cousin’s” house and “hang out.” N.R. and Penn were in two classes together, graphic arts and United States history. N.R. told Hosmer that she thought she and Penn were going to just watch television and “hang out.” N.R. and Penn walked to a grocery store, where Penn’s “cousin” picked them up and drove them to her apartment. It was later discovered that the girl who picked them up was not Penn’s cousin but was Penn’s close friend, Shineta Horton.
N.R. told Hosmer that as she and Penn were walking up the stairs to the apartment, N.R. hesitated and Penn put one hand on her shoulders and one hand on her waist and guided her up the stairs. After they got inside the apartment, Penn took N.R. upstairs to a loft area. Penn sat down and pulled N.R. down on his lap. Penn then asked N.R. if she liked looking in a mirror. N.R. said that she told Penn yes, but she was unsure of what Penn was talking about. N.R. told Hosmer that there was a mirror resting on the floor of the loft.
N.R. told Hosmer that Penn asked her if she wanted to see his penis. N.R. told Penn no, but Penn unzipped and pulled down his pants. Penn then took N.R.’s hand and put it on his penis. Although Penn tried to keep N.R.’s hand on his penis, N.R. pulled her hand away. When N.R. stood up, Penn grabbed her waist and started to unbutton and unzip her pants. N.R. said that she told Penn, “Please don’t,” but'he pulled down her pants.
N.R. said that Penn told her several times to take off her clothes and shoes. N.R. told Hosmer that she felt like she had no choice but to do what he said. N.R. took off her pants. Penn told N.R. to lay down. Penn then took off N.R.’s underwear and told her that the first time would hurt. Penn tried to put his face between N.R.’s legs, but N.R. told him she did not want to do that and closed her legs. N.R. told Hosmer that Penn kissed and bit both of her breasts. N.R. stated that Penn then “shoved his dick in my crotch.” N.R. told Hosmer that the vaginal intercourse lasted about 15 to 20 minutes, during which Penn kept repeating that it would hurt.
According to Hosmer, N.R. stated that she told Penn, “[Pjlease stop, it’s hurting me.” Penn then told N.R. that they were going to try a new thing. Penn laid on his back, grabbed N.R. by the hands, and told her that he wanted her to “suck his dick.” N.R. told Penn that she did not want to do that. Penn then told N.R. to turn around, and N.R. said that Penn put her on her hands and knees. N.R. said that Penn put his penis in her rectum. After a couple of minutes, Penn had N.R. get on her back again. N.R. stated that Penn again put his penis into her vagina. When N.R. told Penn to stop, he said to let him finish. Penn then pulled away and ejaculated on N.R.’s stomach.
N.R. told Hosmer that Penn leaned over the railing of the loft and called for Horton to throw him up some paper towels. Penn then wiped himself off with the paper towels, got dressed, and went downstairs. Penn came back upstairs with wet paper towels and cleaned her off. Penn told N.R. to put on her clothes. After N.R. got dressed, she and Penn walked downstairs and left the apartment with Horton. Horton drove N.R. and Penn back to the grocery store. When N.R. got out of the car, Penn gave her a hug and told her not to tell anyone about their business. Penn got back in the car with Horton, and N.R. walked back to school. Upon returning to school, N.R. went immediately to Knabe’s office.
When Hosmer asked why N.R. had reported the incident, N.R. stated that she was a good girl and that she did not want to keep any secrets from her foster mother. N.R. told Hosmer that she and Penn were not boyfriend and girlfriend and had never talked about dating. N.R. said that she did not want to go back to school because she was afraid of retaliation. N.R. stated that she was upset because she was supposed to be going to prom and had purchased a prom dress but no longer wanted to go.
Identification of Penn
After describing the incident to Hosmer, N.R. agreed to undergo a sexual assault examination and to show Hosmer where Horton s apartment was located. As they were driving through the parking lot of the apartment complex, N.R. pointed out the vehicle that Horton had been driving. As N.R. was pointing out Horton’s apartment, a black male later identified as Penn came out of the door of the apartment complex. When N.R. saw Penn, she stated, “That’s him, that’s him,” and then ducked down in her seat. Hosmer called back to the officers who were following her through the parking lot and told them that N.R. had identified Penn.
Evidence at Hortons Apartment
Immediately after Penn was arrested, Horton consented to the search of her apartment. Horton told an investigating officer that she had assumed that N.R. was Penn’s girlfriend. Horton said that there had been no public display of affection between N.R. and Penn in her presence, but she assumed that Penn and N.R. had engaged in sexual intercourse while they were upstairs.
Inside Horton’s apartment, crime scene investigators located and collected used paper towels. In addition, the investigators observed a reddish-brown stain on the carpet in the loft area. This stain was located in the area where N.R. had described the incident taking place.
Sexual Assault Exam Evidence
Jennifer Dyck, a sexual assault exam nurse, examined N.R. around 4:15 p.m. on April 18, 2006. As part of her examination, Dyck learned that N.R. was on four different prescribed medica tions, including Zoloft, Ability, Trileptal, and Seroquel. Upon talking with N.R., Dyck noticed that N.R. had slower intellectual functioning skills and a speech impediment. Moreover, Dyck noticed that N.R. spoke in broken sentences. Dyck testified that it was necessary for her to be very concrete and specific with N.R. about what Dyck needed to know.
When Dyck questioned N.R. about her level of pain during the alleged incident, N.R. stated that her pain was at a level 10 (out of 10) when Penn put his penis in her vagina the first time. N.R. said that her pain was at a level 3 during the anal intercourse. N.R. told Dyck that her pain was at a level 8 during the second vaginal intercourse. N.R. further told Dyck that she was experiencing lower abdominal pain during the examination. N.R. rated her pain at the time of the examination at a level 2 or 3.
During the sexual assault examination, Dyck found a partial tear to N.R.’s hymen that was actively bleeding. There was also an abrasion and purple and red bruising to the hymen. In the space between the anus and the female sex organ, Dyck discovered a 2.5 millimeter laceration. Dyck further discovered a jagged-edge tear to N.R.’s cervix. Dyck testified that injuries to the cervix are rare and that a tear would indicate a significant amount of force. According to Dyck, the sexual assault program at the hospital had been in existence since 1994, and they saw about 400 patients each year. Out of all those patients, Dyck estimated that only about 10 had any cervical injury. Dyck testified that N.R.’s injuries were consistent with blunt force trauma.
DNA Evidence
Following N.R.’s sexual assault examination, officers obtained a search warrant to collect bodily fluids from Penn. Presumptive testing on the swabs collected from Penn’s penis, scrotum, and left hand indicated the presence of blood. Testing on the swabs from N.R.’s lower abdomen confirmed the presence of semen. In addition, presumptive testing of the vaginal and anal swabs collected from N.R. indicated the possible presence of blood. A presumptive test on the swabs from N.R.’s breasts indicated the possible presence of saliva. The DNA profile found on the swabs from N.R.’s abdomen was consistent with the DNA profile of Penn. Moreover, the DNA mixed profile found on the penis swabs of Penn was consistent with the combined profiles of N.R. and Penn.
N.R’s Interview on the Evening of the Incident
Detective Lisa Walker interviewed N.R. on the evening of April 18, 2006. According to Walker, when N.R. began to describe the incident at Horton's apartment, N.R. brought her knees up to her chest and rolled herself into a ball. Walker testified that N.R. told her that she felt like she was partly responsible for what had happened. According to Walker, N.R. started blaming herself because she had had uneasy feelings about going with Penn.
Penn went to trial on charges of one count of sexual battery in violation of K.S.A. 21-3517; three counts of rape by force or fear in violation of K.S.A. 2005 Supp. 21-3502(a)(1)(A) with alternative counts of rape when the victim is incapable of giving consent in violation of K.S.A. 2005 Supp. 21-3502(a)(1)(C); one count of rape when the victim is incapable of giving consent in violation of K.S.A. 2005 Supp. 21-3502(a)(1)(C) with no alternative count; and one count of aggravated criminal sodomy by force or fear in violation of K.S.A. 2005 Supp. 21-3506(a)(3)(A) with an alternative count of aggravated criminal sodomy when the victim is incapable of giving consent in violation of K.S.A. 2005 Supp. 21-3506(a)(3)(C).
N.R’s Testimony
Consistent with her earlier statements, N.R. testified that she told Penn several times during the incident that it hurt and to stop. N.R. testified that she never yelled for help during the incident, but that she was hurting and was crying inside. N.R. testified that she did not agree to have sexual intercourse with Penn.
Additional Evidence by the State
R.H., who was N.R.’s foster mother from February 2006 to July 2006, testified that N.R. never told her that she had agreed to any of the sexual activity with Penn. According to R.H., N.R. was lower functioning, had a hard time understanding what people were communicating to her, and had the maturity level of a 13-or 14-year-old child. R.H. testified that N.R. had been on several different medications, one of which was for hallucinations, when N.R. lived with her. According to R.H., N.R. was impressionable and wanted the boys to like her but did not know how to accomplish that.
Penns Testimony
During his testimony at trial, Penn admitted that he and N.R. had engaged in sexual intercourse at Horton’s apartment on April 18, 2006. Nevertheless, Penn testified that the sexual intercourse was consensual and that N.R. had initiated the sexual activity. According to Penn, while they were waiting for Horton to pick them up at the grocery store, he and N.R. were flirting and hugging each other. Penn testified that he asked N.R. if she had ever been intimate with anyone and she responded that she had not. Penn further testified that he asked N.R. if she was curious about doing anything intimate and that N.R. had responded that she was very interested.
According to Penn, after they arrived at Horton’s apartment, he asked N.R. if she wanted to see Horton’s artwork. Penn then walked upstairs, and N.R. followed him. Penn sat on a folding chair, and N.R. came over and sat on his lap. Penn then put his arm around N.R.’s waist, and they started kissing. Penn testified that N.R. put her hand on his jeans in the area of his penis. According to Penn, N.R. got on her knees and he pulled his penis out of his jeans. Penn testified that N.R. then grabbed his penis.
Penn testified that he asked N.R. if she was still interested in having sex with him, and N.R. responded, “Sure.” Penn then asked N.R. whether she was a virgin by lack of opportunity or because she wanted to remain a virgin. According to Penn, N.R. responded that she had never had the opportunity. Penn told N.R. that she had lots of opportunity now and asked what was holding her back. N.R. responded, “Nothing.” According to Penn, he told N.R. that they could not have sex with their clothes on, so N.R. took off her clothes. Penn testified that he then engaged in sexual intercourse with N.R., first on top of her, then underneath her, then behind her, and then on top of her again. Penn testified that he never penetrated N.R.’s rectum.
Penn testified that N.R. never told him to stop and never pulled away from him. Moreover, Penn testified that N.R. never indicated that he was hurting her, Penn testified that when he and Horton dropped off N.R. at school, he and N.R. hugged and tossed. Penn denied telling N.R. to remain quiet about the situation.
After a 3-day trial, the jury found Penn guilty of all the charges, including the alternative counts, except for the charge of aggravated criminal sodomy. The jury acquitted Penn of the charge of aggravated criminal sodomy. Penn was sentenced to a controlling sentence of 166 months in prison.
I. Did the trial court err in excluding evidence of N.R.’s dishonesty?
First, Penn contends that the trial court committed reversible error by preventing him from presenting opinion and reputation testimony of N.R.’s dishonesty, which violated his right to present a complete defense; Under the Kansas and United States Constitutions, a criminal defendant has a right to present the theory of his or her defense. The exclusion of evidence that is an integral part of that theory violates a defendant’s fundamental right to a fair trial. State v. White, 279 Kan. 326, Syl. ¶ 3, 109 P.3d 1199 (2005). Whether a defendant’s constitutional rights have been violated is a question of law over which an appellate court exercises unlimited review. See State v. Chambers, 36 Kan. App. 2d 228, 232, 138 P.3d 405, rev. denied 282 Kan. 792 (2006). Nevertheless, the right to present a defense is subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003).
When reviewing a trial court’s decision to admit evidence, an appellate court first determines whether the evidence is relevant. Once relevance is established, an appellate court applies the evidentiary rules governing the admission and exclusion of evidence as a matter of law or in the exercise of the trial court’s discretion, depending on the contours of the evidentiary rule question. When the issue involves the adequacy of the legal basis for the trial'court’s decision, appellate courts apply a de novo standard. State v. Moore, 39 Kan. App. 2d 568, 583-84, 181 P.3d 1258, rev. denied 286 Kan. 1184 (2008).
K.S.A. 60-420, which governs the admissibility of evidence affecting credibility, states:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
K.S.A 60-422 limits the admissibility of evidence affecting the credibility of a witness. Some of the limitations under K.S.A. 60-422 are:
“As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of Iris or her character, shall be inadmissible.”
In State v. Lewis, 252 Kan. 535, 536-37, 847 P.2d 690 (1993), our Supreme Court explained the limitations imposed by K.S.A. 60-422:
“In substance K.S.A. 60-422(c) disallows proof of general bad or good character and limits character evidence impeaching or supporting a witness’s credibility to the traits of honesty or veracity or their opposites. K.S.A. 60-422(d), on the other hand, limits the manner of proving such character traits as affecting the credibility of a witness by disallowing evidence of specific instances of the witness’s conduct. This limits K.S.A. 60-446, which allows proof of character by opinion testimony and evidence of reputation.
“ ‘Thus, a witness’s credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness’s past conduct. [Citations omitted.]’ ”
As explained in Lewis, K.S.A. 60-446 allows proof of character by opinion testimony and evidence of reputation. In addition, K.S.A. 60-446 allows evidence of specific instances of the person’s conduct, but that is limited by K.S.A. 60-447:
“When a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.” K.S.A. 60-446.
K.S.A. 60-447(a) limits the admissibility of evidence of specific instances of the person’s conduct to those that resulted in a criminal conviction: “[E]vidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible.”
Evidence Pertaining to N.R’s Credibility
After the first trial had commenced in this case, the prosecutor turned over to defense counsel an email she had received from Jennifer Mackey, one of N.R.’s caseworkers from Youthville, concerning N.R. The prosecutor had emailed Mackey for help in ensuring N.R.’s appearance in court. A portion of the response email from Mackey read as follows:
“[N.R.] is one of the greatest manipulators, and has learned that she can he and make up accusations to get her way. It has worked for her every time.
“I don’t mean to sound harsh, but this girl has done so many things to harm other people’s life, and she has no remorse. It is all about [N.R.]
“[N.R.] is not as slow and as needy as she comes across. She plays that a great deal. She knows what she is doing. She is lazy and wants to do what she wants for attention.
“Myself and my colleague ha[ve] had her on our caseloads for over three and-a-half years, so we know this kiddo well.”
The trial court granted a mistrial in order to give defense counsel sufficient time to adequately investigate the new development. The second trial was then held several weeks after the mistrial occurred.
Several days before the second trial, the trial court held a nonevidentiary hearing to determine the admissibility of testimony from Mackey and Amanda Pope, another one of N.R.’s Youthville caseworkers, to discuss the contents of the email. Penn argued that the email fell under opinion testimony and evidence of reputation. Determining that the email was inadmissible, the trial judge stated:
“I’m not going to allow it. Here’s why. Because the employees at Youthville are basing their comments on what other people have said to them.
“Believe me, having been a foster parent for many years, I know that very little of the firsthand information, very much of the information that these people get is not firsthand.
“I will certainly consider testimony that these people may have based on their own personal observation. But conclusions based on hearsay . . . are definitely not admissible.”
In responding to the trial court’s ruling, Penn told the trial court that Mackey and Pope would be testifying only about their personal interactions with N.R.:
“[Defense counsel:] And what we’re offering is, they wouldn’t be testifying as to any hearsay, they would be talking about their own personal interactions over that three and-a-half year time period with the alleged victim in this case.
“And we would ask for an opportunity to proffer that.”
Noting that the proffer based on Mackey’s and Pope’s personal information would be allowed, the trial judge stated:
“I’ll let him make the proffer, absolutely, but the proffer has to be made based on their own personal information, not on — this is just, it’s a game of telephone where, you know, the stories get repeated over and over, and they lose their link to reality, I think, the more it gets repeated.
“So, if you want to proffer their testimony at the time of trial, then, yes, I will definitely allow that.”
On February 27, 2007, the first day of the second trial, the trial court held a proffer hearing outside the presence of the jury. At the hearing, Mackey testified that she had been at Youthville since November 2005. Nevertheless, it was not until June 2006 that N.R. became a part of Mackey’s caseload. Mackey testified that she was N.R.’s caseworker from June 2006 to January 2007. While she was N.R.’s caseworker, Mackey met with N.R. at least once a month and also spoke with N.R. by telephone at least six times each month.
Mackey testified about an incident in June or July 2006 where N.R. had made an accusation that her foster mother, R.H., had physically abused her and N.R. had run away from her foster home. According to Mackey, N.R. later told police and Mackey that she had made up the accusation because she wanted to get out of that foster home and live where there were horses.
Mackey testified that N.R. had made statements to her that she knew how to get what she wanted. Mackey further testified that other foster parents had reported that N.R. had bragged about being able to manipulate and he to get her way. The State presented a July 2006 log from one of N.R.’s foster parents, which read in part: “[N.R.] bragged to the other girls she knows how to manipulate people. She told numerous lies to eveiyone in our home and everyone was very upset with her. A few of us confronted her and told her how wrong she was.”
Mackey further testified that in December 2006, N.R. had made an accusation that the 33-year-old boyfriend of her foster mother had tried to touch her. According to Mackey, N.R. later decided that she was not upset about the incident. Nevertheless, Mackey admitted that she had never personally discussed this incident with N.R. Mackey also stated that N.R. had been assigned a new life skills worker who was male, but that “it was staffed that we needed to move him off of it because we were scared of accusations being made against him.” Mackey testified that N.R. was then moved to a female life skills worker.
Mackey further testified that N.R. comes across as being slow, but that N.R. was not mentally impaired. Nevertheless, on cross-examination, Mackey admitted that a psychological evaluation in N.R.’s case file showed that N.R.’s IQ was in the below average range and indicated mild mental retardation.
Mackey testified that her opinion was that N.R. made false accusations on several occasions. Nevertheless, on cross-examination, Mackey conceded that her opinion was not that N.R. was generally untruthful:
“[Prosecutor:] When asked about your opinion to her truthfulness, your answer was: She makes false accusations on several occasions. Not that she is generally untruthful, isn’t that correct?
“[Mackey:] I guess.”
Mackey admitted that she could identify only two specific occasions where N.R. had been untruthful and that both were after April 18, 2006. One of those occasions was when N.R. had run away from her foster home, and the other was from the July 2006 log from one of N.R.’s foster parents. Further, Mackey acknowledged that she was not a part of the community in which N.R. lived.
Pope testified that she had been N.R.’s caseworker from July 2005 to June 2006. According to Pope, she had not worked with Mackey on N.R.’s case. According to Pope, she had had a great opinion of N.R. up until she had a telephone conversation with N.R.’s foster mother, R.H., in May 2006. Pope testified that R.H. had told her that N.R. was going to say that a boy N.R. went to prom with had raped her. R.H. told Pope, however, that N.R. changed her mind a couple of days later and said that she did not think the boy raped her. Pope testified that she had asked R.H. whether she thought N.R. was telling the truth and R.H. had responded that she did not know at that point.
R.H., who had been N.R.’s foster mother from February 2006 to July 21, 2006, testified that N.R. had never made any allegations towards her while N.R. lived with her.
At the conclusion of the proffer hearing, the trial court determined that the evidence was inadmissible at trial. The trial court noted that the two incidents referred to by Mackey had occurred after the alleged rape in this case and were very vague as to whether they constituted incidents of untruthfulness. The trial court further noted that it was unclear whether the incident concerning the potential rape at prom was an incident of lying as the social worker had not even talked to N.R. about it. The trial court determined that the testimony was vague and speculative, that it did not constitute reputation evidence, and that it was based on specific instances. Moreover, the trial court determined that the testimony was not reputation evidence from within the community.
Reputation Evidence and Opinion Testimony
Penn contends that the trial court erred in not allowing him to present evidence of rumors, which constituted reputation evidence, at the hearing. Penn maintains that by limiting him “to presenting witnesses’ testimony of N.R.’s veracity to simply their own personal information about her, and not rumors that the case workers had heard, the court improperly excluded evidence of N.R.’s reputation.” (Emphasis added.)
To support his argument, Penn cites State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1971). Hinton, however, has no application to the instant case as it involved cross-examination of character witnesses. In Hinton, our Supreme Court held:
“When the defendant in a criminal action produces witnesses who testify as to his good reputation for the relevant facet of character, they may be cross-examined as to whether they have heard rumors in the community or neighborhood as to particular acts, conduct or charges prior to die offense presendy asserted by the state which tend to negative such reputation.” 206 Kan. 500, Syl. ¶ 1.
Thus, in a criminal action, the State is allowed to cross-examine the defendant’s character witnesses about whether they have heard rumors in the community as to acts committed by the defendant before the charged offense. Our Supreme Court in Hinton made clear that this type of cross-examination about rumor evidence is not to establish the truth of such acts, but merely to test the credibility of the character witnesses. 206 Kan. 500, Syl. ¶ 2. Because they have testified to someone’s reputation for truth and veracity, it is relevant to test their knowledge of that reputation.
The theory in Hinton was that “if he [the character witness] has heard such disparaging rumors his standards as to what constitutes good repute may not be sound, or he lacks good faith, or if he has not heard the rumors, which did in fact circulate, then he is not actually familiar with the defendant’s reputation.” 206 Kan. at 506. Penn cites no cases where the rule in Hinton has been extended to allow the presentation of rumor evidence to prove a trait of the complaining witness’ character.
Distinguishing the rule under K.S.A. 60-422(d) prohibiting evidence of specific instances of conduct from the admissibility of rumor evidence when cross-examining a character witness, 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Evidence § 3.2, p. 75 (5th ed. 2007), explains:
“The rule prohibiting instances of conduct to attack credibility is not applicable where tire witness on direct examination placed in evidence [t]he trait for veracity of another, generally the defendant in a criminal case. The character witness may be cross-examined about instances of conduct of the principal witness probative of untruthfulness. The witness may be asked about familiarity with convictions, arrests, indictments, rumors or reports relating to the issue of untruthfulness. The purpose is not to establish the truth of the facts inquired about, but rather to show the existence of such acts as they may bear upon the credibility of the witness and the accuracy of his testimony regarding community opinion; thus, a character witness may be asked about rumors or whether he has heard that the defendant has been arrested for a crime whether or not it culminated in a conviction. State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1971).”
Because the instant case did not involve the cross-examination of a character witness, the rule in Hinton has no application.
Moreover, even if the instant case involved cross-examination of a character witness as in Hinton, the rumors that Mackey and Pope had heard from other caseworkers and foster parents would not have been admissible based on the foundation requirements set forth in Hinton. Although Penn maintains that the trial court did not allow him to present rumor evidence at the proffer hearing, the record establishes otherwise. Both Mackey and Pope testified about specific instances of N.R.’s conduct about which they had no direct knowledge but had heard from other caseworkers and foster parents. Nevertheless, the record indicates that the specific instances occurred after April 18, 2006, the date that the alleged crimes occurred in this case. Under Hinton, the instances must have occurred before the alleged crimes: The witnesses may be cross-examined “as to whether they have heard rumors in the community or neighborhood as to particular acts, conduct or charges prior to the offense presently asserted by the state . . . .” (Emphasis added.) 206 Kan. 500, Syl. ¶ 1. Moreover, the examination must be conducted in the proper form, that is, “Have you heard,” not “Do you know.” 206 Kan. 500, Syl. ¶ 6.
Further, Hinton requires that when a character witness is cross-examined about rumor evidence, there must be no question as to the fact of the subject matter of the rumor, that is, of the previous pertinent misconduct. 206 Kan. 500, Syl. ¶¶ 5, 6. The cross-examining attorney must also have a very high degree of good faith. 206 Kan. at 507. In this case, however, Penn failed to establish that there was no question as to the fact of the subject matter of the rumors that Mackey and Pope had heard. Mackey and Pope admitted that they had never talked with N.R. about most of the alleged instances of misconduct. There was nothing offered to substantiate the rumors. Penn presented no other evidence to prove that N.R. had made false allegations before the alleged crimes occurred in this case. Even under Hinton, Penn failed to establish a sufficient foundation for the admissibility of rumor evidence.
Nevertheless, different from Hinton, Penn argued that he should be able to offer opinion and reputation evidence of N.R.’s character trait of untruthfulness. In order for Penn to offer evidence to show N.R.’s reputation in the community, he needed to set an adequate foundation to show that the evidence was admissible. When a trait of a person’s character at a specified time is material, evidence of the person’s reputation in the community in which the person lives or in a group with which the person habitually associates is admissible to prove the truth of the person’s reputation. K.S.A. 60-460(z). 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Evidence § 3.2, p. 77, sets forth the foundation proof that must be established in order to present reputation evidence under K.S.A. 60-446:
“1. The impeaching witness is a member of the same community of the witness to be impeached and has been a resident thereof for a substantial period of time.
“2. He is aware of the general reputation of the witness for the specific character trait.
“3. He knows that the witness has a reputation for (dishonesty) in the community.”
Penn also needed to establish a similar foundation in order for opinion testimony of N.R.’s untruthfulness to be admissible. Specifically, 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Evidence § 3.2, p. 77, sets forth the foundation that must be established in order to present opinion testimony:
“1. The impeaching witness is acquainted with the witness and has known him for a period of time.
“2. He knows the witness well enough to have formed an opinion of the specific character trait of the witness for veracity.
“3. He has an opinion on this trait.
“4. He is of the opinion that the witness lacks veracity — that he would not believe the witness even under oath.”
Here, Penn never established a proper foundation for the admission of opinion and reputation evidence from Mackey and Pope. Neither Mackey nor Pope were members of the community in which N.R. lived. Their contacts with N.R. were limited and constituted meeting with N.R. once a month and conversing with her by telephone at other times during the month. Moreover, they had only been N.R.’s caseworkers for a short period of time. Pope had been N.R.’s social worker for approximately 11 months. Mackey had been N.R.’s social worker for only 7 months, and this was after the alleged rape had occurred.
Penn attempts to compare this case to Lewis, 252 Kan. 535. In Lends, our Supreme Court held that the trial court erred in refusing to permit four defense witnesses to testify as to the reputation of the complaining witness as to veracity. All of the witnesses were acquaintances of the complaining witness, and one of the witnesses was the former boyfriend of the complaining witness. All of the witnesses would have testified that the complaining witness had a reputation for being a liar. The trial judge’s ruling indicated that he excluded their testimony in part because of his disapproval of the lifestyles and socio-economic status of the witnesses, as expressed in their testimony. Nevertheless, our Supreme Court held that the witnesses’ expressions should go to the weight of the testimony and had no bearing on the admissibility of the testimony. Moreover, our Supreme Court determined that the trial court erroneously applied the rape shield statute to exclude the witnesses’ testimony. 252 Kan. at 537-39.
This case differs from Lewis in that the witnesses in Lewis were acquaintances, one even a former boyfriend of the complaining witness, who could offer testimony as to the complaining witness’ general reputation for truthfulness. In this case, however, the social workers were not personally acquainted with N.R. in the community in which she lived and their contacts with her were limited to their role as caseworkers. As a result, Penn was unable to meet the foundation requirements for Mackey and Pope to express an opinion about N.R.’s general reputation in the community in which she lived for untruthfulness. Mackey’s and Pope’s proffered testimony showed that they had insufficient knowledge on which to base any opinions as to whether N.R. was generally an untruthful person.
Moreover, Penn failed to establish that either Mackey’s or Pope’s opinion was that N.R. was generally an untruthful person. Mackey admitted that her opinion was not that N.R. was generally untruthful. In addition, Pope admitted that her opinion of N.R. was great before the alleged crimes occurred and that her opinion changed only after learning of an incident in May 2006.
Arguably, general reputation evidence and opinion testimony could have been introduced through N.R.’s foster parents, as they were the ones who had daily contact with N.R. and had habitually associated with her. Moreover, most of Mackey’s and Pope’s testimony was based on what they had heard from the foster parents. As a result, the foster parents might have been the more appropriate witnesses for this type of evidence. Nevertheless, Penn offered testimony from only one of N.R.’s foster parents during the proffer hearing. That foster parent testified that N.R. had never made any allegations, false or otherwise, towards her while N.R. lived with her. Further, that foster parent failed to offer any opinion testimony or evidence as to N.R.’s reputation in the community in which she lived.
Throughout his appellate brief on this issue, Penn points to specific instances of N.R.’s misconduct. During the proffer hearing, Penn elicited testimony from both Mackey and Pope about specific instances of N.R.’s untruthfulness that had been reported by other social workers and N.R.’s foster parents. By highlighting the evidence of specific instances of conduct, Penn attempted to attack N.R.’s credibility through rumors and innuendos. This evidence of specific instances of conduct is inadmissible under K.S.A. 60-422(d). See State v. Smallwood, 223 Kan. 320, 327, 574 P.2d 1361 (1978) (two episodes concerning witness’ testimony at preliminary hearing where witness had admitted to not telling the truth were specific instances of his conduct and were excluded by K.S.A. 60-422[d]). Moreover, the evidence was inadmissible under K.S.A. 60-447(a) because Penn never showed that the alleged misconduct resulted in a conviction. Specific instances that do not result in conviction may not be affirmatively proved. See State v. Woods, 222 Kan. 179, 187, 563 P.2d 1061 (1977); see also State v. Deavers, 252 Kan. 149, 156-57, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993) (Prior instances of excessive force by officer were inadmissible to prove character.).
At oral argument, the State pointed out that if this type of rumor evidence was admitted at trial, the trial would improperly turn into a series of “mini-trials” in order to establish whether the rumors were credible. As 4 Card and Casad, Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-422, pp. 512-13 (4th ed. 2003), explains:
“The reason for the restriction [of specific instances of conduct under K.S.A. 60-422(d)] is that where character is only incidentally involved, it would not be expedient to let the trial go off on collateral tangents, which could result from trying out the factual issues involved in the proof of specific instances of conduct. A Kansas case in point in Tersina v. Liverpool & London & Globe Ins. Co., 102 Kan. 87, 169 Pac. 559 (1917), where witnesses were called to show that the plaintiff was guilty of prohibitory law violations ‘and the real issues of the case were for a time lost sight of and the plaintiff was tried for a public offense.’ ”
Here, if Penn were allowed to introduce at trial the rumors that had been heard by Mackey and Pope, the State would need to ascertain whether those specific rumors were valid. A series of mini-trials would result in which the credibiliiy of each specific rumor would be examined. This is exactly why the rule under K.S.A. 60-422(d) was designed to prohibit the introduction of specific instances of conduct into evidence.
The instant case is similar to State v. Evans, 90 Kan. 795, Syl. ¶ 1, 136 Pac. 270 (1913), where our Supreme Court held that a witness was not competent to state what the complaining witness’ general reputation for truthfulness was. The witness was Reverend Barnhart, who worked for a church society organized for the purpose of finding homes for children. Barnhart had been given charge of the complaining witness by the probate court soon after the complaint in the case had been filed. Barnhart placed the complaining witness at a home in Douglas County and then at a hotel in Lawrence until the state board of control took charge of her. The complaining witness was then placed in two homes in Lawrence and was later given to the charge of the Children’s Home Society of Topeka. Barnhart was asked if he knew the complaining witness’ general reputation in Lawrence for truth and veracity. Barnhart answered that he knew only from the families with whom he had placed her and that he had no knowledge of her general reputation among the neighbors of the people with whom she lived. Based on his response, the trial court did not allow Barnhart to testify at trial about the witness’ general reputation for truthfulness.
On appeal, our Supreme Court noted that the excluded testimony, which sought to impeach the veracity of the complaining witness, was of considerable importance to the defendant because the testimony of the only corroborating witness at trial was somewhat weak and contradictory. Nevertheless, our Supreme Court held that there was no error in excluding the evidence: “The rule has always been that the inquiry must relate to the general character and not to specific acts, and can be shown only by general reputation in the community where the person lives. [Citation omitted.]” 90 Kan. at 797.
The testifying witness in Evans was acting in a similar capacity as the social workers in this case: managing the care of the complaining witness. Here, as in Evans, the social workers’ testimony was not based on their personal observations of N.R. in the community where she lived. Similar to the excluded testimony in Evans, the majority of the social workers’ testimony was based on information they had heard from the families with whom they had placed N.R. Such evidence was inadmissible and, as demonstrated by Evans, could not form the basis of the social workers’ testimony regarding their opinions of N.R.’s general reputation for untruthfulness in the community in which she lived.
3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Evidence § 3.2, pp. 77-78, offers the following illustration concerning the presentation of opinion and reputation evidence as to a witness’ character trait for veracity:
“Q. Are you acquainted with Mr. Brown?
“A. Yes.
“Q. How long have you known him?
“A. Oh, about 20 years. We live in the same neighborhood..
“Q. Do you know whether Mr. Brown has a general reputation in the community for truthfulness or untruthfulness?
“A. Yes, I do.
“Q. Can you tell us what that reputation is?
“A. It’s bad. He is known generally as an untruthful person.
“Q. Now, have you had personal experiences with Mr. Brown?
“A. I sure have. We work together at the factoiy.
“Q. And from your contacts with him have you formed an opinion as to his character trait for truthfulness or untruthfulness?
“A. Yes.
“Q. Can you tell us what your opinion is?
“A. He’s an untruthful person.
“Q. Now, can you tell us any specific instances of his untruthfulness?
“A. Yes, I sure can.
“Objection is made to the last question and answer on the basis of improper manner of showing character trait. The objection should be sustained.”
Explaining why the last question of the above illustration was improper, 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Evidence § 3.2, p. 78, states:
“When character trait is a disputed issue three kinds of evidence may be presented — evidence of reputation, opinion evidence and evidence of specific instances of conduct. The latter is not admissible if the character trait tends to prove a bad trait unless it was a conviction of a crime. [See K.S.A. 60-446 and K.S.A. 60-447(a).] Thus only the first two methods of reputation and opinion are proper. State v. White, 1 Kan. App. 2d 452, 571 P.2d 6 (1977).”
As the illustration shows, Mackey’s and Pope’s testimony referring to specific instances of N.R.’s conduct was inadmissible at trial. Penn’s proffer of evidence relating to N.R.’s allegations against R.H., against her foster mother’s boyfriend, and against .N.R.’s prom date; relating to reports from foster parents that N.R. would he and manipulate people; and relating to the action of reassigning N.R. to a female life skills worker were all specific instances of conduct that could not be admitted at trial to establish N.R.’s character traits for honesty and veracity under K.S.A. 60-422(d). See State v. Aldrich, 232 Kan 783, 783-84, 658 P.2d 1027, cert. denied 464 U.S. 819 (1983) (holding that evidence that prosecution witness had once sworn to false affidavit in order to receive welfare benefits for her children was inadmissible as specific instance of conduct under K.S.A. 60-422[d]).
The only evidence that would have been admissible in this case, if a proper foundation had been established, would have been testimony about N.R.’s general reputation in the community in which she lives and opinion evidence as to N.R.’s character trait for truthfulness or untruthfulness. Nevertheless, as discussed previously, Penn never established a sufficient foundation to show that Mackey and Pope were qualified to offer general reputation or opinion testimony about N.R.’s untruthfulness. Based on the facts pre sented to the trial court, the testimony of Mackey and Pope did not constitute opinion and reputation evidence that was admissible under K.S.A. 60-446. Accordingly, the trial court properly excluded their testimony at trial.
II. Was there prosecutorial misconduct?
Next, Penn contends that the prosecutor s questioning of Penn during cross-examination about Penn’s postarrest statements, which violated an order in limine, constituted prosecutorial misconduct. The record demonstrates that Penn failed to object at trial to the alleged prosecutorial misconduct. Nevertheless, a contemporaneous objection to alleged prosecutorial misconduct is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
In State v. Gleason, 277 Kan. 624, 640, 88 P.3d 218 (2004), our Supreme Court set forth the general standard of review regarding purported violations of orders in limine:
“ “While it is true that an order in limine excludes evidence that, if admitted, would tend to prejudice the jury, it is not true that a violation of the order always results in prejudice that cannot be cured. We employ a two-part test to evaluate alleged violations of a motion in limine: (1) Was there a violation of the order in limine and (2) if the order in hmine is violated, did the testimony substantially prejudice tire defendant? The burden is on the defendant to show substantial prejudice.’ [Citations omitted.]”
Thus, the first step is to determine whether there was a violation of the order in limine. In the middle of trial, the trial court held a Jackson v. Denno hearing to determine whether statements made by Penn after his arrest were admissible. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). The arresting officer testified that after he took Penn into custody and told him that he was under arrest for assault, Penn asked, “What is an assault?” and then “Is that Klee hitting someone?” The trial court ruled that Penn’s questions were inadmissible at trial.
Nevertheless, during the prosecutor’s cross-examination of Penn, she elicited testimony that Penn had asked those questions. Specifically, the following colloquy took place during Penn s cross-examination:
“[Prosecutor:] It’s true that you knew that you were being arrested for some type of assault; isn’t that correct?
“[Penn:] Not when I was getting arrested, ma’am.
“[Prosecutor:] Isn’t it true, Mr. Penn, that after the officer put handcuffs on you, and he placed you in his police car, you asked him, What’s an assault, isn’t that like hitting someone.
“[Penn:] Yes, that was after he had told me I was a suspect in an assault case.
“[Prosecutor:] So you just had sex with this girl who has never had sex before off campus, and your question is, Isn’t that like hitting someone?
“[Penn:] After he asked me, after he told me I was a suspect in an assault case. I was nervous.
“[Prosecutor:] They think you’ve assaulted someone when you’ve really raped someone.
“[Penn:] No, ma’am. No, ma’m [sic].
“[Prosecutor:] You were thinking, this is going to go well for me?
“[Penn:] No, ma’am. No, ma’am.” (Emphasis added.)
In this portion of the prosecutor’s cross-examination of Penn, the prosecutor violated the trial court’s order in limine by eliciting testimony about Penn’s questions to the officers after he was arrested.
The State maintains that the prosecutor’s questions were proper because Penn had opened the door to this type of questioning by his testimony on direct examination. It is well established that “when a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere. [Citations omitted.]” State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995).
In arguing that Penn opened the door to the admission of the evidence in question, the State points to Penn’s testimony on direct examination about the circumstances of his arrest:
“[Penn:] We were walking out the complex, and we were going to her car. And I seen a lot of police cars around. They were looking for something or somebody, or something. That’s what I’m thinking.
“I was thinking, Who did something? And a police car passed me, and stopped and reversed real fast, and two police officers jumped out.
“One police officer hopped out — that one (indicating). And one came immediately behind it.
“[Defense counsel:] What was your reaction when they approached you?
“[Penn:] Soon as they got out of the car, they asked me, [W]as I Tyler. And I said, Yes.
“And they pulled the taser out. And it was — I heard you defecate yourself if you get tased. I was — I didn’t know what was going on. I just put my hands straight up and I froze.
“They handcuffed me and put me in the back of the car.”
The State maintains that in light of Penn’s self-serving testimony about his arrest, the prosecutor was justified in questioning Penn’s assertion that he was completely caught off-guard when he was arrested. Nevertheless, Penn’s testimony about his arrest related to his thoughts and actions leading up to his arrest. Although defense counsel attempted to ask Penn what his reaction was when he found out why he was being arrested, the prosecutor objected to the question as irrelevant. Because the prosecutor’s objection was sustained, Penn never answered the question. Penn never testified about his thoughts or actions after the officers told him the reason for his arrest. As a result, Penn did not open the door to the prosecutor’s cross-examination questions, and the trial court’s order in limine was violated.
The next step is to determine whether the testimony substantially prejudiced Penn. Our Supreme Court in Gleason stated that when a violation of an order in limine is based upon a defendant’s allegation of prosecutorial misconduct, the analysis includes the following additional factors:
“ ‘In order for prosecutorial misconduct to constitute reversible error, the error must be of such magnitude as to deny a defendant his constitutional right to a fair trial. [Citation omitted.] Three factors should be considered in determining whether to grant a new trial because of a prosecutor’s violation of an order in limine. First, was the prosecutor’s misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, does the admission of the statement indicate ill will by the prosecutor? Third, is the evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor’s violation of the order in hmine changed the result of the trial?’ [Citations omitted.]” 277 Kan. at 641.
The three factors outlined above are consistent with the factors that an appellate court considers when deciding other allegations of prosecutorial misconduct. See Albright, 283 Kan. at 428. Since Gleason, however, our Supreme Court decided State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), where it added another layer to the analysis of whether the misconduct prejudiced the defendant. In Tosh, our Supreme Court held that before the third factor (overwhelming evidence) can ever override the first two factors, an appellate court must be able to say that the harmless error tests of both K.S.A. 60-261 (refusal to grant new trial is inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial), have been met. 278 Kan. 83, Syl. ¶ 2.
As to the first factor, gross and flagrant misconduct, we note that the testimony elicited by the prosecutor was a direct violation of the trial court’s order in limine. Although the State argues that Penn had opened the door to this type of testimony, the prosecutor never sought a ruling by the trial court on this issue before she elicited the testimony from Penn. Moreover, as discussed previously, a review of the transcript demonstrates that Penn did not open the door to.this inadmissible evidence. Further, once the prosecutor got Penn to admit that he asked, “What’s an assault, isn’t that like hitting someone[?]”; the prosecutor then tried to elicit further testimony from Penn that he had thought he was getting off easy for the incident with N.R. As a result, it appears that the prosecutor’s misconduct in cross-examining Penn on the questions he asked after his arrest was gross and flagrant.
As to the second factor, prosecutorial ill will, we note that the prosecutor’s questioning of Penn about his reaction to the reason for his arrest was very brief during the 3-day trial. The testimony occupied only 1 page of a transcript spanning over 450 pages. Moreover, the prosecutor did not elicit testimony from the arresting officers about Penn’s questions, and she did not refer to Penn’s testimony concerning the questions in her closing arguments. As a result, the record fails to show that there was prosecutorial ill will.
As for the third factor, whether there was little, if any, likelihood that the violation of the order in limine changed the result of the trial, we observe that the evidence against Penn was overwhelming. The evidence was undisputed that Penn had engaged in sexual intercourse with N.R. N.R. had consistently described Penn as using forceful actions against her during the incident in question. She had consistently described the pain that she had experienced during the sexual acts. The sexual assault examination corroborated her testimony about the events and showed significant physical injury to her, including blunt force trauma to her vagina, hymen, and cervix. Under the facts of the case, we conclude beyond a reasonable doubt that the prosecutor s violation of the order in limine had little, if any, likelihood of having changed the result of the trial. In addition, based on our review of the entire transcript of this case, the refusal to grant Penn a new trial was not inconsistent with substantial justice. As a result, we are unable to grant relief to Penn on his prosecutorial misconduct claim.
III. Did the trial court err in assessing attorney fees P
Next, Penn- contends that the trial court erred in assessing attorney fees against him by failing to take into account his financial resources or the burden those fees would impose on him. The State concedes that this case needs to be remanded for further proceedings under State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). In Robinson, our Supreme Court held: “A sentencing court .assessing fees to reimburse the Board of Indigents’ Defense Services under K.S.A. 2005 Supp. 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” 281 Kan. 538, Syl. ¶ 1. Here, the appellate record fails to demonstrate that the procedure outlined in Robinson was followed. As a result, under Robinson, this case should be remanded with directions for the trial court to comply with K.S.A. 22-4513 concerning the assessment of attorney fees.
IV. Did the trial court err in using Penn’s criminal history to increase his criminal history score P
Finally, Penn argues that the trial court erred in using his criminal history, which was not proved to a jury beyond a reasonable doubt, to increase his sentence. Penn concedes that this issue is controlled by our Supreme Court’s decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). Because our Supreme Court has consistently followed its position in Ivory, we are unable to grant relief to Penn on this issue. See State v. Brinklow, 288 Kan. 39, Syl. ¶ 10, 200 P.3d 1225 (2009).
Accordingly, we affirm Penn’s convictions, vacate the portion of his sentences assessing attorney fees, and remand the case to the trial court with directions to comply with Robinson and K.S.A. 22-4513 concerning the assessment of attorney fees. | [
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Buser, J.:
This case returns to our court upon remand from the Supreme Court. See State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008). After consideration of the remanded questions, we again reverse Leonard Pollmaris conviction of driving under the influence of alcohol (DUI) and vacate his sentence.
Factual and Procedural Background
Leonard Pollman was convicted of DUI in violation of K.S.A. 2005 Supp. 8-1567(a)(2). On appeal, Pollman contended the district court erred in overruling his motion to suppress evidence obtained by Officer Michael Walline because the officer did not have reasonable suspicion to detain him or probable cause to arrest him for DUI. Pollman also contended that K.S.A. 2005 Supp. 8-1567(a)(2) was unconstitutionally overbroad and void for vagueness.
In State v. Pollman, No. 93,947, unpublished opinion filed April 27, 2007, we reversed tire conviction, stating: “Our review of the evidence in the present case convinces us that at the time Walline commenced his investigative detention of Pollman the totality of circumstances would not have provided an objective law enforcement officer with a reasonable suspicion that Pollman had committed a DUI.” Slip op. at 11. Given our ruling we declined to address the additional issues raised by Pollman on appeal. Slip op. at 12.
The Supreme Court granted the State’s petition for review and reversed our decision holding:
“[W]e conclude die totality of the circumstances — including criminal obstruction of official duty, admission to drinking, and smell of alcohol — provided reasonable suspicion sufficient to justify an investigation into whether Pollman, who was observed driving, was operating his motorcycle while under the influence of alcohol. In other words, there existed a minimum level of objective justification sufficient for the investigative detention of Pollman.” 286 Kan. at 897.
Given its decision, the Supreme Court remanded the case to our court to “address the questions of whether K.S.A. 2005 Supp. 8-1567(a)(2) is unconstitutionally overbroad and void for vagueness and whether the arrest was supported by probable cause.” 286 Kan. at 897.
Because the determination of whether probable cause existed to arrest Pollman for DUI turns on the totality of circumstances known to Officer Walline at the time of the arrest, we reprise the Supreme Court’s recitation of the facts:
“On the evening of June 26, 2004, Leonard Pollman (Pollman) and his wife Vida Pollman (Vida) were traveling together in McPherson, Kansas, each driving a motorcycle. Officer Michael Walline observed the couple for about 10 blocks. During that time, the only traffic violation the officer saw was Vida’s failure to use a turn signal on her motorcycle. As a result, Officer Walline stopped Vida. Pollman also pulled over. Although Walline informed Pollman that he was not being stopped and needed to ‘move along,’ Pollman lingered. At one point, Walline told Pollman that if he wanted to stay in the area, he should take his motorcycle to a nearby parking lot. Instead, Pollman stood next to his motorcycle after parking it about one car length ahead of Vida’s.
‘While asking Vida for her identification during the traffic stop, Officer Walline smelled an odor of alcohol on her breath, which prompted him to conduct a DUI investigation on Vida. A reserve officer was present with Officer Walline, and because Walline did not want Pollman to obstruct his wife’s traffic stop, Walline asked the reserve officer to have Pollman step away. After Pollman refused to leave the vicinity of the traffic stop, Officer Walline called for back-up assistance. Walline’s superior, Captain Allcock, arrived and stood with Pollman.
“According to Allcock’s testimony at the suppression hearing, he smelled alcohol on Pollman’s breath. When asked, Pollman admitted to Allcock that he had been drinking. Allcock did not know how much alcohol Pollman had consumed or how long ago the drinking had occurred, but he observed Pollman to be coherent and cooperative. Other tiran the odor of alcohol, Allcock saw no other typical indicators signaling that Pollman had been drinking.
“Meanwhile, Officer Walline was conducting Vida’s traffic stop. Although he smelled an odor of alcohol on Vida’s breath, Walline ultimately determined that she did not qualify for a DUI arrest. After issuing a warning about the traffic infraction, Walfine told Vida she was free to go.
“After that, Officer Walfine walked with Vida to her motorcycle and made contact with Pollman, who was still standing with Captain Allcock. According to Walfine’s suppression hearing testimony, he spoke to Pollman because ‘I had already talked to him about getting away from my traffic stop and I wanted to speak with him about obstruction and future charges if he were ever in that situation again.’
“Officer Walfine asked Pollman for his driver’s license, and Pollman handed it over. Walfine was planning to talk to Pollman about his behavior as it related to his wife’s traffic stop when Captain Allcock told Walfine something like, ‘He’s been drinking, you need to check him.’ Then Allcock had to leave the scené on other police business. When Walfine asked Pollman if he had consumed any alcohol, Pollman replied that he had consumed ‘a few’ beers.
“Officer Walfine asked Pollman to get in the patrol car. At that point, for the first time, Walfine smelled an odor of alcohol on Pollman’s breath. After that, Walfine administered a preliminary breath test (PBT) which registered a breath alcohol concentration of .11. Walfine also conducted field sobriety tests, including the walk-and-tum test and the one-legged-stand test. He was dissatisfied with Pollman’s performance on both of these tests. Walfine arrested Pollman, gave him a copy of the implied consent advisory form, and read it to him. In addition, Pollman consented to a blood test which revealed a blood alcohol concentration (BAC) of .10.” 286 Kan. at 882-84.
Probable Cause to Arrest Pollman for DUI
Pollman contends the district court erred in overruling his motion to suppress evidence because Officer Walline did not have probable cause to arrest him for DUI. In particular, Pollman argues the State failed to establish a sufficient foundation for admission of the preliminary breath test (PBT) result which comprised part of the totality of circumstances estabhshing probable cause to arrest Pollman for DUI.
On review of a district court’s suppression of evidence, this court considers whether the factual findings are supported by substantial competent evidence. The ultimate legal conclusion, however, is reviewed de novo. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). The State bears the burden of proof on a suppression issue; it must prove the lawfulness of the search and seizure to the court. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). This court will not reweigh evidence, determine witnesses’ credibility, or resolve conflicts in evidence. Ackward, 281 Kan. at 8. Finally, the admission or exclusion of evidence, subject to exclusionary rules, is within the district court’s discretion. State v. Bishop, 264 Kan. 717, 725, 957 P.2d 369 (1998).
At the hearing on Pollman’s motion to suppress evidence, the State presented the testimony of Walline and Allcock regarding their encounter with Pollman prior to his arrest. In addition to this testimony, the State sought to offer the incriminating evidence of the .11 test result from the PBT administered by Walline to Poll-man.
Pollman’s counsel contemporaneously objected to admission of the PBT result:
“I’m going to object, Your Honor, based upon foundation. We don’t have any showing of what unit is being used here. We don’t have any showing as to whether a waiting period is in fact required and if there is, no foundation for the admission of this PBT. We don’t know how reliable it is and whether the instructions were followed.”
After a colloquy with defense counsel, the district judge advised the prosecutor, “You’re going to have to show me more foundation as to what was done on the prehminary breath test.”
The prosecutor then elicited the following testimony from Officer Walline:
“Q. Okay. Did you, what type of machine do you use for your prehminary breath test?
“A. It’s a digital prehminary breath test, PBT. I, I don’t know what else to say about it.
“Q. Do you know the manufacturer name?
“A. Not right offhand. I believe it’s possibly CMI is the company name I believe, but I’m not sure right offhand.”
Pollman’s counsel renewed his objection:
‘Well, I’m going to object again. Your Honor, because the Department, KAR 28, the KAR require that there are four types of prehminary breath tests which are admissible into evidence and there are others which can be if there is a showing of reliability. That has not been done here. We don’t know what type of testing we’re using.”
The prosecutor continued his examination, establishing that although Officer Walline had some on-the-job training on the PBT from the police department and had read the user’s manual, no certification was required to operate it. Officer Walline also testified that because he had used the PBT numerous times he did not read the operating instructions on the PBT itself, which “state basically what to. do; have the subject blow into it, which buttons to push on it to make it operate.”
Pollman's counsel objected a third time to admission of the PBT test, result: “Again, Your Honor, I’m going to object. There is no foundation as to whether this machine in fact is approved by the Kansas Department of Health and Environment. Therefore, I think absent that, any results obtained from. it. are inadmissible.”
The trial judge overruled the objection:
“Well, I don’t agree with you, Mr. Kepfield. Bottom line is if he was being tried today for refusing preliminary breath test or along those lines you might have a good argument but we’re not trying him today. This is a motion to suppress and the issue is probable cause for doing what he was doing. I’m going to allow it.”
On appeal, Pollman argues the State failed to establish the requisite foundation for the admissibility of the PBT test. Additionally, Pollman contends that absent the admission of the PBT test result, which under K.S.A. 8-1001(b) resulted in the blood alcohol test that yielded incriminating evidence of Pollman’s intoxication, there was no probable cause to arrest him for DUI.
The State counters that “there is no case precedent or statute stating the elements of a proper foundation for the admission of the preliminary breath test results.” The State concedes, however, there are specific foundational requirements under K.S.A. 8-1001 that must be established prior to admission of an alcohol test result at trial. See Bishop, 264 Kan. at 725-28. In summary, the State argues:
“As opposed to a breath test given pursuant to K.S.A. 8-1001, which results are admissible at trial and weigh heavily on establishing the guilt of a defendant, results from a preliminary breath test do not impact on a defendant’s guilt or innocence, cannot be admissible at trial and when admissible during preliminary hearings, are for the very limited purpose of ’aiding the court or hearing officer’ in making a determination as to the validity of an arrest. It is the State’s position that any foundation required to admit such results, during a preliminary hearing and or a hearing on a motion to suppress, is entirely at the discretion of the judge or hearing officer and should not rise to the same level as that of a test pursuant to K.S.A. 8-1001.”
Our court has addressed this very issue in the context of a driver s license suspension ordered by the Kansas Department of Revenue (KDR). See Leffel v. Kansas Dept. of Revenue, 36 Kan. App. 2d 244, 138 P.3d 784 (2006). Leffels driver s license was suspended by the KDR following his arrest for DUI. Leffel appealed to the district court claiming there was insufficient probable cause to believe he was intoxicated because there was not a sufficient foundation for admission of the incriminating PBT result. In particular, Leffel argued the district court erred in considering the PBT result because the testing device was an Alco-sensor IV, a device not approved for use by the Kansas Department of Health and Environment (KDHE).
Our court provided the following analysis regarding what foundation must be established prior to admission of PBT results:
“K.S.A. 65-1,107(d) authorizes die Secretary of Health and Environment to adopt rules and regulations establishing tire criteria for prehminaiy breath testing devices for law enforcement purposes. In addition, K.S.A. 65-1,107(e) authorizes the Secretary of Health and Environment to adopt rules and regulations establishing a list of approved preliminary breath testing devices for law enforcement purposes ‘which law enforcement agencies may purchase and train officers to use as aids in determining probable cause to arrest and grounds for requiring testing’ under K.S.A. 8-1001.
“The KDHE has established the criteria for approval of preliminary breath testing devices in K.A.R. 28-32-6. Moreover, the KDHE has established the procedure for gaining approval of preliminary breath testing devices and a list of approved preliminary breath testing devices in K.A.R. 28-32-7(a) as follows:
“Preliminary breath test devices shall be submitted to the Kansas department of health and environment for evaluation and approval for law enforcement purposes. The devices shall be operated according to the manufacturers’ written directions and shall meet the criteria prescribed in K.A.R. 28-32-6. Devices are as follows:
“ ‘(1) Alcometer S-D2
“ ‘(2) Alco-sensor
“ ‘(3) Alco-sensor III
“ ‘(4) Alco-sensor, pass-wam-fail
“ ‘(5) Alcotest
and any other devices' that upon evaluation by the department of health and environment meet the stated criteria in KA.R. 28-32-6.’
Although the Alco-sensor and the Alco-sensor III are listed as preliminary breath testing devices under K.A.R. 28-32-7(a), the Alco-sensor IV is not specifically' listed under this regulation. Moreover, there was no evidence presented to the trial court that the Aleo-sensor IV had been evaluated by the KDHE and had met the criteria of K.A.R. 28-32-6.
“It is clear under K.S.A. 65-1,107 that the legislature intended to provide the KDHE with the authority to adopt rules and regulations establishing the criteria for preliminary breath testing devices and to develop a list of approved preliminary breath testing devices. Leffel points to K.S.A. 65-1,109 in which the legislature made it a crime to test human breath for law enforcement purposes unless the testing device was approved by tire Secretary of Health and Environment. K.S.A. 65-1,109 states in relevant part:
“ ‘(a) It shall be unlawful for any person to make any test of the human breath for law enforcement purposes, unless:
(2) the apparatus, equipment or device used by such person in the testing of human breath for law enforcement purposes is of a type approved by the secretary of health and environment and otherwise complies with the rules and regulations of the secretary of health and environment adopted pursuant to K.S.A. 65-1,107 and amendments thereto to govern the periodic inspection of such apparatus, equipment and devices.
“ ‘(b) Any person who violates any provision of subsection (a) shall be guilty of a class C misdemeanor.
“ ‘(c) Nothing in this section shall be construed to prohibit the use of devices approved pursuant to K.S.A. 65-1,107 and amendments thereto for law enforcement purposes.’
This statute evidences the legislature’s intent that a preliminary breath testing device must be approved under K.S.A. 65-1,107 by the KDHE before it can be used for law enforcement purposes.
“Here, the State failed to show that Leffel’s preliminary breath test was conducted on a device approved by the KDHE. Because the Aleo-sensor IV was not listed as an approved device under K.A.R. 28-32-7(a), the State needed to present some evidence showing the Aleo-sensor IV had been evaluated by the KDHE and had met tire criteria in K.A.R. 28-32-6.” Leffel, 36 Kan. App. 2d at 247-48.
In the present case, the State established that the PBT device was digital and possibly manufactured by CMI — although Officer Walline conceded, “I’m not sure right offhand.” As described, this device was not listed in K.A.R. 28-32-7(a) as an approved device for law enforcement purposes at the time of its use in this case. But see K.A.R. 28-32-14, effective March 14, 2008, 27 Kan. Reg. 249-50 (2008), which now lists numerous PBT models, including the Aleo-Sensor IV Digital, as approved devices (the regulations have been substantially amended). Moreover, the State made no showing that, although not specifically listed, this PBT device had been evaluated by the KDHE and met the criteria in K.A.R. 28-32-6 at the time of its use in this case.
We disagree with the State’s claim that any foundation for admission of PBT results should be simply a matter for the unfettered discretion of district courts. Officer Walline’s determination that probable cause existed to believe that Pollman was driving under the influence of alcohol led to his arrest for DUI and also may have' impacted his driving privileges in the state. The important consequences of a probable cause determination in courts and administrative hearings are undoubtedly why the legislature authorized the KDHE to adopt rules and regulations regarding PBT devices when used “for law enforcement purposes” under K.S.A. 65-1,107(d). See K.S.A. 2007 Supp. 65-1,107(e); 27 Kan. Reg. 247-50 (2008) (new breath testing regulations).
In overruling Pollman’s motion to suppress, the district court emphasized the importance of the PBT result. After summarizing the on-scene observations of Walline and Allcock and Pollman’sadmission to drinking, the district court concluded, “The request for preliminary breath test is made; he agreed to it, he took it, and tested point one one. That’s above the legal limit. It’s grounds for arrest for [DUI].”
As our court has observed, “[a] PBT is an important tool for law enforcement officers to determine whether an arrest should be made in order to protect the health and safety of citizens.” State v. Chacon-Bringuez, 28 Kan. App. 2d 625, 631, 18 P.3d 970, rev. denied 271 Kan. 1038 (2001). A PBT result is so important, in fact, the legislature has determined that “[a] law enforcement officer may arrest a person based in whole or in part upon the results of a [PBT].” K.S.A. 2005 Supp. 8-1012(d). To adopt tire State’s view, however, is to countenance a law enforcement officer using an unapproved PBT device that may produce incriminating but unreliable results leading to a driver’s arrest for serious traffic offenses and the imposition of administrative driving sanctions. Simply put, the State’s view is at variance with K.S.A. 65-1,107(d) and K.A.R. 28-32-7(a).
As a result, we conclude (as did our court in Leffel) that “[b]ecause the State in this case failed to offer evidence at the trial court level that the defendant’s preliminary breath test was conducted on a device approved by the [KDHE], the defendant’s preliminary breath test result was not admissible evidence.” 36 Kan. App. 2d 244, Syl. ¶ 5.
Our holding that the district court erred in its admission of the PBT result, however, does not end our review. We next consider whether, setting aside the incriminating PBT result, there still existed probable cause to believe Pollman was driving under the influence.
Preliminarily, we note that although Officer Walline testified at trial that Pollman failed one of four field sobriety tests, inexplicably the State presented no evidence regarding these tests at the hearing on the motion to suppress. This failure was noticed by the trial judge:
“Well, I suspicion that there were sobriety tests administered at the scene before he was arrested and I guess evidence would have been presented to show me what those sobriety tests result were we wouldn’t be facing what we’re facing with the . . . [PBT] because then the [PBT] is just incidental with that.”
As a consequence, in our reassessment of the totality of circumstances which undergird the district court’s probable cause finding, we also will not consider what, if any, effect the field sobriety test results had in the district court’s finding of probable cause for arrest.
Review of the district court’s determination of whether an officer had probable cause to make a warrantless DUI arrest is a mixed question of law and fact. City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997). “In a DUI case, the answer to the probable cause to arrest question will depend on the officer’s factual basis for concluding that the defendant was intoxicated at the time of arrest.” 262 Kan. at 203.
Probable cause is a quantum of evidence which leads a prudent person to believe an offense was committed. State v. Dunn, 233 Kan. 411, 414, 662 P.2d 1286 (1983). There must be evidence to show that guilt is more than a possibility but less than that sufficient to prove guilt beyond a reasonable doubt. 233 Kan. at 414-15.
In our assessment of whether Officer Walline had probable cause to arrest Pollman for DUI, we consider the three factors highlighted by our Supreme Court in its determination that reasonable suspicion existed to detain Pollman for investigation of DUI. Of course, “[reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.” Pollman, 286 Kan. 881, Syl. ¶ 6.
While the probable cause standard is greater than reasonable suspicion, the following factors identified by our Supreme Court are very relevant to the probable cause analysis. First, Pollman’s refusal to follow lawful requests to leave the area of his wife’s traffic stop may have indicated “impaired judgment because of intoxication”; second, “Pollman admitted he had consumed a few beers”; third, “Officer Walline smelled the odor of alcohol on Pollman’s breath, which occurred after Walline had observed Pollman driving his motorcycle.” 286 Kan. at 894-95.
These three factors, supported by evidence presented at the suppression hearing, comprised the totality of circumstances we may consider in our determination of whether the district court erred in finding that Officer Walline had probable cause to arrest Poll-man for DUI.
These three factors are similar to the circumstances our court considered in City of Norton v. Wonderly, 38 Kan. App. 2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008). In Wonderly, a police dispatcher was called by a motorist and his passenger to report a pickup truck that was “swerving, spinning its tires and traveling at a high rate of speed.” 38 Kan. App. 2d at 799. Based upon a vehicle description which included a license plate number, Officer Pat Morel located the vehicle and followed it for 3 minutes (about 3/4 of a mile) without observing any traffic violations. The officer activated his emergency lights and the driver, Joshua Wonderly, stopped at the side of the road. Wonderly exited his vehicle and approached the officer, who yelled at him to return to his vehicle. Wonderly continued to walk toward the officer; however, Wonderly returned to his truck after Officer Morel yelled at him again.
Upon contacting Wonderly and his passengers, Officer Morel smelled an odor of alcohol coming from the truck. He also noticed that Wonderly had bloodshot eyes. Wonderly cooperated by producing his driver’s license, and he walked normally back to the officer’s car. Once seated in the patrol car, Officer Morel noticed alcohol on Wonderly’s breath. Upon inquiry, Wonderly admitted to having “some drinks at a local bar earlier that evening and one or two drinks at a bar in Lenora, Kansas.” 38 Kan. App. 2d at 800. Officer Morel described Wonderly’s speech as “ ‘fair’ ” but “ ‘not particularly slurred.’ ” 38 Kan. App. 2d at 800.
For reasons not relevant to the present case, the district court suppressed the incriminating result of the PBT administered to Wonderly. Our court, on appeal, also determined that Wonderly’s inconsistent performance on field sobriety tests should not be considered in the review of whether probable cause existed to arrest Wonderly for DUI. As summarized by our court,
“[t]hus, prior to Wonderly s arrest, the admissible evidence showed that Wonderly initially disobeyed an order to get back into his track, he had bloodshot eyes, the smell of alcohol was on his breath, and he admitted to drinking earlier that evening. Additionally, [Officer] Morel knew that a motorist had called law enforcement earlier that night and accused Wonderly of driving his track in a reckless manner.” 38 Kan. App. 2d at 808.
Our court concluded that Officer Morel had arrested Wonderly without probable cause and, as a result, suppressed the incriminating evidence and reversed Wonderly’s conviction. 38 Kan. App. 2d at 809. In particular, our court noted that Officer Morel had not personally observed any traffic infractions and Wonderly’s physical movements and speech did not suggest intoxication. Additionally, it was noted that Officer Morel apparently did not consider his observations of Wonderly and the admission to drinking sufficient indicators of intoxication because Officer Morel also conducted field sobriety tests and a PBT test. 38 Kan. App. 2d at 808-09.
In the present case, as in Wonderly, we consider the odor of alcohol on the driver’s breath and his admission to drinking a few beers as evidence relevant to the probable cause inquiry. Similar to Wonderly, Pollman’s unwillingness to follow the officer’s direc lives may also have indicated a lapse of judgment induced by alcohol consumption. As in Wonderly, no testimony was presented in this case that the officer s subsequent investigation clarified why the driver disregarded the officer’s orders. Absent such testimony, we are reluctant to place much weight on this factor, given the other possibility that since Pollman was traveling with his wife (who was being investigated for DUI), he may have stood nearby to witness the proceedings and protect her interests. Similar to Wonderly, in the present case the officer observed the driver for a short time without observing any erratic or illegal driving. Unlike Wonderly, there was no hearsay evidence of unsafe driving. Moreover, the present case contrasts with Wonderly because diere was no evidence of bloodshot eyes and only “fair” speech. Here, Pollman did not exhibit any of the usual physical manifestations of intoxication.
In summary, we hold the totality of circumstances in the present case did not warrant a reasonably prudent police officer to believe that guilt was more than a mere possibility. See Norton, 262 Kan. at 203-04. Accordingly, because the officer did not have probable cause to arrest Pollman for DUI, the district court erred in not suppressing the incriminating evidence of the blood alcohol test. Moreover, given that the blood alcohol test result was essential to a conviction under K.S.A. 2005 Supp. 8-1567(a)(2),(f), we reverse Pollman’s conviction and vacate his sentence.
Constitutionality of K.S.A. 2005 Supp. 8-1567(a)(2)
Pollman challenges K.S.A. 2005 Supp. 8-1567(a)(2) on constitutional grounds. K.S.A. 2005 Supp. 8-1567(a)(2) provides: “(a) No person shall operate or attempt to operate any vehicle within this state while: ... (2) the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more.”
According to Pollman:
“[T]he statute ... is unconstitutionally overbroad as it punishes non-criminal conduct, i.e., driving with [an alcohol concentration] below .08 at the time of actual operation. It is also void for vagueness, as it fails to give reasonable notice as to which conduct is prohibited — actually driving with [an alcohol concentration] over .08, or having [an alcohol concentration] over .08 within two hours of driving? This fact encourages, or at die least, permits arbitrary enforcement, since testing done at the time of operation might well reveal [an alcohol concentration] below the legal limit of .08.”
The constitutionality of a statute is a question of law reviewed de novo. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008). Before addressing the overbreadth and vagueness challenges, it is helpful to clarify the Kansas criminal law at issue.
“Driving under the influence of alcohol or drugs is an absolute liability offense. . . . The only proof required to convict ... is that the individual engaged in the prohibited conduct.” State v. Creamer, 26 Kan. App. 2d 914, Syl. ¶ 1, 996 P.2d 339 (2000). The prohibited conduct in the present case was driving with an alcohol concentration which tests at .08 or more within 2 hours of driving. See K.S.A. 2005 Supp. 8-1567(a)(2). “This form of proscription is commonly referred to as a per se violation because it was not material whether the driver was incapable of safely driving a vehicle.” State v. Hartman, 26 Kan. App. 2d 928, 931, 991 P.2d 911, rev. denied 269 Kan. 937 (2000); see State v. Hobbs, 276 Kan. 44, 48, 71 P.3d 1140 (2003).
In all likelihood a blood or breath alcohol concentration test would not be conducted while a defendant was driving. See City of Colby v. Cranston, 27 Kan. App. 2d 530, 536, 7 P.3d 300, rev. denied 269 Kan. 931 (2000). It is not surprising then that K.S.A. 2005 Supp. 8-1567(a)(2) does not refer to a specific alcohol concentration while driving. See State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007) (An appellate court should “ascertain the legislature’s intent through the statutory language it employs.”). A different subsection of the statute addresses alcohol concentration while driving; instead of basing guilt on a contemporaneous test result, it allows the determination to be made upon “any competent evidence.” K.S.A. 2005 Supp. 8-1567(a)(1). That subsection, however, is not at issue in the present case.
1. Overbreadth
Pollman does not claim his alcohol concentration was less than .08 while he was driving. He argues instead that K.S.A. 2005 Supp. 8-1567(a)(2) may sweep up other such individuals. “[Ojverbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand. [Citation omitted.]” Sabri v. United States, 541 U.S. 600, 609, 158 L. Ed. 2d 891, 124 S. Ct. 1941 (2004).
Considering these relaxed standing requirements and the “fact-poor records” produced by facial challenges generally, the over-breadth doctrine is applied in “relatively few settings” involving protected rights. 541 U.S. at 609-10 (listing rights such as free speech and right to travel); see also Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005) (“The overbreadth doctrine should be employed sparingly and only as a last resort.”); State v. Wilson, 267 Kan. 550, Syl. ¶ 4, 987 P.2d 1060 (1999) (“[T]he overbreadth doctrine is applicable primarily in the First Amendment area.”). In contrast to the protected rights which justify overbreadth challenges, “[t]he right to drive a motor vehicle on the public streets is not a natural right but a privilege, subject to reasonable regulation in the public interest.” Standish v. Department of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984).
Pollman does not question the reasonableness of K.S.A. 2005 Supp. 8-1567(a)(2) as a regulation in tire public interest. A failure to brief an issue is generally deemed a waiver or abandonment of the issue. State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007). In any event, we are not persuaded that it is inherently unreasonable to prohibit driving with an alcohol concentration which tests at .08 or more within 2 hours of driving.
We also find unpersuasive the cases Pollman cites, State v. Baker, 720 A.2d 1139, 1141 (Del. 1998), and Com. v. Barud, 545 Pa. 297, 305, 681 A.2d 162 (1996), both of which assume that a crime only occurs when a certain alcohol concentration exists while driving. That may be the law in those jurisdictions, but it is not the law under K.S.A. 2005 Supp. 8-1567(a)(2). The district court correctly rejected Pollman’s overbreadth challenge.
2. Vagueness
“Courts use a two-part test to determine whether a statute is unconstitutionally vague. First, the court considers whether the statute conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice. Next, the court considers whether the statute adequately guards against arbitrary and discriminatory enforcement.” State v. Rupnick, 280 Kan. 720, Syl. ¶ 10, 125 P.3d 541 (2005).
Pollman’s argument on the first part of the vagueness test—that K.S.A. 2005 Supp. 8-1567(a)(2) is unclear regarding the time during which the alcohol concentration may not meet or exceed .08— fails for reasons described above. Pollman also cites Baker and Barud, where the courts ruled the statutes in those jurisdictions were vague because a person could not know what his or her alcohol concentration might be after driving. See Baker, 720 A.2d at 1148-49; Barud, 545 Pa. at 305-06. Of course, the same could be said for a person while driving, suggesting that alcohol concentration limits are intrinsically vague. This court held to the contrary, however, in City of Overland Park v. Denning, 12 Kan. App. 2d 375, 376, 744 P.2d 523, rev. denied 242 Kan. 902 (1987), and State v. Larson, 12 Kan. App. 2d 198, 202, 737 P.2d 880 (1987).
As this court noted in Larson, if specific alcohol concentrations are vague because they are not personally verifiable, “speed limits would be too vague (or at least could not be enforced against anyone whose speedometer was broken), since no one can tell simply by use of their own senses the precise speed they are traveling.” 12 Kan. App. 2d at 202. In Denning this court considered an ordinance which, similar to the statute here, prohibited “a person from operating or attempting to operate any vehicle while the alcohol concentration in the person s blood or breath, within two hours after the person operated or attempted to operate the vehicle, is .10 or more.” 12 Kan. App. 2d at 376. This court held: “The language of the ordinance is clear. When measured by common understanding and practice, it conveys a sufficiently definite warning as to the conduct proscribed. [Citation omitted.]” 12 Kan. App. 2d at 376. The same is true for K.S.A. 2005 Supp. 8-1567(a)(2).
Turning to the second part of the vagueness test — arbitrary enforcement — we acknowledge that testing at different times during a 2-honr period may reveal different alcohol concentrations, and it is conceivable that some results might be less than .08 and others equal to or more than that amount..We nevertheless do not agree with the conclusion in Baker that this “encourages arbitrary enforcement.” 720 A.2d at 1149.
Arbitrary enforcement is possible where a statute fails to provide “minimal guidelines,” thereby risking a “ ‘standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ [Citation omitted.]” Kolender v. Lawson, 461 U.S. 352, 358, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983). The Kansas Legislature framed K.S.A. 2005 Supp. 8-1567(a)(2) with reference to a specific alcohol concentration and a specific time limit, leaving almost nothing to personal predilection. Law enforcement officers in Kansas do not have “complete discretion ... to determine whether the suspect has satisfied the statute,” as is the case with a vague statute. Kolender, 461 U.S. at 358. K.S.A. 2005 Supp. 8-1567(a)(2) circumscribes DUI enforcement by its provisions relating to scientific testing and the clock.
Finally, we are not presented here with a situation where a law enforcement officer detains and continues to test a suspect in the hope that a rising alcohol concentration might reach .08 before time expires. Even if we were, there would be no issue of vagueness. The statute is clear, and there is only one way to violate it. See State v. Pendleton, 18 Kan. App. 2d 179, 186, 849 P.2d 143 (1993) (“[T]o obtain a conviction under K.S.A. 8-1567(a)(2) the State must show the test was conducted within the two-hour limitation period; otherwise, the test results are not competent evidence and are inadmissible to prove a per se violation.”). Testing which failed to show a violation would hardly confer upon the authorities “ ‘a virtually unrestrained power to arrest and charge persons with a violation.’ [Citation omitted.]” Kolender, 461 U.S. at 360. The district court did not err in its rejection of Pollman’s vagüeness challenge.
Pollman’s conviction is reversed and his sentence is vacated. | [
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The opinion of the court was delivered by
Johnston, J.:
On August 20,1884, and while passing along Barnett street, in the city of Wyandotte, Alice Agan sustained injuries from a fall caused by a defective sidewalk. The sidewalk was constructed of boards, some of which were loose and insecure, and as she passed over the walk a passer-by whom she met stepped on one end of a loose board, tipping it up against her, causing her to fall forward and into the opening caused by the displacement of the board. She brought an action against the city, alleging that the injuries resulted from the negligence of the city in constructing and maintaining the sidewalk, and through no fault of her own, and placed her damages at $3,000. At the trial she stated that she was a married woman, and at the time of the injury was dependent upon her husband for support. She did not devote her entire time, however, to the domestic duties of the household, as she stated that a part of the time she carried on the business of dressmaking, but that after the injury she had been unable to continue in that business. About six months after the injury occurred, her husband got into trouble and left her, since which time his whereabouts have been unknown to her, and he has contributed nothing toward the support of herself and children. In one of the instructions given, the court directed the jury that if they found for the plaintiff, she would be entitled to recover, not only for the pain and suffering undergone and the permanent injury sustained, but also that they might allow her such “an amount of damages as the jury believed from the evidence will compensate her for the personal injury so received, and for her loss of time in endeavoring to be cured, and her expenses necessarily incurred in respect thereto, if any such loss or expense has been proven.” An exception was taken to the giving of this instruction, and it forms the principal ground relied on by the city for a reversal of the judgment which she recovered.
Counsel for the city makes the broad claim that because she was a married woman her time and services belonged alone to her husband, and that a liability for the same could only arise in his favor. The common-law rule that the husband and wife are one person, and that he has the exclusive right to the labor, service and earnings of the wife, has been wisely and radically changed. A positive enactment of our legislature has removed many of the restraints and disabilities of coverture, and it contains a provision that—
“Any married woman may carry on any trade or business, and perform any labor or service on her sole and separate account, and the earnings of any married woman from her trade, business, labor or service shall be her sole and separate property, and may be used and invested by her in her own name.”
It also prescribes that she may sue to protect and enforce her rights in the same manner as if she were unmarried. (Gen. Stat. 1868, ch. 62.) It follows from this that the time and services of the wife do not necessarily belong to the husband, nor does an injury which causes the loss of such time and service necessarily accrue to him. At least a portion of her time may be given to the labor or business done on her sole and separate account. The profits or earnings of such business or labor are her sole and separate property, and cannot be appropriated or controlled by her husband withou£ }ler consent. So far, then, as she is deprived of these she suffers a loss which is personal to herself, for which she alone can recover. The fact that she is partially or wholly dependent upon the husband for support does not abridge her right of action, nor transfer to him that which accrued solely to her. Notwithstanding this, we are compelled to hold that the instruction was prejudicially erroneous. The duty devolves upon the husband to take care of and provide for the wife, and he is entitled to her society and to her services other than those performed on her sole and separate account. If he is deprived of these services in consefiuence of an injury inflicted, the loss is his, and pjgjjj. 0f ac(;ion therefore exists in him. The rule fixing the liability for the services of a married woman is fairly stated in a case which arose and was tried in New York, where a statute exists substantially like ours. It was held that—
“The services of the wife in the household, in the discharge of her domestic duties, still belong to the husband, and in rendering such service she still bears to him the common-law relation. So far as she is injured so as to be disabled to perform such services for her husband, the loss is his and not hers, and for such loss of service he and not she can recover of the wrongdoer. But when she labors for another, her service no longer belongs to her husband, and whatever she earns in such service belongs to her as if she were a feme sole, and so far as she is disabled to perform such service by any injury to her person, she can in her own name recover compensation against the wrongdoer for such disability as one of the consequences of the injury, . . . and the money recovered shall be her sole and separate property.” (Brooks v. Schwerin, 54 N. Y. 343; Minick v. City of Troy, 19 Hun, 253; C. B. & Q. Rld. Co. v. Dunn, 52 Ill. 260; Townsdin v. Nutt, 19 Kas. 282; 3 Sutherland on Damages, 723.)
In the present case the court ignored this distinction, and in effect instructed the jury that the city was liable to Mrs. Agan for all the time which had been lost by reason of her injury, although it appeared that a large part of it had been devoted to the domestic duties of the household: if the instruction had limited her right of recovery to the injury which accrued to her, or had directed that she could not recover for the loss which her husband sustained by reason of her inability to discharge the ordinary duties of a wife, no prejudice would have resulted. The jury were directed to allow for the loss of time regardless of whether she was engaged in a business of her own, or was performing labor or service on her sole an(l separate account. Under the testimony ail(j circumstances of the case, the instruction was erroneous. (Thomas v. Town of Brooklyn, 58 Iowa, 438.)
We have examined the other objections urged against the judgment, and find them untenable; but the error in the instruction requires a new trial, and for that purpose the judgment will be reversed, and the cause remanded.
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The opinion of the court was delivered by
Johnston, J.:
Susanna Koehler, as the personal representative of Karl Koehler, deceased, brought this action against the railroad company to recover damages sustained by reason of his death,, which occurred while he was in the service of the company, and which is alleged to have been caused by the negligence of its employés. On March 3, 1883, he was engaged with a number of others in loading rails on one of the cars of the company at Ellinwood, Kansas, and while so engaged a rail was thrown against him by the other employés of the company, which crushed his leg, and he died from the effect of the injury two days thereafter. His representative, who sues for the benefit of herself and seven minor children, obtained a verdict and judgment for $1,500, at a trial had at the June term, 1885, of the district court of Barton county.
The railroad company brings the case here, and raises three points against the judgment: First, that its demurrer to the evidence of the plaintiff below should have been sustained: second, that if negligence was shown in the case, it was that of a fellow-servant, for which the company cannot be held liable; and third, that th'e act of 1874,' under which the liability is sought to be established, is unconstitutional and void. The first point made involves the question whether the testimony of the plaintiff below with respect to negligence was sufficient to send the case to-the jury, and to support the verdict rendered. It appears that the iron rails which were being loaded, were in a pile at the side of the track, which was ten or twelve feet high, and about ten feet away from the track-To lower the rails from the pile, two skids were used, placing one end on the top of the rail pile, and the other on the middle of the railroad track. . Two men on top of the pile would bring forward six or eight rails to the edge of the pile and to the end of the skids, and then lift.them on the skids, one at a time, and allow them to slide down to the ground, and to the middle of the railroad track. A stock car was standing on the track a few feet from the end of the rails thus thrown down, and eight men who were on the ground would lift these rails one at a time and put them into the car, while two men who were inside of the car placed them in position. Another man, designated by some as “ boss,” and by others as a foreman, sat at one side and kept a tally of the rails as they were loaded. When the rails thrown down were placed in the car, these eight men would step aside until the men on top would slide down six or eight more rails, when the men would return to load them into the car. Koehler was at work at the end nearest the car. He, with others on the ground, had just placed the last rail of a certain lot in the car, and had not yet passed aside, when the men on top threw down a rail which struck Koehler and resulted in his death. A very brief time elapsed between the loading of the last rail and the starting of the other from the top. Several of the men were in the way when it was started, but all escaped except Koehler. He had started to get out of the way, and when apprised that the rail was coming, he made a strong effort to avoid the danger, but failed.
The duty of the men on top of the pile was clear. They ought to have given the men below a reasonable time to step aside and out of danger. Not only that, but they should not have lowered a rail until the men on the ground had reached a place of safety. . There was no obstruction in the way, and hence those on top could see when the men below had completed their task and had stepped aside. It was not necessary that the rails should be lowered with exact regularity as to time; nor need they lower any until the way was clear. It seems that sometimes the men on top would, before starting the first rail, shout, “Look out,” and the .boss, or some one below, would respond, “ Ready,” and then the rail would be lowered; but this was not always done. Just as the rail which did the injury was dropped, some one said, “Look out,” but all agreed that the rail descended with such velocity that there was not sufficient time after it started for Koehler to get out of its way. It is insisted on behalf of the company, that if Koehler had looked up he might have seen that the .rail was about to be thrown down, and have gotten out of the way; and also that if he had moved more quickly, and in another direction, he might have escaped. There is plenty of testimony , offered on behalf of the plaintiff, below, to show that Koehler had no fair warning or opportunity to avert the injury. J. H. Parkerson, a witness for plaintiff below, testified as follows:
“ Q,. You may state to the jury whether or not Mr. Koehler did not get out of the way, if you know. A. He could not.
“Q,. You say he not. Why could he not? A. I think that it came too fast for him. A. -.
“ Q,. Had those on the rail pile been in the habit, or not, of waiting for the parties who were loading the iron below to get out of the way before throwing down other iron ? A. Yes, sir.
“Q,. Did they, or not, wait long enough for these parties to get out of the way, when they threw down this piece of iron which struck Mr. Koehler? Had he time to get out of the way after loading the last bar of iron before it struck him ? A. I hardly think he did.
“Q. How long was it between the loading of the last rail and the coming down of the other rail ? A. I do not know how long it was.
“ Q. Give it as near as you can, whether or not it was almost instantaneous. A. It seemed like a very short time; I know we had hot the rail out of the way and in the car.”
On cross-examination he was asked:
“ Q,. How many men were there handling that rail that put it in ? A. I do not know whether there were eight or ten.
“Q. They all got out of the way, didn’t they? A. Yes, sir, they all got out of the way. They were not out of the way, though, when the rail started.
“ Q,. They all got out of the way except this one man that got hurt ? A. Yes, sir.
“ Q,. This man had just as much time to get out of the way as any other ? A. No, he didn’t have.”
On a reexamination he testified as follows:
“ Q,. Then you say that from where you saw them, that it was impossible for him to get out of the way of the iron that was thrown down from the pile ? A. Yes, sir, it was; when the iron started it was impossible for him to get out of the way.
“Q,. You spoke of another man being by his side. A. Yes, sir; Mr. Sauer.
“ Q,. How was it with him ? A. I believe that if it had not caught Koehler, it would have caught him.
“ Q,.. If it had not caught Koehler it would have caught him? A. Yes, sir; he was ahead of Koehler, and it seemed as though Koehler had jumped against him and probably helped him along a little.
“ Q,.. By Koehler jumping against him pushed him out of the way and saved him ? A. Yes, sir.”
Robert Hutton, the foreman in charge of the men, testified, among other things, as follows:
“Q,. You may state whether or not, in your judgment, he had time to get away after loading the other rail ? A. He had if he knew the rail was coming.
“ Q. But not knowing it ? A. But not knowing it, after the rail started, he didn’t have time.
“ Q,. After the loading of the other rail into the car, how soon was the other rail thrown down ? A. Oh, it was but a few moments.
. . . “ Q. Was not the rail thrown quicker than usual after the loading of the iron ? A. Yes, sir; I think it was.”
Further along, the same witness was asked :
“Q,. If those men then had looked toward that pile of iron before they started to go through, there was nothing to prevent them from seeing that the men on top were starting iron down, was there? A. Nothing to prevent them seeing they were ready to; but then the men on the ground were not supposed to look up to a pile of iron twelve feet high. Those men who were on top were to look down and see if the men were ready.”
At another time this witness was asked:
“ Q. You say that it was the business of the men on the pile to see that everything was clear below before throwing the iron? A. Yes, sir; it was, most assuredly.
“ Q. Then at that time it was not clear ? A. The ground below was not clear just at that time, quite.
“ Q,. I mean the men were not oitt of the way ? A. Mr. Koehler and Mr. Sauer were not out of the way.”
Joseph Schermoly, another witness, was working by the side of Koehler when the rail fell, and stated that the usual time was not given for the men to get out of the way before the rail was sent down. He stated that one of the men on fop let go of the rail while the other held on a moment and shouted, “ Look out,” but he quickly let it go. The witness stated that he was in the way, but when it started he saved ¡himself by a quick jump. Simon Epps testified that he was working in company with Koehler at the tifne of the injury, and that Koehler had no time between the loading of the last rail and the lowering of the other, to get out of the way.
There is some testimony tending to show that Koehler would have had a better chance to escape if he had moved more quickly and in another direction, but it is also shown that he was proceeding in the usual way to a place of safety; .and it further appears that the rail was precipitated upon him so suddenly that little time was given for reflection as to the safer course. It did not devolve on him to watch the movements of the men on the top of the pile, nor to anticipate that they would depart from the usual course of waiting until the way was clear. He had a right to expect that no rail would ¡be thrown down until he was out of the way, or at least until ihe had sufficient time to get away after a warning had been given. Common prudence and the most ordinary care would •dictate that such a course should be pursued. We cannot say from the testimony that the injury was the result 0f Koehler’s fault, and the evidence against which the demurrer was directed abundantly shows negligence on the part of those who threw the rail against him. On a demurrer to the evidence, all that is required to send the case to the jury is that the testimony fairly tends to establish the essential facts of the case; and we are of opinion that more than this was shown.
The next contention of the plaintiff in error is, that the •employment of Kohler was not connected with the operation •of the railroad so as to make the company liable for injuries .inflicted upon him through the negligence of a coemployé. Koehler was a track or section hand, who worked on the track and in the yard. The first part of the day on which he was injured he was engaged with a crew in repairing the railroad track, and in the afternoon he assisted in loading the rails for use on other parts of the company’s road. He was therefore an employé, and engaged in the business of the company when injured. The service was actually performed on the company’s road, was necessary to its use and operation, and the result in the case sufficiently shows the hazardous character of the service. The case of U. P. Rly. Co. v. Harris, 33 Kas. 416, rules the present action. There a section-man who, with others, was. engaged in unloading rails from a car to be used in the repair of the track, was injured through his coemployés carelessly throwing a rail on his foot, and on a like objection he was held to be within the protection of the statute. The character of the employment is substantially the same in both cases, and the reasoning there applies here, and need not be repeated. (See also Union Trust Co. v. Thomason, 25 Kas. 5.)
The third and final point contended for by plaintiff in error is, that chapter 93 of the Laws of 1874, which makes a railroad company liable for injury sustained by one servant on account of the negligence of a coémployé, is class legislation, which is forbidden by both the state and federal constitutions, and is void. This question has been several times considered in this court, and decided adversely to the contention oi plaintift m error. It is settled, so far-as may be by this court, that the statute is valid. (Mo. Pac. Rly. Co. v. Haley, 25 Kas. 35; Mo. Pac. Rly. Co. v. Mackey, 33 id. 298. See also Mo. Pac. Rly. Co. v. Humes, 115 U. S. 512.)
It is expressly stated that the other assignments of error are not insisted on, and therefore we shall not consider them; and as the points made against the judgment cannot be sustained, there must be an affirmance.
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Green, J.:
In this premises liability case, a subcontractor’s employee, Shelly K. Herrell, was injured when she stepped into a hole in the concrete floor of the landowner’s (National Beef Packing Company [National Beef]) plant. Herrell was working at the plant to obtain soil samples for testing. Herrell sued National Beef, alleging that National Beef was negligent in creating, maintaining, and fading to warn of the dangerous condition; in violating an Occupational Safety and Health Administration (OSHA) regulation; in failing to inspect the premises; and in fading to keep the business place safe. Because Herrefl’s injuries were covered by workers compensation, National Beef asserted that Herrefl’s claims of negligence were barred by the rule and the policy reasons established in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994).
In Dillard, our Supreme Court stated that a landowner was not hable for the negligence of an independent contractor which resulted in a work-related injury to an employee of the independent contractor when the employee was covered by workers compensation. 255 Kan. 704, Syl. ¶ 3.The trial court disagreed, determining that Dillard did not control because National Beef had created the dangerous condition of the hole by continuing to operate the plant during the construction. The question before us is whether Herrell’s claims of negligence against National Beef in causing her injuries are controlled by the Dillard holding.
Although Dillard limited its decision to two theories of landowner liability — breach of a nondelegable duty assigned by statute or ordinance and vicarious liability when the work being performed is of an inherently dangerous nature — the Dillard court cited with approval authorities from other jurisdictions that precluded a contractor’s employee claim for injury even when the employee made a claim of liability based on the negligent acts of the landowner. Moreover, the “policy reasons” stated in Dillard would preclude Herrell’s claims of negligence against National Beef just as die claims of vicarious liability and peculiar risk were precluded in Dillard. Accordingly, we reverse and remand with directions to the trial court to enter judgment in favor of National Beef.
National Beef contracted with J-A-G Construction Company (J-A-G) to act as a general contractor for the construction of a new roof on its rendering facility in Dodge City. During the roofing project, National Beef continued to operate the rendering facility, where cow intestines, blood, and other nonconsumable meat products (which are called rendering) were known to spill onto and cover the floor of the plant.
As a part of the construction project, large holes — approximately 2 feet deep and 8 to 10 inches in diameter — were excavated in the rendering plant’s existing floor for concrete pillars to support the new roof. J-A-G subcontracted with Terracon Consultants, Inc. (Terracon), a consulting engineering company, to test the soil in the holes.
Terracon’s employees Shane Harper and Herrell arrived at the rendering facility to conduct the soil tests. After they signed in with National Beef s security at the gate to the plant, a J-A-G foreman took Harper and Herrell through the rendering plant to the site of the holes where they were to obtain soil samples for testing. The holes were surrounded by sandbags.
Harper and Herrell returned to their truck to get the equipment necessary for the soil sampling. As they were walking alone through the rendering plant back toward the job site with their equipment, Herrell stepped off of a small ledge and fell into an unmarked hole that had become covered in rendering, injuring her anide and knee.
Herrell collected workers compensation benefits from Terracon. Herrell also filed a separate lawsuit against National Beef, generally alleging in her petition that National Beef was “negligent in maintaining a dangerous condition; in failing to warn of the dangerous condition; and in other respects.”
National Beef moved for summary judgment, claiming it was not hable because it had no notice of the hole and because it did not control the area where the accident occurred. National Beef also argued that under the rule announced in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), it could not be held hable to Herrell because she had been injured while working on National Beefs premises as an employee of a subcontractor who was covered by workers compensation. In denying summary judgment on this ground, the trial court explained:
“The Court notes that [Dillard] states, ‘However, while the liability of the employer is limited, the employee can still bring an action against and recover damages from a negligent third party. K.S.A. 44-504(a)
“In this instance, [National Beef] was continuing its normal working operations while a construction project was under way. Had [National Beef] vacated the premises and allowed [J-A-G] and its subcontractors exclusive access to and possession of the area under construction, their motion would be well founded.
“However, the facts indicate to this Court that the rendering products that may have filled and obscured the hole that [Herrell] stepped into were there because of the actions of Defendant National Beef. It appears there are comparative fault issues that cannot be determined through a motion for summary judgment.”
At trial, National Beef moved for a directed verdict, again arguing that the holding in Dillard dictated that Herrell could recover no more from National Beef than if she were National Beef s own employee, that is, she was limited to recovering workers compensation benefits. The trial judge again concluded that the rule of nonliability of the landowner announced in Dillard was inapplicable, stating:
“This situation is one that I agree with [Herrell’s attorney]. The hole itself is not inherently dangerous. Covering the hole with rendering makes it dangerous. The entire operation could have been turned over to [J-A-G], And, had National Beef left the area, then clearly the cases cited by [National Beef] starting with Dillard vs. Strecker would be applicable. But that’s not the case.
“They continued working there. They covered tire floor with a substance that it hid dangerous holes in this case. They should have known that under the circumstances they were creating a dangerous situation.”
The case was submitted to the jury to determine the comparative fault, if any, of Herrell, National Beef, J-A-G (including its subcontractors), and Terracon. As to National Beef s fault, the trial court instructed the juiy as follows:
“The Plaintiff Shelly K. Herrell claims that she sustained injuries and damages due to the fault of the defendant National Beef Packing Company, LLC, in the following respects:
“a. In creating an unreasonably dangerous condition by operating the rendering plant in such a manner to cause rendering to spill on the floor causing holes in the floor to become filled with rendering and hidden from the view of persons walking on tire floor;
“b. In maintaining an unreasonably dangerous condition by failing to timely remove the renderings from the floor which resulted in the hole not being visible;
“c. In fading to provide adequate protection and warning from dangerous conditions such as a warning, cone, metal grate, or caution tape, so that people would be warned that the rendering caused holes in the floor to be hidden;
“d. In failing to keep the business place safe;
“f. In removing the metal grate, thereby leaving the hole hidden and exposing people to a risk of falling in a hidden hole;
“g. In failing to inspect the business premises; and
“h. In creating an unreasonably dangerous condition by operating the rendering plant while construction was in progress, causing rendering to spill on the floor and hiding from view potentially dangerous conditions.
“The Plaintiff Shelly K. Herrell further claims that she sustained injuries and damages due to the fault of the defendant National Beef Packing Company, LLC, by not complying with the industry standard set out in OSHA Reg. 1910.23(a)(8) which requires every floor hole into which persons can accidentally walk to be guarded by either: (i) a standard railing with standard toeboard on all exposed sides, or (ii) a floor hole cover of standard strength and construction. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing.”
The jury ultimately returned a verdict assessing fault for Herr-ell’s total damages of $251,197.86 as follows: National Beef— 47.5%; J-A-G — 32.5%, Terracon — 15%; and Herrell — 5%.
DOES KANSAS SUPREME COURT PRECEDENT BAR THE EMPLOYEE OF AN INDEPENDENT CONTRACTOR FROM SUING THE LANDOWNER UNDER ANY THEORY OF NEGLIGENCE?
National Beef s sole contention on appeal is that the trial court erred in not concluding, based on the principles and legal reasoning articulated in Dillard, that it was entitled to judgment as a matter of law. National Beef argues that under Dillard, it owed no duty to Herrell because her injuries were covered by workers compensation. As a result, National Beef argues that workers compensation was the exclusive remedy, regardless of the question of negligence. Herrell, on the other hand, counters that National Beef has read too much into Dillard and argues that Dillard was specifically limited to the claims and facts of that case by the court, and the claims and facts in this case are. different.
Standard of Review
To establish a claim of negligence against National Beef, Herrell must show the following: National Beef owed her a duty of care; National Beef breached that duty; she suffered injury; and there existed a causal connection between the duty breached and the injury she suffered. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
National Beef contends that the undisputed facts negate the duty element of Herrelfs negligence claim against it. Thus, the only issue before this court is the existence of a duty — or, more pointedly, to whom that duty extends — which is a question of law. See 285 Kan. at 39. Accordingly, this court has unlimited review of the trial court’s conclusion that National Beef owed a duty to Herrell. See South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1 (2005).
Dillard’s Limitation of Landowner’s Liability to Employee of Independent Contractor
Generally, an occupier of land owes a duty of reasonable care under the circumstances to all entrants on the property who are present with the owner or occupier’s consent. See Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). Part of Herrell’s theory of National Beefs liability was that it created, maintained, and failed to warn of the dangerous condition that caused her injuries— the rendering-covered hole. See D.W. v. Bliss, 279 Kan. 726, 740, 112 P.3d 232 (2005) (recognizing the required showing of notice for a claim against a landowner for an injury resulting from a dangerous condition); Restatement (Second) of Torts § 343 (1964) (possessor of land’s liability for dangerous conditions known to or discoverable by the possessor).
In Dillard, our Supreme Court determined that the landowner’s general duty of reasonable care did not — on the facts and theories of liability advanced by the plaintiffs in that case — extend to an employee of an independent contractor covered by workers compensation insurance. 255 Kan. at 726-27.
Dillard was also a premises liability case involving a construction project. The defendant, a Roman Catholic Archbishop, contracted with A.J. Huber and Sons, Inc. (Huber), for construction work on a church and school. Huber, in turn, subcontracted masonry work for the project with P&S Masonry, Inc. During construction, Lee Dillard, a P&S employee, was seriously injured when a masonry wall collapsed and crushed him. Lee Dillard was covered by workers compensation.
Lee Dillard and other family members sued the Archbishop for negligence based on two theories. First, the Dillards alleged that as the landowner, the Archbishop was directly liable for breaching his nondelegable duty: by violating a provision in the local building code that required the landowner to hire an independent building inspector to - monitor the construction of the wall. The Dillards maintained that by breaching that duty, the Archbishop was hable to Lee Dillard for his resulting injuries.
Second, the Dillards alleged that the Archbishop was vicariously liable for the subcontractor’s negligence because Lee Dillard was performing an inherently dangerous activity.
The Archbishop argued it owed no duty to Lee Dillard because he was an employee of an independent contractor. The trial court agreed and dismissed the Dillards’ petition for failure to state a claim.
On petition for review of this court’s decision affirming the trial court, our Supreme Court identified the dispositive issue before it in Dillard as follows:
“[Wjhether a landowner who engages an independent contractor, who is covered by workers compensation, may be liable for work-related injuries to employees of the independent contractor under two exceptions to- the common-law rule that one who engages an independent contractor is not liable for the negligence of the contractor or the employees. . . . [T]he two exceptions asserted here are direct liability of the landowner for violation of a nondelegable duty imposed by a city ordinance and vicarious liability when the work being performed by the independent contractor is of an inherently dangerous nature.” (Emphasis added.) 255 Kan. at 709-10.
The Dillard court thén undertook an extensive analysis of the policy considerations and rationale underlying the holdings of a majority of other jurisdictions that the answer to the issue was no— the landowner is not liable under the two exceptions or theories of liability asserted by Lee Dillard. 255 Kan. at 710-25; see Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461 (1988); Parker v. Neighborhood Theatres, 76 Md. App. 590, 547 A.2d 1080 (1988); Matteuzzi v. The Columbus Partnership, L.P., 866 S.W.2d 128 (Mo. 1993); Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. 1991); Tauscher v. Puget Sound Power & Light Co., 96 Wash. 2d 274, 635 P.2d 426 (1981); Stockwell v. Parker Drilling Co., Inc., 733 P.2d 1029, 1032 (Wyo. 1987). The Dillard court also acknowledged the authorities representing the contrary minority view, but it found that they were inapposite because they failed to address the policy considerations recognized by the other jurisdictions relied upon by the court in arriving at its holding. 255 Kan. at 721-22. .
Ultimately, the Dillard court concluded:
“Kansas has clearly recognized the inherently dangerous activity doctrine. However, the fact that the doctrine has been recognized and applied in Kansas is not determinative of the case now before us. None of the Kansas cases we have found addressed the issue of the effect of workers compensation on the applicability of the inherently dangerous activity doctrine under facts similar to the present case. The various policy reasons precluding liability of a landowner for injuries suffered by an employee of an independent contractor covered by workers compensation were not raised or considered in our earlier cases. We find the various policy provisions discussed in the various cases cited herein not only persuasive but also determinative of this case. The policy reasons include:
“(1) The landowner should not have greater liability to an employee of an independent contractor than the liability of the contractor to that employee.
“(2) The landowner should not have greater liability to the employees of an independent contractor than the landowner has to the landowner’s own employees.
“(3) Liability on the part of the landowner would encourage the landowner to use the landowner’s less experienced employees rather than an experienced contractor.
“(4) Employees of an independent contractor, and their dependents, are protected under the provisions of the workers compensation statutes.
“(5) Workers in inherently dangerous jobs are fully aware of the dangers involved and receive compensation accordingly.
“(6) Landowners may not have expert knowledge of inherently dangerous work, the risks involved, and methods of avoiding such risks that an independent contractor engaged in such activity possesses.
“(7) Liability on the part of the landowner would create a class of employees, those of an independent contractor, with greater rights than the employees of the landowner for doing the same work.
“(8) To allow an employee of an independent contractor covered by workers compensation to invoke the inherently dangerous activity doctrine would (a) reward landowners who, despite their own lack of expertise, choose to perform work negligently resulting in injury to workers, (b) increase the risks to innocent third parties, and (c) punish landowners who seek expert assistance in an effort to avoid liability for injury.
“(9) A landowner who engages the services of an independent contractor pays directly or indirectly for the compensation coverage when the landowner contracts with the independent contractor.” Dillard, 255 Kan. at 725-26.
Based on these policies, the Dillard court stated the following:
“(1) A landowner is not hable to an employee of an independent contractor covered by workers compensation for injury sustained as a result of the breach of a nondelegable duty imposed upon the landowner by statute or ordinance.
“(2) The inherently dangerous activity exception to the nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation.
“(3) Our decision is limited to the facts herein and to those instances where the injured employee of an independent contractor covered by workers compensation seeks to hold a landowner hable under the theories discussed in the opinion.” 255 Kan. at 726-27.
Herrell insists that the trial court properly determined that the Dillard holding is factually distinguishable. Moreover, Herrell argues that the Dillard limited holding does not legally bar her negligence cause of action against National Beef. Herrell argues that she did not seek to recover from National Beef under the inherently dangerous activity doctrine or for breach of a nondelegable duty imposed upon the landowner by statute or ordinance: the two theories of landowner liability relied upon in Dillard to which the holding is explicitly limited. Rather, Herrell contends that she sought to recover from National Beef based solely on its own negligence for creating, maintaining, and failing to warn of a dangerous condition, that is, she maintains “the hole in the concrete was hidden because [National Beef] caused the floor to be covered in rendering.” In support, Herrell argues that the allegations in Dillard of the Archbishop’s direct liability for fading to get an inspection required by city ordinance are “[vjeiy different than actually taking an active role in creating a dangerous condition causing an injury” as National Beef allegedly did in this case.
Yet, as National Beef points out, Herrell overlooks the fact that one of the theories she advanced against National Beef s negligence was National Beef s failure to comply with an OSHA regulation governing measures to be taken in guarding floor holes into which persons can accidentally walk. In light of the Dillard holding that a landowner is not liable to an employee of an independent contractor covered by workers compensation for injuries sustained as a result of the breach of a nondelegable duty imposed upon the landowner by statute or ordinance, it is apparent that National Beef cannot be held liable to Herrell for the violation of an OSHA regulation. 255 Kan. 704, Syl. ¶ 3.
Moreover, several other theories of National Beefs liability would have been improper under the Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994) decision. Specifically, Herrell’s submissions to the jury that National Beef was at fault “d. In failing to keep the business place safe,” and “g. In failing to inspect the business premises,” are questionable. Both theories fall within Dillard’s holding that a landowner is not liable to an employee of an independent contractor covered by workers compensation for in jury sustained as a result of the breach of a nondelegable duty imposed upon the landowner by statute or ordinance. Those statutes or ordinances are generally enacted and impose duties upon landowners for safety purposes — such as the nondelegable duty of inspections imposed on the landowner by the city building code in Dillard. See 255 Kan. at 706; Restatement (Second) of Torts § 424 (1964) (recognizing as an exception to the general rule of § 409 that an employer of an independent contractor is not liable for physical harm caused to another by act or omission of the contractor or his servants: “One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.”).
The jury was instructed that it was not required to agree on which specific negligent act or omission caused Herrell's injuries and damages. It is impossible to tell from the jury’s general verdict if the percentage of fault it attributed to National Beef was based upon a theory precluded by the Dillard decision. When a jury returns a general verdict and one theory of liability upon which the verdict may have rested was erroneous, and when it is impossible to determine whether the jury relied upon the improper ground, the verdict cannot stand. See Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 315, 524 P.2d 1194 (1974) (“We state the rule as follows: In the absence of special findings by the jury, when an instruction is given on a theory of a case which is erroneous as a matter of law and the instruction is inclined to lead the jury to attach undue significance to evidence bearing upon another theory properly submitted, a reversal is required in the interest of fairness, even though the jury returned a general verdict. [Citations omitted.]”).
Because reversal is required based on at least one of the previously mentioned improper theories, this court must determine if remand for a new trial on any of Herrell’s remaining theories of National Beef s negligence for its creation, maintenance, and failure to warn of a dangerous condition is warranted.
Dillard is not as easily distinguishable as Herrell suggests. As National Beef argues in its brief, the public policy considerations underlying the Dillard holding — when read alone — would seem to equally apply to hold National Beef was not liable to Herrell on those theories as well: because she was an employee of an independent contractor covered by workers compensation. Accordingly, the issue becomes as follows: Can a landowner who engages an independent contractor, who is covered by workers compensation, be hable for work-related injuries to employees of the independent contractor for physical harm caused to the employees by a dangerous condition on the land under Restatement (Second) of Torts § 343 (1964)?
National Beef insists that the trial court’s interpretation of Dillard runs counter to Dillard’s public policy considerations. Specifically, National Beef argues as follows:
“Dillard says nothing about requiring a landowner sued by the employee of a subcontractor to show that the premises were ‘deserted’ or in the exclusive control of someone else. The Dillard court was concerned about the relationship of the parties in light of the public policies underlying the Kansas workers compensation and workplace laws, not the occupation and control of the area where an accident occurs. As such the trial court’s concern over the control of an area where the accident occurred should be disregarded.
“. . . Dillard does not draw distinction between activity undertaken by a landowner that may affect the area where the accident occurs and the liability of the landowner. . . . [T]he Dillard case is based on legal relationships among landowners, on the one hand, and contractors, subcontractors, and their employees, on the other hand. It is not based on factual distinctions that relate to the area where an accident may have occurred, such as whether the alleged negligence of the landowner was ‘active’ or ‘passive’ in nature.”
National Beef further contends that Dillard’s holding is a limiting interpretation of K.S.A. 44-504(a). That statute allows an employee, whose exclusive remedy from his or her employer is under the Workers Compensation Act, to bring an action against and recover damages from a third party. See Dillard, 255 Kan. at 709 (recognizing “[t]he bulk of the cases in which recovery against a third party has been allowed [under K.S.A. 44-504(a)] involve factual situations where the alleged negligence of a third party was not directly related to the work being performed by the injured employee, such as automobile accidents, medical malpractice, product liability, and similar actions”). According to National Beef, the rule announced in Dillard
“provides us with a definition of the type of ‘third party’ or ‘other person’ who can be sued under that statute, clarifying that K.S.A. 44-504(a) is intended to allow suits against unknown and unrelated third parties, not landowners upon whose ground and upon whose behalf (however direcdy) the injured employee was, by permission, doing his or her work.”
National Beef further notes that it could not invoke the “statutory employer” defense under K.S.A. 44-503(a) because building a roof was not an activity it ordinarily performed or was the activity inherent or integral to its meat packing business. Rather, National Beef contracted out the work to J-A-G as an expert. Thus, National Beef argues that it “stands in the same position as the Archbishop in Dillard and must rely on that case.”
Finally, National Beef cites this court’s recent opinion in Dye v. WMC, Inc., 38 Kan. App. 2d 655, 172 P.3d 49 (2007). Interestingly, Herrell also summarily asserts that Dye supports her position.
In Dye, this court reversed the trial court’s dismissal of the plaintiffs’ wrongful death petition filed against a hospital for failure to state a claim. 38 Kan. App. 2d at 655-59, 666. One theory of liability advanced by the plaintiffs was that the hospital breached a duty owed to decedents to exercise reasonable care to employ a competent and careful contractor. This theory of liability is another exception to nonliability of the landowner to an independent contractor’s employee for injuries caused by the negligence of an independent contractor as recognized, in Restatement (Second) of Torts § 411 (1964). 38 Kan. App. 2d at 662-64. The hospital argued it did not owe the decedents any duty through its contract with their employer.
Given the procedural posture of Dye, this court could not determine from the record what the decedents’ employment status was or the exact nature of the relationship between the hospital and the independent contractor (the air ambulance operator). See 38 Kan. App. 2d at 664. Nevertheless, the Dye court identified possible scenarios dependent upon the decedents’ employment status that could present themselves on remand and require a finding of no duty on the hospital’s part.
In particular, citing Dillard, the Dye court determined that the employment status could involve the first impression issue of whether an independent contractor’s employee qualifies as a “third person” for purposes of the exception to the nonliability of landowner to employees of independent contractors set forth in Restatement § 411. 38 Kan. App. 2d at 664-65. Dye recognized that other courts had generally held for policy reasons that the independent contractor’s employee was not a “third person” to whom a duty was owed for purposes of Restatement § 411. 38 Kan. App. 2d at 665. Dye then concluded that the policy reasons laid out by our Supreme Court in Dillard in support of its decision to limit the liability of landowners to employees of independent contractors “seem applicable to Restatement § 411.” 38 Kan. App. 2d at 666.
Dye, however, is admittedly distinguishable in that it involves divergent facts and theories of negligence. Except for its recognition of the policies in Dillard as possibly supporting a position on unknown facts, Dye does not lend direct guidance with respect to the viability of the claims brought by Herrell.
Indeed, if just the policy reasons set out in Dillard are considered, National Reef s position would be correct. The policy considerations support a conclusion that an employee of an independent contractor covered by workers compensation insurance cannot recover in negligence from the landowner, regardless of the employee’s underlying theory of the landowner’s liability. Moreover, some nonbinding authorities have interpreted Dillard in this way.
For example, Professors William E. Westerbeke and Stephen R. McAllister stated that “[t]he result in Dillard [was] not unfair under its specific facts”: “The plaintiff was covered by workers’ compensation, and public policy considerations can fairly support an interpretation of the nondelegable duty exception to exclude such a covered worker.” Westerbeke & McAllister, Survey of Kansas Tort Law: Part I, 49 Kan. L. Rev. 1037, 1096 (2001). In addition, they pointed out that the policy reasons “would apply equally to both exceptions [the peculiar risk doctrine and the breach of a nonde legable duty imposed by statute or ordinance] to the rule of employer nonliability.” 49 Kan. L. Rev. at 1096.
In addition, authors of one article for the Journal of the Kansas Bar Association regarding premises liability also broadly concluded that the Dillard court “held that landowners are not liable for injuries to the employees of independent contractors performing work on their premises.” (Emphasis added.) Giffin and Stayton, Landowners Beware: The Current Status of Premises Liability in Kansas, 64 J.K.B.A. 18, 23 (Jan. 1995). The authors further broadly described the Dillard holding without limitation as follows: “[T]he employee is limited to recovery under the Act for injuries sustained on the job and is not entitled to recovery against the landowner.” 64 J.K.B.A. at 24.
Moreover, in McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (1994), decided just 5 months after Dillard, our Supreme Court also hinted that it might be inclined to broadly interpret and expand its holding in Dillard. The McCubbin court first concluded that the tree trimming activity that led to the plaintiff s injury under the facts of that case did not, as a matter of law, constitute an inherently dangerous activity. 256 Kan. at 297. The court further noted:
“In our recent case of Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), we held that the inherently dangerous activity exception to tire nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation. [Landowner] urges us to expand our holding in Dillard to exclude the exception in all instances involving independent contractors and their employees. While the arguments in favor of doing so may have considerable merit, we do not deem it necessary or appropriate to consider expanding the holding of Dillard in this case. That issue is better left for another day when it may be directly determinative of the case then before the court.” McCubbin, 256 Kan. at 297.
In analyzing the McCubbin decision, Professors Westerbeke and McAllister noted that Dillard did not explicidy explain what role workers compensation played in characterizing the relationship between the landowner and the contractor’s employee for the purpose of defining the landowner’s duty:
“If the real reason for the holding in Dillard was to thwart attempted circumvention of workers’ compensation in order to get a common law recovery, the holding should be so phrased. Otherwise, as may have been the case in McCubbin, un protected workers will be automatically excluded in cases without any opportunity to determine whether a claim against the employer of the independent contractor might be appropriate.” Westerbeke & McAllister, Survey of Kansas Tort Law: Part I, 49 Kan. L. Rev. at 1097.
On the other hand, our Kansas federal district court has specifically limited Dillard to its facts. See Martin v. MAPCO Ammonia Pipeline, Inc., 1994 WL 409591 (D. Kan. 1994) (unpublished opinion). Granted, Martin is not binding on this court and is factually distinguishable from this case. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 669, 941 P.2d 1321 (1997) (“Federal court decisions on issues of state law are not binding on and have limited precedential effect in state courts.”). Nevertheless, we may draw guidance from Martin because it dealt with a landowner s liability for a work-related injury to an employee of an independent contractor even though the employee was covered by workers compensation.
In Martin, one person was seriously injured and another person killed during the course and scope of their employment with an independent contractor charged with maintaining an ammonia pipeline. The plaintiffs were covered by workers compensation. Plaintiffs sued the owner of the pipeline on theories of negligence, negligence involving a dangerous instrumentality, absolute liability based on ultrahazardous activity, and strict liability in tort. The owner of the pipeline sought summary judgment, arguing that as the owner of the pipeline, it could not be held liable under any theory for injuries to the independent contractor s employees under the rule announced in Dillard. In distinguishing Dillard, the Martin court stated:
“The Dillard Court . . . clearly did not contemplate extending tort immunity to eveiy party in a contractor-subcontractor line when workers compensation coverage is available. Yet that would be the effect if liability were based solely on the policy reasons stated [in tire case]. Instead, the Dillard Court restricted its holding to the facts of the case and the theories of liability discussed in the opinion.
“. . . [Those theories of liability] were both based on exceptions to the rule that the employer of an independent contractor is not hable for the negligence of the contractor or his employees. See Restatement (Second) of Torts, § 409 (1964). One of the claims alleged that defendant breached a nondelegable duty, and the court noted a blurring between ‘direct’ and ‘vicarious’ liability. See Dillard, [255 Kan. at 710, 715], Still, the claims asserted were based on the negligence by the independent contractor. In addition, two of the cases relied on by the Dillard Court specifically found that an owner employing an independent contractor could still be hable for its own negligence. See Tauscher, . . . 635 P.2d [at] 430 . . . ; Stockwell, . . . 733 P.2d [at] 1032.” (Emphasis added.) Martin, 1994 WL 409591, at *7.
Moreover, in adopting the Martin rationale, our Kansas federal district court in Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F. Supp. 2d 1166, 1175 (D. Kan. 2003), stated:
“Given this limitation by the [Dillard] court, and the interpretation of that limitation by this court, the rule announced in Dillard does not extend to the facts and claims of this case. . . . The theories propounded in Dillard are based on the negligence of the contractor or sub-contractor and seek to impose liability vicariously, through exceptions to the workers’ compensation bar. D & D is the subcontractor and general employer of plaintiff in the case at hand. Plaintiffs claims involve the negligence of McGee [alleged special employer], not that of D & D. Dillard does not shield a defendant from his own negligence and cases cited in the Dillard decision confirm the court’s decision to limit the holding to claims regarding the negligence of the sub-contractor.”
Although the plaintiff s injuries were covered by workers compensation, the Cuiksa court found no merit in the alleged special employer’s argument that the rule under Dillard barred the plaintiff s tort action. Cf. Mullins v. Tyson Foods, Inc., 143 F.3d 1153, 1156-57 (8th Cir. 1998) (The court similarly concluded that the seemingly broad test for premises liability announced in Matteuzzi—as relied upon by Dillard, 255 Kan. at 713—did not apply to any and all tort claims of employees of independent contractors who are covered by workers compensation insurance. An independent contractor’s employee could proceed on negligence claim against landowner for injuries suffered when he slipped and fell while away from the job site but on the premises because the independent contractor did not have control over the area where the employee was injured.).
Here, Herrell’s negligence claims against National Beef are not tied to an independent contractor’s negligence. Rather, she seeks to recover from National Beef for its own negligence in creating, maintaining, or failing to warn of a dangerous condition. Restatement (Second) of Torts § 343.
We are guided in our inquiry by several previous cases that have considered whether landowners may, in certain circumstances, owe a duty to employees of independent contractors who are injured while working on their property. Most significantly, in Gillespie v. St. Joseph Light & Power Co., 937 S.W.2d 373, 377 (Mo. App. 1996), rehearing and/or transfer denied, application to transfer denied (1997), the Missouri appellate court concluded that the policy reasons underlying the Missouri Supreme Court’s decisions in Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. 1991); and Matteuzzi v. The Columbus Partnership, L.P., 866 S.W.2d 128 (Mo. 1993) (as relied upon in Dillard) also precluded a plaintiff from recovering from the landowner under the more basic and general premises liability principles governing a landowner’s liability for injuries to invitees set out in Restatement (Second) of Torts § 343. 937 S.W.2d at 377-78.
Plaintiff argued that to allow the landowner to escape liability for failure to either correct or warn about a dangerous property condition arising as a result of the landowner’s own negligence “would be bad public policy, for it would encourage employers not to warn independent contractors about latent dangers on their property.” 937 S.W.2d at 378. The Gillespie court acknowledged that this was a valid policy concern. Nonetheless, the Gillespie court concluded that the plaintiff could not proceed on the dangerous condition theory of landowner liability because in Matteuzzi, the Missouri Supreme Court had
“necessarily balanced the type of policy concerns now raised with the policies weighing against imposition of liability. It determined that the latter policies— including the fact that the employee would be eligible for workers compensation benefits and that the cost of such benefits was necessarily figured in the fee charged by the independent contractor — outweighed other factors which might favor imposition of liability in cases of direct negligence.” Gillespie, 937 S.W.2d at 378.
The Gillespie court could not distinguish between the landowner’s alleged negligence in failing to warn about or correct the dangerous condition alleged to have caused the plaintiff s injuries from the allegations of the landowners direct negligence for latent dangers that the Missouri court had found were not actionable in other cases. 937 S.W.2d at 378. The Gillespie court found that the only way to reconcile the principles articulated in Zueck and other cases cited was to hold that those cases “have carved out exceptions to Section 343’s rule governing premises liability to invitees.” 937 S.W.2d at 379. The court then suggested that those exceptions will bar finding a landowner directly liable for injuries to an employee of an independent contractor covered by workers compensation unless the landowner’s conduct rises “to the level of ‘controlling the physical activities’ of [the injured employee’s] work or ‘the details of the manner in which the work was done.’ [Citation omitted.]” 937 S.W.2d at 379. The Gillespie court grounded its conclusion in the lack of sufficient control by the landowner in that case. Consequently, the court determined that the landowner could not be held hable for the employee’s injuries. 937 S.W.2d at 379.
Accordingly, the distinguishing factor in Missouri for holding a landowner hable for its own neghgence to an employee of an independent contractor covered by workers compensation is the degree of control the landowner retains over the details of the work being performed by the employee. Consequently, in Missouri, a landowner may be held directly liable for injuries sustained by an employee of an independent contractor covered by workers compensation if the landowner retains a degree of control that “ ‘go[es] beyond securing compliance with the contracts; the owner must be controlhng the physical activities of the employees of the independent contractor or the details of the manner in which the work is done.’ [Citation omitted.]” Gillespie, 937 S.W.2d at 377; see also Sutherland v. Barton, 570 N.W.2d 1, 5-6 (Minn. 1997) (recognizing the Minnesota Supreme Court was willing to hold a company hable for injuries to an independent contractor’s employees only in the limited circumstances where the company retains detailed control over a project and then fails to exercise reasonably careful supervision over the project); James v. Union Elec. Co., 978 S.W.2d 372, 376 (Mo. App. 1998) (“[T]he dichotomy between inherently dangerous activity and non-inherently dangerous activity [has been] abohshed. The focus for imposing liability on dangerous activities now revolves around the landowner’s substantial control of ‘the physical activities of the employees’ or ‘the details of the manner in which the work is done.’ [Citation omitted.]”); Stockwell v. Parker Drilling Co., Inc., 733 P.2d 1029, 1031-32 (Wyo. 1987) (owner can be directly hable to employee for owner’s own negligence if the owner maintains control over the work and exercises that control negligently).
The. Missouri appellate court also engaged the question of a landowner’s duty to an employee of an independent contractor in Callahan v. Alumax Foils, Inc., 973 S.W.2d 488, 491 (Mo. App. 1998), motion for rehearing and/or transfer denied (1998), which involved a question of whether the landowner controlled the plant where the employee was injured. In Callahan, the plaintiff employee made several arguments. The plaintiff employee, in one argument, maintained that even if the control test was proper in his case, there was a genuine issue of fact as to whether the defendant landowner had retained control over the entire plant with the exception of the room in which he was working. The employee’s argument was very similar to the trial court’s determination in this case that a question existed whether National Beef had breached its duty to Herrell because it had continued to operate the rendering plant. In rejecting the employee’s argument, the Callahan court stated: “[U]nder Missouri’s version of the control test, the plaintiff must show that the landowner was controlling both the jobsite and the activities of the contractor. [Citation omitted.]” 973 S.W.2d at 491. In reaching its conclusion, the Callahan court stated that it had relied on the holding in Lawrence v. Bainbridge Apartments, 919 S.W.2d 566, 570 (Mo. App. 1996), that to meet the control test, the landowner must have control over the contractor’s activities. In Lawrence, the defendant landowner had retained complete possession of its apartment complex while the plaintiff employee was washing the windows of the complex under a contract between the defendant landowner and the plaintiffs employer. In rejecting the employee’s claim, the Lawrence court stated that because the defendant landowner did not have control over the contractor’s activities, the employee did not meet the control test. 919 S.W.2d at 570.
Given our Supreme Court’s reliance on Missouri precedent (Zueck and Matteuzzi) in formulating the policy reasons behind its limited holding in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), it is reasonable to conclude that those policies would apply to bar a cause of action against a landowner under Restatement (Second) of Torts § 343, except in cases where the landowner exerts sufficient control over the details of the work. See also Jordan v. NUCOR Corp, 295 F.3d 828, 836 (8th Cir. 2002) (The court determined that the owner of the construction site did not retain sufficient control over the independent contractor’s performance to impose liability.). Here, the evidence does not show that National Beef exerted such control over the details of the construction project and the contractor’s activities that tort liability should be imposed on it; Hooper v. Pizzagalli Construction Co., 112 N.C. App. 400, 436 S.E.2d 145 (1993) (The North Carolina appellate courts have found that where an independent contractor is “free to perform its job according to its own independent skills, knowledge, training, and experience,” liability under a retained control theory will not attach to the general contractor or landowner.).
By contrast, Pennsylvania appellate courts have taken a seemingly different approach to a claim of landowner negligence for dangerous conditions under § 343 of the Restatement. In Farabaugh v. Pennsylvania Turnpike Com’n, 590 Pa. 46, 61, 911 A.2d 1264 (2006), the Supreme Court of Pennsylvania explained:
“The courts of this Commonwealth have spoken to the duty possessors of land have toward the employees of contractors. In cases where a possessor of land employs an independent contractor, this Court has concluded that a possessor of land must use ‘reasonable care to make the premises safe or give adequate and timely warning of dangers known to him but unknown to the contractor or his employees.’ [Citations omitted.] ‘However, the possessor of the land can insulate himself from liability by warning the contractor of the existence of any dangerous conditions on tihe premises which he knows or should know, and need not warn the contractor’s employees.’ [Citation omitted.] Moreover, a possessor will not be held responsible for defective conditions of the land if they are the product of the independent contractor’s work. [Citation omitted.]”
The Pennsylvania courts also follow the general rule that “landowners employing independent contractors are exempt from liability for injuries to an independent contractor’s employees absent an exercise of control over the means and methods of the contractor s work.” 590 Pa. at 61-62. Nevertheless, rather than relying on general claims for landowner liability under Restatement § 343 as the court did in Gillespie, the Pennsylvania appellate court’s analysis involves landowner liability for retained control over the work under Restatement (Second) of Torts § 414. Farabaugh, 590 Pa. at 61-62. The Pennsylvania appellate court noted that two distinct duties are at play in those sections of the Restatement. On the one hand, the landowner’s duty under § 343 involves the general duty of a possessor of land to business invitees, including employees of independent contractors. On the other hand, § 414 provides for liability for landowners’ own negligence where they retain active control over the means and methods of contractors’ work and job site: an exception to the general rule of nonliability. 590 Pa. at 64-65.
In addition, Pennsylvania courts apparendy allow an employee of an independent contractor to sue the landower under the inherently dangerous activity or “peculiar risk” doctrine, which Dillard explicitly rejected. See Farabaugh, 590 Pa. at 66-67.
Even under the approach of the Pennsylvania appellate courts, it is apparent that National Beef would be found to be insulated from liability under Restatement § 343 because there seems to be sufficient evidence that National Beef warned the general contractor of the existence of any dangerous conditions on the premises. J-A-G did not dispute that it was acutely aware of the rendering covering the floor, which was an everyday consequence of operating the facility, and J-A-G was obviously aware of the holes. Because the general contractor was aware of the conditions of the premises, there was no duty on National Beef s part to warn the subcontractor’s employees, such as Herrell. Thus, there is no support in the record for imposing liability under Restatement § 343. Moreover, there is no support for imposing liability under Restatement § 414 because National Beef had retained no control or direction over the work resulting in the injury.
There are two reasons for denying landowner liability to a contractor’s employee even in a case like the present one: where the landowner retains possession of the premises and continues its business activities while the contractor is completing its project with the help of independent contractors. First, a general contractor on a roofing project would normally control a project’s activities and also the safety measures taken during the project. During this particular project, J-A-G was aware that National Beef continued to operate its rendering facility during the project. Moreover, during National Beefs rendering operations, cow intestines, blood, and other nonconsumable meat products were known to spill onto and cover the floor of the plant. As part of the roofing project, large holes were excavated in the rendering plant’s existing floor for concrete pillars to support the roof. Despite the fact that J-A-G was aware that National Beef continued its rendering operations during the roofing project, J-A-G neglected to take safely measures to mark or cover the hole into which Herrell later fell. If National Beef had been controlling J-A-G’s activities on the project and had directed the safety measures that J-A-G needed to take, then National Beef would have been responsible for posting warnings about the holes, and liability for Herrell’s injuries would have attached to National Beef. Nevertheless, because the record is devoid of any evidence that National Beef exerted sufficient control over the details of the construction project and the contractor’s activities, National Beef is not hable in tort to Herrell.
Second, leading to our Supreme Court’s holding in Dillard, our Supreme Court reasoned that workers compensation statutes shield independent contractors who pay workers compensation insurance premiums from further tort liability for work-related injuries to their employees. Moreover, the court reasoned that landowners who employ independent contractors and who indirectly pay the cost of such insurance coverage should be similarly shielded from claims of contractors’ employees that occur from the contract work. Nevertheless, under the dissent’s reasoning, landowners who employ independent contractors would be exposed to a greater cost than if they had used their own employees to perform the work. This result would be unfair under the facts of this case. As a result, we determine that the policy reasons advanced in Dillard would bar the claims brought by Herrell.
Reversed and remanded to the trial court with directions to enter judgment in favor of National Beef. | [
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Opinion by
Clogston, C.:
But one question is presented : that is, are the conclusions of law sustained by the findings of fact? This question must be determined by an examination of the title to the property at the time the attachment was levied; and if Armstrong at that time had a leviable interest in the property, then the judgment should be reversed. The facts as found by the court show that the legal title to the property remained in Armstrong, subject to the interest and rights of Johnson under his contract Qf pechase. This contract transferred to Johnson the equitable right to the property, subject alone to Armstrong’s lien for the remaining unpaid purchase-money. This lien amounted to a security only, and when this purchase-money was paid he could be compelled to convey the legal title to the equitable owner of the property. (Jones v. Lapham, 15 Kas. 544; Stevens v. Chadwick, 10 id. 407; Orrick v. Durham, 79 Mo. 177; Woodward v. Dean, 46 Iowa, 499.) This doctrine has been fully settled by this court. In Holden v. Garrett, 23 Kas. 98, this question is discussed. In that case the question was, is a judgment a lien on property, where the legal title is held by the judgment debtor, and the equitable title or interest is held by the mortgagee, so as to defeat the mortgagee’s interest in the property ? It was held in that case that the judgment was not a lieu upon the bare, naked legal title, the equitable title being held by another. The statute provides that judgments shall be liens upon the real estate of a debtor within the county. It was said:
“ This evidently contemplates actual and not apparent own ership. The judgment is a lien upon that which is his, and not that which simply appeared to be his. How often the legal title is placed in one party when the equitable title, the real ownership, is in others. Now if the judgment is a lien upon all that appears, it will cut off all the undisclosed equitable rights and interests. To extend the lien to that which is not, but appeal’s of record to be the defendant’s, is to do violence to the language. ‘Real estate of the debtor,’ plainly means that which is in fact of or belonging to the debtor.” (See English v. Law, 27 Kas. 242; Ransom v. Sargent, 22 id. 516; Harrison v. Andrews, 18 id. 541; Forwarding Co. v. Mahaffey, 36 id. 152.)
In this case the attachment binds the property of the debtor from and after the levy. The writ directs the officer to attach “the lands, tenements, goods and chattels, stock, rights and credits, moneys and effects of defendant in his county, not exempt by law; ” and when so attached a lien is created. Now is this lien, under this order of attachment, greater than that created by a judgment? Surely not. A judgment is a lien upon all the property of the debtor subject'to the payment of his debts, and so is the attachment a lien upon the property of the debtor for the same purpose.
Plaintiff insists, however, that at the time of the levy of the attachment, he had no notice, actual or constructive, of the purchase by Johnson of the property. We think no notice was necessary. The plaintiff in error lost nothing by want of such notice. He had parted with nothing; was not a purchaser in good faith, relying upon the constructive notice that persons without actual notice may rely upon; he was trying to enforce a claim, and, with notice or without, it left him in the same condition. If he had been a purchaser in good faith, relying upon a legal title to the property, he would be protected.
Plaintiff again insists that his attachment at least bound the property and the defendant in error to the extent of the unpaid residue of the purchase-money, and that because Johnson, the defendant, paid the remaining purchase-money after the levy of the attachment, and after he had constructive knowledge of such levy, the plaintiff is entitled to a lien and judgment against the property to the extent of that unpaid purchase-money at the time of the levy. The court found that at the time of the payment of this purchase-money the defendant had no actual knowledge of the levy of the attachment ; that he paid the money in good faith upon his contract, and accepted the title. Under such circumstances the attachment could not bind the purchase-money; the land was not subject to attachment as the property of Armstrong, and consequently did not impart such constructive notice as would bind Johnson in the payment of this money. (French v. Debow, 38 Mich. 708.) If he had actual notice of the levy of the attachment upon the property, and of Armstrong’s fraud, and with this knowledge paid the purchase-money, he would not be protected. (See Bush, Sheriff, v. Collins, 35 Kas. 535; McDonald v. Gaunt, 30 id. 693; Gollober v. Martin, Sheriff, 33 id. 252.)
Counsel ask what remedy they are to pursue in case the attachment will not bind the property or the purchase-money, and the money cannot be reached by garnishment ? In answer we can only say, that all we have to deal with is the facts here presented. What the remedy would be under a given statement of facts, will not be determined in advance. All we do say, and all we are called upon to say in this matter, is, that the attachment created no lien upon the property, and could not operate to restrain and hold the unpaid purchase-money in the hands of the defendant. Good faith on the part of Johnson in the completion of the contract is fully shown by the findings of the court. Counsel, however, insist that the conclusions drawn from these findings are uot correct; that the fact of the hurried manner of the purchase, the manner of its sale in bulk, including the farm and personal property, the haste of the transaction, and the consideration paid, were sufficient to place Johnson upon his guard and give notice of Armstrong’s fraudulent intent. If these things are badges of fraud and of such a character as to set aside this transaction, we think it would unsettle the real-estate transactions, or many of them, in Kansas. This property was regularly left in the hands of a real-estate agent for sale; had remained in his hands for some days; he had offered it for sale; it had become known in the neighborhood; Johnson’s attention was called to it by a neighbor; he went and found the agent and owner, visited the land, examined the records to see that the title was good, made an offer for the premises, including the stock and farming implements thereon, and this offer was accepted and the contract drawn on the same day; part of the consideration was paid, and the transaction completed on the next day. We see no evidence of fraud in this. Apparent good faith characterized every transaction connected with it, so far as the defendant was concerned. The evidence fully shows this, and further, that the property had been purchased by Armstrong from the plaintiff in bulk, and purchased as an entire transaction, and by Armstrong sold in the same way. And now, because of the fraudulent transaction on the part of Armstrong in the purchase of this property from the plaintiff, and perhaps the sale of it for that reason to Johnson, we are asked to set aside the sale, notwithstanding the fact that good faith is shown on the part of the defendant, and that there are no circumstances connected with the transaction calculated to excite the suspicions of a prudent' man, or warn him of the fraudulent intent connected therewith.
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
Johnston, J.:
This is a proceeding in error to reverse the rulings of the district court of McPherson county in overruling a demurrer to the answer of the defendant, and in sustaining a demurrer to the reply of the plaintiff, and in the judgment given against her. In her petition, the plaintiff substantially alleged that in 1852, at Jonkoping, in the kingdom of Sweden, she was married to Karl Johan Thorn, and that they lived together there as husband and wife until 1862, and had six children born to them, four of whom died in infancy; that in 1862 he separated from her and went into a distant portion of the kingdom of Sweden, where he obtained a pretended decree of divorce, which was procured without notice to her, and was void; that after the pretended decree of divorce was granted he married Sophia Carlsdotter, now Sophia Salmonson, and soon afterward they emigrated to America, and lived together as husband and wife in McPherson county, Kansas, until August 17, 1881, when he died; that at the time of his decease he was the owner of 160 acres of land in McPherson county, of the value of $5,000, and of personal property worth $2,000; that a will made by him in 1869, which bequeathed all his personal property to the defendant, was probated, and under which she took and appropriated all the personal property of which he died possessed; that after the death of Thorn the defendant took the proceeds of the sale of the personal property and purchased the interest of his two children in the real estate mentioned, and that since that time the defendant has been in the possession of the land, claiming the same as the widow and legal heir of Thorn. The plaintiff therefore asked that she be adjudged to be the lawful widow of Thorn, and entitled to all the property, real and personal, which belonged to the estate of the deceased, and the issues and profits of the same, and for an accounting.
The defendant answered that Karl Johan Thorn was legally divorced from the plaintiff in February, 1864, in one of the district courts of Sweden, and she attached to her answer an authenticated copy of the decree. She further alleged that subsequent to the rendition of the decree, and while it was in full force and effect, she was legally married to Thorn in Sweden, and she set forth a copy of the marriage certificate, duly signed by the parish pastor. She further answered that the decree of divorce had been fully adjudicated in the courts of the kingdom of Sweden, and was duly affirmed by the court of highest resort in that kingdom, and she referred to and made a part of her answer an exhibit which embodies a transcript of the proceedings of the courts in that respect. The plaintiff demurred to the answer, alleging that it was insufficient to constitute a defense. The demurrer being overruled, she filed a reply in which she alleged in substance that she had never received any personal or other notice of the divorce proceeding, or of any of the proceedings referred to in the answer; that she never made any voluntary appearance or otherwise submitted her cause or any cause personal to her as the wife of J. C. Thorn, in any of the courts of the kingdom of Sweden. The court sustained a demurrer to the reply, on the ground that it did not state facts sufficient to constitute a defense to said answer. These two rulings are the ones .upon which error is assigned.
The ruling upon the answer is certainly not erroneous. The averments there made show that a decree of divorce was granted by a regularly-constituted judicial tribunal of the kingdom of Sweden, and the decree is regular and valid upon its face. .Both of the parties were natives and residents of the kingdom of Sweden, and were subject to its laws and to the process of its courts, at the time the action for divorce was pending and determined. The divorce was granted to Thorn on the ground that the plaintiff had abandoned him, and it is recited that notice by publication was given for a year and a night before the judgment of divorce was rendered, in accordance with law and the rules of the church; and this judgment wras in full force and effect when Thorn and the defendant were married. If these averments are established, they will of themselves constitute a complete defense to the plaintiff’s action. But the answer goes farther, and states that in a subsequent proceeding the validity of the judgment of divorce was questioned and determined in the higher courts of that country, and in which both the plaintiff and defendant, as well as Thorn, appeared and were heard. It is there shown that at that time Thorn and the defendant were married, and the plaintiff then made known in that proceeding that she did not wish to change or disturb the marriage relation existing between Thorn and the defendant; and the supreme court of Sweden, before which the case was taken and heard, affirmed the divorce which had been granted. That decision was taken on appeal before ’ his royal highness, where it was again affirmed. It requires no argument to demonstrate that these facts, if proven, completely answer the charges of the plaintiff.
The ruling made on the demurrer to the reply, however, cannot be sustained. While the judgment of divorce appears to have been granted by a competent tribunal which had jurisdiction of the subject-matter, as well as of the.parties, and is therefore entitled to liberal presumptions, it is not so far conclusive as to preclude the plaintiff from showing that it was rendered without jurisdiction, or was fraudulently obtained. The reply specifically denies that the plaintiff was ever served with process, or had her day in court in any of the proceedings mentioned in defendant’s answer. If in truth there was no service, personal or otherwise, and she had never been given an opportunity to be heard, she cannot be bound or affected by any of the orders or judgments made in those proceedings. A foreign judgment rendered without jurisdiction may be assailed in either a direct or a collateral proceeding. Although the recitals contained in the judgment that service was made raise a strong presumption in favor of the jurisdiction and of the truth of the recitals, yet the plaintiff may show by extrinsic evidence, if she can, that no service was actually made. Strong pi'oof will be required to overthrow the presumption of jurisdiction raised by the recitals, but if it is clearly shown that the plaintiff was not served with process, and did not volun tarily appear or submit to the jurisdiction of the court, the recitals are of no value. (Litowich v. Litowich, 19 Kas. 451, and cases cited; Mastin v. Gray, 19 id. 458; Pollard v. Baldwin, 22 Iowa, 328; Lazier v. Westcott, 26 N. Y. 146; Freeman on Judgments, 588, et seq.)
The judgment of the district court will be reversed, and the cause remanded with the direction to overrule the demurrer filed against the plaintiff’s reply.
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 November 23, 1858,William J. Turner was the owner of the real estate in controversy; upon that day he executed a mortgage upon the real estate to Henry Aten, to secure the payment of two hundred dollars, which mortgage was recorded on December 2,1858; upon the same day he conveyed to John N. Jefferson the real estate by warranty deed, which was recorded November 29, 1858. Henry Aten assigned his mortgage to C. M. Aten, who brought an action to foreclose the same and recovered judgment thereon, October 13, 1862. In that action William J. Turner and Henry Aten were made defendants. Under a sale upon the foreclosure of the mortgage, C. M. Aten obtained a sheriff’s deed to the real estate, on December 12, 1863. David T. Mitchell obtained a warranty deed of the real estate from John N. Jefferson, on March 28, 1884. C. M.Aten filed his petition against David T. Mitchell for the purpose of quieting title in himself to said real estate. Upon the trial the court rendered judgment for the plaintiff, as prayed for. Mitchell excepted, and brings the case here.
The foreclosure proceedings in the action of C. M. Aten against William J. Turner, et al., were received in evidence, without objection. After the argument of the case the plaintiff moved to strike from the evidence this record, for the reason that it was not signed by the district judge. This motion was sustained, and this ruling is complained of. The record was offered by Mitchell to prove that the judgment of foreclosure under which Aten claimed title was absolutely void. This upon the ground that the judgment was taken by default, on October 13,1862, when defendants had twenty days after October 25, 1862, in which to appear and answer.
It is not necessary for us to pass upon the question whether the district court erred in refusing to consider as evidence the record of the foreclosure case of Aten v. Turner, et al. Turner was notified by publication to appear and answer the petition on or before twenty days after October 25, 1862. The service of publication was completed prior to October 13, the date of the judgment. Judgment was not rendered, therefore, until several days after service. Jurisdiction having been obtained, the fact that the judgment was ' ^ o xz> rendered sooner than it should have been does not make the judgment void; a judgment thus rendered is irregular only. It might have been set aside by motion, or upon proceedings in error, but the judgment is not vulnerable to a collateral attack. (Code, § 569; Freeman on Judgments, §§119, 126, 135; Town of Lyons v. Cooledge, 89 Ill. 529.)
The next complaint is, that the findings of fact of the trial court do not support the conclusions of law. It is said that as the mortgage and the deed were both executed and acknowledged November 23,1858, and as there is no reference in the mortgage to the deed, or in the deed to the mortgage, it must be presumed, in the absence of proof to the contrary, that the grantees acted in good faith; and as it appears that the deed was recorded November 29, 1858, and the mortgage Decern ber 2,1858, the prior record of the deed to Jefferson gave him the superior equity, and therefore that the mortgage never had any validity as to Jefferson, or to Mitchell claiming under him. If we were to presume that the mortgage and deed were delivered at the same time, it would necessarily follow that the grantees knew of the existence of the two instruments, and it would be a natural conclusion to say that Turner gave the mortgage first, and then sold the land to Jefferson with the understanding that he should pay the mortgage, as his warranty would oblige him to do. This view would be in favor of holding that Turner acted in good faith to all parties. But aside from this, the finding of the trial court that Mitchell was the agent of Aten in taking the mortgage from Turner, November 23,1858, and was also his agent in recording the same, fully sustains the judgment rendered. The statute relating to the filing and recording of conveyances of real estate protects no one but innocent and bona fide purchasers and holders. If it be true that Jefferson had the superior equity on account of the priority of the record of his deed, he obtained this equity by the negligence or bad faith of Mitchell. It was the duty of Mitchell, as the agent of Aten, to have filed for record the mortgage within a reasonable time after it came into his possession. If Mitchell had done this, the mortgage would have been recorded within a day or two after November 23, 1858. It was not recorded, through the fault of Mitchell, until December 2, 1858, three days after the deed was of record. Mitchell cannot be permitted in a court of equity to profit by his own wrong against his principal. It is a sound principle that he who prevents a thing from being done, shall not avail himself of the non-performance he has occasioned.
We are not passing upon the rights or equities of Jefferson ; therefore it is immaterial whether he had the superior equity in the real estate, or not. Mitchell, although he derived his title from Jefferson, cannot be protected by the priority of the record, because such priority is founded upon his own negli genee or wrong. He should suffer for this negligence or bad faith, and not his principal.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action in the nature of ejectment, brought in the district court of Shawnee county by Emma B. Stagg, against Eugenia D. Campbell and J. W. Campbell, for the recovery of certain real estate. Both parties claimed title under tax deeds. Mrs. Campbell was in the actual possession of the property, and Mrs. Stagg brought this action to eject her therefrom. The plaintiff’s tax deed was executed and recorded on June 28,1875, and was executed in pursuance of a tax sale made in May, 1872, for the taxes of 1871. Mrs. Campbell’s tax deed was executed on May 8, 1876, and recorded on May 10,1876, and was executed in pursuance of a tax sale made in May, 1873, for the taxes of 1872; and the deed also included the taxes for the subsequent years of 1873, 1874, and 1875. Both tax deeds were regular and valid upon their face. As Mrs. Campbell’s tax deed was the last one executed, and executed for the taxes of the latest year, it is paramount and superior to Mrs. Stagg’s. (Board of Regents v. Linscott, 30 Kas. 241; Belz v. Bird, 31 id. 141; McFadden v. Goff, 32 id. 415; Harris v. Curran, 32 id. 580, 584.) This action was not commenced until June 22,1885, more than nine years after the last tax deed was recorded, and hence the action is barred by the statute of limitations, and Mrs. Campbell’s title to the property has become complete and absolute. (Walker v. Boh, 32 Kas. 354; Harris v. Curran, 32 id. 580; Doyle v. Doyle, 33 id. 721, 725; Beebe v. Doster, 36 id. 666.)
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the defendants below, and against the plaintiff below', for costs. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally commenced on October 18, 1884, in the probate court of Miami county, by Mary I. Dye,-by filing an account for $3,166 against the es tate of Byron E. Dye, her former husband, for the support, education and maintenance of their minor son, Robert C. Dye. The administrator, J. F. Chandler, filed a motion requiring her to itemize her account, which motion was sustained, and on November 11, 1884, an amended statement, containing the various items of her account, amounting to $3,628.50, was filed. Afterward a trial was had before the probate court, and the claim disallowed on the authority of Harris v. Harris, 5 Kas. 46. An appeal was then taken by Mary I. Dye to the district court, and on February 2, 1885, she filed her first amended petition. To this petition a demurrer was interposed, which was sustained by the court on the authority of Harris v. Harris, supra. Having failed to establish her account as a claim against the estate of her former husband, she then, with leave of the court, and on March 24, 1885, filed her second amended petition. In this petition, and for the first time, she setup a contract between herself and Byron E. Dye, under which contract, she alleged, he was to pay her for the support, education and maintenance of their minor son. By the consent of the parties, and the order of the court, the cause was then referred to a referee for trial, and on June 18, 1885, a trial was had before the referee. The referee found that there was such a contract as was alleged in the plaintiff’s petition, and found that the sum of $2,747.50 was a reasonable sum for the support, education and maintenance of said minor son, and that Mary I. Dye was entitled to a judgment for this amount against the estate of Byron E. Dye. A motion to set aside the referee’s report on various grounds, and also a motion for a new trial on the ground of newly-discovered evidence, were filed by the defendant, and overruled by the court, and the defendant then brought the case to this court for review. All the evidence heard on the trial before the referee is preserved in the case, and brought to this court.
The only question presented to this court is, whether the evidence establishes a contract between Byron E. Dye and the plaintiff, whereby he agreed to pay her for the support, education and maintenance of their minor child. The facts in this case, stated in brief, are substantially as follows: Byron E. Dye and Mary I. Dye were married on May 14,1855, and were divorced on June 16, 1877, by a decree of the circuit court of Jackson county, Missouri. During their marriage they had two children — one a girl, Frankie Dye, and the other a boy, Robert C. Dye, aged respectively at the date of the divorce, about 18 and 8 years. The father supported ’ and maintained the daughter. The court granting the divorce gave the custody and control of the minor son to the mother. In November following the granting of the divorce, Mary I. Dye left Kansas City, Missouri, and removed to Chicago, Illinois, taking with her their minor son, Robert, where they have since resided. Byron E. Dye continued to reside.in Kansas City until March, 1881, having about that time married again, when he with his wife removed to Miami county, Kansas, where they continued to reside up to the date of his death, which occurred on September 26, 1883. At the time of the divorce, June 16, 1877, the wealth of Byron E. Dye was variously estimated at from $40,000 up to $50,000; his most intimate business acquaintances placing it at about $45,000. By the decree of divorce, Mary I. Dye received of this amount $5,000 as alimony. This is all that she was shown to have received, until after the trial, when it was shown on the hearing of the motion for a new trial, that by an amicable arrangement between herself and Dye, she in fact received, in all, about $16,000. Mrs. Dye could not testify in this case in her own behalf with respect to any transaction or communication had personally between herself and Byron E. Dye, which occurred before the divorce was granted. (Civil Code, §§ 322, 323.) But with respect to all other matters, and all matters occurring since the divorce, she was as competent to testify as any other person. About the only evidence in the case tending to show that any contract was ever made between Byron E. Dye and Mrs. Dye for the support, education and maintenance of their minor son, is the following.
Mrs. Rilla Webster testified with respect to a conversation had between herself and Mr. and Mrs. Dye, on the day that, but before, the divorce was granted, among other things as follows:
“ I started to leave the room, when Byron called me back and said, ‘ I wish you to hear what I have to say. ’ He then said, ‘ he would have to support Robert anyway. ’ This was said by him in connection with what he had been saying about the amount he would give his wife, Mary I. Dye. He seemed to be defending himself on account of the small amount he was giving Mrs. Dye.”
John F. Gregory, a cousin to Byron E. Dye, testified among other things as follows:
“I was intimately acquainted with Byron E. Dye during his lifetime. I had several conversations with him in relation to his boy, Robert, since he (Dye) and Mary I. Dye were divorced. He said he had Robert to support, and also that he had his daughter, Frankie, to support. This conversation-was after he was married to his second wife, Augusta Kreinhop, and before his daughter was married. At another conversation, about a year afterward, he spoke in relation to the support of his children. He seemed to speak as though the support of his daughter was costing him too much money. He said it was better for Robert to be with his mother, for he did not want the care of him; that it would cost him less for his mother to take care of him.”
On February 29,1880, Byron E. Dye wrote a letter to Mrs. Dye, which contains, among other things, the following:
“Mary, I have made arrangements with Willoughby, Hill & Co., clothiers, corner Clark and Madison, to furnish Robert his clothes on my credit. ... I know you do not want to ask me for the money for his clothes, and I cannot tell when he needs them, nor how much to send; and furthermore, I neglect it when I am not where he is. I hope to be in a position, when he becomes of the proper age, to give him such education as his tastes and future prospects in life will require. I am highly pleased with his progress. . . . While I do not want to be extravagant, I want him to look nice.”
On December 12,1880, Byron E. Dye wrote a letter to his son, which contains, among other things, the following:
“I hope you will write me a letter at least once a month, and not wait until you want some more clothing.”
H. H. Grimshaw testified with regard to a conversation had between himself and Byron E. Dye, in 1880, or in 1881, as follows : “ He said he had a boy to support, who was at school.” On April 20, 1882, Byron E. Dye wrote a letter to his son, which contains, among other things, the following:
“ Deab Robbie : Yours of the 22d duly received. Come as soon as you want to. If your mother will advance your ticket and expenses, I will send it to her as soon as I am able to go to town and get a draft.”
On April 30, 1883, Byron E. Dye wrote a letter to Mrs. Dye, which contained, among other things, the following:
“Mary, I wish you would ask your lawyer if your custody of Robert, according to the decree of divorce, affects his heir-ship to my estate.”
After the divorce, and up to the time of the death of Byron E. Dye, he furnished clothing, and money for clothing, to his son to the amount of $184. The evidence tending to show that there was no contract between Byron E. Dye and Mrs. Dye that he should pay her for the support, education, and maintenance of their minor son is as follows. Mrs. Dye testified on the trial, among other things, as follows:
“ I always kept a watch and oversight over Mr. Dye, even after he left my house. I kept no rigid account of my bills, no separate account for the boy, no separate account for board. For nearly two years I paid $10 per week for board, and I count it from that. I made up the account about the time I brought in my bill. I never aslced Mr. Dye for any pay, so I kept no account; but, as stated before, only since I was appointed guardian. I counted from the last year. I only know in a general way that I paid $130 per year for his clothing, and from the frequency of his having to have a new suit of clothes; never asked for any that I did not get. I may have asked for the clothes. Mr. Dye furnished clothes whenever he wished for it; laundry expenses I paid. It is an estimated account. I never asked Mr. Dye to pay any laundry bill. The doctor’s bill — I paid it. I brought it up to last year in my account. I never gave the boy less than 25 cents per week; kept no separate account. When he wanted a book I bought it and paid for it; was charged to nobody. I esti mated same as I did the other accounts. I never made out any bills before. . . . The relation between us from the time of the divorce up to the time of his death was a business relation. • Mr. Dye assisted me up to the time of his death. I can’t say that I asked his advice. He offered to reloan the money for me. No; he never demanded the child, but at times felt bitter about it. Frankie’s father supported her. . . . The divorce was granted owing to his fault. Judge, I had no notion to charge until he refused to accept a compromise we had come to. I accepted the pittance that was offered me. I expected to live until he had used up all his property. I expected the father would take care of all his family as long as he was able. So long as Byron lived we would have had what was just. . . . The conversation spoken of by Mrs. Webster took place in the forenoon. Nothing was said about the support of the child between me and Mr. Dye. It would be impossible for me to state everything which occurred, owing to the effect upon my mind. Nothing more was said about the divorce, as I can remember. He expected me to withdraw the suit.”
On December 25, 1879, Robert C. Dye wrote a letter to his father, which contains, among other things, the following: “I thank you for the present. I think I will buy myself a suit of clothes with the money.”
On January 14, 1880, Robert C. Dye wrote a letter to his father, which contains, among other things, the following: “ I thank you for the money; I can buy myself a nice suit of clothes with it.” On June 17, 1880, Byron E. Dye wrote a letter to Mrs. Dye with reference to purchasing clothing for Robert at the clothing house of Willoughby, Hill & Co., which letter contains, among other things, the following: “If they object, have Frankie pay for them out of my money she has on hand for fence.” On the same day Byron E. Dye wrote a letter to his son, which contains, among other things, the following: “You can go to Willoughby, Hill & Co., and get your clothes. I will write your mother in regard to it.” On December 1,1880, Byron E. Dye wrote a letter to his son, which contains, among other things, the following: “I send you a draft for $20. I want you to get a nice suit, and then I want you to keep it nice.” On December 17,1880, Robert C. Dye wrote a letter to his father, which contains, among other things, the following :
“I received your letter from Frankie, with many thanks. I will give you an account of what I bought with my money. It was as follows.”
And then follows an itemized statement of the clothes bought for $20, together with a statement that his mother was pleased with his clothes.
On November 17, 1882, Byron E. Dye wrote a letter to his daughter Frankie, which contains among other things, the following:
“Suppose I die soon, all I have except Gussie’s dower goes to you and Rob. You would not see your mother want. If I live and she should unfortunately lose her money, does anybody think I would ever see her want ? I would divide my last dollar with her. I regard my obligations to support her during life just the same as if no divorce had ever been granted.”
Other letters passed between the father and son, of like character to those above quoted.
The burden of proof in this case rested upon the plaintiff, Mrs. Dye, and we do not think that she made out her case. She did not, by the evidence or otherwise, show that any contract ever existed between herself and Byron.E. Dye, requiring him to pay her for the support, education or maintenance of Robert C. Dye. Mrs. Dye virtually testified on the trial that no such contract was ever made. And further: The divorce was granted on June 16, 1877; Byron E. Dye died September 26, 1883; and yet no claim was ever made by her to him that he was liable or in duty bound to pay her for anything furnished by her to Robert C. Dye; nor was any such claim ever made against his estate until October 18, 1884, when for the first time she made such claim in the probate court. And no claim was ever made that any contract ever existed between Mrs. Dye and Byron E. Dye imposing any obligation upon him to pay her for anything furnished by her to Robert C. Dye until March 24,1885, when for the first time she made such claim by setting it up in her second amended petition. And further: Mrs. Dye never kept any account of her expenses in supporting, educating or maintaining Robert C. Dye, and made no charge for any such things as against anybody until she filed her claim in the probate court on October 18, 1884. What Mrs. Webster heard Byron E. Dye say on the day the divorce was granted, was not said to Mrs. Dye, and in all probability she did not hear it, and of course what was said to Mrs. Webster, whether in the presence or absence of Mrs. Dye, could not constitute a contract between Byron E. Dye and Mrs. Dye. The clothing and the money for clothing furnished by Byron E. Dye to his son Robert, were evidently furnished as presents, and were not furnished in fulfillment of any contract. The son so considered them, and it would be natural that the father should make presents to his son. Besides, it would be bad policy to hold that a father could not give his son a present without becoming liable to pay his divorced wife, the son’s mother, for everything which she might furnish to the son. Nothing that was said by Byron E. Dye to Mr. Gregory or to Mr. Grimshaw would constitute a contract between Byron E. Dye and Mrs. Dye. Indeed, it is evident from the evidence in the case, that no such contract ever existed.
We think there was not sufficient evidence to sustain the report of the referee, and therefore the judgment of the court below will be reversed, and . the cause remanded for a new trial.
All the Justices concurring. | [
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McAnany, J.:
Santa Rosa KM Associates, LTD., P.C. (Santa Rosa), challenges the validity and enforceability of the prepayment provision in a promissory note held by Principal Life Insurance Company and serviced by Principal Real Estate Investors, LLC. (collectively Principal). In its cross-appeal, Principal challenges the district court’s denial of attorney fees after Principal was granted summary judgment on Santa Rosa’s claim.
Uncontroverted Facts
The uncontroverted facts in the parties’ competing summary judgment motions establish that in September 1991, Dennis Eslde was the owner of the Santa Rosa Shopping Center in Olathe. He borrowed $6,375,000 from Principal and gave Principal his promissory note in that amount. The note was secured by a mortgage on the property. The note contained the following, which is referred to as the “make whole premium” provision:
“No privilege is reserved by the [debtor] to prepay any principal of this note prior to Maturity Date, except . . . after giving [60] days’ prior written notice to the holder of this note, to prepay in full ... all principal and interest to the date of payment, along with . . . [any other relevant charges, including] a ‘Malee Whole Premium.’ The Make Whole Premium shall be the greater of [either 1%] of the principal ... to be prepaid or a premium calculated as follows:
(a) Determine the ‘Reinvestment Yield.’ The Reinvestment Yield will be equal to the yield on the 8 3/4 May 2017 U.S. Treasury Issue (‘primary issue’) published two weeks prior to the date of prepayment and converted to an equivalent monthly compounded nominal yield.
(b) Calculate the ‘Present Value of the Mortgage.’ The Present Value of the Mortgage is the present value of the payments to be made in accordance with this note (all installment payments and any remaining payment due on the Maturity Date) discounted at the Reinvestment Yield for the number of months remaining from the date of prepayment to the Maturity Date.
(c) Subtract the amount of the prepaid proceeds from the Present Value of the Mortgage as of the date of prepayment. Any resulting positive differential shall he the premium.”
Both the note and mortgage contained liquidated damages provisions that applied if the holder of the note accelerated payment due to the borrower’s default. In that event, liquidated damages were to be calculated using the same “make whole premium” used in instances in which the debtor prepays the note.
The note also contained a promise by the debtor to pay “all reasonable costs and expenses, including attorney’s fees, incurred by the holder [of the note] in connection with any default or in any proceeding to enforce any provision of this note or any instrument by which it is secured.” The mortgage included the following:
“[Borrower] agrees that all reasonable costs . . . including attorneys’ fees, incurred or expended by [Principal] arising out of . . . any action, proceeding or hearing, legal, equitable or quasi-legal, including the preparation therefor and any appeal therefrom, in any way affecting or pertaining to this mortgage, the Note or the premises, shall be promptly paid by [Borrower.]”
Santa Rosa is a Florida real estate investment company. Fred Chikovsky, the president of Santa Rosa, is a lawyer and real estate investor. Over the years, Chikovsky has been involved in the acquisition and financing of seven real estate properties. Five of those transactions involved similar prepayment provisions. In four of those transactions, he negotiated either a waiver or some form of settlement of the prepayment provision.
In February 1998, Santa Rosa purchased the shopping center from Eskie and assumed his note and mortgage. The assumption required Principal’s consent. Accordingly, Santa Rosa and Principal agreed to modify the mortgage to change the name of the borrower and to delete provisions relating to future sales, transfers, or conveyances of the mortgaged property. None of the changes involved the “make whole premium” provisions. Since assuming the note Santa Rosa has made all the required payments and is not in default.
In April 2005, Santa Rosa considered an early pay-off of the outstanding $4,865,142.24 principle balance on the note. Principal informed Santa Rosa that under the formula in the promissory note the “make whole premium” would be $1,636,268.96. As a result, Santa Rosa commenced this declaratory judgment action seeking a declaration that the “make whole premium” is invalid and unenforceable. Principal defended its validity and asserted a counterclaim for attorney fees. In the course of discovery, Principal acknowledged through its corporate representative, Todd Everett, that upon prepayment of a loan the proceeds are normally reinvested in a manner that exceeds the U.S. Treasury bill rate of return.
Summary Judgment
The parties filed cross-motions for summary judgment. The court entered summaiy judgment, declaring the “make whole premium” provision to be valid and enforceable. While the court found Principal’s claimed attorney fees to be reasonable, it denied relief on Principal’s counterclaim because Santa Rosa presented a “legitimate question for a declaratory judgment suit” and because K.S.A. 58-2313 allows attorney fees only in collection actions. Santa Rosa appeals. Principal cross-appeals the district court’s denial of attorney fees.
Since Santa Rosa’s appeal asks us to review the district court’s entry of summaiy judgment, we consider de novo the cross-motions for summary judgment on the issue of the validity of the “make whole premium” provision using the same standards applicable in the district court. Those standards are well known to the parties and are set forth in detail in Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
1. Expert Testimony
Santa Rosa’s first three points of error relate to the district court’s claimed erroneous reliance on expert testimony in granting summary judgment while preventing Santa Rosa from taking additional depositions to obtain its own expert testimony with which to controvert assertions by Principal’s expert which were contained in Principal’s claimed statements of uncontroverted fact.
Prior to filing the cross-motions for summaiy judgment, each party made its expert witness designations. Nevertheless, the parties agreed that the case appeared ripe for summary judgment without input from the experts; and if that proved not to be the case, the parties could engage in additional discovery and depose the expert witnesses after summaiy judgment was denied. The parties each contended in its summaiy judgment motion that there remained no genuine issue of material fact and each was entitled to judgment as a matter of law on the issue of the validity of the “make whole premium” provision.
Santa Rosa claims that in entering summaiy judgment the district court relied on expert testimony from Todd Everett, Princi pal’s corporate representative, to the effect that the formula for Principal’s “make whole premium” provision is the standard formula used throughout the industry. Everett had been deposed by Santa Rosa and, in the course of his deposition, he characterized the formula for Principal’s “make whole premium” in this fashion. Principal contends that the district court did not rely on this testimony in granting summary judgment, though both sides cited some of Everett’s deposition testimony in their respective statements of uncontroverted facts.
It is a futile exercise to consider further the conflicting claims on this point. Santa Rosa claims the district court should not have considered Everett’s testimony. Principal claims the district court did not consider it in its ruling. Since our review is de novo, we will simply consider the cross-motions anew without reference to the Everett testimony regarding the industry standard to determine if there remains a genuine issue of material fact and, if not, which party is entitled to judgment as a matter of law on the issue of the validity and enforceability of the “make whole premium” provision. If we determine there remains a genuine issue of material fact on the validity issue, our recourse will be to reverse and remand for further proceedings.
2. The “Make Whole Premium” Provision
Santa Rosa asserts that the following legal conclusions necessarily arise from the uncontroverted facts: (1) The “make whole premium” provision is an unenforceable penalty, (2) the provision is unenforceable as liquidated damages, and (3) the provision is unenforceable because it results in a windfall to the lender. Finally, Santa Rosa contends that there remained genuine issues of material fact as to whether the “make whole premium” was unconscionable, thereby rendering summary judgment premature.
First, we note that in urging the invalidity of the “make whole premium,” Santa Rosa is critical of the provision in the “make whole premium” for payment of one percent of the principal balance of the loan on prepayment because it bears no actual relationship to Principal’s loss. This provision did not apply to Santa Rosa. The one percent factor did not enter into the calculation of the “make whole premium” in this case, so we need not consider it further.
In discussing a provision in a promissory note which limited the debtors entitlement to prepay the note, our Supreme Court noted in Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 670-71, 876 P.2d 1362 (1994):
“American courts have traditionally taken the view that competent adults may make contracts on their own terms, provided they are neither illegal nor contrary to public policy and, in the absence of fraud, mistake, or duress, that a party who has fairly and voluntarily entered into such a contract is bound thereby, notwithstanding it was unwise or disadvantageous to that party.”
Here, it is uncontested that Santa Rosa was represented by counsel in negotiating to assume Eskie’s note and mortgage to Principal. The president of Santa Rosa was an experienced lawyer and real estate investor who had negotiated with lenders before regarding prepayment provisions such as this “make whole premium” provision. The transaction was at arm’s length and untainted by fraud, duress, mistake, or overreaching. The only impediment to enforcement of the “make whole premium” would be a finding that it is against our public policy.
On that issue TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 898 P.2d 1145 (1995), is instructive, though not controlling. In TMG, the lender sought to enforce personal guaranties following the borrower’s default on a commercial real estate loan. The district court determined that the guarantors were responsible for one-third of the outstanding indebtedness at the time of default. The mortgaged real estate was conveyed to the lender, who then sold it. The district court found that since the proceeds from the sale exceeded one-third of the indebtedness and since the personal guaranties applied only to one-third of the indebtedness, the obligations of die guarantors were satisfied and the guarantors were discharged.
The lender appealed, claiming, among other things, that the district court erred in calculating the obligations of the guarantors by fading to include die prepayment premium due the lender when default was declared. The guarantors contended that the district court did not err in failing to consider the prepayment premium because the prepayment premium was invalid and against public policy. While the default provision in the promissory note referred to the “prepayment premium,” the parties agreed, as did the court, that the “prepayment premium” was to be interpreted using the rules governing liquidated damages, since this was not a case of an alternate means of contract performance but rather compensation for the lender s loss due to the borrower’s breach. 21 Kan. App. 2d at 249.
Thus, TMG differs from our present case in that it dealt with liquidated damages after default, while the case now before us deals with prepayment of a current loan. Nevertheless, the court’s characterization of the prepayment premium in TMG applies equally to Principal’s “make whole premium.” In upholding the lender’s prepayment premium, the court in TMG stated:
“The formula used to calculate the prepayment premium is based on the outstanding principal at the time of prepayment and reflects fluctuations in economic conditions between the execution of the mortgage and the time of prepayment. It is not a fixed charge regardless of the amount owing and unreasonable as an estimate of damages for that reason. [Citation omitted.] It does not guarantee equal damages regardless of whether the creditor is favored by early repayment because of rises in interest rates or damaged by loss of a rate of return no longer available in the market at the time of prepayment. [Citation omitted.] Instead, it attempts to estimate the damages that the creditor might face as a result of prepayment under future market conditions unknown at die time of execution.” 21 Kan. App. 2d at 250-51.
In TMG, the prepayment premium was contained in the default provision of the promissory note and related to damages arising from default. However, in instances of loan prepayments, the lender can also sustain a loss. Here, Principal’s “make whole premium” was designed to cover such a loss. See Overland Park Savings & Loan Ass'n v. Miller, 243 Kan. 730, 733-34, 763 P.2d 1092 (1988).
Periodic fluctuations in interest rates are inevitable as we move through the business cycle and as financial markets change. Eslde borrowed $6,357,000 from Principal on September 13, 1991, for a term ending April 1, 2017, and at an interest rate of 10.25% per annum. The note does not prohibit prepayment. However, it conditions prepayment upon payment of the “make whole premium.” Santa Rosa, which assumed the loan obligation in 1998, could elect at any time to prepay the loan if it paid the “make whole premium.” It sought to do so in 2005, a time when interest rates were below those prevailing in 1991.
The “make whole premium” was designed to avoid a “heads I win, tails you lose” outcome when the election to prepay the loan is entirely in the borrower s hands. In a period of rising interest rates, it is in Santa Rosa’s interest (and to Principal’s disadvantage) to continue making payments at the favorable interest rate on the existing loan. (“Heads I win.”) In a period of falling rates, it is in Santa Rosa’s interest (and to Principal’s disadvantage) to refinance the debt at a lower interest rate, thus forcing Principal to invest the proceeds at a lower rate of interest. (“Tails you lose.”) The “make whole premium” provision has the effect of offsetting the downside risk when the borrower, after enjoying a favorable interest rate on the loan during periods of rising interest rates, unilaterally elects to prepay the loan when interest rates fall.
Rather than offending our public policy, such a provision would seem to lend stability and predictability to loan transactions, particularly in commercial loans involving a sophisticated and experienced borrower, such as here. It preserves the benefit to the lender of the bargain made at the time of the loan. It commits the borrower to that same bargain independent of fortuitous fluctuations in interest rates.
Santa Rosa argues, however, that the formula for calculating the “make whole premium” is unreasonable for two reasons. First, it uses the current U.S. Treasury bill interest rate at the time of prepayment to calculate the present value of the future income stream from the loan, in spite of the fact that Principal will reinvest Santa Rosa’s loan proceeds for a rate of return higher than the current U.S. Treasury rate. Further, the U.S. Treasury rate is based upon a risk-free investment in government-backed securities.
Second, under the formula the “make whole premium” is that portion of the present value of the future stream of note payments that is greater than the principal balance of the note being paid off by the borrower. However, the formula does not take into account the fact that the lender is not only receiving the outstanding prin cipal balance on the loan which it can then reinvest, but also the “make whole premium” itself which can also be invested. Accordingly, the “make whole premium” would be smaller if the formula took into account the “make whole premium” itself together with the future stream of interest income Principal will realize from prepayment. Thus, Santa Rosa argues, the “make whole premium” formula creates a windfall for Principal.
Santa Rosa’s first argument regarding the use of the U.S. Treasury bill rate has been rejected by the federal courts for Iowa and Missouri, and a federal bankruptcy court in New York. See Great Plains Real Estate Dev., LLC v. Union Cent. Life Ins. Co., No. 05-00220 (S.D. Iowa June 4, 2007) (unpublished opinion), aff'd GPR v. UCL, 536 F.3d 939 (2008); In re CP Holdings, Inc., 332 Bankr. 380 (W.D. Mo. 2005); In re Finance Ctr. Assoc. of East Meadow, L.P., 140 Bankr. 829 (Bankr. E.D.N.Y. 1992). These cases recognize interest rates on U.S. Treasury instruments are easily verifiable and consistently predictable market indicators that are commonly used in prepayment premium provisions. Since the interest rate on a relending of the proceeds turns on many factors such as the amount of the loan; its duration; the location, nature, and quality of the mortgage security; the creditworthiness of the prospective borrower; and the transaction costs attending the origination of a new loan, the rate of return on U.S. Treasury instruments provides a reasonable substitute for trying to find a loan transaction that precisely replaces the investment opportunity lost with the borrower’s prepayment.
Finally, in its statement of uncontroverted facts Santa Rosa does not attempt to quantify the new return on investment it contends Prudential would enjoy from reinvesting the prepaid loan proceeds, and it cannot expect us to speculate about the extent of the difference between the U.S. Treasury rate and some unidentified future investment.
Santa Rosa’s second argument is more troubling. While it is possible to rewrite the formula to provide a more exact calculation of the loss Principal would have experienced had Santa Rosa paid off the loan in April 2005, the inclusion of the “make whole premium” creates a rather awkward feedback loop in which the amount of the “make whole premium” must be determined in order to calculate the amount of that same “make whole premium.” With our extremely limited knowledge of calculus, we presume such a formula could be fashioned.
The amount of the “make whole premium” is a function of the difference in interest rates between 1991 when the loan originated and 2005 when prepayment was contemplated. Santa Rosa was in complete control of the timing of any prepayment of the loan after 1997. TMG teaches that “the reasonableness of a liquidated damages clause , should be determined as of the time the contract was executed, not with the benefit of hindsight.” 21 Kan. App. 2d at 253. The same perspective, without benefit of hindsight, should apply in evaluating this prepayment provision when there has been no default on the note.
Our function is not to rewrite the parties’ contract, but rather to determine whether its terms are so wide of the mark that to enforce them would violate the public policy of our state. In making that determination, TMG further cautions us:
“In the absence of cleár evidence to the contrary, when parties of equal sophistication negotiate a loan agreement, courts should presume that the .creditor gave value, in the form of some other term of the agreement or otherwise, for terms favorable to the creditor in calculating the discount rate and formula to be used in computing the prepayment premium. [Citation omitted.] Moreover, ‘[t]he parties are not required to make the best estimation of damages, just one that is reasonable.’ [Citation omitted.] ‘It is immaterial that the actual damages suffered are higher or lower than the amount specified in the clause.’ [Citation omitted.]” 21 Kan. App. 2d at 253-54.
While the record is silent as to the financial sophistication of Eskie who negotiated the original terms, Santa Rosa’s president had renegotiated similar prepayment provisions before and apparently had the opportunity to do so when negotiating with Principal regarding assumption of this loan. Upon completing those negotiations, Santa Rosa ratified the terms of the note, including the “make whole premium” provision.
Santa Rosa convinces us that the “make whole premium” formula is not the best estimation of Principal’s anticipated loss from prepayment of the loan. However, it was not considered so onerous in 1998 as to cause Santa Rosa not to ratify it. Viewing the transaction prospectively from 1998 and without the benefit of hindsight from 2005 and considering the court’s admonition in TMG, Santa Rosa fails to show that the formula is so unreasonable as to render it unenforceable.
3. Unconscionability
Finally, Santa Rosa argues that summary judgment was premature because there remained genuine issues of material fact bearing on the issue of unconscionability. Since our review is de novo, we turn to the competing motions to determine if there remained a genuine issue of material fact on this issue.
Santa Rosa asserts in the preface of its memorandum supporting its summaiy judgment motion that “there are no material facts in dispute and Santa Rosa is entitled to judgment as a matter of law.” Principal responded with its own summaiy judgment motion on this same issue. 'It set forth its own statement of uncontroverted facts. In response to Principal’s motion, Santa Rosa admitted the essential facts in Principal’s statement of uncontroverted facts, with the exception of a few items that do not bear on the unconscionability issue. Santa Rosa did not assert that there remain genuine issues of material fact that preclude summaiy judgment. Rather, it asserted that the “make whole premium” was so great that it “is simply staggering and shocks the conscience.” This appears to be the extent of Santa. Rosa’s summaiy judgment argument on the issue of unconscionability. ,
In oral argument before the district court on the summary judgment motions, Santa Rosa argued that the “make whole premium” is “simply unenforceable because it’s unconscionable.” It did not argue that summaiy judgment was premature because of unresolved issues of material fact. The only area in which it expressed the desire for additional discovery was the deposing of experts to counter Principal’s contention that its “make whole premium” was tire standard in the industry.
Santa Rosa failed to identify any controverted facts which would preclude summary judgment and, to the contraiy, represented to the district court that there were none. In fact, on appeal Santa Rosa cites State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 248-49, 62 P.3d 653 (2003), for the proposition that whether an act is unconscionable is a question of law. Thus, the unconscionability issue was ripe for resolution.
In Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976), our Supreme Court identified various factors to be considered in identifying an unconscionable contract provision. They include:
“(1) The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry wide standards offered on a taire it or leave it basis to the party in a weaker economic position [citations omitted]; (2) a significant cost-price disparity or excessive price; (3) a denial of basic rights and remedies to a buyer of consumer goods [citations omitted]; (4) the inclusion of penalty clauses; (5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect [citation omitted]; (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract [citation omitted]; (7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them; (8) an overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of the underprivileged, unsophisticated, uneducated and the illiterate [citation omitted]; and (10) inequality of bargaining or economic power. [Citations omitted.]” 219 Kan. at 758-59.
See Ed Bozarth Chevrolet, Inc. v. Black, 32 Kan. App. 2d 874, 886-87, 96 P.3d 272, rev. denied 277 Kan. 923 (2003).
Santa Rosa’s sole argument on the issue of unconscionability is that the “make whole premium” is so excessive as to constitute a penalty. As discussed earlier, the considerable amount of the “make whole premium” is a function of the amount of the unpaid balance on the loan and the disparity in prevailing interest rates between the time the loan originated and the time of its proposed prepayment. The time for prepayment was in Santa Rosa’s exclusive control.
Further, there is nothing in the uncontroverted facts to suggest unequal bargaining power, exploitation of either Eskie or Gukovsky, or questionable circumstances surrounding the negotiation of the loan or its later assumption. To the contrary, Chikovsky was knowledgeable about prepayment provisions in commercial real estate loans and had negotiated around them in the past. The “make whole premium” was in normal type in the body of the note and not contained in a fine-print, back-side addendum. There is nothing to indicate that the “make whole premium” was a take-it- or-leave-it or deal-breaker provision in the loan. We have no doubt that it is possible that the amount of a “make whole premium” when coupled with evidence that the lender unfairly exploited an unsophisticated borrower could lead to a finding of unconscionability. However, those are not the circumstances here. Under the uncontroverted facts before us, the amount of the “make whole premium” does not in itself render this provision unconscionable.
Attorney Fees
In its cross-appeal, Principal argues that the court erred in not awarding its attorney fees. Because resolution of this issue involves matters of contract and statutoiy interpretation, our review is de novo. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008) (statutes); Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001) (contracts); see also Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 490, 173 P.3d 642 (2007) (whether a district court has authority to award attorney fees is a question of law).
The district, court denied Principal’s claim for attorney fees on two bases: (1) The note and mortgage do not contemplate an award of fees in a declaratoiy judgment action such as this, and (2) K.S.A. 58-2312 permits the recoveiy of fees only in a collection action, which this is not.
For over 100 years, from the early years of statehood until 1994, the law of Kansas was that no debt instrument could provide for the payment of attorney fees. See Comp. L. 1885, 68-8a; L. 1876, ch. 77, sec. 1. The statute was moved to R.S. 1923, 67-312 in 1923 and eventually relocated to K.S.A. 58-2312. The substance of the statute remained unchanged throughout these statutory reorganizations.
Consistent with K.S.A. 58-2312, the legislature, in enacting the Uniform Consumer Credit Code (UCCC) in 1973, declared that no provision could be made for the collection of attorney fees from a consumer in a consumer credit transaction. L. 1973, ch. 85, sec. 35; see K.S.A. 16a-2-507, comment 1. As stated in Halloran v. North Plaza State Bank, 17 Kan. App. 2d 840, 843, 844 P.2d 764, rev. denied 253 Kan. 857 (1993), overruled on other grounds Credit Union One of Kansas v. Stamm, 254 Kan. 367, 867 P.2d 285 (1994):
“Both [K.S.A.] 16a-2-507 and K.S.A. 58-2312 reflect concern that an attorney fee provision ‘mulcts debtors for default on a sum not necessarily compensatory,’ and can be used ‘to fleece necessitous debtors.’ Iola State Bank v. Biggs, 233 Kan. 450, 462, 662 P.2d 563 (1983) (quoting Young v. Nave, 135 Kan. 23, 25, 10 P.2d 23 [1932]).”
In 1994, the legislature responded to widespread criticism of Halloran (see K.S.A. 16a-2-507, comment 2) by amending K.S.A. 16a-2-507 to permit recovery of attorney fees in collection actions in consumer credit transactions, subject to specified restrictions. See L. 1994, ch. 276, sec. 1. The longstanding attorney fee prohibition in K.S.A. 58-2312 also was amended to provide:
“Except as otherwise provided by law, any note, mortgage or other credit agreement may provide for the payment of reasonable costs of collection, including, but not limited to, court costs, attorney fees and collection agency fees, except that such costs of collection: (1) May not include costs that were incurred by a salaried employee of the creditor or its assignee; and (2) may not include the recovery of both attorney fees and collection agency fees.”
This amendment to K.S.A. 58-2312 causes us to question: (1) whether the amendment applies to the note and mortgage created here which predate the amendment, and (2) if so, whether the amended statute bars the assessment of fees in this action.
We conclude that the 1994 amendment to K.S.A. 58-2312 applies to this transaction under the rationale of Frets v. Capitol Federal Savings & Loan Ass’n., 238 Kan. 614, 712 P.2d 1270 (1986). Frets contracted to purchase a home subject to a mortgage which secured a note to Capitol Federal. The note contained a “due on sale” provision. The interest rate on the note was 9.75% per annum, below the maximum 11% rate permitted by K.S.A. 1978 Supp. 16-207 at the time the note was originally given. The statute had been amended by the time of Frits’ contract to permit the cap on interest rates to float with the federal lending rate. The pre vailing rate at the time of Frets’ contract was at or above 14.25% per annum. Capitol Federal agreed to waive the “due on sale” provision in exchange for an increase in the note’s interest rate to 12% per annum. Frets agreed, assumed the loan at 12%, and then sued Capitol Federal claiming, among other things, that the note’s 12% interest rate was usurious pursuant to the provisions of K.S.A. 16-207 in effect at the time the note was originally given to Chpitol Federal. Our Supreme Court concluded that a new contract was entered into between Frets and Capitol Federal and it was governed by the law in effect at the time it was made. Thus, the 12% interest rate was permitted by the amended K.S.A. 1980 Supp. 16-207. 238 Kan. at 620.
Here, the mortgage prohibited Eslde from selling the shopping center subject to the mortgage without Principal’s prior consent. Principal agreed to consent to Santa Rosa purchasing the property subject to the mortgage in exchange for Chikovsky assuming Eskie’s personal liability under certain provisions in the mortgage and Santa Rosa’s ratification of the terms and provisions of the mortgage. The mortgage contained a provision for attorney fees to which Eskie had previously agreed. At the time Santa Rosa agreed to be bound by the provision for attorney fees, K.S.A. 58-2312 had been amended to its current form. Accordingly, the current form of K.S.A. 58-2312 applies to this transaction, and the total ban of attorney fees in the earlier version of K.S.A. 58-2312 does not apply.
The next issue is whether K.S.A. 58-2312 in its current form permits the assessment of attorney fees in this case.
In preenactment legislative committee hearings, Professor Barkley Clark and others testified to the need to abandon the longstanding attorney fees prohibition in debt instruments. Legislators were directed to an article in the Journal of the Kansas Bar Association by Ron Leslie, Recovery of Attorney Fees—An Historical Perspective, 53 J.K.B.A. 154 (Fall 1984), in which Leslie listed 75 Kansas statutes allowing recoveiy of attorney fees in a wide variety of litigated cases such as those involving consumer rights, domestic relations, motor vehicles, public utilities, common carriers, railroads, real estate, and unfair commercial practices. In his remarks to the House Judiciary Committee on March 22, 1994, Professor Clark observed: “The common denominator of all these statutes is that die Kansas legislature made a policy decision to allow attorney s fees to be awarded in a wide variety of settings.”
Committee members were also directed to a Washburn Law Journal Note, Recovery of Attorney Fees in Kansas, 18 Washburn L.J. 535, 545 & n.111 (1979), which, as recounted from the committee notes, concluded:
“There appears little rationale for limiting freedom of contract for fees in the commercial context. Presumably, bargaining power disparity and unconscionable conduct are not pervasive problems. Protection in the commercial context should focus on protecting debtors from paying exorbitant fees. Repeal of K.S.A. § 58-2312 should be considered. The statute may have outlived its usefulness. When it was passed in 1876 there was not a body of regulatory law protecting consumer interests and granting remedies for oppressive conduct [as there is now with the (UCCC), the Consumer Protection Act, and other consumer legislation]. Replacement legislation balancing debtors’ protection from unreasonable fees and creditors’ and society’s interest in reduced default expenses is suggested.” Minutes, House Jud. Comm. March 22, 1994,
Professor Clark noted Kansas’ adoption of the American Rule, which denies the prevailing party attorney fees unless expressly allowed by statute or contract. He observed: “In commercial transactions, K.S.A. 58-2312 is the only statute on the books in Kansas that rejects the American Rule and freedom of contract.” Minutes, House Jud. Comm. March 22, 1994. After recounting the statutory and case law history, Professor Clark urged: “In order to put an end to this sorry state of affairs, Kansas law should be reformed to expressly authorize 'to the extent permitted by law’ attorney’s fee provisions, in addition to authorizing limited attorney’s fees provisions in consumer credit (and .commercial) transactions.” Minutes, House Jud. Comm. March 22, 1994.
While the statute refers to attorney fees in collection actions, the legislative history is devoid of any suggestion that attorney fees in promissory notes should be limited to collection actions to the exclusion of declaratory judgment actions such as the one now before us. In the overwhelming number of cases, the issue of attorney fees arises in the context of a collection action after default. Thus, it is natural for our legislators to address the issue of attorney fees in this context. Nevertheless, we are convinced that relief from the provision against attorney fees was not intended to be limited to that context. The legislature was lifting the blanket prohibition and restoring freedom of contract to parties to negotiate on the issue of attorney fees, particularly in a commercial context such as we find here.
Thus, we conclude that the, assessment of attorney fees in,this case is not against public policy because of any prohibition found in K.S.A. 58-2312.
The district court also based its denial of attorney fees on its interpretation of the contract. The note authorized attorney fees “in connection with any default or in any proceeding to enforce any provision of this note or any instrument by which it is secured.” The mortgage provided for attorney fees “in connection with any action, proceeding or hearing, legal, equitable or quasi-legal . . . in any way affecting or pertaining to this' mortgage, the Note or the premises.” The district court construed these provisions to apply only in proceedings following a default’(Santa Rosa was not in default), not to the declaratoiy judgment action initiated by Santa Rosa to litigate the contract issue raised here.
Santa Rosa relies upon the recounting in Heinson v. Porter, 244 Kan. 667, 672, 772 P.2d 778 (1989), overruled on other grounds Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990), of the holding in Franklin Life Ins. Co. v. Johnson, 157 F.2d 653, 658 (10th Cir. 1946), that “ "[t]he purpose of the declaratory judgment action is to settle actual controversies before they have ripened into violations of law or legal duty or breach of contractual obligations.’ ” While this accurately describes the purpose of a declaratory judgment action, we fail to see how it advances Santa Rosa’s cause.
The case annotations to K.S.A. 60-1701 show the wide variety of rights and obligations of parties that has been resolved by declaratory judgment actions. A declaratory judgment, like any other judgment, is final and binding on the parties with respect to the rights and responsibilities declared. While a declaratory judgment may be preliminary to an action to enforce the rights so declared, it need not necessarily be so. The court has jurisdiction in a declaratory judgment action not only to declare the rights and re sponsibilities of the parties, but also to grant further relief based upon that judgment. K.S.A. 60-1703.
While the promissory note speaks to actions to enforce rights under the note, the mortgage calls for the recovery of attorney fees in actions “in any way affecting or pertaining to this mortgage, the Note or the premises.” We see no viable argument to support the notion that a judicial declaration of the validity and enforceability of the “make whole premium” provision does not affect or pertain to the mortgage, the promissory note, or the Santa Rosa Shopping Center. Under these circumstances, we recognize and give effect to the clearly expressed contract which was ratified and adopted by Santa Rosa as its own. Accordingly, we conclude that the district court erred in denying attorney fees to Principal.
We affirm the district court’s judgment with respect to the validity and enforceability of the “make whole premium” provision, reverse the court’s order with respect to Principal’s attorney fees, and remand to the district court to enter an award to Principal for its attorney fees. | [
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Opinion by
Simpson, C.:
This is a peculiar case, and, in view of all the facts and circumstances proven at the trial and found by the court below, the relieving hand of a court of equity ought to be extended to the plaintiff in error, if the court has power to manipulate it. Whether it has or not, is the question.
The defendant in error, Hiram V. Simmons, was indebted to the plaintiff in error in a large sum of money. This indebtedness was evidenced by five promissory notes signed by Hiram V. Simmons alone. To secure their payment, a mortgage was executed on land occupied by Simmons, his wife and children, as a homestead. The mortgage was signed by Emeline Simmons, the wife of Hiram V. Simmons, as well as by the husband. The title to the homestead was in Hiram V. Simmons; the land is situated in Chase county; and the plaintiff in error is a resident of Jefferson county. In October, 1878, at a time when two or more of the notes were due and unpaid, Hiram y. Simmons and the plaintiff in error met inyalley Falls, in Jefferson county, and made an agreement that Hiram y. Simmons was to borrow the sum of fifteen hundred dollars from the Kansas Loan and Trust Company, or from other persons, and pay the same to the plaintiff in error on amount due on said notes. In order to enable Hiram y. Simmons to make the loan, it was agreed by the plaintiff in error that he would release and discharge the mortgage held by him, so that the sum of fifteen hundred dollars should be and constitute a first lien on the land, and that the plaintiff in error would pay all the expense accruing by said loan; that the said Hiram y. Simmons was then to execute a note for the remainder due the plaintiff in error, and secure the same by a second mortgage on said land, payable at such reasonable time as he might designate — Emeline Simmons not being present and not having any knowledge of the agreement. About the 1st day of October, 1878, the $1,500 was procured, and a mortgage executed by Simmons and wife to secure it; which was duly recorded, and the money paid over to the plaintiff in error, he executing a release and discharge of his mortgage, and having the same entered on the margin of the record thereof. The only consideration for the release of said mortgage was the agreement above recited. He now seeks to have the release and discharge canceled, and his mortgage foreclosed. It will be observed from the statement above that Emeline Simmons was not a party to that agreement. There is a special finding that she was not present, and had no knowledge of it. The court below further found that Emeline Simmons did not in fact at any time consent to join in executing the second mortgage to the plaintiff in error, and did not know of the agreement between her husband and the plaintiff in error for a second mortgage, until after the first was released by the plaintiff in error.
The question then is: Can she be bound by a contract respecting her homestead right, to which she is not a party, and to which she has never given her consent ? There is no necessity for assigning reasons to justify a negative answer to the question; it is too plain for argument. But it is said that she has taken advantage of the agreement, and acted upon it, so far as it resulted to her own benefit, and that in consequence of this participation in its benefits, equity requires that she should assume its liabilities and reciprocal obligations. There would be much more force and greater equity in the assertion, if the record showed that before she joined in the execution of the mortgage to the Kansas Loan and Trust Company, she had been made acquainted with all the terms and conditions of the agreement made between her husband and the plaintiff in error at Valley Falls; and the appeal would be still stronger if the plaintiff in error had exercised the most ordinary prudence respecting this trans ¡action; had acquainted Emeline Simmons with the terms of ■the agreement, and had secured her assurances that a new mortgage would be executed before he had entered of record a release and discharge of the existing one. From the facts found by the court, the conclusion is irresistible that she did not execute the mortgage to the Loan and Trust Company with the intent or design to reap the benefits of the Valley Falls •agreement and repudiate its obligations. She acted without knowledge of it; and when she was informed of it, promptly ¡refused to agree to it, for the reason that the land was her ¡homestead, and she was not a party to the contract. In this view it does seem that there is no equitable principle that can be invoked to aid the plaintiff in error. It might be different if the record disclosed that, with a full knowledge and a perfect understanding of all the terms and conditions of the contract made at Valley Falls, she had accepted its benefits and ■arbitrarily refused to assume its obligations. Hence we find no excuse for equitable interference in this respect on behalf ■of the plaintiff in error.
It is said that the plaintiff in error is entitled to the interposition of the equitable power of the court, because of mistake, surprise, accident or fraud in the contract with Simmons at Valley Falls, and that the discharge and release of his mortgage ought to be canceled for that reason. Counsel for plaintiff in error in his brief says: “ It may be difficult in this case to determine with absolute certainty under which of these precise heads the plaintiff is entitled to relief;” and at the bar he contended that “the circumstances of the case bordered on all of them.” The difficulty with us is to make an application of the principles by which a court of equity grants relief on the ground of fraud, accident, mistake, or surprise, to a party to a contract, to one who was not a party, or had no knowledge of such contract. If we are to enter into an Inquiry of that kind, it is well to define its limits in the beginning. This is the precise question: When three persons have ■an interest in the subject-matter of a contract, and two of these interested, without the presence or knowledge of the third, make an agreement respecting it, by the terms of which some action is to be taken by the third, and the agreement is executed so far as the two are concerned, and the third refuses to perform the part assigned, can the part performance of the two be canceled by a court of equity, on the ground that the agreement between the two was the result of mistake, accident, surprise, or fraud, when the sole and the only cause shown was the refusal of the third party to perform the part assigned ?' However binding such agreement between the two would be, it must be conceded that it could not be enforced against the-third. It cannot be that under any conceivable circumstances a contract can be enforced against one who was not a party to it, or had no knowledge of it. If it had been alleged and shown that the two had no knowledge of the interest of the third, or had acted under a belief created by the acts or declarations of the third that the conditions of their agreement would be performed by such third party, the solution of the question could be easily determined. But the naked fact in the case is, that the two proceeded to make their agreement respecting the subject-matter of the contract with a full knowledge of the rights of the third, and performed their respective obligations created by it without reference to or apparently without a thought or care for the rights and interests of Emeline Simmons, notwithstanding they must have known, and did know as a matter of law, that no agreement of theirs could create a valid mortgage lien upon the homestead of Emeline Simmons, without her consent. It may be that they assumed, without thought or expression, that whatever Hiram V. Simmons determined to do with the land occupied by his wife aud children as a homestead, the wife, as a matter of coui’se, or as a matter of duty, would accede to without objection or protest. The court below found that the plaintiff in error released his mortgage, believing at the time he released that Hiram V. Simmons and his wife Emeline Simmons would join in the execution of a second mortgage on the homestead, to secure to him the payment of the remainder due on said notes. There must have been some evidence on which the court predicated a finding as to such a belief as that on the part of the plaintiff in error. The evidence is not here; we are to determine this case on the findings of' fact, and the conclusions of law as found and declared by the court below. There is no finding of accident, surprise, or mistake, on the part of the plaintiff in error, by the court below; neither is there a word, or syllable, or the recitation of a single fact, in all the findings of fact, that would authorize the most shadowy inference that fraud had been perpetrated. There is no pretense that Hiram Y. Simmons was authorized to speak or act for his wife. In the nature of things it cannot be that, her acts, declarations, silence, or conduct, occasioned surprise, contributed to a mistake, resulted in an accident, or perpetrated a fraud on the plaintiff in error, except it be that her subsequent refusal to be bound by a contract to which she was not a party, and of which she had no knowledge, can be tortured into some one or all of these causes for equitable relief. How can we say when the evidence is not before us, (and we are considering this case on the findings of fact by the court below, and there is no such finding,) that there was accident, surprise, mistake, or fraud, that ought to relieve the plaintiff in error from the result of a contract of his own making ?
To authorize this court to exercise its equitable power to afford relief, and to declare a rescission of this contract, so far as the discharge and release of the mortgage of the plaintiff in error is concerned, it must appear that there was some misleading act of the defendant that induced the plaintiff in error to execute the release. In this case Hiramy. Simmons agreed to execute a second mortgage on the homestead, to secure the amount due on the notes held by the plaintiff in error. They both knew the wife’s consent was necessary to the validity of such a mortgage, because that is the law, and they are conclusively presumed to know the law; and they are presumed to contract with reference to the law, and the law is a part of their contract. Even if Simmons knew the law, and the plaintiff in error did not, and Simmons was aware of the ignorance of the plaintiff in error in this respect, it would not be sufifi cient to justify relief. (Laidlaw v. Organ, 2 Wheat. 178.) The mistake, to be au available one to the plaintiff in error, must be confined to the matter of the agreement, and not to the performance of its conditions or to the inducements of the contract; and in case of misapprehension or ignorance about the matter of the agreement, interference can be invoked only when there has been fraud or misrepresentation in regard to it by the other side. What mistake did the plaintiff in error make respecting the matter of the agreement with Hiram V. Simmons at Valley Falls? He agreed to release and discharge a mortgage that was a first lien on the homestead, and take a mortgage that would be a second lien on the homestead; and Simmons agreed to make, execute and deliver such a mortgage. Relying on the promise of Simmons, he released his first lien; Simmons failed to carry out his part of the agreement, because the land proposed to be mortgaged is a homestead, and the wife refused to consent to the creation of the lien. Where is the mistake' of law or of fact ? What induced the mistake ? What is the misleading act of Simmons which operated on the mind of the plaintiff in error to produce the assent of minds? Each knew all the facts, both knew the law : how can it be said that either acted under a mistake ? Can the plaintiff in error be relieved on the ground of accident ? To authorize the court to do so, it must appear that the plaintiff in error has a clear right, which cannot otherwise be enforced; or that he will be subject to an unjustifiable loss without blame or misconduct on his part; or that he has a superior equity to the party from whom he seeks the relief.
The plaintiff in error has enforced his right in this case by judgment against Hiram V. Simmons, for the full amount due him, and this furnishes a complete answer to the first cause for equitable interference in the case. We know it is alleged in the petition, and is among the findings of the court, that Simmons is insolvent; but all a court of law has to do to prevent equitable interference in this class of cases, is to furnish a remedy. Its obligation does not go to the extent of a collection of the judgment. The plaintiff in error is not without blame or misconduct. He made the contract with Simmons deliberately, and it was of such a nature that it took time to complete it. He accepted the assurance of Simmons that a new mortgage would be executed, and rested and acted in view of that promise; ample time and full opportunity were given him to see and consult Emeline Simmons before he discharged his first lien. This he neglected to do, because he trusted the husband. It is such an example of carelessness and want of attention to an ordinary duty, as excludes all consideration of accident.
“ In matters of positive contract, it is no ground for interference of equity, that the party has been prevented by accident from deriving the full benefit of the contract on his side; and the reason is, that he might have provided for such contingencies by his contract, if he had so chosen.” (Story’s Eq. Jur., 13th ed., p. 104, and authorities cited in foot-note.)
It is not necessary now to discuss the principles upon which courts interfere in equity, on the grounds of surprise and fraud, because there is nothing developed in the record, or in the findings of the court, that would justify interference for either' cause. The plaintiff in error did not contract with Simmons under such circumstances as that he was circumvented, mismanaged, or misled, but acted with an entire absence of any element of either surprise or fraud, and the facts constituting accident or mistake are wanting, and there is absolutely no showing that requires a court of equity, as a matter of abstract justice, appealing to the conscience, to order the cancellation of the discharge and release of the mortgage of the plaintiff in error. However strong the appeal might be, however clearly'the circumstances might justify such interference, the court would be powerless to act. Section 9, article 15, of the constitution of the state, forbids the creation of a lien on the homestead without the consent of the wife. It is sought to avoid the application of this provision, by saying that such a decree as is prayed for by the plaintiff in error would not be the creation of a lien: it would simply be the restoration of a lien already created with the consent of the wife. It must be admitted that, at the time of the commencement of this action by the plaintiff in error, he did not have in law a lien; he so alleges, and he prays that the court declare his mortgage a second lien on the homestead, and not a first as it was originally. He does not seek to restore his lien, but he asks the court to declare his mortgage a lien by virtue of its equitable jurisdiction. If the court had the power to do as requested, and exercised it, the lien so adjudged would not be the same that the wife originally consented to. To our mind, the talk about restoring the lien is a skirmish with words, rather than a fight for a substantial line of decision. To create a lien on a homestead, or re-create it, or to restore it after loss, or to change its character, or priority, an indispensable necessity is the consent of the wife. It cannot be done without such consent. The constitution of the state says so in plain words, and that is the end of all argument. No matter how strong the equity may be, the constitution is stronger. No matter how strong the appeal to the conscience of the chancellor, the organic law controls him. If the plaintiff in error had advanced Simmons the sum of four thousand dollars, under the promise of Simmons that a mortgage would be executed on the homestead to secure it, and his wife knew the facts, and, with the money in the possession of the husband, refused to join in the mortgage, no court in this state has power to declare that sum a lien on the homestead. The constitution forbids it. The wife’s consent to the creation of the lien is an absolute prerequisite to its validity.
3. Creation on homestea
The strong arm of the law, and the relieving hand of equity, are both powerless to take from the wife the hearthstone and the shade-trees of the homestead, except by her free and voluntary consent as prescribed in the fundamental law of the state of Kansas. We are not without authority to sustain this view; and while it is doubtful whether in any other state there is a constitutional provision as mandatory in its terms, and peremptory in its requirements respecting alienation of, or the creation of liens against, the homestead, as in this state, the courts of all the states in which there are such laws hold strictly to the rule that nothing but the consent of the wife to the alienation or mortgage, in the exact manner prescribed by law, can bind her. In the case of Spencer v. Fredendall, 15 Wis. 666, Mr. Justice Payne says:
“It seems scarcely to admit a doubt, that after a mortgage upon the homestead given in the ordinary form and signed by the wife, had been paid, it would be incompetent for the husband alone, by verbal agreement or otherwise, to revive the mortgage, and attach its security to other debts. To hold otherwise would defeat the clear intent of the statute. For whenever the signature of the wife could be obtained to a mortgage upon the homestead, the prohibition would be substantially destroyed, as the husband could keep that mortgage in existence as security for new debts to an indefinite amount. It seems clear that this cannot be done.”
In Campbell v. Babcock, 27 Wis. 512, Lyon, J., commenting on Spencer v. Fredendall, says:
“It was held in that case, that the husband could not without the concurrence of the wife, by any act of his, give vitality to a mortgage on the homestead, that had once been paid. In other words, the court held that the act of the husband alone could not reinstate and give life to such mortgage after it had become fimctus oflieio.”
In this case, by agreement between Simmons and the plaintiff in.error, the mortgage of the plaintiff was discharged of record. The consideration of the discharge was partly paid, and the conditions upon which it was discharged were partly performed by Simmons. All this, too, was done without the knowledge or consent of his wife. This mortgage being discharged of record, and partly paid, and all this done in accordance with the exactions and conditions of a contract made by the mortgagee, to—
“ Hold that her husband, without her consent or knowledge, could transform an inoperative document into a valid and binding mortgage, seems to be a gross perversion of the law which was made for her protection. The restriction that the iaw imposes upon the alienation of the homestead by the hus band, is a most valuable right to the wife, and is doubtless founded in wise consideration of public policy. But that restriction would be practically removed and defeated, were we to hold that Mrs. Babcock is estopped by the act of her husband from availing herself of the defense that the mortgage is void. We find no authority for pushing the doctrine of estoppel in pais to that extent.” (Campbell v. Babcock, supra.)
The case of Barber v. Babel, 36 Cal. 11, is a very instructive one. The material facts are: Frederick Babel and his wife Sophia, on the 17th of March, 1860, executed a mortgage to plaintiff Julia A. Barber; on the 22d of April, 1861, they filed a declaration to hold the land mortgaged as a homestead, this declaration being required under the California statute. On the 27th of February, 1865, Frederick Babel, alone, executed another note for the amount due the plaintiff, and a second mortgage to secure it on the land, which was accepted in place of the first, it being surrendered, and a discharge and release of it entered of record. To accomplish this, Frederick Babel made false and fraudulent representations to Julia A. Barber, stating to her that said land was not claimed as a homestead. Before taking the second note the plaintiff applied to the wife, Mrs. Babel, to execute a further mortgage, which she refused to do. The note not having been paid, this action was commenced, a statement of the whole facts made, and a foreclosure asked for. The defense relied upon the statutes of limitation, upon the discharge of the first mortgage, and that the second was void without the signature of the wife. Chief Justice Sawyer delivered the opinion of the court, and said:
“The last mortgage was not executed by the wife, and was therefore void. . . . It is claimed, however, that the giving of the new note by the husband in the place of the old, and for the same indebtedness, was an extension of the time of payment of the old indebtedness, and that this extension continued the old mortgage in life; and such must have been the opinion of the district court. This raises the question, as to the power of the husband to affect the rights of the wife in the homestead, in any manner, by his acts alone. The land is impressed with the character of a homestead by executing, acknowledging and recording, in the same manner as convey anees affecting real estate are required to be acknowledged and recorded, a declaration of intention to claim the same as a homestead. . . . Under its provisions, we are of opinion that there is a joint estate or interest in the homestead vested in the husband and wife, . . . and that this interest can no more be affected without her concurrence in the mode prescribed, than the ordinary estates in the lands of others without the concurrence of the parties holding them. The cases of Lord v. Morris, 18 Cal. 482; Lent v. Morrill, 25 id. 499; Lent v. Shear, 26 id. 370; Low v. Allen, 26 id. 141, and other cases to the same effect, establish the principle that after a conveyance of the mortgaged premises, or the transfer of any interest therein, the mortgagor has no power to create, revive, renew, or prolong a charge upon the premises, or interest therein, so conveyed or transferred, while such interest remains in another party. . . . The principles established by these cases directly apply to the case under consideration. The original note and mortgage were valid, but subsequent to the making of this mortgage the defendants duly recorded their declaration of homestead, and thereby became jointly vested with new and important rights, which were inalienable, except in the mode prescribed by the statute. The wife acquired a new, distinct, personal interest, which she did not before have, and which she could not afterward be deprived of by any act of the husband. . . . The mortgage subsequently executed by the husband was not executed by the wife, and was, therefore, if the statute means what it says, invalid and ineffectual for any purpose whatever. The giving of the new note, and extending the time of payment, were also the act of the husband alone, to which the wife was no party. Under the authorities cited, he could no more, indirectly, in this mode, effect the same purpose, by continuing the old lien beyond the time when the action would be barred as to the wife, than in the direct mode attempted of executing a new mortgage and discharging the old. If the lien was continued, it was by virtue of a new-contract affecting this land. To continue the old mortgage in force after it had been barred, and sell under a decree of the-court foreclosing it, would be to effect an alienation through the aid of the court, and a new contract, as clearly and effectually as though the same result should be accomplished by making and foreclosing the new mortgage. The fraudulent representations of the husband cannot affect the question as to the statute of limitations, for the wife was no party to the fraud. She made no representations upon the subject; she expressly refused to execute the new mortgage, and thereby put the mortgagees on their guard. They must have supposed it important to obtain her signature, or they would not have sought it. The declaration of homestead was a matter of public record, and notice to all the world. The mortgagees had the means of knowledge, and as to the wife, at least, they were bound to take notice of the homestead estate. The fraudulent represéntations were the act of the husband alone, and he was no more authorized to prolong the statute of limitations, thereby creating a new right, and to destroy the homestead right in this way, than in any other. He had no power, alone, to affect it in any manner. ... If the mortgagee lost anything by trusting to the false representations of the husband, when the records afforded notice of the true state of the case, the wife is not in fault, and the plaintiff is, unfortunately for the credit of human nature and her own interests, not the first in the business world to find herself a ‘ victim of misplaced confidence.5 55
The case of Snell v. Palmer, 12 Bradw. 337, that of Anderson v. Culbert, 55 Iowa, 233, and that of Tolman v. Leathers, 1 McCr. 329, all bear strongly on the proposition that, however strong the equity, the court is powerless to do it. The logic of all these cases is, that no act of the husband alone can create, extend, postpone, or renew a lien upon a "homestead, without the written consent of the wife in the exact manner prescribed. This case was tried by the court below, a jury being waived; in the original and amended petitions, in the findings of fact, in the entire record, there is no specific allegation or finding that the release and satisfaction of the mortgage was procured by fraud, or occasioned by mistake, accident, or surprise.
We recommend the affirmance of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring. | [
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