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The opinion of the court was delivered by
Horton, C. J.:
An action was commenced in January 1875, in the district court of Neosho county, by Margaret Powell to obtain a divorce from James L. Powell. Thé causes alleged in the petition were the impotency of the defendant, and extreme cruelty on his part toward the plaintiff. The petition also stated that the defendant was at the time of the marriage, and at the time that the plaintiff contracted to marry the defendant, afflicted with insanity, winch then and long after the marriage was wholly unknown to the plaintiff; that the defendant had continued insane from the time of the marriage to the commencement of the action, and that his insanity had continually grown worse; that on or about June 11th 1872, he was committed to the insane asylum at Osawatomie, and had since that time been confined in the asylum.. Service of the summons was made on the guardian of the defendant in pursuance of sec. 36 of ch. 60, Gen. Stat. 557. No answer was filed, and on proof offered, the court entered a decree of divorce releasing the parties from the obligations of the marriage, giving the custody of the children born in wedlock to the plaintiff, and adjudging that the plaintiff should have, enjoy, and possess as alimony, certain real estate with the right to sell the same at her pleasure. Eleven months afterward, a motion was made by James L. Powell, by his counsel John C. Carpenter, Esq., to vacate and set aside the judgment, as wholly void, because the petition did not state facts sufficient to constitute a cause of action. On 29th December 1875, the court sustained the motion, and ordered an entry to be made that the judgment should be set aside as void, and held for naught. To this action of the court the plaintiff excepted, and asks that it be reversed.
Under the allegations in the petition, we must assume that the defendant was insane at the time of the alleged acts of cruelty, and, as a sequence, was mentally incapable of knowing what he did. Under such circumstances, on very familiar principles, he could not be held responsible for his acts, and we do not think the acts thus committed a sufficient cause of divorce. As insanity itself, after marriage, is no cause for a divorce, nothing which is a consequence of it can be. The counsel for plaintiff do not dispute this conclusion, but insist that the petition should be so construed that the defendant had lucid intervals, and that thereupon, proof was introduced that the defendant was sane at the commission of the acts complained of. Unfortunately for this theory, there is no room for this construction. The allegations in the petition are broad and sweeping. It is asserted “that the defendant was at the time of the marriage, and has continued to be and still remains insane, and that his insanity has continually grown worse.” The extreme cruelty alleged, occurred June 1st 1872, and ten days afterward the defendant was taken to the insane asylum. If the defendant had lucid interváls, and committed any act for which he was responsible during such times, upon which a decree of divorce could be based, the petition should have so stated. In the absence of any such allegations, we cannot presume, against the averment to the contrary, that the defendant was sane at the commission of the alleged acts of cruelty. The petition excludes the idea.
Counsel for plaintiff admit that the statements concerning impotency set forth in the petition are insufficient, and should be treated as surplusage; hence, we need only say, as to that alleged cause for divorce, that our statute in that ' regard is to be interpreted in harmony with the common law; and when the legislature enacted that a divorce might be granted for impotency, it was intended that the impotence must have existed at|the time of the marriage. If a person should become impotent after marriage, the marriage is good, and no ground of divorce exists therefor. Such is the universal doctrine.
The only serious question in this ease is, the effect of the averments of the insanity of the defendant at the time plaintiff contracted to marry him, his insanity at the , ~ , . 1 ¶ . _ date ot such marriage, and the continuance or such insanity. The marriage of an insane person is absolutely void, by reason of the want of capacity of such a party to contract; and in this case, if the allegations in the petition are true, the marriage of the plaintiff and defendant was null and void, and has never since obtained any validity, because the defendant has never been in any mental condition to ratify or consummate it. Not only was there no marriage de jure, but it would also be a misnomer to call it a marriage defacto, although law-writers thus frequently designate it. It was a nullity, and the plaintiff is in no way bound to defendant by any marriage relation. The concurring assent of the two minds was wanting. The plaintiff is as free from the defendant as if the court below had pronounced a decree of nullity, as no judgment was necessary to restore the parties to their original rights. The fitness and propriety of a judicial decision pronouncing the nullity of such a marriage, is supported, because conducive to good order and decorum, and to the peace and conscience of the party seeking it. Weightman v. Weightman, 4 Johns. Ch. 343; Rawdon v. Rawdon, 28 Ala. 565. Another reason why a judicial determination of such a marriage ought to be sanctioned, is, that an opportunity should be given, when the evidence is obtainable and the parties living, to have the proof of such marriage being void preserved in the form of a judicial record, so that it cannot be disputed or denied. But in the case at bar, the cause was prosecuted, tried, and decided, as a “divorce suit” under the provisions of the code. This is more apparent when we fully examine the record. Permission was obtained to amend the petition, and two statutory causes for which divorces are granted, were inserted; the maiden name of the plaintiff was omitted; the petition was verified; the children’s names were set forth, with the surname of the defendant; the real estate of the defendant was specifically described, and in the prayer for relief the court was asked to grant a divorce, to divide the real estate, to give $3,000 as alimony, and to award the custody of the children to plaintiff. The court in rendering judgment granted all the relief prayed for, but instead of dividing the real estate, decreed all of it as alimony to the plaintiff, who has assumed and retained the name of the defendant. Under the particular circumstances of this case, we cannot construe the action as one prosecuted to have the void marriage pronounced a nullity, and that therefore the action of the court below, in vacating and setting aside the judgment for being void, was not erroneous.
It is immaterial whether the defendant, or his attorney, had the right to appear and make such motion or not. If the judgment was void, no injury resulted to the plaintiff from the order of the court; and holding the judgment void, we cannot interfere with the action of the district court. If the judgment in this case could be construed as a decree annulling a void marriage, so much of the judgment as awards alimony to the plaintiff would be nugatory. We view the case as the court below considered it, and treat it as that court treated it, simply as an action for divorce and alimony, under the provisions of the code. Any other construction by us would be grossly unjust to all the parties to the proceeding, and especially so to the plaintiff. It is doubtful whether the plaintiff would be willing to accept the original judgment attempted to be rendered, if she was fully acquainted with the consequences which would result if we w;ere to hold the judgment valid so far as determining the marriage void ah initio by reason of the insanity of the defendant. A senteuce of nullity like this would strip her of all alimony, deprive her of all interest in the property of defendant, and bastardize her children. We make these last remarks more freely, because the counsel for the plaintiff in this court state in their brief “that they first became connected with the case after the filing of the motion to vacate the judgment, and hence are not responsible for the pleadings.”
If upon full consideration, the plaintiff still wishes to end the mesalliance between herself and the defendant by a sentence of nullity declaring void the marriage for want of sufficient mental capacity of the defendant, with consent of the court below she can amend her petition, and prosecute the suit to final judgment, or she may disregard the proceedings had and commence de novo. Sec. 648 of the code (Gen. Stat. p. 759,) does not in any manner restrict the plaintiff from prosecuting or instituting her action to annul a void marriage. Said section applies only to incapables, who are unable to contract marriage from want of age, or understanding. Independently of the provisions relating to divorce, the district court has full jurisdiction to afford the plaintiff requisite relief. If she wishes no judicial determination of the question, and the defendant was insane at the time of the marriage, and has had no lucid intervals since, she may treat such marriage as wholly void. So it is not correct, as the counsel for plaintiff suggest in their brief, that if this judgment is not upheld the unfortunate plaintiff has no relief.
The order of the district court in vacating the said judgment will be affirmed.
All the Justices concurring. | [
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The .opinion of the court was delivered by
Horton, C. J.:
At the July Term for 1871 of the district court of Cherokee county, in a suit pending therein, of E. H. Curtis against Norman Reed, judgment was rendered for the plaintiff restraining the defendant from maintaining a dam across Spring river in said county above the height of thirty inches, measuring from a given point. The judgment also required its abatement to that height, and awarded execution to carry the judgment into effect. Subsequently Curtis bargained away his interest in the land injured by the raising of the dam, and his trustee, with his wife, executed a title-bond to Murphy & Bryant, the purchasers of’the land, conditioned for the making of a deed to M. & B. upon the payment of $4,000, in four installments, viz., $1,000 on October 1st 1871; $1,000 on March 1st 1872; $1,250 on March 1st 1873; and $750 on March 1st 1874. The title-bond contained the provision that if M. & B. failed to comply with the conditions of the bond, the same should be void and of no effect. In pursuance of said contract, the first payment was made by M. & B., and notes executed and delivered for the balance, and thereupon possession of all the property was turned over to M. & B. M. & B. held possession of the property until in February 1873. They then had failed to make the payments due March 1st 1872. In February 1873, by agreement of all the parties to the title-bond and the notes, the title-bond was forfeited, and delivered back to the obligors; the notes of M. & B. were canceled, and the premises and the possession thereof delivered up to E. H. Curtis. During the time M. & B. were in the possession of the real estate, and prior to February 1873, Reed, with their consent, and under an agreement with them, raised his dam above the height named ih the judgment of Curtis v. Reed. This was done without the knowledge or consent of Curtis; and at the time the title-bond was canceled and the notes returned, Curtis had no knowledge that the dam had been raised. Reed sold out his interest in the land, and the dam thereon, to the defendant in error. Just prior to the institution of this suit in the court below, Curtis attempted to enforce his judgment rendered in his case against Eeed, to lower the dam, by causing execution to issue, and placing it in the hands of Painter as sheriff to execute. Thereupon Moore, the grantee of Eeed, instituted.an action to enjoin Curtis and sheriff Palmer from enforcing said judgment. The court below sustained the cause of action of Moore, and rendered judgment perpetually enjoining Curtis and Palmer from enforcing the judgment to reduce the dam below the height established by Eeed. Plaintiffs in error seek to reverse the last-named judgment.
Murphy &t Bryant, at the time of the consent to Eeed, to raise his dam, only had an equitable interest in the property in their possession, and could not transfer greater rights than those possessed by themselves. Upon the payment of the purchase-money in full, the equitable title of Murphy & Bryant would have sufficiently ripened as to have authorized them to have demanded the transfer to them or their grantees of the legal title. Prior to the payment of the purchase-money, they held the premises subject to a forfeiture of all their rights and interest therein,upon proper proceedings had by their grantor on default of payment of the moneys stated in the title-bond. When the contract for purchase was rescinded by the mutual agreement of all the parties to the title-bond, and the notes given by the purchasers canceled, and the premises delivered back into the possession of Curtis, the equities of Murphy & Bryant were determined. The property then reverted back to Curtis in the condition it was prior to the execution of the contract of sale. Eeed had no equities superior to Murphy & Bryant; and as he had actual notice, and was also bound in law to take notice of the rights of Murphy & Bryant in the premises, he cannot claim any benefit arising under them as against the judgment of Curtis, when they have returned the land and all their equities to Curtis. The possession of the premises, under the contract of purchase, by Murphy & Bryant, gave them no power or authority to satisfy the judgment of Curtis v. Reed until they had complied with their contract. This they not only refused to do, but voluntarily gave up their contract, and conceded all their rights in the lands were forfeited. Reed’s authority from Murphy & Bryant to raise his dam operated as a license founded solely on the equity of the latter in the property in their possession, and when that equity was concluded by their own act, and with their own consent, the license could not be continued against the will of Curtis, to whom the possession of the land and all the equities reverted. Reed’s grantee, Moore, only succeeded to the rights of Reed, and could not, under the circumstances, continue the height of the dam in violation of the orders of the court. As the counsel for plaintiff* in error suggests, if Murphy & Bryant could have legally authorized Reed to raise his dam' to the height he did, while they were in possession of the premises under an equitable title on which but one-fourth of the purchase-money had been paid, and Curtis be estopped by their consent from abating or reducing the height of the dam, Murphy & Bryant had it in their power when in possession of the premises to permit Reed to raise his dam sufficiently high to destroy the mill-site on the land of Curtis, and to flood the same. Such is not the law. Reed acted without the consent pr knowledge of Curtis; and Moore took the premises from Reed subject to the judgment of Curtis. Curtis is not precluded from enforcing his judgment obtained in July 1871, by any agreement between Murphy & Bryant and Reqd, set up in the record, and the .action of the court below in rendering judgment in favor of Moore was erroneous.
Counsel for plaintiff in error ask this court to reverse the judgment, and to order the court below to render judgment in favor of Curtis and Palmer. We cannot construe the record as showing that the court made any findings of fact; and as the case was not tried upon an agreed statement of facts, we can only order a reversal of the judgment.
The judgment of the court below is reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
There is but one point involved in this case submitted to the court. Section 103 of ch. 23, relative to foreign insurance companies, provided, “that no insurance company created by or under the laws of any other state or territory shall directly or indirectly take risks, or transact any business of insurance, without first obtaining a certificate of authority from the auditor of state.” Section 105 prescribed, in brief, that no insurance company should transact any business of insurance unless it was possessed of one hundred thousand dollars in paid-up capital. It is admitted that the Chouteau Insurance Company never had such certificate from the auditor of state, and that it is a foreign corporation.
The plaintiff in errror subscribed for stock in this company, paid part cash, and gave his notes for the balance. The whole transaction took place in this state. Was the plaintiff in error liable on these notes? Clearly so." The only prohibition in the statute is on “risks,” and “business of insurance.” But “stock subscriptions” are neither. At least, not in legal parlance, though when taken in some corporations there is a sense in which they may well be called risks. But in legal phraseology, they are as distinct as any transactions known to the law. Stock subscriptions are for the building up of the corporation, and antedate the business of insurance and the taking of risks for which it is chartered. They fall no more within the term “risks,” and “business of insurance,” than do contracts for rent of offices, purchase of paper and other stationery, advertisements, etc. If they were included within the prohibition, we should have the legislature gravely declaring that no insurance corporation could take a valid subscription of stock until it had a capital of one hundred thousand dollars. The comments of counsel upon the effect of § 91 of said act upon the question, have no foundation in the case made, and need not be considered.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff in error complains of certain alleged irregularities in the proceedings of the district judge, and asserts that his case was heard and determined outside-the court-room, and that he has had in fact no trial by any court, as required by law. The record shows that the case was tried under the following circumstances: The district court of Crawford county was in session at the court-house in Girard, in that county, and the trial of the case of The State-of Kansas v. Noah T. Miles had progressed until the evidence had all been submitted to the jury. Whereupon his honor, B. W. Perkins, presiding judge of the court, suspended said trial for a few moments, and thereupon called the case of John Harkreader v. L. W. Mohon, and asked if the parties were ready for the trial of that cause, when the plaintiff announced his readiness, and the defendant said he would be ready upon the regular call of the docket. The judge then placed D. B. Vansycle, Esq., on the bench to preside during the arguments of counsel in the criminal case, and ordered and directed the regular jury, the under-sheriff of the county, and the respective parties, together with their witnesses, to> repair to the law-office of John T. Voss, Esq., in said city of Girard, which the defendant obeyed under protest. The court then directed the counsel in the state case to proceed with their arguments; and the presiding judge then proceeded, accompanied by the under-sheriff and jurors aforesaid, to the law-office of John T. Voss, almost one-fourth of a mile from the regular court-room, and did then and there, under protest of said defendant, proceed to try the cause of Harkreader v. Mohon, two sessions of the district court being held at the same time in the same county. Counsel for the defendant protested against a dual court, and asked that his exceptions be noted, which said presiding judge failed to do; and in such trial the presiding judge called and swore the jury, swore all the witnesses,] received the verdict, and discharged the jury at the said law-office aforesaid, and deliv ered the proceedings to the clerk of said district court, who was not out of the regular court-house at any time during the trial of the cause. After reaching the regular courtroom the presiding judge took the bench, vacated by the said D. B. Yansycle, and conducted the business of said court as usual.
The judgment rendered against said plaintiff in error was for $65 debt, and $13.20 costs. The evidence is not preserved in the record, and no other excéptions were taken on the trial than as above stated. The action of the judge was in some degree irregular, and his proceedings a subject of criticism; but no substantial error was committed to the prejudice of the plaintiff in error. He attended with his attorney at the place designated by the judge for the trial of the cause, and proceeded with and participated in the trial. It is true, he protested against leaving - the court-room, and against the hearing being had in a law-office; but he afterward took part in all the proceedings, and thereby waived his objection to the place of trial. Under the facts in the case, and the conduct of the plaintiff in error, nothing was really done affecting the substantial rights of such party; nor does the complaining party show that a different judgment should have been rendered, or that he was prevented from having a fair trial, or even that he had any defense to the claim sued on. Under the circumstances, a judgment thus rendered is not void, and there is certainly no sufficient error apparent upon the record to require or even authorize a reversal of the judgment.
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 on ■ a bond of a treasurer of a school district, brought by the district against E. S. Walker, principal, and D. J. Jenks and another as sureties. Service of the summons was made on Jenks, plaintiff in error, but as to Walker the summons was returned not served, as said defendant could not be found in Coffey county, and had no place of residence in such county. Jenks filed a general denial to the petition, and also set forth in his answer certain sums paid out by Walker as such treasurer, upon orders duly drawn upon him, and which Jenks claimed as a set-off to the cause of action stated. A reply was filed to the answer of Jenks, denying the claim or set-off therein contained. On 29th August 1874, by consent of plaintiff in error and defendant in error given in court, the court directed a reference to Enos Strawn, Esq., of the issues of fact to be tried in the case. The referee afterward, on 9th December 1874, filed in the office of the clerk of the court of said Coffey county his report and findings, and thereupon the court rendered judgment against plaintiff in error for $1,085.05, and costs, which judgment Jenks now seeks to reverse.
I. The first errors complained of are, that the trial was proceeded with in the court below against the surety, without the service of a summons on the principal to the bond, and that the court overruled a motion of plaintiff in error for a continuance for service of summons on said principal. The reasons given in the court below against proceeding with the trial in the absence of service on Walker, were simply, that said Walker was principal on the bond, and he had not been served with process in the suit, and as Jénks was only a surety the case should be continued until such service had been obtained. The counsel for the plaintiff in error now suggests that the liability of the surety is so dependent upon that of the principal, that until the liability of the principal is fixed by a suit to which the principal is a party, the surety cannot be held liable. The district court committed no error in its action in overruling the motions for a stay of proceedings, and for a continuance. Under our statutes, the bond sued on was a joint and several obligation. The defendant in error could elect to bring a separate action against each obligor, or a joint action against all, or any. Where a suit is brought against joint and several obligors, in which process is not served on all the defendants, judgment may be taken against those served, and the judgment is no bar to subsequent proceedings against those not served at the rendition of such judgment. In this instance, the principal obligor had run away. The plaintiff in error was a proper defendant, and the court ruled rightly in ordering the case to proceed, and in refusing any continuance.
II. Error is also alleged, that the petition did not state facts sufficient to constitute a cause of action against said Jenks. Such is not the case, and the objection thereto was justly overruled. The petition set forth a copy of the official bond of the treasurer of the date of 18th April 1873, which was in due form; that the bond was approved by the director and clerk of the district, and filed with the clerk; that said Walker at the date of said bond had been duly elected to the said office of treasurer; that after the execution of the bond he filed his oath of office, and took upon himself the duties of the office, and from April 19th to November 3d 1873 he continued to act as such treasurer; that on the 3d of said November he resigned the office, and on the following day, Nov. 4th, removed from the school district; that one William J. Bazil was duly appointed his successor on Nov. 13th, and that on the same day he duly qualified as such treasurer and immediately entered upon the discharge of the duties of the office; that while Walker held the office he received $1,875 of moneys belonging to said school district, and that there remained in his hands all of said money; that his successor in office had been prevented from making any demand of Walker for ,the money belonging to the school district 'by reason of his continued absence from the school district, and from his usual place of residence; that said Bazil had not been able by diligent search and inquiry, to find his whereabouts; that said Walker had wholly neglected and failed to pay over to his successor in office the $1,875 in his hands, the property of said school district, or any part thereof, as by the said writing obligatory he had bound himself to do, but had converted all of said money to his own use; that none of the defendants had paid over to said Bazil, successor of Walker as such treasurer, the $1,875, or any part thereof, and that thereby the said school district was damaged in the sum of $1,875, for which judgment was demanded. After Walker had resigned his office as treasurer, had left the school district and his usual place of residence, and concealed himself so that he could not be found, no demand for the moneys in his hands belonging to the school district was necessary before instituting suit. Upon the qualification of his successor in office, it was the duty of the ex-treasurer to pay over any and all money in his hands belonging to the district, which he had collected as such treasurer. Failing to perform his duty, a liability accrued upon his official bond, and his sureties were liable for all money so collected by him, and which he neglected or refused to pay over in accordance with the provisions of the statute.
III. Error is further alleged, because the court refused to set aside the report of the referee. No sufficient grounds are shown for such allegation. The report embodies findings sustaining the averments of the petition, and showing that on April 19th 1873, and afterward, there was in the hands of Walker as such treasurer, of the money belonging to the district, $1,010.25; that between said date and November 1st he received as such treasurer, $122.05, and during all said time he only paid out $125.25, leaving $1,008.05 unaccounted for. For this sum, with interest from the date of the qualification of his successor, the plaintiff in error is liable, and there was no error in rendering judgment therefor. The claim that the report consists of mixed conclusions of law and fact is not sustained so far as any material finding is concerned. Ample facts were reported to support the conclusions of law of the court and the judgment rendered. The execution of the bond was admitted by the pleadings, and the referee need not have made any finding thereon. After finding that Walker had resigned his office as treasurer, had removed from the district and from Coffey county on or about Nov. 1st 1873, and that his successor had been unable to find him, nothing further was required to show a demand, or any diligence on the part of his said successor in hunting him up to make a demand.
TV. Complaint is made concerning alleged misconduct of the referee, and in regard to the action of the judge in considering the motion of the plaintiff in error to set aside the referee’s report, and the motion of the defendant in error for judgment, in vacation, and outside of Coffey county. No bill of exception’s was taken upon the trial; and as no “ case-made” has been brought to this court, we cannot consider the questions attempted to be raised in the brief, as to the alleged misconduct of the referee, or the action of the judge of the court below. There are copies of affidavits in the transcript; but to become a part of the record, so as to be reviewable by this court, they should have been included in a bill of exceptions, or preserved in a case-made. We are not informed upon what proof or evidence the district court acted upon the motion challenging the report of the referee for prejudice and misconduct on the part of the person to whom the refference was made; and this conclusion also applies to the charge that the referee allowed one William B. Parsons to prepare the report. Backus v. Clark, 1 Kas. 303; Altschiel v. Smith, 9 Kas. 90. The record shows that the proceedings were.all had in term time, and in Coffey county; and we cannot presume irregularities by the district court, or the judge thereof, on mere suggestion of counsel.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hobton, C. J.:
From the record in this case, it appears that steps were taken to condemn a right-of-way by the city authorities of the City of Kansas, over and across certain property of the Kansas Pacific Railway Company, at a point where its switching-yards were located, and where there were twenty-two railroad tracks to be crossed, for the extension of a street of said city, called James street. It is admitted by the pleadings, that prior to the attempt by the city to take possession of the property for the proposed extension of said James street as a public street and highway, the railway company had duly perfected an appeal to the district court of Wyandotte county, from the award of the appraisers selected to determine the compensation to be paid therefor. Pending the appeal, the railway company obtained an injunction restraining the city authorities of the City of Kansas from attempting by force to lay out a street across the said premises of the company. On the 21st of December 1874, the plaintiff in error filed its verified answer to said petition, and on 14th January 1875 made application to the judge of said district court, at chambers, for a dissolution of said injunction. The motion to dissolve was heard upon the petition and answer, and was overruled. To reverse, this order this proceeding in error is prosecuted.
Section 65, laws of 1871, pp. 134,135, relating to cities of the third class, provides:
“Private property may be taken for public use, or for the purpose of giving the right-of-way or other privilege to any railroad company, or for the purpose of creating or establishing market-houses and market-places, or for any other necessary purpose; but in every case the city shall make the person or persons whose property shall be taken or injured thereby, adequate compensation therefor, to be determined by the assessment of five disinterested householders of the city, who shall be selected and compensated as may be prescribed by ordinance, and who shall, in the discharge of their duties, act under oath faithfully and impartially to make the assessment to them submitted. Appeals may be taken to the district court from the decision of such householders, in the same manner and within the same time as from judgments of a justice of the peace.”
Under this provision, and the proceedings on appeal from final judgments of justices of the peace, we see no error in the action of the district court. This court decided in the case of Blackshire v. A. T. & S. F. Rld. Co., 13 Kas. 514, that, “By the appeal of the land-owner the assessment of the commissioners is vacated, even as the appeal from the judgment of a justice of the peace vacates that judgment. There is then existing no determination as to the amount of compensation to which the land-owner is entitled. The parties still disagreeing, the company can get nothing until the amount of compensation is settled, and either paid or secured by a deposit of money. Until this question of compensation is settled, and payment made, the company can abandon the route selected, and select another. The fact that it has instituted condemnation proceedings, does not compel it to carry them to a .close, and pay the amount awarded. If it finds the assessment of the commissioners, or the award of the jury, so la^ge as to render it expedient to go round a farm, instead of through it, it can decline to pay, and leave the land-owner undisturbed in his possession.” Substantially the same result follows in this case. The appeal here vacated the assessment of the five householders. The deposit of the amount of the award in the treasury of the city, subject to the order of the railway company, and the notice thereof to such company, gaye no rights to the city to take possession of the premises in dispute, after the appeal was perfected, till such appeal was ended, and the amount of the judgment either paid or secured by a deposit of money. The householders determined in their assessment that $201 was adequate compensation to the railway company for the property sought to be appropriated; yet from a report annexed to the reply to the answer of the city to the petition of the railway company, made and signed by the engineers of several railroad companies, and by the engineer of said city, it appears that the extension of the street as proposed, would be dangerous to the public, and so seriously interfere with the use of the tracks, and grounds of the railway company, that the railway company would eventually find it necessary to transfer its yards, tracks, and interests connected therewith, to some other point; and such report recommends that the only way to solve the difficulty would be to build a bridge over the tracks, and that this would cost at the lowest estimate $21,620. Hence it might be, that upon a full hearing on the appeal, so large a sum may be awarded as compensation to the railway company, that the city would decline to carry forward its intended extension of James street, at the point sought to be condemned for a right-of-way. It might refuse to pay the new award. In such an event, the attempted extension would be abandoned, and certainly it would be very unjust to allow the premises in controversy to be temporarily used or occupied by the city during the litigation as to the damages to be awarded, when the city has the right to abandon the route selected, and withdraw all proceedings to extend the street in a southerly direction as at first contemplated.
The injunction was properly granted in the first instance, and the district court rightly overruled the motion to dissolve the same. St. Jos. & D. C. Rld. Co. v. Callender, 13 Kas. 496; Blackshire v. A. T. & S. F. Rld. Co., supra; Browning v. C. & W. R. R. & Tr. Co., 3 Green’s Ch. Rep. 47; Trustees, &c., v. Davenport, 7 Iowa, 213.
The order of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This case is presented to this court on a petition in error, and what the clerk of the court below certifies as “a true and correct copy of a case-made.” The counsel for defendant in error raises the question, that the case-made was not properly signed and settled as provided by law, as the defendant in error was deprived of opportunity to suggest amendments, and to present the same as authorized by sec. 1, ch. 114, laws of 1871, page 274. The judgment in the case was rendered on January 4th 1876; and thereupon counsel for Weeks “asked for three days from said date to make a case for the supreme court, which for good cause shown, was by the court granted and allowed.” On the same day, January 4th, the said counsel for Weeks presented to the court what purported to be a true and correct case-made, and asked the court to sign and allow the same; and the record shows the following action:
“ Said case-made having been duly served on counsel for plaintiff (defendant in error in this court) for suggestion of amendments, and the court having carefully examined the same, and being satisfied that it is in all respects true and correct, does thereupon on the day last aforesaid, (January 4th 1876,) sign, settle, and allow the same, and orders that it be made a part of the record herein. Given under my hand in open court, at Erie, the day and year last above written. ' Peter Bell, Judge.
“Attest, John E. Corey, Cleric.”
And said “case-made” bears the indorsement, “Filed, Jan. 4th 1876.” The record nowhere shows that the defendant in error was present in court when the case-made was presented, or signed, or that the defendant had examined the case, or offered or declined to suggest amendments thereto, or ever assented by himself or counsel to such case being settled or signed, or filed, or had any notice that such case-made would on that day be presented for settlement. Under these circumstances we cannot pass upon the questions presented in the brief of counsel for plaintiff in error, as the paper attached to the petition in error is no copy of a legal case-made, within the purview of the statute. In M. K. & T. Rly. Co. v. City of Fort Scott, 15 Kas. 435, it was held, that “the making and serving of a case, are the acts of the plaintiff in error; the suggestion of amendments, the act of the defendant in error; and the settling and signing of the case, the duty of the judge;” and that the statute relating to a case-made “may be read so as to mean that the- three days in which to suggest amendments shall be three days after the actual service of the case, and not after the time given in which to serve;” but that the construction, “making the three days to commence upon the expiration of the time given for making and serving the case, while equally warranted by the language is more in harmony with the definitions and regularity of judicial proceedings, and therefore to be preferred.” In this case, the defendant in error had neither the three days after the actual service of the case, nor three days after the time given in which to serve the same, to suggest amendments, as the case was asked for, allowed, served, settled, attested, sealed, signed, and filed, all on the same day.. The defendant in error was thereby debarred of his rights provided in the section of the law making provision for a case-made. The purpose of the plaintiff in error, asking and obtaining the leave of the court for three days’ time in which to make a case, in view of the facts presented, is to us inconceivable. But having attempted to make and serve a case, he had no right, without the consent or appearance of the defendant in error, and without notice to him, to so hasten the proceedings as to have the case settled, signed, and filed on the day of its service on the opposite party. This was in violation of all rules of construction of said section 1, ch. 114, laws 1871. The case-made has no validity; and as a conclusion, the result is reached, that there is nothing before this court upon which it can properly act to review the alleged errors of the district court.
The fact that the record shows that the case-made was signed in open court, does not aid the legality of the paper filed, as the settling and signing of a case-made is an act of the judge, and not a part of the proceedings in a suit of the court, technically speaking; and in this case the paper was signed by the judge. It is true, as the less is included in the greater, the court has like power to settle a case-made; but as it may be settled by the judge, in court, or out of court, we cannot hold that a party is bound to be in attendance upon the court all the time from the service of a- case-made till it is settled; nor can we presume that the settling and signing of a “case-made” by a judge, is with the consent or appearance of the opposite, party, where there is nothing in the record affirmatively showing this fact. The mere signature of the district judge to the paper, a copy of which is presented to this court, as a case-made, is not a sufficient showing that the prerequisites to make the case a valid one, were complied with. The jurisdiction of the judge to settle the case, is a special and limited jurisdiction, which only arises at the times, and under the circumstances, specified by law; and in the absence of any appearance of the opposite party, or a waiver of amendments, it should appear from the record, that the case had been duly served, and that amendments had been suggested, or waived, or, that such opposing party had notice of the time and place of the settling of the case. In other words, the record should show affirmatively, the previous steps necessary to the settlement of the case, in the absence of the appearance, or waiver thereof, by the opposing party.
The counsel for plaintiff in error has sought to complete, and perfect the case-made by filing in this court a certified copy of the amended bill of particulars, and also a certified copy of the judgment in the case; but these papers in no way cure the fatal defects in the original case-made, and give it no new vitality.
Counsel for plaintiff in error suggests, that if the case-made was improperly settled and signed, that the pleadings and bills of exceptions present a full record of the proceedings of the district court, and thereon, that this court can review such proceedings. Unfortunately for the suggestion, the only paper filed with the petition in error is what purports- to be. a certified copy of a case-made. There is not attached to any paper in the case in this court any certificate of the clerk of the district court showing that a transcript of the proceedings of the court below is here, and there is no certificate of the clerk stating that any copy of any bill of exceptions is filed in the case. The clerk certifies that we have a true and correct copy of the case-made, as the original is now of record at his office. This, and nothing more.
The case will therefore be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by reverse an order of the judge of the district court, made at chambers, discharging an attachment. It appears from the
Valentine, J.:
The object of this petition in error is to record that on the 1st of December 1875, J. S. Shedd commenced this action in the district court against Robert L. McConnell and Mary A. McConnell on a certain promissory note and mortgage, and at the same time procured an order of attachment to be issued by the clerk of said court, which order of attachment was on the 2d of December levied on certain goods and chattels belonging to the defendants. Afterward the defendants made a motion before said judge at chambers “to discharge and set aside the order of attachment issued in this cause on the 1st of December 1875, for and on account of defects appearing upon the face of the papers, and on the further ground that it appears from the affidavit upon which said attachment was issued that the cause of action is in the nature of an equitable action, and that it is for the foreclosure of a mortgage upon real property, and the said debt is fully secured by the said mortgaged property, and that each and every of the grounds for an attachment stated in said affidavit, upon which the said attachment issued, are false.” On the hearing of this motion a small amount of oral testimony was introduced, and a vast number of affidavits were read. At the conclusion of the hearing the judge ordered, “that the said attachment be and the same is hereby discharged as to all the property so levied on.” The plaintiff excepted to this ruling, and assigns error thereon.
It will be noticed that the defendants moved to discharge the order of attachment on three grounds: 1st, for defects appearing on the face of the papers; 2d, the debt was fully secured by the mortgage; 3d, the grounds stated in the plaintiff’s affidavit for the attachment were all false. The second ground was really the only one relied on by the defendants on the hearing below, as would seem from the evidence introduced. And it was evidently upon that ground alone that the judge discharged the attachment. At, the close of the hearing there were certainly no defects appearing on the face of the plaintiff’s papers which would authorize the discharge of the attachment. Even if it devolved upon the plaintiff to show, in his original affidavit, that the mortgage was not a sufficient security for his debt, still he showed that fact so abundantly by his subsequent affidavits that the defect (if it was a defect) must be deemed to have been cured; and no other defect appearing on the face of the papers has been suggested. The defendants filed an affidavit made by themselves, possibly for the purpose of putting in issue the grounds stated in the plaintiff’s original affidavit; but . , 1 _ , 7 it certainly does not put in issue all of such grounds. For instance, the plaintiff’s original affidavit stated among other things that on the 1st of December 1875, (the time when said order of attachment was issued, and one day before the defendants’ property was seized,) “ the said defendants have property and rights in action which they conceal.” The defendants’ affidavit states that on December 11th 1875, “they [the defendants] have no property and rights in action which they conceal;” and the affidavit does not state that on December 1st the defendants did not have any property or rights in action which they were then concealing. Both affidavits were probably true in this respect. They do not contradict each other. At least, we should think from the evidence that the plaintiff’s affidavit was true. And if it was true when made, and when the order of attachment was issued, the defendants cannot have the attachment discharged merely because some ten or eleven days thereafter, and after their property had been attached, they had ceased to “have property and rights in action which they conceal.” On the hearing of the motion the plaintiff introduced evidence to prove that the grounds of his affidavit were true, and the defendants did not introduce any evidence to the contrary. Hence the judge could not have found that all the grounds stated in the plaintiff’s affidavit were false. As before stated, we think the judge must have discharged the attachment solely upon the ground that the. plaintiff’s debt was amply secured by the mortgage. It would seem from the evidence introduced, that this was the only question which the defendants desired to submit to the judge. Whether the judge decided correctly or not upon this question, we shall consider hereafter.
The plaintiff claims that the judge had no right to consider any of the questions raised by the motion to discharge the attachment. He claims that a iudge of the dis- . 1 ,, , trict has no power or authority m any case to discharge an attachment at chambers; and (after defining that the word “attachment” means, the seizure and holding of property by virtue of an order of attachment,) he then claims that, even if it should be admitted that a judge of the district court could discharge an attachment at chambers, still that he has no power or authority to discharge an order of attachment at chambers. And he further claims, that as the motion in this case was to discharge the order of attachment, arid not to discharge the attachment itself, therefore the judge has no right to hear the motion, or to discharge the attachment upon such motion. 'With reference to the first claim of the plaintiff, we would say that we think that a judge of the district court has power at chambers to discharge an attachment; and without making any argument in answer to the plaintiff’s argument, we would simply refer to the statutes and authorities from which such argument may be made. (Laws of 1861, p. 121, §3; Comp. Laws of 1862, p. 454, § 3; Gen. Stat. of 1868, p. 304, §2; Bowman v. Cockrill, 6 Kas. 334, 335; Division of Howard Co., 15 Kas. 195, 214, 215; Kiser v. Sawyer, 4 Kas. 503, 511, which holds that, “the court, the greater, includes the judge, the less.” This is true of the business of the court; it includes the business done-before the judge.
With reference to the second claim of the plaintiff, we would say, that, as the judge did nothing more than to discharge the attachment, (taking the plaintiff’s own definition of the word “attachment,”) the question is simply, whether the motion was sufficient. The motion was to discharge the order of attachment. Now would not a discharge of the order of attachment be also a discharge of the property held under the order of attachment? Whether the motion was technically correct or not, as a motion to discharge the attachment, we do not choose to decide. But we think that no material error was committed by the court in considering it sufficient. The proceedings show that the plaintiff had full notice that the defendants desired upon said motion that their property should be discharged from the attachment, and also had full notice upon what grounds the defendants so desired such discharge; and the property was discharged on one of these grounds. •
On the hearing of the motion to discharge the attachment^ the defendants offered to introduce the following testimony of the witness John E. Evans, to-wit: “I know the persons comprising the firm of Prescott & Prescott, and had a conversation with them in Topeka, in May 1875, in their office, in which they said they had made defendant, E. L. McConnell, a loan of $1,000 on his place in Lyon county, and that they thought the place was a good place, and that McConnell was a fine man, and that the loan was well secured.” Neither the firm of Prescott & Prescott, nor any member thereof, was a party to this suit; nor was it shown that either of them was ever authorized by the plaintiff, or by any person under whom the plaintiff claimed, to make any such statement; nor was it shown that the conversation was connected with the transaction of any business for the plaintiff, or for any person under whom the plaintiff claimed; nor was it shown that the attention of either member of said firm of Prescott & Prescott was ever called to said conversation, so as to give either of them an opportunity to explain the same. The judge permitted said testimony to be introduced over proper objections and exceptions .made by the plaintiff. In this we think the judge erred. But as nearly all the evidence introduced on the hearing of the motion is embodied in affidavits, and as we have all the evidence introduced on such hearing before us, this error will not require a reversal of the decision below, provided a preponderance of the other evidence is found to support such a decision.
This then brings us to the last question in the case: Does the preponderance of the evidence sustain the decision be-1()W ? 0r> for tIie PurP°SeS of this Case, We shall state the question thus: Is such decision sustained by at least an equilibrium of the evidence? Eor it may be, that the burden of proof rested upon the plaintiff on the hearing of said motion, and that unless the plaintiff furnished a preponderance of the evidence the decision of the judge below must be sustained.. The question whether the decision of the judge below is sustained by sufficient evidence, depends entirely upon this other question, whether said mortgage was shown to be a sufficient security for the plaintiff’s debt, or not. The mortgaged property consisted of the N.E.-J of sec. 1, township 17, range 12, in Lyon county, except two acres thereof which had been previously conveyed to other parties by the defendants. Said property is broken, hilly, upland prairie, cut up with ravines, and has no improvements thereon except an old, dilapidated, wooden dwelling-house, with out-buildings to correspond, and a well, and about six acres fenced and broke. It is worth about $1,228. But no witness testified that it would sell at forced sale for that price. One witness testified that it would not sell at forced sale for $800; and no witness testified that it would sell at forced sale for more than that sum. The sheriff of the county, who perhaps testified as intelligently upon, that subject as any other witness in the case, testified that said mortgaged property would not sell for cash at sheriff’s sale for $480. Two other witnesses testified to substantially the same thing. The defendant himself did not believe that the land was worth the amount of the mortgage-debt. He was anxious that the plaintiff should take the land for the debt, and said a short time before this suit was commenced,- “that if the mortgage was foreclosed, and said real estate sold at sheriff’s sale, it would not bring enough to satisfy and pay off said claim and the costs of the proceedings.” Soon after he mortgaged the said property he was in the county treasurer’s office, and told the treasurer that he would not pay the taxes on said land for the reason that he had sold the same. A person standing by said to the defendant, that he thought that he (the defendant) had recently mortgaged the premises. And the defendant answered saying, “that said premises were devilish well sold, and that they [the mortgagees] could take them;” “that he had got one thousand dollars on ,the said premises, and that they were devilish well sold, and that they [the mortgagees] might keep them.” And the defendant did not pay the taxes on said premises, although he had agreed in the mortgage that he would do so. And the defendant also failed to make certain improvements on the land which he agreed in the mortgage to make. One of the defendant’s own witnesses testifies that it is not customary for loan agents to “loan more money on land than one-third of the actual value thereof, in Lyon county.” This tends to show that the value put upon land in Lyon county is vastly above its selling-price, and vastly above what it would be a good security for. The statutes provide that real estate sold on execution (except where appraisement is waived) must sell for at least two-thirds of its appraised val m. Generally it will not sell to third persons for that amount, and the judgment-creditor has to purchase it himself at that price in order to bring about a sale at all. Now while the evidence in this case does not show that the mortgaged property would sell at sheriff’s sale for two-thirds of what its value would appear to be, but on the contrary shows that it would not sell for that much, yet under the statutes we think we should presume that it would sell for that much. Now as the property .is worth about $1,228, it should sell at sheriff’s sale for $818.67. And this is all for which it can reasonably be considered as a good security. On the other hand, the mortgage is for $1,000. There is now over $175 of interest actually due on the note and mortgage; (the coupons show $180;) the defendants agreed in the mortgage to pay a reasonable attorney-fee for foreclosure, and the evidence shows that a reasonable attorney-fee would be $150. The evidence also shows that the defendants failed to pay the taxes for the years 1874 and 1875, and we suppose have failed to pay all taxes on the premises up to this time. The evidence also shows that the plaintiff has paid $50 of taxes on the premises. The costs will probably be $50 or $60, and may be vastly more. All these items must be considered in rendering the judgment, and they will all be liens upon the mortgaged property. Whether any of the items can be reduced below the figures we have given, when the judgment shall be rendered, is not certain. It is possible that the attorney-fee may, though that is not certain. It is certain however that the interest will be more than we have stated, and it is probable that the taxes and costs will also be more. Now these items in the aggregate amount to $1,425. And it will therefore be seen that the mortgaged property is not a sufficient secur ity for the judgment which will probably be rendered. But we will suppose that the judge below anticipated that the judgment would be rendered at as early a day as possible, and with as little trouble and expense as possible, notwithstanding the extraordinary contest that was had over this motion, and notwithstanding that the evidence of about seventy witnesses was used on the hearing of this motion. In such a case the amount of the judgment would of course be reduced below the amount at which we have placed it. But still we do not think that the amount could be reduced so low as to make the mortgaged property a sufficient security for the judgment. In fact, we do not think that the mortgaged property would be a sufficient security for the mere naked principal of the debt alone, without interest, without taxes, without costs, and without attorney-fees. We do not believe from the evidence that the mortgaged property could be sold at sheriff sale for ,$800. Indeed, there is only one witness who shows by his evidence that he. resides near the property who says it is worth more than that sum, and he says it is worth only $900. The most of the witnesses who show by their testimony that they reside near the property, say that it is not worth $800, and one witness who has resided within two miles of the property for more than eighteen years, says that it is not worth more than $400.
It would seem from the foregoing facts, that but one conclusion can be reached. In Gillespie v. Lovell, 7 Kas. 419, 423, which was an action to foreclose a mechanic’s lien, and in which an order of attachment was issued and levied, we held that “under §190 of the civil code the plaintiff may have an attachment in every ‘ civil action for the recovery of money,”’ and that an action to foreclose a mechanic’s lien was a civil action. In such action, and also in an action to foreclose a real-estate mortgage, where the plaintiff recovers, á personal judgment is rendered against the debtor, where such debtor is made a party defendant, as in this case. In the case cited, the defendant did not attempt to show that the property bound by the mechanic’s lien was a sufficient security for the plaintiff’s claim, but he did object to the plain tiff’s showing that such lien was not a sufficient security. We held that “if it had been shown that the lien itself was a sufficient security for the plaintiff’s claim, it would have been the duty of the court below, or judge, to dissolve the attachment.” The logical deduction from this decision is, that in an action for money in which a personal judgment may be rendered against the defendant, the plaintiff may, if sufficient cause exists, have an attachment against the property of the defendant, notwithstanding the fact that in the same action the plaintiff seeks to foreclose a lien on specific property held as security for the debt due, provided such lien is insufficient security for the plaintiff’s claim; and that where in such an action an order of attachment is duly sued out and levied, and it is shown that the mortgaged property is not sufficient security for the plaintiff’s claim, it is error for the district judge or district court to set aside or dissolve the attachment proceedings merely because of the existence of such specific lien. And therefore, in the present case, the order of the district judge discharging the attachment will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Retford brought suit against the plaintiff in error to recover damages for permanent disability of body and mind, resulting from an injury received by him on May 20th 1873, while in the performance of his duty as baggage-man on one of the trains of the A. T. & Santa Fé R. R. Co., in being hurled from the car by coming in contact with a coal-chute, erected by the railroad company at a switch, or station, called Peterton, and which coal-chute defendant in error claimed was within six inches of where the cars 0£ £[ie gaj¿ railroa(j passed in going along the track, and thereby dangerous to the passengers and employés upon the cars passing the chute. He also alleged in his petition that the accident occurred without any fault on his part, while he, in a careful and prudent manner, and as a part of his duty, attempted to throw and toss letters and packages he had in his possession for the station of Peterton, to the station-agent there, the train at the time not stopping, but proceeding past the place at the rate of fifteen miles per hour. The plaintiff in error answered, denying all the allegations contained in the petition, and for a second defense admitted that Retford received an injury of some kind'about the time stated, but averred that such injury was received without the fault of the plaintiff in error; that afterward, and before the bringing of this action, Retford made a claim for damages for such injury, and the plaintiff in error delivered to Retford $146, he accepting and receiving it in full satisfaction and discharge of the damages and cause of action alleged in his petition. Retford replied, denying the allegations contained in the second defense, and for a further reply alleged, that if he did receive the said sum of money it was received by him as and for wages due at that time from plaintiff in error for services rendered at the instance and request of plaintiff in error, and not in satisfaction of his claim mentioned in his petition. On the trial a general verdict was returned, assessing the damages of Retford at $4,500; and the following answers to the questions of fact submitted to the jury were also returned:
Question lst.-Who located the coal-chute at Peterton, against which the plaintiff struck? Ans.-Charles Thatcher, the company’s engineer.
2d.-Was or not the person who located and fixed the distance from the track of the coal-chute at Peterton, against which the plaintiff struck, a competent and skillful person for that purpose? Ans.-We do not know.
3d. — Did or not the person who located and fixed the distance of the coal-chute at Peterton against which the plaintiff struck, use his best judgment and skill in determining the distance from the track? Ans.-We do not know.
4th. — State whether or not the coal-chute was located at the distance from the track, usual and customary among railroads for such structures to be located and placed? Ans.-It was not.
5th. — What was the distance from the track of that portion of the coal-chute against which the plaintiff struck ? Ans.— Three feet, four inches.
6th .-What was the distance from the outside of the baggage car in which plaintiff was at the time of the injury, to that portion of the building against which the plaintiff struck? Ans-Eleven inches.
7th. — State whether or not coal-chutes along the line of railroads should not be, for convenience and use, placed as near the track as is compatible with the safety of passing trains? Ans.-Yes.
8th. — What was the speed of the train, at the time of the injury to the plaintiff? Ans.-Ten miles an hour.
9th.-What was the position of plaintiff while approaching the coal-chute against which he struck? Ans.-Standing in the door, with his head and body partly out.
10th.-Did or not the plaintiff have his head and shoulders protruding from the side of the car, immediately prior to being struck? Ans. — Partly.
llth.-Did or not the plaintiff go to the side-door of the car, when the train first struck the switch? Ans.-No.
12th.-What was the distance from the ‘building against which the plaintiff struck, to the switch? Ans.-Six hundred feet.
13th.-Was there, or not, any obstruction on or near the track to prevent the plaintiff from seeing the coal-chute, from the time of his first going to the door? and if so, what were the obstructions? Ans. — There were no obstructions.
14th.-Was he not, immediately before receiving the injury, leaning out of the car-door next the coal-chute, with his back toward the engine and coal-chute, talking and laughing with a person near the track, to whom he had thrown a paper ? Ans.-Y es.
15th.-If the jury answer the last (or 14th) question in the negative, then state what the plaintiff was doing and his position immediately before receiving the injury? Ans.--.
16th . — Was there negligence on the part of the plaintiff, and if so, of what did it consist? Ans.-No negligence.
17th. — Was there negligence on the part of the defendant, and if so, of what did it consist? Ans.-Yes. In erecting the coal-chute nearer the track than usual, or customary.
18th.-Did the plaintiff execute the receipt marked “B”? Ans.-Yes.
19th.-Did the plaintiff execute the receipt marked “A”? Ans.-Yes.
Judgment was rendered for Retford for $4,500. Upon the trial, defendant in error offered evidence, against the objection of the railroad company, showing that soon after the injury to Retford the track was moved, at Peter-ton, so as to throw it about eight inches further out from coaj.chute. On the part of the plaintiff in error, it was shown by one Norton, who in June 1873 took charge of the track of the railroad at the place of the injury, that in the latter month he ordered the track moved back toward the coal-chute from four to six inches, which was done, and that he intended to move it still nearer to the chute. Upon the point, of the change of the distance from the track to the coal-chute, the court, against the objection of the railroad company, gave the following instruction to the jury:
“ If you are satisfied from the evidence that soon after the happening of the injury complained of, the track of defendant’s road was moved back some distance from the coal-chute, this you may consider as a circumstance tending to show negligence on the part of the defendant.”
We do not think that there was any error committed in admitting the evidence as to the removal of the track after the injury. The jury could consider it for what it was worth, and with proper instructions it might have aided, in some degree, the jury in determining whether the railroad company changed the track on account of it being in too close proximity to the coal-chute for the safety of its employés, or for other reasons. The circumstance was a slight one in the case, but was not wholly immaterial. The instruction however, based upon this evidence, while possibly not erroneous, yet placed-too much prominence upon the change of the track, and in view of the evidence, and the other instructions, had the tendency to mislead the jury. Frequently it is unwise for a trial court to select a single circumstance from the testimony, and upon that found a special and separate instruction, thus making it, as it were, the leading and prominent point for the jury to consider. In this case, such action was more than usually injudicious. Retford had rested his case, so far as the evidence on his part was concerned, upon his own evidence as to the injury, and proof that soon after the accident the track was thrown out about eight inches from ’ the coal-chute. The railroad company in rebuttal mainly offered evidence as to the distance of the coal-chute from the track at the time of the accident; that it was erected at a safe distance from the track; and that the injuries which Retford received resulted from his own negligence in leaning outside of the car, while passing the coal-chute. This instruction, so objected to, brought the removal of the track prominently before the mind of the jury, and made this circumstance, to the exclusion of other matters, the great and asorbing question in the determination of the alleged negligence on the part of the railroad company, and thus resulted, unintentionally, in a misdirection of the jury. In the case of the St. Jos. & D. C. Rld. Co. v. Chase, 11 Kas. 47, where evidence was produced that the smoke-stack of an engine was changed after sparks therefrom set fire to and burned certain hay, because of the defective condition of the smokestack, Mr. Justice "Valentine, in delivering the opinion of the court, held the instruction, limited and restricted as that was, not erroneous, but said, “The court possibly; however, gave too much prominence to a slight circumstance, such as this was.” In that case, the instruction as to the change of the smoke-stack, after the firing of the hay from the sparks which escaped from such smoke-stack, did not state, as in this case, that such change could be considered a circumstance tending to show negligence.
On the trial, the counsel for the plaintiff in error asked the court to instruct the jury, “that if they believed from all the evidence in the' case that the plaintiff had knowingly and willfully testified falsely to some material fact in the case, they were at liberty to disregard the whole of his testimony.” This instruction was refused, and thereafter the court gave to the jury thirteen instructions in the case, the second one of which was as follows :
“You are the exclusive judges of the evidence, of the facts proved or disproved, of the credibility of the witnesses, and of the weight to be given to their testimony. The law you will take from these instructions; and if you believe from the evidence that any witness has willfully and knowingly testified falsely to any material fact, you shall totally disregard all such witness’s testimony.”
Upon the giving of said series of instructions, numbered from one to thirteen inclusive, the counsel for plaintiff in error excepted “to all, and to each and every one of them.” The exception to said second instruction was duly taken. Kas. Pacific Rly. Co. v. Nichols, 9 Kas. 256. Such instruction was erroneous. Shellabarger v. Nafus, 15 Kas. 547.
The fourth instruction given by the court to the jury, was as follows:
“A preponderance of the evidence does not necessarily imply the greater amount of evidence, but is that which is most reasonable, and easy of belief, under all the circumstances surrounding it.”
Clearness, as well as accuracy in an instruction, is of the first importance; and if an instruction permits the jury to draw an incorrect inference, or is given in so bungling a manner as rather to make the case obscure than to throw light upon it, the party aggrieved has just reason to complain. This instruction is justly open to the criticism of being inaccurate, and awkwardly drawn. As given, it could not have aided the jury in their deliberations. If the court had stated, that the preponderance or weight of evidence did not reasonably imply the testimony of the greatest number of witnesses, it would have more correctly stated the law upon the point sought to be explained. Neither is a “preponderance of evidence” accurately defined by the statement “ that it is that evidence which is most reasonable, and easy of belief, under the circumstances surrounding it.” We think that in this instruction, the court in the haste of the trial, used inapt language to express the idea intended to be conveyed.
If the above instructions had been given in a case where an examination of the record disclosed clear and convincing proof in suppport of the verdict below, we might not disturb a judgment founded thereon; and if but one of said instructions had appeared in this case, we would have had doubts of ordering a new trial. But taking all the instructions above commented upon, and the closeness of the case, a combination of errors, slight under some circumstances, but serious in view of the surrounding facts, is presented which we cannot overlook. The special findings of the jury do not satisfy us that the plaintiff in error suffered no prejudice on account of the giving of these instructions. On the other hand, some of the findings of the jury can only be accounted for, on the theory that they were misled by the instructions of the court.
The judgment is reversed, a new'trial awarded.
Valentine, J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In this case the defendants in error, defendants below, seem to concede the plaintiff’s right to relief, but deny that he has pursued the proper remedy. The action was for. an injunction, to restrain a sale upon execution. A temporary restraining order was granted, which upon motion was thereafter dissolved. The allegations of the petition were, in substance, that at the September term 1875 of the Lyon county district court, the defendants Strong and Burt recovered a money-judgment against one A. S. Smith for a large sum of money, which judgment is still unsatisfied; that thereafter, and on 18th October 1875, the said Smith was indebted to the Emporia National Bank, in about the sum of $350, which was evidenced by Smith’s note, and was secured by the pledge, as collateral security, of a note from E. P. Dixon, which last note was secured by a mortgage upon certain real estate in Lyon county; that on said 18th of October, an arrangement was entered into between the Emporia National Bank, (through its president, the plaintiff in error,) A. S. Smith, and E. P. Dixon, whereby in substance it was mu-, tually agreed between the said several parties that Dixon should convey to the said Smith two lots in the city of Emporia, Lyon county, in consideration (principally) of the said Smith’s procuring and surrendering up to the said Dixon the-note and mortgage executed by Dixon, and assigned to the bank as collateral to Smith’s note; that the bank, through its president, agreed to surrender up this Dixon note and mortgage to Smith, to enable him to procure the ‘conveyance of these lots to himself, on condition that Smith should upon. the conveyance of these lots to himself make a new note to the plaintiff in error for the use of the bank, and secure the same by a mortgage on the lots so to be conveyed to Smith; that this new note and mortgage were for the purpose of securing the indebtedness of Smith to the bank; that said agreement was carried out on said 18th of October, to the extent that the Dixon note and mortgage were surrendered to Dixon, and canceled on the records of the county, and Dixon conveyed the lots in Emporia to Smith; that on the 23d of- said October the agreement was fully completed by Smith’s making a new note for the balance due the bank, to plaintiff in error for the use of the bank, and securing the same by a mortgage-on these two town lots conveyed by Dixon to Smith, which mortgage was on the same day properly recorded; that the surrender of the mortgage to Dixon by the bank, the conveyance of the lots to Smith by Dixon, and the mortgaging of the lots to plaintiff in error by Smith for the use of the bank, were all parts of one and the same transaction; that said Smith was and is insolvent; that on November 24th 1875, the defendants Strong and Burt caused an execution to be issued on their judgment against Smith, directed to'the defendant, John Bay, as sheriff, who proceeded to levy the same upon the town lots so mortgaged to plaintiff for the use of the bank, and the said Bay threatened to sell and convey the same irrespective of plaintiff’s mortgage, under and by virtue of said execution.
Upon these facts the order was made restraining the sale. That the mortgage to the plaintiff is to be deemed a mortgage for the purchase-money, seems to be settled by the-case of Nichols v. Overacker, 16 Kas. 54; and that a mortgage for the purchase-money has preference over a prior judgment against the purchaser, is prescribed by statute. (Gen. Stat. 582, § 4.) Such doubtless would be the rule independent of statute. Curtis v. Root, 20 Ill. 53; Cake’s Appeal, 23 Penn. St. 186; Freeman on Judgments, 323. And we do not understand the learned counsel for defendant as disputing these propositions. But their claim is, that, conceding the priority of plaintiff’s mortgage, his action should not have been to restrain the sale, but to determine the priority of liens, for the mortgagor’s interest in the property was unquestionably subject to seizure and sale in satisfaction of the judgment, and that to restrain the sale absolutely, was to deprive Strong and Burt of their right to have this interest thus seized and sold. It is said, that parties might have been willing to give for the property the amount of Strong and Burt’s judgment, over and above the mortgage; and what right has plaintiff to prevent them from thus obtaining satisfaction of their claim? In other words, if property is subject to two liens, and will sell for enough to pay both, what right has the holder of the prior lien to restrain absolutely a sale under the second lien? It seems to us, that this is a case which calls for the interference of a court of equity, and though the action suggested by defendants’ counsel might have been entirely proper, we are inclined to hold the present also proper. Upon the face of the record, the judgment was the prior lien. Title passed to Smith on the 18th. At that time the judgment-lien attached. (Babcock v. Jones, 15 Kas. 296.) No mortgage was executed or recorded for five days thereafter, so that apparently the judgment was, by five days, a prior lien to the mortgage. The facts giving the mortgage priority existed only dehors the record. And if the property had been sold upon the judgment, and passed into the hands of bona fide purchasers, they would doubtless have taken the title discharged of the mortgage. It was necessary therefore for plaintiff to take some action to preserve his rights as a prior lien-holder. He applied for an order restraining an attempted sale upon execution. The judgment-creditors were proceeding to sell the property as though there were no mortgage lien upon it, and as though the judgment-debtor had full title and interest. And if the record had disclosed the fact of the priority of the mortgage-lien, doubtless the mortgagee would have no right to interfere with such a sale, for the purchaser, if any one was willing to buy under those circumstances, would be chargeable with notice of the record, and would take the property subject to the mortgage. As the record did not disclose the priority of the mortgage, the mortgagee had a right to interfere and restrain an attempted sale of a full title and interest. The statute provides the manner of reaching and selling a mortgagor’s interest in real property; Gen. Stat. p.724, §481; p.726, §§491, 492; Kiser v. Sawyer, 4 Kas. 503. Such a sale would preservé the mortgagee’s rights, and at the same time give to the judgment-creditors the full benefit of the mortgagor’s interest in the property in satisfaction of their judgment. Such a sale therefore the facts and the law would permit. Any other would work injustice and wrong.
We think therefore, that upon the showing made the plaintiff was entitled to a restraining order. While the order should be such as to restrain the sale as threatened, it should be so worded as to leave the judgment-creditors free to proceed under the sections cited to a sale of the mortgagor’s interest in the property. The order of the district court will therefore be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
The plaintiff in error commenced an action in a justice’s court against the defendants in error for the rent of a certain stone building, and also at the same time procured an order of attachment to be issued against the property of the defendants. Afterward the defendants filed an affidavit denying the grounds upon which said order of attachment was procured, and moved the court to dissolve the attachment under section 53 of the justices act.' That section reads as follows:
“ Seo. 53. If the defendant shall, before the trial is commenced, file an affidavit denying the grounds laid for the attachment in the plaintiff’s affidavit, the justice shall, on reasonable notice in writing being given to the opposite party, proceed to examine into the truth of the grounds laid for such attachment, and shall hear such evidence as may be produced by either party; and if it appear that such grounds are not sustained by the evidence, the justice shall discharge the attachment.” (Gen. Stat. 787.)
A hearing was afterward had as to the truth of the grounds for said attachment — both parties appearing, and the plaintiff introducing evidence — and on such hearing the justice dissolved the attachment, and adjudged the costs of. the attachment against the plaintiff. Afterward a trial was had upon the merits of the action, which resulted in favor of the plaintiff. Afterward the plaintiff took an appeal to the district court from the decision of the justice on said attachment-proceedings, but did not pretend to take any appeal from the judgment of the justice on the merits of the action. In the district court the defendants moved to dismiss the appeal on the ground, among others, that such appeal was null and void. The court thereupon sustained said motion, and dismissed said appeal, and the plaintiff excepted, and now brings the case to this court for review.
The plaintiff founds his appeal on section 120 of the justices act, which reads as follows:
“ Sec. 120. In all cases not otherwise specifically provided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered.” (Gen. Stat. 800.)
It will be noticed that this section authorizes an appeal only from a “final judgment.” Now was the order of the justice discharging said attachment a final judgment? We think not. Boston v. Wright, 3 Kas. 227; Davis v. Perry, 46 Mo. 449; Anderson v. Moberly, 46 Mo. 191; Walser v. Haley, 61 Mo. 445; Jones v. Snodgrass, 54 Mo. 597; Bray v. Laird, 44 Ala. 295; Harrison v. Thurston, 11 Fla. 307; Abbott v. Zeigler, 9 Ind. 512; Cutter v. Gumberts, 8 Ark. 449. “A judgment is the final determination of the rights of the parties in an action.” (Gen. Stat. p. 704, §31)5; id. p. 814, §185.) And a final judgment is not less final than a mere judgment. The order taxing costs on discharging an attachment, is not final; but may be reexamined and modified by the same court at any time up to the final taxation of costs in the action. In this very action the order taxing costs in the attachment-proceedings was modified by the justice after the final judgment on the merits of the action was rendered.
The judgment of the court below dismissing the plaintiff’s appeal will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in • the case, having been of counsel in the court below. | [
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The opinion of the court was delivered by
Hobton, C. J.:
This was an actio'n upon a promissory note. The defense was, that the note sued on was executed in consideration of a sale of lands made by Elledge to William A. and Matthew lies; that on such sale Elledge executed and delivered to the said Ileses a bond for a deed of the lands therein named, which recited among other things, that on the payment of the note, Elledge would execute a deed to said W. A. and M. lies to the said real estate. The case was submitted to the court, a jury being waived, and the court at the instance of the parties, stated in writing the conclusions of fact found, separately from the conclusions of law. They were as follows:
Conclusions of Fact: lst.-On the 15th of January 1865, the defendant Matthew lies (served with summons in this case) with William A. lies and William H. Dooley, not served, and who do not answer, made and delivered to the plaintiff, John B. Elledge, his promissory note for $3,393, payable on the first day of January 1871, with ten per cent, interest per annum.
2d.-On said day, and as a consideration therefor, the plaintiff made and delivered his bond to the said Matthew lies, in the sum of $5,000, to be void if on payment of said sum of $3,393, being.said note, the said John B. Elledge shall make to the said Matthew lies a deed to the following described lands situate in Cass county, state of Missouri, to-wit: the N.E.^of section 16, and S.W.J of N.W.J of section 36, all in township 45, of range 33, containing 210.90 acres, at $15 per acre, making $3,043.50, and the further consideration of $249.50 remaining due for other lands sold by plaintiff at the time said note and bond were executed to the said Matthew lies, and for which said Elledge at that time executed deeds, all of which was one transaction.
3d.-Said deed, bond, and note, were executed in Doniphan county, Kansas, where said lies and other makers of said note, as well as the plaintiff, resided.
4th.-Said Matthew lies in 1866 paid on said note the sum of $240, and also in the same year, the further sum of $131.25.
5th.-Ever since the- making of said note and bond, Matthew lies has resided in said Cass county, Missouri, and in Brown county, Kansas; and it does not appear that the residence of said lies was at any time unknown to plaintiff.
6th.-In 1871, the plaintiff commenced an action for the specific performance of said contract, and to recover the amount of said note. Such action was commenced in the circuit court of Cass county, Missouri, against Matthew lies and William H. Dooley. At the October term 1871 of said circuit court said plaintiff recovered judgment against Matthew lies and William H. Dooley on said note, and an order for the sale of the foregoing-described land.
7th.-In said action neither Matthew lies nor William H. Dooley, nor William A. lies, were personally served, nor did either of them appear in said action, by attorney or otherwise, but the service therein was by publication.
8th. — Said land was sold at sheriff sale, and plaintiff became the purchaser thereof, and gave credit oh the note for the sum of $502.48, the proceeds arising from said sale.
9th.-On the 16th of March 1875, the sheriff of said Cass county executed a sheriff’s deed to said lands to said plaintiff.
10th.-No deed of said lands has been tendered said Matthew lies nor said William A. lies, by said Elledge.
llth.-The recital of said record of said suit in said Cass county circuit court, shows that a deed had been tendered Matthew lies.
12th-Said Matthew lies never went into the possession of said lands.
13th — William A. lies cut and sold timber off the forty-acre tract, and some of the timber so cut by said William A. lies was used by defendant Matthew in improving other lands owned by said Matthew in Cass county, Missouri.
14th.-Since said sale and sheriff’s deed, John B. Elledge took possession of said lands, and has improved the same, and now occupies them.
15th.-Since the making of said sheriff’s deed to said Elledge, he has not made tender of any deed to William A. lies, nor to Matthew Ties.
16th.-There is now due on the said note from the defendant Matthew lies the sum of $-, drawing ten per cent. interest.
17th.-The note mentioned in plaintiff’s petition was executed for the said sum of $3,393 mentioned in the bond of John B. Elledge.
Conclusions of Law: 1st. — The recitals of said record of said action in the circuit court of Cass county, Missouri, are conclusive, that a deed had been tendered Matthew lies.
2d.-It is not necessary that a tender of a deed should be made by plaintiff before a right of recovery on the note ac erued to the plaintiff against Matthew lies in this action now pending here.
Thereon judgment was rendered against said Matthew lies for $5,348.80, and costs. The proper exceptions were taken, and the case is here for review.
The conclusions of law found by the court below are erroneous, and upon the findings of fact, the judgment itself was wrongfully given for the defendant in error. The recitals contained in the record of the action of John B. Elledge against Mathew lies, and others, tried in the circuit court of Cass county, state of Missouri, were neither conclusive that a deed had been tendered to Matthew lies, nor even prima facie evidence of such fact. The suit in that state was only a proceeding in rem; and while such judgment is good in regard to the property therein appropriated, it is not evidence of debt in Kansas, nor of the matters therein stated. No personal service was had upon the defendants, or either of them, in that court; and none of them ever made any appearance in the case. The judgment was obtained upon service by publication, and only binds the property converted. The judgment is only good in the state where rendered, not here.
The defense made to the note was a good one, and when it was shown that no deed had been tendered, judgment should not have been rendered in favor of Elledge. The balance due on the note was the consideration of the land agreed to be conveyed by the defendant in error to Matthew and Wm. A. lies. The note and bond are to be construed as dependent stipulations. All the parties to the papers must perform at the same time, neither being under any obligation to trust the other. As it appears that Elledge has neither delivered nor tendered a deed, he cannot maintain an action for the purchase-money embraced in the note sued on. Winton v. Sherman, 20 Iowa, 295; 2 Hilliard on Vendors, 71; Huffman v. Ackley, 34 Mo. 277; Campbell v. Gittings, 19 Ohio, 347; Davis v. McViclcers, 11 Ill. 327; Bucher v. Consadt, 13 N. Y. 108.
The judgment of the court below must be reversed.
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The opinion of the court was delivered by
Valentine, J.:
The first question presented in this case is, whether the summons as served on Mary A. Clough is void, or voidable. The only ground upon which it is claimed that it is void, is, that the summons was made returnable in less than ten days after its date. And the only statutes upon which this claim is based, are the following:: Sec- , 7 0 ti0n 61 of the civil code provides, that “the summons shall be served and returned by the officer to whom it is delivered * * * within ten days from its date.” (Gen. Stat. 641.) And section 105 of the code provides, that “the answer or demurrer, by the defendant, shall be filed within twenty days after the day on which the summons is returnable.” (Gen. Stat. 650.) In the present case, the summons was’ made returnable in six days after its date, and was served by the officer on the day before the return-day thereof. Now a summons of this kind we think is never void. It might be voidable however, if the officer should take the whole time (ten days) given him by law within which to serve it upon the defendant, for in that case the time given to the defendant within which to answer or demur would be short-. ened. But where the officer serves the summons before the return-day thereof, as in this case, we do not think that either the summons or the service is either void, or voidable. In such a case the defendant has lost nothing. He has his full twenty days after the return-day of .the summons within which to answer or demur, and that is all that the law gives him in any case. It is the time of the officer, and not that of the defendant, that is shortened, by making the return of the summons less than ten days from its date.
The next question is, whether under the mechanic’s-lien law of 1872 a sub-contractor who furnishes labor and material for the erection of a building has sixty days from and after the completion of such building within which to file a mechanic’s thereon secure his pay, or has only sixty days from and after the time when he furnished SUGb labor and material within which to file such lien. We think he has sixty days from and after the completion of the building within which to file his lien. (Delahay v. Goldie, 17 Kas. 263, 265, and cases there cited.) The statute evidently intends, in all cases, that the sub-contractor shall have sixty days within which to file his lien from and after the completion of the whole of the work on any particular thing for the doing of which the original contract was made. Therefore, where the sub-contractor finishes his part of the work before the whole of such work is completed, he has moi-e than sixty days from the completion of his part of the work, and exactly sixty days from the completion of the whole of the work, within which to file his lien.
The next question is, whether a sub-contractor is bound in all respects by all the terms and conditions of the original contract made between the contractor and the owner of the property. The plaintiffs in error claim that he is, but we have already decided that he is not, and we think rightly. (Shellabarger v. Thayer, 15 Kas. 619; Delahay v. Goldie, 17 Kas. 263.) In these cases it was held that “the lien of the sub-contractor is limited only by the amount contracted to be paid to the contractor.” In the first case, by the terms of the original contract $800 of the contract-price was to be paid down, leaving only $500 of the original contract-price to be paid afterward, and said $800 was actually paid long before the sub-contractor did anything to or for the building, or contracted to do anything to or for the same; and yet this court held that the sub-contractor, who afterward furnished material for said building, was not bound to know or take any notice of those terms of the original contract which authorized the immediate payment of said $800, or of the payment itself, or that only $500 remained to.be paid on the original contract-price; but it was held that the sub-contractor could nevertheless take a valid lien on the building for the whole amount of his claim, which was $900. For the purposes of this case we shall assume (but without deciding the question) that the sub-contractor is bound by all ,the terms and conditions of the original contract except those relating to the payment in money for the work to be done, and that he is even bound by those relating to payment so far as the amount agreed to be paid is concerned. But this is as far as we think the sub-contractor is bound. He should not under the statutes of 1872 be bound to know the terms of payment further than as to the amount of such payment. The contract is not required to be in writing; nor is it required to be filed in any place, public or private; and a contract that would require the sub-contractor to be bound by the terms of the contract relating to payment, further than as to the amount to be paid, would be in derogation of the statutes themselves. The cases cited by counsel from New York and California are not applicable to cases like this, under our statutes. Indeed, we know of no statute in any state similar in this respect to ours.
That portion of the original contract which the plaintiffs in error claim that the sub-contractor should take notice of and by which the plaintiffs in error claim that the sub-contractor should be bound, reads as follows: “The said McFarland is to contract with such parties as he pleases for materials, as required by the plans and specifications for said building, but the said Clough is to have the right and privilege of paying for the same, and the amounts so paid shall be a payment of like amount upon the contract-priee of said house.” Clough was the owner; McFarland was the contractor; and McDonald was the sub-contractor. The contract-price for the house was $1,900, of which $1,800 was to be paid in cash and the balance, $100, was to be paid in rent. Clough paid said $100 in rent, and paid to various sub-contractors and material-men $1,800 in money. After Clough paid all this, there still remained the sum of $157.78 due to the sub-contractor McDonald, and there were perhaps some other small amounts due to other sub-contractors. Clough claims that because of the foregoing stipulation in the original contract, and because of the said payments made by Clough to various subcontractors, the sub-contractor McDonald is not entitled to any mechanic’s lien whatever. The court below however held otherwise. The court below held that McDonald was entitled to a mechanic’s lien for a portion of the said amount of $157.78 due him, to be determined in accordance with certain instructions to the jury. The court instructed the jury in substance, that said $1,800 constituted a fund from which the sub-contractors were to be paid for their labor and materials; that if the same was not sufficient to pay the whole amount of all the claims of the sub-contractors who were entitled to liens, (which in fact it was not,) then that such claims should be paid therefrom pro rata. This we think was right. As we have before said, every sub-contractor is, under the law, entitled to sixty days, after the completion of the building, within which to file his lien; and he must file it within that time, or lose it. And the owner of the building cannot be compelled to pay anything to any person prior to that time. (Laws of 1872, page 296, §2.) Hence, at the end of the said sixty days, and before the owner can be compelled to pay anything to any person, he may know precisely to whom he is liable, and the amount due to each. If the contract-price will pay all the claims, he should pay all. But if it will not pay all, as in this case, then he must pay the various claimants in proportion to the amount due to each respectively. (Laws of 1871, p. 255, § 8.) Whether the law is a good one or not, is a question solely for the legislature to determine, and not for the courts. The jury under said instructions of the court and other proper instructions, found that there was due to McDonald the sum of $157.78, and that he was entitled to a mechanic’s lien on the defend- and Clough’s property for $138.35 of that amount. The court thereupon rendered a judgment in favor of the plaintiff McDonald and against the defendant McFarland for said sum of $157.78, and ordered that the said property of the said defendant Clough be sold to satisfy $138.35 of said judgment. This we think was right.
But suppose that the said stipulation in said original contract should be held to be strictly binding upon the sub-contractor McDonald: then would it have the effect.to entirely deprive McDonald of his mechanic’s lien? Not entirely so, we should think, and perhaps not at all. That stipulation provided only that Clough should have the privilege of paying for materials furnished, and not for labor; while much that he did pay was for labor, and a large portion of McDonald’s claim is for labor. We however do not think that said stipulation is binding in any respect upon McDonald.
The judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Horton, C. J.:
The sole question presented by the record in this case is, whether the lands belonging to the mixed or half-bloods of the Sac-and-Fox Indians residing in Kansas, but who have tribal relations with the confederated tribes of the Sacs-and-Foxes of the Mississippi, are taxable. The authorities of Franklin county assert the right, and the district court of that county having denied it, and having granted a perpetual injunction against certain tax deeds being issued embracing lands of the defendant in error, the question is properly here for consideration. The lands described in the-petition were allotted to Mrs. Pénnock, and her vendors, under article 10 of the treaty with the Sac-and-Fox Indians of 1st October 1859, (15 U. S. Stat. at Large, 470.) By virtue of the amended 17th article of the Sac-and-Fox treaty of 18th February 1867, (15 U. S. Stat. at Large, 498,) the lands were conveyed to the allottees by the government by patents in fee simple. It is claimed on the part of the defendant in error, that the following provision of said article 10 of the treaty of 1859 exempts these lands from taxes, viz.: “The lands granted by this article shall remain inalienable, except to the United States, or members of the tribe.” This court settled this question in Krause v. Means, 12 Kas. 335. In that case, it was held that by virtue of said amended 17th article of the treaty of 18th February 1867, “the restraint upon the alienation, imposed by the old treaty of 1859, was abrogated.” In that case, Julia Goodell, a half-breed, and a member of the same Sac-and-Fox tribe, conveyed land allotted to her to one Mary A. Means. The opinion in that case fully covers the question in dispute. If the lands are not taxable, they cannot be conveyed except subject to the limitations of article 10 of the treaty of 1859. If such article is abrogated by the amended article 17 of the treaty of 1867, the lands are both taxable and subject to sale and conveyance to any person.
We do not now care to open the question anew. Rights of property have undoubtedly been acquired by various parties since the above decision was announced, which would be disturbed by an adverse ruling, and if any error has been committed by this court, the defendant in error can be fully protected in a case of this character on a review of our decision by the supreme court of the United States. We are of the opinion that “ when the rules laid down by the courts become the laws which sustain titles and contracts, they are, in general, to be sacredly adhered to.” Church v. Brown, 21 N. Y. 335. The learned counsel for the defendant in error participated in the argument in this court in the said case of Krause v. Means, supra, and then insisted here that “art. 10 ceased to operate in 1867, when the treaty of that year took effect,” and that “ever since the United States conveyed the property in fee simple to Julia Goodell, and a fortiori, since it belonged to Mrs. Means, it has been subject exclusively to the laws of Kansas. (See brief, 12 Kas. 336.) If the argument presented then by the counsel for the defendant in error in this cause was good law, and so this court assumed, it is equally applicable now. To him, under the circumstances, the writer of this might well reply, that sometimes “even-handed justice commends the ingredients of our poison’d chalice to our own lips.” If it be claimed however, that the expression in Clarke v. Libbey, 14 Kas. 438, that “the issuance of patents for lands in fee simple, under the terms of an Indian treaty, does not necessarily convey an implication of a full title,” sustains the present argument of the counsel for defendant in error, we answer, that not merely the provision for the patents to issue to the Sac-and-Fox half-breeds, by article 17 of the treaty of 1867, but the general object and purview of the entire treaty is in conflict with any idea that after such last treaty was proclaimed the lands allotted by article 10 of the treaty of 1859, and patented under article 17 of the new treaty, were to continue to be inalienable. The purpose of the latter treaty was not to change the character of the reserve, but to abolish it as a reserve. The object of the treaty was to remove the tribe from Kansas, and to furnish them homes in the Indian country. A clause is contained in said treaty of 1867 to the effect, “that no part of the funds arising from, or due the nation, under this or previous treaty stipulations shall be paid to any band, or parts of bands, who do not permanently reside on the reservation set apart to them by the government in the Indian Territory, as provided in this treaty, except those residing in the state of Iowa.” In obedience to the obligations of this treaty, the tribe, numbering about one thousand, removed in 1870 from their reservation in this state to their new reservation in the Indian Territory, where they have since lived, maintaining their tribal organization. Mrs. Pennock remained in Kansas, and is now with her husband, who is a white man, a resident of the state. There is no longer any tribal organization of these Indians in our state — there are no chiefs here — no councils, and no stated meetings of the tribe. All of this was anticipated in the treaty of 1867. In pursuance of this result, the government provided for the issuance of patents in fee simple to the allottees among the mixed, or half-blood Sac-and-Foxes, and by virtue of the said treaty of 1867, abrogated the restraint upou the alienation imposed by the old treaty. After the issuance of these patents, the lands therein conveyed were alienable, and taxable, in the full meaning these terms imply.
The judgment will be reversed, and an order will be directed to the court below to dissolve the injunction heretofore allowed, and to enter judgment in favor of plaintiffs in error for all costs.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover damages for the flooding of plaintiff’s land by the erection of a dam by the defendant. We shall notice but a single question, for the error in the ruling of the district court upon this was not only material, but changed the entire scope and character of the inquiry. The defendant erected both a dam and mill, the former to furnish power for the latter. The dam backed the water up the stream so that it overflowed plaintiff’s land. The mill was on defendant’s land, and of no special benefit to plaintiff’s farm, indeed of no benefit other than that general one which resulted to all lands within the same distance from the erection of that which tends to promote the comfort and convenience of the entire community. The district court ruled that the damages caused to the plaintiff’s land by the overflow, could be off-set and reduced by the benefits resulting from the building of the mill. In reference to this, it will be noticed that in many respects at least the dam and mill may be considered as two independent structures. Either may be destroyed, and the other remain. True, the power furnished by the dam is used in running the mill; but there is no necessary and essential connection between the two. Steam may be introduced as a motive-power in the mill, and the dam be entirely ignored in connection therewith. The water-power now used in running the cus tom-mill may be entirely changed, and used in running a private factory. The dam may be the cause of direct specific injury to the property of others, while the mill may be of no direct injury or benefit to any property other than that upon which it stands. They may therefore in this sense be looked upon as separate structures, separate enterprises, and not parts of a single entity.
It is clear, we think, that the ruling of the district court as stated was wrong, and for at least two very satisfactory reasons. First, one whose improvements on his own land (made in pursuit of his own business) tend to the general enhancement in the value of neighboring and adjacent property, and who is thereby in one sense conferring a benefit upon such property, does not by such improvements acquire any claim against the owners of such property for compensation! Every fine residence built, every business block, every hotel, factory, and mill, and generally, every improvement, tends to enhance the value of the neighboring property; but who ever heard of one making such an improvement, maintaining an action against his neighbors for such enhancement in the value of their property? The defendant has just as good a claim against all his neighbors for the benefits which his mill has done to their property, as he has against the plaintiff. If he can sue him, he can them. And if he cannot bring a direct action therefor, neither can he offset or recoup those benefits against any damages he has done. And secondly, one who has done injury to his neighbor’s property, and thereby become responsible therefor in damages, cannot compel such injured party.to receive any other compensation than money. If A. trespasses upon B.’s land, either by digging ditches thereon, cutting down trees, or overflowing it with water, he cannot compel B. to receive in compensation a horse, or any other chattel, or merchandise, or labor. In other words, the wrongdoer has not the option of the manner or means of compensation. The injured party has the right to demand payment in money. Thus in the case at bar, if the defendant damaged plaintiff by overflowing his farm, he must pay therefor in money, and cannot compel him to receive compensation in any other way. Gerrish v. New Market Mfg. Co., 10 Poster (N. H.) 478.
For this error the judgment must be reversed, and the cause remanded with instructions to grant a new trial.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action for personal injuries. The petition alleged among other things, that in the month of February 1875, the defendant was in the city of Fort Scott, and the owner and in possession of a buggy and one horse, which he was then driving; that defendant lived and resided near plaintiff, some four miles from Fort Scott; that he asked and invited plaintiff to get into his buggy, and ride home with him; that plaintiff accepted the invitation, got into the buggy with defendant, and started for home; that while on their way home, and when about one-half mile from Fort Scott, defendant overtook one Clark, driving a span of horses, and a wagon; that defendant challenged Clark for a race, and immediately, whipped up his horse to pass Clark; that Clark whipped up his team to prevent defendant from passing him; that thereupon plaintiff, seeing a race imminent, and being in great fear of bodily injury, begged and insisted that defendant should stop and let him out, which defendant refused to do; that against the repeated protests and requests of plaintiff to defendant to stop and let him out, defendant continued to race recklessly, carelessly and negligently, driving his horse at full speed, when, without the fault of the plaintiff, the defendant in trying to pass the team of' Clark so carelessly, willfully and negligently drove his horse and buggy that the buggy struck a stone fence which overturned the buggy and threw plaintiff violently out upon the ground and fence, whereby plaintiff was severely bruised and wounded, and was jby reason of the wounds and bruises caused by the negligence of the defendant confined to his house and bed for six weeks, suffering intense pain of body and mind. Upon the trial in the court below the jury returned a verdict for Sivey for $400, and’ judgment was rendered accordingly. The defendant brings the case here for review.
I. The plaintiff in error claims that the action cannot be maintained upon the averments of the petition, and the evidence given by the defendant in error. We think otherwise. The petition sufficiently set forth a good cause of action against Mayberry, and the evidence of Sivey supports all the allegations of the petition, except it does not appear therefrom that Mayberry willfully drove his horse and buggy so as to throw Sivey out. That Mayberry acted in a careless and negligent manner, is apparent; and the law requires from all persons, including those who render gratuitous services, reasonable care for the safety of life and person. Such care Mayberry did not exercise. His conduct was the more reprehensible, from the fact that he refused to permit Sivey to get out of the buggy, when he was anxious so to do for fear of impending danger; and in answer to the entreaties of Sivey to let him out, he exhibited his recklessness and rashness in saying, “Never mind, old man, old Bill (meaning his horse) will bring us through all right; if he don’t, old Mayberry will pay the damages.” Mayberry is not excused from liability in the case, because Sivey was not to pay anything for his ride. “A person who undertakes to do service for another is liable to such other person for want of due care and attention in the performance of the service, even though there is no consideration for such undertaking. The confidence accepted is an' adequate consideration to support the duty.” (Whar. on Neg. 355.)
II. Upon the trial, the plaintiff below introduced one William Hayes, who, when placed upon the stand, declined to be sworn or affirmed, on the ground that he had conscientious scruples against taking an oath or affirmation. Witness also said that he regarded the scriptural injunction, to “let your communications be yea, yea, and nay, nay, and whatsoever is more than this cometh of evil,” as binding upon his conscience, and that to take the oath or affirmation, as prescribed by the statute, would be a violation of his conscience and religious convictions. The court then directed the clerk to repeat the following words to the witness: “You do sol emnly state that the evidence you shall give in the case wherein A. Sivey is plaintiff, and H. M. Mayberry is defendant, shall be the truth, the whole truth, and nothing but the truth.’*’ Which was done, and the witness signified his assent thereto by saying, “I do.” To all of which the defendant objected. The court overruled his objection, and defendant excepted. The plaintiff then proceeded to examine Hayes as a witness, and the defendant objected to Hayes giving .in any testimony until he was either sworn or affirmed in the manner required by statute. The court overruled the objection, and permitted Playes to make statements to the jury, (without being affirmed or sworn except as above stated,) to the following effect:
“I am a physician and surgeon; have been practicing about fourteen years; was called to see plaintiff when he was hurt; his shoulder was dislocated; the head of the humerus was out, and his arm bruised externally. Gave him chloroform, and reduced the luxation of the shoulder joint; applied cold-water dressings. Was not called in but once after, though I saw him several times. He now has paralysis of the extensor muscles of the hand. I think the nerve was damaged, and this injury to the muscles, which prevents the flexing of his arm, is permanent.”
The facts attempted to be proven by Hayes were material in the case, and the action of the court in permitting the statements of this witness to go to the jury, without the solemnity of an oath, or affirmation, was manifest error. “Before testifying, the witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as is most binding on the conscience of the witness.” (Gen. Stat. 1868, p.695, sec. 339.) “Any person having conscientious scruples against taking an oath, may affirm with like effect.” (Id. 598, sec. 3.) Section 4, Gen. Stat. 1868, p. 598, provides, that, “All oaths shall commence and conclude as follows: ‘You do solemnly swear,’ etc., ‘so help you God.’ Affirmations shall commence and conclude as follows: ‘You do solemnly, sincerely, and truly declare and affirm,’ etc, ‘and this you do under the pains and penalties of perjury.5” This, section is supplemented with the provision, that all oaths and affirmations alike subject the party who shall falsify them to the pains and penalties of perjury.
The witness was permitted to make his statements to the jury on his declaration to tell the truth, without either an oath or an affirmation being administered. The statute was thus disregarded. The conscience and religious convictions of the party were placed by the court above the law, and superior to the mandatory clauses of our statutes. Such procedure cannot be tolerated. If the witness was unwilling, on account of conscientious scruples, to solemnly invoke the vengeance of the deity upon himself, if he did not declare the whole truth, as far as he knew it, then he had the right to testify under the form of a solemn affirmation. He could go no further, and do no less; and the court, in the fullness of its authority in the premises, should have compelled the recusant witness to act in obedience to the requirements of the statute. Its refusal to do so was error.
The judgment must therefore be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Horton, C. J.:
The error complained of in this case is, that the proofs do not sustain the finding of the district court. The writer of this opinion believes that the marriage contract is one which should be sundered only for causes that render its longer continuance destructive of social order, and never for reasons that merely make it an inconvenience to one of the parties. He agrees with the counsel for the plaintiff in error, that “marriage is a contract of so sacred a nature, so vital to our enlightened society, that parties once having entered into the relation, our courts ought not for light and transient reasons, for mere petulance and rudeness, allow the contract to be broken.” If this case was here for trial de novo, instead of review, it may be that a decree of divorce upon all the evidence would be denied. But the many adjudications of this court, as to- the effect of the findings of a trial court, and a judgment thereon, forbid any interference in the decision rendered in this cause. It is a well-established rule of this court, that the verdict of a jury will not be disturbed if there is any testimony to sustain it. It is also settled, that the findings of a court, upon the questions of fact in a case, are as conclusive in this court as the verdict of a jury. Where there is some testimony sustaining each finding, and the trial court has had the opportunity of hearing the testimony from the lips of the witnesses, and of seeing the persons who utter it, this court will not order the findings set aside, nor grant a new trial, although the evidence offered is unsatisfactory, and although thereon, this court, sitting as a trial court, might reach a different conclusion. We are certainly not in a condition to say, after-a careful reading of all the testimony, that any finding is wholly unsupported by evidence; and we should be able so to do, to be justified in disturbing the findings or judgment . of the court below. Hobson v. Ogden’s Executors, 16 Kas. 388; Carson v. Kerr, 7 Kas. 268; Ulrich v. Ulrich, 8 Kas. 402; Hyde v. Bledsoe, 9 Kas. 399; K. P. Rly. Co. v. Kunkel, 17 Kas. 145, and the cases there cited.
It would occupy much space to review, or to incorporate herein all of the evidence produced upon the trial, and we will content ourselves with a brief mention of some of the facts testified to on the .part of the defendant in error. Gibbs, the plaintiff in error, was a farmer in good circum stances, and was worth about $20,000. His wife was a farmer’s daughter, of fair intelligence, and lived before the marriage in the same neighborhood, and near the residence and farm of plaintiff in error. At the time of the marriage, the wife was possessed of no property, and brought none to her husband from any source. They lived together as husband and wife, on the farm of plaintiff in error, in Wyandotte county, from 6th April 1871, to May 16th 1872, a little more than thirteen months. The house in which they lived was the home of Mr. Gibbs prior to the marriage. Plaintiff in error carried on an extensive farming and wood-chopping business, and employed from two to six men as help, making from four to eight or nine in the family, usually six or seven. The husband and wife had a quarrel about August 1871, and came near having a separation. The cause, as stated by Mrs. Gibbs, was, that he “worried her so.” She called his conduct brutal. Her health was good when she married, but soon became very bad, from disease of the womb. One time, while thus diseased, Mrs. Gibbs refused to sleep with her husband, and he compelled her to do so, and used such language toward her at the time, that the witness hesitated to repeat it to the court. Mr. Gibbs accused his wife of being too intimate with hired men, and these accusations were sometimes made when they were alone, and sometimes in the presence of others. On one occasion Gibbs attempted to pull his wife out of bed, to dress, before a hired man in the room. He got her almost out, but she prevented him by catching hold of the bed-rail. Mrs. Gibbs did mos.t of the work for the family in an open house full of cracks, and had to carry water for the house a long distance, about two hundred yards. A physician testified that if Mrs. Gibbs had continued to carry water, as she stated she had to do, it would have resulted in her death, considering the disease with which she was afflicted. When Mrs. Gibbs asked her husband to furnish a physician, he would argue the case, and would say he did not think she needed one, but would get better soon; and she had no physician to attend her while living with her husband. When any of the hired men helped around the house, Gibbs would say he did not hire men to fool around the house. On one occasion, when Mrs. Gibbs asked her husband to get wood for the house, he said, “Any old woman who could not pick up wood enough, ought to freeze to death.” In the winter of 1871, Gibbs called his wife “a damned liar,” and frequently used in her presence to others very obscene and indecent expressions. He said to her one day in the hearing of a witness, “that if she left him, he would follow her and boot her every step of the way back.”
The above is a summary of the most important of the testimony ; and we must hold it sufficient to sustain the finding of the trial court, that the plaintiff in error was guilty of extreme cruelty. All of the law-writers find it difficult to lay down any affirmative definition of legal cruelty. The courts have been equally cautious, considering it more safe not to travel much beyond negative descriptions. 1 Bishop on Mar. and Div. 715-717. In this class of cases, precedents do little more than inform the understanding, and assist the judgment. Perhaps more in this, than any other character of causes, the conclusion to be reached must largely depend upon its own peculiar circumstances, and the character, habits, and disposition of the parties. The authorities generally agree this far, that whatever may endanger the life or health of the party is legal cruelty. If therefore, the evidence in this case shows that the health of the wife was endangered by the acts and conduct of the husband, there was evidence sustaining the finding and judgment of the court. We have referred to the violent and indecent expressions of the plaintiff in error, to and in the presence of his wife, not for the purpose of intimating that these alone constitute cruelty, within any legal sense, but because the use of such language is important on the question of cruelty, and in determining the acts and habits of the husband. The frequent use of such expressions would induce any court more readily to believe evidence as to acts that might endanger the health of the wife. In view of her bad health, the accusations to his wife, in the presence of others, “that she was too intimate with the hired men,” and the act of personal violence committed upon her, in the attempt to pull her, against her will, from the bed, to dress before a hired man, were acts in themselves of such character as to border strongly upon extreme cruelty. More serious however, were the acts and conduct of Gibbs in compelling his wife to sleep with him against her wishes, when she was diseased; in failing and refusing to furnish her suitable medical attendance, which he was amply able to provide; and in having her, at a sacrifice of her health, attend to so many household duties in a house of the character occupied by the family, and especially in rendering it necessary for her to bring water the long distance she was required. These various acts on the part of the husband might endanger the health of the wife. What would impair health, would endanger life. The acts would reasonably and fairly have this effect. Mrs. Gibbs stated that the conduct of her husband was such as to render her life intolerable. She continued to grow worse with her disease as long as she remained with her husband, and at the time she left, she was very severely afflicted, with leucorrhoea, and ulceration of the womb, and also with displacement of that organ. She was so bad that the physician who examined her, and testified at the trial, stated that he did not think she ever would be well. During their cohabitation together, the husband well knew of the disease of his wife, and although he made for her some tea of herbs, got her some pills, and a bottle of medical discovery, yet he.directly refused, as Mrs. Gibbs testified on her recall to the stand, to get a physician when she needed one and asked for one. It is cruelty in a husband, having the means, to withhold medical assistance in sickness, while he is able to provide it. Evans v. Evans, 1 Hag. Con. 35; 4 Eng. Eq. 310; Dysart v. Dysart, 1 Robertson, 106, 111; 1 Bishop on Mar. and Div. 735. Upon all the evidence of the defendant in error, and with our view of the law, we cannot now disturb the judgment. That the plaintiff in error denied fully all the allegations of the petition, both in his answer and upon the witness-stand, and introduced numerous witnesses to sustain his side of the case, is unavailing here. “ The due administration of the law demands, and in the long run the most satisfactory and the most complete justice will be secured by leaving, the settlement of questions of fact to the tribunals which see and hear the witnesses.” K. P. Rly. Co. v. Kunkel, supra. The judgment will be affirmed.
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The opinion of the court was delivered by
Yalentine, J.:
The only question involved in this case is, whether the defendant in error (plaintiff below) has a right to recover on a certain life-insurance policy. That the policy was valid when issued, and that the insured is dead, are facts admitted by the insurance company; but still the company claim that the plaintiff cannot recover, first, because the policy was forfeited prior to the death of the insured for non-payment of premiums; and second, because the plaintiff has no legal or valid interest in said insurance policy. We shall assume that said policy was not forfeited, (and such would probably be our decision if we were .to decide the question,) and shall proceed at once to the consideration of the other question. The facts of the case, so far as it is necessary to state them, are substantially as follows: On March 16th 1870, Enoch Haynes procured from the plaintiff in error an insurance policy on his own life for the sum of $2,000. The premiums were made payable quarterly on the 16th days of March, June, September and December of each year, during the continuance of said policy, and the amount of each premium was $37.58. On May 8th 1872, Haynes assigned said policy to the plaintiff below, Arthur D. Sturges, who had no interest in the life of Haynes. The insurance company assented to said assignment. The plaintiff Sturges afterward paid the premiums on said policy. On 30th January 1873, Haynes died, and Sturges then commenced this action against the insurance company to recover the amount of said insurance policy. Can he recover? We think not. Sturges never had any interest in the life of Haynes, but on the contrary, his whole interest, after said assignment, was in the death of Playnes. Each year that Haynes lived, Sturges was compelled to pay out $150.32 without the slightest hope of ever receiving anything in return therefor. He was compelled to pay that amount in order to preserve the life of his insurance policy; but no payment that he could make would ever increase the amount of the benefit which he expected finally to receive. The policy, in case of death, was worth just as much on the day of the assignment as it ever could be afterward. If Haynes had died on the very day on which said assignment was made, the holder of the policy would have been entitled to receive just $2,000; and no payment of premiums for any length of time afterward could ever increase that amount. Nor was Haynes bound to ever refund anything to Sturges. And nothing that Haynes might ever earn, or own, or receive, could ever possibly go to Sturges. Sturges was not dependent upon Haynes for any support, nor was he his heir, or devisee, or legatee. Nor was there even the slightest tie of kindred or relationship, or even of friendship, binding them together, and making it desirable to Sturges for Haynes to live. Sturges in fact had no interest in Haynes, except that Haynes should die. And as soon as that event should take place, Sturges expected to receive from the insurance company the sum of $2,000; and of course, all his expenditures on said policy and on Haynes’s life would then cease. Hence it will be perceived that Sturges, after said assignment, had a vast interest in procuring the death of Haynes, but had no interest whatever in preserving his life. Haynes’s life cost Sturges $150.32 each year, without the slightest benefit in return, while Haynes’s death would be worth to Sturges $2,000, without the slightest loss or inconvenience whatever. Now can such a state of things be tolerated by the laws of any civilized country? All insurance is in its nature a kind of wagering speculation. In the present case, the insurance contract was in the nature of a bet, for each year, of $150.32 against $2,000, (less the $150.32 paid as premiums,) that the insured would not die within the year; or more strictly speaking, it was in the nature of a bet, for each three months, of $37.58 against $2,000, (less the $37.58 paid as a premium,) that the insured would not die within the three months. Where such contracts are associated with beneficent and modifying circumstances (as many insurance contracts are supposed to be) making them beneficial to society, they are generally upheld, notwithstanding their wagering characteristics. But where they are not associated with any such beneficent or modifying circumstances, but are left wholly in their own naked deformity, as merely wagering contracts, they fall under the same merited interdiction as other wagering contracts. And of all wagering contracts, those concerning the lives of human beings should receive the strongest, the most emphatic, and the most persistent condemnation. This is just what the present insurance policy was, in the hands of Sturges, a mere wagering contract upon the life of Haynes. And if said assignment from Haynes to Sturges were to be upheld, as valid under the law, it would be virtually saying that the law authorizes mere wagering speculations, mere mercenary traffic, concerning human life, and it would be opening the door wide, and inviting to enter the most shocking of all human crimes. If any person should desire to know what men may do where they are strongly interested in procuring the death of an other person for the purpose of obtaining the benefit of a life-insurance policy, he may read the case of The State of Kansas v. Winner, 17 Kas. 298, 300. While it was strongly to the interest of Sturges that Haynes should die, yet there is nothing in the record that shows that Sturges in fact did desire the death of Haynes. But whether he did or not, the principles governing the case are the same. '
In the case of Ruse v. M. B. Life Ins. Co., 23 N. Y. 516, it is said that a “policy obtained by a party who has no interest in the subject of insurance, is a mere wager policy;” (page 523;) and, “policies without interest, upon lives, are more pernicious and dangerous than any other class of wager policies, because temptations to tamper with life are more mischievous than incitements to mere pecuniary frauds;” (page 526.) Mr. May says in his work on insurance, that “all the objections that exist against issuing a policy to one upon the life of another, in whose life the former has no insurable interest, exist against his holding such policy by mere purchase and assignment from another. In either case, the holder of such policy is interested in the death, rather than the life of the insured. The policy of the law forbids such speculations based on the continuance of human life. It will not uphold a practice which incites danger to life, and it substantially declares that no one shall have any claim under a policy upon the life of another in whose life he had no insurable interest at the time he acquired the policy, whether the policy be issued to him directly from the insurer, or whether he acquires the policy by purchase and assignment from another. If he may purchase a policy on the life of another, in whose life he has no interest, as a mere speculation, the door is open to the same practice of gambling, and the same temptation is held out to the purchaser of the policy to bring about the, event insured against as if the policy had been issued directly. It is, in fact, an attempt to do indirectly what the law will not permit to be done directly.” (May on Insurance, § 398.) See also The State v. Winner, 17 Kas. 298, 300.
There are a large number of cases holding, that, in order to enable any person to procure an insurance policy on the life of another, such person must have an insurable interest in the life of such other; and it has even been held that such interest must, in some sense, be pecuniary, and not founded merely upon relationship. (Guardian Mutual Life Ins. Co. v. Hogan, Supreme Court of Illinois, June 30th 1876, 8 Chicago Legal News, 382.) In this case the policy was issued to John Hogan on his own life, for the benefit of his son Patrick Hogan, who had no pecuniary interest in his father’s life; and it was therefore held that the son had no insurable interest in his father’s life, and therefore that he could not recover on the policy after his father’s death. The case of the Franldin Insurance Company v. Hazzard, 41 Ind. 116, is identical with the case at bar in all its essential particulars. In that case Cone procured an insurance policy on his own life, and then with the consent of the company assigned said policy to Hazzard, who had no interest in Cone’s life. The court held that Hazzard could not recover on the policy after Cone’s death. See also Franklin Insurance Co. v. Leften, decided by the supreme court of Indiana in 1876. To the contrary, see St. John v. Mutual Life Ins. Co., 13 N. Y. 31; Valton v. The National Fund Life Ins. Co., 20 N. Y. 32, 38; Clark v. Allen,recently decided by the supreme court of Rhode Island.
In the present case we think, that, as Sturges had no insurable interest in the life of Haynes, he therefore could not purchase, or take by assignment, any interest in said insurance policy issued to Haynes; that such a thing would be most clearly against the most obvious rules of public policy, and therefore not to be tolerated by law; and as he could not take any interest in said insurance policy, he therefore cannot recover in this action. The judgment of the court below must be reversed, and cause remanded for further proceedings in accordance with this opinion.
Horton, C. J., concurring.
Brewer, J., dissenting. | [
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The opinion of the court was delivered by
Horton, C. J.:
The parties to this suit made the following contract:
“It is agreed between John P. Usher, O. S. Hiatt and C. F. Maris, as follows: Said Hiatt & Maris agree^to reset, cultivate and complete the hedges upon sections 23 and 24 of township 10, range 22, in Leavenworth county, and section 19, in Wyandotte county, immediately east of said sections, which were undertaken to be grown by A. S. Penfield; to cultivate and maintain said hedges in a skillful manner, until the same shall be sufficient to turn orderly stock, and such as is contemplated by the laws of Kansas relating to hedge fences. The above sections of land belong to said Usher, and the hedge, when completed, will divide these lands into quarter-sections. In consideration of this agreement to construct, and the construction of said hedges for the said Usher, he agrees to and with the said Hiatt and Maris that if they shall have said hedges set and reset in good and proper condition, and in proper cultivation, on or before the 1st day of July next, 1871, the said Usher will pay them at that date one thousand dollars; and if the said parties continue to cultivate and maintain said hedges, as before agreed, said Usher will pay them five hundred dollars on the 1st day of July 1872, and upon the completion and turning over of said hedges to said Usher, he will pay them one thousand dollars, or the third thereof on the completion of the hedge upon a section, as the 'case may be. If it shall then happen that in consequence of rains the parties cannot put all of said hedges in good condition by the 1st of July next, as above agreed, then said Usher will pay the $1,000, as soon as the hedges are in such condition; and the parties mutually agree with each other, that the said Hiatt & Maris will set and reset and cultivate said hedges as aforesaid without any delay on their part, and said Usher will promptly and faithfully pay them as agreed herein. J. P. Usher, O. S. Hiatt, C. F. Maris.
“Leavenworth, Kas., Nov. 5, 1870.”
In the spring of 1871, Hiatt & Maris commenced work on the hedges under the contract, and in August 1871, Usher paid them the first installment of $1,000. Differences having arisen between the parties ?is to the performance of the contract by Hiatt and Maris, and no other payment being made by Usher, on 24th June 1874 the defendants in error brought suit against the plaintiff in error to recover the other $1,500 mentioned in the contract, with interest on $500 from 1st July 1872. Plaintiffs in the court below, after setting forth the contract mentioned, stated among other things in their petition, “that they continued during 1871,1872,1873 and 1874, to the date of said petition, to cultivate, train, plash, and furnish plants, as they had agreed, and the defendant had full knowledge of what they were doing, and made no objection thereto, and that they performed their said contract; that they had grown on said land a good fence, such as is contemplated by the laws of Kansas, and except in the wet and seepy ground, and where the defendant had destroyed the same, there was at the commencement of the suit, a good and lawful fence, over sixteen miles in length, planted and grown by their labor, skill and materials; and but for the acts and omissions of Usher, all of said fence would at the filing of the petition have been completed as was agreed; that said work, labor, care, diligence and materials are and were, when furnished and bestowed, of the value of $2,500; that said Usher did not keep and perform the contract and promises on his part; that he did not protect the hedges after July 1st 1872, nor did he keep said hedges fenced as agreed; that he rented the lands on which the hedges were being grown to some sixteen tenants, and erected tenement houses, and constructed cattle and horse lots, upon and across the line of hedges, and that stock were confined in said lots-near many of the tenant houses; that Usher, since 1872, had placed large herds of cattle, horses, and hogs on three quarter-sections, on which there were then growing good and thrifty hedges, and without protecting said hedges; and without the fault of plaintiffs, said animals trampled over and ate the young cultivated and tender growth of each year, whereby said hedge is not a fence; that said Usher by his sons and tenants, who were his agents duly authorized, cut down the hedges and made wagon-and-cattle ways through and across the various lines of hedge; that said Usher did in the beginning require his tenants to protect said hedges, but since 1873 said Usher and his tenants had permitted the fire to destroy about two miles of good fence agreed to be protected, whereby its growth was destroyed; and finally, in May 1874, said Usher-commenced plowing said hedge where his stock had destroyed it, and in some places where said hedge had been turned out, and was a good and lawful fence, protecting the crop of defendant; and then that said Usher wholly refused to pay any sum, and claimed that Hiatt and Maris had not fenced the land, and that he should not pay any sum for what had been done, and wholly repudiated and denied that Hiatt and Maris had any demand or right to any pay on account of the contract, work, labor, care, diligence and material furnished. Defendant Usher filed an answer, also setting up the contract, and denied any bad faith upon his part, denied any wrongful acts by him, either of omission or commission, and alleged a non-performance of the contract on the part of Hiatt and Maris, and claimed damages on account of breach of contract by Hiatt and Maris, and their actions in the premises of $5,000. On the general verdict of the jury, and the findings of fact, as finally returned by the jury, with the aid and direction of the court, judgment was rendered against Usher for $584.55. The jury, also, returned the following answers to certain questions submitted by Usher, viz.:
Question A-Did they, the plaintiffs, continue to properly cultivate and maintain the hedge until July 1st 1872? Ams.-No.
Ques. A — What is the value of the hedge plants furnished, and labor bestowed, by the plaintiffs, in cultivating the hedge where practicable to cultivate and grow the same? Ans-Don’t know.
Ques. A-By what time ought the plaintiffs to have com pleted the hedge, so as to be sufficient to turn stock? Ans-Don’t know.
Ques. A — If y°u find they hadn’t done so, by what time, after waiting a reasonable time for plaintiffs to complete it, could defendant complete it himself? Aits.-Don’t know. None.
Ques. A-During the interval between such times, what damage did or will defendant suffer in consequence of the hedge being insufficient? Ans.— None. Don’t know.
Ques. 6.— Or, during such interval, by loss of rental, or other direct consequences of plaintiffs not completing their contract? Ans.-None.
Ques. 7. — What would be the cost of constructing a fence to take the place of the hedge at points wherein the plaintiffs have not attempted the growth of any hedge? Ans — Don’t know.
The transcript then states that—
“The jury having been out for about twenty-four hours, and their answers being as above, the court entered into a colloquy with the jury which resulted in the court taking the verdict into its own hands, and striking out the answer of the jury to the second question, and writing for the answer of the jury thereto, ‘$584.55 in addition to the $1,000 paid by the defendant in August 1871.’ The court also struck out the answer of the jury to the third question, and wrote thereunder, ‘Five yéars from date of contract.’ The court also struck out the answers of the jury to the fourth question, and wrote thereunder, ‘By May 1876.’ The court also struck out the last two words of the answer of the jury to the fifth question. The court also struck out the answer of the jury to the seventh question, and wrote thereunder, ‘There were no such places, except where the hedge crossed running streams.’ And the court at the same time wrote the following questions and answers thereto:
“Question: Did the defendant take possession of the hedges, and put an end to the contract? Answei — Yes, about the first of May 1874.
“Question: Did the plaintiffs continue to cultivate the hedge up to May last? Answer — -Yes, but not as well as they should.
Which questions and answers were submitted to the jury, and the jury without retiring or consultation, other than as above stated, signed' the same by their foreman, which the court received as the verdict- of the jury, and discharged them.”
I. The first alleged error is, the action of the court in overruling the objection of Usher to the introduction of any evidence. The objection seemed to be based mainly upon the admission in the petition that there was no hedge grown “in the wet and seepy ground,” and that ]ience jjja^ an(j Maris had not performed their part of the contract. The petition stated facts sufficient to constitute a cause of action, and the court committed no error in allowing evidence to be introduced in the case. The contract did not require the cultivation and maintaining of a hedge in' running streams, nor in such portions of the ground as it-was impracticable to grow a hedge. The law does not require-a party to perform impossibilities or impracticable acts, which could not have been expected or contemplated by the parties when the contract was made, and the effort to perform which would be a palpable absurdity. As the petition shows that there was no willful departure from the terms of the contract, or any omission in essential points by Hiatt and Maris, and as they claimed therein they had fully performed the contract in all its material and substantial particulars, the law will not hold that they forfeited their right to compensation by reason of mere technical, or unimportant omissions, or their failure to grow successfully the hedge on the wet and seepy ground.
II. Pending the trial the defendants in error amended their petition by inserting, “and said plaintiffs aver that said work, labor, care, diligence and materials are and were when furnished and bestowed of the value of $2,500;” and thereupon plaintiff in error moved the court to require Hiatt and Maris to make their petition more definite and certain, so that it might appear whether they sought to recover the contract-price for the performance of the contract, or on a quantum meruit outside of the contract, and that in default of such amendment, defendant have judgment on the pleadings. The motion was overruled, and the plaintiff in error now complains of such ruling; and in support of his complaint says:
“It will be seen that by the decision of the court in overruling defendant’s motion, the plaintiffs had a sort of a double-barreled affair. In the same paragraph of their petition they are claiming to recover on a contract performed, and for work and labor bestowed in performing such contract. The action of the court permitted the plaintiffs to have an undue advantage. The court ought to have required plaintiffs to have tendered the issue directly upon the performance of the contract, or upon the quantmn meruit. This was error.”
We cannot agree with the learned counsel. By the code, the rules of pleading heretofore existing in civil actions have been abolished. Technical issues have been set aside. Where the plaintiff claims he has a right of action against a defendant, he must state the facts in his petition on which he .grounds his right of action. These are to be stated in ordinary and concise language, and without repetition. The defendants in error having set forth, within the meaning of the code, a statement of the facts constituting their cause of action, and as the allegations of the petition were sufficiently definite and certain to fully inform the plaintiff in error of the precise nature of the charge against him, the court committed no error in refusing to compel them to inform him whether they were seeking to recover the contract-price for the performance of the contract, or on a quantum meruit outside of ■the contract.
III. The jury retired to consider of their verdict on the 3d of December 1874, and the next day returned into court with a verdict as follows: “We the jury find for the plaintiffs the sum of $500, with interest from Julylst 1872” — :and reported that they were unable to agree upon the questions submitted by the court to be answered by them. The court thereupon instructed them to return a verdict for the amount of $500, and to include the interest from July 1st 1872, and ordered the jury to retire and bring in the verdict as directed, and to answer the questions submitted. The jury on the, same day rendered the following verdict: “We the jury find for the plain tiffs, and assess their damages at the sum of $584.55” — and the questions were answered as before stated.
Under the contract Hiatt & Maris were to have $500 on July 1st 1872, in addition to the prior sum of $1,000 paid in August 1871, if they continued to cultivate and maintain the hedge as agreed upon until that time, not otherwise. In their findings upon the questions of fact, the jury in answer to the question, “Did they, the plaintiffs, continue to properly cultivate and maintain the hedge until July 1st 1872?” said No; and to the question, “What is the value of the hedge plants furnished and labor bestowed by the plaintiffs in cultivating the hedge, where practicable to cultivate and grow the same?” answered, “Don’t know.” If these findings had been permitted to stand, the judgment, subsequently entered upon the general verdict, would have been inconsistent therewith. It is evident that the jury intended the verdict of $584.55 to be for the installment due July 1st 1872, with the interest on the $500, from that date; but as they found that Hiatt & Maris had not properly continued to cultivate and maintain the hedge until that time, the $500 could not have been due on July 1st 1872, and hence the verdict of $500, with interest thereon from July 1st 1872, could not be supported on said findings. It appears however that the 9ourt below must have noticed the difficulty of rendering judgment for the $584.55 in opposition to the said special findings of fact, as it thereafter changed the answers as above stated, and also wrote the two additional questions and answers set forth in the statement of facts of the case. The answers thus changed were very material, and the new questions of fact, with the answers written by the court, were equally important. The evidence as to the findings of fact returned by the jury, prior to the changes made by the court in the verdict, is not brought here with the record, but it seems to us impossible that the evidence on the particular questions submitted to the jury, and the answers which were afterward modified by the court, was all one why, as the jury, after having been out about twenty-four hours, answered to the question, No. 2, “don’t know,” and this answer was changed by the court to, “$584.55, in addition to the $1,000 paid by the defendant in August 1871.”
As to the question, “Did the defendant take possession of ■the hedges, and put an end to the contract?” and, the answer thereto written by the judge, the record presents all the evidence, pro and con. It makes over twenty pages of manuscript; and after reading it carefully, we cannot say that the answer is conclusively proven. If the question was a proper one to have been submitted under the pleadings, the jury should1 have been permitted to have taken it to their jury room, and to have then passed upon it, free from any order, influence, or intimation of the court. The act of the court in writing the interrogatory respecting the taking possession of the hedge, and the answer of the jury, was not justified by the record, and was manifest error. The evidence is not all one way upon the point, and there was in fact no submission of the question to the jury. The jury already had had several of their answers erased, changed and modified by the court; and when, under such circumstances, the court wrote out the question and answer, and handed them to the jury, the latter body only obeyed the direction of the court in signing the same through their foreman. There was no fitting consultation, no retiring to deliberate thereon, no real agreement thereto. The dictation of the court was as patent as if an order had been issued, requiring the facts to be found by the jury according to the dicta of the court. The only matter causing serious trouble in the case, owing to the condition of the record, is, whether the action of the court, in thus presenting to the jury the question and the answer already written, affected the substantial rights of the party complaining. As the jury originally returned their verdict for the full amount of the second installment, with interest from July 1st 1872, and afterward, upon the changes and modifications of the court, to undo the fatal finding of the jury under which said sum was not due on July 1st 1872, a verdict was rendered upon the basis that the value of the hedge plants furnished and labor bestowed by the plaintiffs in cultivating the hedge to the commencement of the suit (not including the payment of $1,000) was the like sum of $500, with interest from July 1st 1872, we cannot say but that the rights of the petitioner in error were prejudiced. It is certain, the verdict was transformed from the money supposed to be due, in the first general verdict, July 1st 1872, to the value of the plants and services of Hiatt and Maris; and in this change the jurors acted as automatons, directed by the will of the court. It is impossible to come to any intelligent conclusion, from a review of the action of the jury and court, upon what facts the judgment was supported. The trial of the case in the court below seems to have taken about sixteen days’ time; and as one of the parties suggests, “the court was doubtless weary of the cause, and felt justified in taking effective measures to dispose of it.” Perhaps substantial justice would be accomplished by allowing the judgment to stand, but upon the exceptions taken, we have no right to sanction the errors committed, and must therefore reverse the judgment.
IY. To facilitate the proceedings in another trial, we make additional comments. In the court below, and in this court, the plaintiff in error insisted and still insists, that the contract sued on was entire and indivisible. We are of a different opinion. The contract made' provision for the payment of $1,000 on July 1st 1871, upon certain work being done and material furnished; then $500 to be paid on July 1st 1872, when additional work was done; and upon the completion and turning over of the hedge, the remaining $1,000, or the third thereof, on the completion of the hedge upon a section, as the’case might be, was to be paid. Within the authorities the contract was a separable one, and Hiatt and Maris became entitled to the various installments named therein, if at the dates thereof they had complied with their part of the contract. If they have been prevented by the plaintiff in error from completing the hedge, by acts of omission or, commission, they can recover, and invoke the contract for the purpose of deter-' mining what the measure of their recovery shall be; and if it be admitted that there was a breach of the contract by Hiatt and Maris, they can also recover for their part performance, in accordance with the contract-price, but their claim would be subject to any damages resulting to the plaintiff in error from a non-performance of the contract by them. We use, in this connection, the word “damages,”in its broadest sense. It would include a consideration of the amount necessary to enable Usher to get the contract completed and carried out according to the original intention of the contracting parties.
Other errors are alleged, but as they may not arise in a new trial of the case, we do not think it necessary to refer to them.
■ The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action to restrain the collection of certain taxes levied by and for school district No. 11 of Crawford, Labette, and Neosho counties, on property situated in that part of said district which is located in Crawford county. The action was originally commenced against the treasurer and sheriff of Crawford county a]one) but afterward the. court permitted said school-district to be made a party defendant. The plaintiffs, who are also plaintiffs in error, complain of this action of the court below. We think however that the action of the district court in this respect was entirely correct. (Hays v. Hill, 17 Kas. 360.) Said treasurer and sheriff were merely nominal parties, and the school-district was the real party in interest.
The action was tried by the court below without a jury, and the court made certain findings of fact, and then rendered judgment upon these findings of fact in favor of the defendant, and against the plaintiffs; and of this judgment the plaintiffs as plaintiffs in error now complain. We think the judgment is correct; or at least we cannot say that sufficient error was committed to require a reversal thereof. That the facts found sustain the judgment, we think there can be no doubt. And we think there is sufficient evidence to sustain all the material findings of fact. It is true, that the evidence upon some points is conflicting, and not very conclusive; but still there is some evidence, and sufficient evidence upon every material point to sustain all the material findings of fact.
The only ground upon which the plaintiffs claim that said taxes are invalid is, that said school-district never had a valid organization. The court below however found that it had a legal and valid organization; and if that ° ■ . finding were really material m this case, still we think that this court could not under the evidence set it aside. That the school district had an organization de facto, we think there can be no doubt; and if it were competent in this case to show that it never had any organization de jure, then we think it devolved upon the plaintiffs to show that it never had such organization. Now the plaintiffs did not . show it, and it was not shown in the case. But as the district had a de facto existence, a de facto organization, we do not think it was competent in this case for any one to show that it did not have any legal existence or legal organization. That the district had a de facto existence as a school-district, is sufficiently shown. In 1871 the county superintendents of public instruction of the counties of Crawford, Labette, and Neosho attempted to organize it into a school district. And since that time it has been recognized as a valid organization, not only by the people of the district, but also by county superintendents of said counties, and by other county officers, and by the people generally. It has received public funds from said counties the same as though it was a valid school-district. It has elected officers, built a school-house, and maintained schools, up to the commencement of this action. And some of the plaintiffs in this action have not only been officers of the district, but have also sent their children, to the schools of the district. The taxes which the plaintiffs now wish to enjoin have been placed upon the tax-roll of Crawford county by the county clerk of said county, and the county treasurer and sheriff of said county are now proceeding to collect the same. Under such circumstances it is not competent for the plaintiffs to show, in an action to enjoin taxes, that said district, being an existing de facto school-district, has never had any legal or valid organization. If in fact the district was never legally organized, if in fact the attempted organization has never become valid by acquiescence, (Wildman v. Anderson, 17 Kas. 348,) then the only remedy for the plaintiffs is by an action in the nature of quo warranto. They cannot attack the legality of the organization of the district in the collateral manner in which they have attempted to attack it in this case. The organization of corporations, or quasi corporations, can only be set aside by a direct proceeding. If said school district were not a school district de facto, probably such an action as this might be maintained.
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
Gilkeson, P. J. :
On. the 7th day of May, 1887, John C. Douglass commenced this action in the district court of Leavenworth county against JR, B. Craig,for the recovery of certain real estate in the city of Leavenworth, and for the rents, issues and profits thereof from the 15th day of November, 1884, up to the time of the commencement of this action, and for damages for withholding the possession of said property. Before a trial was had B. B. Craig died, leaving the now defendant in error, Imogene Craig, his sole heir and devisee under his will. Thereupon a supplemental petition was filed against her, to which she answered by general denial and plea of possession for more than 15 years, and afterward by a supplemental answer, setting up title to the land in controversy in her own right under and by virtue of a tax deed, to which plaintiff filed a reply of general denial.
At the April term, 1891, the cause came on for trial before the court, a jury being waived. The court made special findings of facts and conclusions of law as, follows :
“findings of fact.
“1. On the 18th day of April, 1887, .the plaintiff, through a quitclaim deed from one of. the heirs of Daniel L.‘ Henry, became the owner of one undivided one-fourth (i) of the lots in controversy, and immediately caused said deed to be recorded in the proper office. Prior to the execution of the said quitclaim deed, plaintiff claimed to be the owner of said lots by virtue or certain tax deeds from the ooumy and city of Leavenworth, which wore, however, void upon tlieir face, and conveyed no title to the plaintiff.
“2. On November 14, 1884, R. B. Craig, the then husband of the defendant, obtained from the coimty of Leavenworth a tax deed for the taxes of 1878 upon said lots, regular and valid upon its face, but invalid by reason of defects upon which it was founded, which deed was recorded in the proper office November 19, 1884.
“ 3. Said R. B. Craig, on the 7th day of July, 1887, died, and the defendant, Imogene Craig, then became the owner of whatever interest «the said R. B. Craig had in the lots as the sole legatee under his will, which was duly probated soon after liis death.
“ 4. Thelotsin controversy from time immemorial, . and until a few days after November 15, 1884, remained and were vacant and unoccupied when the plaintiff took possession thereof and was proceeding to inclose the same, until he was forbidden by said R. B. and Imogene Craig; in a day or two after he commenced to inclose the same, and to further proceed with the work of inclosing the same. The said R. B. Craig claimed to be the owner of the lots by virtue of a tax deed of November 14, 1884. The plaintiff thereupon, by reason of being so forbidden, stopped the work of inclosing said lots and made no further efforts to complete the same. Very soon thereafter, without the consent of the plaintiff, the said R. B. Craig took possession of said lots and inclosed the same with a substantial fence, and remained in possession thereof until his death, when he was succeeded in such possesion by Imogene Craig, who has since had the possession until now..
“ 5. The lots in controversy for the year 1885 were - entered upon the assessment and tax-rolls in the name of R. B. Craig.
“ 6. This action, which is in the nature of an ejectment and for rents and profits, was commenced by the plaintiff' against R. B. Craig May 7, 1887, and said Craig filed his answer denying title to the plaintiff and admitting possession in himself.
“7. The taxes levied upon said lots for the year 1885 remained due and unpaid and delinquent, and said lots were sold for such taxes in September, 1886, to the county of Leavenworth. In November, 1887, the sale certificate was duly sold and assigned to one William Booth, on the 14th day of the month. On the 15th day of the same month said sale certificate was duly sold and assigned by Booth to Imogene Craig, by the name of Mrs. R. B. Craig, and on February 13 she obtained a tax deed thereon from the county of Leavenworth, which was regular upon its face and valid, and was recorded in the. proper office on May 1, 1890.
“8. After the death of R. B. Craig, in July, 1887, this action was revived against Imogene Craig. On July 13, 1889, the plaintiff filed a supplemental petition making her a party defendant, caused a summons to be issued to her, which was duly served, and on October 9, 1890, she filed a supplemental answer, setting up her deed of February 13, 1890, mentioned in finding No. 7, and on the same day the plaintiff filed his reply thereto, denying her title to said lot under said tax deed.
“9. The valuation of the rents and profits of said lots from November, 1884, was $4 per year.”
“conclusions ok law.
“1. The defendant is'entitled to a judgment that she is the owner of said lots and entitled to the possession of the same and the costs accruing subsequently to the filing of her supplemental answer, October 9, 1890.
“2. The plaintiff is entitled to a judgment for costs ^ accruing down to October 9, 1890, and for rents and profits of the lots from November, 1884, to October 9, 1890.”
And judgment was rendered thereon. The case made contains a statement that the plaintiff excepted to the said several conclusions of law at the time, and filed liis motion for a new trial, on the grounds : (1) That said fundings of fact and conclusions of law are not sustained by sufficient evidence and are contrary to law ; (2) for error of law. occurring at the trial and excepted to by plaintiff. The motion is not preserved in the record, nor is the testimony, or any of it, but in said case made we find the following statement:
“On the trial of said cause, plaintiff, to maintain the issúes on his behalf, and to prove, aliunde the face of defendant’s said tax deed for taxes of 1885, that said deed was void, offered competent evidence tending to show that there was included in said tax deed of 1885, and for which said lots were sold, a printer’s fee of 10 cents for each lot, and that the printer who published the delinquent tax-list and notice of sale did not, immediately after fhe last publication thereof, nor within 14 days thereafter, nor at any time, transmit to the treasurer of said Leavenworth county an affidavit of such publication made by himself or. by any one. Defendant objected to said evidence because it was immaterial, inasmuch as it appeared that such list and notice, with such affidavit attached, was transmitted to the county clerk of said county direct from said printer, and within said 14 days. It being true that the list, notice and affidavit referred to in the publication were transmitted from the printer 'direct to the county clerk, and were recorded by him within 14 days, as provided by law, the court sustained said objection for these reasons, and plaintiff at the time excepted. Plaintiff further, for the same purpose, offered like evidence tending to prove that there was included in said taxes of 1885, as part thereof, a levy by said city of Leavenworth, a city of the first class, for constructing and maintaining the main trunk sewers of said city, a tax of three-fourths of a mill on the dollar valuation on all lots and pieces of ground in said city subject to taxation, exclusive of personal property, an'd the value of the real estate to be taken from the general assessment roll of said county, said year. Defendant objected for same reasons as last above, .and the court sustained the objection, and plaintiff excepted.”
The above and foregoing was all the evidence offered to prove the invalidity of said tax deed for the taxes of 1885; and this is the only attempt to set out any of the testimony offered on the trial of this cause. The petition in error contains 13 assignments of error, but from the condition of this record it is impossible for us to pass upon any of them, except such as come strictly within the admissions of the case made as to the testimony offered and refused on certain points, and as to what the others are founded upon, would require an examination of the evidence adduced in the case, which, as we have said, has not been preserved.
The first assignment of error in plaintiff’s brief is the rejection of competent evidence tending to show that there was included in said taxes Of 1885, for which said lots were sold, a printer’s fee of 10 cents for each lot, but that the printer who published the delinquent tax-list and notice of sale did not, immediately after the last publication thereof, nor within 14 days thereafter, 'nor at any time, transmit to the treasurer of said Leavenworth county an affidavit of such publication made by himself or by any one.
Paragraph 6957 (§ 108), General Statutes of 1889, provides:
' “Every printer who shall’ publish such list and notice shall, immediately after the publication thereof, transmit to the treasurer of the proper county an affidavit of publication, made by such person to whom the fact of the publication shall be known; and, no printer shall be paid for such publication who shall fail to transmit such affidavit within 14 days after the last publication,” etc.
To determine whether or not the printer’s fee is prop erly taxable as a charge or penalty against property, we must first ascertain whether or not the county is liable to the printer therefor. If it is not, then there is no áuthority or right for the collection of it, and the statutory requirement compelling the affidavit to be made within a certain time is merely for the purpose of placing in the hands of the county authorities whose duty it is to charge these up against the land proof that such publication has been made.
In other words, the official whose duty it is to enter these charges against the property cannot do so until he has learned through legal proof that they have been earned, and if he does not so learn within the time limited by statute no charge therefor can be entered on the tax-roll. But under this section there must be an absolute, total' failure to make and transmit this affidavit — not a mere irregularity in the manner in which the proof is forwarded to the officer. The mere fact that it is not handed or transmitted to the county treasurer in the first instance would not invalidate the deed. If it comes into his hands by any means, through the medium of the county clerk or anybody else, within the 14 days limited, it would be sufficient. The object of it has been accomplished, and the requirement of the law fulfilled. This same section provides that
“the county treasurer shall also make, or cause to be made, an affidavit or affidavits of the printing of such list and notice as above required, all of which . shall be carefully preserved by him and deposited as hereinafter specified.”
Yet his failure to do so would not invalidate the déed. It is a mere irregularity. (Stout v. Coates, 35 Kan. 382.)
If it were shown that this affidavit had never been received by the county treasurer until after the expiration of the 14 days, then we think the contention of the plaintiff in error would have some force. But it is admitted in this case that the affidavit was made within the time, and, instead of being transmitted to the county treasurer, was sent to the county clerk, and, for aught that is shown in this record, the clerk may have handed it to the county treasurer, and the presumption is that he did, for it will always be presumed, where an officer has performed an act required to be done by him, that it was properly done, and as the fee in this case was charged against the land by the county treasurer, it will be presumed that it was made upon legal' notice, as required by statute. To hold so trifling an irregularity as this should overturn a tax deed is sacrificing substance to form, and would be totally ignoring paragraph 6993, General Statutes of 1889, which was undoubtedly enacted to cover,just such cases. It reads :
“No irregularity in the assessment roll, nor omission from the same, nor mere irregularity of any kind in any of the proceedings, shall invalidate such proceeding or the title conveyed by the tax deed,” etc.
The second assignment of error is the rejection of competent evidence- tending to prove that there was included in said taxes of 1885, as a part thereof, a levy by the city of Leavenworth, a city of the first class, for constructing and maintaining the main trunk sewers in said city, a tax of three-fourths of a mill on the dollar of valuation on all the lots and pieces of ground in said city subject to taxation, exclusive of personal property, and the value of the real estate to be taken from the general assessment roll of said county for said year. Just what point is intended to be raised under this second assignment of error we are at loss to under stand. From what we quoted, it would seem to be the plaintiff’s contention that the levy Avas illegal because it was made exclusive of personal property, but in his argument he says that this second specification of error is based upon the principle of fairness, equality and uniformity which characterizes every exercise of taxation and assessment ; that it is not just, nor equal, nor uniform, to assess for the purpose of the main trunk seAver the lot of a poor man whose little house is thereon as much as that of a wealthy merchant or hotel keeper whose immense building occupies the next lot. This would indicate his contention to be that the levy was illegal because it was made upon land without regard to improvements thereon. We can only answer this in the language of the defendant in error :
“If such is the contention, it contains within itself that which sIioavs the impossibility of considering it, because the first quotation discloses the fact that the valuation of the real estate was to be taken from the general assessment roll of said county for said year. The general assessment roll indicates the value of realty, including the improvements thereon.”
The statute under which the city acted in levying this tax is section 19, Laws of 1891 (Gen. Stat. 1889, ¶563): •
“The mayor and council shall have the power to provide for a system of sewerage and drainage for the city, or any part thereof, and to build and construct sewers or drains by districts or otherwise, as the mayor and council may designate. The cost and expense of constructing the same shall be assessed against the lots or pieces of ground contained in the district in which the same is situated, and the cost of same shall be levied and collected as one tax in addition to other taxes and assessments, and shall be certified by the city clerk to the county clerk, to be placed upon the tax-roll for collection, subject to the same penalties and collected in the same manner as other taxes, as provided by law.”
In Gilmore v. Ilentig, 33 Kan. 156, the supreme court, in passing upon this section, says :
“Where a statute authorizes a city to provide for the construction of sewers and drains, and to tax the costs thereof upon the adjacent owners, but does not prescribe any mode for the apportionment of the taxes, . the city in such a 'case would have a right to adopt any mode for the apportionment of the taxes that would be fair and legal; and, as a general rule of apportionment, the levying of the taxes in proportion to the value of the lots taxed, without the improvements thereon, would be fair and legal.”
As to the assessment being made without including personal property, the act under'which it was made specifically provides that ‘ ‘ the cost and expense of the sewers shall be assessed against the lots or pieces of ground.” This certainly excludes personal property, and, as we have said, from the condition of this record we cannot intelligently pass upon the other assignments of error, as their correctness or incorrectness depends entirely upon the testimony introduced at the trial, which has not been preserved.
We fail to see any error in the record. The judgment of the lower court will therefore be affirmed.
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The opinion of the court was delivered by
Garver,. J.:
This was an action brought by Mrs. A. E. Randall against John M. Burton to recover the value of a stock of goods and merchandise alleged to have been wrongfully converted by the defendant to his own use. The property was of the alleged value of $2,700. The material .facts are: On April 23, 1891, Mrs. Randall executed a chattel mortgage on the goods in question in favor of Burton to secure the payment of the sum of $200 and interest, borrowed from the latter on that date. The goods consisted of a stock which had been a short time previously purchased from one S. T. Smith, at Republican City, Neb., and shipped to Atwood, in this state, where it was stored, packed in boxes, at the time'the mortgage was given. Some time in May, 1891, S. T. Smith, claiming ownership, commenced an action of replevin in Rawlins county against John M. Burton, and, by a writ of replevin issued therein, secured possession of the goods. On May 26, 1891, the replevin action was dismissed by agreement of the parties thereto, Smith retaining possession of the goods, and removing them to Nebraska. Before consenting to the dismissal of the action and the retention of the goods by Smith, Burton received from the former the amount of the Randall loan, and assigned to Smith his mortgage on the goods, but retained the note which was-given for the $200 and interest. At this time Mrs. Randall was absent in Arkansas.
It does not appear that Mrs. Randall was given an opportunity to defend her right to the goods against the claim of Smith in the replevin action; neither does it appear in this case what, if any, rights, as against her, Smith had. It is contended on the part of the defendant in error, that when Burton took possession of the goods in question under his mortgage he was bound to hold them with a recognition of the mortgagor as owner ; that he could only dispose of them so far as might be necessary for the payment of the debt secured thereby; and that the disposition made of them constituted a conversion. This contention is apparently not seriously disputed by counsel for plaintiff in error, their defense being based upon other grounds.
A mortgagee in possession of mortgaged property has well-defined rights. The property is in his possession for a specific purpose, and its use or disposition must be with particular reference to the purpose for which it is held. Hence, any sale or disposal of mortgaged property in denial of the title or interest of the mortgagor therein, or inconsistent with his rights, may be regarded as a conversion. The mortgagee in this case could not, without laying himself liable as for a conversion, voluntarily surrender possession to one not entitled thereto as against his mortgagor. Hence the proceedings instituted by Smith, whereby he obtained possession, and to which Burton voluntarily submitted, are no defense in this case, unless it is made to appear that his claimed ownership was well founded, and that he was-in fact the real owner and entitled to the possession of the property. (Greenawalt v. Wilson, 52 Kan. 109 ; Storage Co. v. Rogers, 35 Neb. 61; Hicks v. Lyle, 46 Mich: 488 ; Gibbons v. Farwell, 63 id. 344; Ashmead v. Kellogg, 23 Conn. 70; Ripley v. Dolbier, 18 Me. 282 ; Norton v. Kidder, 54 id. 189 ; White v. Phelps, 12 N. H. 382.)
It is urged by counsel for plaintiff in error that this action cannot be maintained without proof of a previous tender of payment of the mortgage debt. With this contention we do not agree. Where the property is, as conceded in this case, greatly, in excess of the amount of .the debt secured by the mortgage thereon, no tender of payment of the debt is necessary before the commencement of an action to recover the value of the goods converted. A tender under such circumstances would be a vain and useless thing when the mortgagee has already in law received full satisfaction of the debt out of the property of the debtor. A tender always presumes the right of the one to whom the tender is made to accept and retain it. Certainly no such right can exist under the facts alleged in this case. (Wygal v. Bigelow, 42 Kan. 477; Stearns v. Marsh, 4 Denio, 227; Hallack Manufacturing Co. v. Gray, 19 Colo. 149 ; Iler v. Baker, 82 Mich. 226.) The amount of the debt, however, is a proper subject for consideration in determining the amount of damages to be recovered, the measure of recovery in such case being the reasonable value of the property less the amount of. the debt secured thereby. ( Wygal v. Bigelow, 42 Kan. 447; Belden v. Perkins, 78 Ill. 449 ; National Bank v. Boyce, 78 Ky. 42 ; Cushing v. Seymour, 30 Minn. 301; Russell v. Butterfield, 21 Wend. 300.) To entitle the plaintiff in this case to recover substantial damages, it is necessary that competent evidence be introduced to prove the value of tbe property converted. The jury returned a verdict in favor of the plaintiff for $2,768.46. On the hearing of the motion for a new trial, at the suggestion of the court, the plaintiff remitted all over $1,500, fqr which amount judgment was rendered. An examination of the record discloses an entire absence. of evidence to prove value.
The only thing having any bearing' whatever on that subject is the statement of S. T. Smith, that an invoice of the goods which he had made in Nebraska showed $3,000. There is nothing to indicate the character of the invoice, nor when it was made. On the hearing of the motion for a new trial, evidence was introduced tending very strongly to show that Burton did not have possession of the entire stock of goods which had been invoiced by Smith, and that those alleged to have been converted were of an actual value not exceeding $800. These matters evidently influenced the court to require the verdict to be reduced to $1,500. But this sum, we think, is equally without support from the evidence. There is no competent evidence to justify the judgment rendered ; and we cannot avoid the conviction that, upon the facts of the case, as they were more fully shown upon the hearing óf the motion for a new trial, great injustice would be done by the affirmance of the judgment.
Objection is made by counsel for defendant in error that the case made does not purport to contain all of the evidence introduced upon the trial. This objection is not well taken; for we find in the record an express statement that it does ‘ ‘ contain a true and correct copy of all the testimony of every nature whatsoever introduced on the trial of said cause by either plaintiff or defendant.” This certainly is sufficient. ‘
So far as disclosed by tlie pleadings and the evidence, the action of the plaintiff below was not barred by the statute of limitations. The conversion was alleged as of May 23, 1891, and the action was commenced May 18, 1893. The evidence does not' show any earlier date when the property may have been converted.
The judgment will be reversed, and the case remanded for a new trial.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
This action was brought in the district court of Edwards county, Kansas, and taken on a change of venue to Ford county. The plaintiff below, Arabella Shepherd, filed her. petition in said action alleging the marriage of the plaintiff and defendant, E. P. Shepherd, the birth of three children to them, and various grounds for the relief prayed for, and asked for alimony and the custody of the children. The answer was a general denial of the allegations of the petition except such as were specifically admitted, and set up various other defenses. At the trial the court found for the plaintiff, granted her the custody of the children and ordered the defendant to pay her the sum of $300 per annum as alimony and the costs of the action. Judgment was rendered accordingly, and the defendant below brings the case here for review.
In the determination of the errors complained of in this case there is but one question involved. At the trial of the case in the court below, the defendant in error introduced her testimony and rested. The defendant below then offered himself as a witness, and the counsel for the plaintiff objected to said witness testifying. The ground for the objection is that he is incompetent to testify against said plaintiff by reason •of being her husband. Said objection was by the' court sustained. The only question for our consideration is, Did the court err in sustaining the objection? or, in other words, Are husband and wife competent to testify for or against each other in- an action for alimony? By the common law, no person was permitted to testify in an action in which he ■ was a party or otherwise interested. Nor were husband and wife permitted to testify for or against each other. The common-law rule has been to some extent changed by statute in this state. Paragraph 4414, of the General Statutes of 1889, provides that “no-person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise. ...”
Section paragraph 4418 id. provides :
‘ ‘ The following persons shall be incompetent to testify: . . . Third. Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterward. . . .”
An examination of these two sections reveals the fact that, while parties in interest in most cases may testify, the rule governing the testimony of husband and wife remains largely the same as it was at common law. The legislature in 1871 passed a law attempting to make an exception in actions for divorce, which would probably apply also in actions for alitnony. The law which it passed for this purpose, is section 6 of chapter 116 of the Laws of 1871, being paragraph 4765 of the General Statutes of 1889, which read's as follows :
“In any action for a divorce hereafter tried, the parties thereto, or either of them, shall be competent to testify in like manner, and respecting any fact necessary or proper to be proven, as parties to other civil actions are allowed to testify.”
The validity of this section is questioned by the defendant in error, as being in conflict with section 16 of article 2 of the constitution of Kansas, which reads as follows : .
“No bill shall contain more than one subject, which ■ shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.”
The title to chapter 116 of the Laws of 1871 reads as follows: ‘ ‘An act to amend certain sections of chapter 80 of the General Statutes of 1868.” By reference to the Laws of 1871, the following words will be found contained in brackets, ‘‘‘ relating to civil actions and to trials and evidence and.” The secretary of state, in his certificate of authentication, certifies that these acts are true and correct copies of the enrolled laws for that year, with the exception of the clerical errors appearing inclosed in brackets. IV must therefore conclude that the words inclosed in brackets were omitted from the title of the enrolled bill. The secretary of state certifies that they are omitted and that it was a clerical error. This is the evidence' upon which we must act in deciding this question in this action.
The court, however,'in order to satisfy itself upon the subject, has^made an examination of the enrolled bill which is on file in the office of the secretary of state, and it finds that the title to the act reads, “An act to amend certain sections of chapter 80 of the General Statutes of 1868,” and interlined after 'the word “act,” written in le.ad-pencil in an ordinary hand, not at all similar to the enrolled hand, are the •words, “relating to civil actions and to trial and evidence and,” making it clearly apparent that the secretary of state had been indulging in the pastime of creating such a title as he thought would be a good title to the act in. question. Sections 1, 2, 3, 4 and 5 of said chapter 116 amend sections 653, 654, 313, 314 and 315 of chapter 80 of the General Statutes of 1868. Then follows section 6, which does not purport to amend any section of the laws then in force, but does attempt to create a new law. -We are reluctantly compelled to ho.ld that the title to this act is not broad enough to cover the subject attempted to be enacted by said section 6. The title only covers the amending of certain sections of chapter 80 already in existence, but it does not attempt to cover any new enactment, and while the subject-matter of section 6 might have been an amendment to paragraph 4418, it could not be so amended unless it should contain the entire section as amended. The counsel for the plaintiff in error in his brief argues this question upon the theory that the status of parties, custody of children and valuable property rights have been adjudicated and settled during the past 25 years upon evidence authorized by said section 6, and that this court should not now declare this section invalid, for the reason that such rights will be disturbed thereby, aiid cites several Kansas decisions to show that our {Supreme court has been loth to disturb the rights of persons and property by declaring a law invalid which has been in, operation for a considerable length of time.
The results pointed out by counsel cannot follow from a decision declaring this law invalid, for the reason that it relates to -the competency of evidence of which no advantage can be taken except by saving an exception to each particular case and having a review thereof. No rights of property or persons already adjudicated and settled can be changed or disturbed. The only cases which will be disturbed by this ruling will be those in which this question will arise hereafter. We think the law should be that a husband or wife should be permitted to testify in all actions for a divorce or for alimony, or for both, but it is the province of the legislature and not of this court to create the law.
We are asked to reverse this case because the amount of alimony granted by the judge of the district court is too large. None of the evidence offered in the court below appears in the record ; hence, we are unable to say whether the amount is too large or not.
No error appealing in the record, the judgment of the district court is affirmed.
Johnson, P. J., concurring.
Cole, J., dissenting.
Cole, J.:
Being unable to agree with the majority of the court ’ in the conclusions which have been arrived at in this case, I consider it proper to state my reasons for dissenting. There is some doubt in my mind as to the legality of the act in question, although it appears to me that the secretary of state has exceeded his authority in the certificate made by him. The law makes it'his duty to certify that the printed copy is a true copy of the act as passed, and does not confer on him authority to pass upon the question as to whether a portion of the title may be a clerical error or not.- We must assume in this case that the portion of the title which relates to the section in question formed a part of the original act when it was placed in the hands of the secretary of state, because, if it were added after that time, it would not be a clerical error, but a clear forgery. Every presumption should be in favor of the legality of the act, and that the act as presented to the secretary of state to be filed in his office was the same as i-t was passed by the legislature, and, in this case, while the original bill shows that a portion of the title 'relating to the section in question was written in a different handwriting and above the other portion of the title, I believe the presumption should be that the title as it now appears was the original one, and that the correction was made by one having authority. A stronger objection, to my mind, is the fact that the title as it now reads may be said’ to cover two subjects, but they are so germane to each other that it would seem the act should be sustained. But I do not base my dissent wholly upon the legality of the statute in question. If that statute had never been passed, it,is still .my view that, in an action of this character, a husband or wife should be permitted to testify. - Without that statute the common-law rule would prevail, and it is true that under the common-law rule parties might not testify in a case, nor husband and wife for or against each other; yet there were many exceptions to the rule, and I believe a case like the one at bar forms one of such exceptions. Originally divorces were granted by parliament, and the rule was made at a time when the question of evidence as between a husband and wife in a case of this character did not arise. At that time, however, in an action brought either against a husband or wife for injuries inflicted by one upon the other, where it was impossible to show the commission of the offense by any other evidence than 1-hat of the injured party, such testimony was admissible, and this exception was based upon the same ground as all others which came to exist with regard to the laws of evidence of this character, viz., that, without the admission of such testimony, there would be a failure of justice such as the law could not permit. This same exception had been frequently urged and adopted by the courts of England and of various states prior to the passage of any act to permit parties to an action, or husband and wife, to testify. The class of evidence necessary to sustain an action for alimony alone is the same as that necessary to sustain an action for divorce, and the same reasons exist why an exception should be allowed in a case of that character. In most cases brought by husband or wife for divorce or for alimony justice would fail if the strict letter of the statute should be applied, for the reason that the facts which would permit a recovery are in most cases peculiarily within the knowledge of the interested parties alone.
For the reasons above stated, I am of the opinion : First, that the statute in question should be held good; and second, that the testimony offered by the defendant in this case should hare been admitted, eren although the act permitting husband and wife to testify should be held not good'. (Greenl. Er., 14th ed., §§ 343 to 353, inclusive, and cases cited in notes thereto.) | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
This action was brought by Am ava Given against the Chicago, Rock Island & Pacific Railway Company in the district court of Wabaunsee county to recover damages for the killing of a horse belonging to the plaintiff. The allegations of the petition are, that
“The killing was the result of, and caused by, negligence of the defendant in the operation of its railroad, in that the agents and employees of the defendant, at the time of the killing, did not exercise due care and diligence in the operation of its engine and cars, and that the defendant did not exercise due care and diligence in having its track inclosed with a good and lawful fence, as required by statute.”
The first allegation of negligence seems to have been abandoned, and the right to recover was based entirely on the alleged failure of the defendant to fence its track. The evidence establishes the following facts: That the horse in question was killed by the agents and employees of the defendant below at the time stated in the petition at a point about 800 feet west of the west switch limits of said railroad at Wabaunsee, Wabaunsee county ; that the plaintiff was the owner of the horse; that a fair market value of ihe horse was $75; that a reasonable attorney’s fee was $40 ; that a proper demand was made upon the defendant railroad company for the value of the horse before this action was commenced; that, at the place where the horse was upon the right of way of the railroad company, and for a quarter of a mile east and west of that point, there were no fences, cattle-guards or other barriers to prevent stock from going on to said railroad inclosing the right of way; that just before the horse was killed it came down the bank and on to the right of way from a point about 15 rods from the railway track west of a certain tool-house of the company, which is located on the right of way about a quarter of a mile northwest of the depot, and that the horse was struck and killed at a point west of the public crossing.
There are but two alleged errors assigned upon which the plaintiff in error relies for a reversal of the judgment: (1) " That the court erred in refusing to instruct the jury at the close of the testimony to return a verdict for the plaintiff in error.” (2) "In overruling a motion for a new trial.” Paragraph 1252, General Statutes of 1889, being section 1 of chapter 94, Laws of 1874, provides :
" Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each any [and] every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.”
Section 5 of the same act provides :
"That this act shall not apply to any railway com pany or corporation, or the assignee or lessee thereof, whose railroad is inclosed with a good 'and lawful fence to prevent such animals from being on said railroad.
Our supreme court, passing upon this statute, has said:
“There is no express exception to or limitation upon or modification of any of the provisions of the foregoing sections by any other statute, none except such as is found in said section 5 ; and if there is any exception, limitation or modification of any of the foregoing sections, other than that contained in section 5, it must be such only as arises by implication or by judicial construction or interpretation. In other woi’ds, under chapter 94 of the statutes of 1874, and upon its face, a railway company is liable in all cases for injuries done to animals by the operation of its road, except where the railroad is inclosed with a good and lawful fence ; and expressio unius est exdmio aIterius. ... In the nature of tilings, however, there must be some limitation upon the terms of the language used in said chapter 94 of the Laws of 1874. It would be improper for a railroad company to inclose its road where the same crosses a public street or highway, for such a thing would do violence to other provisions of the statutes of the state. . . . It is also held by some courts that even a railroad depot or station is of such a public character that it would be improper for a railroad company to fence its road at such place, . . . and there are other cases which go even beyond this.’ . . . The great weight of-authority, however, is that railroad companies are not absolved from complying with the express terms of the statute requiring them to inclose their roads with good and lawful fences except where some paramount interest of the public intervenes, or some paramount obligation or duty to the public rests upon the railroad companies, rendering it improper for them to fence their roads . . . No private interest or convenience or inconvenience on the part of a railroad com pany will alone be sufficient -to absolve it from fencing its road whex-e the statute in express terms reqixires that the road shall be fenced.” (A. T. & S. F. Rld. Co. v. Shaft, 33 Kan. 521.)
The language of the statute is very plain: “Must be inclosed with a good and lawful fence to prevent such animals from being on said railroad.” Building fences along the side of the track is not alone sufficient, nor would the construction of cattle-guards at each end of the switch limits comply with the plain statutory requirements ; the railroad must be inclosed; and it is not the province of the courts to create exceptions to the rule or interfere with the legislative policy. Courts may and have said that
“where some-other statute or some paramount duty or obligatioxi absolves railroad companies from fencing their roads, they xieed xiot do so ; but where the statute expressly requires railroad companies to fence their roads in order to exempt the companies from liability, axid no other statute or obligation or duty or any good reason exists to relieve them from so fencing, the courts cannot say that they need not fence; but if from any reason they are relieved from fencing their roads at some particular place or places, then they must coxxstruct fences or other barriers as near thereto as is reasonably practicable.” (A. T. & S. F. Rld. Co. v. Shaft, 33 Kan. 521.)
We think the exceptions to the general rule requiring railroad companies to fexice their roads have been clearly and fully pointed out by the supreme court of this state in the cases of A. T. & S. F. Rld. Co. v. Shaft, supra, and Prichett v. A. T. & S. F. Rld. Co., 33 id. 748. And if, from any reason, in this case the company was relieved from fencing its road at any particular place, it devolved upon the company to show it; the burden of proof in all such cases rests upon the company.
There was no attempt on the part of the company to show tliat its road was fenced at the place of the accident, or at any place. There was some testimony offered to show that to maintain cattle-guards within 1,000 feet of the switch limits would endanger the lives and limbs of its employees. But the"verdict and findings of the jury are against the company upon this proposition and conclude this court. And conceding, for the purpose of this case, this to be true, would the company be relieved from fencing its road at the place of the accident? We think not. It is not shown that the land, or place of the accident, was necessary for the use of the company as a part of its station grounds ; yet it might be said from the testimony that it was so used ; but would that relieve the company from the statutory duty of fencing? Our supreme court has answered this question in the negative, and in A. T. & S. F. Rld. Co. v. Shaft, supra, it is said:
“Assuming for the purposes of this case that land necessarily used for station grounds need not be fenced, then the question arises, is it necessary for a railroad company to inclose a tract not necessary for the use of the railroad company as a part of its station grounds, but in fact so used? Under the circumstances of this case, we think we must answer this question in the affirmative. To say that railroad companies are not required to fence their roads in such cases would be to create an exception . . without any good reason therefor.”
We have failed to discover any reversible error in the record. The judgment of the district court will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J.:
On the 26th day of August, 1890, the National Bank of Commerce commenced an action in the district court of Reno county, Kansas, to recover a judgment against George H. Rice on account of material furnished by the Russell & Wilcox Hardware Company to the said Rice for the construction of a certain schoolhouse which said Rice had contracted to build for the board of education of the city of Plutchinson, in the .state of Kansas, and for the fore closure of a mechanic’s lien upon said building. The defendants below were duly served with summons on the 26th day of August, 1890, by the sheriff of Reno county. The September term of the district court commenced on the 5th day of September. The answer-day fixed by the.summons was September 25. The trial docket for the September term was made up before the suit was commenced, and the case was not put on the docket for trial at that term of the court. The case was placed at the heel of the docket by the clerk about the 1st day of November, and was never set for trial on the docket either by the clerk or by order of the court. There were over 900 cases on the docket and only 725 of this number set for trial for the September term; the balance of the cases not being reached for trial.
The service of summons was made on the president of the board of education, who was at the time cashier of a bank in Hutchin’son, and, being busy in the bank, he either lost the summons or forgot to notify the board of the service of summons. The board had no actual knowledge of the commencement of the suit, or that a suit was pending against it. The board made no appearance and filed no answer to the petition filed, in said court against it, and wholly made default, and on the 15th day of November, 1890, at the September term, the plaintiff below, by its attorneys, moved for judgment by default against George H. Rice for the amount due on said account and for a foreclosure of the mechanic’s lien on said building, and judgment was thereupon rendered against Rice for the amount claimed, and a decree foreclosing the mechanic’s lien and ordering sale of the building. On the 19th day of December, 1890, and during the September term of said court, the board of education liled a motion to vacate and set aside the judgment, and for leave to file a verified answer to the' petition of the plaintiff bélow, setting up in said motion eight causes for setting such judgment aside, and supported the motion by affidavit. The motion was heard by the court and overruled, and the court made special findings of fact and conclusions of law thereon. The board of education duly excepted to the order and judgment of the court in overruling said motion, and now brings the case to this court for review. It presents the following questions : First, May the court refuse to vacate and set aside a judgment by default at the same term at which it was rendered? Second, May a plaintiff, upon the default of the defendant, have a case entered upon the heel of the docket and take judgment without the case ever having been se down for trial either by the clerk or the court, and this where the answer was not due until long after the first day of the term of 'court at which the judgment was taken ?
The court found as matters of fact:
“1. That the first day of the September term of this court, the term at which the judgment sought to be vacated was rendered, was the 5th day of September, 1890.
“2. That the service in this case matured on the ■ 25th day of September, 1890.
“3. That said cause was not placed on the docket by the clerk of the court when he made up the docket for the September term of court, said cause -having been commenced August 26, 1890, and after the trial docket had been made up for said September, 1890, term.
“4. That said cause was placed on the docket at the heel of the same by the clerk about the 1st of November, 1890.
"5. That said cause was never set for trial on said docket either by the clerk or the court.
“6. That there were over 900 cases upon, said docket, and that only 725 of said cases were set for trial at the said September term, the-balance of said cases not being reached.
“ 7. That the defendant the board of education of Hutchinson, Kan., was never notified by their president that he had been served with summons, and had no knowledge that said suit was pending until shortly before this application was filed.
“8. That the president of the board is cashier of a bank, and was served in business hours, and inadvertently overlooked the summons, and forgot the fact of the service, and lost the summons, and never notified the board of the fact of the service.
“9. That the verified answer, presented and duly verified, discloses that the board has a valid and complete defense to plaintiff’s cause of action.
“10. That said cause would not have been regu larly reached and set for trial until the January /1891 term of this court and after this application was filed.’
Upon these findings the court made the following conclusion of law : ‘ ‘ That the court has no discretion in this cause to vacate said judgment.”
The matter .of vacating or modifying judgments at the same term of court at which they are rendered is largely within the sound discretion of the trial court. And when it is made manifest that great injustice has been done, or that a party has been in some manner misled as to his rights, or where a judgment has been taken by default, and the party against whom the judgment has been taken has not been guilty of gross' negligence in protecting his rights where he Could have legally done so, it is within the sound discretion of the court, on such terms as are reasonable, to vacate the judgment and permit the party to file an answer setting up any valid defense to the action that he may have. (Saunders v. Hall, 37 Kan. 275.)
The board of education having presented its motion at the same term of the court at which the judgment was rendered, supported by affidavit, and having tendered an answer, duly verified, showing a complete defense to the plaintiff’s action, we think that it would be an abuse of that wise discretion vested in the district court, and would prevent a failure of justice, to deny it a fair opportunity to be heard upon the merits of the issues tendered by its answer. While the president of the board was negligent in not informing the board of the service of summons, yet we do not think, under the circumstances of this case, that the board of education has been guilty of such negligence as should prevent it from a fair and full hearing of this cause upon its merits. If the allegations set up in its verified answer are true, it ought not to be compelled to pay this claim to the plaintiff below. We think, in the exercise of that wise discretion vested in the district court, it ought to have sustained the motion to vacate the judgment and allow the defendant below to file its answer and grant a new trial.
The ruling of the court below denying the motion is hereby reversed, and the case remanded to the district court, with instructions to sustain the motion to vacate the judgment, and allow the plaintiff in error to file its answer to the petition.
All the Judges concurring. | [
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The opinion of the court- was delivered by
Cole, J. :
This was an action brought against the railroad company to recover damages on account of fire caused by a passing engine, by which it was claimed that a certain building and its contents be longing to defendant in error were destroyed. The railway company alleges error in.tlie trial of the cause, and brings the cause here for review, from .a judgment rendered against it. It is claimed on the part of the plaintiff in error : (1) That there was no sufficient evidence offered in this case to establish the fact that the fire complained of was caused by the operation of the railroad; ('2) that incompetent evidence was admitted in the trial of the action.' The evidence shows that the fire occurred just after a train had passed the premises in question. It is true that the railway company introduced considerable evidence of a strong character relative to the perfect condition of the appliances used to guard against the escape of sparks of fire from the engine, and to prove the fact that the engineer was skilful in his line of business ; but there was also evidence in this case that the engine in question set out several.fires upon the same day that the one in question occurred, and that an engine in good repair and properly handled will seldom set out fire. There was further evidence as to the length of time the wire netting used to arrest the sparks from the engine will last, and that the netting in the engine in question had been used very nearly, if not quite that length of time. While, in an action of this character, evidence of a single fire may not be sufficient to warrant a finding of negligence against the railway company, yet when it appears that at or about the same time several fires are caused by the same engine, and also that an engine in good order and properly managed does not ordinarily cause fires, a jury is justified in finding negligence, and this notwithstanding they may be unable to point out specifically wherein the negligence occurred. (Mo. Pac. Rly. Co. v. Kincaid, 29 Kan. 654.)
In this case, however, the jury, in answer to certain special questions, found that the screen and netting at the top of the smoke-stack of the engine in question were not in good order, and that the fire which destroyed the property of the defendant in error escaped from the smoke-stack. We are of the opinion that the evidence justified this finding.
Some of the witnesses who testified in this case were asked in regard to a fire which occurred some time prior to the date upon which the fire occurred which caused the damage in question, and were permitted to testify concerning some facts in connection with such fire, over the objection of plaintiff in error. This testimony was not competent, and ought not to have been permitted; but it is clear,- when we consider all the testimony given in the case, that it could not have prejudiced the jury, and that no different verdict would have been rendered had the objectionable testimony not been admitted.
The judgment of the district court is affirmed.
Dennison, J., concurring.
Johnson, P. J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to foreclose a mechanic’s lien. P. J. Conley, the owner of a theatre building, leased it to J. E. Faltys and George M. Gilliam for a period of three years, at a stipulated rental of $75 per month. In the lease was a special provision that “second party shall have the right to make reasonable repairs to said building and deduct the actual cost thereof from said rentals.” The lease contained the stipulations ordinarily found in such instruments, including one that “no alterations or changes in said building shall be made by said second party without written consent of said first party.” There was another stipulation giving the lessor the option to reenter in case of the default of the lessees.
Shortly after the execution of the lease the lessees engaged B. C. Potter and Frank Kelley to make certain changes and improvements in the building. These included the making of an orchestra pit, which was a lowering of the floor eighteen inches in a space twelve feet long and five feet wide; the reconstruction of an office lobby in a corner of the building, including a partition between the office and the lobby; the taking out of a glass front and putting in its place drop siding, with two small windows; the ceiling of the inside of this front; the construction of a portal, which consisted of a roof projected from the building and supported by two posts; the building of steps at the entrance; and the painting of any new wood put in by the contractors. Within a few weeks after the execution of the lease the contractors made these improvements, which cost $163.43. There were no negotiations between the contractors and Conley, and they received no direct authority from him as to the improvements, but it is conceded that he was in and about the building when the work was done, slept in the building, and took care of the property during that time. The contractors expected to get their pay from the lessees, who directly employed them, but no such payment was made by them nor by the owner of the building, and therefore they filed a mechanic’s lien. The lessees defaulted in the payment of rent and abandoned the premises, when Conley declared the lease forfeited and took possession of the building, including the improvements which the contractors had made, and then leased the building to another party. The contractors claimed a lien as against the fee held by the lessor, but this was refused by the court. A lien was adjudged against the leasehold interest of the lessees, but as the lease had been forfeited the lien was, of course, valueless to the contractors, and from the ruling refusing the lien against the estate of the lessor the contractors appeal.
The appellee correctly contends that a mechanic’s lien is purely a creation of statute and that those claiming its benefits must bring themselves clearly within its provisions. Our statute gives a lien to “any person who shall, under contract with the owner of any tract or piece of land, or with a trustee, agent, husband or wife of such owner, perform labor or furnish material for the erection, alteration or repair of any building, improvement or structure thereon” etc. (Code 1909, § 649.) The estate of the owner can not be subjected to a lien for work done or materials furnished at the instance of the lessee unless the lessee may be regarded as the agent or trustee of the owner. The owner may contract directly, or he may do so through an agent, and the contention of appellants is that the lessees of the building in question were in fact the agents of the lessor in contracting for the improvements made upon the building. Now, the lessor did not directly contract with appellants for the improvements made on this building, but he did contemplate that improvements and changes were necessary to fit the building for the purpose for which it was leased, and he expressly provided in his lease that the repairs to be made should be paid for out of the rentals that would accrue under the lease. The léssees were not in terms designated as the agents for the lessor to contract for the repairs, but the rules of law relating to the creation of an agency and fixing the liability of a principal for the acts of an agent apply to contracts for labor performed and materials furnished for the improvement of a building the same as to other kinds of contracts. Under a Missouri statute which authorized a lien where work was done or material furnished by virtue of a contract with the owner or his agent, it was held that the owner could be bound by virtue of a contract with an agent, and “that such agency may be express, or implied from the conduct and acquiescence of the owner and from all the circumstances, which estop him from denying the agency.” (Winslow Brothers Co. v. McCully Stone Mason Co., 169 Mo. 236, 243; see, also, 27 Cyc. 64.)
It is not enough, of course, that the lessor should merely know that improvements are being made by the lessee, nor yet that he should have agreed with him that repairs or improvements are to be made by the lessee, as that may be done for the convenience of the lessee and not because of any benefit to the lessor or his property. If the lessee acts only for himself, no lien will attach to the property of the lessor. Here, however, the lessor specifically agreed that repairs might be made at his expense. The stipulation in the lease that the repairs might be made and the cost taken out of the rentals was the equivalent of saying to the lessees: “You may contract for repairs and have them made at my expense.” This was not only assent and acquiescence by the lessor in the making of repairs, but it gave express authority to the lessees to act for him in procuring them to be made, and at his cost. It was enough to • constitute a contract with the lessor himself for the improvements provided for in the lease. In Kremer v. Walton, 11 Wash. 120, it was in effect held that if a lessee causes a building to be erected on leased premises, under an agreement between himself and the lessor that the latter is to pay the lessee therefor by allowing him to retain rents, the interest of both lessor and lessee is subject to a mechanic’s lien growing out of the erection of the building. In volume 27 of the Cyclopedia of Law and Procedure it is said:
“It is usually held that where a lease contains a provision authorizing the lessee to make repairs or improvements at the cost of the lessor, either generally, or by deducting the cost from the rent, or where part of the consideration for the lease is the making by the lessee of improvements which become a part of the realty, or that improvements made by the lessee shall revert to the lessor, a mechanic’s lien may attach to the property for work done or materials furnished pursuant to a contract with the lessee.” (p. 58.)
(See, also, Dougherty-Moss Lumber Co. v. Churchill, 114 Mo. App. 578; Hardware Co. v. Churchill, 126 Mo. App. 462; Hough v. Collins, 176 Ill. 188; Carey-Lombard Lumber Co. v. Jones, 187 Ill. 203; Burkitt v. Harper et al., 79 N. Y. 273; Boteler v. Espen, 99 Pa. St. 313; Fischer v. Jordan, 169 N. Y. 615, 54 N. Y. Supr. Ct., App. Div., 621.)
The contention here is that if the lessees are to be treated as agents of the lessor the agency should be strictly limited to repairs, and that the improvements made on the building were in fact alterations. Most of the improvements contracted for and made probably come within the technical definition of alterations, but evidently the parties were not drawing nice distinctions between these terms. It seems clear enough that the things done were the improvements or repairs contemplated by the parties' and contracted for in the lease. Apparently the building was out of condition, and something was necessary to fit it for the lessees' purpose. The lessor, it appears, did not wish to advance the money to put it in condition, and so it was provided that it might be done on the credit of the building — that is, the cost of the repairs might be taken from the rentals coming to him. The writing into the lease of the special provision that certain things were to be provided for by the lessees and paid for by the lessor shows plainly enough that both understood that work and material were necessary to put the building in a rentable condition. It appears that immediately after the execution of the lease the lessees proceeded to put the building in condition, and the work was done under the eye of the lessor and while he was caring for the building. No question was raised by him as to the propriety of making these, improvements, although the lease contained the stock phrase that no alterations should be made without the consent of the lessor. The time and circumstances under which these improvements were made satisfies us that they are the repairs which were mentioned in the lease and which both parties contemplated should be made at the expense of the lessor. Under the testimony of the lessor himself, and the undisputed facts, the lessees were the agents of the lessor within the meaning of the statute giving a lien for labor performed and materials furnished under a contract with the owner, and therefore appellants were entitled to a lien as against the appellee and his building.
The judgment is therefore reversed and the cause remanded, with the direction to enter judgment in favor of appellants awarding them a lien against the estate of appellee in the property. | [
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The opinion of the court was delivered by
Cole, J. :
It is conceded by the jjarties tó this action that there is but one question before this court for its determination, and that is whether the trial court erred m sustaining the objection made by the defendant below to the introduction of any testimony upon the part of the plaintiff for the reason that the petition did not state facts sufficient to constitute a cause of action m favor of the plaintiff and against the defendant. The petition set up four separate causes of action, the allegations with regard to each being identical, and in substance as follows: That the Farmers Loan and Trust Company of Kansas was a corporation, and as such engaged in the business oi loaning money at Anthony, Kan. ; that on the 1st day of September, 1887, the said corporation by its proper officers duly executed and delivered a certain -written obligation called a debenture bond, by the terms of which, five years after date, it promised to pay to the bearer thereof a certain sum of money therein speci fied, with interest payable semiannually according to the conditions of certain coupons attached to the bond ; that said bond further provided- that, to secure the payment of the same, the corporation had deposited with its trustees certain evidences of indebtedness amounting to one and one-half times the sum of its outstanding debentures, which evidences of indebtedness were second mortgages on real estate ; that in case default was-made in the payment of any interest coupon for 30 days, the principal and interest should become due and payable; that said, bond should become valid and negotiable and pass by delivery when the certificate- on the same had been signed by all or any two of the trustees; that the trustees appointed by said corporation had executed their certificate on each of the bonds sued upon in this action, by the terms of which they stated in substance that the corporation had deposited with them., as trustees, the collaterals heretofore mentioned, for the purpose of securing payment of such bonds ; that the capital stock of said corporation was $500,000, in shares of $100 each,' and that 30 of said shares were duly issued to the defendant, upon which he had paid 50 cents on the dollar and no more, and that he was ’ still the owner of the said 30 shares of the capital stock, and was a resident of Harper county, Kansas ; that the said corporation had suspended business for more than two years last preceding the filing of the petition, and had wholly failed to resume its business, was wholly insolvent, and had no property, goods, chattels, moneys or credits with which to pay its liabilities or any part thereof, or out of which its creditors can make any part of their claim; that said corporation has no officers, directors, managing-agents or clerks in this state upon whom service of summons can be had ; that each of said bonds is due and unpaid ; that plaintiff was the lawful owner and holder of each.of the bonds sued upon, and the petition closes with a prayer for judgment against the defendant, as stockholder, for the amount due upon such bonds.
The record does not disclose the particular reason given by the court for sustaining the objection to the introduction of evidence under this petition, and counsel for plaintiff and defendant each urge a different reason why the ruling was made. Of course, if any lawful reason existed it was sufficient, but we assume that if the two reasons urged by the counsel in the case are passed upon, there being no further objection, we will have sufficiently answered the question.
This action'was brought under paragraph 1204, General Statutes of 1889, which, so far as its application to the question here at issue is concerned, reads as follows: •
“If any corporation, created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit. ’ ’
Paragraph 1200, General Statutes of 1889, reads as follows :
“A corporation is dissolved — first, by the expiration of the time limited in its charter; second, by a judgment of dissolution rendered by a court of competent jurisdiction ; but any such corporation shall be deemed to be dissolved for the purpose of enabling any creditors of such corporation to prosecute suits against the stockholders thereof to enforce their individual liability, if it. be shown that such corporation has suspended business for more than one year, or that any corporation now so suspended from business shall for three months after the passage of this act fail to resume its usual and •ordinary business.”
It is contended by the plaintiff in error that the reason given by the court for sustaining the objection to the introduction of evidence was that the petition did not show that the plaintiff had obtained a judgment against the corporation in question, and had not had an execution issued and returned unsatisfied. On the other hand, it is contended by the defendant in error that the reason the objection was sustained was because the petition showed that there were certain securities in the hands of the trustees out of which the indebtedness might be satisfied, and that no original action could be maintained against a party sought to be charged as a stockholder before the creditor has made a demand for payment of his debt on the trustees holding the securities, and before he has ■exhausted such securities or the fund accruing from the sale thereof. We do not think either or both of these reasons was sufficient for sustaining the objection to the introduction of evidence. In our opinion, paragraph 1204 creates a primary liability against the •stockholders of any corporation, other than those excepted in the paragraph, created under, any general statute of this state and afterward dissolved leaving debts unpaid. And, construing paragraph 1200 in •connection with paragraph 1204, we find that such •corporation shall be deemed to be dissolved for the purpose of enabling a creditor to prosecute an action .against a stockholder to enforce his individual liability if such corporation has suspended business for more than one year next preceding the commencement of the action. It may be conceded that outside of a statutory provision this is not a general rule, but our legislature has seen fit to create this statutory liability, and stockholders in the corporations governed thereby must be presumed to purchase their stock with a full knowledge of the obligations resting upon them.
Again, even if it were conceded that where there was any property belonging to the corporation it must be first exhausted, still the allegations of the petition are sufficient as against an objection to the introduction of evidence. It is true the petition alleged that certain securities were placed in the hands of trustees, but the petition also alleged that at the time of the commencement of the action the corporation was insolvent and had no property of any kind or character, and an allegation to this effect is sufficient as against the objection raised.
The judgment is reversed, and the cause remanded, with instructions to the district court to overrule the objection to the introduction of evidence under said petition.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
On February 12, 1896, Andrew Daniel Chapman applied to this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by the sheriff of Saline county. The writ was duly issued, returnable March 6, and the petitioner was admitted to bail pending the hearing and final decision of this court. From the sheriff’s return to the writ and the agreed statement of facts submitted at the hearing, it appears that on January 6, 1896, the H. D. Lee Mercantile Company commenced an action in the district court of Saline county against the petitioner to recover the sum of $1,282.65 then due and unpaid on an account, and on the same day an attachment was duly issued out of said court and levied upon a stock of groceries and store fixtures," of the appraised value of $1,342.17, as the property of the petitioner. On January 16, Chapman filed his motion for a dissolution of the attachment. A hearing thereon was had, and on January 27 the court made, among others, the following findings of fact: That on January 4 the defendant was indebted to his brother in the sum of $400, to his*wife in the sum of $105, and to his father in the sum of $614; that on that day he executed chattel mortgages on the property attached to secure the payment of the $505 to his wife and brother, and delivered possession of the property to the mortgagees ; that he assigned to his father, in payment of the indebtedness due him, his book.-aceounts, the face value of which was about $1,300, but which did not exceed in actual value the sum of $600 ; that on January 6 he executed to W. H. Bishop a note for $100, whiqh he also secured by a chattel mortgage on the property attached ; that the statements made by the defendant to the plaintiff as to his financial condition for the purpose of obtaining credit were fraudulent as against the plaintiff; that the mortgage given to Bishop was likewise fraudulent as against the plaintiff; that the allegations in the affidavit or attachment, “ that the defendant had assigned, removed and disposed of his property with the intent to hinder, delay and defraud his creditors, and that he had fraudulently contracted the debt for which said action was brought, ’ ’ were true, and overruled the motion to dissolve the attachment. On the same day the plaintiff filed its motion for the sale of the attached property because of its perishable nature, and on January 28 the court ordered said property to be sold, the proceeds thereof to be held subject to the final order and judgment of the court. An order of sale was accordingly issued on January 30, and the property was duly sold on February 13, for $1,450 cash. On January 29, while the levy of the order of attachment was in full force and effect, the plaintiff filed in the office of the district clerk of Saline county an affidavit for an order of arrest, alleging therein that it had brought an action against Chapman to recover $1,282.55, and that said claim was just, due, and remained unpaid ; that Chapman fraudulently contracted this said indebtedness and fraudulently incurred said obligation; that he had fraudulently assigned and removed and disposed of his property with the intent to defraud his creditors ; that he had begun to convert his property into money for the purpose of placing it beyond reach of his creditors; that he had begun to dispose of his property with the intent to defraud his creditors ; that the defendant had executed the several mortgages and the assignment above mentioned ; that, at the time of the execution and delivery of said 'mortgages and as signment, all of the property owned by Chapman did not exceed in value the sum of $1,500, and that he was insolvent and unable to pay his debts. The affidavit also recited the issuance of the order of attachment in that action and the overruling of the defendant’s motion to dissolve said order. A sufficient undertaking having been entered into by the plaintiff, an order of arrest was issued by the clerk, directed to the sheriff, which was in all respects in compliance with the requirements of the statutes, and commanded the officer to arrest the defendant and hold him to bail in the sum of $2,565.30, or, in default thereof, to commit him to the county jail, to be kept in custody until discharged by law. Chapman was taken into custody under this order, and on February 10 he applied to the probate court of Saline county for a writ of habeas corpus, which.was duly issued, and on the following day a hearing was had and the petitioner was remanded to the custody of the sheriff. Upon the facts as above recited, the petitioner claims that he is illegally restrained of his liberty and is entitled to be discharged by proceedings in habeas corpus.
The statute provides that the plaintiff in a civil action for the recovery of money may, upon the existence of certain facts,at or after the commencement thereof, have an attachment against the property of the defendant, when certain conditions prescribed by the statute have been complied with. The order of attachment must require the offiber to attach the property of the defendant, or so much thereof as will satisfy the plaintiff’s claim, to be stated in the order, and the probable cost of the action, not exceeding $50. (Code, §§ 100, 191, 192, 193.) The requisite facts existing, and the conditions prescribed by law being fully complied with in this case, the order of attachment was rightfully issued and it was also properly executed.
The statute likewise authorizes the arrest of a defendant in a civil action, either before or after judgment, when an affidavit of the plaintiff, his authorized agent or attorney, is filed in the office of the clerk of the court in which the action is brought, containing certain essential allegations. (Code, §§ 147,-148, 149.) The grounds upon which an order of arrest may be issued are quite similar to those which authorize proceedings in attachment. The object of the proceeding by order of arrest and by attachment is- the same - — to compel payment of a debt fraudulently contracted, or payment of which is fraudulently evaded ; and while the statute does not in terms provide that the plaintiff shall not have ah order of arrest in an action wherein he has taken defendant’s property in attachment, we do not think that the law contemplates that the creditor may, before judgment, cause the arrest of the defendant, after having attached sufficient property to satisfy the full'amount of his claim and the probable costs of the action.. This seems to be the view taken by our supreme court in State Bank v. Mottin, 47 Kan. 455, where it was held that, while a creditor holding a chattel mortgage as security for his debt upon property belonging to ‘the debtor can maintain an attachment against the same and other property of the debtor, if such a chattel mortgage is ample -security to pay the -creditor's claim in full, any one interested would be entitled, upon motion, to have so much of the property not embraced in the chattel mortgage as is not needed for the payment of the claim discharged from the attachment. In that case the court with approval cited Gillespie v. Lovell, 7 Kan. 419, where an attachment had been levied in an action for the recovery of money and to foreclose a mechanic’s lien, and it was said “it can hardly be supposed that the law intends to give the plaintiff a double security.” But, if sufficient property is not levied upon to satisfy the order of attachment, or the property attached is incumbered by prior liens of any kind, probably an order of arrest might properly be issued and the defendant be held to bail in a sum double the amount of the debt remaining unsecured. (Shedd v. McConnell, 18 Kan. 594.)
What may be finally determined as to which has priority, the liens of the chattel mortgages or the at-' tachment levy, is mere speculation. The court found the attached property to be of the value of about $1, 500. It was appraised at $1,342.17 and was afterward sold by order of the court as perishable property for $1,450. The plaintiff’s claim and the probable costs of the action amounted to only $1,332.65. Had the plaintiff admitted that the liens of the chattel mortgages had priority over the attachment levy, then, for the purpose of procuring an order of arrest, all of plaintiff’s claim in excess of the amount due on the mortgages should have been considered as fully satisfied by virtue of the attachment proceedings, and the defendant ought not to have been held to bail in a sum exceeding double the amount due on the chattel mortgages, instead of double the amount of plaintiff’s claim as set forth in the petition, as was required in this case. If by the attachment levy the plaintiff' acquired a prior lien on the property attached, it had all the security to which it was justly entitled.
We think, as the affidavit for an order of arrest showed upon its face that the plaintiff had elected to pursue its remedy by attachment, and failed to show that its claim had not been amply secured by virtue. of the levy of the attachment, a presumption would arise that sufficient property had been levied upon to satisfy the order of attachment. While the statements recited in the affidavit, if true, were sufficient to justify the belief that the defendant had fraudulently contracted the debt, and was seeking fraudulently to evade its payment, the further recital therein with reference to the attachment proceedings, in our opinion, tended to show that the plaintiff had obtained ample security for the payment of its claim, and that an order of arrest should not have been issued. Still, the affidavit was made by the authorized agent of the plaintiff, it contained the essential particulars required by the statute, and was filed in the proper office. Under section 148 of the code, the clerk has jurisdiction and authority to pass upon the question as to the sufficiency of the affidavit, and having done this, and the proper bond having been filed, he also had jurisdiction to issue the order of arrest. The process was regular upon its face, and there is no claim that the sheriff in any way failed to execute it in the manner required by law. Such being the case, the order of arrest was not void, nor were the proceedings thereunder mere nullities. While habeas corpus is a proper remedy for every illegal imprisonment, both in civil and criminal cases, an imprisonment is not illegal in the sense of this rule merely because the process or order under which a party is held has been irregularly issued or is erroneous. The authorities are 'uniform that this writ is not intended to have the force or operation either of an appeal or a writ of error, nor is it a substitute for either. (Ex parte Maxwell, 11 Nev. 428 ; Ex parte Ah Sam, 24 Pac. Rep. 276 ; Sennott’s Case, 146 Mass. 489 ; Exparte McCullough, 35 Cal. 97 ; Ex parte Crouch, 112 U. S. 178 ; In re Morris, 39 Kan. 28 ; Barton v. Saunders, 16 Ore. 51.) In Peltier v. Pennington, 14 N. J. Law, 312, it is said that a defendant will not be discharged on a writ of habeas corpus where the writ on which he is detained is in itself a legal and proper one, and the court out of which it issued is of competent jurisdiction, and where the only matter in dispute is the regularity of the process and the validity of the arrest. In In re Morris, supra, the following language is used :
“We can question any defects which may affect the jurisdiction of the court or officer and which would render the proceedings void. The jurisdiction having been established, we cannot"inquire into the regularity of the proceedings. If there have been errors committed, even flagrant ones, the remedy for correcting them is not to be found in proceedings in habeas corpus.”
In The State, ex rel., v. Bridges, 64 Ga. 146, we find the following language:
“Where the imprisonment takes place on mesne process, the range of inquiry upon habeas corpus is merely whether the - plaintiff has brought .a proper suit in the proper court, and has taken all the steps in the procedure which the law lays down as conditions precedent. These things appearing, .the lawfulness of the custody follows necessarily. The investigation relates to what has been done, not to whether it ought to have been done.”
In The People, ex rel., v. Liscomb, 60 N. Y. 559:
‘‘If the process is valid on its face it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction. Error, irregularity or want of form is no objection; nor is any defect which may be amended or remedied by the court from which it issues.”
In Church on Habeas Corpus, § 383, the author says :
“To obtain a discharge on habeas corpus from an ar rest under a body execution, the defects in the execution must be matters of substance required by law, rendering the process void, and not merely voidable ; for, in the latter case, the remedy is by motion to set it aside.”
A New York statute in effect provided that a warrant for the arrest of the defendant in a civil action should not be issued until after execution against his property, directed to the proper officer of the county in which the defendant resided, had been returned unsatisfied. A defendant was arrested upon process regular in all respects, except that no execution against his property had been issued as required by the statute, and it was held that, although the issuance of the process under which he was held was irregular, it was not void, and that he was therefore not entitled to be discharged on habeas corpus, but that his proper remedy was to apply to the court to have the -order of arrest vacated. (Bank v. Jenkins, 18 Johns. 304.) The petitioner has cited, in support of his application, the cases of In re Grey, 41 Kan. 461; In re McMicken, 39 id. 406 ; Ex parte Randolph, 2 Brock. 447. In the Grey case, the order of arrest was issued in accordance with section 27 of the justices’ act, which commanded the constable to arrest the execution debtor only in case the judgment should not be paid or an amount of personal property sufficient to satisfy the judgment could not be found within the county whereon to levy execution. The constable levied on property 'which was subsequently replevied by a third party, claiming to be its owner, and it was held that, while that levy remained in full force and subsisting and no further effort was made to obtain satisfaction of the judgment from other personal property of the judgment debtor, the officer had no authority to arrest the defendant. In the Randolph case, it was held that the auditor of the treasury, after having settled an account of a public officer and closed 'it, had no authority thereafter to open it, restate it, and, upon the account thus restated, to institute proceedings by a warrant of distress against the debtor ; and it was there said that, upon habeas corpus, the question is not whether there is error in the proceedings, but whether there was jurisdiction in the case in the auditor of the treasury. In the McMicken case the petitioner had been informed against for crime, and the district court overruled his motion to discharge him under section 220 of the criminal code, which reads :
"If any person, under indictment or information for an offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found or information filed, he shall be entitled to be discharged, so far as relates to the offense for which he was committed, unless the delay shall happen on the application of ■the prisoner, or shall be occasioned by the want of time to try the cause at such second term.”
The court said 'that there could be no question that the prisoner was entitled to his discharge upon his motion, as the record clearly shows that the delay had not happened upon his application or been occasioned by the want of time to try the case; and a majority of the court reached the conclusion that, as the petitioner was entitled to his discharge in the district court, he ought to be released in his proceeding in habeas corpus, as that proceeding was the only one which afforded him a speedy remedy; that, if his only remedy was by appeal, he must continue wrongfully restrained of his liberty until the case was finally determined by the district court, as an appeal can be taken by defendant only after judgment; that it would be.a palpable violation of the bill of rights, and also of the statute, to require an accused who is-entitled to his discharge, so far as relates to the offense for which he was committed, to be restrained of his liberty indefinitely at the instance of the state, or upon the order of the court, to await his final trial or determination of the case against him. While the decision in the McMicken case was not unanimous, a much stronger showing was made in that case than in this one. There the petitioner had applied to the court in which the criminal action was pending against him for his discharge under the statute. The court erroneously overruled his motion. In this case no application for relief was made to the court in which the civil action was pending against the petitioner. Section 173 of the code provides that “A defendant may, at any time before judgment, apply on motion to the court in which the suit is brought, if in session, and in vacation to a judge thereof, to vacate the order of arrest or to reduce the amount of bail..” Under this section of the statute, ample authority is given the trial court to correct any error which may have been committed by the clerk by vacating the order of arrest, if it should appear that the plaintiff had already arrale security for the paynient of its claim, or to reduce the amount of bail, if for any cause it should be found too excessive. In Barton v. Saunders, supra, it was said :
“Where a court acquires jurisdiction over the subject-matter and person, it becomes its right and duty to determine every question which may arise-in the cause without any interference from any other tribunal. Writs of habeas corpus cannot reach errors or irregularities which render proceedings voidable merely, but only such defects in substances as render the proceedings or judgment absolutely void. It is unanswerable return to a writ of habeas corpus that the court had jurisdiction in which the action was pending and out of which the writ of arrest was issued, and was competent to correct any ei’ror or abuse of its powers or to set it aside.”
As already said, the petitioner has made no application to the district court for the relief to which he was entitled under section 173 of the code. Should he do so, doubtless the irregularities of which he complains would be rectified. A much more speedy remedy is afforded under that section than could be had by proceedings in habeas corpus, even if the latter were a proper remedy.
"We are, however, of the opinion that the restraint of the petitioner is not illegal in the sense in which the word is used in section 660 of the code, that he is not entitled to be discharged in this proceeding, axxd that he should be remanded to the custody of the sheriff.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P.J.:
This was an action in ejectment for lots 1, 2, and 3, block 15,,in Huntington’s addition to the city of Clyde, Cloud county, Kansas. The case was tried by the court, which found the issues in favor of the defendant. Motion for a new trial was overruled, and judgment rendered on this finding for the defendant for his costs. Plaintiff brings the case here for review.
The condition of this case in this court is precisely the same as that of Skoin v. Limeriek, 50 Kan. 466. We cannot, then, do better than to quote the language of Valentine, J., in delivering the opinion in that case :
“Before we can reverse the decision of the court below, it will be necessary for us • to know that we have jurisdiction of the case, and this although in fact no question of jurisdiction has been raised by either party. Indeed, the defendant in error, John F. Limerick, who was plaintiff below, and who would naturally be the person to raise such a question, has not made any appearance in this court, nor has any appearance in this court been made for him. We think, however, it is the duty of this court, on its own motion, where the question is not otherwise raised, to raise the question itself, and to consider the same.”
The record is silent as to value in any amount, and, as there is no'certificate of the trial judge in the record showing the cause to be one of the excepted cases under the statute, this court has no jurisdiction. The statute limiting the jurisdiction of this court, section 542a, Code of Civil Procedure (Gen. Stat. 1889, ¶ 4642), provides :
“No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars ($100), except in cases involving the tax or revenue laws, '. . '. and when the judge of the district court or superior court trying the case involving less than one hundred dollars ($100) shall certify to the supreme court that this case is one belonging to the excepted classes.”
A fair construction of this language of our statute requires the party appealing to show that his case is within the statute, either by making the record show the amount or value of the controversy, or by including in the record a certificate of the tidal judge showing the case to be within the exception of the statute. (Loomis v. Bass, 48 Kan. 26.)
As to the record, we will say that upon examination thereof we could not say that there was any error committed by the trial judge, owing to the manner in which it is made up. Six papers are found therein, but without any identification as to what they are or refer to. None of them is marked as an exhibit, and while the agreed statement of facts refers to certain papers attached, but not as exhibits, it is impossible to tell from the papers themselves whether or not they are the ones referred to.
The case'will be dismissed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Cole, J. :
This action jras braught upon a note, and mortgage upon real estate, given by John Morris and wife. Prior to the commencement of the action John Morris died intestate, and the defendant in error, Richard Hampson, was duly appointed and qualified as administrator of his estate] • in his answer, the administrator admits the execution of the note and mortgage, and alleges that they v^ere executed as col-' lateral security only for two other notes, and that the plaintiff in error had converted to his own use a certain stock of goods and contain" ñotes and accounts, .the proceeds of which more than canceled the indebtedness. Answers were alsoJ5Le.d by some of the heirs of the deceased, alleging the same defenses as those set np by the administrator, and also the further defense that the note and mortgage sued upon in this action had been obtained by false representation, threats, and coercion, and at a time when John Morris was of unsound mind. Plaintiff in error, by way of reply, admitted that the note and mortgage sued upon were held as collateral, and set up an account of the amount received and expenses incurred in the sale of the stock of goods referred to, and claimed a balance still due of some $1,100: Upon the trial of the cause plaintiff had judgment for $350.07, and it brings the case here for review, alleging that said judgment was for a much less amount than it should have been.'
There is but one question raised by the briefs of counsel in this case. It is claimed by the plaintiff in error that the trial court erred in submitting to the jury instructions upon the question as to whether the chattel-mortgage sale was legal or not, and the objection to the instruction upon this question is made upon the theory that there was no evidence to sustain the defense that plaintiff in’error had converted the goods covered by the chattel mortgage and had failed to give the proper notice of the sale of the same, and therefore the question should not have been submitted to the jury. We cannot sustain this objection. There was evidence offered tending to prove the conversion of the stock of goods, and also further evidence tending" to prove that proper notice of the sale of said •goods under the chattel mortgage was not given. While we do not pretend to pass upon the comparative weight of the evidence offered by each party with reference to these questions, it is clear there was sufficient evidence to entitle the questions to be submitted to the jui'y. Whenever there is sufficient evidence to submit a question to the jury, it is proper for the court to instruct the jury upon the law governing them in the decision of sncli"question.
The judgment of the dist/ict court is affirmed.
All the Judges concurring | [
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The opinion of the court was delivered by
Clark, J. :
The petition herein alleges in substance that in a certain action pending before IT. W. Chapman, a justice of the peace of Blue Rapids township, in Marshall county, on the 14th day of May, 1887, the plaintiff, E. M. McAtee, recovered a personal judgment against one W. T. S. Critchfield for $66.65 damages, and $53.20 costs ; that Critchfield was a minor, and that one IT. K. Sharp was duly appointed guardian ad litem, and represented the defendant in said court; that said defendant and his guardian, desiring to appeal from said judgment to the district court of Marshall county, caused to be executed and filed in due time with the justice an undertaking which was signed by Fred. Lynd and W. H. H. Freeman, a copy of which, is attached to the petition, and which, omitting the signatures thereto and indorsements thereon, and the title of the action in which the undertaking was given, is in the'following words :
“Whereas, the defendant, IT. K. Sharp, guardian ad litem for W. T. S. Critchfield, intends to appeal from a judgment rendered against them in favor of the plaintiff, E. M. McAtee, on the 14th of May, 1887, by the undersigned justice of the peace of Blue Rap ids City township, in said county : now, we, the undersigned residents of said county, bind ourselves to said plaintiff in the sum of $250 that said defendant shall prosecute his appeal to effect and without unnecessary delay, and satisfy such judgment and .costs as may be rendered against him therein.”
The petition further alleges that said undertaking was duly approved, and that thereafter said cause was duly tried in said district court upon appeal, and judgment was rendered in favor of McAtee and against Critchfield for $87*27 damages, and $98.20 costs ; that no part of said judgment had been paid ; that execution had been issued thereon and had been returned wholly unsatisfied, and concluded with prayer for judgment against the obligors on said bond for the amount of the judgment and costs rendered against Critchfield, and for costs of this action. Personal service was had on the defendants: Freeman interposed a demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer being overruled, the defendant answered to the .merits. The sufficiency of the allegations of the petition was again challenged by an objection to the introduction of any evidence thereunder. This objection was also overruled. Thereafter a trial was duly had, and a judgment was rendered in favor of the plaintiff for $161.36, the amount due on the Critchfield judgment, including the costs therein. Freeman brings the case here and seeks a review of the several 'rulings of the court, but owing to the condition of the record the only question before this court is whether or not the pleadings set forth a ca,use of action against Freeman.
The plaintiff in error contends that the bond shows upon its face that it was given to effect an appeal from a judgment rendered against Sharp as guardian ad litem for Critchfield, and was an undertaking on the part of the sureties that Sharp, as such guardian, should prosecute such appeal to effect, and should satisfy any judgment which might be renuered against him, and that, as the petition does not disclose a judgment in the district court against the guardian ad litem, no cause of action against Sharp is shown. As before stated, the petition alleges that this bond was given in order to effect an appeal from a judgment against Critchfield in an ■ action wherein Sharp was duly appointod guardian ad litem, and that in the district court, upon said appeal, the plaintiff recovered a judgment against Critchfield. The statute provides that the party appealing shall enter into an undertaking to the adverse party conditioned that the appellant will prosecute the appeal to effect and without unnecessary delay, and that, if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. The undertaking upon- which this action is based was in strict compliance with the terms of the statute, except that it referred to the guardian ad litem, instead of the minor, as appellant. . From the pleadings, it appears that this instrument was prepared by the plaintiff in error, as attorney for Critchfield, and that the object in view when it was executed — the perfecting of an appeal to the district court from a judgment in favor of MeAtee and against Critchfield — was attained. While the judgment be.fore the justice of the peace was rendered against the minor, and the undertaking should have shown the fact, yet we do not think that the misdescription of the appellant in the undertaking is for that reason void, as the district court had ample authority, under section 131 of the justices’ code, to have ordered a change or renewal of the undertaking and thus have remedied any formal defect therein. The rights of the plaintiff in error were not prejudiced in any manner by reason of its infoi-mality. No one was misled by its recitals.
We think the question at issue is somewhat analogous to the one involved in the case of Wilson v. Mene-chas, 40 Ean. 648. That was an action brought for the recovery of specific personal property. The real plaintiff and alleged owner of the property in controversy was one Shu-ka-see, a minor. The action was brought in the name of “Me-ne-chas, as next friend of Shu-ka-see,’.’ and the defendant filed a motion to dismiss, on the ground that the action was not brought in the name of the real party in interest, but the supreme court held that the alleged defect in the title of the action was simply an irregularity, without any possible prejudice to the defendant, and sustained the trial court in overruling the motion to dismiss. For similar reasons, we think the court properly held that the pleadings herein stated a cause of action against Freeman.
As the record affirmatively shows that some of the evidence which was introduced at the trial is not before this court, we are unable to say that the findings of fact are without support, or that the court erred in overruling the motion for a new trial.
The judgment will therefore be affirmed.
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The opinion of the court was delivered by
(Graver, J.:
At the threshold of this case we are met by a motion filed by the defendants in error to dismiss the.case for want of proper parties. It is claimed that, although all necessary persons were made parties when the petition in error was filed, yet since that time one of the plaintiffs in error has died, and the action has not been revived as to him’. The record shows that on February 24, 1892, one Sarah E. Nelson obtained a judgment in the district court of Atchison county for $1,170.28 against Frank Royce, Jesse C. Crall, John Taylor, John M. Lane, and Henry L: Whitaker. The present action was commenced in said court by said John M. Lane and Henry L. Whitaker against M. E. Larkin, as sheriff, John Taylor, Jesse C. Crall, Frank Royce, Sallie H. Rigg, and Thomas J. Rigg, to enjoin the collection of said judgment by execution as against said John M. Lane and Henry L. Whitaker. The petition alleged that said judgment had been fully paid and satisfied by said John Taylor on or about March 23, 1892.; that said Taylor had .theretofore, to wit, on July 14, 1891, obligated himself, together with said Jesse C. Crall and Frank Royce, to pay and discharge the debt for which said judgment was rendered, and to save said John M. Lane and Henry L. Whitaker harmless therefrom ; and that said Taylor, through and by a pretended assignment of said judgment to Sallie H. Rigg, was attempting to enforce collection of the same against the property of said Lane and Whitaker, in fraud of their rights. A trial had on the issues joined in said action resulted in a finding and judgment in favor of the plaintiffs, Lane and Whitaker. The court found that said judgment and costs were paid on March 28,1892, by said-John Taylor, and ordered and directed that the same be satisfied and released of record as against said Lane and Whitaker. To reverse said judgment, the defendants in the court below, as plaintffs in error, filed their petition in error January 30,1893. It is admitted that Jesse C. Crall died April 28, 1894, and that letters of administration on his estate were issued by the probate court of Atchison county August 31, 1894, to Graham Crall. It also appears that this proceeding in error has not been revived as to said deceased plaintiff in error.
On these facts, we think the motion to dismiss must- be sustained. Jesse C. Crall was a necessary party to the proceeding in error. His death, without an order of revivor having been applied for or made in this court, leaves the case in the same condition it would be in had he, in the first place, not been made a party thereto. It is evident that there can be no reversal or modification of the judgment complained of without in some manner affecting each one of those against whom the Nelson judgment was rendered. As between them, there-existed certain rights for contribution growing out of their joint liability. The decision complained' of very materially affected such rights, and a reversal could not be had without a necessary and material change of the rights of the’ parties as they were determined by the lower court. Under the well-settled practice in this state, this defect of parties prevents a review of the judgment. (Paving Co. v. Botsford, 50 Kan. 331; Mortgage Co. v. Lowe, 53 id. 39 ; Loan Co. v. Lumber Co., 53 id. 677 ; Norton v. Wood, 55 id. 559.)
For these reasons the motion to dismiss must be sustained.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J.:
This is an action brought in the district court of Crawford county, Kansas, against appellant, Cropper, for'selling intoxicating liquors in violation of law, and for keeping a place where such liquors are unlawfully kept for sale, and where per- , sons are permitted to assemble for the purpose of drinking intoxicating liquors as a beverage. The information contained two counts — the first for selling, and the second for keeping the place. The information was verified by the county attorney upon information and belief, and filed with the, informa’tion was the affidavit of one Phillips, verified before the county attorney. Cropper was aquitted upon the first count, and found guilty upon the second count. He alleges error in said conviction,' and brings the case here for review.
The first error complained of is that the court overruled a motion to quash the second count of the information. A thorough examination of the record fails to disclose any motion to quash the information or any ruling thereon, and the motion for a new trial does not allege the overruling of such motion as one of the causes for which a new trial should be granted. Therefore we cannot say that the court erred in overruling a motion to quash the information. "We may say, however, that an information verified by the county attorney upon information and belief is a sufficient verification for every purpose, except merely for the purpose of issuing a warrant for the arrest of the defendant. (The State v. Blackman, 32 Kan. 615.) No attack was made upon the warrant, either by motion to quash or to discharge from arrest. The defendant below objected to the introduction of any testimony under the second count of the information, for. the reason that it does not state a public offense, for the further reason that the section of the statute which permitted the county attorney to take testimony had been declared unconstitutional by the supreme court of this state, and that there was no sufficient Verification to this complaint to put this defendant upon trial. for this offense. The same question was raised in the motion in arrest of judgment. None of these objections is sufficient to question the validity of the verification of the information by the county attorney under section 12 of the prohibitory law of 1881. In The State v. Blackman, supra, our supreme court says:
“And an information thus verified is not subject to a motion to set it aside or to quash it merely because of the supposed insufficiency of the verification ; nor may the case be dismissed or the judgment arrested or a new trial granted for any such reason. . . . ”
The information filed in this case is sufficient for every purpose except for the issuance of the warrant, and the county attorney had in mind the keeping by said Cropper of the place in the one-story building described in the information.
The other assignments of error relate to the introduction of testimony and motions to strike out testimony. A careful examination of the testimony fails to disclose any material error prejudicial to the rights of the appellant; nor is any question raised of sufficient importance to justify an extended opinion upon it.
Perceiving no material error prejudicial to the rights of the appellant, the judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
This is a proceeding to enforce the individual liability of a stockholder of the Cawker City State Bank, a corporation organized under the laws of Kansas. On October 7, 1891, the Citizens’ Savings Bank of Concordia recovered a judgment in the district court of Mitchell’county against the said Cawker City State Bank for $1,274.- On October 9 an execution was issued on said judgment, which was on October 20 thereafter returned by the sheriff unsatisfied, for the reason, as shown by Ms return, that after diligent search and inquiry he could find no goods, chattels, real estate, lands or tenements of the defendant upon which to levy the execution. On December 2, 1891, this execution was withdrawn from the office of the clerk and on December 9 thereafter was again filed, bearing a similar return to the one previously entered upon it.
On October 6, 1891, the-National Bank of Lebanon recovered a judgment in said court against the same defendant corporation for $2,070, and on October 12 an execution was issued thereon, which was returned unsatisfied on October 15.thereafter, the return of-the sheriff showing that no property, either real or personal, could be found whereon to levy the execution.
George Buist was at the date of the rendition of these judgments, and for moré than a year prior thereto had been, and at the dates hereinafter mentioned still remained, the owner of 20 shares of the capital stock of the said Cawker City State Bank, each share being of the face value of $100. On October 24, 1891, the Bank of Lebanon caused a notice in due form to be served 'upon-Buist that an application would, be made, upon the first day of the January term, 1892, of the district court of Mitchell county, for an order directing an execution against him, as a stockholder of the said Cawker City State Bank. Such application was thereafter made, agreeably to said notice, and a hearing was had thereon. After the plaintiff had introduced its evidence, Buist demurred thereto, on the ground that “ the same does not prove facts sufficient to entitle the plaintiff to any remedy against the defendant, Buist, but does show that plaintiff is not entitled to the remedy asked.” This demurrer was sustained, a motion for a new trial was overruled, and a judgment entered that the plaintiff pay the costs of the proceeding. 'Whether or not the court erred in sustaining the demurrer we are Unable to determine, as the evidence introduced upon the hearing of that application is not before us. Proper exceptions were saved to the rulings of the court, and an extension of time was allowed in which to make and serve a case for the supreme court, which time had not elapsed when the order complained of herein’was entered.
On November lá, 1891, and again on December 31 thereafter, the Citizens’ Savings Bank of Concordia caused to be served on Buist a written notice that on January 11, 1892, an application would be made to the court for an order directing that an execution issue against his property for the amount of its judgment against the Cawker City State Bank. A hearing was had upon the motion which was subsequently filed. The court found the facts to be as above recited, and held that “the plaintiff being the first judgment creditor to proceed under the statute for execution against the said stockholders after the return day of the execution, he is entitled to preference over all other creditors to the amount of his judgment,” and ordered the issu anee of an execution as prayed for. Buist seeks a reversal of that order.
Section 2, article 12 of the constitution, provides that:
‘ ‘ Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law ; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.”
Under this provision of the constitution, the legislature enacted' paragraph 1192, General Statutes 1889, which reads as follows :
“ If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be' issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together With any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged ; and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholder with the amount of his judgment.”
The statute under which the execution against the Gawker Gity State Bank was issued provides :
“The sheriff or other officer, to whom any writ of execution shall be directed, shall return such writ to the court to which the same is returnable within 6u days from the date thereof.” (Gen. Stat. 1889, ¶4567.)
The plaintiff in error contends that the law contemplates that, if no property is in fact found by the officer whereon to levy execution, he must nevertheless retain the writ in his hands for service for full 60 days, and that a return by him of nulla bona prior to the expiration of that time would be no, evidence that ‘ ‘, there cannot be found any property whereon to levy such execution.” If this should be held to be the correct interpretation of this statute, we do not think that the act of the officer in withdrawing the execution after having made a return thereof and holding the writ until the return-day named therein would afford a sufficient foundation upon which to base the subsequent proceedings to subject the property of the stockholder to the payment of the judgment. After the execution had been returned by the officer to whom it was directed it became functus officio, and no levy could thereafter have. been legally made upon the property of the corporation except by virtue of another writ duly issued. It is true that the officer is, under the statute, allowed 60 days in which, to make the levy, and he cannot be compelled to return the execution prior to the expiration of that time ; still, we know of no reason why he may not very properly return the writ before the expiration of the 60 days if after having made diligent search lie is unable to find any property upon which to levy ; and his return showing that fact would be at least prima facie evidence that no property could be found subject to execution. We think we might well adopt the language employed by the supreme court of Mississippi in Ward v. Whitfield, 2 S. Rep. 493, wherein it is said that “if there was no property subject to execution while it [the writ] remained in his hands, there ex ists no presumption that the condition of the debtor would be changed before the return-day.”
In construing a statute identical in terms with our own, it was held, in Renaud v. O’Brien, 35 N. Y. 99, that a return by the sheriff before the expiration of the time within which he was required to make it Avas a sufficient basis for a proceeding like this ; that the time alloAved for the return of an execution is for the benefit of the sheriff and to prevent action or compulsory proceedings against him before he has had a reasonable time to execute the process ; that the point beyond which it' would not continue is provided, but that the statute is silent as to hoAV soon he is to be permitted to make the return, and that if the sheriff should, make an honest return that he could find no property of the defendant in his county, or if the defendant should be known to be notoriously insolvent and the sheriff should take the hazard of an early return, no valid objection could be urged thereto. The statute of Minnesota provided that execution should be returned Avithin 60 days. In Manufacturing Co. v. Shatto, 34 Fed. Rep. 380, it was held that, after the return of an execution unsatisfied, supplementary proceedings might be commenced, although 60 days, had not elapsed since the date of the execution. In Guerney v. Moore, 32 S. W. Rep. 1132, the supreme court of Missouri Avas called upon to construe the sections of our statute above quoted, and held that, where an execution upon a judgment against a corporation was returned unsatisfied 19 days after it Avas issued, such return was not premature, and that the contingencies had arisen which Avarranted the bringing of an action to charge the stockholder of the corporation Avith the amount of the judgment.
It appears from the evidence and from the findings of fact by the court, tliat several months prior to the rendition of the judgments herein named the Cawker City State Bank suspended business, closed its doors, and made an assignment of all its property, both real and personal, for the benefit of its creditors, and that at the time the order herein complained of was made the assignee had possession and control of all the property of the bank. If the officer knew of this fact, he would have been justified in returning the execution nulla bona without making further useless search for property, as he could not legally levy upon property which was at the time held under a valid deed of assignment.
It is also contended that, if it should be held that the return of the officer was sufficient upon which to base proceedings to subject the property of a stockholder to the satisfaction of a judgment against a corporation, as the Bank of Lebanon had first instituted such proceedings, it thereby acquired a priority of right to recover against the plaintiff in error, and as its judgment.exceeded the amount of his liability as a stockholder, the court erred in ordering the issuance of an execution in favor of the defendant in error, before the time allowed by law in which the Bank of Lebanon might institute proceedings in error to reverse the ruling of the court denying its motion for execution had expired; and that, if that ruling should be reversed, and it should be finally determined that the Bank of Lebanon had acquired a prior lien upon the liability of the plaintiff in error as a stockholder, by reason of its greater diligence, in attempting to enforce the payment of its judgment by proceeding against him under the statute, the plaintiff in error might be subjected to the payment of a sum in excess of that prescribed by the constitution and statutes of this state. A sufficient answer to this contention would be that no application was made by. the plaintiff in error to have the issuance of an exe-tion stayed until his liability to the Bank of Lebanon should be finally ascertained, either upon proceedings in error, or by failure of that bank to institute such proceedings within the time limited by law. He could also have been fully protected by an order of the court authorizing him to deposit with the clerk the amount of the judgment in favor of the defendant in error, subject to the further order of the court when the priority of right of these judgment creditors should be fully ascertained.
We think, however, that when ah execution upon a judgment against a Kansas banking corporation has been returned nulla bona, the judgment creditor may at once proceed against any stockholder thereof, under paragraph 1192, General Statutes 1889, even though 60 days may not have elapsed since the date of the execution. The court has ample authority to make any order which may be necessary fully to prptect the interests, not only of the stockholder against whom such proceedings may be instituted, but of the more diligent creditor as well. Simply awarding an execution against a stockholder ‘ ‘ to an extent equal m amount to the amount of stock by him or her owned” does not of itself relieve such stockholder from his liability to other creditors of the corporation, nor prevent them from instituting similar proceedings against him ; and in such case, unless it should appear that there has been a full satisfaction of the stockholder’s liability, either by actual payment or its equivalent, an order for the issuance of an exeution against him may be rightfully entered. Executions might be awarded in favor of the same judgment creditor and against any number of stockholders for •the amount of their respective liabilities ; but there could, of course, be but one satisfaction of the judgment. It appears from the record that the Bank of Lebanon instituted proceedings against other stockholders in the Cawker City State Bank similar in their nature to those instituted by it against the plaintiff in error, and that those proceedings were still pending and undetermined at the date of the entry of the order herein complained of. If that plaintiff should recover from such other stockholders a sufficient amount to satisfy its judgment against the corporation, Buist could not possibly be prejudiced by the order of the court which' he is here seeking to have reversed.
As the plaintiff in error has failed to point out any errors of the trial court which operated to his injury, the order directing the issuance of an execution against him will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
In 1893 Julius Wulfsohn was engaged in the mercantile business in the town of Ingalls, Gray county, Kansas, and was also a partner in a mercantile house in Dodge City, Ford county, under the firm name of Wulfsohn & Swartzman ; he seemed to be greatly embarrassed by individual indebtedness, and the firm of Wulfsohn & Swartzman were also largely indebted to various persons. On the 9th day of October, 1893, Julius Wulfsohn gave a certain chattel mortgage on his goods, wares and merchandise that were then in the store at Dodge City, Ford county, and also at the same time a chattel mortgage was executed by Wulfsohn & Swartzman upon the stock of merchandise then oymed by them in Dodge City ; the one mortgage was executed to secure about $4,000 of the individual indebtedness of Wulfsohn, and the other mortgage was executed to secure about $3,500 of the indebtedness of the firm of Wulfsohn & Swartzman.
On the 10th day of October, 1893, Barton Brothers began an action in the district court of Gray county, Kansas, against Julius Wuhlfsohn, and obtained personal service of summons upon him on the same day in Gray county, and, on filing their petition, they filed the necessary affidavit and undertaking for an attachment, and caused an order of attachment to issue to the sheriff of Gray county, and also an order of attachment to issue to the sheriff of Ford county; The goods of Wulfsohn were seized by the sheriffs of eacli county under said orders of attachment and due return made thereof to the clerk of the district court of Gray county. Afterward, and at the next term of the district court sitting within and for Gray county, judgment was rendered in said action in favor of Barton Brothers against Julius Wulfsohn for the full amount of their claim, and the attachments were sustained. On the 10th day of October, 1893, the Standard Shoe Company also commenced an action in the district court of Gray county against Julius Wulfsohn, and obtained personal service of summons upon him in said county on the same day. On filing the necessary affidavit and executing the proper undertaking, they caused an order of attachment to be issued by the clerk of the district court to the sheriff of Gray county, and also an order of attachment to issue to the sheriff’ of Eord county, and the sheriffs of both Gray and Ford counties seized the goods and chattels of Julius Wulfsohn under said attachments, and made due return thereof to the clerk of the district court of Gray county, and at the next term of the district court of Gray county judgment was rendered in said action in favor of the Standard Shoe Company against Julius Wulfsohn for the full amount claimed, and the attachments, were sustained by the court.
On the 10th day of October, 1893, Hanauer, Kolm & Oo. filed their petition in the office of the clerk of the district court of Ford county, and caused a summons to issue therein, which summons was returned by the sheriff of said county not served — Julius Wulfsohn not found in Ford county — and, on the same day, upon the filing of an affidavit and undertaking in attachment, they caused an order of attachment to issue directed to the sheriff of Ford county, Kansas, and upon the same day the sheriff seized the interest of Julius Wulfsohn in the goods, wares and merchandise in the store building at Dodge City, subject to two chattel mortgages. On the 14th day of October, Hanauer, Kohn & Co. filed an affidavit in garnishment in the office of the clerk of said court, and garnishment summons was issued therein. On October 27, 1893, they filed an affidavit for publication notice to Wulfsohn. On October 27, 1893, Charles Dickerson, agent for all of the mortgagees, filed an answer on behalf of the mortgagees to the garnishment summons, setting up the claim of the several mortgagees, and alleging that on the 9th day of October, 1893, he took possession of all of said goods and chattels in the store building of the defendant at Dodge City, Kan., and claiming the right to'hold the mortgaged property for the payment of said mortgages ; he showed that the goods invoiced $15,243.66, and alleged that said mortgagees had been in the possession, in the manner aforesaid, of said property since the hour of 8 o’clock A. m. on the 9th day of October, 1893, and at that time and prior to the issuing of the garnishment summons in this action, and also alleged and showed the various attachments that had been levied on said goods since that time.
On May 1, 1894, Barton Brothers and the Standard Shoe Company each separately appeared in the district court of Ford county and intervened, and filed their separate motions to set aside and dissolve the attachments and discharge the attached property from any lien whatever under the attachment proceedings attempted in Ford county, and set up that they have, by their attachment proceedings in the district court of Gray county, acquired valid liens upon the attached property, and that each has a subsisting lien thereon, and their liens are prior and paramount to the liens of the attempted attachment proceedings in Ford county, for the reason that the district court of Ford county had never acquired jurisdiction in the matter, and that the whole proceedings therein were void. These motions were each denied by the court, and the court thereupon proceeded to render judgment in favor of Hanauer, Kohn & Oo. against Julius Wolfsohn, on default, for the full amount of their claim, and sustained the attachments against the property. Barton Brothers and the Standard Shoe Company each separately excepted to the judgments, filed motions for new trials, which were overruled and exceptions taken, and they made cases and bring the matter here for review.
There were four different cases pending in the district court of Ford county at the same time, in which the parties were all claiming an interest in the property under attachment proceedings. A receiver was ‘appointed, who sold the property under order of the court, and the court undertook to determine the priorities of the several attachment liens, and ordered the proceeds to be distributed according to the judgments therein rendered. It is claimed that the court erred in the order determining the priority of liens, by finding in favor of the several plaintiffs in cases commenced in the district court of Ford county. It is shown by the record that Julius Wulfsohn, at the time of the commencement of the several suits in the district court of Ford county and the' issuing of the order of attachment therein, was a resident of Gray county, in the state of Kansas, and that he'was not in the county of Ford, and could not have been, and was not served with summons in said county, and that he did not voluntarily enter his appearance in any of the suits in said county.
We are confronted in the first step in these cases with a motion to dismiss the petitions in error in the cases for the reason that the court has not jurisdiction, because plaintiffs in error have not brought all the parties before this court that may be affected by a review of these cases or that claim an interest in the property involved in the several cases.
The plaintiffs in error have brought all the parties before this court that were parties to the litigation in the district court. Some of these were parties in one suit and some were parties in other suits, and they are all before this court in the proper cases. We think the parties that may be affected by review of these cases are all before this court, and their rights and interests will be fully protected by the judgment and consideration thereof. . To give this court jurisdiction it is only necessary to bring all parties that Were parties to the suit below. Persons who were not parties in the district court are not affected by its judgments, and are not necessary parties to the pro-, ceedings in error for a reversal of such judgments. The plaintiffs in error have made the persons who were parties to the suit in the distinct court parties to the proceedings for a review in this court in the same suit that they were parties to below; or, in other words, those that were parties to that branch of the case that is affected by these proceedings.
This brings us to a consideration of the material questions alleged as error, for which a reversal of the judgment is sought. The plaintiffs in error, after having commenced their action in the district court of- Gray county, and obtained personal service of summons on defendant Wulfsohn in that suit, procured valid attachments on the property of Julius Wulfsohn. and prosecuted their actions to final judgment, and the attachments were sustained by the court. They then came into the district court of Ford county and filed their motion to dissolve the attachments and discharge the property from the claim of apy lien thereto by the plaintiffs in the actions therein. The motions set out all the facts necessary to authorize them to intervene, and were supported by affidavit.
Section 45a of the code (Gen. Stat. 1889, ¶4123) provides:
“Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit made by himself, agent, or attorney, and issues may be made upon such inter-pleader, and shall be tried as like issues between plaintiff and defendant, and without t any unnecessary delay.”
The district court entirely disregarded the motion of the plaintiffs in error and rendered judgment against Wulfsohn by default, and sustained the attachment and made it a paramount lien to that of the plaintiffs in error. Upon the facts disclosed, Barton Brothers and the Standard Shoe Company were interested in the property attached, and also in having.it discharged from the attachment, which the record shows was wrongfully levied thereon. (Bank of Santa Fe v. Haskell Co. Bank, 54 Kan. 378 ; Dolan v. Topping, 51 id. 321.)
The plaintiffs in error, having appeared and intervened in the actions and set up fully such facts as entitled them to a dissolution of the attachments and a discharge of the property, and such facts being admitted, they were entitled to a dissolution of the attachments and a discharge of the property from any pretended lien of the defendants in error. They were entitled to raise the question of jurisdiction in 1*.iid court, and it was the duty of the court first to pass upon the question of its jurisdiction to further enter-. tain, the action. This brings us to a consideration of the question of jurisdiction of the district court of Ford county.
Chapter 80 of the General Statutes of 1889, commonly known as the code of ciyil procedure, is intended to regulate the procedure in all ciyil actions, and defines the manner of bringing actions, the rules governing the procedure therein, the time in which an action may be commenced, who are necessary parties ; also, when an action is deemed to be commenced, and the county in which actions may be brought.
"Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in section 47 : First, For the recovery of real property or an estate therein, or for the determination in any form of any such right or interest. Second, For the partition of real property. Third, For the sale of real property under mortgage, lien, or other incumbrance or charge. (Gen. Stat. ¶ 4125.)
Actions for the following causes must be brought in the county where the cause, or some part thereof, arose :
First, an action for the recovery of a fine, forfeiture or penalty imposed by statute, except that when it is imposed for an offense committed on a river or other stream of water, or road, which is the boundary of two or more counties, the action may be brought in any county bordering on such river, watercourse, or road, and opposite to the place where the offense was committed. Second, an action against a public officer for an act done by him in virtue or under color of his office or a neglect of his official duties. Third, actions on an official bond or undertaking of a public officer. An action other than those mentioned in 'sections 46, 47 and 48 of article 5, against a nonresident of this state or a foreign corporation, may be brought in any county in which there may be property of or debts owing to said defendant, or where said defendant may be found ; but if said defendant be a foreign insurance company, the action may be brought in the county where the cause, or some part thereof, arose. Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned. This statute is of itself a source of jurisdiction and a guide and limitation thereto ; it makes the locus in quo the place where certain actions must be brought, and limits the action to the locality where the subject of the action is situated or where the cause of action arose, and the suit must be brought in the county where the property to be affected by the judgment of the court is situated, or, where the action is local in its character, to the county in which it arose. All other actions than those made local by the legislature must be commenced in the county where the defendant or some one of the defendants reside, or where he may be served with a summons. Actions against foreign corporations or nonresidents may be brought in any county in which there may be property of or debts owing to the defendant.
"Where the action is not of a local character, against a resident of the state, it must be brought in the county where he resides or. where he may be summoned. Actions are either in personam or in rem. In all actions in personam there are adversary parties, and the court cannot entertain any such action until it has jurisdiction over the subject-matter and of the parties; but in proceedings in rem the jurisdiction is over the property alone, and it must be within the jurisdiction of the court. Where a party is a -resident of this state, and owns goods, wares and mer-' chandise in some other county than that of his residence, and the action is a personal one, a suit to reach such property must be commenced in the county of the residence of the owner, or in some county where he can be served personally with summons ; and, when the action is brought in the county where the defendant resides or where he may be summoned, orders of attachment may be directed to the sheriff of any other county in the state, and defendant’s property seized thereby ; but the sheriff must make his return to the court having jurisdiction of the suit, and all orders and proceedings thereafter must be by the court where ■defendant resides or where he has been legally summoned. Where an action for the recovery of money is brought against a resident of this state in some county other than that of his residence or where he may be served with summons, the court acquires no jurisdiction of the subject of the action or of the person of the defendant.
There are three methods by which the want of jurisdiction may be taken advantage of : (1) By motion to dismiss ; (2) by demurrer ; (3) by plea. The motion to dismiss may be made at any time, where the court has no jurisdiction of the subject-matter or of the party, and may be made by any person who will be injuriously affected by such proceedings. The district court of Ford county did not acquire jurisdiction over the person of Julius Wulfsohn by the commencement of suits in Ford county, and no suit could legally be instituted agains him in said county in his absence therefrom ; and an order of attachment in a civil action for the recovery of money may be issued at or after the commencement thereof. It therefore follows that the clerk of the district court of said county could not legally issue an order of attachment in said action. The order of attachment, being issued without authority, was a nullity, and the parties did not obtain any lien on the property of Julius Wulfsohn. The district court of Ford county not having acquired jurisdiction over either the person of Julius Wolfsohn or his property, when the attention of the court was called to these matters, it should have dismissed, the action and discharged the property from the illegal seizure thereof.
The judgment of the district court is reversed, and the case remanded for such further proceedings as are indicated in this opinion.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J. :
The plaintiff in error, Mary Stevens, sought, by a proceeding in habeas corpus instituted be fore Hon. A. W. Benson, judge of tlie district court of Douglas county, to be discharged from an alleged illegal imprisonment enforced by the defendant in error, John C. Moore, as sheriff of said county. The petitioner was imprisoned under a commitment issued by one W. H. Mason, a notary public of Douglas county, because of her refusal to testify as a witness in the taking of depositions before him. A writ was duly issued by order of said judge, and upon its return with the body of the plaintiff in error a hearing was had, resulting in an order remanding her to the custody of the sheriff. To review and reverse such order, a petition in error with transcript of the record has been filed in this court. The defendant in error now moves to dismiss these proceedings, for the reasons : (1) That no appeal lies from the order and decision complained of; and (2) that, if an appeal lies, the jurisdiction to review is in the supreme court and not in this court. With this latter contention we agree.
The act creating the Kansas courts of appeals (Laws 1895, ch. 96) confers upon such courts only a limited and special jurisdiction. The supreme court i’emains, as it always has been, the only court having general appellate jurisdiction. The jurisdiction of this court must be found within the provisions of section 9 of said chapter 96, which provides :
“Said courts of appeals . . . shall . . . have exclusive appellate jurisdiction as now allowed by law in all cases of appeal from convictions for misdemeanors in the district and other courts of record ; also in all proceedings in error, as now allowed by law, taken from orders and decisions of the district and other courts of record or the judge thereof, except probate courts, in civil actions before final judgment and from all final orders and judgments of such courts within their respective divisions where the amojmt or value does not exceed $2,000, exclusive of interest and costs. . . . All other cases of appeal and proceedings in error shall be taken as' now provided by law.”
It is unimportant for the purposes of this case at this time to determine the correct classification, among actions and proceedings, of the proceeding known as habeas corpus. It matters not whether the proceeding had before the judge of the district court of Douglas county should be classed with civil actions or special proceedings, or whether it is of a guasi-criminal nature. The important question is, Is the order and decision complained of such an order as this court is authorized to review? Certainly the plaintiff in error was not convicted of a misdemeanor. That term has a well-understood meaning in the law, which must be presumed to have been in the legislative mind when the statute was under consideration. There is nothing in the proceeding in this case that would justify its classification under that head. Nor can it be regarded as a continuation of the contempt proceedings, and, therefore, partaking of its criminal character, as is the case (Gleason v. Comm’rs of McPherson Co., 30 Kan. 53) when an order of commitment issued by an examining magistrate is reviewed by habeas corpus. There is no authority for such review of an order of commitment for contempt issued by a court or officer having authority to commit. (¶ 4785, Gen. Stat. 1889 ; In re Morris, Petitioner, 39 Kan. 28.)
Ordinarily, we think, habeas corpus is a civil proceeding. The code of civil procedure makes provision for it and governs the practice relating to it. But, considered as ' a civil proceeding, we have no jurisdiction. The courts of appeals have jurisdiction to review an order or judgment of the district court or the judge thereof only where the amount or value does not exceed $2,000, exclusive of interest and costs. Jurisdiction is thus limited to a.particular class of civil actions — such only as involves controversies having a money value. It necessarily embraces only such cases as are for the recovery of money, or that concern property or property rights which have a money value. The statute furnishes no criterion other than the amount or value in controversy by which the appellate jurisdiction of this court in civil actions may be determined. When, as in this case, the controversy is of a nature which does not allow of a reasonable valuation in money, how can it be said that the case falls within the class to which the jurisdiction is limited? This was the view of the law expressed by the supreme court in McPherson v. The State, ex rel., 56 Kan. 139. The last part of the second paragraph of the syllabus of the court in that case, having reference to the statute above quoted, reads:
“That clause in said section which gives the courts of appeals jurisdiction where the amount or value does not exceed $2,000, exclusive of interest and costs, includes only actions where there is an amount, or something having money value, in controversy.”
This was an action of quo warranto, appealed from the district court to this court, and by us certified to the supreme court, where it was held, on the ground that that court had exclusive jurisdiction of that class of cases. In principle, we are unable to distinguish that case from the one under consideration, so far as jurisdiction is concerned. We are of the opinion that the questions presented upon this record are not reviewable by this court. If appealable at all, the case falls within the general appellate jurisdiction of the supreme court, which has not been disturbed by the act creating this court, except as to the special class of cases above mentioned.
The case will therefore be certified to that court.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J.:
This was an action brought in the name of The State of Kansas, as plaintiff, against Van R. Blush, as defendant, to compel him to make certain provisions for the support of an alleged illegitimate child, the paternity of which was imputed to him by the mother of said child, one Laura A. Hunt. The prosecution was instituted before A. F. Chesney, a justice of the peace of the city of Topeka, on the 16th day of October, 1898. There are several errors as-' signed. "We shall, however, consider only one, as upon it this case must be reversed.
Was Laura Hunt a single woman at the time she made this complaint? Paragraph 3252, General Statutes of 1889, provides : “ When any unmarried woman who has been delivered of or is pregnant with a bastard child shall make a complaint. . . .” This section has been construed by the supreme court of this state to mean that, if the prosecuting witness was a single woman when she commences the prosecution, although she may have been married when the child was born, the proceeding may be prosecuted by the mother of such child. (Willetts v. Jeffries, 5 Kan. 470.)
The evidence in this case shows that at the time the child was born she was a married woman. Does not, then, the law presume, where it is once shown that a marriage relation exists, that it continues until it is proven to the contrary? We think so, and it is incumbent upon the state to prove every material fact and element necessary to constitute the offense befoz e a conviction can be had. One of the'material facts of this case to be proven by the state was that Laura A. Hunt, at the time she made this complaint, on the 16th day of October, 1893, was a single.woman. The only testimony upon this proposition is that of the prosecutrix herself, in which she said that at the time of the birth she was a married woman, and then testified as follows:
Q,ues. Whom had you married? Ans. W. A. Hunt.-
Q,. .At the time of the birth of the child, how long had you been married to him? A. Prom the 19th of October to the 9th of May the same year.
Q,. 19th of October? Is that correct? A. 1892.
Q,. The child was born March 9, 1892? A. Yes, ■sir ; I was married in 1891.
Q,. You were married in October before that? A. The 19th of October, 1891.
Q,. Prior to that date had you been married? A. No, sir.
Q. Had you ever been married prior to the time you married Hunt? A. Yes, sir; my first husband was dead.
Q,. What had become of your first husband? A. He was dead.
Q,. When did he die? A. He died in October.
Q,. What year? A. Two years before that; I cannot call the year.
Q,. Two years before you married Hunt? A. Yes, ■sir.
Q,. On the 16th day of October last, and now state whether you were a married woman or single. A. •Single.
Upon cross-examination she stated:
Q. You say the child was born on what day of the month? A. 9th of March, 1892.
Q,. You say at that time you were married to Hunt? , A. Yes, sir.
Q,. Got married October before? A. Yes, sir; but I did not live with him.
Q,. But you had been married to him the October before? A. I did not live with him at all.
Q,. You were married to him? A. Yes, sir.
Q,. You have so.stated, I believe? A. Yes, sir.
Q. Then you stated that in last October, when you brought this action,' you was a single woman? A. Yes, sir.
Q. How did that come? A. I obtained a divorce from Mr. Hunt.
Q. Where? A. In this court.
Q,. You obtained a divorce in October last,? A. Yes, sir.
Q,. Do you remember the day in October it was granted? A. No, sir, I do not exactly.
Q. The 15th? A. I do not remember the date.
Q,. What is your-best impression as to the date? I see’this was filed October 16. A. I think it was near that.
Q. It was about there, was it, before you filed thi^, that you got your divorce here? A. Yes, sir, a few days, I suppose; I cannot state just exactly.
Q,. What is your best recollection? A. I will tell you as near as I know. I cannot tell you. I know I got the divorce somewhere near the middle of October.
Q,. That is, you got your divorce? A. Yes, sir.
Q,. You know it was in the month of October? A. Yes, sir.
Paragraph 4757 (being section 647 of the code) reads as follows :
“A divorce granted at the instance of One party shall operate .as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other, except in cases where actual fraud shall have been committed by, or on behalf of, the success* ful party. Every judgment of divorcement granted by a district court shall be final and conclusive, unless appealed from within the time and in the manner herein provided. A party desiring to appeal from a judgment granting a divorce must, within 10 days after such judgment is rendered, file a written notice in the office of the clerk of such court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment; and unless such, notice be filed, no appeal shall be had or taken in such cause; if notice be filed as aforesaid, the party filing the same may commence a proceeding in error for the reversal or modification of such judgment at any time within four months from the elate of the decree appealed from, and not thereafter'; but whether a notice be filed as herein provided, or not, or whether proceedings in error be commenced as herein provided, or not, it shall be unlawful for either party to such •divorce suit to marry any other person within six months from the date of the decree of divorcement; .and if notice be filed, and proceedings in error be commenced as hereinbefore provided, then it shall be unlawful for either party to such cause to marry any •other person until the expiration of 30 days from the day on whieh final judgment shall be rendered by the appellate court on such appeal; and every person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void.”
Paragraph 4759 (§6476, Code) provides:
‘ ‘ Every decree of divorce shall recite the day and •date when the judgment was rendered in the cause, and that the decree does' not become absolute and take effect until the expiration of six months from .said time.”
Conceding that her testimony was sufficient to establish' the fact that she had obtained a decree of divorce, it is clearly shown by the testimony that, within two or three' days after it was granted, she commenced this action. She says that she was divorced in the middle of October. Now, giving all the latitude that is possible to be given to what is meant by the term, “about the middle of October,” it would only include a range from the 10th to the 20th of the month. Either of these dates would constitute the middle of the month. But it must, from her testimony, have been prior to the 16th, and at the utmost limit not over six days before she instituted this action. But did the mere decree of divorce make her a single woman? We think not. Our statute expressly declares that the decree does not become absolute or take effect until the expiration of six months from the date of its rendition. It not only makes it unlawful for the parties to marry during that time, but declares that a marriage so contracted shall be absolutely void. During that six months, therefore, neither party to the decree of divorce is an unmarried person.
As we have said, neither of them could contract marriage within that time, and if either did the marriage would be void, and in the eye of the law they are still married. The decree is not absolute at the time of its rendition. It is merely a decree nisi, subject to tlie future order of the court, and to be affected by contingencies that might arise within the six months. And it has been held by courts of high reputation, that until the decree is absolute the marriage is in full force. (5 Am. & Eng. Encyc. of Law, 838; Wales v. Wales, 119 Mass. 89.)
And the supreme court of this state (Wilhite v. Wilhite, 41 Kan. 154) has adopted this, doctrine, and held in that case, in construing the Oregon statute, (which provides : “ A decree declaring a marriage void shall have the effect to terminate such marriage as to both parties, except that neither party shall be capable of contract ing marriage with a third person, and, if he or she does so contract, shall be liable therefor, as if such decree had not been given, until the suit has been heard and determined on appeal, and if no appeal be taken, the expiration of'the period allowed by this code to take such appeal,”) that under that law a decree of divorce does not absolutely terminate the marriage relation, nor entirely free the parties from its obligation and liability, until the expiration of the time allowed in which to take appeal. The same construction had been given to a similar statute in the then territory of Washington, in the case of Smith v. Fife, 30 Pac. Rep. 1059. This court, in passing upon a similar question (Conn v. Conn, 2 Kan. App. 419), held that a marriage contracted within six months, under the law of marriage and divorce as it stood in 1881, was valid, but placed it upon .the ground that the code of 1881, unlike the statutes of Oregon and Washington, simply declared that it should be unlawful for either party to marry within six months after the decree, and did not make the parties incapable of contracting, nor declare a marriage so solemnized void ; and Judge Clark, in rendering the decision of the court in that case, makes this distinction very clear, and very plainly intimates that, if the law governing that case had contained the provisions which it now contains, the decision would have been different. In speaking of the construction given to the statute of 1881, he says : ■
‘ ‘ This construction seems to be in accord with the views of the legislature, when, in 1889, the law was amended so as to make absolutely void a marriage by either party to a divorce suit before the expiration of six months from the rendition of the decree and during the pendency of proceedings in error.”
We think 'that the prosecuting witness at the time of the commencement of this prosecution was undoubtedly a married woman. This being the case, she cannot maintain the prosecution, and upon her own ■showing she had simply obtained a decree which had not become absolute — had not yet taken effect. It is contended by counsel for the defendant in error that this decree of divorce, and in fact every decree of divorce, becomes final within 10 days after its rendition, under that portion of the section which reads : “ Every judgment of divorcement granted by a district court shall be final and conclusive, unless appealed from within the time and in the manner herein provided.” The time and manner provided is filing a notice within 10 days after such judgment. We cannot agree with them upon this construction of ■ the statute, and, even if we did, the state failed to prove in this case that the 10 days had expired. And, as we have said, giving the greatest latitude that could possibly be given, the decree had not been entered over six days prior to the filing of this complaint, so that, under their contention, the decree was not final.
We think, for the reasons given, the judgment in this case should be reversed, and the cause remanded, with instructions to dismiss the prosecution and discharge the defendant.
All the Judges concurring. | [
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The opinion of the court was delivered by
Cole, J. :
H. H. J. Johnson brought his action in the district court of Cowley county, Kansas, against' the German American Insurance Company upon a certain policy of insurance issued by said company at its local agency in Winfield, Kan. Jarvis & Conklin were also made parties defendant, for the reason that the plaintiff had assigned to them some portion of his interest in the policy. In their answer, Jarvis & Conklin set up that the assignment of said policy by the plaintiff was made not only to them, but to the Mutual Benefit Life Insurance Company, and asked that said company be made a party defendant in the action. The defendant the German American Insurance Company admitted the issuance of the policy sued upon, and that a loss had occurred under the same, and alleged that by the terms of said policy an arbitration was necessary to be had, upon the application of either party; that after the fire which caused the loss under such policy an arbitration 'was had by the acts and consent of all parties, and an agreement reached which had been duly ratified by the plaintiff, and the said company tendered in court the amount due under such arbitration, and alleged that it was willing at all times to pay said amount, but that a dispute existed between the plaintiff and the defendants Jarvis & Conklin and the Mutual Benefit Life Insurance Company, mortgage creditors, as to whom the money should be paid, and the said German American Insurance Company asks the court to adjudge to whom said money belongs. For a further defense, the German American Insurance Company alleged that there is a defect of parties defendant, for the reason that the Mutual Benefit Life Insurance Company holds an assignment of a part or the whole of the amount due upon said policy. And for a further defense, it is alleged that^the plaintiff has no interest whatever in the policy in question. Attached to this answer were copies of the agreement for submission and of the award of the appraisers thereunder. . ¶
To this answer the plaintiff filed a reply, alleging that the arbitration set up by the German American Insurance Company was void for the reason that it was obtained by false and fraudulent representations on the part of the defendant and the London Assurance Corporation, and sets up the particular acts and statements alleged to have been performed and made which constituted such fraud. The plaintiff also filed a reply to the answer of Jarvis & Conklin, and upon these pleadings the cause came on for trial, and thereupon the court held that the burden of proof was upon the defendant the German American Insurance Company, to which ruling said company then and there duly objected and excepted.
At the close of the evidence offered by the plaintiff the said insurance company filed a motion for judgment, for the reason that the plaintiff had introduced no evidence to show that the arbitration and settlement was fraudulent, which motion was by the court overruled and said ruling duly excepted to.
The court instructed the jury in substance that the burden of proof was upon the defendant the German American Insurance Company, and that it must show by a preponderance of evidence that the arbitration in question was fair and without fraud upon its part. From a judgment in favor of plaintiff the German American Insurance Company brings the case here for review.
A motion is filed in this court to dismiss this case, for the reason that the record does not show that notice of the settlement of the case made was served, or that defendants-the Mutual Benefit Life Insurance Company and Jarvis & Conklin appeared at the settlement of the case made, and for the further reason that the record shows that it is not complete, in that it lacks a certain stipulation filed in the case. An affidavit has been filed by the German American Insurance Company to the effect that the case made was duly served, and that all amendments suggested were incorporated by consent; that notice of the settlement was waived and the judge certified the same as an agreed case made with knowledge of the facts. This affidavit stands uncontradicted, and, such being the case, the motion must be denied', under the rule laid down in Roser v. National Bank, 56 Kan. 129 ; Bank of Claflin v. Rowlinson, 2 Kan. App. 82. In the first of these cases the court holds that matters relating to the service, signing and settling of the case made may generally be shown outside of the case made, but that the ruling of the trial court assigned for error must be embodied in the case made itself, and can never be shown by extrinsic evidence, and this rule is followed in the latter case. So far as the second ground of the motion is concerned, the stipulation referred to was one entered into between the plaintiff and defendants Jarvis & Conklin and the Mutual Benefit Life Insurance Company with reference to the distribution of the amount which might be recovered from the German American Insurance Company, and could in no way affect the rights of the parties in this controversy, nor does it enter into the question in dispute in this case.
The first contention of plaintiff in error is that the action should have been abated, for the reason that the Mutual Benefit Life Insurance Company was a necessary party defendant in the action, and was not made a party until the time of the trial and at a date when, under the terms of the policy, said company could not have maintained an action against the German American Insurance Company', for the reason that the period of limitation stated in the policy had expired. It appears from the record that after the policy in question had been issued to Johnson an assignment was made of either the whole or a portion of his interest to Jarvis & Conklin and the Mutual Benefit Life Insurance Company. Undoubtedly all parties to whom an assignment had been made of any interest in the policy were necessary parties to this action. The insurance company had a right to insist that it should only be compelled to litigate once the rights of parties under the policy. (Swarthout v. C. & N. W. Rly. Co., 49 Wis. 625; A. T. & S. F. Rid. Co. v. Huitt, 1 Kan. App. 788.)
But it appears in this case that at the trial the Mutual Benefit Life Insurance Company was made a party, and this, we have no doubt, the trial court had the power to permit, either with or without terms, in its discretion ; that while objection was made by the plaintiff in error, the matter seems to have closed there. The Mutual Benefit Life Insurance Company adopted the answer of Jarvis & Conklin, but filed no separate answer for itself. No other pleading was filed by the plaintiff in error, and, while we are clearly of the opinion that, under the provisions of the policy, had the question been raised, no recovery could have been had by a party who first appeared at that date, yet we are unable to say from the record that the plaintiff in error was prejudiced, and if it was it is quite clear that the error was waived, for the reason that no issue of the statute of limitations was raised, either by demurrer, answer, or objection to the introduction of evidence.
The nest error complained of is the ruling of the court compelling the German American Insurance Company to assume the burden of proof in this case. In every stage of the proceeding plaintiff in error urged' its objection to this ruling, and it was undoubtedly prejudicial error. The plaintiff sued upon an insurance policy, and the defendant admitted the issuing of the policy and a loss thereunder, and alleged an arbitration and agreement of the amount of such loss by the parties to the policy. The plaintiff replied, alleging that such" arbitration was void on account of fraud of the agents of the defendant insurance company and others connected therewith. Clearly there was but one issue to try under these pleadings, and that was the question of fraud. The defendant had admitted the policy and. a loss, which avoided the necessity of proving these facts, and the plaintiff, by alleging that the arbitration was void on account of fraud, admitted that an arbitration had been entered into, and that if the same had been fair and just it was binding on said plaintiff.
It was certainly the duty, under pleadings like these, of the person alleging the fraud to assume the burden of proof. Fraud is never presumed but must be proved, and where one attempts to escape liability, or a settlement upon the ground of fraud, it cannot be said that his opponent must be compelled to first prove that there was no fraud. This error of the court was continued- through the trial of the case and in the instructions given to the jury. It is contended by counsel for defendants in error that the ruling was not prejudicial even if erroneous. We cannot agree witli counsel in this contention, for the instructions of the court upon this branch of the case could have left no doubt in the minds of the jury that the court was fully of the opinion that the plaintiff in error must first show that no fraud had been practiced, and that it required a preponderance of evidence on the part of the insurance company upon that question.
The next error complained of is the overruling of the motion for judgment in favor of the defendant the German American Insurance Company, at the close of the evidence of the plaintiff below, for the reason that no fraud had been shown. This motion should have been sustained. The facts in this case were that, at the time of the loss of the property covered by this policy in suit, the plaintiff also held another policy, issued by the London Assurance Corporation, and which was concurrent with the policy issued by the plaintiff in error. Shortly after the fire occurred, representatives of these companies visited the plaintiff, who was living in a small house in the immediate vicinity of the property which had been destroyed. They stated to him the purpose for which they had come, viz., to arrive at an understanding as to the amount of loss sustained by him, and to make an appraisement and award according to the conditions contained in the policies. At that time plaintiff was suffering slightly from the effects of la grippe, but was sitting up, and he himself testifies that he understood what he was doing; that he at first declined to enter into any written agreement, desiring to see his attorney, but afterward, having received notice from the brother of his attorney, who was also the agent of the insurance company, to the effect that his attorney had left town and that the representations made as to the appraisement were proper, he signed the agreement. There was no hasty action upon the part of any representatives of either of the insiirance companies, some four or five days having passed before the settlement was finally completed.
The insurance company brought a man from Wicli-. ita who was a master-builder, and the plaintiff himself selected a master-builder residing in his own town. These two, after examining the ruins of the property destroyed and obtaining information from the plaintiff and various dealers m building material, agreed upon the amount of damage, and said amount was accepted in writing as being the amount of the damage with no objection, and with seeming entire satisfaction. The master-builder selected by the plaintiff had never seen either of the representatives of the insurance companies, or the person selected by them to represent them in the ajipraisement, nor did any person on behalf of the companies take any part m or interfere with the appraisement, nor were they present during any of the time when the appraisers were arriving at a conclusion, and, more than all, the plaintiff himself was a carpenter, and had performed much of the labor and purchased all of the material used in the building which had been destroyed. He knew what it liad cost to erect such a building, and he knew in what sum the loss was appraised at the time of the final settlement. He was perfectly able to walk from his home to the business portion of the town and execute upon his part the necessary papers for the settlement. All the witnesses testified that there was nothing in his appearance or action but what indicated that he understood whai he was doing and was entirely satisfied. And whe.i placed upon the stand in the trial of this case as a witness in his own behalf, and pressed by his counsel even to the verge of cross-examination, he said that no misrepresentations or false statements were made to him by any of the representatives of the insurance companies. The most that can be said is that he may not have understood the full import of the papers executed by him, but he had every opportunity to' obtain any information desired, and plenty of time to reflect upon what he was asked to do, and obtain counsel if he so desired. He appears from the evidence to have been a man of intelligence, and it will not do to say that, because he signed a paper the import of which was not fully comprehended, he was a victim of fraud.
Under the insurance policy, the company had a right to appraisement and arbitration, and the plaintiff himself recognized this right at a later daie when he sought to ignore the first arbitration and, in connection with the Mutual Benefit Life Insurance Company and Jarvis & Conklin, entered into a second arbitration, of which notice was given to the German American Insurance Company. We might here say that, had this first arbitration been void for any reason, we are of the opinion chat the German American Insurance Company would have been bound by the second award, although it was not present, for the reason that it had notice thereof and elected t< stand upon the first award. We have carefully studied this evidence, and especially that of the plaintiff with regard to what took place at the time the agreement for the first award was entered into, and are very clear in the opinion that it utterly fails to establish any fraud whatever, and that the court should have rendered judgment upon the motion of the plaintiff in error.
It is contended by the defendant in error that, even although the court may have committed error in over ruling the motion of plaintiff in error for judgment, the judgment of this court should be against plaintiff m error for interest and osts, for the reason that no sufficient tender was made We cannot agree with this proposition. The answer of plaintiff m error alleged that it at that time tendered the full amount agreed upon in the appraisement, and there is nothing in the record to show that the amount was not then deposited as alleged by the pleading.
Besides, our statute provides (¶4214, Gen. Stat. 1889) that it shall not be necessary to deposit money so tendered until the time of trial or when ordered by the court.
The judgment of the district court is reversed so far as it relates to the German American Insurance Company, and this cause is remanded, with instructions to the district court to render judgment m favor of the German American Insurance Company for costs, the amount tendered by said company to be distributed to the interested parties, under the order of the district court. i
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
On the 25th day of April, 1894, John O. Sheridan commenced this action in the district court of Miami county, Kansas, against Elias J. Snyder, F. O. Snyder, and Daniel G. Prugh. The plaintiff in his petition claimed to be the owner of five thirty-second parts of the southwest quarter of section 15, township 18, range 22, in Miami county, Kansas, and that Elias J. Snyder was the owner of the other twenty-seven thirty-seconds thereof, subject to a certain mortgage of $400 given thereon to Daniel G. Prugh, and prayed for partition accordingly, and that the mortgage of Prugh be held to be no lien on the five thirty-second parts thereof which were owned by plaintiff. Afterward Eiias J. Snyder and F. O. Snyder filed their separate answer, which alleged, first, a general denial; second, that Elias J. Snyder was the absolute owner of the whole of said land; third, that Elias J. Snyder and his grantors had been in the actual, exclusive and open possession and occupancy of said land and every part thereof for more than 15 years before the commencement of this action, which occupancy was exclusive, and adverse to the plaintiff, and is claimed under an absolute title ; that during this occupancy he had made valuable and lasting improvements thereon, and had paid all taxes on said land. Daniel G. Prugh filed a separate answer, denying the ownership of plaintiff to any part of the .lands, and setting up and claiming a lien on the entire tract of land by virtue of a mortgage, which was unpaid and was a valid lien upon the whole tract of said land.
Plaintiff’s reply was a general denial. The parties waived a trial of the issues by a juryi and the case was submitted to the court,'and resulted in a judgment in favor of the defendants. Plaintiff filed a motion for a new trial, which was overruled and exception taken. Plaintiff was given time in which to make ;ind* serve a case for the supreme court, and now brings the matter here for review.
The case made was never served on Daniel G. Prugh, nor was he notified of the time and place that said case would be presented for settlement. He is not brought into this qourt by service of summons or by voluntary appearance, and we are confronted at the very threshold of this case with the objection that this court cannot review this case, and that 'for want of necessary and proper parties it has no jurisdiction. The supreme court of this state, as well as the courts of appeals, has held in a number of cases that the absence of a party to a judgment who will be necessarily affected by a reversal or modification thereof defeats the jurisdiction of the court, and there can be no review of any such judgment. (Loan Co. v. Lumber Co., 53 Kan. 677 ; McPherson v. Storch, 49 id. 313 ;. Paper Co. v. Hentig, 31 id. 322 ; Paving Co. v. Botsford, 50 id. 331; Bain v. Conn. M. Life Ins. Co., 3 Kan. App. 346.)
Where a case made is not served on one of the parties to the judgment, and is settled without notice to him, it is a nullity. This case made not being served on Daniel G. Prugh, and no notice being given to him of the settlement of the case, and he not being brought -into this court, either by service of summons or by voluntary appearance, this court cannot review the errors complained of and reverse or modify the same.
The petition in error is dismissed at plaintiff's cost.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
The petition alleges in substance as follows : (1) That on August 10, 1890 one Anton Feldhofe departed this life, in Douglas.county, Kansas, being at the date of his death the owner of certain real and personal property; that after his death there was presented to the probate court an instrument of writing purporting to be the last will and testament of said Anton Feldhofe ; that on the 12th day of August, 1890, said will was admitted to .probate; that by said will the defendants Henry Gerlach, Eberhardt Feldhofe, Bernard Brinkman, Catherine Roper, and the Church of the Holy Family, of Eudora, Douglas county, Kansas, were named as legatees; that said Anton Feldhofe died an unmarried man, without issue, neither father nor mother surviving him, but that certain persons therein named and made defendants were his only relatives and sole heirs; that the deceased at the date of the execution of said pretended will was of unsound mind, was not of sound and disposing mind, was wholly unable to sign said will or to lcnow or comprehend the contents thereof; (2) that he never signed and executed said will, and did not, on the 4th day of August, 1890, or at any time, have the mental capacity to comprehend the contents of said instrument if read to him, he being unconscious most of the time; (3) that on said 4th day of August, 1890, he was wholly unable to remember the names of his brothers’ and sisters’ children, had forgotten and did not know that he had any blood relation or kin in the United States ; (4) that the pretended will is not intelligible, is uncertain, and the devises and bequests therein are void; that said will is void for uncertainty; (5) that the plaintiff, on or about the 16th day of October, 1882, was an unmarried man living and residing-in the province of Westphalia, in Germany, and that he is a son of a sister of said Anton Feldhofe, deceased; that his prospects in life at that time, if he had remained in Germany, were of the value of $4,000, but would be wholly lost to him if he removed from Germany to the United States ; that he, on or about the said last-mentioned date, received a letter from the deceased, asking him about his (deceased) children, and informing him that- he (deceased) was then quite wealthy, alone in the world, and wanted some one of his sister’s children to come to this country to reside with him or near him , that several letters were exchanged between them, and that the said deceased agreed with the plaintiff that, if the plaintiff would marry and emigrate to the United States, and settle with or near him, and help him as he should desire, and treat him as a person should under the circumstances, the deceased would make the plaintiff his sole heir to his property, both real and personal, that relying on these promises and agreements, and pursuant thereto, he married in Germany, and emigrated to the United States, and to Eudora, Kan., and commenced to labor for and improve the property of the said deceased, and .to work for and turn over the proceeds thereof to the deceased for nearly one year and a half; ■ that during that time he cared for the deceased, administering to his wants and comforts, and performed all things requested of him by the deceased ; that afterward, and at the request of the deceased, plaintiff removed from the residence of the deceased, but continued to act and-do as requested by deceased in a.nd about the management of his property, home, and interest, but continued to do and perform all the duties and obligations of a son and child to the deceased up to the time of his death, and discharged all duties and requirements of deceased to the best of his. knowledge and ability Prayer for judgment is as follows :
"Setting aside said pretended will, and that the ' plaintiff be decreed to be the sole owner of the property, real and personal, owned by the deceased at the time of his death, and for such other and further relief as may be deemed equitable and proper in the premises.”
Joseph Borer, the executor of said will, filed his' answer, admitting the death of Anton Peldhofe at the time stated in the petition; his ownership of certain real and personal property; the presentation to and the admission to probate of an instrument purporting to be the last will and testament of Anton Feldhofe by said, probate court, on or about the time alleged in the petition, and that the parties mentioned in the petition were named in said will as legatees; denying each and every other allegation and averment in said petition contained ; and further alleging, that on the 12th day of August, 1890, he duly qualified as executor of the will and of the estate of Anton Feldhofe, deceased ; and that he has been and is now acting as the legally constituted executor of the will and estate Of said deceased.
No other pleadings were filed in this action. Upon the issues thus joined, the case was tried by the court' without a jury.
The will referred to is as follows :
“In the name of God, I, Anton'Feldhofe, of the town of Eudora, in Douglas county and state of Kansas, of the age of 73 years, and beingyof sound mind and memory, do malee and publish and declare this my last will and testament in the manner following, that is to say :
“1. I give and bequeath to Catherine Roper, of Eudora, the sum of $50.
“2. I 'give and bequeath to the Church of the Holy Family, of Eudora, Douglas county, Kansas, to be in the care of Rev. Henry Gerlach, the sum of $100.
“3. I give and bequeath to Henry Gerlach, for his own individual use, the sum of $10.
“4. I give and bequeath to Bernard Brinkman and’ Eberhardt Feldhofe, both of whom reside in Meclenbeck, near Munster, of the province of Westphalia, in Germany, the balance of my property, both real and personal to be divided as follows : One-half to Bernard Brinkman, to be divided equally with his cousins, and the other half to go to Eberhardt Felclhofe and by him divided equally with his cousins.
“5. I desire my debts, including the expenses of my last sickness, shall be paid before any division of the property be made.
“In witness whereof, I have hereunto caused my name to be attached, this 4th day of August, 18U0.
“Attest: H. H. Karr. Anton x Feldhoee.”
.“The above instrument was, at the date thereof, signed, sealed, published and declared by said Anton Feldhofe as his last will and testament in the presence of, and in his presence, and subscribed by himself and the witnesses in the presence of each other.
H. H. Karr.
Peter A. Hartig.”
On the margin is written the following: “6. I hereby appoint Joseph Borer my executor.”
After the introduction of the testimony on the part of the plaintiff, the case was submitted to the court upon said testimony and pleadings. The court rendered judgment in favor of the defendant Borer, the executor, and against the plaintiff.
Like the defendant in error, from an examination of the petition in error, the pleadings of the case, and the brief of counsel for plaintiff in error, we are at a loss to know what the plaintiff relies on. We were led to believe, upon examination of the original petition, that this was an action to set aside the will of Anton Feldhofe on the ground of the unsoundness of mind at the time he executed the same, and to declare the same as void for uncertainty. Toward the close of said petition, the plaintiff seems to ask for a specific performance of a contract and that he be declared the sole heir of the deceased; but in his brief he abandons all the grounds alleged in the petition, and claims that the principal error committed by the trial court was refusing to allow his claim against the estate ; but we have failed to see where, in the original petition, any claim was set up against the estate of Anton Feldhofe. After a careful examination of this record, we have failed to find any reversible error. If any was committed, it was in favor of the plaintiff below, and of this he cannot complain. We think there is a total failure of proof on the part of the plaintiff below to establish any material allegation contained in his petition. There is not a word or syllable of testimony as to the mental, or even physical, condition of the deceased at the time the will was made, and certainly none establishing any contract or agreement between the deceased and the plaintiff.
If we consider the letters introduced in testimony as competent evidence, they do not establish a contract, but leave it entirely at the option of the plaintiff whether he comes or not, and his heirship clearly depended .upon the treatment the deceased received at his hands. Take the strongest language that can be found in these letters, viz.: “If you want to come you have to do your rights of the kid, and I am going to do the rights of a father. If you treat like my kid, you shall be my heir, but not before I am .dead. I am not going to put off my clothes before I am going to bed.” Again, “If you treat me which you will have to do well, then I am going to treat right.” These show what Feldhofe agreed to do provided plaintiff treated him well, and this could only be determined by association and acquaintance.
Now, was this contract carried out? ' The testimony of Catherine Summers shows that Wilmer and his wife were not with Feldhofe during his'last sickness, nor had they been, or at his house, for six or seven years before he died, and that plaintiff went to Kansas City, and that before he went there hé had moved away from Feldhofe’s; that the deceased told her just before his death that
“ he did not like the plaintiff, Wilmer, and did not want to give him anything; said he did not do as he ought to, and went away; he promised to give him everything when he comes and stays with him, but after he come he did talk to him hardly; he did not. talk 'enough and I told him to go; I did not want .to have my old days like this, and he told him that at that time he would not give him anything, because he did not ■stay with him.”
But should we adopt the theory of the plaintiff in error, that this is not an action to set aside the will, but a claim to the whole estate — that is, to declare him the sole heir — then he must fail in this action, for, to recover, he must establish the alleged contract. We think the judgment of the courtis sustained by the evidence, and no error was committed by the trial court.
The judgment will therefore be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Cole, J. :
The defendants in error brought- this action, alleging in their petition that they were the owners, as tenants in common, of a certain piece of real estate situated in Bourbon county, Kansas, and that the defendant railroad companies were in the use and possession of a strip of land as their right of way upon and across said real estate ; that in 1885 or 1886 the Kansas, Nebraska & Dakota Railway Company built its road across said land without any right or authority, and that since said date said company has been consolidated with and has changed its name to the Kansas & Colorado Pacific Railway Company; that demand has been made upon all the said companies by plaintiffs below for compensation to be paid to them' for such right of way, or that possession be yielded thereof, which demand has been refused. The petition alleged further that the defendant companies and tlieir predecessor have been and are operating the railroad upon and across said strip of land, and set forth the damages in specific items alleged to have been sustained by reason of the use of said lands. Judgment was asked for damages for injury to the land, and that the court fix and determine the value thereof, and also fix some reasonable time within which said companies should pay for said strip of land, and, in the event of their failure so to pay, that they be restrained from using or occupying-' said strip of land in any way whatever.
The Kansas & Colorado Pacific Railway Company, for its answer, admitted the occupancy of the premises as alleged in the petition, and set up as a defense that the said right of way had been regularly and legally appropriated and condemned in accordance with law, and that the value of said land had been paid to the person adjudged by the condemnation commissioners to be the owner thereof, in the manner provided by law. It also pleaded, as a- separate defense, the statute of limitations. The Missouri Pacific Railway Company, for its answer admitted that it was operating the railway of its codefendant, which said railway was established and constructed over and across the lands described in the plaintiffs’ petition, and further alleged that the right of way had been legally established. It also pleaded the statute of limita tions. A reply was filed to these answers, and the cause came on to be heard before the court upon an agreed statements of facts, and judgment was i en dered in favor of the plaintiff below, from which judgment the railway companies bring the case here for review.
The facts in this case.are that the Kansas, Nebraska. & Dakota Railway Company instituted condemnation proceedings in the district court of Bourbon county, and commissioners were duly appointed to appraise the right of way for said road through said county. The commissioners proceeded to appraise said right of way, and in so doing awarded to W. H. Van Buskirk, as owner of the tract in question, the damages assessed for the right of way across the piece of land in question. At the time Van Buskirk was in actual possession and occupancy of the tract in question, and was, so far as the record is concerned, the absolute owner thereof. The amount of the award was deposited with the county treasurer, and no appeal was taken therefrom by any person within the time prescribed by statute. The agreed statement of facts admits that the condemnation proceedings were in all respects regular. At a later date an action was commenced by defendants in error in the nature of a suit in partition, and it was finally held that W. H. Van Buskirk held his title in trust for the benefit of the defendants in error in this case. (Phipps v. Phipps, 39 Kan. 495 ; 47 id. 328.)
The main question for our decision in .this case is : Where condemnation proceedings have been conducted in strict conformity with the requirements of the law, and compensation for the land appraised as right of way has been secured by the deposit of money with the county treasurer of the county where the land is situate, and the person adjudged to be the owner by the condemnation commissioners receives the amount so deposited, and no appeal is taken within the time prescribed by statute by any one, lias the right of the railroad company to occupjr the land for the purposes necessary to the construction and use of its road become final and conclusive? Or, if it afterward appear that some other person than the one named by the commissioners is the actual owner, can such person maintain an action for damages or otherwise after the time allowed by statute has elapsed for an appeal from the award of the commissioners?
'The right of condemnation of private land for public uses exists aside from the statute. It is an inherent right — a part of the sovereign power. But it must be exercised in the manner and under the forms prescribed by statute. Where, however, this right has been exercised in strict conformity to the statute, the result is final, and the right to the use and occupation of the property condemned is conclusive. This question in all of its phases has been so lately passed upon by this court in the case of Armstrong v. Moore, 1 Kan. App. 450 ; C. K. & W. Rid. Co. v. Selders [post], 44 Pac. Rep. 1012, that we consider it unnecessary to enter into the further discussion of it at this time. The opinions in both cases cited were carefully and ably prepared by Johnson, P. J., and the questions involved were carefully discussed and considered by all' the members of this court, and we can see no reason for changing our views upon the propositions therein decided. In conformity with those cases, we hold in this case: (1) That the statute of this state authorizing real estate to be appraised for the use of railroad companies for right of way does not contravene the pro visions of section 4, article 12, of the constitution of Kansas ; (2) that the condemnation proceedings under the statute are proceedings in rem, and where such proceedings are had in strict compliance with the statute, it is the duty of all persons owning property that is liable to be affected thereby to take notice thereof and protect their rights ; (3) that the money deposited in the county treasurer’s office in accordance with the reports of the commissioners represents the interest of every person concerned in the land appropriated ; (4) that where condemnation proceedings have been conducted in strict conformity with the requirements of the statute and compensation for the land appraised has been secured by the deposit of money with the county treasurer, and the owner of the land fails to appeal or take any legal action until the completion and operation of the road, he is then estopped from maintaining any action in the premises.
Some argument is made by counsel for defendant in error upon the proposition that, in this case, the award was not made for each separate tract of land, but in view of the fact that the agreed statement of facts upon which this cause was tried specially admits that the condemnation proceedings were in all respects regular, we cannot' consider this argument.
It is also urged im this case that the statute of limitation had run against the cause of action. It is somewhat difficult to determine from the manner in which the petition is drawn just what the nature of action is, but we are inclined to the opinion that it is .in the nature of an injunction, and was therefore not barred.
For the reasons above stated, however, .the judgment must be reversed, and this cause remanded, with' instructions to the district court of Bourbon county to render judgment for plaintiffs in error upon the findings of fact made by said court.
Dennison, J., concurring.
Johnson, P. J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Gilkeson, P.- J. :
The Bank of Topeka filed a petition without signature of plaintiff or attorney, and also a praecipe for summons in like condition. The clerk of the court issued summons, which was personally served upon the defendant, and thereupon defendant filed the following motion :
“Gomes now said defendant, appearing specially for the purpose of this motion only, and moves the court: (1) To set aside and to quash the summons and the service thereof for the reason that the same w.as not issued in pursuance of a written praecipe filed by the plaintiff; (2) to set aside and to quash the summons and the service thereof for the reason that the same wns not issued upon any petition filed in the office of the clerk of this court; (3) objecting to the jurisdiction of this court, to set aside and to quash the summons herein and the service thereof and to strike said cause from the docket of said court for the reason that no petition, praecipe or other proper and sufficient pleading by the party or its attorney has been made, signed or filed sufficient to give this court jurisdiction of the case.”
The court overruled the motion and permitted the plaintiff to amend its petition by signing the same, and then rendered judgment by default for the amouut asked, without new service.
The first error alleged is, that no written praecipe was filed with the clerk of the court.
While we might concede that the praecipe was informal we cannot say that none was filed, and if there ' had not been, we could not say that it affected the jurisdiction of the court.
“The issuing of summons by the clerk of district court without a praecipe is not an error of which the defendant can complain. . . . It is true that it was the duty of the plaintiff to file a praecipe with the clerk, and until he did so the clerk might have refused to issue a summons and been excused therefor. But as the clerk in this case proceeded to issue the summons required by law, with the proper indorsements thereon setting forth the amount of the plaintiff’s claim, we are unable to see how the defendant could be at all prejudiced by the failure of plaintiff to file a praecipe.” (Goffv. Russell, 3 Kan. 212, 214.)
In the • case at bar a praecipe was filed, but not signed by the attorney or plaintiff.- The statute does not require the praecipe to be signed. Would not a praecipe written upon the back of a petition, without signature, and filed with the petition, be a compliance with the statute? We think so.
For a second error, it is alleged that the petition filed was not signed by the plaintiff or its attorney.
The code (§ 87) provides : ‘ ‘ The petition must contain : First, the name of the court, and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word ‘ petition.’ ” In Butcher v. Bank of Brownsville, 2 Kan. 70, the court held:
‘ ‘ The action of the court in permitting the party to amend by inserting the word ‘petition,’ which had been omitted, was so manifestly correct that we need not argue it. By the code it is made necessary that the word shall follow the names of the parties to the suit in the caption. When omitted, the court should allow an amendment at any time without delaying the suit, and ought not to sustain a motion to strike it from the files without first at least giving an opportunity to amend. . . . We do not happen to see how it would affect the substantial rights of the adverse party whether the amendmeilt was made or not.”
Section 107 of the code is not any stronger:
‘ ‘ Every pleading, in a court of record, must be subscribed by the party or his attorney.” We think that a failure to sign would be a mere formal defect, which could be corrected by amendment. If it is an error, it is purely technical and does not affect the substantial rights of the party. ‘‘The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party ; and no judgment shall be reversed or affected by reason of such error or defect.” (Code, §140.) The defects in the prsecipe and petition do not oust the court of its jurisOiction. It certainly had jurisdiction of the subject- matter of the action and acquired jurisdiction of the person of the plaintiff by the service o.f tlie summons. If no motion had been filed, and the court had rendered judgment with the petition and praecipe in the condition they originally were, the judgment could not be reversed. (Code, § 110.)
For a third error, it is alleged that new service-should have" been obtained after the amendment and before judgment was rendered. We cannot agree with counsel in this contention.- Where the amendment was formal, and the defendant could derive no benefit from a service of summons after the amendment, such service was unnecessary. That these amendments were formal we have decided. What benefit could the defendant derive from the service of a new summons? None. The summons served gave him the same information he would have received if the praecipe and petition had been signed, and he would have received no more by the service of a new one. He was informed by whom he had been sued, the amount claimed, and the time required for his answer. We think the rule laid down by the supreme court of Nebraska is correct and peculiarly applicable to this case :
“Upon the amendment of a petition, where the identity of the causes of action is preserved, and the claim of plaintiff not substantially changed, no new summons need be issued nor served, and the action will be held as commenced at the date of the issuance of the summons in the case.” (National Bank v. Bollong, 45 N. W. Rep. 164.)
In the above case, Cobb, C. J., in delivering the opinion of the court, says :
“Doubtless there is an abstract rule of reasoning by which it may be contended that a petition which falls short of the requirements of the law is not a peti lion; but a rule of that severity does not prevail in the interpretation of the statutes, and especially of the statute of amendments to pleadings in civil actions, which owes its existence to a necessity for the application of liberal rules in the furtherance of justice.”
From an examination and a comparison of the amended petition with the original, it does not appear 'that any new cause of action was set up ; hence, it is held that the amended petition is consubstantial with the original in inception and filing, that the action was in law commenced with the service of the summons, and that no alias summons, following the amended petition, was necessary.
We fail to see any error in the record. The judgment of the district court will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
During the last trial of this case in the court of common pleas of Sedgwick county,- the defendant below submitted to the court 94 special questions, requesting that they be submitted to the jury, for answers. The court submitted them to the jury, and in presenting them he made use of the following language: “I want the jury to understand that these questions are got up to befuddle and mislead the jury so that there will be error in the trial of this case, so that the verdict may be set aside.”
Among the grounds upon which a new trial was asked are the following: (1) Irregularities in the proceedings of the court; (2) the abuse of discretion by the court, by which this defendant was' prevented from having a fair trial. Paragraph 4401 of the General Statutes of 1889 provides that a new trial may be had upon these grounds. Upon an examination of the record, we are unable to say that the defendant below was not prejudiced by the remarks of the court. By this statement the judge assumes that the verdict will be for the plaintiff below, and that the defendant below wants error committed in the trial so that the verdict may be set aside, and that the questions were submitted to the jury to accomplish that result. It is well recognized that juries have a great respect for the opinion of the trial court, and are always on the alert for some intimation as to what the trial court thinks of the case. From the remark of the trial court the jury must have concluded that the court supposed* of course, that the judgment ought to be rendered for the plaintiff below, and this, and several other remarks of the court which were complained of, indicated very strongly to the jury that the trial court thought that the judgment ought to be for the plaintiff below. We are unable to say that their action was not influenced by the remarks of the court.
“Any improper remark of the court in the presence and hearing of the jury, liable .to influence their action, is misconduct.” (16 Am. & Eng. Encyc. of Law, 524.)
“ Judges must take great care to say nothing in the hearing of the jurors while the case is progressing which can possibly be construed to the'prejudice of either party.” (Cronkhite v. Dickerson, 51 Mich. 177.)
“Error will lie on the demeanor of the trial judge if it be such as to prevent a fair trial or prejudice the case upon the facts before the jury.” (Wheeler v. Wallace, 53 Mich. 355.)
These cases are cited approvingly in Walker v. Coleman, 55 Kan. 381, which case was reversed and a new trial granted because of improper remarks made by the same judge who tried this case.
We think no good purpose can be served by an examination of the other errors complained of in this case. They are largely predicated upon the special findings of the jury, and. upon another trial the answers to the questions may not be the same.
The judgment of the court of common pleas of Sedgwick county is reversed, and the case remanded to the district court of that county for a new trial.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J.:
This is an action brought by H. F. Johnson to recover upon a policy of fire insurance issued to him by the Niagara Fire Insurance Company of the City of New York. The defendant, as plaintiff in error, is here seeking a reversal of a judgment rendered in favor of Johnson. The assignments of error include various rulings of the trial court upon the admission of evidence, in giving certain instructions to the jury, in refusing to enter judgment in favor of the defendant on the special findings of fact, and in overruling the motion for a new trial.
This policy was executed on December 6, 1889, and a portion thereof reads as follows :
“ The Niagara Fire Insurance Company of the City of New York, in consideration of the stipulations herein named and 16x-¡¡-V dollars premium, does insure H. F. Johnson for the term of three years, from the 6th day of December, 1889, at noon, to the 6th day of December, 1892, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $1,800, to the follówingdescribed property while located and contained as described herein and not elsewhere, to wit: $1,800 upon his two-story brick shingle-roof dwelling with rock basement, located north end of lots 1 and 2, block 64, Wyandotte city, now Kansas City, Kan.”
The policy also contained numerous printed stipulations and conditions, but the following are the only ones that are deemed material to the present inquiry :
“The éntire policy, unless otherwise provided by agreement entered hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or void, on property covered in whole or in part by this policy ; ... or if the hazard be increased by any means of insurance, whether valid or void, on property covered in whole or in part by this policy; or if the hazard be increased by any means within the control or knowledge of the insured ; .. . . or if any change other than by death of an insured takes place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process, or judgment, or by voluntary act of the insured, or otherwise. . . . This policy shall be canceled at any time at the request of the insured, or by the company giving five days’ notice of such cancellation. This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or' condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions, no officer, agent or representative shall have power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insured under this policy exist or be claimed by the insured unless so written or attached.”
The defendant in its answer admitted execution of the policy, and alleged that the conditions hereinbefore named had been violated by the insured, and that, by reason thereof, the policy had become void long prior to the destruction of the property by fire. It alleged that at the time the policy was issued, as well as at the time of the fire, the plaintiff had other insurance on the building to the amount of $1,500; that the building was insured as a dwelling-house, and that thereafter, with the knowledge of the plaintiff, the risk covered by the policy was increased by the use and occupancy of the building as a gambling-house ; that at the time of the fire it #as vacant and unoccupied as a dwelling-house, and had been in that condition for a long time prior thereto ; that the risk was also increased after the policy was issued by the execution by the plaintiff of a mortgage on the property in the sum of $600, and that the same was an incumbrance thereon at the time of the fire; and that no consent had been given by the defendant, in the manner prescribed by the policy or otherwise, for such additional insurance, or for the use or occupancy of the building for any other purpose than as a dwelling-house, or that the property should be incumbered by mortgage.
The plaintiff in his reply-denied the several allegations of the answer, and averred that, if the facts should be found to exist as therein alleged, the defendant had duly waived compliance with the several requirements of the policy above mentioned.
The record shows that Mr. Bigger, who issued the policy, was the duly constituted agent of the company, and, as set forth in his commission, had
‘ ‘ full power to receive proposals for insurance against loss and damage by fire in Kansas City and vicinity, to fix rates of premium, to receive moneys for the same, and to countersign, issue, renew and consent to the transfer of policies of insurance, and to make indorsements thereon, or to vary the risk.”
The jury specially found that at the time the policy was issued the property was insured for $1,500, and while the defendant gave no written consent for such additional insurance, its agent had notice thereof at the time he issued the policy. The evidence as to the agent’s knowledge of the additional insurance was conflicting, but the finding is supported by the testimony of the plaintiff. As the agent had notice at the time he issued the policy that the building was already insured for $1,500, the defendant was estopped from denying its liability on the ground that written consent for such other insurance was not indorsed on the policy. (Rockford Ins. Co. v. State Bank, 50 Kan. 427 ; Capitol Ins. Co. v. Bank of Pleasanton, 50 id. 449.)
, The jury also found that after the policy was issued the building was used or occupied for schoolrooms and a club-house, and the plaintiff in error insists that, as .no written consent for such occupancy was indorsed ou the policy, the latter. thereby became void. It will be observed that the policy itself contains no warranty that the building should be occupied in any particular manner, nor does it recite the character of its occupancy at the time the policy was issued; but the jury also found that the agent had notice at the time the policy was written that the building was then used for school purposes, and that it was the understanding between the plaintiff and the agent that as soon as the building ceased to be used for a schoolhouse it was to be used and occupied ás a dwelling-house. We do not think that this finding should be construed as a warranty on the part of the insured as to the future occupancy of the building. The contract as entered into between the parties was reduced. to writing, and is evidenced by the policy itself. Unless the terms of the contract were subse quently modified, or compliance with, its provisions or .some part thereof was waived, or a party thereto was for any reason estoj)ped from talcing advantage of some provisions therein inserted for its benefit, the liabilities of each to the other should be measured by that instrument. (Insurance Co. v. Mowry, 96 U. S. 544.) The building insured is described in the policy as a "dwelling.” We think this word, as there used, should be construed as merely descriptive of the building itself. (1 Wood, Fire Ins. §93.) Courts are not disposed to favor a warranty by construction, and if the terms used are fully satisfied as a description they will not be extended to include a warranty, unless it is clearly expressed that such was the design and meaning of the parties. (Insurance Co. v. Kimberly, 34 Md. 224.)
The jury also found that the plaintiff executed a mortgage upon the property insured, after the policy was' issued, to secure certain indebtedness, but that this was done with the consent of the defendant, although the evidence thereof was not indorsed on the policy., This finding is evidently based upon the evidence that the mortgage was prepared by Bigger to secure a loan of $600, made by him as agent for the mortgagee, and the testimony of the defendant in error that, at the time this loan was procured, he handed to Bigger the policy here sued upon, together with •one for $1,500 on the same building, and one for $1,800 on a building situated on the rear end of same lots, and that Bigger retained the last-named policy as collateral security for the loan and returned the others to him. This finding was also evidently influenced by the instructions of the court that the execution of the mortgage rendered the policy null and void, unless the jury should find "that the agent, W. H. Bigger, who issued the policy sued upon was a general agent of the defendant company, and that he had actual knowledge of such mortgage ; in such an event the policy would not be rendered void by the reason of such mortgage.” We do not think that the mere fact that the agent who negotiated the loan was also the agent of the insurance company would, of itself, estop the latter from setting up the defense that the policy had become void by reason of the execution of the mortgage without its consent. The knowledge thus acquired by the agent, while transacting the business which was in no way connected with the agency, did not bring this case within the rule that notice to the agent is also notice to the principal; but even if it should be held otherwise, mere notice of the subsequent incumbrance of the property was not sufficient to warrant the court in giving the above instruction. (Johnson v. Insurance Co., 1 Camp, [N. Dak.] 167, 43 N. W. Rep. 59 ; Robinson v. Association, 29 id. 521; Golden v. Assurance Co., 46 Mimi. 471.) This ruling would apply with equal force to the latter part of the second instruction, given at the request of the plaintiff below,-that if the jury found that the risk was increased after the policj^ was issued, “and the agent had knowledge of it, this would excuse the breach.”
The jury also found that at the time of the fire, and for more than a month prior thereto, this building ■was occupied as a dwelling-house by Henry Reed and W. H. Tillman. The evidence is uncontradicted that, about the 1st of April, 1890, Johnson rented this, building to Reed. Arrangements were at that time made whereby Johnson should put the building in suitable condition for the use of a club-room, and that Reed should pay him monthly rental of $50, but, as Reed-' would not be ready to “open up” until later in the year, it was agreed between them that he should only pay $25 per month until the contemplated alterations should be made. Reed went into possession, and moved into the building some billiard- and pool-tables billiard cues, and a rack for the same, a few chairs, a sideboard, three small tables, and a cot. This constituted the entire furniture in the building from the 1st of April to the date of the fire, except a few articles which belonged to Johnson and which were stored in the baseim nt. The evidence shows that gambling was being carried on at this place once or twice a week during such occupancy. Johnson testified that, while he had seen parties playing cards at the table, he had no knowledge that gambling was allowed in the building until after the place was “raided” by the police officers, about a month before the fire, and that he immediately notified his tenant that such use of his property must cease. He also testified that
“before the raid, I have frequently seen a crowd of men around there, but after that I didn’t. After the raid was made you would hardly see during the day more than one or. two besides the ones that kept or occupied the building. They stayed away from there, Tlpey shot in among some of them ; they shot at one outside, or rather shot him, and there was no more gathering of them.”
It also appears from the evidence that a man by the name of Tillman assisted about the premises, and that some one slept on a cot in the building on an average of four nights a week from the 1st of April to the time of the fire. Both Reed and Tillman were unmarried. No meals were served in the building during the time it was occupied by them, but, prior to the “ raid,” sand wiches — that were purchased outside —were occasionally furnished to the guests. This is all the evidence introduced tending to show that the building was occupied as a dwelling-house by Reed and Tillman at the time of the fire, and it is wholly insufficient to support such finding. ( 1 Wood, Fire Ins. §83; Ashworth v. Insurance Co., 112 Mass. 422 ; Bonenfaut v. Insurance Co., 43 N. W. Rep. [Mich.] 682.)
In answer to the contention of the plaintiff in error, that as the policy provided that no agent, officer or other representative of the company-had any power to waive any of the conditions of the policy except by written indorsement thereon, the insured was bound by notice therein conveyed of the limitations upon the powers of the agent, it need only be said that, as Bigger was a general agent of the company and had specific authority to “ vary the risk,” the rule laid down in German Ins. Co. v. Gray, 43 Kan. 497, has direct application to the facts in this case It was there held that “ a general agent of an insurance company can modify the insurance contract or waive a condition of a written policy by parol,” and that “a provision in an insurance policy respecting incumbrances on property insured may be waived by the insurance company or its general agent; and this, although the policy contains a printed stipulation that no agent of the company or any person other than the president or secretary shall have authority to waive any of the terms or conditions of the policy, and all agreements by the president or secretary must be signed by either of them.” The court there cited with approval Insurance Co. v. Earle, 33 Mich. 143, where it was held that, although the policy contained such a condition therein, “ a written bargain is of no higher legal degree than & parol one. Either may vary or discharge the other, and there can be no more force m an agree ment in writing not to agree by parol' than in a parol agreement not to agree in writing. Every such agreement is ended by the new one which contradicts it.”
Plaintiff in error also calls attention to several errors committed by the trial court in the admission of evidence, but as many of these were unimportant, while some of the others could not have influenced the jury in their determination of the issues involved in this action, and still others, that were material, will probably not occur in another trial, we do not deem it necessary specially to consider them. The principal objection, however, that is raised by the insurance company is to the refusal of the court to allow a witness to testify as to whether the existence of certain specific facts would increase the rates of insurance upon the property insured. We cannot say that the court erred in sustaining the objection to such question. As was said in Joyce v. Insurance Co., 45 Me. 168, “ such a question calls for the opinion of the witness upon the influence certain facts would have upon others, and whether they would be induced thereby to charge higher rates of premium, and is inadmissible, as the inquiry did not relate to matters of science and skill.”- See, also, Lyman v. Insurance Co., 14 Allen, 329 ; C. R. I. & P. Rly. Co. v. Clonch, 2 Kan. App. 728, 42 Pac. Rep. 1140.
We think the' court erred in overruling the motion for a new trial, not only because some of the findings of fact were not supported by the evidence, but also because the court erred in its rulings upon the admission of some of the evidence offered, and in giving certain instructions to the jury.
The judgment will, therefore, 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
Johnson, P. J. :
This is a criminal prosecution commenced on the 3d day of September, 1895, in the district court of Reno county, against W. E. Hook, in which it is charged in the information filed against him that, at the county of Reno, in the state of Kansas, he unlawfully, wilfully, lewdly, and lasciviously, and continuously from the 28th day of May, 1895, to the filing of the information, did abide and cohabit with one Maggie Lockwood, a married woman, and that they did so unlawfully cohabit with each other, and then and there have sexual intercourse with each ■ other, he, the said W. E. Hook, being an unmarried man, and she, the said Maggie Lockwood, being then and there a married woman and having a husband living, and they not being married to each other. The information was subscribed by the county attorney, but was verified in the following words':
“State of Kansas,'Reno county, ss. : I, Earnest Lockwood, do solemnly swear that the facts set forth in the within information are true, as I am informed and verily believe. So help me God.
Earnest Lockwood. ‘
“ Subscribed and sworn to before me, this 3d day of September, 1895. Z. L. Whinery,
Clerk District Court.”
On the filing of the information the clerk of the court issued a warrant for the arrest of the’defendant, and he was arrested, and, without any objections thereto, gave a recognizance for his appearancé at the September term, 1895, of the district court. The case was continued to the December term. On the 3d day of December, 1895, the defendant filed a motion to quash the information for the reasons that the information did not state facts sufficient to constitute an offense ; that the court had no jurisdiction to hear and determine the same, because the information was not such as is required by law ; that the information was not verified as required by law. The motion was overruled, and the defendant excepted. On the 4th day of December the defendant filed a motion to set aside’ the recognizance for his appearance because the court had no jurisdiction of said action, because the information filed in the cause did not state facts sufficient to constituté an offense under the laws of Kansas, and because the information was not verified as ■ by law provided. This motion was overruled, and defendant duly excepted. On the said 4th day of December the defendant waived arraignment and pleaded not guilty to the information, and the case was thereupon tried before the court with a juty. The jury returned a verdict of guilty of lewdly and lasciviously abiding and cohabiting with Maggie Lockwood', in manner and form as charged in the information. Motions for a new trial and in arrest of judgment were filed, and each overruled, and defendant duly excepted to the rulings of the court thereon. The court then pronounced judgment in accordance with the verdict. The defendant filed a bill of exceptions, appealed the case to this court, and asks that the judgment be reversed.
The defendant was charged with the crime of adultery', under section 232 of chapter 31, General Statutes of 1889. The district court has jurisdiction of the crime charged, and had acquired jurisdiction over the defendant by his giving a recognizance to appear in the court and answer the-charge against him without objecting to the information or the verification or the warrant for his arrest.
The first reason urged why the judgment should be reversed is, that the court erred in overruling the mo tion to quash the information because it is not properly verified. Section 67 of the code of criminal procedure requires all informations to be verified by the oath of the prosecuting attorney or complainant, or some other person. The provision of this section was doubtless intended to secure some person that had personal knowledge of the facts charged in the information to swear to the truth of the same, so as to authorize the issuing of a warrant for the arrest of the accused party. Section 15 of the bill of rights in the constitution reads:
“The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or property to be seized.”
Until some person has a knowledge of the facts constituting a crime, and can swear to it positively, no warrant can be lawfully issued for the arrest of the person charged. The verification of this information was not such as to authorize the clerk to issue a warrant for the arrest of the defendant, and would have been a fatal defect in the information had the objection been taken at the proper time. Tfiere are certain defects in criminal pleadings as well as in civil pleadings that are waived by failure to object to the pleadings at the proper time. When the defendant was arrested under the warrant issued by the clerk, and gave his recognizance for his appearance in the district court, there to answer the charge contained in the information, and thereafter Voluntarily consented to a continuance of the case to the December term of court, giving a recognizance for his appearance, he waived any right thereafter to object to the mere verification of the information. (The State v. Bjorkland, 34 Kan. 377 ; The State v. Longton, 35 id. 375.) In the last case cited the supreme court says :
"We think when the defendant entered into a recognizance for his appearance in the court, without making any objections to the, sufficiency of the warrant, or the sufficiency of the information, or the sufficiency of the verification thereof, he waived the supposed defects in the verification of the information and the regularity in' issuing the warrant without a sufficient verification.”
In the case of The State v. Blackman, 32 Kan. 615, the learned judge delivering the opinion says :
"An information or complaint under the prohibitory liquor law, verified in accordance with § 12 of such law, [now ¶ 2543, Gen. Stat. of 1889,] is, so far as the verification is concerned, sufficient for any purpose except merely for -the purpose of issuing a warrant for the arrest of the defendant. Such an information thus verified may properly be filed by the county attorney, a trial may be properly had thereon, a conviction may properly follow the trial, and the defendant may properly be sentenced upon such conviction. ... Of course, before a warrant is issued for •■the arrest of the defendant, an oath or affirmation within the meaning of § 15 of the bill of rights should Be made, showing probable cause to believe the defendant guilty; but if no. such oath or affirmation is made or filed, but nevertheless the defendant without objection pleads to the merits of the-action and goes to trial, he waives all irregularities in the verification of the information, and cannot afterward be heard to question the regularity or validity of any proceeding in the case, if he urges no other objection than that such verification is insufficient.”
. The information, being subscribed by the county attorney and verified by another party, although the verification was defective, did not render the information void. The defect having been waived by the de-. fendant, the motion to quash on that account was properly overruled.
This brings us to the more serious objections to the information, i. e., whether' it charges a public offense of which the defendant could-be convicted, and whether, in an information under section 232 of the crimes act, the participation of both Hook and Lockwood were necessary to constitute the offense charged, and whether an information against Hook alone is sufficient to authorize a conviction under the statute. It is well settled at common law that, where an offense can only be committed by the participation of a certain number of persons, the number required to constitute it must be jointly indicted. An indictment against one of the number required to constitute the offense could not be sustained. If a less number than is required to constitute it be indicted, the indictment is bad, and a conviction qould not be sustained. The specific offense would not have been properly charged. Hook could not have committed the offense without Lockwood being guilty of the same crime. • Where a statute creates an offense, which from its nature requires the participation of more than one person to constitute it, a single individual cannot be charged with its commission, unless in connection with a person unknown. ■
In the case of The State v. Bailey, 3 Blackf. 208, McKinney, J., delivering the opinion of the court, says :
‘ ‘ The principle is well settled that when an offense can only be committed by a certain number of persons, the number required to constitute it must be indicted to justify a conviction. -. . . If . . . a less number than' is required to constitute it be not indicted, or if, on trial, less than that number be found guilty, and the others charged be acquitted, the conviction could not be sustained, as the specific offense would not'appear to have been committed.”
Mr. Wharton, in his treatise on Criminal Law of the United States, in section 367, says :
“Where a statute creates an offense which, from its nature, requires the participation of more than one person to constitute it, a single individual cannot be charged with its commission unless in connection with persons unknown.”
In section 431 the same author says:
“In riot and conspiracy, where one cannot be indicted for an offense committed by himself alone, the acquittal of those charged in the same indictment with him as codefendants, of course, extends to him.”
In the case of Delany v. The People, 10 Mich. 241 — an information charging that, at the city of .Detroit, Delany “ did lewdly and lasciviously associate and cohabit with one Mary Stewart, of said city, he, the said Thomas Delany, being then and there a man, and she, the sa’id Mary Stewart, being then and there a woman, and. they, the said Thomas Delany and Mary Stewart not being then and there married to each other,” and Delany being charged individually with the offense — Christiancy, J., delivering the opinion of the -court, says: “ The information, therefore, cannot be supported unless it be found to be a sufficient charge against both, and upon which both might be tried and convicted.” In the case of The State v. Byron, 20 Mo. 210, Byron, an unmarried man, was alone indicted and convicted for lewd and lascivious cohabitation with an unmarried woman, and the supreme court held the indictment bad and the conviction wrong.
The motion to quash the information should have been sustained, for the reason that the information charged Hook alone with the crime, which could have only been committed by the participation of Lockwood-.
The judgment of the district court is reversed, and the case remanded, with directions to set the judgment of conviction aside and to sustain the motion to quash the information.
All the Judges concurring. | [
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Per Curiam:
A careful examination of the evidence adduced at the second trial convinces the court that the views expressed upon the former appeal (76 Kan. 612) are applicable and controlling. The distinctions which counsel suggest need not be stated and discussed at length. It is enough to say that they are not securely founded.
The special questions stricken out constituted a cross-examination of the jury. Those which were not answered to the satisfaction of the defendant are not material to the main, vital issues in the case, except the thirty-fourth, which is fairly answered. The remaining findings are not inconsistent with each other or with the general verdict. • It makes no difference that the plaintiff failed to prove just who drilled and loaded the hole in question and failed to show that the foreman or anyone in authority for the defendant knew of the existence of the loaded and unexploded hole. The defendant should have worked the quarry-under a system which would have disclosed it and would have protected the plaintiff from injury through its agency. The answer that the hole in question was as plainly discernible to the plaintiff as to anyone referred to the time he was injured, does not indicate that he ought to have “discerned” it, and does not relieve the defendant from its previous duty to note the failure to explode and then either mark the hole or explode it for the plaintiff’s protection.
The defendant has no right to have jurors called in a certain order, and an unimpeachable' jury was provided to try the case.
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The opinion of the court was delivered by
Johnston, C. J.:
M. W. Potter brought this action against the Rorabaugh-Wiley Dry' Goods Company to recover damages for injuries alleged to have been sustained through the falling of an awning which was attached to appellee’s store building, and which struck appellant on the head while she was passing along the street. In was averred that the awning was negligently constructed and insecurely fastened, and also that it was maintained in violation of an ordinance of the city. The trial resulted in favor of the defendant, and the plaintiff complains of the rulings in the admission of testimony and in instructing the jury.
The evidence is conflicting as to the exact cause of the accident and the extent of the injury. By some of the testimony it appears that a rod of the awning fell and hit appellant on the head. She said it was a hard blow, which at the time dazed her and affected her vision. A witness said he saw the occurrence and it appeared to-him that a rod loosened from the awning and fell on her head, tipping her hat, and he remarked to her: “Pretty-hard lick, wasn’t it?” Another witness said he was. near and saw a part of the awning strike appellant on the head; that she staggered a little, and then passed, on in company with her friend. The woman who was. walking with appellant testified that she could not tell whether the rod fell on appellant or whether she ran against it, but that the collision did not stagger her or arrest her progress, or even make a break in her conversation. One witness said that there was no exclamation of pain, but that appellant adjusted her hat and passed on, laughing and conversing with the woman who was walking with her.
Counsel for appellant asked the court to instruct the jury that “the law casts upon the owners of buildings-abutting on the street, who attach thereto structures overhanging the street, the duty of preventing such overhanging structures from becoming, in any way, dangerous to persons lawfully passing on the highway, and where the plaintiff shows that while lawfully in the highway, or on the sidewalk, she is injured by some part of' such structure falling upon her, the burden rests upon the defendant to show that it was blameless in the premises.” The instruction was refused, and the court, placed the burden of proof wholly upon appellant. The testimony, although conflicting and Unsatisfactory, did tend to prove that a part of the awning proj ecting over the street fell upon and injured appellant. She was entitled to an instruction stating the rule of law applicable to the evidence which her testimony tended to prove.. Those who place or project objects over a street upon which persons are passing and repassing take upon themselves the duty of making such objects secure, and if the object falls and injures a pedestrian the maxim, of res ipsa loquitur applies and the burden rests upon the defendant to show that the fall and injury did not occur through his negligence. The rule was applied in Scott v. London Dock Co., 3 H. & C. (Eng.) 594, where in lowering sugar from a warehouse to the pavement below the dock company dropped a bag of sugar upon a pedestrian who was lawfully passing along the pavement. . It was said:
“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” (p. 600.)
The New York court of appeals announced the same rule in Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297, and in Griffen v. Manice, 166 N. Y. 188, the same court held that it was not the injury itself, but the manner and circumstances of the injury, that justified the application of the maxim and the inference of negligence, and that the maxim is based in part “on the consideration that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present-.” (p. 193.) The supreme court of the United States, in discussing occurrences which of themselves give rise to the inference of negligence, approvingly quoted from an English case in which it was said:
“If a person maintains a lamp projecting over the highway for his own purposes it is his duty to maintain it so as not to be dangerous to persons passing by; and if it causes injuries, owing to a want of repair, it is no answer on his part that he had employed a competent man to repair it.” (Gleeson v. Virginia Midland R’d Co., 140 U. S. 435, 441.)
In Atchison v. Plunkett, 8 Kan. App. 308, the same view was taken.
The supreme court of Minnesota applied the rule in a case where an awning projecting over a public •street of a city fell and injured a person walking along the street. There the plaintiff contended that the owner of the building was an insurer of safety, and therefore absolutely liable, but the court denied that claim and held that the case was to be decided upon the principles of negligence, in accordance with the theory •of res ipsa loquitur. (Waller v. Ross, 100 Minn. 7.) In a note appended to the report of that case in volume 10 of American and English Annotated Cases, at page 715, many authorities are collected relating to the.rule in question. A good statement .of the rule and its exceptions may be found in volume 29 of the Cyclopedia of Law and Procedure, at page 590.
The court appointed a commission to make an examination of the physical condition of appellant, to which ■she appears not to have objected; but she did insist that her physican, who had treated her for considerable time, should be present and assist in making the examination, and this the court refused. No good reason has been suggested why her physician should be added to the commission nor for permitting him to take any part in the investigation. The court allowed appellant’s husband to be with her while they were examining her, and there is no objection to the method of those making the examination nor of the character of the tests that were had. No error was committed by the exclusion.
For the error in charging the jury the judgment is reversed and the cause remanded for a new trial. | [
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Per Curiam:
The sole question involved in this case is. whether the district court erred in setting aside a tax deed that had been of record more than five years. The only objections made to the deed have recently been held to be unavailing, under substantially similar circumstances. (Kessler v. Polkosky, 81 Kan. 69; Van Hall v. Goertz, 82 Kan. 142; Nesbit v. Bearman, ante, p. 122.) The judgment is therefore reversed. | [
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The opinion of the court was delivered by
Smith, J.:
This case was brought by the appellant against the appellees in the district court of Marion county to recover damages, as follows:
The plaintiff alleged that, being the owner and holder of a promissory note secured by a mortgage on real estate, he brought an action against Brown, cashier, Louisa L. Baker, Robert H. Baker and A. Jacobitz to recover on the note, made by the two Bakers to Jacobitz, which was secured by mortgage on certain lots, in Marion Center; Kan., and to foreclose the mortgage; that Jacobitz assigned the note before maturity to one John Buchanan; that there was indorséd on the note certain payments of principal and interest; that Brown, cashier, was in possession as owner of the lots,, subject to the mortgage, under a deed dated March 20„ 1904; that Buchanan died intestate on March 4, 1905, leaving as his heirs his wife, Mary J. Buchanan, and others; that Mary J. Buchanan assigned the note and mortgage to the plaintiff for a valuable consideration; that the two Bakers and Jacobitz filed no answer, but made default; that attached to the petition was a copy of the assignment of the note and mortgage to Buchanan, the allegation of a number of indorsements, and a copy of the written indorsement and transfer of the note and mortgage by Mary J. Buchanan to the plaintiff. To this petition Brown, cashier, filed a verified answer denying all of the allegations in the petition, except the execution of the note by the two Bakers and the allegation that he, Brown, had an interest in the mortgaged premises.
In his petition in this action the plaintiff alleged that the verified answer was untrue and false, and known by Brown at the time he made the affidavit thereto to be untrue and false, and that it was made and filed by him maliciously and without probable cause, with the intent and purpose of Brown to put the plaintiff to unnecessary cost and expense in maintaining his cause of action against him, and then follows an allegation of itemized expenses made necessary by such defense; that Brown was at all times the cashier of the Farmers & Merchants National Bank of Cadiz, Ohio, but that the bank was the owner of the real estate, and that the title was held by Brown for the defendant bank, and that all of the defenses made by Brown were made at the instance and for the benefit of the bank and were intended to and did inure to the benefit of the bank.
In the foreclosure action the court found each controverted allegation to the plaintiff’s petition-to be true, the plaintiff recovered judgment on the note and a decree of foreclosure, and the real estate was sold as upon execution to pay the debt.
This action was started against the defendants .as nonresidents, upon an attachment, and property was. attached in the state and service made by publication. After a judgment by default had been set aside, by agreement, the defendants both appeared in court and demurred to the petition on various grounds, one of "which is that the court could not acquire jurisdiction ■over the defendant national bank by attachment and publication, and the general ground that the petition did not state facts sufficient to constitute a cause of action against either defendant. The court sustained the demurrer generally as to both defendants. The plaintiff ■elected to stand upon his pleading, and a judgment was rendered in favor of the defendants.
A motion was made by the appellees to dismiss the .action for defects in bringing the action to this court, but there is no counter abstract filed showing what was ■done. The abstract of the appellees is also very defective ; indeed, we have had to go to the record to find from what court the appeal was taken. We have therefore decided the case upon the one alleged error properly presented, namely, that the petition did not state a cause of action.
The question is this: A defendant is haled into court .and required to defend against claims set forth against him in a civil action. Without asking any affirmative relief whatever, he simply files a general denial and verifies it. Although there may be many things alleged in the petition as true that he knows are true, and although he may know that it will involve the plaintiff in 'Considerable expense to prove and establish the truth thereof, is he responsible for making such defense? The appellant does not even discuss the question in his brief, and not a single authority is cited.
It is a maxim of the law that “for every wrong there Is a remedy.” It contemplates, however, that a wrong is suffered by the unlawful act of another. Opposed to this maxim is another maxim, “de minimis non curat lex." Even the ordinary costs of court were at common law considered among the small things for which the law did not care. The right to recover costs by the successful party in a litigation depends entirely upon the statutory provisions; at common law each party had his own costs to pay. But while our legislature has made the provision that the successful party in a suit should recover the statutory costs of officers and witnesses, it has gone no further. So far as we are advised, no state in the Union has gone to the extent of providing that the defeated party should pay even the counsel fees of his successful opponent — and counsel fees are almost a necessary incident to every litigation. Indeed, the 'expenses incident to a lawsuit, either in prosecuting or defending, are frequently, if not generally, far in excess of what are properly termed “costs of the case.”
In this state, and quite generally in other states, it has been held that damages for malicious prosecution of a civil action, as well as for a malicious criminal charge, may be recovered. Expenses incurred and •damage to business, and even exemplary damages, have been allowed in such cases. We have failed, however, to find any authority for assessing damages for a malicious defense of an action. Indeed, it has been said that self-defense is the first law of nature, and one who physically assaults another can not recover damages of the other for physical injuries inflicted, so long as the other acts simply on the defensive and does no more than is necessary to repel the attack; even if the assailant be killed in the affray, if the assailed does nothing more than is reasonably necessary under the circumstances to defend his own life he is not responsible, •either civilly or criminally.
We think the demurrer was properly sustained, and the judgment is affirmed.
Burch, J., and Benson, J., concur in the result. | [
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The opinion of the court was delivered by
Benson, J.:
The district court dismissed an appeal. from the following decision of the probate court, holding that it was not an appealable order:
“The above matter came ón for hearing upon the affidavit of Cora Dobson, the widow, . . . and upon the administrator’s oral answer to the court’s citation, which said answer was under oath. . . . And the court, having heard the evidence, . . . does hereby overrule the said motion and affidavit of the said Cora Dobson, and holds that said property, to wit, the horse and wagon, are not the property of the said estate, and that they have not been converted by the administrator to his own use, and the court further finds that the gross appraisement of the stock of merchandise and fixtures that came into the hands of the administrator were not at the time of greater value than $1450, as shown by the aggregate inventory filed herein by the administrator on the 21st day- of January, A. D. 1909. It is ordered, that the administrator make no further accounting to the estate and to the heirs of the said estate than as herein already made, except for such other property as may hereafter come to his hands, as is provided by law.”
The citation referred to was issued upon an affidavit charging that certain property belonging to the estate and described therein had been omitted from the inventory, and that other property mentioned therein had not been properly inventoried, and asking that the administrator be required to appear and .answer such questions as might be asked touching the effects of the decedent and the disposition made of them.
The proceeding was treated by the probate court and the parties as an application for an order requiring the administrator to return an additional inventory of the property described in the affidavit, and will be so considered here. The order denied the application. If. it is a final decision within the meaning of the statute the appeal should not have been dismissed. The statute provides that appeals may be taken “where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction.” (Gen. Stat. 1868, ch. 37, § 188, Gen. Stat. 1909, § 3624.)
It is contended that the decision was not final because the title to the property in question could not be finally determined in that proceeding. But this is not the test of a “final decision,” as that term is used in the statute. It was said in Hartwig v. Flynn, 79 Kan. 595, upon which the appellee seems to rely, that “the probate court . . . has jurisdiction incidentally to determine the title to property apparently belonging to the estate but to which the administrator or some third party makes claim, but such determination is merely for the purpose of facilitating the orderly progress of business in that court, and does not determine the ultimate rights of the parties.” (p. 600.)
Original jurisdiction is vested in probate courts to determine what property should be placed upon an inventory — if that authority did not exist orderly admin istration would be obstructed; but such determination is not a final adjudication of the title to the property as against adverse claimants. The inventory furnishes the basis upon which the administrator must account. If the title to any of the property so inventoried is shown to be in another the administrator may have a proper credit for its value. If other property comes to his hands he may be charged therewith upon an additional inventory.
It was held in Swayze, Adm’x, v. Wade, 25 Kan. 551, that an order withdrawing property from an inventory on the ground that it was exempt from the payment of debts of the decedent was a decision from which an appeal could be taken. The court said:
“The appeal was taken from- the order making an allowance to the widow of the sum of $2840.57, absolutely for the use of herself and children. By the terms of the order this sum was withdrawn from the assets of the estate as property exempt by law from the payment of any of the debts of the deceased, and the administratrix was allowed credit for such sum. . . . Therefore, as the order appealed from was in the nature of an allowance to the widow, and a final decision of the probate court, the appeal was properly taken, and the district court rightly denied the motion to dismiss the action.” (pp. 557, 558.)
In Wolfley v. McPherson, 61 Kan. 492, it was held that an order classifying a demand allowed against an estate is a decision, and that a subsequent order vacating such classification is likewise a decision from which an appeal may be taken.
In a proceeding in a probate court in Missouri, commenced by an administrator of the estate of a deceased partner, in which the surviving partner was cited to show cause why he should not turn over certain property to the administrator, it was held that an order denying the relief prayed for was appealable. The court said:
“We think thé concluding clause of the first section of the eighth article of our administration law, which allows an appeal ‘in all cases where there shall be a final decision of any matter arising under the provisions of this law,’ is sufficiently broad to allow the appeal in this case. The decree was final, so far as the-citation was concerned, and, although its results did not prevent the institution and prosecution of other-proceedings in the probate court, the judgment of the probate court was final as to the one instituted.”' (McCrary, Adm’r, v. Menteer, 58 Mo. 446, 447.)
In the same state it is held that an appeal lies from a final order of a probate court made in a proceeding-against a party charged with concealing or embezzling the property of the estate of a deceased person, under a statute allowing an appeal, “where there shall be a final decision of any matter arising under the provisions, of this law” — the act relating to administrators. (Ruff v. Doyle, Adm’x of Doyle, 56 Mo. 301, 303.) An appeal was taken in this state in such a proceeding (under Gen. Stat. 1868, ch. 37, §§ 196-200, Gen. Stat. 1909, §§ 3632-3636), and the judgment was reviewed' in this court, but the question whether the order was. appealable was not presented. (Vaughan v. Brown, 81 Kan. 1.) Titles, however, are not finally adjudicated, in a proceeding under this statute. (Humbarger v. Humbarger, 72 Kan. 412; In re Moran, post.)
The word “decision,” used in this statute, is one of' broader signification than “judgment.” (Wolfley v. McPherson, 61 Kan. 492.) An order which disposes of property the subject matter of an action or proceeding-in which it is made, so far as the court which made it is. concerned, is a final order, although the title to such property may be litigated in some other action or proceeding. In discussing the meaning of the term “a final judgment or decree,” used in the federal judiciary act providing for a review of the judgments of state-courts, Mr. Chief Justice Marshall, speaking of a judgment denying a writ of prohibition, said:
“We think also that it was a final judgment in the. sense in which that term is used in the twenty-fifth section of the judicial act. If it were applicable to those judgments and decrees only in which the right was finally decided, and could never again be litigated between the parties, the provisions of the section would be confined within much narrower limits than the words import, or than congress could have intended.” (Weston et al. v. The City Council of Charleston, 27 U. S. [2 Pet.] 449, 464.)
The effect of the order made by the probate court was to deprive the estate, for the purpose of administration, of property which interested parties claimed belonged to it. The proceeding was one within the jurisdiction of the probate court. It involved property of substantial value, and the decision marked the end of the proceeding. If it be possible, as suggested, that by some other proceeding by creditors or heirs the claim can be again asserted and litigated, it does not change the nature of the order which judicially determined that the administrator should not be charged with the property in question. It was therefore an appealable order. (Barry v. Briggs, 22 Mich. 201; Lalande v. McDonald, 2 Idaho, 283; Belt v. Davis, 1 Cal. 134; Martin v. Martin, 170 Ill. 18.)
The judgment is reversed and the cause remanded, with directions to deny the motion to dismiss and to hear the appeal. | [
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The opinion of the court was delivered by
Porter, J.:
There is no dispute as to the facts. The order of the district court directed the receiver to sell to the plaintiff certain assets of the bank and also “any and all claims against stockholders.” The exact language of the federal statute which it is claimed by the plaintiff authorized the district court of Shawnee county to make the order in question reads as follows:
“Such receiver, under the direction of the comptroller, ... upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may .sell all the. real and personal property of such association, on such terms as the court shall direct.” (U. S. Rev. Stat, § 5234.)
The principal contention of the defendant is that the action can not be maintained by the plaintiff, first, because the district court of Shawnee county was without jurisdiction- to make an order authorizing and directing the sale and transfer of the notes to the plaintiff, for the following reasons: (a) The district court of Shawnee county is not a court of “competent jurisdiction” within the meaning of the foregoing section; (b) the notes sued on are not “bad or doubtful debts,” nor are they personal property or assets of the bank; (c) that the individual liability of the stockholders of a national bank, as well as the written obligation to pay the same, is a statutory liability for the benefit of the creditors of the bank only, and, being no part of the assets of the bank, could not be sold by order of any court or under the directions-of the comptroller of the currency; (cl) conceding that the court is a court of competent jurisdiction within the meaning of section 5234, the order was an ex pm te one, made without jurisdiction, for the-reason that no summons was issued, no suit was filed, no action was begun, and there was nothing before the court except the petition of the receiver for an order to sell the assets in a summary way. The plaintiff, on the other hand, places some reliance upon the fact that the order made by the district court recites that the offer of the plaintiff to the receiver for the purchase of certain assets of the bank and claims of stockholders had been submitted to the comptroller of the currency and duly approved by him; that the committee of the stockholders of the First National Bank of Topeka and the chairman of the committee of creditors had been duly advised of the terms of the offer, and duly notified that an application for the order would be made at the time and place, and that no objection to the offer being accepted- had been made by anyone.
The case was ably presented at the oral argument and has been briefed by both sides with unusual care and thoroughness. Many of the legal questions raised by the defense are interesting, but in our view of the law which must control the case few of these questions need be decided. It can not be questioned that the notes were executed by George Hackney in settlement of his individual liability as a shareholder of the bank. It is true, this liability is a statutory one, but it furnished a good consideration for the execution and delivery of the notes. They were made payable to the order of, and delivered to, James T. Bradley, receiver of the bank. They are ordinary promissory notes. Unless there is, therefore, some statutory provision (and we have been cited to none) which prohibits the receiver from disposing of obligations given in settlement of a stockholder’s liability, it would seem that he would have the same right to make a bona fide sale and transfer of a note given in satisfaction of such liability that he would have to collect the amount due thereon from the maker.
Notwithstanding the provision of the code requiring all actions to be brought in the name of the real party in interest, it is the rule in this state that the legal holder of commercial paper may maintain an action thereon, and that the maker can not question, his title unless the maker is thereby in some way prejudiced in his defense. (Manley v. Park, 68 Kan. 400; Graham v. Troth, 69 Kan. 861; Greene v. McAuley, 70 Kan. 601.) In the case last cited the first paragraph of the syllabus reads:
“Where a promissory note is sued upon, by the holder, to whom it has been unconditionally assigned by the payee, a complete defense on the sole ground that the plaintiff is not the real party in interest can only be established by proof of facts showing that a payment to him would not be a protection to the defendant against further liability on the note.”
(See, also, 8 Cyc. 66.)
It is doubtless true that the statutory liability of a shareholder in a national bank is not, strictly speaking, an asset of the bank, but is an obligation created by statute for the sole purpose of reimbursing creditors of an insolvent bank. Nevertheless it is an asset in the hands of the receiver, to be collected and the proceeds applied under the direction of the comptroller of the currency in payment of claims of creditors of the bank. In the case of Williamson v. American Bank, 109 Fed. 36, it was said:
“While this liability is not strictly an asset of the bank, and could not be enforced for its benefit as a corporation, yet the intention of congress, as manifested by the act of June 30, 1876, was evidently to treat it as a means of creating a fund to be applied with and in aid of the assets of the bank in all cases of voluntary, as of involuntary, liquidation.” (p. 38.)
The supreme court of.the United States used almost the same language in the case of Richmond v. Irons, 121 U. S. 27, where it was said in the opinion:
“The intention of congress evidently was to provide ample and effective remedies in all the specified cases for the protection of the public and the payment of creditors, by the application of the assets of the bank and the enforcement of the liability of the stockholders. Admitting that this liability is not strictly an asset of the bank, because it could not.be enforced for its benefit as a corporation nor in its name, yet it is treated as a means of creating a fund to be applied with and in aid of the assets of the bank toward the satisfaction of its obligations.” (p. 50.)
In Schaberg v. McDonald, 60 Neb. 493, the administratrix defended against a claim filed in the probate court based upon a judgment obtained against the decedent by the receiver of a national bank upon the stockholder’s liability. During the pendency of the action the claim which was. the subject matter of the controversy had been by the receiver sold with other as- ' sets of the bank to a third party, upon an order of the United States district court. The administratrix set up the defense that the money due on the claim was a trust fund for the benefit of creditors, and that such claim, could not be sold, transferred, compounded or otherwise disposed of, but must be collected and the proceeds distributed among the creditors of the bank. The court, held that, conceding this contention of the defendant to be correct, it furnished no defense to the action. In the opinion it was said:
“The alleged transfer in nowise changes, increases or lessens the liability of the estate. If it be true that the sale is void for the reasons urged, then the right of the receiver to collect the money for the benefit of the creditors remains unquestioned, and, if the sale be valid, the authority of the receiver to continue as plaintiff is. given by the statute referred to. If such sale is irregular or voidable only, then it is to be treated as a valid sale until, by proceedings in the proper tribunal whence the order of sale emanated, the irregularity is corrected. In no view of the case is it a matter which vitally concerns the stockholder who is liable for the assessment, or materially affects the merits of the obligation resting upon him under his shareholder liability. It becomes a material and vital question only as between the creditors and the-receiver of the bank who administers the insolvent estate for their benefit, and the rights and obligations of these parties can. not be-tried in the present suit.” (p. 500.)
The fact that the claim in that case against the stockholder for his statutory liability had been reduced to a judgment does not, in our opinion, affect the matter. In that case, as in this, it was contended that the defendant, as the personal representative of the decedent, was still subject to a suit to collect the same indebtedness by the creditors of the bank notwithstanding the sale, indorsement and transfer of the claim. The court, in the opinion, answered this contention as follows:
“It is urged that the claim having been, as claimed, illegally sold, payment by the estate would not release-it from future demands by the creditors of the bank upon the same assessment. The claim is founded upon an assessment ordered by the comptroller of the currency upon the stock of the insolvent bank, owned by the deceased. It was presented and filed against the estate because of the liability thus owing. The litigation following is for the purpose of testing such liability and none other. Its satisfaction upon final, judgment would, in fact and upon principle, absolve the estate from any further liability. The liability of' the estate can not be enlarged or diminished by the application made by the receiver of. the proceeds derived therefrom. The order of the comptroller directing the assessment is conclusive. National Bank v. Case, 99 U. S. 628. The right of the estate to a discharge from such liability is all it is entitled to. The receiver’s authority to institute the proceedings and enforce payment is unquestioned, and a satisfaction of a judgment obtained in such proceedings would obliterate the obligation, regardless of the disposition made by the receiver of the proceeds of such assessment. Scott v. Armstrong, 146 U. S. 499; Kennedy v. Gibson, 8 Wall. (U. S.), 498; Stanton v. Wilkeson, 8 Ben. (U. S. D. C.), 357.” (p. 501.)
In Waldron v. Alling, 73 N. Y. App. Div. 86, the New York supreme court had under consideration the question of the validity of a sale and transfer by a receiver of notes representing the liability of stockholders in a national bank. In the opinion the court used this language:
“When this step had been taken by the comptroller the liability of the stockholder assumed the same characteristics as any other claim or chose in action which the receiver might hold as part of the assets of the bank. Upon general principles such a claim would be assignable unless prohibited in some way by the statute. It is claimed by the respondent that such prohibition is to be found in section 5234, United States Revised Statutes, which provides, in connection with other clauses, that the receiver ‘may, if necessary to pay the debts of' such association, enforce the individual liability of the stockholders.’ It is argued that tin's statutory provision confers a personal tvust and duty upon the_ receiver which may not be delegated by bum. We think, however, that it would be a somewhat strained construction to give to the language employed this significance. The comptroller fixes the amount of the individual habíhty and makes it,, as above stated, a liquidated claim. There is no part’cular personal trust. imposed upon the receiver in the matter of collecting the liability. It is made his duty to realize upon it the same as upon any other asset or claim of the bank which comes into his possession. One of the ordinary methods by which moneys are realized upon a claim is by the sale and assignment of the latter. The present case suggests the difficulties which would attend a decision that a receiver might not assign such a claim as this. The receiver of this particular bank is” located in Washington. The defendant is found in this state. It would be so expensive as probably to render a proceeding fruitless if the former was compelled to personally come to this state to institute his action, while, upon the other hand, it might very well happen that something could be realized upon the claim by the sale and transfer thereof. So that we fail to .find, in the-clause quoted a prohibition against the course taken in reference to this claim.” (p. 88.)
It is true that if, after the notes were given, the assets of the bank had proved sufficient to meet all claims of creditors without resorting to the collection of these notes in full, or by realizing upon only a part thereof, there would have been a failure pro tanto of consideration for the notes; but it is not disputed that in order to pay the claims of the creditors it was necessary for the receiver to realize upon these notes in full. He did realize upon them by the sale' to the plaintiff, which was authorized by the comptroller of the currency. The proceeds of the notes he applied in payment of claims of creditors of the bank, including a claim of George Hackney, who thus received his pro rata share of the proceeds of his own notes. How, then, can it avail the defendant that there is no statutory provision expressly authorizing the-comptroller of the currency to direct a receiver to realize upon notes of this kind by a sale? The defendant is in no manner prejudiced in his defense. The notes were transferred after maturity with full notice of the facts, and no claim is made that the plaintiff occupies the position of an innocent purchaser. Any defense which the defendant might have urged against the original payee was open to him in this action. Having suffered no prejudice, he can not complain of the transfer or question the plaintiff’s right to maintain the action. (Manley v. Park, 68 Kan. 400, and Greene v. McAuley, 70 Kan. 601.) And if, for any or all the reasons suggested, the district court was without authority to direct the receiver to sell and transfer the notes to the plaintiff, that fact can furnish no ground of defense. No court would permit a second judgment to be obtained upon the notes or upon the liability in settlement of which they were given. The satisfaction of the judgment in favor of the plaintiff could be successfully pleaded in any court against a further claim made by anyone upon the notes or upon, the stockholder’s liability. It therefore becomes unnecessary to consider or determine the questions presented with respect to the j urisdiction of the district court to make the order directing the receiver to sell the notes.
The judgment is affirmed. | [
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'The opinion of the court was delivered by
Benson, J.:
The appellant, as sheriff, levied a tax warrant on personal property, part of a stock of merchandise and fixtures sold and transferred to the appellee on April 15, 1907, after taxes for that year had been assessed thereon. These taxes were not paid, and :a tax warrant was issued therefor January 25, 1908, against the former owner. The appellee treated the levy as void, replevied the property from the sheriff, ■and recovered judgment for possession. The sheriff •appeals.
The statute under which the appellant claims that his proceedings should be upheld provides:
“If any person in this state, after his personal prop■erty is assessed and before the tax thereon is paid, shall ¡sell all of the same to any one person, and not retain sufficient to pay the taxes thereon, the tax for that year shall be a lien upon the property so sold, and shall at ■once become due and payable, and the county treasurer ¡shall at once issue a tax warrant for the collection thereof, and the sheriff shall forthwith collect it as in ■other cases. The one owing such tax shall be civilly liable to any purchaser of such property for any taxes he owes thereon, but the property so purchased shall be liable in the hands of the purchaser or purchasers for such tax; provided, however; if the property be sold in the ordinary course of retail, trade it shall not be so liable in the hands of the purchasers.” (Laws 1899, ■eh. 248, § 4, Gen. Stat. 1909, § 9236.)
The language of this statute, while not absolutely clear in its terms, sufficiently discloses the legislative purpose to secure the payment of taxes which otherwise might be lost upon the transfer of the property taxed-without retaining enough to pay the taxes. If it should be construed to apply only when all of a person’s property of every kind, including property exempt from execution, is sold, its field of operation would be so restricted as to deprive it of practical utility, and the mischief which it must be presumed the legislature intended to prevent would remain. If, however, it is. held to apply to sales in bulk of all of a class of personal property, such as a stock of goods or a herd of cattle, without retaining sufficient of the stock or herd or other-property sold to pay the tax, its reasonable operation is. manifest, and the statute should be construed to cover such transactions. Doubtful cases may arise concerning the operation of the statute, but the facts of the-present case are fairly within its terms.
It is argued that because the county treasurer did not. issue his warrant at once when the transfer of the goods was made the goods should' not be bound for the tax. The lien, however, is expressly given by the statute, and does not rest upon the will of the treasurer. This lien can not be extinguished by mere delay in enforcing it. The provision for the prompt issuance of the warrant is to facilitate collection while the property can be found. The collection of taxes can not be enjoined on account of any mere irregularity nor because of the failure of an officer to perform the duties assigned to him upon the day specified in the statute.. (Bank of Garnett v. Ferris, 55 Kan. 120.) The purchaser of the goods, who took them subject to the lien, was not injured by delay in enforcing it. He might have discharged it by making payment, and the statute gave him the right to recover from the party owing-the tax.
The tax warrant was for one gross sum, which, it appears from oral evidence, included taxes upon household goods, and perhaps some other personal property, with the taxes upon the stock of goods, the latter being the principal item. The return of the owner made to the assessor was not placed in evidence by either party,, and it is now insisted that a valid levy could not be made for the whole sum upon the property in question. The sheriff, however, testified that in making the levy he cut out the tax upon the other property, and levied only for the taxes on the stock of goods. The appellee, therefore, was not prejudiced. A mere irregularity which does not injuriously affect a substantial right can not defeat the collection of taxes. (Gulf Railroad Co. v. Morris, 7 Kan. 210; Challiss v. Comm’rs of Atchison Co., 15 Kan. 49; Ryan v. Comm’rs of Leavenworth Co., 30 Kan. 185; Life Association v. Hill, 51 Kan. 636.) Even if it should appear that through inadvertence or mistake the levy was for more than the true amount of the lien, the owner, before resorting to proceedings to prevent collection, ought to have paid or tendered the amount actually due on the stock purchased. (City of Lawrence v. Killam, 11 Kan. 499; Miller v. Ziegler, 31 Kan. 417; Wilson, Treas., v. Longendyke, 32 Kan. 267.) While these principles are more frequently illustrated by cases where an injunction is sought, it applies with equal force where the levy is treated as a nullity and replevin is resorted to to recover property upon which there is a lien for taxes.
The sheriff was rightfully in possession of the property to satisfy the lien for taxes, and should have been allowed to proceed to make collection. The judgment is reversed, and the cause is remanded for further proceedings in accordance with these views. | [
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Per Curiam:
The evidence objected to did not tend to prove another crime. Only one place was in question, and that was fully identified. It will not be assumed that the court’s remark addressed to counsel in ruling on the admissibility of this evidence was prejudicial, and any possibility of injury to the appellant’s substantial rights was removed by the instructions to the jury. While generally an instruction like the seventeenth should not be given, prejudice will not be presumed, and none appears. The eighth and ninth instructions have been approved many times. The affidavit relating to the conduct of the county attorney does not pretend to describe the odors emitted when the bottle was, broken and consequently does not show that the jury gained any information thereby damaging to the .appellant.
The judgment of the district court is affirmed. | [
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Per Curiam:
The motion to dismiss the proceedings because of the insufficiency of the appeal bond can not be sustained, but an examination of the record satisfies us that the court of appeals reached a correct conclusion, and for the reasons given by that court (6 Kan. App. 252) its judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This appeal involves the legality of proceedings for paving a street. The mayor and council of the city of Ottawa passed a resolution declaring it necessary to grade and curb Main street, in that city, from the north line of Tecumseh street to the south line of Wilson street. The resolution was duly published. In the forenoon of the 5th day of June, 1909, which was the last day after the publication in which property owners could remonstrate, the plaintiffs filed ■a protest with the city clerk signed by forty-five resident property owners liable to taxation on account of the improvement. At the time this protest was filed there were seventy-six resident owners of real estate liable for taxation for the improvement. On the afternoon of the same day conveyances were made by owners of real estate on either side of the street to be improved by which the number of resident owners of real estate liable for taxation for the improvement was increased to ninety-four. On the 16th day of June, 1909, the mayor and council in regular session determined that a majority of the resident owners had not, within the time provided by law, filed their protest against the improvement, and the council thereupon enacted an ordinance authorizing the improvement to be made.
This action was brought to enjoin the work and prevent the city from levying a tax to pay for the same. On the preliminary hearing the court made separate conclusions of fact and of law, and denied the temporary injunction. At the final hearing it was agreed that the findings made by the court upon the hearing for the temporary injunction should stand as admitted facts. Other evidence was introduced, and the court found for the defendants. From this judgment the plaintiffs appeal.
The first contention is that the filing of a protest by a majority of the resident property owners liable to taxation for the improvement ousts the city from jurisdiction the instant the protest is filed. There is. no foundation in the statute for this contention. The statute provides:
“If a majority of the resident owners of property liable to taxation therefor shall not, within twenty days from such last publication, file with the clerk of said city their protest against such improvements, then such council shall have power to cause such work to be done or such improvements to be made, and to contract therefor, and to levy the taxes as herein provided.” (Laws.1887, ch. 104, § 1, Gen. Stat. 1909, § 1420.)
Until the expiration of the twenty days the city possessed no power or jurisdiction to proceed, and therefore could not be prevented from acquiring jurisdiction, until the expiration of the full period of twenty days. In Clarke v. Lawrence, 75 Kan. 26, the court used this, language:
“If a majority of such real-property owners did not sign such protest the power to proceed existed; if a majority did sign the protest the power did not exist.”' (p. 80.)
The appellants rely .upon the ease of Knopfi v. Roofing and Paving Co., 92 Mo. App. 279, decided by the-Kansas City court of appeals, holding under a like-statute in Missouri that the filing of a remonstrance by-a majority ousts the jurisdiction o.f the council, that the-withdrawal of remonstrances after such filing does not: reconfer jurisdiction, and that subsequent proceedings, of the council in the premises are void. The case, how ever, was overruled by the supreme court in affirming a decision of the St. Louis court of appeal's (City of Sedalia v. Montgomery, [Mo. 1910] 127 S. W. 50), where the various reasons given by the two divisions of the court of appeals are reviewed, and the court holds that the statute does not confer jurisdiction on the council in the first instance, but only conditionally. In the opinion the court used this language:
“In other words, at this point the statute in effect says to the city council: You may make the improvements suggested by the resolution provided a majority of the abutting property owners are willing, and you may have ten days in which to ascertain that fact, and if at the end of that period there is not before you a remonstrance signed by a majority of the property owners you may infer that it meets their approval, and then, but not until then, your jurisdiction attaches. During that period, therefore, there is no power or jurisdiction either to annul or to be recreated.” (p. 51.)
This we think is the true interpretation of the statute ; and we hold that the property owners have the full period in which to express their approval or disapproval. After filing their remonstrances they could rightfully withdraw their names therefrom at any time before the expiration of the twenty-day period, and thereby express their approval, or, if before the expiration of the full period some of the real estate changed hands, so that the remonstrants thereby were reduced to a minority, the council would have jurisdiction to proceed. To the same effect is Green v. Jersey City, 42 N. J. Law, 565, where it was held that in reckoning the remonstrants all those presented after the proceeding is commenced, and up to and on the day fixed for hearing, are to be considered. A similar rule has been applied in an application for a liquor license (Green v. Smith, 111 Iowa, 183), in proceedings to vote aid to a railroad (Noble et al. v. The City of Vincennes, 42 Ind. 125), and in locating a county seat (La Londe v. The Board of Supervisors of Barron County and others, 80 Wis. 880). (See, also, Black et al. v. Campbell et al., 112 Ind. 122.)
In City of New Orleans v. Stewart, 18 La. Ann. 710, it was held to be immaterial for the council or court to inquire into the motives which actuate the majority in expressing their approval or disapproval of the improvement.
At the trial the plaintiffs offered evidence to prove that a number of the deeds were not bona fide conveyances. An objection was interposed on the ground that the plaintiffs' were estopped by the proceedings on the hearing for a temporary injunction. The trial court heard the evidence, and afterward found as a conclusion of law that the plaintiffs were estopped by the former proceedings. It is claimed that this was error. It appears that the hearing for the temporary injunction was quite full and complete. The same questions were presented to the court, and the same character of evidence offered for the purpose of establishing the fact that some of the conveyances were not made in good faith. At the request of the parties the court made separate findings of fact and conclusions of law, the same as though the case had been tried upon its merits. One of the findings, which by the stipulation stands as an admitted fact, is that in none of the deeds conveying portions of the property after the protest was filed was there any agreement for a reconveyance or understanding between the grantors and grantees that the title should not pass. - This amounts to a finding that the conveyances were in good faith. There was no error in holding the plaintiffs bound by the former proceedings. In Comm’rs of Wilson Co. v. McIntosh, 30 Kan. 234, it was held that the old rule that the decision made upon a motion is not res judicata “no longer obtains in its former strictness.” (Syllabus.) It was said in the opinion:
“But why should not a decision upon a motion be as conclusive as that upon a trial? The reasons given are that motions are often made in the hurry of a trial, and decided with comparatively little examination and consideration; that the decision can not be taken up for review; and that they are tried upon affidavits, rather than oral testimony. None of these reasons exists in the case at bar.” (p. 237.)
So, in the present case, the reasons for the general rule do not exist. The merits of the questions were capable of being tried and were in fact tried upon the motion. Neither party was entitled to a jury, and the decision was one necessarily to be given by the court; and when determined on the motion could have been brought to this court directly for review.
It can not be said that the equities favor the plaintiffs. No appeal was taken from the order denying the temporary injunction, no stay of proceedings was asked, no supersedeas was given. The work of grading and paving the street has been completed, the tax ascertained and levied, and the bonds for the payment of the improvement have been issued and sold. Moreover, the plaintiffs were not averse to having the street paved, but disagreed with the council and other property owners as to the kind of pavement. At the same time their protest was made they filed another petition, requesting that the street be paved with macadam instead of brick, and arranged that it was not to be presented or acted upon by the council until after the protest had taken effect. They are thus in the inconsistent position of being remonstrants and petitioners at the same time. Now, after the improvement has enhanced the value of their property, it would be most inequitable to allow them to throw the burden of the improvement upon the city at large, unless, as they contend, the city council was wholly without jurisdiction in the premises from the moment the majority filed their protest. That such is not the reasonable interpretation of the statute is obvious. Let it be supposed that an hour after they filed the petition a resident owner had died, and that his death cast the title of his property upon a large number of heirs: must the council, in reckoning the majority of resident owners on the 5th day of June, ignore these real owners and count those only who were owners when the protest was filed? The jurisdiction and authority of the council to proceed with the proposed improvement depend upon the conditions existing at the end of the statutory period, and not upon those existing at the instant the protest is filed.
It is insisted that the statute should be strictly construed so as not to permit a subdivision of property after a protest has been filed, thus increasing the number of property owners, because it would open the door to fraud and trickery. There is nothing in the language of the statute to prevent conveyances of property by the owners for the express purpose of affecting the jurisdiction of the council to make special improvements. So long as changes in ownership are actually made, the purpose for which they are made is not material. The situation is analogous to that where a person changes his residence from one state to another for the purpose of thereby giving jurisdiction in a controversy to the federal coúrts. The motive or purpose which actuated him in changing his residence is not material, if he make an actual change.
The judgment is affirmed. | [
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Per Curiam:
A colt got upon the railroad track and was killed. It went upon the right of way through an open gate. The railway company built the fence originally, and placed a gate at this opening. It may be presumed that the fence and gate were sufficient when constructed. It is the duty of the railroad company to build and maintain fences and gates along its right of way, and it is the duty of the farmer for whose use a gate is erected to close it when it is not out of repair. The evidence in this case centered upon whether or not the gate in question was in such condition that it might have been operated as gates usually are, in opening and closing. The evidence was not satisfactory upon this point, and the railroad company demurred to it. The court sustained the demurrer, and the plaintiff appeals.
We think this action of the court was erroneous. There was evidence from which it might have been inferred that the gate had not been provided with either hinges or means of fastening, and that it had been down on the ground for months and longer. If the case had been submitted to a jury upon this testimony, and a verdict in favor of the plaintiff had been returned, it would have been difficult to set it aside. The demurrer should have been overruled.
The judgment is reversed, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Ira M. 'Cobe, as assignee of the receiver of the insolvent First National Bank of Topeka, against the Coughlin Hardware Company, to recover $4000 alleged to have been •due the bank ° for ' money obtained from it by the hardware company. It was alleged and shown that on May 20, 1905, the books of the bank disclosed that the Coughlin Hardware Company had overdrawn its account to the amount of $1344.18, and that upon that ■date a demand note for $1500, payable to the bank and :signed “Coughlin Hdw. Co., by Chas. J. Devlin,” was given to the bank, and the amount of the note was ■credited to the account of the hardware company. 'Three days later the books of the bank showed that the hardware company had again overdrawn its account, •and a similar note, dated May 24, 1905, for $2500 and payable to the bank, was executed, and it also was •signed “Coughlin Hdw. Co., by Chas. J. Devlin.” The credits received on these notes, amounting to $4000, were entered upon the deposit book of the hardware company as of the dates the notes were given, and the ¡hardware company from time to time checked against such account and the credits given by reason of such notes until the full amount of $4000 was checked out. In addition to the foregoing facts, Cobe alleged that although the hardware company had received the $4000 from the bank and had become indebted to the bank and the assignee in that amount, it had failed to pay the same upon demand, and for this amount, with interest, the assignee, Cobe, asked judgment.
The hardware company answered with a general denial, and alleged that C. J. .Devlin owned a majority of the stock of the bank and was a director who largely controlled its affairs; that he owned and controlled certain coal companies which were indebted to the hardware company; that he agreed to pay on this indebtedness $4000; and that the credits in the bank of' $1500 and $2500 were made in compliance with this agreement. It also alleged that if any loan was made or discount extended by virtue of the notes it was made-to Devlin himself, and that the bank knew that the notes had not been executed by the hardware company.. It further alleged that it had no notice that Devlin had executed the notes until the bank had become a bankrupt. The answer contained a verified denial of the execution of the notes and the right of Devlin to execute-them.
In the reply Cobe denied generally, and also made-specific denials of certain averments of the answer. He also alleged that the hardware company presented’ its claim of indebtedness against the coal company mentioned in a bankruptcy proceeding, but did not credit that company with the 1500-dollar and 2500-dollar payments referred to in the answer.
At the trial the cashier of the bank testified on behalf of Cobe that Devlin owned a majority of the stock, was a member of the discount board, and to a great extent controlled the affairs of the bank. He testified to the-overdrafts of the hardware company, and that Devlin; came' in and handed him the notes, which were dis ■counted, and that on his direction the amounts of the notes were credited to the account of the hardware company. He also testified that he recognized that the signature on the notes was not the one usually attached to the paper of the company, but that he understood Devlin to be a partner or stockholder in the hardware company, and he therefore assumed that the notes were the paper of the company and he accepted them in payment of the overdrafts and passed the amounts to the credit of the company. In addition to the te'stimony of the cashier, the evidence consisted of the notes, slips and book entries of the bank. No testimony whatever was offered in behalf of the hardware company, and the trial court, after denying a motion for judgment on the pleadings and one to instruct a verdict for Cobe, submitted the case to the jury on instructions, of which there is complaint, and the jury later returned a verdict for the hardware company.
It is first argued that the court erred in denying the motion by appellant for judgment on the pleadings, but as the answer of appellee set up a general denial as its defense to the cause of action stated in the petition the motion could not well be sustained. The appellant did not demur to the answer or any of the defenses alleged in it. It is plausibly argued that the second count of the answer did not state a defense to the action, but if a demurrer had been sustained to that count the denials would have remained, which of themselves are sufficient.
The next contention is that the court should have directed a verdict for appellant. It is true that no testimony was offered in behalf of appellee, but a court or jury is.not required to accept a statement of a witness as conclusive, although there may be no direct evidence contradicting his statements, and hence the court could not direct the verdict. (Railway Co. v. Geiser, 68 Kan. 281; Jevons v. Railroad Co., 70 Kan. 491.)
There is complaint, and reason to complain, of the instructions upon which the case was submitted to the jury. The appellee insists that as the record and'abstract fail to show that any exceptions were taken to the instructions of the court they are therefore not open to review. The provisions of the old code extending from section 299 to and including section 305a (Gen. Stat. 1901, §§ 4746-4758), relating to the taking of exceptions, are wholly omitted from the code of 1909. Under the old code error of law occurring at the trial was a ground for a new trial, but was. not available unless “excepted to by the party making the application” (§ 306, subdiv. 8, Gen. Stat. 1901, § 4754, subdiv. 8), while in the code of 1909 this reference to an exception is omitted and an aggrieved party whose substantial rights are affected may now have a new trial for “erroneous rulings or instructions of the court” without the formality of an exception. (Code 1909, § 305, subdiv. 2.) Of course, a party can not obtain a reversal of a judgment because of an instruction which he induced the court to give nor for an erroneous ruling which he invited the court to make. By striking from the code all of the provisions relating to exceptions the legislature manifestly intended to dispense with the taking of exceptions, which in actual practice had largely become a mere formality. It is no longer necessary for a party to notify the trial court that he intends to have a ruling reviewed on appeal or to have an objection saved by a record entry. (Kelly v. Schreiber, 82 Kan. 403.)
After calling the attention of the jury to the contention of appellant and stating that appellee had formed an issue by a general denial and by the special denial challenging the authority of Devlin to execute the notes, the court presented in some detail the claims of appellee on its second defense, upon which no evidence had been offered. The appellee, as we have seen, did set up that Devlin owed it, that he had agreed to pay money into the bank for it, that the credits extended because of the notes executed for the appellee by Devlin were in compliance with this agreement, and, further, that the execution of the notes without authority was a shift and device of Devlin, in connivance with the cashier, to raise $4000 to pay on his indebtedness to appellee and was in fact a loan from the bank to Devlin; but this defense appears to have been abandoned by appellee, as no proof of these averments was offered. The submission of these questions to the jury, without evidence, was unwarranted and quite likely to have been prejudicial.
Aside from that, the defense itself is defective. Neither the cashier nor a stockholder of a bank can by any device or fraud give away its funds, nor can they use them to pay their individual debts to anyone. The appellee had overdrawn its account with the bank and was indebted to it. Assuming, as we may, that Devlin was without authority to execute the notes and that they were worthless, the bank never received anything from appellee on its debt nor for the $4000 drawn out of the bank by it. The appellee obtained this sum from the bank on its checks over and above its deposits, for which no consideration was paid to the bank. The funds of the bank could not be diverted or appropriated to the individual debts of Devlin or the cashier by the mere agreement between Devlin and the appellee to enter a credit in its favor. The appellee had paid nothing to the bank, and the bank had received nothing to warrant such a credit. If something had been received by the bank or something had been accepted by the governing board as a basis for the credit, other considerations and liabilities might arise.
The case of Hier v. Miller, 68 Kan. 258, illustrates the effect of entering a credit in a bank book by a cashier and allowing the amount of it to be drawn out in payment of the cashier’s debt, when there was in fact no deposit, and also where the creditor was entirely innocent of the misappropriation. There the •cashier was indebted individually to a depositor of the .bank. He pretended to make several deposits in favor ■of the creditor, as payments on that debt, and entered credits of the amounts upon her pass book. A final .settlement was had between them, and in consideration of the credits thus extended the note representing the -debt of the cashier was surrendered, and for a balance that was still due her a cashier’s draft on another bank was drawn. .No money was deposited in the bank when the credits were entered, and no other officer of the bank knew of the transaction, but the creditor acted in .good faith throughout the transaction and knew nothing of the fraudulent diversion of the funds. It was held that the cashier could not pay his debt in that manner and that the receiver of the bank, which in the meantime had become insolvent, could recover from the innocent creditor the amount of the bank’s money which she had checked out on the faith of the fraudulent entries of credit. In referring to the entries of credit in the creditor’s pass book it was said:
“Those entries were made in payment of the cashier’s ■private debt, and, if of any effect at all,, amounted to •an appropriation of the money of the bank to the discharge of his personal obligations. The cashier had a right to dispose of the funds of the bank for purposes •contemplated by its charter. For this his office is a warrant of authority. But he could not absorb the funds of the bank in the satisfaction of his private ■debts without an express and especial authorization.” (p. 260.)
On the question whether the creditor could rely on the apparent authority of the bank- officer when he undertook to extend a credit in the payment of his debt it was said:
“Whether or not such authority actually did exist the defendant was bound to inquire. It has been well understood from of old that no man can serve two masters. He will hold either to one or to the other. For a like reason the cashier could not serve both him self and the bank in a single transaction, and because he was attempting such a perilous thing the defendant was put upon guard as to the extent of his power.” (p. 260.)
On the same line it was further said:
“The cashier of a bank may not pledge the credit of the corporation or use the corporate assets for the satisfaction of his individual indebtedness, without the consent of the board of directors. That is a use foreign to the charter purposes of the corporation; and because such conduct falls outside the scope of a cashier’s lawful authority anyone dealing with him privately must do so at his peril.” (p. 266.)
Devlin and the cashier acting in connivance with Devlin could no more appropriate the funds of the bank to pay the individual debts of Devlin, without the sanction of the board of directors, than could the cashier of the bank in the cited case; and it was incumbent on the appellee, as it was upon the creditor in that case, to inquire whether the officers of the bank were acting within the scope of their authority. If appellee intrusted Devlin to make a deposit or procure a credit for it in the bank, it devolved upon it to see that the deposit was actually made or that a real credit was obtained. The fact that Devlin was a member of the discount board and owned a majority of the stock did not give validity, to the action of the cashier nor relieve appellee from responsibility for the funds which were obtained from the bank, if, as alleged, the cashier and Devlin connived together to obtain $4000 of the bank’s money with which to pay Devlin’s debt.
In Dowd v. Stephenson, 105 N. C. 467, a president of a bank, who was indebted to another, instructed the cashier te pay the checks of his creditor out of the funds of the bank. This was done for the president’s convenience. The creditor’s account was overdrawn, but the checks were honored by the cashier on the instructions of the president, who appeared to be in debted to the creditor more than the amount of' the overdraft. The cashier stated that he honored these checks and looked to the president to pay them. No notice was sent to the creditor of his overdrafts, but the checks were charged- on the books of the bank to the creditor. It was decided that “in the absence of special authority for such purpose neither its president nor its cashier, nor these officers acting conjointly, had authority or right to appropriate and devote any part of the funds of the bank of which the plaintiff is receiver to the payment of such president’s personal debt due to the defendant. Such authority, ordinarily, was beyond the scope of the purpose and duties of such officers. No doubt the directors — the governing authority of -the bank — might allow them to exercise such power, or they might ratify such transaction, but it must in some way sufficiently appear that they did.” (p. 470.)
(See, also, National Bank v. Drake, 29 Kan. 311; Cattle Co. v. Loan Co., 65 Kan. 359.)
Other considerations- would arise where there was some authorization or ratification of the acts of the officers by the board of directors, or where there were facts that would estop the bank to deny the authority of the officers, but as there was no proof supporting these theories there is no occasion to discuss them.
The instructions of the court did not conform with these views, and, besides, there was no basis in the evidence for some of the instructions that were given; and for the error of the court in charging the jury the case is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Benson, J.:
This appeal is from a judgment of conviction for maintaining a nuisance. The appellant alleges error in the instructions, and that the evidence is insufficient to sustain the verdict.
The evidence for the state was, in substance, that the appellant took a case of beer to the barn of a neighbor and placed it in the haymow, where there were chairs and a couch and some empty boxes. Afterward he was found there by the sheriff drinking beer and eating crackers with another person. Some empty bottles were found in a case, and some full ones were hanging from the rafters. He told the sheriff he had not been selling beer, but had drunk lots of it and gave it to his friends; that he often had a lunch there and drank beer with his friends; that he gave them beer, but did not sell it; that the furniture was for rest while they were drinking; and that the owner had given them permission to resort there.
The appellant’s testimony did not materially differ from his statements as related by the sheriff, except that he testified that no other person had ever been invited to the barn except the one who was with him at the time. He testified that he had never invited boys to the barn to drink; that the person who was with him at the time had furnished part of the money for the beer; and that the owner of the barn had given him permission to leave empty beer bottles there.
The court instructed the jury that if the appellant kept and maintained on the premises described a place where persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage, and if it was not his private dwelling house, he should be found guilty. The statute furnishes a rule of evidence in such cases, viz.:
“The finding of intoxicating liquors in the possession of one not legally authorized to sell the same, except in a private dwelling house not used in connection with a place of business, shall be prima facie evidence that such liquors are kept for sale or use in violation of law.” (Laws 1901, ch. 232, § 8, Gen. Stat. 1909, § 4396.)
It is insisted that the term “dwelling house,” as used in the statute, is not limited to the dwelling of the accused, but applies to any dwelling house, without reference to ownership. If that were the true construction a person might rent a part of the dwelling of another or occupy it without renting and maintain a drinking resort therein, and thus avoid the effect of the statute quoted. To sustain the contention that the barn in question should be treated as a dwelling house the appellant invokes the common-law rule that buildings within the curtilage are for some purposes considered parts of a dwelling house. The meaning of the term “curtilage,” as used in the statute defining burglary, was considered in The State v. Bugg, 66 Kan. 668, but it is not necessary now to consider the law on that subject; it has no direct application here. The appellant can not avoid the probative effect given by the statute to his possession of intoxicants merely by proof that they were in a barn adjacent to a house occupied by another as a dwelling. It is not claimed that the barn was appellant’s dwelling, nor was it shown what use the owner made of it. The question whether in construing this statute a barn should be considered as a part of the dwelling house, when used in connection with it by an owner or occupant of the dwelling when he is charged with an offense, is not now presented. Upon the facts shown in the evidence the instruction referred to was not erroneous. '
Complaint is made of other instructions, but reading the instructions together they are not erroneous. The instructions requested by the appellant, so far as they were proper, were given in substance by the court.
The charge in the information is that the appellant kept a place where persons “resorted” for the purpose named. The statutory prohibition is against keeping a place where persons “are permitted to resort” (Laws 1901, ch 232, § 1, Gen. Stat. 1909, § 4387) for such purpose. No objection was made to the information, and the evidence was pertinent to the offense as defined in the statute. The court, in instructing the jury, defined the offense in the language of the statute. The case was tried as it would have been had the precise words of the statute been used in the information. The appellant was in no way prejudiced, and the variance is immaterial.
The contention of the appellant that the evidence was not sufficient to sustain the verdict can not be upheld. It has been carefully examined and is found sufficient.
The judgment is affirmed. | [
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Per Curiam:
The city of Eureka caused a sidewalk to be constructed abutting upon the property of the appellee. A special tax was levied against the property and placed upon the county tax roll. The county treasurer was proceeding to collect this tax when the appellee commenced this action in the district court of Greenwood county and obtained a temporary injunction restraining the collection of such tax. Afterward the temporary order was made perpetual. The county-treasurer appeals to this court.
It appears from the record that the city had full power and authority to construct the sidewalk in question. There is only one irregularity pointed out in the action of the city. When the city clerk informed the county clerk of the amount of tax to be extended upon the tax roll for this sidewalk, $18.60 was added thereto' as a penalty. This was without authority and void as. to such amount. This excess tax might have been avoided if the amount justly due had been first paid.
Very little evidence was given, and in our view the demurrer to it should have been sustained. Nothing has been shown which can be said to be more than a mere slight irregularity, and this court has long held that an injunction will not be allowed to restrain the collection of a sidewalk tax unless it is void. (Parker v. Challiss, 9 Kan. 155; City of Lawrence v. Killam, 11 Kan. 499.)
The judgment of the district court is reversed and the injunction vacated at the cost of the appellee. | [
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The opinion of the court was delivered by
Graves, J.:
This action was commenced in the district court of Riley county by the appellee to recover from the appellants the value of a certificate of twenty-five shares of the Manhattan Building and Savings Association. The plaintiff recovered a judgment against the defendants, who represent the estate of C. P. Dewey, deceased, and they appeal to this court.
The certificate in controversy was issued by the association in the name of H. J. Barnhouse, at the request and in the lifetime of C. P. Dewey, who held the certificate and paid assessments thereon until his death; and the representatives of his estate afterward made the payments thereon until October, 1905. It is claimed by Barnhouse that C. P. Dewey intended to give the certificate to him and make all payments thereon until its maturity, as a recognition of the faithful service rendered by the plaintiff as an employee of Mr. Dewey for many years, and that such gift was completed; that at the time of his death Dewey was simply holding the certificate in trust. for the purpose of conveniently carrying out his original intention.
The defendants claim that the rules of the association did not permit the holding of more than twenty-five shares by one person, and that C. P. Dewey, to avoid this rule of the association, took a certificate in the name of Barnhouse, so that he could own more than twenty-five shares, but it was not his intention that Barnhouse should own them or have any interest therein.
The facts relied upon to establish the gift are, briefly stated, substantially as follow: C. P. Dewey was a man of large means, residing in Chicago and managing an extensive business at Manhattan, Kan. H. J. Barnhouse had been an employee of Dewey for 'several years. On May 21, 1900, Dewey purchased the certificate in question, saying to the secretary of the association in explanation for not taking it in his own name that he wanted to do something for Barnhouse. The certificate was delivered to Dewey by the secretary, and Dewey gave a receipt to the secretary, signed “H. J. Barnhouse, by C. P. Dewey.” A pass book was delivered to Dewey with the certificate. The secretary explained that for convenience many shareholders left their pass books with him so he could credit payments therein when made, and in that way the pass book would show at all times the state of the account and would correspond with the books of the association and always be accessible to the shareholder. Dewey handed the pass book to Barnhouse, who was standing near, and he handed it to the secretary. Dewey kept the certificate. He also took a like certificate in his own name, one in the name of his son, and another in the name of C. T. Killen, now one of the executors of Dewey’s will, for all of which, except the one to his son, he gave receipts. Barnhouse came into the bank about the time the certificate taken in his name was handed to Dewey. From these facts, and the reasonable inferences which may be drawn therefrom, the question of gift must be determined.
The theory upon which the plaintiff relies is that Dewey intended to give the certificate to him, that the acts of Dewey while in the bank were such as under the law constituted a completed gift, and that Dewey afterward held the certificate as trustee for the plaintiff. The defendants insist that to constitute a completed gift the thing given must be actually delivered by the donor to the donee, or to some person for him; that, as Dewey never parted with the certificate, there was no delivery, and consequently no gift. The plaintiff concedes the law to be as the defendants claim, but insists that the facts and the legitimate inferences which may be drawn therefrom establish a sufficient delivery to constitute a completed gift. This case has been in this court before, and is reported in 75 Kan. 214. This question of delivery presented great difficulty at that time. Barnhouse contended in that action that Dewey was holding the certificate as trustee for him, but then, as now, there was no proof of a delivery except as stated. Dewey had never parted with possession. The case was reversed and sent back for a new trial. In speaking of this difficulty, as liable to be encountered in the new trial, the court said:
“Before a gift can be found in this case it must appear from the evidence that at sometime during the transaction in the bank Dewey determined to give the stock to Barnhouse, and instead of delivering it to the latter, although present, and presumably willing to receive and accept it, concluded to constitute himself the trustee of Barnhouse, and thereupon, as donor, delivered the stock to himself, as trustee, receiving and' accepting it as trustee for Barnhouse. Whether such delivery is shown by the evidence is a question of fact for the determination of the jury, and great care should be taken by the court, both in the admission of evidence and in its instructions, to have this question of delivery clearly presented to the jury, and thereby avoid mistake or misconception of the real merits of the inquiry.” (Dewey v. Barnhouse, 75 Kan. 214, 221.)
The jury, when the case was retried, returned special findings of fact upon this point which read:
“Ques. Did Charles P. Dewey, while in the bank, determine to give to Barnhouse the stock in controversy? Ans. Yes.
“Q. Did Charles P. Dewey, at the time of the transaction in the bank, conclude to constitute himself a trustee for Barnhouse? A. Yes.
“Q. Did Charles P. Dewey, as donor, deliver the said stock to himself as trustee, receiving it and accepting it for Barnhouse? A. Yes.”
The court, at the conclusion of the trial, not being satisfied with the findings of the jury, made findings of fact for itself, which in this matter were substantially the same as the findings of the jury, except fuller and more explicit. So far as the findings of the court are material upon this point, they read:
“ (1_) That prior to the 21st day of May, 1900, the plaintiff, H. J. Barnhouse, had been for many years the manager and confidential employee of the late Charles P. Dewey, and that during about the same period one Charles T. Killen had been the bookkeeper and confidential employee of the said Charles P. Dewey, and that there existed such friendly relationship between the said Charles P. Dewey and the said Barnhouse and Killen as to cause the said Charles P. Dewey to contemplate and finally determine to advance and better their conditioh by making them a gift of some substantial character, and that on the said 21st day of May, 1900, the said Charles P. Dewey had a conversation with George S. Murphey, the secretary of the corporation known as the Manhattan Building and Savings Association, and from said Murphey learned all of the requirements and conditions upon which a stock investment in said company could be made and the limitations of stock permitted under the by-laws of said association to be held by any one individual.
“ (2) That after considering the information derived from said Murphey as to the conditions and method of business transactions of the Manhattan Building and Savings Association, and considering his desires, long manifested, to favor and advance the interests of said Charles T. Killen and the plaintiff herein, H. J. Barn-house, the said Charles P. Dewey arrived at the intention then and there to make a gift to the said H. J. Barnhouse, and at the same time to the other employee, Charles T. Killen, each of a $2500 share interest in the Manhattan Building and Savings Association, intending at said time to give to the said parties such interest in said association, and so long as he should continue in that mind to pay into the said association each month the dues necessary to maintain said interest in the association.
“(3) That, carrying out said intent upon his part, he thereupon ordered the proper officers of the Manhattan Building and Savings Association to issue to said H. J. Barnhouse $2500 of the stock and the necessary pass book and contracts by which the said H. J. Barnhouse became the owner of a $2500 stock interest in said association, and that he manually delivered at said time to the said H. J. Barnhouse the pass book containing the receipt for the membership payment and the first five months’ payments upon said stock; and that later, when the certificate of stock was prepared by the proper officers of the association, the same being written in the name of H. J. Barnhouse, the said Charles P. Dewey receipted to the said building and savings association for the said stock in the name of H. J. Barnhouse, and as the agent of the said H. J. Barnhouse, as he did likewise for the stock prepared in the name of Charles T. Killen, and also for stock ■prepared for himself, and that at the time of so receipting for the said stock of the said Barnhouse and Killen he determined and concluded to constitute himself as the custodian, agent or trustee for the safekeeping of the said certificate of stock, and that thereafter he did keep said certificate of stock among his papers in his safety-deposit vault in Chicago, 111., up to the time of his death.
“(4) That said certificate of stock does not appear to have been in the manual possession of H. J. Barn-house at any time, further than that the same appears to have the signature of H. J. Barnhouse indorsed in blank on the back of said certificate; the purpose and reason of such indorsement is not made to appear or in any manner explained in this case, other than that the same was not done for the purpose of selling the same to C. P. Dewey, or any other person.”
Under these facts, found both by the court and jury,, we are unable to say that there is no evidence to support the conclusion that there was a completed gift of the certificate by Dewey to Barnhouse. It was, therefore, the property of Barnhouse.
It appears, however, that Barnhouse afterward assigned the certificate by indorsement in blank, and left it in the possession of Dewey, among whose private papers it was found after his death. It is claimed that the possession of such paper so indorsed is prima facie evidence of ownership, and that it must be presumed in the absence of evidence to the contrary that Barnhouse indorsed the certificate intending that such indorsement should perform the ordinary purpose of an indorsement, to wit, to transfer the ownership of the paper,, and that the title to the certificate thereby passed from Barnhouse to Dewey and has been his property since. In section 4817 of volume 4 of the second edition of Thompson on Corporations it is said:
“The usual and perhaps the more generally employed method of transferring shares of stock is by the delivery of the certificate with the assignment indorsed thereon, duly signed by the person named in such certificate. This is sufficient ordinarily to transfer the title of the original holder to the assignee. In other words, corporate stock is transferred ás to the parties, thereto by indorsement and delivery of the certificates.. It is a good assignment of shares of stock to deliver the stock thereof, with a blank transfer on the back, to' which the holder has affixed his name; and the party to-whom it is delivered is authorized to fill such blank indorsement. It has been said that the possession of certificates with a power to transfer them was prima facieevidence of title.”
This subject is fully discussed in the sections follow ing that just quoted. In the case of Culp v. Mulvane, 66 Kan. 143, the second syllabus reads:
“Under the statutes of this state the stock of a private corporation is subject to a valid transfer as between the grantor and grantee by a delivery of the certificate of such stock indorsed in blank, with a purpose thereby to make such transfer. Neither the formal transfer of such stock upon the stock book of the corporation nor the issuance of certificates to the purchaser is essential to the valid transfer thereof as between the parties thereto or those claiming under them.”
In the opinion is was said:
“Certificates of stock are frequently spoken of as securities, but they are not such, in the proper signification of the term. They have none of the characteristics of negotiable paper; they are simply paper evidences of the right of the holder to the interest in the corporation described in them. While they are nonnegotiable, in the ordinary acceptation of that term, yet they possess one of the attributes of negotiable paper, that of being assignable as between vendor and vendee, pledgor and pledgee, by simple delivery when properly indorsed, and when thus transferred pass the title to the extent intended by the parties thereto as between such parties, not only to the paper evidence of title, but to the shares of stock themselves. The authorities extend this rule no further. As against the corporation itself and third parties claiming rights under the corporation, of course this rule would not obtain. Indeed, it has been held that a provision in the governing statute, declaring that no transfer of corporate stock shall be valid for any purpose until such transfer shall have been entered on the books, must be limited in its application to the objects sought to be accomplished by the statute, which objects refer to matters growing out of the stockholder’s relation to the corporation and its creditors, and does not make invalid an unregistered transfer, as between vendor and vendee. (Johnson v. Underhill et al., 52 N. Y. 203.)
“The foregoing views are fully sustained by the dis cussion found in Thompson on Corporations, section 730, and Cook on Corporations, section 381.
“In Plumb v. Bank of Enterprise, 48 Kan. 484, this court has substantially taken the same view by approaching the proposition in a negative form. It is not to be denied that very respectable authorities hold the contrary view, but these are in the minority in number and, as it seems to us, hold the more unsatisfactory position.
“It is a matter of common knowledge that the constant practice of the commercial world is to pass title to stock in corporations, or impose thereon the burden of collateral obligations, by a simple passing from hand to hand of the indorsed paper certificates of stock. Vast volumes of business are transacted upon the faith that such transfer is perfectly good as between the parties thereto who act in good faith, without a formal transfer upon the stock register. We think it is, and so hold.” (p. 152.)
The case of Van Demark v. Barons, 52 Kan. 779, is to the same effect. In the case of Brittan v. Oakland Bank of Savings, 124 Cal. 282, it was held, as reported in a headnote in 71 Am. St. Rep. 58:
“It is a good assignment of shares of bank stock to deliver the certificate thereof, with a blank transfer on the back of it, to which the holder has affixed his name. The party to whom it is delivered is authorized to fill up the blank indorsement.” (p. 59.)
In the case of Parker v. Bethel Hotel Co., 96 Tenn. 252, it was said:
“A sale or transfer of stock, to be valid, need not be in writing. The certificate need not, in fact, be delivered. A transfer is-perfectly good, although the seller of the stock never had a certificate at all, and although no certificate is issued to the transferee. An indorsement on the certificate, while not necessary, is the preferable and most convenient form of transfer, because the same instrument then combines the evidence of the seller’s right to the stock and of his transfer to the purchaser. Lowell’s Transfer of Stock, §§ 43, 44.” (p. 283.)
In the case of Supply Ditch Co. v. Elliott, 10 Colo. 327, it was said:
“Certificates of stock are assignable, and pass from hand to hand by indorsement, as bills of exchange and promissory notes pass, and holders of such certificates are prima facie presumed to be the bona fide owners thereof, and an innocent purchaser thereof for value will hold them against the true owner, where the latter has placed it in the power of the assignor to perpetrate a fraud upon the innocent assignee, (p. 333.)
When these decisions are applied to the facts of this case the contention of the defendants does not seem to be unreasonable. The certificate in question was the property of Barnhouse and was being held in trust for him by C. P. Dewey, in whose possession it was. Why did Barnhouse assign it in blank and leave it with Dewey? What purpose consistent with the continued ownership of Barnhouse could such assignment serve? It must be remembered that the parties to this transaction were men of more than ordinary business capacity. Barnhouse had been the trusted employee of Dewey, and for years his business manager. It seems reasonable to presume that they understood the business effect of the indorsement when it was made, and intended it to have that effect. The indorsement was made in the handwriting of Barnhouse. The relations between these men were af riendly; it can not be supposed that either intended to mislead or deceive the other. The evidence shows that Dewey had for years taken deeds, mortgages and other instruments in the name of Barnhouse and other employees, temporarily, and then caused conveyances thereof to be made to himself. Was this such a transaction?
It does not appear that Barnhouse ever regarded this certificate as his property; he made no inquiry as to whether payments were being made upon it or not, and did not at any time manifest any concern about it, although he was discharged from Dewey’s employ ment more than a year before Dewey’s death. The conduct of both parties seems more consistent with the conclusion that the indorsement of Barnhouse was intended to effect a transfer of the certificate to Dewey than to accomplish any other or different purpose. The facts and the law seem to point to the same conclusion, and we think that, in the absence of proof to the contrary, it must be held that from and after the indorsement of the certificate by Barnhouse it became and continued to be the property of Dewey. This legal conclusion is the necessary result of the unexplained voluntary indorsement of Barnhouse, and is also the natural and reasonable inference to be drawn from the evidence. It follows that the judgment in favor of Barnhouse was erroneous, and it is reversed. | [
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The opinion of the court was delivered by
MASON, J.:
J. H. Mercer sued A. L. Morrison for a. commission upon the sale of real estate and recovered a judgment, from which an appeal is taken.
The defendant’s principal contention is that the evidence showed conclusively that the sale was not procured or influenced by the plaintiff. There was evidence that the buyer’s attention was first called to-the land by the plaintiff, who recommended its purchase ; that later he was again approached by him, and considered the proposition more favorably all the time, and at the time he met the owner “felt pretty favorably >of buying the place.” However, he did not see the land until he met the owner, who showed it to him, and the .sale was. completed without any further action on the part of the plaintiff, and without any reference being made to his connection with the transaction. The buyer testified that if he had not met -the owner when he did “the matter might have dropped from his mind. Under this evidence it was a fair question for the jury whether the sale resulted from the plaintiff’s efforts or .from the independent action of the owner after the first negotiations had been abandoned. The verdict must therefore be deemed conclusive on this point.
The plaintiff testified to an agreement that he should receive $1000 if he made a sale for $22,000. The defendant said that he had promised a commission of ■$1000 only in case he received $25,000. The court instructed the jury in substance that if they accepted the defendant’s version of the contract they might return a verdict for the plaintiff for four per cent of $22,000, which was the actual selling price. This instruction is complained of upon the ground that a promise to pay $1000 on a sale for $25,000 does not imply an agreement to pay a like percentage of the ■selling price if a buyer is accepted at a lower figure. ■Granting this, it does not follow that the judgment ■should be reversed. The verdict was for $1000, which conclusively'shows that the jury took the plaintiff’s view of the contract. If they had followed the defendant’s testimony they would necessarily, under this instruction, have placed the amount of recovery at $880. An erroneous instruction is not ground of reversal where it is clear that the jury did not act upon it. (C. K. & W. Rld. Co. v. Parsons, 51 Kan. 408; Whitney v. Brown, 75 Kan. 678; 4 Enc. L. & P. 503.) Usually where this principle has been applied the fact of non-prejudice has been shown by a special finding, but the general verdict may be equally effective for the pur pose where, as in this instance, the sum allowed shows how the jury resolved a controversy in the evidence, ■and amounts to a special finding on the subject.
■ The appellee has filed a counter abstract. We find, however, that the appellant’s abstract sets out, in a properly condensed form, all the matters necessary for the determination of the questions presented. Some testimony was omitted, but so far as.otherwise important it was merely repetition, and therefore could not aid in deciding whether there was any evidence to ■support the verdict. Not all of the charge to the jury was printed, but so much of it as related to the questions here at issue was set out in full.
The judgment is affirmed, but costs will not be allowed for printing the counter abstract. | [
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Per Cwñam:
The only contention in this case is that the verdict and judgment rendered are contrary to the unccntroverted testimony in the case; in other words, that there is no conflict in the evidence. We have read the evidence, and find that there is a sharp conflict as to the representations made which induced the giving of the orders for the goods in question. The appellants claim that there is no conflict in the evidence — that is, of evidence legally admissible, the order for the goods being in writing. We can not sustain this view, and the judgment is therefore aifirmed. | [
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Per Curiam:
Under the decision in Van Hall v. Goertz, 82 Kan. 142, the appellant’s tax deeds are unassailable. Therefore the judgment of the district court is reversed, arid the cause is remanded. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought on July 1, 1909,. by the appellee against the appellant as administratrix of the estate of Ann Wiseman, deceased. The three notes sued on were executed by Ann Wiseman on September 16, 1904, December 1, 1904, and May 1, 1905,. respectively, and each note was due one day after date. Ann Wiseman died December 31, 1905. The administratrix of her estate was appointed May 28, 1909. Judgment was rendered on the notes as prayed for, and the administratrix brings the case here.
It is contended on the part of the appellant that, if no relative or heir of the deceased procured the appointment of an administrator of the estate in fifty days after the death of Ann Wiseman, it was the duty of the appellee to secure such appointment,' and, as; more than three years and fifty days had elapsed after such appointment should have been secured by the appellee, that the action was barred by section 106 of the executors and administrators act. (Gen. Stat. 1868, ch. 37, §106, Gen. Stat. 1909, §3541). Section 106 reads as follows:
“No executor or administrator, after having given notice of his appointment as provided in this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within three years from the time of his giving bond.”
It will be observed that the limitation provided by this section runs expressly from the time the administrator appointed gives bond as such, and not from the time of the death of the debtor, nor from the time when the appointment of an administrator could have been procured on application of the creditor. This action was brought a little more than one month after the appointment of the administratrix, and before the expiration of five years from the maturity of the oldest of the three notes.
It has been repeatedly decided by this court that the creditor is entitled to the full five years to bring his action upon a promissory note, under section 17 of the code of 1909 (former Code, § 18) ; also, where the debtor dies during such five-year period, that the running of the statute will be tolled for fifty days after his death, during which time the creditor is not authorized to apply for the appointment of an executor or administrator. In Bauserman v. Charlott, 46 Kan. 480, however, it was intimated that the creditor might be entitled to a reasonable time after the lapse of the fifty days to apply for such appointment, during which time the statute would be tolled. In this case, however, the appellee did not need any tolling of the statute to bring the commencement of his action within the five years from the time of the maturity of the notes; he brought the action, as we have seen, very shortly after the appointment of the administratrix.
By the express provisions of section 86 (Gen. Stat. 1868, ch. 37, §86, Gen. Stat. 1909, §3521) of the executors and administrators act he had a right to establish his claim by the judgment of the court in which he brought the action.
The provision of section 12 (Gen. Stat. 1868, ch. 37, § 12, Gen. Stat. 1909, § 3447) of the executors and administrators act, which in effect debars the creditor for fifty days from moving to secure the appointment of an administrator, does not impose jipon him the duty of securing the appointment of an administrator or affect the limitation provided for in section 106. The limitation provided by section 17 of the code is held, in favor of the creditor, to be tolled during such time after the death of the debtor as there existed no one against whom an action could be brought, but, at most, not exceeding a reasonable time after the lapse of fifty days from the death of the debtor. The tolling of the statute is for the benefit of the creditor. He may move for the appointment of an administrator in fifty days after the death of the debtor. By failing so to move with reasonable promptness, he can not prolong the tolling of the limitation provided in section 17 of the code. (See Hanson v. Towle, Adm’r, 19 Kan. 273; Bauserman v. Charlott, 46 Kan. 480; Andrews v. Morse, 51 Kan. 31, 33; Kulp v. Kulp, 51 Kan. 341; Wey v. Schofield, 53 Kan. 248; West v. Bank, 66 Kan. 524.)
The judgment of the court, being in accordance with the views herein expressed, is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiffs in these actions were-passengers on one of the defendant’s trains on the Kansas City division, between Paola, Kan., and Sedalia, Mo. No. 515 was a west-bound train, and No. 516 was. an east-bound train, between the cities named. These trains were known as mixed trains, and each carried, freight cars next to the engine, behind which were a. combination mail, baggage and express car, and a passenger coach. These trains run on regular time and are scheduled to connect at Paola with passenger trains for Kansas City, and stop at the platforms at stations, to receive and discharge passengers. They carry the mail and three-fourths of the passengers over that line, and have been so operated for thirteen years. The' only other trains upon that division are two night, freight trains, one running east and the other west.
The plaintiffs took passage on train No. 516 from Paola to Louisburg. Each had a round-trip ticket. Upon the demand of the agent at Paola, each signed a release limiting the liability of the company, as provided in chapter 274 of the Laws of 1907, for the trip to Louisburg. The conductor took up their tickets,, leaving to them the return coupons. On the return, passage upon train No. 515, while they were seated in the regular passenger coach with other passengers, the conductor took up the return coupons, and handed to. each of them a release of liability for the return trip, in the same form as those they had signed in going, and asked for their signatures. They refused to sign, whereupon the conductor informed them that they must do so or leave the train at the next station. They remonstrated, but the conductor persisted, saying that he had orders to enforce. Schwartz said: “All right; put me off and we will investigate.” At Somerset the train stopped at the platform and the conductor led Schwartz off the train. He then beckoned to Nye and said, “Come on”; but Nye refused to move, when the conductor took hold of his coat collar and pulled him into the aisle, and, as he still refused to move, pushed him to the door. The conductor then said, “Go on,” but Nye said “No,” and the conductor gave him a push. Nye’s foot slipped on the steps and he fell, straining his back. These circumstances are substantially as shown by the plaintiffs’ evidence. The conductor’s testimony was somewhat different, but upon the general findings for the plaintiffs their evidence must be taken as true.
The plaintiffs obtained a carriage and reached their homes at Paola after a journey of three hours, at an expense of fifty cents each. The round-trip tickets cost seventy-five cents each.
The plaintiffs sued for damages for being put off the train. A verdict was rendered for Nye for $400. By the special findings it appears that $100 of this was for • actual damages and $300 for exemplary damages. The verdict for Schwartz was for $205, of which $5 was for actual damages and $200 for exemplary damages. The •defendant appeals.
The first question presented is whether the train was a “freight train” within the meaning of chapter 274 of the Laws of 1907 (superseded by Laws 1909, ch. 190, Gen. Stat. 1909, §§ 7123, 7124). This statute requires railroad companies to carry passengers on “freight trains to which a caboose is attached,” upon a limitation of liability, except for willful negligence. It is insisted that this was a train such as the statute describes, as it included freight cars, and one of the coaches was used as a caboose. A caboose is a type of car generally well known, and clearly defined in the testimony. The train was regularly engaged in carrying passengers. Although freight cars were attached, it was still a passenger train in the sense that it was regularly engaged in that service, making connections, stopping at regular passenger platforms, and carrying mail and baggage, as well as passengers. Such trains are usual on branch lines, and it would be doing violence to the terms of the statute, as well as to common understanding and usage, to call such a mixed train a “freight train with caboose attached” within the purview of the statute. The right given by the statute to limit liability does not apply to such a train.
The remaining question relates to damages. It is contended that the facts do not warrant exemplary damages, and that the instruction permitting such recoveries was therefore erroneous. The conductor resorted to no harsh or abusive conduct, and there was nothing in the manner or means by which he enforced the order to warrant such damages. The question remains, however, whether the defendant incurred a liability to pay such damages by issuing the order and causing it to be enforced. Exemplary damages may be awarded when a wrong has in it the element of negligence which is gross or wanton or willfully oppressive. (Railroad Co. v. Little, 66 Kan. 378.) Damages for the inconvenience and humiliation suffered are actual rather than exemplary. (Dalton v. Railroad Co., 78 Kan. 232; Railroad Co. v. Little, supra.) If the defendant made this rule after a reasonable examination of the statute, and upon an honest belief that the-train in question was a freight train within the meaning of the law, and that it therefore had the right to demand a release from passengers upon such a train, its con duct in making and enforcing the order can not be held to be wanton, grossly negligent or willfully oppressive. On the other hand, if there was no reasonable ground to interpret the statute as applying to such a train, then the promulgation and enforcement of the rule might be found willfully oppressive or grossly negligent. The opinion of the court is that it must be presumed, in the absence of proof to the contrary, that the regulation was made upon an honest, although mistaken, interpretation of the statute, and that exemplary damages ought not to have been awarded.
The finding of $100 actual damages in the case of Nye must be sustained. There was testimony that he suffered personal injuries from the wrongful expulsion. The extent of such injuries and the resulting damages, were matters for the jury to determine.
The judgments will be modified. In the case of Nye the recovery must be reduced to $100, and in the case of Schwartz the recovery must be reduced to $5, and the causes are remanded for such modifications. | [
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Per Curiam:
The demurrer to the evidence was properly overruled. There was no defect of parties. The defendant relies upon Railway Co. v. Hucklebridge, 62 Kan. 506, where it was held that the plaintiff could not recover in the action because it appeared that the claim sued upon belonged to a partnership. The controlling fact in that case was the agreement between the plaintiff and the witness to share the profits and the losses, which it was held constituted them partners. In this case the evidence clearly shows that there was no partnership, but merely an arrangement for a division of the net commission on one class of sales, in lieu of office rent and advertising. The case falls within the principle declared in Shepard v. Pratt, 16 Kan. 209, that a sharing of the profits is not always conclusive evidence of a partnership. That circumstance here is overborne by other controlling facts.
The judgment is affirmed. | [
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The opinion o£ the court was delivered by
O’Connor, J.:
This is a direct appeal in which the defendant, Wayne “Bo” Martin, although charged with first degree murder, was found guilty by a jury of murder in the second degree (K. S. A. 21-402). A motion for new trial was overruled, and defendant was sentenced to the penitentiary for a term of not less than twenty years nor more than forty years.
The offense of which defendant was convicted occurred May 2, 1967, at the Kansas State Penitentiary where both defendant and the victim, Ronald C. Woods, were inmates. The prosecution’s evidence disclosed that ill feeling had apparently developed between the two as a result of their relationship with a mutual friend, William D. Gibson. Originally, Gibson had been a cell mate of the deceased until being placed in the segregation and isolation building, at his own request, for protective custody. Upon his release, Gibson moved in with the defendant for two or three weeks, but at the time of the homicide was sharing a cell with one George Szopenski. The fatal assault took place just outside Gibson’s cell. According to Gibson and another inmate, Harold Walker, the defendant, with Szopenski’s help, stabbed Woods numerous times with a French knife that had been “reworked.” It was stipulated at trial that Woods died the following day (May 3, 1967) from “feloniously inflicted stab wounds.”
The questions presented in this appeal pertain to (1) admissibility of evidence; (2) pretrial production and inspection of articles in possession of the state; and (3) sufficiency of the evidence to support the verdict.
Defendant first complains that certain exhibits — a knife and three articles of defendant’s clothing — were admitted into evidence without proper foundation. The point is completely devoid of merit. Both eyewitnesses (Gibson and Walker) positively identified the knife as the murder weapon. Further, Gibson testified that about a month before the stabbing he had sewn the knife in a pillow, at defendant’s request. With respect to the articles of clothing, the record discloses defendant was taken to the guard office the day following the assault and the T-shirt, white trousers, and shoes he was wearing were removed and taken to the laboratory of the State Board of Health for examination. The chief serologist testified that tests revealed the presence of human blood on the left shoe and on the trousers. The articles of clothing were clearly relevant in view of the multiple lacerations suffered by the victim and his profuse bleeding at the scene of the stabbing. This evidence, although circumstantial in nature, directly linked the defendant with the crime.
The identity of the knife and clothing was sufficiently certain to warrant admission of these exhibits into evidence. As a general rule, physical objects connected with, or which serve to unfold or explain a criminal act are admissible. The weight and value of such evidence, however, is a matter for assessment by the jury. (State v. Joseph Little, 201 Kan. 101, 439 P. 2d 383; State v. Hill, 193 Kan. 512, 394 P. 2d 106.)
Defendant also contends there was prejudicial error in the trial court’s admitting photographs of the deceased’s body. The argument is advanced that in view of the stipulation at tidal as to the cause of death, the only purpose of the photographs was to inflame and prejudice the jury. We cannot agree. The photographs, although not included in the record, were used by the attending physician to describe the various wounds he found at the time surgery was performed before the victim died. The pictures, without question, tended to corroborate the medical testimony in regard to the severity of the wounds and the violent nature of the crime. For these purposes they were clearly relevant and material. (State v. Johnson, 201 Kan. 126, 439 P. 2d 86; State v. Booker, 200 Kan. 166, 434 P. 2d 801, [cert. den. 391 U. S. 965, 20 L. Ed. 2d 879, 88 S. Ct. 2031]; State v. Zimmer, 198 Kan. 479, 426 P. 2d 267 [cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298].)
A further complaint by defendant is that he was denied pretrial production and inspection of physical evidence (the knife and articles of clothing) in possession of the state. Ordinarily, an application by the accused to inspect articles in the state’s possession which are relevant to the charge is addressed to the discretion of the court, whose ruling will be set aside only upon a showing of an abuse of discretion. (23 C. J. S. Criminal Law §955 ( 2); Anno. 7 ALR 3d 8, 163.) Other than the bald assertion of prejudice, defendant has failed to demonstrate in what manner his substantial rights were affected by the denial of his motion. Defendant’s further assertion that he and his counsel were denied the opportunity to interview the witness Gibson prior to trial is not supported by the record and likewise is untenable.
A question is raised about the suppression of evidence by the state because some photographs of the scene of the crime were not produced at trial. We were told at oral argument that the alleged photographs apparently were lost, and thus neither side was able to make use of them. Again, no prejudice is indicated inasmuch as two photographs of the same general area were introduced and admitted as “joint” exhibits.
As a final point, defendant claims there was insufficient evidence to support the verdict because the prosecution’s case was bottomed entirely on the testimony of Gibson and Walker, who, according to defendant, were unworthy of belief. The argument completely overlooks the cardinal rule that the finder of fact, rather than the appellate court, weighs the testimony and passes upon the credibility of witnesses. There was overwhelming evidence which, if believed by the jury, established defendant’s guilt beyond any reasonable doubt. (See, State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44.)
We find nothing in the record approaching reversible error. The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
May voluntary overpayments of child support be applied to the payment of unpaid and past due installments of alimony? We hold under the circumstances which attend, they may not, and reverse the judgment of the district court.
The parties will be referred to as they appeared in the district court.
The plaintiff and defendant were divorced on August 9, 1963, and the care and custody of their fifteen-year-old daughter, Rochelle, was awarded to the defendant. In awarding child support, the district court ordered,
“. . . that the plaintiff pay to the Clerk of this Court as and for the support of said minor child the sum of $150.00 on or before the 5th day of each calendar month hereafter until such child shall become 21 years of age or the court shall hereafter otherwise order.”
Permanent alimony was awarded the defendant in the lump sum of $18,000 payable in installments, and in the words of the court,
“. . . at the rate of $300.00 to the Cleric of this Court on the 5th day of each calendar month hereafter until paid.”
On September 20, 1963, the district court modified the installment payments of alimony, as follows:
“The sum of $18,000 payable at the rate of $214.00 per month for a period of seven years to the Clerk of this Court on the 5th day of each calendar month hereafter until paid.”
And it further ordered,
“. . . that of the money paid into the Court for child support and alimony that the first $214.00 shall be deemed to be alimony, the balance shall be deemed to be child support. These orders to be effective Sept. 20,1963.”
On February 7, 1964, the district court modified the child support order and directed that:
“. . . All future payments of child support should be at the rate of $120.00 per month.”
There were no further modifications of the court’s orders concerning alimony and child support, either in the manner of payment, or the amount to be paid.
On May 17, 1968, a praecipe for execution was filed and an execution was issued against the plaintiff for $18,000 alimony and due and unpaid child support. The execution was returned on June 17,1968, endorsed “No Goods.”
On May 24, 1968, the plaintiff filed a motion requesting the court to fix and determine the amount of alimony owed to the defendant. He alleged he had paid to the clerk of the district court a total of $9,387.33 which should be applied to alimony awarded to the defendant, and further alleged he had paid $7,508.19 as child support for Rochelle, and attached a report of money paid by him directly to her, or to others on her behalf.
On June 28, 1968, the district court heard the plaintiff’s motion with respect to payments made by him to Rochelle. After hearing evidence and argument of counsel, the court found that Rochelle attended college for four years, and during the period from May 6, 1964, and ending on her 21st birthday in May, 1968, when she was graduated, the plaintiff made payments totaling $7,508.19 directly to Rochelle, or to others on her behalf, and not through the clerk of the district court. The court adjudged that the amount of money paid directly to Rochelle be credited to child support theretofore ordered paid to her from time to time.
On July 26, 1968, the plaintiff’s motion of May 24, 1968, was further heard by the district court to determine the amount of alimony owed to the defendant. At the hearing, the parties agreed the total child support ordered by the court to be paid by the plaintiff for the support of Rochelle from August 9, 1963, until she became 21 years of age, was $7,080. They further agreed that the total amount of alimony which accrued and became payable upon the $18,000 alimony judgment in favor of the defendant from August, 1963, to June 30, 1968, was $12,769.33. After hearing evidence and argument of counsel, the court found that during the period commencing August 12, 1963, and ending June 30, 1968, the plaintiff made payments of alimony and child support through the clerk’s office in the amount of $8,887.33.
The court made further findings of fact, conclusions of law, and entered judgment as follows:
“5. Under the order of the Court dated September 20, 1963, the first $214.00 paid by the plaintiff on said judgments shall be deemed alimony and the additional shall be deemed child support. In equity and justice the payments made by plaintiff, whether to the Clerk of the Court or to Rochelle Ediger shall be deemed as payments on such judgments in accordance with said order. The overage in payments, if any, should be applied one-half to the alimony judgment and one-half to the judgment for child support. The order of this Court made on June 28, 1968, in so far as it conflicts with this finding is set aside and vacated.
“6. After making such application of payments, plaintiff is entitled to total credits of $16,395.52 upon said judgments in favor of the defendant totaling $25,080.00 and there is a balance of $8,684.48 on said judgments still to be paid by the plaintiff to defendant. The remaining amount due upon the defendant’s judgment for child support is $2,272.71 of which $2,272.71 is in arrears as of June 30, 1968. The remaining amount due upon defendant’s judgment for alimony is $6,411.77 of which $1,181.10 is in arrears as of June 30, 1968.”
The effect of the district court’s judgment was to allocate or credit approximately $5,000 theretofore paid as child support by the plaintiff to past due and unpaid installments of alimony, which thereby deprived the defendant of that much of her judgment for alimony which was in arrears.
It has been the contention of the defendant throughout this litigation that of the payments made by the plaintiff through the clerk of the district court, the first $214 per month should be applied to alimony, and the balance should be applied to child support, and that when the total of plaintiff’s payments of $8,887.33 [as found by the district court] are applied pursuant to the court’s order of September 20, 1963, the sum of $6,554.84 was paid as alimony, and the sum of $2,323.49 was paid as child support to and including June 30, 1968, leaving an arrearage of alimony of $6,214.49.
The defendant further contends that if the total of payments made directly to Rochelle, or to others on her behalf, may be applied as a credit on the court’s order for child support there results an overpayment of child support in the amount of $2,751.68, and argues that such overpayment was voluntary and in effect a gift or gratuity to Rochelle and, in any event, may not be applied upon past due and unpaid installments of alimony.
It frequently occurs that a father who is ordered to pay child support through the clerk of the district court fails to comply with the order for periodic payments, but makes payments in some manner directly to the minor child or children for their welfare and benefit. There appears to be conflict of authority as to whether a divorce court has the jurisdiction to credit the arrearage of a child support judgment with payments made by the father directly to minor children, or to others on their behalf. Generally speaking, the father is required to make child support payments as directed by the court in the divorce decree, and he should not be permitted to vary the terms of the decree to suit his convenience or otherwise disregard the court’s order. (Bradley v. Fowler, 30 Wash. 2d 609, 192 P. 2d 969, 2 A. L. R. 2d 822; Roach v. Oliver, 215 Iowa 800, 244 N. W. 899; Harbour v. Harbour, 313 S. W. 2d 830 [Ark.]; Campbell v. Campbell, 223 Ky. 836, 4 S. W. 2d 1112; Newton v. Newton, 202 Va. 515, 118 S. E. 2d 656; Fearon v. Fearon, 207 Va. 927, 154 S. E. 2d 165; Wills v. Glunts, 222 Ga. 647, 151 S. E. 2d 760.) In Bradley v. Fowler, supra, it was said:
“. . . If, under such a decree as we have here before us, the father could refuse to make the payments required of him and, in an attempt to justify such refusal, show that he had expended certain sums of money on his children ... it is evident there would be continuous trouble and turmoil. If a party to such a decree is not satisfied with its provisions relative to the custody of the children, or payments required to be made for their support, such party may always come.into court and ask for a modification of the decree.” (1. c. 620.)
In Wills v. Glunts, supra, it was said:
“. . . To permit him to increase the amount of the monthly payments fixed by the decree at one time, discontinue them at another and require an adjustment of the differences in the future could and most likely would result in injury and serious disadvantage to his children. Decrees for child support should be strictly complied with and credit should not be allowed for over-payments voluntarily made. This is based on the principle that such over-payments are gratuities for which the children should not be required to account . . .” (1. c. 649.)
This court has expressed the view that where a district court assumes jurisdiction to determine a father’s claim for credit on arrearage of child support in the form of voluntary payments made in summer months when there was no obligation to pay under the order, and there was no showing in the record that they were to be applied on payments he was obligated by the order to make, it was error to allow him credit for such payments as an offset against those which were due and unpaid. (Hains v. Hains, 187 Kan. 379, 357 P. 2d 317.) Such extra money paid in the summer months was deemed to be gratuitous and in effect a gift. See Koons v. Koons, 190 Kan. 65, 372 P. 2d 62.
On the other hand, there are numerous decisions where courts have held that special considerations of an equitable nature may justify a court in crediting voluntary payments in the child’s behalf, where such payments, although made in variance with the requirements that they be made through the clerk of the district court, constitute a substantial compliance with the spirit and intent of the child support order, and can be done without injustice to the mother. (Jackson v. Jackson, 306 Ky. 715, 209 S. W. 2d 79; Schlom v. Schlom, 149 Miss. 111, 115 So. 197; Mooty v. Mooty, 131 Fla. 151, 179 So. 155; Mason v. Mason, 148 Ore. 34, 34 P. 2d 328; Briggs v. Briggs, 178 Ore. 193, 165 P. 2d 772; State ex rel. Meins v. Sup’r Ct., 159 Wash. 277, 292 Pac. 1011.) See, also, 27B C. J. S., Divorce, §321 (1), p. 636. The question of what constitutes substantial compliance differs of course upon the circumstances of each individual case; and it is to be noted that in many cases where courts have assumed jurisdiction to determine the merits of the father’s claim, credit for voluntary payments has been denied. (2 A. L. R. 2d 831, 833, Anno.)
The latter group of authorities holding that courts have basic jurisdiction to credit arrearages when equitable principles demand it, tend to fall under one general consideration, namely, the implied or apparent consent of the mother who occupies the position of parent-trustee, to the payment of support money in a manner other than as ordered by the district court. In Briggs v. Briggs, supra, it was said:
“In view of the apparent consent of the plaintiff and the equities of the situation, the defendant will be allowed credit against his accrued indebtedness for the support of the children in the sums of $900 and $660 being the amounts which he should have paid to the plaintiff, during the time the children were in college, under the terms of the decree . . .” (1. c. 207, 208.) (Emphasis supplied.)
In Mooty v. Mooty, supra, it was said:
“In our effort to do substantial justice as between the parties, we believe the lower court should have allowed the expenses of the daughter paid by the appellant while a student at college to be applied as against the item of $752.50 for support and maintenance of the children, and for his failure or omission so to do this portion of the decree appealed from is reversed.” (1. c. 157.)
In 24 Am. Jur. 2d, Divorce and Separation, § 872, p. 992, it is said:
“. . . Where children attend college with the consent of their mother, and their father pays sums to the college or to the children for the payment of college and living expenses which substantially exceed the sums due under the divorce decree, the court may give him credit for the payments of the installments of child support falling due while they attend college.”
However, even a court of equity, in an effort to do equity, is not justified in offsetting against due and unpaid child support payments required to be made under a divorce decree, the father’s voluntary payments made directly to the daughter while she was a student at college which exceeded the amount required to be paid for her support under such order. (Mooty v. Mooty, supra.) Certainly there is nothing in the law which prevents a divorced father from being more generous in providing for the support and education of his daughter than the court has ordered.
In the instant case, the decree of divorce did not provide for, and it is apparent the parties did not contemplate at that time, the additional expense of a college education for Rochelle. The plaintiff, appreciating the advantages of a college education, made the necessary financial sacrifices, and Rochelle was graduated from college. If a credit or offset is allowed for monies paid directly to Rochelle while she was in college, as against child support ordered to be paid for her support and maintenance, now shown as due and unpaid, it is apparent to us there would be a substantial compliance with the spirit and intent of the order of support, and at the same time, there would be no manifest injury to the defendant.
In view of the apparent consent of the defendant that Rochelle attend college, which would necessarily require more financial aid than $120 per month allowed by the court for her support and maintenance, and considering the equities of the situation, we are of the opinion the district court correctly concluded on June 28, 1968, that plaintiff’s payments made directly to Rochelle while she was a student at Kansas State University, were properly credited against due and unpaid child support payments, and that it erred when it applied only one-half of the total of such payments, together with other moneys paid by the plaintiff through the clerk of the court, to due and unpaid child support installments. Applying the total of those payments to the total amount due under the child support order, the plaintiff has satisfied the purposes for which that order was made and is entitled to be relieved from making further payments thereunder, and has paid an excess of $2,751.68 which must be regarded as voluntary and in effect a gift or gratuity to Rochelle.
The defendant vigorously urges the district court erred in applying the amount of $2,751.68 against the arrearage of her judgment for alimony. As indicated, the parties agreed that there was $12,-769.33 due and unpaid on the defendant’s judgment for alimony as of June 30, 1968. When the court’s order of September 20, 1963, is applied to the total of the monthly payments the plaintiff made through the clerk of the district court in the sum of $8,887.33, $6,554.84 was paid as alimony, leaving a balance of $6,214.49 due and unpaid on her judgment for alimony.
There is a distinction between alimony awarded to a divorced wife and support money for a child or children of the marriage (2 Nelson, Divorce and Annulment, 2d Ed. [Rev. volume], § 14.75, p. 102); the former is governed by statutory enactment (K. S. A. 1970 Supp. 60-1610 [c]), and the father’s duty to support his children naturally and properly is not suspended by the divorce of the parents. (27B C. J. S., Divorce, §321 [1], p. 630.) In Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437, this-court said:
. . á sum decreed to be paid to a mother for the support of a child whose custody is awarded, to the mother is a distinct thing from alimony awarded to a wife in a divorce action . . .” (1. c. 665, 666.)
Alimony is an allowance for support and maintenance of the divorced wife, or, as has been said, a substitute for marital support. It is an allowance which a husband may be compelled to pay to his former wife for her maintenance after there has been a divorce. (Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804; Garver v. Garver, 184 Kan. 145, 334 P. 2d 408; 24 Am. Jur. 2d, Divorce and Separation, § 514, pp. 640, 641.) Alimony is awarded not as a penalty, but as a substitute for the husband’s duty to provide his former wife with adequate support.
On the other hand, payments ordered to be made for child support rest on statutory and parental relationship and are for the support, maintenance and education of minor children of divorced parents. A divorce decree giving the mother custody and monthly allowances “for the support” of minor children of the marriage cannot be construed as an award of permanent alimony. (Hyde v. Hyde, supra; Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409.) However, the mother, having custody, is a parent-trustee and has the obligation and right to say how and in what manner the funds paid for child support shall be spent.
Divorce ends the marital relationship and a judgment for permanent alimony is a final determination of the rights of the parties with respect to alimony. There is no need here to further pursue the effect of such an award as now prescribed in K. S. A. 1970 Supp. 60-1610 [c]. Child support ordered paid by the final decree may be modified whenever circumstances render such change proper, but the modified order operates prospectively, and, whether modified or not, past due installments become final judgments as of the dates due and may be collected in the same manner as other judgments. (Brieger v. Brieger, 197 Kan. 756, 421 P. 2d 1.) Likewise, due and unpaid installments of alimony awarded to the wife by a final decree, become a vested right and become final judgments, and may be collected as other judgments of courts of record in this state. (Edwards v. Edwards, 182 Kan. 737, 743, 324 P. 2d 150; Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Sharp v. Sharp, 154 Kan. 175, 177, 117 P. 2d 561.) Final judgments for alimony and for child support are distinct and separate judgments and payment of one does not result in the payment of the other.
The district court’s judgment in this case did not modify alimony awarded the defendant in the total amount of $18,000, but applied voluntary payments made by the plaintiff in the form of child support to the due and unpaid installments of alimony. That was error. It is clear under the record that payments made directly to Rochelle were not payments of alimony made to the defendant. Such payments did not reduce the defendant’s judgment accruing each month under the order of the court requiring the plaintiff to pay installments of alimony.
As indicated, a sum ordered to be paid for child support is a distinct thing from alimony awarded to a wife in a divorce case, and voluntary payments which would satisfy the court’s order for child support, do not build a reserve which may be applied upon the wife’s judgment for alimony. (27B C. J. S., Divorce, §321 [1], pp. 636, 637.) We are of the opinion the district court erred in concluding there was an arrearage of only $1,181.10 due on the defendant’s judgment for alimony as of June 30, 1968, when the correct amount should have been $6,214.49.
The judgment of the district court is reversed with directions to enter judgment in accordance with the views expressed in this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action for personal injuries received in an automobile accident which occurred on July 28, 1963, in Wyandotte County, Kansas, wherein the plaintiff sued the defendants, Wayne W. Jones d/b/a AAA Home Trailers and Willard D. Hixon, the driver of an automobile involved. In the lower court Hixon was never served with summons and made a party to the lawsuit. A separate trial to a jury on the issue of agency resulted in a jury verdict on February 7, 1967, finding Hixon to be the agent of Jones at the time the collision occurred. Thereafter a second trial to a jury on the remaining issues resulted in a verdict against the defendant Jones in the amount of $8,000 on November 6, 1968. Jones has duly perfected an appeal to this court.
The determinative question on appeal is whether the record discloses sufficient evidence to support the jury’s finding that Hixon was the agent of Jones at the time the collision in question occurred.
The accident occurred at 12th and State Avenue in Kansas City, Kansas, between a 1954 Chevrolet automobile driven by Willard D. Hixon and a 1962 Ford Falcon driven by Lloyd Hughes. Cíete M. Hughes (plaintiff-appellee) was a passenger in the Falcon automobile and the wife of Lloyd Hughes. The accident resulted from defective brakes on the 1954 Chevrolet, causing Hixon in the emergency created to swerve left across traffic proceeding in the opposite lane in an attempt to get off the street. A more detailed statement of the facts concerning the accident is not material to this appeal, except to note negligence on the part of Hixon was established by the evidence.
The facts giving rise to this case are rather involved. Wayne W. Jones (defendant-appellant) sells mobile homes at 4848 State Avenue, Kansas City, Kansas. In 1963 Jones was a licensed used car and mobile home dealer. At that time one license covered both occupations. In July, 1963, Roy Combs, a salesman for Jones, negotiated with Richard Patchen for the sale of a mobile home. Jones did not participate in the actual negotiations and did not talk or meet with Patchen until after the accident. As a salesman Combs was authorized to negotiate for the sale of a mobile home and enter into a written agreement with the purchaser.
The negotiations between Patchen and Combs resulted in an agreement whereby Patchen was allowed $300 for two automobiles, a 1953 Pontiac and a 1954 Chevrolet, as a down payment on a mobile home. Thereupon the parties entered into a written agreement dated July 27, 1963, entitled “Customer’s Order for Mobilehome.” The document describes a 1954 Magnolia mobile home thirty-eight feet in length and eight feet wide sold to Richard R. Patchen for the sum of $1,475. The initial down payment was shown as $300, and the unpaid balance together with the sales tax and insurance was to be paid in monthly installments over a period of thirty-six months in the sum of $46.24 each, beginning September 10, 1963. Specific terms written into the contract read as follows:
“1. Dealer agrees to deliver and set up trailer.
“2. Purchaser agrees to deliver 1954 Chevy and 1953 Pontiac to dealer.
“3. Dealer warrants equipment in trailer to work when delivered otherwise as is.” (Emphasis added.)
At the bottom o£ the customer s order Patchen and his wife signed the agreement, and Roy Combs signed for AAA Mobile Home Co., Dealer. Under the signature of Combs is typed the words, “Approved Subject to acceptance by bank or finance company.”
On the reverse side of this document it is headed, “Additional Terms and Conditions.” At the top of this page over the heading it states, “This agreement is for the protection of both parties. No changes permitted!” (Emphasis added.) The material portion of the document concerning the additional terms then reads:
“It is further understood and agreed:
“The order on the reverse side hereof is subject to the following terms and conditions all of which have been mutually agreed upon:
“1. The purchaser agrees to deliver the original bill of sale or the title to any used car, mobilehome, trailer or vehicle traded in as partial payment, along with the delivery of the said propeHy to dealers premises, and does warrant that such car, mobilehome, trailer or vehicle to be his property, free and clear of all liens and encumbrances except as otherwise noted on the face of this instrument.” (Emphasis added.)
At the bottom of this page the contract reads:
“This agreement contains the entire understanding between us and no other representation or inducement, verbal or written, has been made which is not set forth herein.”
After the foregoing contract was signed by the parties, Patchen testified: “Combs said we had a deal, and it was my understanding it was a firm contract.” Patchen then testified:
“Q. What arrangements were made at that time for you to get the cars over there to Triple A?
“A. As I started to leave, why, this salesman asked me if I could find somebody to bring them over, that they was busy and couldn’t get away to come over after them.
“Q. And what did you say to that?
“A. I told him no, that I didn’t have no license tags and I couldn’t drive them without tags.
“Q. What did he offer to do then?
“A. Then he said — he went and got a dealer’s tag and said to go ahead and use it, to have somebody bring it over.
“Q. Both cars, the Chevy and the Pontiac?
“A. Yes, just one dealer’s tag but, you know, change it.
“Q. Did he want you to follow the man over, is that it, and take him home?
“A. Yes. See, I had to get somebody to drive them over and me follow them so they would have a way back.
“Q. But do I understand it, you were doing this at the request of Mr. Jones of AAA?
“A. Well, of AAA. He was there when the salesman give me the tags.
“Q. Mr. Jones saw Mr. Combs, the salesman, give you the tags?
“A. Why I don’t see how he could have kept from it.
“Q. And he overheard the conversation that you were going to arrange for someone to bring the cars over to them?
“A. Yes, he was — he was sitting there. I couldn’t definitely say he heard him, but he was there.”
According to Patchen, he could not find anyone to drive the two automobiles to Jones’ place of business on Saturday, July 27; but on Sunday, July 28, Patchen asked Willard D. Hixon to drive the cars over as a “favor.” According to Patchen, Hixon never asked to be paid and Patchen did not promise to pay him. Hixon, on the other hand, testified by deposition that Patchen was to pay him for taking the cars over.
Before starting on the trip Patchen and Hixon checked the cars over and did not find anything wrong. They checked the gas, oil and added some brake fluid, since the master cylinder on the 1954 Chevrolet was a little low. Hixon then delivered the 1953 Pontiac from Patchen’s place to Jones’ used car lot and was followed by Patchen who brought him back. The dealer’s tag of Jones was then taken from the Pontiac and placed upon the 1954 Chevrolet automobile and Hixon started driving it over to Jones’ place of business with Patchen following some distance behind. The accident occurred enroute but was not witnessed by Patchen. Because of the accident the purchase of the mobile home fell through, and Patchen never saw the 1954 Chevrolet after it was towed off. Jones had never seen the 1954 Chevrolet.
According to Patchen, Jones did not know Hixon was going to drive the two cars over to his place of business, and no arrangement had been made for Jones to pay Patchen for delivering these two automobiles.
Hixon in his deposition testified he did not know Roy Combs or the defendant, Wayne W. Jones, and he had never worked for either or had anything to do with AAA Home Trailer. Hixon never talked to Jones following the accident, and said she would not know Jones if he saw him.
Jones admitted in his testimony on cross-examination that his dealer’s tag was on the 1954 Chevrolet automobile involved in the accident; and that Combs had authority to sign the written document entered into between Patchen and AAA Home Trailers. He further testified:
. . Subject to the approval of Patchen’s credit application, the transaction was to be completed. I admit that three days following the accident I made the statement ‘We loaned him one of our dealer tags so that he could bring the Chevrolet to us.’ I had no knowledge prior to the accident that the dealer tags had been loaned. . . .”
On appeal the appellee asserts certain deposition testimony given by Jones which she contends was introduced on her behalf as an admission by Jones. In the deposition testimony of Jones, he said:
“A. Mr. Combs is my salesman.
“Q. (By Mr. Austin) And in making this transaction with Mr. Patchen, whatever he did, it was done in the scope of his employment, was it not?
“A. He was doing his duty, yes.”
The appellant objected to the offer of this statement on the ground the interrogation of Mr. Jones prior to making the statement above quoted did not specifically outline what they were talking about — whether it concerned negotiations between Combs and Patchen for the sale of the mobile home, or Patchen s employ of someone to deliver the two automobiles of Patchen to the used car lot for and on behalf of Jones. The trial court admitted this evidence over objection, stating:
“. . . Now, that doesn’t preclude you [the appellant] from attempting to show by other testimony or other parts of the deposition what was intended, but I think he has a right to read this to the jury.”
The theory upon which this case was submitted to the jury in the trial of this action on February 7, 1967, on the agency issue is stated in instruction No. 3. It reads:
“In order for plaintiff to hold defendant Jones liable for injuries she sustained in the collision here involved, plaintiff has the burden of proof to establish:
“(1) That Roy Combs directed Richard Patchen to deliver the 1953 Pontiac and the 1954 Chevy to the AAA Home Trailers place of business at 4848 State Avenue, Kansas City, Kansas, and authorized him to engage the services of some other person to assist in making such delivery.
“(2) That Roy Combs had the authority in his capacity as an employee of Wayne Jones, doing business as AAA Home Trailers, to direct Patchen to make such delivery and to authorize Patchen to engage the services of some other person to assist in making such delivery, and that Combs was acting within the scope of his authority as an employee of Jones when he undertook to make these arrangements with Patchen.
“(3) That Richard Patchen engaged Willard Hixon to drive the 1954 Chevy to the AAA Home Trailers place of business at 4848 State Avenue, Kansas City, Kansas.
“(4) That Willard Hixon was acting within the scope of his employment when the collision with the Hughes car took place.
“(5) That Wayne Jones had the right to control the physical conduct of Willard Hixon.”
The jury adopted the appellee’s theory on this issue and on the evidence submitted found Hixon to be the agent of Jones at the time of the collision here in question, and that Hixon was acting within the scope of his authority.
The instructions given to the jury on the trial of the agency issue are not challenged on appeal. Here the appellant asserts:
“The trial court erred in overruling defendant’s Motion for a Directed Verdict at the close of plaintiff’s case and at the close of all the evidence and defendant’s Motions for Judgment n. o. v. filed on February 7, 1967, and November 6, 1968, for the following reasons:
“A. The evidence was insufficient as a matter of law to establish that defendant was liable for the acts of Willard Hixon since there was no substantial evidence that Willard Hixon was the agent, servant or employee of the defendant Wayne W. Jones, or that Willard Hixon was operating the 1954 Chevrolet automobile on business for or on behalf of defendant Jones or acting in the course and scope of his employment with defendant Jones or that defendant Wayne W. Jones had any right to control the actions of Willard Hixon.”
In view of the jury’s verdict on the issue of agency, the foregoing facts taken from the record have been related in their most favorable aspect to the appellee, who was the prevailing party.
On the record presented it cannot be said the so-called admission made by Jones in his deposition relative to Combs’ authority constitutes an admission that Combs was authorized to direct Patchen to employ Hixon, or someone else, to deliver the two automobiles in question for and on behalf of Jones. Further review of the record on the issue of agency is not, therefore, precluded.
If there is any substantial evidence of an agency relationship existing between Jones and Hixon in the record, it must be found in the testimony of Patchen (the material portion of which has heretofore been quoted) because Combs was deceased at the time the agency issue was tried before a jury, and the trial court excluded his deposition testimony (another issue asserted by the appellant for reversal on appeal which we do not reach).
Under Kansas law the liability of a principal for the negligent acts of his agent is controlled by a determination as to whether, at the time in question, the agent was engaged in the furtherance of the principal’s business to such a degree that the principal had the right to direct and control the agent’s activities. (Karnowski v. Skelly Oil Co., 174 F. 2d 770 [10th Cir. 1949].) The liability is grounded upon the doctrine of respondeat superior. The power and control which the principal has over the agent is the primary factor to be considered. (Jacobson v. Parrill, 186 Kan. 467, 351 P. 2d 194; and 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 616, p. 166.)
In Rutkowski v. J. I. Case Threshing Machine Co., 126 Kan. 627, 270 Pac. 599, the court held the dealer involved was not responsible for the negligence of an expert, since the expert was selected and sent out by the defendant-manufacturer to set up a new combine and was paid by the defendant. In reaching this decision the court quoted the following from 39 C. J. 1269, 1270, with approval:
“ ‘To constitute the relation of master and servant for the purpose of fixing liability on the former for acts of the latter under the doctrine of respondeat superior, it is indispensable that the right to select the person claimed to be a servant should exist. Furthermore something more than the mere right of selection is essential to the relation. This right must be accompanied with the power and duty to control the alleged servant while in his employ; this, it is said, is one of the principal tests of the relation. ... It is also essential to the relation of master and servant that the right to remove for unskillfulness, neglect of duty, or other cause, should exist.’” (p. 631.)
In Restatement, Second, Agency, § 220, it is said:
“(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
“(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
“(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
“(f) the length of time for which the person is employed;
“(g) the method of payment, whether by the time or by the job;
“(h) whether or not the work is a part of the regular business of the employer;
“(i) whether or not the parties believe they are creating the relationship of master and servant. . . .”
Except for subparagraph (i) above, the foregoing portion of the Restatement of the Law of Agency was quoted and applied to the facts in Sims v. Dietrich, 155 Kan. 310, 124 P. 2d 507.
It is the appellee’s theory that Jones’ employee, Combs, solicited the services of Patchen to deliver two autmobiles to Jones’ place of business with the help of an undesignated person to be selected by Patchen and who ultimately was Hixon. The appellee argues the real key to right of control in the instant case is not that over Hixon directly, but that over Patchen, who secured Hixon’s services; and that not only did Jones have the right to control (citing Dobson v. Baxter Chat Co., 148 Kan. 750, 85 P. 2d 1), but that Jones actually exerted control over Patchen by Combs’ directions to Patchen as follows:
“1. That Patchen secured someone to help him drive the automobiles (with the implication of necessity that such person be a driver);
“2. That the automobiles be delivered to defendant Jones’ place of business;
“3. That defendant Jones’ dealer tags be used in transporting the vehicles.”
In the Dobson case the court sustained a personal injury judgment in favor of the plaintiff against the defendants, Baxter Chat Company, Vernon White and James White. The plaintiff was injured while a passenger in an automobile which collided with a truck owned by James White and driven by Vernon White, allegedly as the Baxter Company’s agent. The Baxter Company’s foreman hired James White with his truck to haul chat from a mine to a mill a few miles distant at an agreed price per ton paid by the Baxter Company. No directions were given to James White either as to the route to take, the manner of loading, the number of trips per day, or the time he should take in making the trips. On the date of the accident James White had rheumatism and secured the services of Vernon White to drive his truck, although no one connected with the Baxter Company suggested he do so. However, another Baxter Company employee, the shovel operator who loaded the trucks, knew Vernon White was driving the truck that day. On the day in question Vernon White, while on one of his trips between the mine and the mill, collided with the automobile in which the plaintiff was riding. The court held Vernon White was the employee of the defendant Baxter Company, pointing out that although the occasion did not arise for the exercise of control on this particular job, there was no indication the right of control was not there. In resolving the agency question the court pointed out that the Baxter Company had the same control over Vernon as over James. Among the authorities relied upon by the court was Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739, which the court quoted as follows:
“ ‘If a servant who is employed to perform certain work for his master procures another person to assist him, the master is liable for the negligence of the latter only when the servant had authority to employ such assistant.
“ ‘But this authority may be implied from the nature of the work to be performed, or from the general course of conducting the business of the master by the servant; and it is not necessary that there should be an express employment of the person in behalf of the master, or that compensation be paid or expected. It is enough to render the master liable if tire person guilty of the negligence was at the time in fact rendering service for him by his consent, express or implied.’” (p. 755.)
Here the analogy drawn by the appellee is that the Baxter Company’s shovel operator knew Vernon White was driving the truck that day, while in the instant case, it is argued, Combs not only knew someone must be secured to drive, but specifically directed Patchen to secure someone.
The difficulty with the appellee’s argument is in the relationship of Patchen to Jones. Combs, with whom Patchen was dealing, had fully completed the transaction by the signing of a written contract between Patchen and AAA Home Trailers. It was immediately after signing this contract that Patchen related the conversation he had with Combs as heretofore quoted.
The written contract entered into between Patchen and AAA Home Trailers was signed on behalf of Jones by Combs as an officer of the company. This contract is complete on its face, but subject to the approval of Patchen’s credit application. In the written agreement Patchen specifically agreed to deliver the 1954 Chevrolet and 1953 Pontiac to the dealer, Jones. The written contract recited the agreement was for the protection of both parties and that no changes were permitted. Further, it recited that the entire understanding between the parties was contained in the written agreement, and that no other representation or inducement, verbal or written, had been made which was not set forth in the agreement. (See Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 457 P. 2d 691.)
The contract in another provision further required Patchen to deliver the title to the 1954 Chevrolet and the 1953 Pontiac along with the delivery of these vehicles to the dealers premises. While Patchen had previously shown his evidence of title to these vehicles to Combs during the negotiations, the record discloses the certificate of title to the 1954 Chevrolet was not received by Jones through the mail until sometime after July 28, 1963. The certificate of title to the 1953 Pontiac was received by Jones on October 20, 1964. The title to the 1954 Chevrolet was in the name of Loren L. Gunnerson. On the reverse side of this certificate of title the assignment was attempted by the signature of Loren L. Gunnerson in blank without being notarized or dated.
The specific provisions in the written contract making it Patchen’s obligation to deliver the two automobiles to the dealer’s premises, and Patchen’s acknowledgment immediately after signing the written contract that he understood the parties had a firm contract, require the testimony of Patchen to be viewed in the context of the whole situation. In so doing it cannot be said the testimony of Patchen concerning the conversation he had with Combs, immediately after signing the contract, discloses an intention or an understanding between the parties to change the written contract, and the conversation does not rise to the dignity of a subsequent agreement modifying the terms of the written contract. It is only by inference from Patchen’s testimony that the appellee can take any solace in arguing that Jones assumed the obligation for delivery of the two vehicles to his premises. But in the face of the written contract, considering all of its terms and provisions in the context of the whole situation presented, the inference dissipates.
The fact the dealer’s license plate of Jones was on the 1954 Chevrolet at the time of the collision is not a controlling factor on the issue of agency.
This is illustrated in McCraner v. Nunn, 129 Kan. 802, 284 Pac. 603. There the defendant motor company argued that the driver of one of the vehicles involved in the collision was not its agent, and therefore, it was not liable under the doctrine of respondeat superior. Evidence established the driver was engaged in selling cars for the defendant company on commission. He had purchased an automobile from the defendant for which he paid cash, and which he used in the selling of cars. The business arrangement between the defendant company and the driver was that the driver should operate his own car in selling automobiles and was to receive six percent commission on the sales made. He was to receive in advance $25 per week, and when the sales were made he was to be paid the difference between the amount of the commission earned and the sum advanced. Furthermore, the driver was to be furnished oil and gas up to the value of $15 per month. A dealer’s license plate was attached to the driver’s vehicle. According to the driver who was a witness for the plaintiff, the defendant did not have a right to control the automobile he was operating, and he was allowed to hunt for his own prospects and go where and when he desired. On these facts, the court held the driver could not be regarded as an agent or employee of the defendant motor company.
While the evidence here is conflicting as to whether Patchen was to pay Hixon, there is no evidence that Jones was to pay Hixon, or that Jones was to pay Patchen. Hixon was selected by Patchen, and according to Hixon he was looking to Patchen for payment. This gave Patchen the power to tell Hixon what to dp and how to do it. Since Jones had not employed Hixon and was not paying him, it would be improper under the evidence to say that Hixon was the servant of Jones and under his control. Jones, either on his own behalf or through Combs, had no power or opportunity to exercise control over Hixon because Jones could not discipline or discharge Hixon; nor could he subject, advise, instruct or give an order to Hixon with any expectation that such an order or instruction would be followed. Having selected Hixon, Patchen was the only person who had the power and right to control Hixon. Patchen not only had the power and right of control, but he exercised control over Hixon when he made the decision that the 1954 Chevrolet was safe for Hixon to drive and allowed Hixon to start on the trip.
Other cases holding the lack of an employer-employee relationship to exist between the defendant and the tortfeasors are: Golden v. Southwestern Utilities Corp., 121 Kan. 793, 250 Pac. 286; Redfield v. Chelsea Coal Co., 136 Kan. 588, 16 P. 2d 475; Houdek v. Gloyd, 152 Kan. 789, 107 P. 2d 751; and Christensen v. Builders Sand Co., 180 Kan. 761, 308 P. 2d 69.
We find as a matter of law there was no substantial evidence to support the finding of the jury that Hixon was acting as the agent of Jones when the collision in question occurred.
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The opinion o£ the court was delivered by
Price, C. J.:
The only question presented in this workmen’s compensation case concerns the liability of the “second injury fund” (K. S. A. 44-566, et seq., as amended) for all or a portion of the award to an injured workman.
The respondent employer, General Motors Corporation, a self-insurer, has appealed from a judgment that the second injury fund was “not involved” and that respondent solely was liable for payment of the award.
Before going into the facts we refer to pertinent provisions of the statute. References are to K. S. A.
44-566 ( 4) defines a “handicapped employee” as a person afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease of such character that the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining re-employment if the employee should become unemployed, and his handicap is due to any of sixteen enumerated diseases or conditions — ■ among them being “physical deformity”.
44-567 (a) provides that an employer of a handicapped person, as above defined, and who, prior to the occurrence of a compensable injuiy to such handicapped employee, files with the director a notice thereof together with a description of the handicap claimed —shall be relieved of liability for compensation award or be entitled to an apportionment thereof as follows:
(1) Whenever a handicapped employee is injured or is disabled as a result of a compensable injury and it appears to the satisfaction of the director that such injury would not have occurred but for the pre-existing physical or mental impairment of the handicapped employee, all compensation and benefits payable because of the disability shall be paid from the second injury fund.
(2) Whenever a handicapped employee is injured or is disabled as a result of a compensable injury and the director finds that the injury would have been sustained or suffered without regard to the employee’s pre-existing physical or mental impairment but the resulting disability was contributed to by the preexisting impairment, the director shall determine in a manner which is equitable and reasonable and based upon medical evidence, the amount of disability which is attributable to the employee’s pre-existing physical or mental impairment, and such proportionate amount of the award shall be paid from the second injury fund.
The purpose of the second injury fund statute is to encourage the employment of persons with certain enumerated physical handicaps by relieving the employer in whole or in part of liability for payment of compensation benefits in limited situations, and shifting the increased burden from the employer to the fund which is funded by payments from insurance carriers and from legislative appropriations. The burden of proving that the employee was handicapped as listed with the director, and that such employee’s compensable injury was caused or contributed to by the listed pre-existing handicap or impairment, is on the employer. The words “but for” in subdivision (1) of the statute, above, are used in the sense that the accident causing the disability would not have occurred but for or except for the pre-existing impairment — that is — if the accident would not have happened without the handicap — the test is met. With respect to subdivision (2) of the statute, above, where it is found that tibe injury would have been sustained without regard to the pre-existing impairment, but the resulting disability was contributed to by the pre-existing impairment — then the cost of the award is to be apportioned between the employer and the second injury fund in a just and equitable manner, based upon the medical evidence (Leiker v. Manor House, Inc., 203 Kan. 906, 457 P. 2d 107).
Claimant Hardwick had been employed by respondent since 1953. In 1965 his automobile, in which he was sitting, was hit in the rear by a bus. About a year later, in October 1966, claimant, suffering from “back trouble”, was hospitalized and placed in traction for two weeks. Late in January 1967 he was released by his doctor to return to his regular work with respondent, and he did so shortly thereafter.
On January 24, 1967, pursuant to 44-567 (a), above, respondent filed with the workmen’s compensation director a “Notice of Handicapped Employees” stating that in its employ were 2 handicapped employees, naming claimant as one of them and listing “Physical Deformity — lumbar—low back disorder” as the nature of his impairment. Again, on February 10, 1967, respondent filed with the director a like Notice stating that in its employ were 18 handicapped employees, naming claimant as one of them and listing “Phy. Def. Low Back Disorder” as the nature of his impairment.
On February 13, 1968, which was about a year after claimant returned to work, he sustained the accidental injury here in question. He was working on the assembly line, and was sitting in the doorway of a car in a “twisting position” tightening bolts under the dash when suddenly he experienced a painful “catch” in his-back. The next day he went to the plant doctor and complained of back pains. He was given some pills and a “shot”.
Later, on a date not shown, a claim for compensation was filed. On September 9, 1968, respondent filed a request to implead the second injury fund, setting forth that it had filed the prescribed notice listing claimant as a handicapped employee prior to the compensable injury now alleged and that such notice stated that claimant had suffered previous conditions in the same parts of his body (back) now alleged to be injured in this claim.
On April 14, 1969, the examiner, after considering medical depositions and the testimony of claimant, found that claimant, as a result of the accidental injury of February 13,1968, sustained a six percent permanent partial disability to the body as a whole, and entered an award accordingly against respondent self-insurer. No mention whatever was made of the second injury fund.
A week later the examiner entered a “corrected award” stating that through inadvertence the appearance of counsel for the second injury fund was omitted in the earlier award, and further stating that there “was a specific finding by the Examiner that the Second Injury Fund was found not to be involved in this specific accident.”
On review by the director the corrected award was sustained.
On appeal to the district court the order of the director was approved and adopted — hence this appeal by respondent.
Claimant and the second injury fund take the position that the evidence shows he was completely recovered from any injury he may have sustained as a result of the non-work-connected automobile accident in 1965 — hence it may not be said that the accident in question or the resulting disability were caused by or contributed to by any pre-existing impairment, and therefore the second injury fund is in noway involved.
Respondent, on the other hand, contends all of the medical evidence clearly establishes that claimant had a congenital “back condition” which first became known when X-rays and tests were made following the earlier accident — all of which prompted respondent to file the “handicapped employee” notice — and that claimant’s present disability is the result of such pre-existing impairment— namely a congenital bad back.
As stated, the finding of the examiner — approved by both the director and the district court — was that the second injury fund was “not involved” in this accident. We think such finding is not only unsupported by the medical evidence but in fact is directly contrary to such evidence — and therefore cannot stand.
The medical evidence will not be detañed. We either summarize or quote from it briefly:
Dr. Peril — an orthopedic surgeon—
Claimant had chronic disability in the low back area superimposed on pre-existing congenital changes. X-ray examination revealed a scoliosis of the spine to the right. There was a congenital variant at the lumbosacral area, including attempted sacralization of the last lumbar vertabra. A spina bifida was present. The twisting described by claimant would not have produced as much difficulty had it not been for the pre-existing condition, and he doubted that the injury would have been permanent but for the pre-existing condition.
Dr. Lichtor — an orthopedic surgeon—
X-ray examinations revealed multiple congenital, irregular abnormalties about the lumbosacral spine which were structural or mechanical in nature. The congenital abnormalities in claimant’s back made it easier for him to sustain injuries to his back and— “the fact of the matter is that when you have mechanical abnormalities, structural abnormalities, you don’t have the normal strength of a normal back”. The irregular formation of the fifth lumbar neural arch did not come about as a result of any specific trauma, but is something that a person is bom and grows with. It is a mechanical alteration and associated with mechanical deficiencies.
As stated — 44-566 (4) defines a “handicapped employee” as a person afflicted with or subject to any physical impairment, whether congenital or due to an injury or disease.
All of the medical evidence in this record establishes beyond doubt that claimant had a pre-existing physical impairment — a congenital bad back — and that the accident in question and his resulting disability were related thereto.
The finding that the second injury fund is not involved is therefore set aside and the judgment is reversed and the case is remanded to the district court with directions to determine the liabñity of the second injury fund under the provisions of 44-567 (a) (1) and (2). | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action commenced by a trustee in bankruptcy to recover the value of a stock of merchandise taken by the defendant, A. E. Moon, from the bankrupt on February 15, 1965, by virtue of a chattel mortgage executed between the bankrupt and the defendant on March 20,1963, and filed of record in Ford County, February 15, 1965. The trustee sought to avoid the transfer of possession of the merchandise on the grounds the taking constituted a preference for the benefit of the defendant under the bankruptcy laws of the United States, and that the transfer of the merchandise was void as against creditors of the bankrupt under the provisions of the Rulk Sales Act. (K. S. A. 58-101.) The district court rendered judgment in favor of the trustee for $14,639.60, and the defendant perfected this appeal. We affirm.
Prior to and on March 20, 1963, Donald M. Weece, referred to as the bankrupt, operated an auction and used furniture business in Dodge City, under the name of “Don’s Auction.” Weece customarily maintained a stock of furniture and other personal property in excess of $30,000. On March 20, 1963, he borrowed $12,000 from the defendant. On the same day, Weece and his wife executed two chattel mortgages in favor of the defendant and his wife. The first chattel mortgage (the one out of which this appeal arises) was designated “Chattel Mortgage on Stock of Merchandise,” and covered the entire stock of merchandise of Don’s Auction. It specifically recited that Weece would at all times maintain a stock of merchandise in which the equity was worth a minimum of $30,000 over and above all liability with respect to such merchandise. It further provided:
“The parties agree that this mortgage agreement shall not be recorded as a chattel mortgage until and unless the Mortgagees give notice of their claim of a lien hereunder, at which time they may list the merchandise on hand, in which they claim a lien, and attach such list to this mortgage agreement, and record the same as notice to all subsequent purchasers or mortgagees.
“If the Mortgagees deem themselves not secure, they shall have the right to make claim of lien and take possession of the mortgaged assets as chattel mortgagees thereof.
“This instrument is intended as an inchoate chattel mortgage which may be converted to a perfect chattel mortgage by notice, and which will operate, as between the parties, upon the full stock of merchandise at any given time.”"
The second chattel mortgage likewise covered the entire stock of merchandise, and in addition it covered two trucks, office equipment, and household and personal items, which secured the note for $12,000 payable at the rate of $350 per month with interest. Attached thereto was a list of the numerous items specifically covered by the mortgage. This chattel mortgage was filed of record in Ford County on April 8, 1963, and contained a notation on the reverse side of the list attached, “Approximately 30,000.00 Inventory as working stock Excluding Hotpoint Appliances.”
On April 24, 1963, the defendant filed of record a partial release of the second chattel mortgage which released “all of the stock of merchandise inadvertently mentioned on the reverse side of the list attached to such chattel mortgage.” Otherwise, the mortgage lien remained in full force and effect with respect to all items of personal property specifically described in the list.
The first chattel mortgage was not filed of record until February 15, 1965, when the defendant filed a notice of claim on the items of personal property set forth in the list attached to the notice of claim. The list consisted of eleven pages and contained 1102 specific items of merchandise and others identified only as miscellaneous items.
On February 15, 1965, the date the first chattel mortgage was recorded, Weece had various other creditors beside the defendant. He was in “terrible financial shape” and could not continue his business — it simply had to be liquidated.
On the same day, February 15, 1965, the defendant took possession of the listed stock of merchandise and held a sale as in foreclosure of the chattel mortgage. He bid $10,000 for all of the merchandise listed, which was the highest bid, and he commenced selling the merchandise. He continued selling the merchandise until a flood on the Arkansas River on June 19, 1965, damaged and destroyed all he had left. He made no attempt to comply with 58-101, referred to as the Bulk Sales law.
On May 8, 1965, Weece was adjudged a bankrupt. On June 8, the appellee, R. R. Mitchell, qualified as trustee in bankruptcy. On February 8, 1967, the trustee commenced this action, alleging a conversion of the stock of merchandise and prayed for judgment for the value thereof. He alleged that the transfer of possession of the stock of merchandise constituted a voidable preference under the Bankruptcy Act, and was a violation of the Bulk Sales law.
The defendant’s answer denied any preference, or that the foreclosure of the chattel mortgage was void as to the creditors of Weece. He demanded a jury trial on all issues of fact.
At a pretrial conference in November, 1967, the district court determined that the transfer of possession of the stock of merchandise to the defendant on February 15, 1965, violated the provisions of the Bulk Sales Act, and that the chattel mortgage in favor of the defendant was, therefore, void as against the creditors of Weece. While the trustee alleged a preference had been granted the defendant by Weece in contravention of the Bankruptcy Act, the district court made no finding or conclusion on the point, nor has it since been referred to, and we assume the contention has been abandoned.
On November 20, 1968, the trustee’s motion for appointment of a master came on for hearing. The trustee appeared in person and the defendant appeared by his counsel, Mr. Harry A. Waite. The district court found that the only issue of fact remaining undecided was the value of the various and sundry items of merchandise of which the defendant took possession on February 15, 1965, and that the ends of justice would be measurably advanced by the appointment of a master to determine the value of such various and sundry items. The defendant made no objection to the appointment of a master. Counsel for both sides were contacted by the master appointed by the court and the parties stipulated and agreed that the hearing would be held in Dodge City, on December 11, 1968. At the hearing, the trustee presented evidence of the value of the merchandise through the testimony of Weece and the defendant. Weece qualified as an expert witness, and to identify the various 1102 items, he used a duplicate of the list of items attached to the defendant’s notice of claim, referred to as Exhibit No. 1. Weece had placed a value opposite each item. After a few items were testified to, the following stipulation was made:
“Mr. Waite: It is stipulated by and between the parties that plaintiff’s Exhibit No. 1, may be admitted in evidence, and the figures thereon extended as to the value of the items would be the testimony of Mr. Don Weece as to the value of the items contained on the list.”
Counsel for the defendant cross-examined the trustee’s witnesses, but no evidence of value on behalf of the defendant was offered. The value of the merchandise was shown to be $14,639.60 as of February 15, 1965.
The master filed his report on December 19, 1968, before a transcript of the evidence was filed, and after objection by the defendant, the master filed a similar report on January 24, 1969, together with a transcript of proceedings. Both reports found the value of the merchandise to be $14,639.60.
The trustee filed a motion to adopt the report of the master, and further moved that after the adoption of the report, the court •enter judgment for the trustee and against the defendant in the •sum of $14,639.60 and costs. The defendant’s motion in opposition to the adoption of the master’s report alleged he had requested •a jury trial on all issues including the value of the merchandise, and asked that the court not adopt the report. The motion was •overruled, and judgment was entered on the master’s report in favor of the trustee in the sum indicated.
It is first contended the district court erred in its conclusion the ■chattel mortgage from Weece to the defendant was void as to the creditors of Weece. The point is not well taken. By the terms •of the chattel mortgage it was not to be recorded until the mortgagees gave notice of their claim, and when recorded, it was "notice to all subsequent purchasers or mortgagees.” The instrument was intended to be an “inchoate” or imperfect chattel mortgage until converted by notice and recording. As indicated, the instrument was dated March 20, 1963, but was not recorded until February 15, 1965, the same day the defendant took possession of the merchandise. An examination of the records in the office of the register of deeds would have shown the defendant was not claiming a mortgage on the stock of merchandise.
The district court’s finding that Weece had various other creditors on February 15, 1965, is not disputed, nor is its finding that the defendant made no attempt to comply with 58-101, known as the Bulk Sales law.
We are of the opinion the recording of the chattel mortgage on February 15, 1965, and the taking of the stock of merchandise •on the same day, without notice to other creditors, was void as against the claims of such creditors. (58-101.) Citizens State Bank v. Rogers, 155 Kan. 478, 126 P. 2d 214, was an action to foreclose a chattel mortgage covering fixtures pertaining to a business. It was conceded that notice was not given to the creditors of the mortgagor. Some of those creditors contended that since the mortgagee failed to comply with the Bulk Sales law, the mortgage was void as to them. In deciding the question in the affirmative, this court held:
“Where the owner executes a chattel mortgage covering substantially all of a stock of goods or fixtures, retaining possession of the mortgaged property, the effective date of the disposal of the property is the time when such chattel mortgage is placed of record. Such mortgage is void as to claims of creditors accrued on or before the date of the recordation of the mortgage.” (Syl. ¶ 2.)
In the opinion it was said:
. . The bulk-sales law was designed to prevent tire defrauding of creditors by the secret sale or disposal in bulk of substantially all of a merchant’s stock of goods or fixtures pertaining thereto. (27 C. J. p. 873.) The evasion of the statute would be as easy where the possession was retained as where possession was surrendered at the time the mortgage was given. It is clear that the chattel mortgage before us is a disposal of the property within the meaning of the bulk-sales act, and that it is void as to the claims of creditors of Rogers created and existing on or before the date of the filing of the chattel mortgage for record.” (1. c. 479, 480.)
The defendant’s reliance on Quinn, Trustee v. Voorhees, 194 Kan. 574, 400 P. 2d 986, is not well founded. There, a chattel mortgage covering the stock of merchandise and accounts receivable of the mortgagors was recorded on February 16, 1961. Almost two years later, and on December 31, 1962, the mortgagee took possession of the entire stock of merchandise and accounts receivable. On January 7, 1963, the mortgagors filed a voluntary petition in bankruptcy and were subsequently adjudged bankrupts. There were no creditors of the bankrupts, other than Voorhees, existing on the date the chattel mortgage was filed of record. This court held:
“Where a chattel mortgage covering a stock of merchandise, including after-acquired property, has been executed and recorded, and the mortgagors retain possession of the mortgaged property, the effective date of the disposal of the property within the meaning of the Kansas Bulk Sales Law (G. S. 1949, 58-101, now K. S. A. 58-101) is the time when such chattel mortgage is placed of record.” (Syl. ¶ 3.) (Emphasis supplied.)
In the instant case, the defendant was lurking in the shadows, inducing credit to be extended to Weece by executing the partial release of the stock of merchandise covered by the second chattel mortgage. Thereafter, and at a time Weece was insolvent and his business had to be liquidated, the defendant emerged from the shadows, filed his “inchoate” chattel mortgage, took possession of the stock of merchandise, and purchased the same. This occurred when Weece had various other creditors. What the defendant did amounted to a disposal of the merchandise as is contemplated to be within the meaning of the term “sale and disposal” as used in the Bulk Sales law, and was a disposal otherwise than in the ordinary course of Weece’s trade or business.
The mortgage here was not recorded prior to the creation of the debts sought to be enforced by the trustee. Section 70 (e) of the Bankruptcy Act (11 U. S. C. A., § 110 [e]) gives the trustee what ever rights any creditor of the bankrupt with a provable claim has under state or federal law to attack a transaction which is fraudulent and voidable for any reason by such creditor. Since the chattel mortgage was void as to creditors existing at the time the chattel mortgage was filed of record, it was void against the trustee in bankruptcy. (Bussert v. Quinlan, 267 F. 2d 219.)
The defendant contends the district court erred in entering judgment upon the master’s report on an issue which should have been submitted to a jury. As previously noted, the defendant demanded a trial by a jury be had on issues of fact. He argues there is nothing in the record to show he ever lost his right to a jury trial, except the district court erred in failing to give effect to his legal right. He also argues the district court erred in the appointment of a master.
As indicated, when the master was appointed, the defendant was present by counsel and made no objection to the appointment, either at that time, or when the case was heard at Dodge City. When the trustee’s evidence was being presented, plaintiff’s Exhibit No. 1 was admitted in evidence by stipulation of the defendant. The defendant cross-examined the trustee’s witnesses, and at the conclusion of the trustee’s evidence, he offered no evidence of value on his behalf. Thereafter, both the trustee and the defendant announced the matter was submitted to the master for his determination.
The defendant’s objection came only after he was aware the decision of the master as to the value of the merchandise was not to his liking. He may not complain of rulings or matters to which he consented, or take advantage of any error upon appellate review which he invited, or in which he participated. (Elwood-Gladden Drainage District v. Ramsel, 206 Kan. 75, 476 P. 2d 696.)
Moreover, K. S. A. 60-239 (a) (1) provides that when a trial by a jury has been demanded, the trial of all issues so demanded shall be by jury unless the parties by written stipulation, or oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. We think counsel’s stipulation into the record during the trial before the master that plaintiff’s Exhbit No. 1 be admitted in evidence was, if not expressly, at least by implication, a stipulation in open court to proceed to trial on the issue of value without a jury, notwithstanding his previous demand for trial by jury on all issues. The district court was of the opinion that a reference to a master was proper. It found that the ends of justice would be measurably advanced thereby, and that the issue of fact involved an examination of complex and voluminous accounts of some 1102 items. By counsel’s acquiescence in the order, it must be presumed the defendant was of the same opinion. (GO-253 [6].)
It should further be noted that when the defendant objected to the master’s report, the court had the report before it and it clearly showed there was nothing to submit to a jury. At tins point there was no question of fact that had not been resolved, and there was nothing for a jury to decide. The defendant’s objection made when the master’s report was filed was too late. In Stanley v. Weston, 92 Kan. 317, 140 Pac. 878, it was said:
“Complaint is made of the order of reference, but it does not appear that the defendants objected when the order was made, nor before or during the trial, although appearing and participating therein. An objection made when the report was filed was too late. The case involved an accounting of sales of crops of different kinds at various times, supposed at the time to be worth $5000. The court believed a reference to be proper, and by their acquiescence it must be presumed that the parties were of the same opinion.” (1. c. 320, 321.)
The defendant has not made it affirmatively appear the district court erred in any point advanced for appellate review, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant appeals from a conviction of embezzlement by a bailee as defined by K. S. A. 21-547 [now K. S. A. 1970 Supp. 21-3701].
Two questions are presented: (1) Did the trial court err in refusing to submit an instruction setting out the offense commonly known as “joyriding” defined in K. S. A. 21-544 [now K. S. A. 1970 Supp. 21-3701 and 3705], as a lesser included offense in 21-547, supra, and (2) did the trial court err in giving additional instructions after the case had been submitted to the jury?
There is no material dispute about the facts.
On November 7, 1967, Ralph E. Brasted, a Wichita businessman, went to the Kansas Employment Division Office to hire a temporary driver to make deliveries. Mr. Brasted met and employed the defendant, Kenneth LeRoy Piper. Mr. Brasted and defendant returned to the Brasted place of business where defendant was given a 1966 Chevrolet pickup truck and instructed to make deliveries. For his first job, defendant was instructed to make two deliveries and directed to pick up some merchandise and return it to the Brasted Company. Defendant was given five dollars to pay for the merchandise.
Defendant made the first delivery and then, without notifying Brasted, left Wichita in the pickup and drove to Springfield, Missouri.
Defendant obtained employment at Springfield where he worked about six weeks. Defendant told fellow employees the pickup was his. Defendant testified that he never intended to keep the pickup, but that he was attempting to raise enough money to bring it back to Wichita.
On December 27, 1967, defendant had an accident in which the pickup was damaged. The police investigation of the accident revealed the pickup had been reported as embezzled. Defendant was arrested and returned to Wichita.
In support of his first contention defendant argues that embezzlement by a bailee as defined by 21-547 is, as he says, “a hybrid of the common law crimes of larceny and embezzlement.” Defendant directs our attention to larceny defined by K. S. A. 21-533 [now K. S. A. 1970 Supp. 21-3701] and ordinary embezzlement as defined by K. S. A. 21-545 [now K. S. A. 1970 Supp. 21-3701]. Defendant asserts that embezzlement by a bailee as defined by 21-547 is a combination of the crimes of larceny and embezzlement, as they are defined by the statutes referred to.
K. S. A. 21-547, under which defendant was charged, reads:
“If any carrier or other bailee shall embezzle or convert to his own use, or make way with or secrete, with intent to embezzle or convert to his own use, any money, goods, rights of action, property or valuable security or other effects, which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box or other thing in which he received them, he shall upon conviction be adjudged guilty of larceny, and punished in the manner prescribed by law for stealing property of the nature or value of the article so embezzled, taken or secreted.”
Defendant’s position appears to be that since the statute declares that one convicted of the offense defined shall be adjudged guilty of larceny and punished accordingly; that an offense under the statute should be treated as larceny rather than embezzlement. Applying this reasoning to the instant case, defendant contends he was actually charged with larceny of an automobile and thus was entitled, under the evidence, to an instruction under 21-544, supra, taking an automobile temporarily against the owner’s will.
We cannot agree with defendant’s assertion that 21-547 is to be treated as a larceny statute. The distinction between 21-547 and 21-545, defining embezzlement generally, is the characterization of the embezzler. Only a carrier or bailee may be charged under 21-547.
Under 21-545 embezzlement may be committed by any agent, employee, clerk, apprentice or servant.
While the word “larceny” is not found in the text of 21-545, it, like 21-547, prescribes that punishment on conviction shall be that prescribed by law for stealing property of the value of that embezzled. The term “larceny” as used in 21-547 serves only as a means of establishing a criteria for punishment.
A perusal of the cases in which this court has dealt with offenses under 21-547 discloses that a charge thereunder has always been treated as embezzlement rather than larceny. For example see State v. Stamps, 203 Kan. 829, 457 P. 2d 172; State v. Stout, 175 Kan. 414, 264 P. 2d 1056; and State v. Chaplain, 101 Kan. 413, 166 Pac. 238.
In State v. Robinson, 125 Kan. 365, 263 Pac. 1081, counts charging offenses under both 21-545 and 21-547 were included in one information and all were treated as embezzlement.
While larceny and embezzlement have some characteristics in common, the two offenses are generally recognized as distinct and separate crimes. (26 Am. Jur. 2d, Embezzlement, §2, p. 550.)
A significant distinction between the two crimes is the manner in which the initial possession of the subject property was acquired —in the case of larceny by a trespass as opposed to lawful acquisition in the case of embezzlement. While felonious intent is a necessary element in both crimes, larceny requires an intent to perma nently deprive the owner of his property at the time of the wrongful taking; the gist of embezzlement, on the other hand, is the intentional misappropriation to his own use by the wrongdoer while in lawful possession. Intention to return or restore the misappropriated property by the embezzler is no defense.
The rule is stated in 26 Am. Jur. 2d., Embezzlement, § 20, p. 571:
“It is well established that when one wrongfully and intentionally misappropriates the property of another lawfully in his possession to his own use, the offense of embezzlement is complete, so that the fact that he at the same time intends subsequently to return the property or to make restitution to its rightful owner does not reheve his wrongful act of its criminal nature, excuse him, or make his offense any the less embezzlement. The fraud and the crime inhere in the act and are not eliminated by any mere mental process, however amiable or virtuous it may be.”
In State v. Atwood, 187 Kan. 548, 358 P. 2d 726, embezzlement is described in these terms:
“The gist of the offense of embezzlement is the withholding of money or property with intent to defraud the owner, or to deprive him of the use and benefit of his money or property, and convert or apply the same to the defendant’s own use or benefit. . . .” (p. 555.)
Intent as an element in the crime of embezzlement was considered in State v. Pratt, 114 Kan. 660, 220 Pac. 505, wherein the defendant contended the state must prove intent to deprive the owner not temporarily but permanently of his property. This court recognized tibe existence of some authority to the contrary, but laid to rest any uncertainty as to the rule in this jurisdiction. The court held:
“The felonious intent constituting in part the crime of embezzlement is the intent to take or appropriate, convert or use, the property of the principal by the agent in violation of his duties, and it is none the less embezzlement if at the time he has an intention, or hope, or desire, to restore it at a later date.” (Syl. ¶ 3.)
In Pratt the court further held that the motive which prompted embezzlement is not a matter of defense. The characteristics given intent in embezzlement cases has been applied in like manner to embezzlement by a bailee under 21-547. (State v. Stamps, supra; and State v. Small, 26 Kan. 209.)
Embezzlement by a bailee defined by 21-547 is embezzlement and not larceny, and evidence of the intention to return or restore the subject property is not a defense.
Defendant was not entitled to an instruction under 21-544, as a lesser included offense, and no error was committed in this regard.
At the insistence of defendant in the instant case, the trial court did instruct that the felonious intent involved here means the intent to deprive the owner, not temporarily but permanently, of his property. As tire state points out, this instruction unduly burdened the state but the defendant certainly has no cause to complain. Stemming from this instruction, the jury, during deliberation, requested an additional instruction defining permanent. The jury was given a written instruction containing the requested definition. Defendant complains about the court’s definition. As we have pointed out, the use of the words “permanent” or “permanently” was not necessary in defining intent in this case; thus no rights of defendant could have been prejudiced. Nonetheless, we note, the definition given conforms generally with the definitions found in the authorities. The additional instruction given did not go beyond the issues of the case, as they were defined in the court’s previous instructions. Consequently, the submission of the instruction cannot be said to amount to an abuse of discretion.
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The opinion of the court was delivered by
Hatcher, C.:
This was an action for wrongful death of a boy sixteen years of age. The defendant’s motion to dismiss the plaintiffs’ amended petition was sustained and they have appealed.
The over-all question involved is whether the Workmen’s Compensation Act provided an exclusive remedy and precluded the plaintiffs from maintaining an action for wrongful death.
Our review is limited by the facts as alleged in the petition.
The gist of the amended petition was that the plaintiffs were the parents and the sole heirs of Gordon Gaston who was sixteen years of age when he was killed. One June 2, 1967, Gordon Gaston was employed by the defendant at Wakefield, Kansas. At that time defendant was engaged in the construction of public roads and other installations for and on behalf of the United States Government in the Milford Dam and Reservoir area near Milford, Kansas. On August 5, 1967, Gordon Gaston was directed by defendant’s job superintendent to drive a tractor-trailer truck unit from the job site in the Milford area to a second federal job site of defendant near Glen Elder, Kansas. He was directed to drive the tractor-trailer on and over the public highway system between Wakefield and Glen Elder, Kansas. He undertook to drive the tractor-trailer as directed, and while in the process he was killed as the result of an accident caused by defendant’s negligence.
The petition alleged that defendant, in doing work above mentioned, was subject to the provisions of the Fair Labor Standards Act (29 U. S. C. A. 203) pursuant to which the Secretary of . Labor issued an order holding that the occupation of a motor vehicle driver on any public highway is a hazardous employment for minors between sixteen and eighteen years of age and that such employment is illegal. At the time Gordon Gaston was directed to drive the tractor-trailer, the defendant’s superintendent knew Gordon did not have and was ineligible for a chauffeur’s license under Kansas law. (K.S.A. 8-237 [3].)
The trial court concluded—
“. . . The Fair Labor Standards Act and the Kansas laws relating to the employment of minors, and the type of employment in which they may be engaged, are regulatory in nature and prescribe penalties for the violation thereof. It does not appear in any of the cases cited, nor do I find in independent research, that the violation of a federal or state statute changes the civil status of the parties. I conclude they are not intended to replace or affect the relation of the parties with regard to workmen’s compensation or other civil actions.
“It follows that defendant’s motion to dismiss should be sustained.”
The appellants argue that the Workmen’s Compensation Act does not bar the present wrongful death action because the deceased minor was unlawfully employed in violation of the Fair Labor Standards Act and the child labor provisions provided thereunder, and as a truck driver of a semi-trailer truck in violation of the Kansas Motor Vehicle Laws.
Conceding for the moment the validity of appellants’ argument that the Workmen’s Compensation Act does not prevent a minor from bringing a common law action against his employer where the minor was injured in the course of unlawful employment, do the Federal Fair Labor Standards Act and the child labor provisions thereunder control as to the legality of employment under the Workmen’s Compensation Act? We have held to the contrary. In Neville, Administratrix v. Wichita Eagle, 179 Kan. 197, 294 P. 2d 248, we stated at page 203:
“. . . Appellant seeks to avoid the force of a contract fully legal under our laws, and to maintain a statutory action for wrongful death (G. S. 1949, 60-3203) on the ground the Fair Labor Standards Act of the United States fixes a condition of employment rendering the employment unlawful.
"We cannot agree with the appellant’s contention. In filing her action to recover for wrongful death appellant sought relief afforded by the statutes of this state and her rights are measured by our statutes. A right to recover for wrongful death is one created by statute and did not exist at common law. (See, e. g., Cudney v. United Power & Light Corp., 142 Kan. 613, 615, 51 P. 2d 28.) Under appellant’s contention, she could maintain her present action, but had her deceased workman been in some industry outside the purview of the federal act, she could not have done so. The result would be lack of uniformity of remedy. We hold that the test of the minor’s capacity to enter into an employment contract is that fixed by the laws of this state; that the employment was a lawful one under our workmen’s compensation act, and that the liabilities of the employer for injury resulting in the workman’s death are measured by that act.”
We reiterate that the test of whether employment is lawful under the provisions of our Workmen’s Compensation Act is determined by the laws of our state and not those of the federal government.
Appellants further contend that Gordon Gaston was unlawfully employed because he was driving the tractor-trailer unit on the highways without a chauffeur’s license.
Conceding, for the purpose of this discussion only but not deciding, that a person driving a tractor-trailer unit from one work project to another must have a chauffeur’s license, would that render unlawful and void the employment contract for highway construction?
Appellants rely on Lee v. Kansas City Public Service Co., 137 Kan. 759, 22 P. 2d 942 and Hadley v. Security Elevator Co., 175 Kan. 395, 264 P. 2d 1076.
In the Lee case a boy thirteen years old was injured while employed to deliver milk from a milk wagon during the hours of one o’clock a. m. to five o’clock a. m. An action was brought to recover damages for the injuries. The defendant milk company challenged the action claiming that any liability it owed to the plaintiff would be governed by the Workmen’s Compensation Act. In disposing of the question it was stated:
“It may be inferred that the milk company’s business was operated under the workmen’s compensation act unless the proprietor had taken affirmative steps to exempt it from its provisions. Indeed, this is the inference defendant desires this court to draw from the silence of the record. But it is perfectly obvious that owing to plaintiff’s age he could not be lawfully employed in the nighttime around a milk distributing plant. Moreover, the compensation act defines a workman as a person who works for an employer under a contract of service or apprenticeship (R. S. 1931 Supp. 44-508 [i]), and no contract of service or apprenticeship existed between plaintiff and the milk company. . . (p.708.)
In the Hadley case a boy thirteen years of age was killed while working in an elevator. An action for wrongful death was brought by the sole surviving parent. We stated:
“Defendant next argues as to the second paragraph that Norval was actually an employee of defendant — hence the only remedy of plaintiff was a claim for compensation under the workmen’s compensation act. Deceased was a thirteen-year-old boy. Our statute prohibits the employing of any child under fourteen years in any factory, workshop, theater, mill, canning, packing house or operating an elevator. (G. S. 1949, 38-601.) (See Lee v. Kansas City Public Service Co., 137 Kan. 759, 22 P. 2d 942.) The argument is not good.” (p. 397.)
These cases simply hold that where the employment of a thirteen year old boy is prohibited by statute the contractual relationship necessary to bring the parties within the provisions of the Workmen’s Compensation Act cannot exist.
The specific question which we now have before us appears to be, was the employment of Gordon Gaston unlawful because prohibited by the laws of this state?
The word “workman” was defined by the Workmen’s Compensation Act (K. S. A. 44-508 [i]) at the time of the accident as follows:
“ ‘Workman’ means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer. Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents, as hereinafter defined, or to his legal representatives, or where he is a minor or incompetent, to his guardian.”
The Act was amended in 1968 to specifically include minors whether legally or illegally employed. However, the amendment is not retroactive.
There can be no question under the provisions of the statute but that the rights of the workman are contractual in nature. We so stated in Neville, Administratrix v. Wichita Eagle, supra, at page 202 as follows:
"There can be no argument but that rights and duties under the workmen’s compensation act are contractual in nature (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784, and Dean v. Hodges Bros., 170 Kan. 333, 224 P. 2d 1028), and that the various provisions of the act show an intention to bring minors within its provisions (Railway Co. v. Fuller, 105 Kan. 608, 186 Pac. 127). It would follow that a minor, not otherwise incompetent to do so, is competent to engage in an employment covered by the act, in which event the employer and die employee and those claiming under the employee are bound by the act. Whether the employee is competent to contract is to be determined by the laws of this state, and for the reason that our statutes prohibit employment of children under the age of fourteen (G. S. 1949, 38-601) or under die age of sixteen (G. S. 1949, 38-602) to engage in certain occupations, it was held in Lee V. Kansas City Public Service Co., supra, that a twelve [thirteen] year old boy, and in Hadley v. Security Elevator Co., supra, that a thirteen year old boy, could not enter into a contract of employment covered by the workmen’s compensation act. . .
Gordon Gaston was employed in road construction work. No statute has been cited by the parties, nor do we find anything under the child labor laws of this state, that makes it unlawful for a person who has reached the age of sixteen years to be employed in road construction work.
The contract of employment was for road construction. The fact that the employee may have been in violation of some highway traffic regulation while driving the truck from one highway construction project to another did not void the contract of employment. The driving of the truck was, at most, merely incidental to the employment. The contract of employment remained in full force and effect, and the employee was subject to the provisions of the Workmen’s Compensation Act. (See, Dressler v. Dressler, 167 Kan. 749, 208 P. 2d 271.)
K.S.A. 44-510 (c) (28) (now K. S. A. 1969 Supp. 44-510e) provided:
“Where a minor or his dependents are entitled to compensation under the provisions of this act, such compensation shall be exclusive of all other remedies or causes of action for such injury or death, and no claim or cause of action against said employer shall inure or accrue to or exist in favor of the parent or parents of such minor employee on account of any damage resulting to such parents or parents on account of the loss of earnings or loss of service of such minor employee.”
It necessarily results that as the dependents of the minor were entitled to compensation under the Workmens Compensation Act, no cause of action existed in favor of the parents of such minor employee on account of damages resulting from his death.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an action brought by the plaintiff for damages sustained as a result of personal injuries received while riding as a passenger in an automobile driven by the defendant. Only simple negligence was alleged in the petition, and the trial court sustained the defendant’s motion for summary judgment on the ground the plaintiff was a guest and barred from recovery under K. S. A. 8-122b.
The only issue before the district court and on appeal to this court is whether the plaintiff was a guest under the above statute.
The automobile collision in which Cheryl Rothwell (plaintiff-appellant) was injured occurred on January 4, 1966, on West Sixth Street in Lawrence, Kansas. The appellant was a married woman twenty-one years of age and lived in Lawrence.
The defendant-appellee, Patricia A. Wempe, was single at the time but is now married, her name being Patricia A. Transmeier.
The motion for summary judgment was submitted to the trial court on the petition and answer, together with the deposition testimony of the appellant, which the appellee filed to prove the status of the appellant to be that of a guest.
The facts upon which the issue is to be determined are submitted in the record in the form of an agreed narrative statement of the deposition testimony of the appellant, Cheryl Rothwell. The original petition herein was filed March 28, 1967, and the amended petition was filed October 25, 1968. The deposition is dated October 19, 1968.
The material facts, in addition to those heretofore stated, as taken from tire deposition, are that the appellant’s husband was attending night classes in Topeka, Kansas, on Tuesdays and Thursdays as a requirement for a journeyman’s electrician card. The appellant did not like to stay home by herself on these evenings, and on the day in question her husband was away attending night school. The appellee called the appellant’s home between 6:15 and 6:30 and requested the appellant to help the appellee wash her car. The appellant hesitated, but then the appellee “asked me to please help her wash her car, and I said okay.”
It was a regular practice for the appellee to come by the appellant’s house on the evenings that her husband was in Topeka, and the two women would go out together. The appellant said “and then it proceeded that I was just an accompaniment to go with her so she wouldn’t be by herself to find Cecil, and I stopped going out with her regularly.”
On the evening in question the two women were together, and the appellee drove into the car wash on West Sixth Street in Lawrence and they jointly cleaned the automobile. The appellee had no dimes to operate the vacuum cleaner so the appellant supplied a couple of her dimes for this purpose.
On the particular night in question the appellant decided to help the appellee wash her car because the appellee had helped the appellant wash her car a lot of times, and she thought she owed her this.
After cleaning the car the appellee drove down Sixth Street, and while wiping a smudge off the windshield collided with a car that had stopped with its turn signal on to make a left turn. As a result of the collision the appellant’s right leg was broken between the knee and the hip and she had complications resulting therefrom.
After the two women had gotten together and were proceeding to the car wash on the evening in question, the appellee informed the appellant she had a bet with her boy friend, Cecil Transmeier, whom she later married, that she could not completely clean the inside and outside of her automobile. The appellant knew that after the car washing the destination of the appellee would be to find Cecil Transmeier. The appellee would drive around in Lawrence in the usual routine manner until Cecil was found; then she would take the appellant home, as had been the custom in the past. The appellant in her deposition testified:
“The defendant knew where she was going because each time she used the plaintiff in looking for Cecil, she took the plaintiff home after he was found. The plaintiff was quite positive where she would end up. She would end up home by herself after Cecil had been found, because this happened each and every time she was with the defendant. The defendants main objective in having the plaintiff, Mrs. Rothwell, along was to have another girl companion, as the defendant did not think it looked nice for a girl to be out looking for her boy friend alone. The defendant would not go by herself to find Cecil, and so she used the plaintiff. The plaintiff was her only friend, and plaintiff was necessary to accomplish the defendant’s objective.”
The appellant had previously enjoyed the appellee’s company, until the appellee started the routine of using the appellant for the purpose of finding her boy friend and then bringing the appellant home.
With reference to being at home alone at night, the appellant stated:
“Q. Do you dislike being alone at home at night?
“A. I would dislike it if I had no friend to be with, yes. I would dislike it not knowing I would be with a friend, but when I am just being used I would rather be just at home by myself because my husband wasn’t gone that long, he was always home before I went to bed.”
The trip in question and other trips were not occasions for common errands for the appellant and the appellee. The appellant did not do any shopping for clothes or groceries on the nights she was with the appellee.
The appellant first contends the trial court erred in sustaining the appellee’s motion for summary judgment because the deposition testimony of the appellant shows that a genuine issue of material fact exists on the guest/non-guest question.
Since the enactment of K. S. A. 60-256 (c) this court has consistently adhered to the rule that a motion for summary judgment under the provisions thereof is to be sustained only where the record shows there is no genuine issue as to any material fact. (Supreme Petroleum, Inc. v. Briggs, 199 Kan. 669, 678, 433 P. 2d 373.) It is unnecessary to reiterate the rules applied in reviewing an appeal from an order of the trial court sustaining a motion for summary judgment because this has been done numerous times. (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964; Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976; Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P. 2d 838; and West v. Prairie State Bank, 200 Kan. 263, 436 P. 2d 402.)
The most recent case defining “a genuine issue as to any material fact” is Smith v. Engel, 206 Kan. 298, 477 P. 2d 937.
Here the appellant is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Supreme Petroleum, Inc. v. Briggs, supra.) On the record presented the only evidence before the district court was the sworn deposition testimony of the appellant herself. Therefore, after giving the appellant the benefit of all inferences and resolving all ma terial and reasonable issues of doubt in her favor, is there any basis in law upon which a jury could find in favor of the appellant?
Was the appellant a guest in the automobile driven by the appellee at the moment of the collision in question? The history of K. S. A. 8-122b and the rules to be applied thereunder to determine whether a passenger in a vehicle is a guest on a given occasion have been stated in three well written recent opinions. They are: Bedenbender v. Walls, 177 Kan. 531, 280 P. 2d 630; Lloyd v. Runge, 186 Kan. 54, 348 P. 2d 594; and Gorelick v. Ernstein, 200 Kan. 619, 438 P. 2d 93.
No effort will be made to reiterate a review of the Kansas law under the guest statute which has been so aptly stated in these opinions.
Under K. S. A. 8-122b our decisions have borrowed from the Restatement of Torts to define the word “guest.” It is said the word “guest” is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return except such slight benefits as it is customary to extend as part of the ordinary courtesies of the road. (Restatement, Second, Torts, §490, Comment a, p. 546; and Gorelick v. Ernstein, supra.)
It also seems clear that where the driver receives compensation, the passenger is not a guest. (Elliott v. Behner, 146 Kan. 827, 73 P. 2d 1116; Lightcap v. Mettling, 196 Kan. 124, 409 P. 2d 792; and Gorelick v. Ernstein, supra.)
Compensation, however, need not consist of money. Any substantial benefit accruing directly to the driver from the transportation of his passenger will be sufficient if it be motivating and not merely incidental in character. (Sparks v. Getz, 170 Kan. 287, 225 P. 2d 106; Van Royen v. Osborn, 181 Kan. 39, 309 P. 2d 630; Gorelick v. Ernstein, supra; and Bedenbender v. Walls, supra.)
In determining the question whether a person is or is not a “guest” within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of “payment”; the benefits or advantages resulting to the respective parties growing out of the transportation; whether the “payment” of whatever nature constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip. (Bedenbender v. Walls, supra, Syl. ¶ 4.)
In Bedenbender v. Walls, supra, it was said:
“Despite certain fundamental principles running through the decisions, such as the definition of payment’ (Srajer v. Schwartzman, 164 Kan. 241, 188 P. 2d 971), tire chief motivating reason for plaintiff being in defendant’s automobile (Vogrin v. Bigger, 159 Kan. 271, 154 P. 2d 111), and the identity and relationship of the persons advantaged by the transportation (Pilcher v. Erny, 155 Kan. 257, 124 P. 2d 461), the fact remains that in the over-all picture the court has found it necessary to decide each case upon its own factual background. . . .” (p. 536.)
The general statement has been made in our opinions more than once that where the transportation tends to promote the common interest of passenger and driver, or where it is primarily to promote the interest of the driver, the passenger is not a guest within the meaning of the guest statute. (Cope v. Radford, 191 Kan. 617, 383 P. 2d 563, and cases cited therein; and Gorelick v. Ernstein, supra.) But the foregoing generalized statement bears scrutiny when analyzed in the light of our decisions.
Cases in which the passenger is in some way connected with and furthers the employment or business of the defendant hold that the passenger is not a guest. These include cases where the transportation furnished by the defendant is for the promotion of the mutual interest of the parties. (See Pilcher v. Erny, 155 Kan. 257, 124 P. 2d 461; George v. Stanfield [D. Ida. 1940] 33 F. Supp. 486; Lloyd v. Runge, supra; and LeClair v. Hubert, 152 Kan. 706, 107 P. 2d 703.)
Under our decisions furthering the mutual interests of the parties is not necessarily sufficient to remove the passenger from the status of a guest. It depends upon whether the interest is substantial or tangible. Where the benefit to the driver involves his occupation or business, it has been said to be substantial or tangible. This may be illustrated by cases which hold conversely — where the benefit to the driver is not substantial or tangible, but is trifling and unimportant. In this category is Bedenbender v. Walls, supra. There the plaintiffs, husband and wife, and the defendant and his wife had been personal and social friends for years. They particularly enjoyed taking hunting trips together, and had done so on numerous occasions alternating in the use of their automobiles. They had an understanding or agreement to the effect that when they drove defendant’s car plaintiff husband would pay for gas, oil and meals for the four of them enroute, and vice versa. This practice had been adhered to in the past. In the fall of 1951 the parties decided to go on a pheasant hunting trip to Nebraska. It was mutually understood and agreed they would adhere to their past arrrangements with respect to the payment of expenses above mentioned. They adhered to this agreement, and in the course of the journey had an accident in which the plaintiffs sustained personal injuries. Clearly, there was some benefit to the defendant in this arrangement; however, it was held to be a “reciprocal hospitality and social courtesy between friends when the undertaking is for the mutual social pleasure of the parties concerned. There was no relationship of mutual benefit between or among them other than of a social nature.” (177 Kan., at p. 538.)
Similarly, in the case of In re Estate of Dikeman, 178 Kan. 188, 284 P. 2d 622, the defendant agreed with the plaintiff to transport the plaintiff to Topeka from Pratt, Kansas, for a lodge meeting in consideration of the plaintiff’s paying a reasonable sum for such transportation. Admittedly, there would be some benefit to the defendant by reason of this payment, but here again the court held the plaintiff to be a guest since the one and only cause for the trip was a common social venture purely for pleasure.
We have been cited to no Kansas case, and our research has disclosed none, which holds that a benefit to the driver or mutual benefit to the driver and. the passenger has been sufficient to permit the passenger plaintiff to escape the guest statute, unless some business aspect was present. Social benefits and pleasures, whether mutual or otherwise, have been held insufficient to escape the guest statute.
The appellant herein relies upon Gorelick for the proposition that the compensation need not consist of money, and that any substantial benefit accruing to the driver will be sufficient if it be motivating and not merely incidental in character. The appellant argues the primary interest to be promoted on the trip in question was that of the appellee in finding Cecil.
The appellant relies on the fact she would not have gone alone to find Cecil (citing Pilcher v. Erny, supra). The appellant also relies on Gorelick for the proposition that “where the transportation , . . is primarily to promote some interest of the driver, the passenger is not a guest.” (p. 622.) The appellant argues friendship and sociability were not the primary basis for the appellant’s being in appellee’s car; that the appellee was not primarily inter ested in the appellant’s companionship, because the appellant was always taken directly and immediately home as soon as Cecil was located.
The appellant argues the only testimony before the court indicates the appellee would not have gone alone, that the sole objective of the trip was to find Cecil, and the motivating force of the trip was to use the appellant as a decoy because young ladies do not track down their boy friends without exercising a ruse. When the appellant had provided that ruse she was dropped at her home. It is then argued:
“As the only testimony before the Court indicates (1) that the motivating cause of the trip was to find Cecil and to win a car-wash bet by using appellant to assist in the washing process, (2) that the person who benefited from the trip was the appellee, and (3) that the consideration for the trip was the physical presence of the appellant as a decoy and washing assistant, several fact questions remain to be resolved by a jury.”
Under our decisions we fail to see merit in the appellant’s position. If it is robust to say on the record here presented the venture was for the mutual social pleasure and benefit of the parties, then at least the benefit accruing to the appellee was purely a social benefit and insufficient to remove the bar of the guest statute.
Here the trip involved no financial or mercenary motives between the parties. The two dimes contributed by the appellant to a vacuum machine used in the cleaning of the automobile were insignificant. Nowhere in the appellant’s deposition testimony is there any indication or inference this contribution was in any way a motivating consideration for the presence of the appellant. This was nothing more than a friendly gesture between friends. (See Bedenbender v. Walls, supra.)
The appellant’s assistance at the car wash, interpreted in the light of everyday practical human experience, was nothing other than reciprocal hospitality and social courtesy between friends. The appellee had on many occasions assisted the appellant in washing her vehicle and therefore she felt obligated to reciprocate. (See Bedenbender v. Walls, supra.)
The type of assistance the appellant contributed to the appellee in “finding Cecil” is insufficient to remove tire case from the bar of the guest statute. The venture did not involve a mercenary or financial factor and it served no occupational or business purpose of the appellee.
The appellant places emphasis upon her own reluctance to go with the appellee, and asserts the only reason she made the trip arose from a sense of obligation to the appellee. This situation, it is claimed, does not give rise to a social relationship. The identical point was made in Stiltner v. Bahner, 10 Ohio St. 2d 216, 227 N. E. 2d 192, where the defendant became lonesome and asked the plaintiff to spend the night at the defendant’s home. Several times the plaintiff refused the request, but finally accepted because she feared she might be evicted from her apartment which the defendant owned. In the opinion the Ohio Supreme Court stated:
“A reluctant guest may still be a guest within the meaning of the guest statute; and the fact, that the host-driver is much more interested in having the rider’s social companionship than the rider is in giving that social companionship, cannot support a conclusion either that the rider is not a guest or that he is paying for his transportation.” (pp. 219, 220.)
The reluctance of the appellant in the instant case to go with the appellee on the night in question has no bearing whatever on the question as to whether or not she was a guest on the trip. She was coaxed to accompany the appellee on a social trip, and her consent in no way changes the relationship of the parties from a host-guest relationship.
The judgment of the lower court sustaining the appellee’s motion for summary judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to quiet title to a mineral interest. Judgment was for the plaintiff. Defendants have appealed.
The amended petition alleged the ownership by plaintiff of a described quarter section; that defendants claimed some title to it, which was inferior to the plaintiff’s title; that W. C. Emrich claimed some interest in it because of a mineral deed duly recorded, such deed having been executed by plaintiff on December 13, 1943; that at the time of execution of the deed plaintiff was unfamiliar with the oil business and the difference between mineral deeds and royalty deeds and this was well known to Emrich; that shortly before December 13, 1943, Emrich told plaintiff he was preparing to drill an oil well and already had obtained royalty rights from all the neighbors living near plaintiff’s farm and stated that if the plaintiff would deliver to him a royalty to one-half his land he would drill an oil well to completion within 300 feet of the land owned by plaintiff and would complete it within a reasonable time and the royalty would be placed in escrow until the drilling of the well was completed; that thereafter Emrich prepared certain instruments and stated to plaintiff they were made out in accordance with the conversation; that plaintiff told him he was unable to read and was told by Emrich that they were a transfer and conveyance of oil and gas royalty; and that they provided that an oil well was to be drilled with diligence within 300 feet of the property of the plaintiff; that it would be diligently drilled to completion; that the oil and gas royalty would be placed in escrow and was not to. be obtained by Emrich until he had drilled the oil well to completion; that Emrich had obtained and did then own and have royalty from the neighbors of the plaintiff, including royalty on section 22, township 10, range 1, in Ottawa county, Kansas, when as a matter of fact the documents provided the well was to be commenced within 1,400 feet of plaintiff’s property; and the conveyance was in fact a mineral deed conveying one-half of all the oil and gas under the real estate in question; and no provision was made for Emrich to drill the well and Emrich knowing of the false statements and that plaintiff could not read and knowing that plaintiff relied on the false statements of Emrich caused plaintiff to execute the instru ments; that the escrow agreement did not provide for the delivery of the royalty at the conclusion of the drilling of the well, but did provide for its delivery at its commencement, and unknown to plaintiff Emrich later procured from the escrow holder the mineral deed and plaintiff had no knowledge of this until November, 1947, and plaintiff did not learn of the falsity of the representations until November, 1947; that the deed was wrongfully given to Emrich without the knowledge or consent of plaintiff and Emrich had been absent from the state for at least three years since the recording of the instruments and plaintiff had no knowledge of the fraud until he discovered he had executed a mineral deed instead of a royalty conveyance; that upon discovering the fraud that had been practiced upon him, plaintiff demanded of Emrich that he execute releases; that there was no consideration for the contract or for the mineral deed; that defendant had failed to perform his contract; that Emrich had released oil and gas leases in the vicinity so that it would be impossible for him to carry out the contract.
The prayer was that plaintiff’s title be cleared and for damages.
In their answer, defendants alleged' that they owned one-half the oil and gas in the described real estate by reason of a conveyance' duly on record; that the cause of action set out in the petition was barred by the statute of limitations because the deed was signed by plaintiff on December 13, 1943, placed in escrow until March 1, 1944, and the escrow holder delivered it to Emrich and it was filed for record on March 22, 1944, and by that delivery and recording the plaintiff had knowledge that defendants claimed an interest in the property by reason of the conveyance and this action was begun on September 10, 1948, more than four years after the execution and recording of the conveyance; that such an action must have been brought within two years. The answer further alleged that delivery of the conveyance was not made until after March 1, 1944, and execution of it was not completed until after that date; that the conveyance was recorded or listed for taxation on March 22, 1944, within the time allowed. There was a general denial of the allegations of the petition.
The prayer was that plaintiff take nothing and that the mineral interest be adjudged to remain in defendants.
The reply was a general denial. At the close of the plaintiff’s evidence the defendants demurred to it. This was overruled. The defendants thereupon introduced their evidence. The trial court found the issues generally in favor of the plaintiff on all the issues. The claim of the Emrichs by virtue of the deed in question was set aside and the title of the plaintiff was quieted. The defendants filed a motion for a new trial on the grounds of erroneous rulings of the trial court and that the decision was in whole or in part contrary to the evidence. The specifications of error are the overruling of defendants’ demurrer to the plaintiff’s evidence, in returning a judgment generally in favor of the plaintiff and in overruling defendants’ motion for a new trial.
By finding the issues of fact generally in favor of plaintiff, the trial court found in effect that plaintiff was a man of limited education and could not read, with no knowledge of oil and gas royalties; that Emrich promised he would drill an oil well within 300 feet of plaintiff’s property if plaintiff would give him one-half his royalty when the well was completed; that defendant Emrich prepared the papers, an escrow agreement and a mineral deed, which called for a well to be drilled within 1,400 feet and to be delivered if the well was started before March 1, 1944; that these papers were not prepared in accordance with the agreement of the parties; that the signature of the plaintiff was fraudulently obtained and plaintiff relied upon Emrich and particularly upon the representation that Emrich had acquired royalty from other persons; that they had agreed the deed was not to be delivered to Emrich by the escrow agent until the well was completed and the conveyance was a mineral deed and not a royalty; that Emrich knew of the fraud he had practiced upon plaintiff. The trial court further found in effect that the documents were placed in a bank and the royalty was to be delivered to Emrich upon completion of the well; that Emrich started work on the lease, placed a derrick and until the discovery of the fraud by plaintiff in 1947 could still complete the well and the well was about 65 feet deep. The trial court further found in effect that plaintiff did not give authority for the deed to be taken from the bank. There was no lawful delivery of the deed to Emrich and plaintiff had no notice or cause to think that the deed was not in escrow until November, 1947, and when plaintiff discovered that the mineral deed had been procured from the bank and recorded and that it was a mineral deed he immediately started action.
Defendants although they have a specification of error that the verdict was contrary to the evidence do not argue in their brief here that they did not commit the fraud. They rely solely on the statute of limitations, G. S. 1935, 60-306, subsection 3. It provides, in part, as follows:
“Third. Within two years: . . ! an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
They argue that by the terms of the escrow agreement the plaintiff knew that on March 1, 1944, if the condition was not complied with by Emrich he could go to the escrow holder and have the mineral deed returned to him; and that he did not commence this action until September, 1948, more than four years after the deed was executed and recorded. They argue that the cause of action began to run not from the date the fraud was-actually discovered but from the day the deed was recorded, or March 22, 1944.
The trouble about that argument is that the plaintiff had no reason to believe the deed had been delivered to Emrich since it was obtained by Emrich from the escrow holder surreptitiously. There never was any valid delivery of the deed to Emrich. Emrich kept his drilling rig in position so that plaintiff would be led to think he was proceeding in good faith. Under such circumstances plaintiff was not bound to take notice of the recording of an instrument, which the man who defrauded him had led him to believe was safely in the escrow holder’s hands. The rule is stated in Converse v. Watts, 127 Kan. 673, 275 Pac. 181, as follows:
“All through these opinions applying and approving constructive notice the modification is observed to the effect that if the evidence shows that the conduct of the defendant was such as to throw plaintiffs off their guard, or to lull them into a sense of security so as to lead them to omit or forego the examination of the records, then the statute begins to run from the date of the actual knowledge of the fraud.”
See, also, Gates v. Kansas Farmers’ Union Royalty Co., 153 Kan. 459, 111 P. 2d 1098; also Etenburn v. Neary, 77 Okla. 69, 186 Pac. 457. This action was timely begun after plaintiff discovered the fraud.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an appeal by an interested landowner to the district court of Saline county from findings of the board of. county commissioners allowing addition of described territory to the City of Salina upon petition of the city to that board under G. S. 1935, 12-501 and 12-502. Provision for such appeal is made in section 12-502a. The appeal was resisted by the city on the ground that said section 12-502a is an unconstitutional delegation of legislative functions to the district court, and its contention was sustained by the district court. The landowner appeals to this court from the above decision.
The city’s petition, filed with the board of county commissioners on March 15, 1949, asked the board to find that it was advisable to add certain territory (describing it) to the city, that it would be to the interest of the city that it be added, and that the addition would not result in manifest injury to those owning the tracts of land sought to be added (G. S. 1935, 12-501). Guy A. Thompson, trustee of the Missouri Pacific Railroad Company (appellant here), owned a tract of land 216 feet wide and a half mile long in the described territory sought to be added. A hearing was held as provided in section 12-502, and on April 12, 1949, the board found:
"1. That there is an acute shortage of housing facilities in and about the City of Salina, Kansas, and that it is advisable to add said territory described and set out in said petition to the City of Salina, Kansas, and that it would be to the best interests of said City that said territory be added to it.
“2. That the addition of said territory to said City would not result in manifest injuries to the persons, trusts and corporations owning properties and tracts within said proposed additional territory.”
The only questions involved in this appeal are: (1) Is G. S. 1935, 12-502a unconstitutional because it confers legislative authority upon the district court; and (2) if section 12-502a is unconstitutional, is the remainder of the act (G. S. 1935, 12-501 and 12-502) also unconstitutional?
The legislature has seen fit to vest authority to change the boundaries of cities in the board of county commissioners. The general legislative scheme for the enlargement of city boundaries is found in G. S. 1935, 12-501 et seq. When the city boundaries are to be enlarged, section 12-501 provides the governing body of the city shall in the name of the city present a petition to the board of county commissioners, and the following sections provide the procedure to be followed, and for the finding to be made by the board as follows:
“. . . upon such hearing, if said board of county commissioners shall be satisfied that the adding of such territory to the city will be to its interest and will cause no manifest injury to the persons owning real estate in the territory sought to be added, they shall so find.”
After such finding, the governing body of the city may by ordinance enlarge the city to include the territory sought to be added. Section 12-502a, the constitutionality of which is here in question, provides for appeal from the board’s findings to the district court. That section reads:
“Any owner of land sought to be taken into the limits of a city under the provisions of this act, who shall be aggrieved by the decision of the board of county commissioners may appeal to the district court of the same county in the manner and method as now provided by section 19-223, Revised Statutes of 1923.”
Section 19-223 provides:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
Are the findings which the board of county commissioners is authorized to make legislative acts solely so as to preclude appeal to the district court as authorized by section 12-502a? Determination of this point involves examination of prior decisions on the question.
The county board in the exercise of its original jurisdiction has at least two questions to determine when a proper petition is presented: (1) Whether the proposed change can be made without manifest injury to the persons owning real estate in the territory sought to be added; and (2) if so, whether the annexation shall be ordered. The first determination is judicial; the second legislative. The first may be made reviewable by a court although the second cannot. We are not to impute to the legislature an intention to disregard the constitution by attempting to give an appeal from a legislative order to a judicial tribunal, if such imputation can be avoided. There is abundant field for the operation of the statute without encroaching upon the-legislative power of the board. The appeal provided may be deemed as intended to refer to the only part of the board's action to which it can be made applicable — the judicial part — in determining that no injury would result to landowners by the proposed change. Inasmuch as there is room for the statute to operate without infringing upon the constitution, it will not be held void merely because a literal interpretation of its terms might give it a broader operation which would result in such infringement. The appeal taken in the case should not have been dismissed, for it was effective at all events to bring before the district court for review the question whether the change ordered by the board would cause manifest injury to the appellants, and to empower the court, if it should find that to be the case, to set aside the order attaching territory to the city as having been made without au thority. (Nash v. Glen Elder, 74 Kan. 756, 88 Pac. 62; Nash v. Glen Elder, 81 Kan. 446, 106 Pac. 292; Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 Pac. 451; Bolmar v. Shawnee County, 109 Kan. 91, 197 Pac. 880.)
Appellee city relies chiefly on the case of Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456, 117 A. L. R. 277, which involved a statute somewhat different from the one in the instant case. In the Ruland case, the legislature conferred original jurisdiction on the district court (R. S. 1923, 12-501, 502) to hear and determine both legislative and judicial questions with reference to enlarging the territory of a city. In that case, the court held the statute was unconstitutional for the reason that the attempted delegation of legislative power to the judiciary was unlawful. In the opinion it was said:
“Without quoting at length from the authorities, the correct legal principles deducible from them governing the territorial boundaries of municipal corporations may be thus stated: (1) The power to create municipal corporations, including the power to designate their boundaries and to increase or to decrease their corporate limits, is purely legislative — it is not a part of either the executive or judicial branch of the government. In the absence of constitutional restrictions the legislature may exercise this power at will, as was frequently done in our territory prior to the adoption of our Constitution. (2) Under a Constitution such as ours that legislative power must be exercised by a general law. (3) In so far as such general law requires the exercise of the discretion of some one in order to effect the creation of a municipal corporation, or the increase or decrease of its territorial limits, such general law must vest such discretion in some board or tribunal having legislative functions —such as the board of county commissioners. (Const., art. 2, § 21.) (4) But, in so far as such general law makes the organization of municipal corporations, or the change of their territorial limits, to depend upon specific questions of fact, such as the number of inhabitants, the amount of taxable property, the consent of a specific portion of the inhabitants, or electors, or taxpayers of the area affected, the trial of the questions whether such required facts exist, and the making of findings as to whether they do, or do not, exist, and rendering judgment thereon, is a judicial function properly referred to and determined by the courts. (Emphasis supplied.) (Dillon on Municipal Corporations [5th ed.], §§ 55, 62, 353, 355, 356; Cooley on Municipal Corporations, pp. 29, 31, 32, 98, 100; 28 Cyc. 134, 135, 187; 12 C. J. 856; 19 R. C. L. 700, 701; Lyon v. City of Fayette, 38 Idaho 705; Town of Fairbanks, Alaska, v. Barrack, 282 Fed. 417 [certiorari was denied, 261 U. S. 615]; Forsyth v. City of Hammond, 71 Fed. 443 [reversed on other grounds, 166 U. S. 506]; Glaspell v. City of Jamestown, 11 N. D. 86; In re Incorporation of Village of North Milwaukee, 93 Wis. 616; Brenke v. Borough of Belle Plaine, 105 Minn. 84; The City of Galesburg v. Hawkinson et al., 75 Ill. 152; doctrine adhered to in North v. Board of Education, 313 Ill. 422; The State of Kansas v. Young and others, 3 Kan. 445; Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598; Nash v. Glen Elder, 74 Kan. 756, 88 Pac. 62; 81 Kan. 446, 106 Pac. 292; Bolmar v. Shawnee County, 109 Kan. 91, 197 Pac. 880.)
“The case of Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 Pac. 451, well illustrates the difference between legislative and judicial functions in the matter of organizing, or changing the boundaries of municipal corporations. That case involved the proceedings before the board of county commissioners for organizing a city. The statute required the board of county commissioners to find, before the city could be organized, four things: (1) the number of inhabitants in the territory proposed to be incorporated; (2) that the petition for incorporation was signed by a majority of the electors; (3) and by a majority of the taxpayers; and (4) that the prayer of the petitioners is reasonable. The first three of these were held to be questions upon which a court could take evidence and determine the facts, and hence to be judicial questions.”
It may be noted that the Ruland case cites with approval the cases of Nash v. Glen Elder, supra, and Town of Olsburg v. Pottawatomie County, supra. As we read the Ruland case, the court held that the district court had power to determine judicial questions but. that it was unlawful to grant original jurisdiction to the court which would require findings of fact of purely legislative matters; that such was an unconstitutional attempt to confer legislative powers on. the judiciary.
It is well settled in this state that questions purely judicial in their nature arising under general laws, pertaining to the incorporation of cities, or to the increase or decrease of city boundaries, are properly determinable in our courts, and especially so if the questions, not judicial, pertaining to such matters, are left to some body as the mayor and council of the city or the board of county commissioners having legislative and administrative powers. (Town of Olsburg v. Pottawatomie County, supra; Bolmar v. Shawnee County, supra; Heatherman v. Kingman County Comm’rs, 123 Kan. 77, 254 Pac. 321; State, ex rel., v. Drainage Dist., 123 Kan. 191, 254 Pac. 372; State, ex rel., v. Davis, 144 Kan. 708, 62 P. 2d 893; Shawnee County Comm’rs v. Wright, 147 Kan. 542, 78 P. 2d 44.)
Statutes should not be held unconstitutional unless it is clear that they conflict with constitutional provisions. In determining the constitutionality of a statute questioned as delegating legislative functions to courts, there can be no presumption that such was the legislative intent. The legislature is presumed to have acted within its proper sphere, to have been cognizant of the three branches of our government — the legislative, executive and judicial — and with their respective scope, power and functions, and to have enacted the statute in question with the purpose of exercising its own legislative powers to the extent necessary to carry out the purposes of the statute, and of submitting to the court only judicial functions properly within its sphere. This presumption must be indulged and is controlling unless it is clear, from the provisions of the statute, that it does in fact attempt to delegate to the courts powers and functions purely legislative.
Our conclusion is that the statute in question is not invalid. The judgment of the district court is reversed with directions to reinstate the appeal and proceed with the trial in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for injuries alleged to have been sustained when plaintiff was caught between a truck driven by one of the defendants and a pillar in the driveway of an elevator where plaintiff was working. The trial court sustained defendant’s demurrer to plaintiff’s evidence. He has appealed.
The petition alleged first the residence of the parties; that Minson and Kimble were holders of a common-carrier permit and as a prerequisite to the issuance of this permit the state corporation commission required a liability policy of insurance to be filed with the commission; that Minson and Kimble did obtain such policy from defendant insurance company and filed it with the commission; that this policy provided the company would pay any damages incurred as a result of the negligent operation of a certain 1944 Chevrolet truck; that Kimble and Minson were operating as a partnership under the name of M & K Truck Line on November 30, 1946. The petition then alleged that on November 30, 1946, plaintiff was em ployed by the Mulvane Cooperative Union and was performing the duties of his employment when defendant Kimble drove his truck into the elevator and against plaintiff in a negligent manner and crushed plaintiff against a cement pillar; that Kimble was guilty of negligence, in operating the truck with insufficient lights, in failing to keep a lookout, in operating the truck with faulty brakes, in operating the truck so that he could not stop when he saw or could have seen plaintiff, in failing to allow sufficient clearance between the truck and the cement pillar, in driving at an excessive rate of speed, in driving into the elevator before he was authorized to do so, in operating the truck of a width in excess of that allowed by law, in failing to stop immediately when he saw or should have seen plaintiff, in running into plaintiff and crushing him against the pillar ; that one or more of these acts of negligence were the proximate cause of plaintiff’s injuries; that Kimble was operating the truck for himself and Minson, his partner, and the defendant insurance company was liable under its policy. The petition then alleged plaintiff’s injuries. The prayer was for damages in the amount of $31,055.76.
The defendants filed a joint answer in which they denied all facts not admitted; they admitted the residence of the parties and the issuance of the policy; they denied specifically that at the time of the damages the truck was being operated pursuant to a common carrier permit; that Kimble and Minson were operating as a partnership; and that on November 30, 1946, Kimble was operating the truck on behalf of Minson.
The answer also alleged that plaintiff was guilty of contributory negligence in walking into the path of the truck, in failing to keep a proper lookout, in entering the truck passageway through the elevator when he knew or should have known the truck was passing through the passageway, in failing to give warning to other users of the passageway of his intention to enter it.
The reply was a general denial.
The plaintiff testified about being crushed between the truck and a cement pillar in the driveway of the elevator; that the truck was being driven by defendant Kimble. A statement about some of. the physical facts will be made now. What is referred to as the driveway of the elevator ran north and south and has a door at each end. It was the custom for patrons of the elevator, who had grain to sell, to enter the driveway with their trucks or teams and wagons at the south door and to drive to a point about forty feet from the south door, a little more than halfway through the driveway, where there was a dump, at which the load of grain was dumped into bins of the elevator company; and then to drive out the north door. About every six or eight feet there were pillars that extended about eight inches into it on each side of the driveway; the distance between the pillars on each side was not more, than nine feet, four inches;'the truck bed was eight feet wide; the driveway was about sixty feet from north to south, so it was about twenty feet from the dump to the north door; opposite the dump and through the east wall of the driveway there was a doorway about five feet wide, which opened into a feed room; on the morning in question when the truck first arrived at the elevator both the north and south doors were closed; when plaintiff first saw the truck he was in the office, Kimble was talking to the manager of the elevator and the truck loaded with corn was facing south; the lights in the driveway were not on; plaintiff opened the south door and it was fairly dark inside ; he had seen the truck on the scales while he was in the office; in order for it to enter the driveway it was necessary that it make a complete turn and come in the south door. He testified that it was not necessary for the north door to be open to dump the grain, but it was necessary that it be opened for the truck to leave after having dumped. After he opened the south door he went to the dump and swept some grain into it. He then went to the door into the feed room, which has been mentioned heretofore; he reached through it and turned on a compressor; to do this he reached around the door and did not leave the driveway; from there he started toward the north door to open it; the last time he saw the truck it was making a turn to come in the south door; he did not see it come in; he knew the width of the driveway and the width of most trucks; after he saw the truck about to come in the south door he started to the north door. He testified he had taken about three steps from the feed room door when the truck caught him between the truck bed and the pillar that was right by the door. At another point in his testimony he said he felt the fender on his leg and the next -thing he knew the truck had hit him. He testified that the truck driver said immediately afterward “I didn’t see him, I was watching this other side.” He also testified there was a custom of signaling trucks when the elevator people were ready for them to come into the driveway; that at the time the truck entered he was not ready for Kimble to come in and he did not give him the signal to come in; that the custom was to wave truck drivers in when ready; that Mr. Kimble had been on the premises before, plaintiff did not know how many times; plaintiff had worked for the elevator company for about four years; his duties consisted of waiting on customers, weighing, loading and unloading grain, running the elevator, and doing everything that might come up.
The manager of the elevator testified he did not hear Mr. Kimble sound any horn or give any signal when he was coming into the driveway; the north door of the elevator was shut, and lights from the truck would probably have shown against the door had there been any headlights. He testified “We had a custom in the elevator of telling our customers when they should enter the driveway. The customary signal was 'come on in’ and the man who gave this signal was the man who was set up at the elevator. Mr. Kimble had been on the premises prior to the time of this accident . . .”
In answer to a direct question, he testified the lights of the truck were not on when Kimble drove into the elevator. A copy of the insurance policy was introduced. It gave the name of the insured as Joyce W. Minson and Carl R. Kimble, doing business as M. K. Truck Line; that their occupation was trucking; that the insured was a partnership and that the certificate had been transferred from a former holder to defendants Minson and Kimble by order of the corporation commission.
The defendant demurred to this evidence for the reason that it failed to show facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants and for the further reason that it appeared from the evidence plaintiff was guilty of contributory negligence, which would be a bar to recovery.
This demurrer was sustained- — hence this appeal.
Defendants’ first argument is that the evidence did not show Kimble to be guilty of any negligence. They concede that on a demurrer to the evidence we must draw all inferences from it favorable to the plaintiff and disregard all contradictory and unfavorable evidence.
Undoubtedly such is the rule. (See Gilmore v. Kansas City, 157 Kan. 552, 142 P. 2d 699, and Smith v. Kansas City, 158 Kan. 213, 146 P. 2d 660.)
Defendants concede also that Kimble owed the duty to plaintiff to exercise reasonable care under the circumstances since both parties were lawfully on the premises.
Plaintiff on this appeal argues that of the ten specific allegations of negligence of defendant he proved four, that is, operating the truck with insufficient and improper lights, failure to keep a proper lookout for others lawfully on the premises, failure to allow ■ sufficient clearance between his truck and the cement pillar, and driving into the elevator before he was authorized to do so.
Defendant argues first that there was no evidence the truck was equipped with insufficient or improper lights. The charge does not relate to the lights with which the truck was equipped. The charge is operating the truck with insufficient or improper lights. There is' direct testimony that the lights on the truck were not turned on. Operating a truck without the lights turned on when they should have been would be covered by a charge of operating a truck with insufficient lights. Defendants depend on the rule that Kimble was under a duty to observe reasonable care only under all the surrounding circumstances and stated there was no evidence the existing circumstances created any need for lights. The plaintiff testified, however, that after he opened the south door the lights in the elevator were not on and it was fairly dark in the driveway. A reasonable inference to be drawn therefrom is that Kimble drove his truck into a fairly dark driveway without turning on the lights of the truck. It is true plaintiff testified he thought it would have been possible for a man driving a truck into the elevator to see a person walking ahead of him at the time he got right in the door. The fact remains, as testified to, that had the lights of the truck been burning they would have shown against the north door and would have served as a warning to plaintiff of the approach of the truck, or at least that it was in the driveway. Where ordinary reasonable men might differ as to whether Kimble failed to exercise due care when he drove into the driveway the question was for the jury. (See Hill v. Southern Stage Lines Co., 143 Kan. 44, 53 P. 2d 923; and Bergman v. Kansas City Pub. Ser. Co., 144 Kan. 27, 58 P. 2d 110.) Certainly reasonable men might well differ on that question under these surrounding facts and circumstances. We cannot hold as a matter of law that Kimble was not negligent in not turning on the lights of his truck before he drove in.
Defendants also argue there was no evidence at all in the record that defendant Kimble failed to keep a proper lookout for others on the premises.
In this connection defendants describe plaintiff’s movements just before he was hit and state the record shows plaintiff was not in the portion of the driveway in front of- Kimble at -any time after he quit sweeping grain. As a matter of fact, the evidence is clear that the driveway was very little wider than the truck and plaintiff was never out of the driveway at any time after he opened the south door. While it is true that plaintiff was hit while he was at the side of the driveway rather than directly in front of the truck, the fact remains he was never more than a half a foot from the direct path of the truck. To say plaintiff was not in front of the truck at any time is taking too narrow a view of the oral evidence and the physical facts.
There is testimony by the plaintiff that defendant Kimble said immediately after hitting plaintiff: “I did not see him, I was watching this other side." Defendant asks us to say that as a matter of law defendant Kimble owed no duty to plaintiff to look out for both sides of the driveway. We cannot do that. Ordinary reasonable minds might well differ on the question of whether Kimble exercised due care under all the surrounding facts and circumstances.
Defendants next argue there is no evidence in the record that Kimble drove into the elevator before he was authorized to do so. In this connection defendants argue that plaintiff could have opened the north door before he opened the south door and that the south door standing open constituted an invitation for Kimble to enter.
There is testimony of the plaintiff that it was the custom to signal drivers when the elevator people were ready for them to drive in and that he did not signal Mr. Kimble. There was testimony of the manager to the same effect. Defendants argue there was no evidence tending to prove that Kimble knew of any such custom. There was testimony of the plaintiff and the manager of the elevator both that Kimble had been on the premises, furthermore he was a truck driver. On consideration of a demurrer to the evidence we hold this all made the question of whether Kimble drove into the driveway before he was authorized to do so a matter for the jury.
On the question of contributory negligence, defendants recite the movements of plaintiff from the time he opened the south door until he was hit. They say the concrete pillars made a shield for his body and argue that had he stayed behind one of them he would have been safe but that he stepped out from behind a pillar directly into the path of the truck. In this connection it must be noted that plaintiff was facing north, away from the direction of the oncoming truck when he was hit.
On the question of whether a plaintiff was guilty of contributory negligence so as to bar his recovery, on the consideration of a demurrer to the plaintiff’s evidence, we said, in Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721:
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.”
The rule is so well settled as to not require citation of further authorities.
Defendants argue the evidence- is such that ordinary reasonable minds could not reach any other conclusion than that plaintiff failed to exercise due care for his own safety.
We think it too strict an interpretation of the plaintiff’s evidence. We have demonstrated that it was a question for the jury whether Kimble failed to exercise due care when he drove into the driveway without turning on his lights and before he had been given the signal to do so. Such being the case, it is a jury question whether plaintiff had a right to rely on Kimble not coming in without his lights turned on and before he was given the signal to. Furthermore, we have demonstrated it was a question for the jury whether Kimble kept the proper lookout, hence it is a jury question whether plaintiff had a right to rely on Kimble keeping a proper lookout. Plaintiff was going about his duties in walking toward the north door to open it. In view of all the surrounding facts and circumstances, we cannot hold plaintiff was guilty of contributory negligence as a matter of law.
It follows that the defendant’s demurrer should have been overruled.
The judgment of the trial court is reversed, with directions to proceed to try the action, in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Parker, J.:
This is an original proceeding in habeas corpus.
Petitioner is confined in the state penitentiary under a judgment and sentence of the district court of Allen county for larceny of an automobile. Prior to being sentenced he was tried and found guilty by a jury. Thereafter he took an appeal to this court which resulted in affirmance of the judgment. Throughout all proceedings he was represented by competent counsel.
The facts and circumstances leading up to and resulting in petitioner’s present incarceration are fully set forth and reported in State v. Leigh, 166 Kan. 104, 199 P. 2d 504. So are this court’s reasons for affirmance of the judgment of conviction.
The only grounds actually presented and relied on as requiring petitioner’s release in this proceeding are (1) that the evidence in district court was insufficient to support a conviction for larceny, and (2) that the trial court erred in denying his motion for new trial. Each of the claims now advanced was fully presented, argued and disposed of by this court in State v. Leigh, supra. There is nothing new in either of them. Upon resort to the record of each proceeding it clearly appears petitioner is simply attempting to obtain a rehearing through the medium of habeas corpus. That he cannot do.
This court has repeatedly held that habeas corpus is not a substi tute for appeal (Jamison v. Hudspeth, 168 Kan. 565, 213 P. 2d 972; Townsend v. Hudspeth, 167 Kan. 366, 205 P. 2d 483). Analogous reasoning compels the conclusion it cannot be used as a guise for a second appeal. We so hold.
The writ is denied. | [
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The opinion of the court was delivered by
Wertz, J.:
This case involves two appeals, the first from an order of the lower court appointing a receiver, and the second from an order overruling the demurrers to plaintiffs’ amended petition. We will treat the appeals in order.
The Chetopa Advance, a newspaper published in the town of Chetopa, was formerly owned by Howard C. and Lillian L. B. King; the plaintiffs Orrin L. Browning and Rosalee M. Browning, husband and wife, purchased the newspaper and equipment on January 30, 1945, under a conditional sale contract signed by both the Brownings and a copy attached to their petition, under the terms of which plaintiffs agreed to pay Kings the sum of $7,500 as therein specified, $1,000 on the date the contract was executed, and the balance of $6,500 payable in 120 equal monthly installments beginning on July 10, 1945, and continuing until the balance of the principal and interest was paid. It was mutually agreed that possession of the property be given to plaintiffs subject to the terms of said contract, and th,at the property was not to be repossessed. by Kings unless there were as many as four payments delinquent thereon; but in the event four or more payments should become delinquent and unpaid, the plaintiffs agreed to surrender and deliver possession of the property to the Kings and upon their failure to do so, Kings might proceed by any lawful means to obtain possession thereof, and all sums paid by plaintiffs were to be retained by Kings as liquidated damages for failure of performance and use of the property. Title to any additions or replacements of the property or equipment was to vest immediately in Kings and pass to plaintiffs only on their performance of the contract. Plaintiffs were to maintain the property in good condition and operate it as a going concern, pay all taxes levied against the property and maintain insurance at all times in the total amount of $4,000 to protect the Kings. Time was made the essence of the contract and it was further provided that any indulgences granted by the Kings should not constitute a waiver of any of their rights under the contract. No waivers or modifications were to be valid unless written upon or attached to this contract and signed by the parties. Title to the property was to remain in the Kings until all sums due under the contract had been fully paid, and the contract could be negotiated or assigned, or payment thereof renewed or extended without title passing to the Brownings.
The plaintiffs Browning defaulted in this contract and on October 30, 1948, an extension agreement between the Brownings and Kings was executed, and a copy thereof was made a part of plaintiffs’ petition. Pertinent provisions of this extension agreement are: That Kings were owners of the newspaper being operated by the Brownings under a conditional sales contract dated January 30, 1945; that Brownings being delinquent in the payments required under said contract desire an extension thereof. It was agreed there was due from Brownings to Kings the sum of $6,049.96 which represented the unpaid balance and accrued interest under the original contract; that Brownings should pay such amount to the Kings in equal monthly installments of $78.57, the first installment to be paid November 12, 1948, and the remaining installments on the 12th day of each month thereafter. It was agreed the covenants and agreements of the original conditional sales contract should remain in full effect and that this agreement was for the sole purpose of extending the terms of said contract. It was further agreed that if Brownings defaulted under the terms of this extension agreement, they would lease their building then occupied by the newspaper to the Kings for a term of five years at a monthly rental of $25 and carry insurance for fire and extended coverage upon the equipment in an amount not less than $5,000. The Brownings thereafter did default on the extension agreement, and on April 25, 1949, entered into a contract with W. A. Blair, which contract also was made a part of plaintiffs’ petition herein. Provisions of the Blair contract are here quoted:
“EXHIBIT ‘C’
“Agreement
“This agreement made and entered into this 25th day of April, 1949, by and between Orrin L. Browning and Rosalee M. Browning, parties of the first part and W. A. Blair, party of the second part;
“Witnesseth; that whereas the said parties of the first part are the equitable owners of the Chetopa Advance, a weekly newspaper and printing shop located in Chetopa, Kansas, by virtue of a certain Conditional Sales Contract with Howard C. King and Lillian L. B. King, holders of the legal title to said newspaper and printing plant, and
“Whereas the said parties of the first part are delinquent in their payments under said Conditional Sales Contract, and
“Whereas the said Howard C. King and Lillian L. B. King have informed said parties of the first part that they would commence a replevin action to foreclose said Contract, and
“Whereas the said party of the second part agrees to purchase the said Chetopa Advance togéther with the real estate in the name of the parties of the first part, for a total sum of Eighty-five hundred ($8500.00) dollars;
“Now Therefore it is agreed by and between the parties hereto that in consideration of the payment of $1,486.74, and the assumption of the indebtedness to Howard C. King and Lillian L. B. King under the Conditional Sales Contract aforesaid and the assumption of a certain real estate mortgage in the amount of $1,930.00 upon the real estate occupied by the said Chetopa Advance, the said parties of the first part agree to Grant, Bargain and Sell unto the said party of the second part all of their right, title and interest in and to the said Chetopa Advance, including all equipment, good will and supplies, and to further convey by Warranty Deed the real estate occupied by the said Chetopa Advance.
“It is further agreed by and between the parties hereto that the said party of the second part shall pay to the said parties of the first part the sum of $500.00, upon the signing of this agreement and that the balance shall be due and payable upon the signing of a Conditional Sales Contract between the party of the second part herein and Howard C. King and Lillian L. B. King.
“It is further understood and agreed by and between the parties hereto that out of the balance due the said parties of the first part that the said party of the second part shall pay to Howard C. King and Lillian L. B. King the sum of $500.00 and that the said party of the second part shall obtain a release in full from the said Howard C. King and Lillian L. B. King, releasing the said parties of the first part from any and all liability under the certain conditional sales contract and extension thereof heretofore entered into between the said parties of the first part and the said Howard C. King and Lillian L. B. King.
“It is further understood and agreed by and between the parties hereto that the said parties of the first part shall turn over to the said party of the second part the building, equipment, supplies and good will of the Chetopa Advance on the 1st day of May, 1949.
“It is further understood and agreed by and between the parties hereto that the Warranty Deed duly executed shall be deposited with Willis K. Dillenberger, Attorney-at-Law, as escrow agent, and to be held by him until the full purchase price is paid, as before set forth, to the said parties of the first part.
“The said parties of the. first part agree to comply with the Kansas Bulk Sales Act and to pay all accounts payable on or before the 15th day of May, 1949.
“In Witness Whereof, the parties hereto have hereunto affixed their signatures the day and year first above written.
“Signed, W. A. Blair Signed, Orrin L. Browning
Party of the Second Signed, Rosalee M. Browning
Part Parties of the First
Part”
Blair took possession of the newspaper and continued its publication for three weeks until May 23, 1949, when this action was commenced by the Brownings, co-owners of the equitable interest in the newspaper. The Brownings, plaintiffs, are residents of the city of Cleveland, Okla. Defendant Blair is a resident of Oswego, Kan. Defendants Howard C. King and Lillian L. B. King, husband and wife, are nonresidents of the state of Kansas whose mail address is Sutton, Neb. Defendant Willis K. Dillenberger is a resident of Oswego, Kan., and has no interest in this case except as escrow holder. The petition alleges in part: That on January 30, 1945, plaintiffs Orrin L. Browning and Rosalee M. Browning entered into a conditional sales contract with the Kings, a copy being made a part of the petition as hereinbefore related, for purchase ,of the Chetopa news paper; thereafter on October 30, 1948, plaintiffs and the Kings entered into a supplemental agreement extending the time for payment of the balance of the purchase price due under the original sales contract. This supplemental contract was also made a part of the petition, its contents having been heretofore related. The petition continued:
“7. That Plaintiff, Orrin L. Browning, became sick and ill in both mind and body and was incapable of carrying on his business in his usual manner. That Plaintiffs did become in arrears in the payments due under said contract. That defendants Howard C. King and Lillian L. B. King were threatening to repossess the property purchased by plaintiffs under said contract. That plaintiffs were indebted to other creditors who were also threatening plaintiffs with lawsuits.
“8. That while plaintiff Orrin L. Browning was both physically and mentally ill the defendant W. A. Blair conspired with the defendants, Howard C. King and Lillian L. B. King to purchase the equitable interest of plaintiffs, under said conditional sale contract. That while plaintiff Orrin L. Browning was in a distressed physical and mental condition and while being oppressed by demands of his creditors, plaintiffs were induced to enter into a sale agreement with the defendant W. A. Blair at and for a price of Eighty-Five Hundred Dollars ($8,500.00).”
Plaintiffs further allege that pursuant to the contract, Blair paid them $500, which money plaintiffs now offer to refund to Blair and tender the same into court; Blair has gone into possession of the property, both real and personal, and is now operating said weekly newspaper and printing business; and defendant Blair and defendants King have concluded their dealings pursuant to the contract marked Exhibit “C.” They further allege that after purchasing the property under the original sales contract, they materially enhanced and added to the value thereof, and further:
“11. Plaintiffs allege that said defendant Blair with the aid and assistance of the said Howard C. King and Lillian L. B. King fraudulently conspired together to take advantage of the mental, physical and financial condition of the plaintiff Orrin L. Browning to drive an unconscionable, fraudulent and oppressive bargain. That the consideration for such contract is grossly inadequate, constituting only about one-half the actual value of the real estate and personal property involved.”
Plaintiffs then allege that this action is brought to set aside a fraudulent contract for the purchase of real estate and personal property, and unless a receiver is appointed, defendant Blair, now in possession of the property, will dispose of same by removing, selling or depleting it without replacement, to the loss and prejudice of the plaintiffs. They then pray that the agreement between plaintiffs and defendant Blair and all agreements and instruments of conveyance entered into between the defendants Blair and the Kings be set aside and held void, and that a receiver be appointed to take over the management and control, and the operation of the property involved.
Plaintiffs filed a motion for appointment of a receiver at the time the petition was filed. Hearing on this motion was held on June 11 on notice to defendant Blair only, who opposed the appointment of a receiver. Constructive service not having been completed and defendants King being nonresidents, no notice of the hearing was given them, although they had the largest financial interest -in the property involved. At the hearing, Orrin L. Browning, the only witness testifying for plaintiffs, stated that he did not know whether he was alarmed about Mr. Blair not keeping the equipment and everything in good shape. He knew Mr. Blair and his son were experienced newspaper operators; that they had operated a newspaper in Oswego; he had not been in the plant for three weeks, and did not know whether he could tell the court that Mr. Blair was not properly taking care of the plant; he had sent no one to the plant to inquire.
Defendant Blair then moved the court to overrule the application for appointment of a receiver for the reason that plaintiffs had offered nothing whatever to justify the court in appointing a receiver for the property involved. His motion was overruled.
Defendant Blair and his son then testified in their own behalf. Robert L. Blair testified: They.had cleaned up the place and substituted worn out parts of machinery with new parts; the machinery was now in good condition; the total value of all the articles turned over to them would be about $30.00; and that he had been in the newspaper business for 25 years. W. A. Blair testified that he took charge of the newspaper on May 1 and printed his first paper there on May 5; he could assemble a plant comparable to this newspaper plant for $5,000; he paid Browning $8,500 and to date had paid $2,100 on the purchase price; the plant was in better condition than when turned over to him; they were now getting out an eight-page paper where before the publisher got out a four-page paper.
The court thereupon sustained the application for appointment of a receiver, from which order defendant Blair has appealed to this court assigning as error (1) the order overruling appellant’s motion to dismiss the application for appointment of a receiver; and (2) the order appointing a receiver in the above cause.
Plaintiffs base their right to a receiver on that part of G. S. 1935, 60-1201 which reads:
“A receiver may be appointed . . .
“First: In an action by a vendor to vacate a fraudulent purchase of property ... or between . . . [parties] . . . jointly owning or interested in any property ... on the application of the plaintiff or of any party whose right to or interest in the property ... or the proceeds thereof is probable, and where it is shown that the property ... is in danger of being lost, removed or materially injured.”
Defendant Blair complains that plaintiffs did not bring themselves within the provisions of this statute.
The rule has been stated that the power to appoint a receiver is limited almost exclusively to cases where it is necessary in order to prevent fraud, to save the subject of litigation from material injury, or to rescue it from threatened destruction. It is not properly exercised in any case where there is no fraud or imminent danger of the property sought to*be reached being lost, injured, diminished in value, destroyed, wasted or removed from the jurisdiction. (45 Am. Jur. 32, § 30; Elwood v. National Bank, 41 Kan. 475, 21 Pac. 673.)
At no place in this record is it disclosed or even intimated that the property in question was in danger of being lost, removed or materially injured; on the contrary, the evidence did show that the property in possession of defendant Blair, a competent newspaperman of many years’ experience, had been improved, necessary repairs made, and the size of the newspaper increased from four to eight pages. It is only in cases of the greatest emergency that courts are warranted in tying up a business or property by appointing a receiver to take it from the control of the owners; neither should a receiver be appointed unless it is absolutely necessary and there is no other adequate remedy. A receiver should never be appointed where it may do irreparable injury to others or where greater injury is likely to result from such appointment than if none were made. (Feess v. Bank, 84 Kan. 828, 115 Pac. 563.)
The question raised by the second appeal is, did the court err in overruling the separate demurrers of defendants Blair and the Kings to the amended petition. Separate motions to strike certain portions of the original petition were filed and overruled. Separate motions to make more definite and certain were filed by Blair and the Kings, and were sustained in toto. Paragraphs 1 to 6 and 10 to 13 inclusive of the original petition were included in the amended petition, and the contents having been heretofore related will not be repeated. Plaintiffs by amendment in compliance with the court’s order state in substance in paragraphs 7 to 10 of the amended petition: Paragraph 7, that Orrin L. Browning, age 58 years, became sick and ill both in mind and body, which sickness became acute in December, 1948, and continued until June, 1949, during which time he suffered a severe secondary anemia due to a bleeding of the lower bowel and rectum, heart irregularity, and severe headaches; he was in extreme pain both from hemorrhoids and the injection treatments being administered. As a result of such physical condition, extreme pain and suffering, he became nervous, weak, despondent, and mentally unstable. In paragraph 8, plaintiffs allege that as a result of plaintiff Orrin L. Browning’s mental condition, for a period of thirty days prior to December, 1948, and continuing to May, 1949, he was unable to work and produce revenue and income and relinquished possession and control of the newspaper; that he incurred certain obligations in connection with the newspaper business, and. during a period from November, 1948, to May, 1949, plaintiffs were being pressed for payment of such obligations by their creditors, including the Kings, defendants. In the 9th paragraph, plaintiffs state that defendant Blair made overtures to purchase the newspaper business from them in the summer of 1948; that he inspected the newspaper plant during the negotiations; that Orrin L. Browning quoted to Blair a price of $16,500 for the newspaper plant and physical assets; after plaintiffs had entered into an extension agreement and renewal contract with the Kings on October 30, 1948, defendant Howard C. King advised Browning on the following day that he had talked with Blair, who offered to purchase said newspaper plant and physical assets for $11,000, and King then and there told Browning he had better sell to Blair at that price. In a later conversation, King advised Browning that Blair had increased his offer to $11,500, and again told Browning he had better take that price. In April, 1949, King notified plaintiffs he was going to take over the newspaper plant by repossession, whereupon Browning wired King asking the amount required to pay in full the amount due under the contract; King replied by telephone advising Browning he must have the full amount due under the contract plus interest and a further sum of $500, and that all such amounts must be paid on or before the day following their conversation. Browning asked for 48 hours’ time in which to raise the required amount, but his request was refused. King at this time advised Browning he had talked with Blair and Blair would buy the newspaper plant at a figure unnamed. Following this telephone conversation, Browning called Jim Reed of Chetopa and asked him to have Blair come in to see him. On the following day Blair made an offer to purchase the newspaper plant from the Brownings for $8,500, at that time stating to the Brownings: “You understand I wouldn’t have to pay you anything. I could get ’the paper for the amount against it plus attorney fees, I’m given to understand.” Plaintiffs further allege that Orrin L. Browning being then and there physically ill, suffering extreme physical pain, despondent and in an unstable mental condition, accepted said offer, stating to Blair: “I guess I have no other choice.” That as a result of the conspiracy entered into between Blair and the Kings as above set forth, and plaintiff Orrin L. Browning being oppressed by his creditors insisting upon payment of their accounts, plaintiffs were induced to enter into a contract for sale of their equitable interest in said newspaper plant, premises and physical assets for the sum of $8,500; that said sale agreement was made and entered into on April 25, 1949, a copy thereof being attached to the original petition marked exhibit “C” and made a part of the amended petition.
Does the amended petition state facts sufficient to constitute-actionable fraud or conspiracy? The words fraud and conspiracy alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity until connected with some specific act for which onfe person is in law responsible to another; they have no more effect than other words of unpleasant signification. (Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999; Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 89 P. 2d 847; Sullivan v. Paramount Film Distributing Co., 164 Kan. 125, 187 P. 2d 360.) Before there can be a civil action for conspiracy, the pleader must plead facts which establish the elements required as a matter of law. And by a complete failure to plead any unlawful act or acts, this amended petition must fall as to the conspiracy. It is apparent the court sustained the motion, to make more definite and certain in the first instance because the original petition contained no such allegations, and the amended petition has not cured that defect.
The allegation of fraud set forth in the amended petition is based on the fact that King stated he was going to take over and repossess the newspaper plant because plaintiffs were in default on their conditional sales contract by more than four payments and were over two years in default on the payment of taxes, and the contract was therefore subject to foreclosure. We have held that it is not duress to bring or threaten to bring an action to enforce a valid obligation —to do that which a party has a legal right to do. And where one obtains a bill of sale on a threat to cause an attachment to be levied on the land of the debtor, it does not constitute such duress as would enable the debtor to avoid the contract. (Shelby v. Bowman, 64 Kan. 879, 68 Pac. 1131; Banking Co. v. Veale, 84 Kan. 385, 114 Pac. 229.)
Plaintiffs contend the consideration was grossly inadequate to support the contract of sale to Blair. However, the petition alleges plaintiffs purchased this property on a conditional sales contract from the Kings in January, 1945, for a consideration of $7,500; that they had possession and operated the newspaper over a period of years up to and including the 25th day of April, 1949; that they made some improvements and made a few payments under the contract; that they were in default both for payments on the contract and for taxes; and they resold the paper in 1949 to defendant Blair for $8,500. Mere inadequacy of consideration is not enough in itself to warrant equity in assuming jurisdiction for the purpose of canceling an instrument, for chancery lacks the power and will refuse to relieve a party from the effects of an injudicious, hard, unfortunate, or improvident bargain where there has been no fraud or imposition, where it was entered into with full knowledge of all the facts and where the situation is such that the parties can form independent judgments or understand fully the nature of the transaction. A court of equity will not assume power to administer justice because of the hardship of the case or the failure of a party’s remedy at law. Nor does equity relieve parties from bargains because they are hard, oppressive or unprofitable, or because anticipated profits have not been derived therefrom. (9 Am. Jur. 371; 19 Am. Jur. 57.)
Nowhere in plaintiffs’ amended petition do they state that by reason of Browning’s illness, his mind was affected to such an extent that he was unable to comprehend his acts or the results thereof. And no place in the petition is it contended that any disability existed in the mind or body of his co-owner and co-plaintiff, Rosalee M. Browning, or that any undue advantage was taken of her. She signed the conditional sales contract, the extension agreement, and the contract of sale to Blair. Plaintiff Orrin L. Browning had the benefit of her advice and wisdom prior to signing the sales con tract with Blair. This court has said that it is the duty of one who signs a written contract to. know the contents thereof , and that he should be bound by its terms in the absence of any false representations made to him as to its contents. (Lumbar v. Erickson, 126 Kan. 31, 266 Pac. 737.)
Plaintiffs’ amended petition shows clearly that the Kings had extended to plaintiffs every opportunity to comply with the original conditional sales contract and extension agreement thereto; the amended petition further discloses that they were about to lose their newspaper because of their indebtedness, not to the Kings alone, but to other persons who had no connection with the defendants in this proceeding, and that in order to save any equity in the property, they made the sale to Blair. No place within the four corners of the petition are any facts alleged on which fraud or conspiracy could be based or even inferred.
The case is reversed and remanded with directions to the court to set aside the appointment of the receiver and to sustain defendants’ demurrers to the amended petition. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from a conviction of first degree murder and a sentence of life imprisonment in the state penitentiary. Briefly, the facts are as follows: Medardo Cantu and his wife drove defendant’s daughter, Julia, and one Basilio Aquero to New Mexico to be married, and all returned to Ulysses the same day. Defendant, learning these facts, took his gun and called at Cantu’s home about 1:00 o’clock the next morning, where during the altercation that followed, Cantu was shot twice. Mrs. Cantu ran to a neighbor’s home and defendant went there also and knocked on the door, but was dissuaded from further action and went to a doctor’s office for treatment of cuts received on his body, and was there arrested by local police. Cantu died without making a statement.
Complaint was filed in the Justice Court on April 22, 1949, pursuant to G. S. 1935, 21-401 charging defendant in that he . . did then and there unlawfully, feloniously, willfully, deliberately and premeditatedly kill one Medardo Cantu, by shooting him, the said Medardo Cantu, contrary to the form of the statutes. . . A warrant was issued describing the offense in the language of the statute, and was returned the same day; defendant waived preliminary hearing, which waiver was later ratified by advice of counsel; a plea of not guilty was entered; and defendant was bound over to the District Court and committed to the county jail. An information was filed April 28,1949, charging defendant with first degree murder, and on May 3 defendant appeared with his attorney Howard Maxwell, waived arraignment and entered a plea of not guilty. Discussion followed in regard to the time to be set for trial, defendant objecting to an immediate trial on the ground that he was not ready, nor was he demanding an immediate trial, and the case was set for trial on July 18, no further objection being interposed. On July 18 the case came on for trial at a special term of court, a special jury having been drawn, at which time Mr. Shields, an attorney for the defense, objected to trial at this term of court on the ground the statute required that an information be returnable at the next regular term. His objection was overruled, no further objection was made of record, and the trial proceeded.
The first assignment of error is that the transcript of the Justice of the Peace did not charge defendant with first degree murder. The pertinent part of the transcript, in addition to a copy of the complaint, reads:
“April 22, 1949. . . . The Complaint and Warrant having been read to the defendant, Cosme Rangel, here present. The defendant waives preliminary hearing after which the defendant is bound over by and from the Justice Court to the District Court of the County of Grant, State of Kansas. The defendant is committed to the Grant county jail until released by due process of law.
“On April 27, 1949, appeared Frank R. Collins, County Attorney, who advised the Court that defendant had obtained counsel and moved that defendant and counsel appear to ratify and approve the above waiver of hearing. Thereupon the defendant and his attorney stated to the Court that no preliminary hearing or examination was desired and waived same, and entered a plea of not guilty.”
One of the principal purposes of a preliminary examination in a criminal case is to give the accused general information of the char acter of the alleged offense and to apprise him of the nature of the evidence he will be required to meet when he is subjected to a final prosecution in the district court (State v. Willhite, 161 Kan. 113, 166 P. 2d 562). It must be remembered that these preliminary proceedings are generally had before Justices of the Peace, officers not learned in the law, and if the same fullness and precision, the same precautions against all the contingencies of the testimony, were required there as in the information or indictment, justice often would be delayed and defeated. All that can be required is that there shall be a single statement containing the substantial facts of the offense charged, and then the prosecutor in preparing the information may use many counts, varying in them the formal and nonessential matters of the crime (State v. Spaulding, 24 Kan. 1; McIntyre v. Sands, 128 Kan. 521, 278 Pac. 761).
No question is raised as to the sufficiency of the complaint or the warrant — to which the defendant had waived his right to a preliminary hearing; nor that defendant was not fully advised as to the nature of the crime with which he was charged. Moreover, it is clear from a reading of the transcript that the defendant was bound over to the district court for trial on a charge of murder in the first degree as set forth in the complaint and warrant read to him. On April 28 the county attorney filed in the District Court an information charging defendant with the crime of murder in the first degree. Defendant filed no motion, nor did he make any objection to the sufficiency of this information or any prior proceedings, and on May 3 he appeared with his counsel in District Court, waived arraignment, and entered a plea of not guilty. Having waived arraignment and entered a plea of not guilty, defendant cannot now complain of any technical defect in the transcript of the Justice of the Peace, even had one existed (Cooper v. Hudspeth, 166 Kan. 239, 199 P. 2d 803).
The April term of the District Court began April 11 and ended December 4. Defendant waived preliminary examination on April 27; the information was filed April 28; he waived arraignment and pleaded not guilty on May 3, and the trial began on July 18. It is contended by defendant that the case was not triable until a term of court beginning after the defendant waived his preliminary. G. S. 1935, 62-1301 provides:
“All indictments and informations shall be tried at the first term at which the defendant appears, unless the same be continued for cause. If the defend ant appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause.”
The language of the statute is plain and direct leaving no doubt that the cause was properly triable at the April term. The defendant was in custody at that term, at which the information was filed, and under the statutes the court was required to try the case unless cause for continuance was shown (State v. Asbell, 57 Kan. 398, 46 Pac. 770; State v. Lund, 49 Kan. 580, 31 Pac. 146; In re Garner, 134 Kan. 410, 5 P. 2d 821).
At the time of arraignment on May 3 the only objection made by defendant was that he was not ready or demanding trial at that time. The case was then set for’July 18 and no further objection was made, although the court on two subsequent dates, June 11 and July 8, advised both counsel for the state and for defendant to be ready to proceed on that date. On July 18, the day set for trial, counsel for defendant objected only on the ground that the information should have been returnable at the next regular term. We believe the time allowed for preparation of defendant’s case in this rural community was adequate. It was not stated there was testimony which the defendant was unable to procure at that term, nor did he contend he could not have a fair trial. He had stipulated that the jury drawn by the court be approved in all particulars and agreed that a verdict be rendered by them. Courts are vested with much discretion in protecting the orderly progress of business therein pending, and under the facts of this case, we cannot say that such discretion was abused in assigning this case for hearing at the same term in which the information was filed.
Defendant complains of the use of an interpreter employed by the state during the investigation of the case. However, the record disdoses that defendant had an interpreter of his own and used him at the trial. No objection was made at the time of the trial to use of such interpreter, and no showing has been made that the interpreter did not properly perform his duties or that the defendant’s rights were prejudiced thereby.
Defendant next complains that the court overruled his motion for new trial, charging error on two grounds: newly discovered evidence and that he was forced to take up his motion for new trial three days after the verdict was rendered. As to the first ground, defendant submits but two affidavits, one made by defendant’s daughter, and one by a neighbor. No showing was made of any diligence used by defendant to have either of these witnesses present at the trial; and both lived in the town where the trial was held. Moreover, neither affidavit contained new evidence; at most it was merely cumulative.
As to the second ground, the jury returned its verdict on July 20 at which time the defendant through his attorney stated he desired to file a motion for new trial and agreed that such motion be heard on July 23. In the interim, defendant employed additional counsel who appeared on July 23, objected to the hearing on the motion for new trial and asked permission for additional time to procure affidavits and obtain further information on which to base the defense argument on the motion. He further stated they had received information which led them to believe there was a possibility certain jurors may have been prejudiced in the case, and requested additional time on the further ground that the newly obtained additional counsel had been recently employed and had not had sufficient time to prepare for the hearing. The court granted a continuance until four o’clock that afternoon, but defendant and his counsel appeared at two o’clock and stated in response to a question by_ the court:
The Court: “Do you have anything further to offer?”
Mr. Green (newly employed counsel for defendant): “Nothing, except that this man was charged with manslaughter and finds himself winding up with a first degree murder verdict against him.”
The record discloses that defendant retained Mr. Maxwell as counsel at the preliminary hearing, and thereafter and prior to his trial in the district court, employed Mr. Shields as additional counsel. Both represented defendant throughout the proceedings. Inasmuch as defendant was ably represented throughout the trial of this case by counsel of his own choosing, there is no merit to defendant’s contention and we find nothing in the record which would indicate the court abused its discretion in overruling defendant’s motion for new trial.
After a careful study of the entire record in this case, we are of the opinion that defendant had a fair and just trial. The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for damages for personal injuries, and plaintiff appeals from a ruling of the district court sustaining defendant’s demurrer to plaintiff’s evidence on the ground that it failed to show actionable negligence on the part of the defendant.
The facts may be briefly stated. Plaintiff, a customer, entered defendant’s dress shop to look at house dresses; she selected two which she wished to try on and, at the direction of a saleslady then busy serving another customer, went to a fitting room at the rear of the store. Seeing two identical curtained doorways, plaintiff entered the one directly ahead of her and found herself in a small office containing a chair and desk with a lighted lamp upon it; noticing a door slightly ajar immediately to her right, she mistakenly assumed it led to the fitting room and entered, but had advanced only a few steps when she fell down a flight of steps to the basement storeroom, sustaining the injuries for which recovery was sought in this action.
In her amended petition, plaintiff alleged negligence in the following particulars: (1) Defendant’s clerk directed plaintiff to the fitting room by pointing to the southwest corner of the store; (2) there were no placards or directions in defendant’s store to advise plaintiff as to the location of the fitting room at the rear of the store; (3) defendant failed to adequately light the stairway leading from the office to the basement; (4) defendant failed to warn plaintiff by signs or otherwise of the existence of the stairway; and (5) defendant failed to erect a gate or barrier around the door at the head of the stairway.
Error is charged in the court’s rulings sustaining defendant’s demurrer to plaintiff’s evidence, and denying plaintiff’s motion for new trial. Inasmuch as both assignments of error involve the same point and require an examination of the record, we will treat them together.
The primary question to be considered is whether the plaintiff’s evidence, viewed in the favorable light to which it is entitled on demurrer, established a cause of action against the defendant. In deciding this point, we must determine the legal duty owed by defendant to plaintiff, a customer and invitee in its place of business.
The proprietor of a store, shop, or other place of business kept open for public patronage is not under an insurer’s liability as to the safety of persons who come thereon, but he does owe to customers who enter the premises, while the establishment is open for business, the duty of exercising ordinary care to keep the aisles, passageways and such other parts of the premises as are ordinarily used by customers in transacting business in a reasonably safe condition for use by the persons thus entering, and to warn them of dangerous conditions upon the premises which are known, or which reasonably should be known, to him but not to them. (38 Am. Jur. 791.) The duty of the proprietor of a place of business which is open to public patronage to use ordinary care to make the premises reasonably safe for customers is generally limited to that part of the premises designed, adapted, and prepared for the accommodation of customers, or to which customers may reasonably be expected to go. The duty of the proprietor of a place of business to his customers does not require him to render safe for their use parts of the building reserved for use only by him and his employees, such as private offices, shipping rooms and warerooms, unless he expressly or impliedly invites or induces a customer to enter such a reserved part. (38 Am. Jur. 794, and cases cited.) A person who has received an injury in consequence of passing through a wrong doorway in a part of the building not designed for the use of uiiattended customers cannot recover unless he was induced to enter therein by the invitation or allurement of the proprietor. (38 Am. Jur. 796, and cases cited in note 15.)
The Kansas case of Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571, is authority for the general rule quoted above. To the same effect is Hickey v. Fox-Ozark Theatres Corp., 156 Kan. 137, 141, 131 P. 2d 671, in which this court said:
“The general rule is well established that proprietors of places of public entertainment or amusement are not insurors of their patrons against injury, but are only chargeable with the exercise of what under the particular circumstances is ordinary or reasonable care. This question was considered in our recent case of Klish v. Alaskan Amusement Co., 153 Kan. 93, 109 P. 2d 75.”
Cases from other jurisdictions also support this general rule as to the duty owed a customer by the proprietor of a store. The following is quoted from a Kentucky case, Wall v. F. W. Woolworth Company, 209 Ky. 258, 272 S. W. 730, in which plaintiff was injured by falling down a defective flight of stairs while helping a salesgirl serving her in loosening some tangled clothesline:
“The general rule, as stated in Thompson on Negligence, § 988, is that a merchant is not required to keep his premises safe but only that part to which his customers are invited. But this duty does not extend so far as to make such an occupant responsible for the unsafe condition of those parts of his premises not intended for the reception of visitors or customers, and where they are not expected or invited to go,” citing Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240, 191 N. W. 99, 27 A. L. R. 579; Ferguson & Palmer v. Ferguson’s Adm’r (Ky.), 114 S. W. 297; Smith v. Trimble, 64 S. W. 915, 23 Ky. Law Rep. 1206; Menteer v. Scalzo Fruit Co., 240 Mo. 177, 144 S. W. 833.
See, also, annotations covering this general rule appearing in 33 A. L. R. 181, 43 A. L. R. 866, 46 A. L. R. 1111, 58 A. L. R. 136, 100 A. L..R. 710, and 162 A. L. R. 949.
Was defendant negligent in this legal duty owed plaintiff, a customer in its place of business? To determine this, we must examine plaintiff’s evidence. As-the only witness in her own behalf, plaintiff testified that she entered defendant’s shop about one o’clock in the afternoon; she had been in the store a couple of times previously, the last time being about a year before; her purpose on entering was to look for house dresses; she proceeded to the racks upon which they were displayed; the saleslady in the shop came back to help her and she selected two dresses.
“Q. And then what happened?
“A. Well, then another lady came in and she went to wait on her and I asked her if I could try them on and she said, 'certainly, right in the back’ (illustrating).”
“Q. I notice you made a motion with your hand and said ‘certainly, right there in back’. Now which direction was she pointing? Now which direction was she pointing when you made that motion with your hand?
“A. Right in back where the curtains were.” . . .
“Q. How far would you say it was from the rack where 'you, picked up these two dresses to the curtains that you were talking about? ' .
“A. About four or five feet I imagine.”
Plaintiff further testified that the day was cloudy and it was rather dim in the store; the lights were not on; the curtains she was talking about and had walked to were of plain material, sort of red in color, and were two-panel curtains; that one of the curtains which led into the little office was open just a Tittle.
“Q. All right, now then what did you do?
“A. Well, I — thinking that was the dressing room, I went into the one that the curtain was open and then I knew that I was in a little office; I knew that was not the dressing room so I turned to the other door and I—
“Q. (interrupting) All right, just a moment here. Going into the office, when you got in behind this curtain, what was there in that little space?
“A. There was a desk and a chair.” ... ’
“A. A small light on the desk with a shade on it.
“Q. Was that light burning?
“A. Yes.”
Plaintiff testified that no one was in the office.
“Q. All right, what else did you see in the room with reference to another outlet?
“A. Well, there was a door to the north.
“Q. All right, what sort of a door was it? I mean, was it a wooden door or just a curtain?
“A. It was a wooden door.
“Q. All right, just describe this door to the jury as to whether or not it was closed or open?
“A. It was ajar just slightly, a little bit.”
She further testified that the door opened inward; that she pushed the door open — •
“Q. Now on the inside I will ask you to tell the jury whether — what the condition was in that room as to whether it was dark or dim or light?
“A. It was dim.”
Additional testimony was that there was a lighted lamp on the desk back of her; she took about two steps forward and fell down the stairs; there were no signs around the curtains or the door; and there was no railing around the steps.
As disclosed by her own evidence, when plaintiff reached the little room at the rear of the store, she recognized it to be a private office and not the dressing room and, instead of turning back for further information after discovering she was in such a reserved place, continued on a course foreign to her and opened a wooden door leading from the private office to a basement storeroom also reserved for private use. It cannot be said that defendant failed to exercise ordinary care for the safety of its customers by failing to anticipate that some customer might wander from the main part of the store into that portion of the premises not adapted to the customer’s use but reserved for the management and its employees.
Ordinarily a question of negligence is one for the jury, but where upon the undisputed testimony no facts or circumstances are shown which in the minds of reasonable men can be said to constitute a cause of action based on negligence, it becomes a question of law to be determined by the court when the sufficiency of such evidence is properly challenged. (Hickey v. Fox-Ozark Theatres Corp., supra; Smith v. Mead Construction Co., 129 Kan. 229, 233, 282 Pac. 708; Cleghorn v. Thompson, 62 Kan. 727, 733, 64 Pac. 605; Greiving v. La Plante, 156 Kan. 196, 131 P. 2d 898.) Applying this rule in conjunction with the rules which govern defendant’s legal duty to this plaintiff, we must conclude that plaintiff’s evidence, viewed in the light most favorable to it, does not establish a cause of action against defendant as it presents no facts or circumstances which would justify a finding of actionable negligence.
It is also argued that evidence on the part of plaintiff established that she was guilty of contributory negligence as a matter of law. In view of our holding that the demurrer was properly sustained by the lower court, it is unnecessary to discuss at any length the question of contributory negligence. Suffice it to say that plaintiff was traveling a course she did not know; the door leading from the private office was partially closed and the light dim; on pushing the door inward she was standing at the entrance of a basement stairway, no bar or barrier about the steps, and was confronted with darkness which is always a signal of danger. The darkness or dimness of light called upon her to exercise greater caution for her own safety than is ordinarily required and it was her duty under such circumstances to refrain from proceeding farther without finding out where she might safely go, and by this failure to exercise ordinary care for her own safety, she was guilty of negligence as a matter of law. (Kurre v. Graham Ship By Truck Co., 136 Kan. 356; 15 P. 2d 463; Jones v. Swatszel, 145 Kan. 99, 64 P. 2d 555; Boyce v. Brewington, 49 N. M. 107, 158 P. 2d 124, 163 A. L. R. 583; see, also, annotation beginning 163 A. L. R. 587.)
It follows that the cqurt did not'err,in sustaining defendant’s demurrer to plaintiff’s evidence. The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.;
On December 17, 1948, as the result of a trial had in the district court of Butler county, Charles Henry Hall was sentenced to the state penitentiary for a period of not less than ten years nor more than twenty years for the crime of burglary in the second degree, and for not less than five years nor more than ten years for the offense of larceny in connection with a burglary, the sentences to run concurrently. Following, that he was duly committed to the state penitentiary, where he remains.
In September, 1949, Hall commenced a proceeding against the warden of the state penitentiary in the district court of Leavenworth county for a writ of habeas corpus, his petition for the writ containing fifteen “points,” the substance of which was that the county attorney schemed to and did use false testimony against him; that one witness was coerced to give testimony against petitioner; that the evidence was received of two accomplices, who were not charged in the information upon which the petitioner was tried; that the trial court erred in permitting the county attorney to cross-examine petitioner about previous derelictions for which he was not on trial; that he was without counsel when first arraigned; that he is innocent of the charges in the information on which he was tried and that he was convicted without due process of law. In due time the warden filed his response, denying generally, and alleging the proceedings under which he held the petitioner; that petitioner’s sentence had not expired and that petitioner was not entitled to the writ of habeas corpus.
The proceeding came on for hearing on September 19, 1949, and, as disclosed by the journal entry of judgment, the petitioner moved for a continuance in order to obtain additional testimony, and the cause was continued to October 17, 1949, at which time the petitioner offered his evidence in full, the respondent offered his evidence, and upon consideration thereof the trial court found that the writ of habeas corpus theretofore issued should be discharged and the petitioner remanded to the custody of the respondent. If there was any motion for a new trial, it is not included in the abstract of the record.
In due time the petitioner perfected his appeal to this court. In view of the record before us we shall not attempt to point out those allegations in the petition concerning matters which could be raised only on appeal. In his abstract of the record the petitioner has not included any of the evidence received in the trial court, and we may only assume, by reason of the trial court’s ruling, that it resolved all questions of fact against the petitioner. Every ground urged by the petitioner in his brief in this court and properly before the court in a habeas corpus proceeding depends upon the establishment of the facts upon which it is based. Those facts having been determined adversely to the petitioner, there is nothing left for discussion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal by the state from an order of the district court discharging an accused from prosecution because of his being denied a speedy trial.
The facts on the issues as presented to the Rial court are not in dispute.
The movant, appellee here, was charged with the theft of an automobile on March 26, 1968. While out on bail awaiüng Rial he again became involved and was charged with attempted robbery on April 8, 1968.
On April 10, and 11, 1968, the movant was Ried and convicted on the automobile theft charge and sentenced to the Kansas State Re formatory at Hutchinson. He was there until June 24,1969 — thirteen months — at which time he was paroled and returned to Wyandotte County. The attempted robbery charge was set for trial on Monday, September 29, 1969.
On or about September 18, 1969, the movant filed his motion for discharge. The motion reads:
“Comes now the defendant above named, C. D. Brooks, and moves the Court for an order discharging him from trial in the above entitled matter [attempted robbery] because of the failure of the State to comply with the provisions of K. S. A. 62-1431, and 62-1432, and for the further violation of Section 10 of the Bill of Rights of the Constitution of the State of Kansas which guarantees the defendant a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and for the further violation of the Sixth Amendment to the United States Constitution which also guarantees the defendant-accused, the right to a speedy and public trial by an impartial jury of the state and district where the alleged crime shall have been committed, and for the further violation of Section 1 of the Fourteenth Amendment to the United States Constitution which guarantees to the defendant due process of law and equal protection of the laws.”
The motion was tried before the district court on September 24, 1969, and on September 26, 1969, a journal entry was filed in which the trial court concluded:
“. . . The Court concludes as a matter of law that it must follow the mandate of the United States Supreme Court in the case of Smith v. Hooey, 89 S. Ct. 575 (1969), and other similarly well-reasoned cases, and that the defendant must be discharged in compliance with K. S. A. 62-1431.
“It Is, Therefore, Considered, Ordered, Adjudged and Decreed that the defendant, C. D. Brooks, be and he is discharged from prosecution in the above entitled case on this 26th day of September, 1969.”
The state has appealed.
The appellant contends that Smith v. Hooey, 393 U. S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 is not controlling under the facts before us and K. S. A. 62-1431 has no application.
We are inclined to agree.
In Smith v. Hooey it was determined that the right to a speedy trial as expressed in the Sixth Amendment to the Constitution of the United States was made applicable to the states by reason of the Fourteenth Amendment but the court gave little practical guidance for effectuating the right or for determining when the right has been violated. We do not find that it changed any of the rules announced in Fleming v. United States, 378 F. 2d 502, where the United States Circuit Court of Appeals, First Circuit, stated:
“As to defendant’s additional contention that the post-indictment delay violated his Sixth Amendment right to a speedy trial, as well as the ‘unnecessary delay’ clause of Rule 48 (b) which enforces this right, we point out that this delay was also very short — eleven months. Furthermore, ‘the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.’ United States v. Ewell, supra, 383 U. S. at 120, 86 S. Ct. at 776. Consequently, the showing of a mere lapse of time is not enough to establish denial of a speedy trial. As indicated above, it is essential that defendant also show prejudice or that the delay was improperly motivated.” (p. 504.)
It would also appear from the above cases that a request is necessary before defendant can complain of failure to grant a speedy trial under the federal rule.
We next turn to the Kansas requirements for a speedy trial. The Kansas Constitution provides in Section 10 of the Bill of Rights that every person accused of a crime is entitled to a speedy trial. Although the language of this particular section is similar to that of the Sixth Amendment to the United States Constitution its definition is somewhat different. We have in a number of cases concluded that the Kansas constitutional right to a speedy trial is defined by the various statutory provisions enacted to supplement the general language of the constitution. Prior to 1959, this court consistently held that K. S. A. 62-1431 and K. S. A. 62-1432 defined the right to a speedy trial as it existed under Section 10 of the State Bill of Rights. In State v. Williams, 187 Kan. 629, 630, 360 P. 2d 11, we stated at page 630 of the opinion:
“. . . What constitutes a speedy trial is said to be legislatively defined by G. S. 1949, 62-1431 and 62-1432. (See In re Trull, 133 Kan. 165, 167, 298 Pac. 775; State v. Hess, 180 Kan. 472, 474, 475, 304 P. 2d 474; State v. Goetz, 187 Kan. 117, 353 P. 2d 816.) In its decisions (See, e. g., State v. Stanley, 179 Kan. 613, 615, 296 P. 2d 1088, and State v. Hess, supra.) . . .”
K. S. A. 62-1432 applies only where the accused is out on bail waiting trial and could have no application here.
The statute (K. S.A. 62-1431) cited by the trial court as authority for its conclusion provides:
“If any person under indictment or information for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term.”
The above statute is definite as to time and no request by the defendant is necessary. However, it has never been construed as applicable to a situation such as we have here where the defendant was not brought to trial because incarcerated in a penal institution on a previous conviction. Rather, the statute has been applied to situations where the defendant was confined in a local jail because of inability to make bail pending trial. (See McCullough v. Hudspeth, 168 Kan. 39, 41, 210 P. 2d 413.) Also, in Cooper v. State, 196 Kan. 421, 411 P. 2d 652, we stated at page 426:
“. . . Both K. S. A. 62-1431 and K. S. A. 62-1432 are designed to carry into effect the constitutional guaranty of expeditious trial. The first statute provides, in substance, that where a person who is held in jail has not been brought to trial before the end of the second term of court after he was indicted or informed against, he is entitled to be discharged (with exceptions not here material). The lapse of 52 days between the date of plaintiff’s arrest and the date he was sentenced is well within the limits set out in the statute.” (Emphasis supplied.)
It may well be said that the statements made in McCullough and Cooper were dicta. However, the statements were closely related to the questions presented and do indicate the opinion of the court. There are no statements to the contrary.
In 1959 the Kansas legislature passed the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62-2901, et seq.). This act, for the first time, provided the manner in which an inmate of a penal institution might require the disposition of any criminal charges pending against him. The act provided a method whereby one incarcerated in a penal institution could make applicable to him the legislative definition of speedy trial. Again, this court noted that the Uniform Mandatory Disposition of Detainers Act is a portion of the legislative definition of the right to speedy trial under section 10 of the State Bill of Rights. (Brimer v. State, 195 Kan. 107, 402 P. 2d 789.) However, unlike the procedure under K. S. A. 62-1431 and 62-1432, an inmate in a penal institution must take affirmative action to comply with the Uniform Mandatory Disposition of Detainers Act before he is entitled to relief under that act. (State v. Goetz, 187 Kan. 117, 121, 353 P. 2d 816.) Hence, in the absence of a demand for relief under the Uniform Mandatory Disposition of Detainers Act, the right to a speedy trial has in effect been waived by one incarcerated in a penal institution.
It now appears that the appellee would abandon the theory under which his motion for discharge was presented to the trial court and rely on the provisions of K. S. A. 62-2901, et seq. Appellee states in his brief:
“The appellee will present his brief on the basis that the trial court was correct in its ruling although the trial court may have assigned a reason and cited a case not exactly in point as to the exact matter in question here, but very much in point as to the spirit of the law as it now exists in the State of Kansas,”
Appellee would now contend that “the trial court should have found that K. S. A. 62-2901, et seq., applied.”
One difficulty with appellee’s contention is that the motion for discharge made no mention of K. S. A. 62-2901, et seq. Neither was the statute mentioned by the appellee in the presentation of the question to the trial court. Another and more vital difficulty is that the appellee made no showing that he had complied with the mandatory provisions of the act or showed by satisfactory proof why he had not done so. In Brimer v. State, 195 Kan. 107, 402 P. 2d 789, we held in paragraph 2 of the syllabus:
“To obtain the right of a speedy public trial provided by section 10 of our Bill of Rights, as legislatively defined by the Uniform Mandatory Disposition of Detainers Act, it is incumbent upon the accused incarcerated in a penal institution of this state to comply with all provisions of the Act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it.”
The judgment is reversed and the case remanded to the trial court for further proceedings.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Parker, J.:
This is an original proceeding in quo warranto to oust Vernon C. Axton from the office of mayor of the city of Parsons, Kan. It was instituted in the name of the state on the relation of the attorney general under the provisions of G. S. 1935, 60-1609 et seq., providing for the forfeiture of a public official’s office for willful misconduct or willful neglect to perform duties enjoined upon him as such an official by the laws of the state. Portions of the statute, authorizing the institution and maintenance of the proceeding and material to the issues involved, read as follows:
“Every person holding any office of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, who shall willfully misconduct himself in office, or who shall willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state of Kansas, . . . shall forfeit his office and shall be ousted from such office in the manner hereinafter provided.”
Defendant was first elected mayor of the city of Parsons in April, 1947, for a two-year term. He was reelected in April, 1949, and was serving his second term as mayor on the date of the commencement of this proceeding.
The petition, filed on July 6, 1949, contains two causes of action and details at length the acts and conduct on which the state bases its right to oust the defendant from office. For our purposes the substance of what is therein set forth is all that is required and that .can be briefly summarized.
.The first cause of action charges the defendant with willfully neglecting to perform the duties of suppressing gambling and other laws of the state in the city of Parsons and alleges that during his ■first term of office he entered into a conspiracy with his brother, Ray Axton, and his brother’s partner, Lee Weekly, to set up and operate gambling devices in that city with the understanding that he was to insure them that the Parsons police department would not molest the operation of such devices and that he would participate in their earnings when they were set up and in operation. It then charges that the conspiracy continued during the mayor’s second term of office, that during such term he actively assisted in carrying out its purposes, and that as a result he not only failed to suppress gambling in the city, as was his duty, but willfully misconducted himself in office.
In its second cause of action the state alleges that during the defendant’s first term as mayor the chief of police, Frank A. Williams, was using his office as chief of police to extort payments of money from various individuals in the city of Parsons, who were engaged in gambling and other violations of law, with defendant’s knowledge and assent but nevertheless he reappointed Williams to that position after being reelected in April, 1949. Further allegations are to the effect that thereafter, and during his second term, the defendant failed, neglected, and refused to discharge such officer even though the latter’s unlawful activities continued and were specifically called to his attention.
On July 6, 1949, the plaintiff made application for the appointment of a commissioner to take evidence and make suggested findings of fact and conclusions of law. The next day it applied for an order suspending the defendant from office during the pendency of the action. The application for suspension was resisted by the defendant and set down for hearing. After it had been presented and considered this court decided it would be in the public interest to grant an order of suspension and an order was made accordingly. In that order it indicated that upon the filing of an answer by the defendant a commissioner would be appointed to take evidence as to the truth and falsity of the charges filed by the state and to make findings of fact and conclusions of law as it had theretofore requested.
Some two weeks later the defendant filed his answer. When analyzed the sum and substance of its allegations amount to a general denial of the charges made by the plaintiff and a claim that defendant had at all times conducted himself in office as a faithful public official.
The court then gave consideration to the appointment of a commissioner and appointed Hon. J. G. Somers of Newton, a capable attorney and a former district judge of long experience, as its commissioner to hear the 'evidence, make findings of fact and conclusions of law, and report to the court. At a prolonged hearing in the city of Parsons the commissioner took the testimony. Thereafter he made findings of fact and conclusions of law which have now been returned by him together with his report. Such findings and conclusions read: ,
“FINDINGS OF FACT
“1. The City of Parsons, Kansas is a city of the first class, governed by a commission of three members. Vernon C. Axton was elected Mayor of the city and qualified and served from April 16, 1947, until he was suspended by this court on July 16, 1949, having been re-elected in April, 1949. In April, 1947 and again in April, 1949, Frank A. Williams, upon the motion of Vernon C. Axton, as Mayor, was appointed Chief of Police of Parsons, by the Board of Commissioners and served as such until he was dismissed by action of the board on July 7, 1949 at a meeting called for the purpose of accepting his resignation. He refused to resign and upon motion of Commissioner Koontz, seconded by Commissioner Minton, which motion was carried unanimously, Williams was discharged. The mayor did not attend the meeting, although notified in advance that the meeting would be held.
“2. Ray G. Axton, a brother of Vernon C. Axton, and prior to May, 1949, a resident of New Orleans and Jennings, Louisiana, was the owner of a one-half interest in the Packard Distributing Company, a Louisiana corporation, organized for the purpose of sale and distribution of coin operated devices. The Packard Distributing Company as a corporation was a partner with one Lee Weekley, the partnership operating under the name of Lee Amusement Company. This partnership operated slot machines and other coin operated devices in and around Crowley, Louisiana, prior to May 16, 1949.
“3. In November and December, 1948, Vernon C. Axton called his brother, Ray Axton, on long distance at Crowley, Louisiana, twice and at Jennings, Louisiana, once. In January, 1949, he called Lee Weekley at Crowley, Louisiana, once. Someone from the same phone number in Crowley, over which Vernon C. Axton had talked to both his brother and Lee Weekley, called Vernon C. Axton once during that time. Vernon Axton made at least one trip to Jennings, Louisiana in November, 1948, and saw his brother, Ray. On December 17, 1948, Lee Weekley came to Parsons and placed in operation a slot machine in the Twentieth Century Grill owned by Leona Claggett. On December 21, 1948, a lieutenant on the Parsons police force, Jerold W. McMullen, about 4:00 p. m., secured a search warrant for the Twentieth Century Grill, and told Frank A. Williams, Chief of Police, he had a warrant to search and seize a slot machine at that place, and that he was on his way then to get the machine.
“After the lieutenant left the police station enroute to the Twentieth Century Grill, the desk man at police headquarters, by radio directed the lieutenant to call the mayor on the telephone, which the lieutenant did. The mayor told him over the phone to ‘hold up on it for a while’, and the warrant was never served. Lee Weekley removed the machine that day or the next.
“4. Vernon C. Axton, aside from his duties as mayor, was engaged in the real estate business. He had listed by the owner, Virgil Siesser, a building at 21st and Briggs Streets in the city of Parsons, Kansas. The night of December 20, 1948, some mysterious person called Ruben Powell, an employee of the Parsons Park Department, who had been appointed such by Vernon C. Axton, and told him, Powell, to bring a hammer and nails to the building at 21st and Briggs, which Powell did. On arriving there, some other person, a stranger to Powell, and who was sitting in-a car bearing a Louisiana license plate, di rected Powell to nail paper over all of the windows of the building. Powell did this. About 4:00 a.m., a big motor van bearing'Louisiana license plates unloaded a number of music boxes, pin-ball machines, one-ball machines, and ‘one-arm bandits.’ About this time the mystery man paid one month’s rent to Virgil Siesser, who was also present and stated he, the stranger, represented Lee Weekley, and that Lee Weekley would pick up the rent receipt. No one identified this stranger, but Ray Axton, the mayor’s brother, was in Parsons on that date, and this strange man answered Ray Axton’s description. Lee Weekley later got the rent receipt. Coin operated machines, including slot machines of the ‘one-armed bandit’ type were stored here from December 21 until April 1st, different numbers, types and machines at different times; it was not ‘dead storage’. The rent on this building for the following period, January 20, 1949 to February 20, 1949, was paid by Vemon C. Axton. The rent from then to April 1, when the building was vacated, was paid by Howard Hammett, at the request of Vernon C. Axton, who later reimbursed Hammett. At the time Axton requested Hammett to make the payment, Axton stated, ‘It might look a little better,’ and also told Hammett that there were some machines in the building which fact Hammett later verified, finding pin-ball, one-ball, consoles and parts of a ‘one-armed bandit.’ When the machines were moved from 21st and Briggs to the Virgil Siesser farm on April 1, Hammett arranged with the transfer company for their removal, paid the costs, $16.00, and was reimbursed by Vernon C. Axton therefor. The machines were moved because the building was then sold and a new owner wanted possession. Neither Powell, Siesser, nor Hammett were particularly cooperative witnesses.
“5. On March 23, 1949, Lee Weekley called Mayor Vernon Axton twice on the telephone from Crowley, Louisiana, and on April 6, Weekley again called Vernon Axton twice. On May 16, 1949, Lee Weekley returned to Parsons, registering at a hotel. His announced purpose was to set up and operate slot machines and other coin operated machines. He gave assurances that everything was all right, and there would be no police interference. About the same time, Ray Axton moved to Coffeyville, Kansas and assisted Lee Weekley in setting up machines in Parsons. At least one machine was then placed in operation at the Twentieth Century Grill, operated by Leona Claggett, Weekley telling her everything was all right. At 12:30 a.m., May 23, 1949, during the absence from the city of Chief of Police Williams, the police and a deputy sheriff found the machine in operation, picked up the machine, and arrested Leona Claggett. Charlotte Claggett, a daughter, immediately called Lee Weekly at the Matthewson Hotel in Parsons, and told him what had happened. Fifteen or twenty minutes later, Weekley called her and said everything was all right, and she then went to the police station, got her mother and took her home. A few minutes after Leona Claggett was brought to the police station, under arrest, Mayor Axton called the commanding officer at the police station, and directed that Mrs. Claggett be released without bond, which was done. Before 9 o’clock that morning when the case was to have been tried, the mayor directed that it be continued until the next day, May 24. Chief of Police Williams returned to Parsons sometime the night of May 23-24, and saw the mayor about 8:30 the morning of May 24 at the mayor’s office, where the mayor gave him, Williams, his, the mayor’s personal check for $28.00. This check was taken by the chief of police immediately to the Kalchner Serv ice Station in the 2300 block on West Main Street and cashed. The chief of police then deposited $50.00 in cash with the police judge as bond for Leona Claggett. Lee Weeldey, meanwhile that morning, had telephoned Mrs. Claggett that she need not appear in police court ‘that everything had been taken care of’.
“6. On May 25, 1949, a conference was held between Glenn Jones, City Attorney, Roy Woods, and Louis Wallen, two friends and supporters of the mayor, Clyde Reed, Jr., Editor of the Parsons Sun, and Mayor Axton. This conference was occasioned by some extremely bad publicity appearing in the Parsons Sun the night before. Publicity adverse to the mayor, the chief of police, and the city administration. At this meeting both the mayor and the chief of police tendered their written resignations, later that day withdrawn before acceptance. On that day, Ray Axton telephoned from Coffeyville to his brother, Vernon Axton, at his home, and they met in Cherryvale, Kansas. At 11:57 p. m., Vernon Axton telephoned from his home to his brother in Coffeyville. The next day, May 26, Ray Axton in Coffeyville, telephoned Lee Weekley in Crowley, Louisiana, and Lee Weeldey telephoned Ray Axton at Coffeyville. Vernon Axton, from his residence in Parsons, telephoned his brother, Raj', in Coffeyville, at 8:30 that night. At 7:14 p. m., the next day, May 27, Veinon Axton, from his home in Parsons, telephoned his brother in Coffeyville, and at 7:25 p. m., his brother telephoned Vernon. May 28, at 6:52 p. m., Vernon Axton, from his home, telephoned Ray in Coffeyville, and on May 29, at 7:51 a. m., Lee Weeklej', from Crowley, telephoned Ray Axton at Coffeyville. May 30 at 12:08 p. m., Lee Weekly again talked long distance with Ray Axton in Coffejwille, and Ray then telephoned some person in New Orleans at University No. 1020, and Vernon Axton talked from his office in Parsons to his brother in Coffeyville a.t 7:40 p. m. From then on Vernon and Ray were in almost daity communication with each other until shortly before the hearing. Lee Weekley talked long distance from Crowley, Louisiana to Ray Axton in Coffeyville on June 2, June 7 and June 12, and the two brothers talked to each other over long distance on each of these days. Later, July 26, Vernon Axton with Ray Axton went to Pryor, Oklahoma, for the purpose of finding storage space for the machines then in custody of the Labette County Sheriff, and Vernon Axton was present when Ray stated that he represented Lee Weeldey, and Vernon Axton knew that Ray then had a written order from Weeldey for the machines.
“7. Sometime in November or December, 1948, the respondent, Vernon C. Axton, entered into a conspiracy with his brother, Ray Axton, and Lee Weekley, whereby the latter two would set up slot machines in Parsons. Kansas, and Vernon C. Axton would insure that the police of the city would not molest the operation of the slot machines. This conspiracy was entered into during the respondent’s first term of office, but was carried over and put into effect in the present term of office of the respondent.
“8. Frank A. Williams, Chief of Police of Parsons, Kansas during the year 1948, was demanding, extorting and receiving various sums of money from diverse persons in the city of Parsons, Kansas for permission to. conduct unlawful poker games, operate unlawful gambling devices, unlawful sale of intoxicating liquors, and that Vernon C. Axton, knowing of the corrupt acts of Frank A. Williams, Chief of Police, reappointed him to that office and refused to discharge him when proof of such corruptness was called to his attention.
“CONCLUSIONS OF LAW.
“1. That Vernon C. Axton willfully misconducted himself in the office of Mayor of the City of Parsons, Kansas;
“a. In that he was neither active nor vigilant in enforcing the laws and ordinances for the government of the city of Parsons, Kansas as required by G. S. 1935, 13-2010 and 13-1808, particularly those ordinances prohibiting slot machines and other gambling devices.
“b. In that during his first term of office as mayor, he entered into an agreement or understanding with one Lee Weekley and one Ray Axton by which he was to receive a prospective pecuniary advantage in exchange for his wrongful failure to enforce certain ordinances of the city of Parsons, particularly those ordinances prohibiting slot machines and other gambling devices.
“c. In that during his present term of office as mayor of the city of Parsons, Kansas,- he has willfully and neglected to perform duties enjoined upon him by the laws of the State of Kansas, particularly in failing to enforce the ordinances of the City of Parsons prohibiting slot machines and other gambling devices.
“2. That the. willful misconduct both malfeasance and misfeasance of Vernon C. Axton, Mayor of the City of Parsons, Kansas, forfeited his right to that office, and he should be permanently removed therefrom.
“3. That the costs of this action should be assessed against the Respondent.”
Following action by the commissioner, as heretofore related, the plaintiff filed a motion asking this court to confirm and adopt the report filed by the commissioner and for a judgment permanently ousting the defendant as mayor of the city of Parsons. The defendant filed a motion asking that the special findings of the commissioner be disregarded as contrary to the evidence and for a judgment on the evidence and the law finding him not guilty of the charges made against him. Thereafter the parties abstracted the evidence and presented the cause by briefs and oral arguments.
Thus it becomes the duty of this court to determine whether the defendant shall be ousted from office. In State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5, we held:
“In an action in quo warranto to oust defendant from the office of city commissioner where the court appoints a commissioner to hear evidence and make findings of fact and conclusions of law and the commissioner makes his report, the findings of the commissioner are advisory only and it is the duty of this court to examine the entire record and reach its own conclusions as to the facts.” (Syl. ¶ 1.)
See, also, Bissell v. Amrine, 159 Kan. 358, 362, 155 P. 2d 413, and cases there cited, where the foregoing case is cited with approval and it is said the rule therein announced applies to all original actions.
Assuming, without for the moment deciding, the evidence supports the commissioner’s findings of fact we are disposed to first consider two legal questions raised by the defendant.
It is first urged that the facts found by the commissioner do not warrant a judgment of ouster as a matter of law. Let us see. Resort to the provisions of G. S. 1935, 60-1609, heretofore quoted, makes it clear that any public official who is .guilty of willful misconduct in office or who willfully neglects to perform any duty enjoined upon him by the laws of the state forfeits his office and in a proper proceeding may be ousted from office.
G. S. 1935, 13-1808, reads as follows:
“The mayor shall be ex officio, the ‘commissioner of the police and fire departments’, and shall have under his special charge, and be responsible for, the enforcement of all city ordinances and police regulations of such city, and have general supervision over the police and fire departments. . . .”
G. S. 1935, 13-2010, provides:
“The mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the city, and he shall cause all subordinate officers to be dealt with promptly for any neglect or violation of duty . . .”
G. S. 1935, 13-2001, reads:
“The mayor shall preside at all meetings of the board of commissioners, except as herein otherwise provided. He shall be the chief executive officer of said city, and shall have general supervision and control of all other officers, departments and affairs of the government of such city, and shall take care that the provisions of this act and all ordinances of such city are complied with.”
By reason of the foregoing sections of the statute it becomes equally clear the defendant as mayor of the city of Parsons had the duty of enforcing all ordinances of the city, including those prohibiting gambling and the operation of slot machines and other gambling devices, that he was required to be active and vigilant in enforcing all laws and ordinances for the government of such city and that he had the additional duty of causing all its subordinate officers, including the chief of police, to be dealt with promptly for any neglect or violation of their official duties. A mere reading of the findings compels a conclusion the commissioner believed and found the defendant had failed to perform the particular duties to which we have heretofore referred. It necessarily follows the contention that such findings, if approved, are not sufficient as a matter of law to warrant a judgment ousting defendant from office is not tenable.
Next it is claimed the attorney general was induced to institute the instant proceedings by disgruntled political enemies of the defendant who had just been returned to the office of mayor after a heated election contest. It is suggested the motive of these informants in reporting law enforcement conditions in the city of Parsons should be given consideration by us while weighing the evidence and in reaching a conclusion as to the defendant’s misfeasance and/or malfeasance. This claim has no merit. It is, of course, entirely conceivable that initial information causing investigation and ultimate proceedings against a derelict public official may be prompted by malice or even be false and yet the investigation disclose irregularities warranting the proceeding and evidence which, when produced at the trial, will not only justify but compel a judgment against him. For that reason, we are not concerned with whether the information upon which the chief law enforcement officer of the state saw fit to act came from sinister or propitious sources. He did act and our sole province is to determine whether the evidence adduced at the hearing and now under review supports his claim the defendant should be ousted from office.
There remains only the question whether the commissioner’s findings are to be approved. This, as we have heretofore indicated, requires a review of the record. Defendant's position on the point is that the state failed to meet the burden of proof, not that the findings are entirely unsupported by evidence. No useful purpose would be served and it certainly would do the defendant no kindness to point out and spread upon our records portions of the testimony deemed by us to be convincing and decisive. It suffices to say the court has made a painstaking examination of the evidence taken by the commissioner and has concluded that with one possible exception it amply supports his findings and recommendations. The exception to which we refer is that portion of Finding 8 to the effect the defendant refused to discharge the chief of police when proof of that official’s corruptness was called to his attention. Perhaps it would be more accurate if the commissioner had used the verb “failed” instead of “refused.” However, that makes no difference in the result. We therefore find the commissioner’s report should be approved and confirmed and that judgment should be rendered ousting the defendant from the office of mayor.
It is so ordered. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Plaintiff brought this action for damages to her automobile and for personal injuries alleged to have been sustained and medical expenses incurred in a collision of her automobile with that of defendants alleged to have resulted from the negligence of defendants. Defendants were Elmer Greiving, the owner of the automobile, and Joseph Heimerman, Jr., alleged to have been driving the car as the agent of Greiving. The negligence and the extent of the injuries were alleged in detail. Heimerman answered denying the negligence charged against him and alleging in detail negligence of plaintiff which caused or contributed to the collision. Greiving filed a similar answer and also filed a cross petition to recover damages to his automobile alleged to have resulted from plaintiff’s negligence. These respective claims were put in issue by the pleadings. A trial by jury resulted in a verdict against the plaintiff upon her petition and against the defendant Greiving upon his cross petition. Plaintiff filed a motion for a new trial, which was considered by the court and overruled, and she has appealed.
The only question presented by appellant is a contention that the court erred in one of its instructions. We first take note of the fact that the record discloses no objection made to the instruction complained of in this court. The real difficulty of appellant is that the record brought to us is insufficient for us to determine whether the instruction was erroneous, or for us to determine whether the alleged error in the instruction was detrimental to the plaintiff. None of the evidence is before us. The record consists solely of the pleadings, the instructions and the journal entry. This is insufficient.
In Darst v. Swazee, 135 Kan. 458, 11 P. 2d 977, it was held:
“Without the evidence this court cannot determine that an instruction, although it may have been incorrect in some particular, was prejudicial error, as only prejudicial error is ground for reversal.” Citing, p. 460, Woodford v. Light Co., 77 Kan. 836, 92 Pac. 1133, and Roman v. City of Leavenworth, 95 Kan. 513, 148 Pac. 746.
In Union Public Service Co. v. Public Service Comm., 135 Kan, 123, 9 P. 2d 976, it was held:
“Error which does not prejudice or affect the substantial rights of the complaining party is not a ground of reversal.”
In Balmer v. Long, 109 Kan. 42, 197 Pac. 1089, the pertinent part of the syllabus reads:
“No transcript of the evidence has been prepared. No evidence has been abstracted. . . . Held, the plaintiff’s assignments of error relating to instructions given and refused are not open to consideration, . . .”
In this case no transcript of the evidence has been prepared and no evidence has been abstracted. The jury returned no special findings.
The result is there is nothing before us in the record which would enable the court to pass upon the question argued by appellant. The appeal, therefore, is dismissed. | [
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The opinion of the court was delivered by
Parker, J.:
These two appeals, consolidated after they reached this court, have to do with a rate proceeding commenced before the State Corporation Commission of Kansas and require a review of orders of the district court of Shawnee county entered in a statutory review proceeding instituted in that court, pursuant to authorization of the statute (G. S. 1935, 66-118a to 66-II80, inclusive), by the Southwestern Bell Telephone Company. The all decisive issue in each requires judicial construction of G. S. 1935, ch. 66, art. 14, dealing with holding companies and commonly referred to as the affiliate statute.
In order to insure a proper understanding of the issue involved it will be necessary to refer, as briefly as possible, to what took place in the tribunals having jurisdiction over the matters here in controversy from the time the proceeding was first instituted down to rendition of the judgment in district court from which the appeals were taken. This, it might as well be noted at this point, cannot be done with any considerable degree of brevity when faced by a record consisting of: Appellants’ abstract of 1,012 pages and appellee’s counter abstract of 749 pages, each of which describes at some length or sets forth in toto 185 complicated exhibits prepared by certified public accountants; appellants’ brief of 124 pages; appellee’s brief of 146 pages; appellants’ reply brief of 67 pages, and appellee’s response to appellants’ reply brief containing 27 pages. It should likewise be stated that in an effort to shorten the opinion as much as the record permits we shall, throughout its course, refer to the appellants as the Commission and the appellee as Southwestern. For the same reason, when later it becomes necessary to mention two additional corporations, namely, Western Electric Company and the American Telephone & Telegraph Company, we will refer to the one first named as Western and to the second as American.
On September 30, 1947, Southwestern filed an application with the Commission for permission to put into effect in Kansas new schedules of rates for its 143 exchange properties and for its intrastate toll property under the jurisdiction of the Commission. The proceeding was instituted under G. S. 1935, 66-117 which provides, among other things, that no change shall be made in any rate, toll, or schedule of charges by a public utility without the consent of the Commission. The application was given docket No. 34,333-U. It sets forth many reasons for institution of the rate proceeding and includes allegations to the effect that under existing rates Southwestern was not able to earn a sufficient amount of money in Kansas to pay the actual costs of furnishing telephone service in the State and that the rate schedules therein proposed would produce $3,279,-000 in gross additional revenue.
October 3, 1947, in conformity with the provisions of G. S. 1935, 66-110, making it the duty of the Commission, either upon complaint or upon its own initiative, to investigate public utility rates and providing that if after hearing and investigation they are unjust it shall have the power to fix and order such substituted rates as shall be just and reasonable, the Commission assigned the application for hearing on January 5, 1948. Thereafter Southwestern and the Commission entered into a stipulation which authorized and permitted the latter, on October 9, 1947, to issue an order wherein it found: that in order to determine the issues raised by the application and to carry out the duties imposed upon it by law it was necessary for it to investigate all of the operations of Southwestern, its affiliates, subsidiaries and other members or segments of the Bell system which affect the rates and charges now or to be made applicable within the state, and to appraise the property wherever located which affects the determination or establishment of just or reasonable charges within the exchanges covered by Southwestern’s application; that the costs and expenses necessarily incurred in the making of or reasonably attributable to such investigation and appraisal should be assessed against Southwestern; that in making such investigation, appraisal and all proceedings involved, the Commission should exercise the power and authority conferred upon it by G. S. 1935, chapter 66; and directed that the investigation be initiated and carried out for the purpose and in the manner set forth in such findings.
The application came on for hearing in due course. Evidence was introduced in support thereof by Southwestern between January 5 and 10, 1948. This consisted of both oral and deposition testimony. After Southwestern had adduced its evidence and rested its case counsel for the Commission filed a motion to dismiss the application. This motion is quite lengthy but it so clearly portrays their position with respect to how the all important statute should be interpreted that we deem it worth-while to set forth the substance of the allegations to be found in its respective paragraphs. Summarized they read:
1. Construed in its most favorable light the evidence adduced by Southwestern wholly fails to establish it is entitled to the relief it seeks.
2. The Commission is a creature of the legislature having the power and duty of performing the legislative function of fixing rates. It is required to observe and adhere to legislative directions pertaining to this function and its authority extends no further.
3. The evidence adduced by Southwestern establishes beyond question that a substantial portion of its investment and plant consists of charges made for materials and commodities furnished and purchased from, and for services rendered by Western and by American, corporations with which it is affiliated.
4. The evidence shows a substantial portion of the operating expenses of Southwestern for the current year and for previous years and contemplated expenses for the coming years are composed of charges made by Western and by American to Southwestern for services rendered and materials and commodities furnished and sold to Southwestern by such affiliated companies.
5. Section 3 of Chapter 239 of the session laws of Kansas for 1931 (G. S. 1935, 66-1403) reads:
“Sec. 3. In ascertaining the reasonableness of a rate or charge to be made by a public utility, no charge for services rendered by a holding or affiliated company, or charge for materials or commodity furnished or purchased from a holding or affiliated company, shall be given consideration in determining a reasonable rate or charge unless there be a showing made by the utility affected by the rate or charge as to the actual cost to the holding or affiliated company furnishing such service and material or commodity. Such showing shall consist of an itemized statement furnished by the utility setting out in detail the various items, cost for services rendered and material or commodity furnished by the holding or affiliated company.”
6. Under this statute no charge for services rendered or for material or commodities furnished by such affiliated companies may be-given consideration by the Commission in its determination of a reasonable rate or charge to be made by Southwestern unless there be a showing made by Southwestern as to the actual cost to Western and to American of such services, materials and commodities. No showing has been made.
7. With respect to Western the only showing attempted by Southwestern has been that the profits made by Western as a result of charges for services rendered and materials and commodities furnished and sold to Southwestern have been reasonable.
8. With respect to American the only showing attempted is that services were rendered and materials and commodities furnished by American to Southwestern which were of value to the utility. In addition Southwestern has attempted to show the entire operating expenses of American including its long lines department. Southwestern made no attempt to show the individual costs of the services rendered or the materials or commodities allegedly furnished thus completely ignoring the mandate of the last sentence of the statute heretofore quoted.
9. It is the belief of counsel for the Commission that this is the appropriate time to call attention to provisions of the statute outlining the duties of the Commission to everyone concerned. It is in the interest of subscribers, Southwestern and the general public, that the expensive proceedings in investigations be avoided if possible. Such proceedings will be unnecessary at this time since the requirements of the statute have not been met by Southwestern.
Further indication as to the actual theory upon which the motion to dismiss was based is to be found in a statement made by one of the Commission’s counsel who, in the course of argument while it was being presented, said:
“Now the only way in which they can comply with the statute is to show the cost to Western Electric of these manufactured articles. Of what benefit is it to this Commission that Western Electric makes a general profit on its operation of 6 to 7 percent,, or 4 or 5 percent? The mandate of that statute ie that their manufacturing arm should come in here and state as to that old magneto set that they have out there in Syracuse, Kansas, the cost of manufacturing that was so much. That is what the statute says. When they bought in 1927 all of these old sets, to wit, the transmitter and the receiver from the A. T. & T. as was developed yesterday, did they show, or have they attempted to show how much Southwestern Bell paid the A. T. & T. for those sets which became obsolete some four or five years later?”
January 10,1948, the same day on which the foregoing motion was filed and heard, the Commission made an order dismissing Southwestern’s application. This order, containing findings of fact and conclusions of law, so definitely establishes the Commission’s con struction of the statute that it too merits detailed reference. The contents of its important paragraphs, identified by reference or set forth in substance, are as follows:
Findings of fact:
1. The American is a holding company holding substantially all the stock of Western and Southwestern and all three corporations are affiliated companies within the meaning of applicable statutes.
2. Repeats verbatim the contents of paragraph 3 of the motion heretofore mentioned.
3. Restates the allegations of paragraph 4 of such motion.
4. There has been no showing by Southwestern as to the actual cost to Western and to American for such services, materials and commodities, nor is there an itemized statement furnished by Southwestern setting out in detail the various items, costs for services rendered and material and commodity furnished by the holding or affiliated companies, or either of them.
5. The evidence is of such nature that while it is possible for the Commission to determine the charges described in findings of fact 2 and 3 (3 and 4 of the motion) are substantial, it is impossible for it to determine the exact or approximate total amount of the charges described in either of such findings.
6. Under the evidence it is impossible to determine the amount of net revenues which Southwestern is receiving for the reason, among others, they are affected by the depreciation currently taken, which depreciation must be tested against Southwestern’s investment. Under the evidence as affected by the statute it is impossible to determine Southwestern’s investment.
Conclusions of law:
1. Is a restatement of paragraph 2 of the motion heretofore described.
2. Under the provisions of G. S. 1935, 66-1403 (as heretofore quoted) no charges for services refidered or for materials or commodities furnished by the above named affiliated companies to Southwestern may be given consideration by the Commission in its determination of a reasonable rate or charge to be made by Southwestern to its rate payers unless there be a showing made by Southwestern as to the actual cost to Western and to American respectively, for such services, materials and commodities.
3.' When all that part of the evidence offered by Southwestern which cannot be considered by the Commission by reason of the statute is eliminated from the entire evidence offered, there remains nothing in the evidence taken in the most favorable light to Southwestern upon which the Commission can grant Southwestern the relief prayed for.
4. The motion should be sustained and the application dismissed.
Some two weeks after the dismissal of its original application Southwestern sought to obtain a rehearing upon grounds, the general nature of which were to the effect, that the Commission’s action in dismissing its application was unlawful, unreasonable, improper and unfair. Inasmuch as Southwestern concedes the construction to be given the statute is that placed upon it by the trial court, whose findings with respect thereto will presently be set forth, the details of its application for rehearing are not as essential for informative purposes as those of the motion and order to which we have heretofore referred. However, such application does reveal Southwestern’s interpretation of the statute, its views as to the extent and character of evidence required in order to conform with its terms and other matters facilitating a proper understanding of what was before the Commission at the moment it made its order of dismissal. For that reason, a copy thefeof, omitting the exhibits therein referred to, is appended to and made a part of this opinion.
Southwestern’s application for rehearing was denied by the Commission on February 2,1948, on the ground that no reason appeared why it should be granted and the proceeding reopened.
March 3, 1948 (pursuant to G. S. 1935, 66-118a to 66-II80, inclusive) , Southwestern filed an application for a review of the Commission’s action dismissing its initial application in the district court of Shawnee county. The sufficiency of the form of this application is not in question. For present purposes it can be said that while its allegations are more in detail, the grounds for relief therein relied on are substantially the same as those set out in the application for rehearing, attached hereto as an appendix, and that it prays for a judgment vacating and setting aside the Commission’s order of dismissal as unlawful and unreasonable.
After certain proceedings in the district court, including denial of an ancillary order permitting Southwestern to put into temporary effect the schedules of rates filed in its dismissed application on grounds the court was without jurisdiction to grant such relief, which is not here involved because no appeal was taken from such ruling, the district court on July 26, 1948, upon Southwestern’s application, stayed the review proceeding and remanded the case to the Commission with directions to hear and consider the evidence that was proffered by Southwestern but not admitted upon the hearing of its application for a rehearing.
Previous to the rendition of the remanding order just mentioned Southwestern had filed an application for permission to put into force and effect increased temporary rates under bond designed to yield revenues amounting to approximately $3,349,000. This application was docketed by the Commission as No. 36,060-U. Part of the evidence in such docket had been heard. After the rendition of the district court’s remanding order the Commission heard additional evidence in this docket on August 9-30, 1948. Eventually, on January 14, 1949, upon the evidence received in this docket the Commission entered its order approving schedules of temporary rates under bond, designed to produce additional annual revenues of $3,313,977 pending the final determination of permanent rates. Such rates are now in force and effect. Except as hereinafter stated the proceedings or rulings in such docket are not involved in this appeal.
At the conclusion of the hearing in docket 36,060-U, Southwestern filed its offer of evidence in the remanded case (docket 34,333-U). It offered as evidence in such case a large portion of the evidence it adduced and which had been received in docket 36,060-U. Subsequently, by stipulation, all of the evidence in docket 36,060-U Was made a part of the record in the remanded case.
September 23, 1948, with the evidence in both dockets before it, the Commission entered an order affirming its dismissal order of January 10, 1948. This order states there was nothing in the additional evidence requiring or justifying the setting aside or modifying of such order. Thereafter it caused the enlarged record to be certified to the district court in the review proceeding there pending.
In due time review of the Commission’s dismissal order came on for trial in the district court and that tribunal, in conformity with G. S. 1935, 66-118f, heard the cause upon the issues presented by the evidence and exhibits introduced before the Commission and the record as certified.
Later, after having reviewed the record and given consideration to the abstracts and briefs filed by the respective parties to the review proceeding, the district court on September 26, 1949, ren dered a judgment holding that the Commission’s order of January-10, 1948, affirmed by its order of September 23, 1948, dismissing Southwestern’s application was unreasonable and unlawful and set such order aside. At the same time it returned and adopted as a part of its judgment findings of fact and conclusions of law. Its findings of fact read:
“Findings op Fact
“1. Southwestern Bell Telephone Company, a Missouri corporation, herein referred to as Applicant, owns and operates an integrated telephone system within the states of Kansas, Missouri, Arkansas, Oklahoma, Texas and a small part of Illinois; the portion of its system located in Kansas consists of telephone lines, plant, facilities and equipment comprising 143 exchanges and numerous toll lines, furnishing both intrastate and interstate service to the public.
“2. All the stock of Applicant is owned by the American Telephone and Telegraph Company, a New York corporation, herein referred to as American. American also owns all or substantially all the stock in fifteen other operating telephone companies, a large majority in three others and a minority in three others, all such companies being herein referred to as Bell operating companies.
“3. American performs certain services for Applicant, for which Applicant pays American. These payments are charged to operating expenses in Applicant’s accounts.
“4. American has for many years owned and now owns substantially all the stock of Western Electric Company, Inc., herein referred to as Western, from which Applicant has for many years bought and from which it still buys substantially all its equipment, materials and supplies, as well as certain services, both for the construction of its plant and for the maintenance and operation thereof. Things purchased for construction have been capitalized (charged to the plant investment accounts) and things purchased for use in maintenance operations have been charged to operating expenses in Applicant’s accounts.
“5. Beginning in 1913 Applicant has kept its accounts in accordance with the Uniform System of Accounts for Telephone Companies, prescribed by the Interstate Commerce Commission from 1913 to 1934 and thereafter by the Federal Communications Commission, pursuant to a statute of the United States which prohibits the keeping of any other accounts than those prescribed and prohibits keeping them in any manner other than that prescribed.
“6. Applicant filed with the respondent Commission, on September 30, 1947, its application for consent to change its filed schedule of intrastate rates and put into effect new and increased schedules of rates for intrastate telephone service in Kansas. The Commission gave said application Docket No. 34,333-U.
“7. On October 9, 1947, the Commission, on its own motion, entered an order in said Docket No. 34,333-U initiating an investigation to determine whether Applicant should be permitted to change the rates then in effect, the reasonableness and lawfulness of the then current rates or a schedule of just and reasonable rates, and directing that such investigation should include the operations of Applicant, its affiliates and other segments of the Bell System which have an effect upon Applicant’s rates, and ordering that the costs of such investigation be charged to Applicant.
“8. On October 20 to 23, 1947, depositions were taken by Applicant on the subject matter of costs of services, materials and commodities furnished by American and Western, and in this connection and at all times thereafter all the pertinent books and records of Applicant and its affiliates were made available to the Commission. The Commission’s special counsel participated in the taking of these depositions and at their request the matter was continued until December 8, 1947, for further cross-examination, at which time the taking of these depositions was resumed and such further cross-examination was carried on from December 8 through December 10, 1947.
“9. On January 5-10, 1948, Applicant by oral'and documentary evidence and depositions presented its case in support of its application.
“10. On January 10, 1948, at the conclusion of Applicant’s testimony, the Commission, on the motion of its special counsel, dismissed the application on the ground that Applicant had not complied with the requirements of Section 3 of Chapter 239, L. 1931 (Section 66-1403, G. S. Kansas 1935). The dismissal order finds that Applicant did not show, in the manner and to the extent required by that statute as construed by the Commission, the costs to its affiliates of services rendered and materials and commodities furnished by them to Applicant, and concludes that the statute therefore forbids the Commission to consider the charges for such services, materials and commodities. Said order of dismissal further concludes that when that part of the evidence which cannot be considered by the Commission because of said statute is eliminated, there remains nothing in the evidence upon which the Commission can grant to Applicant the relief prayed for.
“11. Application for rehearing was filed by the Applicant in which it offered to provide certain specific proof and any additional proof desired relating to costs of services, materials and commodities furnished to it by its affiliates. That application was denied. The Applicant then instituted this proceeding for review. Thereafter, this Court stayed this proceeding and remanded the case to the Commission with directions to hear and to consider the evidence proffered by the Applicant on its application for rehearing and at the time of the presentation of that application. Additional evidence was introduced by the Applicant. No evidence was offered at any time by the Commission. On September 23, 1948, the Commission entered its order finding that the additional evidence did not require or justify a modification of its original order of dismissal and it affirmed that order. The entire record is before this Court.
“12. The evidence introduced by Applicant in these proceedings on the subject matter of the costs to its affiliated companies of services, materials and commodities furnished by them to Applicant included oral testimony consisting of approximately 3,300 pages, together with approximately 185 detailed exhibits consisting of documents, studies and records.
“13. The twenty-two Bell operating companies, of which Applicant is one, are engaged, each in its separate territory, in furnishing the same communications services with standardized equipment and uniform operating practices, and have many problems in common that can be solved better and more economically by a centralized organization on behalf of all the companies than by each company attempting to do such work itself and duplicating the work of the others. American maintains, in its General Départment and in Bell Telephone Laboratories, a subsidiary owned jointly with Western, a centralized staff of specialists who perform such work on all phases of the telephone business, including scientific research, engineering, traffic, legal, accounting and other matters, for the benefit of the Bell operating companies. For the costs of such work, together with the costs of finanical services and patent licenses and protection, American is compensated under a uniform contract called a ‘license contract’ under which the Bell operating companies, including Applicant, make monthly payments to American at a uniform percentage of their operating revenues.
“14. The services rendered by American under the license contracts, with minor exceptions, are not individual services rendered to individual companies or areas. They are general in nature and are done simultaneously for all the Bell operating companies. Each such company is entitled to the benefits from all the work done and only one charge is made for the entire mass of services. The cost of maintaining a centralized staff by American, including the centralized research done by it through Bell Telephone Laboratories, is a cost common to all the Bell operating companies, and the cost of the license contract services rendered to each such company can only be determined by apportionment on some appropriate basis.
“15. Applicant’s evidence included a statement of all costs to American, separated between those applicable to the license contract, called ‘license costs,’ and those not so applicable, termed ‘non-license costs.’ American’s ‘license costs’ were divided and itemized to show the cost to the Bell Laboratories and the General Department of American. Such costs were further itemized and divided as between the various divisions of the Bell Laboratories and the General Department of American. Each of these subdivisions of American’s costs attributable to the services rendered all the Bell operating companies under the license contracts was then allocated among the licensee companies, including Applicant, and to Applicant in the State of Kansas, on the basis of factors appropriate to the nature of the work performed in each instance, e. g., the cost of maintaining the Plant Engineering Division of the American Company, whose function is to advise and assist on problems concerned with the operating companies’ plant, was apportioned on the basis of the relative amount of plant in each operating company. All such costs were actual costs to American, and did not cease to be actual when they were apportioned. Such costs were shown in the detail herein-before specified for the years 1946 and 1947, and in summary form for the nine years prior thereto. Payments made under the license contract are not capitalized by Applicant but are reflected only in the current year’s operating expenses. To determine the reasonableness of rates for the future only a statement of such payments for the past few years is material. That, the Applicant showed.
“16. Western manufactures and sells to the Bell operating companies approximately 48,000 separate varieties of things and in addition purchases from others and sells to the Bell operating companies approximately 30,000 varieties of supplies.
“17. The bills from Western covering all services, materials and commodities funished by it to Applicant from 1916 to April 30, 1948, contained approximately 18,000,000 billing ‘items.’ Of these approximately 2,700,000 to 3,000,000 were used in Kansas operations. Applicants furnished the Commission with all of the original bills from Western relating to its Kansas operations. In many instances a single billing item, such as a central office addition, represents thousands of different varieties of manufactured items each of which has a separately determined price. Moreover, a single billing item frequently represents a large number of identical physical units, so that the number of individual physical units purchased from Western by Applicant is many times the number of billing items.
“18. The accounts of Applicant reflect dollars of investment or expenses rather than physical units of material or apparatus. These dollars include not only purchases from Western but other expenditures of Applicants, such as wages of its employees, payments to outside contractors and taxes. When physical units of plant are purchased and installed, their cost is charged to a plant account, e. g., central office equipment, and when such a unit is removed from service its estimated original cost is credited to that account, the estimated unit cost being in most cases the average unit cost of all like units, no attempt being made to identify the unit retired with a particular purchase order. Since all the millions of units which enter into the plant and are later removed from it are not tagged to particular billing orders, it is not known by billing items what physical units of material purchased from Western are surviving in the plant accounts. Since the cost to Western of such units will vary depending on the year of manufacture, it is impossible to determine the cost of surviving units unless they can be associated with the original billing from Western.
“19. A large part of Applicant’s plant presently devoted to its intrastate business in Kansas was installed therein during the fifteen years prior to the enactment of Section 66-1403, G. S. Kansas 1935. Said section makes no differentiation in the type of cost statement required dependent upon whether the purchases wei'e made before or after its enactment. The millions of physical units comprising the portion of the plant installed prior to the enactment of the statute had not been tagged in and out of Applicant’s plant and it was impossible, therefore, at the time the Act was passed and is still impossible to associate the surviving physical units with the billing items on Western’s bills under which they were purchased.
“While it might have been theoretically possible begining with the passage of the Act to have tabulated each of the millions of physical units thereafter purchased in and out of Applicant’s books, associating each with its billing from Western and thus to have obtained a partial list by billing items of the plant surviving, this would have been a task burdensome beyond all reason and impossible as a practical matter.
“20. Since the millions of physical units purchased from Western and presently surviving in Applicant’s plant cannot be identified with the billing items, under which they were purchased from Western, it would be impossible to' furnish a statement of the cost to Western of each unit now surviving for which a separate charge was made, even if the individual cost of each such unit billed were known.
“21. Western can compute the approximate unit cost to it of all physical units it manufactures in a given year by methods which begin with an estimate (standard shop cost) and involve a very large number of apportionments but which nevertheless achieve results close enough to actual cost to be accepted as such for all practical purposes by manufacturng companies which make a large variety of items. These costs cannot be computed for any one year until the year is over and the books for that year have been closed, which is ordinarily after most of the product of that year has been sold. Since Western manufactures tens of thousands of different physical units, and since computation of the cost of each requires a large number of apportionments and calculations, Western does not ordinarily compute the current complete cost of individual physical units but only of classes or groups. The Commission was furnished with the standard shop cost of each individual physical unit which AVestem manufactured from 1916 to 1947 and also the annual variation and other apportionment factors by classes of products necessary to compute the current complete cost to Western of any one of the physical units manufactured. It would be theoretically possible from this data to compute the complete cost to Western of each of the physical units represented by the 2,700,000 to 3,000,000 billing items applicable to Kansas for the period 1916 to 1947, inclusive, but to do so for all of the items would require 500 man-years of accountng effort. Since accountants must work from the same records, it is doubtful that more than twenty to thirty could be used at one time. Assuming twenty-five could be used, it would take twenty years to complete such a statement. If fifty were used, it would take ten years. This constitutes impossibility for all practical purposes. The mere listing of these costs would require 240 volumes of 500 pages each.
“22. To determine the cost to Western of each individual article furnished by Western to Applicant and for which a separate charge was made and paid and which now remains in Applicant’s plant would be impossible.
“23. In respect to the cost to Western of services, materials and commodities furnished by it to Applicant, Applicant showed by relevant evidence:
“(a) The total sales of Western to all Bell Companies and the cost to Western of such sales for each year from 1916 to 1947, inclusive, itemized into the three product classes (apparatus and equipment, lead-covered cable and wire and supplies).
“(b) The total sales of Western to Applicant and the cost to Western of such sales for each year from 1916 to 1947, inclusive, itemized into the three product classes.
“(c) The sales of Western to Applicant for its use in Kansas and the cost to AA'bstern of such sales for each year from 1916 to 1947, inclusive, itemized into the three product classes.
“(d) The amount in dollars of telephone plant placed each year from 1916 to 1947, inclusive, that remained in Applicant’s Kansas plant and in its plant accounts on December 31, 1947, a total of $68,469,324; the portion of that total represented by purchases from Western, $41,587,558, and the cost to Western thereof, $39,950,186. These purchases and the respective costs to Western were shown separately for each year for each major plant account prescribed in the Uniform System of Accounts, to wit: franchises, rights of way, land, buildings, central office equipment, station apparatus, station installations, drop and block wire, private branch exchanges, booths and special fittings, pole lines, cable, exchange aerial wire, toll aerial wire, underground conduit, furniture and fixtures, and vehicles. The purchases in each major plant account were further itemized into the three product classes for each of the years 1916 to 1947, inclusive. Of the total purchases from Western reflected in Applicant’s surviving plant, only 3.9 percent were made prior to 1916. Because of the lack of adequate data for years prior to 1916, it is impossible for Applicant to furnish the cost to Western of such purchases.
“(e) The amount paid to Western in each of the five years, 1943 to 1947, for services and materials furnished by Western to Southwestern for use in the maintenance and operation of its plant in Kansas and which were charged to Applicant’s expense accounts, and the cost thereof to Western, broken down as to groups of expense accounts, which expense accounts are those required by the Uniform System of Accounts. Such total purchases from Western, in each expense account, is further classified into the three product classes, together with the cost thereof, by product classes.
“(f) Cost to Western for services performed by it for Applicant, consisting of (i) disposing of junk material, called Class B Service, and (ii) of inspecting, insuring, servicing and reissuing materials returned to Western, called Class C Service, and (Hi) of other services referred to as Miscellaneous Distributing House Services, were shown by Applicant for the eight-year period 1940 through 1947; and the cost to Western of furnishing repair service for Applicant was also shown separately for the years 1943 to 1947.
“24. The methods followed and the apportionments and computations made in determining the costs to Western of services, materials and commodities furnished to Applicant, as shown by Applicant’s evidence herein, were in accordance with accepted cost accounting procedures and produced the most accurate statement of actual cost to Western of such services, materials and commodities which it was possible to make.
“25. The evidence introduced by Applicant in this case constituted a statement of the actual cost to Applicant’s affiliates of services, materials and commodities furnished by them to Applicant in sufficient itemization and detail to enable the Commission to determine the profits made by said affiliates, and each of them, of such transactions with Applicant, the reasonableness of the charges made by said affiliates to Applicant for such services, materials and commodities, and the extent to which such charges and profits affect the reasonableness of Applicant’s rates for its intrastate services in Kansas.
“26. Unless the payments by Applicant to its affiliates be ignored in determining its investment and its operating expenses, the record shows conclusively by uncontroverted testimony that Applicant’s revenues from its intrastate operations in Kansas were less than the expense of such operations, resulting not only in no return on the capital employed but an actual operating deficit during the entire year 1947 and the first four months of 1948.”
Within three days from the date of the judgment the Commission filed a motion for a new trial wherein it attacked conclusions of law Nos. 2, 3, 4 and 5 made by the trial court and all its findings of fact except findings Nos. 1, 2, 3, 4, 6, 7, 9, 10 and 16. Along with this motion it filed specific objections to such findings of fact and in addition requested findings in lieu of those made by the court in the event it adhered to its judgment.
On November 23, 1949, the Commission perfected an appeal from the court’s judgment of September 26. The appeal was docketed in this court as case No. 37,941.
Two days later the Commission’s motion for a new trial was overruled. Subsequently, on January 3, 1950, it filed its notice of appeal from the order overruling such motion. This is the appeal involved in case No. 37,984.
When what has been heretofore related at considerable length for the specific purpose of thoroughly demonstrating their respective positions is carefully analyzed, there can be no question as to how the parties claimed the provisions of section 3, chapter 239, Laws for 1931 (G. S. 1935, 66-1403), hereinafter referred to as the statute, should be construed at the several hearings before the Commission. Briefly summarized it can be said that at that time counsel for the Commission contended and the Commission held that the actual cost to Southwestern’s affiliates, Western and American, for services, materials and commodities furnished or sold to Southwestern by such affiliates from 1916 to 1946, inclusive, together with the charges made by them, including physical items no longer remaining in its plant, must be shown and itemized, item by item, otherwise there was no compliance with the statute and therefore no evidence which would warrant it in proceeding to determine the merits of Southwestern’s application. On the other hand Southwestern took the position that an itemization of the costs of such services, materials and commodities by years and product classes, with underlying detail as to the elements of costs making up the total of costs so itemized, was all that the statute required.
It must be remembered that the fundamental premise upon which the Commission based its order of dismissal was that when all of the evidence offered by Southwestern .which could not be considered because of the statute was eliminated from the entire evidence offered nothing remained in the evidence, viewed in its most favorable light, upon which it could grant Southwestern any relief. When this is kept in mind it becomes obvious from the very nature of the single question the parties agree is now involved our task is not to weigh the evidence reflected in the extensive record which has been presented but to determine whether the evidence adduced in support of Southwestern’s application comes within the scope of the statute. It becomes even more manifest when — as here — it clearly appears that throughout the entire proceedings before the Commission and in the court below the basic differences between the parties arose over the type of evidence which would meet its requirements.
Notwithstanding the view just expressed the court has painstakingly examined the evidence as abstracted for the purpose of reaching its own decision with respect thereto. It had just as well be now stated that after making that examination it has determined, that except for a few minor matters not deemed sufficiently important to require specific mention, the trial court in its findings of fact not only correctly summarized the evidence before the Commission at the conclusion of the hearing on Southwestern’s application but gave it the import to which it was entitled and that such findings should be approved.
In determining the findings of fact warrant our approval we have not been unmindful of the Commission’s objections to such findings or its request for additional findings, heretofore referred to. The fact they have not been detailed or given specific attention in this opinion does not mean they have been overlooked. It suffices to say that after giving careful consideration to arguments made in their support we have decided the evidence does not warrant the sustaining of either the objections to findings or the request for additional findings and that to deal at length with contentions advanced with respect thereto or to detail the testimony on which the findings depend would not contribute anything of importance to the body of our law or add to this opinion.
Both in their briefs and in oral argument the parties not only concede but affirmatively assert the sole and all decisive issue involved in this appeal is whether Southwestern’s showing before the Commission was of such character as to constitute compliance with the requirements of the statute.
Thus, it is interesting to note, although it is in no sense to be regarded as controlling of our decision, that we are now called upon for the first time to construe a statute which the record clearly re veals has been the law of this state since its enactment in 1931; has been interpreted by the Commission in former rate hearings in line with the construction contended for by Southwestern; and is the only statute of its kind and character to be found today in the forty-eight states of the union.
In view of the issue and in the interest of clarity we deem it worth-while to again quote the statute even though it is to be found elsewhere in the opinion. It reads:
“Sec. 3. In ascertaining the reasonableness of a rate or charge to be made by a public utility, no charge for services rendered by a holding or affiliated company, or charge for material or commodity furnished or purchased from a holding or affiliated company, shall be given consideration in determining a reasonable rate or charge unless there be a showing made by the utility affected by the rate or charge as to the actual cost to the holding or affiliated company furnishing such service and material or commodity. Such showing shall consist of an itemized statement furnished by the utility setting out in detail the various items, cost for services rendered and material or commodity furnished by the holding or affiliated company.” (G. S'. 1935, 66-1403.)
In rendering judgment the trial court made and incorporated in its decree four all important and controlling conclusions of law. Conclusion No. 2 is limited strictly to its construction of the statute, Nos. 3 and 4 deal with the sufficiency of the evidence under that construction, while No. 5 merely indicates the nature of the judgment. Such conclusions of law read:
“2. Section 66-1403, G. S. Kansas 1935, applies in a wide variety of circumstances, at one extreme to an affiliate selling a single commodity and at the other extreme to one selling tens of thousands of different things, and was intended to require only such character and amount of itemization and detail as would be practicable and reasonable in the circumstances of the particular case, having regard to the purpose the statute was intended to serve. That purpose is to enable the Commission to determine whether a public utility’s investment, rate base or operating expenses have been inflated by charges by affiliates which include unreasonable profits to such affiliates, so that the Commission may disallow the unreasonable part, if any, in determining the reasonableness of the public utility’s rates.
“3. In the hearings before the Commission, Applicant made the required statutory showing in sufficient detail and with sufficient itemization, under the foregoing or under any reasonable interpretation of the statute, of the actual cost to the affiliated companies, American and Western, of services, materials and commodities furnished to it, and Applicant complied with the requirements of Section 66-1403, G. S. Kansas 1935.
“4. There was sufficient evidence furnished to the respondent Commission ol the cost to Western of materials and services purchased from it by Applicant, and the cost to American of the services rendered by it to Applicant from which evidence the Commission could have determined the amount of such costs and the reasonableness of the charges made by said affiliates to Applicant; and the refusal of the respondent Commission to consider such charges was unlawful and unreasonable.
“5. The order of the Commission of January 10, 1948, affirmed by its order of September 23, 1948, was unreasonable and unlawful and should be set aside.”
Where — as here — a court is required to construe a statute for the first time without the benefit of legal precedent and all that it has before it is extended argument regarding the claims of the parties as to how they believe such statute should be construed we know of no sound reason for prolonging its opinion by detailing their respective contentions. Rather we conceive it to be its duty to give proper weight to each and every contention advanced and then, guided by well established rules of statutory construction, reach and announce its own independent conclusion as to how the statute must be interpreted. That we have done in the case at bar.. It suffices to say that after long and careful consideration of everything the parties have had to say in their briefs and in their oral arguments we have concluded the statute must be construed as set forth in the trial court’s conclusion of law No. 2 which has been heretofore fully quoted and therefore need not be repeated. jWhen so construed we have little difficulty in further concluding that under the evidence as reflected by the findings of fact its conclusions of laws Nos. 2, 3, 4 and 5 are likewise correct and that such conclusions, as well as its judgment decreeing the Commission’s order of dismissal was unreasonable and unlawful, must be confirmed and approved.
In conclusion, to insure against all possibility of misunderstanding as to its import, it should perhaps be pointed out that this opinion is limited strictly to the sole issue here involved, namely, the construction to be given the affiliate statute, and that the question whether Southwestern is to be granted or denied increased rates as requested in its application is a matter yet to be determined by the Commission after a full and complete hearing on the merits of the rate proceeding instituted by Southwestern.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, J.:
The defendant was charged under the provisions of G. S. 1935, 21-938, with keeping and maintaining a house where prostitution was practiced, permitted, or allowed on premises under her control. At the close of a hotly contested trial a jury found her guilty of that offense. Later, her motion for a new trial having been denied, she perfected this appeal.
The issues involved are such that there is no necessity for burdening our reports with the sordid facts disclosed by the record.
Three of appellant’s four specifications of error relate to .alleged trial errors which, although they were set forth in her motion for a new trial, were not urged or relied on as grounds for the allowance of such motion at the time it was presented to the trial court and hence are of no avail to her on appellate review.
The rule in this jurisdiction is well established that reversible error cannot be predicated on trial errors which were not pressed on the trial court’s attention on the hearing of a motion for a new trial (State v. Wassenberg, 114 Kan. 692, 220 Pac. 214; State v. Harrison, 128 Kan. 284, 276 Pac. 818; State v. Toelkes, 128 Kan. trial (State v. Wassenberg, 114 Kan. 692, 220 Pac. 214; State v. Zeilinger, 147 Kan. 707, 78 P. 2d 845; State v. Mosley, 163 Kan. 530, 183 P. 2d 877.)
Appellant presented and argued but one of the grounds of her motion for new trial. She challenges the propriety of the trial court's action, in holding that her claims with respect thereto did not warrant the granting of a new trial, by a fourth and final specification of error which reads:
“That the Court should grant a new trial in the above entitled case because the defendant was denied six challenges as provided by law in such cases made and provided and the same was called to the attention of the Court on the fourth challenge notwithstanding the truth of an attempted stipulation between the county attorney and attorney for defendant. The record shows the whole truth, but the defendant now claims she did not understand the explanation about the Court going to declare a mistrial which was explained to her in the clearest English that the attorney for Defendant knew.”
The basic facts upon which the foregoing assignment of error must stand or fall are not in conflict. Appellant was charged with an offense punishable by imprisonment in the state penitentiary and under the statute (G. S. 1935, 62-1402 [third]) was entitled to six peremptory challenges at the time the jury was being selected. For some reason, unexplained by the record, the trial court limited her to four such challenges. After the state had adduced its evidence and rested its case the court took a recess and conferred with attor neys for the respective parties. What happened thereafter is best reflected by the record which reads:
“The Court: (In the judge’s office) Take this and see if it "is satisfactory. Let the record show that after the State had rested and before counsel for defendant had made his statement to the jury the court announced in the absence of the jury that error had been committed by the court in limiting the number of challenges to four instead of six, as provided by the statute; that thereafter and after counsel for defendant had conferred with his client it was stipulated by the county attorney and counsel for defendant that the defendant waived the error, waived her right to exercise the fifth and sixth challenges, as provided by law, and agreed to proceed with the trial before the jury as selected and sworn.
“Mr. Scott: What do you say, Mr. County Attorney?
“Mr. Hornbaker: I am willing to waive it.
“Mr. Scott: All right. So am I. So am I.”
The trial then proceeded. Appellant adduced her evidence, the appellee its rebuttal evidence and the cause was submitted to the jury which, in due time, returned its verdict of guilty.
What took place at the hearing .on the motion for a new trial in the presence of the appellant is important in that it has a direct bearing upon her claim that she did not understand the situation resulting in her waiver of the error committed by the trial court in limiting the number of peremptory challenges to which she was entitled under the statute. The record discloses that in the presentation of such motion her counsel (Elisha Scott) made the following statement:
“His honor called me in and nobody who sits here can question your sincerity and your ability, especially your honesty, and you said to me, ‘Elisha, the court has committed a fatal error in this case and I am going to declare a mistrial.’ I and Mr. Hornbaker had a conference and he proposed that I waive it. I didn’t want to waive it. It is something I never have done in my entire practice, in my entire career as a practicing lawyer. I conferred with my client Faye Hayes and she’s the one that said, ‘Waive it, let’s settle it before this jury,’ contrary to my thought. In these sort of cases you take advantage of every remedy in behalf of the defendant. But that was her thought, so I did. I agreed with her, very much to my sorrow.”
Counsel for appellant now insist that the judgment should be reversed and a new trial granted. The gist of his claim is that the right to peremptory challenges in a criminal prosecution cannot be waived. Let us see.
Persons charged with the commission of crime in this state are guaranteed certain fundamental rights under our constitution (Bill of Rights, § 10) and have been granted others under supplementing statutes. Without regard to their source this court had repeatedly held that the rights so accorded are mere personal privileges which may be waived at the option of the defendant in a criminal. proceeding. To illustrate: The right to be tried by an impartial jury of the county or district in which the offense is alleged to have been committed (State v. Potter, 16 Kan. 80; In re Mote, 98 Kan. 804, 160 Pac. 223); the right to be present at, all times during the trial (State v. Stratton, 103 Kan. 226, 173 Pac. 300; State v. Van Wormer, 103 Kan. 309, 173 Pac. 1076; State v. Maxwell, 151 Kan. 951, 958, 102 P. 2d 109); the right to appear and defend in person or by counsel and to be tried by a jury (Fairce v. Amrine, 154 Kan. 618, 628, 121 P. 2d 256; Jones v. Amrine, 154 Kan. 630, 121 P. 2d 263); the right to trial by a jury of twelve persons and consent to a lesser number (State v. Scott, 156 Kan. 11, 131 P. 2d 664); and the defense of prior jeopardy (State v. Carte, 157 Kan. 139, 138 P. 2d 429.)
While it is true, as appellant’s counsel points out,’there is no case in this jurisdiction expressly holding that the defendant in a criminal action may waive any or all of the peremptory challenges to which he might be entitled under the statute,.it must be conceded the right to exercise such challenges is no more ■ important than the other rights to which we have referred and which we have held may be waived. Therefore, under our own decisions, we have little difficulty in concluding that such right is also a personal privilege which may be waived by the voluntary and intentional act of the person entitled thereto.
There remains the question whether the waiver in the instant case was voluntary and intentional. Under the conditions and circumstances heretofore related we think there can be no question but what it was. It necessarily follows the trial court did not err in overruling the appellant’s motion for a new trial.
We find nothing in the record which would warrant a reversal of the judgment. It is therefore affirmed.
Harvey, C. J., concurs in the result. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order changing the custody of a child from his father to his mother.
On September 5, 1947, the wife, appellee in the instant case, was granted a divorce in the district court of Bourbon county by reason of the husband’s, present appellant’s, extreme cruelty. The father was awarded custody of their son, Larry Lancaster, then approximately four years of age, with the right of the mother to have the child during the summer months.
In June, 1948, appellee married Max Prier. The couple owns a comfortable suburban home in Wichita. Soon after her marriage and the establisment of the Wichita home appellee filed a motion for modification of the custody order. The Honorable Harry W. Fisher, judge of the sixth judicial district in Bourbon county, disqualified himself to hear the motion and the Honorable L. M. Resler, judge of the thirty-eighth judicial district, was assigned to hear it. The motion was heard in September, 1948, and denied. Later appellee filed a second motion for the same purpose and also charged, appellant with contempt for failure to pay the required child support. The motion was heard August 31,1949, approximately eleven months after the last previous hearing, by the Honorable Ora D. McClellan, judge of the seventh judicial district, after Judge Fisher again disqualified himself.
Upon stipulation the child support past due had been paid in full the judge ruled appellant was not in contempt. He awarded the custody of the son, then seven years of age, to appellee, but granted appellant the right of reasonable visitation. Appellee waived any claim for future child support from appellant and the judge ordered he should not thereafter be liable for further payments, but the court retained jurisdiction to make any future order in that connection until the child reached majority.
The father appeals from the order changing custody of the child to the mother. Appellee contends appellant having filed no motion for a new trial is not entitled to be heard regarding alleged trial errors. This was not a trial but a hearing on a motion. It has been held a motion is not a pleading within the definition of our code, G. S. 1935, 60-703; that a hearing on a motion is not a trial and a motion for new trial is unnecessary to a review of alleged errors committed in a hearing on a motion. (Achenbach v. Baker, 157 Kan. 292, 295, 139 P. 2d 407, and cases therein cited.)
The basic question is whether conditions affecting the best interests of the child had changed sufficiently to justify a change in the custody of the child. The court found they had and ordered the change. Appellant argues two previous judges reached contrary decisions. Their orders were not based on the present record. Whether judges who conducted previous hearings on the subject would have adhered to their former orders under the newly developed facts, of course, cannot be the test. Nor can we speculate on what ruling either of them might have made on the basis of the new facts. The question is whether the judge who conducted the instant hearing committed reversible error.
It will add nothing new to the law on the subject of custody of children to narrate in detail the evidence of the respective parties and their witnesses, neighbors and good friends of each. There was evidence trouble incident to transfers of possession of the child from appellant to appellee, as directed in the original order, had developed and was of a character to seriously disturb the mental composure of the child and had at least temporarily affected his health. There was other substantial evidence of changed conditions eleven months after the last previous order; the boy was apparently a sensitive child; he was fond of his father, mother and stepfather; he preferred to remain with his mother; the boy’s father and stepfather were both good men and kind to him; the stepfather was fond of the boy, spent considerable time with him and was able to and was providing a good home for him and his mother.
The foregoing and some other more or less important facts constituted a substantial change in conditions from those existing at the prior hearings. Appellant argues the court should have received evidence of conditions existing prior to the former orders, including facts disclosed in the divorce trial, for the purpose primarily of showing appellee was not a fit person to have custody of the child. The court adopted the view those matters belong essentially to the past and that it was concerned with facts, if any, showing a change in conditions which pertained to the child’s best present and future interests. Although the court with propriety might have admitted some part of the testimony appellant desired to introduce we are satisfied reversible error was not committed in its exclusion.
It is apparent Judge Fisher who granted appellee a divorce did not believe appellee’s former conduct disclosed she was an unfit person to have custody of the child. Had he then thought she was an unfit person he manifestly would not have given her the custody of the child for a three month period each year. At the time the divorce was granted it seems to have been apparent appellee would be required to earn her own living and be compelled to leave the child largely in the care of others. The father, a railroad man, was able to leave the child with his mother. The change in appellee’s circumstances, that is, in her proven ability to care and provide for the boy in her new home and to be with him daily, was substantial. In view of the record there can be no doubt appellant, a good man, was fond of the child and anxious to retain its custody.
The problems of child custody are often highly perplexing. It is seldom possible to make an order which will seem entirely fair to or satisfy both parents. The paramount issue in every hearing in volving the change of a child’s custody of necessity cannot be the desires or wishes of either parent but must be whether circumstances and conditions have been so altered as to make a change in custody advisable in view of the best over-all interests of the child. Such a hearing requires the careful and conscientious consideration of all material factors in order that courts may exercise sound judicial discretion in the premises.
The question this court is obliged to determine on appeal is whether the court abused sound judicial discretion. This court does not reverse the ruling of district courts in such matters unless it clearly appears a court abused its discretion. (Kogler v. Kogler, 163 Kan. 62, 179 P. 2d 940.) The reason for this limited extent of our review is too obvious and has been too frequently stated to require reiteration.
We have given full consideration to the contentions of appellant’s counsel in behalf of his client. Without in any way implying such contentions are entirely without merit we are persuaded the entire record will not permit us to say the court abused sound judicial discretion in ordering the change in custody. We deem it unnecessary to labor the opinion by a review and comparison of factual situations in other cases previously decided.
Appellant further argues the district court misconceived fundamental principles of law governing the custody of a child. The contention is prompted by a single statement the court made in the course of the hearing. The statement was:
“• • • it has been my strong conviction that unless a mother is an unfit person to have the custody of a child of tender years, she should have it, unless she is not adequately able to care for it. Now, you can govern yourselves and the evidence from here on out.”
Appellant argues this statement is evidence of the court’s prejudice in favor of the mother, appellee. The statement of the court, standing alone, is too broad. The statement, however, did not constitute the court’s only consideration in making the order. It also stated its present consideration was:
“. . . whether or not the parties are fit and proper persons to have custody and control of the child and the paramount question is what is for the best interest of the child at this time. . . (Our italics.)
That was the issue. It was determined as seemed wise and just to the district court. We are not inclined to disturb the order. It is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action in the nature of a will contest, and the questions for determination concern the validity of the last will and testament of John E. Sehippel, dated July 10, 1939, and the validity of a document dated February 21, 1941, as an antenuptial contract and codicil to the will. The proponent of both instruments is one Jennerson, the principal beneficiary under the will, while the contestant is the surviving widow of the testator. After a full hearing the probate court admitted to probate the instrument of July 10, 1939, as and for the last will and testament of the testator, together with the instrument dated February 21, 1941, as and for a codicil and amendment to said will. An appeal was taken to the district court where the matter was heard on the transcript of evidence and the files introduced in the probate court. The district court made extensive conclusions of fact and conclusions of law in which the findings and orders of the probate court were upheld, following which the widow perfected her appeal to this court.
Error by the district court in its conclusions of fact and law is alleged in many respects, but, as heretofore stated, the only issues before us concern the validity of the two instruments in question.
We first take up and discuss the evidence with respect to the background of events and the circumstances in connection with the execution of the will.
John E. Sehippel (hereinafter referred to as John) was a bachelor farmer and lived about six miles northeast of Salina. He had lived in the community his entire life. In 1903 James A. Jennerson, a boy fourteen years of age, came out to the Sehippel farm to work. He went to school in the wintertime and worked full time in the summer. He lived with the Sehippel family more or less as a part of it. Later John’s father, Gothardt Sehippel, died, leaving a large amount of real estate and some personal property and John managed the estate. In 1918 Jennerson was married and he and his wife moved into a house built for them by John a few hundred yards from John’s home. He continued to do farm work for John and ap-' parently a very close relationship existed between the two with respect to the farming operations. However, John at all times retained full control of the management and made all decisions. Between the years 1918 and 1932 John paid Jennerson $1,000 a year for his services, but the latter and his wife occupied the house built for them by John rent-free. In 1932 the estate of John’s deceased father was divided among the children and John received as his share the homeplace, consisting of several hundred acres of real estate, and other property. Jennerson continued to live on the farm and work for John, receiving as payment therefor only his grocery bill and the occupancy of the house heretofore referred to.
The evidence further shows that over the period of years in question John stayed close to the farm and did not travel around much or go into town very often. He owned an automobile but did not drive. When he went in to town Jennerson usually drove him. Among his neighbors and acquaintances he had the reputation of being a man of strong convictions and was known as a forceful character. He enjoyed having friends come out to see him. He had a safety deposit box in one of the Salina banks and transacted his own business affairs. Over the period of years a close friendship existed between John and Jennerson and each had the utmost respect of the other. Each of John’s four brothers and sisters had received his or her share of the father’s estate, and John on various occasions had told several of his close friends that he intended to leave all of his property to Jennerson provided the latter continued to stay on the farm and work for him until his death.
In May, 1939, John, who was then sixty-three years of age, suffered a slight heart attack which put him to bed for a while and confined him to his house. Dr. Pederson, an osteopath in Salina, treated him. His illness was not regarded as particularly serious.
On June 2, 1939, Jennerson went to the office of W. S. Norris, a Salina lawyer, and asked him to.prepare a will for John; that John was too ill to come to town himself but that he, Jennerson, had all of the information necessary for the preparation of the will. Norris questioned him concerning the provisions of the proposed will and Jennerson told him that since John’s brothers and sisters had received their full share of the father’s estate John wanted to leave each of them only one dollar, and that with the exception of an eighty acre tract which he wished to devise to the two daughters of an old friend, now deceased, he wanted to leave all of his property to him, Jennerson, because of the latter’s faithful work and services for John for the past thirty-six years. In this same conversation he also asked Norris to prepare a deed conveying to him John’s undivided one-half interest in a quarter section of land which he and John had purchased and held as tenants in common since 1919. Norris prepared the will in accordance with the directions given to him by Jennerson; also the deed. Prior to this date Norris was not personally acquainted with either John or Jennerson. Norris retained the will and deed in his office file.
On Saturday, July 8, 1939, Jennerson contacted Norris with reference to bringing the will out to John’s home for execution and some discussion was had concerning witnesses. Since Dr. Pederson was going to give John a treatment on the morning of July 10, it was suggested that Norris and John’s banker come out to the farm on that morning, and they, together with the doctor, could serve as witnesses to the execution of the will. Accordingly, on the morning of July 10, Norris and Mr. Ludes, an official of a Salina bank, and with whom John had for a number of years transacted business matters, drove out to the farm. The doctor was just completing a treatment. Norris and Ludes went into the house, introductions were made and there was some informal conversation concerning the weather and a cooling system unit John had, after which Norris told John that he had with him the will which Jennerson had asked him to prepare. Norris testified that he handed it to John and told him to read it over and see if it was satisfactory, or words to that effect. There is a dispute in the evidence concerning whether Norris read the will aloud to John in the presence of the other witnesses or whether John read it himself, but, in any event, all of the testimony is to the effect that John heard the will read to him or else read it himself and expressed complete satisfaction with all of its provisions, following which John signed it in the presence of Dr. Pederson, Ludes and Norris. Each of them signed as a witness in the presence of John and of each other. Before the witnesses signed Norris asked John if he declared the instrument to be his will and he replied in the affirmative. The deed was then mentioned and John signed it, his signature being witnessed by Dr. Pederson and Norris, and Ludes, who was a notary public, took John’s acknowledgment. John then directed Ludes to take the will with him and place it in John’s safety deposit box in the bank. This was done.
The evidence is conflicting on the question whether Jennerson was present when the will was signed. The evidence shows that John was of sound mind, in possession of all his mental' faculties and knew and understood the contents of his will and what disposition was being made of his property. The will bequeathed one dollar to each of the four brothers and sisters of John; devised the eighty acre tract to the two daughters of the deceased long-time friend of John’s, and bequeathed and devised all of the rest and remainder of the property to Jennerson in the following language:
“Fourth: I do give, devise and bequeath unto James A. Jennerson who has been my faithful friend and employee for the past thirty-five years all the rest, residue and remainder of the property which may be owned by me at the time of my death, real, personal or mixed, in recognition of his faithful and loyal service and his care and kindness to me and his attention to my property and interests during my lifetime, including specifically the following described real estate, but not excluding any other real estate which I may own or in which I may have an interest at the time of my death, to-wit: . .
Jennerson was designated to serve as executor, with the request that he not be required to give bond. So far as the evidence discloses, the will remained in John’s box at the bank until after his death.
We pass now to the circumstances surrounding the execution of the antenuptial contract and codicil to this will of July 10, 1939.
On February 20, 1941, John came into Norris’ law office. The latter did not immediately recognize him and after a short preliminary conversation in which the circumstances of the will of July 10, 1939, were recalled, John told Norris that he was going to be married and wanted a contract prepared by which he and Rose Wessling, his intended spouse, in the event of death would each receive a life interest in the property of the other. Norris told him that he could prepare such a contract but that it would not be valid unless each of the parties fully understood the circumstances, the extent of the property of each and the respective rights of each upon their marriage. He testified that John replied, “Well, we understand each other and have known each other for a good many years; she knows my property and I know what property she has.” He prepared a contract and later the same day John came back into the office, at which time he and Norris went over its provisions. John objected to a reference to the specific will made in 1939, and then said something to the effect he either had already explained the whole thing to Rose or else would do so. Norris redrafted that part of the instrument accordingly. The next day John and Rose came into Norris’ office. John said that they had come in to sign the contract, whereupon Norris handed each of them a copy to read. They did so and upon being asked if they were ready to sign each replied in the affirmative. Norris then called in a Mr. Jenkins, his lawyer associate, and his secretary, Miss Coop. John and Rose each signed the instrument and Norris, Jenkins and Miss Coop signed as witnesses. According to Norris he did not make any explanation of the provisions of the contract and Rose asked no questions. He gave each of them an executed copy and retained one in his office file.
Jenkins, who resided at Omaha at the time of trial, testified by deposition concerning the execution and witnessing of the instrument, and his testimony was to the effect that Norris asked John and Rose if they had read and knew the contents of the instrument and were ready to sign and that each either said “yes” or nodded his or her head in the affirmative, following which each signed and the signatures were witnessed by him, Norris and Miss Coop.
Rose Wessling was a maiden lady who lived about five miles south of Salina. In 1941 she was sixty-two years of age. Her father and John’s father had been boyhood friends and she and John had known each other all their lives. The record is silent concerning their courtship, but on February 20, 1941, she and John decided to get married on February 22. According to her testimony, on the afternoon of February 20 she left John at his home and then started out to make arrangements for the wedding. She had dinner with John at his home on the noon of February 21 and that afternoon she and John drove in to Salina to buy some clothes and get the marriage license. After John bought the license he told her that they had to go to Norris’ office to sign a contract. According to her this was the first mention of any contract and there had been no discussion whatever concerning their property rights. They were to be married the next morning at six o’clock. They went to Norris’ office and her testimony concerning the execution of the contract was substantially that as given by Norris, except that she testified she “just glanced it over.” She further testified that at no time did she know anything about the will of July 10, 1939, or about any agreement between John and Jennerson whereby Jennerson was to receive practically all of John’s property as payment for his long services to John, and that no explanation was ever made to her concerning her rights under the law in John’s property, and that at the time she executed the contract she did not understand its provisions or the legal effect thereof. She further testified that at no time during her married life did John ever tell her that he had made a will.
On cross-examination Rose testified that her father died in 1913, and from then on she and her sister lived together on the farm until 1938, when the latter died. Thereafter she lived on the farm alone until her marriage. Her average income from her own property, valued at about $24,000, was $2,000 per year. Over a period of years she had worked hard, managed her own farm and had attended to all of her own business affairs and was thoroughly familiar with the management of farm properties. She stated that after she and John had signed the contract she took her copy, which Norris had given her, and handed it to her brother Henry for safekeeping, but that she had never read it over until after John’s death, even though she had access to it during the whole period in question. While denying knowledge of specific properties owned by John, she admitted that in a general way she was familiar with John’s property and the extent thereof.
Henry Wessling, Rose’s brother, testified that on the afternoon of February 21, 1941 (being the day before the wedding), John and Rose came to his house, at which time Rose gave him some papers for him to keep for her; that John handed him the contract and told him to read it; that he did so but that he did not discuss its contents with Rose either at that time or later, and that Rose never mentioned it to him.
The contract is as follows:
“ANTENUPTIAL AGREEMENT
“This indenture, made this 21st day of February, 1941, by and between, John E. Schippel of Saline County, Kansas, party of the first part, and Rose Mary Wessling of Saline County, Kansas, party of the second part, Witnesseth:
“Whereas a marriage is contemplated and is shortly to be solemnized between the parties to this agreement, both of whom are now single and unmarried persons and neither of whom has ever been married before or has any children; and
“Whereas each of the parties to this agreement is the owner of real and personal property and each of the parties hereto is familiar with the nature, extent and amount of property owned by the other and each of the parties hereto desires to retain the right to control, and dispose of the separate property which he or she may now own or may acquire in his or her name; upon the death of either of such parties, to the extent hereinafter set forth and provided for; and
“Whereas the marriage contract between the parties hereto has been entered into and the marriage relation between them is to be entered into and consummated in consideration of the mutual covenants and agreements on the part of each of said parties as herein set forth:
“Now Therefore, it is agreed by and between the parties to this agreement, in consideration of the premises herein set forth and in consideration of the agreement made by each of the parties hereto with the other, and in contemplation of said proposed marriage between them, as follows:
“If the said John E. Schippel, party of the first part, shall die prior to the death of the party of the second part, and while said second party is his wife, the said party of the second -part, as his widow, shall have a life interest and estate in and to all of the property, real and personal, owned by the party of the first part at the time of his death, with the right to hold and use the same and to have the income therefrom for and during the remainder of her life, but at her death the property left by the party of the first part at his death, real and personal, shall revert to and become a part of the estate of the party of the first part and shall be disposed of in accordance with the terms and provisions of the Last Will and Testament of said John E. Schippel, party of the first part, either as now made or which may hereafter be made by him and any such will, now or hereafter made by said John E. Schippel, shall be and remain in full force and effect according to the will and desire of the said John E. Schippel and shall be executed according to its terms, subject only to such modification thereof as is provided for in this agreement, to the extent of the life interest in his property which shall be held and used by said party of the second part under the conditions and for the time herein specified, and said party of the second part, Rose Wessling, does hereby consent to the Will now made by the said John E. Schippel, or to any Will which he may hereafter make during his lifetime and does consent and agree to' any disposition which he may make of his property therein, subject only to the provisions made for her under the terms of this agreement and by the provisions thereof.
“If the said Rose Mary Wessling, party of the second part-, shall die prior to the death of the party of the first part and while said first party is her husband the said party of the first part, as her widower, shall have a life interest and estate in and to all of the property, real and personal, owned by the party of the second part at the time of her death, with the right to hold and use the same and to have the income therefrom for and during the remainder of his life, but at his death the property, left by the party of the second part at her death, real and personal, shall revert to and become a part of the estate of the party of the second part, and shall be disposed of and shall go to her heirs, other than her said husband, according to the laws of descent and distribution if she dies without leaving a Last Will and. Testament, or in accordance with the terms and provisions of any Last Will and Testament which she may hereafter make, and any Will which she may make hereafter shall be and remain in full force and effect according to her will and desire as expressed therein, and shall be executed according to its terms, subject only to such modification thereof as is provided for in this agreement, to the extent of the life interest in her property which shall be held and used by the party of the first part under the conditions and for the time herein specified, and said party of the first part, John E. Schippel, does hereby consent to any will which said party of the second part may hereafter make during her life time and does consent and agree to any disposition which she may make of her property therein, subject only to the provisions made for him under the terms of this agreement and by the provisions hereof.
“It is further understood and agreed and it is the intention of this contract that neither party shall have or acquire, by reason of the marriage now contemplated by them, or as the result of said marriage after the same is solemnized, any right or interest in or to the property of the other, now owned or hereafter acquired by either of said parties, except to the extent of the life interest therein as herein provided for, which shall inure under the terms of this agreement to the survivor of the two parties hereto, to the extent and under the conditions herein provided for and each of the parties hereto does hereby release the other party, and the estate of the party who may first die, from any and all claim, right, title or interest in or to the property of the party who may first die, except to the extent of the life estate and interest as herein provided for.
“In Witness Whereof, the parties have hereunto set their hands, to duplicate copies hereof, and to which covenants and agreements the said parties mutually bind themselves, their heirs, executors, administrators and assigns, by these presents duly executed the day and year first above written.
“S/ John E. Schippel
Party of the first part
“S/ Rose Mary Wessling
Party of the second part
“The foregoing instrument of writing was signed by John E. Schippel and Rose Wessling in the presence of the undersigned witnesses and was by them duly acknowledged and represented to be the free act and deed of them and each of them and to have been entered into by each of them with full understanding of the contents and meaning thereof, and the undersigned have hereunto set their hands in attestation thereof, in the presence of said John E. Schippel and Rose Mary Wessling and in the presence of each other, at Salina, Kansas, this 21st day of February, 1941.
“S/ W. S. Norris Salina, Kansas
“S/ Audrey Coop Salina, Kansas
“S/ Homer B. Jenkins Salina, Kansas”
John and Rose were married the next day, February 22,1941, and lived together on John’s home place until John’s death on April 7, 1948.
At the outset we concede the rule urged by appellant to the effect that since the district court heard and decided this case upon the transcript and files of the proceedings in the probate court we are not bound by the familiar rule of appellate review that where findings of the trial court are supported by substantial, competent evidence they will not be disturbed on appeal. In the case before us we concede that it is our responsibility to decide what the facts establish. (In re Estate of Davis, 168 Kan. 314, 212 P. 2d 343.)
With reference to the will of July 10, 1939, it is the contention of appellant that Jennerson is the principal beneficiary thereunder; that it was written or prepared or caused to be written or prepared by him; that at the time it was written or caused to be prepared by him he was the confidential agent of or occupied a position of confidence and trust to John, and that John had no independent advice with reference to the will and that it is therefore void under the provisions of G. S. 1947 Supp. 59-605, which reads:
“If it shall appear that any will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall affirmatively appear that the testator had read or knew the contents of such will, and had independent advice with reference thereto.”
On the other hand, appellee argues that the independent advice requirement of the statute applies only where the. principal beneficiary writes or prepares the will and who at the time of writing or preparing the same is the confidential agent of or legal adviser to the testator, or who at the time occupied any other position of confidence or trust to such testator, and that the evidence not only fails to show that Jennerson (who is conceded to be the principal beneficiary) wrote or prepared the will but also fails to show that at the time in question he was the confidential agent of or legal adviser to John, or occupied any other position of confidence or trust to him as contemplated by the statute.
Questions involving the interpretation of this statute (and of the former statute, G. S. 1935, 22-214, which in substance is the same as the present statute) have been before this court on many occasions and it has been repeatedly held that it'means exactly what its very language states, namely, that it applies (1) when the will is written or prepared by the sole or principal beneficiary (2) who is the confidential agent or legal adviser or who occupies some other position of confidence or trust to the testator, and that when these conditions exist the will shall not be held valid unless it shall affirmatively appear (1) that the testator read or knew the contents of such will and (2) had independent advice with reference thereto. (Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087.)
Counsel for appellant admit that in a literal sense Jennerson did not write or prepare the will but argue that the evidence clearly shows that he caused it to be written and prepared within the meaning of the statute and that under the circumstances Norris is to be recognized merely as the scrivener. That Jennerson supplied the information to Norris to be included in the will cannot be denied— but the question is, does such fact, together with the other circumstances, bring him within the statute? Counsel for appellee contend that beyond question Jennerson’s actions render him merely the “messenger” in bringing to Norris the information concerning John’s wishes to be followed in preparing the will and that he truthfully delivered John’s message to Norris.
It may be conceded that under .some circumstances a person occupying such a position of “go-between” could be considered and held to be the one “writing or preparing” a will within the meaning of the statute, but we do not think that any such inference or conclusion can be drawn from the evidence before us in this case. Norris testified that Jennerson told him that John was too ill to come in to the office at that time but had sent him in to give him, Norris, the information as to what John wanted in his will. Then followed a detailed conversation between the two as to the proposed provisions and Jennerson gave Norris the legal description of a number of tracts of real estate owned by John so that they could be mentioned specifically in the will. Furthermore, that Jennerson truthfully reported John’s wishes to Norris is borne out by the testimony of other witnesses relating to conversations had with John.
Dr. Pederson testified that on the occasion of a previous professional call John had told him he was going to leave his property to Jennerson because of the long, faithful service the latter had given him and that it was “the right thing to do”.
Another witness, a Mr. Rose, who had lived about a mile and a half from John for over forty years, testified that on an occasion when he and John were “tending cattle” John remarked, “This is Jim’s (Jennerson) after I am gone.”
Still another witness, Albert Hahn, who was seventy-five years of age and had known John since the latter was a child, testified that after John had received his share of his father’s estate in the division made in 1932, John told him that if Jennerson would continue to stay and work for him he would give him his property.
No question is raised concerning John’s mental competency either before or at the time the will was executed. The testimony of the attesting witnesses is that John either read it or it was read to him and that he expressed complete satisfaction with its terms. Later, in February, 1941, when he was in Norris’ law office with reference to the preparation of the antenuptial contract, the will was again discussed and all of the evidence on the question leads to the inescapable conclusion that at that time John again ratified and confirmed its provisions. In view of all these facts and circumstances, how can it be said that within the meaning of the statute Jennerson, the principal beneficiary, prepared or even caused to be prepared, this will? While the language of the statute is plain and unambiguous, yet it is not to be given an unwarranted and unreasonable construction, and we think the evidence here clearly shows that the will was written exactly as John had directed Jennerson to instruct Norris, the scrivener, and that within the contemplation of the statute it was not “written or prepared” by Jennerson. (Anderson v. Anderson, 147 Kan. 273-278, 76 P. 2d 825.)
From what has been said this phase of the case might well be brought to a close, but in view of the strenuous argument made by appellant we feel compelled to touch briefly on the question of the alleged confidential relationship existing between John and Jennerson over the period of years and particularly as of the time this will was executed. It is argued that because Jennerson came to live in the Schippel home when a small boy; had continued to work for John in a close relationship in the farming operations; that John had furnished him and his wife with'a home there on the farm, and for many other reasons, he, within the contemplation of the statute, was the confidential agent of and occupied a position of confidence or trust to John. While undoubtedly a very close relationship did exist between the two men, we think appellant’s deductions are not warranted by the evidence. In fact about the only incident in which it appears John was “dependent” upon Jennerson was to have the latter drive his car for him when he wanted to go in to town. The evidence is that John was a strong-willed individual, had a mind of his own, made his own decisions, knew what was going on at all times, handled his own business affairs and that in a legal sense, and certainly within the contemplation of the statute, Jennerson merely was an employee and worked for him. The mere fact of such relationship, even over a period of years, did not create the position of confidence or trust urged by appellant. In the early case of Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 20 Ann. Cas. 215, 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, it was said:
“The requirement that the testator must be shown to have had independent advice clearly implies that in order to be deemed to occupy a position of confidence or trust to the testator the draftsman must be someone to whom he naturally looks for counsel.” (p. 297.)
(See, also, Klose v. Collins, 137 Kan. 321, 20 P. 2d 494, and Jernberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 131 P. 2d 691.) There is no evidence that John ever looked to or relied upon Jennerson for counsel or advice.
Under the evidence in this case we hold that Jennerson neither wrote or prepared the will, nor was he the confidential agent of or occupied a position of confidénce or trust to John within the meaning of the statute. This being the case, the question of independent advice becomes immaterial. In In re Estate of Horton, 154 Kan. 269, 118 P. 2d 527, it was held:
“If, under the facts, it appears that the will was not prepared by the sole or principal beneficiary in such will who at the time of writing or preparing the will was the confidential agent or legal adviser of the testator or who occupied at that time any other position of confidence or trust to such testator, then we think the question of independent advice is immaterial.” (p. 274.)
See, also, Klose v. Collins, supra, where it was said:
“The provisions of K,. S. 22-214 with reference to having independent advice in the making of a will, which is later contested, are not applicable unless the will was written or prepared by the sole or principal beneficiary therein, who was at the time of its preparation the confidential agent or legal adviser of the testatrix.” (Syl. ¶ 5.)
We think the finding of the lower court upholding the validity of the will in question was clearly correct.
This brings us to the question of the validity of the instrument heretofore referred to as an antenuptial contract and codicil to the will.
The gist of appellant’s attack oh this instrument is that her signature was obtained by fraud, deceit, and overreaching on the part of John; that she did not know her legal rights or the legal effect of its provisions at the time she signed the instrument; that a full disclosure of all facts and circumstances was not made to her and that her so-called consent to the will in question is void and of no effect for those reasons.
Many cases dealing with antenuptial contracts are cited and discussed in the very excellent briefs filed by counsel for each party to this lawsiut. In some they were upheld, in others stricken down. The authorities disclose very little, if any, dispute as to the general rule covering the subject matter. The only difficulty lies in the application of the rule to the particular facts of a given case. In In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483, in which the earlier decisions were reviewed, it was said:
“The general rule in this state is that contracts, made either before or after marria'ge, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpretated to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching.” (Syl. ¶ 1.)
“Where it appears that an antenuptial contract was understandingly made and freely executed, and where there is an absence of anything showing fraud or deceit, the mere fact the intended husband did not disclose in detail to the intended wife the nature, extent and value of his property will not, of itself, invalidate the contract or raise a presumption of fraudulent concealment, and if from a consideration of all the facts concerning the situation of the parties, such as their respective ages, family conditions, property rights, etc., at the time the contract was made the trial court concludes the intended wife was not overreached, the contract should be sustained.” (Syl. ¶[ 2.)
See, also, the recent case of In Re Estate of Place, 166 Kan. 528, 203 P. 2d 132, where it was held:
“The general rule is -that where antenuptial contracts are fairly and understandingly made which are just and equitable in their provisions and free from fraud and deceit, they are valid and enforceable.”
Tested by the foregoing, can it be said this contract was not fairly and understandingly made; that its provisions were not fair and equitable, and that it was the result of fraud, concealment and overreaching on the part of John? Our answer must be in the negative.
Despite Rose’s belated denials and assertions, we must examine the evidence, both direct and circumstantial, realistically. The circumstances in connection with the signing of the contract in Norris’ office have already been related. This is not a case of an elderly, experienced businessman entering into a marriage contract with an inexperienced young woman. They were approximately the same age, lived within a few miles of each other and had known each other all of their lives. Their fathers had been long-time friends before them. Her own testimony shows that she knew in a general way what property John possessed. She knew he was a man of substantial means; that he had extensive farming interests and owned several city properties in Salina. While perhaps not well versed in the legal technicalities of wills, contracts and the like, yet she was an experienced businesswoman in her own right, and, to use her expression on cross-examination, had gone “through a'pretty hard school of learning and experience.” The evidence clearly establishes that she knew and understood she was signing a contract with reference to their property rights and that she understood the import thereof.
Was this contract fair and equitable in its provisions? In the absence of proof to the contrary, we can assume that in 1941 their respective holdings were, relatively speaking, the same as after John’s death in 1948. On the latter date his estate was valued at $209,000. By the terms of the contract she took a life estate in this amount, and the evidence shows the income from it, figured on the basis of a landlord’s share, to be approximately $6,000 per year. Her own property, worth about $24,000, produced an annual average income of $2,000. We fail to see where she was not thus adequately provided for during the remaining years of her life. Under the circumstances of this case, equity should not require of a man who marries late in life to make such financial provision for the wife of his declining years as will impair his existing obligations to those persons who have earned a right to share in his estate. We think the division thus made was fair and equitable.
And neither can we agree with her contention that the contract was the result of fraud, concealment or overreaching on the part of John. Other than her bare statements after John’s lips were sealed by death, there simply is no evidence to sustain such argument. In fact, all of the other evidence, both direct and circumstantial, points directly to the opposite conclusion. In Shriver v. Besse, 163 Kan. 402, 183 P. 2d 407, it was held:
“Where a party voluntarily signs an antenuptial contract and thereafter seeks to refute it on the ground its execution was obtained by fraud, such fraud must be made to appear clearly before the contract may be declared invalid.” CSyl. IT 3.)
On the general subject matter, see also Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; Henry v. Butler, 87 Kan. 122, 123 Pac. 742; Watson v. Watson, 104 Kan. 578, 180 Pac. 242, and Hoard v. Jones, 119 Kan. 138, 237 Pac. 888.
It is also argued that her so-called consent to John’s will is ineffectual for the reason that the circumstances in connection therewith do not meet the requirements of valid consents to wills as laid down in our many decisions. What has been said with respect to the execution by her of the contract, taken as a whole, might well apply to this argument, but there is still another reason why her contentions with respect to the consent feature are without merit. When an antenuptial agreement is under attack the primary inquiry is whether the provision made for the prospective wife is reasonable and proportionate, free from fraud or overreaching, and whether it was understanding^ and freely made. Such contracts are made when both parties are single and at a time when neither of them has any rights in the property of the other. They are made upon a different basis than consents by wives that the husband may will away more than one-half of his property. The consideration of such an agreement is the contemplated marriage, and the parties, for such consideration, simply agree in advance of marriage upon a different rule as to property rights than the statutory rule. The statute providing that a husband shall not will away more than one-half of his property without the written consent of his wife has no application here. By the very terms of this contract she limited herself to'a life estate in his-property and no consent to his will, as contemplated by the statutory provisions, was necessary.
In conclusion, we hold that the written instrument under date of July 10, 1939, is entitled to probate as and for the last will and testament of John E. Schippel, deceased, and further that the written instrument under date of February 21,1941, is entitled to probate as and for a codicil and amendment to said will.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a husband to set aside a deed to city property which his wife conveyed pursuant to a duly executed and recorded power of attorney.
The plaintiff, Philip S. Horney, filed the action against his wife, Kathleen J. Horney and the purchasers of the property, J. O. Buffenbarger, Jr., and Eleanor G. Buffenbarger, his wife. No service was had on appellant’s wife. The purchasers were the only parties defendant. Judgment was in favor of the purchasers and plaintiff has appealed.
At the time of the conveyance on November 25,1946, and for some time prior thereto, appellant was serving in the ordnance department of the army in the Pacific theater. The title to the property stood of record in his name. In July, 1944, he had executed the following power of attorney to his wife:
“Power op Attorney
“Know all Men by These Presents, that I, the undersigned, Philip S. Horney of Neodesha, in the county of Wilson, State of Kansas, have made,-constituted and appointed, and by these presents, do make, constitute and appoint Kathleen J. Horney, of Neodesha, in the county of Wilson, State of Kansas, my true and lawful attorney in fact, for me and in my name and stead, and to my use;
“1. To grant, bargain, sell, mortgage or lease, whether with or without covenants and warranties in respect to the following land, to wit: [description of property] or to any other lands, buildings, tenements, leaseholds or other structures or any part or parts thereof that may belong to me now or to which I may become entitled at any time.
“2. To enter upon and take possession of any such land, buildings, tenements or other structures or parts thereof and to collect and receive rents, profits, issues or income therefrom, to manage, repair, alter and reconstruct all buildings or structures thereon; such powers as above enumerated to spe cifically include acts relating to our homestead and my consent thereto.
“3. Without, in any wise, limiting the foregoing, generally to do, execute and perform any other act, deed, matter, or thing, whatsoever, that ought to be done, executed and performed, including all reports, tax returns, applications, transactions and dealings with Federal, State and local governments and departments and agencies thereof, or that, in the opinion of my said attorney, ought to be done, executed or performed in and about the premises, of every nature and kind, whatsoever as fully and effectually as I could do, if personally present; and
“Hereby give unto my said attorney in fact, full authority and power to do everything whatsoever requisite or necessary to be done in the premises, as fully as I could or might do if personally present, with full power of substitution and revocation, hereby confirming and ratifying all that my said attorney in fact, shall lawfully do or cause to be done, hereunder.
“Witness my hand this 7th day of July, 1944.
“Philip S. Hornby.”
The foregoing instrument was properly acknowledged and was recorded in the office of the register of deeds of Wilson county December 6, 1945. On November 25, 1946, appellant’s wife individually and as attorney in fact for her husband entered into a written contract with appellees for the sale of the real estate together with the furniture in the home at the agreed price of $5,000. She agreed to furnish a merchantable title. The purchase price was paid in full to appellant’s wife. A warranty deed was executed by her individually and by her as attorney in fact for her husband. It was delivered and recorded November 27,1946.
Prior to the execution and delivery of the deed to appellees the latter made application to the Neodesha Building and Loan Association for a loan to finance the purchase. That company already had possession of the abstract of title by reason of a mortgage loan it previously had made to appellant and his wife. The first thing the lqan association did after appellees made application for the loan was to send the abstract to the Fink Abstract Company at Fredonia to have it brought up to date and certified. Upon its return the loan association delivered the abstract to its attorney for examination. He examined it and delivered his written opinion to the loan association. The opinion dated November 26, 1946, referred to the loan of $1,600 already held by that loan association and called attention to a discrepancy in the initial of appellant’s wife as disclosed in the power of attorney. Subject to those matters the loan association’s attorney approved the title stating he did so assuming the abstract was complete and accurate. Upon such advice the loan association took steps to complete the loan to appellees. It recorded its new mortgage loan. Its attorney thereafter on December 1, 1946, delivered his second opinion advising the loan association the title was sufficient for loan purposes and that its loan to appellees in the sum of $2,500 constituted a first lien on the property.
The Fink Abstract Company’s statement for services rendered was delivered to the loan association and contained the following notation:
“In
“Account Neodesha Building & Loan Assn.”
“With
The loan company made its own check for abstract services payable to “Fink Abstract Company” and on the bottom of the check were the words, “For J. O. Buffenbarger.” The secretary of the loan association, upon being asked why the words, “For J. O. Buffenbarger”, were placed on the check, stated the purpose thereof was to indicate that it was an expense check in connection with the J. O. Buffenbarger loan. Although the secretary of the loan association was not certain he believed he had told Buffenbarger that in making loans the association required the purchaser to pay the expense of having the abstract perfected and certified to date. It appears Buffenbarger understoood that and he paid the loan association for the abstract services after the latter had paid the abstracter.
We now reach the principal facts which occasioned this lawsuit. Sometime prior to the contract of sale between appellant’s wife and appellees the appellant without notifying his wife sent a message from Manila to the register of deeds of Wilson county as follows:
“All Powers oe attorney Given by Me Prior to Date Hereby Revoked
“M/Sgt Philip S. Horney, 280A”
Although the purported revocation of the power of attorney was unacknowledged the register of deeds indexed and recorded the instrument August 5, 1946. Appellees at no time had the abstract of title in their possession. The abstract as delivered to the loan association by the abstracter contained no entry or mention of the alleged revocation. When appellant returned to Neodesha in December, 1946, or January, 1947, his wife was gone. He was unable to -locate her. She had received full payment for the property from appellees. Appellant found appellees in possession of the premises.
This action was filed January 1, 1948. In his petition appellant, in substance, alleged: The deed to appellees was without legal force and effect by reason of the fact appellant’s wife was without lawful right, power or authority to convey the property; by reason of appellant’s military services he was prevented from being in Wilson county to protect his interests and the transaction between his wife and appellees was in fraud of his rights; appellant’s wife had no right or authority to receive any consideration for the transaction; he had received no part of the consideration and appellees should be adjudged to have no right, title or interest in the property.
The trial court found the issues generally in favor of appellees and in the journal entry of judgment also made some further findings respecting the narrative of events and a finding in the nature of a legal conclusion relative to the invalidity of the purported revocation of the power of attorney to give notice to purchasers. This subject will receive further attention later.
It is not contended the power of attorney was executed by appellant other than as his free and voluntary act. No attack is made on the legal sufficiency of that instrument for the use and purpose intended. It is not claimed appellant’s wife had any knowledge of the purported revocation. There was no evidence of a fraudulent intent on the part of the purchasers. They had no knowledge of the purported revocation until this action was filed. Neither the loan association nor the attorney who examined the abstract for it had notice thereof unless it can be said they had constructive notice by virtue of the recorded unacknowledged revocation which was not disclosed in the abstract of title. The bonded abstract company is not a party to this action. Its certificates were of the uniform character and in addition to certifying there were no judgments, etc., on file or of record in the office of the clerk of the district court affecting the title to the described real estate the certificates also stated:
“We, the undersigned, do hereby certify that the foregoing is a true and correct abstract of all conveyances and other instruments of writing, including Federal Income Tax Liens, filed for record or recorded in the office of Register of Deeds of said County (except any instrument filed as a chattel only), affecting the title to the following described real estate situate in the County of Wilson, State of Kansas, to-wit: [description of property].”
Appellant’s first contention is the power of attorney nevertheless wás revoked prior "to the sale of the property. For statutes requiring acknowledgment of instruments in writing conveying real estate, or whereby any real estate may be affected, see G. S. 1935, 67-209 to 67-220, inclusive.' The pertinent part of G. S. 1935, 67-221 provides :
“Every instrument in writing that conveys real estate, or whereby any real estate may be affected, proved or acknowledged, and certified in the manner hereinbefore prescribed; may be recorded in the office of register of deeds of the county in which such real estate is situated. . . .” (Our italics.)
G. S: 1935, 67-222 reads:
“Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.” (Our italics.)
Section 1, chapter 232, Laws of 1943, provides:
“All letters of attorney or powers of attorney intended for use in this state may be acknowledged or proved in the same manner as conveyances of land are acknowledged or proved; and when any letter of attorney or power of attorney is acknowledged or proved in such manner, the same may be recorded in the same manner as a conveyance of land is recorded; and copy'of any such letter of attorney or power of attorney, duly certified, shall be admitted in evidence without accounting for the nonproduction of the original thereof.” (G. S. 1947 Supp. 58-601.) (Our italics.)
Section 2 of the same act reads:
“Any instrument in writing revoking or purporting to revoke any letter of attorney or power of attorney when acknowledged or proved in the same manner as a conveyance of land is acknowledged or proved, may be recorded in the same manner as a conveyance of land is recorded, and with like effect from the time of its recording.’’ (G. S. 1947 Supp. 58-602.) (Our italics.)
By "chapter 258, Laws of 1945, the legislature provided an additional and easy method for servicemen to obtain acknowledgments to written instruments and, when so acknowledged, made them admissible in evidence and eligible to record in this state under the same circumstances, and with the same force and effect, as if acknowledged within this "state as otherwise provided by law. (G. S. 1947 Supp. 67-216c, 67-216d.)
In this state it was early held an instrument affecting title to real estate is not eligible for record unless acknowledged and certified as required by law (Meskimen v. Day, 35 Kan. 46, 10 Pac. 14; Sanford v. Weeks, 38 Kan. 319, 324, 16 Pac. 465; Fisher v. Cowles, 41 Kan. 418, 21 Pac. 228; Bannister v. Fallis, 85 Kan. 320, 322, 116 Pac. 822; Nordman v. Rau, 86 Kan. 19, 20, 119 Pac. 351) and that unless acknowledged and certified as required by law the record does not impart notice to anyone. (Wickersham v. Chicago Zinc Co., 18 Kan. 481, 487; Hayhurst v. Underwood, 126 Kan. 349, 352, 267 Pac. 965.)
Appellant directs attention to G. S. 1935, 67-223, which provides:
“No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record,”
and argues appellees’ agent, the Fink Abstract Company, had notice of the revocation. The contention, of course, assumes the abstracter was appellees’ agent, a fact the trial court, as will presently appear, refused to find. It may be well to emphasize this is not an action by purchasers of property against an abstracter for failure to notice the purported revocation, or to notice it and fail to enter it upon the abstract. Concerning such an action we, of course, express no opinion now. The question here is only whether the recorded unacknowledged revocation imparted constructive notice to purchasers in the instant case that the power of attorney had been revoked. We hold it did not.
Appellant next asserts the unacknowledged revocation placed appellees on inquiry which they were required to pursue. The point has been decided adversely to his contention. (Nordman v. Rau, supra.) Appellant recognizes that decision but contends the majority rule in this country is to the contrary, is sounder and should be adopted. This court is not unmindful of decisions contrary to the Nordman case with respect to the particular contention made by appellant. Whether the Nordman case should be followed or overruled with respect to that particular point need not be determined in the instant case. That decision may await a case involving the same facts as existed in the Nordman case. In that case the purchaser had “actual knowledge” of the contents of the record by reason of an examination of it by his agent which knowledge, because of the nature of the agency, was construed to be “actual knowledge” of the purchaser of the contents of the record. The case was decided upon the theory the purchaser had personally seen and read the records in the office of the register of deeds. In the instant case the purchasers did not personally examine the records and that feature of the Nordman case is not controlling here. Appellant argues appellees had a duty to examine the records. We think it more accurate to say a purchaser’s failure to examine the records does not relieve him of constructive notice imparted by the records.
Decisions relied on by appellant such as Pope v. Nichols, 61 Kan. 230, 59 Pac. 257; Faris v. Finnup, 84 Kan. 122, 113 Pac. 407; Edwards v. Myers, 127 Kan. 221, 273 Pac. 468; Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 157 Pac. 805; Hoult v. Rich, 161 Kan. 587, 170 P. 2d 834, are not out of harmony with the views previously stated herein with respect to constructive notice resulting from our recording statutes. They pertain to actual notice, express or implied, obtained outside the record of the register of deeds which if pursued would have disclosed the actual title to the property involved. Appellant does not contend appellees, or any agent of theirs, had notice of any facts outside the record which would have placed a prudent person on inquiry and that inquiry, if made by reason of such facts, would have disclosed appellant had revoked the power of attorney.
Appellant argues the new 1943 statute, previously set forth (G. S. 1947 Supp. 58-602) which provides for revocation of power of attorney does not limit the method of revocation to a written instrument. The statute prescribes what kind of a written revocation may be recorded. In the instant case the only evidence of revocation relied upon was a recorded written instrument insufficient to impart notice of revocation to anyone.
The journal entry of judgment discloses the trial court found generally for appellees and made some other findings, as well as a finding which probably would be more accurately denominated a conclusion of law. Appellant complains concerning the refusal of the court to make two additional findings of fact. The trial was had on October 21, 1948. Counsel for the respective parties requested leave to file briefs. Attorneys for appellees suggested the possibility of a settlement and requested a delay in the decision for a reasonable time. Counsel for appellant acquiesced in the request. Briefs were filed and the court rendered its decision March 15, 1949.
On March 18,1949, appellant filed his motion to set aside findings of fact and for a new trial. On April 2,1949, appellant requested the trial court to clarify the findings made and to amplify the findings by making two additional findings, as follows:
“1. That the Fink Abstract Company in certifying and recertifying the abstract of title to the real property in question in the above action on November 25th and November 27, 1946, acted as the agent of defendants, J. O. Buifenbarger, Jr., and Eleanor G. Buffenbarger.
“2. That the Fink Abstract Company in certifying and recertifying said abstract of title as above found, checked the records in the office of the Register of Deeds concerning the real property in question in this action and saw the record therein of plaintiff’s telegram above quoted, recorded and indexed as above found in the office of said Register of Deeds.”
The foregoing motions were overruled. Appellant argues that where a court makes some findings of fact it should make findings on all material issues of fact when requested to do so, citing Moorhead v. Edmonds, 99 Kan. 343, 161 Pac. 610.
Appellees assert the motion for findings of fact was not timely-made and was, therefore, properly overruled. They further contend unless substantial prejudice resulted from failure to make requested findings, an appellant cannot complain, citing Marquis v. Ireland, 86 Kan. 416, 121 Pac. 486; Martin v. Robinson, 127 Kan. 100, 272 Pac. 149; Federal Land Bank v. Bailey, 156 Kan. 464, 467, 134 P. 2d 409.
Passing the question whether appellant’s motion for additional findings was .timely made it is clear from what has been said previously herein that we cannot, as a matter of law, say the court was compelled to make that finding.
With respect to requested finding No. 2 there was no evidence the abstracter actually saw the record of the telegram when examining the records in the office of the register of deeds. The court was not asked to find the abstracter should have seen it. Whether he should have seen it and entered it on the abstract may become material in other actions we are advised are now pending. Concerning that matter we presently express no views.
Another subject suggested to counsel by this court on oral argument but which counsel for the parties admitted was not presented to the trial court is not determined.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This appeal is from a judgment construing a transaction to have resulted in the creation of a joint tenancy with right of survivorship in Minnie M. Minglin, the claimant thereto. The widow of a deceased husband and the administrator of the estate of the deceased contended in the probate court and on appeal in the district court such a tenancy was not created by means of an account the deceased had with Minnie M. Minglin.
Some of the preliminary facts, in substance, were: E. H. Fast started in the real estate business in Topeka in 1922; about 1925 he met Minnie M. Minglin, a clerk in one of the Topeka stores; she owned about $2,000 in her own right; E. H. Fast, the deceased, invited her to join him in the real estate business; whether she joined him as a partner or as a¡n assistant need not be determined; in 1935 Fast proposed to her and they went through a marriage ceremony in Kansas City, Kansas; Fast falsely informed her he had been divorced from his former wife years ago; she bought a home in Topeka with her money in which they lived and conducted a real estate business until Fast’s death in 1948; during the period from 1935 to 1948 the deceased at all times publicly and privately held out Minnie M. Minglin (alias Minnie M. Fast) as his wife; she signed all real estate conveyances with him as his wife; they had no children; a safety deposit box of E. H. Fast in a Topeka bank was opened after Fast’s death and the passbook to the account in question, No. 4036 in the Shawnee Federal Savings and Loan Association, was found together with papers belonging to both E. EL Fast and Minnie M. Minglin; Minnie M. Minglin had a key to the box; Fast’s widow, Myrtle M. Fast, came to Topeka with her attorney and petitioned for the appointment of John M. Fast, a son of the deceased and Myrtle M. Fast, to be appointed administrator of the decedent’s estate; the appointment was made.
Minnie M. Minglin filed a claim in the probate court covering a number of items including ownership of the passbook previously mentioned. She prevailed with respect to the passbook. The only issue is whether the account in the loan association constituted a joint tenancy which the survivor, Minnie M. Minglin, owned at the death of E. H. Fast or whether it constituted a tenancy in coipmon. The account was opened by Fast May 23,1944. The application to open the account contained the following heading:
“Account No.............SS 4036...........
“(1)........................................................Fast, Earl H. Or........................................................
“(To be typed) (Surname) (First Name) . (Middle Name)
“(2)........................................................Fast, Minnie M.......................................................”
The remainder of the application reads:
“The undersigned hereby apply for a membership and for a..........Savings. share account in the
“SHAWNEE FEDERAL SAVINGS AND LOAN ASSOCIATION
and for the issuance of evidence of membership in the approved form in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common* Receipt is hereby acknowledged of a copy of the charter and by-laws of said association. Specimens of the signatures of the undersigned are shown below and the Association is hereby authorized to act without further inquiry in accordance with writings bearing any such signature; it being understood and agreed that any one of the undersigned who shall first act shall have power to act in all matters related to the membership and any share account in said association held by the undersigned, whether the other person or persons named in the certificate be living or not. The repurchase or redemption value of any such share account or other rights relating thereto may be paid or delivered in whole or in part to any one of the undersigned, who shall first act, and such payment or delivery or a receipt or acquittance signed by any one of the undersigned shall be a valid and sufficient release and discharge of said association.
“(1) Signature______Earl H. Fast.............. (2) Signature..................................................
“Street Address......2061 Calif Ave...... Street Address................................................
“City and State Topeka Kan............ City and State................................................
“Dated......May 23 - 44.............................. Introduced by................................................
“* The certificate issued pursuant to this application for membership of joint holders must be filled out by inserting in the first blank space the names of the joint holders; for example, ‘John Doe and Richard Roe,’ immediately followed by the words: ‘as joint tenants with the right of survivorship and not as tenants in common.’ Joint tenants with the right of survivorship constitute ONE member as a partnership constitutes one member.
“(b) Membership of joint holders (with right of survivorship) of a share account.
“Application for membership and signature card.
“Earl H. Fast or Minnie M. Fast”
The certificate issued the same day pursuant to the foregoing application reads:
“Shawnee
“Federal Savings and Loan Association
“Topeka, Kansas
“As joint tenants with a right of survivorship and not as tenants in common.
“This Certifies that................EARL H. FAST or MINNIE M. FAST................ is a member of the Shawnee Federal Savings and Loan Association, and holds a savings share account of said Association, subject to its Charter and By-Laws and to the laws of the United States of America.
“Witness the seal of the undersigned and the signature of a duly authorized officer, this........23........day of........May, 1944.--------
“Shawnee Federal Savings & Loan Association
“By /s/ F. M. Wilson
“(Corporate Seal) “Asst. Secretary”
The original deposit slip showing a deposit of $500 on May 23, 1944, was in the name of “Earl H. Fast or Minnie M. Fast." The ledger sheet to which the account was transferred showing all deposits from May 23, 1944, to June 30, 1948, inclusive, and in the total sum of $5,046.93 bears the following heading:
“Savings Share Account
“NAME........Earl H. Fast or Minnie M Fast....................Account No. 4036............
........Joint Account....................
........Husband and Wife........”
The first page of the passbook contains the following heading:
“Account
“No.........4036........Member_______Earl H. Fast or...................... As joint tenants
........Minnie M. Fast...................... with a right of
Address........2061 California Ave.............. survivorship and
........Topeka, Kansas...................... not as tenants in
common.”
The second page of the passbook contains the following heading: “Account
“No.........4036........Member............Earl H. Fast or Minnie M. Fast..........................”
There was evidence by the loan association’s assistant secretary: The statements on the instruments, to wit, “. . . as joint tenants with the right of survivorship and not as tenants in common . . .”, were placed there when the account was opened at the direction of the investor, E. H. Fast. '
Minnie M. Minglin (alias Mrs. Fast) and E. H. Fast had discussed the survivorship account on many occasions.
That the rule as to joint tenancy and survivorship now applies to personal as well as real property in this state is no longer open to question. (Bouska v. Bouska, 159 Kan. 276, 153 P. 2d 923.) In the Bouska case it was held:
“The statute, G. S. 1935, 22-132, merely abolishes joint tenancy and survivorship as a matter of law — that is, in matters of intestate succession the common-law rule of survivorship no longer prevails in this state. The statute does not undertake to forbid joint tenancies and survivorship by negotiation or contract and it does not render unlawful contractural arrangements which confer equivalent legal rights and obligations among the parties concerned.
“The ancient common-law rule favoring joint tenancy has been reversed, and the presumptions are now almost wholly in favor of tenancies in common. In construing a grant to two or more persons, the grant is to be regarded as creating a tenancy in common unless it clearly appears from the instrument a joint tenancy was intended.” (Syl. fl 1, 2.)
For 1939 redraft of G. S. 1935, 22-132 see Chapter 181, Laws 1939.
In the opinion of the Bouska case see reference to 1 Bartlett’s Kansas Probate Law and Practice and a discussion of former decisions of this court. What is said there need not be repeated here. See, also, the recent decision in Spark v. Brown, 167 Kan. 159, 205 P. 2d 938, in which pertinent cases were reviewed.
In view of the cases previously mentioned we do not deem it necessary to again review our previous decisions or to note cases from other jurisdictions cited by counsel for the parties. We have not overlooked cases cited by counsel for appellants including Spark v. Brown, supra. Analysis of the opinion in that case will disclose facts highly dissimilar to those in the instant case. The fundamental principle, however, is there reaffirmed that in order to create a joint tenancy with the right of survivorship the language employed must make it clear it was the intention to create such an estate.
In the instant case the district court found the contractual relationship between the Shawnee Federal Savings and Loan Association and E. H. Fast or Minnie M. Fast was clearly disclosed and stated:
“I do not see how any more positive language could be used to make clear the intention to create a joint tenancy with right of survivorship.”
Appellants remind us the district court tried the case on the transcript made in the probate court and that under such circumstances this court is in as good a position as the district court to draw its own conclusions from the evidence and determine what the facts establish. We have so held. (In re Estate of Davis, 168 Kan. 314, 212 P. 2d 343, and cases therein cited.) Our own independent examination and consideration of the record convinces us it clearly appears it was the intention of the investor, E. H. Fast, and of the loan association to create a joint tenancy with the right of survivor-ship in Minnie M. Minglin. The evidence likewise discloses this to have been the understanding of Minnie M. Minglin (alias Minnie M. Fast).
Appellants argue Minnie M. Minglin did not sign the application for the opening of the account. The application clearly shows it was intended to be a joint account with right of survivorship. That it was so understood and treated by the loan association is also clearly reflected by other instruments previously mentioned.
We are not called upon in this case to enter into a discussion of matrimonial differences between E. H. Fast and his legal wife, Myrtle M. Fast. Nor are we required to defend his moral conduct in other respects and, of course, are not doing so. The question here is whether the other woman, Minnie M. Minglin, whom Fast likewise deceived, but whom he attempted to protect financially, at least to the extent of the instant account, is entitled to claim it. We think the evidence clearly establishes her right to the account.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action for damages for personal injuries sustained by plaintiff when she was struck by an automobile driven by defendant, and is the second appearance of the case before this court. When the case was first tried the lower court sustained a demurrer to plaintiff’s evidence and on appeal we reversed and remanded the cause for a new trial (Hultberg v. Phillippi, 167 Kan. 521, 206 P. 2d 1057).
On the second trial the jury answered special questions and returned a general verdict for plaintiff, and defendant’s appeal is the case now before us. While this appeal was pending the plaintiff died and the cause has beeen revived in the name of her personal representative. For convenience, the parties will be referred to as plaintiff and defendant.
The evidence of the plaintiff on the second trial was substantially identical to that introduced on the first trial and in the interest of brevity the detailed summary of such evidence contained in our opinion on the first appeal is by reference incorporated herein.
The defendant testified that on the evening of the accident she had been out north of town to an outdoor movie and as she was driving back through town, south on Main Street, about nine o’clock, she heard something “collide with the car”; that she didn’t stop immediately, but when she “saw something laying in the back on the street” she then knew that something had hit her car and she then stopped and went into the American Legion building and called the police. She further testified that it had been raining a little and the pavement was rather damp; that her car was in excellent mechanical condition; that there was no traffic on her (west) side of the street immediately in front of her, and that she did not learn the identity of the injured-party until the next morning.
A Mrs. Cipra, defendant’s grandmother, was riding in the front seat with defendant and she testified that a large truck and other cars were parked on the west side of the street at about the point of the accident. Her testimony was rather confusing, but the substance of it was that she did not see plaintiff until the latter was “just in front of car,” and her version was that plaintiff had walked into the street between the truck and a car parked on the west side. Some of her answers indicated she thought plaintiff “walked into the car.”
The theory of the plaintiff, as disclosed by her evidence heretofore referred to, was that while attempting to cross the street from east to west she was hit and run down by defendant’s car while it was being negligently driven on the east or left side of the center line of the street. Defendant’s theory was that plaintiff was hit immediately after stepping out from between cars parked on the west side of the street.
The jury returned a verdict in favor of plaintiff in the amount of $3,325.98, made up of the following:
“Medical, Hospital, Nursing & Ambulance expense prior to Sept. 17, 1948 (Filing date of petition).................................. $1308.17
“Further future medical, nursing or hospital care.................. 1917.81
“Pain and suffering and permanent disabilities.................... 1000.00
$3325.98”
In addition thereto the jury answered special questions as follows:
“1. Immediately before and at the time of the accident, were the headlights on the front of defendant’s auto lighted, and in plain view?
“Answer: Yes.
“2. Did parked cars or trucks prevent Mrs. Phillippi from seeing the plaintiff before the accident occurred?
“Answer: No.
“3. Did the plaintiff step from between parked cars at the west curb into the path of defendant’s car?
“Answer: No.
“4. If you answer Queestion 3 ‘No’, state how the plaintiff got into the path of defendant’s car.
“Answer: Crossing the street.
“5. Did Mrs. Hultberg attempt to cross the street between intersections and fail to yield the right-of-way to Mrs. Phillippi’s auto?
“Answer: No.
“6. Could Mrs. Phillipi have seen Mrs. Hultberg in time to have avoided the accident?
“Answer: Yes.
“7. Did Mrs. Hultberg, by her own negligence, contribute to her injury?
“Answer: Yes.
“8. Did Mrs. Phillippi drive her car on the left of the center stripe on Main Street?
“Answer: Yes.
“9. If you answer Question 8 ‘Yes’, was the right (west) side of the street open for traffic at that time?
“Answer: Yes.”
Defendant’s motions to set aside the answers to questions 5, 6, 8 and 9, as being not supported by the evidence, to set aside the verdict and to enter judgment for defendant on the answers, and for a new trial were overruled — hence this appeal.
One of defendant’s specifications of error is that the court erred in overruling her demurrer to plaintiff’s evidence. This point was before us on the former appeal and what was there said can well apply to the question as now raised.
Defendant also alleges error in the introduction of the report made to the police department the next morning and it is contended that our former decision held this report to be incompetent and inadmissible. We think that defendant misconstrues what was there said with respect to the matter. It is to be kept in mind that the question in the former appeal was the correctness of the order sustaining the demurrer to plaintiff’s evidence, which included this police department report. Defendant was relying solely on our decision in Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P. 2d 158, where the plaintiff went out between two parked cars across the center line of the street and into the side of a truck and sustained injuries. In our former decision in the case at hand we held that the Goodloe case was not in point and that defendant’s statement in her report to the police that the plaintiff came out into the street between two parked cars could be nothing more than her conclusion in view of her further statement that she never saw plaintiff, from which it clearly appeared that she did not know whether plaintiff came from behind parked cars on the west side of the street or from the east side where there were no parked cars. We think that the police report was admissible and competent for whatever it was worth, not as being a part of the res gestae but as a statement in the nature of an admission against interest.
Defendant next complains of the admission in evidence of a so-called motor vehicle speed chart which showed distances required to stop a car at different speeds. Undoubtedly the theory of the court in admitting this chart was that it was competent on account of the distance traveled by defendant’s car after she heard something “collide with the car” before being brought to a stop. In .view of defendant’s own testimony in this respect we cannot say such evidence was inadmissible and incompetent.
It is strenuously argued that the court erred in instructing the jury on the doctrine of last clear chance for the reason that all of the elements of the doctrine were not stated in the instruction, and for the further reason that under the evidence the doctrine had no application to the case. Defendant objected to the instruction at the time it was given. We have examined-this instruction and find defendant’s first criticism of it to be without substantial merit. While the question whether it should have been given may be debatable, yet in view of the contentions of the parties contained in the petition and answer and the evidence introduced on both sides, we cannot say that the giving of such instruction was prejudicial error. Furthermore, the answers to special questions indicate clearly that the jury was in no way confused by the instruction, and on the whole record we are unable to say that it affirmatively appears the instruction complained of prejudicially affected the defendant’s substantial rights. (G. S. 1935, 60-3317.)
And finally, defendant argues that in view of the jury’s answer to question number 7 plaintiff is barred from recovery and that the general verdict should be set aside and judgment rendered for defendant. This question and answer were:
“7. Did Mrs. Hultberg, by her own negligence, contribute to her injury?
“Answer: Yes.”
At the time the jury returned its verdict and the answers to the special questions plaintiff moved the court for an order to require the jury to make further answer to this question by specifying Mrs. Hultberg’s alleged negligent acts. The defendant objected and the court sustained the objection.
It is of course elementary that negligence on the part of a plaintiff which contributes as a proximate cause to the injury complained of bars recovery. Answers to special questions áre to be harmonized with each other and with the general verdict if possible. Defendant contends that the answer to question number 7 definitely settles the question of plaintiff’s contributory negligence and bars recovery. We cannot agree. In the first place, the question calls for the conclusion of the jury as a matter of law rather than a finding on a specific question of fact. It is definitely general in character and is purely in the nature of a conclusion. Such general finding or conclusion, if contradicted by detailed findings, cannot prevail, but is controlled by and must yield to the special or detailed findings of ultimate facts. (Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681.)
Secondly, we think the answers to other questions as to specific facts absolve plaintiff of contributory negligence, despite the answer to question number 7, which we have already said is nothing more than a conclusion. By their answers to questions 2, 3 and 4 the jury specifically found that parked cars or trucks did not prevent defendant from seeing the plaintiff before the accident; that plaintiff did not step from between parked cars at the west curb into the path of defendant’s car, and that plaintiff was hit while crossing the street. In its answer to questions 5 and 6 the jury found that plaintiff in attempting to cross the street did not fail to yield the right of way to defendant’s car and that defendant could have seen plaintiff in time to avoid the accident. In its answers to questions 8 and 9 the jury specifically found that defendant was driving her car on the left side of the street, despite the fact that the right side was open for traffic at the time and place in question. No traffic signals were in operation and in such a case a pedestrian is not prohibited from crossing a street other than within a marked crosswalk, provided such pedestrian yield the right of way to all vehicles upon the roadway. (G. S. 1947 Supp. 8-557.) The jury specifically found that plaintiff did not fail to yield the right of way to defendant’s automobile, and from the location of her body there was ample evidence to support the finding that defendant was driving on the left side of the center line of the street.
We think the jury’s findings as to specific facts clearly establish negligence on the part of defendant and absolve plaintiff of any contributory negligence which would bar her recovery, and under the rule the conclusion contained in answer 7 must yield to the detailed findings of such specific facts. (Leonard v. Kansas City Public Ser. Co., 167 Kan. 51 [p. 60], 204 P. 2d 760.)
This is primarily a fact case. No complaint is made as to the amount of the verdict and from an examination of the whole record it is clear that the findings of the jury are supported by substantial, competent evidence and that no prejudicial error appears. The judgment of the lower court on the principal appeal is therefore affirmed.
We now take up briefly the matter of plaintiff’s cross-appeal. The verdict in this case was rendered on October 12, 1949, and following the denial of defendant’s post-trial motions judgment on the verdict was entered by the court on October 29,1949. On November 15,1949, execution was issued against the defendant for the amount of $62.49, such amount being the costs adjudged against defendant in the prior appeal to this court, and for the further sum of $3,325.98, being the amount of the judgment in the second trial. This execution was returned by the sheriff unsatisfied. Plaintiff then, on the same day, November 15, 1949, filed her affidavit for garnishment, naming defendant’s insurance carrier, Iowa Home Mutual Casualty Company, as garnishee. On December 2, 1949, the garnishee answered, denying that it was in any manner indebted to or under liability to defendant.
“. • • excepting a policy of insurance with the defendant to pay certain sums which the insured may become legally obligated to pay as damages herein but that no action shall lie on said contract against the said garnishee unless and until said sum shall have been determined by final judgment; and that this answering garnishee is in no manner liable as garnishee in this action.”
Plaintiff moved for judgment against the garnishee upon the pleadings and at this hearing defendant, by and through her counsel, served notice of appeal from the judgment rendered by the court on the verdict returned by the jury. The court, upon consideration of the pleadings filed and of the service of notice of appeal, held the garnishee not liable and entered an order discharging it. From such order plaintiff filed her cross-appeal, assigning as error the order of the court discharging the garnishee.
The record before us does not disclose whether the • insurance policy in question is one of liability or indemnity, but, be that as it may, in view of our affirmance of the judgment in this case we do not consider it necessary to go into the merits of the cross-appeal or to express any opinion concerning the ultimate liability of defendant’s insurer. The cross-appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from a judgment in a proceeding in quo warranto brought in the district court of Republic county on the relation of the county attorney against Rural High School District No. 3; Common School District No. 63, and the individual members of the boards of both districts, to oust the school districts and their boards from proceeding to unite in the erection of a school building for the joint use of both districts, and from using the proceeds of the sale of their separate issues of bonds to pay the cost of erecting such joint school building.
The Common School District is located entirely within the boundaries of the Rural High School District, and the city of Republic is located within the boundaries of the Common School District. Belleville, the county seat, lies without the territorial limits of both districts.
During the course of events leading up to the commencement of the action a sharp dispute and differences of opinion concerning matters of policy arose among the electors of the districts as well as between and among the board members. At one point in the proceedings two members of the board of the Rural High School District were ousted from office by the county superintendent of public instruction. Their appeals from such order of ouster were consolidated with the instant case and all were tried together by the lower court, resulting in their reinstatement. No appeal to this court has been taken in the ouster proceedings and we are concerned with that phase of the case only as it affects the main issue involved.
Considerable evidence was introduced and at the conclusion of the trial the court made extensive findings of fact and conclusions of law. Rather than attempt to summarize them they will be set out in full, and the findings of fact are as follows:
“1. The Court finds that Rural High School District No. 3 of Republic County, Kansas, is a duly organized and legally existing rural high school district, having been established in the year 1944; that the defendants Charles W. Stafford, E. C. Stenson, and C. E. McClure, are the duly elected and qualified Director, Clerk and Treasurer thereof, respectively; that Common School District No. 63 of Republic County, Kansas, is a duly organized and existing common school district; the defendants Harold R. Sankey, Yerl F. Beck and E. A. Somerholder are the duly elected and qualified Director, Clerk and Treasurer thereof, respectively, and has been legally in existence at all times concerned in this action.
“2. That on the 10th day of June, 1949, there was voted by said rural high school district $148,000 for the purpose of issuing the bonds of said district for acquiring a site or sites at Republic, Kansas, and the erection of a building or buildings for school purposes, and that the same were subsequently sold.
“3. That on the 10th day of June, 1949, at a special bond election said common school district voted bonds in the sum of $25,000 to pay the cost of purchasing a site or sites and erecting a building or buildings for school purposes at Republic, Kansas, and which bonds were thereafter sold.
“4. That at neither of said elections was it voted upon or in any manner decided to use the proceeds of said bonds for the purchase of a site, or for the erection of a building for the joint use of said districts.
“5. That in each case of said bond elections it was voted to fix or locate the site of the building to be constructed ‘at Republic, Kansas’ within said districts.
“6. That on the 19th day of November, 1949, the members of the Boards of each of said districts at the call of the County Superintendent of Republic County, Kansas, met in her office in Belleville, Kansas, which was outside the territorial confines of said districts, in an effort to compose their differences and seek to agree upon plans and conditions upon which they would submit to the electors of each of said districts a proposition for a joint building, but as to which they did not agree, and said meeting was adjourned to meet again at the same place on November 26, 1949. All of said parties except E. C. Stenson, the Clerk of High School District No. 3, understood that such meeting would be held. He, however, testified that he did not know such meeting was to be held, and the Court finds that in fact he did not have any notice of such meeting.
“7. At the meeting on November 26, 1949, a meeting was held at the office of the County Superintendent, all members being present except said E. C. Stenson, and at which time the following agreement was entered into, to-wit:
‘November 26, 1949
1:00 p. m.
‘Meeting called to order by Co. Supt. with Chas. Stafford and C. E. McClure present for R. H. S. #3 Board and H. R. Sankey, E. A. Somerholder and Veri F. Beck present on Dist. # 63 board. Supt. Sutherland present also.
‘Operating expenses including lights, heat, telephone, janitor supply, janitor salary, insurance, upkeep of grounds and buildings, incidentals to be shared 50-50 by R. H. S. # 3, Republic Co., Kansas and District # 63, Republic Co., Kansas. Supt’s. salary for $200.00 by # 63 per year and music teacher according to time spent in grades.
‘Members agree to build a joint building and purchase of site for the use of Rural High School # 3 and School District # 63, Republic County, Kansas.
‘Said R. H. S. # 3 to furnish bonds in the amount of 5% of total valuation or $148,000.00 and said School District # 63 to furnish bonds in the amount of total valuation or $25,000.00 plus the present building site, and equipment except that which is used by District # 63.
‘A special Meeting to be called by R. H. S. No. 3 on December 13, 1949 at 2:00 P. M. for the purpose of authorization of a joint building and a Special Meeting to be called by District # 63 on December 14, 1949 at 2:00 P. M. for .the purpose of authorization of a joint building.
‘Rural High School #3 School District #63
Charles W. Stafford, Director Harold R. Sankey, Director
- Clerk Veri F. Beck, Clerk
C. B. McClure, Treasurer E. A. Somerholder, Treasurer’
“8. Following such meeting the said Charles W. Stafford, Director, and C. E. McClure, Treasurer, of Rural High School District No. 3 returned to their district, but did not there hold a meeting to act upon such agreement or to take any action whatever on the proposal to call a meeting of the district to vote thereon. Instead, the said Charles W. Stafford, armed with a notice for special school meeting, the evidence not disclosing when, where or how he obtained the same, attempted to contact said E. C. Stenson, Clerk, but failed immediately to do so; however, he did later on December 1, 1949, contact said Charles W. Stafford [E. C. Stenson], and as a result thereof said E. C. Stenson signed such notice and caused the same to be posted in the usual manner and for the required time, to hold such special meeting.
“9. The meeting so to be held was for the purpose of ‘authorizing high school district No. 3 to build a combined building with grade school district No. 63 for the joint use of both districts,’ it being called to be held on December 13, 1949, at 2 o’clock p. m. at the Republic City Hall.
“10. Such special meeting was held at the time indicated, but at which Charles W. Stafford, Director, who presided thereat did not advise said meeting, or any of the electors of said district, so far as the evidence disclosed, the details of said agreement set forth in paragraph 7 hereof, simply advising that it was to be voted upon whether the district should join with common school district No. 63 in the construction of a joint building, or one to be used by both such districts for school purposes. He refused to so advise said electors present, even though he was orally requested to do so by C. E. McClure, Treasurer of said district.
“11. As a result of said special meeting a majority of those present voted in favor of the proposal as submitted as set forth in paragraph 9 hereof, the vote being 223 for the proposal and 199 against the same.
“12. Common school district did call a special meeting to be held on December 14, 1949, such being done at a special meeting of the board thereof, and in regular order notices were posted and said meeting held, at which a majority of the electors present voted in favor of building a joint or combined building for the use of both of said districts.
“13. Following the special meetings so held, and the action of the electors on the proposal to build a joint building, the Boards of the two districts held a meeting at which a site was selected, and upon the proposal to appoint appraisers to value the site so selected, at the objection of Charles W. Stafford to further proceed until this action about to be commenced was determined, no further action was taken with reference to such site, or other matters connected with the building.
“14. There had been filed at a date prior to the above proceedings, meaning at some date prior to November 26,1949, the several petitions of alleged electors of High School District No. 3 to call a special meeting of the electors of the district to vote upon the question of authorizing it to unite with common school district No, 63, in the construction of a building for the joint use of both such school districts upon terms and conditions to be agreed upon by the respective boards of such school districts.
“These petitions were addressed to the Board of High 'School District No. 3, were not certified or verified by any one, were not accompanied by an enumeration, or other proof of the alleged fact that they contained more than a majority of such electors. The Court has not counted the names on such lists as so submitted, but it is represented that they contain 357 names. There was no evidence submitted as to the total number of electors in said high school district.
“15. There is insufficient proof as to whether the board actually acted upon said petitions, although there is an intimation that it considered said petitions as being ineffective by reason of the failure to have the same certified, and to have an enumeration submitted therewith.
“16. An enumeration had been made and used in connection with an election in the district held on June 10, 1949, but these were not referred to by anyone in connection with the petitions filed, nor was there any showing as to changes in the electorate between said June 10, 1949 and December 13, 1949.
“17. It was not shown -that all electors received notice of the plans of the district as determined upon at the meeting of February 19, 1949 [November 26, 1949], and for such reason such plan was not binding upon them.
“18. It is found by the Court that said Charles W. Stafford signed the agreement in the County Superintendent’s office on November 26, 1949, because of the threat of the County Superintendent to make use of the petitions she then had in her possession seeking his ouster as Director of the High School District; that such ouster was subsequently attempted by a proceeding brought for such purpose; that as a result of such proceeding the County Superintendent issued her order ousting him from such office; and that an appeal was taken to this Court, and was tried in connection with this action, resulting in a reversal of the order made, and his reinstatement as such Director. Likewise, was a proceeding instituted for the removal of said E. C. Stenson as Clerk of said District, resulting in an order for his removal, an appeal was made to this Court, and with the result of his reinstatement as such official.
“19. It is the conclusion of this Court that Charles W. Stafford acted upon the advice and because of the threats above recited of the County Superintendent in doing the things detailed in findings 7, 8 and 9 above set forth.
“20. The evidence submitted in relation to the condition of the old school building of district No. 63, and the manner in which and the cost of repairing the same for school purposes; and the evidence submitted as to the various other matters not pertaining to the issues set forth in the foregoing findings, is all held to be immaterial and is therefore excluded from consideration.”
The conclusions of law are:
“1. Because of the want of a meeting of the Board of High School District No. 3, in the territorial limits of the District, there was no legal special meeting on December 13, 1949, to vote on the proposal to build a combined building for the two districts.
“2. The petitions submitted to call such a special meeting were insufficient for such purpose, and if the meeting was predicated thereon, it was an illegal special meeting of the electors of the district.
“3. In order for the electors to have a legal special meeting, it was necessary that they be advised of the terms and conditions upon which a joint or combined building be erected, and this not having been done in any manner sufficient for the purpose, the holding of such special meeting was without legal force or effect.
“4. As a condition precedent to joining with common school district No. 63, in a plan for a combined building, it was essential that the boards agree upon a plan that would serve to separate the ownership of the building and grounds, so as to distinguish their ownership and the particular portion of the building to be owned and used by them respectively, and this not having been done, their attempted action as reflected by the agreement of November 26, 1949, was for this reason wholly ineffective.
“5. The action, such as taken, by Charles W. Stafford as Director of the high school district, being induced by threats of the County Superintendent to oust him from office, was not his free act, and hence it is held to be ineffective as to the special meeting held in pursuance thereof.
“6. It is the conclusion of the Court that in any event, a meeting based upon the free act and deed of the Board members, is a prerequisite to a valid meeting of the electors of the district upon the proposal to unite in the building of a joint building.
“7. Judgment shall be entered herein for the plaintiff, with costs.”
All of the parties filed motions for a new trial on the usual statutory grounds. In addition, Common School District No. 63, the individual members of the board of such district, and one member of the board of Rural High School District No. 3, filed their motion to set aside findings of fact numbered 15, 18 and 19, and all conclusions of law rendered by the court.
The plaintiff, defendant Rural High School District No. 3 and the remaining two members of the board of such district moved for additional findings and conclusions to the effect that the proceeds of the bond issues of the districts could not be used in whole or in part for the purpose of building a joint building to be used for the joint purposes of the two districts without such being authorized by an election, and further that such proceeds could not be used to acquire a site for school purposes without an election.
All of the foregoing motions were overruled, and on April 1,1950, a journal entry of judgment was signed by the court and filed.
Portions of the judgment and decree of the court material for our purposes are:
“It is further ordered, adjudged and decreed by the court that all defendants be ousted and restrained from proceeding in the same manner, but not otherwise, for the selection of a site for the erection of a building for the joint use ol’ the two districts involved in this action, and that the costs of the action be taxed, one-half to each of said districts.
“Thereafter, a dispute as to the form of the decree having arisen as between counsel, and particularly as to whether the court had held that the districts had the legal right to join in the building of a building for their joint use, conditioned upon all precedent steps being taken for such purpose, the court does now hold that such right, power and authority does exist and that such may be done upon the conditions as recited in the law pertaining thereto.”
Common School District No. 63, the three members of its board, and the one member of the board of Rural High School District No. 3, appealed from all adverse rulings, and the plaintiff, together with Rural High School District No. 3 and the other two members of the board of that district, cross-appealed from the ruling that defendant districts have the authority to join in the construction of a building for their joint use, from the failure of the court to hold that the proceeds of the bond issues cannot at any time be used for joint school purposes, from the failure of the court to hold that a site had not yet been sufficiently selected, and from any and all other adverse orders and rulings. All together, the various parties allege twenty-one specifications of error, some of which from the record before us are not entirely clear, and a number of them overlap.
At the time of oral argument in this court counsel for both sides commented on the confused state of the record. Our examination and study of it bear out the accuracy of that statement. Here we have a cross fire of contentions by the state against both districts, one district against the other, and then a sharp conflict between two members of one board and the third member thereof. To say the least, it is very difficult — if not impossible — to ascertain just what are the specific contentions of the respective parties relied on for reversal of this judgment.
It is contended that a number of the court’s findings of fact are not supported by or are contrary to the evidence and that the court should have made additional findings. We have carefully examined the evidence as abstracted and while there are a number of instances in which the court would have been justified in finding differently, yet we think that each of the findings so made is supported by evidence, and, such being the case, we are not at liberty to disturb them.
Taking the court’s findings, then, as the factual basis of what transpired, we are next confronted with the question of the correctness of the conclusions of law and the judgment ultimately entered by the court. A presumption of validity attaches to a judgment until the contrary is shown and the burden of establishing its invalidity is of course on those alleging it. With one exception we are unable to say that the conclusions of law are erroneous, this exception being conclusion No. 4, which, if it is intended as an interpretation of chapter 353, Laws of 1949, we believe to be an overstatement. That provision, which became effective April 2, 1949, reads:
“That any common-school district located wholly or partly within the boundaries of any rural high-sehool district may unite with such rural high-school in the construction of a school building or school buildings for the joint use of both such districts, upon such terms and conditions as the respective boards of such districts may agree, provided, the joint building shall have been authorized by a majority vote of the electors of each of such districts voting at either an annual or special school meeting.”
We think that conclusion of law No. 4 should be set aside, but such holding does not alter the situation or require a reversal of the judgment. We are told that the proceeds of the bond issues are being held intact by the respective boards, and in our opinion the ultimate rights of both school districts are correctly set forth in the second above quoted paragraph of the court’s judgment, wherein the court held that the districts possessed the legal right to join in the erection of a building for their joint use, conditioned upon all precedent steps being taken for such purpose as outlined in the statutes pertaining thereto. The effect of such holding was to advise both districts that they had the right to start over again in the matter of calling meetings so as to give the electors an opportunity to vote on the question of the construction of a building for the joint use of both districts.
This disposes of the questions raised on the cross-appeal, and with respect to other matters raised on the principal appeal we are compelled to hold that it has not been made affirmatively to appear that the judgment of the lower court is erroneous and should be reversed. Such being the case, we have no alternative than to affirm. (G. S. 1935, 60-3317; Firmin v. Crawford, 140 Kan. 370, 36 P. 2d 970; Jones v. Crowell, 167 Kan. 415, 419, 207 P. 2d 435.)
From what has been said it therefore follows that conclusion of law No. 4 is vacated and set aside. As to the principal appeal the judgment, as so modified, is affirmed, and as to the cross-appeal the judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages for personal injuries.- Plaintiff prevailed and defendants appeal.
Appellants, C, B. Hereford and R. T. Hereford, his son, were partners doing business as The Hereford Motor Company. They were engaged in the business of selling and repairing motor vehicles in a building located on the southeast’ corner of the intersection of Seventh and Merchant streets in the city of Emporia. Appellants rented the building from its owner, Katherine Whité, who, under the terms of the lease was required to maintain' the repairs on the exterior of the building including the entrance and exit doors. Emer^ son A. Rich was appellants’ shop foreman and Fred Fish -was their assistant foreman. Rich had notified C. B. Hereford the west- entrance door to the building was out of repair. On or about a- week before April 2,1947, C. B; Hereford in turn notified C. C. Alexander, who looked after the repair of the building for the owner; that the door needed repairs. Alexander employed W. E. Beitz, appellee, to make the repairs. Appellee drove to the building to inspect the door at approximately 9:00 a. m. on April'2. On his arrival he parked his car at the west entrance door and to the north of the center of. that door. He entered the building but found neither of the Herefords present. Rich, the shop foreman, was out testing an automobile on which work had been done. Appellee notified Fish, the assistant foreman, of his mission and Fish pointed out the west door as being the one in need of rep'airs. It was a double door but in two parts and so connected as to permit the doors to be opened separately or the entire door to be rolled up overhead.
A large spring approximately four and one-half to five feet long and three and one-half inches in diameter which helped lift the weight of the north half of the door was broken. The north part of this west door is referred to in the record as the “crippled” door and we shall so designate it. It appears the spring which was broken was the one at the south edge of the crippled door.
Evidence on behalf of appellee further, in substance, disclosed: After viewing the door appellee advised Fish it would require about two hours to fix it; as the assistant foreman of appellants it was the duty of Fish to direct the traffic so that it entered the west door and left through the north door of the building; appellee asked Fish if he would look after the traffic and see that the traffic did not enter the west door while the repair work was in progress and Fish agreed to do so; although Fish did not readily admit he had so agreed he did admit with reference to a question and answer contained in a previous investigation that he had then made the statement he would undertake to so regulate the traffic; although both the foreman and assistant foreman directed the traffic at different times the assistant foreman always directed it in the absence of the foreman; after examining the door appellee reported to C. C. Alexander at the Emporia Gazette office and they brought a large new spring to the building; the spring was laid in the driveway at the west entrance in front, just west, of the two doors; Alexander and appellee went to a restaurant for coffee and finding it closed appellee returned to his car which, as previously stated, had been parked west of- the west entrance to the building; the car was west of the crippled door; he removed the tool chest from his car and placed it just west of the west doors and a little south of his car.
With the car, tool chest and spring left on the outside of the west doors, as indicated, appellee entered the building and asked Fish to call some of his men to help raise the door; Fish complied but the men were unable to raise it; appellee asked Fish for a ladder, which was provided; appellee first set the ladder against the crippled or north half of the west door but in that location he was unable to release the old spring and a chain hooked to it, which was jammed in the door track; in that position he was required to work left-handed; he then moved the ladder somewhat to the south so that a part of it was east of the south half of the door which was not crippled; the upper part of the ladder rested against a beam, a short distance from the doors.
While appellee was on the ladder in the position indicated Rich, the foreman, returned to the shop and started lifting the south half of the west door; Eish had neither placed a guard on the outside of the west doors nor had he locked the door; although customers honked a horn when arriving at the entrance door Fish knew it was the custom of employees not to honk a horn when they came to the entrance door; as Rich started raising the door appellee and the men on the inside hollered, “Hold it. Hold it”; Rich stopped raising the door momentarily and then gave it another lift; the door rolled up overhead, struck the ladder and threw appellee off, resulting in serious injuries.
The overhead doors were built in sections and hinged onto each other; there existed a row of glass panes approximately thirty inches from the floor and another row at the top of the doors; the top row of panes was nine feet from the ground; the top of the lower row of panes was forty-eight inches from the floor; each pane was eighteen inches square and there were three panes in each row; there was a wood panel on each side of the glass panels in the center of the two doors; the wood panels in the center of the entire door obstructed vision through the doors at that point; Rich was five feet seven inches tall; appellee had-done work in the building previously and had been given some assistance by the men in the shop; it appears, however, that on such previous occasions they were not directed to do so by the shop foreman of the appellants but did so on their own accord.
Rich had reported to C. B. Hereford that the west door was in need of repairs; he knew a person making the repairs would be required to mount *a ladder on the inside; he did not see appellee that morning and did not know there was a ladder standing on the inside; the first time he saw the ladder was when he stopped lifting the door and that was when the door was raised to about the level of his eyes; Rich testified, in substance, it would be difficult to see through the panes of glass unless a person put his hands against the glass and then he would not see very much; no one flagged him down before entering the door; there was no car, tools or anything else lying in the driveway in front of either of the west doors.
The foregoing is not intended to be a complete statement of the testimony of all witnesses but we think it supplies a sufficient general background for consideration of errors urged by appellants other than rulings on posttrial motions. Some additional detailed facts will be supplied under specific contentions.
We shall'treat alleged 'errors in the'order tjiey were .raised" in the trial. Appellants contend their demurrer on the ground apr pellee’s evidence was insufficient to prove a cause of action should have been sustained. On that particular point they assert it was not their 'duty but the duty of the owner of the building to make the door repairs. That point is conceded. The owner did employ appellee and he proceeded to make the repairs under the circumstances stated.
Appellants assert appellee made appellants’ servants, except Rich, his employees; that they were under his direction and control as to the manner in which the work was to be done and, therefore, appellee, as their immediate and special employer, was responsible for their negligent acts. In support of the doctrine that a person may be a servant of a general master and at the same time be servant and employee of a special master and that the special master will be liable for the negligence of such servant in the event the servant is at the time performing the work of the special master and is subject to his supervision and control, appellants cite: Baker v. Petroleum Co., 111 Kan. 555, 207 Pac. 789; Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552; Moseman v. Penwell Undertaking Co., 151 Kan. 610, 100 P. 2d 669; Smith v. Brown, 152 Kan. 758, 761, 107 P. 2d 718, together with authorities cited in each of the foregoing cases; Philadelphia & R. Coal & Iron Co. v. Barrie, 179 Fed. 50; The Standard Oil Co. v. Anderson, 212 U. S. 215, 220, 53 L. ed. 480, 29 S. Ct. 252, and other similar cases.
Appellants concede Rich, the, shop foreman, was not an employee of appellee. Appellee does not challenge the above authorities but denies Fish, the assistant foreman, or any other of appellants’ servants, -ever became his employees. Only appellants and their two employees, Rich and Fish, are claimed.to have been negligent by appellee. Appellee asserts Fish was not subject to his supervision and control and performed no act in connection with thp repair work that resulted in appellee’s injury.. He contends all that Fish did at his request was to bring a ladder and call some workmen to help lift the door and that none of them was charged with, or was negligent, in those respects. ■
Appellee further maintains: 'Fish at all times remained the employee of appellants and his negligence consisted entirely in his failure tp perform his. regular duties as an employee of appellants while he,.appellee, was in the. process of repairing the door; Fish’s duty to.appellants, his employee, was-to direct the traffic"coming into and going out of the building; it was in.connection,with that duty to •appellants that Fish agreed tb protect appellee by keeping the traffic from coming into the west entrance while the repair work was. in progress and that Fish,, failed to-perform, his duty in that regard; •appellee h.ad no right; and made no attempt, to direct.br control the manner in which Fish, appellants’ employee, performed that duty; appellee had' no right to hire or discharge Fish; appellants were at all times in. possession and control ■ of thé premises, permitted' the repairs to be made without suspending business and were negligent in not having seen to it thaLall traffic would be routed away from the west door whenever the repair work, was, to be done.-, - ■
Appellants direct our atténtion,,to;evidéhce'.of..the--appellee’s witness, Fish, who testified that.-appellee ordered ,and commanded, him .(Fish) to get a ladder .and'some workmen ’to, help lift".the do.or. Counsel for the parties devote considerable? spáce- to: an 'argument whether appellee commanded and ordered Fish and other employees to do the acts mentioned 'or. whether he merely made a request that they do so. We shall notilabor the point.. One of the real tests as shown by authorities relieffipn by appellants, and previously cited, as to whether the relationship of master and servant exists is not whether one alleged to be a master may have exercised some supervision and control over an alleged servant but whether .he actually had the right to exercise such control and supervision. . Under the evidence in this reco'rd it cannot be said, as a matter of law, Fish was the employee'of appellee rather than of .appellants.' That conclusion will readily appear: from an examination of the cases last cited herein and the following: Garner v. Martin, 155 Kan. 12, 122 P. 2d 735; Lowell v. Harris, 24 C. A. 2d 70, 74 P. 2d 551; Mansfield v. Andrew Murphy & Son, 139 Neb. 793, 298 N. W. 749; 35 Am. Jur., Master and Servant, § 541. For treatment of subject of various tests applied in determining whose servant an employee is at a given time see, also, Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868. Where a .reasonable doubt exists relative to whose servant or employee a person is the question should be submitted to the jury under proper instructions. (35 Am. Jur., Master and Servant, § 541, p. 971.)
The trial court submitted to the jury the question of whose servant Fish was.. The jury found appellants' were responsible for the acts of their agent and employee, Fish, by reason of his “Negligence in directing traffic.” (Finding 7c.) We think that concludes the matter insofar as Fish is concerned.
The jury, however, also found appellants were responsible for the negligence of their agent and employee, Rich, the shop foreman, “For opening door on which ladder was in contact” (finding 7b) and that, “He should have known” appellee had arrived to repair the north unit of the west entrance doors. (Finding 2.)
Appellants do not contend Rich was appellee’s employee or that he was not engaged in the regular course of his employment for appellants when he attempted to enter the building. They insist there was not sufficient evidence of his negligence to submit that question to the jury. It is true no one had specifically told Rich appellee was on the ladder repairing the door before Rich started to open the door. It is also true Rich had not seen appellee previously that morning. Rich, however, did know the door was out of repair. He had notified his employer of that fact and his employer ordered the repairs. According to the evidence Rich knew it was necessary for appellee to get onto a ladder in order to repair the door. The broken spring was to be replaced at the south side of the crippled door. That point, of course, was immediately adjacent to the south unit of the west door through which Rich entered. A number of witnesses testified they had seen appellee’s car, prior to the accident, at the west door entrance. They said they had also seen the large spring four and one-half or five feet long and three and one-half inches in diameter lying in the driveway just west of the door. They had also seen the tool chest on the driveway south of the car. These had not been moved when Rich entered. Rich testified he did not see any of them. The jury apparently did not believe that testimony or believed it was negligence not to observe these warnings. The jury also may have believed that in the presence of these warnings Rich should have taken the precaution of looking carefully through the windows before raising the door.
Moreover, appellee was not knocked off the ladder when Rich first partly raised the door. When Rich started to raise the door there were calls from within, “Hold it. Hold it.” After a moment Rich lifted the door higher and appellee was then knocked off the ladder. Persons might differ as to whether Rich reasonably should have known someone was working on the door or might be in a position of danger. Under such circumstances the question was properly submitted to the jury. It found Rich should have known appellee had arrived to repair the door. (Finding 2.) This finding will be considered later in another connection and more need not be said concerning it now.
Appellants also assert the demurrer to the evidence should have been sustained on the ground it disclosed appellee was guilty of contributory negligence. They direct attention to- certain inconsistent statements of appellee with respect to whether he knew the west door was locked. On demurrer a court does not consider or weigh conflicting evidence but considers only evidence most favorable to the party adducing it. (Hurla v. Capper Publications, Inc., supra.)
Appellants emphasize the fact appellee testified he did not lock the door, was not certain the door was locked and had not seen Fish put a guard on the outside. The substance of appellee’s evidence considered in the light most favorable to him was that he was not familiar with the manner in which the door could be locked; he believed the south part of the west door was locked or that Fish would see to it that no one came through it; he relied on Fish’s agreement to protect him and he did not try to direct the manner in which Fish would produce that result.
The record does not indicate appellee was familiar with the lock or its location. Fish was familiar with it and testified there was a good lock on the door and it was operated from the inside by simply turning the handle. There were also testimony the door could be unlocked from the outside with a key and that merely locking it would not have prevented Rich from entering. There was no evidence appellee was familiar with the custom of the business to have employees come through the entrance door without first honking a horn although Fish knew that to be the practice. The question of contributory negligence is for the jury when it arises upon a state of facts from which reasonable men might draw different conclusions either as to the facts or inferences to be drawn therefrom. (Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 98, 12 P. 2d 1103; Harshaw v. Kansas City Public Ser. Co., 154 Kan. 481, 119 P. 2d 459; 38 Am. Jur., Negligence, § 348.) A person, of course, need not anticipate negligence and failure to anticipate it does not constitute negligence which will defeat an action for injury sustained. The contention appellee' was guilty of negligence, as a matter of law, cannot be sustained.
The jury made the following special findings:
“No. 1. Did either of the defendants, C. B. Hereford and R. T. Hereford, doing business as Hereford Motor Sales, know that the plaintiff was upon their premises and in their garage at the time he claims to have been injured? A. No.
“No. 2. Did the Shop Foreman Emerson A. Rich know that the plaintiff had arrived to repair the north unit of the west entrance doors, when he drove up and undertook to open the south entrance door? A. He should have known.
“No. 3. Prior to the time the Shop Foreman Emerson A. Rich .undertook to open said overhead door by .raising it, was he notified in any way that the' plaintiff was on the inside' of said building and on the ladder directly in front of said door? A. No.
“No. 4. Could the plaintiff have locked the south unit of the west entrance doors to the defendants’ garage before going up' on the. ladder in front of it? A. Yes. . . ' . ' • ■ .
“No. 5. Who placed the ladder in front of the south unit of the west entrance doors? A. W. E. Beitz. , .
“No. 6. Before he started to ascend said ladder, did the plaintiff do anything to warn the public or the shop 'foreman or anyone else, from using said south unit of the west entrance doors, or to prevent ¡ their opening the same? A. Yes.
“No. 7. If you find for the plaintiff, please state ip detail, the specific act or acts pf negligence which you find have been proven:
“(a) Against the defendants C. B. Hereford'and R. T. Hereford individually? A. For being responsible for their agents of emiployees.
“(b) Against the shop foreman Emerson A. Rich'? A. For opening door on which ladder was in contact.
“(c) Against the assistant shop foreman Fred Fish? A. Negligen.ce in directing traffic.
“(d) Against any of the workmen other than the two foremen employed by defendants in their garage and automobile shop? A. None other than in A B & C. . . : '
“No. 8. At the time Emerson A. Rich, the shop foreman, drove up in front of the west entrance doors, did he know that the north of said doors was out of repair? A. Yes.
“No. 9. At the time Emerson A. Rich, the shop foreman, drove up in front of the west entrance doors, did he know that the owner of the building had been called to make repairs on the north entrance door on the west side of the building? A. Yes.
“No. 10. At the time Emerson A. Rich, the shop foreman, drove up in front of the west door, did he know that it would be necessary for whomever repaired said door to mount a ladder in front of said door? A. Yes.
“No. 11. At the time said shop foreman drove up in front of the west entrance doors and opened the south one thereof, did he know that the repairs which were necessary consisted of replacing a broken spring on said door? A. Yes.
“No. 12. At the' time the shop foreman, Emerson A. Rich, drove up to the west entrance doors and got out of the car he was driving and undertook to open the south entrance door, was plaintiff’s car and the spring and plaintiff’s tool box in front of such doors? A. Yes.
“No. 13. At the time of the alleged injury to plaintiff was the Shop Foreman, Emerson A. Rich, familiar with the design and type of spring which was necessary to replace the one on the door which was broken? A. Yes.
“No. 14. If the door which was opened by the shop foreman, Emerson A. Rich, had been locked on the inside,- could it have been unlocked and opened from the outside? A. Yes.
“No. 15. If you answer number 14 in the affirmative, how could it have been unlocked from the outside. A. Key.”
Appellants assert the court erred in nqt striking out findings 2 and 6 in response to their motion which was on the grounds the answers were contrary to the evidence, were not supported by the evidence, violated the instructions of the court, were not complete and did not constitute understandable and intelligent answers.
We have'previously discussed the evidence pertaining to findings 2 and 6. It cannot be said there was ho evidence to support them. The court-instructed the jury as follows:
“You are not required to answer each question submitted to you by-a ‘yes’ or ‘no,’but your answer when made should be a full and complete answer to each specific question propounded to you.”
Answer 6 did not violate the foregoing instruction. Answer 2 cannot be said to be meaningless or to violate the instruction by reason of its failure to answer “Yes” or “No.” In the light of the evidence answers 2 and 6 were both understandable. Answer 2 was quite complete especially when considered in connection with', the related question and answer 12. Answer 6 was also' understandable in view of the agreement appellee had made with Fish in' which Fish agreed to see that no traffic would come through the west entrance. Then, too, question 6 did not require the jury to say what appellee had done. Furthermore we find no' request to have answers 2 or 6 made more specific or complete before the jury was discharged.
We now reach appellants’ contention judgment should have been rendered in their favor on their motion for judgment on the special findings and the pleadings. For the purpose of a ruling on that motion all the answers are admitted to be true. No reference was made in this motion to anything contained in any of the pleadings which entitled appellants to judgment and it was not indicated on what ground the pleadings and special findings combined entitled appellants to judgment.
It is argued finding 3 entitled appellants to judgment in their favor. Standing alone that finding would indeed present a serious question. That all findings must be considered and construed together with a view of harmonizing them if reasonably possible to do so is too well established to require citation of authority. When finding 3 is considered with findings 2, 7b and findings 8 to 13, inclusive, what did the jury intend to say by finding 3? We think it must have intended to say no one had directly informed Rich appellee was on the ladder in front of the door. By reason of all the answers we think the jury clearly intended to say Rich was not absolved of negligence. That interpretation harmonizes the findings with each other and with the general verdict. Finding 3 together with all other related findings does not compel nullification of the general verdict and rendition of judgment in favor of appellants.
Appellants maintain the findings convict appellee of contributory negligence. It is true finding 5 discloses appellee placed the ladder in front of the south unit of the west entrance doors. The necessity for moving the ladder to that position has been previously narrated and those facts need not be repeated. It is also true the jury said appellee could have locked the south unit before ascending the ladder. (Finding 4.) The jury, however, also found if appellee had locked the door it could have been unlocked and opened by Rich from the outside had he chosen to do so. (Findings 14 and 15.) As previously stated appellee relied on the agreement he had made with Fish that the latter would see to it that no one entered through the west doors. The jury expressly found appellee had done something to warn Rich and others from entering before he ascended the ladder. (Findings 6 and 12.) We cannot say from the findings the jury intended to say appellee was obliged to anticipate Rich would fail to observe the warnings placed in front of the west entrance. The jury found to the contrary. (Finding 2.) There is no finding appellee should have anticipated Fish would violate his agreement to keep the traffic from entering. As previously stated, no direct question was submitted to the jury on the question of appellee’s contributory negligence. The general verdict in his favor absolved him of negligence. The special findings considered as a whole do not compel a contrary verdict.
Appellants stated the court erred in the giving of certain instructions and in refusing to give instructions they requested. If special objections were made to instructions given we have not found them. In any event in view of the instructions appellants requested we have examined the instructions given together with those requested. On the whole we think the instructions given were broad enough to cover the issues actually tried and were sufficiently accurate to prevent a reversal of the judgment.
We come now to a subject which, in fairness to counsel for appellants, we should say they have discussed in their brief under most of the contentions heretofore treated. It pertains to a motion by appellee to dismiss the action against Rich and Fish who originally were also named as defendants with the Herefords and to a judgment dismissing the action against Rich and Fish with prejudice at the costs of appellee. That motion and judgment were filed August 23, 1948, in the absence of appellants’ counsel. Trial of the action was not begun until November 15,1948. Appellants argue they had no notice of the judgment of dismissal when entered. Counsel for appellee contend otherwise although the record does not disclose appellants were notified. Appellants, however, had local counsel. Just when both attorneys for appellants were first apprised of the indicated dismissal we frankly do not know. Their opening statement discloses they knew about it at that time.
No request was then made to amend appellants’ answer in any particular. No contention was then made relative to the effect of such dismissal on the action against the Herefords. Although it is suggested by appellants’ counsel that one of them thought he had raised that point in the argument on the demurrer to appellee’s evidence he conceded with commendable frankness he was not certain he had done so. The record fails to disclose appellants had raised the point and the trial court was certain the point was raised for the first time on the first hearing of the posttrial motions December 22,1948. The hearings on the posttrial motions were continued and on March 29, 1949, counsel for appellants for the first time asked leave to amend their answer to set forth the fact of such dismissal as to Rich and Fish.
Without intimating the legal effect of such a defense had it been pleaded or orally asserted during the trial, it is the well established practice in this jurisdiction that the making of belated amendments to pleadings rests in the judicial discretion of the trial court. This rule is particularly applicable where a party seeks to amend his hold and to that extent shifts the ground of his defense. (Keil v. Evans, 99 Kan. 273, 161 Pac. 639; Haggart v. King, 107 Kan. 75, 190 Pac. 763; Tri-State Hotel Co., Inc., v. Southwestern Bell Telephone Co., 155 Kan. 358, 125 P. 2d 728; Slaton v. Union Electric Ry. Co., 158 Kan. 132, 141, 145 P. 2d 456.)
•The rule applies with special force where there is a trial by jury. Here the case was fully tried by. a jury on entirely different issues. The jury was fully instructed on the issues tried. Appellants made no request the jury be instructed the action had been dismissed as to Rich and Fish or touching the effect of the dismissal. On the other hand if the effect of the dismissal presented only a question of law that point was not raised until long after the verdict had been rendered.
This court has studiously examined the numerous authorities presented by the industry of counsel on both sides touching the effect of a dismissal of an action as to agents and servants of defendants, employers, who are all charged as tort-feasors and also cases where the employers are not so charged and their liability, if any, is solely a derivative one, that is, where the employers’.liability rests solely on the negligent acts of their agents and servants. Here the petition charged the Herefords, Rich and Fish with negligence. Had appellants contended at the trial and persuaded the trial court that in view of the dismissal of the action against Rich and Fish there could be recovery only by reason of the negligent acts of the Herefords, manifestly the instructions to the jury and the special questions submitted to it would have been entirely different. That, did not happen. The case has been tried on a different theory .an.d,¡wé are obliged to review the record on the theory on which the case, - was tried and the verdict was rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Plaintiff brought this action under G. S. 1935, 68-419, to recover damages to his automobile which, with his consent, was being driven by another upon a described state highway, and which damages were alleged to have resulted from a defect in the state highway. Defendant’s demurrer to plaintiff’s amended petition was overruled and it has appealed.
The damages to plaintiff’s car grew out of the same circumstances as those involved in the case of Perry v. State Highway Commission, 169 Kan. 382, 219 P. 2d 659, and involves legal questions determined in that case, except the right of plaintiff to sue which is not questioned here.
The judgment of the trial court in this case is affirmed upon the authority of our decision in the Perry case. | [
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The opinion of the court was delivered by
Wedell, J.:
The defendant was charged and convicted of burglary in the first degree and was sentenced pursuant to the habitual criminal act.
The defendant appeals. The terms of the sentence are not involved. Appellant’s principal complaint is the evidence did not establish the elements of burglary in the first degree. The burglary statute, G. S. 1935, 21-513, insofar as material, reads:
“Every person who shall be convicted of breaking into and entering, in the nighttime, the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein, either — First, by forcibly bursting or breaking the wall, or any outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter ... or, third, by unlocking an outer door, by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.”
The pertinent part of the information charged the defendant “did . . . unlawfully . . . break and enter in the night time of said day into a dwelling house of another in which there was a human being, to-wit: Mrs. Della Haynes Brown, by forcibly pulling open a closed outer door and entering into said dwelling house [description] owned and occupied by Della Haynes Brown . . . with the intent on the part of him to commit a larceny therein.
It is conceded no property was stolen. It, however, should be observed appellant was not charged with burglary and larceny under G. S. 1935, 21-524 but with burglary in the first degree as defined by G. S. 1935, 21-513. Material portions of the state’s evidence, in substance, disclose:
This incident occurred at the home of the owner; the house was located on the north side of the street and faced south; the owner and a roomer by the name of Grover Cherry were in the dwelling house at the time; after both had retired for the night the owner, occupying a front southwest bedroom, was awakened by the slamming of a front screen door; she went to the door and soon saw a man running to the back of the house along the west side; there are two kitchens in the house, one on the northeast corner, the other on the northwest corner; the owner of the dwelling called to Mr. Cherry, who was sleeping in the northeast kitchen; Cherry arose; by that time the man had entered the back screened porch which was on the northwest corner of the house; the only outside entrance to the screened porch was a screen door; it was kept unlocked in order that meter men might enter when appearing to make their readings; a door and window were between the northwest kitchen and the porch; both occupants observed a man on the back screened porch using a flashlight; they were unable to identify him at that time by reason of the fact he was throwing the flashlight into the northwest kitchen; the man then left the porch and went to an outside screen door at the north and rear of the residence; that door entered the northeast kitchen; the inside door at that place was glass paneled; the man attempted to unlock the screen door at that place but was unable to do so; he left momentarily and on his return succeeded in unlocking and opening that outer screen door; he then attempted to unlock the glass paneled door but was unable to do so as a key had been left in the lock on the inside and was turned crosswise; Cherry was standing approximately one foot from the man at that particular time and watched him for three or four minutes while he was trying to unlock the glass paneled door; although it was quite dark there was sufficient light outside for Cherry to identify the appellant; being unable to open the glass paneled door appellant went to the east side of the house and tried various window screens there; he made a hole in one of those screens but was unable to raise the hook; in the meantime the police had been called; one officer had been stationed in the alley north of the premises; the other officer parked his car in front and to the southeast of the building; appellant ran from the east side of the building to the back of the house; the officer who had been stationed in the north alley came into the yard and saw a man running west behind the house and then turn south toward the front along the west side of the house; as the man came to the south the officer in front turned the spotlight on him and he sat down on the front porch and dropped his face into his hands; it was here he was apprehended by the officers.
Appellant contends the evidence did not disclose a “breaking into and entering” of the dwelling house. We shall first consider the contention as it pertains to the screened in porch. Was that porch a part of the dwelling house? The porch was joined to the building and was connected to the northwest kitchen.. A door and a window were in the wall between the kitchen and porch. The porch walls were of wooden construction except for a narrow space which appears to be approximately two and one-half or three feet wide between the boarded portions. That space was screened. The only outside entrance to the porch was by way of a screen door. It was kept unlocked in order that meter men might enter to make their readings. G. S. 1935, 21-519 provides:
“No building shall be deemed a dwelling house or any part of a dwelling house, within the meaning of the foregoing provisions, unless the same be joined to or immediately connected with, and a part of, a dwelling house.”
The porch apparently was used for dwelling house purposes. A washing machine, an important part of household equipment, was on the porch, as well as three boxes of children’s toys, a tricycle and scooter. In State v. Scott, 162 Kan. 571, 178 P. 2d 182, we held:
“In a prosecution for burglary in the first degree under G. S. 1935, 21-513, the requirement of a human being in the dwelling house at the time is satisfied where the evidence discloses human beings were at the time occupying a large, furnished, railed and roofed but otherwise open porch, joined to and made a part of the dwelling house, which was customarily used during the summer months as a part of the dwelling house.” (Syl. ¡I 2.)
We think that by virtue of G. S. 1935, 21-519, and the use the screen porch served in the instant case, it constituted a part of the dwelling house. The dwelling house was, therefore, entered.
A close examination of appellant’s brief indicates he is not really contending the porch was not a part of the dwelling house. One of his principal contentions is there was no evidence he broke into it. The answer depends upon what constitutes “breaking into.”
We previously indicated the outside screen door entrance to this porch was unlocked. Appellant was charged with burglary “by forcibly pulling open a closed outer door.” This court early held proof of that precise charge is sufficient to establish the offense and that it is not necessary there should be any additional breaking to constitute burglary. (State v. Moon, 62 Kan. 801, 64 Pac. 609.) Pushing open a closed door constitutes an actual breaking and the opening of a closed outer door with felonious intent is sufficient to constitute burglarious breaking. (State v. Moon, supra, p. 806-808, and cases there cited; State v. Herbert, 63 Kan. 516, 520, 66 Pac. 235.) This principle is in harmony with well established doctrine. (9 Am. Jur., Burglary, §§ 8-12, inch; 12 C. J. S., Burglary, § 3 (b.); 2 Wharton’s Criminal Law, 12th ed., § 973; and anno. 23 A. L. R. 112, 118.)
Counsel for appellant argue the evidence did not show the screen door was closed. The argument is based primarily on the italicized portions of the following questions and answers, to wit:
“Q. Was there a door on that screened-in porch? A. Yes, sir.
“Q. And what kind of a door was it? A. It is a screen door.
“Q. Do you ordinarily keep that door looked, there? A. No.
“Q. It is left open? A. Yes.
“Q. For what reason? A. For the meter readers.”
We think appellant's contention is too technical. The witness in answer to the particular wording of the above questions clearly appears to have intended to distinguish between a locked and an unlocked door rather than between a closed and an open door. This apparently was also the interpretation placed on the evidence by counsel for appellant who tried the case (not his present counsel). We find no motion to release appellant at the conclusion of the state’s evidence on the ground the screen door was standing open when appellant entered. There is no evidence whatever to that effect. The mere fact a screen door is not locked does not meant it is not closed. If a screen door is left open there, of course, is no purpose in having it. The witness merely meant to indicate it was unlocked in order that meter men might enter when arriving to make their readings and not that the door was left standing open.
The entrance door to the. screen porch, however, was not the only “outer door” the appellant broke. The back, or north, screen door to the northeast kitchen was also broken. The screen to that door was not only broken but a hook which fastened the door was lifted and the screen door w'as opened. Had there not been an additional wooden door the opportunity for appellant to enter his entire body would have been complete. As it was he could enter only partially. He did enter his hand and an arm, at least partially, when he unsuccessfully attempted to unlock the inside door with a key. In 9 Am. Jur., Burglary, § 16, it is said:
“Literally, entry is the act of going into the place after a breach has been effected, but the word has a broader significance in the law of burglary, for it is not confined to the intrusion of the whole body, but may consist of the insertion of any part for the purpose of committing a felony. An entry is accomplished by putting through the place broken the hand, the foot, or any instrument with which it is intended to commit a felony.”
See, also, 2 Wharton’s Criminal Law, 12th ed., § 973, and notes p. 1277.
Suppose an owner of a dwelling, while leaving the premises in a hurry, left some articles between the doors, as is frequently done, and had locked the screen door, would we say there had been no breaking or entering if the screen door were unlocked and the articles stolen? We do not think so. Suppose an inside door were left open for ventilation in the extreme heat of summer and a screen door, as here, were broken and the intruder attempted to reach a purse, diamonds or jewelry on a table without completely entering, would we say the offense of burglary with intent to commit larceny had not been established? We think not.
Appellant next argues there was no evidence appellant broke into the dwelling “with intent to commit larceny.” (Our italics.) It may be conceded there was no direct proof of appellant’s intent. It is also true the statute makes “intent to commit some felony, or any larceny therein” an element of the offense of burglary in the first degree.
Intent is a state of mind existing at the time a person commits an offense. If intent must have definite and substantive proof it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct and inferences reasonably to be drawn therefrom. Frankness requires it be stated there is not complete unanimity of opinion among the courts relative to whether the intent to commit larceny, in connection with a burglary charge, must be affirmatively shown to exist as distinct from some other offense that might have been intended. In Simpson v. State of Florida, 81 Fla. 292, 87 S. 920, it was held such intent must be affirmatively shown by direct or circumstantial evidence. In State v. Riggs, 74 Minn. 460, 77 N. W. 302, relied on by appellant, a divided court held the evidence insufficient to disclose an intent to commit larceny. That decision is discussed in our own case of State v. Van Gilder, 140 Kan. 66, 33 P. 2d 936. There was some positive evidence in the Minnesota case the defendant did not intend to steal but to buy liquor at the place he entered. In the Van Gilder case we held:
“In a prosecution for burglary, where the breaking and entering was clearly established and not controverted, the intent to steal may be sufficiently established by inference fairly deducible from all the circumstances and need not be established by direct proof.” (Syl. It 1.)
For purposes of accuracy it should be conceded there was some rather strong circumstantial evidence of intent to commit larceny in our Van Gilder case. In the opinion we cited State v. Woodruff, 208 Ia. 236, 225 N. W. 254. Numerous cases are cited in a well considered opinion in the Iowa case holding the clear weight of authority to be that an unexplained breaking and entering of a dwelling house in the nighttime is in itself sufficient to sustain a verdict that the breaking and entering was done with the intent to commit larceny rather than some other felony. The Iowa case contains quotations from some of the many cases so holding, which need not be repeated here. The fundamental theory upon which the inference of intent to commit larceny is based, absent evidence of other intent or an explanation for breaking and entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft. We are impressed with the soundness of the rule.
Moreover in the instant case we cannot say there were no circumstances from which the jury reasonably might infer appellant intended to commit larceny. Appellant sought to make entry through various doors and windows. He used his flashlight on the screen porch. It is reasonable to infer he found nothing there he desired. He then flashed the light all over the adjoining kitchen. It reasonably may be inferred he was endeavoring to ascertain whether the kitchen, or any other portion of the dwelling he could see, contained something he desired. He may have seen something. Finding entrance into the kitchen impossible from the screen porch he made attempts to enter at other places. We think it cannot be said the verdict must be set aside on the ground a prima facie case of intent to commit larceny was not established.
Appellant asserts the trial court erred in an instruction given and in failing to give another. We do not find an objection was made to the instruction given or that an instruction was requested on any other matter. Furthermore neither of the alleged errors was raised on the motion for a new trial. Under these circumstances appellant is in no position to raise these objections initially on appeal. (State v. Gillen, 151 Kan. 359, 363, 99 P. 2d 932; State v. Leigh, 166 Kan. 104, 109, 199 P. 2d 504.)
It is also urged the trial court erred in the admission of evidence. Except for one item of evidence which will be treated presently the alleged improper admission of evidence likewise was not raised in the motion for a new trial and cannot be urged first on appeal. In fairness to able counsel for appellant we probably should say they did not represent appellant at the trial. Manifestly, however, that fact cannot operate to change established rules of appellate review. The one alleged error pertaining to the admission of evidence raised in the motion for a new trial was the admission of an east window screen into which appellant had punched a hole but had not been able to open. It is true the charge was he had forcibly pulled open a closed outer door, not a window. The evidence was introduced as a part of appellant’s entire conduct and as tending to show his persistent intent. Its admission did not constitute reversible error.
One of the grounds for a new trial, supported by an affidavit, pertained to alleged newly discovered evidence. It was contended such evidence would disclose certain facts testified to by a police officer were physically impossible and therefore could not have been anticipated. Studious examination of the testimony of that witness indicates it was not impossible for him as he neared the dwelling house from the rear, to have seen appellant running west at the rear, or behind, the dwelling house and turn south on the west side thereof, as the officer testified. It cannot be said to be newly discovered evidence which the exercise of reasonable diligence would not have revealed.
It is also argued the evidence was insufficient to identify appellant as the person who committed the burglary. A detailed examination of the record convinces us that notwithstanding the various arguments presented by appellant in this respect, and some of them are quite persuasive, the question of appellant’s identity depended upon the credence and weight the jury might attach to the state’s evidence. The question was properly submitted.
The record of the trial presented here does not permit a reversal of the judgment. The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from an order denying petitioner’s motion for post-conviction relief (K. S. A. 60-1507) after a full evidentiary hearing.
Petitioner was convicted of burglary in the second degree and larceny in connection therewith and was sentenced to concurrent terms of not less than fifteen years under the habitual criminal act (K. S. A. 21-107a). The judgment and sentence were affirmed by this court in State v. Eaton, 199 Kan. 192, 428 P. 2d 847.
The first two points now urged by petitioner relate to the contention he was denied the effective assistance of counsel. This matter was laid to rest in the direct appeal, State v. Eaton, supra, and warrants no further consideration. A 60-1507 proceeding under such circumstances cannot be used as a substitute for a second appeal (Rule No. 121 (c) (3), Rules of the Supreme Court, 205 Kan. xlv; Baker v. State, 204 Kan. 607, 464 P. 2d 212.)
We likewise are precluded in this proceeding from reviewing petitioner’s contention that his constitutional rights were violated by the prosecution’s use of a prior “statement” or “confession,” and by the admission of evidence in respect to a pretrial identification. Neither of these trial errors, in our opinion, reaches constitutional dimensions. Under Rule 121 (c) (3) trial errors are to be corrected by direct appeal unless they affect constitutional rights and there are exceptional circumstances excusing the petitioner’s failure to present the alleged errors in his direct appeal.
In the former appeal (State v. Eaton, supra) petitioner urged that the trial court erred in admitting his “statement” into evidence. We held the point was groundless because the purported “statement” was neither offered in evidence, nor was any part of it presented before the jury. Petitioner’s effort to expand his argument in this appeal and establish that his constitutional rights were in some way adversely affected by what transpired is totally unfounded.
The question of pretrial identification was not raised in the earlier appeal. Petitioner now complains about the admission of testimony by witnesses who observed him while they were visiting the county jail during an “open house” to which the general public was invited. Nothing in the record suggests that the incident in question was a confrontation for identification purposes or that it was an identification procedure conducted in such a manner as to be violative of due process of law based on the totality of the circumstances. (See, Foster v. California, 394 U. S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127; State v. Sanders, 202 Kan. 551, 451 P. 2d 148.) Moreover, there has been no showing of any exceptional circumstances excusing petitioner’s failure to raise the point in his direct appeal. (See, Baker v. State, supra; Barnes v. State, 204 Kan. 344, 461 P. 2d 782; and Holt v. State, 202 Kan. 759, 451 P. 2d 221.)
The remaining points advanced in this appeal pertain to petitioner’s claims that he was illegally returned to Kansas for trial and that there was insufficient evidence of prior felony convictions to support the enhanced sentence imposed. Both matters were determined in State v. Eaton, 199 Kan. 610, 433 P. 2d 347, which was a conviction of this same petitioner for escaping jail while awaiting trial. The opinion in that case fully disposes of the argument presented here. Although we no longer adhere to the Engberg rule, which was in force and effect at the time of that decision (State v. Duke, 205 Kan. 37, 468 P. 2d 132), the records of the federal conviction in Arkansas and the state conviction in Wyoming clearly establish the presence of counsel, or the waiver thereof. Hence, there was sufficient, competent evidence to support petitioner’s sentence as a third offender under the provisions of K. S. A. 21-107a.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, John Wayne Franklin, was convicted of assault with intent to kill. He contends on appeal, first, that the verdict not only is unsupported by the evidence but is against the weight of the evidence, and second, that the trial court erred in allowing the state to impeach one of its own witnesses.
There should be no need to point out, at this late date, that we do not weigh evidence on appeal. If there is evidence to support the verdict it will be sustained, even though there is contrary evidence. (See cases in 2 Hatchers Kansas Digest [Rev. Ed.] Criminal Law, § 438.)
In the case at bar there was ample evidence from which guilt could be inferred. Two eye-witnesses to the assault identified the defendant as having fired the shot into his victim’s abdomen.
As a defense, the defendant contended the weapon he carried on the day in question was a blank gun, capable of firing only blank cartridges. Supporting this theory there is evidence of record that twice the defendant fired his pistol at the victim’s head at close range, without wounding him.
It was the jury’s function to evaluate such evidence within the framework of the entire evidence adduced, including the eyewitness testimony taken in conjunction with evidence that flashes came from the gun fired at the victim’s head and that the same weapon can fire both blank and live ammunition.
Obviously the jury was unimpressed with Franklin’s story that the weapon he carried was a blank gun. Perhaps they were fortified in their unbelief by the fact that when the defendant testified at the trial on his own behalf, he conveniently failed to produce the gun which he claimed to be harmless.
The defendant’s second point is likewise without merit. In the first place, the questions put to the state’s witness on re-direct examination concerned a matter first brought out by the defense on cross-examination. Secondly, K. S. A. 60-420 permits any party to examine a witness, including the party who calls him, as to any conduct or matter relevant upon the issue of credibility.
We discern no error in this case and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The appellant, E. L. Nickell, d/b/a Nickell Construction Company, appeals from a judgment of the trial court denying indemnification against appellee, Al M. Rome, d/b/a Rome Ditching Service, for a judgment recovered by appellee Huxol against appellant Nickell which was affirmed by this court in Huxol v. Nickell, 205 Kan. 718, 473 P. 2d 90.
Huxol sustained personal injuries as a result of falling into a hole on the Fort Hays Kansas State College campus, during a construction project on the campus. Nickell was the general contractor and Rome a subcontractor on the project, both were sued by Huxol.
In Huxol v. Nickell, supra, a jury trial resulted in a verdict for Huxol against Nickell and, by an answer to a special question, the jury absolved Rome of any negligence causing Huxol’s fall. In the principal action Nickell and Rome filed cross claims against each other. The issue of indemnification, framed by the cross claims, was reserved by stipulation and tried to the court after the judgment in the principal case was affirmed by this court on appeal.
The facts concerning Huxol’s fall, his injuries and the relationship of the parties are fully set out in Huxol v. Nickell, supra, and need not be repeated. Insofar as pertinent the opinion is incorporated herein by reference.
In the action before us now Nickell contends that he should be indemnified by Rome in the amount of the verdict rendered in favor of Huxol against Nickell. Nickell contends that indemnification is required of Rome because the damages were caused by the negligence of Rome or by the breach of his contract with Nickell.
In addition to evidence relative to the issue of indemnification submitted at the jury trial, the trial court heard and considered further evidence bearing on the issue in this subsequent proceeding. The trial court made the following findings:
"No. 1
“The applicable implied covenant of Al M. Rome to E. L. Nickell was to indemnify E. L. Nickell for any loss to Nickell for defective workmanship and for negligent acts of Al M. Rome resulting in injuries to third parties such as ♦he plaintiff in this case.
“No. 2
“In the case before us the jury has already decided the factual issue of negligence and found that the defendant Al M. Rome, through himself or his employees, was not negligent, and that E. L. Nickell and his employees were negligent; and that the negligence of E. L. Nickell and his employees was the proximate cause of the injuries to the plaintiff. The claim of plaintiff for damages was tried on allegations of negligence only, there being no allegations of defective workmanship, and there is no evidence of defective workmanship in the case.
“No. 3
“Thus, the jury by specific finding (see the special questions and answers) exonerated the defendant Al M. Rome of any fault as a proximate cause of the accident and injuries to the plaintiff. The jury apparently found that Al M. Rome had no legal duty to erect barricades and provide lights in view of the contract, which is defendant’s exhibit 3, and the conditions of supervision by Nickell’s superintendent as shown by the evidence. The jury apparently found only the defendant Nickell had that duty by contract.
“No. 4
“The general contract, defendant’s exhibits 3 and 4, provides specifically for E. L. Nickell to provide such safeguards and there is no evidence that he subcontracted that contractual obligation to Al M. Rome. (See defendant’s exhibits 7 and 8 and defendant Nickell’s testimony in his deposition taken October 30, 1967, at pages 7 and 8.)
“No. 5
“The Court finds that the policy of liability insurance held by the defendant Al M. Rome at the time of the accident could not change the above findings because the jury has already found that the defendant Rome was not guilty of any negligence, and therefore not liable for the injuries to the plaintiff. A continuance to obtain such policy should be and is denied.
“No. 6
“As between the defendants the court finds generally for the defendant Rome and against the defendant Nickell; and that the defendant Nickell is not entitled to any recovery from the defendant Rome.
“No. 7
“The court finds that judgment should be entered on all of the foregoing findings; and that all of them should be made a part of the judgment of the court in this instance, pointing out that the trial here today to the court is only on the issue which was reserved earlier by stipulation of the parties, being the issue of liability as between the defendants themselves.”
On appeal, Nickell specifies four points of error all of which go to the central issue stated by him to be:
“Whether or not a general contractor is entitled to indemnification from a subcontractor for damages caused by the breach of a contract or negligence of such subcontractor.”
Generally, Nickell argues the evidence established that Rome contracted, expressly or impliedly, to provide the necessary safeguards for the excavation work he was performing and that his failure to do so resulted in the jury returning a verdict against Nickell as general contractor. Nickell says that under such circumstances Rome should be required to indemnify him for the damages sustained by Huxol.
The trial court found to the contrary. Thus, the controlling issue on appeal is primarily the familiar question whether there is substantial competent evidence to support the findings of the trial court.
Under a state contract, Nickell commenced construction of a power plant on the campus of the Fort Hays State College. The conditions existing and the nature of the work being done on the construction project on the date of the accident are fully set out in our former opinion. (205 Kan. 718). For our purposes here we need reiterate only the evidence bearing on the issue of indemnification.
On April 3, 1967, Romes employees were excavating, what was described as the main heat tunnel, at a location between 100 and 200 feet south of the library. A large tunnel had previously been dug eastward from the power plant site. Wire barricades and warning lights had been placed at night on these excavations.
On the afternoon of April 3, 1967, Shukman, a Rome employee, was instructed by Willis Nelson, superintendent for Nickell, to jump ahead approximately 200 feet from the main excavation, where he had been working, and dig an isolated hole. Shukman commenced digging the hole as directed. Shukman left the area about 5 p. m. Huxol, while making his watchman’s rounds that night, fell into the hole and was injured. The next day Nickell’s employees erected barricades around the hole. Evidence of this remedial conduct by Nickell was admitted in the principal trial for the purpose of showing whose responsibility it was to make repairs and to show control of the premises where control is in issue. The action of the trial court in this regard was approved on appeal. A discussion of the matter may be found at page 723 of our former opinion. Relative to the instant issue, the evidence of remedial conduct tends to establish responsibility and control between Nick-ell and Rome.
In addition to the relative evidence received at the principal trial, the trial court heard and considered further evidence submitted in this subsequent proceeding. The latter evidence consisted of the testimony of Rome, his employee Shukman, and of Willis Nelson, superintendent for Nickell.
Rome testified that “I bid to perform all of the excavation and back filling.” He said he did not bid to provide barricades and general protection to the site. He further testified that Nickell’s superintendent was supposed to line up the work for Rome’s men and tell them where to go next when they were finished with one job. Rome further testified that he did not believe he was on the project on April 3,1967.
Shukman testified that he was operating a “dozer and backhoe” on April 3, 1967, and was digging the hole in question; that he had been told by Nelson to start digging at a location designated by Nelson; that he was digging the hole exactly as Nelson had directed; and that Nelson checked on the work from time to time during the afternoon. Shunkman further testified that Nelson had never asked him, or to his knowledge Rome, to put up any barricades.
Nelson testified that he did not remember specifically anything that happened on April 3, 1967. He did not deny that he talked to Shukman on that day. He admitted that he had never asked Rome or any of Rome’s employees to put up barricades. Nelson also testified that he had erected barricades around excavations on the job site and that after the accident he erected barricades around the area in question.
In addition to his testimony at the principal trial, a pretrial discovery deposition of Nickell was introduced. His testimony was that he had never discussed barricades or warning devices with Rome.
The specifications of the state contract expressly required Nickell to provide necessary barricades and devices needed to protect passers-by and buildings (see former opinion pages 722-723). Other documentary evidence consisted of Rome’s cost statement submitted to Nickell. The pertinent part of the statement reads:
“Contract price for excavating — compaction backfilling — pulling trees etc. $3250.00”
In the light of the evidence recited we shall examine the findings of the trial court.
Neither party takes exception to the trial court’s statement of the applicable implied covenant in finding No. 1. If there was a duty on Rome to erect protective devices it arose by implication since there was no express testimony whatsoever establishing any agreement on the part of Rome in this regard. Rome says he never agreed to erect barricades or figured it in his bid. Nickell admitted he had never discussed barricades with Rome. Erection of barricades was a part of Nickell’s contract, there is no evidence that he subcontracted his obligation to Rome.
Whatever duty was incumbent on Rome then must stem from an implied covenent to indemnify Nickell for any loss by reason of defective workmanship or negligent acts.
Insofar as digging the hole in question is concerned, the evidence is that this job was performed exactly as directed by Nickell’s super intendent. Shukman so testified and there is no evidence to the contrary. It cannot be said that defective workmanship by Shukman was the cause of Huxol’s injuries.
Was Rome’s employee, Shukman, negligent in leaving the job without erecting barricades? From the statements of the trial court in finding Nos. 2 and 3 it appears considerable weight was given to the jury’s exoneration of negligence on the part of Rome. However, the jury’s answer in this regard must not have been deemed a final determination of the issue since the trial court proceeded with this subsequent trial and heard further evidence. In finding No. 3 the trial court construed the jury’s findings to be that Rome had no legal or contractual duty to erect barricades and further noted “the conditions of supervision by Nickell’s superintendent as shown by the evidence.”
According to Shukman’s testimony he moved to the designated location and commenced digging, all as directed by superintendent Nelson; and that Nelson checked on the operation several times during the day. Rome testified that he was not on the job site on the day in question. Nelson did not remember the events of April 3, 1967, but he did not deny the facts as stated by Shukman. Even if Shukman could be said to be negligent, the evidence shows he was under Nelson’s direction and control on the day in question.
Applying the familiar rule of this court pertaining to appellate review to what has been said, we cannot disturb the trial court’s findings of fact. This court will not weigh evidence or pass upon the credibility of witnesses. When findings of fact are attacked for insufficiency of evidence, or as being contrary to the evidence, the power of this court begins and ends in determining whether there is any competent substantial evidence to support the findings. (Schnug v. Schnug, 203 Kan. 380, 454 P. 2d 474; Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 436 P. 2d 816, and cases cited therein.)
Counsel for Nickell seeks to apply a rule of law recognized by this court in a line of cases commencing with Laffery v. Gypsum, 83 Kan. 349, 111 Pac. 498. In Laffery the general rule was declared to be that when a person lets out work to another, the contractee reserving no control over the work or workmen, the contractee is not liable for the negligence or improper execution of the work by the contractor. The rule stated, though well-established in this jurisdiction, is not applicable to the instant case where Nickell, through his superintendent, was exercising direction and control over Shukman the employee of Rome, the subcontractor.
Nickell also cites Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578, and Reilly v. Highman, 185 Kan. 537, 345 P. 2d 652. Neither case is helpful here, they both deal primarily with the issue of what relationship existed between the parties involved and whether the inherently dangerous work exception to the nonliability rule applied. In both opinions the general rule stated in Laffery is recognized, but neither decision is helpful to Nickell for the same reason that Laffery lends no support to his position.
In Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 389 P. 2d 766, cited by Nickell, it was held that a landowner contractee is not liable for the negligence of an independent contractor who damaged Phillips pipe line while cleaning out a ditch on the landowner’s property. No negligence on the part of the landowner contractee was established and he reserved no right to direct or control the work being done. The case is obviously distinguishable from the factual situation established in the instant case.
Nickell also cites the case of Fenly v. Revell, 170 Kan. 705, 228 P. 2d 905, a master and servant case, wherein it was held a servant is liable to and may be sued by his master for damages which the latter, in the absence of fault on his part, has been compelled to pay third persons because of negligence of the servant. Principles enunciated in Fenly are not applicable here for the simple reason that under no theory could Nickell be said to be without fault.
No Kansas case is cited which deals directly with the application of principles of indemnity between a general contractor as contractee and a subcontractor as contractor. Although it dealt primarily with indemnity between joint tort-feasors and problems of third party practice, both parties cite the case of Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P. 2d 783. Nickell points out that in Russell this court recognized the rule of law which permits a party who has been held liable to look for indemnity from a third party who was the real wrongdoer and primarily liable for the injury. Rome, on the other hand, calls attention to the fact that throughout the opinion this court recognized the rule that there is no indemnity where the party seeking such has been actively negligent.
In the Russell case the question of primary liability between the alleged joint tort-feasors had not been determined when the case reached this court. The thrust of the decision was that where the requirements of third party practice had been complied with, a third party plaintiff was entitled to a trial on the issue of indemnity between joint tort-feasors where they are not in pari delicto and their negligence is substantially different, not merely in degree but in character.
The instant case comes here on appeal with the negligence of Nickell as the sole and proximate cause of the injury, established as a fact in the trial court. Even if Rome could be said to be guilty of negligence as a matter of law, Nickell’s primary negligence must be absolved or reduced to passive or constructive negligence constituting only secondary liability, before he could become entitled to indemnification.
Nickell was expressly obligated under the terms of his contract. His superintendent was on the project and the specific job which brought about the injury was under the direct supervision and control of the superintendent. Thus, the negligence of Nickell, as found by the jury and trial court, cannot be said to be passive, implied or constructive as distinguished from direct, primary, or active negligence.
The rule is succinctly stated in 41 Am. Jur. 2d., Indemnity, § 21, p. 710:
“. . . the rights of a party to indemnification will be denied where his own wrongful act or omission proximately contribute to the injury complained of.” (p. 711.)
Application of the foregoing principles is demonstrated in the case of Osgood v. D. W. Winkelman Co., 87 N. Y. S. 2d 110, wherein the factual background and the issue of indemnification of a general contractor, by a subcontractor, are closely akin to those present in the instant case. Under a general contract with the State of New York for reconstruction of a highway, Winkelman agreed to erect suitable barricades and lights whenever necessary to protect the traveling public. As in the instant case, Winkelman subcontracted a specific part of the work (laying the top course of the highway surface) to Eastern Rock Products, Inc. Eastern employees left a paving machine on the highway unlighted. The plaintiffs, who were highway users, suffered injuries as a consequence. A jury found both Winkelman and Eastern guilty of negligence. There after the trial court denied a cross claim of Winkelman against Eastern for indemnification. On appeal, in affirming tire trial court’s ruling on indemnification, the appellate court said:
“. . . Under general principles of law and also under its contract with the State Winkelman had a duty to guard against any dangerous conditions in the highway. That duty was separate and distinct from any duty that rested on Eastern. In so far as the duty was created by general principles of law, it could not be delegated by Winkelman. In so far as it was created by the State contract it was not transferred to or assumed by Eastern; nor did Eastern by its arrangement agree to indemnify Winkelman for the breach of that agreement.” (p. 116.)
Further in the opinion, the court noted that the rule proposed by Eastern, to the effect that a contractee who is merely passively negligent is entitled to be indemnified against an actively negligent contractor, is not applicable since both defendants were guilty of active negligence.
The principles enunciated in Winkelman appear to be in line with a substantial majority of the decisions on the subject according to the author’s comments and a comprehensive collection of cases in an excellent annotation dealing with the specific subject in 97 A. L. R. 2d, Anno., p. 616.
Even though we were to declare Rome guilty of negligence as a matter of law in spite of the jury’s and trial court’s findings, as urged by Nickell, the trial court’s judgment could not be reversed.
The judgment is affirmed. | [
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