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The opinion of the court was delivered by
Harman, C.:
Otis K. Carr was convicted by a jury of the offense of forcible rape. By reason of two previous felony convictions (statutory rape; first degree robbery and two counts of forcible rape) he was sentenced to life imprisonment. He now appeals.
The victim of the alleged offense was appellant’s nine year old foster daughter who was also the niece of appellant’s wife.
Appellant charges insufficiency of evidence to show his commission of the offense. The incident occurred on the afternoon of August 12, 1968, in a pasture about one and one-half miles south of Wellington. Appellant could gain no comfort from detailing the testimony of the victim which, standing alone, was sufficient to sustain the conviction. Threats, accompanied by force, and actual sexual penetration by appellant were graphically shown by her testimony couched in language normal for a child of her age. The girl was cruelly used. Despite appellant’s efforts in avoidance and delay, she was taken to the hospital in a bleeding and sickened condition a few hours after the incident. There, examination revealed the presence of live sperm in the vagina and ruptured abdominal area. Considerable surgical repair was required. When queried by his father as to what had caused the girl’s injury appellant replied that he “went wrong” again and did not know what was wrong with him. Soon after the incident appellant admitted to his wife he had “bad news” for her and that he had had sexual intercourse with the girl because she had written some letters that “had made him mad”. Apparently these letters were written to appellant’s stepdaughter who had been the complaining witness in a forcible rape charge against him upon which he had been acquitted by a jury in Sedgwick county. (Appellant brought up the subject of this charge in his direct examination.)
Appellant’s contention of insufficiency is based upon minor discrepancies in the state’s evidence which in nowise detracted from its impact. Commission of the offense by appellant was directly shown, strongly corroborated and clearly admitted.
Appellant complains the trial court wrongfully permitted the examining physician to testify that in his opinion the girl was the victim of a “forceful” or “forcible” rape. Apparently there was no objection at trial level. Beyond this, the doctor, testifying as an expert under K. S. A. 60-456 (&), was wholly justified in this conclusion from the physical facts revealed by his examination, and the evidence was properly received.
Appellant asserts the trial court assumed the role of advocate against him during the trial. The record does not sustain the charge that the trial court in the presence of the jury advised the county attorney how to try his case. The court did at one point admonish the appellant not to speak. Appellant had been testifying, giving long, unresponsive, irrelevant answers, and it was testimony of this nature which eventually provoked the remark. The trial judge does have a positive duty to supervise the conduct of a trial so that the examination of witnesses is kept within reasonable bounds of relevance. Our examination of die entire record convinces us appellant could have suffered no prejudice by reason of any conduct of the trial court.
Finally, appellant contends his constitutional right to counsel was violated when correspondence from his attorney to him was opened and read by officers of Sumner county while he was in jail prior to trial. As developed at the hearing of appellant’s motion for new trial, it appears the undersheriff did, pursuant to the then prevailing practice, open and read one such letter. Neither the letter nor its content was revealed to the county attorney. Upon being advised by appellant of the censoring, appellants counsel discussed the matter with the county attorney of Sumner county who in turn instructed the sheriff to discontinue the practice. Thereafter appellant received one letter from his attorney which had been partially opened by the sheriff but not read by him. Appellant did not advise his counsel of the partial opening of the second letter until after his conviction, although prior to the trial it was freely discussed by him with other inmates of the jail and opined to be good grounds for new trial in event of conviction.
Both letters have been reproduced by the state in its counter abstract. They are innocuous in character and it is not shown in any way how their opening could be prejudicial or detrimental to appellant. The record affirmatively reveals appellant had free access to counsel. Nothing indicates restriction of or interference with effective representation. We rejected a similar contention made in Cox v. State, 197 Kan. 395, 416 P. 2d 741. See also Cox v. Crouse, 376 F. 2d 824.
Judgment affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
The plaintiff Betty Boyce appeals from an order and judgment of the district court in favor of the garnishee-bank.
The facts underlying the order and judgment follow.
In 1960 plaintiff obtained a divorce from the defendant, Ernest M. Boyce. The defendant was ordered to make weekly payments for the support of minor children. During the eight years which followed the defendant failed to make many of these payments and they became judgments against him. As an aid to the enforcement of these judgments an order of garnishment was directed to The Denison State Bank of Holton, Kansas, and served on February 20, 1969. The order required the bank as garnishee to answer within twenty (20) days setting forth the extent of its indebtedess to the defendant. The gamishee-bank failed to answer within the time limited. The plaitilf then filed a motion for judgment in the amount of $17,575.07 against the bank. This was the sum alleged to be due plaintiff from the defendant Boyce. Notice of this motion was served on David Coleman, president of the bank, on March 21,1969. This same day the bank responded by filing a motion for permission to answer out of time. In its motion the bank alleged certain facts to excuse its neglect to answer.
A hearing was held on both the motion for judgment and the motion for permission to file answer. Evidence was introduced by both parties and the court below concluded the failure of the garnishee to answer was the result of excusable neglect as that term is used in K. S. A. 60-206 (b). An answer was filed by the bank with permission of the court.
The court found that the account of defenant Boyce was overdrawn by $8.80 when the garnishment order was served. The bank had no funds or property belonging to the defendant. The court concluded that plaintiff was not entitled to judgment against the garnishee-bank.
This appeal followed.
The trial court in written findings set forth the facts surrounding the bank's failure to answer within the prescribed statutory time. The pertinent findings and conclusion are:
“2. Two days before service of the garnishment summons David A. Coleman, president of the garnishee bank, left unexpectedly for the Mayo Clinic in Rochester, Minnesota, in order to obtain medical treatment and was absent from said garnishee bank twelve or thirteen days.
“3. The established procedure at garnishee bank was for garnishment summons as well as other judicial process to be handled personally by Mr. Coleman.,
“4. Sheldon Hochuli, assistant vice-president of the garnishee bank, handled the garnishment summons in the instant case when it was served due to the absence of Mr. Coleman. Mr. Hochuli placed a stop order on the account of defendant, Ernest M, Boyce, which was overdrawn by $8.80 at the time the garnishment summons was served.
“5. Mr. Hochuli intended to give the garnishment summons to Mr. Coleman upon his return, but said summons was inadvertently filed in the vault of said garnishee bank and was therefore overlooked by said garnishee at the time of Mr. Coleman’s return.
“6. The failure of the garnishee to answer was the result of excusable neglect as provided by K. S. A. 60-206 (b).”
The plaintiff does not question the sufficiency of the evidence to support the findings numbered 2, 3, 4 and 5. She does earnestly question the sufficiency of those findings to support the necessary conclusion in number 6.
K. S. A. 60-206 (b) provides:
“Enlargement. When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in his discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under sections 60-250 (b), 60-252 (b), 60-259 (b), (d) and (e) and 60-260 (b) except to the extent and under the conditions stated in them.”
The statutes above, in which time for taking action may not be enlarged, refer to periods of time for doing certain acts after a jury has been discharged, after findings of fact have been made or after entry of a judgment. None refer to an enlargement of time to answer a garnishment order.
In the case before us the twenty (20) day period to answer had expired. Therefore under the enlargement statute the facts shown must be sufficient to support the trial court’s conclusion of excusable neglect if we are to uphold the order granting permission to file the garnishee’s answer.
We find no Kansas cases which discuss the term “excusable neglect” as used in this statute. Cases from other jurisdictions are cited by plaintiff. Those cases deal with differing factual situations none of which are persuasive here. The definition of the term “excusable neglect” contained in those cases is not particularly helpful. Defining excusable neglect in terms of a reasonably prudent man raises the additional question of further evaluating the actions of a reasonably prudent man.
The obvious purpose of the enlargement of time statute is to allow a trial court some discretion in order to prevent a miscarriage of justice which might occur if blind adherence to set time periods were otherwise required. (See Fowks, Harvey & Thomas, Vernon’s Kansas Statutes Annotated § 206.3; Anderson v. Brady, E. D. Ky. 1941, 1 F. R. D. 589, 591.)
Excusable neglect as used in K. S. A. 60-206 (b) is not susceptible of clear definition. What constitutes excusable neglect under the statute must be determined by the trial court on a case by case basis under the facts presented in support of and in opposition to the enlargement of time. The trial court should consider the circumstances under which the neglect to act occurred as well as the effect of an enlargement upon the rights of all parties affected thereby.
When a party in default seeks an enlargement of time based upon excusable neglect under K. S. A. 60-206 (b), his request should be supported by evidence of his good faith, he should establish a reasonable excuse for his failure and he should show that the interests of justice can be served by granting the enlargement. After considering these matters the determination should rest in the sound judicial discretion of the trial court.
In light of what has been said let us examine the facts presented to the trial court on which its finding of excusable neglect rested.
The enlargement of time to answer was sought in garnishment proceedings. The garnishment was an aid to the enforcement of a judgment against the defendant, Ernest M. Boyce. The purpose of the proceeding was to reach money or credits belonging to the defendant in the possession or control of the garnishee-bank. When the bank was served with the garnishment order it had no monies or credits belonging to the defendant in its possession or control. When the neglect to answer was called to the bank’s attention by the motion for judgment (as required by K. S. A. 1968 Supp. 60-718) it promptly responded. It filed motion for an enlargement and when permission was granted by the court immediately filed its answer.
The bank appears to have acted in good faith. The excuse for its failure to act within time appears reasonable. The interests of justice were served by granting the enlargement of time. Otherwise the neglect to file answer which extended for ten or eleven days would have resulted in a miscarriage of justice. The failure would have shifted the burden of a $17,575.07 judgment from the defendant to the garnishee-bank.
Considering the circumstances under which the neglect to act occurred and the effect of an enlargement upon the rights of all parties, the trial court properly held the bank’s failure to act was the result of excusable neglect.
The appellant further contends that under the garnishment statute a trial court has no discretion in this matter and should never be permitted to enlarge the time to file the answer of a garnishee in default. She contends there is no provision in the garnishment statute permitting such enlargement and when the garnishee fails to file answer within twenty (20) days the court is required to enter judgment in favor of plaintiff and against the garnishee.
We cannot agree.
The pertinent provisions of K. S. A. 1968 Supp. (now 1969 Supp.) 60-718 read:
“Within twenty (20) days after service upon him of the order of garnishment the garnishee shall file his verified answer thereto with the clerk of the court stating the facts with respect to the demands of the order. ... If the garnishee fails to answer within the time and manner herein specified, the court may grant judgment against garnishee for the amount of the plaintiff’s judgment or claim against the defendant, but if the claim of the plaintiff has not been reduced to judgment, the liability of the garnishee shall be limited to the judgment ultimately rendered against the defendant: Provided, however, Said judgments may be taken only upon written motion and notice given in accordance with K. S. A. 60-206. . . .”
Under the proviso, which was added to the statute in 1967, if the garnishee fails to answer judgment may be taken only upon written motion and notice. K. S. A. 60-206 (d) requires a five day notice of the motion before a hearing. This requirement would serve no useful purpose if the appellant’s contention were sound. The statute on attachment and garnishment is a part of the code of civil procedure and procedures such as that mentioned in K. S. A. 60-206 (d) generally apply.
As previously pointed out K. S. A. 60-206 (b) specifically enumerates certain instances when enlargement may not be granted. The statute which sets the time for a garnishee to answer is not one of those enumerated. The failure to include the statute with the others would be some indication that enlargement of time was proper under the guidelines in K. S. A. 60-206 (b). We hold the provisions for enlargement of time in K. S. A. 60-206 (b) apply to the period of time for filing garnishee’s answer as set in K. S. A. 1968 Supp. (now 1969 Supp.) 60-718.
What has been said disposes of this appeal. The other findings of the trial court with which appellant quarrels are not necessary to the trial court’s decision and in view of the present holding need not be discussed.
The judgment is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from the judgment of the district court of Geary County affirming an order of the State Corporation Commission granting in part and denying in part an application of the Kansas Power and Light Company for an increase in rates and charges for natural gas service in the state of Kansas.
The district court found the order of the State Corporation Commission to be lawful and reasonable, and rendered judgment sustaining the order. The Secretary of the Army, on behalf of all executive agencies of the United States of America, has appealed to this court.
We will for the purpose of brevity hereinafter refer to the Secretary of the Army as appellant, the State Corporation Commission as the Commission and the Kansas Power and Light Company as KP&L. Briefs have been filed for the appellant, the Commission as appellee and KP&L and the city of McPherson, et al., as intervenors and appellees.
Although we will consider the facts as we discuss the specific issues presented, it may be stated generally that on August 7, 1967, KP&L filed its application with the State Corporation Commission for approval of changes in its charges for natural gas service in the state of Kansas. The changes requested by KP&L in its application would have increased its gross revenue from gas sales by $1,822,-828.00, amounting to a net increase after taxes of $925,267.00.
Hearings were held on October 16 and 17, and December 4 and 5, 1967. Upon completion of the hearings, the Commission requested and received briefs and suggested findings of fact and conclusions of law from the parties of record. On January 4, 1968, the Commission issued an order approving in part and denying in part KP&L’s application. The Commission order approved an annual increase in revenue of approximately $1,733,980.00. The Commission’s order dated January 4, 1968, was served on KP&L on that date.
The appellant’s gas rates were increased from 33 cents per MCF to 35.5 cents per MCF.
The appellant first contends that the Commission’s order is in valid on its face because it permitted the increased rates to become effective January 4, 1968, the date of the order, rather than thirty days thereafter.
There are two statutes regulating the effective date of a change in rates — K. S. A. 1969 Supp. 66-113 states:
“All orders and decisions of the corporation commission whereby any rates, . . . are altered, changed, modified, fixed or established, . . . shall be served on the public utility . . . and such order and decision shall become operative and effective within thirty (30) days after such service; . . .” (Emphasis supplied.)
K. S. A. 66-117 states:
“No change shall be made in any rate, toll, charge or classification or schedule of charges, ... of any such public utility . . . without the consent of the commission, and within thirty days after such changes have been authorized by said corporation commission, . . .” (Emphasis supplied.)
The order was dated January 4,1968, and was to become effective on that date. It was also served on KP&L as of January 4, 1968.
We think the words “within” as used in the two statutes limits the time within which the order must become effective rather than extend the effective date to thirty days beyond the date of the order.
Appellant’s contention that the order could not become effective before March 8, 1968, thirty days after the order denying the petition for rehearing, presumes that the application for rehearing filed by the appellant stays or delays the effective date of the Commission’s order. The rules of practice and procedure adopted by the Commission and filed with the Revisor of Statutes and which, by law, have the effect of statute,.clearly provides that the filing of an application for rehearing does not stay the effect of the Commission’s order. The Commission’s rule 82-1-235, subsection (/), states:
“The filing of an application for rehearing or the granting of a rehearing shall not excuse any corporation or person from complying with and obeying any order or decision of the commission theretofore made, or operate in any way to stay or postpone the enforcement thereof, except in such cases and upon such terms as the commission may by order direct.”
The appellant argues that the necessity for increased rates is not supported by substantial evidence and therefore the Commission erred in approving the increase.
In the consideration of this question it should be understood that in the exercise of its authority and jurisdiction the Commission is clothed with a wide discretion and its findings, when supported by substantial competent evidence, are not to be vacated or set aside by a reviewing court merely on the ground that such court, had it been sitting as a fact-finding body, would have arrived at a conclusion different than that of the Commission. (Rock Island Motor Transit Co. v. State Corporation Comm., 169 Kan. 487, 219 P. 2d 405.)
Neither should a court in considering the record substitute its judgment for that of the Commission if the matter is within the realm of fair debate. (Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P. 2d 515.)
KP&L’s application and exhibits attached thereto show that the gas department, prior to the adjustments made by the Commission’s staff, was earning only 4.10% rate of return under the existing rates. The Commission’s order stated:
“. . . After considering applicant’s capital structure, the geogj'aphical areas in which it operates, the reasonableness of its expenses, the quality of the service and the other relevant considerations, we deem a range of reasonable return in this case to be from 6.65% to 7% on the rate base we have adopted. Fluctuations from year to year are inevitable and, in our opinion, a return of 6.65% on said rate base will not be unreasonably low, nor would a return of 7% thereon be unreasonably high.”
There was uncontroverted evidence that the then existing rates of KP&L’s gas department were earning the company only a 4.10%, or at the most 4.20% rate of return.
The uncontroverted testimony also showed that KP&L’s cost of gas had increased 2 cents per MCF since die 1963 rates were determined by the Commission.
A KP&L witness testified as to the increased cost in the company’s expenses, not only in the cost of purchased gas, but in labor, materials, taxes and interest.
After an extended investigation the Commission determined that the company was entitled to additional revenue in the amount of $1,733,980.00, permitting the company to earn a rate of return of 6.87%. This the Commission found was within a range of reasonableness.
Without setting out the testimony in detail we are forced to conclude that there was ample evidence to support the Commission’s findings and order.
The appellant next contends that the proposed rates are unreasonable and discriminatory in that Fort Riley is not accorded treatment equal to that of other customers who receive natural gas under like or similar conditions of service. It appears that the appellant would contend the Commission should have found the government owned, operated and maintained distribution systems at Fort Riley and Schilling Manor housing to be similar to municipalities operating public utilities, and that they should have the advantage of the wholesale for resale rate available to such municipalities.
A brief study of the testimony reveals that neither the operation at Schilling Manor nor Fort Riley, with reference to gas billings, is handled like either an ordinary municipal or public utility operation. The occupants of the homes receiving gas from the Army merely forfeit their housing allowance when occupying government quarters, and the housing allowance includes payment for utilities in no set amount. The “payment” is a mere paper transaction — there is no per MCF statement or accounting, and in fact there is no resale either as a municipality or as a public utility.
Before appellant would be entitled to the municipal wholesale for resale rate, it would have to be a municipality which it is not. In addition, before it would be entitled to either of the rates which it contends the Commission should make available to it, it would have to show that the gas they purchase is for resale. The evidence in the record clearly shows that the government is not reselling gas to the extent that it would justify the Commission in finding that they are entitled to a wholesale for resale rate. As a government witness testified, their so-called “resales” are merely interdepartmental transfer of fund transactions.
There are no meters at Schilling Manor housing and only a few for non-army personnel at Fort Riley. The Army takes gas for Fort Riley and Schilling Manor housing from seven different points on the pipeline.
The Commission found:
“. . . The Department of Defense, a large firm user which under its existing tariff purchases gas at an average price considerably lower than other •firm users, contended that it should be classified as a wholesale for resale customer. The Commission’s staff presented a detailed cost of service study which was helpful to the Commission in testing the reasonableness of the tariffs we find should be made effective. The following statements are found pertinent to tariff making herein:
(a) The Department of Defense is not a public utility and its customer classification should not be changed to wholesale for resale. The rate now in effect to said customer was determined to be reasonable and appropriate pursuant to a separate hearing relating to the 1963 rate case, and the increase proposed by Applicant to said customer is in no way discriminatory in light of the increased commodity costs and other evidence in the instant case.”
Appellant contends that KP&L’s general service customers bear too greát a portion of revenue requirements.
The only argument presented to support this contention follows:
“The rates are unjust and unreasonable in that the general service customers bear too great a portion of the revenue requirement. They take 28 percent of KPL’s gas volume, but contribute 48 percent of total gas revenue. Approximately 60 percent of the proposed revenue increase will be borne by general service customers. On the other hand, Kansas Gas Supply and Anadarko are receiving unduly preferential treatment. These two contract sales currently represent 18 percent of KPL sales but contribute only 10 percent of its revenue, and they do not share any portion of the proposed increase. . . .”
A disparity in price between firm and industrial customers standing alone is hardly grounds for complaint. In Gas & Fuel Co. v. Public Utilities Commission, 116 Kan. 165, 225 Pac. 1036, we stated in paragraph 2 of the syllabus:
“In determining what is a reasonable rate for gas supplied by a utility, consideration should be given to the cost of the producing or obtaining of gas for distribution, and it is held that under the evidence there were good reasons for allowing a higher price for gas supplied for domestic use with the varying demand of consumers than for that supplied and sold to industrial plants where there is steadiness of demand.”
In the opinion of the court stated at page 171:
“... A great deal of testimony was produced as to the prices at which gas could be purchased in the vicinity of the plant and as to the difference between the price of gas supplied for domestic use and the price at which it was sold to industrial plants. That furnished for industrial purposes, it was shown, is for a fixed quantity day after day throughout the year, while that supplied for domestic use fluctuates in quantity and varies according to weather conditions and the needs of customers. Much more is used by domestic consumers in the morning from seven to ten o’clock and but little is used from that time until evening. The demand also varies according to the seasons. A heavy load must be carried in fall and winter, but a much lighter load supplies the needs of domestic consumers in the summer period. It was shown that the company is required to keep up a pressure that will meet the varying demands, and witnesses stated that when only a small quantity is used the gas is pushed into the pipes and there is a consequent greater loss from leakage. . . .”
A KP&L witness testified that the basic purpose of a pipeline is to supply gas to firm customers — the residential type customers. When the weather gets cold, these customers have a priority on the gas moving through the pipeline. The pipeline was designed to adequately meet their requirements on peak days. A Commission witness testified that in his cost of service study he broke the classes of customers into four groups, namely, power plant interruptibles, other interruptibles, firm sales to Kansas Gas Supply and Anadarko Production Company, and all other firm customers. Each of these classes of customers was allocated the company’s expenses associated with each class of customer. The cost of gas per MCF, excluding income taxes, based on the Commission’s staff exhibit, showed the power plant gas to cost 23.16 cents per MCF and the gas sold to the general service firm customers to cost 44.52 cents per MCF.
Another witness testified:
“With reference to the justification of assigning 71% of the demand to firm customers, I understand that in all instances there are alternate fuel supplies available in case of interruption. The transmission and distribution system is there to serve the firm customers, the space-heating customers at that peak period of time, and according to some of the peak-time information, there have been peak periods where 70% to 75% of the deliveries were to firm customers on these peak days, so if they have the plant to serve that customer when he wants it, certainly he should bear more of the cost of the plant and expense of operating the plant.”
We find nothing to justify a charge of discrimination and perferential treatment because of the difference in the rates for industrial users having interruptible service and the firm or residential type service.
The appellant further contends:
“The Commission erred in requiring the rate payers to share the burden of KPL’s improvident gas purchase contract with Hugoton Production Company. KPL purchased, under this contract, close to half its gas at 20 cents/MCF, and 22 cents/MCF in 1968. Hugoton did not provide KPL with any evidence to demonstrate the need for periodic escalations. . . .”
There is no evidence in the record suggesting that KP&L paid more for the Hugoton Production Company gas than was necessary as a result of arms length negotiations. The record reflects that KP&L did not give up any other sources of gas when it signed the Hugoton Production Company contract and that particular gas was the best available source, at the best price, of any gas available to the company at the time it was purchased. A KP&L witness testified:
“. . . [W]hen you are purchasing large amounts of gas for long periods of time you just naturally have to face up to the fact that there are going to be increases in this gas as you buy it. This is a standard pattern with us and it’s a standard pattern with anybody that is buying gas, and I am sure it is pretty much true anyplace.
“Q. And you still think this is a matter of prudent business judgment?
“A: Right. This was certainly an arm’s-length negotiation and it was a hard and tough negotiation. There were a lot of factors in it.”
The evidence shows that under the Hugoton Production Company contract, Hugoton Production Company has the sole responsibility for gathering gas in the field and delivering it to the inlet side of KP&L’s Compressor Station. They have the obligation under the contract to make available up to forty billion cubic feet per year and they are required to furnish KP&L’s daily requirements up to 150 million cubic feet per day.
A careful examination of the record discloses no basis for declaring the Commission’s order unreasonable, discriminatory or unlawful. A court cannot disturb an order of the State Corporation Commission for reasons based only on suspicion and conjecture.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, Velma F. Kelty, seeks to recover damages for personal injuries sustained in a collision between a truck in which she was riding as a passenger and a taxicab operated by the defendant, William E. Newby, in the service of the defendant, Rest Cabs, Inc. Originally, John M. Kelty joined his wife as a party plaintiff herein, but at some undisclosed and unspecified time he was dismissed as a party and the lawsuit has been continued by Velma F. Kelty alone.
The accident happened in this manner: The truck, with Mr. Kelty at the wheel, was proceeding east on 21st Street in the city of Wichita, when its rear right fender was grazed by the left front fender of the taxicab as Newby, headed north, pulled into the street from a filling station driveway. As a result of the impact, Mrs. Kelty suffered injuries to her back, for which the jury awarded her the sum of $2100. The defendants have appealed from the judgment entered on the verdict.
Several trial errors are charged. It is first contended that the trial court should have declared a mistrial because the subject of insurance was mentioned. The incident occurred in this wise: In response to questioning by defense counsel on cross-examination, the plaintiff’s doctor gave this answer:
“A. Well, as I say, I just give what I think of it. Now, for instance, I thought in rotating her spine that she was limited in this way. This is what I think of it now. If the Court or some other insurance company or somebody wants an opinion which I felt they did in this case, then I would refer her on for these measurements that they desire.”
No objection was interposed to this answer at the time it was given but at the conclusion of the doctor’s testimony the defendants’ counsel, in chambers, moved for a mistrial. In overruling this motion the trial judge observed he would have stricken the answer had a motion therefor been made at the time, but to do so now might only accentuate the reference to insurance. The defendants’ counsel thereupon stated he was not asking that the answer be stricken; that striking it would not cure his complaint. Whereupon the court inquired if counsel wanted the jury admonished to disregard the evidence and to this inquiry counsel responded “no.”
Obviously the good doctor did not employ the opprobrious term with calculated intent to inject prejudice into the case. We deem the reference to have been inadvertent, casual, and in the context in which it was used, innocuous. The trial court’s refusal to declare a mistrial or to grant a new trial amounts to a finding by it that the reference to insurance came into the record unintentionally. (Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281.)
Despite our long adherence to the rule that the deliberate injection of insurance coverage into the trial of a damage action presents a basis for a new trial (Van Pelt v. Richards Paint & Paper Co., 132 Kan. 581, 296 Pac. 737; Gard, Kansas Code of Civil Procedure, § 60-454), this court has also held that where such monstrous testimony slips into the record inadvertently, its admission may be cured by a peremptory order of the trial court striking the same and instructing the jury to disregard it. (Holloway v. Telfer, 136 Kan. 80, 12 P. 2d 826; Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97.)
While the offensive evidence was not stricken in the present case, and no instructions were given to the jury to disregard it, this omission was obviously induced by defense counsel’s failure to file a motion for such relief and by his statement to the court that he did not wish to have the jury admonished. A similar situation was presented in Caylor v. Atchison, T. & S. F. Rly. Co., supra, where trial counsel, after testimony concerning insurance had gotten into the case, requested that no further reference thereto be made by the court, as such would only tend to emphasize the subject of insurance in the minds of the jury. We held that under those circumstances, and giving consideration to the evidence of record and the size of the verdict, no prejudicial error could be said to have occurred.
In Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120, defense counsel refused to consent to the court’s proposal to strike certain references to insurance occurring during the trial and to instruct the jury to disregard them, the reason for counsel’s refusal being that the damage had already been done and that further reference would merely magnify and emphasize the fact of insurance coverage. In upholding a judgment in plaintiffs favor this court said:
“. . . [A]s we read this record, it is not made to appear that any prejudice resulted from what manifestly appears to have been an inadvertent reference on the part of plaintiff while on the witness stand. Indeed, the trial court in denying the motion for a mistrial and to discharge the jury commented that he was well satisfied there had been no intentional misconduct by counsel and that the mention of insurance was purely inadvertent. We feel compelled to agree. . . .” (p. 389).
See, also, Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288.
The odious expression was uttered but once in the instant case— by plaintiff’s own doctor in response to cross-examination by the defendants’ counsel. Evidence of the cab driver’s negligence was impressive, as we view it, and the $2100 verdict quite modest in view of the $30,000 sought in relief. We cannot say the verdict reflects passion or prejudice resulting from mention of the malignant term. K. S. A. 60-2105 directs that trial irregularities be disregarded where they do not appear to have prejudicially affected the substantial rights of the complaining party and we believe the statute’s admonition should be applied here.
The defendants next complain of the trial court’s refusal to submit a requested instruction to the effect that if the approach of the defendants’ vehicle was visible to Mrs. Kelty, the jury should consider whether or not she exercised reasonable care for her own safety in failing to warn her husband of its approach. Under the circumstances shown of record in this case we think the point is without merit.
It is true generally that a passenger in a motor vehicle rests under a duty to exercise reasonable care for his own safety and is guilty of negligence should he fail to warn the driver of approaching imminent danger. (Sander v. Union Pacific Rld. Co., 205 Kan. 592, 596, 470 P. 2d 748; Knudsen v. Hanlon; Knudsen v. Balderston, 160 Fla. 566, 36 So. 2d 192.) However, we are unable to say that the evidence in this case required that the jury be instructed to such effect.
The evidence infers that the taxicab did not move from its moorings from the time the Keltys first saw it sitting in a filling station driveway just 20 feet south of the street, until the Kelty truck was passing the driveway entrance. The left front of the taxi struck the truck’s right rear fender back of the wheel. Mr. Newby, the cab driver, testified he had looked west, after picking up a fare, and had seen the truck at a distance; that after being told where his passenger wanted to go he looked east and saw nothing; and that as he entered the street he looked again to the west and the truck was right on him. He subsequently pleaded guilty to and paid a fine for failure to yield the right of way.
We believe the evidence was not sufficient to suggest to Mrs. Kelty the presence of any imminent danger against which she should have warned her husband. Hence, there was no reason for the court to submit the requested instruction. The rule is that instructions are to be limited to those issues which are supported by evidence. (See 5 Hatcher’s Kansas Digest [Rev. Ed.] Trial, §205.)
The mere presence of the cab standing in the driveway leading into the street was not of itself a menacing danger.
K. S. A. 8-553 provides as follows:
“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway.”
Kansas law is clear that a motorist may rely on the assumption that other motorists will observe the rules of the road, and the laws and regulations which govern traffic, and he is not guilty of negligence in that reliance unless and until he has knowledge to the contrary. (Harbaugh v. Darr, 200 Kan. 610, 438 P. 2d 74.) Mrs. Kelty, although a passenger, was equally entitled with the driver to assume that the taxicab sitting in the filling station driveway near the street and which was not in motion during the time she saw it — would not suddenly, and in violation of the foregoing statute, be driven into the street and against the vehicle in which she was riding.
The trial court properly instructed the jury with respect to the law regarding negligence and contributory negligence and we discern no error in its failure to submit the instruction requested by the defendants.
The defendants also requested that an instruction be given on the duty to mitigate damages, and complaint is made of the court’s refusal to instruct the jury in this respect. But again, as we view the record, no basis was provided for an instruction of this nature. Although the two specialists called by the defendants testified that Mrs. Kelty’s condition could have been improved by taking certain exercises, there was no evidence whatever that she was so advised by either of them — or by her own doctor — or that she had failed to follow any medical advice received or refused to pursue any recommended course of treatment. Not only must mitigation be pleaded as a defense, the burden of proving it rests upon the party asserting it. (Rockey v. Bacon, 205 Kan. 578, 470 P. 2d 804.)
Finally it is argued that the court should have held as a matter of law, and should have instructed the jury, that Mrs. Kelty and her husband were engaged in a joint venture at the time of the collision and that the husband’s negligence, if any, was to be imputed to his wife. The defect in the defendants’ position is, we think, simply this: The determination of whether two or more parties are engaged in a joint enterprise at any given time is generally for the jury to make and it is only when reasonable minds cannot be said to differ that the question may be resolved as a matter of law. (Bradshaw v. Payne, 111 Kan. 475, 207 Pac. 802.)
Where the relationship between parties alleged to be joint adventurers is that of driver and passenger, the crux of the matter is whether the latter has equal right with the former to manage and control the vehicle and its movements. In 1 Blashfield Automobile Law and Practice, § 62.25 the rule is stated in this way:
“Generally, the test of joint enterprise between the driver and one to whom his negligence is sought to be imputed is whether they were jointly operating and controlling the movements of the vehicle in a common purpose, or had equal right to do so.” (p. 483.)
The author goes on to say that the question of whether the parties are jointly engaged in a common enterprise so as to render the passenger chargeable with the driver’s negligence, is usually one of fact.
In Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459, this court had occasion to plumb the area of joint enterprise and imputed negligence in some depth and, speaking through Mr. Justice Fatzer, had this to say:
“. . . To constitute a joint enterprise between a passenger and a driver of an automobile, there must be a common purpose for which they jointly use and occupy the motor vehicle so as to give each the equal privilege and right to control and manage its operation. [Citing cases.] Under the doctrine of joint enterprise whereby the negligence of one party is imputed to the other upon the relation of agency, there must be equal responsibility for the negligent operation of the vehicle, and there can be no equal responsibility unless there is an equal right to control.
“The essential question is whether, under the facts and circumstances, the driver and the passenger can be found by implication to have agreed to have an equal privilege and right to manage and control the vehicle. . . .” (pp. 1002, 1003.)
There is evidence in the instant case that Mr. and Mrs. Kelty worked on paperhanging jobs together — he running the business and she working as a helper, or assistant. Accounts and records of the business were kept together, neither party separately accounting for their joint efforts in the production of income. Joint tax returns were filed and title to the truck was held jointly.
Rut there is also evidence that Mr. Kelty made the decisions, controlled what jobs were taken and what work was done, and that he did the driving. Although the Kelty couple was on its way to work the morning of the accident, Mr. Kelty, who was driving the truck, testified he was solely in control of the driving on the trip. Under all the attending circumstances we believe the trial court did not err in refusing to rule, as a matter of law, that the Keltys were engaged in a joint enterprise or adventure at the time of Mrs. Kelty’s injury. The issue was properly submitted to the jury under instructions which are not challenged.
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The opinion of the court was delivered by
Parker, J.:
This is an injunction proceeding wherein the plaintiff seeks to restrain the board of county commissioners of Johnson county, acting as the governing board of Mission Township Main Sewer District No. 1 of such county, and the contractor employed by such board to construct the improvement herein involved from utilizing a strip of plaintiff’s land in the construction of a permanent sewer on the ground the board had failed to acquire the right to take his property for that purpose under and by virtue of any valid condemnation proceeding. By stipulation between the plaintiff, the district, and the defendant board, but without service of summons on or appearance of the contractor, applications for a restraining order and a temporary injunction were heard at the same time by the district court which, at the close of plaintiff’s evidence, sustained a demurrer to his petition as well as his evidence and rendered judgment denying either a restraining order or a temporary injunction. The appeal is from the order sustaining the demurrer.
At the outset we are confronted with a contention advanced by appellees, raised by motion and presented on the hearing of the cause, to the effect the appeal must be dismissed because the real issue involved in the injunction proceeding has become moot. -We therefore turn directly to that question.
Appellees insist and appellant admits that the work of constructing the sewer across appellant’s property has long since been completed. Appellant also concedes that under the provisions of G. S. 1947 Supp. 26-101, appellees had power to condemn his property for sewer purposes and that they undertook to condemn it by proceedings instituted under and by virtue of the terms of such statute. On oral argument of the cause he virtually conceded, if in fact he did not actually admit, that the sewer project, as completed, was of such character that this court, even if the trial court erred in refusing a temporary injunction, would not be justified in destroying its effectiveness by ordering removal of the portion constructed through and across his premises.
Resort to the record reveals that under allegations of his petition appellant sought only injunctive relief which was denied by the trial court without specific statement as to the ground, on which its action was based.
In view of the circumstances and conditions heretofore related we are convinced that under our decisions the motion to dismiss the appeal should be sustained.
This court is committed to the rule that it will not consider and decide a question raised on appeal where it clearly appears that between the trial of an action and the submission of such question there has been a change of circumstances which would make any judgment it might render with respect thereto of no consequence to the particular issue litigated in the court below. See Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113, and cases there cited, also Mueller v. Seiler, 158 Kan. 440, 442, 148 P. 2d 266.
Long ago in Meyn v. Kansas City, 91 Kan. 29, 136 Pac. 898, we held:
“Where a temporary injunction is denied in an action brought solely to restrain the erection of a viaduct by authority of a city, and the trial court renders judgment for the defendant upon the pleadings, an appeal therefrom will be dismissed if it appears that in the meantime the structure had been completed, at a cost of $70,000.” (Syl. HI.)
And in the opinion said:
“A judgment denying an injunction is sometimes reversed, notwithstanding the act sought to be enjoined has been performed, where, as in tax proceedings, the court has power to restore the original status. (Bonnewell v. Lowe, 80 Kan. 769, 104 Pac. 853.) This principle seems to have been applied where minor alterations in partitions in rented property were the subject of controversy. (Moses v. Salomon, 135 N. Y. Supp. 408.) Assuming that the court would have jurisdiction to command the removal of the viaduct here involved, which cost over $70,000, such an order is not to be thought of, and is not asked.
“If the judgment in this case were of such a character that its affirmance' would constitute an adjudication of any of the plaintiff’s rights other than with respect to an injunction, his appeal might be determined upon its merits on that account. (Bithulithic Paving Co. v. Highland Park, 164 Mich. 223, 129 N. W. 46.) But he sought only injunctive relief. True, in some circumstances the action might have been converted into one for damages, upon the principle that jurisdiction assumed by a court of equity for one purpose will be retained for all. (Note, Ann. Cas. 1912 A, 803.) But the question whether an injunction should issue was not the same as whether the conduct of the defendants was an invasion of the plaintiff’s rights. So far as the record discloses, the court may have rendered judgment upon the pleadings upon the theory that the petition showed that the plaintiff had an adequate remedy in an action for damages.
“For the reason that nothing is involved in this proceeding except relief by injunction, which cannot now be granted, the appeal is dismissed. As a result, the judgment of the district court will remain undisturbed, but it is now interpreted as having to do only with injunctive relief, and it will not be a bar to an action to recover any damages he may have suffered, if the defendant’s acts shall be found to have been wrongful.” (pp. 30, 31.)
More recently in Dickey Oil Co. v. Wakefield, supra, we held:
“If the judgment of this court were of such a character as to constitute an adjudication of any of plaintiff’s rights, other than with respect to the injunction sought, the appeal might be determined upon its merits on that account, but the case will not be reviewed on its merits where only injunctive relief was sought and the need for that relief has ceased to be a justiciable issue.” (Syl. H2.)
In an effort to forestall application of the rule announced in the foregoing decisions appellant argues the appellee district’s condem ríáUoti-proceed'ing was invalid with the result it is now a trespasser and he is therefore entitled to an injunction preventing continued' trespasses. • The answer to this contention is ¡tov be found in what has been heretofore quoted from our decisions. An additional answer is that under' our statute the district had authority to take appellant’s property for purposes contemplated by its terms and has, done so. In that situation, even if its condemnation proceeding was wholly void — a point which we do not here determine — appellant has an adequate remedy in damages and is not entitled to relief in an injunction action. (See Brookings v. Riverside Drainage Dist., 135 Kan. 234, 9 P. 2d 656; Sullivan v. City of Goodland, 110 Kan. 359, 203 Pac. 732; Railway Co. v. City of Hiawatha, 95 Kan. 471, 148 Pac. 744).
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The opinion of the court was delivered by
Harvey, C. J.:
This is an original proceedings in quo warranto, brought by the state on the relation of the attorney general and the county attorney of Wyandotte county, which questions the validity of Ordinance No. 35,841 of the city of Kansas City, the county seat of Wyandotte county. By that ordinance the city undertook to enlarge the boundaries of the city so as to include about 960 acres of land, being a part of the about 2,300 acres of what is commonly referred to as the Fairfax Industrial District situated between the northeast boundary line of the city, as previously located, and the Missouri river, the center of which, at all points here involved, is the boundary line between the states of Kansas and Missouri. Plaintiff attached as an exhibit to the petition a map, conceded by defendant to be substantially correct, showing the Fairfax Industrial District, the near-by portions of the city to the south and west thereof, and the area sought to be annexed to the city by defendant’s Ordinance No. 35,841. To visualize the situation more clearly we have prepared from this map, omitting nonessential details, a drawing which shows the relative location of the area attempted to be annexed to the city by its Ordinance No. 35,841 to Fairfax Industrial District and to the parts of the city adjoining it on the south and west, which drawing is as follows:
We need not detail the pleadings since the pertinent portions thereof are hereinafter fully considered and the questions raised therein are determined. After the pleadings were filed plaintiff filed a motion for the appointment of a commissioner. Considering this motion the court appointed the Honorable George Templar of Arkansas City, a member of the bar of this court, as its commissioner, with directions, and authority to hear the evidence and to make suggested findings of fact and conclusions of law and report them to the court. After an extended hearing in which the parties were permitted to present all pertinent evidence they desired, the commissioner made findings of fact and conclusions of law, and filed them with our clerk, as follows:
“1. The issues submitted for consideration in this cause have been joined upon plaintiff’s petition, the defendant’s answer, as amended, and the plaintiff’s reply. The action is in the nature of Quo Warranto to determine the legality of Ordinance No. 35,841 adopted by the city of Kansas City for the purpose of annexing to the city approximately 962 acres of land near the city that was not included within the limits of the city before the annexation ordinance was adopted and published April 4, 1949.
“2. Exhibit 1, offered by the State, a copy of which is attached to both plaintiff’s petition and defendant’s answer, shows the city of Kansas City, the land annexed by Ordinance No. 35,841, and the landmarks and area surrounding the same. All parties agree that it correctly represents the area under consideration and that it is drawn on a scale of 1 inch equals 400 feet.
“3. The city of Kansas City is a municipal corporation with a population of 148,000. It is a city of the first class, located in Wyandotte County, the city limits of which were defined by Ordinance No. 32,457, before the passage and publication of Ordinance No. 35,841, the legality of which is now in question. That before the ordinance now questioned was enacted, the city was bounded on the north by the Fairfax Industrial District and the State of Missouri, on the south by Johnson County, on the east by the Fairfax Industrial District and the State of Missouri, and on the west by rural Wyandotte County.
“4. The Fairfax Industrial District consists of approximately 2,300 acres of land formerly owned by the Kansas City Industrial Land Company, which company sold tracts to various persons and corporations, including tracts of about 925 acres in the northeast portion of the district to the city of Kansas City for a municipal airport, now known as Fairfax airport.
“5. Prior to 1923, most of what is now the Fairfax Industrial District was waste and swampy land, the ground near the river was higher than that near the city limits, and in time of floods or heavy rainfall the district was frequently inundated. For its proper development as an industrial site, the area required drainage and dikes to protect it from floods. Those interested in the development of the area formed the Fairfax Drainage District, commenced work on a drainage ditch, got into litigation with the city when an attempt was made to extend the ditch across city property. This litigation was eventually compromised, a closed sewer was constructed by the Drainage District, the city paid 26/46ths of the cost and the Drainage District paid the remaining 20/46ths of the cost. Both the city and the occupants of the Fairfax Industrial District use the sewer. The sewer lies outside the city limits and is under possession, control and supervision of the officials of the sewer district. Its existence and maintenance is necessary and essential to the development of the Industrial District.
“6. For the purpose of furnishing flood protection to the Fairfax Industrial District and to protect the city’s municipally owned water and light plant and the city owned ‘Kansas City Public Levees,’ the city of Kansas City and the Fairfax Industrial District sponsored a project in which the United States Government constructed flood protection levees and walls around the Fairfax District, including three pump houses to pump water accumulating in Fairfax District over the dikes during times of high water. Two of the pumps are located on the city owned airport. The United States Government paid for most of the cost of this project. These dikes are improvements required and necessary to keep high water of the Missouri river from flooding the area described as the Fairfax Industrial District.
“7. Prior to and at the time of the passage of City Ordinance No. 35,841, which is the ordinance in controversy in this case, the boundaries of the Fairfax Industrial District, contiguous to and touching the city of Kansas City, Kansas, are shown by the green line on the map attached to plaintiff’s petition and defendant’s answer, and also shown on Exhibit 1. The green line shown on the map begins at the letter ‘U’ in the word ‘Missouri’ in the center of the Missouri river, runs west on the second standard parallel to a point on the map marked ‘A’ thence northerly and northwesterly to a point on the map marked ‘B,’ and thence northerly, westerly and northerly to the letter ‘C’ on the map, which is a point on the Missouri river. The boundary of the Fairfax Industrial District, touching the State of Missouri, starts at the letter ‘C,’ thence northerly to the Missouri-Kansas state line in the center of the Missouri river, and runs along said state line in an easterly and southerly direction to the letter ‘U’ in the word ‘Missouri’ in the center of the Missouri river, where the second standard parallel intersects the state line, the point of beginning (Exhibit 1). The south and west boundary of the Fairfax Industrial District is the city limits of the city of Kansas City, Kansas; and the north and east boundary of the Fairfax Industrial District is the State of Missouri (Exhibit 31). The district does not touch upon, nor is it adjacent to any other city, township, or political subdivision of the State of Kansas, except the city of Kansas City (Exhibit 31).
“8. The land by said Ordinance No. 35,841, added and made a part of the city of Kansas City, was described therein as follows:
“ ‘The parts of Sections 26, 27, 34 and 35, Township 10 South, Range 25 East, in Wyandotte County, Kansas, included in the following descriptions:
“ ‘Beginning at a point where the easterly line of Fairfax Road is intersected by the Second Standard Parallel South, in Wyandotte County, Kansas; thence northwesterly and northerly along said easterly line of Fairfax Road to the south line of Sunshine Road; thence east to the easterly line of Donovan Road along the south line of Sunshine Road; thence northeasterly along the easterly line of Donovan Road to the Southerly line of Donovan Road; thence southeasterly along said southerly line of Donovan Road, and the extension of said southerly line of Donovan Road to the center line of the Missouri River; thence northeasterly, northerly, northwesterly, westerly and southwesterly along the center line of the Missouri River to a point on the extension of the east line of Fairfax Road, said point being Five Hundred Fifty-six (556.00) feet east, at right angles of the north and south center line of Section 27, Township 10, South, Range 25 East; thence south of a point on the extension of the east line of Fairfax Road, said point being One Thousand Eight Hundred Thirty-eight and Twenty-eight One-Hundreds (1,838.28) feet, more or less, north at right angles, from the east and west center line of Section 27, Township 10 South, Range 25 East; .thence south Thirty-five degrees and Twenty-seven minutes (35° 27') East Four Hundred Eighty-two and Seventy-eight One-hundredths (482.78) feet, more or less to a point; thence south Seven Hundred Seventy and One-One-hundredth (770.01) feet, more ,or less, on a straight line, parallel with the north and south center line of said Section 27; thence West Three Hundred Sixty-nine and Seventy-nine One-Hundredths (369.79) feet, more or less, on a straight line, parallel with the east and west center line of said Section 27, to the west line of Fairfax Road; thence south and southeasterly along the westerly line of Fairfax Road to the Second Standard Parallel South, in Wyandotte'County, Kansas; thence east along the Second Standard Parallel to point of beginning.’
“The tract of land described in said ordinance was the same as the area shaded in pink and shown on Exhibit 1 introduced in evidence, and outlined in red on the map attached to the plaintiff’s petition marked Exhibit B. That the portion of Sunshine Road referred to in the ordinance is now' known and referred to in this case as a portion of Donovan Road.
“9. The city of Kansas City maintains a Junior College, seven High and Junior High Schools and forty Elementary Schools. Students residing in the Fairfax Industrial District area now attend the Kansas City public schools. The Board of Education of Kansas City does not collect any tuition from the District for students. It appears that there are no students actually residing in the part of the Fairfax Industrial District annexed by Ordinance No. 35,841. Until 1929, all the land in the Fairfax Industrial area was in and a part of the Kansas City School District. Thereafter, by statute, the area was detached from the Kansas City School District. The area detached was organized into an Elementary school district No. 46 q. This district never built or maintained a school and pays for transporting students only. School taxes in District 46 q are very low, paying in 1949 only .0211 per $100.00 valuation for Elementary school tax plus .54 per $100.00 valuation for County High School tax. The privately owned property in the area annexed by Ordinance No. 35,841 will pay a much higher levy for educational purposes after annexation.
“10. The Fairfax Industrial District is an urban area and not a farming area. The district consists of, and is developed for, manufacturing plants, assembly plants, warehouse and wholesaler’s outlets, and other type of businesses requiring large substantial buildings and railroad facilities. Among the provisions stated in the warranty deeds issued by the Kansas City Industrial Land Company to industries located in the district was the following:
“ ‘Said premises shall not be used or occupied at any time for the purpose other than for the purposes of the business of manufacturing, wholesaling, jobbing, warehousing, or business of a kindred nature of the convenient and economical conduct of which adjacent railroad trackage facilities are ordinarily required.’
“11. On June 2, 1925, a plat and an accompanying description record of the plat was filed by the representatives of the Kansas City Industrial Land Company (See Exhibit 80). The plat included' much of what is now the Fairfax Industrial area and all of the land annexed by Ordinance No. 35,841. The plat was not signed by all the landowners holding title to property covered by plat. It was approved by the City Engineer of Kansas City. It was also approved by the City Planning Commission and by the Board of City Commissioners of Kansas City on May 26, 1925, before filing. It recites that ‘The Kansas City Industrial Land Company does not dedicate for public use any streets, alleys or public highways, except as indicated on this plat.’ Descriptions of various tracts owned by persons in the Fairfax District contains these words ‘less strip dedicated for road,’ and the area of the road is subtracted from the land to which tract owner holds record title.
“The description record accompanying the plat (Exhibit 80) recites that it is ‘filed with the Register of Deeds of Wyandotte County, Kansas, for the purpose of facilitating description and acreage for taxation purposes.’
“12. At the time of the preparation of the Fairfax plat (Exhibit 80) on April 1, 1925, the area platted outside the city limits consisted of 1,373.07 acres owned as follows: The Kansas City Industrial Land Company owned 1,122.85 acres; the Union Pacific Railroad Company owned 32.80 acres; eight private owners owned 72.18 acres; two railroads other than the Union Pacific owned 66.47 acres; land set aside for dedicated roads was 31.54 acres; land on which dikes were built was 57.23 acres. Since 1925, by accretions and the addition of Goose Island, 900 acres were added, 700 acres of which are part of the city’s airport (T. 523), making a total acreage area at this time of about 2,300 acres.
“13. Long prior to the passage of Ordinance No. 35,841, there were two townsites platted within the area of the entire Faifax Industrial District, and there was another referred to as Reichenecher’s Subdivision. The record does net disclose with accuracy whether any one of these was within the area de scribed in Ordinance No. 35,841. A plat with description of properties and other data was filed in the office of the Register of Deeds by the Kansas City Industrial Land Company June 2, 1925 (Exhibit 80), being recorded in Plat Book 17 at page 44, and the description of the lands and other data is recorded in the Register of Deed’s office in Record 713 at page 360; in that description where it refers to the plat which had been filed, it was stated: ‘This plat includes tracts heretofore surveyed and platted as Fairfax and Clarksdale Additions and Reichenecher’s Subdivision, which are hereby vacated and included in the plat of Fairfax Industrial District.’ What was spoken of as Reichenecher’s Subdivision was not a townsite at all, but was a plat of a farm which was partitioned in kind by an action in the District Court to divers and sundiy tenants in common, and had none of the aspects of a platting into lots and blocks. A map of the partition, marked exhibit 69 (Plaintiff’s), was introduced in evidence. No plat of the Reichenecher’s estate or of the partition of it, was ever filed in the office of the Register of Deeds. The town sites of Clarksdale and Fairfax, if not sufficiently vacated by the plat and descriptive matter referred to above, were actually vacated by an order of the Board of County Commissioners of Wyandotte County on the 7th day of May, 1928, a photostatic copy of such order being introduced in evidence as Exhibit 59, and they appear in Commissioner’s Journal 778, page 419.
“14. The land involved in the annexation ordinance consists of the municipal airport owned by Kansas City, 925.8 acres; Property owned by United States Government, 2 acres; Privately owned land 11.691 acres; Donovan Road owned by Kansas City, 3.2 acres; Roads opened by petition and view 13.1 acres; Roads dedicated by easement deed 6.2 acres; None of the annexed land, whether owned privately or by city or United States Government, and none of the highways, whether owned by the city, whether dedicated or opened by petition and view, was within the city of Kansas City before Ordinance No. 35,841 was adopted.
“The area described in the annexation ordinance is the area colored pink on Exhibit 1 and generally referred to during the hearing as ‘the pink area.’
“15. The perimeter of the Fairfax Industrial area measured along the city limits and the state line, which is the center of the Missouri river and includes approximately half of the Missouri river for the distance it borders the Fairfax Industrial District, is 40,790 feet. That the common boundary of the district and the city of Kansas City is 16,040 feet. That the distance of the state line is 24,650 feet. However, of the portion of the district actually annexed by Ordinance No. 35,841, only 82 feet touches the city limits of Kansas City, as it existed before the adoption of the annexation ordinance. This 82 feet is the width of the road, described as ‘Fairfax- Road’ where it touched the boundary of Kansas City at the Second Standard Parallel South (See Exhibit 1). At no other place does the boundary of the annexed area touch any boundary of the city of Kansas City as described in Ordinance No. 32,457, which ordinance defined the boundaries of the city before adoption of Ordinance No. 35,841, and which Ordinance No. 32,457 was repealed by the later Ordinance No. 35,841.
“16. A part of the Fairfax Industrial District has been subdivided into such lots and blocks as accommodated the needs of industrial purchasers of space in the area. Other portions of the area are being so subdivided as purchasers appear and indicate the amount and location of space that best suits the needs of the individual concern. The spaces deeded to the respective purchasers have been in each instance described by metes and bounds. Roads or streets surround the tracts deeded so that convenient ingress and egress is afforded each tract and its occupants. There is an apparent uniformity observed in the shape and pattern of the tracts disposed of to purchasers, and streets and roads laid out and opened to public travel do conform, as nearly as the contour of the land will permit, to established roads and streets in the city of Kansas City. The lots or blocks appearing on the plat filed (Exhibit 80) by the Kansas City Industrial Land Company were not described or designated by the Company by any letter or number. The numbers assigned to such lots or tracts were placed on the copy of the plat (Exhibit 70) by the County Clerk’s office to identify the tracts on the tax rolls.
“Ordinance No. 35,841 did not describe any platted lands annexed by giving the name of the addition or subdivision as platted.
“17. In subdividing the Fairfax Industrial District, the proprietor of the district, the Kansas City Industrial Land Company, has the exclusive right to determine the size of the lots or blocks or tracts so subdivided, and has been continuously, since the development of the district began, subdividing the district into such lots, blocks or tracts as the purchaser of such lots required for industries located thereon. This process of subdivision has been carried on in such a way that new roads or streets are laid out by the proprietor of the district to carry out a uniform pattern of roads and cross roads for the accommodation of the occupants and the public. These roadways or streets surround the parts of the area subdivided and are so arranged as to give easy access to all the plants and businesses located in the area and to provide ways for quick transportation to the city and to offices and other industrial areas located in the adjoining communities.
“18. The Fairfax Industrial area has surfaced roads or streets, it has sewers, water mains, there are many electric and electric power lines throughout the district, there are substantial dikes around the portion of the area bordering the Missouri river. These public improvements were made with the assistance or under the sponsorship of the city of Kansas City or the County of Wyandotte, the Fairfax Drainage District and the Kansas City Industrial Land Company. The development was, in each instance, planned and carried out with the purpose of mutually aiding the participants and the citizens of the community. The light and power lines and the water mains were installed by or under supervision of city of Kansas City and it was intended by the city to obtain sufficient customers in the Fairfax area and to charge them a sufficient price for power and water to amortize any expense of installation and to pay cost of maintenance, production, deterioration and replacement. The increased demands made on the water and electric power facilities of the city by the concerns doing business in the Industrial District have required substantial expansion and enlargement of both the water and electric power facilities of the city.
“19. Since the establishment of the Fairfax district, the Fire Department of Kansas City has furnished fire protection to the occupants of the district, and arrangements now provide for the call of the Kansas City Fire Department by automatic alarm or telephone. That large water mains have been installed with fire hydrants in the district for purpose of making available effective fire protection. The city receives hydrant rental for water mains and hydrants. While each industrial plant has its own fire fighting equipment and fire crews and supplemental water supplies, also chemicals, the city has answered a number of calls to the district and a few to industrial plants in the district, and stands ready at all times to respond to any call made by any person or concern in the district for fire fighting or proctection in that area. The expense of this service is borne by the city.
“20. Since the development of the Fairfax District began, City Police cars have regularly patroled the district. A part of this work is now carried on so that the city’s property on the airport may be properly policed and the Police had no jurisdiction or authority in the area before the annexation except at the airport. On several occasions the City Police have answered calls to the district and have effectively aided in expediting and directing the flow of congested traffic in and out of the district. The City Police Department is available at all times to persons and concerns in the district for the protection of persons and property and for the preservation of the peace.
“21. The roads connecting with roads leading out of Fairfax Industrial District connect with and are a continuation of the public streets within the city of Kansas City and the roads and streets maintained by the city give the only access to the roads and streets in the district.
“22. The city of Kansas City owns and operates the Fairfax ■ Airport at the northeast corner of the Fairfax Industrial District. It is a well equipped modern airport. There are 13 buildings located on it, part of the buildings are wood construction. The buildings and appurtenances on the airport are of great value and the business carried on in the buildings of great importance. The city has the statutory right and authority to operate this airport and protect the property there. It has the right and duty to furnish Police and Fire protection to the airport area. Public roads and streets are open and available from the city proper to the airport. The representatives of the city, including Police and Fire Departments, do not have control over all the roadwajs, but have the light with the public at large to use these public facilities for traveling to and from the airport to the city proper. These roads are congested with traffic before and after work hours. City police officers direct the traffic on the roadways for the convenience and benefit of all persons going to and coming from places of business in the district. All the expense of this police service is paid by the city.
“23. The proceedings before the Board of City Commissioners in the passage of Resolution No. 13,044 and Ordinance No. 35,841 were regular, complied with the statues applicable as to procedure, and the City Clerk notified the County Clerk and the County Superintendent of Schools, of the City’s intent to pass the annexation ordinance more than 10 days before its passage, and the notice accurately described the property sought to be annexed in metes and bounds. The regularity of the proceedings is not challenged if the same are authorized by the statute applicable.
“24. The airport statute, being Article 1, Chapter 3 of the 1947 Supp. to G. S., 1935, gives the city the same jurisdiction and police power over its airport, even though the airport is located outside the city limits, as it has over any part of the city located within the city limits. That the city has owned the airport since 1940 and has since that time had sole, exclusive jurisdiction and authority over the airport and has by its own acts and through leases with the United States Government greatly and substantially improved the airport, provided it with all utilities, exercising police protection and fire protection, and providing personnel for the management of the port, all under right and authority of law.
“25. The statutes under which the annexation proceedings were undertaken by the city of Kansas City, in adopting Resolution No. 13,044 and Ordinance No. 35,841, were Sections 13-1602 and 13-1602a of the General Statutes of 1935, which statutes provide for the annexation of land by cities of the first class having a commission form of Government and the statutes referred to had not been repealed and were in full force and effect.
“26. The Fairfax Industrial District lies between the Missouri state line, which is the center of the Missouri river and which forms generally the east and north boundaries of the district on the one hand, and the city of Kansas City, which forms roughly the west and south boundaries of the district on the other. The entire boundary of the district is approximately 40,790 feet, of which about 16,040 feet or about 40% of the total coincides with the city boundary. However, not all of the Fairfax Industrial District was annexed by Ordinance No. 35,841, but only the portion colored in pink on Exhibit 1. The total boundary, or the perimeter of this tract is 33,410 feet. The length of the western boundary is 11,550 feet, the length of its river side is 11,820 feet, this does not touch the city, and the remaining boundary is 10,040 feet. Of this remaining 10,040 feet should be subtracted 2,680 feet (the east side of Fair-fax Road), 2,106.6 feet more (the east side of the north-south portion of Donovan road), leaving as the total southern boundary of the annexed tract a distance of 5,253.4 feet of which only 82 feet touches the boundary line of Kansas City. The 82 feet of roadway cannot be considered as one side of the annexed tract. It is only the end of a stem consisting of a roadway that extends from Donovan road, south a distance of 2,680 feet (about one-half mile) to the boundary line of the city of Kansas City. This one-half mile of roadway is designated as Fairfax road, it is 80 feet wide and no part of it is platted into lots, blocks or tracts. Donovan Road, located on Exhibit 1 and identified in the testimony as such, is actually the southern boundary of the tract sought to be annexed and no part of it touches the city boundary. That at no place did two-thirds of any line of its boundary lie upon or touch the boundary line of Kansas City; that the portion of the Fairfax Industrial District sought to be annexed is not within, or mainly within the city; that the territory added to the city by the annexation ordinance does not make the boundary line of the city straight or harmonious, but on the contrary creates a tract which on the map (Exhibit 80) resembles a large, lopsided mushroom resting its stem on the edge of the city’s boundary.
“27. The description of land in Ordinance No. 35,841 carries the lines to the center of the Missouri river, i. e., to the Missouri-Kansas state boundary. Within the area described in the ordinance, the city owned by purchase the Fairfax airport of 925.785 acres; also included in the area was private property, exclusive of County roads, totalling 11,691 acres, also 2 acres owned by the United States Government; there was likewise included a total area of 22.524 acres of private, City owned, dedicated and County easement roads.
“28. Sometime in May or June, 1923, a so-called ‘gentlemen’s agreement’ was made between the then officials of Kansas City and authorized representatives of the Kansas City Industrial Land Company, by the terms of which the city officials agreed that the city would not annex or include any lands of the Fairfax Industrial District within the corporate limits of the city for a period of 10 years.
“Conclusions of Law
“1. The city of Kansas City adopted Ordinance No. 35,841 for the purpose of annexing 962 acres of land near the city. This ordinance repealed Ordinance No. 32,457 which defined the boundaries of the city on April 2, 1949, the date of the enactment of Ordinance No. 35,841, generally referred to by the parties as the ‘annexation ordinance’ for the purposes of this case.
“2. The city, in passing the annexation ordinance, acted under the authority of G. S. 13-1602 and G. S. 13-1602a, which statutes are, except for two minor parts not herein pertinent or applicable, identical in context. G. S. 13-1602 reads as follows:
“‘Annexation of adjacent territory, exception; duties of city clerk; land outside county, procedure. Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, or any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed. Said ordinance shall describe the platted lands by giving the name of the addition or subdivision as platted, and by giving the metes and bounds of the unplatted lands, with the section, township, range and county in which the same are located. In adding territory to any city, if it shall become necessary, for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does not exceed twenty acres: Provided., That lands owned by any person, association or company not exceeding twenty (20) acres in extent, and upon a portion of which a hospital is being maintained, shall not be annexed for any purpose without the consent of the owners of such land: Provided further, That before the governing body of any such city shall approve such ordinance the city clerk shall notify the county clerk and the county superintendent in writng at least ten days before approval of said ordinance of the property to be taken into such city, describing said property accurately by metes and bounds: Provided further, however, That no such land lying outside of the county in which such city or a part thereof is located may be added to or taken into such city unless petitioned therefor, or consented thereto, in writing, by the owners of a majority of the acres of land, and also by a majority of the resident landowners in the tract or parcel of land proposed to be so annexed or added to such city (L. 1927, ch. 118, sec. 1; L. 1931, ch. 120, sec. 1; L. 1933, ch. 128, sec. 1; March 3).’
“3. The proceedings of the city at the time of passage of the annexation ordinance were in all respects in compliance with the statutes under which the city purported to act, i. e., G. S. 13-1602 and 13-1602a.
“4. The Fairfax Industrial District, a portion of which was annexed by the ordinance, was located and developed to its present position because of its nearness to Kansas City, which offered the district and the industrial institutions located there the advantages necessary to insure the success of such a development, namely, a large population with sufficient supply of labor, good educational facilities, convenient location to transportation, business centers, light, power and water in abundance, roads, streets and street car services, with dikes for flood control and sewers for drainage and sanitation. The Industrial District is an urban industrial area and is in no sense a farming area. Those developing the district, by restrictive covenants in deeds to purchasers, restricted use of land to industrial purposes and intended it to become and caused it to become an urban industrial area. It is not in any sense a residential district or area.
“5. The State of Kansas, plaintiff here, challenges the validity of the annexation ordinance and claims that the statute does not authorize the city to adopt such an ordinance of annexation for the following reasons:
“(a) Tract was not at time of enactment and is not now subdivided into blocks and lots.
“(b) The tract is unplatted land and did not at the time of the enactment of the ordinance lie within or mainly within the city.
“(c) The tract exceeds 20 acres in area and in fact exceeds 900 acres in area. “(d) The said tract is not so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of the city.
“(e) Included in the area described in Section 1 of said ordinance is a narrow corridor 80 feet in width extending northward from the city limits for a distance of 2,678 feet, said corridor being a regularly established county road known as Fairfax road, and which is used and suitable for use only as a public highway. The tract described in Section 1 of the ordinance is not so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of the city, the 80 feet width of said public highway known has Fairfax road being the only point of contact with the city boundary.
“(f) Included in said tract are portions or pieces of land, the inclusion of which portions in added territory is not necessary for the purpose of making the boundary lines of the city straight or harmonious.
“While there is some indication that the city relies generally in sustaining its action on the part of G. S. 13-1602, which provides that ‘whenever any unplatted piece of land lies within (or mainly within) any city . . . (it) may be added to, taken into, or made a part of the city by ordinance duly passed,’ these findings will cover all the issues raised by the pleadings:
“(a) The first challenge of invalidity raised by the plaintiff is that the tract annexed was not, at the time of adopting the ordinance, subdivided into lots and blocks. It appears that of the 960 acres sought to be annexed, over 900 acres of it consisted of an airport obviously unplatted, more than 15 acres of roadways that were not even in a subdivided area, and that about 11 acres of the whole tract was privately owned and subdivided into tracts for the benefit of the respective private owners. The subdivision of this small area would not justify the annexation of an aerea over eighty and one-half times its size on the basis that said annexed tract had been subdivided into lots and blocks. The statute contemplates that all or substantially all of the area annexed be capable of subdivision into lots and blocks. Under this provision it is necessary that the piece of land be subdivided into lots and blocks, and no exception is made to cover the circumstances and conditions of this case where only a small fraction of the area annexed is subdivided.
“(b) The next challenge of the plaintiff is that the tract is unplatted land and did not, when the ordinance was adopted, lie within or mainly within the city. An examination of Exhibit 1 best illustrates that this challenge must be sustained. The entire Fairfax Industrial District does not lie within or mainly within the city, nor does the portion of the district sought to be annexed lie within or mainly within the city.
“The ordinance does not seek to annex the entire area, but only a smaller part shown in the color pink on the map (Exhibit 1). All of this area lies east and north of the city. On the map the distance from line B-C (the east boundary of Kansas City) east to the west line of the tract annexed is 17% inches, which means on the ground it is a distance of 7,000 feet (17%X400 feet, the scale of the map being 1 inch to 400 feet). The distance from the point ‘A’ on the map to the west line of Fairfax road is 1 inch, or 400 feet, and this is the only point at which the annexed tract touches the city at all, and then for a distance of only 82 feet. The city claims that because most of the boundary of the Fairfax Industrial District consists of the Missouri-Kansas state line, it will be impossible for the city to ever surround the Fairfax District to a greater extent than it now does and that therefore the proprietors of the district could always prevent annexation because of the peculiar geographic condition. This may be true, but the statute under which the annexation was undertaken made no exceptions in circumstances where state lines were involved, the statute did make some provisions where county lines were involved and required consent in writing of resident landowners before the city could annex areas across a county line from a city. Less than 40% of the perimeter of the Fairfax Industrial District is common with the boundary of the city. Less than 1% of the perimeter of the area annexed lies along or touches the boundary of the city, the length of the perimeter being 33,410 feet.
“(c) The next claim of the plaintiff is that ‘the tract exceeds 20 acres in area and in fact exceeds 900 acres in area.’ The claim is true. Without laboring the question raised as to roads and the title to the same, it is obvious that the tract annexed exceeds 20 acres in area. There is no claim that it does not. The city seeks to deduct from the annexed area the amount of acreage in the airport, 925.8 acres, the area of the roads, 16.3 acres, that owned by the' United States Government, 2 acres, leaving 17.891 acres of privately owned land including private roadways. The statute does not authorize this deduction. All the area annexed was outside the city limits as defined by Ordinance No. 32,457 before the annexation ordinance was passed. AH of it, the airport, roadways and privately owned tracts, taken together, exceed 960 acres in area and cannot be annexed under the provisions of the statute permitting annexation of tracts not exceeding 20 acres in area.
“(d) The plaintiff’s next claim is the tract annexed is not so situated that two-thirds of any line of boundary thereof lies upon or touches the boundary line of the city. This claim must also be sustained. At no place, save and except the 82 foot roadway at the point 400 feet east of letter ‘A’ on Exhibit 1, does the boundary of the area sought to be annexed lie upon or touch the boundary line of the city. The city’s claim that the end of Fairfax road, 82 feet in width, is a line of the annexed area and that it lies completely on the boundary line of the city cannot be sustained. Since the area annexed exceeds 20 acres, it makes little difference, but the 82 feet of roadway represents only one end of a one-half mile stem connecting the annexed area with the city. It is not truly a line of the area annexed. The south line of the area annexed is actually the road designated on the map (Exhibit 1) as ‘Donovan Road’ and which runs along the south side of the pink colored area on the map and is over one-half mile from the city’s boundary.
“(e) The foregoing conclusion (d) is decisive of the plaintiff’s next claim, namely, that the tract annexed is not so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of the city since the 80 foot width of the public highway known as Fairfax road is the only point of contact with the city boundary. From this point it is approximately one-half mile to the edge of the tract sought to be annexed. The end of a roadway 80 feet in width and one-half mile in length could not be considered a line or a boundary of the annexed area.
“(f) The plaintiff claims that the portion and pieces of land included in the territory annexed are not so annexed for the purpose of making the boundary lines of the city straight or harmonious. This claim must also be sustained. Exhibit 1 reveals that far from making the boundary line of the city straight and harmonious, a huge mushroomed shaped tract mounted on a half-mile long stem 80 feet wide, the end of which is the only point of its entire perimeter touching the original city boundary, has actually been created and annexed by the ordinance. Furthermore, the area includes a much greater acreage than the permissible 20 acres mentioned in the statute. The fact that nearly all of this acreage is already owned by the city does not alter the fact that not more than 20 acres may be taken under this part of the statute. No distinction is made by the statute permitting city owned land or roadways to be deducted in making computation to determine the acreage of the tract annexed.
“6. The proprietors of the Fairfax Industrial District and the owners of the industrial establishments there have received great benefits from the city of Kansas City. In addition to the advantage of the geographic and commercial location, the district has the benefit of and the protection from the Police Department and the Fire Department of the city, the water mains and electric power lines, together with sewers and dikes developed in conjunction with the city, the roadways and streets of the district connect with the roads and streets of the city and make the district easily accessible to those who are solicited to work and trade there. All these things essentially aided and make possible the success of the Fairfax Industrial District. The record of this case is replete with evidence of the great amount of aid and assistance and consideration that has been given by the city and its officers to the development of the district. The water works system is vital to the health and well being of all employees and persons in the district, and the electric power is essential to its industrial activity. Schools are a necessary part of any center of population and are entitled to be maintained by all those who get benefits from a close location to an organized community. A city must be expected to grow, and as it grows, the industrial part of the community may be expected to benefit from the growth and increase. Each business and each individual in a community should contribute to sustain it. A stronger case for annexation of the entire Fairfax Industrial area to the city of Kansas City could hardly be made^ out under the general annexation statute, Art. 5, Chapter 12, General Statutes of 1935.
“Under the facts and conclusions set forth, it is the opinion of the Commissioner that as a matter of law, the plaintiff has proved by the preponderance of all the evidence offered that Ordinance No. 35,841 of the city of Kansas City is not valid because the statute under which it was adopted does not give the right of annexation to the extent attempted to be exercised by the city in the ordinance, and the prayer of plaintiff’s petition should be sustained, and the Commissioner concludes, as a matter of law, that neither the defendant city, nor its officers, had. legal authority, under G. S. 1935, Secs. 13-1602 and 13-1602a, to annex the land described in its ordinance to the city of Kansas City and to have the same made a part of the city, and the city and its officers should be ousted of all authority and of all governmental control over said land.”
Following the announcement of the commissioner’s report defendant filed a motion for judgment on the findings of fact, exceptions to the commissioner’s findings of fact and conclusions of law, and a motion to modify the same in various particulars, and for additional findings, and also filed a motion for a new trial. The commissioner had a hearing on these motions, considered them and overruled them.
The commissioner filed his report with this court, together with exhibits introduced before him, and a transcript of the oral testimony. Whereupon, defendant refiled the motions which had been filed before the commissioner and plaintiff filed a motion for this court to approve the report of the commissioner and to render judgment for plaintiff thereon. The case was regularly set for hearing in this court and was heard upon the briefs and oral arguments of the parties.
In this court ■ plaintiff points out that the question before the court is the authority of the city to extend its boundaries so as to include the real property sought to be included by the ordinance in question, and that the case does not involve the authority of the city to include within its boundaries any other adjacent property. We concur in that view. Plaintiff argues that the property sought to be taken into the city by the ordinance in question is not so situated and of such character as the city is authorized by statute to take into or annex to the city by ordinance, and discusses the various subdivisions of our statute (G. S. 1935, 13-1602). Upon this point we are in general accord with the analysis made of the statute and of the ordinance in question as it relates to the statute in our commissioner’s fifth conclusion of law.
It is first argued on behalf of defendant that the court should deny in its discretion the writ of quo warranto on the ground of its being inequitable and unjust. It is true the court has a measure of discretion in quo warranto proceedings. (See, State, ex rel., v. Allen County Comm’rs, 143 Kan. 898, 57 P. 2d 450, syl. 3, and the cases collected at page 902; also, Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P. 2d 584; State, ex rel., v. Grenola Rural High School Dist., 157 Kan. 614, 142 P. 2d 695, and cases collected in the American Digest System, Quo Warranto, Key No. 6.) This is a judicial discretion. It is not to be used without reason and does not authorize a court to ignore a valid applicable statute which has been promptly invoked.
It is next argued that annexation statutes should be liberally construed in favor of the city’s power. We are in general agreement with this thought, but perhaps it would be more accurately stated that an ordinance of a city, like a statute of the legislature, is presumed to be valid. This, of course, does not prevent a judicial inquiry into its validity.
Defendant next argues that Fairfax Industrial District is a proper subject of annexation and that it lies within or mostly within the city. The contention is not important here. The ordinance in question did not attempt to annex Fairfax Industrial District to the city. It attempted to annex only a part of Fairfax Industrial District, the part specifically described in the ordinance. While there was much evidence received by our commissioner pertaining to the Fairfax Industrial District as a whole its only purpose was to show the general situation and the history of the development of the district. These are the only purposes for which such evidence can be considered here. We must necessarily limit our decision to the authority of the city to annex the particular property described in the ordinance, in view of our statute (G. S. 1935, 13-1602) under which the city acted.
Defendant argues the city may annex one part of the area under one provision of G. S. 1935, 13-1602, and another under another provision of the same law by one ordinance. The point is well taken. This court so ruled in State, ex rel., v. Kansas City, 122 Kan. 311, at pages 322 and 323, 252 Pac. 714, but we do not see the applicability of this principle of law in this case.
Defendant argues the Fairfax airport, containing 925 acres, was by G. S. 1947 Supp. 3-123, fully made a part of the city before the ordinance in question was passed. The point is not well taken. The statute reads as follows:
“All such municipalities so operating airports or municipal aviation fields jointly are hereby granted the same rights, privileges and immunities, and are charged with the same obligations, responsibilities and duties toward such airports and flying fields located outside of the municipal limits of any municipality as now exist for any property now located within the limits of any municipality, including the right of eminent domain.”
This is one section of our statute (ch. 3, art. 1, 1947 Supp.) pertaining to municipal airports and fields. It authorizes the governing body of the city to acquire an airfield “within or without the city limits” by purchase, lease, or otherwise, and to equip, improve, operate and maintain such an airfield, and by section 3-118 a city of the first class may acquire an additional airport “within or without the city limits.” Other sections provide for joint ownership of an airport by a city and county, or by two or more municipalities. We see nothing in any provision of the statute in question which brings within the corporate limits of a city an airport which it has acquired and which is situated outside of the corporate limits of the city. This contention of defendant appears to be an afterthought. Certainly at the time the ordinance in question was adopted by the city the 925 acres of the airport were not regarded as being or within the corporate limits of the city. Had it been so considered there would have been no purpose of including it within the ordinance.
Defendant argues that a declaratory judgment is not proper to be considered in this case. That point is well taken. The points upon which plaintiff seeks a declaratory judgment are interpretations of statutes or other legal principles as they apply to this ordinance in question. Similar questions are presented in practically every case and do not call for invoking the provisions of our declaratory judgment statutes (G. S. 1935, 60-3127 to 60-3132).
Lastly, defendant argues that its motion for judgment on findings of fact should be sustained; that exceptions of defendant to certain findings and conclusions are well taken, and that defendant’s request for further findings are well taken. These contentions require an examination of all the testimony and exhibits and the argument of counsel thereon. We have taken the time to read the transcript of testimony, examine all the exhibits, and have considered all of the arguments of counsel. To restate our findings and conclusions thereon would be to state what our commissioner has already done, perhaps in somewhat different phraseology. It is sufficient to say that we are satisfied with the findings of fact and conclusions of law made by our commissioner and approve the same in every respect except in one minor detail, namely the last sentence of conclusion of law No. 6, which reads:
“A stronger case for annexation of the entire Fairfax Industrial area to the city of Kansas City could hardly be made out under the general annexation statute, Art. 5, Chapter 12, General Statutes of 1935.”
We delete that for two reasons: First, our decision must be limited to the authority of the city to pass the ordinance in question, which described only a portion of “the entire Fairfax Industrial area.” Second, the statute referred to by our commissioner (G. S. 1935, 12-501 to 12-502b) outlines an entirely different procedure from that followed by defendant in this case. We prefer to'decide questions pertaining to the annexation of the entire Fairfax industrial area under the statute referred to if and when such a case is presented to us.
By leave of court counsel for Quindaro township, in which the Fairfax Industrial District is situated, filed a brief amici curiae in support of plaintiff’s petition for quo warranto, upon the ground that if the ordinance in question is sustained the township will lose a substantial amount of taxes needed for the maintenance of township roads and other’purposes. Under similar procedure counsel for the four rural high schools of Wyandotte county filed a similar 'brief upon the ground that the schools would lose money now raised by taxes upon the property the Fairfax Industrial District needed for the maintenance of the schools. In that part of the Fairfax Industrial District south and east of the property described in Ordinance No. 35,841 and in that part of the district to the west of such property there are situated a number of valuable industrial properties, while in the area described by the ordinance there is but a small part of privately owned property subject to taxation. In computing their loss of taxes counsel in both briefs computed the taxes as now collected from all of the privately owned property in the Fairfax Industrial District. If any taxes should be considered here it should be only that portion collected from the privately owned property situated within the boundaries of the ordinance in question. Passing that thought, the statute (G. S. 1935, 13-1602), under which defendent proceeded, makes no specific reference to further consideration of taxes which might be assessed and collected by townships and school districts upon property which may be added to a city. The statute does require the governing body of the city, before it approved the ordinance, to notify the county clerk and the county superintendent in writing at least ten days before approval of the ordinance. Our commissioner found that was done. That provision of the statute was intended to give the county clerk and the county superintendent an opportunity to present to the governing body of the city any information they thought proper and any objections they desired to make because of the effect the ordinance would have upon local taxing districts. These are matters which go to the prudence and advisability of the approval of the ordinance of the governing body of the city. In addition to these reasons it may be said to be fundamental that the enlargement of the boundaries of the city will have some effect upon taxes of the township and of school districts, and possibly on the local governmental divisions, and the law appears to be well settled that, except as knowledge and consideration of those matters should be considered by the governing body of the city in determining whether the ordinance should be approved, they do not constitute legal objections to the annexation. That changes of boundaries may result in changes in burdens of taxation does not make the proceeding one for taking private property of the inhabitants. The proceeding is not one for the direct imposition of taxes, but is political; the matter of taxes is merely an incident that follows, as it is in much that is done legislatively.
Counsel for plaintiff and counsel amici curiae criticize defendant for having proceeded “ex parte” under G. S. 1935, 13-1602. The criticism is not justified. To the extent this statute authorized an ex parte procedure it is sufficient to say the legislature provided it.
It is well settled that the creation of municipal corporations and the fixing or modification of their boundaries are legislative functions to be performed by the legislative branch of the government. In the absence of a constitutional provision limiting the authority of the legislature in that respect the legislature has the authority to create municipal corporations, modify their boundaries by increasing dr decreasing them, or disorganize the municipalities, as the legislature may deem beneficial. Where there are constitutional limitations upon the legislature in those respects those limitations must be complied with.
The pertinent portions of our constitution (art. 12, § 1) read: “The legislature shall pass no special act conferring corporate powers. . . .” and §5: “Provision shall be made by general law for the organization of cities, towns and villages.” Early in the history of our state it was held that these provisions of our constitution apply to municipal corporations. (See, Atchison v, Bartholow, 4 Kan. 124, 141 to 148; City of Wyandotte v. Wood, 5 Kan. 603.) These decisions have been followed.
G. S. 1935, 13-1601 in part reads:
“The corporate limits of any city shall remain as they now are and until changed by ordinance, as herein provided. . .
A section tantamount to this pertaining to cities of the first class has been in our statutes since 1868. (See ch. 18, sec. 3, Gen. Stat. 1868.) So, in order to extend its boundaries the defendant city had to find authority in the statutes. It seeks to justify the ordinance here in question by the next succeeding section of the statute (13-1602).
The evidence and the report of our commissioner have taken a wide range and much more might be written. But when we limit our decision, as we must, to the validity of Ordinance No. 35,841, we think it clear that the defendant city had no authority under our statute (G. S. 1935, 13-1602) to enact the ordinance.
The result is judgment must be rendered for plaintiff that the ordinance is invalid.
It is so ordered. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This action involved the relative liability of the parties arising from a collision of two trucks about six miles south of Newton on U. S. Highway No. 81. One of the trucks was owned by a partnership doing business as Graves Truck Service. It consisted of a White tractor and an Omaha Standard semitrailer equipped for the hauling of livestock. It was empty and its total weight was about 16,000 .pounds. It was being driven by Victor Gardinier, an employee of the Graves Truck Service, and engaged in its business. The insurance carrier was the Hawkeye Casualty Company of Iowa. The other truck was owned by W. E, Ruppelius of Winfield, doing business as the Winfield Transfer and Storage Company. It had a Chevrolet tractor with a Fruehauf semitrailer, was loaded with furniture, and its weight was about 28,000 pounds. It was being driven by Enoch R. Stamper, an employee of Ruppelius and engaged in his business. The insurance carrier was the National Mutual Casualty Company of Oklahoma. The owners of the respective trucks, had proper certificates, for the hauling of freight. The collision occurred about 4:30 a. m., October 26, 1946. At the place of the collision U. S. Highway 81 is a paved four-lane highway. The two east lanes are for northbound traffic and the two west lanes are for southbound traffic. They are separated by an unpaved strip about five feet wide. Both of the trucks involved were traveling north. The Ruppelius truck, traveling ahead of the Graves truck, had stopped on the highway without lights or-flares and was struck by the Graves truck, the right front portion of the Graves truck striking the left rear portion of the loaded trailer of the Ruppelius truck, with the result that Stamper was so injured that he died while being taken to a hospital, Gardinier was seriously injured, and both trucks were damaged.
Stamper was a resident of Cowley county. Martin E. Jarvis was duly appointed administrator of his estate and he brought an action for the wrongful death of Stamper against the Hawkeye Casualty Company in the district court of Harvey county, where the collision occurred. This was removed to the federal court, where ,a trial resulted in judgment for-plaintiff, but a motion for a new trial was granted because of erroneous instructions.
In the meantime, and on January 24, 1947, the Graves Truck Service filed an action in the district court of Saline county against the National Mutual Casualty Company' and Ruppelius for the damages to its truck, and on the same date Gardinier brought an action in the same court against the same defendants for personal injuries. Each of these actions was predicated upon the alleged negligence of the defendants and of Stamper. On February 18,1947, Ruppelius brought an action in ’the district court of Cowley county against the Graves Truck Service, their insurer, the Hawkeye Casualty Company, and Gardinier, their driver, for damages to his truck and contents, predicated upon the alleged negligence of' the defendants in that action. Naturally, the question arose as to whether the claims of the respective parties should be tried out in both courts or in only one of them. That controversy reached this court in Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945, and it was held that since the Saline county actions were first filed the entire matter should be tried out in that court. Following that decision the court in Saline county made an order that all the other parties interested should plead by answer and cross petition in the action brought in that court by the Graves Truck Service. Whereupon Graves Truck Service filed an amended petition, in which Jarvis, administrator, was named as one of the defendants. Gardinier dismissed the action he had brought in Saline county and filed his answer and cross petition in the case which had been brought by the Graves Truck Service, in which he sought damages for personal injuries against the defendants named in the Graves Truck Service action. Jarvis, as administrator of the estate of Stamper, dismissed his action in the federal court and filed an answer and cross petition in the suit brought by the Graves Truck Service in the Saline county court for the alleged wrongful death of Stamper. Ruppelius dismissed his action in the district court of Cowley county and filed an answer and cross petition in the suit brought by the Graves Truck Service in Saline county, in which he sought damages as in his original petition in Cowley county. Without detailing'the pleadings it may be said that by cross petitions, answers and replies the issues were joined as between Graves Truck Service and Gardinier on the one side, seeking damages - against Ruppelius, his insurer, and Jarvis, as administrator; while the cross petitioners, Ruppelius and Jarvis, as administrator, on the other side, were seeking damages against the Graves Truck Service, its insurer, and Gardinier. When the case was called for trial counsel for the plaintiffs, Graves Truck Service and Gardinier, stated that they were not asking any judgment against Jarvis, as administrator, which would be a claim against the assets of Stamper’s estate; that they were looking for recovery against the insurer of Ruppelius.
The case proceeded to trial, with the result that the jury returned a verdict in favor of the Graves Truck Service and against Ruppelius, his insurer, and Jarvis, administrator, for $3,500 and a separate verdict in favor of Gardinier and against the same defendants in the sum of $5,000. The jury also answered special questions as follows:
“Q. 1: Was it practical for Stamper to have parked said truck on the shoulder adjoining the slab on the east and completely off of the paved highway? A.: Yes.
“Q. 2: Was any fusee, warning light or flare placed by Stamper beside or at any distance in the rear of the Winfield Transfer and Storage Company truck while said truck was stopped or left standing on the pavement? A.: No.
“Q. 3: Were there any lights burning on the rear of the Winfield Transfer and Storage Company truck at the time of said collision? A.: No.
“Q. 4: If you answer the foregoing question in the affirmative, at what distance south of the Winfield Transfer and Storage Company truck could a driver ascertain that said truck was stopped and not moving? A.: (No Answer).
“Q. 5: Do you find that Stamper was guilty of any negligence which caused or contributed to the accident? A.: Yes.
"Q. 6: If you answer the foregoing question in the affirmative, then state of what the negligence of Stamper consisted. A:. Improper Parking.
“Q. 7:- Do you find that Victor Gardinier was guilty of any negligence which caused or contributed to the accident? A.: No.
“Q. 8: If you answer the foregoing question in the affirmative, then state of what such negligence consisted. A.: None.
“Q. 9: Was the driver of the Graves truck tired and sleepy at the time of the collision? A.: No.
“Q. 10: State the distance the Graves truck was from the Ruppelius truck when Gardinier, the driver of the Graves truck, first observed the Ruppelius truck. A.: Appro. 70' feet.
“Q. 11: At the time of the collision, had Gardinier gone without sleep for a period of twenty-two hours? A.: No.
“Q. 12: Was the highway straight and practically level for a distance of 300 feet or more immediately south of the point of collision? A.: Yes.
“Q. 13: At what speed was the Graves truck traveling at the time of the collision? A.: 40 Miles.
“Q. 14: How far ahead of the Graves truck could its driver, Gardinier, see persons and vehicles with the bright lights of the Graves truck turned on? A. 500 feet.
“Q. 15: How far ahead of the Graves truck could its driver, Gardinier, see persons and vehicles with the dim lights of the Graves truck turned on? A. 125 feet.
“Q. 16: How many feet south of the point of collision was it to the top of the rise which some of the witnesses referred to as the crest of the hill? A. 1500 feet.
“Q. 17: Did Gardinier, the driver of the Graves truck, put on his dim lights at the top of the rise which some of the witnesses referred to as the crest of the hill? A.: Yes.
“Q. 18: If you answer the preceding question ‘Yes,’ then state if the driver of the Graves truck, Gardinier, continued to drive with his lights dim until he collided with the Ruppelius truck? A. Yes.
“Q. 19: If your answer to the preceding question is ‘No,’ then state how far the Graves truck was from the rear end of the Winfield trailer when he turned his lights on bright. A. (No Answer).
“Q. 20: Just prior to the collision was Gardinier driving at a rate of speed greater than was reasonable and prudent under the conditions then existing? A. No.
“Q. 21: At the time of the collision was Gardinier driving at such a rate of speed that he could not stop within the range of vision provided by his headlights? A. No.
“Q. 22: Was Gardinier driving the Graves truck at the time of the collision at such a rate of speed that he could not stop or turn aside to avoid hitting the Winfield trailer after he saw the same ahead of him? A. Yes.
“Q. 23: Was Gardinier keeping a proper lookout for vehicles ahead of him on the highway just prior to the collision? A. Yes.
“Q. 24: At the time of the collision did Gardinier have the Graves truck and trailer under proper control? A. Yes.
“Q. 25: Were the headlights on the Graves truck, being driven by Gardinier, so adjusted prior to the collision that Gardinier could stop the Graves truck within the distance that persons or vehicles ahead of him on the highway were disclosed by his headlights? A. Yes.
“Q. 26: Did the Graves truck and trailer, at the time of the.collision, have a gross weight in excess of five thousand pounds? A. Yes.”
Ruppelius, the National Mutual Casualty Company, and Jarvis, as administrator, filed separate motions to set aside the answers of the jury to certain of the special questions, also for judgment in their favor notwithstanding the general verdict, and also a motion for a new trial. These motions were all considered by the court and overruled and the court rendered judgment in harmony with the verdict. Ruppelius, his insurer, and Jarvis, administrator, have appealed.
Appellants joined in the abstract and briefs, also the appellees joined in the counter abstract and-briefs. They'will be referred to as appellants or appellees except when there is some occasion to name, a specific party. . •
Appellants contend the district court of Saline county had no jurisdiction to entertain a suit against Jarvis, administrator of the estate of Stamper, pending in the probate court of Cowley county; that the probate court of Cowley county had exclusive original jurisdiction to entertain claims against that estate. We think this principle has no application in the situation shown by the record in this case. Under our wrongful death statute (G. S. 1935, 60-3203) the administrator may sue for the wrongful death of the deceased for the benefit of the next of kin. If recovery is had the sum received by the administrator does not go into the personal estate of the decedent, but is distributed to the next of kin. Here the administrator first brought such an action in the district court of Harvey county, with results previously noted. When the Graves-Truck Service and Gardinier first filed their actions in the district court of Saline county they did not make Jarvis, administrator, defendant. After our former decision (164 Kan. 267, 188 P. 2d 945), previously noted, and the venue for the trial of all claims growing out of the collision of the trucks was determined to be in Saline county, the Graves Truck Service filed an amended petition in which it named as defendants all other' parties, including Jarvis, administrator, claiming damages as a result of the collision. Jarvis appeared in the action and filed an answer to plaintiffs’ petition, consisting of a general denial, and filed a cross petition in which he set up a claim fbr damages for the alleged wrongful death of Stamper and sought recovery for the next of kin — not to enlarge the assets of the estate. He made no objection to the jurisdiction of the court. At the beginning of the trial counsel for appellees stated that they were seeking no judgment against Jarvis, administrator, to be paid from the estate of Stamper. Certainly the court had jurisdiction for the trial of the claim of Jarvis, administrator, under this cross petition. That jurisdiction, if the evidence would have warranted it, would have authorized a judgment in favor of Jarvis, administrator, for the benefit of the next of kin of Stamper; and also, if the evidence would not have justified such a recovery, would have authorized judgment against Jarvis, administrator, for the next of kin of Stamper. The National Mutual Casualty Company, the insurer of Ruppelius, was a party to the action. Its policy of insurance had been set up in the pleadings and was shown in the evidence. Its liability was limited'to $5,000 for the injury or death of one person. Gardinier’s cross petition first asked for damages in the sum of $10,000, but at some time while the trial'was in progress, or prior thereto, that had been amended so that Gardinier was asking for damages in the sum of $5,000 'only. That is the amount of the verdict- returned for Gardinier, hence in the verdict for Gardinier there was no excess above the amount of the liability of the insurer that could be charged against the estate of Stamper. We regard the verdict in favor of appellees and against Jarvis, administrator, as amounting to no more than a denial of the relief sought by Jarvis.
At the close of appellees’ evidence the appellants demurred thereto upon the ground that it showed Gardinier to be guilty of contributory negligence as a matter of law. The demurrers were overruled. Appellants complain of that ruling. Briefly stated, the evidence disclosed the following facts: The collision occurred at a low place in the pavement near two cement culverts, not far apart. To the south there was an upgrade for about 1,500 feet, also to the north for perhaps 600 feet. Stamper was an experienced truck driver, employed by Ruppelius, who had him leave Winfield about five o’clock p. m. on October 25, with a truckload of furniture to be delivered in McPherson. His route took him through Wichita and north- on U. S. 81. Apparently when he got to the place of the collision he stopped with his truck on the pavement instead of pulling it- out on the shoulder to the east, which was twelve feet wide, and without putting out lights or flares. Gardinier was a truck driver for Graves -Truck Service. He left Salina, driving a truck for them, the evening of October 25 with a truckload of eighteen head of éáttlé'Ro be taken to the Wichita stockyards. His truck was equipped with Westinghouse air brakes, which were in good working order.' It was'-well lighted and the driving lights were good. He had delivered -the cattle and was starting to drive back to Salina. When he got to- the-'crest on the highway about 1,500 feet south of the point of collision he met an oil transport truck going'south. It had bright lights, which the 'driver -dimmed, ’and Gardinier dimmed his lights. Not far behind it was a car with very bright .lights which partially blinded Gardiniér, who kept his lights dimmed'.' He did not see any lights on the'Ruppelius truck. There'wfere* nd flares out or- lights of any kind about itv He testified that after hr' passed the car with the bright lights:'
“I was so close to this other rig or this other truck that I couldn’t see him, make out what it was, just like a big shadow, and I didn’t have time to turn or stop. I set my air brakes and turned to miss, but that’s the last I remember. I was hit and got my injuries.”
That is about all the direct evidence there is about how the trucks collided. The Ruppelius truck was pushed forward about 84 feet. The truck Gardinier was driving went forward about 102 feet and stopped to the left of the other truck. Shortly thereafter — the exact time is not shown — a truck driver, driving south, heard a man “hollering” over toward one of the stopped trucks. He stopped his truck on the shoulder to the west of the pavement and went over to the nearest truck and found a man, who later proved to be Gardinier, fastened in some way under the front part of the tractor of the truck Gardinier had been driving. With truck jacks and the help of others he got the man out and laid him on the pavement by the side of the truck. Other passersby, who had stopped for a moment, went on to a telephone and called the sheriff at Newton. Perhaps other calls were made. Within perhaps twenty minutes an ambulance was there, also the sheriff’s force and highway patrolmen. In the meantime the persons there looked for the man who had been in the other truck and found Stamper about 20 feet back of his truck, lying on the shoulder east of the pavement, with a blanket over him. Just how he got there is not disclosed. Presumably someone passing earlier than the truckers observed him in the highway and placed him there, and covered him. He was alive, but obviously seriously injured. He and Gardinier were taken to Newton in an ambulance. Stamper died before they reached the hospital. Witnesses who were about the scene soon after the collision saw no lights on the Ruppelius truck, or flares or fusees either way from it. Many photographs were taken and officers and others made their deductions as to how the collision occurred and gave testimony. We think the question of the contributory negligence of Gardinier was proper to be submitted to the jury.
Appellants contend that their motions for judgment on the answers to the special questions notwithstanding the general verdict should have been sustained. The rule is well settled that upon such a motion the answers to the special questions should be harmonized with each other and with the general verdict, if that can reasonably be done. In such a case the general verdict is set aside only when the answers to the special questions compel that result. Appellants lay great stress on the answer to question No. 22 to the effect that Gardinier at the time of the collision was driving at such a rate of speed that he could not stop or turn aside without hitting the Ruppelius trailer after he saw it ahead of him. There was no reason for Gardinier to anticipate a truck standing on the highway without lights or flares having been put out. The court so told the jury in an instruction, which was not objected to. In the light of that and the answers to other questions we think it would have been improper for the court to have set aside the general verdict.
Appellants contend the court erred in not granting their motions for a new trial. Under that head they complain that the court did not give all the instructions requested. An examination of that question discloses that the court gave most of the instructions requested and those not given are not essential to the decision. The real question in such a case is whether the instructions given are proper and sufficient. Studying that matter, we think they were. Appellants complain of instruction No. 31. This was to the effect that one confronted with an emergency is not held to the same high degree of care as one who is not in that situation. Appellants contend the instruction was improper because an emergency was not pleaded in plaintiff’s petition. It is true that word was not used, but the facts showing the emergency were alleged. Complaint is made of instruction No. 19 to the effect that if Stamper was guilty of any. negligence which caused or directly contributed to the collision the appellants would not be entitled to recover. Instruction No. 20 given was the same as applied to Gardinier and the appellees; hence, if there was any error in one of the instructions it applied equally to the other. We think instruction No. 19 contained no reversible error.
Appellants contend the court erred in submitting special question No. 2 to the jury for the reason there was no evidence to support it. The point it not well taken. They also contend the court erred in not sustaining their respective motions to strike the answers returned by the jury to a number of the special questions upon the ground they were not sustained by the evidence or were contrary to the evidence. We have examined these contentions and find them to be without substantial merit. They further contend the answers to the special questions were so inconsistent with each other as to require a new trial. Examining this contention we find it not to be well taken. Lastly, appellants argue that the general verdicts and the answers to certain special questions were given under the in fluence of passion and prejudice. We find nothing in the record to sustain this view. Certainly no passion or prejudice was reflected in the amounts of the verdicts. If the verdict for Graves Truck Service had been for a thousand dollars more than it was there was evidence which would have sustained it. There is no suggestion that the verdict for Gardinier was excessive. He was seriously injured, with resulting damages thoroughly established by the evidence. There is no serious contention that Stamper was not negligent in stopping his truck on the pavement, without lights thereon or flares or fusees put out, unless there was some reasonable excuse therefor. Excuses were suggested by appellants. Whether they were sufficient were questions of fact. Upon the record before'us the jury’s findings of fact, approved by the trial court, are binding here.
We find no error in the record. The judgment .of the trial court is affirmed. ; | [
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The opinion of the court was delivered by
Harvey, C. J.:
These consolidated appeals are from judgments of the district court, which upon review of an interim order of the State Corporation Commission fixing a minimum price of eight cents per thousand feet at the wellhead for natural gas taken from the Hugoton gas field, found the same lawful and reasonable and directed their enforcement.
What is commonly spoken of as the Hugoton gas field is approximately sixty miles long and forty miles wide, covering parts of several counties situated in the southwest corner of Kansas and extending south across Texas county, Oklahoma, and into one or more counties of northern Texas. We are concerned here with only that part of the Hugoton gas field which is in Kansas. It is said to be the largest known reservoir of natural gas and is found at a depth of from about 2,600 to 2,900 feet in a porous formation about fifty feet thick. It was discovered near Hugoton in 1922, but it was not until about 1929 that its possibilities for domestic and industrial purposes had been fully realized. At the time of the hearing before the commission about 1,000 wells had been drilled and pipe lines had been laid to convey the gas to many cities and communities in Kansas and also in Colorado, Nebraska and states north, as far as Minneapolis, and east to cities in Michigan and points between. Several million feet of natural gas per day were being taken from the wells. The supply was greatly in excess of the market demands. Many of the producers had not been able to market their gas through any of the pipe lines. Prices being paid to producers varied from four to eight cents per thousand cubic feet. There was really no open market for it — the producers had to accept what the pipe line companies would offer to pay.
On February 6, 1948, the Southwest Kansas Royalty Owners Association, a nonprofit corporation composed of about 1,200 members and eighteen individuals, each the owner of mineral interests in real property in the Hugoton gas field, filed a petition with the corporation commission which alleged that under the land owned by the petitioners and others is the natural gas reservoir and source of supply known as the Hugoton gas field, which constitutes a natural resource which should be conserved and the waste of which should be prohibited by the commission, and stated particulars not necessary to be noted here in view of an amended petition in which it was alleged that preventable waste existed. The petition was received and given docket No. 35,154-C (C-1868 Conservation Division). Each of the appellants here intervened and filed a written protest, and the Cities Service Gas Company filed a motion to dismiss. After due notice to all interested parties a pretrial hearing was had July 19 and 20,1948, of oral and written arguments as to the legal questions involved, including jurisdiction of the commission, during which the petitioners were given leave to file an amended petition, and a date was fixed for the hearing of evidence, the commission reserving its ruling upon the legal questions. The amended petition was filed August 4,1948. Hearings were had from October 18 through the 22d and December 18 through the 15th, at which evidence was offered. On February 18, 1949, the commission filed its interim order, which sufficiently sets forth the questions presented by the amended petition and the ruling of the commission thereon, the pertinent portions of which are as follows:
The interim order recited the consideration of the evidence and the arguments and briefs of counsel, the filing of the petition and amended petition, and stated that the petitions, as amended, “requested that the commission:
“(a) Institute an investigation into the issues raised by the Amended Petition,
“(b) Establish a uniform minimum price at which gas may be taken out of the producing structures in the Hugoton Field in Kansas of not less than 1"0£ per M. C. F.,
“(c) Require all purchasers and takers of gas in and from the Hugoton Field to take ratably from each completed well in the field,
“(d) Establish atmospheric pressure as the base for measurement of the natural gas taken from the Hugoton Field.”
Paragraph 2 recites the hearings and notices therefor, and
“At the conclusion of these proceedings, all of the questions of fact and of law were taken under advisement by the Commission.
“3. Gas Conservation Rule 82-2-201 of this Commission is state-wide in its application. Among other terms, it defines ‘Gas, Cubic Foot’ as the volume of gas required to fill one cubic foot of space at a temperature of 60 degrees Fahrenheit and under an absolute pressure of 16.4 pounds. To provide for a different pressure base in the Hugoton Basic Order would require amendment of this state-wide rule. These proceedings, notices as applicable only to the Kansas Hugoton Field, are not competent to affect an amendment to a statewide rule or regulation. The Commission, having so limited this inquiry, is without jurisdiction here to establish a pressure base differing from the base set forth in the above noted Gas Conservation Rule. However, issues fairly raised in this proceeding make it appear to the Commission that an investigation on a state-wide basis should be initiated to determine whether Rule 82-2-201 should be amended and the Commission is this day entering its order in Docket No. 34780-C (C-1825) instituting such an investigation.
“4. The Commission has jurisdiction and authority to determine the value of gas at the wellhead in the Kansas Hugoton Field and to require that no gas may be taken out of the producing structures unless the takers of such gas attribute such value to the gas for purposes of payment to the producer, landowner, lease-holder, or royalty owner, and to fix a minimum wellhead price at which natural gas may be taken from the Kansas Hugoton Field, when such determination and requirement or fixing of price is a necessary or appropriate means of giving effect to the intent and purpose of the statutes relating to the production and conservation of natural gas (G. S., 1947 Supp., 55-701 to 55-713, incl.) . . .
“5. The record in this proceeding does not explore fully all the factors which the Commission deems i-t necessary to consider in arriving at a final determination as to the value of gas at the well-head in the Kansas Hugoton Field or as to what minimum wellhead price should be fixed for the sale of natural gas. To secure the further information it requires, the Commission is this date, on its own motion, entering its order instituting an investigation in Docket No. C-164. However, undisputed evidence now before the Commission in this record establishes that in order to give effect to all the intents and purposes of the statutes relating to production and conservation of natural gas, it is necessary and appropriate for the Commission to determine, pending completion of the investigation today instituted in Docket No. C-164, that the fair and reasonable value of natural gas at the wellhead in the Hugoton Field is at least eight cents per thousand cubic feet, and that the taking of gas out of the field without attributing such value thereto for purposes of payment to the producers, landowners and royalty owners is not conducive to the fulfillment of the intents and purposes of the statute relating to the production and conservation of natural gas and should be prevented. ■
“6. No person, firm or corporation taking gas from the Hugoton Field should take or cause such gas to be taken out of the producing structures or formations thereof without attributing thereto for purposes of payment to the producers, landowners, leaseowners and royalty owners a fair and reasonable value at 'the well-head of at least eight cents per thousand cubic feet of gas.”
Paragraph 7 pertains to the keeping of books of gas taken from the field and provides:
“Pending completion of the investigation in Docket No. C-164 instituted today, which investigation may result in modification of the determination of the value of gas, . . .”
It further provides that those taking the gas should be required to make actual payments of the differences to the persons entitled thereto, or deposit or impound the funds in their own treasury or give bond for such payment.
“8. It is not established in the record now considered that ratable-taking within the meaning of the statutes above referred to is not being accomplished. It Ijas been strongly urged by the applicants herein that the Basic Order for the Kansas Hugoton Field does not require purchasers within that field to take rat-ably from each developed well. The Commission’s desire to fulfill completely the purpose and intent of the laws relating to the production and conservation of natural gas prompts it to explore more fully the conditions and circumstances related to applicants’ contentions. It is, therefore, entering its order in Docket No. C-164 instituting an investigation to determine whether the Basic Prora tion Order, applicable to the Hugoton Field, should be amended to further insure ratable-taking within the meaning of the gas conservation laws.
“It Is, Therefore, by the Commission Ordered: That from and after the effective date of this order and until the further order of the Commission in this docket or in Docket No. C-164 following or in the course of the investigation today instituted:
“1. No person, firm or corporation taking gas from the Hugoton Field shall take or cause such gas to be taken out of the producing structures or formations thereof without attributing thereto for purposes of payment to the producers, landowners, leaseowners and royalty owners a fair and reasonable value at the wellhead of not less than eight cents per thousand cubic feet. . . .
“4. This order shall take effect and be enforced from and after 12:01 A.M., March 1, 1949, and shall remain in force and effect until the further order of this Commission.
“The Commission hereby retains jurisdiction of this cause and of the subject -matter and the parties hereto for such other and further orders as the circumstances may require.”
On the date the commission filed its interim order in docket No. 35,154-C (C-1868) it made an order in docket No. C-164 by which it determined, on the commission’s own motion, that an investigation should be instituted to develop and explore all the facts and circumstances pertinent to a determination of the value of gas at the wellhead in the Kansas Hugoton gas field and as to what minimum wellhead price should be fixed for the sale of such gas, hearings pursuant to such investigation to be held upon proper notice at such times and places as the commission might order.
On February 23, 1949, the commission filed its memorandum opinion, setting out its reason for making the interim order. This included a history of the proceeding, of our legislative history relating to the production and conservation of natural gas, and the history of the development of the Hugoton gas field, and found authority for its interim order in our statute (G. S. 1947 Supp. 55-701 to 55-713). The commission on the same date issued an order in docket No. C-164 by which, on its own motion, it instituted an investigation, with hearings to be held thereon after due notice, for the purpose of determining whether existing orders, rules and regulations were sufficient in scope to .require ratable taking from each and every well in the field, and whether, under existing orders, rules and regulations, it was necesary to make amendments, alterations and changes therein for the protection of correlative rights, conservation of natural gas, orderly development of the field, ratable taking, and for such other purposes as might be deemed necessary. On the same date the commission, on its own motion, made an order in docket No. 34,780-C (C-1825) for further consideration of the unit of measurement known as “Gas Cubic Foot," defined in rule 82-2-201 of the general rules and regulations for the conservation of crude oil and natural gas.
Each of the appellants filed a motion for rehearing, which motions were considered by the commission and overruled. Whereupon the appellants filed their respective actions for judicial review of the interim order of the commission by the district court, as provided in G. S. 1947 Supp. 55-606, as authorized by 55-707. These actions were heard together by the district court on September 12 and 13,1949, and taken under advisement by the court. On September 24, 1949, the district court made its findings and judgment in each of the actions as follows. The court found:
“1. That the Interim Order entered by the State Corporation Commission of the State of Kansas, one of the defendants herein, in its Docket. 35154-C (C-1868) on the 18th day of February, 1949, was a lawful and reasonable order.
“2. That said Interim Order here before this court on a petition for review under G. S. 1947 Supp., 55-707, should be upheld and sustained.
“It Is Therefore by the Court Ordered, Adjudged and Decreed that said Interim Order entered by The State Corporation Commission of the State of Kansas, one of the defendants herein, in its Docket 35154-C (C-1868) on the 18th day of February, 1949, be and the same is hereby upheld and sustained. That the costs of review in this court be assessed to the plaintiff.
“Ray H. Calihan, District Judge.”
Each of the plaintiffs filed a motion for a new trial in the district court, which was considered by the court and overruled, and each of them timely appealed to this court, where the cases were consolidated for hearing.
We turn now to the consideration of the legal questions presented. Appellants contend that since they are engaged in the business of transporting natural gas in interstate commerce they are governed wholly by the Federal Natural Gas Act of June 21, 1938 (Ch. 556, 52 Stat. 821, 15 U. S. C. A., § 717). This is “AN ACT To regulate the transportation and sale of natural gas in interstate commerce, and for other purposes.” It first declares the “necessity for regulation of natural-gas companies,” contains a declaration of policy, and specifies the application of its provisions with exemptions thereto. The pertinent portions read:
“Section 1. (a) As disclosed in reports of the Federal Trade Commission made pursuant to S. Res. 83 (Seventieth Congress, first session) and other reports made pursuant to the authority of Congress, it is hereby declared that the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest, and that Federal regula tion in matters relating to the transportation of natural gas and the sale thereof in interstate and foreign commerce is necessary in the public interest.
“(b) The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” (Emphasis supplied.)
The question appears to have been settled in Federal Power Com’n v. Panhandle Eastern Pipe Line Co., 172 F. 2d 57. There Panhandle (the appellant here in No. 37,924) in September, 1948, organized the Hugoton Producing Company, transferred to it gas leases on 97,000 acres of land in the Hugoton gas field in Kansas reserving the option to purchase gas produced therefrom after a date named, paid Hugoton $675,000 in cash and took back from it all of its outstanding capital stock, which it undertook to distribute in dividends to its stockholders. The Federal Power Commission sued to enjoin the transfer because its approval of the transaction had not been obtained. From an adverse decision in the district court it appealed. The United States Circuit Court of Appeals, third circuit, affirmed, and in the opinion (by Goodrich) used the following language:
“The controversy here arises out of the statute known as the Natural Gas Act passed in 1938. That statute by its first section declares that federal regulation in the matters of transportation of natural gas and the sale thereof in interstate and foreign commerce is necessary in the public interest. There is no doubt that Panhandle is transporting and selling natural gas in interstate commerce and that under section 1 of the Act such transportation and sale by the company are subject to its provisions. The last sentence of the first section of the statute, however, carves out from the subject matter to be regulated a very important exception. The words are: ‘. . . but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of the natural gas.’. 15 U. S. C. A. § 717 (b). . . .
“That there is a connection between the handling of matters in a local gas field and interstate transportation and sale of gas cannot be denied. No doubt Congress could have gone much further than it did in fixing the scope of federal regulation. But it clearly and intentionally drew a line short of where it could have gone.”
On certiorari this was affirmed in Federal Power Com’n v. Panhandle Co., 337 U. S. 498, 69 S. Ct. 1251, 93 L. Ed. 1499 where it was held:
“1. Section 1 (b) of the Natural Gas Act, excluding 'the production or gathering of natural gas’ from the Commission’s jurisdiction, left the transfer of gas leases to state regulation and outside the scope of the Commission’s regulatory powers. Pp. 502-505.”
In the opinion (pp. 509-513) it was said:
“The legislative history of this Act is replete with evidence of the care taken by Congress to keep the power over the production and gathering of gas within the states. This probably occurred because the state legislatures, in the interests of conservation, had delegated broad and elaborate power to their regulatory bodies over all aspects of producing gas. (See, for example, Kansas Gen. Stat. §§ 55-701 to 55-713 (1947) Supp.); Mich. Stat. Ann., c. 97, §§ 13.138 (1)-13.140 (10) Supp. 1947); Okla. Stat. Ann., tit. 52, c. 3, §§ 81-247; Texas Rev. Civ. Stat., tit. 102, Art. 6008 et seq. (Vernon, 1925, with Supp. 1948); La. Gen. Stat. §§ 4766-4826.2) The Natural Gas Act was designed to supplement state power and to produce a harmonious and comprehensive regulation of the industry. Neither state nor federal regulatory body was to encroach upon the jurisdiction of the other. Congress enacted this Act after full consideration of the problems of production and distribution. It considered the state interests as well as the national interest. It had both producers and consumers in mind. Legislative adjustments were made to reconcile the conflicting views.”
These deccisions have not been set aside or modified. From them and from the statute itself it is clear that the Federal Natural Gas Act has no application to intrastate transportation or sale of natural gas, or to its local distribution, or to its production, or gathering. Certainly it was not designed to limit or destroy the authority of states in which natural gas is found to conserve natural gas and to prevent waste in its production, gathering, distribution or sale. . Congress made it clear such a result would not follow, and in doing so took cognizance of the specific Kansas statute here involved and of statutes of other states designed to conserve natural gas and to prevent waste in its production, gathering, distribution or sale.
Appellants contend the legislature has not given the commission authority to fix a wellhead price for natural gas. We wish to make it clear that appellants do not contend the state has no authority to fix such a price when it deems such action necessary to conserve natural gas, by a direct act of the legislature, or by an act specifically authorizing the commission to do so. Indeed, we interpret their position as conceding the state has such authority. .Hence, there is no purpose or necessity in discussing such authority here. We do no more than refer to the fact that as early as 1904, in La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448, it was held:
“The production and distribution of natural gas for light, fuel and power is a business of a public nature, the control of which belongs to the state.”
That doctrine has inhered in our subsequent statutes and decisions.
Our first statute dealing specifically with “the production and conservation of natural gas” was enacted in 1935 (Ch. 213, Laws 1935) and was embodied in our General Statutes of 1935 as sections 55-701 to 55-711. The statute was rewritten in 1945 (Ch. 233, Laws 1945) and now appears in G. S. 1947 Supp. as sections 55-701 to 55-713. The pertinent portions of the statute may be quoted or summarized as follows:
“That the production of natural gas in the state of Kansas in such manner and under such conditions and for such purposes as to constitute waste is hereby prohibited. (G. S. 1947 Supp. 55-701.)
“That the term ‘waste’ as herein used, in addition to its ordinary meaning, shall include economic waste, underground waste and surface waste. Economic waste as used in this act, shall mean the use of natural gas in any manner or process except for efficient light, fuel, carbon black manufacturing and repressuring, or for chemical or other processes by which such gas is efficiently converted into a solid or a liquid substance. The term ‘common source of supply’ wherever used in this act, shall include that portion lying within this state of any gas reservoir lying partly within and partly without this state. The term ‘commission’ as used herein shall mean the state corporation commission of the state of Kansas, its successors, or such other commission or board as may hereafter be vested with jurisdiction over the subject matter of this act. (G. S. 1947 Supp. 55-702.)
“That whenever the available production of natural gas from any common source of-supply is in excess of the market demands for such gas from such common source of supply, or whenever the market demands for natural gas from any common source of supply can be fulfilled only by the production of natural gas therefrom under conditions constituting waste as herein defined, or whenever the commission finds and determines that the orderly development of, and production of natural gas from, any common source of supply requires the exercise of its jurisdiction, then any person, firm or corporation having the right to produce natural gas therefrom, may produce only such portion of all the natural gas that may be currently produced without waste and to satisfy the market demands, as will permit each developed lease to ultimately produce approximately the amount of gas underlying such developed lease and currently produce proportionately with other developed leases in said common source of supply without uncompensated cognizable drainage between separately-owned, developed leases or parts thereof. The commission shall so regulate the taking of natural gas from any and all such common sources of supply within the state as to prevent the inequitable or unfair taking from such common source of supply by any person, firm or corporation and to prevent unreasonable discrimination in favor of or against any producer in any such common source of supply. . . . (G. S. 1947 Supp. 55-703.)
“The commission shall promulgate such rules and regulations as may be necessary for the prevention of waste as defined by this act, the protection of all water, oil or gas-bearing strata encountered in any well drilled in such common source of supply, ascertaining the several factors entering into the determination of the productive capacity of each well, the total productive capacity of all wells in the common source of supply, the establishment of such other standard or standards as the commission may find proper to determine the productive capacity of each well and of all wells in such common source of supply, and as the commission may find necessary and proper to carry out the spirit and purpose of this act: . . (G. S. 1947 Supp. 55-704.)
Other provisions of the statute pertain to procedure and other details which are not in question.
The dominant purpose of this statute is to prohibit waste of natural gas in Kansas, not only in the manner and under the conditions of its production, but for such purposes as would constitute waste. In order that the term “waste” should not be narrowly construed the statute makes it clear that it is to include economic, underground and surface waste, and the term “economic waste” is defined. These provisions were for the purpose, if necessary, of expanding the meaning of the term “waste” and not for the purpose of limiting such meaning. The statute also deals with the rights of owners of property under which there is a common source of supply of natural gas. We think the statute is broad enough to authorize the commission to make any rule or order to prohibit waste of natural gas, upon proper application made to it, if the evidence discloses waste in the manner or conditions or purpose of its production. It is true the statute did not specifically authorize the commission to fix a wellhead minimum price to be paid for gas produced. It did not forbid the commission to do so if and when the evidence disclosed the fixing of such price would tend to prevent waste and the inequitable and unfair taking of gas from a common source of supply. Hence, the legal question presented by appellants, that the statute did not authorize the commission to make the interim order complained of, is not well taken.
We shall not attempt a detailed recital of the evidence upon which the commission apparently relied in fixing a minimum wellhead price of eight cents per thousand cubic feet of gas to be taken from the Hugoton field. The testimony is lengthy and explained or illustrated by numerous maps, charts and tables of figures. The witnesses who testified upon the subject were well educated along those lines and had years of experience in the production and marketing of gas and economics as applied thereto, and were outstanding writers upon that subject. Their qualifications were not questioned, neither was there any contention that any of them in any way was biased or prejudiced. They gave it as their judgment that one of the best ways to conserve gas and prevent waste in the Hugoton gas field is to fix a minimum wellhead price for gas. The lowest figure stated by any of them was eight cents per thousand cubic feet. Others put the minimum figure higher. This evidence was not contradicted by the appellants. They appear to have presented their defense before the commission and the trial court, and their appeal here is upon legal questions and not upon questions of fact. We think the commission was justified in finding upon the evidence before it that to prevent waste of gas in the Hugoton field a minimum wellhead price of eight cents per thousand cubic feet was justified, and that the trial court correctly found the order of the commission in this respect to be reasonable. We take note of the fact that the commission did not regard this as a final order. The order was made upon the evidence then before the commission, which on its own motion transferred the matter to docket No. C-164 for further study.
Appellants contend the order of the commission constitutes a special law, being limited solely to the Kansas Hugoton gas field, and therefore violates section 17, article 2, of our constitution, which reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the Constitution shall be construed and determined by the courts of the state.”
This provision of our constitution was intended to apply to laws enacted by the state legislature. Appellants contend it has been held to apply to any law purporting to be made by public authority and cite some authorities from other jurisdictions tending to support that view. No case in Kansas is cited as supporting that view under our constitution. But we need not decide that question here. The court takes judicial notice of the fact that the Hugoton gas field in Kansas differs in many respects from any other gas field in the state. We think the order is not void because it applies only to the Hugoton gas field.
Appellants contend the order contravenes the interstate compact to conserve oil and gas (G. S. 1935, 55-803 to 55-808 inch) as extended. The point is not well taken. The declared purpose of the compact, as stated in Article II thereof, is “to conserve oil and gas by the prevention of physical waste thereof from any cause.” And in Article III, after listing six particulars in which the states joining in the compact agreed to enact laws or to continue them in force for the prevention of waste, contains this language: “The enumeration of the foregoing subjects shall not limit the scope of the authority of any state.” We see nothing in the compact that would prevent our state from enacting the statutes under which the commission operated.
Appellants contend the interim order complained of violates their existing contracts for the purchase of gas. The point is not well taken. Appellants obtain the gas which they pass through their pipe lines in one of two ways — by purchase or by production. The standard form gas purchase contract used by the appellants in the Hugoton gas field contains this clause: ■ .
"Contract subject to present and future orders, rules and regulations of duly constituted authorities having jurisdiction.”
By this the parties anticipated modification of the contract by a duly constituted authority having jurisdiction. Under our previous holdings herein the corporation commission is such a body. The appellants get some of the gas from wells under ordinary gas leases with the owners of real property. These leases do not attempt to fix any price for the lessor’s royalty. The pertinent provision in the lease reads:
“The lessee shall monthly pay lessor as' royalty on gas marketed from each well where gas only is found, one-eighth (Vs) of the proceeds if sold at the well, or if marketed by lessee off the leased premises, then one-eighth (%) of its market value at the well.”
The result is the appellants have no prior contracts which will be violated by the order complained of here.
Other points argued by the appellants have been considered and found to be without substantial merit.
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The opinion of the court'was delivered by
Kaul, J.:
These appeals are from convictions in separate cases which were consolidated for trial in the district court of Sedgwick County. The appeals have been consolidated for hearing in this court and we shall refer to them in the singular.
Defendant’s principal ground for reversel is that consolidation of the cases, under the circumstances shown to exist, amounted to prejudicial error.
The two cases having been tried together over the timely protest of defendant, our inquiry on appellate review is whether the record indicates sufficient possibility of prejudice by reason of such consolidation for trial as to require reversal. We believe it does.
In district court case No. CR5282, which was docketed in this court on appeal as No. 45,773, defendant was charged with second degree burglary and larceny in connection therewith (K. S. A. 21-520 [now 1970 Supp. 21-3715, 21-3716], and K.S.A. 21-524 [repealed L. 1969, Ch. 180, Sec. 21-4710, effective July 1, 1970]); three counts of forgery in the second degree (K.S.A. 21-608 [now 1970 Supp. 21-3710, 21-3711]); and three counts of uttering in the second degree (K.S.A. 21-609 [now 1970 Supp. 21-3710, 21-3711]). Defendant was convicted on all of the counts enumerated.
In district court case No. CR5283, which was docketed in this court on appeal as No. 45,774, defendant was charged with first degree murder for the killing of one Jerry Dean Faidley while in the commission of a felony, under (K. S. A. 21-401 [now 1970 Supp. 21-3401]); robbery in the first degree (K.S.A. 21-527 [now 1970 Supp. 21-3427]); and unlawful possession of a pistol (K.S.A. 21-2611 [now 1970 Supp. 21-4204]). Defendant was convicted on all three counts charged in CR5283. The jury assessed the penalty of life imprisonment on the charge of murder in the first degree.
For convenience the two cases will be referred to as the forgery case and the murder case.
Defendant filed a motion for a new trial which was overruled.
The district court imposed life imprisonment on the conviction of first degree murder and sentences on each of the other nine counts, directing that they be served concurrent with each other, but consecutive with the life imprisonment sentence on the murder conviction.
The charges stem from a series of events which occurred during the last week of July and the first five days of August 1968.
About 1:30 a. m. on August 5, 1968, Patrolman Doyle Dyer, of the Wichita Police Department, was performing routine patrolling (checking buildings and cars) in the neighborhood of First and St. Francis Streets, in the downtown area of the city. He noticed a “colored male,” later identified as defendant, walking west on the south side of First Street, approximately one-half block west of Hydraulic Avenue. Officer Dyer drove around the block and again noticed the same subject; Dyer pulled over to the curb and asked defendant his name, defendant answered “Tommy Johnson.” Dyer then asked defendant to have a seat in the patrol car. Defendant sat in the front seat beside Dyer, the dome light was on. In answer to questions asked by Dyer, defendant stated “that he’d just left the Starlite Club” and, he was going to the bus station to get something to eat. At this point an automobile pulled up along the side of Dyer’s car and Dyer testified—
“. . . they probably wanted my services for something so I told the subject I had with me to-or that he was free to go, and at this time the Falcon pulled up beside of me and there was one white man and a woman and the man who was driving the car stated that there was an officer standing by 1st and Hydraulic and that somebody had been badly beaten.”
Dyer stated that defendant got out of the automobile and went south on Pennsylvania. Dyer then proceeded to First and Hydraulic where he met Officer Carl Pope. The two officers investigated a “dark green ’56 Pontiac, two door,” which was setting in the intersection of First and Hydraulic. They found a body “sitting in the passenger’s side of the front seat.” The body was later identified as that of Jerry Dean Faidley. The officers found a bullet hole in Faidley’s head, determined that he was probably dead, and called for assistance from the Police Department. They were unable to find identification on the body of Faidley.
The automobile in which Faidley’s body was found was discovered by Walter R. Rutherford, who was employed by the Central Rureau of Investigation. He saw Faidley’s automobile in the intersection of First and Hydraulic and on inspection found Faidley sitting in the front seat “with his head back over the top of the seat.” Rutherford asked a passerby to notify the Wichita Police and Dyer and Pope arrived soon thereafter.
Investigation of the Faidley automobile revealed fingerprints on a whiskey bottle and on the left hand door glass, which proved to be those of defendant.
Several witnesses saw defendant and Faidley together at the Starlite Club. One witness testified they left the Club together about 12:30 a. m. on August 5.
On August 6, 1968, a search party combed the area around First and Hydraulic. The searchers found a billfold belonging to Faidley and a number of cards and pictures scattered about, which were identified as Faidley’s. Further investigation led to the discovery of defendant’s fingerprints on a pop bottle and on a pistol, found in a locker at the bus terminal. Comparison of test bullets fired from the pistol, with the death bullet removed from Faidley’s brain, indicated that the death bullet could have been fired from the pistol, but no definite conclusion was made by the examining expert.
Concerning the burglary, forgery and uttering charges in case No. 45,773, the state’s evidence established that credit cards were stolen from the automobile of William D. Sadler while it was parked in a parking lot on July 25, 1968. There was further evidence that the office of Don D. Rutherford Company, Inc., was burglarized on July 31, 1968, printed checks of one Bessie Webb, dictating equipment, company checks, two antique pistols, and a paymaster check protector were taken in the burglary. Checks forged on the Bessie Webb printed check forms, presented for cashing by defendant with Sadler’s credit cards as identification, served as a basis for the forgery, uttering and burglary charges.
Defendant was arrested during the afternoon of August 5, 1968, at Henry’s Inc., in downtown Wichita, where he was attempting to cash a check, which had been stolen in the Rutherford burglary on July 31, 1968, on which he had forged the signatures of Bessie Webb as payer and that of William D. Sadler as endorsee.
Two separate complaints were filed against defendant. Counsel was appointed and a preliminary hearing was had in each case. After informations were filed in the district court the state moved that the two cases be consolidated for trial. The defendant objected and the trial court took the matter under advisement. When the trial court announced its ruling sustaining the state’s motion, the defendant renewed his objection.
Defendant contends the state’s proposal to consolidate was intended to prejudice the defendant’s defense to the robbery and murder charge by showing the prior and unconnected offenses of forgery, uttering and burglary.
Defendant claims the prejudice resulting from the erroneous consolidation was compounded because the trial court failed to instruct the jury that the evidence pertaining to the forgery case should be limited to only that case and as a result the jury was left free to convict defendant of murder because he was a forger.
Defendant says the offenses charged in the two informations were not of the same general character, the two cases did not require the same mode of trial; that the evidence of guilt in the hands of the state in the forgery case was documented and overwhelming, while the evidence in the murder case was mostly circumstantial; and that there was no real overlapping of evidence in the two cases. Defendant further points out that the same kind of punishment was not involved — that an extensive voir dire examination concerning capital punishment was necessary in the murder case, while capital punishment was not involved in the forgery case.
Defendant asserts the consolidation of the two cases far exceeded acceptable guidelines for joinder and consolidation established by this court.
Defendant does not challenge the joinder of the separate offenses within the respective informations. He attacks only the consolidation of the two cases for trial.
In this connection it should be noted there is no distinction in the application of rules governing joinder of offenses within an information and those pertaining to consolidation of informations for trial. (State v. Anderson, 202 Kan. 52, 446 P. 2d 844; and State v. Browning, 182 Kan. 244, 320 P. 2d 844.)
It has long been the rule in this jurisdiction that where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses are of the same general character, requiring the same mode of trial, the same kind of evidence and the same land of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time. (State v. Anderson, supra; and State v. Jones, 202 Kan. 31, 446 P. 2d 851, and cases cited therein.)
In the case at bar the state’s evidence concerning the forgery case established that on July 25, 1968, credit cards owned by Sadler were stolen from his automobile. On July 31 printed checks of Bessie Webb and a check protector were taken in the Rutherford burglary. On August 1, 1968, defendant at different times cashed two checks at the Grove IGA Store. The checks were drawn on the Bessie Webb check forms, payable to William D. Sadler. Defendant used Sadler’s credit cards as identification in cashing the checks. Defendant was photographed while cashing the checks and was also identified by store employees. On August 5, 1968, defendant was arrested at Henry’s Inc., while attempting to cash a check in a manner similar to that used at the Grove IGA Store. None of the witnesses called by the state to establish the forgery and uttering offenses knew anything about the Faidley murder. The documentary and physical evidence pertaining to the forgery case was not in anyway related to, or connected with the evidence of the Faidley murder. The Rutherford burglary was established by Rutherford’s testimony and circumstantial evidence.
The seven counts in the forgery case were clearly connected and the evidence was interrelated. Joinder of the seven counts in the forgery case was not only proper but necessary to prevent a bar of prosecution under K. S. A. 62-1449 [now 1970 Supp. 21-3108]. However, we fail to see how any of the forgery evidence would tend to prove or relate to the state’s murder case, which was based on defendant’s robbery of Faidley. There is no evidence that Faidley had anything to do with the forgeries or the Rutherford burglary. There is no showing that any of the forgery evidence was necessary to prove the murder charge.
Under the circumstances related, we believe consolidation of the two cases for trial over defendant’s objection amounted to prejudicial error.
Testing the offenses consolidated here, against the standards referred to, it cannot be said that murder and forgery are of the same general character; nor is the same kind of punishment required. As we have already observed, the murder evidence was totally unrelated to the forgery evidence — the evidence establishing one offense was no proof of any element of the other offense. The murder evidence was largely circumstantial, while that of forgery was documentary and eyewitness testimony. Except for police officers, who investigated aspects of both cases, the witnesses were separate and distinct with respect to each case.
We find none of the guidelines for consolidation present in this case. This is not to say that all criteria must be present in order to join charges of two or more crimes in separate counts of one information or to consolidate informations for trial. Felonies, whether they be of the same or similar character, may be joined where the crimes charged are based on the same act or transaction, or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. (State v. Brown, 181 Kan. 375, 312 P. 2d 832, and cases cited therein.) If offenses of forgery and murder fall within any of these criteria, dissimilarity in character of the two crimes, standing alone, would not bar joinder or consolidation thereof.
In the instant case the alleged acts of defendant in committing the burglary and forgeries are not shown to be connected in anyway with his alleged acts in committing the alleged robbery and murder of Faidley; nor is there any showing that the respective acts were any part of a common scheme or plan.
We call attention to the fact that what was essentially the prior case law in this jurisdiction, governing joinder of offenses in one information and consolidation for trial of separate informations, has now been codified in K. S. A. 1970 Supp. 22-3202 and 22-3203.
The state expresses fear that prosecution of the second case to be tried would be barred by the provisions of 62-1449, supra.
The subject matter of 62-1449 is clearly jeopardy. (State v. McCarther, 198 Kan. 48, 422 P. 2d 1012; and State v. Momb, 154 Kan. 435, 119 P. 2d 544.)
This court, in considering the statute [62-1449] in State v. Momb, supra, stated:
“There can be no doubt concerning the fact that the statute deals with jeopardy. It clearly was intended to supplement the existing law upon that subject in some manner. The tide to the act clearly says so. . . .” (p. 440.)
In considering the import of 62-1449, in McCarther we said:
“Identity of offenses is universally declared to be an indispensable ingredient of jeopardy. (State v. Ragan, 123 Kan. 399, 256 Pac. 169; 22 C. J. S., Criminal Law, § 278 [1], pp. 713-719.) In State v. Schmidt, 92 Kan. 457, 140 Pac. 843, we said:
“ ‘. . . In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses. . . .’ (p. 459.)” (p. 51.)
There is no showing here that the evidence in either case would identify any offense charged in the other. We believe the state is unduly alarmed concerning the effect of 62-1449, supra.
Even though the trial court’s order of consolidation is said to be an abuse of discretion, defendant still has the burden of showing prejudice that requires a reversal. Defendant says that since his defense to the murder charge was that the shooting was accidental, he was compelled to take the witness stand to explain the circumstances. As a result, defendant states he was forced to admit the forgery and uttering charges (he denied any participation in the Rutherford burglary), and thus was put in the position of sub mitting, as an admitted forger, his defense of accidental shooting in the murder case. He claims this circumstance destroyed any possibility that the jury would give credence to his claim that the shooting of Faidley was accidental. Whether the jury would have believed defendant’s description of the shooting, absent the influence of the forgery admissions by defendant, is not for us to decide. It must be conceded the jury may have been unduly influenced, particularly in the absence of any instruction in this regard.
We believe defendant has shown prejudice sufficient to require a new trial. Prejudice has consistently been held to occur when joinder or consolidation embarrasses or confounds an accused in making his defense. (Pointer v. United States, 151 U. S. 396, 38 L. Ed. 208, 14 S. Ct. 410; McElroy v. United States, 164 U. S. 76, 41 L. Ed. 355, 17 S. Ct. 31; Gregory v. United States [District of Columbia Circuit, 1966], 369 F 2d 185; Cross v. United States [District of Columbia Circuit, 1964], 335 F. 2d 987; Meade v. State [Fla. 1956], 85 So. 2d 613, 59 A. L. R. 2d 835.)
Defendant makes one further assignment of error which we believe should be considered.
In a pretrial motion, defendant requested funds for the hiring of a psychiatrist to examine defendant while under the influence of drugs. As previously noted, defendant’s defense to the murder charge was that the shooting was accidental. The funds sought by defendant were not to be used for an examination to determine defendant’s sanity, either at the time of the offense or at the time of trial. The examination was to be used in an attempt to corroborate defendant’s story through the subconscious exploration of defendant’s mind by psychiatric examination, while defendant was under the influence of drugs. In other words, it appears the purpose of defendant in seeking the funds was to hire an expert or experts to hear defendant’s statement while under the influence of a drug, and then hopefully to come into court and testify that in their opinion defendant’s story was true.
Defendant concedes that at the time of trial there was no specific statutory authorization to supply funds for the purpose intended. Nonetheless, defendant argues he was not afforded a due process fair trial under the principles enumerated in Roberts v. LaVallee, 389 U. S. 40, 19 L. Ed. 2d 41, 88 S. Ct. 194. Defendant further points out that funds for such purposes are now authorized under the provisions of K. S. A. 1969 Supp. 62-3108 (now appearing as K.S.A. 1970 Supp. 22-4508).
Under our decision in the recent case of State v. Chase, 206 Kan. 352, 480 P. 2d 62, the evidence in the form of expert testimony, which defendant sought to procure by the use of the funds requested, would have been inadmissible for the purpose stated. Thus, defendant’s indigency was a matter of no consequence. We find no abuse of discretion in the trial court’s ruling.
The viewpoint of this court, in this regard, is in line with prevailing authorities. The general rule is stated in 29 Am. Jur. 2d, Evidence, § 831:
“. . . Truth serum tests occupy much the same position as lie detector tests, and no court has as yet recognized the admissibility of the results of such tests, at least for the purpose of proving the truth of the matter asserted, . . .” (pp. 923, 924.)
Since new trials are necessary, we need not consider and pass upon other assignments of error.
The judgments are reversed with directions to grant separate trials. | [
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The opinion of the court was delivered by
Wertz, J.:
Appellant filed its petition in the district court of Butler county on March 31, 1949, and on the same day caused summonses to be issued to defendant Black, Sivalls & Bryson, Inc., of Oklahoma City, Okla., and delivered to the secretary of state to serve; to defendants American Automobile Insurance Company and American Automobile Fire Insurance Company, both of St. Louis, Mo., and delivered to the state commissioner of insurance to serve; and to defendant Lloyd G. Mouser, of McPherson, and delivered to the sheriff of McPherson county to serve. Returns were duly made by the commissioner of insurance on April 1 and by the secretary of state on April 2 showing service of the summonses by forwarding certified copies thereof to the two insurance companies and to the Black company. Return was made on April 1 by the deputy sheriff of McPherson county showing service on defendant Mouser by leaving at his usual place of residence. All defendants appeared specially and filed motions to quash the service. Black, Sivalls & Bryson, Inc., based its motion to quash on the grounds that the pur ported and pretended summons issued for them (1) was not directed to the secretary of state, and (2) did not require them to answer by a certain day not less than forty .days nor more than sixty days from its date. The motions to quash filed by the two insurance companies were based on the grounds that the purported and pretended summonses issued for each of them were not directed to the state commissioner of insurance, and did not require each of them to answer by a certain day not less than forty days from the dates thereof. Defendant Mouser’s motion to quash was based on the ground that he was not a resident of Butler county, Kansas, and none of his co-defendants had been summoned in that county, and that his service of summons was made in McPherson county. Defendant Mouser’s motion was filed May 2, and the other defendants’ motions were filed May 12. On July 8, appellant filed a motion to amend the summonses. Hearing was had on the motions on July 8, appellees appearing specially for the purposes of the motions to quash only. The court after hearing the arguments, sustained the motions to quash, and thereafter overruled appellant’s motion to amend. This appeal is from those rulings.
The first question for decision in this appeal is whether the court erred in sustaining the motions to quash. None of the defendants were residents of Butler county, where the action was brought, and the service on Mouser was not good unless valid service had been obtained on at least one of his codefendants (see G. S. 1935, 60-509: “Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned”; also see Hembrow v. Winsor, 94 Kan. 1, 145 Pac. 837). The other defendants were foreign corporations, two of them insurance companies, doing business in this state. Following are quotations of pertinent parts of the statutes governing service of summons upon such corporations: G. S. 1935, 17-504:
“An action against a [foreign] corporation . . . doing business in this state may be brought in the county where the cause of action arose or in which the plaintiff may reside. The summons shall be directed to the secretary of state, and shall require the defendant to answer by a certain day, not less than forty days nor more than sixty days from its date. Said summons shall be forthwith forwarded by the clerk of the court to the secretary of state, who shall immediately forward a copy thereof to the secretary of the corporation sued; and thereupon the secretary of state shall make return of said summons to the court whence it issued . .
G. S. 1935, 40-218:
“Every [foreign] insurance company [authorized to] . . . transact business in this state . . . shall file in the insurance department its written consent . . . that actions may be commenced against such company . . . in the proper court of any 'county in this state in which the cause of action shall arise or in which the plaintiff may reside by the service of process on the commissioner of insurance of this state . . . The summons . . . shall be directed to the commissioner of insurance, and shall require the defendant to answer by a certain day, not less than forty days from its date. Such summons, and a certified copy of the petition shall be forthwith forwarded by the clerk of the court to the commissioner of insurance, who shall immediately forward a copy of the summons and the certified copy of the petition to the secretary of the company . . . thereupon the commissioner of insurance shall make return of the summons to the court from whence its issued
In any action, it is essential that the trial court have jurisdiction not only over the subject matter thereof, but of the parties to the action. Jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by the statute or by voluntary appearance, and this statutory method is exclusive of any other method of service. (U. P. Rly. Co. v. Pillsbury, 29 Kan. 652; Bradley v. Harwi, 2 Kan. Ap. 272, 275, 42 Pac. 411; Porter v. Trapp,, 160 Kan. 662, 664, 165 P. 2d 591.)
In the instant case, jurisdiction over the defendant corporations could be acquired only by serving them with process in the manner prescribed by statute, namely to serve Black, Sivalls and Bryson, Inc., by directing the summons to the secretary of state, and requiring the defendant company to answer by a certain day, not less than forty days nor more than sixty days from its date, and to serve the two insurance companies by summonses directed to the commissioner of insurance, and requiring the defendant companies to answer by a certain day, not less than forty days from the date of their summonses. Failure to comply with these statutory requirements renders the attempted service on defendants void. (Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682; Insurance Co. v. Hall, 1 Kan. Ap. 43, 41 Pac. 69.) Neither did their special appearance bring them into court for any other purpose than to object to the jurisdiction of the Butler district court.
The district court, having sustained defendants’ motions to quash the service of summonses, was without jurisdiction to proceed further in the matter.
In view of our conclusion that the service was void, the motions to quash were properly sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The present appeals arise out of an action which was a sequel to Welch v. Shepherd, 165 Kan. 394, 196 P. 2d 235, decided July 10, 1948.
On May 6, 1949, the plaintiff filed her action against the defendants. On June 17, 1949, the defendants filed their motion for additional time to plead and, apparently on the same day, the plaintiff filed her motion for judgment because defendants were in default of any pleading. On June 18, 1949, the trial court made its order giving the defendants thirty days in which to plead. On September 13,1949, the trial court made its order denying plaintiff’s motion and that defendants should file their demurrers instanter; that was done and on the same day the trial court heard argument on the demurrers and made its order overruling the demurrer of the defendant Shepherd and sustaining the demurrers of the remaining defendants. On September 23,1949, the defendant Shepherd served his notice of appeal, which bears No. 37,885, and specifies as error the adverse ruling on his demurrer. On October 27, 1949, the plaintiff served her notice of appeal, which bears No. 37,913, from the order overruling her motion for judgment and from the ruling adverse to her on the demurrer of the defendants other than Shepherd.
The two appeals were consolidated for hearing in this court and will be treated together. For clarity the parties will be referred to as they appeared in the trial court.
Before proceeding to the rulings on the demurrers we note the following: The plaintiff specifies as error the denial by the trial court of her motion for judgment on the ground defendants were in default. Assuming such a ruling is appealable, she presents no argument thereon and the specification will be treated as abandoned. In her brief, plaintiff devotes some space to a discussion that under the facts of this case the officers and employees of the city may not be defended in this action by the city attorney and his assistants. Again assuming such a matter is presently appealable, there is no specification of error predicated on any ruling the court may have made and the matter is not properly before us.
A review of the rulings on the demurrers requires examination of the petition. In her petition plaintiff alleged that defendant Swaney was a police matron of the City of Wichita; that defendant Shepherd was chief of police, and that the other defendants were members of the police force, and that Shepherd as chief of police had full supervisory powers and was responsible for the acts of the other defendants as police officers and that all of the defendants were responsible and participated in the acts later mentioned; that on May 6, 1947, at about 3:30 a. m. defendant Adams arrested plaintiff on view and without a warrant on a charge of being drunk and.having possession of intoxicating liquor and that she was held in custody until she was conditionally released as the result of the order of this court in the first case noted herein; that she gave bond in accordance with our order and that at no time after her arrest was she brought before any court on any charges, nor permitted to make bail except as stated and that on July 10, 1948, she was granted an absolute release by reason of our decision of that date. She further alleged that after her arrest the next regular session of the police court in Wichita was held at 8:30 a. m. on the day of her arrest, then follows this paragraph:
“Plaintiff alleges that, because she refused to do and respond in the manner most pleasing to the defendants, the defendants physically mishandled her; verbally abused her, and conspired to and did discipline and punish her illegally by lodging against her the so-called ‘vag. and interne’.” (No previous or other allegation refers to this charge.) “This was done by the illegal request of the defendants, directed to the Public Health Officer of the City of Wichita, Dr. J. E. Wolfe, to make an order under the cloak of his authority that this plaintiff be held in custody until she would submit to a physical examination. Dr. J. E, Wolfe complied with this request of the defendants. On this pretext of compliance with the aforesaid order, the plaintiff was not brought to trial nor was she allowed to be out on bond by these defendants, all of which was without any legal justification or excuse, and was done maliciously, with the intent to intimidate said plaintiff to submission to an invasion of her rights.”
The remaining allegations are that the defendants have threatened to resume prosecution of plaintiff and by reason thereof she has remained outside of Wichita, and that she has suffered damages for loss of wages, expenses of attorneys in procuring her release and other costs incidental to the prosecution of actions for her release; that by reason thereof she has suffered damages for pain and suffering and punitive damages, for all of which she prayed.
The defendants’ demurrers were on the ground that the petition did not state facts sufficient to constitute a cause of action, and the rulings thereon have been heretofore mentioned. The record as abstracted does not disclose, nor in the briefs is there any comment with respect thereto, why the trial court concluded a cause of action was stated against the defendant Shepherd, but not against the other defendants.
The gist of the plaintiff’s contentions that the trial court erred in sustaining the demurrers of the defendants other than Shepherd, is that her petition alleged a cause of action for abuse of process and that the concerted action of all of the defendants made them jointly and severally liable for the acts of which she complains, and in support she states there are numerous cases wherein public officers have abused process placed in their charge and consequently have been held liable and she directs attention to Ahring v. White, 156 Kan. 60, 131 P. 2d 699, which was an action for malicious pros ecution, and not for abuse of process, and is not in point, and to McClenny v. Inverarity, 80 Kan. 569, 103 Pac. 82, and Wurmser v. Stone, 1 Kan. App. 131, 40 Pac. 993, which were actions for abuse of process. A reading of the McClenny case shows a factual situation much at variance with that pleaded in the instant case. The case is authority for the rule that an officer is protected by valid process only when he uses it for a legitimate purpose in executing its mandate but that it is not a protection for extortion or other abuses, and that two elements are necessary to an action for malicious abuse of process, one the existence of an ulterior purpose, and second, an act in the use of such process not proper in the regular prosecution of the proceeding. The Wurmser case also presented a factual situation hardly comparable with that presently pleaded. For our purposes it may be said the rule of the case is reflected in the first paragraph of the syllabus which reads:
“An officer forfeits the protection of the law which the proper execution of legal process affords, and becomes a trespasser ab initio, when he is guilty of such an improper and illegal exercise of authority under it as warrants the conclusion that he intended from the first to use his legal authority as a cover for his illegal conduct.” (Syl. If 1.)
In addition to the above decisions of this court, plaintiff directs attention to a few decisions of courts of other jurisdictions to the same effect. We note also that plaintiff directs attention to Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999, and others of like type, treating the question of conspiracy to commit a harm and the liability of the conspirators.
The gist of Shepherd’s contention that the trial court erred in its ruling on his demurrer to plaintiff’s petition is that the petition does not state a cause of action for abuse of process or for any other tort and presents a confusion of theories, but that if any cause of action is stated, it is one barred by the statute of limitations.
We shall treat the contentions together. In view of our conclusions we do not find it necessary to discuss at length the question of abuse of process. Those interested may find a rather complete discussion in 50 C. J. (Process, § 372) page 612, et seq., and 1 Am. Jur. (Abuse of Process, § 1) page 176, et seq.
As the petition was not motioned, plaintiff is entitled to have it liberally construed, but application of that rule means only that we shall consider what is pleaded or is to be fairly inferred from what is pleaded, and does not mean that we are to read into the allega tions something that is not pleaded or not fairly to be inferred.
Under the allegations of the petition the plaintiff’s arrest was made on view and without process, proper under G. S. 1935, 13-623. We may assume for present purposes that an arrest so made, if used as a means of extortion or to accomplish some ulterior purpose not connected with the arrest, would present a situation where rules pertaining to abuse of process might be applied. The present petition however does not make such a charge. There is.no allegation whatever, nor any warranting an inference that when the arrest was made for drunkenness and possession of liquor, the arresting officer or any other defendant had any motive, malicious or otherwise, to use the arrest as an excuse to apprehend the plaintiff and then to hold her on any other charge or for any other purpose. All she charges is that after her arrest she was refused bail, and that she was physically manhandled because she refused to submit to a physical examination, the purpose of which is not clearly stated, although she does plead her habeas corpus case of Welch v. Shepherd, supra, which sets forth the fact. The facts pleaded are more consonant with a claim of false imprisonment or malicious prosecution, and if so construed, the action would be barred under G. S. 1935, 60-306, Fourth. But simply because that might be the result does not mean the petition is to be construed as stating a cause of action on some other theory so that the cause of action is not barred. Nor are we able to draw any distinction between one defendant and another — the allegations are common to all of them, and the rulings on the several demurrers should be the same. We are of the opinion that the petition presents a confusion of theories and not a single definite theory, and is controlled, by analogy, by our decision in Sharp v. Cox, 158 Kan. 253, 146 P. 2d 410, where it was held:
“In an action for damages against one defendant for false arrest and imprisonment and against three others for malicious prosecution, or perhaps for false arrest and imprisonment, the court correctly sustained demurrers on behalf of the three defendants because of lack of allegations of issuable facts as to them, and also because as to them the petition was not drawn upon a single and definite theory.” (Syl.)
We think the demurrers of all of the defendants should have been sustained. In No. 37,885 the ruling of the trial court is reversed with instructions to sustain the demurrer of defendant Shepherd. In No. 37,913 the ruling of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The defendant, Jim Sagebiel, appeals from a conviction of second degree murder. He was arraigned on a charge of first degree murder in connection with the death of Malcom Keyser. The case was tried to a jury.
Malcom Keyser died in a livestock sales pavilion in Elkhart, Kansas. An altercation occurred between Keyser and the defendant outside the sales pavilion. A few minutes thereafter the defendant followed Keyser into the sales pavilion office and shot Keyser several times at close range with a hand gun in the presence of witnesses. Additional facts will be developed as three specifications of error are examined.
Defendant first attacks the qualifications of two veniremen who were challenged but not excused for cause. The basis of defendant’s challenges is K. S. A. 62-1409 which reads:
“It shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue or any material fact to be tried.”
The first venireman challenged for cause to be considered herein is a Mrs. Melia.
In the case of Mrs. Melia she stated she was not acquainted with the defendant. She had previously read newspaper articles and had talked to people about the incident. She had formed and expressed opinions about the incident but thought she could make an independent judgment on the case based solely on the evidence and in accordance with the court’s instructions.
Eighty-seven veniremen were examined on voir dire. Forty-nine were challenged and excused for cause. Mrs. Melia was not one of the forty-nine excused for cause. She was subjected to intensive questioning by both the attorneys and the court. She was removed later from the panel by peremptory challenge so she did not sit as a juror in the trial of the case.
Generally, error in overruling a challenge to a juror for cause is not ground for reversal when the juror does not sit in the case and when the accused is not in some way prejudiced thereby. (State v. Hoy, 199 Kan. 340, 345, 430 P. 2d 275; State v. Paxton, 201 Kan. 353, 359, 440 P. 2d 650.)
In State v. Hooper, 140 Kan. 481, 37 P. 2d 52, this court said:
“. . . While our statutes contemplate the use of peremptory challenges on jurors qualified for cause, error in the court’s ruling on a challenge for cause, especially if the soundness of the ruling is seriously debatable, should not require a reversal of judgment of conviction, if in fact, as here, the defendant had a trial before an impartial jury.” (p. 502)
The constitutional guaranty requires that an accused be tried by an impartial jury. When a venireman is removed from the panel by peremptory challenge his qualifications or lack of them are no longer a controlling factor upon which to base prejudicial error on appeal. The question in such case is whether the jury who tried the accused was composed of impartial citizens. (State v. Springer, 172 Kan. 239, 239 P. 2d 944.)
Mrs. Melia was not one of those jurors who tried this case. Under the reasoning in State v. Hooper, supra, the soundness of the courts ruling is, at least, within the realm of fair debate and the ruling does not require a reversal of the conviction.
The second venireman whose qualifications as a juror were attacked unsuccessfully on voir dire was a Mr. Bultman. He remained on the panel that tried this case. He was subjected to intensive examination on his qualifications.
In response to questions, Mr. Bultman stated he had known the defendant for fifteen years and this acquaintanceship would have an effect on his judgment in the case. He had read newspaper articles and had some opinions as a result of what he read. He had expressed no positive opinion about what happened but did have an impression about the incident. When asked if he could conscientiously listen to the evidence presented in the case and then apply the law as instructed by the court, he said: “I think I could.”
Only two challenges for cause were overruled by the court, the challenge to Mrs. Melia and the one to Mr. Bultman. Bultman was not challenged peremptorily and was permitted to remain. We are not told why defendant chose not to exercise one of his twelve peremptory challenges on Bultman. Appellant raises no question as to the objectionable character of any of the other veniremen. Presumably, defendant used one peremptory challenge on Mrs. Melia. His remaining eleven challenges were used on prospective jurors against whom he voiced no objection during his extensive voir dire examination.
In a criminal prosecution the question of whether a challenge for cause of a prospective juror should be sustained because he has formed or expressed an opinion as to an issue in the cause is addressed to the sound discretion of the trial court and the decision thereon will not be disturbed unless it appears the trial court abused its discretion. (State v. Springer, supra; State v. Hooper, supra.)
Mr. Bultman stated he thought he could conscientiously listen to the evidence presented in the case and then apply the law as instructed by the court. The nature of the opinions formed and expressed by the juror are not disclosed. The trial court and the attorneys were not convinced of any bias on his part when he was permitted to sit.
In State v. Stewart, 85 Kan. 404, 116 Pac. 489, this court discussed what constitutes a disqualifying opinion. It was said:
“It is impossible to give a definition that will fit all cases, and whether what is called an opinion will disqualify is a question of fact determinable from the manner, appearance and expressions of the proposed juror, the source of his information, the form of the questions to which his answers are given, and from these and other things the trial court is to determine whether his opinion is fixed and positive or whether he is an unprejudiced man whose impression or opinion is wholly contingent upon the truth or falsity of the information he has received and who is free to hear and impartially consider the evidence and to render a verdict without regard to any former impression or opinion which he may have had. If it is of the latter kind and the trial court decides that he is a competent juror there is no reason for interfering with the decision. . . .” (p. 410)
This court cannot say the trial court abused its discretion in overruling the challenge to Mr. Bultman for cause.
Appellant’s next specification of error attacks the sufficiency of the evidence to establish beyond a reasonable doubt that appellant caused the death of Mr. Keyser.
A blood sample drawn during an autopsy from the dead body of Mr. Keyser was sent in for testing. An analysis of the specimen indicated that the blood specimen contained .447% methyl alcohol. A chemist testified that methyl alcohol is a poison and a blood concentration of .447% methyl alcohol is lethal.
The blood specimen had been drawn from the body of Keyser by a mortician prior to starting the embalming process. The embalming process in this case included the circulation of an embalming fluid containing 35% methyl alcohol into the arterial system of the dead body. The mortician testified that he first withdrew the blood sample into a glass vial. When he inserted the stopper a triangular piece of glass broke from the top of the vial. He placed the vial in a cabinet where he kept his embalming instruments. He then began the embalming process.
Dr. Dodson who did an autopsy on the dead body of Mr. Keyser testified that on the following day he poured this blood sample from the broken vial into another vial and gave it to the sheriff to send in for analysis. He testified that during the autopsy he noted various gunshot wounds on the body of Mr. Keyser. One such wound was in the right chest two inches lateral of the midsternal area. A similar wound appeared in the right arm and another in the left thigh. There was a superficial wound at the back of the neck and two additional wounds in the left arm. There appeared adhesions about the right lung and the right lobe of the liver was lacerated. He found one metallic object under the right armpit. As a result of the autopsy, pathology tests and the blood alcohol report he concluded the cause of death was from multiple gunshot wounds resulting in internal hemorrhage, shock and death. He further testified he did not base his conclusion on the analysis of the blood sample because he considered the specimen contaminated.
Appellant argues the burden is on the state to- prove the corpus delicti beyond a reasonable doubt and in a prosecution for homicide this consists of proving death from some criminal agency. The proof must exclude death by accident or suicide beyond a reasonable doubt. In support thereof appellant quotes at length from State v. Doyle, 201 Kan. 469, 441 P. 2d 846.
The Doyle case is readily distinguishable on the facts. Under the facts of that case the emphasis placed upon the exclusion of death by accident or suicide was required of the state since the circumstances pointed no more strongly to criminal homicide than to death by accident or suicide. In Doyle the dead man was found seated behind the steering wheel of his car. The car was parked on a little travelled roadway. The dead man was slumped over the steering wheel with a single bullet wound in his right temple. A pistol lay beside his right hand on the front seat of the car. The doors and windows of the car were closed. Blood from the fatal wound had run down and collected on the seat and floorboard. There was no evidence, circumstantial or direct, to indicate that the accused was ever at the scene of the alleged crime. The circumstantial evidence surrounding the death pointed no more strongly to criminal homicide than to death by accident or suicide. In Doyle we held a conviction for murder must be grounded on something more than probabilities, possibilities or suspicions of guilt and that the evidence introduced failed to sustain a conviction.
In the present case there was evidence of an altercation between the appellant and Mr. Keyser. Eyewitnesses were present at the sales pavilion when the appellant approached Keyser with a gun in hand. The appellant was overheard to say, “I will teach you,” and “You can t talk to me like that”. One witness saw the appellant fire the gun at Keyser and saw Keyser grab his chest and start to fall. Mr. Keyser was pronounced dead within one hour. The cause of death was unequivocally given by the doctor who performed the autopsy. He concluded the death was caused by multiple gunshot wounds which caused internal hemorrhage, shock and death.
The result of the blood analysis was conflicting evidence which the jury had to consider and resolve. The chemist testified that to produce a blood concentration of .447% of methyl alcohol a live person would have to ingest seven ounces of this poison. He further testified a drop and a half of embalming fluid accidentally included in the blood sample would bring about the same result. There was no evidence that Keyser had been drinking anything on the morning he died. There was testimony that immediately before he was shot by appellant he was able to function well enough to drive his truck, to have an argument with appellant and to return to the sales pavilion to make arrangements for papers he was to receive on horses purchased the previous day.
In addition there was evidence of circumstances surrounding the taking of the blood specimen which might well render the result of the blood analysis suspect in the minds of the doctor and the jurors.
No objection was made by the appellant to the court’s instructions. We must assume the jury was properly instructed that before finding the appellant guilty of murder in the second degree they must find beyond a reasonable doubt he did purposely and maliciously but without deliberation and premeditation kill Malcom Keyser by shooting him with a gun. The verdict of the jury indicates these elemental facts were found.
In a criminal prosecution it is the function of the jury in the first instance and of the trial court after verdict to determine what facts are established by the evidence. Before a verdict of a jury which has been approved by the trial court may be set aside on appeal for insufficiency of the evidence it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court. (State v. Helm, 200 Kan. 147, syl. ¶ 2, 434 P. 2d 796.) In other words, a verdict of guilty which has been approved by the trial court will not be set aside because of insufficiency of evidence, unless it is clearly made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the trial court. (State v. Paxton, supra.)
There is substantial evidence in the record before us to support the conclusion reached in the trial court that Mr. Keyser s death was caused by gunshot wounds.
Appellant’s final specification of error is based upon a claim of insanity at the time of the shooting.
On or about the time of appellant’s arrest he was referred to a hospital in Wichita, Kansas, for psychiatric and neurological evaluation to determine if he was able to stand trial. Although the results of this evaluation are not disclosed we must assume he was sane at the time of the trial for no claim is made otherwise. There is no evidence that appellant had any history of insanity.
When arraigned on the charge of first degree murder the appellant stood mute, with his attorney present. At the subsequent trial and after the state’s evidence was introduced, the appellant took the stand and testified in his own behalf. He stated that he had no recollection of events after he was hit in the back of the head during his argument with Keyser. He had no recollection of firing the shots. His first recollection was later that evening as he was driving his truck toward Springer, New Mexico. He filled his pickup truck with gas in Springer and then turned around and started back home. When he arrived in Elkhart he stopped and asked the night marshal if the marshal was looking for him. The marshal said he was and searched him but found no gun. The gun was never found.
Two psychiatrists then testified on behalf of appellant. Dr. George, of Wichita, had examined appellant two days after the shooting occurred. Dr. Gulladge had examined appellant six months later or five days before the trial. Both psychiatrists testified that on the basis of their interviews with the appellant they concluded he was suffering from a disassociative reaction (amnesia) when the shots were fired. In response to hypothetical questions put to them they testified it was their opinion the appellant did not know the nature and quality of his act when he pulled the trigger of the gun and at that time he did not know right from wrong.
On oral argument the state’s attorney indicated he was surprised by this defense at the trial and was not prepared to introduce expert testimony in rebuttal. The appellant now argues on appeal that the appellant was entitled to a directed verdict of not guilty by reason of insanity since no expert testimony was offered in rebuttal by the state.
The rule contended for by appellant was thoroughly discussed and rejected as not being the law of this jurisdiction in the recent case of State v. Coltharp, 199 Kan. 598, 433 P. 2d 418.
An accused is not entitled to an acquittal simply because he has produced expert witnesses, psychologists or psychiatrists, who testify in answer to hypothetical questions based upon facts put in evidence by the accused and who conclude upon facts given them that the accused was insane when the offense was committed.
In Coltharp we held the question whether a defendant in a criminal action was sane or insane at the time of the commission of the offense is to be determined by the jury, under proper instructions from the court, upon the evidence introduced bearing upon such issue.
No question has been raised as to the sufficiency of the trial court’s instructions. We must therefore assume that proper instructions were given on appellant’s defense of insanity.
The rule stated in Coltharp and in State v. Mendzlewski, 180 Kan. 11, 299 P. 2d 598, must be applied here. In Mendzlewski it was stated:
“. . . Under such circumstances this court has long been committed to the rule [citing authorities] recognized by courts of other jurisdictions [citing authorities] that the question whether a defendant in a criminal action was sane or insane at the time of the commission of the offense with which he stands charged is one to be determined by the jury, under proper instructions from the court, upon the evidence introduced bearing upon such issue. . . .” (p. 14.)
The testimony of the nonexpert witnesses who observed the events leading up to the shooting and who described the actions and demeanor of the accused immediately before, during and after the shooting may be considered by the jury along with the testimony from expert witnesses. (State v. Coltharp, supra; State v. Mendzlewski, supra.) It is the function of a jury to determine the credibility of all witnesses, expert and nonexpert. The sanity of an accused at the time a crime is committed is to be finally determined by the jury if there is substantial evidence, testimony from experts or nonexperts, to support a verdict.
Under the rule previously stated herein a verdict of guilty which has been approved by the trial court will not be set aside because of insufficiency of evidence, unless it is clearly made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the trial court. (State v. Paxton, supra; State v. Helm, supra.)
There was substantial nonexpert testimony introduced in this case from which the jury could properly determine that defendant was sane and criminally responsible when he shot Malcolm Keyser.
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The opinion of the court was delivered by
Price, J.:
These consolidated appeals grow out of injunction proceedings in the lower court which in turn arose out of proceedings before the State Corporation Commission for the fixing and promulgation of telephone rates. For convenience and in the interest of brevity, the plaintiff (appellee here) will be referred to as Southwestern, and all of the defendants (appellants here) will be referred to as the Commission.
This appeal is a companion case to cases Nos. 37,941 and 37,984, consolidated in this court, in which Southwestern Bell Telephone Company, a corporation, is appellee, and The State Corporation Commission of the State of Kansas, et al, are appellants, this day decided (ante, p. 457). Since the issues in that case (hereinafter re ferred to as the principal case) and in the instant case are so intermingled, for the sake of brevity and to avoid repetition, the detailed factual background of events transpiring before the Commission and in the lower court, set out in the opinion of that case written by Mr. Justice Parker, is by reference incorporated herein. However, in order to illustrate the precise issue now before us on this appeal, a brief résumé of those facts will be helpful.
On September 30, 1947, Southwestern filed with the Commission an application to increase its intrastate rates for telephone service and filed schedules designed to produce approximately $3,279,000 in additional gross revenues. This application was docketed as No. 34,333-U, and stated that the rates suggested would not provide a reasonable and fair return on its property; that Southwestern was not waiving its claimed right to a full and larger return, but requested immediate partial relief because of its urgent need for additional revenues on account of its alleged actual operating losses on its intrastate operations in Kansas. On October 9, 1947, the Commission ordered a complete investigation of Southwestern’s Kansas operations in order to determine just and reasonable rates, the costs thereof to be assessed against Southwestern.
Hearing on this application was commenced January 5, 1948, at which time Southwestern filed a supplemental application in which it alleged that not less than $1,500,000, in addition to the increase sought by its application of September 30, 1947, would be required in'order to relieve it from its alleged acute financial distress. This supplemental application was docketed as No. 35,000-U.
At the close of the hearings held January 5 to 10, 1948, on Southwestern’s original application in docket No. 34,333-U, the Commission dismissed the proceedings on the ground that Southwestern had failed to present evidence sufficient to comply with the provisions of G. S. 1935, 66-1403, known and hereinafter referred to as the affiliate statute. Its application for a rehearing being denied, Southwestern commenced a review proceedings in the District Court of Shawnee County, Division No. 2, and sought by motion to stay the operation of the dismissal order and to promulgate non-confiscatory rates. The court denied the application for a stay, holding that it was without jurisdiction to grant the relief requested and remanded the case to the Commission for the taking of additional testimony as sought by Southwestern in its application for rehearing.
Subsequently, on May 26, 1948, after the application for a stay had been denied but while its original application was pending on review, Southwestern filed a third application, to which it attached the same schedule of rates as those filed with its original application of September 30, 1947. This third application was docketed as No. 35,060-U, and in it Southwestern asked the Commission to grant the collection of such rates as emergency rates under a refunding bond which would 'protect the public. The Commission again ordered a complete investigation, with all costs thereof to be assessed against Southwestern. Hearings upon this application for temporary rates under bond commenced in July, 1948, and a large portion of that record was incorporated in the record in docket No. 34,333-U, which had been remanded to the Commission by the court.'
On September 23, 1948, the Commission affirmed its previous order of dismissal of the original application in docket No. 34,333-U, and the additional record was certified to the reviewing court.
On October 6,1948, the Commission issued an order for temporary rates which granted Southwestern authority to file schedules that would produce $1,200,000 in increased revenues annually provided certain conditions stated in the order were met. Southwestern considered the conditions so burdensome that it filed a conditional acceptance, to which the Commission refused to agree, and on that account such increased schedule of rates was not put into effect.
As a result of further hearings the Commission, on January 14, 1949, granted Southwestern authority to file schedules to produce approximately $3,315,000 in additional gross revenues annually, to be collected as temporary rates under bond. This order superseded the order of October 6, 1948, just referred to, and which did not become effective. The increase provided by this order of January 14, 1949, became effective January 16, 1949, and are the rates under which Southwestern is now operating.
On May 19, 1949, Southwestern filed a further application in docket No. 35,000-U, as a supplement to the supplemental application previously filed on January 5, 1948. This last application contained a schedule of rates designed to increase its annual gross revenues in Kansas by approximately $3,460,000 over and above those revenues provided by the temporary rates then in effect. In this application, just as it had done in each of the former ones, Southwestern recited facts concerning its financial distress result ing from existing rates which it claimed were confiscatory. The Commission again ordered a full investigation, with all costs to be charged to Southwestern; At the hearing on this application, held July 18 to 22,'1949, Southwestern- introduced its evidence and urgently requested an early determination, and the granting of such rates as temporary rates under bond. However, the Commission announced that it would not cross-examine, until October 31, 1949, and continued further hearing until then.
On September 26; 1949, the District Court of Shawnee County, Division No. 2, in review proceedings 'in original docket No. 34,333-U, held that Southwestern had satisfied the requirements of the affiliate statute and set aside the Commission’s order of dismissal as being unreasonable and unlawful. The correctness of that ruling was the question before us in the principal case, heretofore referred to, this day decided.
On October 17, 1949, the'Commission, on its own motion, entered-an order continuing further hearing in docket No. 35,000-U to an. indefinite date and until final disposition of its anticipated appeal to this court from the judgment of the district court setting aside as unlawful and unreasonable the Commission’s order of dismissal of Southwestern’s application in docket No. 34,333-U.
Following the entry of this order of October 17, 1949, Southwestern on November 28,1949, applied to the District Court of Shawnee County, Division No. 3, for a temporary injunction to enjoin and restrain the Commission, and other defendants whose names appear in the title of this cause,
“. . . from interfering with the plaintiff’s promulgating, charging and collecting reasonable rates and charges for telephone service in the State of Kansas; and temporarily enjoining and restraining each of the defendants from interfering, by suit or otherwise, with the plaintiff’s charging rates higher than the schedules or classifications of rates now in effect and on file with or heretofore filed with the defendant Commission; and temporarily restraining and enjoining each of the defendants in this action from assessing or seeking to have assessed against the plaintiff any fine or penalty or criminal charges based upon or as the result of plaintiff’s charging any rates higher than those now in effect and on file with or heretofore filed with the defendant, The State Corporation Commission of the State of Kansas.”
Issues were joined and evidence was introduced. On January 16, 1950, the court granted the temporary injunction, as prayed for, upon the express condition that before putting into effect and charging or collecting, any rates other than the schedules of temporary rates then in effect and on file, pursuant to the Commission’s order of January 14, 1949, Southwestern post a refunding bond, to be approved by the court, in a sum not less than the total annual sum of the additional charges which it might put into effect by reason of the temporary injunction, conditioned that Southwestern would repay to its subscribers the excess, if any, of the rates which it might actually put into effect and collect under the protection of the injunction above the schedules of rates which ultimately might be determined to be just and reasonable.
The Commission’s motion for a new trial was overruled on January 21,1950. Case No. 37,995 is the Commission’s appeal from the judgment and order of January 16,1950, granting the temporary injunction, and case No. 37,997 is its appeal from the order overruling the motion for a new trial. In this court the two appeals will be treated as one.
On February 3, 1950, this court issued an order staying and suspending the order of the lower court granting the injunction pending the disposition of this appeal.
In support of its position appellant Commission urges many grounds and reasons why the lower court had no authority or jurisdiction to grant the injunction. On the other hand, Southwestern argues just as strenuously that the court had jurisdiction to issue the order, and that under the facts and circumstances then existing the course taken by Southwestern was its 'only available remedy in order to relieve itself of financial stress resulting from the alleged confiscatory rates then in existence.
We have given careful study and consideration to every argument and citation of authority advanced by both parties to this appeal in their very exhaustive briefs, but we consider it unnecessary to discuss or decide the questions raised, other than the ultimate one— namely, should the injunction have been granted?
From a close reading of the detailed factual background contained in the opinion in the principal case, heretofore referred to, and the summarization of those facts above set out, the status of this whole proposition in the fall of 1949 can readily be discerned.
Southwestern had been before the Commission with several applications for increases in its intrastate rates, a number of hearings had been held and there was a sharp dispute between the parties as to the proper interpretation of the so-called affiliate statute. The Commission interpreted it one way — counsel for Southwestern another. This dispute was the basis of the review proceedings be fore the District Court, Division "No. 2, in docket No. 34,333-U, which was Southwestern’s original application. In the meantime supplemental applications for emergency rates had been filed and on the latest one, in docket No. 35,000-U, the Commission heard Southwestern’s evidence in July, 1949. It then announced that it would not cross-examine Southwestern’s witnesses until October 31, 1949. As yet the district court had not announced its decision in the review proceedings before it, but on September 26, 1949, the court ruled in favor of Southwestern and vacated and set aside as unlawful and unreasonable the Commission’s former order dismissing Southwestern’s original application in docket No. 34,333-U. In-passing, this fact should not be overlooked, and that is that all the way through these various proceedings the real bone of contention was the interpretation and construction to be given the affiliate statute. That was the dispute before the Commission, before the lower court, and in this court in the principal case. In our decision in that ca¡se we have upheld the lower court and have overruled the Commission’s contentions with reference to the statute, but be that as it may, in this case we are confronted with the situation in which the parties found themselves after the district court handed down its decision of September 26,1949.
The Commission, of course, intended to appeal to this court from that decision. At the same time it was confronted with the further hearing on Southwestern’s supplemental application which had been set for October 31, 1949. Because the ultimate issue between the parties concerning the interpretation of the affiliate statute would again arise on the hearing set for October 31, 1949, and because it intended to appeal from the district court’s decision in the other application, the Commission issued its order of October 17, 1949, which in part recited:
“3. The character of proof presented by the telephone company in behalf of its application in this docket is similar to, and in many instances identical with, the proof presented by the telephone company in support of its application in said Docket 34,333-U, and a decision by the Commission in Docket 35,000-U will necessitate consideration of the same questions of law and fact as were decided by the Commission in Docket No. 34,333-U.
“4. The legal questions raised by the review of the Commission’s order of January 10, 1948, in Docket 34,333-U should be finally determined by the Supreme Court of Kansas prior to a determination by the Commission of the issues involved in Docket 35,000-U.”
and continued the hearing previously set for October 31, 1949, to a date to be determined, proper notice to be given to all parties.
It was following the issuance of this order of continuance that Southwestern made application to the District Court of Shaymee County, Division No. 3, for the injunction.
Assuming, but not deciding, that the district court had jurisdiction to entertain the injunction proceedings, in view of the state of the whole record, can it be said that in the exercise of its equity powers the court properly issued the injunction? This was not a situation such as existed in City of Hutchinson v. Bell Telephone Co., 109 Kan. 545, 200 Pac. 301, where rates promulgated by the Commission had been set aside by a court of competent jurisdiction as being unreasonably low and confiscatory and the telephone company obtained an order enjoining the interference of collection by it of its own schedule of rates pending final determination. In the case before us the Commission had granted one increase under its order of January 14, 1949, and those rates were in full force and effect at all times thereafter. No court had set aside any schedule of rates, so we do not have a situation where there was no schedule in existence. Our statute (G. S. 1935, 66-117) provides that no change shall be made in any rate without the consent of the Commission. To uphold the injunction would mean that this court is giving its sanction to a change of already existing rates in a manner violative of the statute.
In the principal case, which is the appeal from the decision of the district court of September 26,1949, we have held that the Commission’s interpretation of the affiliate statute was erroneous and in effect directed that body to proceed, without unreasonable delay, to determine and promulgate reasonable rates under the evidence in the record, and from such further evidence as the parties may wish to offer in conformity with what is said in the opinion. We must assume that the Commission will proceed to do so in the statutory manner. While the merits of a lawsuit ordinarily are to be judged by the facts and law existing at the time of trial and judgment in the lower court, yet were the injunction in the case before us to be upheld this rather anomalous situation would come about —in the principal case the Commission is in effect directed to proceed with its rate-making powers and at the same time Southwestern would be permitted to collect a schedule of rates the reasonableness of which would be the very issues pending before the Commission.
However, from the over-all picture of the facts as they exisited in the fall of 1949, we are compelled to hold that the injunction was improvidently granted, and it therefore follows that the judgment of the lower court must be reversed. | [
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The opinion of the court was delivered by
Wertz, J.:
The three consolidated appeals herein involve only. Fred Brack, plaintiff-appellant, Walter Kleweno, defendant-appellee, and Elman Brack, intervenor-appellant. Appeal No. 37,890 was taken by plaintiff Fred Brack as to defendant Kleweno from the judgment of the trial court and from its order overruling and setting aside an order granting plaintiff a new trial. Appeal No. 37,937 was taken by plaintiff as to defendant from subsequent journal entries filed by the trial court after the appeal- in No. 37,890 had been filed and perfected by plaintiff. Appeal No. 37,934 was taken by Elman Brack, intervenor, from a judgment of the trial court rendered on September 8,1949, setting aside its order dated July 7,1949, granting the parties a new trial and disallowing intervenor’s claim to the tenant’s share of proceeds from wheat in the receiver’s hands. To avoid confusion of parties, we will hereafter refer to appellant Fred Brack as plaintiff, appellant Elman Brack as intervenor, and appellee Walter Kleweno as defendant.
This action, involving a farming partnership accounting, was commenced in June, 1948. The petition alleged that about January 1, 1945, plaintiff and defendant entered into a partnership or joint venture to farm a large acreage of wheat in Ness and Greeley counties; that defendant had not submitted a satisfactory accounting, although demand for the same had been made, and defendant had threatened to harvest the 1948 crop and convert the partnership wheat. The prayer was for appointment of a receiver to take charge of, harvest and sell the wheat, for an accounting of the profits of the partnership, and for a dissolution of the partnership. A receiver was appointed who harvested and sold the wheat and now holds the proceeds from the sale of the 1948 crop subject to court order. On June 24, the court extended the receivership to include an additional 480 acres known as the “Funk land.” On September 8, defendant filed his answer and cross petition to which plaintiff filed a motion to make definite and certain. This motion was argued and was by the court on December 8 sustained in part and overruled in part and defendant was granted time to file his amended answer and cross petition.
On December 13, 1948, one Barrow intervened by leave of court, filed his answer and cross petition, and a partial hearing was had on his claim on February 9, 1949, before the issues were joined in the case-in-chief between plaintiff and defendant; on objections by appellant, the hearing was continued until February 21 so that the official court reporter could be present, the court stating that he would hear and try all issues between all parties on that date. The transcript of proceedings does not appear to include all that transpired at the hearing. On February 9 and 10, Wheat Growers Mutual Hail Insurance Company and B. F. Scheuerman filed their intervening petitions. The three intervenors last named are no longer in this case as their rights were determined in the case of Brack v. Kleweno, 169 Kan. 93, 216 P. 2d 794.
On February 15, 1949, by leave of the court, intervenor Elman Brack filed his amended answer and cross petition claiming possession of the 480 acre tract (the Funk land) as a tenant of plaintiff, the record title holder, for the 1948 wheat crop.
On February 18, just three days before the date set by the court to try all issues, defendant filed a belated twenty-seven page amended answer and cross petition, the cross petition containing three counts. In this amended answer, defendant admitted the partnership with plaintiff for the years 1945 to 1947 inclusive; denied the partnership during the 1947-1948 crop year; alleged that defendant prepared and planted the ground in 1947 at his own expense; and claimed to be sole owner of the 1947-1948 crop harvested by the receiver. The first count of defendant’s cross petition set out at length an accounting covering the crop years 1945 to 1947 and as a result alleged plaintiff was indebted to him in the sum of $41,522.22. In his second count, defendant alleged he was the owner of the 480-acre tract known as the Funk land under an oral agreement with plaintiff; that plaintiff was to have record title to the property as security for purchase money advanced and was to reconvey title to defendant when the loan was paid. This count also involved an accounting. The third count of the cross petition was based on a wrongful receivership and asked that all costs be charged to plaintiff.
On February 21 — before the issues were joined between plaintiff and defendant — the intervening petitions of Barrow, Scheuerman, and the Insurance Company were heard over objections of plaintiff. The court also heard the sole issue as to whether a partnership between plaintiff and defendant continued during the 1947-1948 crop year, and found for intervenors, and that the partnership between plaintiff and defendant did continue and exist during the 1947-1948 crop year. From this judgment no appeal was taken. The court then ordered the case-in-chief to trial over plaintiff’s objections. Part of plaintiff’s two-page objection reads:
“. . . If the Court please, on behalf of Fred Brack we hereby object to the trial or hearing for the following reasons:
“In plaintiff’s petition filed herein plaintiff alleges a partnership between plaintiff and defendant during 1947 and 1948 crop year, which is denied by the defendant, Walter Kleweno, in his answer. Walter Kleweno filed his answer to plaintiff’s petition only a few days ago and plaintiff’s attorneys received a copy by mail on Thursday, four days ago. Sec. 60-726 of the Statutes of Kansas provides the plaintiff has ten days after the filing of an answer to file a reply to the answer. At this time that ten days has not expired, and plaintiff now states he does intend to and will file a reply. Sec. 60-2932 of the General Statutes of Kansas provides: ‘Actions shall be triable on the issues of fact in ten days after the issues are made up’. We submit . . . the issues are not made up . . .”
Many other objections were made by plaintiff — that he was unable to go to trial by reason of defendant’s long belated cross petition raising many new issues, and there was much discussion on this question between counsel and the court. Over these urgent objections of plaintiff, the court ordered the trial to proceed on the issues of the accounting between plaintiff and defendant for the crop years 1945-1948, inclusive. Plaintiff then hurriedly filed his reply and answer to defendant.^ lengthy amended answer and- cross petition. On the same day, at the suggestion of the court, plaintiff and defendant with their counsel entered into a conference and .worked until late at night on a stipulation of facts not then reduced to writing and filed in the case. However, on the following day, February 25, each party introduced evidence intermingled with extensive stipulations — consisting of twenty-nine pages in the abstract of record —wherein plaintiff and defendant agreed on the credits- and debits existing between them by reason of the farming partnership. On February 26 each party rested his case, whereupon the court took the case under advisement. On May 12, 1949, at a new term of court which began March 14, 1949, the court heard the case involving intervenor Elman Brack and took the same under advisement. On May 31, the court drew and filed a journal entry covering court costs in the sum of $350 to the clerk of the court and $360 to his official court reporter.
On June 6, 1949, the court drew and filed a nineteen-page journal entry of judgment on all issues. On June 9, plaintiff filed his motion for new trial setting forth fourteen grounds including abuse of discretion by the court, among them his ordering the case to trial before issues were joined, failure of the official reporter to make a full and complete transcript of all proceedings, and other statutory grounds. In support of plaintiff’s motion for a new trial, his counsel filed their affidavits which cover twenty pages in appellant’s abstract but are not set out in detail here as it would serve no useful purpose to further encumber this already lengthy opinion. The affidavits call attention to the fact that the court failed to consider all the stipulations entered into between counsel for the parties, and, that the court considered an accounting between parties outside the farming partnership which was not in issue in the case. One of the lengthy affidavits set forth several conversations had with the court, outside the courtroom and in the absence of opposing counsel, on matters material to the case, and discussion with the court reporter as to why she did not report all the proceedings, wherein she said she was working for the court and could only record the remarks she was told to take. Intervenor Brack filed no motion for new trial.
On June 9 defendant filed the following motion:
“Now comes the defendant and moves the court to set , aside and vacate Conclusion of Law No. 7 made and entered herein by the court on June 6, 1949, for the reason that the same refers to matters which are not within the issues, in this case, and no indebtedness from defendant to plaintiff pleaded by plaintiff with respect to loans or advances which were for other purposes than for the farming partnership operations of plaintiff and defendant, and no recovery was prayed for by. plaintiff from defendant in his petition for any indebtedness claimed to be due from defendant to plaintiff on account of other transactions outside of the farming partnership, and for the reason that said conclusion purports to refer to an existing indebtedness from defendant to plaintiff on ‘Other Deals’ which were not within the farming partnership of plaintiff and defendant,' and is not sustained by the findings of fact No. 7 and No. 9 (referred to in said Conclusion of Law No. 7), which said findings of fact No. 7 ^.nd No. 9 relate only to money loaned or advanced by plaintiff to defendant in 1945 and 1946, and do not purport to find that an indebtedness in such amounts still exists.”
It is apparent that neither plaintiff nor defendant was satisfied with the findings and judgment of the court entered on June 6 affecting the issues between them.
After notice, plaintiff again appeared in court on June 18 to present his motion for new trial. Plaintiff’s counsel inquired of the court if the official court reporter for the district was going to be present, and the court answered that no request for her presence had been made; whereupon plaintiff introduced the official court reporter of Judge Stavely from Lyndon, Kan. The court, advised plaintiff’s counsel that his official reporter lived in Wichita and was in his district only for regular motion days and the regular term, and was not present unless requested at other times; whereupon the court left the bench and further proceedings ended.
The next hearing was on July 7. Plaintiff presented his motion for new trial and defendant presented his motion to set aside certain findings of fact and conclusions of law. However, before counsel for plaintiff had completed their presentation, the court stopped the hearing and announced from the bench that he was granting a new trial as to all issues between plaintiff and defendant on the ground that counsel for the parties disagreed as to what was stipulated in their conference outside the courtroom.
Thereafter and on August 21, 1949, plaintiff filed a motion to continue the retrial of the issues between intervenor Elman Brack and defendant until the appeals as to other intervenors had been decided by the Supreme Court, and also filed a motion for change of venue on the ground that a new trial had been granted and that the court was biased and prejudiced against plaintiff and his counsel and that a fair and impartial trial could not be had, and in support thereof wished to introduce oral testimony and affidavits.
Before September 8, 1949, counsel for plaintiff received a printed docket from the clerk of the Ness county district court showing a motion for change of venue on the new trial set for September 8, 1949, and further showing the new trial in the case-in-chief between plaintiff and defendant was set for September 12,1949, the beginning of a new term of 'court. On September 8, counsel for plaintiff appeared in court to present his motion for a change of venue and also to present a journal entry for approval showing the court’s order of July 7 granting the new trial. The judge entered the courtroom and stated that the court reporter would hand counsel for all parties a memorandum he had prepared and the court would recess pending counsels’ reading the same, and thereupon left the bench. The court’s memorandum, in addition to criticizing plaintiff’s attorneys, made new findings of fact as to defendant; contained statements of the court as to affidavits filed by plaintiff’s counsel in support of his motion for new trial; set aside its previous order granting a new trial; and ordered dismissed a portion of the first count of defendant’s cross petition. This count set forth allegations as to the accounting between plaintiff and defendant. The court also permitted defendant to amend the second count of his cross petition, and sustained defendant’s motion to strike from the files motions filed by plaintiff.
The court’s memorandum covers over 11 pages of the abstract and will not be recorded here at length. However, a portion reads:
“On July 7, 1949, the Court announced that he would grant a new trial with respect to the partnership as between the plaintiff and the defendant and the Bunk land. At that time, the Court had not seen the transcript in this case. Since then the Court has read the transcripts, the affidavit of Mr. Davis, and checked these with the pleadings. The Court is setting aside the order made on July 7, 1949, granting a new trial and denying the motion of the plaintiff for a new trial.”
Inasmuch as the record discloses official court reporter trouble and that some of the record was not taken due to the absence of the reporter, we quote from the court’s memorandum in part:
“The Court, like other District Judges, believes he shouldn’t impose on his Reporter, therefore he has stated to the Reporter she need not take down arguments and discussions between Court and counsel. This is the rule of some District Judges. Where counsel requests the Reporter to take down all arguments and discussions the Court in every instance has granted the request.”
Plaintiff filed his notice of appeal September 9, 1949; intervenor Brack’s was filed on October 3, 1949. On September 19, 1949, after appeal had been taken to this court, defendant, pursuant to the suggestion of the trial court, filed an amendment to his second count in which he changed the allegations of the original second count in his cross petition and attempted to make his allegations conform to the findings of the trial court as set forth in the “memorandum.”
On October 31, after a new term of court commenced and after appeal had been taken to this court, the court filed two journal entries of judgment correcting the former judgment entered June 6 Also on October 31, the court drew and filed the following journal entry:
“Statement of the Court
“This statement was not by the court incorporated in the Journal Entry. It does, however, contain a question which the trial court feels is the crucial point in controversy between the parties, and the one that prevented a settlement. A question the court has spent much time considering and is still in doubt as to whether or not it made the correct decision.” (Emphasis supplied.)
In the appeal in case No. 37,890 between plaintiff and defendant on the accounting, plaintiff has alleged fourteen separate specifications of error. Specifications of error 1 and 2 involving the question of the court forcing plaintiff to trial before the issues were joined will be treated together. The original petition was filed June 14, 1948, and on the following December 8, defendant was granted time to file an amended answer and cross petition which was filed February 18, 1949, just three days before the case was ordered to trial. This answer and cross petition covered twenty-seven pages of the abstract, and over the urgent objections of the plaintiff and before he had an opportunity to file a reply, the court ordered the plaintiff to proceed. G. S. 1935, 60-2932 provides that actions shall be triable on the issues of fact ten days after the issues are made up. Inasmuch as this lengthy answer and cross petition injected into this case the first accounting made by the defendant and many new issues not set forth in the original petition of the plaintiff and set forth a new cause of action trying the title to real estate which required addi tional investigation on the part of the plaintiff, we cannot say that plaintiff was not prejudiced in his substantial' rights'in being forced to trial before the' issues were joined. Leave shquld have been granted to plaintiff for additional time’ to ,file his reply and to properly prepare his case. (Harris v. Salt Co., 57 Kan. 24, 45 Pac. 58.)
Specifications of error 4, 5 and 7 complain that the court erred in its findings of fact and conclusions of law and in failing to give credit to all stipulations of the parties. The court’s first finding of fact states that the plaintiff and defendant had been engaged in buying and selling automobiles and trucks; that plaintiff had furnished the money to finance the deals and they' had divided the profits. This action between plaintiff and defendant was predicated’upon a farming partnership, and no issue was drawn on any other partnership transaction. It is apparent from,the portions of the record before us that the court in making its findings of fact and conclusions of law considered transactions of a partnership nature between plaintiff and defendant on other matters not relating to the farming partnership which were not set forth in the pleadings. This is borne out by the plaintiff’s motion for a new trial and his motion to set aside findings of fact and conclusions of law, a's well as the defendant’s motion to set aside certain findings of fact and conclusions of law. These motions aré partly based on'certain stipulations dictated into the record by thé.parties as to credits and debits. It appears that neither plaintiff nor defendant was satisfied.,with the judgment of the court and apparently the court was not satisfied either, for on July 7, on his own motion and before a final presentation of their motions was made by counsel, he stopped the proceedings and announced from the bench that he was granting a new trial as to all issues between the parties on the ground that the parties could not agree on the stipulations of fact. Even as late as October 31, 1949, the court made the statement that he was still in doubt as to whether he had made the correct decision in the case.
It undoubtedly would have been better practice for counsel to have reduced their stipulations to writing and filed them with the, court. From the record submitted, this court is unable to ferret out in any intelligible order the many stipulations intermingled with extensive testimony which cover twenty-nine pages of the abstract. It appears from the record in the case that plaintiff and defendant were unable to agree in toto as to what the stipulations really were.
As an example of the stipulations entered, we quote a portion of one:
“It is further stipulated that' all checks introduced in the last two days by the plaintiff are proper partnership expenses, except the checks listed in defendant’s answer which set forth they are advancements. It is further stipulated that the advancements set forth in defendant’s cross petition are also to be considered partnership expenses and advancements.”
How can this court determine what checks were introduced in the last two days? How can we determine what the advancements were which were set forth in defendant’s cross petition which are to be considered partnership expense and advancements? Many of the stipulations entered are just as ineffective as the one quoted.
Plaintiff next assigns as error the ruling of the trial court on September 8 wherein he set aside his previous order of July 7 granting the parties a new trial. It must be conceded that the judgment of the court on February 26, 1949, finding that the farming partnership between plaintiff and defendant existed during the years 1945 to 1948, inclusive, was a final order from which there was no appeal within the time provided by law, and that order became a final judgment in this action, and determined the duration of the partnership; and the judgments of the court entered on July 7 and September 8 had no effect thereon.
Plaintiff next takes exception to the memorandum opinion filed September 8. Plaintiff had filed three affidavits in support of his motion for a new trial. These affidavits were made by plaintiff’s counsel who participated in the trial. They were very lengthy and as heretofore related,, alleged facts, if true, showing bias and prejudice of the court and a failure of the court reporter to be present on some occasions and when present on other occasions failing to record all of the proceedings; referred to conversations had with the court outside- the courtroom and in the absence of opposing counsel; and included many other statements which will not be recorded here. After the new trial had been granted on July 7, plaintiff’s counsel filed a motion for change of venue which was set for hearing on September 8; counsel appeared on that date for the purpose of presenting a motion for change of venue; the court while hearing the motion had his reporter deliver to counsel for all parties his memorandum opinion (consisting of eleven pages in the abstract) wherein the court answered the mentioned affidavits filed by counsel and criticized certain counsel on their actions including their abilities; made some corrected findings of fact and corrections of the judgment entered on the previous June 6. The court then permitted defendant to amend the second count of his cross petition in keeping with findings made by the court, and ordered dismissal of the first count of defendant’s cross petition which set forth the accounting between plaintiff and defendant.
It has been a laborious undertaking for this court to carefully examine the ten separate volumes of the record in this case consisting of abstracts, counter abstracts, briefs of appellants, briefs of appellee, supplemental abstracts and briefs, totalling in all 870 pages and 30 pages of appendices. After concluding such examination, we are of the opinion — in view of what has been said — that plaintiff and defendant did not have such a trial as was contemplated by statute. The judgment in case No. 37,890 between plaintiff and defendant as to the farming partnership and title to the Funk land is reversed and remanded with directions to grant a new trial therein.
In view of our holding in the above case, the appeal in case No. 37,937 taken by plaintiff as to posttrial journal entries entered by the lower court is dismissed as being moot.
As to the appeal in case No. 37,934 taken by intervenor Brack from the judgment of the trial court rendered on September 8, the lower court tried the issues between plaintiff, defendant and intervenor on May 12, 1949, and rendered its judgment on June 6, 1949, finding in favor of intervenor on certain issues and against him on others. No motion for a new trial was filed by the intervenor nor was any motion filed objecting to any of the findings of fact or conclusions of law affecting said intervenor. On July 7, plaintiff presented his motion for a new trial and defendant presented his motion to set aside certain findings of fact and conclusions of law, which were sustained by the court, the court granting a new trial on the issues between plaintiff and defendant and the Funk land which involved title as between plaintiff and defendant. We find no place in the record where it can be clearly inferred that the court granted intervenor a new trial. He certainly did not ask for one and no one presented a request to the court in his behalf. It is not contended that any statement made by the court indirectly granted a new trial to any other intervenors and we are unable to say that a new trial was granted to this intervenor in such manner. No motion for a new trial having been filed by intervenor Brack, there is nothing here upon which this court can base any other decision than that of dismissal of the appeal in case No. 37,934.
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The opinion of the court was delivered by
Thiele, J.:
The question presented in this appeal concerns ownership of United States Savings Bonds, Series G, issued in the name of co-owners, and arises out of the following:
Bates T. Hamilton and Dimmie E. Hamilton, who had been married in 1911, were divorced on February 6,1946, the decree of divorce making no provision for settlement of any property rights between them. On February 7, 1946, the two went to the Fourth National Bank in Wichita, in which they had a joint account, where the sum of $4,800 was withdrawn and eight bonds of the above series totaling the principal amount of $4,800 were purchased, the names of the payees being Bates T. Hamilton or Mrs. Dimmie E. Hamilton. Under date of February 28, 1946, the above bank issued its safe keeping receipt that it had received of Bates T. Hamilton or Mrs. Dimmie E. Hamilton the above eight bonds for safekeeping and that the bonds would be surrendered only upon return of the receipt. At an appropriate place on the receipt for the signature of the depositor only the name of Bates T. Hamilton was signed. On July 18, 1948, Bates T. Hamilton died intestate and under appropriate proceedings in the probate court Sidney L. Foulston was appointed as administrator of his estate and duly qualified as such. At some undisclosed date Dimmie E. Hamilton remarried and became Dimmie Lemon. On December 28, 1948, Dimmie Lemon commenced an action against the administrator in the district court to replevin the bonds. The defendant demurred on the ground that the petition showed on its face the court was without jurisdiction. No ruling was made on this demurrer. On April 8, 1949, Dimmie Lemon filed in the probate court, in the estate of Bates T. Hamilton, her petition for allowance of demand in which she alleged issuance of the bonds in manner above stated and that she was then the sole owner and that the estate of Bates T. Hamilton had no interest in the bonds and that the administrator claimed the bonds and wrongfully refused to deliver possession to her although demand had been made. In her statement of demand she also made reference to her action pending in the district court, and prayed that her demand be transferred to the district court for hearing and in due course that was done.
No formal order that the replevin action and the demand be heard together seems to have been made but evidence was taken from which the trial court, on September 19, 1949, found that the bonds “were the sole and exclusive property of Bates T. Hamilton in his lifetime and that the petitioner had no right, title or interest therein, and upon his death they become and now are a part of the assets of his estate” and that the petitioner should be required to execute such instrument as may be necessary to effectuate the finding and judgment of the court, and it entered judgment accordingly. On the following day the parties stipulated that the evidence taken might be considered in both proceedings and that stipulation was approved in the journal entry of judgment later filed. Dimmie Lemon’s motion for a new trial was denied and she perfected her appeal to this court.
An extensive review of the evidence is not necessary, for there was not much controversy as to the facts. The evidence of Dimmie Lemon showed the facts as to the divorce, the joint bank account, the purchase of the bonds and the deposit of them for safekeeping as heretofore outlined. It was stipulated that the bonds were in the above named bank and that Bates T. Hamilton in his lifetime had the right to obtain the bonds if he so desired. The administrator called Dimmie Lemon as a witness, and she testified as to the divorce and that “We had no property at all except the cash.” Over objection that the evidence was immaterial and irrelevant, did not prove or disprove any issue, and was incompetent under the “United States Treasury Department Regulations Governing United States Savings Bonds”' later referred to, inquiry was made concerning letters written by Dimmie to Bates which were received in evidence, and material parts of which are summarized. In a letter of February 27, 1946, she said, “Did you get your bonds? As soon as we can I will help you with them & change them to something else.” In a letter of March 20, 1946, she referred to the fact she had collected two sums of money due and had checked $650 out of the bank, “so all together it was $5,424 & it is just as safe in Mid Kans as anywhere.” (There is no statement as to how or in whose name it was invested in Mid Kans which is said to refer to a Savings & Loan Association.) She also advised him not to worry about the bonds as she would help at the end of six months to get “it” out of the bank and “I think you would be more satisfied to put in Mid Kans.” Further on she said, “So you see I can’t get far with $5,000.” In another letter of May 15, 1946, she said she would keep the bonds in mind so when the six months were up if he wanted he could draw them out and put the money in Mid Kans which she thought was best. Under date of January 6, 1947, Dimmie Lemon wrote a letter to an employee of the escrow department of the above-named bank that she would like to have her name released on the bonds and if required papers were sent she would sign a release and return it. Under date of January 9, 1947, the bank employee answered that the receipt for the bonds was signed only by Bates T. Hamilton and therefore the bonds would be delivered to him upon his returning the original receipt. The portion of the letter advising as to reissue of the bonds to Mr. Hamilton need not be set forth. There is no showing that Bates T. Hamilton was aware of the last two letters. There was no contention that any effort was ever made to surrender the bonds originally issued either for payment or for reissue to a single owner. On cross examination she testified that after the divorce she and Bates T. Hamilton remained on friendly terms; that they had a joint account in the above-named bank; that she wrote the check for $4,800 for the bonds and that Mr. Hamilton was with her at the time.
In her brief appellant presents as the principal question whether the bonds, issued as above stated, upon the death of Bates T. Hamilton became the property of Dimmie Hamilton Lemon as the surviving co-owner, or became an asset of the estate of Bates T. Hamilton, the answer depending on whether the federal regulations above mentioned govern. Secondary questions d'eal with admission of evidence and the sufficiency of evidence to support the judgment.
Appellant’s contention in substance is that bonds of the type involved, issued in the name of co-owners, can only be issued in accordance with the above-mentioned regulations, which are binding and controlling, and that under such regulations, as applied to the facts of this case, the bonds belong to the survivor. That contention requires a review of those regulations. It is noted that there is no contention but that the bonds were issued under and conform-ably to the regulations issued by the Treasury Department of the United States under date of February 13, 1945. The section numbers hereafter mentioned are part of such regulations. Under 315.1 the regulations “apply generally to all United States Savings Bonds of all series of whatever designation and bearing any issue dates whatever, except as otherwise specifically provided herein” and under 315.2 such bonds are issued only in registered form. Under 315.5 Series G bonds may be registered in the names of individuals in their own right as set forth in 315.4 and under the latter section the bonds may be registered only in the names of individuals in one of the following forms, the only one here applicable reciting:
“(2) Two Persons — Coownership Form: In the names of two (but not more than two) persons in the alternative as coowners, for example:
“ ‘John A. Jones OR Mrs. Ella S. Jones.’
“No other form of registration establishing coownership is authorized.”
Subpart D deals with limitations on transfer and judicial proceedings, the portions thereof, and so far as here pertinent read:
“Savings bonds are not transferable and are payable only to the owners named thereon, except in case of the disability or death of the owner, authorized reissue, or as otherwise specifically provided in this Subpart, but in any event only in accordance with the provisions of these regulations.”
“Sec. 315.13. Judicial proceedings (judgment creditors, trustees in bank ruptcy, receivers of insolvents’ estates and conflicting claimants). — A claim against an owner or coowner of a savings bond and conflicting claims as to ownership of or interest in such bonds as between coowners or the registered owner and a designated beneficiary, will be recognized when established by valid judicial proceedings and payment or reissue will be made, upon presentation and surrender of the bond, except as follows:
“(1) No such proceedings will be recognized if they would give effect to an attempted voluntary transfer inter vivos of the bond or would defeat or impair the rights of survivorship conferred by these regulations upon a surviving coowner or beneficiary.
“A divorce decree ratifying or confirming a property agreement between husband and wife or otherwise settling their respective interests in savings bonds, will be recognized and will not be regarded as a proceeding giving effect to an attempted voluntary transfer for the purpose of this section.”
Subpart H deals with general payment and redemption provisions and that a Series G bond may be redeemed in whole or in part at the option of the owner prior to maturity, the details not being set forth for the reason no such redemption was attempted here. Sub-part L makes provisions concerning two name co-ownership bonds.
“Sec. 315.45. Payment or reissue. — A savings bond registered in the names of two persons as coowners in the form, for example, ‘John A. Jones or Mrs. Mary C. Jones’, will be paid or reissued as follows:
“(b) Reissue during the lives of both coowners. — During the lives of both coowners the bond may be reissued upon the request of both, as follows:
“(2) If the coowners are divorced from each other after the issue of the bond, the bond may be reissued in the name of either coowner, alone or with a new coowner or a beneficiary. The request must be supported by a copy of the divorce decree, certified by the clerk of the court under its seal. Application for the appropriate form to be used hereunder may be made to a Federal Reserve Bank or to the Treasury Department, Division of Loans and Currency, Merchandise Mart, Chicago 54, Illinois.
“(c) Payment or reissue after the death of one coowner. — If either co-. owner dies without the bond having been presented and surrendered for payment or authorized reissue, the surviving coowner will be recognized as the sole and absolute owner of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor. If the survivor requests reissue, he must present proof of the death of the other coowner.”
We note also Subpart N dealing with deceased owners, the first sentence of Sec. 315.47 reading as follows:
“Upon the death of the owner of a savings bond who was not survived by a coowner or designated beneficiary and who had not during his lifetime pre sented and surrendered the bond to a Federal Reserve Bank or the Treasury Department jor an authorized reissue, the bond will be considered as belonging to his estate and will be paid or reissued accordingly, as hereinafter provided, except that reissue under the provisions of this Subpart will not be made to a creditor.” (Emphasis supplied.)
There has been no previous case before this court involving the force and effect of the above treasury regulations, nor dealing with any question of ownership of United States Savings Bonds where co-owners have been named, or where one owner is named but the bond is payable on his death to another. In view of the concession of the appellee hereafter referred to, it is not necessary that we make an exhaustive review of the decisions of other states, where the question of ownership has been considered.
In Meyer v. Mercier, 102 Colo. 422, 80 P. 2d 332, (1938) the action was to determine ownership of $7,500 of “Baby Bonds” each made payable to “Mrs. Josephine M. Stanley or Mrs. Corrine S. Mercier,” the question being whether title passed under the will of Mrs. Stanley or whether the bonds belonged to Mrs. Mercier as the named survivor. In part the Supreme Court said that under art. VI, sec. 2 of the federal constitution, the laws of the United States were the supreme law of the land and every judge in every state is bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding, and that when congress determined that direct obligations of the government should be payable as provided by the act and regulations thereunder, it was not for the court to say that it had exceeded its powers. The judgment of the lower court holding the survivor to be the owner was affirmed.
In Conrad v. Conrad, 66 Cal. App. 2d 280, 152 P. 2d 221, (1944) Conrad as agent for Mrs. Inman purchased United States Savings Bonds payable to Mrs. Inman or Mr. Conrad, which he placed in her safety deposit box, making a list which.was delivered to her. She retained possession of the bonds until her death. The action was to determine ownership claimed by Conrad, the plaintiff, and the estate of Mrs. Inman. In that opinion may be found reference to Sinift v. Sinift, 229 Iowa 56, 293 N. W. 841, relied on by appellee here, but which the California court did not follow. The court in deciding the bonds went to the survivor and not to the estate of the deceased co-owner, said:
“[3a] In cases from other jurisdictions which announced what we term the ‘majority rule’ it is held that when the coowner, who furnishes the money with which to pay for the bonds, dies, they belong to the surviving coowner with no interest left in the deceased’s estate. They hold that the question is not one of gift but of contract under the federal regulations, those regulations providing for exclusive ownership in the surviving eoowner, and that death terminates all interest of the other coowner. Some of the bonds in those cases were issued to two persons as coowners, and others to the purchaser, and upon his death, to a named beneficiary. There seems to be no logical distinction to be made between the rights in the bonds of a surviving coowner or a surviving beneficiary.
“The following cases support the foregoing rule: Warren v. United States, 68 Ct. Cl. 634, certiorari denied, 281 U. S. 739 [50 S. Ct. 346, 74 L. Ed. 1154]; United States v. Dauphin Deposit Trust Co., 50 F. Supp. 73; In re Deyo’s Estate, 180 Misc. 32 [42 N. Y. S. 2d 379]; In re Karlinski’s Estate, 180 Misc. 44 [43 N. Y. S. 2d 40]; In re Di Santo’s Estate, 142 Ohio St. 223 [51 N. E. 2d 639]; In re Stanley’s Estate, 102 Colo. 422 [80 P. 2d 332]; Franklin Washington Trust Co. v. Beltram, 133 N. J. Eq. 11 [29 A. 2d 854].
“In the last cited case the court said:
“ ‘The statute authorizing the Secretary of the Treasury to issue Savings Bonds subject to such terms and conditions, as he may prescribe, is a valid exercise of the constitutional power “To borrow Money on the credit of the United States.” Art. I, Sec. 8, Cl. 2. The borrowing power necessarily includes the power to fix the terms of the Government’s obligation. Perry v. United States, 294 U. S. 330, 351, 55 S. Ct. 432, 79 L. Ed. 912, 95 A. L. R. 1335; Legal Tender Cases, 110 U. S. 421, 444, 4 S. Ct. 122, 28 L. Ed. 204. The treasury regulations under which the bonds were issued and reissued are within the authority given the Secretary by the Congress and have the force of Federal law. United States v. Birdsall, 233 U. S. 223, 34 S. Ct. 512, 58 L. Ed. 930; United States v. Janowitz, 257 U. S. 42, 42 S. Ct. 40, 66 L. Ed. 120. No state law can vary the terms of the Federal obligations or derogate from their full enforceability. Constitution, Art. VI, Cl. 2; Irvine v. Marshall, 20 How. 558, 15 L. Ed. 994; Ruddy v. Rossi, 248 U. S. 104, 39 S. Ct. 46, 63 L. Ed. 148, 8 A. L. R. 843.
“ 'The Treasury regulations above quoted were not devised solely for the protection of the Treasury, to simplify its task of determining whom to pay in case of the death of the registered owner. The regulations have the further effect of defining the rights of the registered owner and the beneficiary as between themselves, for these rights inter sese are the reflection of the contract obligation of the United States to the owner and to the beneficiary severally. The title of the registered owner, his cause of action against the United States, is cut off by his death; the beneficiary thereupon becomes sole and absolute owner.’ ” (l. c. 285.)
In re Estate of Murray, 236 Iowa 807, 20 N. W. 2d 49, (1945) the proceeding was to determine ownership of bonds purchased by Murray, one-half of which were made payable to his wife Mary E. Murray and the other half to Edward J. Murray or Mary E. Murray. The lower court determined the bonds belonged to Mary E. Murray and the Supreme Court affirmed. The court quoted approvingly from Conrad v. Conrad, supra, a portion of the quotation made above as well as from cases from other jurisdictions to the same effect, and held that the United States Treasury Bonds were issued under regulations which created a contractual relationship as to the co-owners, and that such bonds were the absolute property of the surviving co-owner.
In Harvey v. Rackliffe, 141 Me. 169, 41 A. 2d 455, (1945) the bonds involved were issued in the name of William A. Griffin, payable on death to Etta E. Covel, a form permitted under United States Treasury regulations. The reasoning of that case is applicable to co-ownership bonds. There a rather exhaustive review of-the authorities may be found to which reference is made, and the weight of authority found to be in line with the rule of the cases previously cited. That court denominated the decisions in Decker v. Fowler, 199 Wash. 549, 92 P. 2d 254, 131 A. L. R. 961; Sinift v. Sinift, 229 Iowa 56, 293 N. W. 841; and Deyo v. Adams, 178 Misc. 859, 36 N. Y. S. 2d 734, as unsatisfactory. The holding of the court is reflected in the headnotes appearing in the official report:
“Treasury Regulations in respect to the transfer of United States war savings bonds are a proper exercise of the power given to the Secretary of the Treasury by the Congress; and they accordingly have the force and effect of Federal law.
“Under the provisions of the Federal constitution Congress has the power ‘to borrow Money on the credit of the United States,’ and ‘to make all Laws which shall be necessary and proper for carrying into Execution’ this power. Art. VI, Clause 2, provides that these laws ‘shall be the supreme Law of the Land; and the judges in every state shall be bound thereby . . .’
“The capacity of the Federal government to borrow money depends on the inviolability of its obligation, on its ability to carry it out strictly in accordance with its terms. If the state may treat the bonds here involved, or the proceeds of their sale, as the property of some person other than the one whom the contract has designated, the government has thereby been prevented from carrying out the agreement into which it has entered.
“In this case there was a contract with the United States for the benefit of a third party whose rights arise solely from the contract and in no sense by reason of a grant or gift; this contract gives the beneficiary a present, vested, though defeasible interest; it is governed by Federal law and must be enforced in accordance with its letter and its spirit uniformly throughout the United States; and no state statute or rule of law may stand in the way of such enforcement-.
“Because of the supremacy of Federal law a state rule has no application to this contract.” (Syl.)
Many other decisions to like effect may be found in the annotations in 140 A. L. R. 1435, 161 A. L. R. 170, 168 A. L. R. 245, 173 A. L. R. 550, and other annotations therein referred to.
In order that there be no doubt as to the appellee’s position we quote the opening part of the argument set forth in his brief:
“At the outset in this brief appellee will concede, as he conceded in the trial court, that the Treasury Regulations covering government bonds provide that bonds issued to co-owners go to the survivor on the death of the other; that attempted gifts of bonds inter vivos are not permitted; that the administrator of the estate of a deceased co-owner has no title as against the surviving co-owner. Let it also be conceded that a majority of the courts of last resort which have passed on the matter give effect to the Treasury Regulations and hold that government bonds are not transferable without reissue.
“Thus appellee does not quarrel with the law cited in appellant’s brief in this court and if the issue here were a simple legal question stated in this fashion:
“ ‘As between a surviving co-owñer of government bonds and the administrator of the deceased co-owner, who takes title?’ there would be nothing to argue about.
“The appellee takes the position here and successfully contended in the trial court that the issue is not as above quoted. The issue presented to the trial court in this case was an entirely different one. It was:
“‘Were these bonds actually co-ownership bonds or were they, on the contrary, in fact and in intention, the sole property of Bates T. Hamilton?’
“This question is one of fact — one which the trial court determined on ample evidence of high quality — one the determination of which no Treasury Regulations can withdraw or withhold from the prerogatives of a Kansas Court.”
Following the above is a résumé of the evidence introduced over appellant’s objection, and our attention is directed to the evidence admitted and the weight to be given it, and reference is made to our decision in Spark v. Brown, 167 Kan. 159, 205 P. 2d 938, where it was held that when one desires to create a joint tenancy with the right of survivorship language must be used to make that intention clear, otherwise it will not be created, and to Sinift v. Sinift, 229 Iowa 56, 293 N. W. 841, where it was held, in effect, that Congress in enacting legislation pertaining to United States Bonds, did not intend to authorize the Secretary of the Treasury to fix by regulation the title to or the ownership of the bonds or the money owing thereon, and to Katz v. Driscoll, 86 Cal. App. 2d 313, 194 P. 2d 822, (1948) which, while recognizing the rule of cases holding that as between the government and the survivor of co-ownership bonds, the courts will recognize the survivor, states that there is no case that holds that where the bonds are the result of fraud the persons defrauded cannot pursue the proceeds of such bonds in the hands of one who is a party to the fraud, and says that to so hold would put a high premium on. fraud. In that case Dolan, on his representation that he was an indigent, received public aid. Actually he was in funds which he invested in United States Savings Bonds, payable to himself or in event of his death to Driscoll. Dolan’s administrator claimed the bonds, and the opinion deals with a question of pleading. The general rule heretofore noted is recognized as to payment to the beneficiary, but it was held that equity and fair dealing require that a person benefiting by a fraudulent transaction be required to disgorge the proceeds independently of the contract between him and the federal government. In substance it was held Dolan’s administrator was entitled to only so much of the proceeds of the bonds as was necessary to make up the deficiency of assets in his hands.
Spark v. Brown, supra, did not deal with United States Savings Bonds. In any event a reading of that opinion will disclose that it is not in point here on the facts. Sinift v. Sinift, supra, has been criticized and not followed, as cases reviewed above disclose. Concededly it promulgates a minority rule. Katz v. Driscoll, supra, is hardly in point here for appellee makes it clear that he did not in the trial court and does not in this court, assert that Dimmie Lemon was guilty of any fraud and that perhaps the worst that can be said is that her conduct smacks of unfair dealing that equitable principles ought to prevent and she should not be permitted to use the treasury regulations as a lock on the door of a court of equity. We may observe that the bonds were purchased when Bates and Dimmie were both present, he took them into possession and retained them and must be presumed to have known that if he died she would get the bonds. He made no effort to cash the bonds, as he could have done without let or hindrance and so far as the record is concerned there is no evidence whatever that he claimed at any time that he was sole owner, or that Dimmie had no interest in the bonds, or that she had deceived or defrauded him in the slightest.
While we have no difficulty in understanding the contention advanced by the appellee as summed up in the question he says is the issue presented, we cannot agree.
In our opinion, the majority rule heretofore stated in Conrad v. Conrad, supra, and other cases, is soundly based on statute and authority and should be followed. Under that rule, and under the undisputed facts in this case, when Bates T. Hamilton and Dimmie Hamilton purchased the bonds as co-owners and Bates T. Hamilton then took and retained possession of them, without making any effort to cash the bonds or to cause them to be reissued in his name as sole owner, upon his death the bonds became the sole property of Dimmie as the surviving co-owner.
In view of our conclusion we need riot discuss the question of the competency of evidence offered by the appellee further than to say that insofar as it tended to show an oral gift of Dimmie’s interest to Bates, or that Dimmie might have been willing to consent to a reissue had Bates so wanted, it was incompetent as tending to vary the terms of the contract evidenced by the bonds and the treasury regulations under which they were issued.
It may be observed that Dimmie Lemon’s claim to the bonds, which were in the possession of the administrator of the estate of Bates T. Hamilton, was properly asserted in the probate court.
The judgment of the trial court is reversed and the cause is remanded to the trial court to render judgment in favor of the appellant Dimmie Lemon. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a proceeding by motion in a tax foreclosure action to set aside all proceedings therein including the foreclosure judgment and sheriff’s deed on the ground all proceedings were void on théir face. The motion was overruled and the movant, J. R. Smith, has appealed.
The foreclosure action was instituted by the board of county commissioners of Cherokee county. The single cause of action, No. 237 here involved and included in the petition, pertained to real estate of which The Robinson Coal Company, a corporation, was the record title owner. The purchasers thereof at sheriff’s sale were Thomas Hodgson and Josephine Hodgson, his wife. The unverified motion to set aside all foreclosure proceedings as void was filed by J. R. Smith. His motion alleged he was the owner of the real estate in question by virtue of a deed executed and delivered to him by The Robinson Coal Company. The date of the delivery of such deed was not stated and it was not alleged such deed was recorded. The record presented to this court does not disclose any evidence was introduced in support of Smith’s motion. It was and is appellant’s theory the proceedings are void on their face and the purchasers at the sheriff’s sale obtained no title to the real estate. Appellant predicates his right to maintain the instant proceeding solely on the authority of G. S. 1935, 60-3009 which reads:
“A void judgment may be vacated at any time, on motion of a party or any person affected thereby.”
The hearing consisted entirely of arguments on appellant’s unverified motion which the district court overruled. Title to the real estate was quieted in the purchasers at sheriff’s sale.
Appellant’s contentions are based on two grounds alleged in his motion. He argues there was no service on The Robinson Coal Company, a corporation, and that the description of the real estate in all parts of the proceedings, including the sheriff’s deed, was insufficient to pass title to any ascertainable piece or tract of real estate and the title was, therefore, void on its face. The real estate was described in all proceedings as follows:
“Fraction of the Northeast Quarter of the Northeast Quarter of Section 25, Township 32, Range 23, in Cherokee County, Kansas, (surface only), (Except that part of surface only deeded to State for a State Park), (33% Acres).”
The sheriff’s deed was executed and delivered to the purchasers December 23, 1948, and the sale was confirmed the next day. Appellant’s motion was filed August 30, 1949. Neither the board of county commissioners nor the purchasers at sheriff’s sale has filed a brief. The settled law of this state is, as appellant contends, that a description in a tax deed must be such that with ordinary and reasonable certainty it can be determined what has been sold, citing Wilkins v. Tourtellott, 28 Kan. 825; Harding v. Greene, 59 Kan. 202, 52 Pac. 436; Kruse v. Fairchild, 73 Kan. 308, 85 Pac. 303, and also that the description of the land must be sufficiently definite to enable a sheriff to execute the order of sale; that is, to find and sell the property intended to be sold. (Swalwell v. Wyatt, 124 Kan. 152, 257 Pac. 742.) It also has been held, as appellant contends, that in a sale and conveyance of real property for taxes the description is sufficient if it would be sufficient in an ordinary conveyance between a grantor and grantee. (Kruse v. Fairchild, supra; Marion County Comm’rs v. Clark, 157 Kan. 132, 138 P. 2d 449; G. S. 1947 Supp. 79-2316.)
The problem presented is an application of the stated rules. As previously stated no evidence was introduced in support of the motion. The sheriff’s return discloses the property described was sold to the purchasers. Insofar as the record before us is concerned it, therefore, does not appear the sheriff had any difficulty determining what part of the forty acre tract belonged to the state for state park purposes. All except six and one-half acres of the forty acre tract were directed to be sold. The sheriff’s return shows he sold the remaining thirty-three and one-half acres to Thomas Hodgson and his wife. There is no indication the purchasers did not know from the description what they were buying. For all that appears in the record presented to this court the sheriff may have found the part belonging to the state of Kansas had been fenced and marked “State Park” or that by reason of other markings he was entirely able to identify the respective tracts of land. In view of the sheriff’s return and in the absence of contrary testimony we cannot assume the sheriff experienced any difficulty in ascertaining the thirty-three and one-half acres which he was directed to sell and no doubt is shown to have existed in the minds of the purchasers relative to what tract they were buying. Under these circumstances we cannot say the district court erred in refusing to declare the sale void by reason of an inadequate description of the real estate.
Appellant’s contention the service on The Robinson Coal Com pany was void runs as follows: The foreclosure petition stated The Robinson Coal Company, a Kansas corporation, was the owner or supposed owner of the property to be sold; the sheriff’s return stated, “I cannot find the following named defendants in my County — The Robinson Coal Company, a Kansas Corporation”; the affidavit for service by publication stated, in part, . . plaintiff does not know and cannot learn or ascertain under the laws of what state said corporations were incorporated or the location of their principal office or principal place of business or any of the officers, managers or directors of said corporation. . . .”
Appellant argues the allegations in the petition and the affidavit are inconsistent and nullify each other to the extent that no affidavit for service by publication existed. Did the stated inconsistency render the publication service a complete nullity? It does appear there is a partial inconsistency in the allegations of the petition and the affidavit relative to whether The Robinson Coal Company is a Kansas corporation. That, however, is not the only fact the affidavit alleged. It also stated, as previously indicated, "... plaintiff does not know and cannot learn or ascertain . . . the location of their principal office or principal place of business or any of the officers, managers- or directors of said corporation. . . .”
For present purposes we may assume, in favor of appellant, that The Robinson Coal Company was a domestic corporation. The manner of obtaining service on defendants in a tax foreclosure action was governed by G. S. 1947 Supp. 79-2801. After making provision for the filing of the petition and for the delivery of copy thereof, the statute states:
“Thereupon, summons shall issued [issue] and shall be personally served or publication made as provided in other cases under the code of civil procedure, but in the event service is made by publication, the notice, in addition to the requirements prescribed by the code of civil procedure, shall contain a description of the real estate.”
Although the preceding statute has been amended in certain particulars the amendment does not affect the above quoted provision. (H. B. 70, ch. 477, § 1, laws 1949.)
The civil code provides for publication service in cases where . . the plaintiff upon diligent inquiry is unable to ascertain whether a corporation, domestic or foreign, named as a defendant, continues to have legal existence or not, or has officers or not, or their names and whereabouts. . . .” (G. S. 1935, 60-2525.) (Emphasis supplied.)
Although the affidavit in the instant case was irregular in that it did not employ the words “upon diligent inquiry” we think reasonable inferences from facts alleged were sufficient in that particular as against the contention the publication notice was void. (Washburn v. Buchanan, 52 Kan. 417, 34 Pac. 1049; Smith v. Land Co., 82 Kan. 539, 108 Pac. 860; Van Gundy v. Shewey, 90 Kan. 253, 133 Pac. 720.)
The district court, therefore, acquired jurisdiction of the parties. That it had jurisdiction of the subject matter is not disputed. Appellant’s attack on the foreclosure proceeding is based entirely on the contention the proceedings were void on their face. He specifically states his contention is not based on the theory of a false affidavit. Yet his unverified motion alleged facts tending to show service could have been obtained on The Robinson Coal Company. Appellant introduced no evidence to support the allegations of his motion and, of course, his unverified motion did not constitute evidence.
For all the record before us discloses The Robinson Coal Company may have been incorporated under the laws of this state as alleged in the petition but entirely defunct at the time the tax foreclosure action was instituted. It is interesting to note the petition alleged taxes on the real estate in question had remained unpaid by the record title owner during all of the years from 1930 to 1947, inclusive.
The proceedings were not void on their face and appellant could not obtain by a mere motion the relief he desired under the provisions of G. S. 1935, 60-3009. The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal by the defendant railway company from a judgment for plaintiff in an action for the alleged conversion of a carload of cattle which defendant undertook to ship for plaintiff owner.
The principal question presented concerns the proper measure of damages under the facts of the case as here disclosed by the evidence.
Briefly summarized, the petition alleges that plaintiff, the owner of thirty-six head of branded steers and stags, on October 31, 1946, delivered them to defendant at its railway station at Matfield Green, Kan., for shipment-to Beeler, Kan., for winter wheat pasture; that defendant as a common carrier for hire accepted and loaded the cattle for shipment and departed with them in a car attached to one of its freight trains. That prior thereto plaintiff had arranged for another person to receive at the point of destination the cattle so shipped, such other person to place them on winter wheat pasture, and that instead of delivering to consignee the cattle in question defendant delivered a carload of cows belonging to a person or persons unknown to plaintiff, but represented to consignee that such load of cattle was the load shipped by plaintiff. The petition further alleges that plaintiff did not discover the error until the following spring, but that immediately upon such discovery he notified defendant company in writing that the cows so delivered were not his cattle and made demand on defendant for the load of branded steers and stags actually shipped by him. That thereupon defendant took possession of and removed the cows but has failed, neglected and refused to deliver plaintiff’s- cattle to him. It is further alleged that defendant had knowledge of the fact plaintiff was shipping his cattle to Beeler to be placed on winter wheat pasture and that by reason of the conversion on the part of defendant plaintiff was deprived of his rightful gain upon his cattle between the time they were shipped and when he first learned of the conversion by defendant.
The prayer of the petition is for recovery of the value of the cattle in the amount of $3,600 with interest from October 31, 1946; for the sum of $170 expenses incurred by plaintiff in attempting to locate his missing cattle; for the further sum of $2,200 on account of loss of normal gain the cattle would have made during the interval in question, and for reasonable attorney fees.
The answer of defendant company was a general denial.
Prior to trial the defendant offered to confess judgment in the sum of $4,000, exclusive of any attorney fee which the court might find due. This offer was refused by plaintiff.
Plaintiff’s evidence at the trial, which was by jury, showed the following facts:
Plaintiff was a Chase county farmer and cattleman. In October, 1946, he purchased some mixed cattle at Wichita and trucked them to Matfield Green where they were branded. On October 31, 1946, he delivered seventy-two head of steers and stags to defendant company at Matfield Green where they were loaded into two cars, thirty-six head to the car, for shipment to Beeler, at which place they were to be put on winter wheat pasture. The consignee in the bill of lading was one Levan, a real estate broker of Ness City with whom plaintiff had previously made arrangements for the former to receive the cattle and to find suitable wheat pasture for them at a monthly rental of $3.50 per head. Levan did not know what kind of cattle plaintiff was going to ship him. He received two carloads on November 2, 1946, purportedly from plaintiff and so advised plaintiff by telephone, but no mention was made as to the kind or type. The two loads were put on winter wheat pasture by Levan. Later plaintiff shipped other cattle to Levan for the same purpose and these were mingled with the two carloads in question. On one or two occasions during the winter plaintiff was out in Ness county to look over his cattle but discovered nothing wrong. He noticed cows on pasture but assumed they belonged to another party. In April, 1947, he went out to Ness county to take his cattle off of pasture and at that time discovered that defendant had delivered only one carload of his steers and stags the previous fall and had delivered a carload of cows in place of the other load. He notified the claim department of defendant immediately and did not take delivery of the cows. He paid pasture rental on them at the rate of $3.50 per head per month during the period in question. The record before us is silent as to the true ownership of the cows and neither is there any evidence as to what became of the carload of steers and stags belonging to plaintiff. Further, there is no evidence concerning just when or where the alleged conversion occurred.
Plaintiff’s evidence also established that it was a common practice for eastern Kansas cattlemen to ship their cattle to western Kansas for the winter wheat pasture season under conditions and arrangements similar to those he had with Levan; that wheat pasture was particularly good that winter in Ness county and that his other cattle gained about 250 pounds per head during the season. There was further evidence that the cattle were worth from $100 to $112 per head on October 31, 1946, when they were delivered to defendant at Matfield Green for shipment. There is no evidence as to what their -value would have been at Beeler, the point of destination.
Defendant objected to the evidence concerning their value at Mat-field Green and to the evidence with reference to gain they normally would have made during the pasture season, but these objections were overruled.
Defendant demurred to plaintiff’s evidence on the ground it failed to prove a cause of action. This demurrer was overruled.
The only evidence offered by defendant w'as the testimony of its station agent at Ness City, who handled the station work at Beeler, and its station agent at Matfield Green. The former testified that thirty-seven head were unloaded from one car and thirty head from another. His company report showed sixty-eight head delivered at Beeler, sixty-seven alive and one dead. The testimony of the other witness is immaterial for our purposes.
At the conclusion of all the testimony defendant moved for a directed verdict. This motion was overruled.
. Defendant requested the lower court to give the following instruction to the jury:
“You are instructed that if you find that the defendant converted plaintiff’s steers and stags, the measure of damage in this case would be the market value of said steers and stags at the place of destination named in the bill of lading, less the charges of transportation, plus interest from time of conversion to date of verdict.”
This was refused and in lieu thereof, after telling the jury that plaintiff could not recover for money expended by him in attempting to locate the missing cattle and for pasture rental paid out by him, the court, over defendant’s objection, gave instructions numbered 2 and 3, as follows:
“No. 2
“In addition to the items of recovery mentioned in Instruction No. 1, plaintiff’s petition contains three other recoverable items and evidence was introduced in this case in support of these and they are as follows:
“1. Value of the cattle shipped from Matfield Green, Kansas, which defendant converted to its own use.
“2. Reasonable attorney fee.
“3. Damages sustained by the plaintiff by reason of being deprived of his rightful gain and resulting profit from said cattle from the time of shipment and the time plaintiff learned of the conversion.
“As to item No. 1, you are instructed that under the evidence in this case the plaintiff is entitled to recover the sum of $3,938.00.
“As to item No. 2, you are instructed that under the evidence in this case the plaintiff is entitled to a reasonable attorney fee in an amount not to exceed $500.00.
“No. 3
“As to the item of damage No. 3 mentioned in instruction No. 2, it is the contention of the plaintiff that he sustained damage in the amount of Twenty Two Hundred Dollars ($2,200.00) in addition to the value of the cattle at time of said shipment, by reason of the failure of the defendant to deliver his cattle at Beeler, Kansas. The plaintiff contends that said damage in the amount of Twenty Two Hundred Dollars ($2,200.00) consisted of loss of profit, that is gain on his cattle which he might reasonably anticipate would accrue from their use of winter wheat pasture which plaintiff had rented in Ness County, Kansas, during the pasture season of 1946-1947. In this connection, you are instructed that loss of profit or prevented gain is a proper item of damage when the same is the proximate result of the defendant’s act, and the amount thereof can be determined with reasonable certainty.
“You are instructed that the burden of proof is upon the plaintiff and before he can recover from the defendant for this item of damage he must prove by a preponderance of the evidence, as that phrase is hereinafter defined to you in those instructions, the following essential facts:
“1. That the thirty-six head of steers and stags owned by the plaintiff were to have been pastured on winter wheat pasture in Ness County, Kansas, during the 1946-1947 season and that defendant had notice of such fact.
“2. That plaintiff did not discover that the defendant had failed to deliver plaintiff’s cattle at Beeler, Kansas, until on or about April 20, 1947.
“3. That if said cattle had been delivered at Beeler and had been permitted to be upon the wheat pasture during the 1946-1947 season that such cattle would have gained in weight and their market value would have been increased thereby between the time of shipment of said cattle from Matfield Green, Kansas, on October 31, 1946, and April 20, 1947.
“If the plaintiff shall prove each and all of these essential facts by a preponderance of the evidence, as that phrase is hereinafter defined to you in these instructions, he will be entitled to recover upon this item of damage in an amount, not to exceed the sum of $2,200.00, otherwise not.”
The jury returned a verdict in favor of plaintiff in the amount of $5,806, made up of the following items:
“1. Value of 36 head of cattle.......................... $3938.00
“2. Attorney fee....................................... 500.00
“3. Damages for loss of gain and resulting profit......... $1368.00”
and in addition thereto answered three special questions submitted at defendant’s request; the substance of such answers being that at the time shipment was made the defendant, through its employees, had knowledge of the fact the cattle were being shipped to Beeler for the winter pasture season of an indefinite duration.
Defendant’s motion for a new trial was overruled and judgment was entered for the full amount of the verdict. Defendant has appealed from the order overruling its demurrer to plaintiff’s evidence and from the order overruling its motion for a new trial.
Defendant’s theory of this lawsuit is as follows: It contends the demurrer to plaintiff’s evidence should have been sustained for at least two reasons. First, that plaintiff’s evidence merely established the value of the cattle at Matfield Green, the point of origin, rather than at Beeler, the point of destination, and it is argued that the correct rule for computing damages is as embodied in the requested instruction, supra, which was refused. Secondly, it is contended that the evidence clearly showed Levan to be the agent of plaintiff in their dealings and therefore his knowledge of the number and kind of cattle received at Beeler was imputable to plaintiff as principal, which fact in turn would preclude plaintiff from recovering for the gain during the interval in question. Defendant’s contentions, with reference to the instruction refused and those given by the court, naturally follow, and, boiled down to its last analysis, defendant company argues that the lower court simply tried this case on an erroneous theory.
We first discuss the ruling, on the demurrer in the light of the evidence of the value of the cattle at Matfield Green as of the date of shipment. Even if defendant’s contention as to the proper measure of damages is correct — yet plaintiff’s evidence did show some damage, that is, his cattle were lost, and for that reason we think the demurrer was properly overruled, irrespective of the admissibility of his evidence concerning his loss of gain. In passing, however, we cannot agree with defendant’s argument that the evidence showed the relationship of principal and agent to exist between plaintiff and Levan — at least not to the extent urged. True, there were some elements of “agency” present, but we do not think to the extent that knowledge by Levan of the kind and number of cattle received at Beeler was imputable to plaintiff. We think the relationship thus created was one of agistment, or that of bailor and bailee, as sometimes referred to. (Cox v. Chase, 99 Kan. 740, 163 Pac. 184; Boots v. Thompson, 110 Kan. 69, 202 Pac. 589; 3 C. J. S., Animals, § 15, p. 1107.) The demurrer to plaintiff’s evidence was properly overruled.
But what about defendant’s other contention, which goes right to the very heart of this case? In the absence of evidence as to where the conversion actually took place, plaintiff brought and tried this lawsuit on the theory that it occurred at Matfield Green, the point of origin; that the proper measure of damages was the value of the cattle at that time and place, and that in addition thereto he was entitled to recover the gain they normally would have made at the point of destination had such conversion not occurred. Under such a theory he of course would not be entitled to recover freight charges and pasture rent paid out by him, and undoubtedly that is the reason he did not sue for those items.
The authorities are in accord to the effect that it is difficult, if not impossible, to lay down any hard and fast rule as to the measure of damages in cases where a carrier fails to deliver the property shipped. Under some circumstances it has been held to be the value of the property at the point of origin — in others the value at the time and place of conversion — while under other circumstances the value at the point of destination, less transportation charges. (See 53 Am. Jur., Trover and Conversion, § 94, et seq., p. 885.) Here there was no evidence as to where or when the conversion actually occurred.
Both parties rely on the case of Railway Co. v. Implement Co., 73 Kan. 295, 85 Pac. 408, 117 Am. St. Rep. 468, 9 Ann. Cas. 790, 6 L. R. A. (N. S.) 1058. Plaintiff contends it supports his right to recover for gain to the cattle, while on the other hand defendant argues the holding supports its theory that the proper measure of damages is the value of the property at point of destination, less transportation charges
In that case an implement dealer in Hutchinson had ordered two threshing machines from the factory in Michigan and they were to be delivered at Larned. They were received for shipment by the carrier on June 12, and in the ordinary course would have arrived at their destination within ten days, but on account of negligent delays did not arrive until some time in the month of August, long after the threshing season had closed. The dealer had already sold the two machines and was to receive his commissions out of the proceeds when collected. Due to the negligent delay in shipping the would-be purchasers cancelled their orders and the dealer was thus deprived of his commissions. He brought suit to recover for the loss of commissions and the value of the property converted and the court in upholding his contention said:
“The measure of damages is compensation for the injury sustained. An amount which will place' the injured party in the same condition he would have occupied if no loss had occurred will satisfy this requirement. If in this case the machinery had been delivered according to contract, the price for which it had been sold would have been realized. Out of this amount the commission due the plaintiff would have been deducted. . . ,. The selling price at the place of delivery seems, therefore, to be the true measure of damages.”
Plaintiff also relies on the case of Degnan v. Young Bros. Cattle Co., 152 Kan. 250, 103 P. 2d 918, as authority for his right to recover for gain his cattle would have made during the winter except for the conversion. 'There the plaintiff sued for breach of contract to rent a pasture to him. As a result of the breach he was forced to sell his cattle in April and this court affirmed a judgment which permitted recovery for the gain in weight which the cattle would have made on the pasture and also for the increase in price, because cattle were higher in the fall than in the beginning of the pasture season. The court held that recovery might be had for loss of profits which were the direct and immediate fruits of the contract itself; that such profits were not to be regarded as consequential, remote or speculative in character but were to be regarded as part and parcel of the contract itself.
In the case of Meek v. Railroad Co., 95 Kan. 111, 147 Pac. 1112, there was a failure by the carrier to deliver cattle at their proper destination. And while the facts were unlike those in the instant case, in the opinion the authorities were reviewed and the court followed the general rule to the effect that the measure of damages for the failure of a common carrier to deliver goods is the value othe goods at the time and place of destination in the condition in which they should have been delivered, and that the owner is entitled to recover such value, less the charges for transportation and delivery.
We think that under the facts of this case the proper measure of damages recoverable by plaintiff would be the value of the cattle at Beeler, the point of destination, rather than at the point of origin. The record, however, is silent as to what their value would have been had they arrived on schedule at Beeler. On the other hand, we think it is a fair assumption that the value at the latter place, had delivery been made, would have been substantially the same as that at the point of origin. Defendant company has not shown it has been or would be prejudiced by taking their value as that which the jury found it to be at the point of origin.
On the question of plaintiff’s right to recover for gain by the cattle during the interval in question, we think the Implement Co. case, at 73 Kan. 295, and the Degnan case, at 152 Kan. 250, both supra, are readily distinguishable from the case at hand. In the former case the dealer had already sold the machines but due to the negligent delay by the carrier the sales fell through and he was thus denied his commissions. Such loss was directly attributable to the fault of the carrier to such a degree and extent as to be in fact a very part of the contract of shipment itself, and in no way could be considered as remote or consequential damages. In the Degnan case suit was brought for breach of contract to rent a pasture to plaintiff, which resulted in his being forced to sell his cattle due to inability to find other pasture, and the court properly held that recovery could be had for the resulting loss of profits which were the direct and immediate fruits of the contract itself. Such is not our case, and we are unable to agree with plaintiff’s contention that under the facts here presented he is entitled to recover for the gain the cattle would have made.
It is of course argued that if in the instant case defendant had delivered the cattle at Beeler, as it undertook to do, plaintiff would have been enriched by the amount of gain they would have put on during the winter pasture season; but it must be remembered that plaintiff brought this action for conversion and elected to try it on the theory that so far as the measure of damages is concerned the conversion took place at the point of origin. We have already demonstrated that this theory is erroneous. Under the general weight of authority rule- — to the effect that in a case such as this the correct measure of damages is the value of the goods at the time and place of destination in the condition in which they should have been delivered, less the charges for transportation — it appears that the basis for deduction of transportation charges is that the shipper should not have the advantage of the increased value of the property due to its being transported — that is, he is entitled only to the net value at the place of destination. But here we have no proof of the value of the cattle had they arrived at Beeler and the record is also silent as to the amount of freight charges paid by plaintiff on the load which did not arrive. We have already expressed our views on the question of their value at Beeler, had they arrived there, and the amount of freight charges is of course ascertainable by both parties. In the absence of a showing of their enhanced value had they arrived at Beeler, in our opinion it would be inequitable to deduct such transportation charges under the facts of this case.
What disposition, then, is to be made of the case? In accord with the views heretofore expressed we have concluded that if plaintiff will accept the value of the thirty-six head of cattle as found by the jury, with interest, together with the transportation charges herein referred to, plus the attorney fee as found by the jury, and will so notify the clerk of this court within twenty days from the filing of this opinion, the judgment as so modified will be affirmed; otherwise defendant will be entitled to a new trial.
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The opinion of the court was delivered by
Wertz, J.:
This is an action for injunction brought in the name of the state to restrain the enforcement of an order of the county superintendents of public instruction of Lyon and Coffey counties altering the boundaries of Joint School District No. 1 of Lyon and Coffey counties.
The action is- brought against the state superintendent of public instruction, the county superintendents of Lyon and Coffey counties, and Joint School District No. 1 of Lyon and Coffey counties. Motion to quash service of summons on the state superintendent of public instruction was sustained and he is no longer a party to this action. Issues were joined and the case tried by the district court. From its judgment granting the injunction, defendants (county superintendents and joint school district) appeal.
The facts may be stated by narrating the court’s findings: Joint District No. 1, Counties of Lyon and Coffey, lies within both of said counties and maintains a high school. Common School District No. 15 lies wholly within Lyon county, Kansas, a portion of its area being within the boundaries of Neosho Rapids Joint Rural High-school District No. 3. Following presentation of an application for such purpose, the county superintendents of Lyon and Coffey counties gave notice of, and held a hearing, considering alteration of the boundaries of Joint District No. 1, Counties of Lyon and Coffey, by attaching thereto all of Common School District No. 15, Lyon county, Kansas, except that portion contained within the boundaries of Neosho Rapids Joint Rural High-school District. At such hearing, held on May 17, 1949, the two county superintendents, acting jointly, altered the boundaries of Joint District No. 1, Counties of Lyon and Coffey, as applied for. Within the time prescribed by law, an appeal from their order was taken to the state superintendent of public instruction, who held a hearing on July 15, 1949, and on August 10, 1949, rendered his decision sustaining the action of the county superintendents. That portion remaining of Common School District No. 15 within the boundaries of Neosho Rapids Joint Rural High-school District No. 3 and not included by such orders in Joint District No. 1, Counties of Lyon and Coffey, contained a school population of less than fifteen consisting of two pupils of school age, one of whom was actually attending school. There is here no question as to the facts. The trial court made findings of fact as above related and concluded as a matter of law that the alteration of boundaries of Joint District No. 1, Counties of Lyon and Coffey, which left Common School District No. 15 with a school population of less than fifteen without first having obtained the approval of the board of county commissioners of Lyon county, Kansas, was unlawful and the order made was of no further force and effect, and permanently restrained and enjoined the county superintendents of Lyon and Coffey counties from enforcing their order altering the boundaries of Joint School District No. 1 made on May 17,1949.
Within time appellants filed their motion for judgment on the findings of fact on the ground that they do not support the conclusion of law and judgment, and their motion for a new trial alleging erroneous rulings of the court and that the decision is contrary to the evidence. Each motion was argued to the court and overruled, and appellants appeal from such rulings assigning as error that the lower court erred in its conclusion of law and in overruling their motions for judgment on the findings of fact and for a new trial.
• The question presented here is one of statutory interpretation. Appellants contend that G. S. 1935, 72-304, relating to alteration of boundaries of joint school districts is a specific act, complete within itself, and as such not subject to the provisions of G. S. 1935, 72-213, relating to the formation and alteration of boundaries of school districts lying wholly within the boundaries of a single county. Appellee contends that G. S. 1935, 72-213 and 72-304 are companion laws, a part of the general school laws, and that they are pari materia and should be so construed; and that the county superintendents in proceeding under 72-304 are bound by the limitations contained in 72-213.
G. S. 1935, 72-213 provides in part:
“It shall be the duty of the county superintendent of public instruction to divide the county into a convenient number of school districts, and to change such districts when the interests of the inhabitants thereof require it . . . but no new school district shall be formed containing less than fifteen persons of school age, no district shall be so changed as to reduce its school population to less than fifteen . . . Provided, That any person interested may appeal to the board of county commissioners from the action of the county superintendent: And provided further, That the restrictions as to school population and assessed valuations of this section shall not prevent desirable changes in school-district boundaries when the proposed alteration of boundaries is approved by the board of county commissioners. . . .”
This section of the general school law provides for the formation and alteration of school districts wholly within a county, placing certain restrictions thereon and granting aggrieved parties the right of appeal to-the board of county commissioners from the action of their county superintendent.
G. S. 1935, 72-309 provides:
“If in the formation or alteration of or refusal to form or alter school districts any person or persons shall feel aggrieved, such person or persons may appeal to the board of county commissioners, who shall confer with the county superintendent, and their action shall be final . . .”
This section applies to school districts situated wholly within one county and does not apply where joint school districts are involved. (State, ex rel., v. Rural High School Joint District, 115 Kan. 526, 222 Pac. 1106.)
G. S. 1935, 72-303 provides in part:
“When it shall become necessary to form a school district lying partly in two or more counties, the county superintendents of the counties in which the said tract of cduntry shall be situated, when application shall be made in writing to any one of them by five householders, residents therein, shall, if by them deemed necessary, meet and proceed to lay off and form the same into a school district, issue notices for the first district meeting, and shall file the proper papers in their respective offices . . . Provided further, That no property shall be attached to an adjacent district situated in another county until notice has been given of an intention so to do and a hearing had as to the necessity or advisability of attaching such territory to the adjacent district.”
This section of the school law provides for the formation of joint school districts lying partly in two or more counties and for attachment of territory to them, setting out the procedure to be followed in formation and attachment of territory.
G. S. 1935, 72-304 provides:
“Such district so organized or having had adjacent territory in another county attached thereto shall be designated as ‘joint district number ........, counties of......................../ and the boundaries of such district shall not be altered except by the joint action of the superintendents of the several counties represented in said district.”
This section sets up certain restrictions and requires joint action of the county superintendents of the several counties represented in the joint district.
G. S. 1935, 72-305 provides:
“That if in the alteration of or refusal to alter the boundaries of any joint school district, or in the attaching or refusal to attach, to a school district adjacent territory situated in another county, any person or persons shall feel aggrieved, such person or persons may appeal to the state superintendent of public instruction . . . [provisions for notice and service] . . . and thereupon the state superintendent of public instruction shall fix a time for the hearing of said appeal, and notify the several county superintendents interested, and the appellants thereof; and his decision on said appeal shall be final, and shall be by him certified to the several county superintendents interested, and they shall take action in accordance therewith: And provided further, That each joint district, except in matters relating to the alteration of the boundaries thereof, shall be under the jurisdiction and control of the superintendent of that one of the counties in which the main school building is located.”
This section provides for appeal to the state superintendent of public instruction from the action of the county superintendents in formation, attachment or alteration of boundaries of joint school districts or refusal to do so.
The statute (72-213) applying to school districts lying wholly within a county, and the statutes (72-303, 304 and 305) applying to joint school districts are separate and complete in themselves and require or borrow nothing from the others; they provide separate and exclusive methods of formation and alteration of boundaries, and different methods of appeal.
The conclusion of law of the trial court would require the two county superintendents to obtain approval of the board of county commissioners of Lyon county before the boundaries of Joint District No. 1 could be altered and leave Common School District No. 15 with a school population of less than fifteen. We think the court erred in its conclusion for the reason that the officers acting were the county superintendents of two counties and the subject matter was a joint school district, Joint School District No. 1, lying in two counties. The board of county commissioners of Lyon county could have no jurisdiction over the two county superintendents acting in their joint capacity and over a joint district, a subject matter included in two counties. The procedure here is to alter a joint district outside the jurisdiction of the commissioners of Lyon county, and the effect on Common School District No. 15 is but incidental to the exercise of that power. The board of county commissioners has jurisdiction over appeals taken from the county superintendent who changes the boundary lines of districts lying wholly within the county in which he is an officer. It has no jurisdiction, however, over appeals taken from an ordér changing the boundary lines of a joint district, made by two or more superintendents given author ity over such matters. (Field v. School District, 83 Kan. 186, 109 Pac. 775; State, ex rel., v. Rural High School Joint District, supra.) Appeals from orders concerning joint school districts are to the state superintendent of public instruction (72-305, supra) and appeals from orders concerning school districts lying wholly within a county are to the board of county commissioners (72-309, supra). The jurisdiction of the board of county commissioners is only invoked by appeal. It has no original jurisdiction or authority in these matters; that belongs to the county superintendent alone. The only function of the board in this regard is to determine whether the decision of the county superintendent shall be sustained. (State v. Secrest, 60 Kan. 641; 57 Pac. 500.) Since approval of boundaries not in compliance with the school population provision can come on jurisdiction acquired only on appeal, this restriction can have no application to joint districts where the appeal is not to the board of county commissioners but to the state superintendent.
In the construction of statutes and reconciliation of conflicts, the court must always ascertain the intention of the legislature, if it can be done, from the subject matter of the statutes, and where there is a conflict, the entire context of the statutes and the consequences of their enactment may be taken int.o consideration. (County Board of Education v. Fiscal Court, 221 Ky. 106, 298 S. W. 185.)
It is clear that the legislature intended by the mentioned acts to provide separate methods for the formation and alteration of school districts lying wholly within a county and joint school districts lying in two or more counties. It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. This rule is applicable here. (Way v. Swain, 158 Kan. 238, 146 P. 2d 414; Sherman County Comm’rs v. Alden, 158 Kan. 487, 148 P. 2d 509; Cutrel v. Best, 169 Kan. 16, 18, 217 P. 2d 270; County Board of Education v. Fiscal Court, supra; 50 Am. Jur. 371 §§ 366, 367.) Sections 72-303, 304 and 305, G. S. 1935, relating to alterations of boundaries of joint school districts, are specific legislative acts which are complete in themselves, and these sections are neither subject to the provisions of, nor bound by the limitations of , section 72-213 relating to the formation and alteration of school districts lying wholly within the boundaries of a single county.
The judgment of the district court is reversed and the case remanded with instructions to dissolve the permanent injunction issued in said cause. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for damages alleged to have been sustained when a car being driven by plaintiff collided upon the highway with a mule owned by defendant. Judgment was for plaintiff. Defendant has appealed.
The petition alleged that about 9:30 p. m. plaintiff was driving his automobile north on a state highway; that two mules suddenly emerged, trotting upon the highway, directly in his path and the automobile collided with one of them; that defendant owned them and the proximate cause of the collision was defendant’s negligent failure to keep them confined, as required by G. S. 1935, 47-301 et seq; he alleged damages to his automobile and prayed for judgment in that amount.
Before the trial started, counsel for plaintiff stated he based his right to recover upon G. S. 1935, 47-122 and 47-124 rather than G. S. 1935, 47-301 et seq.
Plaintiff testified he was driving on the highway and his lights were in good condition; that he saw the mules come from the left about seventy-five feet ahead of him; that he slammed on his brakes because they came on the highway so suddenly; that he hit the rear end of the first mule and damaged his car; that defendant said he owned the mules and had owned them only about three weeks and apparently they had opened the gate and were going back to their former home. He then introduced evidence as to damages to the car, about which there was no dispute, and rested. The defendant demurred to the evidence. The demurrer was overruled.
There was evidence in behalf qf defendant with which we are not concerned here.
The specifications of error as far as we are now concerned are that the trial court erred in overruling defendant’s objection to the introduction of evidence, his demurrer to plaintiff’s evidence, his motion for a directed verdict and for judgment notwithstanding the verdict.
The plaintiff’s theory will be stated first: He argues G. S. 1935, 47-122 and 47-123 by their precise terms are applicable to persons in plaintiff’s situation and no search for the legislature’s reasons for enacting the statute is necessary or permissible; that even in the absence of a statute, under the common law, proof that animals are unattended upon a highway is sufficient evidence to make a pripa facie case of negligence upon the part of their custodian; proof that defendant’s mules were at large in violation of a statute placed upon defendant the burden of proving his violation of the statute was not due to lack of care upon his part.
The arguments send us to a consideration of the development of the law having to do with loose stock. In England the liability of the owner of stock was confined to damages caused by the stock when it had invaded the land of another. Such was not well adapted to the early day conditions of this country, especially those states comprising the great plains area, where open range for stock was to become a common feature of our rural life. This feature of our law is the story of the attempts of the legislatures and courts to adjust the rights of the farmers who tilled the soil and planted crops on the one hand, and those who emphasized stock raising on the other. The common law was remedied by the adoption in the states of so-called “fence” laws', whereby landowners were required to fence out their neighbors’ wandering livestock in order to protect their crops. In Kansas the subject was treated in chapter 40 of the Laws of 1868, now appearing as G. S. 1935, 29-101 to 29-104. This statute it will be noted is carried in the statute books under the subject of fences. By its enactment the common law was so far modified that no action would lie for injuries done on real estate by trespassing cattle unless the real estate was enclosed with a sufficient fence, as prescribed by the statute. (See U. P. R. W. Co. v. Rollins, 5 Kan. 167; also, Darling v. Rodgers, 7 Kan. 592.)
By the time the next legislature met those who placed their emphasis on growing crops, as distinguished from running stock on the open range, began to make their influence felt. The legislature in 1870 enacted chapter 115. It provided in the first section that it should relate only to six counties named and that it should be in effect for only five years. Section 2 provided that the owner of stock who allowed it to trespass on the land of another should be liable in damages to the person so injured. There were other provisions not now important. In Saline county Rodgers sued Darling because Darling’s stock came on Rodgers’ wheat field and did damage. Darling answered not denying the damage but alleging that there was no fence around Rodgers’ wheat field. The trial court sustained a demurrer to this answer and gave plaintiff judgment for $25. If chapter 115 had been good, the demurrer was rightfully sustained because Darling, the owner of the stock, was liable. We held chapter 115 bad because it did not have a uniform operation throughout the state. (See Darling v. Rodgers, supra.) The opinion is important, mainly for historical purposes.
There was in 1868 also an effort to limit somewhat the effect of chapter 40. That was by the enactment of article 1 of chapter 105 of that session. It provided that upon the presentation to the board of county commissioners of a petition signed by a majority of the electors of a township, the county board should make an order that all owners of domestic animals should keep them confined in the nighttime for certain portions of the year. There was also a section making the owners of stock liable for any damages from the depredations of such stock. This act was held valid. (See Noffzigger v. McAllister, 12 Kan. 315.)
The legislature of 1872 enacted chapter 193 of that session. It is spoken of generally as the “herd law.” It gave the county commissioners power to direct what animals should not be allowed to run at large within the county. After providing for the recordation of the order, the statute provided that persons injured in property by the running at large of any of the animals named in the order should have a lien upon the animals for the damages committed upon the property of such person. The next section provided for the taking into custody of animals about to commit a trespass upon premises owned by the person taking them up, and in another section that any landowner in such a county, who should enclose his land by a good and lawful fence, should have the same rights and powers conferred upon owners of real estate in counties not having the herd law. This chapter is carried in our present statute book as G. S. 1935, 47-301, 302, 303, 304 and 305.
The legislature of 1874 again dealt with the subject by the enactment of chapter 128 of that session. The first section provided chat when two-thirds of the legal voters of any county should petition the county commissioners to make an order that all neat cattle, horses, mules, asses, swine and sheep shall be prohibited from running at large, the order should be made. Section 2 provided any person who should permit any of those animals to run at large shall be deemed guilty of a misdemeanor and upon conviction should be fined. The third section provided that the owners of any of these animals permitted or allowed to run at large should be liable to any person who should suffer damage from the depredations or trespasses of these animals. The section further provided for a lien. This chapter is carried in our statute books as G. S. 1935, 47-309, 310, 311 and 312.
The legislature of 1879 further supplemented the herd law by the enactment of chapter 175 of the laws of that session. By the first section of this chapter the county commissioners were given the power to rescind or modify the herd law by providing what animals should not be permitted to run at lárge. The third section provided for the county commissioners calling an election on receipt of proper petitions and submitting to the people of the county the question of the suspension of the herd law. This chapter is carried in our present statute as G. S. 1935, 47-306, 307 and 308.
It will be noted that from 1868 to 1879 the question of livestock and liability of the owner on account of its being at large was a live legislative question. It received the attention of practically' every legislature. Chapter 128 of the Laws of 1874 was the most comprehensive enactment. There can be but little doubt the damages for which owners of livestock at large upon the highways were liable in the early days were those caused by the stock while trespassing on real estate. It should be remembered that these laws were all enacted before the days of hard surface roads, automobiles, buses and trucks. The hazards of travel upon the roads were not nearly so great then nor was there so much traffic.
There is one statute of comparatively recent enactment. It is chapter 235 of the Laws of 1917. It provides that when not less than fifty-five percent of the legal voters of a county in which horses, mules and cattle are permitted to run at large shall petition the county commissioners to make an order not to permit them to run at large, the county commissioners should make such an order. This chapter is carried on our statute books as G. S. 1935, 47-313.
Such was the legislative situation when chapter 211 of the Laws of 1929 was enacted. The first section made it unlawful for any neat cattle, horses, mules, asses, swine or sheep to run at large. The second section provided that any person whose animals should run at large in violation of the provisions of section 1 should be liable to the person so injured for all damages resulting therefrom, and the person so damaged should have a lien on the animals for the amount of the damages. The third section provided for taking the trespassing animals into custody. As originally enacted, this section provided it should not apply to counties where there had been established a forest reserve. Chapter 221 of the Laws of 1931 took this provision out of the act. These chapters are carried on our present statute books as G. S. 1935, 47-122, 123 and 124. These last sections are the ones upon which plaintiff bases his action.
Defendant first argues the statute was not intended to give a right to sue the owner of livestock for any damages except those committed while the stock was trespassing on land. In other words, the statute was not enacted for the benefit of automobile drivers on the highway.
The conclusion we have reached as to the disposition we should make of this appeal makes it unnecessary to consider some of the questions argued.
The statute upon which plaintiff depends uses the phrase “run at large” in both sections. The mule in this case was unattended upon the highway. There is no evidence whatever on the part of plain tiff as to how he happened to be there. The question is — Is a mule that is simply unattended upon the highway running at large, within the meaning of the statute? If the language of the statute does not mean that, then the evidence of the plaintiff did not prove a cause of action under the statute and the defendant’s demurrer to the plaintiff’s evidence should have been sustained. We find the answer in our own decisions. In K. P. Rly. Co. v. Wiggins, 24 Kan. 588, plaintiff’s mare was killed by a train being operated by defendant. It occurred in a county where the herd law was in force. The railroad admitted killing the mare and that its right of way was not fenced. It argued that in herd law counties the owners of domestic animals were bound to keep them from trespassing and if they failed to do so were liable for all damages done by them, irrespective of negligence; that the animal was trespassing on railroad property when she was killed and her owner was liable for all the consequences of such trespass. We first recited a substantial statement of the evidence and in dealing with the argument that plaintiff’s own evidence convicted him of contributory negligence said:
‘‘Reasonable precaution, and not absolute security, is required. If the latter were the rule, the fact that the animal got loose proves the negligence, and the manner in which she was confined is immaterial.”
In dealing with the other question we said:
“Can it be held that this animal was allowed to run at large? It would not seem that plaintiff could be charged with any violation of this statute when he had taken reasonable precautions to confine his animal.”
See, also, Mo. Pac. Rly. Co. v. Johnston, 35 Kan. 58, 10 Pac. 103; Mo. Pac. Rly. Co. v. Bradshaw, 33 Kan. 533, 6 Pac. 917; and Mo. Pac. Rly. Co. v. Roads, 33 Kan. 640, 7 Pac. 213.
An instructive discussion of this subject is in Railway Co. v. Olden, 72 Kan. 110, 83 Pac. 25. There three mules and a colt were killed by defendant railway company. The defendant argued that since the evidence disclosed the enclosure from which the stock escaped was not fenced with a legal fence the plaintiff was guilty of contributory negligence and could not recover. We pointed out how the fence law, chapter 40, Laws of 1868, modied the common law and that the enactment of the herd law, chapter 193 of the Laws of 1872, was a readoption of the common law. In considering the question of whether the fence law furnished a rule by which to determine whether the owner of stock in herd law counties was guilty of negligence in enclosing them, we said:
“The care and diligence that every man is required to exercise in the protection of himself or property is ordinary care in view of all the surrounding circumstances. If the stock killed be the ordinary farm stock, and the fence, such as is generally required to restrain that kind of stock, and they escape without his fault, he is not guilty of negligence and is not guilty of permitting the stock to run at large, and he may recover regardless of the fence law.”
In Abbey v. Railway Co., 108 Kan. 88, 194 Pac. 191, we said:
“Under the night-herd law (Gen. Stat. 1915, §§ 10974-10976), stock is confined when means shown by experience to be adequate for the purpose are employed, and if an escape occur without fault of the owner, the escaping animals are not regarded as running at large.” (Syl. If 3.)
These opinions all deal with actions brought against railroads for killing stock. About the only defense available to the railroads in such cases is the contributory negligence of the owner in permitting his stock, which was killed, to run at large. The opinions interpreted the statutes then in existence, however, especially the words “running at large” or “at large.”
Another decision of similar import is Hazelwood v. Mendenhall, 97 Kan. 635, 156 Pac. 696. At page 637 of the opinion in that case we held:
“. . . The requirement that the crops shall be protected by a legal fence is canceled by the herd law only so far as relates to animals that are ‘running at large.’ Any that without fault of their owner have escaped from an enclosure surrounded by a barrier reasonably adapted to their restraint are not regarded as within that term, . . .”
The rule seems to be universal that the words meant something more than merely being unattended. See 3 C. J. S. 1231, § 131, where the following statement appears:
“The meaning of the words ‘running at large’ differs in different statutes, and should always be determined largely from the objects and purposes sought to be accomplished by the particular statute wherein they are used. There is a distinction to be noted between a statute attaching a penalty to ‘permitting animals to run at large’ and one making it the duty of some municipal official to take up an animal ‘found running at large.’ A statute of the first class implies knowledge, consent, or willingness on the part of the owner that the animal be at large, or such negligent conduct as is equivalent thereto, but does not comprehend a case where, through some untoward circumstance, the owner is unable to watch and care for the animal in a particular instance, or where, notwithstanding the owner has taken precautions to restrain them, and is without fault or negligence, the animals escape from him, and he makes immediate and suitable efforts to recover them, or where the animals have been driven from the lands of their owner by a wrongdoer. The rule is otherwise, of course, if animals are at large through the negligence of the owner, or of his servants, or are permitted to go at large after knowledge of their escape.”
This was the rule announced in Champlin Refining Co. v. Cooper, 184 Okla. 153, 86 P. 2d 61. That was a case where a plaintiff’s automobile had collided with a horse at large and unattended upon the highway. The Oklahoma statute or herd law was somewhat like ours, that is, it used the words “running at large.” The trial court held the unlawful presence of the horse upon the highway established a prima facie case of negligence under the statute. The supreme court reversed on several grounds and on the question with which we are dealing held:
“Proof of the presence of a horse upon a public highway, at large and unattended, in violation of the Herd Law, sections 8986-9045, O. S. 1931 (4 Okla. St. Ann., sec. 91-184), which imposes a positive duty upon the owner of preventing such an animal from running at large and unattended and makes said owner liable for all damages done while wrongfully remaining at large upon the public highway or upon the lands of another, is not prima facie evidence of negligence on the part of such owner and will not of itself sustain an action for property damage to a motorist’s automobile resulting from a collision with said horse.”
See, also, Gardner v. Black, 217 N. C. 573, 9 S. E. 2d 10. This was a case where plaintiff’s automobile collided with a mule. The statute in question used the phrase “run at large.” The court held
“The owner or person having charge of domestic animals is liable for injury or damage caused by such animals while running at large only if the animals are at large with his knowledge and consent or at his will or their escape is due to negligence on his part.”
See, also, Howrigan v. Bakersfield, 79 Vt. 249, 64 Atl. 1130. There plaintiff sued the township because his blind mare was injured on account of the alleged insufficiency of a bridge the township was bound by law to keep in repair. The township defended on the ground it was contributory negligence in the plaintiff to allow the mare to stray along the highway unattended. The supreme court said:
“It is generally held, under statutes prohibiting horses and cattle going at large, that when they escape from their owner’s enclosure without his fault or negligence, they are not at large in the legal sense of the term.”
See, also, Anderson v. Nesbitt, 43 Ind. App. 703, 88 N. E. 523; also DeBuck v. Gadde (1943), 319 Ill. App. 609, 49 N. E. 2d 789.
Applying the above rule to the facts here, we hold that the plaintiff had the burden of proving in order to make a prima facie case, that the horse with which plaintiff collided was unattended upon the highway because its owner had failed to exercise due care in enclosing it, under all the surrounding facts and circumstances. He made no attempt to do this and thereby failed to prove a cause of action sufficient to warrant the trial court in submitting the issues to the jury.
Plaintiff argues that even in the absence of statute, proof that the mule was unattended upon the highway was sufficient proof of negligence by circumstantial evidence to make out a prima facie case. It is true there are some authorities holding that way. What this argument amounts to is that in such a case the rule of res ipsa loquitur applies. To so hold would be to hold that the fact an animal escapes from a pasture or corral or from custody while being led, ridden or driven or while hitched or tied to a hitching rack is so unusual that no other conclusion can be drawn from the occurrence itself than that the owner was negligent. Our knowledge of the ways of domestic animals forbid us doing that. We cannot assume merely because two mules were loose on the highway that the owner Was negligent in the manner in which he confined them. See Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938. We considered there a case where a team while tied to a hitching rack in a town became frightened, broke a halter strap and while running away on the street collided with a buggy in which the plaintiff was riding, and injured her. The theory upon which plaintiff sued was that the fact the halter strap broke was evidence the owner had negligently left them insecurely fastened. We said:
“It may well be questioned whether under the evidence in this case the fact that it broke draws with it any presumption that the strap was so defective as to make its use under ordinary circumstances negligence. . . . Ordinary care is all that was required of the defendant, and ordinary care does not require that all possible means for avoiding accident should be used. Quite true, the accident would not have occurred had the horses been hitched to an unbreakable rack with an unbreakable chain; nor would it have occurred had not the defendant driven to the city on that day; but ordinary care does not require the use of such precautions.”
Other opinions supporting this view as to res ipsa loquitur are Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77; and Starks Food Markets, Inc. v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102.
It follows the defendant’s demurrer to plaintiff’s evidence should have been sustained.
The judgment of the trial court is reversed with directions to enter judgment for defendant.
Smith and Thiele, JJ., dissent.
Price, J., concurs in the result.
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The opinion of the court was delivered by
Price, J.:
The ultimate question in this case concerns the liability of defendant insurance company under the provisions of a health and accident policy issued to plaintiff.
The policy, which provided for payment of $80 per month for a period not exceeding eighteen months for disability due to illness, was dated November 13, 1944. In the spring of 1946 plaintiff made claim for disability on account of a heart ailment and received from defendant company the monthly disability benefits for four consecutive months in accordance with the provisions of the policy, following which defendant refused to make further payments. In June, 1948, plaintiff sued to recover the remaining fourteen months’ disability benefits totalling $1,120. Defendant answered denying liability on the ground that plaintiff’s illness was not contracted and did not begin during the life of the policy but had been in existence for some time prior to the issuance thereof, and on the further ground that answers to certain questions contained in the application for the policy were knowingly falsely made by plaintiff, thereby voiding the policy which it is alleged would not have been issued except for such false and fraudulent representations on the part of plaintiff.
The case was tried by a jury which returned a general verdict for plaintiff in the amount of $1,120 and answered special questions. During the course of the trial defendant’s demurrer to plaintiff’s evidence was overruled as was its motion for a directed verdict at the close of all the evidence. Defendant’s motion for judgment on the answers to special questions was also overruled, but its motion for a new trial was sustained. Defendant company has appealed from the order overruling its demurrer to plaintiff’s evidence and from the orders overruling its motions for a directed verdict and for judgment on the special findings. Plaintiff has cross-appealed from the order sustaining defendant’s motion for a new trial.
The ruling on the demurrer to plaintiff’s evidence 'is made appeal-able by statute (G. S. 1935, 60-3302) and it has been held that even where a defendant’s motion for a new trial has been sustained an appeal still lies from the order overruling a demurrer to plaintiff’s evidence. (Henderson v. National Mutual Cas. Co., 166 Kan. 576, 203 P. 2d 250.) But with respect to the action of the court in overruling defendant’s motions for a directed verdict and for judgment on the special findings we hold that such matters are not before us due to the granting of a new trial, and we will therefore confine ourselves to the one proposition concerning the correctness of the order overruling the demurrer to plaintiff’s evidence.
The evidence of plaintiff disclosed that at the time of trial he was thirty-eight years of age and that he formerly lived in Emporia, where he worked for the Atchison, Topeka & Santa Fe Railroad Company as a road fireman. On August 2,1943, while so employed, he was injured when a manhole cover fell on his right big toe as a result of which he was hospitalized in the Santa Fe Hospital in Topeka. A general infection set in, resulting in fever and severe backaches, and while in the hospital he was told by his doctors that he had an arthritic condition. He was a patient in the hospital from August, 1943, until February, 1944. Shortly after his release from the hospital he went to his former home at Unionville, Mo., where he consulted with a Dr. Henson. The latter advised him that he had a weak heart and was suffering from rheumatic heart fever as a, result of the injury sustained the previous August.
He returned to his work with the Santa Fe, and in November, 1944, while at the Topeka roundhouse, was contacted by one Downer, an agent of defendant company. They discussed the matter of plaintiff buying a health and accident policy and plaintiff told Downer of his physical condition and expressed doubt that he was an insurable risk. At Downer’s suggestion they went to the Santa Fe Hospital to check plaintiff’s medical records. They returned to the roundhouse and after further conversation Downer proceeded to fill out an application blank. Questions 14 and 15 of the application are as follows:
“14. Have you been sick or injured or treated or examined by any doctor during the past two years other than periodical company medical examination? (Answer fully.)
“15. Have you now or have you ever had tuberculosis, hernia (rupture), venereal disease or infection, or any chronic disease or disorder, or have you now or have you had any deformity of body or mind, or any defect in hearing or vision, or lost any part of your body?”
Each of these questions was answered “No” in the handwriting of Downer, with the full knowledge of plaintiff.
A portion of question 16 of the application, material for our'purposes, reads:
“16. Do you agree: (a) That you have read or heard read and understand all the statements and answers as written or printed hereon of this application, whether written by your own hand or hot, and that they are made by you to obtain said insurance; that if any one or more of them be false, all right to recover under said policy shall be forfeited to the Association, if the matter misrepresented in any way contributes to any loss under which claim is made? . . .”
This was answered “Yes” in the handwriting of Downer, with the full knowledge of plaintiff.
Plaintiff himself signed the application, and excerpts from his testimony concerning this are as follows:
“Q. State to the court and jury whether you went ahead and signed the application that was there being filled out, and which we have had under discussion? A. Yes, sir.
“Q. What, if anything, did Mr. Downer say to you at the time you were signing it? A. Well, he said, ‘I will send it in to the company, and if they o-keh it, we will take the premium out of your next pay check.’
“Q. Did he say anything to you, or if so, what did he say in reference to his own signature on this application. A. I can’t remember that he said any particular thing, only he would approve it and send it in to the company.”
Plaintiff further testified that at all times he believed what his doctors told him and at no time did he ever doubt that he was suffering from a rheumatic heart condition brought on by the infection resulting from his injury of August, 1943.
In February, 1946, he was laid off by the Santa Fe, with the statement that he had a rheumatic heart condition. He moved to Iowa where he worked as a taxi driver and then as a hotel clerk. Later he brought suit against the Santa Fe, alleging that as a result of the injury sustained in August, 1943, his heart “was seriously and permanently affected and afflicted”.
The application and policy were introduced in evidence. Material portions of the latter are:
“The insurance hereunder is granted in consideration of the application for this policy, a copy of which is attached hereto and made a part hereof, and . . . provides indemnities.”
“(2) for disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in continuous force for fifteen days from its date, . . .”
“This policy includes the endorsements and attached papers, if any, and contains the entire contract of insurance. . . .” •,
“No statement made by the applicant for insurance not included herein shall avoid the policy or be used in any legal proceeding hereunder. No agent has authority to change this policy or to waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the Association and such approval be endorsed hereon.
“. . . No waiver of any of the provisions of this policy shall be valid unless agreed to in writing by an executive officer of the Association and attached hereto or endorsed hereon. . . .”
Plaintiff’s claim for disability benefits, filed with defendant company in the spring and summer of 1946, listed his illness as “rheumatic heart”; stated that he first consulted a doctor in February of that year, and that he had never been ill or treated for this condition before. Physicians’ statements attached to his claims listed his illness as “Rheumatic heart disease” and “Septic Traumatic Heart Lesion.”
Was plaintiff’s evidence, even construed in its most favorable light, sufficient to withstand the demurrer?
Defendant argues that it clearly shows both plaintiff and agent Downer knew the answers to questions 14 and 15 on the application were false and that each knew that whether a policy was to be issued was to be determined by the application sent in to the company. It further contends that the disability sued upon was not a disability insured against for the reason that the evidence undeniably shows plaintiff’s heart condition to have been in existence prior to and at the date the policy was issued.
On the other hand, plaintiff argues that Downer was acting for defendant company, not plaintiff; that he, plaintiff, did not withhold any facts from Downer; that he had a right to assume Downer had the authority to do what he did in filling out the application; that the company is bound by Downer’s acts, and that defendant should be estopped from denying liability under its contract.
Boiled down to its very essence, the evidence of plaintiff unmistakably shows that as a result of his injury in August, 1943, he was hospitalized for about six months and was suffering from a rheumatic heart condition. The policy was applied for about nine months subsequent to his release from the hospital. At all times during the period in question plaintiff entertained no doubt concerning his true physical condition. The policy in question was the nonmedical type. The answer to questions 14 and 15 were clearly false and plaintiff knew they were false when he signed the application. He knew that the policy would not and could not be issued until approved by the home office and that such approval would depend upon the facts shown by the application. The very disability for which plaintiff seeks recovery is the same disability he suffered for about a year prior to and also as of the very date the policy was issued.
A somewhat analogous situation was before this court in the case of Priest v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538, and in the opinion it was said:
“There was evidence tending to show that the agent through whom the application was made knew that Doctor Priest was seriously ill, but desired to have a policy issued to him because of his prominence, for the influence it would have upon other prospects. The agent testified that he was ‘state agent’ for the company, his office being at Topeka; another witness said he was the general agent for Kansas. A written contract between himself and the company, however, showed that his authority was confined to receiving applications and submitting them for approval. . . . There is some difference of opinion whether an insurance company is chargeable with knowledge of an applicant’s condition obtained by its medical examiners or soliciting agent. . . . But assuming the imputed-knowledge rule to apply to them as well as to other agents, it does not extend to eases where answers are given by the applicant which he and the agent both know to be false, at least where the agent in question has no authority to determine finally whether a policy shall be issued on the application, for the company may not in this manner be made the victim of collusion between its representative and the applicant.”
and the fourth paragraph of the syllabus lays down the rule:
“Where false answers concerning his health were knowingly made by an applicant for life insurance, the fact that the agent through whom the application was made, but who was not authorized to decide whether the policy should be issued, knew of their falsity does not prevent the company from successfully resisting payment on the ground of such fraud.”
In the more recent case of National Reserve Life Ins. Co. v. Jeffries, 147 Kan. 16, 75 P. 2d 302, it was held:
“Where the policy is issued and delivered without the requirement of a medical examination, and the applicant is relieved of such examination solely by reason of his written representation of good health, such clause is applicable to the applicant’s condition of health at the time of such representation, and the policy may be avoided where the applicant had actual knowledge, at such time, that he was not in good health.”
We think the conclusion is inescapable that the giving of false answers to questions 14 and 15 of the application operated as a fraud on defendant company. While it is strenuously argued that the company should be bound by the acts of its agent, yet plaintiff does not point out any provision in the application or policy which grants authority to the agent to waive any provision or to bind the company in this respect. On the contrary, plaintiff’s own testimony shows that he understood that the application which he signed must be approved by the home office before a policy would be issued. It surely cannot be argued that the company would have issued this policy had questions 14 and 15 been answered truthfully.
There is still another very good reason why the demurrer should have been sustained. The policy provided indemnity only for disability resulting from illness contracted and beginning during the life of the policy. Obviously, the company would not be insuring an applicant against an illness or disease from which he was already suffering. Plaintiff does not even contend that he was a well man when he signed the application — in fact, as previously stated, he admits that he was suffering from a heart ailment during the whole period in question, and his suit is to recover disability benefits for the very illness from which he had been suffering for months prior to the issuance of the policy.
We think this fact alone, disclosed by plaintiff’s own evidence, is sufficient to bar his recovery.
From what has been said it therefore follows that in the principal appeal the order of the lower court is reversed with directions to sustain the demurrer to plaintiff’s evidence. Such holding renders it unnecessary to discuss the merits of plaintiff’s cross-appeal from the order granting a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when plaintiff slipped and fell into a drain on the edge of a city street. Defendant’s demurrer to plaintiff’s petition was sustained. Plaintiff has appealed.
The petition alleged plaintiff made claims for damages pursuant to G. S. 1935, 12-105, and also pursuant to G. S. 1935, 14-441; that on a designated corner in the city a gasoline filling station was maintained; that within about six feet of the corner there was an open drain two and a half feet wide and about two feet deep and the street sloped into this drain; that on August 17 and for about twelve months prior thereto an oil company had washed automobiles and had caused mud water, oil and debris to flow across the sidewalk, down the driveway into the open drain; that there had accumulated a layer of mud, oil, grease and debris immediately adjacent to this drain; that this accumulation extended in all directions and had existed for such a great length of time that the city should have had notice of it and should with reasonable care have remedied it. The petition further alleged that on August 17, 1947, plaintiff was proceeding west on Tenth avenue and as she approached this corner walking in a careful manner, as she attempted to cross Tenth street she slipped and fell and her body was propelled into the drain and she was injured. The petition then set out some eight particulars in which her fall and slipping into the drain was caused by the negligence of the city; in permitting the accumulation in such a manner as to endanger the citizens using the streets and sidewalks; in permitting such a condition for a period of twelve months so that it should have had notice of its existence; in permitting the accumulation in such a manner that the condition could have been remedied by it; in permitting the condition and failing to remove it; in permitting the condition and failing to warn people of it; and several characterizations of about the same import. After describing plaintiff’s injuries, the petition prayed for $30,000 damages. Copies of the claims were attached to the petition.
Defendant filed a motion to strike and to require plaintiff to make her petition more definite and certain in various particulars. This motion was overruled in part and sustained in part. Subsequently the plaintiff filed an amended petition in which she attempted to comply with the court’s ruling. In this petition she stated that she attempted to cross Tenth street about ten feet west of the intersection of Tenth and Commercial. Defendant again filed a motion asking that plaintiff be ordered to make her petition more definite and certain, by stating whether she attempted to cross on the north or south of Tenth street, or on the sidewalk, crosswalk, driveway or elsewhere. This motion was sustained. The defendant also filed a motion that plaintiff be required to state how far the accumulation extended in each direction from the drain; that she be required to state whether she was walking on the sidewalk or in the street, where she attempted to cross Tenth street; whether she fell upon the sidewalk or the crosswalk or in the street. This motion was overruled.
Subsequently plaintiff filed an amendment to her amended petition in two paragraphs, as follows:
“Plaintiff further alleges as an amendment to paragraph 2 of page 2 of her amended petition that on the 17th day of August, 1947, this plaintiff was proceeding in a westerly direction on 10th Avenue and approaching the intersection of 10th Avenue and Commercial Streets in the City of Emporia, Lyon County, Kansas. That as said plaintiff proceeded, as aforesaid, she was walking on the sidewalk, which is situated on the South side of 10th Avenue and she proceeded in a Westerly direction on said sidewalk until she reached a point where the driveway of a filling station intersected said sidewalk, said driveway being approximately 10' in width, and the West side thereof being approximately 10 to 15' East of the curb line of Commercial Street. That as she reached said driveway, this plaintiff proceeded down said driveway towards 10th Avenue in a Northwesterly direction.
“Plaintiff amends paragraph 4 of page 2 of plaintiff’s amended petition in the following respects. That as this plaintiff attempted to cross 10th Avenue, at approximately 10' East of the intersection of 10th Avenue and Commercial Streets, her feet contacted said accumulation and defect, as aforesaid; and this plaintiff slipped and fell and was thrown in such manner that her body was propelled down the sloping sides of said street and into said open drain, as hereinbefore described. That in slipping and falling this plaintiff fell into said open drain in such manner that her right leg went down into the opening of said drain, the full length thereof, up to and including her right hip. That the impact was so severe that this plaintiff was thrown suddenly and violently against said street and into and against the opening and inner-portions of said drain, and as a result thereof this plaintiff sustained severe personal injuries, as hereinafter set out. That at the time thereof this plaintiff was starting across 10th Avenue in a Northwesterly direction, having proceeded from the East towards the West to a point where a driveway intersects the sidewalk on the South side of 10th Avenue. That immediately prior thereto plaintiff had been walking West on said sidewalk, arrived at said driveway, turned in a Northwesterly direction and proceeded down and across said driveway towards Tenth Avenue, which she intended to cross.”
Subsequently the defendant filed a motion to dismiss the action because the plaintiff had failed to state the exact location where she claimed to have been injured. This motion was overruled.
The defendant then demurred to the amended petition on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained. Hence this appeal. The specifications of error are that the trial court erred in sustaining the demurrer and in decreeing that the petition did not state a cause of action.
Plaintiff bases her argument that the petition stated a good cause of action on the fact that she pleaded a patent defect in the street of which the city had constructive notice and that the city is liable for such a defect. She meets the argument that her petition showed her to be guilty of contributory negligence by pointing out that where the facts are such that reasonable men might differ, the question of contributory negligence is for the trier of facts. In this connection she points out that she had a right to presume that the street was a safe place upon which to walk.
The final amendment to the petition quoted above discloses that plaintiff had left the sidewalk and was crossing Tenth avenue at a place other than the crosswalk. She was using the street at a place where ordinarily pedestrians do not use it when she encountered the debris she described in her petition. A city is not held to the same degree of care in maintaining its streets in a safe condition for pedestrians as it is to sidewalks. Dirt, debris and oil that might constitute a defective condition if allowed to accumulate on a sidewalk where people are expected to travel would not be a defective condition if maintained or allowed to exist in the part of the street used for other traffic. This is because a condition that would be hazardous to pedestrians would not necessarily be hazardous to vehicles and the street is maintained for vehicles, not pedestrians. The sidewalks and crosswalks are for pedestrians. In Register v. City of Pittsburg, 139 Kan. 753, 33 P. 2d 173, we considered a case where a young girl had angled across and was injured when she stepped on a defective place in the parking. We pointed out authorities where we had held cities liable for injuries to pedestrians on account of failure of the city to maintain its streets in a reasonably safe condition. We said further, however:
“While the cases cited authorize a recovery under the facts, they also recognize that there are degrees of care to be exercised, and right of recovery varies according to the place where the accident occurred, and what the duties of the city were as to keeping such places safe for travel, and the use that might be expected to be made by users of certain parts of the street. The same care is not to be expected by people who are angling across the street over a curb and parkway as in places set apart for travelers, like sidewalks and crosswalks.”
We then proceeded to hold the city was not liable for the injuries to the little girl because the defect was in the curb leading to the parkway where the plaintiff was not expected to walk and at a place where the city had no duty to anticipate that she would walk. The opinion is persuasive here. Certainly the city had no duty to anticipate that plaintiff would leave the sidewalk and crosswalk to cross the street at this point. It follows that the petition did not state a cause of action.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is a divorce case in which the plaintiff (husband) was granted a divorce for the fault of the defendant (wife). The sole issue presented on appeal is whether the trial court committed error in its division of the property owned by the parties.
The record discloses that on the date of the rendition of the judgment all property owned by the parties had been acquired during the marriage and consisted of the family home, a 1941 Pontiac automobile, 17 U. S. Savings Bonds of the value of $25 each on maturity, a set of tools formerly used by the plaintiff in operating a garage, household goods, and personal clothing.
Under the trial court’s judgment the defendant was awarded the home, the Savings Bonds, the household goods and her own personal effects. The plaintiff was given the Pontiac automobile, the garage tools and his personal belongings.
Except for the Savings Bonds and the home there is nothing in the record from which this court can ascertain the fair and reasonable value of the property divided by the trial court. It is conceded the Savings Bonds if held until maturity would be of the value of $25 each. The evidence available as to the value of the home and other matters affecting the division of the property can be summarized as follows: The home was purchased several years prior to the date of the divorce decree for $1,200. Defendant’s mother gave her daughter and her son-in-law the sum of $120 to make the initial payment. Thereafter the balance of the purchase price was paid in monthly payments. During a portion of the time these payments were being made the parties did not live in the house. It was rented for two years for $30 per month and the rent was applied to payments falling due on the purchase price. Plaintiff testified he had been employed by Continental Trailways Company for the last six years and that his ordinary earnings were $235 per month; that during his spare time he had worked on the house, building a basement and garage, and making other repairs, and that its fair market value on the date of the trial was $5,000. He admitted that for a period of about two years while they were living in Denver his wife had managed the apartment house in which they were living for a portion of their rent and also did some sewing for their landlady. Defendant testified she had worked off and on since the marriage; that this work consisted of helping the plaintiff in the garage which he had formerly operated and in the taking in of sewing and washing.
The appellant insists the trial court gave the appellee more property than she was entitled to under the law. His theory, advanced in a brief consisting of one paragraph and a short oral argument upon presentation of the cause, is that G. S. 1947 Supp. 60-1511 compels and requires an equal division. The only provisions of this section of the statute having application to a situation such as is here involved read:
“. . . If the divorce shall be granted by reason of the fault or aggression of the wife, the court shall order restoration to her of the whole of her property, land, tenements and hereditaments owned by her before, or by her separately acquired after such marriage, and not previously disposed of, and'also the court may award the wije such share of her husband’s real and personal property, or both, as to the court may appear just and reasonable, and she shall be barred of all right in all the remaining lands of which her husband may at any time have been seized. And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. . . .” (Emphasis supplied.)
From the emphasized portions of the foregoing statute as quoted it will be noted where the husband is granted a divorce for the fault of the wife in a divorce action the court is clearly and unequivocally vested with power to make such a division of property between the parties as may appear to it to be just and reasonable. This, we pause to add, is true not only where — as here — the property has been jointly acquired but also where it is separately owned by the husband.
In Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127, we held:
“Under the provisions of G. S. 1945 Supp., 60-1511, it rests in the sound discretion of the trial court whether it will award any portion of the husband’s separate property to the wife when the divorce is granted to the husband by reason of the fault or aggression of the wife.” (Syl. ft 3.)
The rule in this jurisdiction has always been that a division of property made by the trial court in a divorce action will not be disturbed on appellate review unless it is clearly made to appear its action in makng that division amounted to abuse of discretion.
See Walno v. Walno, 164 Kan. 620, 192 P. 2d 165, and cases there cited, where it is held:
“The division of property between the parties in an action for divorce rests largely in the discretion of the trial court. The discretion is a judicial and not an arbitrary one, and if under the circumstances of the particular case the division is clearly unreasonable, unjust and inadequate, it will be corrected on appeal.
“A division of property made by the trial court in a divorce action will not be disturbed unless it is clearly shown that there was an abuse of discretion.” (Syl. fill 2, 3.)
See, also, Crow v. Crow, 165 Kan. 461, 195 P. 2d 609; Brauchi v. Brauchi, 165 Kan. 542, 195 P. 2d 589, and Pearson v. Pearson, 159 Kan. 500, 156 P. 2d 852.
After careful consideration of all facts and circumstances to be gleaned from the record we are unable to find anything which would justify us in holding that the trial court disregarded the law and made an unjust and unreasonable division of property as between the parties. Of a certainty it cannot be said the appellant has made a clear showing that in making that division it abused its discretion. The result is that, under our decisions, he has failed to establish any sound ground for disturbing its action and that its judgment must be affirmed.
It is so ordered.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
These consolidated cases are an appeal by the State Corporation Commission of the state of Kansas (hereinafter referred to as Commission), from a judgment of the district court of Pratt County vacating and setting aside part of an order of appellant Commission granting to Boyd Truck Lines, Inc. (hereinafter referred to as Boyd) a certificate of convenience and necessity to operate as a common carrier of general commodities between certain points and over certain routes within the state of Kansas.
Appellees, The Rock Island Motor Transit Company, a corporation, and Chicago, Rock Island and Pacific Railroad Company, a corporation (both hereinafter referred to as Rock Island), and The Santa Fe Trail Transportation Company (hereinafter referred to as Santa Fe) are competing common carriers, each having operated over a portion of the territory involved herein for some time prior to the granting by appellant Commission of the certificate in question to Boyd.
On May 12, 1947, one Coulter, doing business as Rapid Transit Lines of Pratt, Kan. (hereinafter referred to as Coulter), filed an application with the Commission requesting a certificate of convenience and necessity to serve certain territory between Wichita, Liberal, Dodge City and return, and intermediate points between Dodge City and Minneola. This application was docketed as No. 33,363-M and was set for hearing for June 12, 1947.
On May 24, 1947, Boyd filed an application with the Commission for a certificate of convenience and necessity to operate as a common carrier over substantially the same routes and territory as those in the Coulter application. The Boyd application was set for hearing for June 19, 1947, and was docketed as No. 33,445-M.
Hearing on the Coulter application was had on June 12, 1947. Boyd appeared at this hearing in support of public convenience and necessity of the proposed service, but protested it being granted to Coulter, contending that a certificate should be granted to him at the hearing on his application set for June 19, 1947. Rock Island and Santa Fe also appeared as protestants to the granting of a certificate to Coulter, contending that the territory and points involved were already being adequately served by existing, authorized common carriers, including protestants. It was stipulated by all parties and approved by the Commission’s examiner that the entire record in the Coulter hearing would be incorporated into the Boyd hearing, set for the following week.
At the Boyd hearing, begun on June 19, 1947, Coulter appeared in support of public convenience and necessity of the proposed service but protested it being granted to Boyd, contending that it should be granted to him on his application on which hearing had already been had but no decision announced. Rock Island and Santa Fe also appeared as protestants at the Boyd hearing, their contentions being the same as in the Coulter hearing, that is, that the territory and points involved were already being adequately served by existing, authorized common carriers, including protestants. It was stipulated by all of the parties and approved by the Commission’s examiner that the entire record in the Coulter hearing be incorporated into the record of the Boyd hearing. The testimony was concluded and the record closed, after which all parties filed briefs with the Commission. ,
Thereafter, on August 30, 1947, and while the Commission had the Coulter and Boyd, applications under advisement, Boyd filed an application to amend and to reopen his original application in docket No. 33,445-M for further hearing. Rock Island filed its written objections to such amendment, reopening and further hearing.
On September 3, 1947, Coulter’s application for a certificate was denied and on the same day Boyd’s application to amend and reopen his original application for further hearing was granted. Boyd then filed his amended application in the same docket and proceedings, asking for the same authority to the same points and territory as contained in his original application but adding other points and territory referred to as the “north and south route,” being from Liberal north through Garden City, Scott City, Oakley and Colby to Atwood and Oberlin, and return, and from Dodge City to Garden City.
Coulter’s application for a rehearing was denied on October 2, 1947, and he filed no application for review in any district court.
The hearing on Boyd’s amended application was set for December 1, 1947, at Liberal, before the entire Commission. This hearing consumed three days, during which dozens of witnesses were heard and numerous exhibits offered and introduced. Both Rock Island and Santa Ee appeared as protestants at the hearing in Liberal. During the course of this hearing the Commission announced that it was a trial de novo and that nothing in the record of the hearing previously held would be considered. Following the three days of testimony the hearing was recessed for further hearing at Topeka, on January 20, 1948. Additional testimony was taken at the latter time and place and the record was closed. On January 28,1948, the Commission issued its order granting a certificate of convenience and necessity to Boyd to operate as a motor common carrier of commodities between the points and over the routes designated in its amended application, with two exceptions, not presently important for our purposes.
Applications by Rock Island and Santa Fe for a rehearing were denied by the Commission on March 24, 1948, whereupon Rock Island filed its application for a review in the district court of Pratt county, and Santa Fe filed its application for review in the district court of Ford county.
The Commission did not file with the district courts of either Pratt county or Ford county the transcript of the record in the Coulter hearing or of the original Boyd hearing, apparently on the theory that since it had announced at the Liberal hearing on Boyd’s amended application that it was a hearing de novo the testimony in such former hearings was no part of the record. A dispute on this point arose and the district court of Ford county ordered the Commission to file a transcript of the complete record of the Coulter hearing as well as the original Boyd hearing. This was done. Upon the Commission’s application for a change of venue, the application for review filed by Santa Fe in the district court of Ford county was transferred to the district court of Pratt county, in which court the two applications for review by Santa Fe and Rock Island were consolidated for hearing.
After reviewing the entire record, including the record of the proceedings in the Coulter and first Boyd hearings, the district court (Pratt county) found that the order of the Commission granting the certificate to Boyd on his amended application was unlawful and unreasonable and should be vacated and set aside insofar as it purported to grant a certificate of convenience and necessity to Boyd on the following routes:
“Wichita to Liberal, Mullinville to Garden City, Dodge City to Minneola, Wichita to Garden City, Sublette to Scott City, and intermediate points;”
Pursuant to G. S. 1935, 66-118k, the court made and filed its findings of fact and conclusions of law. The Commission’s motions to set aside the findings and conclusions, for judgment notwithstanding the findings and conclusions, and for a new trial, being denied, these appeals were taken and were consolidated in this court. On December 21, 1949, on motion of appellant Commission, this court issued an order staying and suspending the order and judgment of the lower court pending the determination of the appeal.
In support of its argument for reversal of the lower court’s decision the Commission assigns twelve specifications of error and in its brief poses five questions for determination. A careful examination of these alleged errors and the questions presented leads to the conclusion that, boiled down to their real essence, the position of the Commission can be stated thusly:
1. The lower court had no power and authority to review the record in the Coulter and first Boyd hearings as such proceedings constituted no part of the record before the Commission following its ruling during the course of the Liberal hearing on Boyd’s amended application that that hearing was a trial de novo. In support of this contention the Commission relies upon the provisions of G. S. 1935, 66-118Í, which, so far as pertinent here, provide:
“No new or additional evidence may be introduced upon the trial or any proceedings for review under the provisions of this act, but the cause shall be heard upon the questions of fact and law presented by the evidence and exhibits introduced before the Commission and certified by it: . . .”
2. That the order of the Commission in granting a certificate of convenience and necessity to Boyd was an order purely administrative in character, rather than judicial, and that the court had no power and authority to weigh the evidence and to substitute its judgment for that of the Commission.
Concerning the first mentioned proposition, the record shows that in the Coulter hearing on June 12, 1947, it was stipulated by all parties, including Boyd, and approved by the Commission’s examiner, that the entire record would be incorporated into the Boyd hearing which was set for June 19,1947. In the Boyd hearing it was also stipulated by all parties and approved by the Commission’s examiner, that the record of the Coulter proceedings would be incorporated into the record of the Boyd hearing. Later Boyd petitioned for leave to amend and reopen for further hearing his original application in docket No. 33,445-M. He was granted permission to do so and subsequently a three-day hearing, before the entire Commission, was held at Liberal. It is to be kept in mind that Coulter’s application and Boyd’s original application sought to serve substantially identical routes and territory, and that the only substantial and material distinction between Boyd’s original and amended applications was that the latter included a “tacking on” of the so-called “north and south route.” Just why the Commission during the Liberal hearing announced that it was a trial de novo and that it was not considering any of the evidence previously taken in the Coulter or original Boyd hearing is not made clear in the record before us. It is true that under the provisions of G. S. 1935, 66-118Í, supra, the district court on review is not permitted tó go outside of the record of proceedings before the Commission. As we view this matter, the district court of Ford county was correct in ordering the Commission to file a transcript covering those two previous hearings, and we think the district court of Pratt county was entirely correct in reviewing such entire record. We find no merit in appellant Commission’s contentions in this respect.
Before taking up the second point urged by the Commission as a ground for reversal, namely, that the lower court had no power or authority to weigh the evidence in the record and to substitute its judgment for that of the Commission, it is well to examine several provisions of the statutes relating to these matters.
G. S. 1935, 66-1,112, vests the Commission with power and authority to license, supervise and regulate every public motor carrier of property and to approve reasonable rates and charges. The first portion of G. S. 1935, 66-1,114, renders it unlawful for any public motor carrier to operate as a carrier of intrastate commerce without first obtaining from the Commission a certificate of convenience and necessity. G. S. 1935, 66-1,129, authorizes the Commission to promulgate such rules and regulations as may be deemed necessary properly to carry out the provisions and purposes of the act.
G. S. 1935, 66-118b, provides that no cause of action arising out of any order or decision of the Commission shall accrue in any court until application for a rehearing before the Commission has been made. G. S. 1935, 66-118c, provides for a review by- the district court of an order of the Commission.
G. S. 1935, 66-118d, relating to such review proceedings in the district court, reads in part:
“. . . Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the original order or decision or the order or decision on rehearing inquired into and determined, and the district court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable. . . . The procedure upon the trial of such proceedings in the district court and upon appeal to the supreme court of this state shall be the same as in other civil actions, except as herein provided. . . .”
G. S. 1935, 66-118k, provides in part:
“If the court shall find that the order or decision of the public service commission is unlawful or unreasonable in whole or in part and shall vacate or set aside the order or decision in whole or in part, the court shall make findings of fact and conclusions of law, . .
This brings us right down to what we consider to be the real crux of this lawsuit, namely — just what is the scope of review and with what power and authority is a district court vested in a proceeding such as this? The statute, G. S. 1935, 66-118d, supra, provides that the proceedings for review shall be for the purpose of determining the lawfulness or reasonableness of an order of the Commission, and that if the court finds such order to be unlawful or unreasonable it shall vacate or set it aside. Appellant Commission complains that here the district court was guilty of weighing the evidence in the record and then substituting its own judgment for that of the Commission, and it is argued that since the granting or withholding of a certificate of convenience and necessity is purely administrative in character, rather than judicial, the court cannot do so. (Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097.) For the determination of the question before us we do not consider it material or necessary to attempt any finespun distinction between so-called administrative orders and those of a judicial nature — what we are concerned with is the scope of review of the district court.
Appellant Commission also argues that where there is any evi dence in the record to sustain the findings of the Commission the district court on review cannot disturb them and cannot substitute its judgment for that of the Commission, and relies on Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 295 Pac. 668, and Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985.
We do not consider what was said in that respect in those two decisions to be authoritative or controlling under the facts of the case before us, as will be demonstrated later.
But touching briefly on the authority of the district court to “weigh” the evidence, we fail to see how the court could intelligently determine the lawfulness or reasonableness of the Commission’s order without a careful study and review of the evidence, and this necessarily includes not only its right but also its duty to weigh the evidence. In commenting orally on the matter, at the time its decision was rendered, the district court said:
“. . . But, it is my opinion, that it is the duty of this court to determine the lawfulness and reasonableness of the order of the Commission, and the only way I can determine that is to familiarize myself with the entire evidence and the record,in the case and, naturally, I have had to weigh some testimony. However, I do not think it has been a great deal, if any, because you can take the Commission’s orders themselves and get a most sufficient view of all the facts in the case.”
How else could a court intelligently determine the lawfulness or reasonableness of the Commission’s order? To hold otherwise would, from a practical standpoint, result in the emasculation of the statutory mandate giving the district court power to determine the lawfulness and reasonableness of an order of the Commission. In the quite recent case of Union Pac. Rld. Co. v. State Corporation Commission, 165 Kan. 368, 194 P. 2d 939, this court held that the function of a district court in proceedings for review of an order made by the Commission is limited to the inquiry whether the order made is lawful or reasonable and that in the exercise of that function the court is required to weigh the evidence, review the entire record and base its decision upon all the facts and circumstances contained therein. The Commission seeks to avoid the effect of that decision on the ground that the question there involved (an order of the Commission denying an application of a common carrier to discontinue passenger train service) was judicial in nature rather than administrative, such as it is contended we have here. We do not think any such fine distinction is warranted. In our opinion the district court has a duty to review the evidence introduced before the Commission, not merely to ascertain if there is any evidence to support the Commission’s order but to ascertain if such order is unlawful or unreasonable, and in so doing it necessarily follows that it must weigh the evidence. To hold otherwise would render the statute a farce.
For a proper understanding and discussion of the claim that in vacating and setting aside part of the Commission’s order granting a certificate to Boyd the court substituted its judgment for that of the Commission, it is necessary to get an over-all picture of the whole proposition involved. Anyone familiar with a map of Kansas will readily understand that the Coulter application and the original Boyd application were for an east and west route. This route was already being served by Rock Island and Santa Fe, as well as by other common carriers operating under certificates authorized by the Commission. Boyd’s amended application included the same territory contained in his original one but added other points and territory known as the north and south route, being from Liberal north through Garden City, Scott City, Oakley and Colby to Atwood and Oberlin and return, and from Dodge City to Garden City. In its order of September 3, 1947, denying Coulter’s application for the east and west route, the Commission stated:
“. . . The testimony in support of the application suggests no limitation as to service to points and places not now served in a reasonably adequate and sufficient manner by existing common carriers other than the restrictions set forth in the application itself. . . . The evidence in this case is insufficient to prove a public need which amounts to public convenience and necessity as that term is used in the statute and it follows that the application should be denied.”
In its order of January 28, 1948, granting a certificate to Boyd over the routes designated in his amended application, the Commission, in referring to the service already existing on the east and west route, stated:
“The evidence indicates some dissatisfaction with respect to the adequacy and efficiency of existing service between Liberal and Wichita and Garden City and Wichita and intermediate points along the routes involved. Even so, it is doubtful that the Commission could find as a matter of fact, under the evidence offered, that standing alone, the existing east and west service was not reasonably adequate and sufficient. This, however, is not the question before the Commission. The question before the Commission is the question of public convenience and necessity involved in the service as a whole, authority for the institution and performance of which is sought in this proceeding.”
and in referring to the north and south route stated:
“. . . The institution and maintenance of this essential north and south service on a sound economic basis, however, is dependent upon, and is an inseparable part of, the unified and integrated service as a whole which is proposed under the application.”
The Commission further found:
“The evidence indicates and the Commission further finds, however, that there is now reasonably adequate, sufficient and efficient service available between Wichita, Kansas, proper, on the one hand, and Oakley and Colby, Kansas, proper on the other, and the public convenience and necessity neither justifies or requires the institution of the additional service proposed between these points. The application as to this feature should be denied.”
In other words, in both the Coulter order and the Boyd order the Commission found that the existing east and west service was reasonably adequate and sufficient to supply the need, and in the latter order further found that existing service between Wichita, on the one hand, and Oakley and Colby, on the other, was reasonably adequate and sufficient to supply the need, but then went ahead and authorized Boyd to operate over both routes, the only limitation being:
“. . . that no service is to be offered or performed at any intermediate points along U. S. Highway 54 located between Wichita and Pratt; or between Wichita proper, on the one hand, and Oakley proper or Colby proper, on the other; and, Provided further, that no service is to be offered or performed at any intermediate points located along the alternate route above described herein.” (Alternate route referred to was from Dodge City south via U. S. Highway 283 to Minneola and return.)
From the foregoing it will be seen that the Commission’s justification for the issuance of a certificate to Boyd over a considerable portion of the east and west route, which it found was already being adequately served, was that from the over-all standpoint the north and south'route was dependent upon and was an inseparable part of the unified and integrated service, as a whole, proposed under Boyd’s amended application. In other words, the Commission considered the two routes as a unit.
In the district court Rock Island and Santa Fe contended, among other things, that the Commission’s order was unlawful and unreasonable for the reason that it completely ignored the mandate of the statute to the effect that if it appears from the evidence the service furnished by existing carriers is reasonably adequate the Commission shall not grant an additional certificate. It was further ar gued that under the statute in the event the Commission finds that any public, carrier is not giving'convenient, efficient and sufficient service, as ordered, such carrier shall be given a reasonable time to provide such additional service before any existing certificate is revoked or a new certificate granted.
The last part of G. S. 1935, 66-1,114, supra, provides:
. . Before granting a certificate to a public motor carrier, the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought, and in case it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.”
G. S. 1935, 66-1,129, supra, in part provides:
“. . . Upon the commission finding that any public carrier does not give convenient, efficient and sufficient service as ordered, such public carrier shall be given a reasonable time to provide such service before any existing certificate is revoked or a new certificate granted.”
In its written findings and conclusions the district court in effect held that in the face of these last quoted portions of the statutes the action of the Commission in granting an overriding and competitive certificate to Boyd on the east and west route was unlawful and unreasonable in view of the Commission’s finding that adequate and sufficient service on that route was already existing. The substance of finding of fact number 13 is that while there was considerable evidence of a lack of north and south service from Liberal on the- south to Oakley, Atwood, Oberlin and Colby on the north, yet there was no material evidence of any need, convenience or necessity for such north and south service to commence at Wichita, serving intermediate points to Dodge City and Liberal, in view of the Commission’s finding as to existing, adequate service available between Wichita, on the one hand, and Oakley and Colby on the other.
As heretofore stated, the Commission justifies its order on the ground that the east and west route and the north and south route are to be considered as a unit. Assuming, but not conceding, that the two routes were properly considered as a unit, still there is nothing in the record to indicate that existing carriers operating over the east and west route, including Rock Island and Santa Fe, were ever given the opportunity to provide such further service on the north and south route in compliance with the provisions of G. S. 1935, 66-1,129, supra. In theory, at least, it would seem just as logical to regard the two routes as a unit for the purpose of existing cer tifieate holders, including Rock Island and Santa Fe, as well as for one seeking a new certificate to operate over both routes.
In Baldwin v. State Corporation Comm., 143 Kan. 580, 56 P. 2d 453, it was said:
“It clearly appears one of the main purposes of the act is to protect common carriers by rail and common carriers by motor vehicle alike in territory where there exists sufficient common-carrier service to adequately meet the public needs.” (p. 585.)
Here the district court found that in view of the pertinent statutes, the Commission, under its own findings, particularly with reference to the adequacy of existing east and west service, acted arbitrarily and that its order granting the certificate to Boyd was unlawful and unreasonable in certain respects.
We suppose that in any case such as this where an order of the Commission is vacated or set aside by a district court the complaint .could be made that the court was, in one sense of the word at least, substituting its judgment for that of the Commission. However, to hold that it does not have the power to vacate or set aside an order found to be unlawful or unreasonable would of course render the statute meaningless. For a discussion of those terms see Southern Kansas Stage Lines Co. v. Public Service Comm., supra.
We have examined the record before us and hold that the judgment of the district court vacating and setting aside a portion of the order of the Commission as'being unlawful and unreasonable was justified and should not be disturbed.
In conclusion, let it be understood that our decision in this case is in no way to be interpreted as a modification or change of the fundamental law of this state which grants to the State Corporation Commission full and exclusive authority and jurisdiction over the issuance or refusal of certificates of convenience and necessity to applicants seeking to operate as common carriers in intrastate commerce. In such instances the Commission should be and is clothed with a wide discretion and its orders, when based on substantial, competent evidence, are final unless vacated or set aside as unlawful or unreasonable by a reviewing district court in accordance with the statute. Furthermore, a district court is not authorized to vacate or set aside such an order based on substantial, competent evidence and to substitute its judgment for that of the Commission merely on the ground that it would have arrived at a different con-' elusion from the evidence adduced had it been sitting as the trier of the facts rather than the Commission. A district court is authorized to vacate or set aside the order only when, from a review of the entire record, it finds it to be unlawful or unreasonable.
It therefore follows that our order of December 21, 1949, staying and suspending the order and judgment of the district court is hereby dissolved, vacated and set aside, and the judgment of the district court is affirmed.
Smith, J., dissenting.
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The opinion of the court was delivered by
Harvey, C. J.:
This was a suit for a mandatory injunction to require defendants to move gasoline pumps situated within the street, as platted, in the parking near the curb. Plaintiff appealed from an adverse judgment.
The action was authorized by resolution of the city governing body declaring that the gasoline pumps as so located constitute an encroachment upon the public street and an obstruction thereof and declaring them to be a purpresture and a public nuisance which should be abated, and authorizing the mayor to take appropriate action by injunction or otherwise to abate the nuisance. The principal defense was that there were two other similar gasoline pumps, one on the same street only 200 feet away and the other one about three blocks away, which had been operating more than five years, and that the action of the governing body in passing the resolution applying only to defendants was arbitrary and discriminatory as against defendants and in favor of their competitors, who by the sanction of the governing body of the city are occupying the same or greater use of the streets than the defendants. The pleadings put those matters in issue. The respective defendants in their answer ask that the plaintiff be enjoined from interfering with defendants’ gasoline pumps as long as others continue with the sanction of the city to occupy and use the streets in a similar way. Most of the facts were stipulated in writing, but one party or the other called several witnesses, who gave oral testimony.
The court made the following findings of fact:
“1. The plaintiff is a duly incorporated city of the third class located in Linn County, Kansas. The defendant, Henry Carbon, is doing business in the said city under the firm name of Carbon Implement Company, and the So-cony-Vacuum Company is a corporation duly authorized to do business in the State of Kansas.
“2. During 1948 a new building of tile and suitable material was built by or for defendant Carbon on Lots 15 and 16, Block 13, on the north side facing south upon Main Street and adjoining on the west side of Third Street in the City of Mound City, Kansas. The lots upon which the building is built are 55.15 feet wide.
“3. The street is 90 feet wide from property line to property line. Along the north side of Main Street through Block 13 is a curb line set back from the property line 14% feet. There is next to the property line a cement sidewalk of approximately 5 feet. Between the sidewalk and the curb line is a space of approximately 10 feet which is earth upon which grows grass and other vegetation and in which there are growing shade trees and in which is set telephone poles and light poles beside the pumps and advertising standards hereinafter referred to.
“4. The traveled portion of Main Street through said Block 13 is of paving through the center part of some 20 or 22 feet and on each side of this paving up to the curb line is a surface of gravel and bitumin or tar so that the entire traveled portion of the street is fully surfaced. This traveled surfaced portion of the street is 61 feet wide. The courthouse grounds is directly across the street south from Block 13 and diagonal parking is permitted on both sides of the street.
“5. There is no contention and no evidence on the part of the plaintiff that the pumps referred to in this litigation are a menace to public safety or interfere with the convenience and use of the street in any way or that they constitute a fire hazard or in any way interfere with the use of the street by the public.
“6. About the time of the completion of the building and some time in the summer or fall of 1948, Henry Carbon was called before the Mayor and Councilmen and a friendly discussion was had with reference to installing pumps in front of the new building. The general conversation was that the city authorities did not want Carbon to place pumps in the street and he replied that if they did not want them there he would not place them there if he could reasonably locate them where they would not be in the public street.
“7. Some time thereafter the defendant Carbon and the defendant Socony-Yacuum Oil Company located gasoline pumps and tanks. The tanks contain ing the storage are north of the property line on the property of Carbon. The pumps, two in number, are located and situated in the street in the parking area between the sidewalk and the curb setting on concrete bases some 2.2 feet in or north of the street curb line, and about 12.3 feet out from the property line.
“8. A few weeks after the pumps were installed this action was commenced which seeks through equitable jurisdiction of the Court an injunction requiring the defendants to remove the pumps from the parking area.
“9. Mound City, Kansas, has a population of some 600 and the principal business buildings are located along Main Street, this building in question being the farthest east, and the business buildings of the city are located 2 more blocks west of Block 13.
“10. At the corner of the second block west on the south side of the street is the Peatman Motor Company. At this motor sales room and garage are located 2 gasoline pumps setting out from the property line and in the street the same approximate distance as the ones complained of. These are set upon concrete bases, permanently located, and have been located there for many years.
“11. In the same Block 13 there is also a garage known as the Pontiac Agency and operated by one Clinton Jaeger in front of which are 2 pumps located in the parking upon concrete bases and located identically with reference to curb line as the pumps complained of. These pumps have also been located in this position for several years. There is located in front of this Pontiac Garage with the pumps, on poles, three signs in connection with the operation of the business and the brand of gasoline sold.
“12. The defendants have in connection with their business along with the pumps and in this parking space also three signs on poles naming the business and the brand of merchandise sold. There is between the pumps of the defendants and the street to the east a telephone pole with 4 cross-arms and numerous wires. There are in this particular block in the parking beside the pumps of the defendants which are complained of, about 6 signs, the two pumps of Jaeger, a highway marker and five telephone poles. There are three city lots intervening between the property and pumps of the defendants and the property and pumps of the Jaeger Motor Company in the same block on the same side of the street.
“13. There had been a conversation some time before trial between some members of the city administration and Mr. Jaeger that he might some time have to move his pumps. Also there had been conversation with the light company that they might some time have to move their poles. There is no evidence that the telephone company had been informed of any intention to require it to move its poles.
“14. From the standpoint of appearance the building and pumps of the defendants are the newest and present the best appearance of anything along this block.
“15. There is no ordinance in the city of Mound City with reference to encroachment upon the public streets. On December 29, 1948, the city governing body met and passed a resolution declaring the pumps of the defendant ‘in front of the business place operated on Lots 15 and 16 of Block 13 of said city, constitutes an encroachment upon the public street and an obstruction thereof, and the same is hereby declared to be a purpresture and a public nuisance which should be abated forthwith at the expense of the operator of said business.’
'T6. There has been no resolution leveled at the operators and owners of the other two sets of pumps similarly located or toward the light company, the telephone company or any other person or firm encroaching upon the city streets.
“17. The defendants counter by praying an injunction against the plaintiff enjoining it from interfering with the placement of its gasoline pumps as long as others continue with the sanction of the city to occupy and use the city streets in a similar way.”
The court made the following conclusions of law:
“1. The injunction prayed on behalf of the plaintiff is denied. 2. The injunction prayed on behalf of the defendants is denied. 3. The costs of the case shall be paid equally by the plaintiff and defendants.”
Also the court made the following comment:
“Courts of equity are organized and maintained to administer the law in the realm of jurisprudence where equity and good conscience are two of the predominating elements. One of the very fundamental elements of equity is equality. In fact, one of the legal equitable maxim is, ‘equality is equity’. The inequality in procedure by the city authorities against the defendants in this case and other parties exactly similarly situated is so striking as to challenge the attention of the Court. There are in the one city block two places of business identically situated and yet the city authorities passing the resolution declaring one of them to be a nuisance and making no mention of the others, indicates clearly to the Court that some motive beside the clearing of the streets must be involved.
“There is no question in law but what the legal representatives of a city have the authority to clear obstructions from the streets, but in all equity and good conscience it appears to the Court that the action should be directed toward those of a class either by lines of business, street areas or in such a way that favoritism or prejudice will not be in evidence.”
Judgment was rendered in harmony with the court’s conclusions of fact and of law. The court’s findings of fact embodied all, or practically all, of the material and stipulated facts in the court’s conclusions respecting the parol testimony. Counsel for plaintiff filed no motion to set aside or modify any of the findings of fact, or to add to them. Neither did he file any motion for a new trial. The appeal is from the judgment of the court and was timely made. In appellant’s brief counsel discusses the findings quite fully and adduces some matter from them not included in the court’s findings, or at variance therewith. We cannot consider those matters. (See Brown v. Brown, 146 Kan. 7, 68 P. 2d 1105.)
Counsel for appellant cites and relies heavily on the case of City of Emporia v. Humphrey, 132 Kan. 682, 297 Pac. 712, 133 Kan. 176, 299 Pac. 850. In that case the governing body of the city, in regular meeting and by proper action, deemed and declared it to be necessary and expedient that the entire width of Commercial street be made available and devoted to public use. There was no picking out of one property owner and requiring him to remove an obstruction in the street while other persons with similar obstructions in the street were not required to move their obstructions. In short, there was no such discrimination in that case as was alleged and found here. Nevertheless, the court, in the third paragraph of the syllabus, took pains to use the following language:
“The governing body of a city may prohibit and prevent encroachments into and upon the streets of the city, and when it determines that an encroachment upon a street should be removed the court should not review the prudence of that determination unless it is charged and shown to have been arbitrary, capricious, or not made in good faith.”
The matter is also mentioned in the opinion at page 689. The fact that the city has control of the streets and authority to have obstructions therein removed does not authorize it to pick out one person who has an obstruction in the street and require him to move it when the same type of obstruction on the same street, or on other similar streets, is permitted to be maintained. The general rule applicable is well stated in 62 C. J. S. 309, 310, as follows:
“Municipal regulations and actions must be uniform, general, and impartial in their operation. The exercise of municipal powers must be such as to operate with substantial equality and uniformity on all persons and classes similarly situated, and hence municipal ordinances and regulations which are unfair, partial, and discriminatory as between persons so situated are invalid. . . .” (Citing numerous authorities.)
Substantially the same thing, with supporting authorities, is stated in 37 Am. Jur. 773, 774. We have some cases to the same effect. (See Smith v. Hosford, 106 Kan. 363, 187 Pac. 685, and the authorities there cited, and McCulley v. City of Wichita, 151 Kan. 214, 98 P. 2d 192, 127 A. L. R. 312.) In City of Norton v. Lowden, 84 F. 2d 663, a case which arose in Kansas, it was said (p. 665):
“While a city has plenary power over streets and alleys, such power may not be exercised arbitrarily, capriciously, or in bad faith.” (See City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1095, and other cases.)
The case of Kenney v. Village of Dorchester, 101 Neb. 425, 163 N. W. 762, is directly in point. There plaintiff, the owner of two busi ness lots located on the main street of the village, installed modern gasoline apparatus consisting of a tank, buried beneath the surface of the ground, and a pump from which gasoline was delivered to automobile drivers who drove up to the curb. Both the tank and the pump were in the street between the sidewalk and the curb. On the same street, a block and a half away, a competitor, with the sanction of the city’s governing body, had a similar place of business. The governing body adopted a resolution requiring plaintiff to remove his tank and pump. He sued to enjoin the city from requiring him to do so. The injunction was allowed by the trial court and the city appealed. The syllabus reads:
“The right of a private party to occupy part of a public street in front of his place of business must yield to public necessity or convenience, and ordinarily the question of public necessity or convenience is for the governing body of the municipality, but such body cannot act arbitrarily and deny to one citizen privileges which it grants to another under like conditions.”
This decision was followed in City of Pierce v. Schramm, 116 Neb. 263, 216 N. W. 809, where it was held the governing body of the city “cannot act arbitrarily and deny to one citizen privileges which it grants to another under like conditions.”
We think the court was justified in its conclusions of law, and in the judgment rendered. The judgment of the trial court is affirmed, | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from a proceeding under the workmen’s compensation act, wherein the workman sought compensation for injuries sustained October 2, 1947, to his “right foot, leg, back, left side and other parts of the body.” The compensation commissioner found that the claimant had a twenty percent disability of his right foot due to his accidental injury arising out of and in the course of his employment; that he was temporarily totally disabled from work due to a disturbance of his nervous system described by the respondent’s medical witnesses as a causalgia and by the claimant’s medical witness as some form of traumatic hysteria but which the commissioner found was a causalgia and that it was induced by the accidental injury to the claimant’s right foot; that his inability to use his foot or to work was functional; that he had a definite loss of circulation in the lower right extremity which caused pain and suffering and rendered him unable to use the extremity; that the loss of circulation was relieved by blocking certain nerve ganglia with.anesthetic preparations and while so anesthetized the automatic supply of blood to the lower right extremity was normal and the disability subsided, and that the claimant was offered an operation to sever some certain nerve which caused the causalgia, but that the results of such an operation were uncertain as to whether it would bring permanent relief and that the claimant’s refusal to submit to such an operation was not unreasonable.
In his findings the compensation commissioner stated:
“It appears to the Commissioner that while compensation may be payable for disability in parts of the body other than a member directly involved in an accident, in a case where the traumatic injury results in direct and easily apparent infection of the blood circulatory system (Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934) without ‘pyramiding,’ it is not payable for a not-so-apparent or well-understood disturbance of the nervous system in part’s of the body not directly involved in the accidental injury, such as causalgia (Riggan v. Coleman Co., 166 Kan. 234); or a sympathetic nervous disturbance affecting an eye (Schweiger v. Sheridan Coal Co., 132 Kan. 798), although full advantage of the healing period statute may be taken in such cases.”
The compensation commissioner found that the claimant was entitled to compensation for forty-six weeks of temporary total disability for injuries other than to the foot, followed by twenty percent permanent partial loss of use of his right foot or an additional period of twenty-five weeks, plus a healing period of two and one-half weeks. The amounts allowed are not presently important.
The claimant appealed to the district court. In deciding the issue the district court said it was convinced the evidence showed bodily injury outside and beyond a specific injury that counsel for the respondent seemed to consider as the only injury in the case. In its journal entry of judgment the court found that all of the claimant’s injuries and disabilities arose out of and in the course of his employment, resulting from his fall from a scaffold, and
“That the injuries received were not confined to the right foot alone, but extended to and included several portions of claimant’s body; that is, the court is convinced claimant suffered more injury than merely to claimant’s right foot, and all the physical conditions complained of by claimant and all the positive physical findings made by the respective medical witnesses, were caused by and resulted from the fall described, which rendered claimant totally disabled, whether termed causalgia or otherwise, and claimant will continue to be so disabled in the future for an indefinite period of time.”
The trial court further found and adopted all of the findings of the compensation commissioner not inconsistent with the trial court’s findings and made an award based on total disability, in favor of the claimant from October 9, 1947, one week after the accidental injury, for an indefinite period of time not to exceed 415 weeks, subject to review and modification as provided by statute. Amounts previously paid and to be paid need not be detailed.
From the award so made the respondent has appealed to this court, where it specifies as error (1) that the trial court erred in ignoring the question of causalgia and in making an award of temporary and total disability which the record shows was the result of causalgia and hence was not compensable, the only compensable disability being for the injury to the claimant’s right foot and the temporary total disability awarded by the compensation commissioner; (2) that there was no substantial evidence to support the judgment of the trial court; and (3) that the trial court erred in holding that the claimant’s refusal of a surgical operation was reasonable.
At the oral argument herein respondent made it clear that it was not resisting payment of compensation — its argument in effect was that the award made by the compensation commissioner was proper and that made by the trial court was erroneous. In its brief, respondent recognizes the rule that disability of a workman is a question of fact on which the finding of the trial court will not be disturbed in this court if supported by competent evidence (see e. g. Alexander v. Chrysler Motor Parts Corp., 167 Kan. 711, 207 P. 2d 1179, and cases cited), and after stating the basic question for determination is not the nature and extent of the disability of the claimant but the cause of it, contends that the general disability at the time of trial was attributable to causalgia resulting from specific injury to the right foot, that such general disability is not compensible, there being a complete absence of any objective evidence of disability other than the injury to the right foot. In support of its contention respondent directs our attention to Gallivan v. Swift & Co., 136 Kan. 234, 236, 14 P. 2d 665, where it was said:
“It [the workmen’s compensation act] also provides that if. a workman is entitled to compensation for a specific injury under the schedule, such compensation shall be exclusive of all others, with certain exceptions not material here [and citing Laws 1927, ch. 232, G. S. 1935, 44-510];”
and to Cornell v. Cities Service Gas Co., 138 Kan. 607, 609, 27 P. 2d 228, where it was said that:
“Fundamentally, almost any scheduled injury . . . produces some— perhaps slight, although it may be substantial — unnatural result upon normal bodily functions.”
and to Rogers v. Board of Public Utilities, 158 Kan. 693, 696, 149 P. 2d 632, where it was said:
“. . . if a workman is entitled to compensation for any injury suffered and scheduled under subdivision 3 (c), [of G. S. 1943 Supp. 44-510] then the compensation ... is exclusive of all other compensation provided for under any and all other provisions of the act.”
We need not review the facts of the above cases for we are of the opinion that as contrasted with the evidence in the case before us, to which reference is later made, they are clearly distinguishable, and that the quotations made above are not decisive.
Respondent also cites and relies upon Riggan v. Coleman Co., 166 Kan. 234, 200 P. 2d 271, where it was held:
“When in a proceeding such as is described in syllabus 1 the uncontroverted testimony is to the effect the scheduled injury sustained by the claimant is followed by additional incapacity which is caused by a causalgia condition directly related to and arising from the injury to his right arm the provisions of G. S. 1947 Supp. 44-510 (3) (c) (21) preclude additional compensation for either temporary or permanent disability and limit any recovery of additional compensation to the actual healing period therein described which in no event can be for longer than fifteen (15) weeks.” (Syl. ¶[ 2.)
Although reference is made to that opinion for a more complete statement of the facts we note that it was there said the only evidence was “that the extreme pain in appellee’s shoulder, neck and head, resulting in his severe headaches and additional incapacity, was referred there from the injured member of his body and caused by a condition known as causalgia which is a very common accompaniment of severe injury where there is either nerve or blood vessel injury to an extremity.” (1. c. 236.)
Respondent’s contention and argument appear to be predicated on its previous statement that the facts are well summarized in the award of the commissioner, and our attention is directed to his findings with respect to the causalgic state which he concluded existed. We shall not pause to examine whether if so limited, the contention is sound, for it was the duty of the trial court on appeal to make an independent examination of the evidence, and to make such an award as justice may require, and it is this same evidence which we examine to determine the legal question whether the trial court’s conclusions of fact have a competent and substantial legal basis.
It may be conceded without detailing it that there was ample evidence as to the injury to the claimant’s foot and that the respondent offered medical testimony that the claimant’s disability, aside from the injury to his foot, was the result of causalgia. That, however, is not all of the evidence as disclosed by the record as abstracted. The claimant testified that he fell about twenty feet from a scaffold, injuring his right foot, his right wrist, his left side above the groin and his back; that he was taken to Doctor Johnson’s office,, who, then and thereafter, treated his foot and gave him medicine for his side. After about three months he was taken to Doctor Weaver, who examined him and said for him to return to work, which he did. He worked about three weeks, during which time his foot troubled him and he had difficulty with his back and side. Later he went to Doctor White, complaining of his foot, side and back. Doctor White took him to Doctor Gist and the two recommended a nerve block, of which he had three. When he left the hospital he was still having trouble with his side, back and foot. Doctor White gave him medicine for his side. Doctor White and Doctor Gist recommended cutting the nerve. Doctor Gist suggested the treatment but was not certain it would do any good. The nerve blocks gave only short relief. After talking to Doctor Gist he continued to have pains in his foot, side and back which kept him from sleeping. He could eat a little but could not digest. On a doctor’s advice he moved to the country. On cross examination he testified that both Doctor Johnsons, who doctored him for his employer, advised against the operation suggested by Doctor Gist."
Doctor Eeehan, specializing in orthopedics, examined the claimant on October 1, 1948, at which time the claimant walked with a limp, could hardly lie flat on the examining table because of pain in the lower left quadrant and complained of pressure in that quadrant. It was his opinion at that time that the claimant was totally disabled, and that the disability found was functional and caused by the accident and will continue. The witness further stated he meant to include in the scope of the term “functional disturbance” the subjective complaints he had, without definite organic pathology existing, following which the compensation commissioner asked, “In other words, traumatic neurosis?” to which the doctor replied, “No, I think this may be even on the basis of hysteria, traumatic hysteria.”
Doctor Weaver testified at length about treatments given by him in 1947 and 1948; that the claimant had abdominal disturbances and on examination he found a little mass there.
The claimant contends that the evidence discloses that he received multiple injuries and not an injury to his foot alone, and that the judgment of the trial court was correct, and in support he directs attention to Morris v. Garden City Co., 144 Kan. 790, 62 P. 2d 920, where, as result of an accident the workman received injuries to his foot which were severe, and to his head which were not so serious, but the total effect of which left him suffering from traumatic neurosis. The employer there, as here, contended that the workman could have compensation only for the scheduled injury. In the course of the opinion it was said:
“It is true, as argued by appellant, that compensation for scheduled injuries is provided in our statute to prevent claims for total permanent disability by a workman who is injured only in some part of his body for which the schedule provides the sole compensation. This court has adhered to the purposes of the statute in this respect. (Neuhaus v. Hope Engineering Co., 132 Kan. 72, 294 Pac. 655; Schweiger v. Sheridan Coal Co., 132 Kan. 798, 297 Pac. 688; Gallivan v. Swift & Co., 136 Kan. 234, 14 P. 2d 665; Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228.) But, from the fact that a Workman sustained an injury for which a scheduled compensation is payable, it does not follow that in the same accident he may not have sustained other injuries which, alone or combined with the scheduled injury, totally incapacitate him. (Fernandez v. Edgar Zinc Co., 138 Kan. 735, 27 P. 2d 239.) Here the injury from the same accident was to the foot and to the head. The injury to the foot was severe. The head concussion was spoken of as being slight, but the combined effect was to shatter his nerves to the extent that it affected his mentality. He is a neurotic, totally incapacitated for work. Under the evidence and the findings of the trial court there is no room to say compensation should be limited to that for a scheduled foot injury.” (l. c. 792.)
The respondent seeks to avoid the force and effect of the above case by calling attention to the fact that in that case medical Witnesses characterized the claimant’s condition as traumatic neurosis, and that there is no such testimony in the case at bar. It is true that the claimant’s physician stated as set out above, that the condition was “traumatic hysteria” not “traumatic neurosis,” but that difference in terms is not of itself decisive. It is not disputed that each witness of whom inquiry was made testified that at the time of the hearing the claimant was not able to return to his employment. That the evidence showed the claimant suffered injuries to parts of his body other than his foot, that he was treated for such other injuries, and that he testified he still suffered from them is hardly open to dispute.
By analogy, the judgment of the trial court is supported by the case just cited. Any inference in the argument that the testimony of medical witnesses is controlling as to the duration of the workman’s incapacity is not warranted in view of our decision in Cowan v. Kerford Quarry Co., 146 Kan. 682, 684, 72 P. 2d 999.
The respondent also contends that the claimant’s refusal of a surgical operation was unreasonable. In view of the fact the evidence disclosed that two doctors advised the claimant not to submit to the proposed surgical removal of a nerve, and that no doctor testified that such an operation would be effective to complete a cure; and in further view of the fact that both the compensation commissioner and the trial court found that the claimant’s refusal was not unreasonable, there is nothing for discussion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to recover damages alleged to have been sustained when a heating plant in a poultry house operated by plaintiffs ceased to function one morning. A mistrial was declared after the evidence of both parties had been introduced. The appeal is from the trial court’s order overruling defendant's demurrer to plaintiffs’ evidence.
The action was brought against three defendants, the B & B Boiler and Supply Company, which made the propane tank involved; the Industro Sales and Equipment Company, which sold plaintiffs the tank, and the Mid-Continent Butane Equipment Company, which sold plaintiffs propane gas at various times.
Subsequently an amended petition was filed against the Mid-Continent alone. The action was' carried on against it only. The amended petition alleged the existence of the parties; that plaintiffs were operating a plant for raising chickens from two or three days old to maturity; that about November 1, 1947, plaintiffs purchased from Industro Sales and Equipment Company a thousand gallon propane tank, together with a regulator to control the flow of gas, and this tank was connected with pipes through which the gas flowed to heating units; that they purchased from Mid-Continent propane gas, as follows: November 1, 1947, 670 gallons; on December 12, 1947, 300 gallons; on January 24,1948, 6,70 gallons; and on February 18, 1948, 225 gallons; that this gas was delivered to plaintiffs by Mid-Continent; that about February 7,1948, the equipment did not work; the fires went out and before this was discovered the young chickens in the plant were chilled so that 1,214 of them died and 2,600 others were damaged; that they were in all worth $3,913; that plaintiffs paid $228.98 for the propane and had lost $2,191.25 on account of feed and care.
The amended petition then contained a paragraph, as follows:
“Plaintiffs further charge that such loss above set out resulted to them by reason of the grade or condition of the propane sold to them by the defendant, the Mid-Continent Butane Equipment Company in that such propane was inferior and defective and that it contained elements of water and that such water froze in said regulators and caused the failure herein set forth.”
Judgment was asked for $6,104.95.
The answer was a general denial and an allegation that if defendant was guilty of any negligence the plaintiffs were guilty of contributory negligence. The reply was a general denial.
After the opening statement, defendant moved that plaintiffs be compelled to elect upon what theory they were proceeding, whether negligence or breach of implied warranty. This motion was overruled. In response to a query by counsel -for defendant as th what theory the plaintiffs were proceeding under, the trial court said: “Just what he has pleaded.”
The plaintiffs were husband and wife. Homer J. Balthazor, the husband, testified about acquiring the heating system and that they had a thousand gallon tank with a regulator on top; that they bought propane from Mid-Continent; that the system “froze up” about the middle of January; that it was working at 10 in the evening and at 5 the next morning all the stoves were out; that the fires had never gone out up to this time; that they called Mid-Continent and a man came, who said he was from there, and told witness he poured hot water on the regulator and told him the next time it froze up to do the same; that after this had been done the stoves were lighted and all burned and they had no trouble since; that about 1,200 chickens died in three weeks after the occurrence. The testimony of Mrs. Balthazor was about the same except that she saw the man pour the hot water on' the regulator. She also testified they bought no propane from any other company and on January 24 the man who delivered it delivered two gallons of alcohol with it and told her husband if the alcohol was put in they would not have any worry about it freezing, and the plant had never failed to operate since that time.
The witness who sold plaintiffs’ heating system testified in regard to a regulator that
“It has a diaphragm spring and diaphragm you can adjust that to any pressure you want it. It is standard operation, it is set on six ounces and supposed to be that way when it comes out. If not proper installation, after it is installed, it is supposed to be tested by air, which you can test that to six ounces pressure and adjust it if it isn’t set when it is installed.”
He further testified that he had seen a regulator stop working due to condensation and assuming that a regulator stopped working during cold weather, and when hot water was poured on it, it started working again, he would say there was moisture on the diaphragm which froze; that propane came from the tank as a gas.
On cross-examination he testified that possible sources of water in a propane tank would be condensation, evaporation, refrigeration or liquid in the gas; that some propane tanks were tested at the factory for possible leaks by pumping them full of water under pressure; that deliveries of propane are made by a long high-pressure hose which runs from the tank on the truck and is hooked on the filler valve of the tank; that Mid-Continent made a lot of their deliveries direct from the Cities Service refinery.
The assistant plant supervisor for the Cities Service refinery testified that propane gas was perfectly dry when it got to their storage and from their storage tanks it was delivered to transports, tank cars and small trucks; that he knew of no way in which water could be injected into the gas from the time the Mid-Continent got it, assuming there was a direct delivery to the time it was delivered.
At this point the plaintiffs rested and defendant demurred to the evidence for the reason that it failed to establish a cause of action against it. This demurrer was overruled and the defendant rested without introducing any evidence. Before the cause could be submitted to the jury a mistrial was declared on account of misconduct of a juror.
The specifications of error are that the court erred in overruling defendant’s demurrer to the evidence, in failing to hold that plaintiffs’ evidence was insufficient as a matter of law to show negligence on the part of the defendant and in failing to hold that as a matter of law there was no implied warranty, and in failing to hold that plaintiffs’ evidence was insufficient as a matter of law to show a breach of implied warranty by the defendant.
The charging part of the plaintiffs’ petition is contained in paragraph 6 thereof. It has already been set out in this opinion. It pleaded that the loss was caused because the propane sold to plaintiffs by defendant was inferior and defective, contained water which froze in the regulators and caused the failure of the stoves to burn at a critical time. In other words, the plaintiffs bought propane to burn and the propane sold them by defendant would not burn on account of containing water. The action was tried in the court below and argued here on that theory.
The theory of plaintiffs is treated in Lumber Co. v. Mercantile Co., 114 Kan. 10, 216 Pac. 815. In that case a contractor ordered two cars of Portland cement. When the cement was delivered the trial court found it to be of a poor and inferior quality and so defective that it would not produce a solid smooth hard glazed surface on the floors. The contractor refused to pay and when the lumber company sued the court held there was an implied warranty that Portland cement properly mixed would produce the kind of floor described. We said:
“Applying the same principles to the present case, it follows that there was an implied warranty as to qualify; the article purchased was Portland cement; the thing delivered was not Portland cement, because it did not possess the well-known qualities and characteristics which Portland cement always possesses. Portland cement is a definition and means a standard, not a brand. In this respect it is like the use of the definition ‘Sterling Silver.’ The term, Portland cement, is understood in the building trade generally to mean an article which possesses certain qualities.”
In the case we are considering propane is a name given to a liquid which is really natural gas compressed at a low temperature and when released by means of the regulator through a small vent becomes an inflammable gas which flows through pipes to stoves. When a purchaser buys propane he buys it to burn and it can only be burned if it escapes through a regulator such as we have here. There was substantial evidence that propane when it is manufactured is perfectly dry, that is, it has no moisture content. What plaintiffs bought was a perfectly dry product with no moisture content whatever, while what was delivered to them was gas with water in it. What was said in Lumber Co. v. Mercantile Co., supra, is controlling here. (See Bigger v. Bovard, 20 Kan. 204; Tank Co. v. Oil Co., 108 Kan. 690, 196 Pac. 1111; and Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719.)
Defendant points out first that the allegations of the petition must be proved and argues the burden was on plaintiffs to prove the propane sold plaintiffs by defendant was of an inferior quality; that they did not sustain this burden and the demurrer should have been sustained.
A cause of action may be proved by circumstantial evidence, and in considering a demurrer to the evidence we will consider only that evidence favorable to the plaintiff’s case and will draw all reasonable conclusions and indulge all reasonable inferences in favor thereof. If there was substantial evidence in favor of the plaintiff, the trial court was correct in overruling the demurrer.
When thus viewed, we have proof here that the fires went out on a cold morning and when the serviceman from defendant was called and came out he poured hot water on the regulator, the gas flowed immediately, and the stoves burned when lighted. This employee of defendant told plaintiffs the next time it froze to pour water on the regulator and he showed plaintiffs where to pour it. The reasonable inference to be drawn from this circumstance is that there was ice or frost in the small hole through which it was intended the propane should escape and form gas and would not have occurred if the propane had had no water in it.
The next circumstance to be considered is the testimony that propane as manufactured is free of moisture. This is a technical term. While the propane itself is a liquid it has no H20 content. It forms a liquid under heavy pressure and at a low temperature. Hence to be successfully used it must be free from water or H20 because water freezes at a much higher temperature than is necessary to cause propane to become gas when the pressure is released. Here there must have been some water present to freeze on the cold February morning in question and propane without water in it would not have frozen.
Another circumstance to be considered is the fact that after the occasions when the stoves stopped burning when defendant delivered propane to plaintiffs two gallons of alcohol were delivered with the load of propane and the driver told one of the plaintiffs that if alcohol was put in it they would not have to worry about it freezing any more. - ■ •
There was evidence that the equipment never refused to work • after that time.
Defendant makes much of the fact there was testimony that propane tanks are tested at the factory by hydraulic pressure and some water may have been left in this tank from that test, also there was testimony that water might have gotten into this tank from condensation in the hose through which it was filled. For the purposes of a demurrer to the evidence, the plaintiffs do not have to exclude every other possible theory. It is sufficient if they introduce evidence from which a reasonable inference may be drawn in favor of their cause of action.
We hold there was substantial evidence introduced by plaintiffs to show the propane sold by defendant to plaintiffs was of inferior quality in that it contained sufficient water so that some of it froze and prevented the propane from escaping through the regulator and forming gas.
Other specifications argued by defendant are examined and found to be without merit.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original action in quo warranto brought by the county attorney of Allen county in the name of the state to test the right, of respondent to hold the office of mayor of Iola.
Issues were joined by the filing of a petition and answer. By stipulation depositions were taken by both parties. The cause has been submitted on that record.
Iola is a city of the second class. G. S. 1935, 14-1301, provides, in part, as follows:
"The mayor and each of said commissioners shall be not less than twenty-five years of age, a citizen of the United States, and for two years immediately preceding his election a resident of such city.”
The state contends Jones does not meet the above requirement as to residence. Jones contends he does.
The petition alleged the candidacy of Jones; that he received the most votes at the election held on April 4, 1950; that he was given a certificate of election and took the oath. The petition then alleged that Jones had been in business in Iola since 1937; that on April 14, 1947, he and his wife purchased and moved to a suburban tract outside the city limits, and since that time had not lived in Iola, and until July, 1949, had no dwelling house or other abode in Iola, and from April, 1947, to July, 1949, lived on the suburban tract; that in July, 1949, Jones sold the suburban tract and moved back to Iola, where they maintained their home at the time the petition was filed. The petition then alleged that in 1948 and 1949 the couple listed their household goods and personal property for taxation in Iola township outside the city; that at the same time their post office address was Rural Route No. 2, Iola, and their, address was so listed in the telephone directory; that Jones gave the same address when he obtained his automobile license; that he was enumerated by the assessor of Iola township and signed such return. The petition then alleged that at the general election for 1948 Jones voted in Iola precinct; that this was the township surrounding the city of Iola and neither Jones nor his wife registered for voting in the city of Iola at that election. The petition then alleged that by reason of the foregoing allegations, Jones was not a resident of Iola for the two years preceding the election on April 4, 1950, and was not qualified under G. S. 1935, 14-1301; that one Thomas O. Waugh was elected mayor in 1947 for a term of three years, had qualified and served as mayor and was mayor until some person qualified had been elected. Judgment was asked that defendant Jones be excluded from exercising the powers of the office of mayor.
The answer was first a general denial and a specific denial of a certain number of paragraphs. Jones then alleged that he moved to Iola on September 10, 1937, with the intention of establishing himself as a resident thereof and he did establish a residence in Iola; that in 1941 he entered the employ of the Kelley Hotel, acquired an interest in it and continued to hold it until July 1, 1946, when he sold his interest; that on January 1,1943, he was appointed terminal manager for three bus lines and continuously served in that capacity ; that he had been continuously engaged in business in Iola from 1937 until the time of filing the answer; that in January, 1947, he as an investment purchased a house located upon a suburban tract adjacent to the city of Iola; that it was purchased for resale; that he on March 19, 1947, because of his inability to hire laborers to repair this suburban house moved from his residence at 826 E. Madison Avenue, Iola, Kan., to that property, taking with him only such household goods, clothing and personal effects as were required to meet the minimum requirements of his family and all his other household goods were stored in Iola at 322 South Washington Street; that he established living quarters at that address and maintained them from March, 1947, until July, 1949; that these quarters were occupied by him on various occasions and it was always referred to by him as his home; that this residence was considered by respondent to be his home while he managed the Kelley Hotel and also the place he and his wife occupied and where they entertained guests at the wedding reception of their only daughter; that the removal to the suburban house was only temporary and respondent at no time intended to remain there permanently or to remove from the city of Iola or to change his residence; that he continued the work of restoring and repairing the residence up until May 17, 1949, and shortly thereafter this place was sold and his goods were stored in the city of Iola and the goods of the purchaser were moved to the property and respondent remained there at the request of the purchaser; that in May, 1949, as he had always intended, the respondent returned to Iola and acquired a home at 415 South Lawrence Street and had continued to live there until the filing of the answer; that the place where the suburban home had been was commonly known by the citizens of Iola as a part of the city. The answer then alleged that shortly after moving to Iola respondent joined the Methodist Church, became a member of the civic club in the city, a member of the Chamber of Commerce and that when he moved to the suburban tract he continued to belong to these organizations; that prior to the general election of 1948 he inquired of the city clerk in what ward in the city he should vote, especially for the school election, which was to be held for the purpose of voting upon bonds for a new school, and the city clerk advised him he should vote at the courthouse; that this bond election was of vital interest to the citizens of Iola, including respondent, and he so voted to assist in the establishment of an adequate school system in Iola; that respondent became a candidate for mayor of Iola by a' petition signed by sixty-nine individuals who believed him to be qualified for the office of mayor; that his declaration as a candidate for nomination was filed on March 8, 1950; that prior to the primary he mailed to each resident of Iola a card announcing his candidacy and advertised his candidacy in the papers; that he received a majority of the votes at this primary; that his qualification was not questioned until about April 23, 1950, when a story in the local newspaper disclosed that an inquiry had been addressed to the attorney general as to his qualifications; that the attorney general gave an opinion as to his qualifications but later withdrew it; that from and after September, 1938, the date upon which respondent located permanently in Iola and established his residence and commenced business there, the respondent had not intentionally or otherwise abandoned his legal residence within the city of Iola but had at all times deemed himself to be a legal resident of the city and that when he sought the office of mayor, that he, himself, and the voters of Iola considered him to be a qualified resident of Iola; that from the 15th of April, 1950, he had discharged all the duties and responsibilities of the office of mayor and was continuing to discharge them;, that Waugh had been elected mayor for the two regular three-year terms prior to April 15, 1950, but was not making any claim to or asserting any interest in the office of mayor. The prayer was that petitioner’s petition be denied and respondent recover costs.
By stipulation, it was agreed that depositions for both sides be taken and the case submitted to us on that record.
There is not a great deal of dispute as to what actually happened. The only question is the inferences to be drawn from the generally undisputed facts. There can be no doubt but that respondent purchased and at least part of the time lived at a place not within the city limits of Iola. There can be no doubt that the statute already quoted requires that the mayor of a city of the second class should have been a resident of the city for two years prior to his election as mayor. The real question is whether respondent lost his residence in Iola by what transpired with reference to the suburban property. Residence has been defined by our statute as follows:
“The term ‘residence’ shall be construed to mean the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. When a person eats at one place and sleeps at another, the place where such person sleeps shall be deemed his residence.”
(See G. S. 1935, 77-201, subpar. 23.)
To decide this question, therefore, we must decide whether Jones had taken the suburban place as his habitation and whether when ' he was absent he had the intention of returning to that place. The question has been dealt with at various times by us in Roberts v. Robertson, 123 Kan. 222, 254 Pac. 1026. There we held:
“Ordinarily the residence of a person is the place where he has established his abode and to which whenever he is absent he has the intention of returning. To accomplish a change of residence there must be not only the intention to establish a new residence, but also the fact of removal thereto.”
We further held:
“In changing a residence, intention is an essential element.”
In Harwi v. Harwi, 143 Kan. 710, 56 P. 2d 449, we said:
“It is elementary law that to establish a residence two essentials are necessary — a deliberate intention to do so, and the carrying of that intention into effect by some appropriate and operative action. An intention alone to establish a residence is insufficient.”
In Arnette v. Arnette, 162 Kan. 677, 178 P. 2d 1019, we held:
“A citizen may change his residence, either temporarily or permanently. Whether he does so, or which he does, is determined by his acts and his intentions.”
In Littell v. Millemon, 154 Kan. 670, 121 P. 2d 233, we said:
“It is elementary that residence is a combination of acts and intention. Both must concur.”
The -result of these holdings is that we must decide from the evidence furnished us whether the acts and intention of Jones were such that it can be said that he continued to be a resident of Iola during the time in question. We have the testimony of the respondent on the question of intent, as follows:
"Q. When you moved to Iola in 1937, was it your intention at that time to establish Iola as your legal residence? A. It was.
“Q. When you voted at the school bond issue, was it your intention to abandon your legal residence? A. It was not.
“Q. What did you consider, and what have you considered to be your legal residence? A. Iola, Kansas.
“Q. And has that contention been continuous since 1937? A. It has never changed.”
Thus we have to decide from the declarations by the respondent that he never intended to lose his residence in Iola. The rest of his evidence consists in a large measure of his story of how he had been in business in Iola at all times since coming to the town in 1937, his belonging to various civic clubs and the Chamber of Commerce and other activities in the city.
What he really depends on, however, is that when he bought the suburban property he only bought it for an investment; that he did not move all of his goods there; he maintained his living quarters at the home of his sister; that he had some of his furniture there and never intended to abandon his residence in the city.
The trouble about cases of this type is, it becomes important for the person claiming a residence at a certain place, at a certain time, to substantiate that claim. Who can say in good faith that he did not intend to change his residence? Nobody knows, of course, what was in the mind of the party testifying. The triers of fact can only test it by other acts performed by him at the same time, and other surrounding facts and circumstances. There are many indicia of residence, many of them common to all of us. There can be no doubt but that this respondent moved into the suburban property and occupied it for a considerable part of the time as his home. He directed the post office to send his personal mail there on a rural route. He listed that as his residence in the telephone directory. His personal property was assessed in that rural township by the township trustee. At that time he gave his address as Route 2 and signed a sworn statement that he lived at that particular place. When he obtained his automobile license he gave his address as Route 2. At the general election he cast his ballot at the voting place for that precinct.
To counteract that state of affairs respondent emphasizes that he declared at the time of the purchase of the property that he only wanted it for an investment; that he only took part of his property there and while he owned the property he did much of the work of repairing it; that he maintained living quarters in Iola, which were frequently occupied and utilized and which he called home; that this was the place where people thought he and his wife lived. With reference to his voting at the election of 1948 he states that he was very much interested in the pending school election and when he was told by the city clerk that he should vote there he voted there on the school issue only. He makes a great point of the fact that nobody questioned his residence and qualifications for mayor until after he had been elected.
As the case was submitted by the parties, we are the triers of fact. We have examined this record very carefully and have concluded that the acts performed by the respondent at the time he moved to the suburban tract were such that he cannot be heard to say now that he did not intend to establish his residence there outside of the city. What really happened, we are inclined to believe, is he did not realize that the tract actually was outside of the city or that residing there would make him a nonresident of the city or that residence would become important. The fact remains, however, that such was the case. The statute is clear as to qualifications for mayor of cities of the class of which Iola belongs. We hold that the judgment must be entered for the plaintiff. | [
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The opinion of the court was delivered by
Smith, J.:
These were actions to recover money. They were heard together in the court below and consolidated here. All three defendants demurred to the plaintiff’s petition in each case on the ground that it did not state facts sufficient to constitute a cause of action and showed on its face the cause was barred by the statute of limitation and in case of the bank on account of misjoinder of causes of action. These demurrers were overruled. All three defendants have appealed.
The pleadings in each action are identical, so those for one case only will be stated. The actions grew out of a living trust created by Mary G. Bowersock during her lifetime and to end five years after her death.
Justin D. Bowersock, Irving Hill and Paul A. Dinsmoor were trustees of this trust. Dinsmoor died, so Hill and Bowersock continued to act. Amongst the assets of this trust were 900 shares of stock in the Lawrence Paper Company. Amongst the various beneficiaries were Margery B. Dalton, the daughter of Mary. She was the beneficial owner of 144 of these shares. By her will she created a testamentary trust in which she named defendant bank as testamentary trustee. In this trust she disposed of the above 144 shares. Her husband elected not to take under the will, so only seventy-two shares were left in the trust. She left four children, and provided in her will that each of these children should be the beneficial owner of an equal share of this stock. Hence each child became the beneficial owner of 18 shares. These cases involve a claim by three of these children that they were each fraudulently caused by the defendants to sell these 18 shares for less than they were worth. One of the children of Margery did not bring any action.
The petition was filed and the action begun on June 10, 1948. It alleged the residence of the parties and incorporation of the bank; that Irving Hill was and at all times had been president of the bank and Justin D. Hill was a son of Irving and for five years had been a director of the bank; that plaintiff was the son of Margery B. Dalton, who was the daughter of Mary G. Bowersock, both deceased; that in the will of Margery B. Dalton the bank was named testamentary guardian and trustee for the four children of Margery and accepted the appointment and acted as such during the minority of plaintiff, and at the time the action was filed was so acting.
The petition then alleged that Mary G. Bowersock by her deed of trust on January 1, 1923, created a trust for the use and benefit of her six children, including Margery B. Dalton, for the lifetime of Mrs. Bowersock and for five years thereafter; that it was further provided that at the expiration of five years from the death of Mary, the principal of the trust estate with an. exception not now important was to be conveyed to the children; that Justin D. Bower-sock, Irving Hill and Paul A. Dinsmoor were designated trustees and subsequent to the death of Dinsmoor the other two continued to act; that when five years had elapsed after the death of Mary G. Bowersock, or on September 3, 1942, a trust extension agreement was executed by all of the beneficiaries, including the defendant bank as guardian and trustee for plaintiff and for the other children of Margery B. Dalton, deceased; that the trust extension agreement provided for the immediate distribution of certain of the assets in the trust and for the continuance of it as to the remaining assets; that included in the securities to be immediately distributed were 900 shares of the capital stock of the Lawrence Paper Company; that of these 900 shares, seventy-two were distributable to the defendant bank as trustee under Margery’s will for the benefit of the four children; that no distribution of the 900 shares was made by the trustees, Justin D. Bowersock and Irving Hill, of the Mary G. Bowersock trust; that the defendant, Irving Hill, objected to the issuance of certificates representing this stock to the beneficiaries and by reason of this objection the stock continued to stand in the name of Mary G. Bowersock trust for more than two years subsequent to September 3, 1942; that defendant, Irving Hill, was desirous that the stock of the Lawrence Paper Company to be distributed to the bank as testamentary trustee be sold by the bank and to that end procured from the attorney representing the bank an opinion that such stock might be sold by the bank; that the 900 shares referred to constituted 22% percent of the 4,000 shares issued by the corporation; that 1,350 shares were owned by Irving Hill, Hortense B. Hill, his wife, and Justin D. Hill, referred to as the Hill interests, and 1,350 shares were owned by Mary B. Dinsmoor, Dorothy D. Patton, her daughter, and E. W. Patton, husband of Dorothy D. Patton, referred to as the Dinsmoor interests; that the holdings of the Hill and Dinsmoor interests were equal and Irving Hill and Justin D. Hill for the purpose of obtaining control of the company desired to purchase additional stock in an amount sufficient to vest in the Hill interests the ownership of more than 2,000 shares and to accomplish this Justin D. Hill, with the knowledge of Irving Hill, set out to acquire the 900 shares of stock already referred to in the Mary G. Bowersock trust, with the exception of 144 shares in which Mary B. Dinsmoor was beneficially interested and the like amount of stock in which Hortense B. Hill was beneficially interested.
The petition further alleged that Justin D. Hill, with the consent of Irving Hill, negotiated with Justin D. Bowersock for the purchase of 234 shares of the stock, to which he was entitled, and after negotiations extending over several years bought it for $107.50 per share, which did not represent its actual value; that thereafter on May 19, 1944, defendant, Justin D. Hill, caused to be written on the stationery of defendant bank a letter to the plaintiff wherein the defendants falsely stated that the Lawrence Paper Company stock was not stock which could be held in the Dalton trust; that there was no market for it and it had not been a dividend payer because the earnings had been used to develop the business; that the value of the shares had been determined by examination and audit and as a result 234 shares of the stock in which Justin D. Bowersock had been beneficially interested had been sold to Justin D. Hill at the price of $107.50 per share.
The petition further alleged that in the communication defendants proposed the sale to Justin D. Hill at the price of $107.50 of the eighteen shares of stock in which the plaintiff was beneficially interested.
The petition further alleged that the Lawrence Paper Company’s stock actually was unlisted and closely-held, with no established market; that it was the duty of the defendant bank as trustee for the plaintiff in connection with any proposed sale of it to advertise it and to invite bids and to sell it only at a price that would reflect its actual value; that the defendant bank disregarding its duties as trustee and acting solely in the interest of the defendants, Justin D. Hill and Irving Hill, neither advertised the stock for sale nor made any attempt to obtain bids; that defendant, Irving Hill, had recommended to the bank the sale of the 72 shares to the defendant, Justin D. Hill, and in pursuance of this recommendation and at the instance of defendant, Justin D. Hill, the bank directed to this plaintiff the communication referred to and thereafter sold the stock privately to Justin D. Hill at the price of $107.50 per share, which did not represent the actual value; that defendant, Irving Hill, was on May 19, 1944, and had been since the incorporation of the company in 1931, its president, and the defendant, Justin D. Hill, was on that date and had been since 1933 a director and since 1942 a vice-president of the company; that Irving Hill and Justin D. Hill were both active in the management of the company and they knew on May 19, 1944, that the book value and the actual value of this stock was greatly in excess of $107.50 per share; that the company was in excellent financial condition; that its current assets amounted to $745,000 as compared to the current liabilities of $65,000; that it had fixed assets; that it had a book value in excess of $225 per share; that it was a going concern and for many years had been earning large profits and no dividends had been paid because of the large salaries and bonuses paid to the employees and officers of the company, including Irving Hill and Justin D. Hill “that notwithstanding the knowledge of such facts and their fiduciary duty as directors and managing officers to make disclosure of the same to any stockholder of the stock they were seeking to acquire, said defendant, Irving Hill, and Justin D. Hill, did not, either in the communication to this plaintiff of May 19, 1944, hereinabove referred to, orally or otherwise, disclose to this plaintiff any of the facts hereinabove set out or any other facts bearing upon or affecting the value of the stock of the said Lawrence Paper Company.”
The petition further alleged that plaintiff had no knowledge or information as to the business of the Lawrence Paper Company and the earnings and profits of said company or the amounts of the salaries and bonuses paid its officers; that the plaintiff relied upon the statements made by the defendant and believed that Irving Hill and Justin D. Hill had made a full and fair disclosure to him of all information possessed by them affecting the value of the stock and believed the bank had fully discharged its fiduciary duties as trustee; that during the months of May and June, 1944, the actual market value of the Lawrence Paper Company’s stock was $400 per share and as a result of their joint and concurrent acts as set out and in pursuance of the conspiracy participated in by all of the defendants the eighteen shares of the paper company’s stock were sold by the bank to defendant, Justin D„ Hill, at a price of $107.50 per share; that the funds for the purchase of the stock were furnished and advanced in whole or in part by defendant, Irving Hill. The petition then contained the following allegations:
“That this is an action, for relief on the ground of fraud and that this plaintiff did not discover any of the facts herein relied upon as constituting such fraud nor any other facts which, if investigated, would have led to knowledge of such fraud until subsequent to the 12th day of June, 1946. That this plaintiff was unable, by ordinary diligence, to discover said fraud by reason of the fact that the facts constituting such fraud were peculiarly within the knowledge of the defendants and were concealed by them from this plaintiff.”
The petition then alleged that by reason of the facts set out plaintiff had sustained actual damages in the amount of $5,265 and the acts of the defendants described involved a violation of fiduciary duties and constituted a willful invasion of the rights of the plaintiff and plaintiff was entitled to punitive damages in the amount of $5,000. Judgment was prayed for in the amount of $10,265.
To this petition the several defendants filed a series of motions to strike and to compel the plaintiff to make definite and certain. These motions were sustained in part and overruled in part. They will be noticed at this point.
All three defendants asked that the plaintiff be ordered to amend his petition by setting out a copy of Margery B. Dalton’s will, Mary G. Bowersock’s deed of trust, the trust extension agreement and a copy of the letter written by the bank. This motion was overruled except as to a copy of the letter. A copy of it was ordered attached and was attached to the amended- petition. They also asked that five paragraphs be stricken and that two different parts of another paragraph be stricken. This motion was sustained as to certain paragraphs not now important and the allegation “that by and as a result of their joint and concurrent acts, as herein above set out, and in pursuance of a plan and conspiracy, participated in by all of the defendants herein” was ordered stricken.
All three defendants filed a further motion in which they asked that the plaintiff be required to elect as to whether he was attempting to recover on the ground that defendants had breached their duty as fiduciaries or on the ground of fraud claiming these two theories were treated in separate paragraphs.. This motion was sustained.
Subsequently and on January 14, 1949, an amended petition was filed. This petition followed pretty generally the allegations of the original petition except that it alleged, as follows: ■ ■
“The defendants, Irving Hill and Justin D. Hill, acting and conspiring together, set out to acquire and-purchase,’ in the name of the said Justin D. Hill, sufficient of the 900 shares of said Lawrence Paper Company stock held in the Mary G. Bowersock Trust to vest in the Hill interests and family, consisting of the defendants, Irving Hill and Justin D. Hill and Hortense B. Hill, the wife of Irving Hill, the ownership of more than 50% of the stock of said Paper Company and thereby to secure control of said company.”
And further— '
“The defendant, Justin D. Hill, procured and Caused to be written and the defendant, The Lawrence National Bank, cooperating and conspiring with the defendants, Irving Hill and Justin D. Hill, directed and mailed to this plaintiff, on May 19, 1944, on the' stationery of said Bank and over the signature of its Trust Officer. . . .”
Also, a copy of letter of the bank under date of May 19, 1944, was attached.
To this amended petition defendant bank filed a motion to strike nine separate allegations. In the main, the basis of this motion was that the allegations should be stricken because they were contradictory to the statements in the letter and some of them were irrelevant and immaterial. This motion was overruled except as to an allegation that defendants had stated the stock of the Lawrence Paper Company was not stock which should be held in the Dalton trust. That allegation was ordered stricken.
The bank also filed a motion asking that the plaintiff be required to make his petition more definite and certain by setting out facts relied on as constituting such alleged fraud or any other facts alleged to have been concealed from him by the defendant, the Lawrence National Bank, which were discovered by the plaintiff subsequent to the 12th day of June, 1946, of which the plaintiff did not theretofore have full knowledge, and facts the plaintiff was unable by ordinary diligence to have discovered prior to the 12th day of June, 1946, and such facts so discovered subsequent to the 12th day of June, 1946, were peculiarly within the knowledge of the defendant, the Lawrence National Bank, and were concealed by said defendant, the Lawrence National Bank, from the plaintiff and, the date and time at which the plaintiff discovered any of such alleged facts.
This motion was overruled.
At the same time defendant Irving Hill, filed a motion asking that the plaintiff be required to elect whether he relied on the fact that he and Justin Hill breached their duty as fiduciaries or on fraud, and whether he expected to prove that he was the beneficial owner of the 18 shares of stock or whether he expected to prove that he owned the stock and to require plaintiff to elect whether he relied on the conspiracy between Irving Hill and Justin Hill for obtaining more than 50 percent of the Lawrence Paper Company or whether the company, was to obtain the stock for the Hill interests without paying an adequate price, to require him to elect whether he expected to prove that defendant bank sold the stock secretly or that the defendants proposed and suggested the sale by letter; that plaintiff be required to set out a copy of the Mary G. Bowersock’s deed of trust, the trust extension agreement of September 3, 1942, and the will of Margery Dalton and to strike from the petition the allegation “That the funds for the purchase of said stock were furnished and advanced, in whole or in part, by the defendant, Irving Hill” and to strike from the petition the allegation “That the stock of said Lawrence Paper Company was not stock which should be held in said Dalton Trust” and also the allegations:
“That the value of said shares had been determined by examination and audit and did not exceed $107.50 per share, and that as a result of such examination and audit the 234 shares of such stock in which Justin D. Bower- sock was beneficially interested had been offered by him to Justin D. Hill at said price of $107.50 per share.”
And to require plaintiff to make his petition more definite and certain by stating what acts of fraud called upon he discovered after June 12, 1946, and exactly when he discovered them and to state what facts which, if investigated, would have led to knowledge of such fraud he discovered subsequent to June 12, 1946, and exactly when he discovered such facts.
Defendant, Justin Hill, filed substantially the same motions. They were all overruled except for the allegation, which was ordered stricken, as already noted.
The bank demurred on the ground of misjoinder of causes of action; that the petition did not state facts sufficient to constitute a cause of action and that the petition showed on its face that the cause of action attempted to be pleaded was barred by the statute of limitations.
Irving and Justin Hill demurred on the grounds that the petition did not state facts sufficient to constitute a cause of action and it showed on its face that the cause of action attempted to be stated was barred by the statute of limitations.
All three of the defendants have appealed.
We shall examine first the argument of the bank. It argues first, the original petition showed on its face that several causes of action were improperly joined and that the amended petition did not remedy this. The basis of this argument is the allegation in the original petition in one place that it was the duty of the bank as trustee to advertise the stock for sale and to invite bids, but instead, the bank sold the stock to Justin Hill, as charged; and in. another place, that Irving Hill and Justin Hill, as officers of the paper company, owed a duty to make a full disclosure to plaintiff whose stock they were trying to buy. A motion to require the plaintiff to elect between these two theories was sustained.
As the correctness of that ruling is not here for review we cannot say whether the ruling requiring the election was correct or not. The allegation with reference to the duty of the bank as trustee to call for bids before selling the stock was omitted from the amended petition.
It is well settled that an eléction of remedies may be required only when there is such inconsistency that the allegations in one cause of action must necessarily repudiate or be repugnant to the other. (See Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P. 2d 150.) The test is whether but one satisfaction is asked. This is a case for the application of'that doctrine. The plaintiff asked only one satisfaction. Proof that the bank, as trustee, failed to take proper steps to safeguard the welfare of its cestui que trust would in no way be repugnant to, or disprove the allegation that Irving Hill, who was president of the bank and also president of the paper company, failed to make the proper- disclosure of the condition of the company to plaintiff. There is an allegation that all these actions of defendants had only one end," that is, to enable defendant Justin Hill to acquire the stock at less than its actual value. In order to state a'cause of action ’ against several parties it is only necessary to state facts from which the reasonable inference' may be drawn there was a concert of action between them, which resulted in the wrongful act. (See Nardyz v. Fulton Fire Ins. Co., 151 Kan. 907, 101 P. 2d 1045, and opinions there cited.) A reasonable inference, may be drawn from the allegations of this amended petition that the bank through its trust officer wrote the letter, Justin Hill, who caused the letter to be written, Irving Hill, who was president of the bank and president of the paper company, all acted together, some doing one thing, some another, but all working to cause plaintiff to sell his stock for less than its actual value. Irving Hill, the president of the company, and Justin Hill, vice-president, owed plaintiff the duty to make a complete disclosure of the condition of the company. (See Hotchkiss v. Fischer, 136 Kan. 530, 16, P. 2d 531.)
We hold there was no misjoinder of causes of action.
Defendant bank next argues the petition shows on its face that it does not state a cause of action against it. The basis of'this argument is that the action is founded on the letter of May 19,1944, and that while the petition alleges certain false statements on the part of the bank, it does not allege that any of the statements in this letter were false — -hence plaintiff is bound by the statements in the letter, and since the statements in the letter are not alleged to be false the petition fails to state a cause of action against the bank for fraud. It is not correct to say that none of the statements in the letter are alleged to be false. The letter stated “The stock has not been a dividend payer, earnings being used to develop business.” The amended petition alleged the letter falsely stated the stock had not been a dividend payer because the earnings were being used to develop the business-' The letter stated a statement and audit had been inade as df December 31,1943. The amended petition alleged that thé letter falsely stated that the value of the shares had been determined' by examination and audit. The letter stated that increased liquidity over earlier appraisals justified a price of $107.50 a share. The amended petition alleged that the letter falsely stated the value did not exceéd $107.50. The letter stated that after examination of the statement and audit, certain stockholders had offered their stock to Justin Hill. The amended petition alleged that this statement was- untrue.
The truth of many' of the pertinent statements of the letter were denied. It is not necessary that they all be false. It is sufficient if all of the false ones or any one of them be a part of what caused plaintiff to part with his stock. (See Vernson v. Baker, 124 Kan. 575, 261 Pac. 563; 26 C. J. 1165, sec. 76½.)
Moreover the amended petition alleged that all the parties conspired together to obtain the stock for Justin Hill without payment of an adequate price; that Justin Hill caused the letter to be written and the bank wrote it, and the plaintiff being without information relied on Justin and Irving Hill as officers of the paper company and the bank as trustee to inform them fully and completely. Under the statement of facts pleaded the bank is liable not only for its own acts but for the acts done by any other member of the conspiracy. (See Mosley v. Unruh, 150 Kan. 469, 95 P. 2d 537; also, Holderman v. Hood, 70 Kan. 267, 78 Pac. 838.)
In connection with this phase of its brief the bank points out the statement in the letter “Auditor’s Report as of Dec. 31, 1943, is available should you wish to go into the matter.” The bank argues that by this statement plaintiff was offered all the particulars which he claimed were concealed and thereby the plaintiff’s case collapsed.
We cannot follow this argument. In the first place, it does not necessarily follow that the auditor’s report tendered in the letter would have disclosed the true condition of the company or the falsity of the statements upon which the action is based. We are in the dark as to what this report would have shown and on a demurrer to a petition we cannot give it the force contended for by the bank. In the second place, plaintiff and the bank were not dealing at arm’s length. The letter was from a trustee to one of the beneficiaries of the trust. The plaintiff was entitled to place complete faith and confidence in what the bank said. It was the bank’s duty to make a full and complete disclosure and it is liable for either misrepresentation or concealment. (See 37 C. J. S. 282, sec. 35, 23 Am. Jur. 966, sec. 159; also, Hutto v. Knowlton, 82 Kan. 445, 108 Pac. 825; also, Hotchkiss v. Fischer, supra.) Defendant bank insists the letter was clear and unambiguous and on that account must be interpreted according to the express words used. As a matter of fact, the letter seems to us to be a model of an effort to cause the reader to believe a certain state of facts without actually saying so. It falls far short of fulfilling the duty of the bank to make the full and complete disclosure required under the circumstances.
Defendant bank next argues that the original petition and the amended petition both show on their face that the action was barred by the statute of limitations. In this connection they point out first that the applicable statute is G. S. 1935, 60-306, subparagraph Third — “Within two years ... for relief on the ground of fraud”; that this cause of action accrued on May 19, 1944, when the letter was written; the original petition was filed June 10, 1948, four years and twenty-one days after the alleged perpetration of the fraud and the amended petition was filed January 14, 1949, or four years, seven months and twenty-five days after the alleged perpetration of the fraud. The bank calls attention to the allegations of both petitions that the fraud was not discovered until June 12,1946, and then points out its motion wherein it asked that the plaintiff be required to make its petition more definite and certain by stating what facts relied upon as constituting fraud or facts concealed from him by the bank were discovered by him subsequent to that date. The bank then points out that this motion was overruled and hence the allegations of the petition as to the discovery of the fraud must be strictly construed. The balance of the bank’s brief on this point is a reiteration of its argument on the previous point, that is, the bank says since the petition did not allege that any of the statements in the letter were false plaintiff cannot be heard to say he subsequently discovered they were false.
We have already demonstrated that the letter and the allegations of the petition with reference to the letter are not subject to the construction contended for by the bank. The allegation of the petition with reference to the failure to discover the fraud is, as follows:
“That this is an action for relief on the ground of fraud and that this plaintiff did not discover any of the facts herein relied upon as constituting such fraud nor any other facts which, if investigated, would have led to knowledge of such fraud until subsequent to the 12th day of June, 1946. That this plain tiff was unable, by ordinary diligence, to discover said fraud by reason of the fact that the facts constituting such fraud were peculiarly within the knowledge of the defendants and were concealed by them from this plaintiff.”
The bank argues in effect that the allegation in the' above paragraph of the petition about concealment is contradicted by the statement in the letter tendering the audit. The bank argues that this letter put the plaintiff on notice of what the audit would show and the statute commenced to run then. In the first place, we are in the dark as to what the audit would show. We cannot state on consideration of a demurrer to a petition that it would enable the plaintiff to ascertain the true condition of the company. (See Duffitt v. Tuhan, 28 Kan. 208.) There we said:
“The statute requires such an action to be brought within two years, but further provides that the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. In a case like this, the statute does not begin to run until the fraud is discovered.”
In the second place, the bank as trustee owed plaintiff more of a duty than the mere tender of an audit. In the third place, the letter was so ambiguous and replete with double talk that a jury might draw a reasonable inference therefrom that it was actually a means used by defendants to conceal their real purpose.
Defendant bank next argues its demurrer to the petition should have been sustained because the amended petition does not show on its face as a matter of pleading that it was not barred by the statute of limitations.
The bank argues that the plaintiff alleged a conspiracy for the first time in the amended petition filed January 14, 1949, and that plaintiff alleged in his amended petition that he did not discover the fraud until subsequent to June 12,1946, or two years, seven months and twenty-five days after the discovery of the fraud. It argues then that the statute began to run not from the date of the conspiracy but from the date of the damaging acts or their discovery.
This argument depends for its validity on the statement that there was no charge of conspiracy in the original petition. We have demonstrated that this statement is not correct. There were allegations in the original petition from which a charge of conspiracy or concerted action on the part of all the defendants could be reasonably inferred. Moreover it is conceded by all parties that the statute began to run from the time when the fact a fraud has been perpetrated was discovered and not from the discovery of the particular ways and means used. The amended petition alleges there was no discovery of any of the facts relied on as constituting the fraud nor of any fact which, if investigated, would have led to knowledge of the fraud until subsequent to June 12, 1946, and that plaintiffs were unable to discover the fraud because the facts constituting it were peculiarly within the knowledge and concealed by them. The circumstances under which the fraud was discovered need not be stated to avoid the statute. (See Ryan, et al., v. L. A. & N. W. Rly. Co., et al., 21 Kan. 365.) There we said:
“The circumstances under which the fraud was discovered do not constitute any part of the cause of action, and need not be stated, even where a discoveiy must be alleged to avoid the apparent bar of the statute of limitations.”
(See, also, Condensing Co. v. Dawkins, 86 Kan. 312, 120 Pac. 356, Pickens v. Campbell, 98 Kan. 518, 159 Pac. 21.)
The bank relies in a large measure on what we said in Schulte v. Westborough, Inc., 163 Kan. 111, 180 P. 2d 278. In that case we held that in order to state a cause of action on the ground of fraud which will toll the running of the two-year statute of limitations, it is necessary that the petition clearly disclose the fraud was not and in the exercise of reasonable diligence could not have been discovered earlier than within the two-year period preceding the commencement of the action. This opinion is not in point here for the reason that the amended petition here alleges “this plaintiff was unable, by ordinary diligence, to discover said fraud by reason of the fact that the facts constituting such fraud were peculiarly within the knowledge of the defendants and were concealed by them from this plaintiff.”
The element of concealment of the fraud was not in the petition discussed in the Schulte opinion.
We hold that the action against the bank was not barred by the statute of limitations. The bank’s demurrer to the plaintiff’s petition was correctly overruled.
We gq now to a consideration of the appeal of Irving and Justin Hill. Irving Hill argues first that the petition discloses on its face it was barred by the statute of limitations. He argues that thie original petition merely alleged that Justin Hill set out to buy the stock with Irving Hill’s knowledge and that the charge of conspiracy was not alleged until the filing of the amended petition on January 14, 1949, which was more than two years after June 12, 1946, when it is alleged the fraud was discovered.
This argument is not good for the reason we have already stated in this opinion that there was ample allegation in the original petition from which a reasonable inference of concerted action on the part of all defendants could be shown. The amended petition did not state a new cause of action against Irving Hill.
The Hills next argue that their demurrer should have been sustained because it did not contain a clear and concise statement of the facts without repetition and contradiction. The first phase of this argument is that the pleadings are not clear as to who is claimed to have held the stock at the time of sale, that is, whether it was held by the M. G. Bowersock Trust, The Lawrence National Bank, as trustee, or the plaintiff. We hardly understand just how the situation could have been stated any more clearly. Facts were stated from which it clearly appears that under an agreement for the extension of Mary G. Bowersock Trust, dated September 3, 1942, certain securities, including the 18 shares of paper company stock, in which plaintiff was beneficially interested, became immediately distributable ; that the trustees of that trust did not distribute it to the beneficiaries entitled to the stock certificates and after the sales, about which plaintiff complains the stock was transferred to Justin Hill by the Mary G. Bowersock Trustees. The bank, as appears from its letter of May 19, 1946, treated the stock as if certificates had been issued in its name as trustee and were in its possession. It recognized the rights of plaintiff by the same letter. It stated acts on the part of all three defendants, which if proven, would entitle the plaintiff to damages.
The Hills next argue that the trial court erred in not requiring plaintiff to attach to the petition copies of the will of Margery B. Dalton, the trust deed of Mary G. Bowersock and of the trust extension agreement. None of these instruments are relied upon as evidence of indebtedness, so the statute does not require that they be attached. (See Superior Oil Co. v. Blunk, 161 Kan. 710, 171 P. 2d 658.)
We are not impressed with the argument of defendants that they needed copies of these instruments in order to prepare their defense, in view of the fact that Irving Hill was one of the trustees of the Mary G. Bowersock Trust, the bank of which he was president was trustee under the Margery Dalton Trust and in both capacities he knew all about the trust extension argeement.
Defendants, Irving and Justin Hill, next argue that their demurrer should have been sustained because neither one of them owned any fiduciary duty to disclose to the plaintiff any facts concerning value of the paper stock for the reason that Loring Dalton was not a stockholder of the company and the stock was not purchased from plaintiff but was actually purchased from the bank. The answer to that is that plaintiff was beneficially interested in the stock and Irving Hill was president of the trustee bank and also of the paper company and Justin Hill, a director in the bank, caused the letter to be written. All the parties thought plaintiff had sufficient interest in the stock that they deemed it necessary to write the letter.
Irving and Justin Hill next argue their demurrer to the petition should have been sustained because the statute of limitations began to run from May, 1944, the date plaintiff knew of the fact that the Hills had failed to disclose to him the true value of the stock. G. S. 1935, 60-306, third subparagraph, provides that in actions for relief on the ground of fraud the cause of action shall not be deemed to have accrued until the discovery of the fraud. The real fraud here was the purchase of plaintiff's stock at an inadequate price. The statute started running from the time plaintiff discovered that defendants by writing an ambiguous letter of half truths and some false statements caused him to sell his stock at less than its actual value. (See Gates v. Kansas Farmers’ Union Royalty Co., 153 Kan. 459, 111 P. 2d 1098.) The petition alleges that was subsequent to June 12, 1946.
Defendant, Irving Hill, next argues his demurrer to the petition should have been sustained because no cause of action is stated against him. In this argument defendant again maintains that the amended petition does not allege that any of the statements in the letter were untrue. We have heretofore demonstrated that this argument is not good. Nothing would be added to the effectiveness of this opinion by repeating what has been said.
Defendants, Irving and Justin Hill, next argue that their demurrers to the petition should have been sustained because the record discloses an allegation about nondiscovery of the fraud must be untrue. In this connection they point out that all such facts as the book value of the stock, current assets, fixed assets, profits and dividends would all be included in the annual report filed with the secretary of state. This argument is not good for the reason, the annual report does not impart constructive notice to the plaintiff as to the condition of the corporation.
They next point out the offer of an audit in the letter of May 19, 1944. They argue that due diligence required plaintiff to take notice of the public record on one hand and the audit on the other. This argument is not good as far as the Hills are concerned for the same reason it was not good when advanced in behalf of the bank, as has already been demonstrated.
The same may be said of their argument that the petition did not state a good cause of action because it did not state the circumstances of the discovery of the fraud.
The judgment of the trial court is affirmed.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by the petitioner in a habeas corpus proceeding.
On April 27,1948, appellant was convicted in the district court of Shawnee county on a charge of burglary in the second degree under G. S. 1935, 21-520 and larceny committed in connection therewith, pursuant to G. S. 1935, 21-524. On Máy 25,1948, he was sentenced to confinement in the state penitentiary for a period not less than five nor more than ten years on the offense of burglary and for a period of not exceeding five additional years for the offense of larceny, as provided by G. S. 1935, 21-523 and under G. S. 1935, 62-1521 of our indeterminate sentence law. He is confined pursuant to commitment.
In the verified petition for a writ filed in the district court of Leavenworth county appellant listed various grounds upon which he sought his release. That application was supplemented by what purports to have been appellant’s arguments in the district court. The verified answer of respondent, the warden, contained duly certified copies of the information, journal entry of conviction and sentence in the district court of Shawnee county. The answer alleged petitioner was legally confined and his sentence had not expired. The answer denied generally all allegations of the petition not admitted or explained. None was admitted and none was explained in petitioner’s favor.
The journal entry of judgment in the criminal case discloses: Appellant was represented by counsel in the trial of his case in Shawnee county; his counsel argued various motions prior to arraignment; appellant introduced his evidence; the motion for a new trial was argued and denied; appellant being asked by the trial judge if he had any legal reason why sentence should not be pronounced upon him answered he had none.
Appellant has perfected no appeal from the judgment in the criminal case.
The substance of appellant’s contentions in support of his application for the writ in the district court of Leavenworth county may be summarized as follows:
The judgment of the district court of Shawnee county is null and void for the reason he was arrested without a warrant and was confined for a period of seventy-two hours prior to arraignment upon a formal charge; during such time he was denied the right to summon counsel and was not permitted to communicate with anyone; he was denied the right to subpoena witnesses; his oral confession, which was not reduced to writing, witnessed or certified, was received in evidence; the arresting officers, without a search warrant, searched his room at the time of his arrest and seized clothing and aluminum ware; the latter was used in evidence against him; prosecution under an information granted arbitrary power to the county attorney and was invalid; the state infringed upon his legal rights under the bill of rights of our state constitution and the fourth, sixth and fourteenth amendments of the federal constitution.
The journal entry of judgment of the district court of Leavenworth county denying petitioner a writ discloses appellant offered his evidence in full and rested. The record appellant has presented in this court contains no abstract of the evidence adduced or offered in support of the petition for a writ. The result is there is no compliance with the rules of this court pertaining to a record on appellate review. A total failure to present the required record here leaves nothing on which prejudicial error, if any existed, can be predicated. Except for the fact appellant, a layman, represented himself in the habeas corpus proceeding below and does likewise here we would be entirely justified in dismissing the appeal. It is noted, however, that for a layman appellant indicates rather unusual familiarity with criminal matters and some understanding of criminal procedure.
Rather than dismiss the appeal we have concluded to state a few fundamental principles of law appellant seems to have overlooked. On the basis of his own argument they render a reversal impossible.
The burden is on the petitioner to prove the grounds on which he relies for his release. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.) The district court found petitioner failed to meet that burden. The unsupported statements of a petitioner do not meet the requirements of proof. Records of courts are not set aside upon the unsupported statements of a defeated litigant. (Cochran v. Amrine, 153 Kan. 777, 113 P. 2d 1048; Jamison v. Hudspeth, 168 Kan. 565, 567, 213 P. 2d 972.) The complaints on which he contends he introduced evidence in addition to his own are not grounds for the issuance of a writ.
A proceeding in habeas corpus is not a substitute for redress of trial errors which, if they exist, may be corrected on appeal. (Townsend v. Hudspeth, 167 Kan. 366, 205 P. 2d 483.) A statement by petitioner that his counsel in the criminal case in which he was convicted failed to subpoena certain witnesses in petitioner’s behalf does not in itself constitute proof of professional incompetency or justify the granting of a writ of habeas corpus. (Miller v. Hudspeth, supra.) The contention his conviction is void by reason of the fact the prosecution was based on an information filed by the county attorney rather than on an indictment returned by a grand jury is without merit. (Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894.) We also pause to state appellant’s contention that household articles stolen by him for the purpose of converting them to his own use, and found in his room by the officers when making his arrest, were not competent evidence because seized without a search warrant, is not good. (State v. Johnson, 116 Kan. 58, 226 Pac. 245; State v. Fiske, 117 Kan. 69, 70, 230 Pac. 88.) In this connection see, also, United States v. Rabinowitz, 339 U. S. 56, 94 L. ed. 407, 70 S. Ct. 430, decided February 20, 1950, distinguishing certain former decisions.
Appellant’s record presented to this court fails to disclose any error committed in the denial of the writ.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was a petition against an estate for money. On motion of claimant it was certified to the district court. The court overruled motions to make definite and certain, to strike, to order claimant to elect and a demurrer to the petition. The executrix of the estate has appealed.
After the formal allegations, the petition alleged that The Equity Gas Company was incorporated on October 26, 1934; that about 1936 or 1937 decedent and the immediate members.of his family acquired all of its stock and soon, thereafter Shields became president and treasurer of it and during the continued existence of the corporation managed all of its business; that when Shields became president the company was in the business of drilling for and producing oil and during the same time Shields was engaged in the same business and the assets of the two became intermingled; that during all these times Equity was indebted to the petitioner and Shields made substantial payments to apply on this indebtedness and at the same time in 1944 all the assets of the Equity Gas Company were transferred to Shields, and in consideration he assumed its indebtedness and promised to pay it. The petition then set out twelve payments it alleged had been made by Shields from 1944 to 1947, alleged that these payments reduced the indebtedness of Equity to $17,500 and by reason of the matter pleaded Shields was indebted to petitioner at the time of his death in that amount.
As a second count, the petition made the allegations of the first count a part and then alleged that on August 15, 1940, while Equity owned property it gave petitioner a note for $40,000; that by December 1, 1946, the indebtedness evidenced by it had been reduced to $18,500 and on December 1, 1946, Shields caused to be executed and delivered to petitioner a note, a copy of which was attached; that at that time Equity existed in name only, owned no property and was not transacting any business; that the obligation evidenced thereby was not that of Equity; that Shields had no authority to obligate Equity to pay the debt evidenced by the note and the officers of Equity never had recognized the note as its obligation.
The petition then alleged that petitioner had no knowledge that Equity had been out of business for about two years and that Shields had no authority to sign the note and accepted it in good faith and cancelled the note for $40,000; that Shields had paid petitioner during 1947 approximately $1,000 on the note and there was owing Equity Gas Company $17,500, with interest.
Judgment was asked against the estate in that amount.
On motion of the petitioner, the petition was transferred to the district court. The executrix filed a detailed motion to compel the petitioner to make the petition definite and certain and to strike. These were overruled. She then filed a motion to require the petitioner to elect and set out some eight different theories and causes of action she claimed were intermingled in the petition.
This motion was also overruled. Thereupon the executrix demurred to the petition on the ground that the court had no jurisdiction of the person of the executrix or the subject matter; that peitioner had no legal capacity to sue; that several causes of action were improperly joined and the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled — hence this appeal.
The specifications of error are that' the court erred in overruling motions to make definite and certain, to: strike, to require petitioner to elect and in overruling the demurrer.
At the outset of her brief executrix concedes as a general rule rulings on a motion to make definite and certain are not appealable. She argues, however, that there are exceptions where the allegations are so indefinite and uncertain that the true nature of the claim is not apparent. To sustain this, she cites Mead v. City of Coffeyville, 152 Kan. 799, 107 P. 2d 711. In that case motions to make definite and certain had been filed against a petition and denied. The defendant’s demurrer was overruled and on appeal we held that the successful resisting of a proper motion to make definite and certain made it necessary for us to subject the petition to critical analysis.
It is generally conceded that the foregoing is the correct rule. However, it is generally conceded that a petition must be based on some definite, legal theory. Our question is, whether this petition is not so based.
The authorities cited and relied on by the executrix are all cases where the petition contained inconsistent allegations, that is, allegations where the proof of one would disprove the other. For instance, in Mead v. City of Coffeyville, supra, the claim filed by the plaintiff alleged she was injured on account of a defect in the parking in the south side of Twelfth Street while in her petition she alleged the defect was on the north side of Twelfth Street in a thoroughfare used by the traveling public. These were two clearly inconsistent theories. The plaintiff successfully resisted motions to make them definite and certain and we held on that account the petition should be strictly construed against the plaintiff. The plaintiff could not prove the defect was in one place where she alleged it to be without disproving that it was in the other.
The same comment could be made about the other opinions cited and relied on by defendant here.
The rule in point here is that stated in Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P. 2d 150. There we held:
“The doctrine of election of remedies, or assertion of rights, goes not to the form but to the essence of the remedy. It is the inconsistency of demands which makes the election of one remedial right an estoppel against the as sertion of the other, and not the fact that the forms of action are different.” (Syl. H 3.)
“To make actions inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other.” (Syl. J 5.)
There is nothing inconsistent in this petition. Both causes of action are based on contract and the proof of one contract would not disprove the other. In Darnell v. Haines, 119 Kan. 633, 240 Pac. 582, we said:
“This court is fully committed to the doctrine that a suit on an implied contract to pay the reasonable value of services rendered, does not deny existence of an express contract to pay a definite sum for the same services; that action on one theory is not incompatible with recovery on the other, notwithstanding the difference in proof and measure of recovery; that both theories may be tendered as grounds for recovery in the same action; and that, although there can be but one recovery, plaintiff may not be required to elect, but may go to the jui-y on both.”
See, also, State Bank v. Braly, 139 Kan. 788, 33 P. 2d 141. Here there is only one recovery asked. The first count alleged that for a valuable consideration Shields promised Equity he would pay its indebtedness to petitioner, a contract between two parties for the benefit of a third. There is nothing misleading or confusing in this. Such a contract may be enforced by the third party. (See Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12.)
The second cause of action alleged that Shields executed and delivered a note for $18,500 in the name of Equity and that he had no authority to do so. This stated a good cause of action. (See Black, Sivalls & Bryson, Inc., v. Connell, 149 Kan. 118, 86 P. 2d 545.) Proof of the allegations would not disprove any of the allegations of the first one. The allegations in the petition to which defendant attaches a great deal of weight were pertinent to the execution and delivery of the note. At any rate, there was no such confusion of theories in this petition as to make it subject to a demurrer.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
For what appeared to be good and sufficient cause a rehearing was granted in this case with a request to counsel for the respective parties that they rebrief and orally argue questions raised with respect to the statute of frauds and trusts in lands arising by implication of law. The pertinent facts and issues involved are fully stated in the initial opinion (Oetken v. Shell, 168 Kan. 244, 212 P. 2d 329) and for that reason need not be repeated in this opinion.
The case was rebriefed and has been reargued by counsel as requested.
Upon examination of the additional briefs and careful consideration of all questions orally presented and argued the court has concluded its original opinion should be adhered to.
It is so ordered. | [
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The opinion of the court was delivered by
Harvey, C. J.:
The appeal in this case is to test the validity of an ordinance of the city of Independence, a city of the second class. Acting under a statute (G. S. 1935, 12-1650) the city enacted an ordinance, amended in a particular not here important, levying license taxes on occupations, trades, professions and businesses in the city of Independence and providing penalties therefor. It provided:
“No person, firm or corporation, either as principal, agent or employee, shall conduct, pursue, carry on or operate in the city of Independence, Kansas, any trade, calling, occupation, employment, profession or business, without having first filed with the city clerk of said city.an application for a license as provided herein, and without paying to the city clerk of said city a license tax hereinafter described and receiving a license therefor.”
It listed a large number of occupations, trades, professions and businesses in the city (all, or practically all of them)' and fixed a license tax for each. Among those so listed were peddlers, canvassers and -solicitors, per day $2.50, per week $11, per six month's, $25.50; no license to be issued for a period less than two days. The ordinance contained a provision for the issuing of the license aften an investigation of the moral character of the applicant and provided that the board of commissioners may forfeit the license under certain conditions. In November, 1948, appellant and one Frank Cook were Charged separately with soliciting within the city without having applied for or obtaining a license. The city attorney filed a complaint in the police court against each of them and warrants were issued and they were brought before the court, where, after a hearing, they were found guilty and sentenced to pay fines. They appealed to the district court, where their cases came on for hearing at the same time. It was stipulated between the city attorney and the attorney for the defendants that there existed in the city certain ordinances, being the ones providing for the license taxes, and that the Same were in full force-and effect; that about November 18; 1947, Frank Cook, being an employee of the Royal Art Studios of Dallas, Tex., was doing business as a solicitor within the city of Independence without complying with or attempting to comply with the provisions of the ordinances relating thereo, and.that A1 Wendorff did then and there aid and assist Frank Cook in carrying on the occupation as a solicitor •without a license under the ordinance.
“That on or about the 21st day of November, 1947, both of said defendants were taken before the Police Court of said city of Independence, and by and through their attorney, Max Regier, stated to the court that the facts, as set forth in both of the complaints filed against said defendants, were true and correct, but that it was the contention of the defendants that the ordinances above stated were and are invalid and unconstitutional, and that by reason thereof the said city of Independence, Kansas was without power to enforce such ordinances.”
It was further stipulated that the police court had assessed a fine against the defendants and they had appealed.
After hearing arguments the district court found A1 Wendorff guilty of violating the ordinance and assessed a fine against him of one dollar and costs. From this judgment and sentence he has appealed.
Counsel for appellant argues that ordinances of this kind cannot be discriminatory, citing In re Irish, 122 Kan. 33, 250 Pac. 1056, where it was held an ordinance requiring a license tax for a nonresident to sell bread in Holton, and exacted no license tax from residents of the city who sold bread in the city, was discriminatory and invalid. Two or three other cases of the same kind are cited. None of them has any application here for the simple reason that the ordinance makes no such discrimination, as the court found in the cases relied upon.
Counsel further argues that the imposition of the tax of $2.50 per day, and no license to be issued for less than two days on peddlers, canvassers and solicitors, is confiscatory and that the ordinance is void for that reason. There is no evidence in the record tending to support appellant’s view on this point, and we cannot say as a matter of law that the tax is so high as to be confiscatory. There is further discussion under the heads of “Unreasonable Regulation” and of “General Invalidity.” There is nothing in the record to show that any of these points was ever presented to or ruled upon by the trial court. The abstract contains no specification of errors, and for that reason the appeal must be dismissed. See Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975, where the question is discussed at length and our earlier Kansas cases are cited.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
On October 16, 1947, C. D. Wagoner brought this action in the district court of Reno county to recover a judgment against the city of Hutchinson in the sum of $23,750 with interest since October 20, 1944, basing his right to recovery upon a certain contract. The city demurred to the petition upon the ground that it states no cause of action against the city. This demurrer was heard by the court and overruled. The city has appealed.
Other phases of the contract relied upon by plaintiff have been before this court on two occasions, in Hutchinson Municipal Airport Cases, 161 Kan. 502, 169 P. 2d 615, and in City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P. 2d 243.
Since the contract is the sole basis of plaintiff’s claimed right to the judgment sought we go directly to the contract and its construction. Its pertinent provisions may be summarized or quoted as follows:
Examining the contract we find: Facts are stated in four “Whereas” paragraphs: That the city has an airport at a stated location, which has been enlarged by certain described land; that the city has leased the airport to the United States navy and its improvement and use require the vacation of certain township roads, which aré described; that certain owners of property “in said area will be affected by said vacation”; and that certain condemnation proceedings commenced have not been completed “and it is the desire of all of the parties hereto to arrange for the completion of said condemnation proceedings and the vacation of said highways and the opening of new highways.”
Then the date of the contract is stated as June 5, 1944, and the parties are named: First party, Reno county; second party, city of Hutchinson, and third parties, C. D. Wagoner and four other individuals.
The agreements follow in six paragraphs:
“1. For the purpose of facilitating the determination of the amount of damages, if any, sustained by parties of the third part in the enlargement and improvement of The Hutchinson Municipal Airport and the condemnation of additional land therefore requiring the vacation of certain highways, it is agreed that C. H. Bailey, Eskel Swanson and Bert Wilson shall constitute a board of commissioners to hear the evidence offered by the parties hereto as to the damage occasioned or caused to third parties, their properties and business by such condemnation proceedings and vacation of highways. The same commissioners shall meet at an early date in the court room of the court house in the city of Hutchinson at a time to be designated by them for the purpose of hearing evidence on the question of damages claimed by parties of the third part, and after hearing such evidence, said commissioners shall make a report of their findings as to the amount of damages, if any, sustained by each of the parties of the third part. Such findings shall be made in writing and filed with the appraisers appointed by the court in the condemnation proceedings in case No. 1532, and such report shall be accepted by said appraisers as conclusive evidence of the' damage, if any, sustained by parties of the third part.
“2. This agreement shall not operate to deprive second party or any of third parties of the right to appeal to the district court of Reno county from the award of damages made by said appraisers as provided in this agreement.”
Paragraphs 3, 4 and 5 pertain to opening of new highways. We presume they have been complied with, but in any event they are not involved in this action.
“6. The terms and provisions of this agreement shall be carried out expeditiously without delay and all parties hereto agree to cooperate to the fullest possible extent in order that the terms and provisions of this agreement shall be carried out and completed at the earliest possible date.”
The contract was duly executed by the parties.
Following the execution of the above contract the commissioners named therein met at the time and place designated by them, heard the evidence, viewed the premises, and made a report to the commissioners appointed by the judge of the district court in the city’s condemnation proceeding, case No. 1532, in which they described the property of the plaintiff herein, C. D. Wagoner, and found that the damages to his property which would be sustained by him to be $23,750. They also found the amount of damages which would be sustained by the other third parties named in the contract (and one other), but with this part of the report we are not concerned.
It will be noted the contract authorizes the commissioners named therein to find the amount of damages each of the third parties would sustain, and that is what the commissioners did. The contract did not authorize the commissioners named therein to find or determine who should pay such damages, and the commissioners did not make any finding concerning that matter. Counsel for appellee argue that who was to pay the damages may be inferred from the contract, and cite some cases where that has been done. It may be conceded circumstances may be such as to warrant such an inference, but we think that that is not the case here. The parties were fa miliar with our statute and knew that the city had no authority to vacate township roads. That authority is vested in the board of county commissioners (G. S. 1935, 68-102 to 68-107). If township roads should be vacated by the board of county commissioners there is nothing in our statute which would require or authorize the city to pay any damages resulting from the vacation of such highways.
With respect to the payment of damages the contract outlined the plan for determining that matter. In one of the “Whereas” paragraphs it is stated that condemnation proceedings had been brought but not fully determined. The only condemnation proceedings that had been brought, so far as we are advised, had been brought by the city. In paragraph 1 of the agreement portion, of the contract it was specifically agreed what the commissioners named therein should do with the finding on the question of damages. The findings were to be made in writing and filed with the appraisers appointed by the court in the condemnation proceeding, case No. 1532. We are told in the brief that proceeding was one brought by the-city to condemn land for the enlarged airport. The land sought,to be condemned did not include any land owned by C. D. Wagoner.'v However, the contract provided that the report ■ of the commissioners named therein should be filed with the appraisers in the condemnation proceedings, and that is what the commissioners did. The contract further provided that 'the appraisers named in the condemnation proceedings, case No. 1532, should accept the report of the commissioners named in the contract as conclusive evidence of the damages sustained by the third parties- named therein, and paragraph 2 of the agreement part of the contract -provided that, the agreement should not operate to deprive the city or any of the third parties of the right to appeal to the district court from the award of damages made by the commissioners named in the contract: So, the plan and intent of the parties to the contract was that the commissioners named in the contract should find the amount of damages sustained by the third parties named therein; that such damages should be reported to the appraisers named in the city’s condemnation proceeding, case No. 1532; that such appraisers should accept the amount of damages found by the commissioners named in the contract, and that either the city or any of the third parties might appeal to the district court. The statute (G. S. 1947 Supp., 26-205) authorizes appeals to the district court from the award of damages by appraisers in. condemnation proceedings, and upon, s,uch„ appeal, whether the claimant recovers anything, or the amount of such recovery, may be tried as a case in the district court. That such was the intention of the parties is further evidenced by the fact that was the procedure followed, as shown by our opinions (161 Kan. 502, 169 P. 2d 615 and 163 Kan. 735, 186 P. 2d 243), hereinbefore noted.
Counsel for appellee argue that the contract hereinbefore analyzed was an arbitration agreement, and much of their brief is devoted to that thought. If so, it was common-law arbitration as distinct from a statutory one. We regard it as immaterial whether the contract is designated an arbitration agreement or not. Assuming it is a common-law arbitration agreement, its terms are subject to construction under the same rules normally applied to the construction of contracts. '
In 6 C. J. S. 166 the rule is thus stated:
“An arbitration agreement or submission is in general subject to the same rules of interpretation and construction as other contracts.” Citing authorities.
To the same effect is 3 Am. Jur. 868, citing authorities, including Swisher v. Dunn, 89 Kan. 412, 787, 131 Pac. 571, 132 Pac. 832, 45 L. R. A. (N. S.) 810.
We wish to make it clear that plaintiff is not seeking to recover upon the authority given to and liabilities imposed upon cities by our statute (G. S. 1947 Supp. 3-113) relating to airports, but that he bases his right to recover solely upon the contract hereinbefore discussed.
The result is that all we have before us upon which plaintiff bases his right to recover is this contract. As we have seen, the contract does not impose any liability upon the city to pay the amount of damages found by the commissioners named therein to have been sustained by C. D. Wagoner, the plaintiff herein. The possible extent of recovery under this particular contract was determined by the trial court and approved by this court in the first case which reached this court involving the contract (161 Kan. 502, 169 P. 2d 615). We recognize that in the case before us that case is not pleaded as res judicata. We cite it only as being in accord with the conclusions we have reached.
We also take note of the fact that in our former decision, herein-before noted (163 Kan. 735, 186 P. 2d 243) it was held that the provisions contemplating the filing of the commissioners’ report with the appraisers in the condemnation proceeding, with the right of the city or any of the third parties to- appeal to the district court, was held to be invalid and did not give the district court jurisdiction to hear the appeal. In Morgan v. Smith, 33 Kan. 438, 6 Pac. 569, an attempted statutory arbitration, the arbitration bonds made the report of the arbitrators “a rule of the circuit court” of a named county. It was held that the district court of the county had no jurisdiction to enter a judgment upon the award. The arbitration agreement failed. The same result should follow here.
In considering the contract between the parties as an arbitration agreement it is incomplete in its determination of the liability of anyone for the damages found. A somewhat analogous situation arose in Dolman and Clark v. Kingman County, 116 Kan. 201, 204 to 206, 226 Pac. 240, where the contract was held not to be valid.
Since the plaintiff in this action relies solely upon the contract for his right to recover, and since the contract gives him no such right, defendant’s demurrer to plaintiff’s petition should have been sustained. The judgment of the trial court should be reversed with directions to sustain the demurrer to the petition.
It is so ordered.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This was a proceedings started in probate court to determine the heirship to a town lot. Judgment in the probate court and on appeal in the district court was in favor of the holder of the record title. The parties who started the proceedings have appealed.
There is not much dispute about the ultimate facts. There is confusion, however, about the names of various parties, so in the interest of clarity they will be designated by letters. ■ Prior to February 28,1907, A and B, husband and wife, were tenants in common of the house and lot in question. On that date A, the husband, died, leaving his widow, B, and two daughters, C and- D. At the death of A, B inherited an undivided two-eighths of the title from A, which with the four-eighths she already owned, made her the owner of six-eighths. The two daughters each'inherited an undivided one-eighth. On December 14, 1910, B conveyed her interest to C and D, her daughters, reserving to herself a life estate. This deed was recorded immediately. By this deed daughters, C and D, received a remainder interest in an undivided six-eighths of the lot and they each already owned an undivided one-eighth. On December 15, 1916, daughter O died intestate. Her estate was administered and by order of the probate court this interest in the lot was conveyed to her sister D. By this conveyance D became the owner of the entire six-eighths of the remainder interest, subject to B’s life estate and the owner in fee simple of an undivided two-eighths.
On May 10, 1936, B died intestate. If there was nothing wrong with the two conveyances already spoken of at B’s death, thereby ending her life estate, D thereafter was seized with fee simple title to the entire lot.
On September 5,1940, D died intestate, leaving as her sole heir E, her husband. On February 5, 1942, E died intestate, leaving as his only heir his brother F.
G and H are the sons of C. They instituted these proceedings against F, claiming they inherited each a one-fourth interest in the house and lot by the statute of descents and distribution from their grandmother B. In order to make this claim good they must get rid of the deed from B to C and D, and also the administrator’s deed in their mother’s estate, whereby her interest was conveyed to D.
The trial court found the facts about as they have been stated here and made conclusions of law that F was the owner of the fee simple title. G and H attacked these findings and conclusions by motions to set aside and vacate and offered suggested findings and conclusions and asked for a new trial. These motions were all overruled and judgment was entered in accordance with the findings and conclusions in favor of F — hence this appeal.
Appellants first point out the trial court at the conclusion of the evidence and arguments announced it found generally for the respondent and against the petitioners and made the findings of fact and conclusions of law at a subsequent time. They argüe this was error, which entitled them to a new trial. The petitioners were entitled to findings in writing since they requested them. (See G. S. 1935, 60-2921.) The statute does not provide, however, that these findings must be made before the court’s judgment is announced. Furthermore, it does not appear that the petitioners were prejudiced by the fact the findings were made after the judgment was announced. As a matter of fact but for the legal conclusions to be drawn there was no dispute about the facts.
Appellants next point out the clause in the deed of December 14,1910, as follows:
“Lot Ten (10) in Block Fourteen (14) in the City of Parsons, as shown by the recorded plat thereof, reserving to grantor, Harriet Hamlet a life estate in said real estate, and right to occupy same during all of her natural life whether married or sinlge, title not to vest in grantees in fee simple until the death of the grantor.”
They'.argue that the above provision in the deed made' it testamentary in character and since it was executed.as a deed and not according to the statute relating to wills, it was without effect to pass title. They cite and in the main rely on what we held in Lowry v. Lowry, 160 Kan. 11, 159 P. 2d 411. That opinion is not in point here. The deed in that case provided it was not to be delivered until the death of the grantor. There- was a question whether-it had been delivered-in "the lifetime of the grantor. Such is not the case here. The deed was. delivered at once and recorded immediately. It did not purport to convey any more than a remainder interest.
When the grantor reserved a life estate to herself she thereby provided that title in fee simple would not pass until her death. The grantees did not claim anything more than a remainder interest until the death of the grantor. This deed was nothing more than a deed reserving a life estate to the grantor, a type of instrument with which we are all familiar.
Appellants next argue that when B gave the deed to C and D, her daughters, she thereby claimed fee title to the lot and ousted C and D from any title whatever. It is a little difficult to follow petitioners in this argument. Suffice it to say that since we have held the deed to be good, it conveyed to C and D a remainder interest in whatever title B had. She could not very well oust them from a title by the same instrument in which she was conveying to them all her title.
Appellants next argue that the administrator’s deed in the estate of C, whereby C’s interest was conveyed to D, passed no title because such proceedings were void ab initio because C had no estate ■ to administer. It is difficult to follow this argument. C inherited a one-eighth interest in the property from A, her father, and took a one-half interest in the six-eighths remainder interest by the deed from B, her mother. The files in the probate proceedings involving her estate were introduced and considered by the court apparently without objection. No objection to the administration of her estate appears to have been raised. It does appear the probate court found it was necessary to sell the interest in real property to pay debts and that there was an order of sale, a sale and the sale confirmed.
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The opinion of the court was delivered by
Price, J.:
Defendant was charged and tried on seven counts of alleged liquor and gambling violations. She was found guilty on counts two and three and acquitted on the remainder. Her motions in arrest of judgment and for a new trial being overruled, she has appealed.
Count two charged:
“. . . that on the 16th day of July, 1949, in said County of Johnson, and State of Kansas, one Eva Wilson did then and there unlawfully have in her possession in excess of two quarts of alcoholic liquor upon which the tax imposed by the Kansas Liquor Control Act has not been paid, and the contents [containers] of which did not have Kansas tax stamps affixed thereto, . . .”
Count three charged:
. . that on the 16th day of July, 1949, in said County of Johnson, and State of Kansas, one Eva Wilson did then and there unlawfully have alcoholic liquor in her possession on the following described premises, to-wit:
“The Southeast Corner of the South one-half (%) of the Northeast Quarter (NE %) of Section Twenty-eight (28), Township twelve (12), Range Twenty-three (23), in said County and State, and lying between Highways No. 10 and No. 7.
said premises being licensed in the name of said defendant, Eva Wilson, for the retail sale of cereal malt beverages, . .
The defendant was the owner and operator of what is known as “Eva’s Tavern” northwest of Olathe at the junction of State Highways 10 and 7. The property consisted of a filling station, cabins and a main building in which were located a bar for dispensing cereal malt beverages and soft drinks, a dance floor and tables or booths where customers were served. The kitchen was in the rear of the main building and the defendant maintained her sleeping quarters immediately above, all in the same building. Access to the sleeping quarters was had by a stairway leading up from the kitchen. The state’s evidence tended to establish that from time to time the defendant had kept intoxicating liquors in the upstairs part of the main building or in the stairway behind a locked door leading upstairs, and that she had been selling intoxicating liquor by the drink and had permitted customers to consume intoxicating liquor in the tavern. On July 16, 1949, her place was raided by county law enforcement officers under a search warrant. At first the defendant refused to unlock the door leading upstairs, but finally did so. In her sleeping quarters the officers found two cases containing liquor, one containing twenty-three pints of whiskey and the other seven bottles of gin. For present purposes we confine ourselves to the evidence pertaining to count two.
It will be noted that this count charged the defendant with possession of in excess of two quarts of alcoholic liquor upon which the Kansas tax had not been paid and the containers of which did not have Kansas tax stamps affixed thereto, in violation of section 50, chapter 242, Laws of 1949. It is conceded that the governor’s proclamation provided for under section 112 of the act had been in full force and effect for more than thirty days prior to July 16, 1949, and that on that date it was unlawful for any person to have in his possession in excess of two quarts of alcoholic liquor upon which the Kansas tax had not been paid and the containers of which did not have Kansas tax stamps affixed thereto. During the course of the trial, upon motion of defendant, the state was required to elect as to which of the two charges contained in count two it relied on for conviction, and pursuant thereto, in open court, amended count two so as to charge the defendant merely with the unlawful possession of more than two quarts of alcoholic liquor, the containers of which did not have the Kansas tax stamps affixed thereto as required by law. In other words, the question whether the Kansas tax had been paid was removed from count two by the amendment and all that remained was the question concerning whether the bottles had the Kansas tax stamps affixed.
There is no contention but that the twenty-three pint bottles in the case introduced as Exhibit “E” and the seven bottles in the case introduced as Exhibit “D” contained alcoholic liquor. The question is — did defendant have possession of more than two quarts upon the containers of which there were no Kansas tax stamps affixed. The record before us shows that only one pint bottle of whisky from Exhibit “E” and one bottle of gin (size not shown) from Exhibit “D,” on neither of which was there attached a Kansas tax stamp, were specifically introduced in evidence before the jury. On oral argument before this court counsel for the state admitted that only one bottle from each case was specifically introduced and exhibited to the jury, although he stated and the record shows that both cases of liquor were by the court admitted in evidence. The record does not show whether these two exhibits were sent to .the jury room.
The defendant argues that there is an utter failure of proof to convict her under this count. We agree with her contention. It very well may be that each of the other bottles of liquor contained in the two cases did not have Kansas tax stamps affixed thereto, but the evidence in the record before us is silent on the question. Nowhere is it shown that there were in excess of two quarts the containers of which did not have the stamps affixed, and we are not permitted to speculate or surmise as to the other bottles. The gravaman of the offense charged is not possession, but possession of in excess of two quarts of alcoholic liquor without Kansas tax stamps affixed to the containers, and in our opinion the state failed in its proof in this respect.
It therefore follows that as to count two the judgment of the lower court is reversed and the defendant is discharged.
We pass now to count three of the information which in substance charged the defendant with possession of alcoholic liquor on premises which were licensed in her name for the retail sale of cereal malt beverages.
Section 1, chapter 245, Laws of 1949, which became effective April 8, 1949, provides, among other things, that it shall be unlawful for one holding a license for the retail of cereal malt beverages to possess alcoholic liquor upon or in the premises so licensed. In addition to the evidence heretofore mentioned, the raiding officers testified in substance that during the course of the raid the defendant claimed the liquor in question and stated that she was legally entitled to have as much whisky as she wanted on the premises for her own use. Later, when testifying herself, she attempted to establish that the liquor belonged to another party.
At the close of all the evidence the jury was duly instructed in writing and the case was argued by counsel for both parties. During its deliberations the jury sent a written question to the court as follows:
"Decision as to what property is licensed for sale of cereal malt beverage. VL. — Does the license include the Resident part of building?”
In response to this question the court then instructed the jury in writing as follows:
“You are instructed that the Defendant was licensed to sell aerial malt beverages on the following described premises, in Johnson County, Kansas, to-wit: The Southeast Corner of the South one half of the Northeast Quarter of Section twenty eight, Township 12, Range 23, in said county and state, and lying between Highways # 10 and # 7.
“Your are further instructed that after April 8th, 1949, it was unlawful to sell, possess or to permit any persons to use or consume, upon or in said premises alcoholic liquors. And if you further find that on said premises the defendant maintained her place of residence, then the residence is included within the prohibition of the Statutes.”
With respect to her conviction on count three it is contended (1) that the court failed to give proper instruction on possession; (2) that it was error to give the above quoted belated instruction, particularly with no opportunity for further argument, and (3) that ■the instruction itself is an erroneous and inaccurate statement of law.
We have carefully examined the instructions given by the court and we think that they fairly presented to the jury the issues involved. It is true that the court did not single out the word “possession” and define it in strict legal terms such as perhaps has been the customary practice down through the years when courts have dealt with liquor violations. On the other hand, the conflicting testimony as to the possession of the liquor in question was heard by the jury and it would be unreasonable for us to assume that the jury did not understand the meaning of a word of common, everyday usage such as "possession” and as the word was repeated and used by the court in its other instructions.
Concerning defendant’s second contention, it very frequently happens that during the course of a trial a jury will request additional instruction on some particularly bothersome point, and under such circumstances we cannot say as a matter of law that it is error for the court to give such further instruction, provided, of course, the instruction so given is not coercive or otherwise objectionable. Guided by that principle, we cannot say that under the circumstances here presented the giving of the additional instruction was in itself erroneous or in any way prejudicial, notwithstanding counsel’s complaint that he did not have the opportunity for further argument to the jury. In other words, it has not been made to appear that the rights of the defendant were in any way prejudiced by the action of the trial court in giving the instruction.
■ To us the real issue concerning the giving of this instruction is whether it was a correct statement of the law as applied to the facts brought out in the evidence. Defendant contends that in the nature of things her license to retail cereal malt beverages applied only to the bar or tavern part of her establishment, and that since the alcoholic liquor in question was found in her sleeping quarters above, the spirit and letter of the statute were not violated. She argues that if her conviction on this count is permitted to stand it would also be unlawful for her to possess alcoholic liquor in the filling station and cabins adjacent to the building which housed the tavern portion of her business, and that by the same line of reasoning one who owned a ten-story building could not lawfully possess alcoholic liquor in his living quarters on the tenth floor if he at the same time was licensed to retail cereal malt beverages in a business establishment on the first floor. The difficulty with that argument is that we are not here called upon to determine such question. We are concerned with the correctness of the instruction as applied to the facts of the case before us.
It is conceded that the defendant held a license to retail cereal malt beverages at and on the premises described in count three and in the instruction under consideration. We think the facts of this case, some of which have already been summarized, indicate clearly that for all practical intents and purposes defendant’s sleeping-quarters and the tavern portion of her business were, within the intent and purview of the statute, indivisible. She owned and operated the business, and the kitchen from which the stairway led upstairs was used by her personally and for the preparation of food to be sold. It is not disputed that the some thirty bottles found in her possession contained alcoholic liquor. We think that it was clearly the intent of the legislature to prohibit the possession of alcoholic liquor by one holding a license to retail cereal malt beverages under the circumstances here disclosed. To hold otherwise would be to render ineffective the manifest purpose and intent of the legislature to divorce completely traffic in cereal malt beverages from that of alcoholic liquors.
Under the facts of this case we find no error in the instruction complained of. There was sufficient competent evidence to suppori the finding of guilt on count three of the information and as to such count the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in habeas corpus. The petitioner is confined in the penitentiary at Lansing under a life sentence as a habitual criminal and seeks his release.
He pleaded guilty to burglary and grand larceny in violation of G. S. 1935, 21-520 and 21-533. Each of these sections provides a penalty of confinement at hard labor not to exceed five years. After the plea and before sentence, the state introduced authenticated felony convictions. Thereupon pursuant to G. S. 1947 Supp., 21-107a and G. S. 1935, 21-109, he was sentenced to be confined at hard labor for the rest of his natural lifetime.
Petitioner assigns several reasons why he should be granted his freedom pursuant to a writ of habeas corpus. They will be considered ad seriatum.
First, he states he was denied due process of law because he was denied counsel of his own choosing. The journal entry recites and in his statement he says that the trial court when petitioner was arraigned, inquired of him whether he had counsel and petitioner answered in the negative and that he had no means of employing counsel and that the trial court thereupon appointed counsel a member of the bar who was present who proceeded to represent him. We have nothing more than the bare statement of petitioner that he was denied counsel of his own choosing. There is no statement that he objected to being represented by counsel appointed. There is no statement that the appointed counsel did not serve in good faith. Unless there was such inability or neglect on the part of counsel in representing petitioner as to amount to no .representation we will not consider the fact alone that petitioner was represented by appointed counsel, as a violation of the fourteenth amendment, and, therefore, ground for a writ. (See Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.)
Petitioner next argues that he is entitled to a writ because he was held in jail from December 3,1948, until December 8,1948, before a warrant was read to him. A petition for a writ of habeas corpus by one being under a sentence after a plea of guilty is a collateral attack upon that judgment. In order for such an attack to be successful it must be made to appear that the judgment is void. Such a judgment carries with it a presumption of validity. (See Miller v. Hudspeth, supra.) We considered an argument analogous to this in Wears v. Hudspeth, 167 Kan. 191, 205 P. 2d 1118. There a petitioner, who was held as a parole violator, asked for a writ and argued amongst other things that he was entitled to a writ because he was held prior to his delivery to the authorities at the penitentiary at a jail other than the one designated by the trial court. We said:
“Obviously this claim is wholly devoid of merit. Its short and simple answer is that such incarceration, which we pause to note is denied by respondent and merely supported by petitioner’s uncorroborated statement, has long since ended and its legality is not now subject to consideration in a habeas corpus proceeding.”
What would have been our action if we had been asked for a writ while petitioner was being held without a warrant we need not say. Without c'onceding there was anything unlawful about the five days’ incarceration without a warrant it may safely be said that such illegality does not render void the subsequent judgment of the trial court.
Petitioner next argues that he is entitled to a writ because he was apprehended in Colorado by agents of the Kansas Bureau of Investigation and the sheriff of Greeley county, Kansas, without a warrant and taken to Kansas without extradition process. In his statement attached to the petition petitioner states that he signed a waiver of extradition proceedings. Under such circumstances he cannot be heard to complain that he was brought to the state without such process. (See Brandt v. Hudspeth, 162 Kan. 601, 178 P. 2d 224.) (See, also, Tines v. Hudspeth, 164 Kan. 471, 190 P. 2d 867.)
Petitioner next argues that he is entitled to a writ because he was sentenced pursuant to the habitual criminal act, although he was not charged under it, and did not plead guilty to a violation of it. This point is not good. (See Hill v. Hudspeth, 161 Kan. 376, 168 P. 2d 922.) There we said:
“Regardless of such fact, however, it may be noted that under the procedure in this state it is not necessary to set forth in the complaint, warrant or information that the accused is charged as a habitual criminal. This court has recognized that there is a conflict of authority upon the question in other jurisdictions but has adopted the rule that the prisoner’s rights are better protected if evidence of prior convictions is not introduced in connection with the trial of the crime with which he is charged. Under our practice when he is charged and tried for a crime, his previous record may not be used to influence the jury to convict him of the charged crime. The rule may have some exceptions but we are not concerned with such exceptions in this case. It follows, under our procedure, that an accused is not entitled to a trial on the question of whether he has been convicted of other felonies on other occasions. The question whether a man is a habitual criminal ihvolves only the severity of the penalty. If the penalty is too severe, the problem is one for the legislature.”
The writ is denied. | [
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The opinion of the court was delivered by
Parker, J.:
This is a concluding if not the final chapter of a criminal prosecution for murder.., It is here on motion by the state to reset the date for execution of the defendant who has been sentenced to death by hanging on his plea of guilty to the crime of murder in the first degree and a motion by the confessed murderer to dismiss the state’s motion on the ground.,this court is without jurisdiction to either hear or sustain it.
The story of the tragedy herein involved and resulting in the death of one man and in the sentencing of another to die upon the gallows is already spread at length upon the pages of our reports (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147, and State v. Miller, 165 Kan. 228, 194 P. 2d 498). For our purposes all that is required is to state that on the morning of February 3, 1947, the defendant, with premeditation and without lawful excuse shot and killed M. F. (Mike) Churchill, the chief of police of the city of Osawatomie and a respected peace officer of this state, while the latter in the proper performance of his duties under the law, was attempting to arrest him for a violation of one of the ordinances of such city. After fleeing the scene of the homicide defendant was finally apprehended and charged in the district court of Miami county with the crime of murder in the first degree. There, after a full explanation of his rights under the law and while represented by counsel of his own choosing, he entered a plea of guilty to murder as charged in the information and on such plea was eventually sentenced to die by hanging in the state penitentiary at Lansing between the hours of 5:00 a. m. and 6:00 a. m. of May 2, 1947. If desired the foregoing factual statement can be supplemented by reference to the opinions of the two decisions to which we have heretofore referred.
Nor is it necessary to detail the proceedings had in this cause up to the time defendant’s application for a writ of habeas corpus was denied in Miller v. Hudspeth, supra, or his appeal from the district court’s judgment affirmed in State v. Miller, supra. It suffices to say that resort to the opinions of those cases will reveal that this court not only stayed defendant’s execution during the pendency of his appeal until further orders but, because it was called to its attention he was poor and illiterate and suggested — erroneously as later developed — his sentence to pay the extreme penalty imposed by law was influenced by racial prejudice, went to extreme lengths in seeing to it that none of the rights guaranteed him as a citizen under the federal and state constitutions had been violated in the trial court.
Events transpiring subsequent to those heretofore mentioned are material to the issues now involved and hence require specific and more detailed attention.
Following affirmance of the appeal in State v. Miller, supra, this court; on July 9, 1948, pursuant to its statutory duty (see G. S. 1935, 62-2414), caused its clerk to issue a warrant to the warden of the Kansas state penitentiary, directing that official to proceed between the hours of 1:00 a. m. and 7:00 a.m. on August 18, 1948, to carry into execution the sentence of death theretofore imposed upon the defendant.
August 13,1948, just five days before the date set by this court for defendant’s execution, the Honorable Frank Carlson, governor of Kansas, by executive order, granted him a reprieve and stayed his execution until. further orders. In substance the governor’s order states the reprieve was granted in order to allow defendant adequate time in which to prepare and present an application for executive clemency in conformity with article 1, section 7, of the state constitution and G. S. 1947 Supp. 62-2216.
On or about the 1st day of November, 1948, defendant instituted a proceeding for a writ of habeas corpus in the United States District Court for the district of Kansas predicated generally on the ground that he was convicted and sentenced in the courts of the state of Kansas in violation of due process of law as guaranteed by the United States Constitution. December 13, 1948, the Honorable Arthur J. Mellott, judge of such district court, found the defendant’s claims were unfounded and denied the writ but did stay execution of the death sentence imposed upon him by the Miami county district court pending any appeal he might take from the judgment to the United States Court of Appeals for the Tenth Circuit.
January 13, 1949, the Governor of Kansas terminated and canceled the reprieve theretofore granted the defendant by written instrument, directed to the warden of the Kansas state penitentiary, wherein such official was advised of his action and authorized to proceed in due course, and with due diligence, to execute the judgment and sentence of the Miami county district court, as reviewed, and affirmed by this court, whenever the restraining or injunctive order of the United States issued against him was set aside.
Defendant’s appeal from the judgement of the United States District Court, was heard in due course by the United States Court of Appeals, Tenth Circuit, and on July 5, 1949, that tribunal affirmed the judgment of the trial court in which defendant’s application for a writ of habeas corpus was denied. The opinion of such decision, reported in Miller v. Hudspeth, 176 Fed. 2d 111, and written for the court by the Honorable Walter A. Huxman, circuit judge, reviews at length the factual situation leading up to the defendant’s conviction and sentence and in succinct and comprehensive language sets forth the court’s reasons for concluding that he had not been deprived in the courts of the state of Kansas of any right guaranteed him by the due process clause of the federal constitution.
The mandate from the United States Court of Appeals, Tenth Circuit, affirming the judgment of the United States District Court has been spread of record. Defendant took no appeal from such judgment and his time for doing so has expired. The result is the appeal referred to in the district court’s order of December 13, 1948, has been heard and finally determined and its order staying the defendant’s execution during the pendency of such appeal in the circuit court is no longer in force and effect.
It should perhaps be added that defendant at no time made any attempt to obtain a review of the judgment rendered by this court in State v. Miller, supra, in the Supreme Court of the United States and that it is now too late for him to do so.
With what has been heretofore stated we are now able to determine the merits of the motions filed by the respective parties.
Stripped of excess verbiage defendant’s position with respect to the plaintiff’s motion, as well as his own, is that since the date set by this court for his execution has passed without the sentence of death being executed it now has no authority to see to it that such sentence is carried out. Otherwise stated the sum and substance of his claim is that his success in- putting off execution of his sentence until after the date fixed by the court furnishes him with permanent immunity from execution and has the result of nullifying the judgment and sentence theretofore imposed upon him. That we have not overstated the import of his claim, is evidenced by an excerpt from his own motion wherein he states: “The legislature gave no body the power to re-fix the date of execution when the United States Court suspended it and the State should not be now permitted to guess whether the legislature wanted the United States Court to re-fix the date of execution or whether the legislature, if it had acted, would have appointed and directed the Supreme Court, the District Judge or the Governor to fix it.”
Defendant has failed to cite authorities supporting his position. It has been said that under such circumstances (see McCoy v. Fleming, 153 Kan. 780, 783, 113 P. 2d 1074) this court might well conclude that his counsel, after diligent search, have been unable to find any. Even so, we are not disposed to here invoke that rule. However, it can be said that after a painstaking examination of the decisions we have failed to find a single case that does so. Without regard to who has the duty of fixing the date the authorities uniformly hold that failure to execute a death warrant on the date fixed does not result in immunity to or discharge of a person sentenced to die but requires the fixing of a new date for his execution.
Decisions supporting the foregoing statement are so numerous that limits of time and space will not permit detailed reference to all those to which we have given attention in our research. However, a few of those particularly applicable will be mentioned and briefly discussed.
In Ex Parte Howard, 17 N. H. 545, it was held:
“The time designated by the court for executing a sentence of death is not a part of the sentence. It is simply an order prescribing the time when the sentence shall take effect.
“A postponement of the time of execution by a reprieve, does not, therefore, affect the sentence. It remains to be enforced at the end of the period of respite, or by a new order, if no other disposition has been made of the case.” (Syl.)
Close in point, from the standpoint of both facts and procedure, and therefore highly significant is McLaurin v. State, (Miss.) 41 So. 2d 41, holding that where on affirmance of conviction of murder and sentence to death by electrocution, a date was fixed for such execution but thereafter a stay was granted pending disposition of a petition for a writ of certiorari to the Supreme Court of the United States, and the petition was denied, and the date originally set for execution of the sentence had passed, the state’s motion that a new date be set for the execution would be granted. The same is true of Simmons v. State, 197 Miss. 326, 21 So. 2d 822; Gore v. Humphries, 163 Ga. 106, 135 S. E. 481; Fickling v. Dixon, 168 Ga. 274, 147 S. E. 524.
Simmons v. Fenton, 113 Neb. 768, 205 N. W. 296, holds that where a defendant in a criminal action has been legally sentenced to death and has not been executed at the time fixed in the death warrant, he is not entitled to be discharged from custody on habeas corpus, but a new date for the execution may be fixed by the proper court, even though and regardless whether reprieves granted him and resulting in his not being executed on the date set were wholly void and unauthorized by law.
See, also, State v. Green, 88 Utah 491, 55 P. 2d 1324, holding that a judgment or sentence of death is not set aside or invalidated by the issuance of a governor’s reprieve and the only effect of such reprieve was one of delay, making necessary the fixing of another date for execution of judgment.
In Fowler v. Grimes, 198 Ga. 84, 31 S. E. 2d 174, it is said that one sentence is all that is ever imposed in a capital case which is to be executed either at the time fixed therein or at such other time as the judge shall fix thereafter and that what is commonly referred to as a “resentence” is only the fixing of a new time for execution of the original sentence.
To the same effect is Ex parte Washington, 32 Okla. Cr. 388, 241 Pac. 349.
For cases holding the act of a court in fixing the date for execution of a defendant convicted of murder is ministerial and no part of the sentence proper or judgment of conviction and hence that the refixing or resetting of the time for execution, where for any reason the judgment of death has not been executed, is also ministerial, see State v. Haddox, Warden, 50 W. Va. 222, 40 S. E. 387; Ex parte Grayson (Okla.), 187 P. 2d 232; Rose v. Commonwealth, 189 Va. 771, 55 S. E. 2d 33.
See, also, Cross v. Burke, 146 U. S. 82, 36 L. Ed. 896, 13 S. Ct. 22 and In re Cross, 146 U. S. 271, 36 L. Ed. 969, 13 S. Ct. 109, where William Douglas Cross was seeking to avoid the execution of a death sentence because of circumstances somewhat similar t'o those here involved and it was held, that notwithstanding, his sentence of death remained in force and it was the duty of the court to assign a new day for his execution.
The failure, for any reason, of an officer to execute a death warrant at the time fixed by its terms does not vitiate the sentence of death but simply requires the fixing of a new date on which it is to be carried out. See The State v. Kindred Kitchens, 16 S. C. (Old Series) 276; Mallory v. Chapman, 158 Ga. 228, 122 S. E. 884; State v. Cardwell, 95 N. C. 643. Perhaps the best illustration of what has just been stated appears in the now celebrated Willie Francis case. Francis was convicted of the crime of murder and was sentenced to suffer the penalty of death. A warrant was issued directing the sheriff to execute the sentence on May 3, 1946. On that date the sheriff undertook to execute the warrant by electrocution. Francis was placed in the chair and an attempt was made to electrocute him. The machine failed to function properly and he was removed from the chair. Thereafter the governor of Louisiana granted him a reprieve to May 9, 1946. The day before the expiration of such reprieve he filed an action in the Supreme Court of Louisiana asking that he be released from custody. Because the action could not be decided by May 9, he was granted a further reprieve of not more than thirty days. May 15, 1946, the supreme court of Louisiana decided (State v. Resweber, 212 La. 143, 31 So. 2d 697) that the unsuccessful attempt to electrocute him on the date fixed in the original death warrant did not constitute an execution of the sentence or grant him immunity and refused to grant a writ of habeas corpus. Francis then applied to the United States Supreme Court for certiorari, which was granted on June 10, 1946, on which date the court stayed his execution pending its decision (Louisiana n. Resweber, 328 U. S. 833, 90 L. Ed. 1608, 66 S. Ct. 1382). On January 13,1947, the United States Supreme Court affirmed the judgment of the Supreme Court of Louisiana (Louisiana v. Resweber, 329 U. S. 459, 91 L. Ed. 422, 67 S. Ct. 374). February 10,1947, it denied a motion for rehearing and vacated its order of June 10, 1946, staying execution (Louisiana v. Resweber, 330 U. S. 853, 91 L. Ed. 1295, 67 S. Ct. 673). Thereafter Francis was electrocuted as required by the terms of the original judgment and sentence. While the opinions of the decisions just mentioned do not disclose who fixed the date for his execution they do definitely determine that under the conditions therein involved it was the duty of some duly constituted authority to fix a new date for execution of his sentence.
No one of the decisions to which we have referred covers the entire field but when carefully analyzed each will be found to support the established general rule which is well stated in 24 C. J. S. 166, § 1614, as follows:
“The fact that the day of execution has passed without the sentence of death being executed because of the death or illness of the sheriff, because of his neglect to execute the warrant, because the court granted a postponement of the execution on the application of accused, or because accused has obtained a writ of error or taken an appeal to an appellate court, does not entitle accused to his discharge, and the court may, either with or without a new sentence, designate another day for the execution of the sentence. This is a mere fixing or resetting of the date of execution under the original judgment, and is not the pronouncement or rendition of a new judgment. The validity of a resentencing order is immaterial, if the original sentence is still in full force and effect, and it has been held that, although a reprieve order is void and the date for execution has passed, accused is not entitled to his discharge, but the court should fix a new date for the execution.”
A similar statement is to be found in 15 Am. Jur. 162, 163, § 513. It reads:
“It is well settled that permitting the day fixed for execution to pass without carrying out the sentence has the effect of furnishing only temporary immunity from execution. The sentence of death still remains, and a new day may be appointed to carry out the sentence. If the date fixed is allowed to pass for any cause, for instance, the pendency of an appeal or a writ of error, a new date may be set for the execution. If a convict sentenced to death escapes before the day fixed for his execution or if the execution is prevented by accident from being carried out, the judgment remains and may be carried out by fixing a new date. Failure of a sheriff, warden, or other person commissioned to carry out the sentence of death on the day fixed, whether due to forgetfulness, inadvertance, or wilful neglect of duty, does not discharge the prisoner. A new day may be set for the execution. The right to set a new date for execution is not lost by suspending sentence of death on a certain day where the convict becomes insane or a female prisoner is pregnant. A reprieve does not defeat the sentence of execution, but merely postpones the date.”
See, also, 15 Am. Jur. 110, § 450, which states:
“Generally, the date fixed by a sentence for the punishment to commence is not regarded as a part of the sentence, and if for any reason the sentence is not carried into effect at the prescribed time, the accused may be brought before the court on motion, and a new period designated. Likewise, on the lapse of the day fixed for the execution of a sentence of death, without the sentence being carried into effect, a new day must be fixed for the execution.”
Other decisions examined and found to support some one or more of the fundamental principles within the scope of the general rule as heretofore quoted are People v. Frost, 119 N. Y. S. 857; Bullitt, Sheriff, v. Sturgeon, 127 Ky. 332, 32 Ky. L. 215, 105 S. W. 468; People v. Sloper, 198 Cal. 601, 246 Pac. 802; Henry v. Reid, 201 La. 857, 10 So. 2d 681; Smith v. Henderson, 190 Ga. 886, 10 S. E. 2d 921; Solesbee v. Balkcom, 205 Ga. 122, 52 S. E. 2d 433; State ex rel. Johnson, Dist. Atty., et al. v. Alexander et al., 87 Utah 376, 49 P. 2d 408; People v. Righthouse, 10 Cal. (2d) 86, 72 P. 2d 867; State v. Brown (Mo.), 112 S. W. 2d 568; State v. Wright (Mo.), 112 S. W. 2d 571; Commonwealth v. Hill, 185 Pa. 385, 39 Atl. 1055; Matter of Buchanan, 146 N. Y. 264, 40 N. E. 883.
Still more can be found by reference to Am. Dig. System, Criminal Law, §§ 1003, 1219; 34 A. L. R. Anno. 314.
Having definitely established that defendant’s sentence is still in force and effect it then becomes necessary for us to determine who has the duty of seeing to it that the judgment and sentence is carried out by fixing a new date for his execution. That question depends, of course, upon the laws of this state. We pause to add that its decision has been held to be purely a question of state policy, involving no infraction of the United States Constitution (Lambert v. Barrett, 159 U. S. 660, 40 L. Ed. 296, 16 S. Ct. 135; Rogers v. Peck, 199 U. S. 425, 50 L. Ed. 256, 26 S. Ct. 87).
In support of his motion to dismiss the state’s motion defendant directs our attention to the fact that when a death sentence has been imposed and a date of execution fixed a new date may be fixed by the trial court, under the provisions of G. S. 1935, 62-2406 and 62-2407, in cases where it has been called to its attention that a person condemned to die appears to be insane and his sentence has been suspended by such tribunal on that account. Also that G. S. 1935, 62-2409 and 62-2410, authorizes the district court to refix the death sentence of a woman whose sentence has been stayed by it because of pregnancy. He also directs attention to G. S. 1935, 62-2411, providing that upon the escape of a person under sentence of death the governor shall appoint a day for his execution if he is not apprehended until after the date originally fixed for his execution.
It is urged that the foregoing provisions of the statute, insofar as they relate to the situations therein mentioned, have application both before and after appeals to this court from judgments and sentences of district courts of the character here involved. We are convinced they apply only to situations where there has been no appeal from such judgments. So far as trial courts are concerned the question has been definitely determined. In State v. Brady, 156 Kan. 831, 843, 137 P. 2d 206, we said:
“It follows that even if there were force in appellant’s contention that the trial court was without power to fix the date of execution, the matter is now in the hands of this court, which has not only the power but the unpleasant duty of doing so.” (p. 843)
We see no reason for giving the provisions of G. S. 1935, 62-2411, any broader application and hold that it too has application only to situations arising prior to perfection of appeals to this court from judgments in capital cases.
It is to be noted the sections of the statute just mentioned precede G. S. 1935, 62-2414, which reads:
“In case the supreme court, or any judge thereof, shall order a suspension of the execution of sentence, the suspension shall continue until the proceedings are determined, and after determining the same, if the sentence be confirmed, said court shall appoint a day certain for and order the execution of said sentence, it shall be the duty of the clerk of said court to issue to said warden his warrant under the seal of said court, commanding him to proceed to carry said sentence into execution, at the lime so appointed by the court, which time shall be staled in said warrant; and upon receipt of said warrant it shall be the duty of said warden to cause said sentence to be executed as herein provided, at the time so appointed by the court, and to make due return of said warrant, and of his proceedings thereunder, forthwith to the clerk of the district court before which the conviction was had, who shall cause the same to be recorded as a part of the records of the case.” (Emphasis supplied.)
In addition G. S. 1935, 62-1720, provides:
“On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct.”
When the two foregoing sections of the statute are considered together it seems clear that they not only give power, but make it the duty of this court, under the factual situation heretofore related, to fix a new date for the execution of the defendant and we so hold. Indeed, in the absence of a plain mandate we would be compelled to reach a like conclusion. Courts have inherent power to enforce their own judgments and should see to it that they are enforced when — as here — they are called upon to do so (see State v. Brady, supra, page 841; 21 C. J. S. 136, § 88; 14 Am. Jur. 370, § 171; 31 Am. Jur. 363, § 882).
In the instant case all parties concede the judgment and sentence of the district court of Miami county as affirmed by this court in State v. Miller, supra, has not been complied with and that there has been no commutation of the sentence under the provisions of G. S. 1947, Supp. 62-2216. It follows that we have the unpleasant duty of again fixing a date for the defendant’s execution. Therefore an appropriate order will be made in due course to carry his sentence into execution.
The defendant’s motion to dismiss is denied and the state’s motion to reset a date for his execution is sustained. | [
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is a declaratory judgment action brought by Shelter Mutual Insurance Company (Shelter) to determine coverage under a homeowners insurance policy containing an exclusion for “bodily injury or property damage expected or intended by an insured.”
The facts are not in dispute. On January 21, 1985, James Alan Kearbey entered Goddard Junior High School armed with an M-1A rifle and a .357 magnum handgun. As he proceeded through the halls of the school, Kearbey fired the rifle several times, killing the principal, James McGee, and wounding Daniel B. Williams, Don Harris, and Dawn Swearingen.
Kearbey was a very intelligent 14-year-old who was having problems at home and at school, where he was failing every subject. Dr. Gary Hackney, a clinical psychologist, had been counseling Kearbey since 1983. He described him as an angry, upset, frustrated, and depressed young man. Kearbey repeatedly got into fights with fellow students and was called names. He had a particular problem with a group of “jocks,” who picked on him a great deal. The evening before the shooting, Kearbey told a friend that one of his teachers was rough on him and that someone ought to shoot the teacher. At the school on the morning of the shooting, he told the same friend that he was “going to blow everybody through hell’s gate.” He left the school and went to his house about a block away. He later returned to the school and got into a prone position to try to shoot people in the building, but his glasses fogged up from the cold and he was unable to see. As he walked past the school office, Dawn Swearingen, a teacher, saw Kearbey and thought perhaps he was carrying the gun for some kind of speech. She called to the principal, who came out of the office and asked Kearbey what he was doing. Kearbey then swung around and began spraying the hall with bullets. The principal was shot once through the heart. Swearingen reported that Kearbey never said a word. Kearbey testified that this part had blanked out for him and he could not remember what had happened, although he remembered the spent cartridges coming out of the weapon.
Kearbey continued through the halls of the school and was confronted by another teacher, Don Harris. When Harris asked to see the rifle, he got no response. Kearbey walked by Harris with a brisk walk. When Harris called again, Kearbey turned, knelt, and fired the gun. He hit Harris and Danny Williams, a student.
Kearbey testified at trial that he did not intend to harm his victims but acknowledged his contrary deposition testimony that his objective was to “[g]et the dudes that were messing with [him].” After the shooting, Kearbey tried unsuccessfully to obtain car keys from two people and then fled the area.
At trial, Hackney testified that, when he met with Kearbey the next day, Kearbey was not actively psychotic. Hackney testified at trial, however, that at the time of the shooting Kearbey had a brief reactive psychosis, which meant a sudden onset of psychotic disorder. When Kearbey entered the school, he was out of contact with reality. Hackney testified that, when Kearbey entered the school, he was goal-oriented, but when he realized that the boys who had been picking on him were not in the gym, he “lost it.” According to Hackney, a good description of Kearbey’s conduct at this time was “walking into a very dense fog,” because Kearbey could not distinguish fantasy from reality.
Daniel Williams and Don Harris brought an action for damages against Kearbey, his parents, and the Goddard school system. In that action, Kearbey’s parents demanded that Shelter provide coverage and defend them under a previously issued homeowners insurance policy, which provided coverage for personal liability and medical payments to third parties. One provision of this policy excluded coverage for “bodily injury or property damage expected or intended by an insured.” After the damages action was filed, Shelter brought this declaratory judgment action on May 29, 1986, to determine whether Kearbey’s conduct was excluded from coverage.
Following the shootings, Kearbey was committed to the care and custody of the Kansas Department of Social and Rehabilitation Services (SRS) as a juvenile offender, pursuant to K.S.A. 38-1663(1). He was a resident at the Youth Center at Topeka when the petition here was filed. On June 6, 1986, the district court issued a summons with instructions to serve Kearbey at the Youth Center. The summons was returned, indicating service on Kearbey by leaving a copy with Rob Heintzelman at 1440 N.W. Highway 24. Heintzelman was a Social Services Administrator IV and Program Director at the Youth Center.
On October 29, 1986, the Kearbeys moved for appointment of a guardian ad litem for Kearbey, pursuant to K.S.A. 1989 Supp. 60-217(c). The motion was sent to Kearbey in care of Dr. Carol Mills at the Youth Center but was not directly served on SRS. On October 29, 1986, the district court appointed a guardian ad litem and ordered that compensation be paid from funds of the State Secretary of SRS pursuant to K.S.A. 38-1616. SRS entered a special appearance in the case and sought to amend the order, arguing lack of notice, lack of personal jurisdiction, lack of authority under K.S.A. 38-1616, liability of the parents, conflict of interest, and the parties’ duty to assume the costs of litigation. The motion was overruled. When Shelter sought an order directing an agent to receive service of process on Kearbey, the court held that service upon Dr. Robert C. Harder, State Secretary of SRS, and Dennis Molamphy, the guardian ad litem, would satisfy K.S.A. 1989 Supp. 60-304(b)(2). Summonses were returned showing personal service on Kearbey and on Dr. Harder.
On December 8, 1987, Molamphy moved to withdraw as guardian ad litem, which was sustained. The court appointed Reid Stacey, counsel for SRS, to represent Kearbey. Stacey requested relief from this order, which was overruled. Following a motion for reconsideration, the court withdrew the appointment of Stacey, appointed private attorney Andrew Fletcher as guardian ad litem, and ordered Shelter to pay the costs of the guardian ad litem if Kearbey prevailed, but ordered SRS to bear the expenses if Kearbey did not prevail. Kearbey turned 18 on July 26, 1988, but no action was taken to remove the guardian ad litem and he continues to represent Kearbey at this time.
Trial in this action began on August 16, 1988. The jury answered three questions submitted at trial, finding that Kearbey had expected or intended bodily injury to (1) Daniel Williams, (2) Dawn Swearingen, and (3) Don Harris. The court then entered judgment for Shelter, finding no coverage and no duty to pay damages.
Both defendants Kearbey and SRS appealed. Kearbey raises two issues:
(1) The district court erred in failing to adopt the majority rule of law, and a jury instruction to reflect this rule, that injuries caused by a tortfeasor who lacks the capacity to understand the nature and quality of his actions or who is mentally incapable of controlling his actions cannot, as a matter of law, be excluded from insurance coverage which excepts the expected or intended acts of the insured; and
(2) the jury instructions regarding Kearbey’s mental state were clearly erroneous and improperly defined the burden of proof.
The issue raised by SRS is whether the district court had personal jurisdiction over SRS to order SRS to pay the guardian ad litem fees.
The Court of Appeals, in affirming the district court as to Shelter’s duty, adopted what it designated the “minority view,” that an injury inflicted by a person who is mentally ill is “ ‘intentional’ when the actor understands the physical nature of the consequences of the act and intends to cause the injury, even though incapable of distinguishing right from wrong.” As to the payment of the guardian ad litem fees, the Court of Appeals held that the district court erred in ordering SRS to pay them because the court did not have personal jurisdiction over SRS.
When the Kearbeys were sued by Daniel Williams and Don Harris, the Kearbeys demanded that Shelter defend and indemnify them. Shelter concluded that Kearbey’s actions might be excluded from coverage under the policy because of the exception for bodily injury or property damage expected or intended by an insured, but it fulfilled its duty to defend by providing counsel for the Kearbeys while serving a reservation of rights upon the Kearbeys.
In this declaratory judgment action, we must resolve the issue of coverage. In the trial of the damages suit by the victims, the jury found Kearbey 80% at fault but found his parents not at fault. In answering a special question, the jury concluded that Kearbey was insane at the time of the shootings. Williams v. Kearbey, 13 Kan. App. 2d 564, 775 P.2d 670 (1989). In instructing the jury, the district court rejected Kearbey’s request that the instructions include a description of the insanity test based either upon the M’Naghten or the Globe tests. The Court of Appeals approved the district court’s refusal to adopt the legal rule that injuries caused by a tortfeasor who lacks the capacity to understand the nature and quality of his actions or is mentally incapable of controlling his actions cannot, as a matter of law, be excluded from insurance coverage which excepts the expected or intended acts of an insured. We must now decide whether an intentional injury exclusion clause precludes coverage where a mentally ill insured shoots and injures several innocent victims. This is a question of first impression for this court.
Shelter urges that the standard of review to be applied here is that for considering a jury verdict. It argues that if the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, will support the verdict, then the verdict should not be disturbed on appeal, citing Tetuan v. A.H. Robins Co., 241 Kan. 441, 461, 738 P.2d 1210 (1987). Although application of the exclusionary clause in this case may simply involve a review of the record to determine whether it supports the jury’s verdict, the question of whether the exclusionary clause here excludes acts committed by an insane insured is a question of law. Mangus v. Western Cas. & Surety Co., 41 Colo. App. 217, 219, 585 P.2d 304 (1978). The lower court’s interpretation of the insurance contract stated a conclusion of law; appellate review of conclusions of law is unlimited. Baker v. R.D. Andersen Constr. Co., 7 Kan. App. 2d 568, 644 P.2d 1354, rev. denied 231 Kan. 799 (1982).
In Kansas, an insane person is still civilly liable in damages for his torts. Williams v. Kearbey, 13 Kan. App. 2d at 565; Toepffer v. Toepffer, 151 Kan. 924, 929, 101 P.2d 904 (1940). In affirming this longstanding rule, the court in Williams noted that American courts have unanimously chosen to impose liability on an insane person rather than leave the loss on the innocent victim. 13 Kan. App. 2d at 565. One of the leading cases on this issue is the decision by this court in Seals v. Snow, 123 Kan. 88, Syl. ¶ 1, 254 Pac. 348 (1927), which held: “An insane person who shoots and kills another is civilly liable in damages to those injured by his tort.” In Seals, Snow shot and killed Arthur Seals, whose widow brought an action for wrongful death. Returning a general verdict for the plaintiff, the jury found in answer to special questions that Snow did not act in self-defense, that Snow was insane when he shot Seals, and that Snow was not able “to distinguish right from wrong” at the time he shot Seals. 123 Kan. at 88-89. Rejecting Snow’s argument that he should not be held liable because he was insane, the court noted that public policy requires liability because the loss should be borne by the one who caused it rather than by the innocent person. Furthermore, such liability would urge relatives of the insane person to restrain him and would prevent tortfeasors from pretending or simulating insanity to defend their wrongful acts causing damage to others. 123 Kan. at 90.
Although in Kansas an insane person is civilly liable for damages caused to those injured by his tort, the case law has not considered what impact insanity or mental illness has on a provision of an insurance policy providing coverage for tortious liability but excluding “bodily injury or property damage expected or intended by an insured.”
In construing contracts, an ambiguity in the language of the contract will be strictly construed against the party who drafted the provision. An insurance policy is a contract; plain and unambiguous language contained within the contract must be given its plain meaning. Where an insurance contract is open to different constructions, the one most favorable to the insured must be adopted, but an ambiguity must not be created where none exists. Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 333-34, 681 P.2d 15 (1984). Insurance contracts will be strictly construed against the party drafting the provision and requires liberal construction in favor of the insured. Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. ¶ 10, 597 P.2d 1080 (1979). In Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 79-80, 483 P.2d 1072 (1971), this court concluded that a provision excluding coverage for “bodily injury or property damage caused intentionally by or at the direction of the insured” was ambiguous and should be strictly construed against the insurer.
Recently, the Kansas Court of Appeals applied an intentional exclusion provision of a liability policy that excluded injuries intended or expected by the insured to exclude coverage of an injury caused by the insured’s aiming and firing a pistol at close range. Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 721, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982). The trial court found that the insured pointed a gun at a person and fired. No evidence indicated the insured was touched or bumped prior to the firing or that the insured did not intend or expect the injury that resulted. The court held:
“[A] liability policy provision excluding coverage for injuries expected or intended from the standpoint of the insured would exclude from coverage an injury in which it was shown that the insured injured another by aiming and firing a pistol at the injured person at close range, where there is no evidence offered in explanation that the insured had not intended or expected the injuries.” 7 Kan. App. 2d at 721.
In reaching its decision, the court in Thomas applied the principle that a person is presumed to intend the natural and probable consequences of his acts but recognized that evidence of unusual circumstances could defeat this presumption. 7 Kan. App. 2d at 721. As an example of the operation of this principle, Kearbey argues that if a young child should injure another while playing with a handgun, it cannot necessarily be presumed that the child intended injury if the child did not have capacity to understand the consequences of his actions. Similarly, Kearbey argues that if an individual lacks the capacity to understand the consequences of his acts or to control his irrational impulses because he is insane, this presumption can be rebutted, and insurance coverage should not be excluded because it is an intentional tort.
In facts very similar to those of Thomas, this court again addressed the propriety of the trial court’s determination that plaintiff s injury came within an insurance policy’s expected or intended exclusion. Bell v. Tilton, 234 Kan. 461, 467-68, 674 P.2d 468 (1983). The parties agreed that the insurance company had the burden of proving the applicability of the exclusion. The tortfeasor, a juvenile, fired a BB gun at his playmate as he ran across an open door inside a hay loft. 234 Kan. at 462. The court noted that the boy who fired the weapon was aware that injury could occur as a natural and probable consequence of the act of firing at his friend. The court found Thomas indistinguishable except that a pistol rather than a BB gun was used. Although the child firing the BB gun testified that he did not intend to harm his playmate, this court concluded:
“[T]he act of shooting another in the face with a BB pellet is one which is recognized as an act so certain to cause a particular kind of harm it can be said an actor who performed the act intended the resulting harm, and his statement to the contrary does nothing to refute that rule of law. ” 234 Kan. at 471.
The court concluded that substantial competent evidence before the trial court supported its finding that the act of the child firing the gun was intentional. 234 Kan. at 472.
Shelter argues that the evidence here is more than sufficient to support the conclusion that Kearbey intended to cause bodily injury to third parties and expected that such harm would result from his actions when he went to the school with loaded firearms and fired several times. According to Shelter, the only real factual argument is that Kearbey was not in the mental state necessary to form an intent to cause harm. Shelter rejects this argument on the grounds that the jury also rejected it in reaching its verdict. According to Shelter, the jury reached this decision based upon Kearbey’s insincere and preplanned response to accusations against him by relying upon insanity. The jury also heard testimony that Kearbey was highly intelligent and manipulative.
In the present case, the jury was asked to conclude whether Kearbey expected or intended the bodily injury to (1) Don Harris, (2) Daniel Williams, and (3) Dawn Swearingen. The jury was not asked separately whether it concluded that Kearbey was insane at the time of these acts. Kearbey asked that the jury be instructed on the insanity issue. Instead, he received two instructions concerning his mental status that provided as follows:
“Defendants contend that Alan Kearbey’s mental state was such that he could not understand the nature of his acts and was unable to differentiate between fantasy and reality, and, therefore, could not intend or expect the natural consequences of his acts. The burden of proof is upon the defendants to prove that, because of his mental state, the acts of James Alan Kearbey were not intended or expected.”
“Intent is a state of mind of the actor. Direct evidence of intent is not required. It is to be inferred from circumstance. Intent is present when a person deliberately, as opposed to accidentally or involuntarily, does an act knowing its probable consequences. A specific intent to injure a particular person is not necessary, if the actor intends that his act injure someone. When the act is intentional, the injuries are intentional. As elsewhere stated in these instructions, the burden of proof is upon the plaintiff, Shelter Insurance Company, to prove the acts of Alan Kearbey were intentional.
“Acts are not intentional where, because of the mental or emotional state of the actor, he is incapable of forming an intent. The burden of proof is upon the defendants] to prove that the mental or emotional state of James Alan Kearbey made him incapable of forming an intent.”
Other courts have recognized a distinction between placing liability upon an insane individual for intentional torts and interpreting exclusionary provisions of insurance policies for intentional acts. The Idaho Supreme Court in Rajspic v. Nationwide Mut. Ins. Co., 110 Idaho 729, 718 P.2d 1167 (1986), discussed the distinction as follows:
“As we stated in Rajspic I, Mrs. Rajspic’s sanity is particularly relevant in determining whether she was capable of forming a state of mind to have intentionally injured Brownson. In Rajspic I, when we cited McGuire v. Almy, 297 Mass. 323, 8 N.E.2d 760 (1937), we did not thereby adopt a rule that where an insane person is found to have committed an intentional tort, an insurance policy excluding coverage for injuries intentionally caused by the insured will always operate to relieve the insurance carrier of liability for the tort judgment. If we had adopted such a rule—which has precedent in no modern jurisdiction—only then would the district court’s grant of summary judgment to the respondent have been justified. Bather, we cited McGuire to support the general proposition that a person who is considered insane may still be capable of entertaining the intent to commit certain tortious acts even though he entertains that intent as a consequence of his delusion or affliction. [McGuire] at 327-29, 8 N.E.2d at 762-63; Rajspic I, supra at 664, 662 P.2d at 536. The McGuire case had nothing to do with insurance coverage, let alone clauses that excluded coverage for injuries intentionally caused by the insured. McGuire was not cited by this Court to insinuate that the treatment of intentional torts and the application of insurance exclusion clauses should be synonymous. They involve two fundamentally different areas of the law, each founded on separate and distinct legal theories and principles.” 110 Idaho at 731-32.
Although this is a question of first impression for this court, two conflicting lines of authority have developed in other jurisdictions. One set of cases holds that if an insured is suffering from a mental illness, the insured’s acts cannot be treated as “intentional” within such an insurance clause. Globe American Cas. Co. v. Lyons, 131 Ariz. 337, 340, 641 P.2d 251 (1981). This is based upon policy considerations that view the purpose of incorporating intentional injury exclusions into insurance policies as an attempt to preclude persons from benefiting financially when they cause injury. Because an individual who lacks mental capacity to conform his conduct to acceptable standards will not be deterred by the existence or the nonexistence of insurance coverage for the consequences of his conduct, such exclusion is viewed as inappropriate. Globe, 131 Ariz. at 339-40.
Under the other line of cases, an injury inflicted by a person who is mentally ill is considered “intentional” within the meaning of the exclusion if the evidence shows that the actor understood the physical nature and consequences of his conduct and had the purpose and volition to cause the injury even though the individual was incapable of distinguishing right and wrong. Colonial Life & Accident Insurance Co. v. Wagner, 380 S.W.2d 224 (Ky. 1964); Johnson v. Insurance Co. of No. America, 232 Va. 340, 346, 350 S.E.2d 616 (1986).
Kearbey recognizes that the contractual intent behind the exclusion for expected and intended acts is to preclude financial benefit by individuals who deliberately cause injury to another, but argues that an individual who does not have the mental capacity to understand the nature and consequences of his acts or who is incapable of controlling his irrational impulses will not be deterred from acting because of existence or nonexistence of insurance coverage for his conduct. In such cases, Kearbey urges this court to follow those courts that have concluded that the impulsive or irrational act of an insane person cannot be found to be expected or intended for purposes of the exclusionary clause of the insurance policy here.
Some courts use the widely accepted standard for insanity in criminal matters, the M’Naghten rule, that involves two separate tests for defining legal insanity: A criminally insane actor may be unable to understand the nature and quality of his acts due to his psychosis, or he may understand what he is doing but be unable to recognize his conduct as wrongful. According to Kearbey, under the minority view, coverage would be excluded only if the tortfeasor cannot understand the nature and quality of his acts; thus, if the tortfeasor knew that he was shooting another person, but did not know it was wrongful because he had the delusion that God ordered him to shoot, coverage would be excluded. Johnson, 232 Va. at 347. Kearbey asserts that this rule ignores the purpose behind the insurance exclusion provision and the usual rules of construction in interpreting insurance contracts, arguing that it makes little sense to deny coverage if an individual hears voices commanding him to shoot, but allows coverage when a person acts without comprehending what he is doing.
In Johnson, 232 Va. at 347-48, the Virginia Supreme Court rejected a similar argument, stating:
“The victim argues, however, that the exclusion does not apply and Davis is entitled to coverage because he was incapable of controlling or desisting from the actions causing the injury. We reject this argument.
“In effect, the victim argues that, legally, one mind may not simultaneously be partly normal and substantially abnormal. But we have already confronted a similar dichotomy in the criminal context in Price v. Commonwealth, 228 Va. 452, 323 S.E.2d 106 (1984). There we stated that the two elements of the M’Naghten Rule, nature-of-the-act test and right-wrong test, logically can be separated. Quoting from a criminal treatise, we said:
“ ‘ “The first portion of M’Naghten relates to an accused who is psychotic to an extreme degree. It assumes an accused who, because of mental disease, did not know the nature and quality of his act; he simply did not know what he was doing. For example, in crushing the skull of a human being with an iron bar, he believed that he was smashing a glass jar. The latter portion of M’Naghten relates to an accused who knew the nature and quality of his act. He knew what he was doing; he knew that he was crushing the skull of a human being with an iron bar. However, because of mental disease, he did not know that what he was doing was wrong. He believed, for example, that he was carrying out a command from God.” ’ 228 Va. at 459-60, 232 S.E.2d at 110.
“Here, when Davis aimed the pistol at Johnson, he knew that he was shooting a human being. Acting deliberately and methodically, Davis had searched for and found a pistol, loaded it, travelled to the victim’s home, waited for him, begun talking with him, and shot him from close range. He acted with resolve and determination, not knowing that what he was doing was wrong because God had ordered him to act. In pointing the pistol at Johnson, Davis did not think, for example, that he was peeling a banana; he was not psychotic to an extreme degree, as the victim readily recognizes when he notes that Davis ‘did have this minimal degree of awareness of his actions.’ That is sufficient. The shooting was not accidental, a risk insured against, but intentional.”
Excluding coverage for an intentional injury arises from the belief that an individual should not be exempt from the financial consequences of his own intentional injury to another. We recognize that an individual who lacks substantial capacity to conform his conduct to the law will not be influenced by whether insurance exists to cover the consequences of his acts. We further recognize that the public’s strong interest in compensating victims reinforces the well-settled principle that exclusionary clauses such as this should be interpreted as narrowly as possible. However, it does not follow that the concept of insanity relevant to the exclusionary clause at issue in this case should be more expansive than the concept of insanity used in defense of a criminal charge.
We find the analysis of the Virginia Supreme Court in Johnson persuasive. We hold that an injury inflicted by an insured who is mentally ill is “intentional” within the meaning of the policy provision excluding coverage for intentional acts of the insured if the insured understands the nature and quality of his acts and intends to cause the injury, even though he is unable to recognize his conduct as wrongful.
Kearbey next argues that the district court erred in the way it instructed the jury about the impact of his mental state on the exclusionary provision of the insurance contract. He also argues that the district court failed to properly define the burden of proof.
The Court of Appeals noted Kearbey did not object to the instructions. The Court of Appeals, in finding the instructions were not clearly erroneous, stated:
“ ‘It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party.’ Trout v. Koss Constr. Co., 240 Kan. 86, 88, 727 P.2d 450 (1986).
“The instruction was sufficiently clear for judging the impact of Kearbey’s sanity or insanity upon the issue of intent. Kearbey was not prejudiced by this instruction.
“The burden is upon the insurer to establish facts which bring the case within the exceptions contained in the policy. Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, Syl. ¶ 3, 483 P.2d 1072 (1971).
“In Kansas, Kearbey would be presumed to have intended the natural and probable consequences of his actions. Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 721, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982). Where one person aims a gun at another and fires it, as in this case, it is presumed the act was intentional. Casualty, 7 Kan. App. 2d at 721. This is a rebuttable presumption, however. 7 Kan. App. 2d at 721. In Kansas, sanity is also presumed until the contrary is established. Miller v. Hudspeth, 164 Kan. 688, Syl. ¶ 8, 192 P.2d 147 (1948). Kearbey had the burden of proof to rebut the presumptions of sanity and intent by introducing evidence to support his contention that his mental condition prevented him from forming the necessary intent.
“The insured thus has the burden to show the loss falls within a coverage provision while the insurer has the burden to prove the loss is excepted or excluded by a specific provision of the policy. See Kan. State Bank & Trust v. Emery Air Freight, 656 F. Supp. 200, 203 (D. Kan. 1987); West American Ins. Co. v. McGhee, 530 N.E.2d 110, 112 (Ind. App. 1988).”
We concur with the Court of Appeals’ finding that neither instruction is clearly erroneous.
The final issue concerns who should be liable for the fees of the attorney appointed by the court to represent Kearbey as his guardian ad litem. The Court of Appeals concluded that no appropriate service was made to join SRS as a party, and no personal jurisdiction was ever acquired over SRS; Therefore, the trial court’s assessment of attorney fees against SRS could not stand. Although, generally, attorney fees are not recoverable absent clear and specific authority, Jones v. Smith, 5 Kan. App. 2d 352, 354, 616 P.2d 300, rev. denied 228 Kan. 806 (1980), the drafters of the civil code and the legislature assumed that the court had inherent authority to compensate those who were called to assist it. Comments, 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-217(c) (1979). The Court of Appeals correctly concluded that the duty of a court to appoint a guardian ad litem necessarily implies an obligation to pay and the power of the court to fix reasonable compensation.
Pursuant to K.S.A. 38-1616, the expenses of the care and custody of a juvenile, which here were borne by the State social welfare fund, include things such as food, shelter, education, and ordinary medical care, but not the expense of attorney fees in a civil action. Because the Court of Appeals found no authority to assess attorney fees against SRS, it remanded the case to the district court to determine which of the remaining parties should be assessed the guardian ad litem fees. The guardian ad litem asked this court to decide the issue in this appeal to avoid the cost, expense, and delay of additional hearings and a subsequent appeal.
The district court has the power to appoint a guardian ad litem or to make other orders as it deems proper for the protection of the minor. K.S.A. 1989 Supp. 60-217(c). Gard notes that the policy of this rule is “to provide every infant or incompetent litigant with adequate representation, whether he be plaintiff or defendant.” Comments, 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-217(c). Gard further notes that the drafters of the Code of Civil Procedure and the legislature assumed that a court has inherent authority to compensate those called to its aid. Comments, 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-217(c). In In re Estate of Showers, 207 Kan. 268, 485 P.2d 299 (1971), a guardian ad litem was appointed to represent minors in an action to construe a will. The court rendered no opinion as to whether the provisions of 60-217(c) allowed taxation of guardian ad litem fees as costs because a provision of the probate code clearly allowed such fees. 207 Kan. at 275. The court approved taxation of the guardian ad litem fees as costs against the estate rather than against the heir who commenced the lawsuit. 207 Kan. at 275-76.
This lawsuit was initiated by Shelter to determine whether it should be required to pay any judgment that could arise as a result of the acts of Kearbey. The trial court incorrectly imposed attorney fees against SRS, which the Court of Appeals corrected because SRS was never properly served. Furthermore, the Court of Appeals pointed out that the provisions of K.S.A. 38-1616 requiring SRS to pay the expense of the care and custody of a juvenile offender would not cover attorney fees in a civil action that involved a juvenile during the period of custody with SRS.
No doubt the guardian ad litem should be compensated. Although no Kansas statute specifically provides for it, the court has inherent authority to compensate those who are called upon to assist it. Ragan v. Looney, 377 S.W.2d 273, 276 (Mo. 1964); Comments, 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-217(c). The question remains who should pay. Recause Shelter, the parents, and SRS have not addressed the issue before this court, we agree with the Court of Appeals that the case should be remanded to the district court for determining which of the remaining parties should pay the guardian ad litem fees.
The judgment of the Court of Appeals is affirmed. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded.
Abbott, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.;
This is a tort action for personal injuries suffered by Rachel McGee when the vehicle in which she was riding collided with an automobile driven by Thomas Chalfant. McGee sued Thomas Chalfant for negligent operation of the vehicle while under the influence of alcohol; Chalfant’s parents, Stephen and Julia Chalfant, for negligent entrustment of a motor vehicle and failure to exercise proper care over Chalfant; and Raymond Webster and Ronald Gingerich for supplying alcoholic beverages to Thomas Chalfant, a minor. After settlement, the actions against Stephen and Julia Chalfant, Raymond Webster, and Ronald Gingerich were dismissed. In an amended petition, McGee sued Curt Cooper, since deceased, and Sam Lett, alleging they undertook control and custody of Thomas Chalfant in transporting him to his automobile and knowingly and negligently permitted Chalfant to operate an automobile while he was intoxicated.
Cooper and Lett each sought summary judgment on the grounds that they did not take control or custody of Chalfant and, therefore, did not owe a duty to Chalfant or McGee. The district court determined material facts were in dispute as to whether Cooper and Lett exercised custody and control over Chalfant and ruled summary judgment was not proper. Subsequently, the district court determined the decision denying summary judgment involved controlling questions of law and granted Cooper’s and Lett’s motions for an interlocutory appeal. Pursuant to K.S.A. 20-3018(c), the appeal was transferred to this court.
The controlling facts follow. On May 8, 1987, around 7:00 p.m., Thomas Chalfant drove to a party at the Webster residence. He parked his car on the street, a bit north of the residence, and entered the back yard where keg beer was being served. Chalfant drank four or five glasses of beer over a two-hour period and then left the party with friends. The group drove around town for awhile and then went to a second party at “Briarwood,” which they soon left after discovering liquor was not being served. Eventually, the group arrived at a party in “Lakewood” where free beer was available. According to Chalfant, he drank “quite a bit of beer” but could not remember exactly how much he consumed.
As the hour became late Chalfant remembered he was under a midnight curfew and began to seek a ride home. Curt Cooper and Sam Lett were at the Lakewood party. Upon request, Cooper, a neighbor of Chalfant’s, said he could not take Chalfant home but would take him to his car. It was clear to both Cooper and Lett that Chalfant was intoxicated. Lett drove Cooper’s car back to the Webster residence and, according to Chalfant, let him out next to his own car. Chalfant remembers nothing after entering his own car. Lett asserts he parked across the street from the Webster residence and waited in the car while Chalfant and Cooper went inside. Lett also contends he was not familiar with Chalfant’s car. Finally, Lett claims Chalfant did not suggest taking him home, but instead, requested a ride back to the Webster party.
Very early on May 9, while driving home from the Webster party, Chalfant’s automobile crossed the center line and collided with a vehicle driven by Melissa O’Neal. Rachel McGee, a passenger in the O’Neal automobile, suffered serious head injuries.
The sole issue presented by this interlocutory appeal is whether summary judgment was properly denied under the facts herein. We first review the rules with regard to summary judgments. The burden on a party seeking summary judgment is strict. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, we apply the same rule, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Hammig v. Ford, 246 Kan. 70, 72-73, 785 P.2d 977 (1990).
Summary judgment is proper where the only questions presented are questions of law. Barber v. Williams, 244 Kan. 318, 319, 767 P.2d 1284 (1989). To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Wicina v. Strecker, 242 Kan. 278, 280-81, 747 P.2d 167 (1987). The existence of a legal duty is a question of law to be determined by the court. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
Bearing in mind those rules, let us now consider whether Cooper and Lett owed a duty of care to McGee under the facts of this case. McGee contends Cooper and Lett are liable to her under the Restatement (Second) of Torts § 324A (1964) for failure to exercise reasonable care in the performance of a voluntary undertaking, and thereby increasing the risk of harm to third persons. McGee does not contend Cooper and Lett had a duty to take Chalfant home. Rather, she asserts they assumed a duty to her when they agreed to transport Chalfant to his automobile and negligently exercised that duty when they transported Chalfant, visibly intoxicated, to his automobile. McGee asserts it was reasonably foreseeable that an intoxicated driver would increase the risk of harm to herself and other travelers on public roads.
Cooper and Lett argue they had no duty to McGee because they undertook only to transport Chalfant to his automobile, which they did with reasonable care. Further, Cooper and Lett disclaim the existence of a special relationship with Chalfant which would extend a duty owed to him to McGee.
As a general rule, in the absence of a “special relationship” there is no duty on an actor to control the conduct of a third person to prevent harm to others. Thies v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988); Restatement (Second) of Torts § 315 (1964). A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. Restatement (Second) of Torts §§ 316-320 (1964).
When the existence of a special relationship is lacking between an actor and another, the actor may still be liable to third persons when he negligently performs an undertaking to render services to another which he should recognize as necessary for the protection of third persons. Section 324A provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
This court has approved and adopted the principles of § 324A. Schmeck v. City of Shawnee, 232 Kan. 11, 26, 651 P.2d 585 (1982). Recently, we recognized the threshold requirement for the application of § 324A is a showing that the defendant undertook, gratuitously or for consideration, to render services to another. Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 669, 792 P.2d 993 (1990). In order to meet this requirement, the evidence must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another. See 246 Kan. at 674-75 (quoting Smith v. Allendale Mutual Ins. Co., 410 Mich. 685, 715-19, 303 N.W.2d 702 [1981]).
In Schmeck v. City of Shawnee, 232 Kan. 11, the plaintiff was injured in a motorcycle accident and alleged negligence by the City in failing to maintain a reasonably safe intersection. Since KCPL agreed to provide the City with engineering consultant services and actually had engaged in the design of a traffic control system, we held KCPL’s affirmative action extended a duty to plaintiff and ruled liability attached under § 324A. 232 Kan. at 25-27.
We found liability attached to the defendant in Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 672 P.2d 1083 (1983), where the plaintiff was killed when his truck hit a hole in a bridge and overturned. The Kansas Turnpike Authority had hired defendant to inspect the turnpike, and we found the defendant owed a duty to the traveling public under § 324A to exercise reasonable care in providing safety inspections. 234 Kan. at 294-95. A duty of care was imposed upon the State in Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), where it was determined the defendant had agreed to notify surrounding agencies of an escape at Lansing State Penitentiary and failure to disseminate the information resulted in injury to an area police officer. 234 Kan. at 567. In Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), city police officers observed an intoxicated bar patron leave the premises, at their command, in his automobile. The intoxicated person was involved in a fatal collision with plaintiffs decedent. 239 Kan. at 370-71. The city police department had a standard operating procedure of taking persons incapacitated by alcohol into protective custody. Thus, we determined the defendants owed a special duty to the intoxicated driver which extended to the decedent because the defendants should have realized protective custody of the driver was necessary to protect third persons. 239 Kan. at 373.
In contrast, we concluded there was no affirmative action by the defendant in Meyers v. Grubaugh, 242 Kan. 716, 750 P.2d 1031 (1988), and thus no undertaking upon which to impose liability. The defendant, a State employee, became intoxicated while at work and injured the plaintiff in an automobile collision after leaving work early. We found no evidence the employer had taken charge of or assumed control over the intoxicated employee and ruled § 324A was not applicable since the State did not undertake to render services to the employee. 242 Kan. at 722-23. See also Thies v. Cooper, 243 Kan. at 150 (employer not liable to third persons for intoxicated employee’s tortious acts absent special circumstances).
Thus, we see our cases clearly show that a duty is owed to third persons by one who undertakes, by an affirmative act, to render aid or services to another and then is negligent in the performance of that undertaking. One who does not render aid or services to another and has not agreed to do so does not owe a duty to third persons. Examination of cases from other jurisdictions is helpful in determining whether Cooper and Lett undertook to render those kind of services to Chalfant that would cause them to incur liability for Chalfant’s subsequent actions.
In Cuppy, et al., v. Bunch, White, 88 S.D. 22, 214 N.W.2d 786 (1974), Bunch and White drank lemonade and vodka throughout the day while on a fishing expedition. Bunch slept as they drove back to town, and White had difficulty waking him once they arrived. Bunch did not want to leave his automobile in town so White instructed Bunch to follow him. Bunch’s driving was erratic and eventually he collided with plaintiff. 88 S.D. at 24. The South Dakota court examined White’s actions and determined § 324A was inapplicable because White did not undertake to assist Bunch and did not exercise control over him. 88 S.D. at 26.
In Stepnes v. Adams, 452 N.W.2d 256, 259 (Minn. App. 1990), summary judgment in favor of Sage, a defendant, was upheld because there was inadequate evidence she exercised control over an intoxicated driver. Adams and Sage drank beers and shots for three hours. A friend who believed Adams was too intoxicated to drive offered her a ride home; however, Sage refused the offer on Adams’ behalf. Sage helped Adams to her automobile and followed Adams out of the parking lot. Adams swerved off the road, hit the plaintiff who was jogging, and then drove on. 452 N.W.2d at 257. The Court of Appeals determined no special relationship existed between Adams and Sage and denied liability by Sage under the Restatement (Second) of Torts §§ 308, 319, and 324A (1964). 452 N.W.2d at 258-59.
In Lather v. Berg, 519 N.E.2d 755 (Ind. App. 1988), a police officer was killed when Murphy crashed into a patrol car after a high speed chase. Murphy had spent the day drinking with his girlfriend and two other friends, Berg and Bailey. Murphy’s girlfriend refused to ride with him because he was intoxicated and a fight ensued wherein Berg took possession of Murphy’s car keys. Eventually, however, as the arguments and fighting continued, Berg gave back Murphy’s car keys and ordered him to leave. 519 N.E.2d at 757-58. Plaintiff, administratrix of the estate of the deceased police officer, alleged Berg and Bailey were liable for negligent performance of a gratuitously assumed duty because they had assumed a duty to protect third persons when they took possession of the car keys. The Indiana court found that liability does not attach unless the actor specifically undertakes to perform the task he or she is charged with negligently performing. The court concluded the evidence showed no fact or reasonable inference that Berg or Bailey gratuitously assumed a duty to prevent Murphy from driving. 519 N.E.2d at 765-66.
The foregoing cases all hold that a person who allows an intoxicated person to drive but does not otherwise exercise control over the intoxicated person has assumed no duty to third persons and is not liable for injuries subsequently caused by the intoxicated driver. See also Wienke v. Champaign County Grain A., 113 Ill. App. 3d 1005, 447 N.E.2d 1388 (1983); Gustafson v. Mathews, 109 Ill. App. 3d 884, 441 N.E.2d 388 (1982); Sports, Inc. v. Gilbert, 431 N.E.2d 534 (Ind. App. 1982); Pinkham v. Apple Computer, Inc., 699 S.W.2d 387 (Tex. App. 1985), for similar holdings.
In contrast, liability was imposed upon the tavern owner who refused to serve an intoxicated patron but allowed a tavern employee to provide the incapacitated person with a jump start for his automobile in Leppke v. Segura, 632 P.2d 1057 (Colo. App. 1981). The Colorado court held that providing the intoxicated patron with a jump start was an affirmative act which gave the patron mobility he would not otherwise have had and set into motion a force involving an unreasonable risk of harm to others. 632 P.2d at 1058-59. See also Farwell v. Keaton, 396 Mich. 281, 291, 240 N.W.2d 217, reh. denied 397 Mich. 958 (1976) (liability imposed for failure to obtain assistance for severely injured person who later died).
In Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983), the Texas high court affirmed a ruling that an employer was liable to the plaintiffs for the deaths of their wives caused by an automobile collision with an intoxicated employee. A supervisor at the employer suggested the employee go home after becoming intoxicated while on duty. Several minutes later, the employee was involved in the fatal collision. 668 S.W.2d at 308. The Texas Supreme Court held that the supervisor at the employer had performed an affirmative act and ruled that, when an employer exercises control over an employee by affirmative action, the employer has a duty to exercise reasonable care to prevent the employee from causing unreasonable risk to others. 668 S.W.2d at 310-11.
After reviewing the Kansas case law and cases from other jurisdictions concerning § 324A and the duty to third persons for negligent acts of others, we conclude Cooper and Lett did not owe a duty of care to McGee. Cooper and Lett did not take control of Chalfant or intend to; they only agreed to transport Chalfant to his automobile. We hold this does not constitute such an affirmative act as to amount to the exercise of custody or control over Chalfant.
The extent of the undertaking should define the scope of the duty. Here, Cooper and Lett agreed to take Chalfant to his automobile. We find no evidence that Cooper and Lett agreed to do anything further, such as see that he got home. Thus, although Cooper and Lett had knowledge Chalfant was intoxicated, they did not undertake a duty to prevent him from driving. Therefore, Cooper and Lett cannot be held liable for the negligent performance of a task they did not agree to assume.
In addition, we believe the imposition of liability under these facts would be illogical and against public policy. In Ling v. Jan's Liquors, 237 Kan. 629, 640, 703 P.2d 731 (1985), we ruled that, in the absence of legislation, suppliers of alcohol were not liable to the victims of an intoxicated tortfeasor. We determined the imposition of liability under such circumstances was a matter of public policy left to the legislature. Since there is no duty upon a person who supplies liquor to protect others from an intoxicated driver, we refuse to extend the duty to someone who merely transported an intoxicated person to his automobile.
Appellee has failed to establish an essential element of negligence. Summary judgment should have been granted.
The order of the district court denying summary judgment to appellants is reversed. The case is remanded with directions to enter summary judgment for the appellants. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action by the board of park commissioners of the city of Wichita for recovery of ad valorem taxes for the year 1968 paid under protest on a part of the municipal airport and public park land of the city of Wichita, and for injunctive relief from further assessment and taxation. In trial to the court the defendant Sedgwick county taxing officials prevailed and plaintiff has appealed.
In its ruling the trial court made no findings but simply held plaintiff had failed to sustain its burden of proof of exemption from taxation.
Plaintiff as a board of park commissioners is vested with jurisdiction over and control of the city’s airport (K. S. A. 3-114) and its park property (K. S. A. 13-1346, et seq.). The suit, involving a total of sixty-eight separate tracts, is divided into two claims for relief, the subject matter of the first being a part of the municipal airport (tracts 1-28) and the second certain park property (tracts 29-68).
Although each side filed its separate statement as to the facts upon which the case was submitted and tried, there is no substantial factual dispute. We treat first with the municipal airport property. With a single exception each of these twenty-eight tracts had previously been removed from the tax rolls as exempt property by order of the state board of tax appeals (or its predecessor body). In 1968 all were by the appellee taxing authorities placed on the tax rolls and assessed. Appellant subsequently paid the 1968 tax under protest and, pursuant to K. S. A. 79-2005, filed this suit for recovery.
The largest tract, No. 23, consists of approximately 2170 acres of which about 965 acres were placed on the tax rolls. The acreage taxed included land used for various business buildings, hangars and cargo buildings under lease to private persons or agencies. It did not include administrative offices, terminal facilities or runways, taxiways or areas containing the approach lighting. No farming other than for land maintenance was in use at the time in question although apparently some farming had previously been done. The area included future runways under construction, additional taxiways, access roads, sewers and other utilities.
Description and use of the smaller tracts may be summarized. Generally these comprised what are known as clear zone areas under the approach paths of the various runways required by the Federal Aviation Administration. No structures or improvements were permitted. The record is not entirely clear either as to the nature or extent of farming operations carried on but in some instances they consisted of minimum land maintenance performed by park board personnel. In every instance any farming done was for the same purpose of land maintenance in conformity with FAA requirements. Some of the land served as a buffer zone, some contained approach paths for runways under construction and some will house airport equipment.
Appellant park board urges the applicable statute was K. S. A. 13-1406 (since repealed) which provided:
“Lands, buildings, money, debts due the city and all other property and assets belonging to the city shall be exempt from taxation, execution, and sale: Provided, That if any of such lands, buildings, or other property or assets are leased, loaned or otherwise made available to any person, firm or corporation for use in any trade, business or commercial enterprise, such lands, buildings or other property and assets so leased, loaned or otherwise made available shall not be exempt from taxation for and during the term or terms thereof, except that this proviso shall not apply to municipal airports and municipal swimming pools; or city owned property which is temporarily, occasionally or partially leased for the general use or entertainment of the public, or to cafeterias and concession stands in or on city owned property.” (Emphasis supplied.)
Appellant points out the predecessor of this statute was G. S. 1949, 13-1406, which simply stated:
“Lands, buildings, money, debts due the city and all other property and assets belonging to the city shall be exempt from taxation, execution, and sale.”
Under statutes of this character it was held ownership, and not exclusive use, was the test for exemption from taxation of city owned property; also that the power of the legislature to establish exemption of property from taxation was not limited by article 11, section 1, of the state constitution (City of Harper v. Fink, 148 Kan. 278, 80 P. 2d 1080), provided the exemption has a public purpose and is designed to advance the public welfare (State, ex rel., v. Board of Regents, 167 Kan. 587, 207 P. 2d 373).
In 1963 tire statute respecting taxation of property owned by cities of the first class was amended to the form quoted above as K. S. A. 13-1406.
Appellant argues that from the plain language in 13-1406 munici pally owned airport property is not subject to the taxing proviso and is therefore exempt from taxation irrespective of the fact it may be leased, loaned or otherwise made available for commercial enterprise. Appellant points to other statutes applicable to ownership and operation of municipal airports: K.S. A. 3-113 authorizes a city to acquire, operate and maintain an airport and also to acquire such servitudes or easements over surrounding lands as are necessary to provide safe and unobstructed approaches thereto; succeeding provisions empower a city to issue bonds and levy taxes for airport purposes; K. S. A. 3-116 authorizes a city to lease ihe whole or any part of its airport property to private persons for any purpose directly or incidentally and necessarily required for the successful and proper operation of such property; for such leases fair and reasonable compensation is to be paid the city; K. S. A. 79-2925, a part of our budget law, directs that any revenues received from such leasing be paid into the airport operating fund, and further that any profits arising from operation of the airport after payment of operating expenses and establishment of the revolving fund shall be applied to reduce the tax levy for the budgeted fund under which the operation of the airport is financed.
Appellant points out that a large portion of the airport property is open-space land which is necessary for clear zones, instrument landing and take off, and approach and visibility zones as well as serving as buffer zones around the airport. Most of the land is not used for anything other than being reserved for the foregoing which is required by FAA regulations. These regulations permit land maintenance on airports which does not interfere with air traffic and which does not create hazardous conditions. To this end much of the open-space land has been put to agricultural use by appellant rather than permitting weeds to grow, and any revenues derived either from agricultural pursuits or other leasing is paid into the airport operating fund. These revenues go to reduce taxes otherwise required to support such operation (K. S. A. 79-2925); appellant further points out its airport has been self-sustaining so far as the local taxpayer has been concerned in that a tax levy for maintenance and operation of the airport has never been required.
From all the foregoing appellant deduces clear legislative intent that airport land and facilities should not be taxed.
Appellees counter that exclusive use is the test of municipal exemption from taxation and the applicable statute was K. S. A. 1968 Supp. 79-201, which provided in pertinent part:
“That the property described in this section, to the extent herein limited, shall be exempt from taxation:
“Sixth. All property belonging to and used exclusively by the state or any municipality or political subdivision of the state, except lands bid off for counties or cities at tax sales: Provided, That if any of such property is leased, loaned or otherwise made available to any person, firm or corporation for use in any trade, business or commercial enterprise, such property so leased, loaned, or otherwise made available shall not be exempt from taxation, for and during the term or terms thereof, except that this proviso shall not apply to municipal airports, swimming pools, auditoriums, fair buildings and grounds, state buildings, school buildings, or publicly owned park and recreational facilities which are owned by the state, municipality or any political subdivision of the state which are temporarily, occasionally or partially leased for the general use or entertainment of the public, or to cafeterias and concessions in or on property owned by the state, municipality, or political subdivision of the state which are incidental to the public use of the property; . . .”
The reader is alerted to the different treatment accorded municipal airports from that in 13-1406.
In recent years 79-201 has received frequent legislative overhaul. It was amended in 1963, the same year 13-1406 was amended to the form with which we are now concerned, and again in 1965. The interested reader will find the change effected by the 1965 amendment set out in. City of Winfield v. Board of County Commissioners, 205 Kan. 333, 335-336, 469 P. 2d 424, 426-427. Suffice it to say here the 1965 amendment was a departure from similar language used in 13-1406, with respect to municipal airports and swimming pools, which was not so amended during the period in question here.
In City of Arkansas City v. Board of County Commissioners, 197 Kan. 728, 420 P. 2d 1016, a situation was presented which at first blush might appear to be somewhat similar to the case at bar in that the county taxed assets which had been a part of an airport, title to which had reverted to two second class cities. The cities had executed oil and gas leases on the property upon which production was developed. The cities’ one-eighth royalty interest was placed upon the tax rolls pursuant to K. S. A. 79-330 and 79-331. In effect during the period in question was K. S. A. 14-1001 which contained language virtually identical to that in 13-1406, the difference being the former was applicable to second class cities while the latter pertained to first class cities. Roth had undergone the same amendment in 1963. This court approved the assessment and tax levy, holding that the amendment adding the proviso concerning city owned property leased, loaned or otherwise made available in a trade, business or commercial enterprise eliminated ownership as the test of exemption and made use the important factor. The opinion carefully pointed out the parties had stipulated the property in question was not a municipal airport within the purview of any of the enumerated statutory exceptions.
The same airport was again the subject of litigation in City of Winfield v. Board of County Commissioners, supra. This court considered the provisions both of K. S. A. 14-1001 and K. S. A. 1965 Supp. 79-201, Sixth, particularly noting the punctuation of the former with respect to its proviso, but, in view of the facts, found it is unnecessary to reconcile the discrepancies between the two statutes. Taking the view most favorable to the taxing officials by treating the case under 79-201 with its more restricted exemptions, it was held the farming done on the property was merely incidental to its exclusive use as a municipal airport and did not alter the primary use of the premises as a public airport. Tax exemption was sustained.
Our problem here resolves into this: If appellant is correct and 13-1406 applies, municipal airports owned by a city are by plain statutory language excepted from the taxing proviso prescribed therein; if appellees are correct and K. S. A. 1968 Supp. 79-201 applies, then municipally owned property to be exempt must be used exclusively for municipal purposes. The trial court may have taken this latter view; however, we lack the benefit of its reasoning.
Although the question is not wholly free from difficulty because two differing statutes are involved, we are inclined to the view urged by appellant — that 13-1406 was the applicable statute. Our cases are legion that general and special statutes should be read together and harmonized where possible, but to the extent of repugnancy between them the special statute will prevail over the general unless it appears the legislature intended to make the general act controlling (5 Hatcher’s Kansas Digest, rev. ed., Statutes, § 80; 9 West’s Kansas Digest, Statutes § 225K).
K. S. A. 1968 Supp. 79-201 and its predecessors have always been in the nature of general statutes establishing tax exemptions although expanding specificity is apparent. Their application has been to municipally owned property generally. On the other hand 13-1406 was- applicable to property owned by cities of the first class and other statutes specifically authorized such a city’s leasing of airport facilities with disbursement of revenue raised by such activity directed to reduce tax levies under which operation of the airport was financed. We think these are specific in nature and evince legislative intent that municipal airport facilities were not to be taxed, and we so hold. Moreover, we have difficulty conceiving legislative intendment that a tax-supportable activity be subject to ad valorem taxation. As already noted 13-1406 has now been repealed and 79-201, Sixth, has been substantially changed effective January 1, 1970 (Laws, 1969, Chap. 429, §§ 1, 3).
We turn now to the forty separate tracts comprising park property placed on the tax rolls. First, park property owned by cities of the first class is not excepted from the proviso contained in 13-1406 as are airports; hence exemption from taxation of that property depends upon whether it is leased, loaned or otherwise made available to any person, firm or corporation for use in any trade, business or commercial enterprise. If so leased or made available it loses its exempt status and becomes taxable.
Appellant concedes certain tracts are properly taxable and as to them the judgment must be affirmed. These are tract 29 consisting of 9.34 acres under lease to a riding academy; tract 30 consisting of twenty-five acres under lease for farming; and tract 67 consisting of 151.23 acres under lease for farming and upon which a farmhouse was rented as a place of residence.
The remaining tracts were acquired by the city for future park use, mostly under the federal government’s open-space land, urban beautification and historic preservation program (42 USCA § 1500, et seq.). As we understand the stipulations none of the tracts was actually made available to anyone in any trade, business or commercial enterprise and no income deriving from private enterprise appears to have been generated on them. Some were maintained by park or airport personnel on a minimum land maintenance basis. A residence upon one tract near the airport was occupied by the airport manager as required by the park board, being the only such available living quarters; no rent was received. A golf course was under construction on a part of one tract. The primary use of all the tracts remained public in character. The property clearly has not lost its exempt status under 13-1406 for the year in question and it is so held.
By way of cross-appeal appellees raise several questions. They complain of the trial court’s denial of their motion to dismiss because of appellant’s failure to join the state board of tax appeals as a party defendant, contending the board was an indispensable party. In Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, 428 P. 2d 804, we held to the contrary, stating:
“Public officials who determine or review valuation and assessment of property for taxation purposes do not thereby become indispensable, necessary or proper parties defendant in an action to recover taxes paid under protest pursuant to K. S. A. 79-2005.” (Syl. ¶ 3.)
Appellees further contend the trial court had no jurisdiction over the subject matter of the action because appellant made no application to the state board of tax appeals for exemption of the properties in question. They argue that once the assessor has assessed property the county officials have no further authority to undo the assessor’s action and that an owner whose property has been assessed must first exhaust his administrative remedy before resorting to suit. Appellees’ contentions are premised upon a factual misinterpretation. The record reveals that of the 65 tracts whose status is now at issue, appellant had in fact made application to the state board of tax appeals at various times for exemption as to each and, as already indicated, many exemptions had actually been allowed.
More importantly, K. S. A. 79-2005 provides that a taxpayer after paying his taxes under protest shall within thirty days either commence an action for the recovery thereof in some court of competent jurisdiction or file an application with the state board of tax appeals for a hearing on the validity of such protest. We have many times construed this section to mean that which it plainly says — cumulative remedies are authorized and nothing in our law prevents a taxpayer from paying allegedly illegal taxes under protest and then maintaining a judicial action for then-recovery (5 Hatcher’s Kansas Digest, rev. ed., Taxes, § 139; 9 West’s Kansas Digest, Taxation, §543 [1] [2]).
Appellant has also sought declaratory and injunctive relief removing its properties from the tax rolls for the future. Upon oral argument we were told appellant had paid the 1969 taxes under protest and filed a similar suit for recovery and the parties had agreed the result there would be controlled by our decision herein, and that they were still in controversy over the 1970 taxes. In view of the change in our laws effective January 1, 1970, already referred to, we must decline any expression in the nature of declaratory judgment.
Upon direct appeal the judgment is affirmed insofar as tracts 29, 30 and 67 are concerned; as to the remaining tracts it is reversed with directions to enter judgment for appellant for recovery of taxes paid under protest; upon cross-appeal the judgment is affirmed; costs are apportioned two-thirds against appellees and one-third against appellant.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action upon a construction contract for recovery of money for extra work performed. Defendants prevailed upon the theory of accord and satisfaction and plaintiff has appealed. The facts may be briefly stated.
Appellant, Amino Brothers Company, Inc., entered into a written contract with appellee watershed district whereby appellant was to construct an earthen multiple-purpose watershed dam in Chautauqua county, Kansas, on land owned by appellee Quivira Council, Boy Scouts of America, the latter agreeing to pay a portion of the cost because of unique recreational value to be derived from the project.
Appellant commenced construction of the dam, using compacting machines to compress the earth. The dam contained a large concrete draw-down structure. During the course of construction it was feared the use of heavy machinery adjacent to the “green” concrete structure might cause damage, so the parties entered into a contract modification that appellant was to use hand tamping of the earth fill adjacent to the concrete. The amount of extra compensation to be paid appellant because of the increased work of manual tamping was left for later determination after a study of the costs involved.
Appellant completed the job and was paid the amount of the initial agreed contract price which it accepted and concerning which there is no dispute. The watershed district’s contracting officer first allowed the sum of $5,859.70 for the additional work, which amount appellant also received and accepted but in some manner (not revealed by the record) excepted from settlement its claim for the extra work occasioned by the contract modification. Appellant then submitted all its records to the contracting officer, claiming a gross amount of $22,342.96 for the extra work. Several months later the contracting officer decided to allow the additional sum of $2,944.72. Accordingly he wrote appellant the following letter:
“May 27, 1966.
“Amino Brothers Company, Inc.
“1018 South Mill Street
“Kansas City, Kansas 66105
“Gentlemen:
“Attached is the official decision of the Contracting Officer based on Clause 6 of the General Provisions, Contract No. TC-4C-737W. No further action is contemplated by the Watershed District, and this file shall be considered closed as soon as a check in the amount of $2,944.72 in the Decision is forwarded to your firm.”
Later the contracting officer wrote a second letter:
“June 29, 1966.
“Mr. Victor Amino, President
“Amino Brothers Company, Inc.
“1018 South Mill Street
“Kansas City, Kansas, 66105
“Dear Vic:
“I am enclosing a check for an adjustment in the hand tamping operation on Site No. 18-26.
“After a careful study of the hand tamping operation that has been done by Erickson Construction Company on Site No. 11-34, in which the dirt used in the hand tamping operation was very similar to that which was used in your hand tamping operation, I am firmly convinced that you have been paid a price per cubic yard which is adequate for this type of work.”
Enclosed in the letter was the watershed district’s check for $2,944.72, payable to appellant. The face of the check bore the following printed statement:
“This check is in payment of items as per statement following. Endorsement of payee will constitute a receipt in full when check is paid.”
A boxed in space beneath the státement contained this handwritten item: “Increase of cost Boy Scout Dam.”
Appellant endorsed and cashed the check. Approximately eleven months later it filed this suit claiming for the extra work the difference between the $8,804.42 received by it and the sum of $22,342.96. Appellees raised the defense of accord and satisfaction.
Trial commenced before a jury. In addition to the facts already related, the following appeared during the course of testimony given by appellant’s president, Victor Amino, upon cross-examinations:
“Q. Now, the time came, Sir, when after you sent in your letter of December 16, it was obvious that there was still not going to be any agreement between you and the watershed district on the amount you were to be paid, isn’t that right?
“A. I believe that is right.
“Q. And, under the terms of the contract, Mr. Patterson asked you to submit documents and records and figures to him, didn’t he?
“A. I think that we submitted quite a few records to him before this time.
“Q. All right, but again after December 16, he gave you a further opportunity to submit records, didn’t he, Sir?
“A. Probably did; I can’t say for sure because I don’t know off hand without checking into it.
“Q. Well, in any event, all of the records you wanted to submit to him were given him, weren’t they?
“A. Right.
“Mr. Mellor: Mr. Amino, Defendant’s Exhibit No. 25 is a letter you received — at least your company received from Mr. Patterson, is that right?
“A. Right.
“Q. Doesn’t it say in that letter in respect to the controversy between you and the Watershed District about how much additional you were to be paid that the Watershed was going to pay you another $2,944.72 after which the file would be closed, does it say that?
“A. Right.
“Q. All right, Sir.
“A. It says, ‘Shall be considered closed.’
“Mr. Mellor: Mr. Amino, I hand you what has been marked Defendant’s Exhibit No. 12b and ask you to tell the jury what this is, if you know?
“A. That is a check that we received for this amount.
“Q. That is in the exact amount that Mr. Patterson’s letter told you he would send?
“A. Right.
“Q. Following which, he would consider the file closed?
“A. He considered it closed, yes.
“Q. Now, when that check was sent to you, it was sent with another letter, was it not?
“Mr. Mellor: Your Honor, we will offer Defendant’s Exhibit No. 11.
“Mr. Biersmith: No objection.
“The Court: It will be received.
“Mr. Mellor: Mr. Amino, Defendant’s Exhibit No. 11 is the letter that came to you with that check, isn’t it?
“A. Right.
“Q. And, now, you received that check, Mr. Amino, you knew, didn’t you, that Watershed District considered it final payment on this extra work?
“A. It probably did, but we didn’t. I think we still retained our privilege to pursue it further.
“Q. But at the time you received it, you knew they considered the matter closed, didn’t you, Sir?
“A. Right.
“Q. And, you did cash the check, didn’t you, Sir?
“A. Right.”
Appellees thereupon moved that the action be dismissed for the reason appellant’s testimony and the exhibits evidenced an accord and satisfaction. The trial court sustained the motion and rendered judgment for appellees, hence this appeal.
Appellant asserts the trial court erred in ruling as a matter of law that an accord and satisfaction barred its claim, contending the issue should have been determined by the jury. Its argument largely is there was no express statement by appellees that an offer of settlement was made and there was never a meeting of the minds of the parties upon an accord and satisfaction.
Appellant makes the further argument the contracting officer was only carrying out contractually defined duties in forwarding the $2,944.72 check. However, the provisions of the written contract are not in the record before us. At oral argument appellant stated that because of some defect the trial court did not admit the contract into evidence; further, that the contracting officer acted throughout as the ordinary agent of appellees, and from the facts revealed, the case is to be decided under ordinary principles of contract law.
A general definition of accord and satisfaction appears in Lighthouse for the Blind v. Miller, 149 Kan. 165, 86 P. 2d 508:
“An accord is a contract between creditor and debtor for the settlement ■of the claim by some performance other than that which is due. Satisfaction takes place when the accord is performed.” (Syl. f 1.)
In 1 Am. Jur. 2d, Accord and Satisfaction, § 1, p. 301, the general rule is stated thus:
“To constitute an accord and satisfaction there must be an offer in full satisfaction of the obligation, accompanied by such acts and declarations as amount to a condition that if it is accepted, it is to be in full satisfaction, and the condition must be such that the party to whom the offer is made is bound to understand that if he accepts it, he does so subject to the conditions imposed.”
And in the same work, § 18, we find this:
“A creditor to whom remittance is made as payment in full of an unliquidated or disputed claim has the option either of accepting it upon the condition on which it was sent or of rejecting it, and if it clearly appears that the remittance was sent upon the condition that it be accepted in full satisfaction, then failure to reject it will result in an accord and satisfaction. Thus, acceptance and use of a check purporting to be ‘in full,’ or employing words of similar import, or accompanied by a letter to that effect, amounts to an accord and satisfaction of the larger claim of the creditor if that claim is unliquidated or disputed. The moment the creditor indorses and collects the check with knowledge that it is offered in full satisfaction of a disputed •claim, he thereby agrees to the condition and is estopped from denying such agreement. It is then that the minds of the parties meet and the contract of accord and satisfaction becomes complete. It is not necessary to show that the creditor knows the legal effect of his acceptance of the check, and his intent in accepting the check is immaterial, since the mere acceptance will he regarded as assent.
“The fact that a remittance by check purporting to be ‘in full’ is accepted and used does not result in an accord and satisfaction if the claim involved is liquidated and undisputed, under the generally accepted rule that an accord and satisfaction does not result from the part payment of a liquidated and undisputed claim. The creditor is justified in treating the transaction as merely the act of an honest debtor remitting less than is due under a mistake as to the nature of the contract.” (pp. 315-317.)
Thus a distinction is made between claims unliquidated or disputed and those liquidated or undisputed. Our cases recognize this distinction. In Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875, this court stated:
“An accord and satisfaction is the result of an agreement between the parties, and, like all other agreements, must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. If the creditor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor. A simple tender of a “balance’ as shown by an account tendered by the debtor does not carry with it an implication or conclusion that by such tender the debtor paid, or that the creditor agreed to receive, the same in full of the amount due, where there has been no prior disagreement or discussion as to u>hat was actually due." (Emphasis supplied.) (p. 200.)
Where a dispute has arisen a different rule is applied. In Hoop v. Kansas Flour Mills Co., 124 Kan. 769, 262 Pac. 544, this court held:
“Where a creditor and debtor have a dispute as to the amount of a debt, and the debtor remits checks for the amount of what he contends the debt to be, intending such remittance to be in full payment thereof, and the creditor accepts and knowingly retains the amount thus remitted, the legal consequence is that of an accord and satisfaction, notwithstanding the creditor immediately wrote to the debtor stating that he had deposited the checks, indorsed under protest, and that he expected the debtor to pay him the balance claimed by him to be still due from defendant.” (Syl.)
Inasmuch as the case at bar was being tried to a jury, the motion to dismiss was tantamount to, and a more appropriate designation would have been, a motion for directed verdict under K. S. A. 60-250 (a). In considering a ruling sustaining such a motion the evidence, and all inferences that may reasonably be drawn therefrom, must be considered in the light most favorable to the party against whom the motion is directed. Even then, we are forced to the conclusion the check for $2,944.72 was given and accepted under such circumstances as to constitute an accord and satisfaction as a matter of law.
Dispute had arisen. The amount of extra pay had been discussed but remained in disagreement. The contracting officer, after reviewing all material submitted, made his decision and so advised appellant in his May 27, 1966, letter. He specifically stated he contemplated no further action and the file would be considered closed when a check for $2,944.72 was forwarded to appellant. Then in his June 29, 1966, letter enclosing the check he buttressed his decision by calling attention to work of a similar nature which he had studied and by characterizing the amount tendered as adequate pay for the particular type of work. The check bore a notation indicating its endorsement would constitute payment in full.
In his oral testimony appellant’s president clearly indicated that when he received and cashed appellees’ check for $2,944.72 he knew appellees “considered the matter closed”. From all these circumstances he was bound to understand the check was offered only on condition it be taken in full payment of the claim.
While appellees’ motion to dismiss was still under consideration by the trial court, appellant requested permission to offer further evidence consisting of certain testimony contained in a deposition of the contracting officer. Proffer was made of this testimony, to which appellees objected. Evidently the trial court considered the proffered evidence although the record is not entirely clear upon this point. At most the proffered testimony indicated only that appellant had not previously agreed to the settlement figure of $2,944.72. Giving this testimony its full weight, the result of the lawsuit would not be changed as the evidence went only to show dispute or disagreement over price prior to cashing the check. Nor would further testimony respecting Mr. Amino’s particular intention at the time he cashed the check change the result. Any mental reservation he may have had respecting the closure of the matter would be immaterial on the issue of accord and satisfaction. Appellant need not have accepted and cashed the check. The effective way to protest the offer of settlement would have been to decline the check. Not having done so, appellant is estopped to deny settlement of its claim (Burger v. First Nat’l Bank, 124 Kan. 23, 257 Pac. 979).
The trial court’s judgment was correct and it is affirmed.
APPROVED BY THE COURT.
O’Connor, J., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This case grows out of what essentially was a K. S. A. 60-1507 proceeding initiated by the petitioner, Al Young. After a full evidentiary hearing, the district court denied relief, and petitioner has perfected his appeal.
On November 7, 1967, petitioner, with his retained counsel, Paul B. Watson, appeared before the district court of Ness County and entered a plea of guilty to the charge of burglary in the third degree (K. S. A. 21-521). Sentence was duly imposed for a term not to exceed five years in the state penitentiary. The judgment and sentence were challenged by a pro se motion on July 23, 1968. The pleading was inadvertently filed in another case and did not receive the attention of the district court until approximately four months later. Thereupon, present counsel was appointed, a hearing held, and an order entered denying the motion.
Three points are raised for our consideration.
Petitioner contends there was no probable cause for the issuance of a warrant for his arrest. The question was not presented to the district court, and consequently, we will not consider the matter for the first time on appeal. (State v. Blair, 197 Kan. 693, 421 P. 2d 32; Tate v. State, 196 Kan. 435, 411 P. 2d 661.) Even if the point were properly before us, it has no merit. Any irregularity concerning petitioner’s arrest was waived by his plea of guilty. (Stiles v. State, 201 Kan. 387, 440 P. 2d 592.) Moreover, an unlawful arrest does not deprive a court of jurisdiction to try the accused or accept his plea of guilty, nor does it alone invalidate a subsequent conviction. (State v. Addington, 205 Kan. 640, 472 P. 2d 225; Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.)
Petitioner next complains that since the state based its prosecution on a statement given by one Gerald Milner, who had not been properly advised of his constitutional rights, petitioner’s conviction was fatally tainted under the “fruit of the poisonous tree” doctrine. The identical argument was made and rejected in State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99. There we said:
“Where the accused in a criminal proceeding enters a plea of guilty, he cannot be heard to say the ‘confession’ of an accomplice which led to his arrest and the discovery of evidence was illegal.” (Syl. 5.)
Petitioner finally urges that his incarceration in the county jail for forty-five days awaiting trial constituted “mental coercion” and rendered his plea of guilty involuntary. Other than petitioner’s bald assertion, there is nothing in the record to indicate that his plea was coerced in any way. We have held that confinement alone is not sufficient to disturb a trial court’s determination that a plea of guilty was freely and voluntarily made. (Davis v. State, 204 Kan. 372, 461 P. 2d 812; Lee v. State, 204 Kan. 364, 461 P. 2d 794; Knight v. State, 203 Kan. 652, 455 P. 2d 578.) Furthermore, there is no showing that petitioner’s substantial rights were prejudiced by his pretrial confinement. In fact, he was given credit at the time of sentencing for the period spent in jail.
The judgment of the district court denying the motion for post-conviction relief is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant Ray Lee McMillin was tried for the offenses of burglary in the second degree and larceny in connection with the burglary. A jury convicted him of the larceny but was unable to reach a verdict as to the burglary. A previous conviction being shown, he was sentenced for the larceny to confinement for a term of not more than ten years. He now appeals.
Property occupied by the Eagles Lodge in Salina, Kansas, was the subject of the burglary charge, in connection with which the sum of $2,771.43 was allegedly stolen.
The sole question raised upon appeal is the legality of a vehicular search and seizure.
On March 18, 1968, at about 12:30 a. m., a merchant policeman checked the doors of the lodge building, at which time the building had not been broken into; a check at 2:30 a. m. revealed the rear door was locked and in good condition. At 2:55 a. m. another check by a merchant policeman revealed the building had been broken into. The Salina police desk sergeant was immediately notified and a report of the incident was dispatched over the police radio. Meanwhile a cab driver reported he had seen three men running in the alley behind the Eagles building.
At about 3:13 a. m. Saline county Deputy Sheriff Siewert, who had been notified of the burglary, observed a Chevrolet automobile bearing a Wyandotte county, Kansas, license plate about five or six blocks from the scene of the burglary. The vehicle contained four men and was traveling forty miles per hour in a thirty mile per hour zone. Officer Siewert stopped the car and arrested the driver, Bernard Donald Kanan, for speeding. The officer then escorted the vehicle to the police station, arriving about 3:30 a. m. After arrival the other occupants of the vehicle, William Neal Dodson, Bruce LaVem Brooks and appellant McMillin, were arrested for vagrancy. The vehicle was parked in front of the police station and was locked and guarded by police. Detective Wilson of the Salina police department inspected the burglarized premises about 3:20 a. m., observing that fire clay from a broken safe was spread upon the floor. He then went to the police station where he noticed that the four men who had been in the automobile had a white substance on their shoes and pant cuffs similar to the fire clay. Accompanied by Undersheriff Hindman, who was also secretary of the Eagles Lodge, Wilson shone a flashlight through the windows of the locked car which had been driven by Kanan. They observed a cardboard carton sitting in the front of the vehicle. Hindman identified the carton as one belonging to the Eagles Lodge. Appellant and the other three were thereafter booked for burglary. These bookings occurred between 4:15 and 5:15 a. m.
At about 8:00 a. m. on the same morning Officer Wilson filed a written affidavit with a magistate and also gave sworn oral testimony before the magistrate. As a result Wilson obtained a search warrant for the vehicle. At about 8:45 a. m. the automobile was searched at the police garage. Seven cigar boxes containing money and checks identified as coming from the lodge were found in the cardboard carton. Underneath the car seats metal bars and screwdrivers were found. Marks on a broken box in the lodge were shown to have been made by one of the pry bars.
At the trial the incriminating items were received in evidence over appellant’s objection that they were obtained in an unlawful and unconstitutional search and seizure, which complaint is now reasserted.
The command of our federal and state constitutions is the same: The right of the people to be secure in their person and property against unreasonable searches and seizure shall not be violated, and no warrant shall issue but on probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or property to be seized (U. S. Constitution, 4th Amendment; Kansas Bill of Rights §15).
At the time in question our statute (K. S. A. 62-1830) implementing the constitutional mandates provided:
“A warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for and seized and naming or describing the person, place or means of conveyance to he searched. . . .”
The affidavit filed by Officer Wilson to obtain the search warrant recited merely that certain items connected with burglaries or other crimes committed in this state or other states were located in an automobile (describing it) located in front of the Salina police department. Appellant contends, and we must agree, such an affidavit is inadequate to support the issuance of a search warrant. It has long been settled law a mere statement by an officer that he believes or has good grounds to believe contraband or other items subject to seizure are located in a specific vehicle is not sufficient to support the issuance of a search warrant (see, for example, Byars v. United States, 273 U. S. 28, 71 L. Ed. 520, 47 S. Ct. 248 [1927]; Nathanson v. United States, 290 U. S. 41, 78 L. Ed. 159, 54 S. Ct. 11 [1933]; Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 [1964]; United States v. Ventresca, 380 U. S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 [1965]).
In State v. Hart, 200 Kan. 153, 434 P. 2d 999, this court stated:
“. . . before a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; . . . bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.” (p. 162.)
In United States v. Ventresca, supra, the court emphasized that the affidavit requirement interposes an orderly procedure whereby a neutral and detached magistrate can make an informed and deliberate determination on the issue of probable cause.
The affidavit here was conclusory, completely perfunctory in nature and furnished the magistrate no factual basis upon which he could exercise an independent judgment as to whether probable cause existed for the issuance of a search warrant, and, therefore, standing alone, it must be held insufficient to support the warrant.
The officer who obtained the search warrant did make a sworn oral statement before the magistrate prior to the issuance of the warrant. The officer’s testimony on this score upon appellant’s motion to suppress revealed he advised the magistrate of the basis for the statement contained in his affidavit, namely, that he observed a substance on the shoes and pant cuffs of the occupants of the automobile which material appeared similar to that discovered in the burglarized premises and further that Officer Hindman had identified a box in plain view in the automobile as one coming from those premises. However, this sworn oral statement was not reduced to writing before the magistrate and in fact has never been “recorded before the magistrate” as indicated by 62-1830.
We have had no occasion to interpret this statute where there has been a complete failure to record before the magistrate oral testimony offered as probable cause for the issuance of a warrant. Inasmuch as the oral testimony was sworn to and would amply constitute probable cause, the point at issue becomes one of statutory construction rather than of constitutional compliance. The statute has since been amended (Laws 1970, Chap. 129, § 22-2502) and in view of the fact we believe the legality of the search and seizure was proper upon a ground other than the authority of the search warrant, the import of the failure to comply fully with the recording proviso of the statute need not be determined.
The search and seizure may not be upheld as incident to appellant’s arrest. Appellant was arrested for vagrancy at the time he was an occupant of the vehicle. When subsequently arrested for burglary he was in police custody away from the vehicle, which was not searched until several hours after the burglary arrest (see Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881 [1964]).
Agreeable to our constitutions, search may in several instances be legally made without a warrant. It has long been established that automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a house or other building (Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280 [1925]). However, the officer making the search must have probable or reasonable cause to believe he will find evidence pertaining to a crime before beginning the warrantless search.
In State v. Robinson, 203 Kan. 304, 454 P. 2d 527, we stated:
“The authority to search an automobile is not necessarily conditioned upon obtaining a search warrant or upon the right to arrest. It may be dependent on reasonable cause which an officer has for belief that contents of the vehicle offend against the law.” (Syl. ¶ 2.)
In the case at bar the police did not act improperly in escorting the vehicle off the streets to the police station nor in parking it there while the driver and the other occupants were in custody. Prior to the search, the searching officer had seen in the vehicle evidence pertinent to the burglary — the box identified as coming from the lodge. The officer committed no trespass in shining a light into the vehicle nor in observing that which was in plain view to be seen. This act alone did not constitute a search and was not illegal. In State v. Blood, 190 Kan. 812, 378 P. 2d 548, we pointed out:
“It has been held that the eye cannot commit a trespass condemned by the Fourth Amendment. [Citations] Observation of that which is in plain view is not a search.” (p. 819.)
A search implies prying into hidden places for that which is concealed and it is not a search to observe that which is in open view. Looking into a parked car through the windows does not constitute a search, even though it is nighttime and the items can be seen only with the aid of a flashlight (The People v. Exum, 382 Ill. 204, 47 N. E. 2d 56).
In Harris v. United States, 390 U. S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968), the court stated:
“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (p. 236.)
The plain view of the purloined box constituted probable or reasonable cause to search the vehicle for stolen property as well as instrumentalities of the burglary and the subsequent seizure of the challenged items did not unlawfully or unconstitutionally invade appellants right (see United States v. Maroney, 281 F. Supp. 96 [1968], aff’d in United States ex rel. Chambers v. Maroney, 408 F. 2d 1186 [1969, CA 3], aff’d in Chambers v. Maroney, 396 U. S. 900, 26 L. Ed. 2d 419, 90 S. Ct. 1975 [1970], upholding a robbery conviction where a vehicle was seized in the middle of the night and search at the police station without a warrant some time after the arrest of the occupants).
We do not believe the fact the officers had adequate time to procure a valid search warrant (and did in good faith attempt to) vitiated the reasonableness of the search and seizure made. When they entered the automobile they were not embarking on a fishing expedition. Alert police action had already revealed what was there. Our constitutions neither forbid a search and seizure nor require a warrant — they forbid an unreasonable search and seizure and we are not inclined to excise the term unreasonable as used in them. We believe the officers had a continuing right of seizure of law-offending items known to be in the vehicle, so long as the vehicle remained properly in their custody (Chambers v. Maroney, supra).
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion o£ the court was delivered by
Hatcher, C.:
The appellant, Albert Lonzo Cantrell, and Janet Louise Weinman were charged in separate informations of the crime of burglary and larceny in connection with burglary. Their cases were consolidated at their request and they were tried jointly. They were found guilty; separate appeals were taken to this court, and the convictions were sustained. (State v. Cantrell, 201 Kan. 182, 440 P. 2d 580; State v. Weinman, 201 Kan. 190, 440 P. 2d 575.)
At the original trial an agent of the Kansas Bureau of Investigation was permitted to testify concerning a statement made to him by Janet Louise Weinman. The testimony was given with limiting instructions to the effect that it was not to be considered as binding on the appellant and would not be admissible as to the issues regarding him.
At the trial both the appellant and Janet Weinman took the witness stand and testified.
The appellant later filed a proceeding under K. S. A. 60-1507 and has appealed to this court from certain adverse rulings.
Appellant first contends that it was error to permit the agent of the Kansas Bureau of Investigation to testify as to the statements made to him by Janet Weinman because it was hearsay as to appellant and tended to implicate him. Appellant cites Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, and Roberts v. Russell, 392 U. S. 293, 20 L. Ed. 2d 1100, 88 S. Ct. 1921 in support of his contention.
The gist of the ruling in the Bruton case was to the effect that the admission of a codefendant’s confession inculpating the accused violates the accused’s right of cross-examination secured by the confrontation clause of the Sixth Amendment to the Constitution of the United States, notwithstanding instruction to the jury that the co-defendant’s confession must be disregarded in determining the accused’s guilt or innocence.
The court further concluded in the Bruton case that the major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.
In the Roberts case it was held that the rule in the Bruton case was made applicable to the states by the Fourteenth Amendment to the Constitution of the United States and that the ruling should be given retroactive application.
Neither the rule nor the reason for the rule has any application to the facts and circumstances presented for review in the instant case. In the case now before us for consideration the codefendant took the witness stand and gave the complaining defendant full opportunity to cross-examine.
It would appear that where the codefendant who made the statement or confession takes the witness stand, an opportunity to cross-examine exists for the other codefendant and the rule as to the right to confrontation is satisfied. (Rios-Ramirez v. United States, 403 F. 2d 1016; Lipscomb v. State, 5 Md. App. 500, 248 A. 491; People v. Willis, 292 N. Y. S. 2d 298.)
Also on this issue the trial court stated:
“The second and most revealing facet is that every statement allegedly made by Weinman to witness Johnson and testified to by him, was in some form or another testified to by Cantrell in his direct examination and on cross examination. Also defendant Weinman in her direct testimony reiterated substantially what she said to Agent Johnson and to which he testified. When she took the stand, she was fully available to Cantrell for cross examination and impeachment.”
The appellant next complains about the mention of his criminal record in his original trial. This matter was a specific issue raised by the appellant on his original appeal. See State v. Cantrell, 201 Kan. 182, 440 P. 2d 580, and particularly pages 185 to 188 where the court carefully went over this matter in its opinion and meticulously covered such alleged instance of reference to his record.
The appellant is not entitled to use a proceeding under K. S. A. 60-1507 as a substitute for a second appeal. (King v. State, 200 Kan. 461, 436 P. 2d 855.)
The appellant contends that the trial court erred in not permitting appellant to testify in the present proceedings because a transcript of the motion for new trial was not furnished his appointed counsel in the original appeal. There is no showing that a copy of the transcript of the hearing on the motion for new trial was requested. However, it was available to counsel in the present proceeding and was considered by the trial court. The trial court concluded:
“Taking the questions up in the reverse order, nothing was offered by way of explanation or otherwise as to this alleged error. A complete transcript of all proceedings at the trial of movant was apparently furnished to him. Whatever such additional transcript might have shown, he did not request it, or at least the omission to furnish him such was not among the specifications of errors in his appeal to the Supreme Court of Kansas. State v. Cantrell, 201 Kan. 182. This question is deemed abondoned since there was no evidence or argument addressed by movant to such question.”
A proceeding under K. S. A. 60-1507 cannot be used for the purpose of reviewing trial errors which might have been reviewed in the original appeal.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is whether an antenuptial agreement between a decedent and his surviving spouse is void as against public policy.
J. Ben Boxberger of Russell, Kansas, died testate on the 24th day of April, 1968, survived by his widow, Mary K. Boxberger. He had two adult sons and four adult daughters, all of a previous marriage. She had previously been married, had adult children by the previous marriage, and was possessed of an estate left by her prior deceased husband.
The will of J. Ben Boxberger, the decedent, was offered and admitted to probate. The widow’s consent did not appear on the decedent’s will. Upon notification to the widow o£ the admission of the will to probate, she renounced the will and filed her election to take under the laws of intestate succession. Included in her renunciation of the will was a disavowal of an antenuptial agreement executed by the decedent and herself. The antenuptial agreement was attached and contained a statement of her consent to the decedent’s will. She prayed to be permitted to take under the laws of intestacy and that the marriage settlement agreement be held void for fraud, lack of independent advice, lack of knowledge of the decedent’s property and inequity. The executor filed defenses, objections and an answer to the renunciation.
The matter was transferred to the district court and on the foregoing pleadings, together with a stipulation as to the admissibility of certain documentary evidence, the case was tried.
The decision of the district court was confined to a consideration of the antenuptial agreement. Certain evidentiary facts not in dispute were accepted by the trial court in reaching its decision and serve to give the background of this litigation.
J. Ben Boxberger and Mary K. Steinert were a widower and widow in 1955. He was 57 and she was 58 years of age. They had lived in the same community, and both were from farm families. Both had about the same education, she having attended school through the sixth grade and he through the fourth grade. In late 1955 they began to see each other socially and in December, 1955, they discussed marriage. In January, 1956, she accepted a diamond ring after further discussion of marriage, whereupon they executed the antenuptial agreement in question. They were married March 11, 1956, and lived together until J. Ben Boxberger’s death on the 24th day of April, 1968.
In pertinent part the testator’s will contained two provisions relating to Mary, his widow. Paragraph Fourth acknowledged Mary’s ownership of certain furniture in their home in Russell, and in addition he bequeathed to her all his separately owned household goods, furniture, fixtures and the contents of the home.
Paragraph Eighth of the will reads:
“I have heretofore made provision for my wife, Mary K. Boxberger, should she survive me, by deeds executed by us, and in said deeds have reserved the income, use and benefits of the lands included in said deeds, for my wife during her lifetime, and have by these deeds fully complied with all things required to be done by me under the terms of our antenuptial agreement dated March 8, 1956, insofar as said agreement pertains to the establishment of life estates in lands, and have by such deeds made adequate provision for the support and comfort of my wife during the remainder of her lifetime, and therefore make no further provision herein for the benefit of my wife, Mary K. Boxberger.”
The principal remaining bequests and devises were of an eighty-acre tract in Greeley County, Kansas, to four daughters of the testator; the devise of another eighty acres in Greeley County to a son for his life with remainder to his children; and the residuary clause distributing the balance of his estate to his six children, naming them.
The antenuptial agreement referred to in paragraph Eighth, which is the subject of this litigation, provided in part that a marriage was shortly to be solemnized between them; that each owned real estate, interests in real estate and personal property; and then stated:
“And Whereas, the parties desire to contract and agree for the separate ownership and management of their respective properties, and as to the rights and claims of each in and to the property, of the other, upon the termination of such marriage relation — in case of death.” (Emphasis added.)
Further, the parties agreed “in consideration of said intended marriage, the continuance thereof, and the promises and agreements hereinafter contained,” as follows:
“Second Party [J. Ben Boxberger] Agrees:
“1. That on the first day after the solemnization of such marriage between them he will pay to First Party the sum of One Thousand Five Hundred Dollars ($1,500.00) which sum shall become and remain the sole, separate and absolute property of First Party forever.
“2. That if First Party shall survive him as his widow, he will devise to her by his Last Will and Testament for the term of her natural life, or for so long as she shall remain the widow of Second Party, the following described real estate and personal property, to-wit:” (Emphasis added.)
(a) A residence in the city of Russell with oil runs for her life.
(b) Eighty acres in Greeley County, Kansas, the oil runs to be shared with remaindermen.
(c) One hundred sixty acres in Russell County, the oil runs to be shared with remaindermen.
(d) Furniture, fixtures, household goods, etc., in the residence set out at (a) above.
(The legal descriptions of the foregoing properties here involved are omitted for the purpose of brevity.)
3. The decedent disclaimed all interest in the present or future acquired property of Mary.
The first party (Mary) agreed:
1. To disclaim any interest in the decedent’s present or future acquired property except as provided above.
2. To consent to decedent’s will, when required, if the will made the provision set out above for her, or if she failed or refused to do so then her execution of the antenuptial agreement was to constitute her consent.
Both agreed that each would be independent of the other regarding the property of the other, consistent with the agreement, then owned or later acquired, as if the proposed marriage had not taken place.
Both agreed that on the death of either of them the survivor would not have, and would not assert, any claim, interest, estate or title under the laws of Kansas because of survivorship in the realty or personalty of the decedent, including the rights granted under the laws of descent and distribution and the homestead and surviving spouse allowances. The survivor relinguished all interest, distributive share, estate or title in the property of the decedent and agreed upon demand to execute the necessary releases or disclaimers. Each agreed to execute deeds or conveyances or other instruments at the request of the other during the marriage.
Each agreed that the antenuptial agreement, signed and witnessed, should be deemed to be an adequate, full and complete consent to the will of the other.
This agreement was dated March 8, 1956, was signed by the parties and was witnessed the same date.
A supplement to the antenuptial agreement dated March 9, 1956, relating to the payment of taxes on the lands to be devised to the intended wife during the administration of the husband’s estate and thereafter, was executed by the parties and witnessed by the same persons who, witnessed the execution of the original agreement.
It is unnecessary for purposes of our decision herein to set forth the numerous grounds upon which the appellee attacked the will of the decedent and the antenuptial agreement. Among them was a charge of fraud.
The executor objected to the renunciation of the antenuptial agreement, contending it was a valid binding agreement, and among other things, that the parties during the decedent’s life recognized the existence and validity of the agreement, separately managed then- properties, gave effect to the agreement and acted in reliance, and not in derogation thereof. The executor also alleged the decedent, during his life, fully performed the antenuptial agreement and it was an executed, not executory, agreement.
The parties stipulated as to various exhibits consisting of documentary evidence. Among them was a canceled check showing the payment of $1,500 cash by the decedent to the appellee; the conveyance of a life estate in three parcels of real estate owned by the decedent to the appellee, and seven deeds joined in by the appellee, conveying real estate owned by the decedent to his various children. The parties did not, however, stipulate to the competency and materiality of these exhibits as to the issues in the case.
The district court heard considerable evidence. Approximately one hundred pages of testimony are presented in the record on appeal to this court pertaining to the various allegations set forth by the appellee attacking the antenuptial agreement. The trial court in making its decision announced that it had considered the stipulations and all of the evidence and the entire record of the case, and then made “the following findings, rulings and judgment from the evidence and the record in the case.
“No. 1
“The written stipulations executed by counsel on both sides and filed October 9, 1968, is made a part of the Court’s findings.
“No. 2
“There are two central issues for the Court’s determination:
“(a) Do the terms of the ante-nuptial agreement (Defendant’s exhibit No. 1) encourage acts to cause separation of the parties to the marriage, and act to cause divorce, thus rendering the ante-nuptial agreement invalid and unenforceable as against public policy? See Neddo v. Neddo, 56 Kan. 507, which is cited and discussed with approval in numerous cases since, and including 154 Kan. 546, and page 552, and as late as In re Estate of Cooper, 195 Kan. 174 at page 179.
“(h) Was the ante-nuptial agreement, (Defendant’s exhibit No. 1) fairly and understandably made, just and equitable in its provisions, and not obtained by fraud or over-reaching? See In re Estate of Cantrell, 154 Kan. 546.
“No. 3
“With reference to the first question at issue, the ante-nuptial agreement on page one states:
“‘Second Party (J. Ben Boxberger) Agrees:
“ ‘That if First Party (plaintiff) shall survive him as his widow, he will devise to her by last will and testament for the term of her natural life . . . etc,’
and then proceeds to set out the gifts to the First. Party Mary K. Boxberger. Thus all of the gifts by the Second Party except $1,500.00 in the ante-nuptial agreement are subject to, and are conditioned upon this provision, namely, that she not divorce him. This provision which is a central and substantial pecuniary gain to the Second Party, J. Ben Boxberger, in a divorce by his wife; and creates an incentive to cause a divorce. The Court finds this provision in the ante-nuptial agreement renders the contract void and unenforceable and against public policy from its beginning. Although divorce did not occur, there is evidence the contract was the occasion of considerable marital difficulty.
“Because of this finding the question (b) in the issues mentioned above is moot.
“No. 4
“The ante-nuptial agreement (defendant’s exhibit 1) being void and unenforceable, is not a bar to an election by plaintiff to renounce the decedent’s will and take under the laws of Kansas pertaining to descent and distribution.
“No. 5
“The Court finds that the election of plaintiff, Mary K. Boxberger, to take under the laws of Kansas of intestate succession and not under the will of her deceased husband, J. Ben Boxberger, should be allowed.”
Judgment was entered by the trial court in accordance with its findings.
The trial court’s finding that the terms of the antenuptial agreement encourage acts to cause separation of the parties to the marriage and act to cause divorce, thus rendering the antenuptial agreement invalid and unenforceable as against public policy, narrows the issue on appeal.
To determine whether the trial court was correct in its decision on that issue it must be assumed the antenuptial agreement was properly executed, that it was the agreement of the parties, that it was in the form they desired it to be, and was in fact their complete agreement.
In our opinion the trial court’s conclusion that the antenuptial agreement is void on the ground it “creates an incentive to cause a divorce” is erroneous. The trial court’s reasoning was based upon the proposition that the consideration of J. Ben Boxberger, except for the $1,500 in the antenuptial agreement, was subject to and conditioned upon the proviso that “she not divorce him.” There is absolutely nothing in the antenuptial agreement pertaining to divorce and there is no ambiguity in the contract. The parties contracted with respect to their properties, “upon the termination of such marriage relationship in case of death.” This was the primary proviso for the entire contract. The clause subsequently used in the contract — “if First Party shall survive him as his widow, he will devise to her by his Last Will and Testament for the term of her natural life” — is consistent with the foregoing premise in the contract. The operative words relating to the devise by the decedent are “if First Party [Mary] shall survive him as his widow.”
The only limiting words in the agreement are that Mary survive the decedent as his widow. On the facts of this case she did survive him. Ambiguity results from the use of words capable of two or more meanings. An agreement conditioned upon a single fact, survival as widow, means just one thing — that the parties be married at the death of the husband. On the facts of this case they were married upon the death of J. Ben Boxberger.
The trial court’s conclusion that the agreement of the parties would control a settlement of their property rights in the event of divorce, and that the decedent had a substantial pecuniary benefit in the procurement of a divorce, is unfounded. The parties to the antenuptial agreement here in question made no agreement whatever concerning property rights in the event of divorce. The only logical construction of the contract is that the property rights of the parties would be determined by the court in a divorce proceeding without reference to the agreement, since it dealt only with property rights in the event of death. The contract created no obligation or undertaking for either party in the event of divorce. Neither party agreed to do, or not to do, any act, nor did either party waive any right in the event of a divorce.
Generally speaking, antenuptial contracts are not against public policy. The leading case in Kansas is Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537. The court there said:
“It would seem from the authorities, that agreements of this kind are generally looked upon by the courts with favor, and are to be liberally interpreted with a view of carrying out the intentions of the persons engaging in them. . . .” (p.459.)
This rule has continued in a long and unbroken line of cases, and has been expressed recently in the case of In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286. That case grew out of an attempt by the surviving spouse of the decedent to void the enforcement of an antenuptial agreement. The applicable rules of construction were there discussed by the court as follows:
“If a contract is clear and unambiguous, which we believe this agreement is, the terms thereof must be construed in such manner as to give effect to the intention of the parties at the time they entered into the contract, and this must be determined from the four corners of the instrument itself. (Wiles v. Wiles, 202 Kan. 613, 452 P. 2d 271; Kittel v. Krause, 185 Kan. 681, 347 P. 2d 269.) Words cannot be read into the agreement which impart an intent wholly unexpressed when it was executed. (Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 452 P. 2d 279.) The result is that where, as here, there is no fraud or mutual mistake, a plain and unambiguous written contract must be enforced according to its terms, and the rights of the parties are governed by the terms of the contract without the aid of parol evidence. (See, In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443.)” (pp. 689, 690.)
The trial court’s consideration of testimony showing discord betvveen the parties to the agreement in deciding the antenuptial agreement to be invalid was unwarranted. (In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443.) The trial court’s decision, however, makes it clear that the evidence directed to the issues raised by the pleadings was not considered. This is indicated by the trial court’s acknowledgment that the issues stated in its finding No. 2 (b) were moot.
The antenuptial agreements in Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1, and In re Estate of Cooper, 195 Kan. 174, 403 P. 2d 984, are in no way similar to the antenuptial agreement here under consideration. These cases are entirely dissimilar factually.
Counsel for the appellee argues the contract here is under attack on the grounds that it was contrary to public policy, and in arriving at the answer to this question the court is bound by all the evidence surrounding and attending the execution of such written contract. (Citing In re Estate of Garden, 158 Kan. 554, 148 P. 2d 745.)
In this respect counsel for the appellee has confused the two central issues recognized by the trial court in its finding No. 2.
The Garden case holds that “Parol evidence is admissible to show the facts and circumstances under which the antenuptial agreement and the will were executed.” (Syl. f 2.) This rule must be interpreted in the light of the facts which gave rise to its pronouncement. There the issue to be determined by the court was: What was the antenuptial agreement? The antenuptial pact and the antenuptial will were executed by the contracting parties before their marriage. After the marriage the husband made another will which varied materially from the one he had executed on the eve of his marriage. On the issue presented the court held it was proper to hear parol evidence concerning the circumstances under which the two documents were executed; and that the antenuptial pact and the antenuptial will should be read and construed together as complementary instruments constituting but one agreement of the betrothed parties.
In the instant case the issue determined by the trial court neces-. sarily assumed the antenuptial agreement, embraced in one document and admitted by both parties, was the complete agreement between the parties. Under these circumstances the rule in Garden has no application.
Here, having determined that it was improper to resort to extrinsic evidence to interpret the unambiguous antenuptial contract, and that the antenuptial contract was not void as against public policy, the trial court should have given full consideration to the issues raised by the pleadings, the evidence pertaining thereto, and made findings and conclusions based on such issues. These were the issues the trial court found to be moot.
In view of our determination that the antenuptial agreement was not void as against public policy, the trial court must be reversed and the case remanded for a new trial to determine the issues raised by the pleadings.
By reason of the judicial redistrictmg in Kansas, effective January 13, 1969, (L. 1968, Ch. 385; K.S.A. 1970 Supp. 4-221) the district court of Russell County has been transferred from the Twenty-third Judicial District to the Twentieth Judicial District of Kansas. It is directed that the issues to be determined on remand of this case be heard by a trial judge of the Twentieth Judicial District presently charged with the determination of cases in Russell County.
The judgment of the lower court is reversed and the case is remanded for further proceedings in accordance with the foregoing opinion. | [
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The opinion of the court was delivered by
Fromme, J.:
James Adolphus Boyd was tried and convicted on three counts of robbery in the first degree, on one count of kidnapping and on one count of rape. The victims of these crimes were employees of the Granada Theater in Kansas City. Defendant Boyd appeals and specifies alleged trial errors as bases for reversal.
Defendant attacks the sufficiency of the evidence to sustain the charges.
We will summarize the testimony of the three victims who testified at the trial. The last show at the Granada Theater began at ten o’clock p. m. on January 2, 1969. David Harris, an employee at the theater, was working in the outside hall when he was grabbed from behind and a sharp object was placed against his back. His assailant demanded to be taken to the “boss man”. Harris led his assailant up a flight of stairs toward the business office. At the top of the stairs Harris was positioned with his back to a wall, a knife was placed against his chest and he was relieved of his watch and money. The defendant then placed the knife against the back of Harris’ neck and marched Harris into the office. William Foster and a young lady were working in the office when defendant and Harris entered. Foster and the young lady were relieved of their pocket money by the defendant. Harris, Foster and the young lady were then herded downstairs to the box office. Defendant demanded that Foster open the safe. Foster complied and defendant obtained a sack of money from the safe. Harris and Foster were forced to sit on the floor. Defendant took the young lady hostage at knife point. She was taken some distance from the theater, down an embankment, up an alley and between two houses. She was threatened with death, made to disrobe, lie on the ground and have sexual intercourse with her assailant. An hour elapsed before defendant told her to straighten her clothes and leave. The young lady ran wildly into the street and continued to run from her assailant until she was stopped by a police officer.
The man wielding the knife did not attempt to disguise himself during the robberies, kidnapping and rape. He was viewed continuously at close quarters in good light by each of his three victims. The defendant was positively identified at the. trial by all three victims. The state’s evidence at the trial, if believed by the jury, was sufficient to sustain the charges.
However, defendant testified he was at the home of a friend when the crimes were committed. He went there to practice his singing as a member of a choral group. No other member of the choral group showed up that night. Defendant’s friend, Melvin Lee, corroborated defendant’s story. Thus the jury was given two irreconcilable stories, only one of which they could believe.
In a criminal prosecution it is the function of the jury, subject to the approval of the trial court, to determine what facts are established by the evidence. Before a verdict which has been approved by the trial court can be set aside on appeal because of insufficiency of the evidence it must be made to appear that upon no hypothesis is there sufficient substantial evidence to support the conclusion reached in the trial court. (State v. Scoggins, 199 Kan. 108, 427 P. 2d 603; State v. Satterfield, 202 Kan. 391, 449 P. 2d 564.)
It is apparent from the verdicts reached in this case that the jury simply did not believe defendant’s story. The jury accepted the evidence introduced by the state to prove these crimes and there was substantial evidence to support the verdicts on all counts.
Defendant next argues it was error for the trial court to approve the verdict because the jury only deliberated an hour and a half. A similar claim was made in State v. Lee 201 Kan. 177, 440 P. 2d 562, when a jury reached a verdict in forty-nine minutes. In Lee we pointed out that it is common knowledge among judges and lawyers that juries have reached unimpeachable verdicts within less time.
The length of time the jury deliberated before reaching a verdict is not basis for reversal on appeal. The defendant’s argument on this point is wholly without merit.
Defendant contends the trial court erred in denying his request for a continuance to allow sufficient time for a corrective operation on defendant’s arm before trial.
After defendant was bound over for trial he escaped from jail. Several days later he was apprehended during a holdup in a shoe store, where he had been shot in the arm. He received medical attention and was returned to jail. This was in March. On June 2 defendant’s attorney answered the call of the docket and the case was set for trial beginning June 23. There was no objection. On June 4 the case was re-scheduled for trial beginning June 17 because of conflicts on the 23rd. A motion for continuance was filed.
Some argument was made on the motion for continuance that defendant lacked time to prepare for trial. However, defendant had obtained his attorney prior to the preliminary hearing on February 6. This was four months before the day set for trial. The motion for continuance was overruled a week before trial was scheduled to begin. Defendant does not explain how he was prejudiced in his defense by lack of time.
The main thrust of his argument on this point is directed toward his need of a corrective operation on his arm, injured during the holdup of the shoe store. Continuance was requested to delay the trial another four months until the September term of court. The record indicates no immediate need for this corrective operation. It was admitted by defendant’s attorney that the doctor in charge had advised him there would be no physical harm to defendant if the operation was scheduled after the trial. The court was advised that defendant was taking no medication of a sedative nature. There was no contention made that defendant’s physical condition prevented him from taking part and assisting in the defense of his case.
The granting or denial of a continuance in a criminal prosecution is a matter which lies within the sound judicial discretion of the trial court and its ruling thereon will not be disturbed in the absence of a showing that there has been an abuse of discretion which substantially prejudiced defendant’s rights. (State v. Adamson, 197 Kan. 486, 419 P. 2d 860; State v. Kimmel, 202 Kan. 303, 448 P. 2d 19.)
Under the circumstances related we find no substantial prejudice to defendant’s rights and the trial court’s denial of the continuance did not constitute an abuse of discretion.
Defendant’s final argument is two pronged. He states he was denied the right to have counsel present at a lineup and that subsequent identifications in court were not admissible when based upon a constitutionally defective lineup.
In making these arguments defendant attempts to fit the facts of his case within the Wade-Gilbert pronouncement of the United States Supreme Court. However, the record before us does not support his contentions. Prior to the lineup in the present case defendant was advised, orally and in writing, of his right to have counsel present at the lineup. No attorney was requested by defendant and he voluntarily waived this right. The trial court, outside the presence of the jury, held a hearing and heard testimony bearing upon the legality of the pre-trial lineup and upon the voluntary nature of defendant’s waiver of counsel. When trial resumed the identifications of the defendant were made by the witnesses without contemporaneous objection by the defendant.
When a defendant makes no contemporaneous objection to an in-court identification such action is considered a part of defense strategy and he is precluded from raising the question of admissibility on appeal. (State v. Sanders, 202 Kan. 551, Syl. ¶ 1, 451 P. 2d 148.)
If there is substantial evidence in the record which identifies and connects the defendant with the crimes charged and which indicates the in-court identifications had a source entirely independent of the pre-trial lineup lack of counsel at the pre-trial identification does not deny defendant due process of law. (State v. Sanders, supra; State v. Yurk, 203 Kan. 629, 632, 456 P. 2d 11.)
The record shows the in-court identifications in this case were based upon a recognition of the defendant gained by the witnesses from confrontation with defendant during the period of time he was engaged in committing these crimes. These identifications had a source entirely independent of the pre-trial lineup.
After examining the entire record we conclude there was no error committed during appellant’s trial and the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein the defendant was found guilty by a jury of grand larceny for stealing an automobile contrary to K. S. A. 21-533, and sentenced to the state penitentiary for a term of not less than ten years nor more than thirty years, pursuant to K. S. A. 21-534 and K. S. A. 21-107a as modified by K. S. A. 1967 Supp. 62-2239.
The appellant contends the trial court erred in the giving of instructions and in the refusal to provide him with a transcript of a preliminary hearing after his appeal was perfected to this court.
On the 4th day of December, 1968, Joe C. Herrman, a salesman for the O’Mara Motor Company in Hutchinson, Reno County, Kansas, was approached by Chester Leroy Serviora (defendant-appellant) on the O’Mara used car lot. There was a brief conversation between the salesman and the appellant, wherein the salesman was informed the appellant wanted to buy an automobile. The salesman left the appellant telling him he would return as soon as he had completed the business he was then negotiating with other customers. In the conversation the appellant had identified a particular automobile (the one here in question) and had expressed an interest in it. When the salesman returned from his business with the other customers, the automobile in question and the appellant were missing.
The appellant was subsequently arrested in Chase County near Cottonwood Falls in the exclusive possession of the vehicle in question and was thereupon taken to the jail in Cottonwood Falls where he was confined and held for the Reno County authorities.
On the 20th day of December, 1968, the appellant was brought before the magistrate court in Hutchinson for a preliminary hearing on a complaint filed by the state. However, at that preliminary hearing the case was dismissed and the appellant discharged by the magistrate court because there was some confusion as to the serial number of the automobile which the appellant was found to be driving, some eight hours after the theft, and the serial number of the automobile missing from the used car lot.
Thereafter the state filed a second complaint and the appellant was given a second preliminary hearing on the 17fh day of February, 1969, at which time the appellant was bound over to the district court for trial.
The salesman, Mr. Herrman, at the second preliminary hearing and at the trial of the appellant, elaborated upon the testimony which he had previously given at the first preliminary hearing.
A clerk-secretary was present at the first preliminary hearing and took shorthand notes, although she was not a certified shorthand reporter. Prior to the appeal of this case by the appellant, there was never a request by the appellant or the state for a transcript to be made of the testimony taken at the first preliminary hearing. However, the state did order a transcript of the second preliminary hearing and voluntarily provided the appellant with a copy of it without request by the appellant. The appellant makes no point concerning the transcript of the second preliminary hearing on appeal to this court, and any further reference thereto is inconsequential.
When the appellant’s case was tried before a jury on the 28th day of April, 1969, he was represented by court-appointed counsel who had previously represented him in both the first and second preliminary hearings. The salesman, Mr. Herrman, was thoroughly cross-examined by counsel for the appellant concerning testimony given by him at the first preliminary hearing. In doing so, counsel for the appellant used notes which he had made at the first preliminary hearing in the cross-examination and confronted Mr. Herrman with these statements. Over the state’s objection the trial court permitted counsel for the appellant to cross-examine Mr. Herrman from the notes which he had taken, thereby granting the appellant considerable leeway in his defense to cross-examine on the basis of notes taken by the appellant’s counsel. These notes were never admitted in evidence. As a result counsel for the appellant had an opportunity to completely and fully bring to the attention of the jury the previous statements Mr. Herrman had made at the first preliminary hearing, which the appellant contends were inconsistent, thereby giving the jury an opportunity to weigh the credibility of the witness, Mr. Herrman.
It was not until the 21st day of November, 1969, after the appellant had been convicted, sentenced and his notice of appeal perfected, that the appellant filed a petition pro se for writ of mandamus seeking a copy of the transcript of the first preliminary hearing as a part of the record for appellate review. This was denied by the trial court. Subsequently counsel appointed for the appellant to represent him on appeal made a similar oral request of the court for a transcript of the first preliminary hearing which was denied by the trial court on the 16th day of July, 1970.
It is the appellant’s contention the trial court erred in failing to grant the appellant’s motion for a transcript of his first preliminary hearing.
Without such transcript, the appellant argues, he is unable to present to the appellate court the issue on appeal disclosing that the state’s principal witness, Mr. Herrman, committed perjury at the trial.
He argues that at the trial the witness testified he saw the appellant enter and start the stolen car shortly before the time the vehicle was noticed missing from the O’Mara Motor Company.
The appellant maintains Mr. Herrman testified unequivocally at the first preliminary hearing that he at no time saw the appellant enter or start the car, and that he did not even see the appellant again after first encountering him in the office of the O’Mara used car lot. The appellant maintains a comparison of the transcript of the first preliminary hearing with the transcript of the trial would show beyond doubt that perjury was committed as he alleged. The appellant says because of his indigence he has been unable to have the transcript of his first preliminary hearing prepared, and the trial court twice denied the motions by him to have it prepared and furnished to him at public expense.
The appellant relies upon Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585; Eskridge v. Washington Prison Bd., 357 U. S. 214, 2 L. Ed. 2d 1269, 78 S. Ct. 1061; and Draper v. Washington, 372 U. S. 487, 9 L. Ed. 2d 899, 83 S. Ct. 774, for the proposition that an indigent defendant has a constitutional right to a transcript of his trial proceedings for the purpose of an appeal.
In his brief counsel for the appellant says:
“. . . the question as to whether or not he also has a right to a transcript of his preliminary hearing for the purpose of an appeal, and whether lack of such transcript will violate his rights to equal protection under the laws and to due process, is an unsettled question at this time. However, as we shall see, the rationale behind United States Supreme Court decisions and the rights of an indigent defendant in analogous situations lead to the conclusion that an indigent defendant does indeed have a right to a transcript of his preliminary hearing where necessary to assure an adequate appeal.”
Under all of the facts and circumstances presented by the record here on appeal, we fail to see merit in the appellant’s arguments on the point in question for the following reasons:
Here the record discloses neither the appellant nor his counsel at any time made a request for a copy of the transcript of the first preliminary hearing prior to the trial of the case. No request was made during the trial, and furthermore, the question was not raised on the motion for a new trial. The first request for such transcript was made on November 21, 1969, after the appeal from the appellant’s conviction had been perfected to the Supreme Court. The appeal was filed on June 5, 1969.
The appellant was given a copy of the transcript of the second preliminary hearing prior to his trial and without request. Undoubtedly, he would have received a copy of the first preliminary hearing had a request for it been made prior to the trial. The appellant’s argument concerning perjury is valid only if the identical issue on the same facts could be brought to the attention of this court by a defendant who is not indigent. Here the issue the appellant attempts to assert is not a matter of appellate review even for a person with the financial means to secure a copy of the transcript for himself.
The credibility of a witness is a question of fact for the jury. The jury, making this determination of fact, is at liberty to disregard the entire testimony of any witness it feels has knowingly or willfully testified falsely to any material matter, and the jury in this case was so instructed by the court’s instruction No. 11. The issue is not an appropriate one for appellate review. (Griffin v. Price, 199 Kan. 649, 433 P. 2d 464; and King v. Robbins, 201 Kan. 748, 443 P. 2d 308.)
Here the appellant’s court-appointed counsel who represented him at the trial was present at the first preliminary hearing, made notes concerning the testimony of Mr. Herrman, was permitted to cross-examine Mr. Herrman at the trial before the jury concerning previous statements made by Mr. Herrman which the appellant contends were inconsistent with his testimony at the trial. Mr. Herrman conceded the statements made at the first preliminary hearing were made as charged by appellant’s counsel on cross-examination, but proceeded to explain them to show they were consistent with his testimony at the trial. The jury had the whole matter before it.
The appellant challenges two “additional” instructions given by the Rial court to the jury after the case was submitted to the jury.
At the trial after both parties rested their case, counsel for the state requested an instruction covering the unexplained possession of property recently stolen, and the court assured counsel such instruction would be included in the instructions given to the jury without the necessity of filing a proposed instruction. However, when the jury was instructed the requested instruction was omitted, and over objection by counsel for the state the case was submitted to the jury. When the jury had deliberated for a period of approximately an hour the jurors were sent home for the night. Upon their return the following morning, the trial court had reconsidered the state’s request for an instruction on the unexplained possession of property recently stolen, stating that such instruction was inadvertently omitted from the instructions previously given by the court. The trial court then gave the instruction as additional instruction No. 1. It was in writing, and was read to the jury, covering the unexplained possession of property recently stolen in substantial compliance with the law as set out in State v. Oswald, 197 Kan. 251, 417 P. 2d 261; and State v. Brown, 203 Kan. 884, 457 P. 2d 130.
The only objection made by counsel for the appellant at the trial concerning the foregoing instruction pertained to the time at which this instruction was given. Counsel for the appellant argued at the trial the giving of additional instruction No. 1 to the jury, after it had commenced deliberations, called undue attention of the jury to this particular instruction.
Apparently the appellant has abandoned this theory because it is neither argued nor briefed on appeal. Instead he makes a technical challenge to the substance of the instruction.
After additional instruction No. 1 was given, all instructions, being written in form, were taken to the jury room by the jurors. Among the instructions was No. 14, which instructed the jurors not to select any particular instruction given as being the law applicable to the case and decide it upon that alone, but to consider all the instructions together and determine the case from all the instructions given.
It is said in 53 Am. Jur., Trial, § 941, p. 667:
“In the absence of any statutory prohibition, the trial court may, after submission of a cause to the jury, on its own motion or on request of counsel, recall the jury and give them additional or further instructions on the law of the case when the ends of justice and the circumstances of the case require that this be done. Such power is inherent in the court, and is not abridged or limited by a statute authorizing the jury to ask further instructions. . . .”
It has been held the trial court may exercise wide discretion in the matter of charging the jury, and may of its own motion recall the jury and give it additional instructions. (Underwood v. Fosha, 96 Kan. 240, 150 Pac. 571; and see Bray v. Railway Co., 111 Kan. 60, 205 Pac. 1112.)
Here the appellant is in no position to complain of the inadequacy of additional instruction No. 1 on a technical matter where he has made no objection to it, and made no request for a more complete instruction. (State v. Turner, 114 Kan. 721, 220 Pac. 254; State v. Ward, 199 Kan. 23, 427 P. 2d 586; and State v. Hamilton, 185 Kan. 101, 340 P. 2d 390, cert. denied 361 U. S. 920, 4 L. Ed. 2d 188, 80 S. Ct. 265.)
Technical objections to the trial court’s instructions will not be considered when first raised in the appellate court. (State v. Joseph Little, 201 Kan. 101, 439 P. 2d 383.)
While the jury was deliberating in this case it submitted a question to the trial court asking for further clarification of the court’s instructions — for definitions of “permanent” and “temporary” de privation to make the distinction between felony and misdemeanor cases. The trial court then gave the jury “Additional Instruction No. 2,” defining what was meant by the permanent deprivation of property and the temporary deprivation of property, as those terms had been used in the instructions given to the jury.
Appellant’s counsel objected “generally to the offering of additional instruction No. 2 and more particularly to the second paragraph of this instruction in the reading as follows: ‘. . . and then return it to the owner’. This should be omitted.”
The second paragraph of additional instruction No. 2 reads:
“The talcing of property without permission by one who intends to use it temporarily and then return it to the owner, deprives the owner of temporary possession.”
On appeal a technical objection is raised for the first time concerning the definition of permanent deprivation of property. This point is not properly before the appellate court for the reasons heretofore stated.
On appeal the appellant has abandoned the objections raised in the trial court to the giving of additional instruction No. 2.
It cannot be said additional instruction No. 2 as given to the jury is clearly erroneous. (K. S. A. 60-251 [b].)
Considering all the instructions given to the jury, it cannot be said the jury was misinformed as to the law in this case, and it cannot be said on the basis of the record here presented the jury was misled by the additional instructions given to the prejudice of the appellant’s rights.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal follows a conviction in a criminal prosecution.
•Bill Neer was arrested on a warrant charging him with breaking into a building in the nighttime and stealing thirty bushels of wheat. He waived a preliminary hearing and was bound over for trial in the disti’ict court. In that court an information was filed charging him with willfully, unlawfully and feloniously breaking into a building, in the nighttime, where valuable goods and merchandise were kept and taking, stealing and carrying away thirty bushels of wheat, the property of Ed Gaskel.
On November 14, 1949, the opening day of the term, the trial court inquired whether Neer had an attorney or was able to employ one and upon negative answers being given the court appointed an attorney for him and set the trial for December 1, 1949.
When the cause came on for trial on that day the defendant, through his counsel, entered a plea of guilty, and the court, addressing the defendant personally, asked if it was his desire to plead guilty to burglary and larceny as charged, to which the defendant answered in the affirmative, and he answered “No, sir” to a later question whether he knew of any reason why the court should not pronounce sentence, and thereafter he was sentenced to the state penitentiary for not to exceed ten years on the charge of burglary and five years on the charge of larceny, the sentences to run concurrently. It is here noted that the defendant did not indicate or announce to the trial court any desire to file a motion for a new trial and none was filed.
On December 9, 1949, the defendant, through another attorney, filed a document entitled “Motion to set aside judgment and motion for new trial.” The gist of the motion is that Neer moved that the trial and judgment of December 1, 1949, be set aside for the reason that he had not been properly informed of his rights by the attorney appointed for him; that he was advised he would receive a sentence requiring him to serve not over one year and that he might as well plead guilty as he admitted the larceny and the sentence would be the same, whereas in fact he entered a plea of guilty to a greater degree of crime in pleading guilty to burglary in the second degree; that he was not guilty of burglary and was entitled to a trial upon that charge; that the sentence imposed upon him was improper and illegal; that the pleadings do not set out the statute or statutes under which he was charged or sentenced; that he was deprived of his right to representation by failure of his appointed attorney to properly advise him of his rights so that he would understand the crime or crimes of which he was charged with committing; that the information failed to charge a crime under the laws of the state and should have been quashed for that reason; and that he pleaded guilty to and was sentenced for a crime with which he was not charged. If this motion was ever ruled on by the trial court, the abstracts do not disclose the ruling.
On December 10, 1949, the defendant served notice of appeal to this court from that part of the judgment of the trial court sentencing him to the state penitentiary and from no other ruling.
In this court appellant specifies error in five particulars: (1) Imposition of two separate sentences under one count, thus putting him in double jeopardy. (2) Imposition of sentence for burglary when no such charge was properly made in the information. (3) Failure of the court to include in the record under what statute sentence was imposed as required by G. S. 1947 Supp. 62-1516. (4) Imposition of an improper sentence contrary to law. (5) Failure of the court to sustain his motion to set aside the judgment and for a new trial.
The state moves that the appeal be dismissed for the reason that defendant, before sentence, did not announce to the trial court that he desired to file any motion for a new trial nor did he file such a motion within five days nor before judgment and that when the trial court asked him whether he knew of any reason why sentence should not be pronounced he answered in the negative, thereby waiving his right to file such a motion.
Many decisions may be found that errors of law occurring at the trial and not presented in a motion for a new trial cannot be considered on appeal. See West’s Kansas Digest, Criminal Law, § 1064, and Hatcher’s Kansas Digest, Criminal Law, §§ 420, 422. Under G. S. 1935, 62-1604, the application for a new trial must be made before judgment. Under G. S. 1947 Supp. 62-1722, it is provided that:
“In any criminal action in which defendant pleads guilty . . . unless he announces that he desires to file a motion for a new trial he shall be sentenced.
and under G. S. 1947 Supp. 62-1723, it is further provided that:
“If at the time the plea ... of guilty is made defendant announces that he desires to file a motion for a new trial, the court shall fix a time, not exceeding five days, in which to file the motion for a new trial. . . .”
Every specification of error above set forth is predicated on alleged errors occurring at the trial and as there was no timely motion for a new trial, the alleged errors cannot be considered.
If the motion filed on December 9, 1949, be treated as sufficient to raise any question as to any matter other than errors occurring at the trial, it would be limited to the allegation that the information failed to allege a crime under the laws of this state. As has been stated above, the record does not disclose that the trial court ruled on this motion. If it did rule, no appeal was taken from the ruling. The result is that nothing concerning this motion is before this court for consideration.
On the assumption, however, that the question of the sufficiency of the information is before us under the appeal as taken, we note appellant’s argument which may be summed up as being a contention that the statutory language of G. S. 1935, 21-520, was not followed and that appellant was not charged with “entering” the building. There was no motion to quash the information. It is true the word “entering” was not included in the information, but it was charged in clear and concise language that appellant broke into the building and stole thirty bushels of wheat. Entering was necessarily implicit in what was alleged in the information and it is clear from the record that appellant so understood the charge against him. The criminal code provides that the information must be direct and certain as regards the offense charged (G. S. 1935, 62-1005); that words used in the statutes to define a public offense need not be strictly pursued but other words conveying the same meaning may be used (G. S. 1935, 62-1009); that an information is sufficient if the offense charged is clearly set forth in plain and concise language (G. S. 1935, 62-1010, Fourth); that an information shall not be quashed for any defect or imperfection which does not tend to the prejudice of - the substantial rights of the defendant upon the merits (G. S. 1935, 62-1011, Seventh); and that, insofar as this court is concerned, on appeal we must give judgment without regard to technical errors or defects which do not affect the substantial rights of the defendant (G. S. 1935, 62-1718). Considering appellant’s contention in the light of the above statutes, we must hold that it cannot be sustained. A thread of argument that appellant was allowed to plead guilty to two counts, burglary and larceny, when only one count of burglary was charged, cannot be sustained in view of G. S. 1935, 21-524.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was a divorce action. The appeal is from an order of the court sustaining plaintiff’s demurrer to defendant’s petition to set aside a decree of divorce, previously rendered, upon the ground that it had been obtained by fraud. The petition was filed under the applicable provisions of G. S. 1935, 60-3007 to 60-3011. The trial court sustained the demurrer for the stated reason “that extrinsic fraud was not pleaded.”
From the record it appears the parties were married in January, 1925,- in Rawlins county, and continued to live there until this action was brought, October 18, 1948; that by their joint efforts they accumulated a substantial amount of property; that five children were born to them; that the two oldest daughters are married and have homes of their own, and that the three sons, Robert, 18 years of age; Jack, 16, and Duane, 12, were living at home at the time the divorce suit was brought; that on October 18, 1948, plaintiff induced defendant to execute an entry of appearance in which she waived time to plead and consented that the action be tried at any time without further notice to her, and on the same day he induced her to execute a stipulation settling property rights, in which defendant was to receive $2,000 as her share and that plaintiff was to receive all of the other property, including their home in town and 560 acres of real estate owned by the parties; tha,t he was to have the custody of the three minor children and should not be ordered to pay the attorney for defendant.
On December 30, 1948, defendant filed an answer and cross petition in which she alleged that at all times mentioned in plaintiff’s petition she was a resident in good faith of Rawlins county, “but that she is now temporarily residing at 2004 Eairview Avenue, Wichita”; admitted she and plaintiff were married in January, 1925, in Rawlins county; that there were born to the marriage five children, as set out in plaintiff’s petition; and that the property which plaintiff described in the petition was jointly owned by the parties at the time of the filing of the petition for divorce. It further alleged that plaintiff owned other property, the exact nature of which defendant is unable to state for the reason that she was but sixteen years of age when she married plaintiff and had no business experience, and her whole life had been taken up with the rearing of the children and in carrying out her duties as the wife of plaintiff. It denied the allegations in plaintiff’s petition against her for divorce, denied that plaintiff is entitled to a divorce, and alleged that she had performed each and every duty devolving upon her as the wife of plaintiff, but that plaintiff, disregarding his duties and marriage vows, had been guilty of extreme cruelty and gross neglect of duty toward defendant, and that defendant is entitled to a divorce. It further denied that plaintiff is a fit and proper person to have the custody of the minor children and alleged that the custody should be awarded to her. It was further alleged that at the time she executed the stipulation settling property rights, and for many years prior thereto, she has been in fear of bodily harm at the hands of plaintiff; that she has been sick and unable to comprehend her rights in regard to property and was in fear of her life and was afraid plaintiff would inflict bodily harm upon her if she failed to sign the same, and that she was mentally ill and disturbed and unable fully to comprehend the nature and results of her action; that she had no independent advice, and that plaintiff represented to her that he was transferring the remainder of his property to their children and that if she did not sign the stipulation the children would lose their rights to the property; that immediately following the execution of the stipulation she was confined to a hospital in Wichita; that she was without funds and believed that although she agreed to take $2,000 her husband would at least provide her with additional funds in order that she might pay her necessary and immediate expenses; alleged that the stipulation was inequitable; that at the time of their marriage they had no property, and that all of the property had been accumulated by the joint efforts of the parties; that the business transactions, the value of the property, income and earnings of plaintiff had been kept from her by plaintiff and that she does not fully know and understand the amounts and value of their various properties. The prayer was that plaintiff be denied a divorce, that defendant be granted a divorce from plaintiff; that the stipulation be set aside; that she be granted such temporary alimony, support money and attorneys’ fees as the court deemed proper, and upon the granting of the divorce she be awarded a fair and equitable division of the property; that she be awarded the custody of the minor children and such support money as may be necessary for their support until they become of age.
To defendant’s cross petition plaintiff filed an answer which contained a general denial and alleged that the “stipulation of settlement is fair, just and reasonable and was knowingly and understandingly entered into by the defendant,” and prayed for judgment in harmony with the petition.
On February 18, 1949, defendant filed a motion for temporary alimony which, upon a hearing, it was orally agreed between the parties that the court order plaintiff to pay into court $50 per month for the benefit of defendant pending the further order of the court.
Under date of April 6, 1949 (signed by defendant on April 9 and by plaintiff on April 12), the parties entered into another stipulation by which it was agreed that the stipulation of October 27, 1948, be set aside, be withdrawn from the files and stricken from the record if the same had been recorded; that defendant retain the $100 paid as temporary alimony; that she be awarded as her separate property her interest in the estate of her deceased father free of all claims of plaintiff, and also receive her clothing and personal effects and a set of silverware she received as a gift from plaintiff and her children, and that she be paid $3,300 in cash by plaintiff to the clerk of thé court; that defendant pay her own attorneys’ fee and any indebtedness she may have incurred personally after October 18, 1948, and that plaintiff be awarded all of the other property of the parties, describing the 560 acres of land, the lots in town which constituted their home, an automobile, two trucks, three tractors, a combine and other farm machinery and equipment, 20 yearling steers, 11 calves, 8 milk cows, 4 stock cows, 1 bull, 2 brood sows, about 1,500 bushels of wheat, all growing wheat, and household furniture and equipment; that plaintiff pay a balance of $3,500 of a mortgage indebtedness on some of the land, $8,100 owed to the Peoples State Bank of McDonald, and any other indebtedness owed by the parties in Rawlins county. It further provided that plaintiff should have the custody of the three sons, with the right of defendant to visit them.
On April 13, 1949, the case came on for trial by plaintiff appearing in person and by his attorney and the defendant appearing by her attorneys. The defendant asked and was permitted to withdraw her cross petition. The court set aside the stipulation between the parties dated October 18, 1948, and canceled the same from the record, and the court rendered judgment upon the stipulation of April 6, 1949, executed by the parties on April 9 and April 12, 1949.
On October 6,1949, defendant filed a petition to set aside the judgment and decree of the court of April 13, 1949, and for further appropriate relief. In this she alleged the prior proceedings in the case, as hereinbefore set out, listed the property set off to plaintiff by the decree and stated the value thereof to be in excess of $56,000, with an indebtedness of not to exceed $7,500, and further alleged:
“Defendant alleges that after the filing of her Answer and Cross-Petition and the Reply of the plaintiff to the Answer and Cross-Petition, plaintiff came to defendant at Wichita, Kansas, and told defendant that he would pay her in addition to the $2000.00 as provided in the first stipulation, an additional $2000.00, and execute a deed to all the real estate after he was adjudged to be the owner, to the children, if said defendant would permit him to get a divorce and enter into a new stipulation. Plaintiff further told the defendant not to say anything to her attorneys about the matter, because they would demand additional fees and whatever fees they got would be taken out of the money and property which plaintiff and defendant had accumulated and away from what property their children would get.
“Defendant alleges that she was solicitous of the welfare of her children and relied upon the statements of the plaintiff and at his solicitation and request signed a new stipulation, which said stipulation was the second stipulation filed herein shortly prior to the date of the divorce. Defendant did not advise her attorneys as to why she was signing the second stipulation and, in fact, refused to tell them because she did rely upon the statements made by the plaintiff at the time of the signing of the stipulation. Defendant alleges that said statements made by the plaintiff to the defendant, as aforesaid, were false and fraudulent and were made for the express purpose of cheating and defrauding this defendant out of her fair and equitable share of the property which they had accumulated in the 24 years of their married life, and after the divorce was granted and when defendant went to plaintiff and defendant’s home in McDonald, Kansas, plaintiff told defendant in the presence of Robert, their son, that he never intended to deed the real estate to the children and never intended to give her the additional $2000.00.
“Defendant alleges that prior to the time of the signing of the first stipulation, on or about October 27, 1948, defendant was ill and mentally disturbed and was unable to fully comprehend the nature and results of said first stipulation and was afraid that plaintiff would inflict bodily harm upon her if she refused to sign and execute said stipulation, and in addition thereto, plaintiff promised defendant that he would deed the farms to the children, sell the house and car and divide the cash received from the sale, and at the same time also stated that he had no cash. Shortly thereafter, plaintiff wrote a letter to a third person setting out how much money he had, and by reason thereof, plaintiff then filed her Answer and Cross-Petition. Later, in the latter part of March, 1949, plaintiff again came to the home of the defendant in Wichita, Kansas, and again told her that he would give her an additional $2000.00 and deed the farms to the children if she would sign the second stipulation herein-before referred to and filed April 12, 1949, and approved by this Court April 13, 1949. At the time of the signing of both stipulations, defendant was in poor physical and mental health and she relied upon the statements, representations and promises which plaintiff made to her; that said statements, representations and promises were false and fraudulent and were known by the plaintiff to be false and fraudulent at the time he made them and said statements, representations, promises and threats were made for the purpose of coercing and inducing defendant to acquiesce in the signing of the stipulation and consenting to the divorce; and defendant would not have signed either stipulation nor withdrawn her Answer and Cross-Petition and permitted plaintiff to obtain an uncontested, default divorce had she known such statements, representations and promises were false and fraudulent, as aforesaid, and had she not been in fear of great bodily harm by the plaintiff.
“Defendant alleges that the stipulation settling property rights is grossly inequitable, unjust and unfair; that defendant has no business education, is in poor health and unable to earn a livelihood and that said stipulation settling property rights and the judgment- of this court entered on the 13th day of April, 1949, approving said stipulation should be set aside and held for naught and an equitable division of property that is fair to both plaintiff and defendant should be made.
“Defendant further states that she had an absolute defense to the petition of the plaintiff and had and has a cause of action against the plaintiff upon the .Cross-Petition for a divorce on the grounds of extreme cruelty and gross neglect of duty. That by reason of G. S. 60-1519, a detailed statement of the facts constituting her grounds for divorce and for custody of the minor children is not set out. That plaintiff is not a proper person to have the custody of the minor children and defendant is a proper person to have custody of the minor children.
“Defendant alleges that she has received the approximate net sum of $2777.00 by virtue of the stipulations which she has signed and approximately $523.00 has been deducted from the sum apparently so paid by the plaintiff, for attorneys’ fees. That defendant has had no money to support herself except the sums so paid and by virtue thereof she is unable to tender all of said sums into court but desires to make a tender by requesting this court to take into consideration such sums so paid in making an equitable division of the property accumulated by plaintiff and defendant.”
By an amendment to the petition she alleged that plaintiff has never paid her the additional $2,000 and has never deeded to the children of the parties the real estate owned by plaintiff and defendant at the time the divorce was filed.
This petition was predicated upon G. S. 1935, 60-3007, the pertinent portions of which read:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made.
“Fourth, for fraud, practiced by the successful party, in obtaining the judgment or order.”
It was brought within the time limited by G. S. 1935, 60-3008, and the procedure required by G. S. 1935, 60-3011 was followed.
On November 3, 1949, plaintiff filed a demurrer to this petition upon the ground that it did not state facts sufficient to constitute a cause of action against the plaintiff and in favor of defendant and did not state facts sufficient to justify the setting aside of the judgment rendered on April 13, 1949. This demurrer was heard by the court on December 15, 1949, and taken under advisement, with briefs to be submitted. On January 20, 1950, the court made an order sustaining the demurrer for the reason that extrinsic fraud had not been pleaded. From this order the defendant has appealed.
In discussing intrinsic and extrinsic fraud it is said, in 31 Am. Jur. 231:
“. . . fraud has been regarded as extrinsic or collateral, within the meaning of the rule here under consideration, where it is one the effect of which prevents a party from having a trial or from presenting all of his case to the court, or where it operates upon matters pertaining, not to the judgment itself, but to the manner in which it is procured, so that there is not a fair submission of the controversy. Fraud which induces an adversary to withdraw his defense, or prevents him from presenting an available defense or cause of action in the action in which the judgment is obtained, has been regarded as a proper ground for equitable relief against the judgment.”
In 49 C. J. S., p. 486, it is said:
“The fact that a judgment was obtained through fraud or collusion is universally held to constitute a sufficient reason for opening or vacating such judgment either during or after the term at which it was rendered.”
On page 487 it is said:
“. . . the authority to set aside judgments for fraud after the term usually is limited to cases where the fraud complained of was practiced in the very act of obtaining the judgment, and all cases of fraud which might have been used as a defense to defeat the action are excluded; the fraud must be extrinsic and collateral to the matter tried, and not a matter which was actually or potentially in issue in the action, unless the interposition of such defense was prevented by fraud, accident, or the act of the opposite party without fault or blame on his own part.”
To the same effect is 34 C. J. 278.
It may be noted that our statute (G. S. 1935, 60-3007, Fourth) does not distinguish between intrinsic and extrinsic fraud. In our earlier cases the distinction was not made, and perjury, particularly if accompanied by other fraudulent acfs, was considered by the court as sufficient to justify the setting aside of a judgment for fraud. (See Adams, et al., v. Secor, 6 Kan. 542; Laithe v. McDonald, 12 Kan. 340; McIntosh v. Comm’rs of Crawford Co., 13 Kan. 171, and Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364.) Perhaps we began to make the distinction in Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906, where it was held that judgment could not be set aside “in a collateral proceeding” upon the ground that it was obtained by perjured testimony. This was followed in Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079, where it was held that perjury alone is not ground for vacating a judgment under the statute; that fraud must be extrinsic or collateral to the issue involved. On page 735 this language is used:
“By the expression, ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promises of a compromise or fraudulently keeping him in ignorance of the action.”
Other examples are given, not with the view of having a complete list of situations. The above case is cited in Putnam v. Putnam, 126 Kan. 479, 483, 268 Pac. 797, and the court said:
“The distinction between intrinsic and extrinsic fraud is well defined in the opinion in the case last cited. By extrinsic fraud is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. But fraud is intrinsic and included in the judgment where it relates to questions that were in conflict and which were necessary for the court to determine.”
This was a divorce case in which the application to set aside the judgment was filed nine years after the judgment was rendered, and the court held it was too late under G. S. 1935, 60-3007 to 60-3013. In that case the court had denied the divorce, “but divided the property after hearing evidence as to its existence, extent and value.”
The case of Stafford v. Stafford, 163 Kan. 162, 181 P. 2d 491, presented some of the elements present here. There the husband got the wife away from her attorney, made false representations to her and kept her from giving her evidence in court. The opinion cites many of our former cases and other authorities. The trial court had sustained the petition to set aside the decree and it was affirmed.
Counsel for appellee cites the case of Marks v. Marks, 163 Kan. 454, 182 P. 2d 885, and argues that the appellant participated in the fraud. The contention lacks merit. In this case the appellant did not really learn of the fraud until after the decree of divorce had been entered, hence could not have participated in it. Appellee argues that appellant should not have been so credulous as to rely upon the statements she alleges her husband made to her, citing on that point Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306. We think this point lacks merit. When a husband uses the weapon of deceit to take advantage of his wife, with whom he has lived for nearly twenty-four years, who had borne him five children, and who was in ill health, he is not in a good position to contend that she should not have relied upon him.
Appellant by her cross petition had pleaded a good defense to appellee’s suit for divorce. In the stipulations which'appellee induced her to execute he gave her but a small fraction of the amount she normally would be entitled to in a division of the property between them in a divorce action.
Appellant’s petition to set aside the divorce decree stated extrinsic fraud under the authorities hereinbefore cited. Appellee complains of the reply brief filed by appellant in this court and contends it contains matter not shown by the record. A part of this reply brief was appropriate. It does contain some matters not in the record and these have been disregarded.
The judgment of the trial court should be reversed with directions to overrule the demurrer, to hear the evidence upon plaintiff’s allegations of fraud, and if they are sustained to set aside the decree of divorce, reinstate her answer and cross-petition to plaintiff’s action, and hear the case on its merits.
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The opinion of the court was delivered by
Harman, C.:
Arthur L. Pappan was convicted by a jury of the offense of robbery in the first degree. By reason of a previous conviction his sentence was doubled under the habitual criminal act. He now appeals from that judgment.
Appellant’s principal complaint centers around testimony adduced upon his cross-examination respecting his conviction of previous offenses.
Appellant was charged with robbing a filling station in Wichita. He had previously been employed at the station during the day shift, but had quit shortly before the alleged robbery.
The state’s principal witness, Lonnie Patterson, was the attendant on duty at the time of the incident. He testified appellant came into the station at about 3:15 a. m. on October 26, 1968, and at knife point compelled him to turn over the oil company’s money. He also testified appellant said something about knowing Patterson but he didn’t think Patterson was supposed to be working at that time.
Although the record is not clear, it appears that thereafter the police made inquiry at the place where appellant had been living.
Appellant testified as a witness in his own behalf. In his direct examination he stated he had gone to Hutchinson on October 25th. Upon his return he learned the police were inquiring about him. He testified he thought the police were after him for parole violation inasmuch as his parole officer had told him he was not supposed to go to Hutchinson. In cross-examination the state was permitted to elicit, over objection, that appellant was on parole for the offenses of attempted armed robbery and “uttering.” Appellant’s motion for mistrial based on reception of this evidence was overruled.
In redirect examination appellant then testified the attempted robbery offense occurred in Hutchinson; that he walked into a place with a gun and told the man there it was a holdup and to give him the money; the man said “No”, and the witness said he was not joking and to give him the money; the man said “No” again and appellant left without any money and without anyone being injured; he subsequently plead guilty to this offense. Upon recross-examination the state elicited the fact the place he had attempted to rob was a filling station.
No request was made for instructions respecting the previous convictions of appellant and none was given.
In his closing argument to the jury appellant’s counsel mentioned that the prosecution had brought out the fact appellant had plead guilty to attempted robbery three years previously when he was nineteen or twenty years old. He pointed out appellant had plead guilty to this offense because he was guilty but he was not guilty of the present charge and should not continue to suffer because he had done wrong in the past. The prosecution’s closing argument included the following:
“Look at his other attempted robbery. He came in, and the man was obviously so startled, he didn’t get the money. Same thing here — an oil company, same situation. Fear — fear reacts very differently, and in that case, the man didn’t give him the money.”
No request for supplemental instructions was made and none was given. Appellant did not introduce any evidence tending to support his credibility.
Appellant asserts our well established general rule evidence is inadmissible to prove that an accused has been convicted of another crime independent of and unrelated to the one on trial; that the exceptions to this rule are statutory, and none of them is applicable under the facts here. He contends the evidence was impermissible under K. S. A. 60-421, 60-422 (d) and 60-447 (b); further that “uttering” (forgery) could not be a similar offense admissible for any purpose under K. S. A. 60-455, and if the attempted robbery conviction were sought to be shown as a similar offense evincing plan under the latter statute, then no limiting instruction was given as mandated by State v. Roth, 200 Kan. 677, 438 P. 2d 58.
Appellee counters it does not seek to justify reception of the challenged evidence under any of the foregoing exceptions. It points out appellant testified on direct examination he was on parole and it relies on its right to cross-examine as to that subject.
Appellant did choose to reveal the fact he was on parole and he thus voluntarily opened up the subject of his previous convictions upon which he had received a parole. Having done so, he is not in a position to raise the bar of the statutes relied on. A defendant cannot avoid cross-examination on matters to which he has testified in chief. In State v. Schroeder, 201 Kan. 811, 443 P. 2d 284, we stated:
“[W]hen a subject is opened upon direct examination, tbe cross-examination may develop and explore various phases of that subject.” (p. 820.)
See also State v. Handrub, 113 Kan. 12, 213 Pac. 827; State v. Fahy, 201 Kan. 366, 440 P. 2d 566.
Nor do we believe the trial court’s failure to give a limiting instruction, following the closing argument respecting the use of the attempted robbery conviction as evincing a method of operation, to be prejudicially erroneous. Roth is distinguishable in that there the previous conviction was not referred to in the direct examination of the defendant and therefore was not proper under any theory or for any other purpose than as permitted under 60-455, and we held a limiting instruction under that section was required. Here the challenged evidence was admissible independently of 60-455. And appellant in his closing argument, after the jury had already received its instructions, chose again to bring the matter to the jury’s attention and he cannot now complain.
Appellant contends sentence was illegally imposed under the habitual criminal act because the state did not, prior to commencement of trial or prior to submission of the case to the jury, notify him of its intention to invoke the provisions of that act. He presents no authority or cogent argument to support his position and we know of none. On January 10, 1969, immediately after the jury retired to begin its deliberation in the case, appellant was orally notified of the state’s intention to invoke the act. He was served with written notice of the same on January 13, 1969. He was sentenced on January 29, 1969, after being afforded a full allocution where he presented nothing. Reasonable notice of the state’s intention to invoke the provisions of the habitual criminal act before sentence is imposed is all that is required (Lieser v. State, 199 Kan. 503, 430 P. 2d 243). Appellant was properly sentenced.
Judgment affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a damage action arising from personal injuries sustained in an automobile accident wherein the trial court granted the defendant’s motion for summary judgment. The trial court held there was no evidence in the record presenting a genuine issue of fact as to the defendant appellee’s negligence.
Ronald L. Smith (plaintiff-appellant) was a passenger in an automobile driven by Monte P. Bowen when it collided with a vehicle driven by Edna A. Engel (defendant-appellee). Bowen was proceeding north in his automobile on U. S. Highway No. 75 south of Topeka, Kansas, on the 9th day of December, 1966, while Mrs. Engel was proceeding in the same direction ahead of the Bowen car. The accident occurred after 6 p. m. in an hour of darkness. Mrs. Engel had her headlights on, signalled with her blinker light for a left turn, and pulled her vehicle to a stop in the median strip on the highway. The Engel car had been stopped for twenty to thirty seconds waiting for oncoming traffic to clear before completing the left turn, when it was struck from the rear by the Bowen car.
Smith sued both drivers, Bowen and Engel, and after completing discovery both defendants filed motions for summary judgment. Both motions were sustained by the trial court, but Smith appeals to this court only from the summary judgment in favor of Mrs. Engel.
The appellant claims Mrs. Engel was negligent in not pulling clear off the roadway to turn left. He claims no other negligence on the part of Mrs. Engel.
Summary judgment may be entered as a matter of law for the moving party under K. S. A. 60-256 (c) if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.
In Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976, upon which the appellant relies, the trial court sustained a motion for summary judgment and this court reversed, saying:
“The purpose of the rule is to obviate delay where there is no real issue of fact. It should do much to eliminate nuisance litigation and save time and expense. However, a summary judgment should never be granted for the single purpose of saving the time and expense of a trial, or be used for the purpose of depriving litigants of a jury trial. The manifest purpose of the rule is to eliminate sham claims which might otherwise cause needless and time consuming litigation.
“In the final analysis a court should not determine the factual issues on a motion for summary judgment but should search the record for the purpose of determining whether a factual issue exists. If there is a reasonable doubt as to the existence of a material fact a motion for summary judgment will not lie. No matter how the explanation of the rule is phrased we always return to the language of the rule, there must be left ‘no genuine issue of any material fact.’ ” (p. 575.)
What constitutes a “genuine issue as to any material fact” appears to account for most of the voluminous opinions on the question.
It may be said an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. It has been said before summary judgment is granted the court must be convinced that the issue is not genuine or that there are only immaterial or imaginary factual issues. (See 3 Barron and Holtzoff, Federal Practice and Procedure, § 1231, et seq., p. 94; and 3 Vernons Kansas Statutes Annotated, Code of Civil Procedure, § 60-256, p. 358.)
K. S. A. 8-570 pertains to the stopping, standing or parking of motor vehicles outside of business or residence districts and reads in part as follows:
“(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, . . .” (Emphasis added.)
In applying the foregoing law to the facts, the appellant argues there was a genuine issue as to a material fact as to whether Mrs. Engel had sufficient space to remove her vehicle from the traveled portion of the roadway, and whether the rear of her vehicle extended onto the traveled portion of the roadway.
It may be conceded there is a conflict in the deposition testimony as to whether Mrs. Engel’s automobile was either on or off the traveled portion of the roadway. But, viewing the deposition evidence before the trial court most favorably to the appellant (see Brick v. City of Wichita, 195 Kan. 206, 212, 403 P. 2d 964), the rear of her automobile extended onto the traveled portion of the roadway approximately two feet, and that it is possible a fourth of the car was extending back onto the roadway. In making the left turn Mrs. Engel in her deposition testified she pulled as far into the median strip as she could get before she stopped, waiting for the oncoming traffic to clear.
An uncontroverted fact appearing in the record is that the median strip on U. S. Highway No. 75 at the point in question is fourteen feet in width. It divides the traveled portions of the four-lane highway. The traveled portion of U. S. Highway No. 75 at this point consists of two paved lanes for traffic proceeding in a northerly direction and two paved lanes for traffic proceeding in a southerly direction. The Engel car was at a crossover point in the median strip on U. S. Highway No. 75 where Mrs. Engel had a legal right to turn left.
There is a dispute in the deposition testimony of the witnesses presented to the trial court as to whether an automobile could or could not get completely off the traveled portion of the highway and into the median strip when making a left turn at the point in question. A passenger in Mrs. Engel’s vehicle testified by deposition she thought she could get her Falcon within the median strip at the point in question, and there was other deposition testimony that if a vehicle stopped at an angle it could get within the median strip.
While the length of Mrs. Engel’s vehicle is not indicated in the record, we think its actual length to be immaterial to the issue of negligence here presented. In our opinion it should make no difference whether the vehicle is a large American-made model or a small compact one. When a driver in the situation here presented pulls into the median strip at a crossover point as far as is practicable in making a left turn, the fact that a portion of the rear of the vehicle may extend onto the traveled portion of the traffic lane from which the turn is being made does not constitute negligence.
At the point on the highway in question it was legal for Mrs. Engel to make a left turn, and of necessity she was required to turn left from the inside lane of northbound traffic. In executing a left turn the driver must keep to the right so that an oncoming motorist could also make a left turn at the crossover point in the median strip. Under these circumstances the steering geometry of an automobile is such that a vehicle stopped for a left turn, as here, would not place the stopped vehicle at a right angle with the traveled lane of traffic from which the turn is made, but at an angle approaching ninety degrees. And although the angle may vary somewhat from one vehicle to another, the driver under these circumstances is not required to carefully manueuver his vehicle into the fourteen-foot median strip at an acute angle to the traveled lane from which the turn is made to place the vehicle completely within the median strip. This would not be practical, and the statute (8-570 [a], supra) merely requires the driver of a vehicle to stop off the main traveled part of the highway when it is practical.
There is no deposition testimony of any witness before the trial court that an automobile could be stopped at a right angle to the traveled lanes of the highway and come completely within the median strip. A median strip only fourteen feet in width would of necessity require many vehicles to protrude partially onto the traveled portion of the highway, as did Mrs. Engel’s vehicle in this case.
Bowen who was driving the automobile in which the appellant was riding did not see the stopped Engel vehicle until he was about fifty feet behind it.
Mrs. Engel had stopped her vehicle at the crossover point in the median strip on U. S. Highway No. 75, as heretofore indicated, with her lights on and the turn indicator light signalling a left turn for a period of twenty to thirty seconds before Bowen struck Mrs. Engel’s vehicle from behind. This in our opinion fails to disclose negligence on the part of Mrs. Engel as a matter of law.
In our opinion the issues of fact which the appellant asserts as controverted are immaterial to the issue as to whether or not Mrs. Engel was negligent. Thus, there is no evidence in the record presenting a genuine issue of fact as to Mrs. Engel’s negligence. Under these circumstances the trial court properly sustained the appellee’s motion for summary judgment.
The judgment of the lower court is affirmed.
Fatzer and Fontron, JJ., dissent. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of an action to recover for per sonal injuries and property damage resulting from an automobile collision.
In February, 1948, the plaintiff, a resident' of Nickerson, was a patient in a clinic in Kansas City, Mo., undergoing an operation and treatment for a prostate condition. On the morning of February 23, 1948, he, accompanied by his wife and small child, started out in his Buick automobile to visit a relative living west of Kansas City, Kan. The day was clear and the pavement dry. He was driving in the westbound traffic lane on U. S. Highway 40, which at the location in question is a four-lane highway with a medial strip of grass between the eastbdund and westbound lanes.
Also on that morning the defendant, Morris, an employee of defendant Armour & Company, started out from Kansas City to Bonner Springs on his employer’s business. He proceeded west on U. S. Highway 40 until reaching the intersection of said highway with State Highway 107, at which point he turned off to the south. After driving south on State Highway’ 107 for a short distance he realized that he was on the wrong road to Bonner Springs and turned around and proceeded back toward U. S. Highway 40. The intersection of these two highways is level but there is a decline or downgrade on State Highway 107 toward the south from the intersection. There is a slight downgrade east from the intersection on U. S. Highway 40. There is a stop sign on the east side of State Highway 107 about two car lengths south of the paved portion of U. S. Highway 40.
The undisputed evidence is that defendant Morris, hereinafter referred to as the defendant, did not stop before coming onto U. S. Highway 40 and ran into plaintiff’s car in the intersection as plaintiff was driving west in the westbound traffic lanes. Plaintiff received personal injuries and his car was badly damaged — hence this lawsuit.
Plaintiff’s suit, as originally brought, sought actual damages in the sum of $8,227 and punitive damages in the amount of $1,000. Later, by leave of court, he amended his petition by alleging permanent disability and raising the prayer for actual damages to $30,227. The cause was tried before a jury which answered special questions and returned a general verdict for plaintiff in the sum of $12,707. Defendant’s motions to set aside the answers to certain special questions, for judgment notwithstanding the verdict, and for a new trial, were overruled and they have appealed.
This is primarily a fact case and while we do not consider it necessary' to relate all of the testimony in detail, yet a brief summary of the evidence is required in order to obtain a proper understanding of the principal questions presented on appeal.
At the outset it should be stated that the defendant concedes his negligence and there is no question concerning whether defendant was engaged in his employer’s business at the time of the collision. Furthermore, it is conceded plaintiff was not guilty of contributory negligence so as to bar his recovery, and the only questions briefed and argued on appeal pertain to the propriety of several instructions given, the alleged excessiveness of the verdict, and the matter of punitive damages.
Concerning the facts of the collision, the'evidence is as follows:
The plaintiff testified that as he was driving west in the north lane of U. S. Highway 40 when he came to the intersection of State Highway 107 he “first heard the roar of a motor at high speed”; that he then turned his head to the left “and seen a car streak like a shot out of a gun”; that it hit his car on the left rear wheel, spinning it around and turning it over, throwing plaintiff and his wife and child out on the pavement. ■
Defendant's version of the collision was that after he discovered he was mistakenly on State Highway 107 he turned around and drove back to U. S. Highway 40; that as'he approached the intersection he was traveling between thirty and thirty-five miles per hour; that as he came up to the stop sign he applied his brakes, which caused his car to skid on some loose gravel; that he then took his foot off the brake pedal so as to stop the skidding; that he then jammed his foot back on the brake pedal to stop, but in so doing his foot slipped off the brake pedal and hit the accelerator, with the result that his car shot forward into the intersection and onto the highway. He testified that he saw plaintiff’s car coming from the east. According to him plaintiff’s car was not turned over and its occupants were not thrown out on the pavement.
Plaintiff sustained a cut on one knee and on his forehead, the latter as a result of his glasses being broken. These wounds were bathed at a near-by store on the highway and plaintiff was then taken to a hospital where the cuts were further treated, following which he was immediately released. Defendant then drove plaintiff toAthe clinic where the latter had been undergoing prostate treatment. Apparently he suffered no immediately noticeable in juries as a result of the collision, other than the cuts heretofore referred to and shock. Shortly thereafter he and his family returned to their home.
Plaintiff was an oil well rig-builder and contractor, and had worked in the oil fields for a number of years. His work was of the heavy'type and required much lifting of heavy objects and materials. The evidence showed that while so engaged he earned over twenty dollars per day. His Buick automobile, which was badly damaged in the collision, was equipped with a lifting attachment for use in his work. There was testimony to the effect that one in his occupation was allowed eight dollars per day for the use of his car.' He testified that following the collision he suffered headaches, pains in his back and limbs and was unable to carry on his usual line of work in the manner which he had previously done, although the evidence also showed that he was by no means an invalid and that he was still capable of engaging in oil field work to a limited extent. About two months after the collision he returned to Kansas City for a medical examination at the request of his attorney. X-rays of his back were taken at that time. Shortly before the case went to trial in February, 1949, he was examined by several doctors and X-rays of his back were again taken. Considerable medical testimony was given at the trial and in brief it can be stated that the substance of it was that for a number of years plaintiff had been suffering with osteoarthritis — that is, inflammation of the bones — and that possibly this condition had been brought on by his prostate trouble. There was testimony to the effect that his arthritic condition had not necessarily been accelerated, so far as the later X-rays showed, during the year following his injuries. On the other hand, there was ample medical testimony to the effect that trauma — that is, a blow such as he received — could aggravate the condition of his spine to the point where he would be permanently disabled so far as the performance of heavy manual labor was concerned. Plaintiff was about fifty-eight years of age.
There was considerable testimony by co-workers and associates of plaintiff to the effect that following his injuries plaintiff complained of soreness and lameness in his back and that he was unable to do the. work he formerly had done.
The jury answered special questions as follows:
“1. If you find from the evidence that plaintiff, Merl L. Knoblock, has disability to his back, do you attribute that disability to arthritis?
“Answer: No.
“2. Is the plaintiff’s disability, if you find that he sustained any, the result of an accidental cause as defined by the Court?
“Answer: No.
“3. Was plaintiff’s arthritis of long standing and in existence prior to the collision?
“Answer: Yes.
“4. Do you find and believe from the evidence that the plaintiff' was negligent which directly contributed to cause the collision complained of?
“Answer: No.
“5. If you answer Question No. 4 ‘Yes,’ state the particular or. particulars of such negligence?
“Answer: - .
“6. If you find from the evidence that plaintiff, Merl L. Knoblock, had arthritis of the back, was that arthritic condition heightened and made more painful as a result of the collision?
“Answer: Yes.
“7. Do you find from the evidence that Merl L. Knoblock does have a permanent disability of the back?
“Answer: Yes.
“8. If you answer the next preceding question ‘Yes,’ state whether plaintiff’s present disability of the back was caused or accelerated by shock or injury resulting from the collision.
“Answer: Yes.
“9. If you find that defendants are responsible for damage to plaintiff’s car, what do you assess that damage to be?
“Answer: $1,250.00.
“10. If you find in favor of the plaintiff, state whether or not you allow plaintiff exemplary damages.
“Answer: Yes.
“11. If you answer Question No. 10 ‘yes’ state the amount of exemplary damages which you allow the plaintiff.
“Answer: $1,000.00.”
Defendants first complain of the form of several instructions given, their complaint being that the court erred in “summarizing” the allegations of plaintiff’s petition with reference to items of damage claimed by him when there was no evidence to support such alleged damages. No good purpose would be served by setting out these instructions. We have examined them and find the complaint to be without substantial merit.
We pass now to the question of punitive damages. Plaintiff sought punitive damages in the amount of $1,000, and the jury allowed him that amount. Defendants contend the evidence in this case did not justify the court in submitting the question of punitive damages to the jury, and, furthermore, even though the case were properly one for the submission of such question the court erred in its instruction on the subject. The court, in instruction number 21, instructed the jury:
. . And if you find from the preponderance of the evidence that the driver of the car of the defendant Armour- & Company, Thomas H. Morris, was guilty of willful and wanton negligence, and' disregard of the lives or safety of others on said highway; and thereby caused said collision, you may find for the plaintiff an additional sum, not exceeding $1,000.00, as a suitable punishment for such wrongful act on the part of the defendants. However, the total aggregate sum of your verdict cannot exceed $31,227.00.”
We hold that it was proper to submit the question of punitive damages to the jury and that the quoted portion of the court’s instruction was sufficient. Defendants argue that the undisputed evidence is that the defendant intended and attempted to stop before entering the intersection, but that in applying his brakes' his foot slipped off the brake pedal, hitting the accelerator,' which in turn caused his car to dart out into the intersection, and that such fact certainly does not tend to prove any wanton conduct and disregard of the lives or safety of others on the part of defendant. The only trouble with that, argument is that the jury was not bound to believe defendant’s testimony in this respect. Defendant knew the stop sign was there and he knew that U. S. Highway 40 was a so-called high-speed four-lane highway. He approached the intersection at a speed of thirty or thirty-five miles per.hour and.from the physical fact of his car “shooting” out into the highway the jury was justified in finding that from all of the surrounding facts and circumstances his manner of driving showed a wanton disregard of the safety of others properly on the highway.
We come now to the principal ground of appeal, namely, the ex-cessiveness of the verdict. Defendants contend that it is not only excessive but is so excessive as to shock the conscience of this .court and compel us to hold that it necessarily was the result of passion and prejudice on the part of the jury, which would necessitate the granting of a new trial rather than a remittitur.
, We have examined the evidence in detail — medical as well as lay. A. number of competent physicians testified concerning plaiptiff’s past physical condition as disclosed by the X-rays of his back and as to the' effect the trauma received by plaintiff could and probably did have on that condition. The mere fact that a person receiving an injury has a predisposition to a certain disease, or in fact had such disease or condition, would not relieve one who was guilty of negligence from liability in damages if it is established that such disease or condition was aggravated or made more painful by reason of the injury caused by such negligence. We have no doubt but that all of these matters were argued fully to the jury and without laboring the question further we hold that the findings of the jury are amply supported by substantial, competent evidence. This verdict was for $12,707, $2,250 of that amount being for damage to plaintiff’s car and for punitive damages. We have no way of knowing the specific amounts found by the jury on the other claims for damages in the remaining $10,457 of this verdict. Included in such remainder could be loss of wages, destruction of clothing and glasses, loss of future earning power, pain and suffering and permanent disability. An analysis and detailed discussion of our many decisions on the question of alleged excessive verdicts would serve no useful purpose and would add nothing to the body of our law on the subject. Each case must stand or fall on its own facts and circumstances. There was evidence in this case to the effect that plaintiff’s disability was permanent. In a case such as this the jury is the trier of the facts, not this court. It heard the testimony and observed the witnesses and we can find nothing in this record to indicate that the verdict was the result of passion and prejudice. The trial judge approved the verdict in its entirety, and from the entire record before us we would not be justified in substituting our judgment for that of the jury. (Henderson v. National Mutual Cas. Co., 168 Kan. 674, 215 P. 2d 225.)
An examination of the entire record discloses nothing approaching reversible error and the judgment of the lower court is therefore affirmed. | [
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The opinion of the court was delivered by
GRAVES, J.:
This was an application to the district court of Trego county for a writ of mandamus to compel the treasurer of that county to accept the tender of past-due purchase-money on school-lands in that county, made by the plaintiffs herein. The court granted an alternative writ, but after a trial set it aside and refused any relief. The plaintiffs excepted, and bring the case here for review.
The facts, briefly stated, are that Isaac Bowers purchased the land and assigned his certificate to S. S. Phares, who put Martin J. Phares in possession as tenant and removed to Texas with his family, where he died. Default in the payment of principal and interest occurred, and the then county clerk, J. W. Phares, with knowledge that S. S. Phares was dead, issued a notice' of forfeiture directed to him, and delivered the same to the sheriff for service. The sheriff made return thereof as follows:
“Received this notice this 19th day of March, 1904, and served the same by ^delivering a true copy of within notice to Martin J. Phares, who is in possession of said land, and by posting a true copy of said notice in a conspicuous place in the office of the county clerk of Trego county, Kansas, this 26th day of March, 1904, as the within-named S. S. Phares cannot be found in my county; and made return of this notice to the county clerk of county and state aforesaid, this 26th day of March, 1904. T. D. Hinshaw, Sheriff.”
The plaintiffs are the heirs of S. S. Phares, and as soon as they heard of the forfeiture proceedings they .tendered the amount then due on the land, which was refused.
The plaintiffs had, and still have, the right to pay up all principal and interest on the certificate which may be due, and thereby reinstate the contract of purchase, unless barred by these forfeiture proceedings. It is claimed that service of the notice was insufficient, and the attempted forfeiture therefore void. The forfeiture proceedings are provided for in section 6356 of the General Statutes of 1901, which directs how notices of forfeiture shall be served, using the following language:
“The notice above provided for [which is the notice of forfeiture] shall be served by the sheriff of the county by delivering a copy thereof to such purchaser, if found in the 'county, also to all persons in possession of such land; and .if such purchaser cannot be found, and no person is in possession of said land, then by posting the same up in a conspicuous place in the office of the county clerk.”
Statutory forfeiture proceedings must be strictly followed. (Knott v. Tade, 58 Kan. 94, 48 Pac. 561; Furniture Co. v. Spencer, 59 Kan. 168, 52 Pac. 425; True v. Brandt, 72 Kan. 502, 83 Pac. 826.) In this case the return of the sheriff does not show that he served the notice upon all persons in possession of the land, as required by the statute. This omission is fatal to the notice. No forfeiture was effected. •• The attempt to forfeit the rights of the plaintiffs had no more effect than if it had not occurred.
The judgment of the district court is reversed, with direction to issue a peremptory writ requiring the county clerk to accept the offer of the plaintiffs, and to make such further orders in the case as may be necessary and proper to carry out the views expressed in this opinion.
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The opinion of the court was delivered by
Greene, J.:
This was an action in ejectment, commenced September 14, 1903, by the heirs of William Chance. The answer, while indefinite in its allegations, was an attempt to plead title and possession under a tax deed, and also possession under a past-due ■and unpaid mortgage. Upon motion the court required defendant to attach copies of these instruments, which was done by filing an amended answer. To this answer a demurrer was sustained, and upon leave being granted a second amended answer was filed, to which a demurrer was sustained and judgment rendered thereon for the plaintiffs. In the second amended answer the defendant relied wholly upon his rights as a mortgagee in possession.
The material allegations of this answer were that on April 1, 1886, William T. Tartar, being the owner of the land in controversy, executed a mortgage thereon for $250, payable to Lew E. Darrow, due April 1) 1891; that the defendant' was the owner of that mortgage; that it had not been paid; that on May 3, 1886, Tartar and wife conveyed the land to Alexander McCollum by warranty deed, and on September 3, 1887, McCollum conveyed the land by warranty deed to William Chance, who by a condition in the deed assumed and agreed to pay the mortgage; that on April 1, 1891, William Chance secured an extension of five years from that date for its payment; that for a long timé prior to February 11, 1901, William Chance and his heirs had abandoned the land; that on the date last named the land was unoccupied; and that on that date defendant went into possession thereof under his mortgage, and has continued in the exclusive occupancy thereof ever since, claiming to be a mortgagee in possession.
» The grounds of plaintiffs’ demurrer to this second .amended answer were: (1) That the first and second amended answers were inconsistent with, and a de parture from, the defense pleaded in the original answer; (2) that the second amended answer did not state a defense. We are not informed upon which of these grounds the demurrer was sustained, or that it was not sustained for both reasons.
Where a demurrer contains several grounds, and is sustained, it would be much better practice to make the' record show upon what ground or grounds the order is made. It is' not unusual in practice that only one of the grounds assigned in a demurrer is presented to the trial court, while any one of the other grounds may be relied upon in this "court. It would be much fairer to the trial court and the parties, and would simplify the work of this court, if the grounds upon which the trial court relied were stated in the record. In the present case we must assume that the demurrer was sustained on the general ground of insufficiency of the answer, since a departure in pleading is not a ground of demurrer under our statute.
The answer stated that the taxes had been in default since 1893. It is contended that this allegation, coupled with a certain condition in the mortgage, matured the debt in 1893, and that, more than five years having elapsed before the filing of the answer, the defendant’s cause of action was barred by the statute of limitations. The condition referred to reads:
"The said first parties agree-to pay all taxes and assessments levied on said premises when the same are due, and if not so paid the holder of this mortgage may, without notice, declare the whole sum of money herein secured due and payable at once, or may elect to pay such taxes and assessments and be entitled to interest on the same at the rate of ten per cent, per annum until paid, and this mortgage shall stand as security for the amount so paid, with such interest; but whether the holder of this mortgage elect to pay such taxes and assessments or not, it is distinctly understood that the holder hereof may immediately cause the mortgage to be foreclosed and shall be entitled bo immediate possession of the premises and the rents, issues and profits thereof.”
If the question depended upon a construction of this provision alone we would hold that the statute did not commence to run until the holder of the mortgage declared' the debt due. The holder of the note and mortgage might have declared the debt due and payable upon such default, but he was not compelled to do so, and until he exercised this right the statute of limitations would not start. Two things had to transpire in order to start the statute of limitations — first, a default in the payment of taxes; and second, a declaration of the holder of the mortgage that he had elected to -take advantage of the default. That this is the correct construction of this provision is too apparent to become a subject of serious controversy, especially when read with the following condition in the note:
“If default be made in the payment of any interest-notes or any portion thereof for the space of thirty days after the same becomes due and payable, or in the payment of any taxes assessed against the real estate mortgaged to secure this loan until the same shall have become delinquent, then all said principal and accrued interest shall, at the option of the legal holder of this bond, become due and payable without any notice of any kind whatsoever.”
And with the following in the mortgage:
“That said first parties agree that if the maker of said bond shall fail to pay any of said money, either principal or interest, within thirty days after the same becomes due, or to conform to or comply with any of the foregoing covenants, the whole sum of money herein secured may, at the option of the second party, or his assigns, and without notice, be declared due and payable.”
The amended answer stated the mode by which the defendant acquired possession to be as follows:
“This defendant further avers that for several years prior to the 11th day of February, 1901, the lands described in said petition and in said mortgage were vacant and unoccupied, and have been abandoned by the said William Chance and his heirs, and no taxes were paid upon the same by any of the owners since 1893, and said lands were sold for the taxes of 1893.
“This defendant further avers that oh the 11th day of February, 1901, being the owner and holder, of the note and mortgage above referred to, and no part of the principal having been paid, and no part of the interest having been paid, in 1895, and believing that said lands had been abandoned by the owners, he went into the peaceable possession thereof for the purpose of better securing the indebtedness due him upon said note and mortgage, which were then a valid and subsisting lien upon the lands, prior and superior to all others, and that afterward he paid up all the taxes past due upon said real estate, and has since paid all taxes and assessments levied upon said lands as the same became due, said taxes so paid by him’ amounting to the sum of $200; that ever since the 11th day of February, 1901, the defendant has been, and now is, in the actual and exclusive possession of said real estate as the mortgagee and owner and holder of said note and mortgage, claiming and now claims the right in said lands of a mortgagee in possession.”
The defendants in error contend that before the holder of .a mortgage can invoke the defense of a “mortgagee in possession,” in an action of ejectment, he must show that he took possession under his mortgage with the consent of the owner of the land. They also contend that the answer shows that no such consent was obtained; that, therefore, the entry was unlawful; and that an equitable defense cannot be predicated upon an unlawful act. The decisions of this court, where the defense of a mortgagee in possession has been made; do not sustain the contention that the possession must have been acquired with the consent of the owner. In Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, 93 Am. St. Rep. 308, the mortgagee got possession under a void foreclosure sale, and it was held that he was a mortgagee in possession. The facts in the case of Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396, were substantially the same, and it was again held that.the mortgagee was entitled to the rights of a mortgagee in possession. In Rogers v. Benton, 39 Minn. 39, 38 N. W. 765, 12 Am. St. Rep. 613, it was said that where the mortgaged land had been abandoned and the mortgagee had gone peaceably and -quietly into possession, the owner could not maintain ejectment until he paid the mortgage lien, and that abandonment is an implied assent that the mortgagee may take possession under his mortgage. In Cooke v. Cooper et al., 18 Ore. 142, 22 Pac. 945, 7 L. R. A. 273, 17 Am. St. Rep. 709, it was said:
“If he [the mortgagee] can make a peaceable entry upon the rportgaged premises after condition broken, he may do so, and may maintain such possession against the mortgagor and every person claiming under him subsequent to the mortgage, subject to be defeated only by the payment of his debt.” (Page 148.)
Whether the holder of a mortgage who is in possession is entitled to make the defense of a “mortgagee in possession,” after condition broken, depends upon the equities of each case. No general rule applicable alike to all cases can be stated, except where the mortgagee enters under an express agreement with the owner, j Of course, if he obtain possession by force, intimidation, deceit, or fraud, a court of equity will not permit him to profit thereby. But where, after condition broken, the land is unoccupied, and he enters peaceably, a court of equity will not eject him at the suit of the owner until his lien upon the land shall have been satisfied. ’ Such a rule does equity between the parties, and deprives the owner of the land of no rights. Mr. Justice Mason, speaking for the court in Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396, said:
“The expression frequently used, that the entry must be lawful, we interpret to mean not that it must' have been effected under a formal right capable of enforcement by legal proceedings, but that it must not be through any unlawful or wrongful act, upon which the mortgagee would be estopped to found a right.” (Page 145.)
If, after condition broken, the premises are unoccupied, the mortgagee may, if he can do so peaceably, enter into the possession under his mortgage; and he cannot be ejected therefrom by the owner until his mortgage lien has been fully satisfied. The land in question had been sold and deeded for the taxes of 1893. The owners had paid no subsequent taxes. No interest had been paid on the mortgage debt after 1895. In February, 1901, the land was unoccupied and “abandoned,” as stated by defendant in his answer. The mortgagee went quietly and peaceably into possession, under his mortgage, and continued therein without objection until this action was commenced— September, 1903. The facts pleaded are ample to sustain the defense of a mortgagee in possession. It was error therefore to sustain the demurrer.
The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer.
All the Justices concurring.
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The opinion of the court was delivered by
MASON, J.:
William Martindale brought an action against several defendants, who demurred to the petition as finally amended, the demurrer being based upon several grounds, including the misjoinder of causes of action and the failure to state facts sufficient to constitute a cause of action. The court sustained the demurrer and rendered final judgment for the defendants. The record then made of these proceedings merely showed that the demurrer was sustained, without indicating upon what ground that ruling was based. The plaintiff prosecuted error to this court, where it was held that two causes of action were improperly . joined in the amended petition against which the demurrer was directed, and that therefore no error appeared, and the judgment of the district court was accordingly affirmed. (Benson v. Battey, 70 Kan. 288, 78 Pac. 844.)
Thereafter the plaintiff represented to the district court that the ruling sustaining the demurrer had been made upon the ground that the amended petition failed to state facts sufficient to constitute a cause of action, and not upon the ground that two causes of action were improperly joined, and that the court had so announced at the time the decision was. made, although the journal entry was silent on the subject. He therefore asked that the record be amended to show the full facts regarding the ruling, and that thereupon he should be permitted to file separate petitions setting out his several causes of action, and to proceed without further service, in accordance with the practice where a demurrer is sustained upon the ground of misjoinder. (Gen. Stat. 1901, §4526.) The court denied both applications, and the plaintiff again prosecutes error.
As the important relief sought by plaintiff in error is that he be allowed to keep his action in court by the filing of separate petitions, and the request. for the amendment to the record is only incidental to this, we shall for the purpose of considering the situation which would then be presented assume for the present that he was entitled to have the journal entry corrected so as to show what had really taken place, and treat the case as though the district court had actually permitted the-record to be amended. The question so presented is this: Could the court then by any order it had jurisdiction to make allow the filing of separate petitions, and proceed with the trial of the cause or causes? The plaintiff in error contends that this question should be answered in the affirmative. In support of this view it is argued with much plausibility that as the district court based its decision upon the ground that no cause of action whatever was stated in the amended petition, and the supreme court held on the contrary that two complete causes were stated, the plaintiff never by any possibility could have had an opportunity to exercise his statutory right of filing separate petitions until after the affirmance of the judgment, and that if it must be held that it was then too late for such action on his part the practical effect of the ruling is to deny him the benefit of the statute altogether.
Notwithstanding the obvious hardship that results we must hold that the district court rightly decided that it had no power to proceed further in the case, for the reason that a final judgment had been rendered. So long as this judgment stood it was an abso lute bar to any further proceedings in the nature of a trial of the issues between the parties, and as the term at which it had been rendered had expired it could only .be vacated in accordance with some procedure pointed out by the code. (Johnson v. Jones, 58 Kan. 745, 51 Pac. 224.) No question is here involved as to the effect of the judgment as an adjudication if pleaded in any subsequent action between the parties, but so far as concerned that particular action the judgment rendered for the defendants was a finality, unless it should be set aside for some sufficient reason in a manner provided by law.
It is to be observed that what this court decided at the previous hearing in this case (and the only thing it could have decided) was not that the ruling of the trial court in sustaining the demurrer was necessarily correct, but that it could not be said from the record presented here that the ruling was erroneous. The judgment sought to be reversed was based upon an order sustaining a demurrer which included several grounds, and the case-made did not disclose upon which of these grounds the district court in fact acted. This situation compelled an affirmance of the judgment if any one of the grounds set out in the demurrer was well founded. (New v. Smith, 68 Kan. 807, 74 Pac. 610.) It now appears,- from the showing made by the plaintiff upon his application for an order amending the journal entry, that the district court in fact erred in sustaining the demurrer, since it did so upon a ground which this court has held to be untenable. The judgment founded upon this ruling was therefore erroneous. But it was not on that account void. The error could be taken advantage of only by proceedings in the supreme court. If not challenged by this method it became final, and was as binding upon the parties as any other judgment could be. For all practical purposes it was not so challenged. While the defeated party filed a petition in error in this court, he omitted to incorporate in the case-made which he brought here a showing of the error that was in fact committed, and his appeal was consequently ineffectual. The plaintiff, having failed to have the error corrected in the way provided by the statute, is beyond the relief of the district court or any other tribunal. The district court has no power to set aside its own judgment at a term subsequent to that at which it was rendered merely because it is shown that it was based upon'an erroneous ruling.
Considering the record as having been amended in accordance with plaintiff’s request, this situation is presented: The demurrer to the petition has not. been sustained on the ground of misjoinder, but the ruling of the district court sustaining the demurrer has been affirmed by this court for the reason that the petition was held to be in fact defective on that ground, and because, so far as could then be learned from the record, the ruling complained of might have been based upon that consideration. Inasmuch as the demurrer has not been sustained for misjoinder no occasion has arisen for applying the statute permitting the filing of separate petitions in such a case. To have the effect desired by the plaintiff the amendment would have to be treated as though it had been properly incorporated in the record accompanying the first petition in error, and as though this court, as it must then have done, had reversed the judgment of the district court for error in holding that the petition failed to state facts sufficient to constitute a cause of action, but had directed that the demurrer be sustained for misjoinder of causes of action. Under such circumstances the plaintiff, upon the mandate’s being complied with, would of course have the opportunity to proceed fur-their by filing separate petitions. It is not possible, however, to give to the amendment any such far-reaching effect, or to permit it upon any theory of relation to change the character of the order which was actually made in the determination of the first pro ceeding in error, and which left the judgment of the district court undisturbed.
The judgment of the district court was hot, as is assumed by counsel for plaintiff in error, a judgment declaring that the petition contained two causes of action which did not admit of being prosecuted together. This declaration, if the demurrer had been sustained on that ground, would have been involved in such ruling and would have preceded the judgment. A general judgment for the defendant necessarily follows the sustaining of a demurrer to a petition, whatever may be the ground, where no request is made for leave to amend or to file separate petitions. The judgment in this instance was expressed to be “that neither said plaintiff nor said defendants nor any of them recover of and from said defendants Calvin Hood, I. E. Lambert, or R. T. Battey, or either of them, and that the said defendants [naming them] are entitled to their costs in this action, taxed at $-, for which judgment is hereby rendered.” This was equivalent to the formula- that the plaintiff take nothing by .his action, or that the defendants go hence without day. It was a final determination of the cause against the plaintiff. (1 Black, Judg. §§ 13, 29.) It was entered as it was made, and neither the substance nor the record of it is now subject to amendment.
These considerations doubtless dispose of the substantial controversy involved in this proceeding. But as the plaintiff assigns as error the action of the district court in refusing to permit the record to be amended so as to show the ground upon which the demurrer was sustained, it is perhaps necessary to decide the question so raised. It is a general rule that the record of a judgment may be corrected so as to speak the truth, even after the expiration of the term at which it was rendered. (17 Encyc. PI. & Pr. 920.) There are cases holding that this should be done only when some record or memorandum has been preserved which may serve as the basis of such amendment, but there are also decisions to the contrary. (17 Encyc. PI. & Pr. 931.) The question presented upon an application for an amendment to the record is one of fact. The change should be allowed only where the proof in support of the application is clear and convincing. But where it is satisfactorily established that the requisite facts exist we think relief should not be denied merely because the evidence rests entirely in parol.
No reason is perceived why the amendment asked for in this case might not be permitted. The original record was correct so far as it went, but it failed to show fully what the action of the court had been. It is not apparent that any benefit can now result to the plaintiff by making the recital more specific,. yet it would seem to be the right of either party to have the journal show just what ruling was in fact made. The case is not one of an amendment being asked in order that the record might show the reasons that actuated the judge in reaching a decision. The proposed addition to the record is designed to show what in fact was decided. A demurrer which presents various grounds of objection to a petition partakes of the nature of several separate pleadings, and a ruling sustaining it upon one ground and overruling it upon others is tantamount to a ruling upon each of a number of different motions. A statement that such a demurrer is sustained does not tell the whole story. If for any reason the plaintiff prefers that the recital of the acts of the court upon the journal shall be completed we think he has the right to an order to that effect. We do not understand that there is any dispute as to what actually took place at the time the demurrer was ruled upon, or that it is seriously questioned that the evidence offered by the plaintiff was sufficient to establish his claim in that regard.
The order will therefore be that the rulings of the trial court are affirmed, except as to the refusal to permit the amendment of the record. As to this feature of the case the cause is remanded, with directions to permit Such amendment.
All the Justices concurring.
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The opinion of the court was delivered by
Porter, J.:
W. O. Goss brought this action against Thomas Voss, marshal of the city court of Wichita, and the State Bank of Goddard, to recover damages for the conversion of a crop of wheat levied upon in attachment proceedings in the city court in an action in which the bank was plaintiff and he was defendant. The action is based upon the claim that the wheat was exempt from seizure and sale. Goss’s interest in the crop of wheat was a three-fifths- share, the remainder belonging to the owner of the land. There was a trial before the court and a jury, which resulted in a verdict for plaintiff in the sum of $183.85. A motion for judgment upon the special findings was denied, as was the motion for a new trial, and defendants bring error.
Several errors are assigned, but it will not be necessary to consider all of them. Plaintiff is the head of a family, and claims that the wheat in controversy was exempt to him under section 3018 of the General Statutes of .1901, for the reason that he owned a team of horses and that the wheat was necessary as food for their support. That part of section 3018 which must be considered reads as follows:
“Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . .
“Sixth, The necessary food for the support of the stock mentioned in this section for one year, either provided or growing, or both, as the debtor may choose; also, one wagon, cart or dray, two plows, one drag, and other farming utensils, including harness and tackle for teams, not exceeding in value three hundred dollars.”
The clause preceding the sixth exempts a span of horses to the head of a family.
It is the contention of plaintiff that inasmuch as he had raised no crops that season except this wheat, and because it was customary in that vicinity to feed wheat to horses, he was entitled to claim the wheat as exempt for that purpose. It is argued that as the statute makes provision for food necessary for the support of stock for one year, without making any distinction with reference to the particular kind of food to be used for any class of animals, it was intended to leave to the debtor the selection of the kind of food. The principal witness for plaintiff was the plaintiff himself. He testified that it would havé probably required 250 bushels of wheat to feed this team for a year, but that he had never fed any wheat himself to horses; also, that he had at the time the levy was made six tons of cane, but intended to sell the cane and buy food for his family. It appears that when the levy was made he claimed fifty bushels of this wheat-as exempt for bread for his family,.and that amount was set apart to him, but that he made no claim at that time that any of the wheat was necessary for the support of his stock. He claimed it, however, before the sale. On cross-examination he testified:
“Ques. You know, as a matter of fact, that you would not feed ninety-cents-a-bushel^ wheat, would you? Ans. No, sir. But I would sell it and buy feed with it.
“Q. That is what you intended to do with this? A. Yes, sir.
“Q. Didn’t intend to feed this wheat? A. No, sir; intended to have feed out of it. I intended to sell wheat and buy feed.”
It also appeared by others of his witnesses that, while they had known of wheat being fed to horses, it was not the custom to do so when wheat was ninety cents a bushel and corn and oats much less; and none of the witnesses could give an instance where wheat was fed to horses the fall and “winter after the levy of the attachment.
The principle involved in this case has been decided by this court in George v. Hunter, 48 Kan. 651, 29 Pac. 1148, 30 Am. St. Rep. 325. The facts in that case are the same as in this, except that the debtor there claimed all the wheat for the support of his family, and contended that having no other provisions he had the right to take, in addition to sufficient wheat for bread for the family, enough more to sell and purchase other necessary provisions. The case turned upon the construction of the word “support,” in the seventh subdivision of the statute, and also the same word in the sixth subdivision. The court, after quoting both subdivisions of the statute, said:
“The language of subdivision 6 of the paragraph is ‘the necessary food for the support of the stock mentioned in this section for one year.’ It will not be said that the word ‘support,’ in this subdivision, means anything more than sufficient food to feed the stock for a year; and we think the word ‘support’ in the seventh subdivision is employed in the same sense, and simply means, in connection with the other substantive words therein, grain, meat, or groceries on hand, sufficient to feed the family for one year, or sufficient for the use of the family as food for one year. If a family has on hand 1000 bushels of wheat, but no meat or groceries, , we do not think they may have as exempt sufficient wheat to bread the family a year, and in addition thereto sufficient to sell and purchase meat and groceries, or vegetables or other provisions. If the construction contended for by the plaintiff is correct, then, by the same reasoning, if the family had on hand a stock of groceries worth $1000, but had no grain, or meat, or vegetables, or ‘other provisions,’ they might have exempt the whole stock, provided there was no more than sufficient, in addition to the necessary groceries for use of the family, when sold,-to purchase grain, meat, vegetables and other provisions for the use of the family for one year. . . . The amount of exemption, or the benefit to be derived from any particular class of property, cannot be made to depend upon the possession or want of possession by the debtor of any of the other classes of property made exempt by any of the provisions of the exemption law.” (Pages 652, 653.)
This court has uniformly given a liberal construction to the exemption laws, but to uphold the contention of plaintiff would be to hold that if he possessed 5000 bushels of wheat he should be permitted to keep and sell a sufficient amount of it to purchase any of the numerous necessary articles mentioned in the fifth or sixth subdivisions which he happened to be without. If he could claim as exempt 250 bushels of ninety-cent wheat for the purpose of sale to buy necessary feed for the support of his stock, he would, upon the same principle, be entitled to claim the same amount of any other personal property to be sold for the same purpose. This construction would render the various classifications of exempt property in the statute useless.
Defendants’ demurrer to the evidence should have been sustained upon the admission of plaintiff that it was not his intention to feed this wheat to his horses, but, on the contrary, to sell it and buy other food, and the uncontradicted testimony offered by him that wheat was not regarded in the vicinity as food for "horses at the time the wheat was taken. The judgment is reversed.
All the Justices concurring. | [
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Per Curiam:
While H. C. Weikal was helping Walter Moyer, a machinist, to furrow out a key-seat in a steel shaft of hoisting machinery át a coal-chute he was struck in the eye by a chip which flew from the chisel, and which destroyed the sight of the eye. It occurred in the night-time, while Weikal was holding a torch for the machinist. He charged that suitable light was not furnished; that the tools used were defective; that the machinist was negligent in the use of the tools; that the place was not a suitable one in which to work; and that he was not warned of the danger to which he was exposed.
The plaintiff’s testimony does not establish liability.' The machinist was competent, and there was no defect in the tools used. It was a proper place to do the work, unless the light was insufficient, and it does not appear that the absence of better light affected the case. Weikal relied principally upon the failure of his employer to instruct or inform him of the danger of working in that place. This omission cannot under the circumstances be regarded as culpable negligence of the railway company. He was a young man of intelligence and experience who had worked at that place for some time, and had been a helper for machinists for months, and the fact that chips or particles of steel would fly from a chisel could not have escaped his observation. In fact the testimony presented by him was to the effect that in cutting steel with a chisel chips fly in every direction. It is claimed that he did not appreciate the danger of working in that particular place at that time. He had worked on that job, however, the afternoon preceding the night of the injury. During the afternoon he used the sledge-hammer and struck the chisel which was held by the machinist most of the time. At night Moyer used the chisel and small hammer while Weikal stood behind him with the torch. The position occupied by Weikal at night was no closer to the work nor to.danger than the one he was in during the day. The chips are said to have struck a gearing and rebounded, but it was not practicable to use a screen or other protection, and the gearing was in the same position at night that it was during the day. The danger from the flying chips was not latent, and there was neither immaturity nor lack of intelligence to prevent Weikal from comprehending the obvious risks of the work. It did not require any warning to acquaint him with the fact that chips would fly, and the testimony which, he offered showed that any one of ordinary intelligence could not have failed to understand the risk. There was danger in the work, it was true, but it was an ordinary hazard of the business — one which was open and obvious, and which Weikal must be held to have assumed.
As the testimony did not show liability the judgment is reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
In this proceeding this court is the trier of the facts involved, as shown by the evidence, as well as of the questions of law presented. We must weigh the evidence — must determine between conflicting statements what is most probably the truth. The evidence is presented in many voluminous depositions and exhibits thereto attached; so we have not the opportunity of a jury or of the ordinary trial court of observing the appearance and bearing of the witnesses and their manner of testifying, which aids so largely in determining their credibility.
The history, therefore, so far as it is disclosed by the evidence, of the accuser and of the accused and other witnesses, and especially of their relations to this proceeding,' becomes of more than usual importance, as does also the animus of the accuser, disclosed by the briefs. The following is a general outline of their history, as shown by the evidence:
The accused was admitted to the bar in Illinois in. 1882, and practiced law in that state till 1885, when he came to Kansas and settled at Wellington, where he has ever since practiced his profession. It is conceded by the prosecution, and testified to by his associates, that he had for nearly twenty years before the filing of the charges in this proceeding been prominent in the practice of his profession, and it does not appear that his integrity had theretofore been questioned, except in the matter set forth in a supplemental charge alleging an attempt to bribe Judgé Ray in 1891, to which we will recur.
The accuser, Cleo D. Burnette, was admitted to the bar in 1895, and after serving as justice of the peace and probate judge went into partnership with the accused in 1900. His ability seems to have been well recognized, and it does not appear that his integrity was ever questioned until the genuineness of a letter copied in the letter-book of Elliott & Burnette, under date of May 31, 1902, was disputed. He was found guilty of forging this letter, and disbarred by the district court of his county' in 190.3. He removed to California soon after his disbarment to recuperate his health, but returned after a residence there of some months, and in June, 1905, filed the charges in this proceeding.
' A reading, of the testimony of the accuser and the accused impresses one with the apparent frankness and unevasiveness of the accused in his answer, and in giving his testimony, while the accuser in one part of his deposition depicts himself as being, for a considerable period of time, in such a condition of mind as to be practically unconscious of what took place in his presence and unaccountable therefor, and in another part he recites, to the minutest details, events which he says occurred within the same period, and in connection with the very acts for which by reason of his mental condition he claims to be unaccountable.By reason of this we have been unable, where a criminating fact depends upon the assertion thereof by the accuser alone and the denial thereof by the accused, to find the existence of the fact established by the clear and satisfactory evidence requisite to sustain a charge of this character, which is at least quasi-criminal. (Peyton’s Appeal, 12 Kan. 398, 405.)
The accusation in this case contains fourteen sepa- " rate charges:
(1) The attempt by letter to coach and procure a witness to falsify by denying an existing fact. We think the weight of the evidence is adverse to the charge.
(2) Secreting and withholding a case-made. It is shown and admitted that the accused did withhold a case-made for a day and two nights from another attorney entitled to the possession of it. We fail to discover, however, that any fraud or wrong was' intended or accomplished thereby.
(3) That the accused perjured himself by testifying that a certain answer was sworn to by Burnette. The answer had been seen by the accused, was signed by Burnette, and was duly certified as sworn to by a well-known notary public. The most that can be said is that the accused swore to. a conclusion reached in a legal manner, and did not know the fact from the evidence of his own senses. This was not perjury, if he believed the fact to exist, but simply incompetent testimony.
(4) Misconduct in the Smith divorce case. We find no fact in this case that should disbar an attorney. The contract was not champertous.
(5) Blackmailing Stevens to extort money from him. This charge rests entirely on the evidence of Stevens, and the denial of the most important parts by the accused. No denial, however, was necessary. If true, the story makes out a doubtful case of attempted blackmail. But the witness discredits himself. “I don’t remember,” given in answer to very numerous questions calling for facts which appear to have been necessarily within his knowledge, is the common cloak of a smooth prevaricator. If the memory of this witness is as poor as his cross-examination indicates, it would be quite unsafe to base an important finding of fact upon it.
(6, 7, 8, and 11) These charges all relate to the concoctions of whisky and morphine claimed to have been found in the accused’s desk in the office of Elliott & Burnette. It is claimed both of them drank from a bottle in the desk at different times, and that by reason thereof Burnette became almost a physical and mental wreck. The charge is most serious — a charge of poisoning. If the death of Burnette had ensued, and if the concoction were shown to have been the cause thereof, and if it were shown that the same had been administered by Elliott, or that the poison was by Elliott put in a place under such, circumstances that Burnette would probably swallow it, with a design on Elliott’s part that he should so take it, the crime of murder in the first degree would be fully established. If the facts are as claimed, and the concoction was of the deadly character sought to be proved, the crime is lower in grade only because death did not ensue; but the same moral turpitude is involved.
What is the proof to establish this grave charge? Elliott testifies that he had bought morphine in the town (Wellington), and that he told Burnette so, and also told him that he (Burnette) never got any of it. This was after Burnette returned from California, and Burnette does not seem to have denied the statement, -at least when made. Burnette also testifies that he did not buy the morphine for himself. Elliott denies that he gave or furnished to Burnette such a decoction or caused hini to drink the same. Burnette testifies that after the filing of the disbarment proceeding against him both he and Eliiott were under the influence of drugs and whisky nearly every day. For what length of time he does not say, nor does he at any time say that Elliott induced him or asked him to drink. The identity of the bottle containing the liquid analyzed by Doctor Mochel with the one taken from Elliott’s desk is quite well established, but the ■ evidence of the identity of the contents thereof is not satisfactory. According to analysis and evidence of Doctor Mochel, if Burnette’s testimony as to the frequency of their drinking be true, both Elliott and Burnette should be dead. Burnette’s, evidence does not fix the responsibility of the drinking any more on Elliott than upon himself. Even when pressed to do so he does not say Elliott induced him to drink, or even that they drank together, but says “we had been drinking it at the office.”
Nor are we satisfied that Burnette’s physical and mental ill health resulted from the use of the concoction of whisky and morphine, as alleged. The testimony of his attending physicians tends to disprove rather than to establish this theory. In short, we do not find any of these charges sustained by the evidence.
(9) This is really a double charge: (1) A conspiracy between Elliott and three other lawyers in preparing the answer of Burnette in his disbarment proceeding, knowing the same to be false; (2) that Elliott, having acted as attorney for Burnette in the disbarment proceeding, produced a copy of this answer in court, offered to identify it, and when it was ruled out as a privileged communication handed it to a member of the committee appointed to prosecute. The first branch of this charge is utterly refuted by Burnette’s own letters from California, and a number of witnesses, if not by his own evidence. The facts alleged in the second part of the charge are fully established as charged. The question then arises, Was the answer a privileged communication? We answer this question in the negative.
“In order for a communication from a client to an attorney to be within the rule excluding evidence .thereof on the ground of public policy, it must be of a confidential character, and' so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of a confidential disclosure.” (23 A. & E. Encycl. of L. 67, and cases there cited.)
The only purpose of preparing this answer evidently was that it be filed in court in the case in which it was entitled and thus made public. Burnette had evidently not treated it as private, as he had been instrumental in having the substance of it printed in a newspaper, had requested, or at least allowed, the notary before whom he verified it to read it. He had previously presented it to the very man to whom Elliott is alleged to have presented it, allowed him to read it, and not only urged that he be allowed to file it in the same case in which the breach of professional secrecy is charged but also procured others to solicit that privilege for him. He had also made the answer public by setting forth the substance of it in a petition for damages against Elliott in the same court.
(10) That Elliott conspired with others and advised Burnette to refuse to testify on August 6, 1903. If after Burnette had recovered his physical and mental health he had testified when called upon as a witness in court regarding the facts of which he had refused to speak months before, we might conclude from the circumstances that he had been influenced by some one in making such refusal. Instead, however, he again refused to speak, and at a time when it cannot be claimed that he was under the influence of Elliott or his alleged coconspirators.' This circumstance, in the conflict of evidence, lends preponderance to the negative of the charge.
(12) That for the year previous to the filing of these charges the accused had been an habitual drunkard. The evidence shows that Elliott’s conduct in the respect charged has been far from exemplary — in fact, has been such at times as should subject him to severe criticism. Yet the evidence of the successive judges before whom he has practiced law for many years shows only one instance in which Elliott has appeared in court in such a condition of intoxication as to attract attention thereto, or to affect his business capacity. No client of his, unless it be Burnette, has been produced to testify that his business has been neglected, or suffered in any way by reason of Elliott’s intemperance, or who has testified to any facts that would justify such conclusion. True it is that a man is required to show upon his admission to the bar that he is of good moral character. His license to practice after he is admitted, however, will not be revoked on account of objectionable personal habits until it is shown that such habits have rendered him unable to attend properly to his duties as a lawyer, or have rendered him unworthy of the great trust .and confidence generally accorded to the members of the profession, or that such habits have become so bad as to scandalize his profession or the courts in which he practices. We do not think the evidence sufficient to establish either of these conditions in this case.
(13) The testimony falls so far short of sustaining this charge that we pass it without discussion.
(14) Nearly fourteen years before the filing of these charges Elliott had a conversation with Judge Ray relating to a sum of money which had been deposited to indemnify sureties on bonds for the appearance of certain defendants in criminal cases then pending in Judge Ray’s court. From his understanding of the proposition the judge was justly very indignant. He made a statement in open court soon thereafter, and appointed a committee of members of the bar to draft a charge against Elliott, which was done. Elliott thereupon made a statement of his understanding of the conversation and his purpose therein, which statement differed radically from the judge’s version. Elliott’s statement seemed plausible, and apparently was given credence by the court and members of the bar, as the proceeding was dropped; and Judge Ray, as well as the members of the bar conversant with the charge, thereafter recognized Elliott, both professionally and socially, as no men of right thinking could have done if they believed Judge Ray had not been mistaken in his version of the matter.
Conceding there is no statute of limitation applicable to a charge of this nature, it must at least be said that if is very stale; and in this gwasi-criminal proceeding the action of the court, and the many years’ acquiescence therein of the members of the bar to whom the alleged facts were made known at the time, should be regarded as an acquittal of Elliott of this' charge. At least, the claim is so stale, and the circumstances so , strongly indicate .that both the bench and the bár most intimately associated with the accused concluded, after hearing the version which he gave of the conversation, that the judge was mistaken in his version thereof, that we decline to reconsider the matter now.
We have, we may say, examined with care each of the numerous charges in succession, and the evidence offered in support of the same and in rebuttal, and our conclusion is that no act of misconduct charged has been so clearly established by the evidence as to justify the disbarment of the accused. It is not a question between the accuser and the accused, but between the accused and the public. If the accused has been shown to be guilty of such misconduct that the public should be protected from the implied recommendation for integrity with which he is armed as a member of the bar, that recommendation should be withdrawn and he should be disbarred. On the other hand, his means of livelihood should not be forfeited, and the honorable position to which his ability and a life of toil have entitled him should not be wrested from him, and his declining years embittered with disgrace, unless these criminating charges or some one of them have been clearly established.
Disposed as is this court to encourage and assist in maintaining a high standard of integrity in the profession of which we are members, and realizing as we do that no profession, except perhaps that of the clergy, demands a cleaner private life or a keener sense of professional honor than does that of the lawyer, we are unable under the evidence in this case to impose this great forfeiture and penalty upon the accused. He is therefore acquitted.
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The opinion of the court was delivered by
Johnston, C. J.:
This was a proceeding brought in the district court of Wyandotte county for the disbarment of J. A. Smith, a practicing attorney in the courts of Kansas. Upon a complaint made that Smith had been guilty of malpractice, and other misconduct, the court appointed a committee of the bar to make a preliminary investigation of the charges and to report whether further action upon the complaint should be taken. This committee, after an extended inquiry, recommended that an accusation be filed against Smith. The court accordingly appointed another committee of lawyers to prepare and file an accusation against him, and one containing three paragraphs was drawn and filed.
In the first paragraph it was alleged that Smith was a material witness in a case pending in the district court of Lyon county, as to whether a certain deed purporting to convey the land in controversy was genuine or a forgery; that he was visited by J. W. Blank, who offered to give Smith $200 if he would testify falsely in the case, or would absent himself so that his deposition could not be taken or service of a subpoena be made upon him; that Smith accepted the offer, and agreed with Blank either to give the false testimony or- to absent himself so that his evidence could not be had; that Blank paid Smith ten dollars of the stipulated amount, and to secure payment of the remainder gave Smith a diamond of the value of $175; that later Blank brought an action of replevin for the recovery of the diamond against Smith in the district court of Wyandotte county, in which Smith stated and made the defense that the diamond was given to him for the immoral and illegal purpose mentioned in the offer; that the trial resulted in a verdict and judgment against Smith, whereupon he instituted a proceeding in error in the supreme court to reverse the judgment, and to that end argued there that because the diamond had been given to him for the aforementioned immoral and illegal purpose there should be a reversal of the judgment, but that upon his own statement and argument the supreme court denied any relief and dismissed the proceeding upon the grounds stated in the decision. (69 Kan. 853, 76 Pac. 858.)
In the second paragraph it was alleged that Smith came into possession of the diamond mentioned in the first paragraph, but that the exact manner in which he gained possession of it was not known to the com mittee; that upon a demand for its return to the owner Smith refused to surrender it, setting up that it was obtained for the illegal purpose mentioned in the first paragraph. The details of the transaction, the bringing of the replevin action, and the attempted review of the judgment rendered in that action, together with the defenses, statements and arguments made by Smith in those proceedings, were alleged in substantially the language employed in the first paragraph, closing with the averment that notwithstanding the final judgment for the return of the diamond to its owner Smith still refused to give it up.
In the third paragraph it was averred that Smith brought an action in behalf of a client to recover an indebtedness for labor, and, after having been informed by both of the parties to the transaction that the debt had been paid and the controversy settled, he continued the litigation, introduced false testimony and made false statements, in the absence of the defendant, by which the justice of the peace before whom the case was tried was deceived, and was induced to enter a judgment against the defendant for ten dollars, when Smith well knew that the debt had been fully paid and satisfied. '
After several motions directed at the accusation, and a motion for a change of venue, had been made and denied, the accused answered, denying the charges made against him, pleading in bar the statutes of limitation, and also a former adjudication of the charge as to the diamond, and setting forth his version of the transactions upon which the charges in the accusation were based. Much testimony was offered, upon which the court found that the charges were sustained, and, entered a judgment revoking the license of the accused as an attorney and counselor at law, barring him from "practicing his profession in the courts of the state, and striking his name from the roll of attorneys.
The first question raised on this appeal is, Was there error in refusing the accused’s application for a change of venue? In an affidavit Smith stated that he believed the district, judge entertained a feeling of ill will and prejudice toward him, citing rulings in a number of cases as indicating such a state of mind; that his apprehensions of prejudice were shared by his clients, and on that account he had been bringing most of his cases in the court of common pleas of Wyandotte county. The accused also stated in his affidavit that he acquitted the judge of any intentional misconduct or desire to wrong him, and that although the judge seemed not to be conscious of any prejudice toward him he believed the judge’s state of mind was such that he could not give the accused a fair trial. Eliminating mere conclusions, and looking to the facts stated in the affidavit, it is clear that a change of venue would not have been justified. It frequently has been held that the venue should never be changed upon this ground unless the evidence clearly establishes the prejudice of the judge. The most that can be said of the showing in support of the application in this case is that it indicates a strong belief on the part of the accused that a prejudice existed against him in the mind of the judge. It is not enough that a party apprehends or beHeves that a judge is prejudiced, but it must satisfactorily appear that prejudice in fact exists. If mere fear of prejudice in a judge would warrant a change of venue the applications therefor would be numerous. The rule established by the statute and the decisions relating to changes of venue on account of the prejudice of the judge makes it clear that no error was committed in denying the accused’s application. (City of Emporia v. Volmer, 12 Kan. 622; The State v. Bohan, 19 Kan. 28, 50; Protective Union v. Gardner, 41 Kan. 397, 401, 21 Pac. 233; The State v. Grinstead, 62 Kan. 593, 608, 64 Pac. 49; The State v. Stark, 63 Kan. 529, 66 Pac. 243, 54 L. R. A. 910, 88 Am. St. Rep. 251; The State v. Parmenter, 70 Kan. 513, 79 Pac. 123.)
It is next contended that some of the charges against Smith do not fall within the causes for disbarment named in the statute. As will be observed, the statute does not provide that the only causes for which the license of an attorney may be revoked or suspended are those specified in it, nor does it undertake to limit the common-law power of the courts to protect themselves and the public by excluding those who are unfit to assist in the administration of the law. It merely provides that certain causes shall be deemed sufficient for the revocation or suspension of an attorney’s license. (Gen. Stat. 1901, § 398.) In the early case of Peyton’s Appeal, 12 Kan. 398, 404, it was held that this statute is not an enabling act, but that the power of the .court to exclude unfit and unworthy members of the profession is inherent; that “it is a necessary incident to the proper administration of justice; that it may be exercised without any special statutory authority, and in all proper cases, unless positively prohibited by statute; and that it may. be exercised in any manner that will give the party to be disbarred a fan-trial and a full opportunity to be heard.” If there is authority in the legislature to restrict the discretion of the courts as to what shall constitute causes for disbarment, or to limit the inherent power which they have exercised from time immemorial, it should not be deemed to have done so unless its purpose is clearly expressed. It is generally held that the enumeration of the grounds for disbarment in the statute is not to be taken as a limitation on the general power of the-court, but that attorneys may be removed for common-law causes when the exercise of the privileges and functions of their high office is inimical to the due administration of justice. (Farlin v. Sook, 30 Kan. 401, 1 Pac. 123, 46 Am. Rep. 100; In re Norris, 60 Kan. 649, 659, 57 Pac. 528; Boston Bar Association v. Greenhood, 168 Mass. 169, 46 N. E. 568; In the Matter of Mills, an Attorney, 1 Mich. 392; The State, ex rel v. Laughlin, 10 Mo. App. 1, 31 S. W. 889; State, ex rel., v. Harber et al., 129 Mo. 271, 31 S. W. 889; State, ex rel., v. Gebhardt, 87 Mo. App. 542; In re Boone, 83 Fed. 944; 4 Cyc. 905, 906.)
The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rule prescribing the qualifications of attorneys, uniformly require that an attorney shall be a person of good moral character. If that qualification is a condition precedent to a license or privilege to enter upon the practice of the law, it would seem to be equally essential during the continuance of the practice and the exercise of the privilege. So it is held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. (Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552; Ex parte Burr, 4 Fed. Cas. [No. 2186] 791, 1 Wheel. Crim. Cas. [N. Y.] 503; In re O-, 73 Wis. 602, 42 N. W. 221; Delano’s Case, 58 N. H. 5, 42 Am. Rep. 555; O’Connell, Petitioner, 174 Mass. 253, 53 N. E. 1001, 54 N. E. 558; Darmenon’s Case, 1 Mart. [La.] 129; In re John Percy, 36 N. Y. 651; Penobscot Bar v. Kimball, 64 Me. 140; In re Wellcome, 23 Mont. 450, 59 Pac. 445; In re Weed, 26 Mont. 507, 68 Pac. 1115; Cohen v. Wright, 22 Cal. 293; State v. McClaugherty, 33 W. Va. 250, 10 S. E. 407; Jones’s Case, 2 Pa. Dist. Ct. 538; State, ex rel., v. Byrkett, 4 Ohio Dec. 89; 4 Cyc. 910; 3 A. & E. Encycl. of L. 302.)
The accused was charged with professional misconduct, and also with misconduct not directly connected with his professional duties; but all of the charges related to the administration of justice, and seriously affected his professional and personal integrity. Although the charges involve moral turpitude, it is not necessary to a disbarment that there should have been a conviction. (Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552; State, ex rel. Hartman, v. Cadwell, 16 Mont. 119, 40 Pac. 176; The State, ex rel. McCormick, v. Winton, 11 Ore. 456, 5 Pac. 337, 50 Am. Rep. 486; Perry v. The State, 3 G. Greene [Iowa], 550; Watson v. Citizens’ Savings Bank, 5 S. C. 159; In re Samuel Davies, 93 Pa. St. 116, 39 Am. Rep. 729; Gates’s Case, 1 Pa. Co. Ct. 236.) Even an acquittal upon a criminal charge does not prevent the disbarment of an attorney, where it clearly appears that the misconduct under investigation rendered him unfit to be entrusted with the powers and duties of his profession. (The People v. Mead, 29 Colo. 344, 68 Pac. 241.)
It is contended that the proceeding was barred by some statute of limitation, but the accused points out no particular limitation applicable to cases of this character. Staleness in a charge against an attorney might prevent its being considered, because an unreasonable delay in the presentation of a charge of misconduct might make it impossible for an attorney to procure the witnesses or the testimony which would have been available at an earlier time to -meet such charge; but the statute of limitations itself is no defense to such a proceeding. (In re Elliott, ante, p. 151; In re Lowenthal, 78 Cal. 427, 21 Pac. 7; Ex parte Tyler, 107 Cal. 78, 40 Pac. 33; In re Weed, 26 Mont. 507, 68 Pac. 1115; United States v. Parks, 93 Fed. 414; 4 Cyc. 914, 915.) It cannot be said that the charges in the present case have become stale, nor that there has been an unreasonable delay in presenting them to the court.
The accused urges as a defense that a former inquiry as to his professional standing and conduct bars the maintenance of this proceeding. In 1901 complaint as to his misconduct was made to the court, and, among other things, the diamond transaction was mentioned. The court appointed a committee to investigate the charges, and report the results, with recommendations. The committee made an extended inquiry, reported that the charges presented were not true, and their report, which was not preserved, was approved by the court, and it was ordered that the petition for disbarment be denied. The argument is that as the misconduct in respect to the diamond was included in the complaint, brought to the attention of the committee, and the committee’s report was acted upon by the court, it is not open to further consideration. The action taken in that preliminary investigation by the committee, although approved by the court, was in no ' sense an adjudication. In the first place it appears that the diamond transaction was not in fact investigated. At that time it was the subject of inquiry in the replevin action heretofore mentioned, and hence the committee concluded to leave it out of consideration. Again, the investigation appears to have been preliminary, and only for the purpose of determining whether a formal accusation should be filed and the appellant cited to appear and make answer to the charges of misconduct. Like action was taken in the present case, for it appears that the accusation was not filed until a committee of the Wyandotte county bar had inquired into the charges and recommended that further proceedings be taken. This is not an uncommon practice, especially where the court is not satisfied that the charges made are well founded, or where it has not sufficient time to make the necessary inquiry in order to determine whether the attorney should be cited before the court to answer and defend.
There is a further reason why the action taken cannot be considered as a binding adjudication. Charges of this character cannot be tried by a committee, nor can the functions of the court in this respect be delegated to any one else. The statute is specific, and expressly places this responsibility upon the court itself. It provides: “To the accusation he may plead or demur, and the issues joined thereon shall in all cases be tried by the court, all the evidence being reduced to writing, filed and preserved.” (Gen. Stat. 1901, § 401.) It was the evident legislative purpose that in cases in which the honor and dignity of the court are involved, and which so seriously affect one of its attorneys, the court itself should be the trier of both the facts and the law. In Colorado i$ is held that the testimony in such a case may be reported by a referee (The People v. Mead, 29 Colo. 344, 68 Pac. 241), but in a number of states it is ruled that not only should the judge make the findings of fact and law, but, also, that the witnesses should be examined in the presence of the court. (The State of Florida, ex rel., v. Jesse J. Finley, 30 Fla. 325, 11 South. 674, 18 L. R. A. 401; In the Matter of Albert L. Chandler, 105 Mich. 235, 63 N. W. 69; In the Matter of an Attorney, 83 N. Y. 164, 23 Alb. L. J. 129; In the Matter of an Attorney, 86 N. Y. 563.) In. the investigation of the accused in 1901 there was certainly no trial by the court, .and hence no adjudication. The testimony in the record makes it clear that such inquiry as the committee made was only preliminary, that the transactions involved here were not in fact considered by the committee, and that there has never been a previous trial by the court of the charges now under consideration.
There is complaint of inconsistency in the charges contained in the accusation, and a contention that the prosecuting committee should have been required to elect whether it would stand upon the first or second count. Both of these counts related to the conduct of the accused in respect to the diamond. In the first it was charged that money and a diamond were given to, and accepted by, the accused as a bribe to assist in defeating the ends of justice, and that when the question of possession and ownership of the diamond was presented to the court he pleaded his own immoral and illegal acts to defeat a recovery. In the second count it was alleged that the committee was unable to state the exact manner in which the accused gained possession of the diamond, but that he unlawfully refused to give it up, and when proceedings were brought for its recovery he set up that the money was paid and the diamond delivered for the immoral purpose related in the first count. It is manifest that the complaint was framed to meet the exigencies of the proof. The proceeding is not criminal, and the formal and technical requirements of criminal pleading are not necessary in an accusation. (In re Burnette, ante, p. 609.) In criminal cases, however, the pleader is permitted to charge the same offense in several counts, in order to meet the requirements of the evidence. While formal and technical pleading is not essential to this proceeding, it is important that the charges against an attorney shall be so specific as fairly to inform him of the precise nature of the misconduct with which he is accused. If the facts of ■ the charged misconduct are clearly brought to his attention, the form in which they are stated or whether they are stated in one or‘two paragraphs is not of great importance. In any event the penalty can be no more than disbarment. So, in this case, the accused was notified that the committee would endeavor to prove that the money and property weré offered to, and accepted by, him on the condition that he would either testify falsely or would assist in defeating justice by absenting himself so his testimony could not be had, and, if they "failed in establishing that, that they would attempt to show that however he may have acquired the possession of the diamond he had at least stated and pleaded that it was given to him for the immoral and illegal purpose stated. The accused could not have been misled as to the nature of the misconduct charged against him, and we think no error was committed by the court in refusing either to quash the charges or to require an election by the committee.
Little need be said as to the sufficiency of the proof upon which the judgment of disbarment rests. Although the proceeding is not criminal, it is of such a nature, and the judgment of disbarment is so severe and so direful in its results to an attorney, that something more than a mere preponderance of proof is necessary. A judgment deprives an attorney of an office, of a means of livelihood, and to a great extent of his good name, and should only be rendered upon clear and satisfactory legal proof. The evidence in the record appears to be sufficient to meet the strictest requirement in this respect. Indeed, the accused, in statements, pleadings and arguments seriously made in courts, seems to have admitted much of the misconduct alleged against him. His recital of the negotiations for the giving of false testimony by him in court, or for the evasion of a subpoena so that his testimony as to the real facts in the case could not be obtained, betrays a moral obliquity and an utter lack of appreciation of the dishonesty of his acts. The explanation that he took money and property tendered as the price of his dishonor, expecting later to make an exposure of the man who bought him, if it had been believed by the trial court, does not go far toward exculpation. Instead of resenting the corrupt offer, the money was accepted and the diamond securing a further payment was received and kept, and when the owner of the diamond brought replevin for the recovery of his property the accused set up the immorality of the transaction and his own shame to defeat the action. The testimony showing both moral and professional delinquency was such that the duty of the trial court was clear, and no other course was open than the revocation of the abused license. An attorney is admitted upon a satisfactory showing of his good character and fitness to be an officer of the court. He is afterward required to maintain the same ethical standard, and is only entitled to hold the high office of “minister of the law” during good behavior. The proofs of misbehavior and of moral and professional delinquency are so clear that there appears to be no escape from the unpleasant duty of affirming the judgment of disbarment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff was defeated in an action on a fire-insurance policy, and to reverse the judgment he prosecutes this proceeding.
The policy contained a provision that it should become void “if any change other than by the death of an insured take 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.” When the insurance was obtained the insured was the owner of the title to the property; subsequently he entered into the following contract:
“This contract and agreement, made and entered into this 16th day of June, 1908, by and between Joseph W. Baker, of Bates county, Missouri, party of the first part, and T. F. Garner, of Ford county, Kansas, party of the second part, witnesseth: That the party of the first part has this day sold to the party of the second part all his land situated in sections 4 and 5, township 39, range 30, Bates county, Missouri, consisting of 364 acres, in consideration of which the party of the second part agrees to pay to the party of the first part the sum of $10,920, to be paid as fol lows: To assume the present mortgage on said land to the amount of $4800, and half of the interest on same from March 1, 1903, to date, and one livery-stable in Dodge City, Kan., with lots comprising site of same [describing them], to be .valued at $6000, and thirteen head of horses, two surreys, one spring wagon, one cart, seven buggies, one farm wagon, four sets of double driving harness, one set of heavy work harness, seven sets of single harness, one side-saddle, one man saddle, and all other fixtures now a part of said stable; said chattel property to be valued at $1500.
“It is further agreed that the said second party is to loan the first party the sum of $3880, at eight per cent, per annum, to be secured by said above-mentioned livery-barn and chattels.
“Party of the first part agrees to give a clear and perfect abstract to his land, with a warranty deed to the same, subject to the above-mentioned encumbrance.
“Party of the second part agrees to give to the first party a good bond for a deed,- said deed to be made when said above-mentioned loan shall be repaid; and also a good and perfect abstract to same; each party is to give immediate possession to property.
“Witness our hands and seals, this day and year above written. (Signed) Joseph W. Baker.
“Witness: (Signed) T. F. Garner.
G. G. Cook.
U. S. G. Powell.”
Baker deeded to plaintiff the Missouri land, which was the full consideration to be paid by him for the insured property. The plaintiff made no conveyance, nor had he delivered possession at the time the property was destroyed by fire — July 29, 1903. The defense was that by this contract'a change had taken place in plaintiff’s interest in the subject of insurance, which, under the condition quoted, forfeited the policy.
Forfeitures are not favored, and will never be enforced if by a reasonable. interpretation of the agreement and contract of the parties they can be avoided. The provision was intended to protect the company against any increased hazard resulting from a change of interest, title or possession of the insured. An insurance company may contract against such a contingency, and if such provision of the contract be violated it would have the right to insist upon being released from liability. The company contracted for the care, supervision and vigilance of the assured in protecting the property from fire. This is largely its security against loss, and a disposition by the assured of all of his interest, title or possession in the property, or of such a substantial part thereof as would entirely or partially abate this diligence, would be a violation of the contract.
The word “interest” as used in the policy is not synonymous with title. It means some right different from title. It cannot mean a greater estate than title,since “title” as there used was intended to mean the entire estate. It must therefore have been used with the meaning generally attached to it when used in contradistinction to title — as “any right, in the nature of property, less than title.” (Anderson’s Law Diet. 562.) “In a narrower sense it was used in the English common law of real property to designate a right less than an estate.” (3 Cent. Diet. 3142.) This we think is the sense in which it was used in the policy. In the interpretation of the policy this word is important. The form of the policy was intended to cover twp classes of risks. There are large interests in real estate owned by persons who have neither title nor possession. The form of this policy is adapted to the insurance of such interests, as well as to the insurance of property where the insured is the owner of the title. Where the insured is the owner of only an interest in the estate the word “interest” used in the forfeiture clause has force, and any change in such interest would forfeit the policy; but where the insured is the owner of the title the word “interest” has no application. In the latter case, if any change take place in the title the policy would become forfeited.
The insurance in the present case was procured by one owning the title; as to him only a change in the title would forfeit the policy. We do not feel inclined to follow the decision of Gibb v. Philadelphia Fire Ins. Co., 59 Minn. 267, 61 N. W. 137, 50 Am. St. Rep. 405, because we do not believe that the word “interest” as used in the policy in that case, which was the same as the one we are considering, is broader than, and inclusive of, title; and because. in that case it was wholly unnecessary to define “interest.” After Gibb had procured the insurance he sold the insured property by a written contract, and gave possession to the purchaser, who remained in possession until the property was destroyed. This of itself was such a violation of the express terms of the policy against change of title or possession as would render the policy void.
The main contention of defendant is that the contract between Baker and Garner for the sale of the insured property, having been fully performed by Baker, is enforceable in equity against Garner; therefore, it operated as a present change of interest in the property, within the forfeiture clause of the contract. A party pleading a forfeiture must make it clear that a forfeiture has taken place; he cannot speculate upon what a court of equity would do in a given case, or anticipate its decrees, and upon an assumption that his forecast is correct ask a court to declare a forfeiture. For the purpose of finding grounds for a forfeiture courts of law will not go so far afield as to determine the enforceability of a contract in equity between parties not before it. If, however, this court should believe that specific performance of that contract could be decreed, the relief asked for by defendant would not be granted. It has been held that an executory contract to convey insured real estate does not operate as a forfeiture of the policy under a provision that it should be void “if the interest of the assured be or become other than, the entire, unconditional, unencumbered and sole ownership of the property” (Arkansas Fire Insurance Co. v. Wilson, 67 Ark. 553, 559, 55 S. W. 933, 48 L. R. A. 510, 77 Am. St. Rep. 129; Franklin Ins. Co. v. Feist, 31 Ind. App. 390, 68 N. E. 188), or where the condition of the policy is that it shall be void in case “the property be sold or transferred, or any change take place in title op possession” (Browning v. Home Insurance Company, 71 N. Y. 508, 27 Am. Rep. 86), or-“if any change take place in the interest, title, or possession of the subject of insurance.” (Erb v. Insurance Co., 98 Iowa, 606, 613, 67 N. W. 583, 40 L. R. A. 845; Insurance Co. v. Tompkies &. Co., 30 Tex. Civ. App. 404, 71 S. W. 812.)
The judgment is reversed, and the cause remanded.
All the Justices concurring. | [
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Per Curiam:
The verdict of the jury was against Mary C. Billings, who claimed damages from the Kansas City-Leavenworth Railroad Company, now known as the Kansas City Western Railroad Company, for the death of her son, who was killed in a railway accident. The offer of testimony to the effect that the track of the railway was above the surface of the street was not material, and its exclusion was not error. The ordinance of the city required that the tracks of the railway should be constructed at the same level as the established grades of the street, but as there was no testimony of the violation of that ordinance that question was not in the case. None of the rulings upon the admission of testimony appear to be prejudicial error, nor can we say that the remarks made by the trial judge of which complaint is made furnish a ground for reversal. The instructions ap pear to have fairly presented the case to the jury. The matter of excessive speed was submitted, and the jury were rightly told that the provisions of the city ordinance as to the speed at which cars should be operated had reference to the ordinary operation, and had no application to the exceptional acts of the company in clearing its tracks of snow. An examination of the criticisms of the instructions given and refused shows that no material error was committed in charging the jury, nor is any reason seen why the motion for a new trial should have been allowed.
The judgment is affirmed. | [
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Per Curiam:
This suit was brought in the district court of Douglas county by the plaintiff in error against the defendants in error for the dissolution of a copartnership and for an accounting between the partners, consisting of the plaintiff and defendants. The pleadings in evidence show that on or prior to the 5th day of May, 1902, the partnership consisted of the plaintiff, the defendant William Gibson and, his son, Lucien Gibson, and the court found that on that day the copartnership was dissolved, and that shortly thereafter Lucien Gibson died, his only heirs being his widow and minor son, who are defendants with William Gibson in this suit. The ’Court also found, in substance, that an accounting was had between the parties; at least it must be said that the findings of the court of the amount of property owned by the partnership and the amount of indebtedness against the partnership, and that each partner had withdrawn his entire capital invested therein, with the order of the court appointing a receiver, the sale of all the partnership property by the receiver under the orders of the court, the confirmation of such sale, and the application of the proceeds to the payment of the debts, amounted to a finding that there had been an accounting and settlement of the partnership estate. While there is a conflict in the evidence, there is certainly sufficient evidence to sustain the findings and the judgment of the court; and we cannot weigh the evidence here.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff in error brought a suit for divorce, alleging extreme cruelty. When he had introduced his evidence the court sustained a demurrer thereto, on the ground that his cause of action was barred by.the statute of limitations. It is agreed that the alleged cruelty and the separation occurred March 12, 1897, and the petition for divorce was filed August 6, 1904.
The attorneys are to be complimented for the brevity of the record. The case-made, the certificate of the judge thereto, and the filing of the clerk, together with the entry of appearance herein, cover less than one page, and present clearly all the questions in the case.'
The law of divorce has been treated in this state as a separate subject, and article 28 of chapter 80 of the General Statutes of 1901 enumerates the causes for which divorces may be granted and the procedure therein. With the exception of the manner of obtaining service of summons, no reference is made directly or impliedly to other provisions of the code. The article contains no limitation upon the time within which the suit may be commenced. The general statutes of limitation either specifically name the different causes of action to which the limitations apply, or define the nature of such'causes so that the different limitations and the causes to which they apply are easily understood. In these statutes none of the causes for divorce is specifically named, nor can any of such causes be classified with those which are defined in the general statutes.
Some states have fixed the time within which a suit for divorce may be commenced after an offense. With few exceptions, these statutes are generally applied to adultery. Independently of the statute, long delay in commencing the suit has frequently been taken into account in determining the sincerity of the party; but it has always been held a subject of explanation, and has never been held to be a bar. (2 Bish., Mar. Div. & Sep. §§ 410-487.)
The judgment is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
In an action of ejectment the plaintiffs challenged the validity of a guardian’s deed relied upon by the defendant. Findings of fact were made under which the trial court held that, although there were various irregularities in the proceedings upon which it depended, the deed was not absolutely void. The plaintiffs prosecute error.
The findings show that a notice of the hearing of the application of the guardian for leave to sell the real estate of his wards was served upon them two days after the time therein named for such hearing. The actual hearing was had two weeks later. The trial court held that the service of the notice shown by the record was insufficient, but that, a presumption of the giving of a new notice arose from the confirmation of the sale, and upon this theory sustained the deed. This view we are constrained to regard as erroneous. The statute in requiring a notice of the hearing of a guardian’s application to sell real estate to be served upon the ward makes such notice jurisdictional, although in the absence of such requirement it is not generally so regarded. (15 A. & E. Encycl. of L. 63.) If an inference of the giving of a notice was derivable from recitals found elsewhere in the proceedings, such recitals must be deemed to have reference to the one notice affirmatively shown by the record, and no presumption of a different notice’s having been served can be.invoked in support of the deed. (Mickel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161.)
The evidence is not preserved in the record brought here, and by reason of the theory adopted by the trial court there was no occasion for finding the facts in as full detail as would otherwise have been necessary. As a result of this situation the order of reversal will not include a direction for entering judgment, but merely one for granting a new trial, and as upon a second hearing the facts regarding the notice may be presented in a different aspect it becomes important to consider the other objections made to the deed.
The guardian’s petition for leave to sell set out as a reason for such sale “that it will be for the interest of said minors .that said real estate be sold for the following reason, viz., to pay debts of the estate.” This falls far short of showing affirmatively conditions which under the statute will authorize a sale, and which exist only “either when such sale ... is necessary for the minor’s support or education, or where his interest will thereby be promoted by reason of the unproductiveness of the property, or [on] its being exposed to waste, or any other peculiar circumstances, making it to the interest of the minor to have the property sold.” (Gen. Stat. 1901, § 8299.) Yét the expression “to pay debts of the estate” may be interpreted to refer to indebtedness necessarily incurred by or for the minors themselves, and it is conceivable that upon the hearing facts may have been shown sufficient to bring the case within the very terms of the statutory requirement. We do not think the petition was so defective as to render the proceedings under it absolutely void, or the deed open to collateral attack.
“Whether the petition is in proper form, or sets forth sufficient facts, are matters for the determination of the court in the exercise of its jurisdiction. Of course, if a mere blank paper is filed as a petition, jurisdiction would not attach, because there would be nothing for the court to act upon; but when a petition contains sufficient matters to challenge the attention of the court as to its merits, and such a case is thereby presented as authorizes the court to deliberate and act, although defective in its allegations, the cause is properly before the court, and jurisdiction is not wanting. This- principle underlies all judicial proceedings.” (Bryan v. Bauder, 23 Kan. 95, 97.)
The real estate of the minors which was the subject of the sale was an undivided one-third interest in a city lot, which interest was sold for $333.33. The appraisement read:
“We, the above-named appraisers, do hereby certify that we have viewed the following-described real estate situated in said county, to us shown by U. M. Beachy, as guardian, to wit, one-third interest or part in lot 23, block 98, Main street, in the city of Ottawa, and we do hereby appraise the same at i2()/o dollars amounting in all to the sum of twelve hundred dollars.”
It is claimed that this shows that the interest of the minors in the lot was appraised at $1200, and that a sale for less than three-fourths of that amount was therefore void. The report of the appraisers was ambiguous, but was open to the construction that in their judgment the lot itself was worth $1200, and the interest of the minors $400. Indeed, there seems no other reasonable inference to be drawn from their inserting therein “%=$400.” It might be argued that as there were three minors who were tenants in common of the property to be sold the division by three was intended to show the value of the interest held by each, but as all the proceedings had regard to the sale of their collective titles, and not to the separate sale of the title of each, this hypothesis is untenable. The ambiguity appears to have resulted from the careless use of a printed blank.
It seems probable that the statute of limitations (Gen. Stat. 1901, §4444, subdiv. 2) has barred the claim of the oldest of the plaintiffs, but this cannot be ascertained from the record, which is silent as to the date of the recording of the guardian’s deed.
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
MASON, J.:
A petition was presented to the commissioners of Barber county for the alteration of a highway. Viewers were appointed, and upon their report the board ordered the desired change. Mrs. Sarah E. Wisner, a landowner whose interests were affected, filed a petition in error in the district court attacking the validity of the proceedings upon the ground that the road petition was void and conferred no jurisdic tion on the county board, for the reason that it did not intelligibly indicate what action the petitioners wished to have taken. The district court held that the petition was sufficient, and rendered judgment accordingly. Mrs. Wisner prosecutes error. The road petition in question reads as follows:
“The undersigned petitioners, householders of the county of Barber, state of Kansas, and residing in the vicinity of the road herein prayed for, respectfully petition your honorable body to cause to be reviewed, altered, and changed, the following-described road, viz.:
“Road No. 141, commencing at the southeast corner of the southwest quarter (%) of the southwest quarter (1/4) of section three (3), township thirty-two (32) south, of range ten (10) west of the sixth P. M.; thence north on quarter quarter-line, according to the Tweedale survey of 1884, to intersect original road No. 141, said road to be forty feet wide. And your petitioners will, as in duty bound, ever pray, etc.”'
The defendants in error maintain that the obvious meaning of this is that the petitioners ask that road No. 141 be changed so as to conform to the description given. The plaintiff in error insists that to have that effect the petition should have employed some such formula as the following: “To cause to be reviewed, altered and changed the following-numbered road, viz., road No. 141, so that said road shall be located as follows, commencing,” etc.
Clearness would doubtless have been promoted by such a statement, but we think the form that was used was capable of being construed to mean the same thing. It is plain that such is the meaning intended, or that there is an entire failure to express any intelligible idea. The effort should of course be to give force to the language employed, if possible, rather than to reject it as meaningless. We think the court properly held that the petition was sufficient.
The district court dismissed the petition in error instead of affirming the action of the commissioners, but as it is manifest from the record that the ruling was made upon the merits of the controversy the form of the order is not regarded as material. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This is a case brought to exclude the defendant from all right under a certain oil-and-gas lease made by the plaintiffs. After the petition, answer and reply were filed and the case came on for trial the attorney for plaintiffs stated the case to the court; whereupon the defendant moved for judgment on the pleadings and statement of counsel, for the reason that, all taken .together and conceded to be true, no cause of action had been shown against the defendant. This motion was allowed. The plaintiffs excepted, and now assign that ruling as error.
To ascertain whether or not this ruling was correct necessitates a careful examination of the lease, which is attached to the petition, an examination of the averments in the petition, and of the opening statement of counsel. There is nothing whatever in the brief of the plaintiffs in error concerning these important matters, except a reference to the page of the record where they may be found. There is but one record, and it is impractical for each member of the court to make such examination thereof as is necessary for the determination of the question presented. To provide for such cases, so each member of the court can examine with care the papers and statements involved, rule 10 of this court was adopted years ago, and has been printed in and distributed with the dockets every month since. Every lawyer must be familiar with it. The rule reads:
“The brief for plaintiff in error or appellant shall be printed, and shall contain: (1) A full statement of the essential facts of the case; (2) a specification of the errors complained of, separately set forth and numbered; (8) the argument and authorities in support of each point relied on, in the same order, with pertinent references to the pages of the record. When the error alleged relates to the admission or rejection of evidence, the brief shall quote the full substance of the evidence admitted or rejected. When the error alleged relates to instructions given or refused by the court or to a ruling on the sufficiency of the petition or other pleading, or of an affidavit or the construction or effect of a contract or any document, order, entry, or paper, the instructions given or refused, the pleading, contract, document, order, entry or paper shall be set out in full. The brief of the appellee or defendant in error shall also be'printed, and contain: (1) Any points made challenging the sufficiency of the record, or the plaintiff in error’s right to be heard; (2) a full statement of any additional facts shown by the record, and deemed essential, with pertinent references to the pages thereof; (3) citations of authorities and discussions of alleged errors, in the same order as in plaintiff in error’s brief.”
To disregard this rule, in a case where the necessity for a compliance therewith is so apparent, seems inexcusable. We very much regret summarily to dispose of cases for reasons of this kind, but it is important both to the court and litigants that this rule be enforced, and we feel that this necessity justifies such disposition. The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The only paper filed in this court in this case is a, document certified by the cleric of the court to be a copy of the information, warrant, and bill of exceptions. As no transcript of the record in the district court is presented this court has no jurisdiction, and the case is dismissed. | [
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The opinion of the court was delivered by
Mason, J.:
The legislature of 1905 passed a law (Laws 1905, ch. 167) to authorize the county commissioners of Gove county to build and equip a courthouse without a vote of the people. The maximum cost of the building was fixed at $16,000. Provision was made for the expense of the building and equipment by the levy of a special annual tax of not more than three mills on the dollar for not more than four years, the proceeds of these levies to form a separate fund to be known as the “county building fund,” against which warrants were to be drawn for all obli •gations arising from the construction and furnishing of such court-house. A further provision of the act, upon the construction and effect of which the present litigation turns, reads as follows:
“The said board of county commissioners are hereby ■authorized to use and expend in the erection, equipment and furnishing of said court-house and county-office building, in the year or years in which a tax may be levied, as they may deem necessary, in addition to the amount or amounts raised by the levy of the tax ■as herein provided for, such sum or sums from the general fund of said county not otherwise appropriated after all other running expenses of said county shall have been provided for.” (Laws 1905, ch. 167, §3.)
A tax having been levied under color of such statute, ■a suit was begun to enjoin its collection, upon the ground that the act was unconstitutional. An order was made granting a temporary injunction, to reverse which this proceeding is brought. The only attack upon the validity of the statute which if will be necessary to consider is based upon the claim that the ■portion above quoted is void because it attempts to authorize the proceeds of a tax to be used for a purpose different from that for which it was levied. The ■plaintiffs in error practically concede that if this portion of the act means anything at all it is open to the -objection urged, but they argue, first, that it is unintelligible and may be disregarded entirely, and, second, that if it 'is given a construction which renders it obnoxious to the constitution it may be rejected on that •ground without affecting the validity of the remainder •of the act. The three questions to be determined are, therefore: (1) Does the language quoted mean that the commissioners may use in the construction of a court-house such part of the general revenue fund of ■each year as shall prove not to be needed to pay the ■current expenses of that year? (2) As so construed, .is this part of the act void? (3) If so, is it so far an independent provision that the remainder of the act may stand, notwithstanding its invalidity?
The criticism of the language of the part of the act which is quoted is based upon the apparent incompleteness of the last clause, introduced by the words “such sum or sums,” the contention being that the omission of “as,” the correlative of “such,” leaves the phrase indefinite and meaningless. It is asserted in the brief of plaintiffs in error that “no pedagogue, however high his learning, could successfully parse this sentence and diagram it.” This may be true, but it is not important. “The rule that bad grammar will not defeat the operation of a statute is old- and well settled.” (26 A. & E. Encycl. of L. 612.) If it be thought necessary to provide the missing “as” it may be located in either of two ways. The sentence may be deemed elliptical, the words “as are” being understood between “county” and “not,” resulting in this reading: “Such sum or sums from the general fund of said county [as are] not otherwise appropriated after all other running expenses of said county shall have been provided for.” Or the phrase “as they may deem necessary” may be transposed so as to follow “such sum or sums,” giving the reading: “Such sum or sums as they may deem necessary from the general fund,” etc. Either of these interpretations would be permissible under the established rules governing statutory construction. (26 A. & E. Encycl. of L., 612, 618.) But probably a sufficient solution of the problem is to be reached by a reasonable consideration of the language as it stands, with a purpose to arrive at its intended effect. So regarded, there is no difficulty in saying that the legislature clearly meant to authorize the commissioners in their discretion to use the unexpended balance of the general revenue fund for several years toward paying: for the construction of the court-house.
Although, as already said, it is practically conceded that this view renders this much of the statute uncon stitutional, it may not be out of place to state the grounds that compel that concession. Section 4 of article 11 of the state constitution provides that “no tax' shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.” (Gen. Stat. 1901, § 205.) The phrase “general fund,” as applied to the fiscal management of a Kansas county, has a definite and well-recognized meaning. It covers the proceeds of a tax levied to provide' for the usual current expenses. The building of a court-house is a special or extraordinary matter, and not one included in the purposes for which the general tax levy is made. To permit the diversion to that use, therefore, of any part of the unexpended proceeds of a general revenue tax would be a violation of the spirit and letter of the constitution. (National Bank v. Barber, Treas., &c., 24 Kan. 534; A. T. & S. F. Rld. Co. v. Woodcock, Treasurer, 18 Kan. 20; The State, ex rel., v. Comm’rs of Marion Co., 21 Kan. 19.)
It remains to consider whether the invalidity of this portion of the act vitiates the whole of it. It would serve no purpose to review the cases deciding the effect of the partial unconstitütionality of statutes. Each of necessity turns upon its own peculiar facts, and throws but little light upon the determination of others. There is no difficulty in stating the general rule, however much doubt may arise in its application. When a court finds that one part of a statute is in contravention of the fundamental law, the inquiry, so far as relates to the effect of this holding on the remainder, is whether the legislature would have passed such remaining and unobjectionable portion without the obnoxious feature. To give effect to any part of such act the court must be convinced that the legislature intended that part to become the law, uninfluenced by any consideration growing out of the provisions that were beyond the legislative power. It is not enough that it cannot be said with positiveness that the joinder with the objectionable 'matter did contribute to the passage of the rest of the act; there must be an affirmative assurance that the desire to accomplish the unconstitutional purpose formed no part of the motive of the lawmakers in permitting the passage of that portion of the act which is free from objection. The court’s duty is to ascertain and carry out the legislative will — not what the lawmaking body may possibly have desired, but what there is satisfactory evidence that it did desire. The fact that the legislature enacts a law embodying two propositions, which are so related that either may naturally have served as a reason for the other, creates no presumption that it wished either to be enforced separately. That presumption arises in favor of one of such propositions only when there is ground to believe that it received the legislative sanction on its own merits and not because of its union with the other. Therefore “when it appears . . . that the passage of the invalid section may have been the inducement or compensation for the passage of the constitutional sections, then a removal of the void part must cause the whole act to fall.” (Conklin v. Hutchinson, 65 Kan. 582, 584, 70 Pac. 587.)
In the present case it must be assumed that the legislature, in undertaking to decide for the people of a county a matter which it is the general policy of the law to permit them to regulate for themselves, made an investigation of the needs and resources of the community affected and acted upon the basis of the information so obtained — that the probable surplus that might be anticipated from one year’s general revenue was estimated, as well as the amounts likely to be obtained from the special tax levies, and that the amount to be expended for the court-house and the rate of the special tax may have been fixed with reference to these estimates. The act presents a complete and symmetrical plan for accomplishing a given object. In its title one of its purposes is stated to be “to appropriate money from the general fund” of the county to pay for the expenses of building and equipping the courthouse. From the nature of the case it appears that the provision having relation to the diversion of a part of the general revenue of the county to a building fund may have been an inducement for the acceptance of the rest of the act. We cannot say that this provision was so separate from, and independent of, the others that we are warranted in presuming that the legislature would have consented to any of them without this one. It follows that the entire act must be held void. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
MASON, J.:
The Kansas City, Outer Belt and Electric Railroad Company, which for convenience will in this discussion be designated as the railroad company, is a corporation engaged in the construction of an ordinary railroad, to be operated by steam. The Kansas City Western Railway Company, which will be called the electric railway company, is a corporation engaged in the operation of what it describes as a street-railway, extending from Kansas City to Leavenworth. The former company, desiring to build its road so as to cross that of the latter at a point within the city of Kansas City, Kan., not upon a street or other public place, made an application to the board of railroad commissioners asking that it investigate the matter and make an order permitting such crossing and fixing the manner in which it should be made. The board dismissed the application upon the ground that it had no jurisdiction. The railroad company now seeks by mandamus to compel the board to entertain its application and make a decision upon the merits. An alternative writ has been issued, an answer filed, and the facts agreed upon.
The plaintiff founds its action upon that part of section-5974 of the General Statutes of 1901 which reads:
“Any railroad company authorized to operate a railroad in this state desiring to cross or unite its track with any other railroad upon the grounds of such other railway corporation shall make application in writing to the board of railroad commissioners, stating the place of crossing or intersection; whereupon the board of railroad commissioners shall fix a day for the hearing of such application, and notify the railway corporations interested, at which timé, unless further time be granted by the board, the corporations inter ested shall be heard in regard to the necessity, place, manner and time of such crossing or connection; and upon such hearing either party, or the board, may call and examine witnesses in regard to the matter; and the board shall, after such hearing and a personal examination of the locality where a crossing or connection is desired, determine whether there is a necessity for such crossing or not, and, if so, the place thereof, whether it shall be over or under the existing railroad, or at grade, and in other respects the manner - of such crossing and the terms upon which the same shall be made and maintained.”
The question to be determined is whether the electric railway company is a railroad company within the meaning of this statute. The plaintiff claims that it is. The defendants claim that it is not, for these reasons: (1) That it is engaged in operating a street-railway only, while the statute has no application to any roads but such as for the purpose of the distinction are called commercial railroads, and (2) that it employs only electricity as a motive power, while the statute applies only to railroads operated by steam.
While the word “railroad” in an act of the legislature is ordinarily held not to include a street-railway (The State v. Cain, 69 Kan. 186, 76 Pac. 443), this is not an arbitrary and inflexible rule, and where street-railways are within the spirit and purpose of a law, although not expressly named, they have been regarded as covered by the general term “railroad.” (For illustrations of both classes of cases, see 7 Words and Phrases Judicially Defined, pp. 5904-5907. See, also, Railroad Co. v Jackson, 70 Kan. 791, 79 Pac. 662.) In the present case it will not be necessary to decide whether the statute invoked by plaintiff was intended to apply to any but commercial railroads, nor whether under the agreed facts the line operated by the electric railway company was strictly a street-railway, which is itself a question not free from doubt. The section from which the foregoing quotation is made is a part of chapter 286 of the Laws of 1901, section 37 of which (Gen. Stat. 1901, § 5997) reads:
“In construing this act, unless such meaning be repugnant to the context or the manifest intention of the legislature, the term ‘railroad company’ shall include and be construed to mean any incorporated railroad company, or any express or transportation company or other common carrier, or any railroad-bridge company, or any person or persons, lessee, assignee, trustee, receiver, partnership, joint-stock company, or corporation, engaged wholly, partially, jointly or severally in laying out, constructing, owning, operating, using or maintaining any railroad operated by steam, or any portion or part of such railroad line. The word ‘person’ shall include persons, partnerships, joint-stock companies, or corporations.”
A first consideration of this section naturally creates an impression that its intention and effect is to confine the operation of the law absolutely to steam railroads, which impression is intensified by an examination of section 7 of the same act (Gen. Stat. 1901, § 5967), reading:
“Said commissioners shall have the general supervision of all railroads operated by steam within the state, and all express companies, sleeping-car companies, and all other persons, companies or corporations doing business as common carriers in this state; and shall inquire into any neglect or violations of the laws of this state by any person, company or corporation engaged in the businéss of transportation of persons or property therein, or by the officers, agents or employees thereof; and shall also from time to time carefully examine and inspect the condition of each railroad in the state, and of its equipment, and the manner of its conduct and management with reference to the public safety and convenience.”
These two sections are but reenactments of parts of the original act creating a board of railroad commissioners in this state (Laws 1883, ch. 124, §§ 5, 26), which was' repealed in 1898 (Laws 1898, ch. 29) and readopted with various changes in 1901. Their lan guage was apparently borrowed from an Iowa law passed in 1878. (Laws of Iowa, 1878, ch. 77, §§ 3, 16.) It might be argued that at the time the test of being “operated by steam” was adopted as a means of classifying railroads steam was the only recognized motive power employed for rapid transit, and that therefore the phrase should be interpreted as covering any mechanical force, such as electricity, that afterward came into use for that purpose. This view was taken by the New York supreme court (73 N. Y. Supr. Ct. 366, 21 N. Y. Supp. 1046) of a similar expression occurring in a contract entered into in 1882, but the court of appeals was of a different opinion and accordingly reversed the case. (P. P. & C. I. R. R. Co. v. C. I. & B. R. R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610.) If the argument were otherwise convincing the failure to modify the language of the sections quoted in 1901, when the entire act was remodeled, must betaken to indicate that notwithstanding the changed conditions since the board of railroad commissioners was first established the legislature was still content to limit its powers to the control of railroads operated by steam.
The plaintiff, however, contends that a close scrutiny of both sections will justify the conclusion that the phrase “operated by steam” is intended to limit the word “railroad” only with respect to its use in the very clause in which it occurs, and that it is not to be regarded as having relation to any other part of the sentence. By this method the construction to be placed upon section 37 (Gen. Stat. 1901, § 5997) might be thus indicated: “The term ‘railroad company’ shall include and be construed to mean (1) any incorporated railroad company, or (2) any express or transportation company or other common carrier, or (3) any railroad-bridge company, or (4) any person . . . or corporation, engaged • ... in laying out, constructing, owning, operating, using or maintaining any railroad operated by steam.” And that of section 7 (Gen. Stat. 1901, § 5967) in this manner: “Said commissioners shall have the general supervision of (1) all railroads operated by steam within the state, and (2) all express companies, sleeping-car companies, and (3) all other persons, companies or corporations doing business as common carriers in this state.”
Granting that the interpretation suggested is consistent with the rules of grammar, and even assuming that it would be required by .a close adherence to the very letter of the statute, its adoption is forbidden by two considerations: It would manifestly give the law a broader operation than ever could have been intended, and it would entirely destroy the force of the words “operated by steam.” It requires no argument to prove or example to illustrate that it was not the purpose of the legislature to vest in the railroad commissioners jurisdiction over all railroad-bridge companies and all transfer companies, or even over common carriers of every sort. If such were the case there could be no occasion for distinguishing between the different classes of railroads. The express and repeated affirmance that the board is to exercise control-over railroads operated by steam by the plainest implication denotes that railroads not so- operated are excluded from the scope of its duties.
We conclude that the railroad commissioners have no general jurisdiction over a company engaged in the operation of an electric railway; that such a company is not included within the term “railroad company” as ordinarily employed in the statute referred to'; and that the language of the section relating to the crossing of railroad-tracks does not manifest an intention to give that part of the law any wider application in this respect.
A final claim of the plaintiff is that the electric railway company is within the control of the board of railroad commissioners by reason of the fact that the charters under which it exists and does business authorize it to employ steam as a motive power, although it in fact has not done so. It is agreed that the road as now constructed is only adapted to the use of electricity; that being true, its owner is not now engaged “in laying out, constructing, owning, operating, using or maintaining any railroad operated by Steam,” and is not within the terms of the statute.
A peremptory writ is denied.
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The opinion of the court was delivered by
Graves, J.:
This suit was brought by the attorney-general and the county attorney of Sedgwick county, in the name of the state, to enjoin the defendants from carrying on the business being done in the name of the Wichita Mutual Burial Association, for the reason that such business as conducted is contrary to law. The district court of Sedgwick county refused the injunction, and the state comes here on proceedings in error.
It is claimed that this association does an insurance business without being incorporated and without complying with the statute relating to such organizations. The statute alleged to be violated is section 3386 of the General Statutes of 1901, which in part reads:
“It shall be unlawful for any company, corporation or association, whether organized in this state or elsewhere, either directly or indirectly to engage in the business of insurance, or to enter into any contracts substantially amounting to insurance, or in any manner to aid therein, in this state, without first having complied with all the provisions of this act.”
It is contended by the defendants that the business carried on by the Wichita Mutual Burial Association is not insurance; that the contracts made by it do not substantially amount to insurance, or in any manner aid therein, and therefore the above statute does not apply thereto.
Whether such business is insurance within the purview of such statute is the sole question presented. The facts have been agreed to, and from them- it appears, in substance, that I. W. Gill, an undertaker at Wichita, Kan., organized the defendant burial association upon a plan and scheme specially prepared and copyrighted. The association is not incorporated, and has not complied with the provisions of the statutes of the state relating to insurance. It has no lodge or other place provided for holding meetings or transacting its business. It has no ritual, and no meetings of any kind except upon call of the president, when by him deemed necessary, or when required by the written request of twelve members. It purports to have a president, vice-president, secretary, and treasurer, who constitute a board of control, but I. W. Gill is the secretary and treasurer, and manages and controls the entire business of the association. He collects, handles and disburses the funds, without giving security or being required to account therefor. He is the official undertaker, and has exclusive charge and management of all the burial services that the association furnishes. Officers are elected annually, if necessary. Any person in good health, between the ages of one and seventy years, can become a member. Membership continues while assessments are paid. When payments cease, all rights and what has been paid are forfeited. The right to receive burial benefits continues during the existence of the association.
An assessment of five cents upon members under ten years of age, and of ten cents upon those ten years of age or over, is made as often as necessary to defray the expenses of the association. The only expenses are those included in the burial benefits. Members who pay assessments of ten cents are entitled to a funeral worth one hundred dollars, other members fifty dollars. Each member receives a certificate of membership, executed by the principal officers of the association, which states in substance that the holder is a member and entitled to all the benefits of the organization, as provided by its by-laws. Each member also receives a book in which all assessments are entered and receipted for when paid. The secretary and treasurer is required to keep a book showing a list of members, deaths, collections, disbursements and other business transactions, which is open to the inspection of members. I. W. Gill is the only person to whom members can apply for burial service, or upon whom they can rely to furnish future burial benefits in consideration of prior assessments paid. When this suit was commenced the membership of this association was about 8000, and the management had been in all respects satisfactory.
The association was organized November 1, 1900. No such organization had existed in the state prior to 1899. The funds collected are used exclusively for the payment of burial expenses of deceased members, and surviving relatives are not benefited thereby in any other manner. The object of the association, as stated in its plan of organization, is “to provide a plan for the payment, by assessment, of the funeral expenses of each member.”
We conclude from the foregoing facts that the business designed to be transacted under the plan of the Wichita Mutual Burial Association is plain, ordinary insurance. Membership in this association insures to each member above ten years of age that which is equivalent to one hundred dollars cash, payable at the death of such member to whomsoever would otherwise defray the burial expenses of such decedent.
If the certificate of membership issued by this burial association be designated a “policy,” the assessment a “premium,” and those who are relieved from paying the funeral expenses of the deceased member “beneficiaries,” this association, both in general plan and phraseology, would be a substantial duplicate of the ordinary mutual-insurance company.
' The fact that no beneficiary is specifically named deserves little consideration, since ^ in reality one exists, and may be ascertained with as much certainty as if directly and specifically mentioned. Whoever would otherwise pay the burial expenses of the deceased member is, by being relieved of that burden, as directly benefited to the amount of such expenses as if the cash were paid immediately to such person. If the deceased member leave an estate, the whole thereof, undiminished by the burial expenses which would otherwise be paid therefrom, will be received by his heirs. If he leave no estate, then his immediate rela-' tives and friends who would otherwise have to furnish the expenses of his burial will be benefited by being relieved of that burden.-
This association does not belong in the category of benevolent and philanthropic societies which furnish relief to their unfortunate and distressed members out of funds contributed for that purpose. In such associations it is not contemplated that every member will be the recipient of the relief thus provided. Financial distress, sickness and misfortune visit many people, but they are usually of temporary duration, and, when relieved, the sufferer is in a condition to return in kind the generous assistance which has been, extended to him. Societies of that kind are in a large measure benevolent and charitable. Contributing members anticipate the possibility of being at some time benefited from the fund contributed, but their anticipation is only a possibility, as comparatively few members receive relief therefrom.
The burial association, however, discloses no charitable or benevolent features. Membership in it does not involve fraternity, social intercourse, or even or dinary casual acquaintance. The contract with each member is based wholly upon business considerations. The assessments are paid for the purpose of securing thereby a burial worth one hundred dollars. The uncertainty as to when the funeral will take place gives each member good reason to suppose that it will probably be needed long before the assessments amount to the sum which it is expected to cost. We think this association is doing an insurance business, and should comply with the laws of the state.
The judgment is reversed, and the district court directed to grant a perpetual injunction, as prayed for in plaintiff’s petition.
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The opinion of the court was delivered by
Graves, J.:
The only question involved in this case is the statute of limitations as applied to a covenant of warranty in a conveyance of real estate. The facts briefly stated are these:
• In 1889 the plaintiff in error conveyed the land in controversy to the defendant in error by an ordinary deed of general warranty, in consideration of $954.20 cash paid at that date. At the time of such conveyance the grantor held a patent to the land from the United States. The land was occupied by one N. L. Ard, who claimed it as a settler under the homestead and preemption laws of the United States. He settled thereon in 1866, long before the plaintiff in error received its patent thereto. On July 26, 1866, the United States, by an act of congress, granted the alternate sections of a ten-mile strip of land to the plaintiff in error, then known as the Union Pacific Railway Company, Southern Branch, upon conditions named in the grant. To indemnify the company from loss on account of lands to which homestead and preemption rights might attach before these conditions were complied with, the act provided that the company might select in lieu thereof an equal amount of land from lands adjacent to the ten-mile strip" belonging to the United States. There was a large number of settlers upon these lands claiming under the homestead and preemption laws, and a sharp controversy arose between them and the railroad company as to their respective rights thereto.
The land in controversy in this action was outside the ten-mile strip. On November 3, 1873, the company selected it as an indemnity for lands lost as before stated. The controversy between the settlers and the company involved many homes and large and valuable tracts of land. It aroused great excitement, and many lawsuits were commenced relating thereto, both in the federal and local courts. The claims of the respective parties were subjects of public discussion, and were matters of general notoriety and common knowledge. This controversy continued without interruption from the date the land was selected by the company to December 19, 1900, a period of sixteen years prior to the execution of the conveyance to the defendant in error. To settle this dispute Pratt, the defendant in error, brought an action of ejectment against Ard in 1889 to recover a part of this land. The case was carried to the supreme court of the United States, where it was decided in favor of Ard on March 4, 1895. (Ard v. Brandon, 156 U. S. 537.) In 1894 the defendant in error commenced an action of ejectment against Ard to recover another part of the land involved in this action. This case was taken to the supreme court of this state, and decided against Pratt on June 8, 1901. (Pratt v. Ard, 63 Kan. 182, 65 Pac. 255.) On December 19, 1900, in a case brought by the United States in the circuit court for Kansas against all parties interested in the ten-mile strip and indemnity lands, the patent to the plaintiff in error for the lands involved in this action and the conveyance to the defendant in error thereof were canceled, and soon afterward the land was patented to Ard. The defendant in error was never in possession of this land, and never re ceived any profits therefrom because of the adverse possession of Ard. During the progress of the litigation, and after the conveyance to the .defendant in error, considerable correspondence occurred between the attorneys for the company, who were fully authorized to bind the company thereby, and Pratt and his attorneys, among which were the following letters from T. N. Sedgwick, general attorney for plaintiff in error:
“Parsons, Kan., November 18, 1895.
“I have your favor of the 16th, stating that the case of yourself against Ard for possession of the east half of the southeast quarter of 2-26-20 was decided against you by the court and in favor of Ard, and I note what you say about not taking the case further unless the-company requires it.
“You will readily understand that you are hardly in a position to compel the company to assume all responsibility in this case at this late day. This suit has been- pending since January 5, 1895, the date of the filing of your petition, and yet no notice whatever was given the company of the pendency thereof until the last ten days, and then we were right in the midst of a half a dozen courts, where we had more business than we could attend to. Of course, if you had given us notice earlier we could have assumed the responsibility which you now ask us to assume, but it was utterly impossible for me to be present at the trial of this case. I can only say we desire the case carried clear through all the courts.
“From your statement of the case to me Mr. Ard has not a ghost of a show, in my opinion. I have great confidence in the ability and integrity of Mr. Cates and Mr. Foust, and have no doubt they made the best case possible for you to make.
“I hope you have taken time to take the case to the supreme court, and as soon as I can get time I will investigate the matter, and if you do not desire to carry the matter further I will do it myself in your name.
“You spoke of the other cases. Of course, I know nothing of the other cases that you have lost, except the other piece of land owned by Mr. Ard. If you have any claim against the company which you have not presented, and which you desire to make, you will have to make it and present it in due form, so that it can be properly investigated.
“Please write me how much time you have to make a case for the supreme court in the case of yourself against Ard, and whether or not you have the record in shape and tried it with a view of going to the supreme court. Of course, we do not give up on single trial.”
“Parsons, Kan., February 18, 1898.
“I have, before me your favor of the 12th instant, and also yours of January 30, regarding the case of yourself against N. L. Ard, which you designate as the statute-of-limitations case.
“This case was taken to the court of appeals at Fort Scott, the record being filed there October 28, 1896, as shown by the clerk’s letter to me. A waiver of summons was filed in the case on November 10, 1896. Its, number on the clerk’s docket is 422.
“With reference to your claim for refund of money, I can tell you nothing more than what I have already told you. At Mr. Rouse’s request, I sent him a statement of such lands as I supposed we would eventually be called upon to refund the purchase-money, and yours was included in the list. Since that time patents have been issued to some of the land, and certain decisions have been rendered which looks as though our title to all this land would be good. I apprehend our company is waiting to see what the decision of the circuit court will be with reference to these lands. If your title is made good, there is nothing then due you from the company; if, on the other hand, your title is not made good, we certainly will have to refund you the money, I suppose. But you ought to, wait patiently; as the others are doing, until this litigation is determined. I know how you feel about it, and you do not owe me any apology for anything you have said.”
“Parsons, Kan., March 28,1900.
“I have before me your favor of the 27th, and I note you say that you sent me a copy of a letter-from the commissioner to the register of the Topeka land-office sent you by -Mr. Pratt, and asking me to return the same. Beg to advise that the papers you sent were sent to our attorneys, Britton & Gray, and were returned to you with the answer of Britton & Gray on March 3. I at the same time enclosed you a copy of the protest which the railway company filed in the local land-office. You will find these papers all together.
“With reference to the appeal from the local land-office: It does not seem to me that it is necessary to take any notice whatever of the decision of the local land-office. The patent for the land has already been issued, and the local office, and in fact the entire land department, is already without jurisdiction, and cannot obtain jurisdiction of this land until the court, by some proceeding instituted for that purpose, sets aside the present patent. If I obtain judgment against Ard in the case of U. S. v. M. K. & T., I will have him ejected from the land. On the other hand, the only way that Ard can obtain a title to the land is by going into court and instituting a proceeding to set aside the present patent, and if he is successful then he can make his proof before the local land-office. But nothing that is done in the local land-office or by the land department would have any effect whatever upon the present litigation regarding the title to this land. Therefore I see no occasion for worry, trouble or expense over what may be taking place in the local land-office.”
“Parsons, Kan., April 7, 1900.
“I have before me your favor of the 6th instant, regarding the contest case pending in the local land-office between Ard on one side and yourself and the company on the other. I have advised that we pay no attention whatever to this case, because the supreme court of the United States has decided that when a patent has once issued to a piece of land the land department of the United States has lost jurisdiction, and cannot again entertain an application to enter the "land, and any patent subsequently issued is absolutely void. Judge Stillwell has so held in a case in Woodson county.
“The land department seems to be misled entirely by the decision of the case of yourself against Ard, wherein the supreme court held that Ard should have been permitted to enter the land, but in that decision the court did not set aside the patent, and" no application to enter the same could be entertained until it is set aside.”
“Parsons, Kan., June 28, 1901.
“I have before me your favor of the'27th instant asking what the company proposes to do with reference to the piece of land in section 2 involved in the late case of Pratt against Ard, wherein the court decided that the statute of limitations had run in favor of Ard, and also the other piece in section 2, wherein Judge Hook set the patent to the railway company aside and adjudged the land to belong to Ard under the homestead claim thereto.
“Beg to advise that neither of these cases are yet finally determined. Whenever they are, then we will determine what course we will pursue with reference to your claim for a refund of the money. In the meantime you might send me a statement of the amount you claim should be refunded to you, so that I may look it over and consider the matter.”
This action was commenced some time in 1902, or we so infer, as the amended petition was filed January 21, 1903. The amended petition refers to the deed as a whole, but the particular covenant sued on reads:
• “And the said Missouri, Kansas & Texas Railway Company hereby covenants with the said party of the second part, his heirs and assigns, that it' will, and its successors shall, warrant and defend the same to the said party of the second part, his heirs and assigns, against the lawful claims of all persons.”
All informality in the pleadings is waived by stipulation. The action was tried in the district court of Allen county, and on January 8, 1904, the defendant in error recovered judgment for $1760.36. The plaintiff in error brings the case here, complaining that the trial court erred in not deciding that the plaintiff’s cause of action was barred by the statute of limitations, and also because the court gave judgment for attorneys’ fees and taxes. • The plaintiff pleads waiver and estoppel as to the statute of limitations.
It is conceded that no cause of action arises upon a covenant of warranty until after eviction, either actual or constructive. It is here claimed that the actual possession of Ard at the date- of the conveyance to Pratt, under a claim of right which was subsequently decided to be the better and paramount title, constituted a constructive eviction, and a cause of action arose at once which would become barred in five years in this case, or on June 6, 1894. It is sought to bring this case within the rule stated by Mr. Justice Allen in the case of Claflin v. Case, 53 Kan. 562, 36 Pac. 1063, which reads:
“The weight of authority seems to be to the effect that, where the land conveyed is actually occupied by another, under an adverse and better title, the covenant is broken without any other act by either party, and an action may be at once maintained upon it.” (Page 562.)
In a certain sense this case probably falls within the above rule, but under the facts here shown we do not think the plaintiff in error ought to be permitted to make this defense. To do so is an act in bad faith, and operates as a fraud upon the defendant in error. When the conveyance was made and the company received the money of Pratt it was known by both parties that the land was occupied by Ard, who would maintain possession until ousted by judicial process. It was thoroughly understood that whether Pratt would receive anything by his deed or not could only be known at the end of litigation then contemplated or already in progress. The conveyance to him was evidently made with the intention on the part of both parties to wait and abide the judicial determination of title to the land. It would be trifling with the rights of these parties to assume that they contemplated an immediate repayment of the money paid by Pratt or that an action for its recovery could or would be commenced at once. The relation of the parties to the land remained unchanged after the delivery of the deed and the payment of the consideration money by Pratt until the decision of the United States circuit court, on December 19, 1900. Up to that time Pratt waited patiently, at the request of the plaintiff in error, while it was testing its title to the land in long and repeated lawsuits. He was assured from time to time that his title would be ultimately sustained, that Ard did not have “a ghost of a show,” and was requested to “wait patiently, as the others are doing, until this litigation is deter■mined.”
The plaintiff in error assumed control 'of the case commenced by Pratt, and carried it to the highest court, apparently confident of success. Pratt was at times urgent and insistent, but was pacified by the assurance that “our company is waiting to see what the decision of the circuit court will be with reference to these lands; if we win, we owe you nothing; if not, you will get your money.” It is not suggested that Pratt failed in any respect to do his full duty in the premises. He carried out the original understanding and subsequent requests by waiting for the company to establish its title to the land. In this there was no cessation of effort. The company was diligent and persistent. The facts that it was originally understood by each of the parties that the whole matter as' to the conveyance and Pratt’s ultimate right to the land should be held in abeyance until the end of the litigation concerning the same, and that Pratt was induced to wait longer than he otherwise would have done by the urgent requests of the plaintiff in error, are as unmistakably established as they would be if fully and formally reduced to writing. After Pratt has so waited, and the company after full opportunity to test its claim has failed, it would be unconscionable for it to assert the very delay which it requested for the purpose of avoiding payment to Pratt of the money paid by him, for which he has received nothing. The ordinary rules of justice and fair dealing rebel at the suggestion. The facts furnish abundant reason for the application of the rule of estoppel to such conduct. We think this is a' case where this rule should be applied.
Cases may be found which are apparently opposed to this view; in fact, considerable conflict exists among the decisions concerning the general subject of changing the statute of limitations by agreement, waiver, or estoppel. Much of this confusion arises from the difference in statutes, and in the application thereof to particular cases. Very few of the cases, when closely examined, will be found to differ materi ally in principle from the view we have here taken; it would be useless, therefore, to attempt a review of them. In the case of Mo. Pac. R’y Co. v. Com. Co., 71 Mo. App. 299, there were unsettled accounts between the parties, and negotiations for adjustment were pending a long time. After failure to settle, action was brought on one of them, in which the statute of limitation was pleaded. The court said, as to this plea:
“If there was any understanding between plaintiff and defendant, or assurance given by the plaintiff to defendant that the latter would accept the former’s account in payment or discharge of that of the latter, when their mutual accounts should thereafter be settled, and that the former, relying upon such understanding or assurance, did not bring an action on its account within the statutory period, and but for that it otherwise would have done so, the latter should not be allowed to invoke the statute of limitations in bar of former’s account.” (Page 304.)
In the case of Haymore v. Commissioners, 85 N. C. 268, following the case of Daniel, Ex’r, v. The Board of Comm’rs of Edgecombe Co., 74 N. C. 494, it was said:
“Defendants will not be allowed to set up the statute of limitations in bar of the plaintiff’s claim when the delay which would otherwise give operation to the statute has been induced by the request of the defendants, expressing or implying their engagement not. to plead it.” (Syllabus.)
To the same effect see: Mickey v. The Burlington Ins. Co., 35 Iowa, 174, 14 Am. Rep. 494; Kenackowsky v. Board of Com’rs, 122 Mich. 613, 81 N. W. 581; Home Ins. Co. of Texas v. Myer, 93 Ill. 271.
^Complaint is made that attorneys’ fees and taxes are not legitimate elements of damage in cases of this character. We are unable to ascertain from the record that either of these matters entered into the judgment of the district court, and therefore it will be unnecessary to consider the legal questions relating thereto. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The trial court was not warranted in sustaining the demurrer to plaintiff’s evidence. There is testimony that Hurdle, the deceased, in going to and from his work had used a railroad velocipede on the railroad-track for years with the knowledge and consent of the company; that the engineer had some reason to believe that Hurdle would be upon the track about the time that he was run down and killed; that the engineer was looking along the track and must have seen Hurdle a distance of about 600 feet from the point of collision; and that the engineer did not give any signal or warning of approach until just before the collision.
Leaving out of consideration the character of Hurdle’s license to run the velocipede over the track, whether he had a right to rely upon the giving of certain crossing signals, and whether Hurdle had reason to, or did, 'believe that the belated train had already passed, we still think the right of recovery was not a question of law for the court." Even if Hurdle was careless in going upon the track, it would be no excuse for the engineer recklessly to run him down. If the engineer saw Hurdle, and ran most of the intervening distance without giving warning or using the ordinary means to save his life, it was a reckless, wanton act, and the company cannot rely upon Hurdle’s negligence to protect it from liability. It was admitted by the engineer that he was on the lookout, and that he saw Hurdle about a hundred yards away, when he sounded the whistle and applied the air-brake. Other witnesses say, however, that Hurdle was in sight of the engineer about twice that distance, and also that the engineer did not sound the whistle until about the time that the engine struck and killed Hurdle. If it be granted that the engineer blew the whistle about a hundred yards away, as he stated, there is still testimony to the effect that he must have run about 300 feet while in sight of Hurdle without giving any warning or taking any precautions to avert the injury. If that be true, his action may justly be characterized as recklessness. Had the warning been given when he was 600 feet away Hurdle might possibly have thrown himself from the track and saved his .life.
Whether it was a reckless injury by the engineer, or whether recovery is barred because of Hurdle’s own negligence, are questions for the determination of a jury. Viewing the testimony in the light most favorable to the plaintiff, and allowing all reasonable inferences in her favor, we think the demurrer to the evidence should have been overruled, and therefore the judgment of the court is reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was indicted on eight counts for selling intoxicating liquors in violation of law, and on one count for maintaining a common nuisance, by a grand jury of Allen county; and, upon being brought to trial in the district court, the case was dismissed as to all but three counts for unlawful sales and the one count for maintaining a nuisance. On the .trial the jury found the appellant guilty on the three counts for unlawful sales, and not guilty upon the charge of maintaining a nuisance. The appellant filed a motion for a new trial on the ground that the verdict was not sustained by the evidence, which motion was denied, and he was sentenced and now appeals to this court.
The county attorney admits that there was no evidence to show that the appellant by himself, or through any agent or employee, made the sales upon which he elected to rely for conviction; and indeed it does not appear from the record that the witnesses who testified to buying intoxicating liquor were even asked on the part of the state from whom they made the purchases. If it be assumed that the witnesses knew from whom they made the purchases, the examination would indicate that there was no real attempt made to convict the appellant. However, it is contended on the part of the state that the evidence did disclose these facts, to wit:
“(1) That this defendant conducted a barber shop on North Washington avenue, in the city of Iola, in a rear room of which liquor was sold; (2) that this defendant was frequently in said back room, as often as two or three times a day; (3) that persons going to and from this said back room would go through this defendant’s barber shop.”
It is further .said the court correctly instructed the jury that if they believed beyond a reasonable doubt that the defendant knowingly and intentionally aided or abetted in the commission of the alleged sales, then they would be warranted in finding him guilty; and that the, facts above recited are sufficient to sustain the verdict of the jury.
These facts are purely circumstantial. Before a jury is justified in finding a defendant in a criminal action guilty upon circumstantial evidence alone the circumstances must be so strong as not only to be consistent with the theory of the defendant’s guilt, but they must also exclude every reasonable hypothesis except that of the guilt of the defendant. The facts above relied upon do not exclude every reasonable hypothesis save that of the defendant’s guilt, but do suggest that the defendant for numerous reasons may be entirely innocent.
The motion of the appellant for a new trial should have been granted, and the judgment of the court below is reversed, with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The case was brought here on a transcript, and of course does not include the evidence, nor the instructions to the jury; so practically the only question presented, for our determination is whether the court should have rendered judgment upon the general verdict in favor of the plaintiff, or, in other words, whether the court erred in disregarding the general verdict and rendering judgment upon the special findings of fact in favor of the defendant.
It will be observed that the general verdict is in favor of the plaintiff, and all'the special findings of fact are favorable to the plaintiff, unless it be No. 1. To determine whether there is an irreconcilable conflict between finding No. 1 and the general verdict we must examine the pleadings to see what were the issues. The plaintiff in her petition made the following allegations :
(1) The execution and delivery of the deed for the consideration of $1500 paid, a copy of which is attached to the petition and which contains a general covenant of warranty in the usual form, viz.:
“That at the delivery of these presents he is lawfully seized "in Ms own rigM of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and encumbrances, of what nature or kind soever; and that he will warrant and forever defend the same unto said party of the second part, heirs and assigns, against said party of the first part, his heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
(2) “Plaintiff alleges that defendant, William Zimmerman, his heirs and executors, have not warranted and defended said described real estate with the appurtenances to the plaintiff, her heirs and assigns, against all and every person or persons whomsoever lawfully claiming or to claim the same, as he .was bound to do; but on the contrary plaintiff avers that at the time of the execution and delivery of said deed the paramount title and freehold of the undivided two-thirds of said real estate was in William Opp and Philip Zimmerman; that by virtue of said paramount title the plaintiff afterward, to wit, at the September term, 1901, of the district court of Shawnee county, Kansas, in an action wherein said William Opp was •plaintiff and the heirs of Philip Zimmerman, and the defendant, William Zimmerman, were defendants, the said William Zimmerman then-and there appearing thereto and having full knowledge thereof, he not having good and sufficient title thereto, by the consideration of said court, plaintiff was dispossessed, and evicted out of and from the undivided two-thirds of said real estate and all the appurtenances thereof, by due course of law, and so the said defendant, William Zimmerman, his heirs and executors have not kept and performed his'covenants in said deed, but have broken and made breach of the same.”
(3) That plaintiff had expended $500 in defending said action, and had sustained damages by reason of the premises in the sum of $1500, ending in a prayer for judgment for $1800. On leave, the plaintiff afterward filed supplementary allegations and amendments to her original petition, as follow:
“Now comes the plaintiff, Johanna Henrietta Zim merman, and by way of amendment and supplementary petition in addition to her original petition herein, says: That the defendant, William Zimmerman, with the intent to cheat and defraud the plaintiff, and in utter disregard of his covenants for title contained in said deed, .did, as plaintiff has been informed and believes, induce said William Opp, as plaintiff, to institute said action in said district court, and make him a co-defendant ; that said defendant appeared in said action and refused to protect and defend his covenant for title in said deed, as he was bound to do, but claimed to own the title and estate to and in said real estate, notwithstanding said covenant for title in his said deed; that in furtherance of said fraud, and during the pendency of said action, Mary M. Zimmerman, the wife of said defendant, with the knowledge and approbation of said defendant, and in furtherance of the intention of said defendant to cheat and defraud the plaintiff, in his refusal to defend said title, on or about the 28th day of May, 1901, during the pendency of said action, with full knowledge of all the facts and to assist the defendant in cheating and defrauding the plaintiff, for a , nominal consideration,' procured the said William Opp to, and who did, by his deed of that date, convey and transfer said real estate to her, the said Mary M. Zimmerman, and who, in virtue of said deed, claims to own the interest of said William Opp in said real -estate.
“Plaintiff further states that in pursuance of the judgment and order of the said district court, rendered in said action, said real estate was by the sheriff of Shawnee county, Kansas, duly sold at public auction on the 19th day of May, 1902, and that plaintiff, in order to preserve her rights, interest and estate in said real estate, at said sheriff’s sale was compelled to and did bid in and buy said real estate, for the price and consideration of $2000; the defendant being present at such sale, and refused to protect and defend his said covenants for title contained in said deed as he had obligated himself to and was bound to do.”
To this petition, as amended and supplemented, the defendant filed the following answer:
“Now comes said defendant, William Zimmerman, and for his answer to the plaintiff’s petition, and to the ‘amendment and supplementary petition’ herein filed:
“(1) Denies each and every allegation made or contained in said petition, and in said ‘amendment and supplementary petition.’
“ (2) And for a second and further answer herein, this defendant says that said plaintiff never did, nor did any person for her, ever pay to said defendant, or to any person for him, any consideration whatever for said property,, or for the making of said deed, and that there was no consideration for said deed or any covenant therein contained.
“ (3) And said defendant says that he executed said deed, of which a copy is attached to said plaintiff’s petition, only to enable said plaintiff-to become surety for said defendant and for Philip Zimmerman and other employees of said defendant upon bail-bonds, recognizances, undertakings, or other bonds for the appearance in any court of said William Zimmerman or said Philip Zimmerman, or other employees of said defendant, to answer in prosecutions for violation of the prohibitory laws of the state of Kansas, which were then threatened against them or which they apprehended, and to invest said plaintiff with the record title to sufficient property so that she would be accepted as such surety; that said plaintiff never became such surety, and never executed any such bond, recognizance, or undertaking, and never received or paid any liability, money or expenses under or in connection therewith; and defendant says there was no consideration for said deed, or for any of the covenants therein contained.”
And to this answer the plaintiff replied as follows:
“The plaintiff, Johanna Henrietta Zimmerman, for her reply to the defendant’s answer herein says:
“(1) She denies all and singular the allegations and averments contained in the second and third defenses, and each of them, of said answer.
“(2) For further reply to second and third defenses of said answer, and each of them, plaintiff says that in a certain action pending in this court, wherein one William Opp was plaintiff, and the plaintiff, Johanna Henrietta Zimmerman, the defendant, William Zimmerman, and ' others were defendants, the said defendant, William Zimmerman, by way of answer and cross-petition therein, set up as his cause of action and defense against the plaintiff for the same and identical defenses as set forth in said second and third defenses herein; and that on the 22d day of July, A. d. 1901, by the consideration of said court, the plaintiff recovered a judgment against said defendant,-William Zimmerman, upon his said answer and cross-petition for costs of said action, and which judgment is unreversed.
“Wherefore, plaintiff demands judgment as prayed for in her petition in said cause.”
From these pleadings it will be noted that the plaintiff asserted that the defendant was not the owner of the two-thirds interest in the land in question at the time of the delivery of the deed, but that William Opp and Philip Zimmerman were the owners of such interest. In the amendment the plaintiff alleged that the defendant induced William Opp to institute the action in which plaintiff was dispossessed and evicted of her interest; that the defendant appeared in that action, and thereupon asserted that he himself owned the “title and estate to and in said real estate”; that in place of defending the title of plaintiff thereto the defendant persuaded Opp to convey an interest in the land to Mary M. Zimmerman, the wife of the defendant, for the purpose of cheating and defrauding the plaintiff herein; that, in pursuance of the order of the court in that action, the sheriff of Shawnee county sold the real estate at public sale, and the plaintiff in this action was compelled to, and did, buy the same for the consideration of $2000; and that the defendant was present at such sale, and refused to protect and defend his covenants in the deed.
It is rather difficult to tell just what facts the general denial of the defendant to this petition and the supplement and amendment put in issue. The remainder of his answer only goes to dispute the covenants of the deed and to explain the circumstances under which it was given, and the reply of the plaintiff alleged that, in the action in which William Opp was plaintiff and both the plaintiff and defendant in this action were defendants, the defendant herein “set up as his cause of action and defense against the plaintiff for the same and identical defenses as set forth in said second and third defenses herein.” It will be observed that these are the defenses of no consideration and the purposes for which the deed was given. The court rendered judgment in favor of the plaintiff and against the defendant on these issues in that action.
The pleadings of the plaintiff are. very inartistic, yet by a reasonably fair construction she pleads that the question whether the defendant was the owner of the entire fee of the. land in controversy at the time of making and executing the deed in question, as well as the question as to the consideration for the deed, was brought in issue in the action in the district court of Shawnee county in which William Opp was plaintiff ■and this plaintiff and this defendant and others were defendants; and that said issues of fact were both adjudged and determined adversely to the defendant herein. Whether this claim of the plaintiff was supported by evidence we cannot determine from the record. The jury may have believed, and been justified in believing, from the evidence that the claim of the plaintiff of former adjudication was true as alleged, and yet they may have believed from the evidence produced in this action, as set forth in finding No. 1, that as a question of fact the defendant was the owner of the lots in question at the time of the execution of the deed in controversy, notwithstanding the former adjudication to the contrary. If the jury believed and were justified in believing from the evidence in this action according to the above hypothesis, finding No. 1 is not inconsistent with the general verdict.
“All the elements which go to make up a plaintiff’s right of recovery are found in his favor by a general verdict for him.. And before special findings will avail to overthrow the general verdict they must have determined all those elements against his right of re covery.” (Seeds v. Bridge Co., 68 Kan. 522, 75 Pac. 480, syllabus.)
In the case of Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633, Mr. Justice Pollock, speaking for the court, said:
“Every presumption is in favor of the general verdict. The special findings must overthrow it or it must stand. In the absence of the evidence from the record, we must assume all of these findings to have support in the evidence and all must be construed together.” (Page 759.)
In volume 8 of the American and English Encyclopedia of Law, at page 206, it is said:
“Where the covenantor has been notified by the covenantee to defend an action of ejectment brought against the latter, or where he has appeared and defended, a judgment rendered against the covenantee in such action is conclusive .evidence of the paramount title of the plaintiff, therein. And in an action on the covenant by the covenantee or his grantee, the covenantor will not be permitted to deny the validity of such judgment; and the covenantee is relieved from the obligation of proving that the title of the plaintiff therein was superior to that of the covenantor, even though the judgment was rendered upon an agreement to which the covenantor was not a party, or though a valid defense might have been made to the action, or though the covenantee, to save himself from eviction under the judgment, purchased the outstanding title, unless the judgment was obtained by collusion or negligence on the part of the covenantee.”
If this be the law, and it seems to be supported by authority, the plaintiff in this action might well have pleaded the execution and delivery of the deed, the record and judgment in the Opp case, and that the judgment in the Opp case was not obtained through title derived from the plaintiff after the making of the deed to her by the defendant, and, after alleging her damages, rested her case upon these allegations. Assuming, as we are bound to do, that the allegations of the plaintiff in regard to the former adjudications were found to be true, as the basis of the general verdict, judgment should have been rendered on the general verdict in favor of the plaintiff. As before indicated, there is no essential conflict or inconsistency between the general verdict and finding No. 1.
The judgment of the district court is reversed, and the case is remanded, with instructions to enter judgment in favor of the plaintiff in accordance with the general verdict.
All the Justices concurring. | [
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Per Curiam:
This was an action in ejectment. Two •errors are assigned: (1) In allowing an amended answer to be filed; (2) in holding the tax deed of the defendant valid.
The defenses set up in the amended answer did “not change substantially . . . [the] defense” which could have been made under the original answer. Hence there was no abuse of discretion in the allowance of the amendment. (Code, § 139; Gen. Stat. 1901, § 4573.)
The tax deed had been of record more than five years before the commencement of this action. It describes accurately the land taxed, and in describing the land sold says “the whole of the above-described property,” and in the granting clause says “the real property last hereinbefore described.” There is only one tract of land described. Its description is admitted to be accurate, and the references thereto are so direct and certain that there can be no mistake as to the land sold or the land conveyed. This is sufficient. (Cartwright v. Korman, 45 Kan. 515, 26 Pac. 48.)
The deed shows that the land was sold on the first Tuesday in September, 1891, for the taxes of 1890, for $10.83; that the holder of the tax-sale certificate paid the taxes of 1891 — $5.77; and that on July 22, 1895, the county clerk conveyed the land to such holder for $32.05, being the “taxes, costs and interest due on said land for the years A. D. 1890 and 1891.”
Chapter 110 of the Laws of 1893 changed the rate of interest from twenty-four per cent, to fifteen per pent. Of course this would not affect the rate of interest in this case. Assuming that the taxes for 1891 were paid by the holder of the certificate as soon as the same became delinquent, and computing interest at twenty-four per cent, on the two amounts to July 22, 1895, leaves less than fifty cents of the amount for which the conveyance was made to be accounted for in costs.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Walter M; Poole shipped seven car-loads of cattle from Loveland, Kan., to Kansas City, Mo., over the Atchison, Topeka & Santa Fe railroad. The time reasonably required for transportation between the points named is said to be about thirteen hours, but Poole’s cattle were on the road about twenty-four hours, and did not arrive until.the market for the day was closed, making it necessary to hold them over till the following day, when there was a decline in the market value of such cattle. Poole claimed that negligent delay of the company caused a shrinkage in the value of the cattle during transportation of $206.98; also that during the time of the detention caused by the delay there was a depreciation in the market value to the extent of $485.88, and'that as a result of the detention he was required to make an extra expenditure of $14.40 for feed. To recover these damages an action was brought by Poole, and the railroad company answered that the shipment was made under a written contract, the terms of which precluded a recovery of damages. The contract provision mainly relied on reads:
“As a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or, if 'delivered to consignee at a point beyond the company’s road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place of destination above mentioned, or from the place of the delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stock-yards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages.”
No such notice of a claim for damages was in fact given prior to the removal of the cattle, and the question arises whether the failure to give the same bars a recovery. In charging the jury the trial court ruled that the failure to give the notice cut out any recovery for the shrinkage of the. cattle during the delayed transportation, but left to the jury to determine what, if any, damages were sustained because of the depreciation in the market price of the cattle by reason of the delay and detention.
It is competent for parties to make contracts limiting a carrier’s common-law liability, and stipulations that the shipper shall give notice of injury or loss to live stock while being carried have been sustained. (Goggin v. K. P. Rly. Co., 12 Kan. 416; Sprague v. Mo. Pac. Rly. Co., 34 Kan. 347; A. T. & S. F. Rld. Co. v. Temple, 47 Kan. 7; W. & W. Rly. Co. v. Koch, 47 Kan. 753; Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438.) Such contracts and the notices required by them must be reasonable. -Agreements of this character are viewed with some strictness by the law, and unless the exemption from liability is clearly expressed it should not be allowed.
Assuming that the contract in question is valid, the limitation does not fairly cover the loss of a market. It does extend to damages for loss or injury to cattle during the transportation, and hence the trial court excluded a recovery from shrinkage in their condition during shipment. Reference is made to the Kalina case as holding that damages for the decline in the market price were not recoverable in the absence of a notice, but it will be seen that the contract there involved provided generally for all loss, damage and detention that might be claimed, and ten days were given in which to present' the claim. Here the claim specified in the contract of which notice is to be given is confined to loss or injury to stock during transportation, and the notice was required to be given before the removal of the cattle from the place of the delivery or destination, and before they were slaughtered or intermingled with other stock. A loss of market differs distinctly from a loss or injury to the cattle. Depreciation in the price or the loss of a market is not fairly embraced within the terms of the contract requiring notice of loss or injury to the cattle during transportation. (Kramer & Co. v. C. M. & St. P. Ry. Co., 101 Iowa, 178.)
Obviously it was intended that these cattle should reach their destination on a particular market day, and be sold on arrival. The particular time for the transportation was not specified in the contract, but the character of the shipment and surrounding circumstances, well known to all, required the carrier to transport the cattle with reasonable dispatch. The testimohy tends to show an unreasonable delay in shipment, whereby there was a loss of market .on the day' of arrival, and a consequent loss to the shipper, for which the .carrier is liable. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The Missouri, Kansas & Texas Railway Company, while placing a car of grain on its switch-track, at an elevator in Coffeyville, Kan., knocked a grain chute down, which fell upon James W. Taylor and injured him so that he died. His widow sued the company for damages, and recovered a judgment in the district court of Montgomery county for $3000. The defendant brings the case here for review.- A demurrer to the evidence was overruled,* and, the defendant having no testimony, the case went to the jury on the evidence of the plaintiff alone.
The plaintiff in error has assigned several errors, but its argument is confined almost entirely to a failure of proof, and contributory negligence.
The facts necessary to an understanding of the case are in substance as follow: The Rea-Patterson Milling Company owns the elevator, and the railway company is the owner of a switch-track upon which cars loaded with grain may be taken to the elevator to be unloaded. When a loaded car is run up to the elevator it is the duty of the milling company to see that it is unloaded. It does not appear from the evidence whether the elevator building occupies ground belonging to the railway company or not, but it may be inferred from the averments of the petition, which should perhaps be considered as admissions of the plaintiff equivalent to proof, that it stands upon the defendant’s right of way, the elevator company having permission to use all the ground necessary for the purposes of its business. The elevator stands upon a foundation wall which is strengthened with brick piers, about three feet across at the ground and eighteen inches at the top, and which extend from eighteen inches to two feet out from the wall of the building.
The deceased prior to his death had been for about two months in the habit of coming to the elevator and assisting the men engaged in unloading wheat by sweeping out the cars, for which he received whatever grain he might find, the amount of which ranged in quantity- from a bucketful to a half-bushel to the car. At the time of the injury he was engaged with an employee of the elevator company in unloading a car. While so employed it became necessary to move the car to permit the placing of another. While this was being done the deceased was requested to get oif of the car, which he did. After getting out he stood against the elevator, between it and the switch-track, and west of, and near,.one of the brick piers to the foundation wall. While so situated he would be about three feet from a car passing on the switch-track. The loaded car, which was being pushed in on the switch-track, had a heavy iron step hanging under it, which was bent out of proper position so that it extended several inches beyond the car. The car was run down to the elevator at a speed of about ten miles an hour, and as it passed the elevator this step struck the chute and knocked it over against and upon the deceased, whereby he was killed.
It is contended that the deceased was a trespasser upon the defendant’s premises, and that as the injury was not inflicted wantonly there can be no recovery. It appears that he was standing at the time of the injury within the line of the foundation walls of the elevator, and on ground which the elevator company occupied and controlled. He was there by permission of the managers of that company, for the purpose of performing duties in which both were interested, the company being interested in having the car cleaned and the deceased in securing the grain therefor. Under ordinary circumstances he was in a place of perfect security. He had no reason to suspect danger. He was rightfully there.
The jury returned special findings of. fact, among which were the following:
“Ques. Was James W. Taylor at the time of the injury a trespásser on the ground that he was occupying at the time that he was injured? Ans. No.
“Q. State from whom he obtained a right to occupy the ground. A. Rea-Patterson Milling Company’s foreman.” ’
Under the facts shown we do not think the deceased can fairly be held to have been a trespasser, but if we had any doubt upon the subject these findings of the jury would place it at rest.
It is also contended that the deceased was guilty of contributory negligence. This claim is based largely upon the idea that he was a trespasser; aside from this it is urged that the deceased, by the exercise of proper diligence, could have seen the projecting step and moved to a place of safety. We do not understand it to bé the duty of a person, when rightfully in a place, which under ordinary circumstances is safe, to anticipate danger which arises from the negligence of another. Ordinary care to avoid ordinary or known danger is the extent óf vigilance required. Upon this subject the jury returned the following special findings:
“Ques. Could Taylor by the exercise of ordinary prudence have seen that there was danger in placing himself between the cars and the wall of the elevator? Ans. No.
“Q. Could Taylor at the time he saw the train approaching him have gone to the west side of the elevator and been safe from danger? A.' No.”
Ordinary care did not require the deceased to anticipate that the defendant would run a car upon this switch-track at a high rate of speed past the chute, between which and the car there was known to be a space of only a very few inches, without first examining to see if any obstacles existed. He was not bound to act upon a supposition that the chute near which he was standing was about to be negligently torn to pieces and thrown upon him. We think this claim of contributory negligence is not tenable.
The other errors complained of relate to the instructions of the court, but the foregoing conclusions practically dispose of these questions also. We have examined each of these instructions, and are unable to find that any of them is erroneous. The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
Brown sued Burley, alleging in his petition that a partnership existed between them, which was dissolved by mutual consent on January 1, 1904; that in July, 1904, there had been a full and final accounting and settlement of the business, and in the settlement there was found to be due to Brown from Burley the sum of $852.36; that the debts of the partnership had all been paid; and that Burley refused to pay the amount agreed upon in the settlement. The answer was a general denial. Upon a trial before a jury plaintiff recovered a verdict and had judgment for the full amount, from which the defendant brings this proceeding in error.
It is urged that the court should have sustained an •objection to the introduction of any testimony under the petition for the reason that the petition did not allege a settlement of the partnership affairs. This objection is trivial and depends upon whether the word “business” means affairs. The petition stated that they had a full and final accounting and settlement of their business up to a certain date. Plaintiff in error cites Palm v. Poponoe, 60 Kan. 297, 56 Pac. 480, which, however, upholds the theory upon which the petition was drawn. That case distinctly recognizes the well-settled rule that before an action can be maintained by one partner against another to recover as for a balance due upon an accounting there must have been an accounting or settlement and the amount due determined, which is just what the petition here alleged had been done.
The claim that.the court should have sustained a demurrer to the evidence rests upon the contention that it was necessary for plaintiff to prove that there were no debts of the partnership outstanding. Plaintiff’s evidence was silent as to this, although the petition alleged that the debts had been paid. As the action here was based upon a settlement and agreement to pay, it was not necessary to establish the fact, that the firm’s debts had been paid. It was not an action for an accounting or a settlement of a partnership, but simply upon a contract, to pay an amount, agreed upon in a final settlement. The general denial raised no issues of fraud or mistake in the settlement, but merely denied the settlement.
We have examined the other errors complained of but find nothing substantial or prejudicial. The evidence clearly showed that these parties met day after day for months in a lawyer’s office for the express purpose of arriving at a settlement of their affairs; that they had their papers and accounts with them, and frequently adjourned to meet and continue the attempt at a settlement; and there was the testimony of plaintiff, corroborated by other witnesses and circumstances,, that a final settlement was agreed upon, and that defendant agreed to pay plaintiff the amount found to be due from him. ■
There was evidence sufficient to warrant the verdict and judgment. The judgment is affirmed. | [
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The opinion, of the court was delivered by
MASON, J.:
Basile Hanrion died intestate leaving a widow, Harriet F. Hanrion, and four sons. There was some disagreement among the heirs as to the proper distribution of the estate, but they all finally entered into a written contract adjusting the matter. One of the sons, however, Louis B. Hanrion, became dissatisfied and brought a suit against the widow and the other heirs to have the settlement set aside as having been wrongfully procured, and to have the property dis tributed according to the legal rights of the persons interested. He alleged in his petition that he was the real owner of some of the property which had been treated as assets of the estate, in virtue of its being the proceeds of trust funds placed in the hands of his father by his grandfather for investment for his benefit. He also made a claim that the estate was indebted to him upon an account for services rendered. Issues were joined and the case was tried before a referee, who found that the contract of settlement should be set aside, but that the plaintiff was not a creditor of the estate or the beneficial owner of any of the property involved, and that it should all be distributed among the heirs. The court approved the report of the referee and rendered'judgment accordingly. Harriet F. Hanrion began proceedings in error, but later abandoned them. The present hearing is upon á cross-petition in error filed by the plaintiff below, Louis B. Hanrion.
Various assignments of' error have been made and argued, but, except for one matter which will be specially noted, «they all come under one general head— that the findings of the referee are not supported by the evidence. The record is voluminous, comprising 1370 pages. To review the evidence in detail would serve no' useful purpose. Upon this branch of the case it is enough to say that the judgment could not be reversed without invading the province of the referee and reviewing his conclusions upon the credibility of the witnesses, the weight of their testimony, and the inferences to be drawn from the facts established.
The one contention of the cross-petitioner in error that involves the determination of a debatable proposition of law dissociated from any question of fact is based upon the circumstance that the property which the trial court held to be assets of the estate included a number of real-estate mortgages in which Louis B. Hanrion was named as mortgagee, although they were made to secure loans made by Basile Hanrion. The argument is made that such a transaction was the conveyance to one person upon a consideration paid by another within the meaning of section 6 of the statute of trusts and powers, and therefore no use or trust resulted in favor of Basile Hanrion, but the title vested absolutely in Louis B. Hanrion. The section reads:
“When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.” (Gen. Stat. 1901, §7880.)
It is obvious from the context, if not from the language quoted, that the section is intended to apply only to transactions concerning real property, and not to transfers of personalty. (Baker v. Terrell et al., 8 Minn. 195.) In the case of Robbins v. Robbins, 89 N. Y. 251, the question whether such a statute had application to the execution of a real-estate mortgage to one person where the consideration was paid by another was involved, discussed, and decided, although the result reached was also justified upon other grounds. The view of the court upon this matter is indicated by the conclusion of the first paragraph of the syllabus:
“Held, thát the provision of the statute of uses and trusts . . . declaring that where a grant is made to one person, the consideration being paid by another, no use or trust shall result in favor of the latter, but title shall vest in the former, had no application; that plaintiff, by operation of law, took the bond and mortgage as trustee for defendant, and those securities being personal property the statute had no application.”
In the opinion it was said:
“Although the bond and mortgage, in form, ran to the plaintiff, he took as trustee for the defendant, by implication of law, if not by agreement. Those securities were personal property only and had no relation to the statute.” (Page 258.)
An attempt is made in the brief of the cross-petitioner in error to distinguish that case from the one at bar upon the ground that our statute, although otherwise substantially the same as the one there interpreted, reads “conveyance” instead of “grant.” It is manifest, however, that the words are employed interchangeably in the New York statute, for the section following the one referred to begins, “Every such conveyance,” etc.
In the case of Meier v. Bell, 119 Wis. 482, 97 N. W. 186, cited in 2 Current Law, 1933, note 4, the supreme court of Wisconsin held that under this statute where one takes a note and mortgage in the name of another the title vests in the person named as mortgagee, but the decision is made without discussion, upon the authority of three earlier cases. Two of these relate-wholly to absolute transfers of title. The third has no connection with the subject and is obviously cited by mistake, the case intended being probably the one immediately preceding it in the report, which contains an allusion to the statute but is barren of any reference to a mortgage.
It is true that the words “grant” and “conveyance” are sometimes construed to include a mortgage, even in jurisdictions where, as in Kansas, such an instrument passes no estate in the land. For various reasons that are unassailable, but which are peculiar to each of the several classes of cases, such interpretation has been adopted in the construction of statutes relating to the homestead right, to the alienation of public lands by a settler before acquiring title, to the registration of instruments affecting real estate, and to other-matters. These reasons have no application here. A mortgage is but an incident to the note it secures. It. inures to the benefit of the owner of the debt without formal assignment, and is incapable of assignment as a separate and independent right. It is extinguished by the payment of the indebtedness. The possession. of the note, as well as the designation of the payee, is evidence of its ownership, and the inapplicability of the statute is illustrated by the consideration that here the note was delivered to, and retained by, the person who made the loan. If the note had been unsecured it would hardly be contended that the beneficial title vested in Louis B. Hanrion because it was made payable to his order. The circumstance that its payment was guaranteed by the pledge of a tract of land does not alter the essential character of the transaction so as to bring it within the operation of the act in question. The judgment is affirmed.
All the Justices concurring.
Porter, J., not sitting, having served as referee in the court below. | [
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The opinion of the court was delivered by
Porter, J.:
The conclusions we have reached in this case render it necessary to consider only the question whether the demurrers to the second and third counts of the answer should have been sustained. It is proper to say here that there is a substantial conflict in the averments of the answer and the claims advanced by counsel for plaintiffs in error in their briefs, which makes it somewhat difficult to understand what their position is. It is asserted in the briefs that “the answer pleaded that the plaintiff actively promoted the work, and by its manipulation had the city order and advertise that the work should be done with a certain kind of brick only furnished by the plaintiff.” Again they say:
“The allegations contained in the answer of the National Surety Company charge that the improvements were promoted by the plaintiff below, for the purpose of having the city, in ordering- it to be done, expressly, to direct in the ordinance and the contract thereunder that the improvements should be constructed out of the brick exclusively manufactured and sold by it; that both said ordinances and contracts did so provide; that plaintiff did sell all the brick that were used in the construction of the improvements.”
In the reply-brief particular attention is again called to the answer, and it is persistently urged that it contains these averments. A careful reading of the answer will disclose, we think, that this claim is- incor rect. No such statements, are found there, in substance or in form. The .answer alleges that all the illegal acts complained of were procured to be done by the Diamond Brick and Tile Company, but nothing connecting that company with plaintiff is alleged, save' and except the following: “If plaintiff sold any of the material described in its petition to the defendant W. W. Atkin, and delivered the same for the work described in the contract mentioned in plaintiff’s petition, such sale and delivery were made with, full knowledge of the'facts hereinbefore set forth.” If the plaintiff had been the Diamond Brick and Tile Company, or if the answer had alleged what the briefs say it did, it is apparent that a different question would be presented.
If it be conceded that the facts set forth in the answer established the illegality of the contract entered into by Atkin for the paving of these streets, then the further question arises, Is plaintiff, who is not alleged to have participated in the fraud or illegality, prevented from recovering for material furnished under a separate contract with Atkin, for the reason that the sale of the material was made “with full knowledge- of the facts” which made it illegal? It will require no extended argument, we think, to demonstrate that the facts set forth in the second count of the answer, which are admitted by the demurrer, render the contract entered into for paving these streets illegal and void. Section 747 of the General Statutes of 1901 provides:
“Before the buildihg of any bridge or sidewalk, or any work on any street, or any other kind of work or improvement, shall be commenced by the city council, or under their authority, a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council; and in all cases where the estimated cost of the contemplated work or improvement amounts to one hundred dollars, sealed proposals for the doing or making thereof shall be invited by advertisement, published by the city clerk in the official newspaper of the city for at least three consecutive days, and the mayor and council shall let the work by con tract to the lowest responsible bidder, if there be any such whose bid does not exceed the estimate.”
The object and purpose of this provision of the statute is to insure competition in the letting of contracts for public improvements. This is the uniform ruling of courts in reference to similar statutory and charter provisions governing cities. (Schoenberg v. Field, 95 Mo. App. 241, 68 S. W. 945; Smith v. Syracuse Improvement Company, 161 N. Y. 484, 55 N. E. 1077; Swift v. City of St. Louis, 180 Mo. 80, 79 S. W. 172; Larned v. City of Syracuse, 17 N. Y. Supr. Ct., App. Div., 19, 44 N. Y. Supp. 857; Galbreath v. Newton, 30 Mo. App. 380; McQuiddy v. Brannock, 70 Mo. App. 535.)
The answer alleges that several other kinds of vitrified brick were made and sold in Kansas City, equal in all respects to the particular brand named in the contract. The principal item of cost in the material used for this paving was the brick. If but one particular brand' or make of brick was to be used, in the very nature of things all opportunity for competition was eliminated, and favoritism, fraud and corruption were made possible, and extremely probable. Indeed, fraud and favoritism were so apparently the purpose of this provision of the contract and ordinance that the court should not hesitate to condemn as illegal and void all the proceedings. It is urged, on the other hand, that section 730 of the General Statutes of 1901 provides that “in case of paving, such petition shall state the width of the paving, and a specific description of the material to be used.” This provision must be construed with the other provision, which was obviously intended to insure competition. To give to section 730 the construction urged would defeat the purpose of the other section. We give effect to both by holding that section 730 is complied with by describing in the petition the material used without designating a kind manufactured or furnished by but one person or company. In a petition for paving the use of the words “vitrified brick” of standard or some designated quality, without the mention of any particular make or brand, would certainly answer all the requirements of this section and still leave opportunity for competition. The tendency of the courts has been to hold all the proceedings void where opportunity for open competition is denied. In the case of Smith v. Syracuse Improvement Company, 161 N. Y. 484, 55 N. E. 1077, it was said:
“A petition for the pavement of a street in the city of Syracuse ‘with vitrified paving brick, manufactured by the New York Brick and Paving Company, of Syracuse, N. Y.,’ and all the proceedings had thereon by the common council, are in violation of the provisions of the city Charter requiring the work to be let to the lowest bidder, and are void, when it appears that the company referred to has a complete monopoly upon the disposal of such brick, and that there are other persons or corporations who manufacture and sell vitrified brick for paving purposes, equal in quality to the particular kind specified.” (Syllabus.)
The court held that the petition was void because “through it the petitioners prayed the common council to take such action as was condemned by statute, and, therefore, the petition was void ab initio.” (Page 491.) In the case of Schoenberg v. Field, 95 Mo. App. 241, 68 S. W. 945, which is directly in point, the court said:
“The question thus presented is this: Had the board of public works the power under the charter to arbitrarily select a paving material that was manufactured by one company to the exclusion of the same material manufactured by other companies? The case shows that vitrified brick, as manufactured by the Diamond Brick and Tile Company, was not a patented article and was not thus a monopoly by reason of being pat-tented. On the contrary, several other companies, in and near Kansas City, manufactured such brick for paving which had passed the standard tests for street paving. The general policy in Kansas City is that in letting public work opportunity must be given for competition. The very fact that the work is let on public notice at public bidding discloses this. . . . What possible opportunity can there be for competition when there can be but one bidder? What possible benefit can result to the property-holder for a public letting of the contract when the contractor has-already been selected? The board of public works had the right to designate and select vitrified brick as the paving material, but it had no right to stifle competition and thereby violate the provisions of the city charter by cutting out, in advance, all competitors.” (Pages 247, 248.)
We quote also from the opinion of the court in Larned v. City of Syracuse, 17 N. Y. Supr. Ct., App. Div., 19, 44 N. Y. Supp. 857, a case exactly in point:
“If all men were honest there would be need of few laws, but the experience of all cities shows that fraud sometimes enters into municipal contracts, and the object of the statute under consideration is to prevent favoritism, which is one of the most insidious and dangerous kinds of fraud. ... If competition in brick can be thus restricted, the same rule can be applied to lime, labor and whatever enters into the cost of constructing a pavement. Bids might call for brick manufactured by A., lime made by B., broken stone furnished by C., and labor performed by D., all,- however, at prices named, and thus favoritism be allowed to permeate the entire contract. • Argument is hardly needed to show that this is not competition or a letting to the lowest bidder in the sense meant by the statute. The object of the statute is to keep prices down to reasonable rates, and when this is taken into account it is clear that it was the intention of the legislature that bidders should be unhampered by any restriction whatever, except the specifications regulating the amount and quality of the labor and materials; that bidders should be allowed to buy where, they can buy -cheapest, so that they can bid lower than if compelled to buy of one company, and that competition should •extend to one part of the contract as much as another.” (Pages 26, 27.)
In the case at bar the answer set up facts with reference to the contract which, if true, rendered it absolutely void because it was against the provisions of the statute, and in contravention of sound public policy.
Conceding the illegality of the contract between Atkin and the city, there remains the question whether the answer contains averments which sufficiently connect plaintiff with the illegality to prevent it from recovering for the material furnished. Some contracts are so inherently vicious and immoral that no action can be maintained to enforce them; and courts will not permit a recovery upon a collateral contract which is so connected with the former that the illegal or immoral purpose is kept in view. Where goods are sold or premises leased for the express. purpose of being used for an immoral and unlawful purpose the agreement is void, and there can be no recovery of the price. (9 Cyc. 573.) A case in point is Standard Furniture Co. v. Van Alstine, 22 Wash. 670, 62 Pac. 145, 51 L. R. A. 889, 79 Am. St. Rep. 960, where a vendor sold goods with the knowledge that they were to be used in a house of ill fame, reserving title with the right to take possession, and was denied the right to recover.
The contract to pave in this case was not illegal or immoral upon its face, but the answer pleaded facts which, if true, rendered it contrary to public policy and void. In the case of De Wit v. Lander, 72 Wis. 120, 39 N. W. 349, plaintiff sued upon a contract which it appears from the evidence involved a partnership with another to engage in the business of a night scavenger, which the ordinances of the city prohibited a person from exercising without a license. It was held he could not recover.
“It is a general rule that contracts are void which are repugnant to justice, or founded upon an immoral consideration, or which are against the general policy of the common law, or contrary to the provisions of any statute (even where such statute doe§ not expressly declare them void) ; and that a party who is obliged to trace through such a contract his right to a debt alleged to be due him cannot recover.” (Melchoir v. McCarty, 31.Wis. 252, 11 Am. Rep. 605.)
The rule is stated by Kent as follows: “If the contract grows immediately out of, or is connected with, an illegal or immoral act, a court of justice will not enforce it. But if it be unconnected with the illegal act, and founded on a new consideration, it may be enforced.” (2 Kent’s Com., 14th ed„ *466.) And in the case of Buck v. Albee, 26 Vt. 184, 190, 62 Am. Dec. 564, it was said:
“In the application of this rule it may be observed that in all cases where it is necessary to prove the illegal contract and sale to enable the plaintiff to recover, then the contract is so connected with the illegal act that a recovery cannot be had. But if the right can be established without such proof, the plaintiff may recover; for the claim is' unconnected with the sale, and rests on a new consideration.”
When the party complaining can establish his claim without relying upon the illegal transaction, it is the general holding of the courts that he can recover; but, if it requires the aid of the illegal contract or transaction, he cannot. The cases are collated in volume 9 of the Cyclopedia of Law and Procedure, pages 546 and 556.
The petition of plaintiff in this case is based upon the surety bond. The statute requiring the giving of the bond sued on reads,as follows:
“That whenever any public officer shall under the laws of the state enter into contract in any sum exceeding one hundred dollars, with any person or persons, for purpose of making any public improvements, or constructing any public building, or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building' or in making said public improvements.” (Gen. Stat. 1901, § 5130.)
Plaintiff’s petition recites, first, the making of the contract, and refers to the same, with the plans and specifications on file in the office of the city clerk; next, the execution of the surety bond, the furnishing and use of the material, and non-payment by Atkin. In the opening statement of plaintiff’s counsel the contract for paving is referred to as the first step in the proof, and the contract itself, with the plans and specifications, was introduced in evidence as a basis for the execution of the bond sued on. Thus it is apparent that in order to maintain the action plaintiff found it necessary to allege and prove the contract, which from the facts set forth in the answer was illegal and void. As was said in Thomson v. Thomson, 7 Ves. Jr. 470, 473, “here you cannot stir a step but through that illegal agreement; and it is impossible for the court to enforce it.” (See, also, Gunter v. Leckey, 30 Ala. 591.)
It is urged that the statute requiring the giving of a bond was enacted for the express protection. of laborers and material-men; and that, therefore, plaintiff is within its protection, and, not being a party to the illegal contract entered into by Atkin and the city, the facts set forth in the answer constitute no defense. It is a well-recognized rule that where the statute, the violation of which makes the contract illegal, is enacted for the protection of one of the parties to the transaction, he can recover notwithstanding he must prove the illegal contract. Thus, where statutes against usury make the contract illegal, the party injured may maintain an action to recover the excess, for the reason that the statute was designed to protect the needy borrower, and to deny him the right of action would defeat the purpose of the law. The penalty is imposed upon but one of the parties, and the law does not consider them in pari delicto. (9 Cyc. 553.) The statute requiring competition in the letting of contracts for public improvements is what renders the contract here illegal; and the intention was to protect the taxpayer and the public — not material-men and laborers. The exception noted to the general rule does not reach so far as counsel contend, nor does it afford protection to plaintiff.
The statute upon which plaintiff relies and which authorizes the execution of the bond contemplates that, first, a valid contract shall be made — a contract let by competitive bids; competition is a condition precedent to the letting of a valid and binding contract. With full knowledge of the facts plaintiff cannot maintain an action upon the bond, because in order to do so it is necessary to prove the contract for the improvement; and when it appears by the facts averred in the answer that the contract was illegal and void, and that plaintiff had full knowledge of those facts, its contract is likewise shown to be tainted, and falls with the other. In Woolfolk v. Duncan, 80 Mo. App. 421, 427, it was said:
“It is well settled that no action will lie upon any contract based upon any unlawful consideration, or which is repugnant to law or sound policy or good morals — ex turpi contractu actio non oritur. And it is equally well settled that if a contract grows immediately out of or is connected with an illegal or immoral act a court of justice will not enforce it. And if the contract in fact be only connected with the illegal or immoral transaction and growing out of it, though it be in fact a new contract, it is equally tainted. . . . There is no distinction between a contract that is immoral in nature and tendency and therefore void as against public policy and one that is illegal and prohibited by law.” (See, also, Ernst v. Crosby, 140 N. Y. 364, 35 N. E. 603; Kansas City v. O’Connor et al., 82 Mo. App. 655; Town of Kirkwood v. Meramec Highlands Co., 94 Mo. App. 637, 68 S. W. 761.)
Sound policy, we think, requires us to hold that a contract of the character of the one in question, which is void for the reason that it opens the door to fraud and favoritism and to the defrauding of taxpayers and. the public, shall not be used as the basis of recovery in an action by a party who acquired his rights with full knowledge of the facts which rendered the contract and the proceedings void. The facts averred in the second count of the answer therefore constituted a defense to the action, and the demurrer should have been overruled.
The third count of the answer states no defense, and the demurrer was rightfully sustained. (Risse v. Planingmill Co., 55 Kan. 518, 40 Pac. 904.)
We find nothing substantial in the other errors assigned, but the case is reversed and remanded, with instructions to overrule the demurrer to the second count of the answer.
All the Justices concurring. | [
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The opinion of the- court was delivered by
Graves, J.:
This action was. brought to recover' upon a beneficiary certificate issued by the defendant to A. A. Mahaffey, in behalf of his wife, the plaintiff. At the trial the district court filed findings of fact and conclusions of law. From the facts so found it appears that the defendant authorized the local council to take in members free of cost during the months of November and December, 1903. A circular to this effect was shown to Mahaffey. It contained this statement : “All that is required is for the amount of one monthly payment to ■ be deposited with the application card, and for you to complete your membership and take up your certificate before the last of December.”
Mahaffey took advantage of this offer, made application for membership, and paid the amount of one monthly assessment. This application was signed and handed to a member of the order in the month of December, 1903, and by him delivered to the local council. The council held its meetings on the first and third Saturdays of each month. At one of its meetings the application of Mahaffey was accepted, and he was elected a member of such council. The certificate was' signed by the grand officers on December 29,1903. On January 16,1904, Mahaffey was initiated into, and became a member of, the local council, at which time the officers of the council signed the certificate and delivered it to Mahaffey, who signed his acceptance thereon. No fees were demanded of or paid by him when he was initiated and received the certificate as aforesaid. About the last of January demand was made on Mahaffey for the payment of another monthly instalment. He told the secretary he was unable to pay it, and the secretary as a matter of friendship paid it for him. These two instalments are all that were paid by or for Mahaffey, and he died March 22, 1904.
The district court found -that these two payments should be applied for the months of January and February, and that, the March payment not being due until the last day of the month, the certificate did not lapse. The defendant brings this proceeding in error, claiming that the payments should be applied on the months of December and Januáry, and that therefore the certificate lapsed upon failure to pay the assessment due on the last day of February. The constitution of the order provides as follows:
“Upon receipt of the beneficiary certificate the amount of one monthly payment shall be paid by the member to the secretary of the local council, and on or before the last day of each succeeding month the member shall pay, without notice, a like sum to the secretary of the local council, or, if holding a supreme council card, to the supreme secretary; the amount of such payment shall be such as is fixed in the table on the back of the beneficiary certificate of the member, according to the age at the time of becoming a member of the association, as shown in the table of ages and monthly rates given in section 2 of this article, which is hereby added.” (Art. 9, § 1.)
“No beneficiary certificate shall be or become effective or in force until executed by the supreme president and supreme secretary, countersigned by president and secretary of the local council to which the member may belong, and the conditions of the certificate accepted by the member to whom it is issued in writing on his certificate.” (Art. 7, § 11.)
On February 29, 1904, the local council suspended Mahaffey, as being in default for the assessment due that month.
We agree with the conclusions of the district court. The offer to take in members free of cost for a limited time was not intended to make any other change from the ordinary rules of the order. The association was not bound by the transaction until a contract was completed. The applicant had to become a member before he was entitled to the benefits of the order. The assessment paid when the application was made could not be applied until it was known that the local council would accept the applicant as a member, nor until he passed a satisfactory medical examination, nor until the grand and local officers had executed the certificate and it had been delivered to and accepted by the applicant in writing. Until this time the whole matter was incomplete and subject to repudiation by either party.
These constitutional provisions were indorsed on the certificate, and formed a part of the contract. They were evidently made for the protection of the association, and both parties are bound thereby. What the rights of the respective parties would be in the absence of these conditions it is unnecessary to inquire. This court has uniformly held that the rights of members of beneficiary societies rest in contract, and must be measured thereby. The rule stated in Kemper v. Modern Woodmen, 70 Kan. 119, 78 Pac. 452, applies here, and controls the decision of this case.
On January 16 the contract between Mahaffey and the association became complete, and then for the first time the assessment paid at the time of the making of the application became available to the association and satisfied the January assessment. The February assessment was paid by a friend. Mahaffey died before the last day of March, and during the life of the certificate. The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
A. H. Bennett, of Topeka, who does business under the name of the Bennett Commission Company, brought an action against M. T. Cummings, of Beatrice, Neb., to recover damages for the failure of the latter to comply with a contract for the sale to the former of a quantity of corn. Upon the trial the defendant objected to the introduction of any evidence under the petition for the reason that it failed to state facts sufficient to constitute a cause of action. The court sustained the objection and rendered judgment, which the plaintiff now seeks to reverse.
The negotiations between the parties which the plaintiff claims culminated in a contract were conducted by the interchange of telegrams and letters while one was in Topeka and the other in Beatrice. The contention of the defendant is that this correspondence consisted merely of a series of propositions and counter-propositions, and never resulted in a definite offer and acceptance; that the minds of the parties never met upon all the essential elements involved, and consequently no contract was ever entered into; and that all of the communications having any color of acceptance were qualified by new conditions which prevented them from being such in fact. Whether this contention is sound is the sole matter to be here determined. The disputed questions of law might perhaps be adequately presented by means of an abridgment of the correspondence referred to; but in order that every detail of the controversy may be exhibited it is deemed expedient to Show in full all communications that passed between the parties, as alleged in the petition. They were as follow:
1. —Telegram.
“Beatrice, Neb., May 18, 1903. .
“Bennett Commission Company, Topeka, Kan.:
“Give me best bid 10,000 No. 3 white corn or better, same No. 3 mixed corn or better, to be delivered to Union Pacific railway at Beatrice within fifteen days.
M. T. Cummings.”
2. —Telegram.
“Topeka, Kan., May 18,1903.
“M. T. Cummings, Beatrice, Net.:
“Will pay forty-one cents per bushel for 5000 bushels No. 3 or better mixed corn at Kansas City, and will pay forty-two cents per bushel for 5000 bushels No. 3 or better white corn at Kansas City. Reply instantly; one week for shipment.
Bennett Commission Company.”
3. — Telegram.
“Beatrice, Neb., May 18.
“Bennett Commission Company, Topeka, Kan.:
“Will sell you 5000 bushels No. 3 or better mixed corn on track at Kansas City at forty-one cents per bushel, and 5000 bushels of No. 3 or. better white corn on track at Kansas City at forty-two cents per bushel. Terms good firms. M. T. Cummings.”
4.
“M. T. Cummings, Grain.
“Beatrice, Neb., May 18, 1903.
“Bennett Commission Company, Topeka, Kan.:
“Dear Sirs — I hoped in the attached message to interest you in my desire to sell 10,000 bushels each of white and mixed corn on the Union Pacific. Am shelling from my own cribs here. I would not want to sell for inspection beyond Kansas City, and yet we think that if any corn is safe to ship further south this corn would be. I have quite a line of it left, and if you are strong in the market should like to have your bids from time to time. Yours truly,
M. T. Cummings.”
5.
“M. T. Cummings, Grain.
“Beatrice, Neb., May 18, 1903.
“Bennett Commission Company, Topeka, Kan.:
“Dear Sirs — This will confirm sale to you of 5000 bushels 3 or better mixed and 5000 bushels 3 or better white corn at forty-one and forty-two cents, respectively, track Kansas City. Am hoping this will turn out to be Topeka terms. We are not partial to Kansas City and would it to be good firms, if that destination, which your message seems to indicate. In any event would not want terms south of Kansas City. Have had all the grief I can stand for this season. This, however, will be corn from my cribs, and-if any corn is safe to send south without kiln-drying I think this would be. I do not care to dabble in that market at my own risk, however — never again, forever.
Yours truly, M. T. Cummings.
“Am trying to get shelling started tomorrow, and think can get it forward within the week’s time.— M. T. C.”
6. — Confirmation of purchase.
“The Bennett Commission Company.
“Topeka, Kan., Sta. A., May 18,1908.
“M. T. Cummings, Beatrice, Neb.:
“Dear Sir — This confirms our purchase from you to-day, per wire, of 5000 bushels of 3 or better white corn at forty-two cents, track Kansas City, subject to Kansas inspection, destination weights, to be shipped from Beatrice, Neb., in seven days via Union Pacific railway, and billed to us at Topeka, Kan.
Yours very respectfully,
The Bennett Commission Company.
By F. H. B.”
7. — Confirmation of purchase.
“The Bennett Commission Company.
“Topeka, Kan,, Sta. A, May 18,1903.
“M. T. Cummings, Beatrice, Neb..:
“Dear Sir — This confirms our purchase from you to-day, per wire, of 5000 bushels of 3 or better mixed 'corn at forty-one cents, track Kansas City, subject to Kansas inspection, destination weights, to be shipped from Beatrice, Neb., in seven days via Union Pacific railway, and billed to us at Topeka, Kan.
. Yours very respectfully,
The Bennett Commission Company.
By F. H. B.”
8.
“M. T. Cummings, Grain.
“Beatrice, Neb., May 19, 1903.
“Bennett Commission Company, Topeka, Kan.:
“Dear Sirs — I have your favor of the 18th with confirmations, which I note read Kansas City grades, ‘destination weights.’ Please advise where and by whom this grain is supposed to be weighed. In selling to local trade beyond Kansas City and outside Memphis I have been getting settlement on my own weights, and other terms would not look attractive nor satisfactory. Even Memphis weights would carry with them some proviso as to who the weighing firms should be. Yours truly, M. T. Cummings.
“Are you not fixed to give me. Topeka terms on this stuff ? — M. T. C.”
9.
“Topeka, Kan., May 20, 1903.
“M. T. Cummings, Beatrice, Neb.:
“Dear Sir — Acknowledging your two favors of the ,19th, allow us to say that as our confirmation shows we expect to give you Kansas state inspection, and will add that we also expect to give you Topeka weights. We have no intention of asking you to accept destination weights at a little interior point where weighing is not reliable. Yours truly,
The Bennett Commission Company.”
10.
“Topeka, Kan., May 23, 1903.
“M. T. Cummings, Beatrice, Neb.:
“Dear Sir — The party to whom we sold corn bought from you is already beginning to make inquiries as to its arrival, and we presume that it will be imperative that all bills of lading and weigh bills be dated within the time limit of the contract in order to have the grain applied thereon. Please hurry this matter up as rapidly as you can. Yours truly,
The Bennett Commission Company.”
11.
“M. T. Cummings, Grain.
“Beatrice, Neb., May 25, 1903.
“Bennett Commission Company, Topeka, Kan.:
“Dear Sirs — I note your letter of the 23d. Also that to-day is last day of our trade. I shall be down the road to-day and if I can get anything forward will do so, but the heavy rains have probably put us clear out this time. Yours truly, M. T. CUMMINGS.”
The plaintiff maintains that the three telegrams resulted in a complete contract, which was confirmed by the subsequent letters, and was never abrogated. The defendant insists that the third telegram was not the acceptance of the offer made in the second one, but was merely the submission of an independent proposition which the plaintiff might accept or reject. ' The connection between the telegrams, however, is too obvious and too intimate to be ignored. The seller wires to the buyer asking for an offer. The offer is made. The seller then replies, but instead of referring in terms to the message he has received and either accepting it or proposing a modification, he states in detail what he is willing to do. Under the circumstances stated, if the essential features of the trade indicated in the last telegram are identical with those of the one preceding it, it is in effect an acceptance of it, and requires no answer in order to complete the contract. The two telegrams correspond exactly except that in the last there is no reference to the time of delivery, and the words “terms good firms” are added.
The matter of time is of course important, and um-less it was agreed upon there could have been no meeting of the minds of the parties. The first telegram sent by Cummings solicited an offer and referred expressly to the time of shipment, placing it within fifteen days. In response to this Bennett submitted an offer reducing the time to one week, and asking an immediate reply. An answer was at once made which restated the other terms of the sale, but was silent as to the time. The consideration of time cannot be thought to have been overlooked. That it was given attention by both parties is manifest from the first two telegrams. And in view of this fact it cannot be supposed that Cummings when he sent his last dispatch intended tó leave the time of delivery open. He must be deemed either to have stood upon his own first proposal in that regard or to have acquiesced in the modification made by Bennett. Inasmuch as Bennett in his offer distinctly placed the time of shipment at one week, and asked an immediate reply, and as an immediate reply came which was absolutely silent as to this feature of the case, we decide that such silence under the circumstances is fairly to be interpreted as an acceptance of the conditions imposed in this respect by Bennett. That it was so intended by Cummings is apparent from the fact that in his" letter following his second telegram and written on the same day (communication No. 5) he undertook to confirm, not merely an unaccepted offer on his part to sell, but an actual sale of the corn described, and added that he thought he could get it forward “within the week’s time,” reference obviously being had to the time proposed by Bennett and accepted by him.
If the words “terms good firms” added to the second telegram sent by Cummings imported a new condition they of course prevented its operating as an acceptance of Bennett’s proposal. However blind the expression may seem in itself, it is not difficult to attach a meaning to it when it is read in the light of the whole correspondence. It clearly meant that the corn was to be weighed at its destination by responsible business men —that Cummings did not bind himself to accept weights made by unreliable people. In the absence of a special agreement there was no obligation on his part to do so. The words used did not affect the contract between the parties. The situation was the same as though Cummings had said: “I reserve the right to insist upon honest weights.” The mere declaration of a matter which the law clearly implied was not the addition of a new term.
Since we hold that a complete agreement for the sale and purchase of the corn resulted from the interchange of the communications thus far specifically mentioned, it is unnecessary to discuss the remainder of the correspondence further than to say that at no stage of the negotiations could it be contended with any plausibility that Bennett had abandoned the contract or otherwise forfeited his right to demand its performance. Indeed, no serious differences appear to have arisen between the parties. Their subsequent letters have the color of discussions relating to the interpretation to be placed upon a contract already entered into, or to concessions that might be made as a matter of grace upon one side or the other. If there were any misconceptions upon either side, or upon both, of the effect of the contract, or if by common consent its terms were modified, neither fact is now" important. We are concerned here only with the inquiry whether the petition stated a cause of action — that is, whether the correspondence it sets out shows a completed agreement. This question being answered in the affirmative, it results that the judgment must be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Several months after the death of C. W. Goodlander, H. T. Haines and his wife presented a joint demand in the probate court against the Good-lander estate for $28,368.90, founded upon a note said to have been executed by C. W. Goodlander on August 2, 1901, for $26,000, payable to the order of Mrs. H. T. Haines, one year after date, with interest at eight per cent, per annum. Haines and his wife claimed that the note had been accidentally destroyed and therefore a copy of it was not set forth. The execution of the note and the validity of the demand were contested by the executrix of the estate before a jury, who found against the claimants. An appeal was taken to the district court, where another trial was had with a jury, and again the verdict was against the claimants.
The first objection is that the verdict is not sustained by sufficient evidence. This point may be easily determined. There is testimony tending to discredit the claim that the note was ever executed by Good-lander. Aside from the great disproportion between the amount of the note and Mrs. Haines’s financial resources, there is testimony to the effect that she was not only without means but was largely in debt when she began business in Fort Scott; that during the time she claims to have. accumulated the money loaned her business was in fact unprofitable; and that a great deal of the time she was financially embarrassed, and from-time to time borrowed money to meet her most pressing obligations. Mention might be made of testimony' that she never deposited this great amount of money in a bank, but that it was kept in insecure places about her house, and carried with her when she traveled. She said the note was burned accidentally the’day of Good-lander’s burial, but she did not present her claim to the representative of the estate, nor mention the burning of the note to any one, not even her husband, for fifty days after the claimed destruction. There were other circumstances which may have led the jury to discredit the claim that a loan was made, or that a note existed; and, besides, quite a large number of her neighbors gave impeaching testimony against her. It is true that several witnesses were produced by her who said they had seen the note, or heard an acknowledgment of its existence, but the accuracy of their observation as well as the credibility of their testimony were questions for the jury. The verdict, which in effect rejected the theory and testimony of the plaintiff, is not without substantial support.
Many objections were made to the rulings upon testimony, some of which are not sufficiently material to require attention.
Complaint is made of the exclusion of the testimony of a cashier of a railroad company as to the approximate amount of checks delivered by him to Mrs. Haines. The checks were in favor of her husband, who had been running a boarding-train for the railroad company, and who at first claimed to be a joint owner with Mrs. Haines of the note in suit. Later in the litigation, and before the final trial, Mr. Haines disclaimed any interest in the note, withdrew from the action, and was thereafter to be regarded as an outside party. Being no longer a party to the action, his transactions with others had no direct bearing upon the case. Again, the witness stated he did not know the amount of the checks, and a mere conjecture or surmise cannot be made the basis of a judicial finding. The court did allow the plaintiff to show that her husband’s checks were delivered to her, and, if it had been claimed that the money loaned to Goodlander was derived by her from that source, it might have been shown by competent evidence. The fact that the checks may have come to or passed through her hands does not of itself prove that the money represented in them belonged to her. No testimony as to her own earnings or accumulations was excluded.
The testimony of the auditor of the railroad company as to payments made to Mr. Haines, as shown by the books, was inadmissible for the same reason that applied to the exclusion of the cashier’s testimony. It is true, as plaintiff claims, that where book entries, vouchers or accounts are voluminous or complicated, the testimony of a competent witness who has made an examination and summary of them may be received, but the evidence of the auditor was excluded, not because it was not the best evidence, but because it was not competent to show the pecuniary means of the plaintiff.
Objection is made because plaintiff was not permitted to testify whether she had any papers in her hands when she left the presence of Goodlander on February 2, 1900. As he had died, of course she could not testify to any transaction had personally with him. What she was carrying after her visit to Goodlander can hardly be regarded as a personal transaction with him, but it did not appear that the testimony invited was material or competent. The character of the papers which she had was not suggested, the time mentioned appears to have been long prior to the date of the note in question, and there was no offer to prove that the papers had any connection with the alleged loan.
There is no reason to complain of the testimony of Comingore, who professed to have seen the note in suit in Mrs. Haines’s possession. Many questions were evidently rejected because they were suggestive and not in proper form. Answers were evidently excluded because not responsive or because they were conclusions or repetitions. In discriminating rulings the court undertook to confine the testimony within due bounds, and permitted the witness to state pertinent facts which he assumed to know as to the size and form of the paper on which words and figures were printed and written; that it was dated; that it had Mrs. Haines’s name on it; that it was for a large sum of money — more than $20,000; and that the name of C. W. Goodlander was at the bottom of it. Proper questions as to the contents of the paper were allowed, but of course the witness was not permitted to state the ultimate fact that what he saw was a note, nor to give other conclusions of fact.
The testimony of Copeland as to an admission by Goodlander that he had obtained a loan of $25,000 was not competent. No identity was shown between that loan and the note in suit.
Complaint is made that part of an answer of the witness Reese was excluded. So much of it as alluded to a certain letter was properly rejected. The statement that “to the best of my recollection the name of C. W. Goodlander was at the bottom of the note” might have been admitted, but was probably excluded because of the uncertainty implied by the language of the witness. Later, however, the witness stated in no uncertain terms , that the name of C. W. Goodlander was at the bottom of the note, and this testimony the court refused to strike out.
The witness Shaffer was asked to give her opinion as to whether the signature of C. W. Goodlander on a letter was in the same handwriting as his signature on the note. The offer was properly rejected because she was not shown to be a competent witness, and had admitted that- she did not know Goodlander’s handwriting.
In order to meet the testimony of her financial inability to make the loan, plaintiff offered to show that in July, 1901, she had proposed to pay to one of her creditors a debt of $4000, but that the payment was not accepted. This was a self-serving declaration, and was rightly refused.
Complaint is made of testimony to the effect that plaintiff had stated at different times, and in various ways, that she was losing money in her business — was hard up and without means to meet accruing debts. Whether her claim, of which no written evidence was in existence, was a valid or a fraudulent one was a leading issue in the case. It was made prominent also by her counsel in his opening statement to the jury when he said that plaintiff would prove, not only that the claim was. honest, but that she was financially able to make the loan from money earned and otherwise acquired. Under the circumstances a wide scope of inquiry was justified, and it does not appear to have been unduly extended by the trial court.
Other objections are made to the rulings on the ad mission of testimony, but they are not deemed to be material, and it is clear that they furnish no grounds for reversal.
It is contended that in submitting the case to the jury the ewrt assumed the existence of facts which were in dispute, and gave undue prominence to some circumstances of the case. It is said that the court, in the fifth instruction, assumed that admissions had been made respecting losses sustained by the plaintiff in conducting a railroad eating-house, and also of the acceptance of money from the railroad company to make up such losses. It is not easy to say that there was a real dispute as to admissions of this character, but the court did not in fact assume that such admissions had been made.- It charged the jury to consider “for what you may think it is worth the evidence as to admissions claimed by the defendant to have been made by the claimant, including the claims, if any,” which were then enumerated. As will be observed, the court spoke of the claim of defendant as to certain admissions, and left the jury to decide if any admissions had been made.
Complaint is made, of the sixth instruction given by the court, which is as follows:
“You are instructed that unless you believe from a preponderance of the evidence that ‘Exhibit A,’ intro-, duced in evidence, is a portion of a letter written by C. W. Goodlander to Mrs. H. T. Haines, and that in said letter there was a statement concerning the alleged note, then you should wholly disregard said ‘Exhibit A.’ If you believe from a preponderance of the evidence that ‘Exhibit A’ is a portion of a letter written by C. W. Goodlander to Sam W. Webb, then you will disregard the testimony for the plaintiff as to the contents of what she claims to be the missing part of a letter written by C. W. Goodlander to her.”
No error was committed in giving this instruction. On the one side it was said that the letter, only a fragment of which was preserved, contained an, admission by Goodlander that he had given the note to Mrs. Haines. On the other side it was claimed that it was a portion of a letter written by Goodlander to Webb, which in some way had fallen into the hands of Mrs. Haines. The portion of the letter preserved made no reference to the note in suit, but Mrs. Haines claimed that the missing part did refer to the note, and offered proof to that effect. If the letter was not written to Mrs. Haines, and made no reference to the note, it had no relevancy to the case, and it was the duty of the court to take from the consideration of the jury the contents of a letter which had no bearing upon the case.
In neither of the instructions criticized did the court invade the province of the jury, or violate the rules governing instructions. While the court may not comment upon the weight of the evidence, nor assume the existence or non-existence of controverted facts, it is not precluded from referring to the evidence in the case. It is not improper to assume the existence of conceded facts, nor to call the attention of the jury to alleged facts which are not in dispute; and, if a fact essential to a recovery is lacking, the court, on application, is required even to take the case from the jury. The court should present the theories of the respective parties, and in doing so may refer to the lines of evidence introduced by the parties and upon which each relies, carefully refraining from expressing an opinion as to what the facts do or do not prove and from giving any intimation from which the opinion of the court might be inferred. Instead of stating abstract principles of law, the court should aid the jury by making a concrete application of the law to the facts in issue which there is evidence to support. While the court should be careful not to mislead the jury by singling out and giving undue prominence to. a particular fact in a case or unduly emphasizing the contentions of either party, yet there is no reason why the court should not in some cases refer to particular parts of the evidence and advise the jury as to the rules of law applicable to such facts. Frequently the court can properly and effectually refer to the evidence to illustrate the statements of law given to guide the jury.
The reference in the sixth instruction to the letter did not offend by giving undue prominence to a particular fact. If the letter was written to Mrs. Haines its contents were pertinent and important, but if it was written to Webb, and did not mention the note in question, its contents had no bearing upon the case and could not be given any consideration. The contentions of the two parties with respect to the letter were fairly stated, and the instruction was appropriate. Neither the repeated references to the “alleged note” and “alleged claim” nor the repetitions of the phrase “preponderance of the evidence” are deemed to be prejudicial.
The instruction as to impeaching evidence was given for the benefit of the plaintiff, and is not erroneous.
It is argued that in charging the jury as to the implied consideration of written contracts the court left the construction of a statute to the jury. There was a quotation from the statute on the subject; but it would be difficult to make a clearer statement of the rule than is contained in the statute, and the adoption and use of the statutory phrase in the instruction is not open to criticism.
We think the theories of the contending parties were fairly and impartially presented to the jury, and that none of the objections to the instructions affords ground for reversal.
Not all of the points raised by plaintiff have been mentioned, and perhaps some of those mentioned did not require special comment, but all have been carefully examined, and we discover no grounds for setting aside the verdict of the jury, nor the judgment based upon it. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
On the authority of Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, 93 Am. St. Rep. 308, and Henthorn v. Security Co., 70 Kan. 808, 79 Pac. 653, this case is affirmed. Under the uncontroverted facts, the only legal right, if any, the plaintiff has in the land in question is to redeem and have an accounting for rents. | [
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The opinion of the court was delivered by
Mason, J.:
Edwin Bartlett sued George J. Christi-sen in ejectment. A judgment was rendered for the defendant, which was immediately set aside, over his objection, upon demand of the plaintiff, by notice on the journal, the cause being then continued to the next term. A record was shortly thereafter made of these proceedings, stating that the judgment was rendered by consent of the plaintiff. The defendant then filed a petition in error in this court based upon the contention that, as the judgment had been given by consent of the plaintiff, the court had no authority to set it aside, the statute authorizing a second trial in eject-men having no application to such a case. On the first day of the next term the district court of its own motion, and without notice to the defendant, made an order reciting that the journal entry theretofore made was incomplete and in part untrue, and directing a new entry to be made in accordance with the actual facts. The journal was thereupon corrected in obedience to this order. The new entry showed in detail the circumstances under which the judgment had been rendered, and in particular recited that the plaintiff consented to its rendition only upon the condition that it should be immediately set aside upon his application. Still later the defendant filed a motion to set aside the order of correction, and gave the plaintiff notice of a hearing upon it. A hearing was had, both parties being represented, and the motion was denied. The pro ceedings subsequent to the judgment are brought to our notice by supplemental transcripts.
Two questions are presented — whether this court shall look to the original or to the corrected entry to learn the circumstances under which the judgment was rendered, and whether, under the facts as disclosed by whichever entry shall be held to control, it was error for the district court to set aside the judgment.
The order of correction is objected to on three grounds: (1) That it was not in accordance with the real facts, and was not supported by sufficient evidence; (2) that it was made after the expiration of the term of court at which the judgment was rendered; (3) that it was made without notice to the defendant. The first two objections are covered by the decision of this court in Martindale v. Battey, ante, p. 92, where it was held that the record of a judgment can be corrected so as to speak the truth after, as well as during, the term at which it was rendered, and upon any satisfactory evidence, parol as well as written, although it was noted that there have been many decisions against each of thése propositions. (See, also, Investment Co. v. Walsh, 70 Kan. 899, 79 Pac. 688.) There was no suggestion in this case of any purpose or attempt to change the order that was actually made — the alteration was only in the language of the record, describing what had been done. No question is involved of any rights having been acquired under the original entry that would be disturbed by its change. The personal knowledge of the judge as to what had taken place in his presence was equivalent to evidence on the subject, and a decision of fact made upon that basis cannot be reviewed here. The circumstance that his attorney indorsed an approval upon a form for the original journal entry is mentioned as estopping the plaintiff from denying its correctness. It was the duty as well as the privilege of the judge, however, to see that the record was correctly kept, and no act of the parties could prevent the exercise of that function.
SYLLABUS BY THE COURT.
Jurisdiction — District Court — Correction of the Record. A district court has inherent power to correct the record of its proceedings so that it shall speak the truth and show what actually took place. This power is not lost by lapse of time, and may in the discretion of the court be exercised upon its own motion and without notice to the parties affected.
That no notice was given to the defendant of the change in the record was presumably due to the fact that the change was ordered by the court of its own motion. Even in such a case, irrespective of any question of jurisdiction, the better practice would seem to be to give the parties affected notice of a proposed amendment and an opportunity to be heard upon the matter. Whether the defendant could otherwise complain of the want of notice in the present case need not be determined; he afterward, as already stated, filed a motion presenting directly the question as to what form of entry the facts required, and upon this motion a hearing was had, participated in by counsel for both parties. The court decided against the contention of the defendant. He has. therefore had every advantage that would have been secured to him by a notice of the proposition to correct the record.
Accepting the corrected record as evidence of what actually took place, it is manifest that no error is shown. The judgment against the plaintiff was justified only by his consent, and his consent was expressly conditioned upon its being immediately set aside. Under these circumstances the court could not permit the-judgment to stand. Fairness to the plaintiff required that it should be vacated, and as the order of vacation was made at the same term there can be no doubt of the jurisdiction of the court to make it.
The order of the district court setting aside the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
A horse which M. H. Morrison was driving became frightened at a passing train of the St. Louis & San Francisco Railroad Company and ran away. Mr. Morrison was thrown out of his buggy and seriously injured. He sued the railroad company, and recovered a judgment for $1925, from which the defendant prosecutes error. The only question necessary to be considered is whether there was any evidence tending to show that the injury was the result of the breach of any duty which the company owed to the plaintiff.
In the vicinity of the place where the injury occurred the railroad-track runs north and south, and crosses a small stream known as the south branch of Hickory creek. Two wagon roads on the east side of the railroad, one coming from the north, the other from the southeast, unite at this point, and, paralleling the bed of the stream, pass under the railroad-track and immediately turn, south. These roads are not highways, but they have long been used by the owner of the land, his neighbors and others to such an extent that ruts have been worn, rendering them plainly visible. The railroad-track south of the creek is straight for some sixty or seventy rods, and then turns and is hidden from sight by trees and bluffs. At the creek the wagon roads descend somewhat sharply to pass under the track, and from the low ground the view is cut off within fifty feet or so by the trees and the higher ground. On the west side of the railroad the wagon road runs south through a narrow lane, enclosed between the railroad on the one side and a barbed-wire fence on the other. These conditions have existed for many years.
On the day of the accident the plaintiff had business which rendered it desirable for him to make use of the crossing described. He drove toward it upon the road that comes up from the southeast. As he neared the railroad-track he listened for a train, and looked down the track as far south as it was visible. Not seeing or hearing anything to indicate the approach of a train, he drove under the track and turned south. He had just reached the high ground and entered the lane already described, and was pursuing his course south, being some fifty or sixty feet from the crossing, when a train going north passed him, frightening his horse and occasioning the injuries for which he asked damages. No whistle was blown or bell sounded as the train approached the crossing. The contention of the plaintiff is that the jury were warranted in concluding that the situation and surroundings of this crossing imposed a duty upon the company to have a signal given whenever a train approached it, and that the omission to give such a signal in this case was an apt of negligence toward the plaintiff which caused his injury. The soundness of this contention constitutes the whole subject of inquiry. It is not claimed that any of the train crew knew of the situation of the plaintiff, but that they were chargeable with notice of the existence of the roads and were bound to assume that there might be travelers at the crossing.
It is substantially conceded that the road was not of such a character as to be within the terms of the statute (Gen. Stat. 1901, § 1323) requiring a whistle to be sounded upon the approach of a locomotive to a public crossing. But it is insisted that, inasmuch as this crossing was so situated that one about to use it could not see far' enough down the track to give him adequate warning of the coming of a train, the case falls within the rule stated in Roach v. St. J. & I. Rld. Co., 55 Kan. 654, 41 Pac. 964, where it was held that whether it is negligence for an engineer to omit to give a signal near a private crossing is or may be a question for the determination of a jury. Whether this rule should ever be applied to any crossing except where the wagon road and railroad-track are upon the same grade is a question upon which the authorities differ. In Massachusetts it is held that it should not, but in Pennsylvania and Kentucky the decisions are to the contrary. (See Favor v. Boston & Lowell Railroad Corporation, 114 Mass. 350, 19 Am. Rep. 364; Pennsylvania Railroad Co. v. Barnett, 59 Pa. St. 259, 98 Am. Dec. 346; Rupard, &c., v. Chesapeake & Ohio Railroad Company, 88 Ky. 280, 11 S. W. 70, 7 L. R. A. 316.) In Wisconsin and in Georgia it is held that statutes requiring a whistle to be sounded whenever a locomotive approaches a public • crossing have no application to any but grade crossings,. for the reason that only in such cases is there any common use of the highway, or possibility of actual collision, although in both states it is recognized that the frightening of horses is one of the dangers intended to be guarded against by such statutes. (See Jenson v. The Chicago, St. Paul, Minneapolis & Omaha R. Co., 86 Wis. 589, 57 N. W. 359, 22 L. R. A. 680; McElroy v. Ga., C. & N. Railway Co., 98 Ga. 257, 25 S. E. 439; Ransom v. The Chicago, St. Paul, Minneapolis & Omaha R’y Co., 62 Wis. 178, 22 N. W. 147, 51 Am. Rep. 718; Bowen v. Gainesville R. R. Co., 95 Ga. 688, 22 S. E. 695. See, also, in this connection, Skinner v. New York O. & W. R. Co., 64 N. Y. Supp. 325.)
Whether the railroad company may be held in any case to owe a duty to one who is using or is about to use a private subway under its track to give timely notice of the approach of a train need not now be determined, as we conclude that however that question might be decided no liability against the defendant is shown in this case, for the reason that at the time of the injury the plaintiff had crossed under the railroad-track and was traveling upon a road parallel to it.
It is true that under statutes requiring signals to be given upon the approach of a train to a public crossing it has been held, although there is some conflict in the decisions, that the railroad company owes the duty to give such warning, not only to persons about -to use or actually using the crossing, but also to those traveling upon the highway in the vicinity. But in these cases the liability of the railroad is based upon the very terms of the statute, the theory adopted being that the violation of a positive duty enjoined by the legislature gives a cause of action to any one who suffers injury by reason of such violation and whose protection may reasonably be supposed to have been to any extent within the legislative contemplation. It is not to be inferred from these decisions that in the absence of a statute, or in the case of a private crossing, to which the statute does not apply, the same doctrine would justify a court or jury in awarding damages to one whose horse was frightenéd by a train elsewhere than at a crossing.
In the present case any duty that the railroad company may. have owed the plaintiff did not arise from the fact that he was using a road which approached near to the track, but from his use of a road which actually crossed it, although at a different grade. It is obvious that where a highway lies near to a railroad there is some danger of accidents resulting from horses being frightened by passing trains, and that this danger would be less if timely notice should be given of their approach. But so far as we are aware it has never been contended on this account that there was an obligation on the part of those operating trains to give any signal upon approaching a place where the highway and. railroad-track come close together without crossing; Where the road and- track lie parallel for a considerable distance this would be impracticable, as involving a continuous sounding of the whistle or ringing of the bell. This consideration does not constitute the reason for not exacting such a re-, quirement,- however. It could ^indeed have little application where a highway comes up to the railroad and then turns sharply away. In such a situation there might be sufficient reason for giving a signal to justify legislation compelling it, but to demand it in the absence of such an enactment would be to require too close a balancing of probabilities on the part of the employee in charge of the engine. The very sounding of the whistle involves an appreciable addition to the risk of frightening horses. The law reports show that claims against railroad companies for causing runaways by the giving of signals, if not as common as those based upon an omission to give them, are far from infrequent.
It may be that the risk of an injury resulting from the horse of a traveler being frightened by a train while actually using the crossing under the track was so great that as against that risk a jury might well say that it was incumbent upon the agents of the railroad company to give a signal of the approach of a train. If so the duty resulted from the special danger at that very place, and not from the general danger involved in the proximity of the wagon road to the railroad-track. The plaintiff, not having been injured by the only peril against which it could have been the duty of the trainmen to protect him by the giving of a warning, had no ground of recovery against the company.
In the argument some stress was laid upon the fact that the place where the plaintiff’s horse took fright was rendered one of peculiar danger by reason of the road’s being confined to such narrow limits by the barbed-wire fence. This was not a condition for which the defendant was in any way responsible. If such a condition existed elsewhere than near the crossing it would not impose a duty to signal upon the approach of a train. It had no necessary connection with the crossing — its existence in proximity thereto was purely incidental. The special and peculiar danger resulting from the placing of a fence outside of the road so near the track was not one of which the railroad company was required to take notice and against which it could be required to guard by the giving of signals with reference thereto.
For the reasons stated the judgment is reversed, and the cause remanded for further proceedings in accordance herewith.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The defendant in error presented a claim against the estate of her deceased mother for personal services, and recovered thereon both in the probate and district courts of Sumner county. The administrator brings the case here for review. The family formerly resided in Scotland, and consisted of George Gunn, his wife, and several children. Three of the adult children came to Kansas, and afterward, in October, 1883, the mother came, leaving her husband and the remaining children in Scotland. Mrs. Gunn owned the land in controversy, and resided thereon. One of her. sons lived with her for a time, and later she managed the farm alone, with the aid of hired assistants. In 1895 she sent back to Scotland for her youngest daughter, Alexandrina Gunn, known' as Ina, to come and live with her on the farm, and furnished the money for the necessary expenses of the trip. This daughter remained with the mother from the time of her arrival from Scotland until the mother’s death, in January, 1904. In 1900 this daughter married Donald Robertson, and they remained. with the mother as a part of her family.
At the time Ina came to Kansas she was about twenty-six years of age,' and her mother was about seventy.' After Mrs. Gunn’s death Mrs: Robertson filed a claim against the estate for work and labor performed, a copy of which, without caption or verification, reads:
“Estate of Isabella Gunn, deceased, to Alexandrina Robertson, Dr.:
“To services in caring for deceased from July 1, 1895, to December 1, 1902, at three dollars, under agreement to make a will providing' for payment of full value of claimant’s services, $1158.
“To services for nursing deceased on sick-bed from December 1, 1902, to November 24, 1904, at ten dollars per week, under agreement that deceased would make a will and provide for payment at full value of services, $1030.
“Total amount of claim, $2188.”
Mrs. Robertson claims that her mother agreed to give her the farm in payment for her services, and that it was the intention of Mrs. Gunn to make a will to that effect, but she postponed it from time to time until it was too late. In the absence of such a will she claims the reasonable value of the services. The plaintiff, being an incompetent witness as to any conversation or transaction had personally by her with her deceased mother, was compelled to rely upon other proof to establish her contract. This difficulty on the part of the plaintiff appears to have been the chief reliance of the defendant, and every possible phase of the question was vigorously contested.
Thirty-three assignments of error are presented to this court, nearly all of which involve some feature of the competency of the plaintiff’s evidence. In addition to this it is urged that the plaintiff was permitted to introduce evidence which did not tend to establish the agreement set' forth in the account.
For convenience we will consider the last objection first. In our view of the case there was but one serious question at issue, and that was whether the services of the plaintiff were rendered gratuitously. If the mother agreed to pay for them, and failed to do so, the manner in which she intended to make payment is only important as indicating that she did not think they were rendered gratuitously. The administrator claims that as the burden was upon the plaintiff to show that there was an express agreement to pay for the alleged services, and as she has stated the transaction in which such express contract was made, her evidence must be confined to such transaction. As a question of pleading this is probably correct; but the informal and summary manner which the statutes provide for the disposition of this class of cases suggests the application of a liberal rule of construction, both to the statements of the account and to the admissibility of testimony in support thereof. Therefore, any evidence which tended to show that the mother agreed to pay the plaintiff for her services by the provisions of a will would be proper under the statements of her claim.
The plaintiff, as a witness in her own behalf, testified to several conversations between her mother and sister, which took place in the presence and hearing of the witness. This is the subject of vigorous complaint, on the ground: (1) That the witness is incompetent; and (2) that the evidence does not tend to sustain the account sued upon, which constitutes the plaintiff’s pleading. The general scope of the evidence admitted over these objections will be seen by a few quotations therefrom:
“Ques. What was the conversation about, Mrs. Robertson? . . . Ans. She always told Mrs. Clark that after her death the land where she lived would be mine, if I stayed with her and took care of her until she died.”
“Q. Now, you may tell what your mother said to Mrs. Clark about that. A. She always told she sent to Scotland and wanted to take me here to take care of her, and if I stayed here it was mine after her death.”
“Q. Did you ever hear your mother say anything to Mrs. Clark about the farm you were living on? A. Yes, sir; that was all she had, and it was that that she was to leave me, if I stayed with her.”
“Q. Go ahead. A. She told Mrs. Clark that I was n’t satisfied to stay with her, but if I stayed with her until after her day, it would be mine — the farm that she was on.”
“Q. Did you ever hear your mother say anything to Mrs. Clark about how she intended the farm to become yours? A. No, sir. She just said she was going to fix it after her death to be mine, and that is all I ever heard her say. She would leave it.” ;
“Q. Now, Mrs. Robertson, do you remember anything else that you heard your mother tell Mrs. Clark in regard to what she had told you? A. Nothing further than that; that the land would be mine after her death, if I stayed there and took care of her. She was going to fix it that way if she was able to get to Wellington here; that she was going to fix it that way.”
This is only a small part of the entire evidence of this character admitted. Under the rule stated by this court in the cases of McKean v. Massey, 9 Kan. 600, Jaquith v. Davidson, 21 Kan. 341, and McCartney v. Spencer, Ex’r, 26 Kan. 62, this witness was competent to testify to a conversation had between her mother and another. The evidence itself is competent, as it tends to show that the mother had agreed to pay for the services of the plaintiff, and that such payment was to be made by the provisions of a will. (Bonebrake v. Tauer, 67 Kan. 827, 72 Pac. 521.)
Several neighbors testified to conversations had by them with the mother, in which she-stated that she intended to send to Scotland for the plaintiff to come and live with her while she lived; and it is shown that she' did send money to the plaintiff to pay the expenses of the latter’s trip to Kansas. The mother also stated to several visiting neighbors that Ina was going to take care of her the rest of her life, and was to have the farm in payment therefor; and that she intended to fix it that way as soon as she was able to go to Wellington. She also remarked that they were lonesome there, living alone, and that Ina did not like to stay, but she would not leave — “she is a good, good girl, and will be paid well for her trouble.” It also appears that the plaintiff’s husband urged her to leave her mother and go with him to their own place, which she refused to do, and he went to it alone and remained apart from her much of the time during the last two years of the mother’s life.
The rendition of the services by the plaintiff is not denied. That the mother intended to pay liberally therefor is clearly shown. The conclusion that the plaintiff at all times expected to be paid therefor is fully justified by the evidence. That there was an express contract between the mother and daughter is a fair deduction from the testimony. That the plaintiff was kind and careful of her mother’s comfort during her illness is shown by the repeated statement of the mother that “Ina is a good, good girl.” The fact that payment was to come after the mother’s death, if the service continued to that time, and that an arrangement for this purpose was to be made when the mother went to Wellington, suggests that it was intended that payment would be provided for by the provisions of a will.
Under ordinary circumstances — that is, if no family relation existed — the law would imply a promise on the part of the deceased to pay for the services received. But in compliance with a wise and beneficent public policy, designed to protect and preserve the relations which belong to home and the family fireside, the law presumes all such services to have been rendered solely from considerations of filial affection and duty. This, however, like any other presumption of fact, may be. overcome, and a contract, if any existed, may be established by any competent evidence.- It is not essential that a formal offer and acceptance, in writing or otherwise, be shown. In the absence of more direct evidence the fact may be established by circumstances. An express contract exists whenever there is a mutual meeting of the minds upon any contractual proposition. The essential contractual proposition in this case is: Were the services in question to be paid for? What was the mutual understanding of these parties upon this subject? This was a proper question for a jury, and that tribunal has answered that the parties intended that the services should be paid for.
Many objections are made to the instructions of the court, both on account of those refused and those given. These are too numerous to discuss in detail. The principal contention of counsel may be shown by one instruction asked and refused which reads:
“Briefly stated, a contract can only be entered into when there are at least two competent contracting parties, and one or more definite propositions or offers are made by one for the acceptance of the other, and such propositions or offers are accepted by the other, absolutely as made, in such way.that each knows the state of mind of the other on the offers.”
The court’s view of the law applicable to this case is shown by instructions given which read:
“ (6) If you should find from the evidence, by a preponderance thereof, that the services claimed for, or any part thereof, were performed by the plaintiff for the deceased, upon an express contract that the same should be paid for, or with the understanding and agreement of both the plaintiff and the deceased that same should be paid for, then you should find for the plaintiff, and should allow her in your verdict the fair and reasonable value of such services as she so rendered at the time and place where rendered. Unless you so find you must find for the defendant.”
“(9) It is not necessary that the plaintiff prove the exact words of the contract or agreement had between herself and her mother, if you find that she had an agreement/with her mother; but in determining whether there was such an agreement you may take into consideration such evidence as has been given before you of the declarations and statements of the plaintiff’s mother. If you find that she made such declarations and statements, and all the facts and circumstances surrounding the plaintiff and her mother, and if from these declarations and the facts and circumstances surrounding the parties you believe from a preponderance of the evidence that the plaintiff and her mother did have an agreement that the plaintiff should be compensated by her mother by making provision for her out of her estate, then your finding should be for the plaintiff.
“(10) If you find from a consideration of all the evidence that there was a mutual understanding between plaintiff and her mother that the plaintiff should be compensated for working for her mother, and caring for her, and that she did the work and cared for her as she claims under such mutual understanding, then your finding should be for the plaintiff.
“(11) The plaintiff must recover in this action, if she recovers at all, on the agreement which she alleges she had with her mother; and the burden of proof is upon her to show by a preponderance of the evidence that she had a contract with her mother by which her mother was to pay her for her services, by making a provision for her to be paid out of her estate.”
The court uses the words “understanding and agreement” as equivalent to “express agreement,” and to this vigorous objection is made. We think the instruction requested requires a formality unnecessary in any case — one seldom observed between parent and child, and contains conditions not applicable to the evidence in this case. It was therefore properly rejected. As before stated, we think that a mutual meeting of the minds upon a matter of contract creates an express contract, whether evidenced by a formal offer and acceptance or otherwise. The case of Ayres v. Hull, 5 Kan. 419, is in many respects similar to this. In that case Chief Justice Kingman, in the following language, stated that a mere promise or understanding between the parties would be sufficient:
“For nearly eight years the defendant in error lived in the house and formed part of the household of the brother, rendering services, abundantly proved to have been valuable, and receiving in return but a scanty supply of clothing, a living, and a home. Had there really existed any contract, or promise, or understanding, between the parties, we would not disturb the judgment.” (Page 424.)
Complaint is also made of instructions upon the amount of recovery. We think the criticism made here is due more to the condition of the proof than to the action of the court. The- only evidence upon the subject of the value of the services shows the value of the ordinary service of a servant-girl on a farm to be three dollars a week, and that of trained or partially trained nurses to be from ten dollars to fifteen dollars per week. The services embraced farm work, housekeeping, and nursing. The plaintiff was not a trained or experienced nurse, but gave all the care and attention to her mother possible, besides looking after every other matter about the place. The evidence upon this subject was all given by the plaintiff. From it the jury had to reach a conclusion as to the amount the plaintiff’s labor was reasonably worth. The court directed them, in substance, to consider the evidence given, and any facts within common knowledge, and award such amount as to them seemed reasonable and just. We see no error in this. The court throughout its instructions repeatedly presented the idea that no recovery could be had unless an express contract be shown, and that the amount of recovery should be the reasonable value of the services rendered.
We have carefully examined all the instructions given and think that they fully and fairly presented the case. We are unable to find any error sufficient to reverse the judgment of the court, and it is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff in error brought these suits to enjoin the assessment and collection of special-improvement taxes for the grading, paving and curbing of Fifth street from Euclid avenue to Central avenue, in Kansas City, Kan. From a judgment refusing a permanent injunction plaintiff brings this proceeding in error. ,
The cause was tried upon an agreed statement of facts. The plaintiff’s petition claimed that prior to the adoption of the resolution declaring the improvements necessary there had not been filed with the city clerk a petition signed by the resident owners of one-half of the land fronting or abutting upon the street asking that such improvements be made; that plaintiff, being a resident owner of a majority in front feet of the property liable to be taxed under the improvement, duly filed its written protest against the improvement, notwithstanding which the council proceeded to pass the ordinances and caused the improvements to be made.
A special objection to the validity of the proceedings was also made upon the ground that plaintiff was the owner of an irregular-shaped, unplatted piece of ground, a portion of which abuts on Fifth street a distance of 1725 feet. The other portion of said irregular-shaped tract is land which does not abut upon the street improved, but extends for a distance of about 1400 feet parallel with Fifth street, but distant there from 200 feet. This irregular tract was assessed as one entire tract of land.
Kansas City is a city of the first class. The claim is made that the thirty-day statute of limitations- (Gen. Stat. 1901, § 766) bars plaintiff from raising any of the contentions relied upon to defeat these special-improvement taxes. The agreed statement of facts recites that the suit was commenced more than thirty days after the time of the ascertainment of, and levy of the assessment for, the cost of the improvement complained of; also, that the mayor and council had done all things necessary, so far as form is concerned, upon which to base the assessment.
The validity of an assessment for special improvements authorized by the mayor and council of a city of the first class, when the proceedings upon their face are regular in form, cannot be attacked by a suit to enjoin the collection and assessment unless the suit be brought within thirty days from the time the amount of the assessment is ascertained. (Gen. Stat. 1901, § 766; Simpson v. Kansas City, 52 Kan. 88, 34 Pac. 406; Doran v. Barnes, 54 Kan. 238, 38 Pac. 300; City of Argentine v. Simmons, 54 Kan. 699, 39 Pac. 181; Arends v. City of Kansas City, 57 Kan. 350, 46 Pac. 702; Kansas City v. Kimball, 60 Kan. 224, 56 Pac. 78.)
Plaintiff is a corporation organized under the laws of Utah, with its principal office in that state, but claims that, under the ruling in The State v. Bogardus, 63 Kan. 259, 65 Pac. 251, it is a resident of any city or county in which it operates its railway or exercises corporate franchises. It seeks to avoid the effect of the thirty-day statute of limitations by the argument that the mayor and council were without jurisdiction, and all the proceedings in reference to the improvement and the ascertainment and apportionment of the cost thereof were void, because the city and its officers had a list of the property-owners and a map showing the location of the land, and in addition knew that the plaintiff was a resident of the city and owned a majority of the front feet of the land involved and had filed its written protest against the improvement. On the other hand it is contended that the plaintiff is not a “resident owner” of land in Kansas City, within the terms of section 730 of the General Statutes of 1901. The further contention is made that, if plaintiff be conceded to have been a resident at the time the petition for the improvements was presented, the determination of the mayor and council that the petition was signed by the requisite number of resident owners is conclusive; and that the railroad company lost its rights by failing to bring a suit within thirty days after the ascertainment and apportionment.
Without passing upon the question of whether a railway corporation which is a citizen of another state, with its principal office in that state, can be considered a resident of any city in this state in which it operates its railway or exercises corporate franchises, we are of the opinion that the determination by the mayor and council that a petition asking for the improvement contains the requisite number of signers is final and conclusive, unless a suit be brought within thirty days after the ascertainment and levy of the taxes. This also covers mere irregularities in the detail of the apportionment and levy of the tax, such as is claimed occurred with reference. to a portion of the irregular tract of land, which was within less than 300 feet of the street improved.
The action of the- mayor and council in determining the sufficiency of a petition has been said not to be final and conclusive in the absence of legislative provision to that effect. (2 Dill. Mun. Corp., 4th ed., § 800.) Our statute contains such a provision (Gen. Stat. 1901, § 733), which reads as follows:
“When hereafter the mayor and council of any city' of the first class shall have ordered, any petition presented to them for the paving, curbing or guttering of any street to be spread upon the journal, said order shall in all respects be a final determination and conclusive evidence as to the sufficiency of such petition.”
Plaintiff filed its written protest against the making of the improvement. It claimed to be a resident of the city, and it knew of all the objections to the proceedings which it now sets up against the assessments after the improvements have been made. Its claim for relief does not appear to be any stronger upon equitable grounds than that of an absent, non-resident owner who was in entire ignorance of the proceedings, but whose property was assessed and all right to object cut off by this thirty-day statute. After the expiration of thirty days the validity of the assessment cannot be attacked for any purpose, when the proceedings are regular on their face; and here the regularity is conceded.
The two cases were submitted together, and are in all respects similar, except that the question with respect to the assessment of the irregular tract of land is not involved in No. 14,500, The judgments are affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
A demurrer was sustained to the plaintiff’s petition by the district court. The plaintiff excepted, and brings that question here for review. The demurrer contained two grounds: (1) That several causes of action were improperly joined; (2) that the petition did not state facts sufficient to constitute a •cause of action. The demurrer was sustained generally. The record does not show whether the court considered the petition insufficient for both reasons or not. The case has been argued as though the second ground of the demurrer was the only one involved, and we shall so assume.
The petition is of considerable length, and the points discussed by counsel can be sufficiently stated without giving a full copy of the pleading. After the proper formal and introductory averments the petition states, in substance, that the defendant offered to sell to the plaintiff certain goods, at a stated price, as shown by “Exhibit A”; that the plaintiff accepted the offer, as shown by “Exhibit B”; 'that the plaintiff afterward made an additional order, as shown by “Exhibit C”; that later the plaintiff, by letter, confirmed and renewed previous orders, which were accepted by the president of the defendant company, as shown by “Exhibit D”; that in pursuance thereof shipping orders were sent to, and received by, the defendant, as shown by “Exhibit E”; that defendant received all shipping orders sent by the plaintiff as aforesaid, but “neglected and refused to deliver said egg-cases as it agreed to do, and as ordered by this plaintiff”; that at the time the first shipment should have been made, and ever since, such egg-cases have been worth from one and a quarter to two cents more than the contract price; and that the plaintiff has been damaged $1000. Then follows a prayer for judgment. The exhibits are as follow:
“Exhibit A.”
“Altamont, III., January 31, 1903.
“W. B. Hurst & Co., St. Louis, Mo.:
“Dear Sir — Yours of yesterday at hand ordering ten cars standard whitewood cottonwood-veneer egg-cases. We note that you speak of a one-piece end. The case we quoted you on has a two-piece dressed end, ready cleated. The price quoted you of nine cents, cars, factory, is at the Cairo, 111., factory, and the rates as before named you are as follow: Eldorado, six cts. per 100; Marion, five cts. per 100; Mt. Vernon, seven cts. per 100.
“Terms are as you mentioned: two per cent, off for cash ten days from date of invoice.
“These cases average seven and one-half pounds each — possibly a little less. Hence it is no trouble to tell almost precisely what the case will cost you f. o. b. cars at the above-named stations. Cars are very scarce, and we would suggest that you place your order early; say at least twenty days in advance of time you expect to use them.' Awaiting your prompt reply, we are, Respectfully yours,
Altamont Manufacturing Company.”
“Exhibit B.”
“St. Louis, Mo., February 2, 1903.
“Altamont Manufacturing Company, Altamont, III.:
“Dear Sirs — Replying to your favor of the 31st, if ends are two piece and cleated, as you say they are, balance of case filling required dimensions, being a standard whitewood case (veneer), it is all right. We will take the ten cars. You may file our order now for shipment of one car to Fayetteville, Ark., and one car to our address, South Greenfield, Mo. Would be glad to have you get these off at as early a date as possible. Since we- know that the cases áre at Cairo, we have bought a great many there, and know what the freight rates are ourselves to our various stations.
Yours truly, • W. B. Hurst & Co.”
“Exhibit C.”
“St. Louis, Mo., February 5,1903.
“Altamont Egg-case Company, Altamont, III.:
“Gentlemen — Confirming our conversation by telephone this morning, you can enter our order for ten moré cars of cases to be same as last order of ten cars, at nine cents f. o. b. Cairo. We instruct you to order out, immediately, one car to Fredonia, Kan.; one car tó Monett, Mo.; one car to Harrison, Ark.; one car to Springfield, Mo.; one car to Fort Scott, Kan. On the 3d we gave you order for one car for S. Greenfield, Mo., and one car to Fayetteville, Ark. Let these cars go forward first, the Fredonia car next, and then let the others go as they come.
“Now, relative to your pay: Do not worry about that. We supposed that Dun and Bradstreet had our rating. But you have our permission to address them, or to address the Citizens’ National Bank of Fort Scott, Kan., National Exchange Bank, Springfield, Mo., Bank of Commerce here, or any of the commercial agencies. It is our intention, however, to discount all these cases, as the old company did with you. We are' agreeable to your passing draft if you desire, but make it subject to arrival of car, for we would not want to pay the draft until cars arrived and were properly checked. Kindly let us hear from you promptly confirming above order, and oblige,
Yours truly, W. B. HURST & Co.”
“Exhibit D.”
“St. Louis, Mo., 2-9-’03.
“Altamont Manufacturing Company, Altam,ont, III.:
“Gentlemen — This will confirm purchase from you of thirteen cars of veneer cases (in addition to the seven cars, orders for which have already been placed with you) at nine cents track, Cairo, 111., the case to be standard veneer case, made of cottonwood^
“We will give you shipping instructions on these thirteen cars within the .next few days.
Yours very truly, W. B. HURST & Co.”
“Accepted: Altamont Manufacturing Company— J. E. R.”
“Exhibit E.”
“February 18, 1903.
“Altamont Manufacturing Company, Altamont, III.:
“Dear Sirs — To conform with our contract entered into a few days ago, you will kindly book our orders on thirteen cars of cases, to be shipped as promptly as possible to the following points: Two cars to Springfield, Mo.; two cars to S. Greenfield, Mo.; one car to Fredonia, Kan.; one car to Parsons, Kan.; one car to Cuba, Mo.; three cars to Monett, Mo.; one car to Clinton, Mo.; one car to Fayetteville, Mo.
“We would- like, if possible, for you to fill these cars in the following order, shipping the first two cars to Fayetteville, Ark., two cars to Springfield, Mo., two cars to South Greenfield, Mo., three cars to Monett, Mo., one car to Clinton, Mo., one car to Cuba, Mo., one car to Parsons, Kan., one car to Fredonia, Kan.
“All of-these points are now ready to take the cars in as promptly as they are shipped; so kindly move them as promptly as you can.
“Our egg season is open, and we will need them all between now and March 1. Yours truly,
W. B. Hurst & Co.”
. The supposed weakness of this petition, as we understand from the discussion of counsel, lies in its want of an allegation that the plaintiff furnished the necessary cars at the time when shipment was desired. On, the other hand, it is contended that it was- the duty of the defendant to obtain ’the cars from the carrier, load the goods therein, and consign them to. the plaintiff. The real point in the controversy, therefore, seems to be this: Whose duty was it under the contract between these parties to cause the carrier to place cars in position to receive the goods to be shipped ?
The exhibits attached to the petition constitute the contract. If concisely stated, it would be substantially as follows: Ship to us immediately, or as promptly as possible, twenty cars of egg-cases, distributed as hereinafter stated. We will pay therefor nine cents a case, f. o. b. cars at Cairo, Ill., payment to be made when cars arrive at the point of destination. This order was accepted.
In construing this contract the difficulty centers in determining what the parties intended by the clause “f. o. b. cars, Cairo, Ill.” It is conceded that the letters “f. o. b.” are for brevity used instead of the words “free on board.” The clause when expressed in words, therefore, stands thus: Free on board the cars at
Cairo, Ill. This language has been used in the transaction of commercial business many years, and has by general custom and usage among buyers, sellers and shippers acquired a definite and specific meaning, which is well understood and of common knowledge, and of which courts will take judicial notice. The significance of this language, when standing alone, is so well established that it has been generally held that proof in support of such signification is unnecessary and improper. (Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 South. 672; Capehart et al. v. Furman Farm Improvement Co., 103 Ala. 671, 16 South. 627, 49 Am. St. Rep. 60; Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820, 67 L. R. A. 756, 106 Am. St. Rep. 989; Hunter v. Kramer, 71 Kan. 468, 80 Pac. 963.)
This, like any other language, may, however, be used in a sense different from that in which it is generally understood; and it may receive an interpretation from the acts of the parties using it different from what the words seem to indicate. It is important to bear this in mind, as in the decided cases where the words “free on board the cars” have been defined the decisions generally turn upon some modifying circumstance, wholly outside of, and apart from, the language itself. The decisions are practically unanimous in holding that these words bind the seller to place the goods on board the cars free of expense to the buyer; also that the carrier is the bailee of the consignee, and that delivery to the carrier amounts to delivery to the buyer. We are asked to extend this meaning a step further.
It is apparent that the goods cannot be loaded until cars are in place to receive them. The duty to select the carrier and cause it to furnish the cars rests somewhere. The plaintiff in error insists that this duty belongs to the seller. At this point the authorities part company, and seem to be somewhat conflicting. A careful examination of the cases, however, shows this conflict to be more apparent than real. A few decisions, fairly recent in date, have held that this duty devolves upon the buyer. These cases, however, are limited to the particular facts presented, and in nearly every instance such facts furnish a reason for the meaning given to the contract under consideration. The most important of these cases are: Consolidated Coal Co. v. Schneider, 163 Ill. 393, 45 N. E. 126; Hocking v. Hamilton et al., Appellants, 158 Pa. St. 107, 27 Atl. 836; Baltimore & L. Ry. Co. v. Steel Rail Supply Co., 123 Fed. 655, 658, 49 C. C. A. 419; Evanston Elevator & Coal Co. v. Castner, 133 Fed. 409; Neimeyer Lumber Co. v. Burlington & M. R. R. R. Co., 54 Neb. 321, 326, 74 N. W. 670, 40 L. R. A. 534.
In the case of Consolidated Coal Co. v. Schneider, supra, the coal company leased its mine to the plain tiff, whereby the lessee was to furnish coal to the lessor, to be delivered at the mine, which was- some distance from the railroad station. The lessor furnished cars for a time, and stated that it would continue to do so. Under these facts it was held to be the duty of the lessor to' furnish the cars.
In the case of Hocking v. Hamilton et al., Appellants, supra, the commodity sold was coal, to be delivered at the tipple, and the buyer agreed to receive it there. This was not a contract to deliver at any railroad station, but at a different place, and because of this agreement it was held to be the duty of the buyer to furnish the cars.
In the case of Baltimore & L. Ry. Co. v. Steel Rail Supply Co., supra, the plaintiff sold some old rails to the defendant, to be shipped upon orders stating destination and name of consignee, and no such orders were given. It was held that as the shipper could not know when, where or to whom the shipment was to be made he was not bound to furnish the cars.
The case of Evanston Elevator & Coal Co. v. Castner, supra, was also a case where coal was to be delivered at the mine. In that case the court referred to the foregoing and other cases, and while apparently approving all of them limited the decision to the facts of that case', and held it to be the duty of the buyer to furnish the cars, but did not decide what the phrase “f. o. b.” means when standing alone.
The following cases hold that, under the prima facie meaning of the phrase “f. o. b.,” it is the duty of the buyer to furnish the cars: Kunkle v. Mitchell, 56 Pa. St. 100; Wackerbarth v. Masson, 8 Camp. (Eng.) 270; Dwight v. Eckert, 117 Pa. St. 490, 12 Atl. 32; Chicago Lumber Co. v. Comstock, 71 Fed. 477, 18 C. C. A. 207; Davis v. Alpha Portland Cement Co., 134 Fed. 274, 278.
In the case of Boyington and another v. Sweeney, 77 Wis. 55, 45 N. W. 938, it was held that the duty of furnishing the cars rested upon the buyer. This de cisión was practically overruled by the subsequent case of John O’Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337, and the contrary rule was adopted. The latter case was followed in the later case of Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820, 67 L. R. A. 756, 106 Am. St. Rep. 989, decided by the same court in September, 1904.
A noticeable feature of the cases here cited holding it to be the duty of the buyer to furnish the cars is that none of them involves an ordinary commercial transaction like, or similar to, the one here presented. On the contrary, each case had peculiar and exceptional-conditions which clearly distinguish it from this case, and which furnished the reason for the decision given. We do not, therefore, regard these cases as in point on the question here involved.
This case can be disposed of, so far as the demurrer is concerned, without defining the meaning of the phrase “f. o. b. cars, Cairo, Ill.,” when standing alone. We think the correspondence attached to the plaintiff’s petition, when considered as a whole, contains language outside. of this phrase which fairly indicates what was intended by it. It is not difficult to hold, aided by this language, that the formula “f. o. b. cars, Cairo, Ill.,” was understood by both parties to mean that the defendant would do all that was necessary to be done to accomplish the shipment of the goods to the plaintiff as directed, free of expense or further attention on the part of the latter.
Here this opinion might end. But the case must be returned for further proceedings, and as we cannot anticipáte what facts will be developed when the issues are finally closed we deem it best to consider and decide the whole question discussed by the parties. It is our understanding that the phrase or formula “f. o. b. cars” has by long usage and custom acquired throughout the business circles of this country a definite and specific meaning, generally understood by all business people. When such phrase or formula is used in a business contract, between a buyer and seller of. ordinary commercial commodities, where the use of a common carrier is necessary, the parties intend thereby that the seller will, at his own expense, do all that may be necessary to accomplish the loading and consignment of the goods to the buyer, including the procuring of cars upon which to load the commodities sold; and when nothing appears to modify or limit this meaning courts should enforce the contract so as to effectuate this intent. This rule is reasonable; it harmonizes with existing business conditions, and is the universal practice among business people.
It is conceded that by this phrase the seller is bound to deliver the goods to the buyer by placing them on board the cars. How can he do this unless he secures the cars? Why say that this duty belongs to the buyer? The language of the contract is silent upon this question. By the letter of the agreement it may be said that neither party has agreed to perform this duty, but it may not be said that there was no understanding upon this subject. Without such an understanding the contract would be incomplete and unenforceable. What the parties intended upon this subject can only be ascertained by interpretation, and to do this the situation of the parties when the contract was made, the subject-matter thereof, and all the attendant circumstances and conditions, must be considered.
It is within common knowledge that carriers are willing and even anxious to receive freight for transportation, and to invite business they furnish every reasonable facility and convenience to shippers. It is also well known that wholesale houses and manufacturing establishments have special shipping arrangements with carriers, whereby their business is provided for and accommodated. The facilities of the latter for the procurement of cars are, for many reasons, superior to those of the buyer.
In large cities where many railroads center, having receiving stations more or less remote from each other, it might be a material advantage to a shipper to have the privilege of selecting the carrier to whom his goods should be delivered, which he might do if it was his duty to furnish the cars. The inconvenience which the seller would encounter- in securing cars upon which to load the goods sold is merely nominal, while the difficulties to which the buyer would be subjected are such that it *would be unreasonable to assume that he would undertake so to do. In view of the many serious objections in the way of such a contract it seems clear that, if the parties to the agreement under consideration had deemed it necessary to state specifically who should perform this duty, the seller would have been named. This manifest intention of the parties should be made effectual by giving to their contract the same legal effect which it would have if such agreement had been specifically written therein.
In the case of John O’Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337, where the meaning of the phrase “f. o. b. cars” was the point discussed, it was said: “It would seem pretty obvious that one undertaking to load logs upon railroad-cars ordinarily assumes the duty of obtaining the cars on which to load the logs, as much as any other implements with which to do the work.” (Page 471.) It was also said: “We cannot avoid the conclusion that the written contracts, upon their face, by necessary implication imposed on the appellants the duty of obtaining the cars upon which they had agreed to load the logs.” (Page 474.) This language was approved and followed in the case of Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820, 67 L. R. A. 756, 106 Am. St. Rep. 989.
We conclude that the judgment of the district court should be reversed. It is, therefore, directed that such judgment be vacated; that the demurrer to the petition be overruled; and that the further proceedings had be in accordance with the views herein expressed.
All the Justices concurring. | [
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Per Curiam:
This is an original proceeding brought in this court for the purpose of removing the sheriff of Cowley county from his office for failure properly to perform its duties. A motion to dismiss is made upon the ground that it might more appropriately be brought in the district court. The reason given for invoking the action of this court is that the docket of the district court is so congested that a case begun there could not be finally determined before the expiration of the defendant’s term, in January, 1907. It is obvious that no final determination could be had of the present proceeding before that time unless it should be heard out of its regular order. Time could doubtless be saved, however, by instituting such a proceeding in the court of last resort, and that might ordinarily be a sufficient reason for such course.
But another feature of this case requires consideration. The sheriff is an officer sustaining a relation of peculiar intimacy to the district court. While he has duties to perform unrelated to that tribunal, he is in a general sense one of its officers. Allegations of misconduct with reference to carrying out the mandates of that court (and those here relied on are of that character) can be investigated with a greater assurance of reaching a just result in the county where the acts complained of are alleged to have been committed. The reasons stated in The State, ex rel., v. Breese, 15 Kan. 123, and Supreme Lodge v. Carey, 57 Kan. 655, 47 Pac. 621, for requiring applications to control the acts of the clerk of the district court to be made first to that court apply with substantially equal force in support of the contention that the same rule should be enforced in the case of a proceeding of this character against the sheriff. The rule of this court requiring the plaintiff bringing original proceedings here to show by affidavit why that course is adopted was not framed upon the theory that the existence of any particular class of reasons is jurisdictional, but with a view to afford an early opportunity in the history of each case for the court to determine whether there is good ground for the discretionary exercise of a conceded jurisdiction. The existence of the jurisdiction does not imply that a litigant has always an absolute and unconditional right to invoke it. (In re Burnette, ante, p. 609.) In the present instance the court is of the opinion that the controversy involved is one which can better be heard in the district court, and that the reasons given for a different course are not sufficient to overcome that consideration.
The cause is therefore dismissed. | [
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The opinion of the court was delivered by
GRAVES, J.:
This action was commenced to recover upon the eight promissory notes obtained by the plaintiff from M. Ware, each being for the sum of $333.33. The notes were given in consideration of services performed in an effort to effect a consolidation of the Bankers’ Union of the World and the National Aid Association. One of the defendants, the Bankers’ Union of the World, objects to the payment of the notes (1) because the purpose for which the notes were given was beyond the power of the association, which makes them void in toto; and (2) because the plaintiff is not in a position to claim the protection ordinarily due to an innocent holder of commercial paper, as he is still in possession of all the property that was the consideration for the notes and is secure from loss without such protection.
The plaintiff insists that a corporation having power to create debts or incur liabilities for any purpose whatever has the power to issue its promissory note therefor, and the purchaser of such note, in the absence of notice or knowledge to the contrary, has the right to assume that it was given for a rightful purpose; that defendant association has express power to provide many things that can only be obtained either by cash or credit, and to carry out the manifest purposes of the order it is necessary for it to have the power to contract debts for these essential purposes and issue its promissory notes therefor; that the plaintiff has delivered all of the property sold, and is in possession thereof merely as agent of the owner, and therefore cannot protect himself; and, further, that the defendant association, having received the services of the payee of the notes, and caused him to surrender his office, and receipt for past-due salary, is now es-topped from denying its power to make the contract and execute the notes.
There are other questions presented, but they are minor to, and involved in, the principal ones mentioned, and in the view we have taken they .are not material to the conclusion reached and need not be considered.
Corporations are created by law, and have such powers only as are expressly or impliedly conferred upon them. The charter of a corporation is the measure of its power. (7 A. & E. Encycl. of L. 695.) In the case of Head v. Providence Insurance Co., 6 U. S. 127 (reprint, vols. 5-6, p. 150), 2 L. Ed. 229, Chief Justice Marshall said:
“Without ascribing to this body, which in its corporate capacity is the mere creature of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be said to be precisely what the incorporating act has made it; to derive all its powers from that act, and to be capable of exerting its faculties only in the manner which that act authorizes. To this source of its being, then, we must recur to ascertain its powers.” (Reprint, vols. 5-6, p. 154.)
In the case of N. Y. F. Ins. Co. v. Ely, 5 Conn. 560, 567, 13 Am. Dec. 100, Chief Justice Hosmer said, when speaking of the powers of corporations, that “the law of its nature, or its birthright, in the most comprehensive-sense, is such, and such only, as its charter confers.” In the case of Central Transp. Co. v. Pullman’s Car Co., 139 U. S. 24, 11 Sup. Ct. 484, 35 L. Ed. 55, Mr. Justice Gray said':
“The charter of a corporation, read in the light of any general laws which are applicable, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental.” (Page 48.)
This is the generally accepted and recognized rule. The implied powers which a corporation has are only such as are necessary fully to carry out the" powers expressly given and to accomplish the purpose of its creation. (7 A. & E. Encycl. of L. 699; The People, ex rel., v. Chicago Gas Trust Co., 130 Ill. 268, 283, 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Rep. 319; Chicago Gas Light Co. v. People’s Gas Light Co., 121 Ill. 530, 13 N. E. 169, 2 Am. St. Rep. 124; Franklin Bank v. Commercial Bank, 36 Ohio St. 350, 355, 38 Am. Rep. 594.)
In the case of National Home-building Ass’n v. Bank, 181 Ill. 35, 54 N. E. 619, 64 L. R. A. 399, 72 Am. St. Rep. 245, Chief Justice Cartwright said:
“A corporation is a creature of the law, having no powers but those which the law has conferred upon it. A corporation has no natural rights or capacities, such as an individual or an ordinary partnership, and if a power is claimed for it the words giving the power or from which it is necessarily implied must be found in the charter or it does not exist.” . (Page 40.)
It may therefore be said that as a general rule a private corporation possessing the powers usually con ferred has authority to issue promissory notes, either when authorized to do so in express terms, or when it is necessary to carry out other powers expressly given and is essential to the accomplishment of the purpose of its creation. But it may also be said that corporations may be created which do not have such power, either express or implied. Whether a given corporation has such power or not will depend upon the express provisions of its charter, and the purpose it was intended to accomplish. When a law whereby a corporation is created does not confer in express terms the power to issue promissory notes, such power will not be implied if it appears from the general scope of the law, and from the purpose to be accomplished by such corporation, that it is not essential to the proper exercise of the powers expressly conferred nor to the accomplishment of the objects fór which the corporation was created.
Applying these principles to this case, we have concluded that the Bankers’ Union of the World did not have power, either express or implied, to issue the notes sued upon. It was organized under the provisions of a statute enacted for the purpose of placing such associations in a separate and distinct class. By the express terms of this statute associations organized under it are excluded from the provisions of all laws relating to ordinary corporations and life-insurance companies. This indicates an intention to deprive them of the ordinary business powers incident to other corporations, and to withhold all power not expressly given.
This association was not organized for trading or business purposes, or to acquire profit in any way. It is without capital, and has no revenue. Its only financial resource is the voluntary contributions of its members. Its only business is to receive and disburse these contributions in accordance with the rules of the order. No power exists to enforce the payment of as sessments, but when they are voluntarily paid a fixed per cent, thereof is placed in a fund out of which all the expenses incident to the management of the order are to be paid. This fund is the sole means at the disposal of the officers of the association, and it is, and of necessity must be, an uncertain and conjectural quantity. The issuance of a promissory note, with no security for payment when due other than this fund, would be a very unbusinesslike transaction. It would seem like folly to permit any obligation of the association to be issued which exceeded the extent of this fund at the time of such issuance. An obligation payable upon the contingency that this fund would be sufficient might work no injury, but.a promissory note negotiable in a commercial sense, payable absolutely, is wholly incompatible with the plans, resources and necessities of such an organization.
A law permitting a corporation of this character to issue such notes, and thereby deceive and entrap the unwary and credulous, would be open to serious criticism. It may be conceded that the legislature of Nebraska might confer such power upon such an association, but it should not be assumed to have done so until its language to that effect is so clear and explicit as to admit of no other reasonable interpretation. The statute under which the Bankers’ Union of the World was organized, and the constitution and by-laws of that order, have been fully pleaded and constitute a part of the record in this case. The decisions of the Nebraska supreme court, so far as deemed applicable, have béen cited in the briefs of counsel, and further to aid this court depositions of eminent lawyers in that state have been taken, wherein opinions have been given pro and con as to whether or not under this statute and the decisions and other laws existing in Nebraska the Bankers’ Union of the World had the legal power to issue a promissory note. But, since we have the statute and reports before us, we have con- eluded to follow our own judgment in the decision of this question.
It is familiar law that whoever deals with a corporation or buys its obligations is bound to take notice of the powers conferred by its charter, and the purposes for which it was created. When the plaintiff was. about to purchase the notes in question he was charged with notice of the powers, express and implied,, possessed by the Bankers’ Union of the World, and was. bound to take notice that it had no authority or power to issue such notes for any purpose whatever. Charged with such notice, he could not become the' owner of the notes so as to be entitled to the protection usually accorded an innocent holder of commercial paper. (Alexander et al. v. Cauldwell et al., 83 N. Y. 480, 485; Jemison et al. v. C. S. Bank, 122 N. Y. 135, 140, 25 N. E. 264, 9 L. R. A. 708, 19 Am. St. Rep. 482; Sturdevant Bros. & Co. v. Farmers’ & Merchants’ Bank of Rushville, 69 Neb. 220, 95 N. W. 819; National Home-building Ass’n v. Bank, 181 Ill. 35, 54 N. E. 619, 64 L. R. A. 399, 72 Am. St. Rep. 245; Nicollet National Bank v. Frisk-Turner Co., 71 Minn. 413, 74 N. W. 160, 70 Am. St. Rep. 334; The Franklin National Bank et al. v. Whitehead et al., 149 Ind. 560, 49 N. E. 592, 39 L. R. A. 725, 63 Am. St. Rep. 302; Durkee v. The People, 155 llI. 354, 40 N. E. 626, 46 Am. St. Rep. 340.)
This conclusion disposes of the case so far as the Bankers’ Union of the World is concerned, and makes it unnecessary to consider the question of estoppel on account of benefits received, as the plaintiff took the notes with notice of this infirmity and is. not therefore entitled to the rights of an innocent holder. It seems, however, that this defendant received very little, if' anything, of value out of the transaction.' The scheme of consolidation failed. These notes were not to be paid unless it succeeded. It is true that the president and secretary of the Bankers’ Union of the World, while in control of the National Aid Association, used. its funds in a way that might give just cause of complaint, but that association is not in this case. These funds were not transferred to the Bankers.’ Union of the World, nor used in any way for its direct benefit. They were used to defray the expense incurred in the furtherance of the scheme in which both associations were interested. The National Aid Association was insolvent and unable to pay the salaries due its officers, and the release thereof resulted in very little, if any, loss to them, and no advantage to the other association.
We think E. C. Spinney, the other maker of these notes, is liable thereon. He was personally, as well as officially, interested in securing the consolidation of the associations. But for his supposed personal financial responsibility nothing would have been done by the payees of the notes to secure the union of the two companies. He knowingly and voluntarily executed negotiable notes, and consented to their delivery. The transaction in which they were given was not unlawful, or contrary to public policy. The consolidation of such corporations might be desirable and useful to both associations, and proper and legitimate in every way. The officers of the National Aid Association did not attempt to sell out their company, nor to betray their trust; they only undertook to advise with and urge the subordinate lodges and members to consent to the proposed merger. This was proper. The National Aid Association could not exist alone very long, and any change which promised protection to its certificate holders was desirable. We think this effort on the part of the officers was not vicious, but commendable.
The notes are not enforceable against the other maker (the defendant corporation) simply because it had no power to execute them, and the plaintiff had legal notice thereof when he took them. The plaintiff, having bought these notes in good faith, and for value, and without notice of the circumstances under which they were given, is an innocent holder as against Spinney, and is entitled to recover thereon.
The judgment of the district court is affirmed so far as the Bankers’ Union of the World is concerned, and reversed as to E. C. Spinney; and it is directed to enter judgment, upon the facts found by it, against E. C. Spinney, in accordance with the views herein expressed. The costs in this court are divided equally between the plaintiff and defendant Spinney.
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The opinion of the court was delivered by
Mason, J.:
Charles L. Wilson appeals from a conviction upon a charge of fraudulently obtaining property by false pretenses. The evidence of the state tended to show that in October, 1898, Wilson and one George Maris purchased a herd of 402 steers, in payment for which they executed two notes to the A. J. Gillespie Commission Company for the aggregate' amount of $13,366.80, secured by a mortgage upon the cattle; that in the following December they sold 397 of these steers to the Elk Grove Land and Cattle Company, under the representation that they were clear of all encumbrance, obtaining in payment a check for $500 and a draft for $10,547; and that the buyer was compelled to lose the cattle or pay the mortgage.
A large number of assignments of error have been made and argued, but the one most urgently presented is based upon a contention of the defendant that the cattle were in fact unencumbered because the mortgage executed by himself and Maris was rendered incapable of enforcement by various provisions of the Kansas statutes known generically as the antitrust laws. This question was raised in the trial court by an offer on the part of the defendant to prove that the A. J. Gillespie Commission Company was a member of a voluntary association known as the Kansas City Live-stock Exchange, composed of persons and corporations engaged in the business of buying and selling live stock for themselves and for others, organized for unlawful purposes, among which was that of fixing and maintaining a minimum charge for commissions for their services in buying and selling cattle for others, such minimum charge being established by a by-law at fifty cents per head; that the cattle here involved were purchased by the Gillespie company for the defendant and Maris, a commission being charged in pursuance of the by-law referred to, amounting to $201, which was included in the sum for which the notes and mortgage were given. The offer was made in greater detail than here shown, and included a tender of a copy of the articles of association, rules and by-laws of the live-stock exchange. It was rejected'by the court, and the con troversy so far as this matter is concerned turns upon the correctness of that ruling.
Defendant in support of his contention invokes three statutes, enacted in different - years — chapter 257 of the Laws of 1889 (Gen. Stat. 1901, §§2430-2438), chapter 158 of the Laws of 1891 (Gen. Stat. 1901, §§2439-2441), and chapter 26.5 of the Laws of 1897 (Gen. Stat. 1901, §§7864-7874). The first of these forbids certain contracts in restraint of trade. The second is narrow in its scope, and applies only to persons or corporations engaged in buying or selling live stock, who are prohibited by it from entering into any agreement to control the amount to be charged as compensation for services in making sales of live stock for others. The third is very sweeping in its provisions. It defines and denounces five kinds of combinations, which it denominates trusts. The definitions are couched in general terms, but cover almost every conceivablé device by which freedom of commerce might be hampered, competition restricted, or the price of commodities controlled. All acts done in pursuance of any of the arrangements interdicted by these various statutes are made misdemeanors. The act of 1897 also contains these provisions:
“Any contract or agreement in violation of any of the provisions of this act shall be absolutely void and not enforceable in any of the courts of this state; and when any civil action shall be commenced in any court ^ of this state it shall be lawful to plead in the defense' thereof that . . . the cause of action grows out of any business transaction in violation of this act.” (Gen. Stat. 1901, § 7870.)
The argument in behalf of the defendant is that, assuming the truth of the rejected evidence, the Kansas City Live-stock Exchange was an unlawful combination under each of these statutes; that in charging the defendant $201 as a commission for services in buying 402 head of cattle for him the Gillespie company acted under and in pursuance of the unlawful bond which united the members of the exchange, and thereby .was guilty of a public offense; that the mortgage was unenforceable both because $201 of its consideration was on this account illegal and because it was made in violation of the provisions of the statute of 1897, or grew out of a business transaction in violation of that statute.
It may be assumed for the purposes of the case that the live-stock exchange was a trust within the meaning of the law of 1897 by reason of a number of its rules other than those relating to the regulation of commission charges. There are provisions of that law which purport to make such fact alone a complete bar to the enforcement of a contract made in this state by one of its members. Such provisions must be interpreted, however, as applying only to contracts made pursuant to the illegal combination, and in furtherance of its unlawful purposes. (Barton v. Mulvane, 59 Kan. 313, 52 Pac. 883; The State v. Jack, 69 Kan. 387, 76 Pac. 911.) Whether this mortgage was a contract of that character is the pertinent inquiry in this connection. The mere fact that the Gillespie company was a member of a trust when it bought these cattle for Wilson, paid for them, and took his notes and mortgage for the amount, did not taint the transaction with illegality. The feature of the proceeding of which complaint is made, and which causes the doubt of its validity, is the charge of a commission for services in making such purchase at the rate of fifty cents a head — the minimum rate fixed by the unlawful association. This being true, the mortgage was void only in case an agreement to maintain a minimum rate for such services is held to be one of those forbidden by statute.
There are general expressions in the law of 1897 which, if given a liberal construction, might be held to prohibit such an agreement; for instance, those directed against combinations intended “to create or carry out restrictions in trade or commerce, or aids to commerce,” or “to carry out restrictions in the full and free pursuit of any business,” or “to increase or reduce the price of merchandise, produce, or commodities,” or “to prevent competition in the . . . sale or purchase of merchandise, produce, or commodities, or to prevent competition in aid to commerce,” or “to fix any standard or figure, whereby its price to the public shall be, in any manner, controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, use or consumption in this state.” (Gen. Stat. 1901, § 7864.) The statute being penal, however, requires a strict rather than a free construction. Moreover, its interpretation is affected by another consideration. The act of 1897 is so similar in many respects to that of 1889 as to give plausibility to the suggestion that it was intended to cover the whole of the subject-matter of the earlier statute and entirely to supersede it. (The State v. Smiley, 65 Kan. 240, 69 Pac. 199.) On the other hand, the act of 1891 is so specific in its terms, and there is such a lack of any apparent attempt to accomplish its precise purpose by the later enactment, that there is little room for a contention that it has been repealed by implication, and we regard it as still in force. This being decided, the two acts, since they relate to the same general subject, must be construed together, as though parts of the same enactment. (Wren & Clawson v. Comm’rs of Nemaha Co., 24 Kan. 301.) The precise scope of the earlier one is indicated by its title, which is “An act prohibiting combinations to prevent competition among persons engaged in buying or selling live stock,” etc. In the later enactment there is no reference to this subject by any terms more definite than those already quoted. In this situation, it is to the specific statute, and not to the general one, that we must look for an expression of the intent of the legislature with regard to the matter of regulating the business of buying and selling cattle upon commission, and the prohibition against the transaction complained of by defendant must be found, if at all, in the statute of 1891, and not in that of 1897. (Long v. Culp, 14 Kan. 412.)
Upon a cursory inspection the act of 1891 may seem abundantly sufficient to stamp as illegal any agreement for the control of the commission to be charged for services either in buying or selling live stock. A careful reading, however, discloses that while the persons against whom it is directed are described as those engaged in the business of buying or selling live stock upon commission, the agreements declared to be illegal are in every instance those relating to the establishment of fixed or minimum charges for services in the sale, but not in the purchase, of live stock for others. This cannot be deemed the result of a mere error, clerical or otherwise, for the expression occurs no less than four times. Why the legislature should have made a distinction between agreements relating to commissions for selling and those relating to commissions for buying is not a matter of inquiry here; that it has done so admits of no doubt.' We cannot insert in the law an inhibition against the establishment of minimum charges for services in buying cattle, nor can we ignore the effect of the omission of the legislature so to do. As the commission charged to the defendant by the Gillespie company was for the purchase of cattle for him, not for their sale, it was not under the ban of the statute and did not invalidate the mortgage. If the law of 1889 is to be considered still in force the application of its general provisions to the matter here involved must be denied, upon the reasoning already employed with regard to 'the act of 1897. It results from these conclusions that the trial ■court committed no error in rejecting the evidence under consideration.
The matter of defense just discussed was advanced under singular. circumstances. There is no pretense that the defendant informed the Elk Grove company, or that it was otherwise notified, of any claim that the mortgage was void because based upon an unlaw ful consideration, .either before the cattle were sold or in time to have enabled the company to raise the question against the holder of the mortgage when the cattle were demanded under it. Selling property under the representation that the title is clear when in fact there is in existence a mortgage against it which is valid except for some latent defect unknown to the purchaser, and in virtue of which the property is successfully replevied from him, may be an offense in law, as it assuredly is in morals. But we have assumed that it was necessary for the state in order to convict in this case to prove the existence of a valid mortgage.
The defendant challenged the sufficiency of the information on the ground that it did not show whether - the A. J. Gillespie Commission Company was a corporation or a partnership. Such an omission in laying the ownership of the stolen property in a prosecution for larceny would be fatal. (The State v. Suppe, 60 Kan. 566, 57 Pac. 106.) The same degree of particularity is not required, however, in the description of the mortgagee in a case of this kind.
Another objection made was that the information did not state that the mortgage was unpaid. It did allege that at the time of the sale to the Elk Grove company the cattle were encumbered by the mortgage, and this was equivalent to an allegation that the mortgage at that time remained unsatisfied. (Keyes v. The People, 197 Ill. 638, 64 N. E. 730.)
The information described the mortgage given by the defendant and Maris to the Gillespie company as one securing an indebtedness of $13,336.80. The proof showed that the mortgage debt was $13,356.80. This is claimed to be a fatal variance. It would not be profitable to review the great number of authorities cited in support of this contention. Whether or not it is possible to distinguish this case from those relied upon by the defendant, it is not necessary to do so. Notwithstanding anything that may have been said to the contrary by courts of eminent respectability, it is so manifest that the defendant could not by the most remote possibility have been misled by the inaccurate statement of the amount for which the mortgage was given that we have no hesitancy in holding that there is nothing substantial in the objection made.
The information alleged that the mortgage had been by the mortgagee assigned and transferred to, and was then owned by, the Central Savings Bank, of St. Joseph, Mo., and Louis Hax. The evidence was that the mortgagee sold the notes under a blank indorsement, that the buyer sold them to the St. Joseph bank, delivering them without further writing, and that the bank sold one of the notes to Louis Hax, retaining the other. This is also' complained of as a variance. Granting that for some purposes the description of the notes as having been assigned to, and as being owned by, the bank and Hax was inapt, this is likewise a matter by which no prejudice could result to the defendant and for which it would be folly to set aside the conviction.
. The draft which the defendant (jointly with Maris) was charged with having fraudulently obtained was issued by a bank cashier to the order of John Wilson & Co., and by the payees indorsed to “Maris & Wilson, for the use of Elk Grove Land and Cattle Company.” It is urged that because of this restrictive indorsement Maris and Wilson acquired no beneficial title to the draft, but took it only in trust for the Elk Grove company. This might be deemed the effect of the indorsement in the absence of any explanation, but the evidence warrants the conclusion that it was intended to mean simply that the draft, although transferred by John Wilson & Co. direct to Maris and Wilson, was delivered to them on account of the Elk Grove company.
Other assignments of error have been argued with regard to the admission of evidence, the giving and refusing of instructions, and the denying of the motion for a new trial. It is not thought that they require separate statement or discussion. They have all been examined, and we reach the conclusion that the record is free from material error. The judgment is therefore affirmed.
SYLLABUS BY THE COURT.
1. Statutory Construction — Statute Prohibiting Combinations — Repeal by Implication. Chapter 158 of the Laws of 1891 (Gen. Stat. 1901, §§2439-2441), prohibiting combinations to prevent competition among persons engaged in buying and selling live stock, is superseded by the general antitrust law of 1897 (Laws 1897, eh. 265; Gen. Stat. 1901, §§ 7864-7874), and is no longer in force.
2. Monopolies- — Dealing in Live Stock — Violation of Antitrust Law. An association of persons and corporations engaged in • the business of buying and selling live stock, and practically controlling that business at the place of operation, which has a by-law forbidding its members to buy or sell live stock for others without charging a commission therefor of at least fifty cents a head, is a combination to carry out restrictions in the full and free pursuit of a lawful business, and in virtue of that fact is ’a trust within the terms of chapter 265 of the Laws of 1897.
3. Contracts — Commission—Void Because Made in Violation of Law. The charging of a commission for services in the purchase of live stock for another, by a member of such a trust, in pursuance of the by-law referred to, is an act made a misdemeanor by that statute, arid a contract to pay a commission exacted under such circumstances is void because made in violation of law.
4. -Illegal Consideration — Case Disapproved. A note and mortgage given for a consideration, a part of which is unlawful because based .upon a transaction made criminal by the statute, are wholly void. The language of the second paragraph of the syllabus in Rathbone v. Boyd, 30 Kan. 485, 2 Pac. 664, and of the corresponding portion of the opinion, is disapproved.
5. - Consideration iñ Part Unlawful. Where two notes secured by a mortgage are given for a consideration in part unlawful, although the unlawful portion of the consideration is less than either of the notes, both of the notes and the mortgage are wholly void.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
J. D. Duncan sued A. F. Huse on a promissory note. The note was signed “A. F. Huse Coal Company, per Alex. Wilson.” The defendant denied that he had ever executed the note, or that Alex. Wilson had any authority to execute a note for him or for the A. F. Huse Coal Company. The court sustained a demurrer to the plaintiff’s evidence, and rendered a judgment for the defendant.
This presents the question whether the evidence introduced by the plaintiff, construing it in the most favorable light for him, raised a question of fact for the consideration of the jury. The material part of the evidence introduced by the plaintiff is as follows,' the testimony of the first witness being that of A. F. Huse:
“Ques. What business were you engaged in at Arkansas City during the time you were there and for several years prior to going to Manhattan, Kan. ? Ans. In the coal business, and in the implement business; and was in the hardware business a .short time.
“Q. Now, did you sell your business when _ you left Arkansas City to go to Manhattan? A. No, sir; I had the coal business there.
“Q. You left the coal business? A. Yes.
“Q. When was that? A. It was in April, 1901.”
“Q. Well, now, whom did you leave ip possession of your coal-yard down there? A. I left Alex. Wilson..
“Q. You left Alex. Wilson? A. Yes, sir.
“Q. Now, when you left there you left him in possession of everything there, did you? A. I left him there to run the business for me.”
“Q. He conducted everything connected with the coal-yard and fully represented you? A. Yes, under my instructions.
“Q. When did you sell this coal-yard out? A. Sold it out in ’93 I think—
“Q. In 1903? A. 1903; I mean 1903.
“Q. About what time? A. I think it was September.
“Q. September, 1903? A. I think it was the latter part of September.
“Q. You think it was the latter part of September? A. I think that is when it was.
“Q. Now, from the time you left, in 1901, until 1903, Mr. Wilson had control of all the business there — of the coal business? A. He had charge of the business there for me; yes, sir.”
J. D. Duncan testified:
“Ques. Now, during the time that Mr. Wilson was there as one of his clerks was he a minor or subordinate clerk, or chief clerk? Ans. Why, he seemed to be chief clerk; he done the business.
“Q. Now, at the times that Mr. Wilson was in charge there, and Mr. Huse was still there also in that business, did Mr. Huse ever borrow any money from you? A. Yes, sir.
“Q. Through whom did he borrow it? A. Alex. Wilson.
“Q. Who paid it afterward? A. Huse.
“Q. Huse paid it himself? A. Yes, sir.
“Q. Now, coming down to the time that Mr. Huse left, as he says — you heard his testimony, did you? A. Yes, sir.
“Q. Now, he states that Mr. Alex. Wilson had charge of his'business there? A. Yes, sir.
“Q. Was. you around there as a rule? A. I was there sometimes; not very often.
“Q. Did you have a conversation with him about the business? A. Alex. Wilson?
“Q. Yes. A. Yes, sir.
“Q. It was while he was in possession there of the business as Mr. Huse has stated he placed him there? A. Yes, sir.
“Q. Now, on or about the 6th of July, did you have any conversation with him about borrowing money? A. Yes, sir.
“Q. Did he borrow any money from you for this company? A. Yes; after coaxing hard.
“Q. You may look at that note. A. That is the note he gave me.
“Q. Now, what did he say to you, at .the time he gave you this note, about what he wanted the money for — if connected with this business, I mean? A. He said the bank refused to let him have any more money and he had to borrow it to save Huse — to buy coal with.”
Albert H. Denton testified that he was the cashier of the Farmers’ State Bank of Arkansas City; that he knew A. F. Huse and John D. Duncan, and Alex. Wilson during his lifetime; that Huse conducted the coal business in person until 1901; that when he left he left Alex. Wilson in charge; that the business was conducted in the name of the A. F. Huse Coal Company thereafter; that they did business at his bank a part of the time; that they drew checks signed by the A. F. Huse Coal Company, by Alex. Wilson; that the coal company had borrowed money at his bank; that the note was signed “A. F. Huse Coal Company, by Alex. Wilson”; and that bésides the note given to his bank signed in this manner, and afterward paid, he had seen seven other notes signed in the same way.
George S. Hartley testified that he was in the banking business in the Citizens’ State Bank; that during the time that Mr. Wilson was in control and management of the business he transacted business at 'his bank; that he borrowed money there for the A. F. Huse Coal Company; that at the time he borrowed the money he gave notes to the amount of $1500 as evidence of the debt; that the notes were signed “A. F. Huse Coal Company, by Alex. Wilson,” were renewed by Alex. Wilson, and afterward paid by Huse.
This court has no hesitancy in saying that under the evidence the case should have been submitted to the jury. The judgment is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Ruth Reneer obtained a judgment against Rosina Zibold and Emma Haegelin upon a petition which stated, substantially, that she was the wife of William D. Reneer; that the defendants were partners engaged in the manufacture and sale of intoxicating liquors, especially of beer, near the southwest part' of the limits of the city of Atchison; that on Sunday, June 3, 1900, the defendants and their authorized agents, Carl Sheele and Kelly Haegelin, at the brewery of the defendants, unlawfully sold, furnished and gave to plaintiff’s husband, and J. Burchart and C. T. Oath-out, quantities of beer, which they drank, whereby they became intoxicated and were made> boisterous, •quarrelsome, and wholly indifferent and oblivious to conditions surrounding them; that while in this condition William D. Reneer shot and instantly killed Burchart and Oathout; that in consequence thereof he was informed against, tried, and convicted of murder in the first degree, and was on the 15th day of December, 1900, sentenced to death, and committed to the penitentiary, there to be confined and kept at hard labor until his execution upon a warrant of the governor of the state; that he still remained so confined, and would ever continue so to be until he should, be executed. A statement followed concerning the earning capacity of William D. Reneer, and his age, and the plaintiff’s dependence upon his labor and personal earnings for her means of support, of which she was deprived as a result of the intoxication of her husband produced by the use of the beer so furnished by the defendants to him.
A demurrer was interposed to this petition, which was overruled. A trial was had, and a verdict and j.udgment rendered for' the plaintiff in the sum of $5000. This proceeding is prosecuted to reverse the judgment.
Several assignments of error are argued at length in the briefs. The two vital questions, however, are presented by the demurrer to the petition. It is conténded, first, that the petition shows upon its face that the sale of the intoxicating liquors by the defendants to the plaintiff’s husband was not the direct and proximate cause of her loss; second, that the petition states that Reneer was convicted of murder in the first degree for the killing of Burchart and Oathout, which is conclusive that he was not intoxicated when he committed the homicide, and, therefore, the act of the defendants in furnishing the intoxicating liquors was not the proximate cause of plaintiff’s loss of means of support.
There is no principle better settled at common law than that recoverable damages must be the proximate result of the wrongful act complained of, or that the wrongful act complained of must be the immediate and proximate cause of fhe injury for which a recovery is sought. Assuming that if the plaintiff be confined to this common-law rule she cannot shcceed in her action, the demurrer to the petition should have been sustained, because the sale of the intoxicating liquors to Reneer and his intoxication from the use thereof were not the immediate and direct cause of the plaintiff’s loss. The murder, arrest, trial, conviction, and sentence, resulting in the confinement of her husband in the penitentiary, constitute an independent, intervening cause, which was the proximate cause of. her loss of support. Under the common-law rule the furnishing of the intoxicating liquor was only the cause of the cause. The statute under which plaintiff seeks to recover reads:
“Every wife, . . . who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise,.... shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried.” (Gen. Stat. 1901, § 2465.)
Similar statutory provisions are found in several of the states, but the decisions of the courts construing them are not in harmony on the proposition contended for by plaintiffs in error. By an act approved February 27, 1873, regulating the sale of intoxicating liquors in Indiana, it was provided:
“In addition to the remedy and right of action provided for in section 8 of this act, every husband, wife, . . . or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, . . . shall have a right of action . . . against any person or persons who shall, by selling, bartering, or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person.” (Laws of Ind., 1873, ch. 59, § 12.)
In the case of Krach et al. v. Heilman, 53 Ind. 517, Krach sold and furnished intoxicating liquors to Heilman, of which the latter drank until he became so intoxicated that he was compelled to lie down in the bottom of his wagon while returning home. A barrel of salt in the wagon fell upon him, causing his death. His widow brought an action to recover damages for her loss of means of support, and the court held that she could not recover because the selling of the intoxicating liquors .to Heilman was not the immediate and proximate cause of the plaintiff’s loss. It was said in the opinion that “the rule of law is that the immediate, and not the remote, cause of an event is regarded.” (Page 523.) The court’s attention does not appear to have been turned to the statute under which the right of action was given, nor does there appear to have been any attempt to discover its meaning. No reference was made to the provision of the statute which gave the cause of action, nor any attempt made to construe it, or give its language any meaning, except to determine that it created a new cause of action. The doctrine of this case was followed in Collier v. Early, 54 Ind. 559, and in Backes v. Dant, 55 Ind. 181, without comment and without any reference to the statute or to its application to such actions. Subsequently, in the case of Dunlap v. Wagner, 85 Ind. 529, 44 Am. Rep. 42, the court criticized Krach et al. v. Heilman, supra, and the cases following it, in this language:
“It is difficult, if not impossible, to reconcile the doctrine of the case under immediate mention with the earlier cases of Fountain v. Draper, 49 Ind. 441, English v. Beard, 51 Ind. 489, and Barnaby v. Wood, 50 Ind. 405, or the later one of Schlosser v. State, ex rel., 55 Ind. 82. Nor has the doctrine anywhere found favor; on the contrary, it has been disapproved.” (Page 533.)
In the later case of Homire v. Halfman, 156 Ind. 470, 60 N. E. 154, the defendant sold intoxicating liquor, to plaintiff’s husband, by the use of which he became intoxicated, and while intoxicated shot and killed Seth Nease, for which he was convicted of murder and confined in the penitentiary. The action was to recover damages for loss of support, under a statute somewhat different in form but in substance and effect identical with the one before the court in Krach et al. v. Heilman, supra. A recovery was had, and the court quoted and relied upon the rule of construction adopted in Beers v. Walhizer, 50 N. Y. Supr. Ct. 254. From an examination of these cases it will be seen that the common-law rule of recovery announced in Krach et al. v. Heilman. is not now the law in Indiana. The Indiana statute is. worded like our own, except that ours uses the words “in consequence of such intoxication” where the Indiana statute -uses the words “on account of the use of such intoxicating liquors, so sold.”
Our attention is also called to the cases of Shugart v. Egan, 83 Ill. 56, 25 Am. Rep. 359, Schmidt et al. v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446, and Schulte v. Schleeper, 210 Ill. 357, 71 N. E. 325, wherein that court, in construing a statute substantially like our own, held that the furnishing of the intoxicating liquor must be the proximate cause of the injury or loss for which a recovery is sought, or, in other words, that the common-law rule was not changed by the statute.
It is probable that there are other states which have adopted the Illinois rule of construction, and while such precedents are of great weight the reasoning is neither convincing nor satisfactory. The legislature created a right of action unknown to the common law; in creating this new right it could, and did, extend the rule to include consequential and remote damages.
The excessive use of intoxicating liquors as a beverage is an unmixed evil. The only purpose accomplished by it is to breed and propagate vice. The legislative shafts have been leveled at this practice in nearly, if not every, state and in almost every conceivable manner which looked toward its regulation, control, or entire suppression. It is quite in accord with this policy that Kansas passed the statute invoked by the defendant in error. It was known to the legislature, as it is to all other persons, that the use of intoxicating liquors as a beverage makes drunkards; that an intoxicated person is incapable of caring for himself, is always in danger of being injured, and is likely to inflict injury upon others, at the cost of his liberty — possibly his life; that he habitually neglects his business and family; that the harm resulting from the excessive use of intoxicating liquors always falls most pitilessly upon the dependents of the user, not infrequently pauperizing himself and family. The1 idea naturally suggested itself to the legislature that if the sellers of intoxicants were made liable to those who should sustain injury to person or property or means of support by an intoxicated person, or in consequence of intoxication, the hazard would be so great that fewer persons would engage in the business, and those who should engage in it would exercise more caution. The legislature, therefore, gave a cause of action and created a liability for these injuries where none existed at common law.
It is apparent that it was the intention of the legislature to make this remedy effective and of practical utility, and that its enforcement should not be hampered by technical common-law rules. It was intended to provide a remedy against the persons furnishing the liquor which should produce the intoxication, where the injuries sustained in person, property or means of support should result, in whole or in part, from such intoxication. Any other construction would, in a large measure, defeat the object of the statute. Persons who are openly engaged in a business prohibited by law, the results of which are to enrich themselves and make paupers and criminals of others, have no complaint against a liberal construction of a statute intended to make them responsible in civil damages to those who have been injured as a result of the illegal traffic in which they are engaged.
This court does not stand alone in this construction of the statute. There are many cases which hold that these statutes creating a new cause of action by their terms clearly eliminate the commón-law rule of proximate cause, and that the plaintiff may recover where the loss sustained is the result of intoxication induced, in whole or in part, by liquors furnished by the defendant. Among these, the leading case is Beers v. Walhizer, 50 N. Y. Supr. Ct. 254. The statute under consideration was substantially like ours. The facts upon-which the plaintiff relied were that the defendant sold her husband intoxicating liquors, the use of which caused him to become intoxicated; and while intoxicated, and in consequence thereof, he shot and killed one Banfield, for which he was arrested, convicted, and sentenced to a term of years in the penitentiary.. The contention there, as here, was that the selling of the intoxicating liquor was not the proximate cause of the loss sustained by the plaintiff. It was said in the opinion:
“Under the act it is necessary that two facts should concur besides the sale or gift of the liquor by the defendant to constitute a cause of action,-to wit, intoxication resulting from its use, in whole or in part, and the loss of the means of support by the plaintiff in consequence of such intoxication. The statute requires nothing more. The act itself establishes a rule of evidence applicable to and controlling in all cases arising under its provisions, which in some respects is new, and has produced a radical change of the common-law rule. The statute makes no distinction whether the loss of the means of support is the direct or remote result of the intoxication. It only requires that it should be established that the loss of the means of support is the result of such intoxication.” (Page 256.)
This doctrine was approved and followed in Homire v. Halfman, 156 Ind. 470, 60 N. E. 154. In the case of Bertholf v. O’Reilly, 74 N. Y. 509, 30 Am. Rep, 323, the court said:
“The legislature . . . may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it. This is what the legislature has done in the act of 1873.” (Page 524.)
In the case of Volans v. Owen et al., 74 N. Y. 526, 529, 30 Am. Rep. 337, it was remarked:
“Both direct and consequential injuries are plainly included in the remedy given, and the legislature, by giving a right of action for injury to ‘means of support’ —a cause of action unknown to the common law — evidently intended to create a new ground and right of action.”
In Mead v. Stratton et al., 87 N. Y. 493, 41 Am. Rep. 386, it was held that the statute provided for a recovery by action for injuries to person or property or means of support, without any restriction whatever, and that both direct and consequential injuries were included. It is evident that the legislature intended to go, in such a case, far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who was instrumental in producing, or who caused, such intoxication. The same interpretation was placed upon the statute in Neu v. McKechnie et al., 95 N. Y. 632, 47 Am. Rep. 89.
The contention that the allegation in the petition that Reneer was convicted of murder in the first degree is conclusive that he was not intoxicated when he committed the homicide cannot be sustained. The reasoning upon this proposition is that one cannot be convicted of murder in the first degree who is intoxicated at the time of the commission of the homicide. Intoxication is not of itself a defense to a charge of murder in the first degree. It does not follow that becanse a man is intoxicated his mind is necessarily so enfeebled thereby that he is incapable of deliberating or forming a purpose. One may be intoxicated and entertain, and act from, malice; he may be intoxicated and entertain a determination to commit murder; indeed, the intoxication may suggest the murderous thought. For a person to be too drunk to entertain an intent to kill it would seem that he would have to be too drunk to entertain an intent to shoot. (The State v. White, 14 Kan. 538; The State v. Mowry, 37 Kan. 369, 15 Pac. 282; The State v. O’Neil, 51 Kan. 651, 33 Pac. 287, 24 L. R. A. 555.)
The other assignments of error have been examined, and nothing prejudicial to the plaintiffs in error is found. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The errors assigned in this proceeding relate to matters passed upon by the trial court when the motion for a new trial was under consideration. The conclusion of the trial court respecting them reached at that time is not assailed, and hence, under the well-established rule, this court will not now examine them.
The motion for leave to amend the petition in error is denied, because the time within which errors in the case might have been presented to this court has expired. (Crawford v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 474, 25 Pac. 865; Cogshall v. Spurry, 47 Kan. 448, 28 Pac. 154.)
If the petition in error contained a defective, informal or incomplete assignment relating to the conduct of the trial court in denying the motion for a new trial the charge might be made definite, formal, and complete, but there is a total absence of anything by which to amend. Therefore the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The distinctive ingredient of the crime of incest is the relationship of the parties, while the distinctive ingredient of the crime of statutory rape is the youthfulness of the female. The evidence necessary to convict of incest would not be sufficient to convict of statutory rape, as there need be no evidence as to the age of the female. On the other hand, evidence that would convict of statutory rape would not suffice to convict of incest, as the relationship is wanting. Hence the crimes, although committed by the same act, are different crimes; and a prosecution for one is no bar to a prosecution for the other. (The State v. Patterson, 66 Kan. 447, 71 Pac. 860.)
The plea in bar as to the first five counts of the information and the motion to quash the last three counts were based in part upon the dismissal of, and the abatement of the action as to, Bertha M. Austin, which was done for the purpose of using her as a witness against her codefendant, Learned. This ground is untenable. The two participes criminis were jointly charged, and one could be tried and convicted without the other. This is held to be the law, even in states where the concurrent consent of both parties is essential to constitute the crime. (16 A. & E. Encycl. of L. 135.) The case of The State v. Hook, 4 Kan. App. 451, 46 Pac. 44, which holds to the contrary, is disapproved.
Again, it is urged that the plea in bar, as to the first three counts of the information at least, should have been sustained, as the answer to the plea admitted that the girl was under eighteen years of age at the times each of these offenses were alleged to have been committed; that by our statute an essential ingredient of the offense is the joint criminality, and that it can be committed only by the concurrent consent of the man and the woman; and that by the laws of this state a female under eighteen years of age is incapable of consenting to sexual intercourse. The supreme courts of several states have held that the assent of both to the act is essential, while in several other states it has been held that the consent of both is not essential. (16 A. & E. Encycl. of L. 135.) In all of the states which hold that the assent of both is not essential the statutes are very different from ours. No statute of any state has been found by the writer which seems more strongly to imply that the joint consent is requisite than our own. Our statute denounces the penalty against both equally. The statutes of some of the states do not.
The inquiry then arises, Can a girl under the age of eighteen years consent to an act of sexual intercourse with one within the degrees of relationship within which marriage is incestuous and void, and thus become guilty of incest? If not, why not? There is no statutory provision or common-law rule to the contrary. Section 2016 of the General Statutes of 1901, commonly called the age-of-consent law, simply provides that “every person who shall be convicted of rape, either by carnally and unlawfully knowing any female^ under the age of eighteen years, or,” etc. This does not disqualify the female under eighteen years from consenting, but provides, in effect, that her consent is no defense; that notwithstanding her consent the act, on the part of the man, constitutes the crime of rape. (The State v. Woods, 49 Kan. 237, 30 Pac. 520; The State v. White, 44 Kan. 514, 520, 25 Pac. 33.) We answer the question in the affirmative. A female under the age of eighteen years may be guilty of the crime of incest.
The only question remaining is whether the motion to quash counts 4, 5 and 6 should have been allowed on the ground that the counts do not state the offense “with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case.” (Gen. Stat. 1901, § 5551.) We answer this question in the negative. Section 2219 of the General Statutes of 1901 reads: “Persons within the degrees of consanguinity within which marriages are by law declared to be incestuous and void, . . . who shall commit adultery or fornication with each other, . . . shall upon conviction be punished,” etc. These counts of the information, in addition to the time and venue of the alleged offense and the relationship of the parties, charged “that . . . one William Learned, being then and there a married man, and one Bertha M. Austin, being then and there an unmarried female, did then and there unlawfully, feloniously and incestuously have sexual intercourse with each' other.” It is said that the information must charge that they committed adultery, or fornication, with each other. It has been so frequently decided by this court that it is not requisite that the exact language of the statute be used, but that other language of like import may be employed, that the citation of the cases is unnecessary. The language used is the exact equivalent of the statutory words, and each of these counts contains “a statement of the facts constituting the off ensé, in plain and concise language, without repetition.” (Gen. Stat. 1901, § 5545.)
“If a married man have criminal intercourse with his own daughter, she being a single woman, he is guilty of incestuous adultery, and she of incestuous fornication.” (Cook v. The State of Georgia, 11 Ga. 53, 56 Am. Dec. 410, syllabus.)
The order of the district court sustaining the plea in bar as to counts 1, 2, and 3, the judgment thereon, and the order granting the motion to quash as to counts 4, 5, and 6, with the order of dismissal of the action, are vacated, and the case is remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
F. E. Crane sold to the Renville State Bank, of Renville, Minn., a number of notes, including two executed by John Ourada, for $125 and $75, respectively, . giving a written guaranty of their payment. The notes against Ourada proved uncollectable and the bank sued Crane upon his guaranty, recovering a judgment, from which he prosecutes error. The court found that upon the failure of Ourada to pay the notes at maturity the bank wrote Crane stating that fact and asking instructions, and that Crane answered directing that they be placed in judgment.
Complaint is made that these findings are not supported by any evidence. There was testimony- that the bank wrote and mailed to Crane a letter of the substance indicated. Crane testified that he had no recollection of receiving it. Nearly two months after .its date he wrote to the bank saying:' “Put that note into judgment. I have been away from home and that is the reason you have not heard from me.” The whole question, so far as this assignment of error is concerned, is whether the court was justified in regarding Crane’s letter as an answer to that of the bank. The circumstance’that it used the phrase “that note” instead. of “those notes” is of but little force, and certainly is not conclusive against the theory that the subject-matter of the communication was the Ourada indebtedness. We think the view of the court has abundant support. -
The substantial defense interposed by Crane is based upon the contention that in virtue of a conversation between himself and a representative of the bank he was relieved of all liability and the bank elected to look exclusively to Ourada for the collection of the notes. This conversation took place upon the- occasion of the bank’s paying some $800 to Crane in another matter, and was, in full, as follows:
Crane: “Tim, how about the last bunch of paper I sold you; have you looked it up ?”
Banker: “Yes, I have; it is first class; it is all first class except that fellow over here, Ourada. He has 640 acres of land, but he is trying to .get behind his wife on that proposition; but he can’t do that with me. . . .”
Crane: “Now, on that other contract of ours, Tim, I will take that paper up and pay you the money, if you want it, because I am here, and it will cost me only two or three days’ time to go over there and get the matter fixed up while I am here, and I don’t want to be annoyed with it after I am gone.”
Banker: “No, I would rather have the note than have the money.”
Crane: “Well, we have the money right here now on the table; take out the amount if you would rather have the money than the notes, because I don’t want to be annoyed with it after I get away from here.”
Banker: “No; I will make him pay it; . . . [Ourada] can’t get behind that paper, because I will follow him to the end of the earth. I would rather have the note than have the money. ... I will make him pay it; he can’t get behind his wife, with 640 acres of land; I would rather have the note than the money.”
It is claimed that this transaction amounted to a perfect tender of payment by the guarantor, and its refusal by the creditor, and that therefore Crane stood from that moment discharged of all liability. An argument is made against this contention based upon the fact that at this time only one of the notes was due. It is argued that’no tender could be made upon the note which had not matured, although it drew interest only after maturity, and that an effective tender as to the past-due note could only be made by a separate offer to pay that one alone. Without attempting to pass upon the force of this suggestion, we shall assume that, irrespective of the maturity of the paper, Crane was privileged to take it up at any time.
The question to be determined, then, is whether the conversation already detailed amounted to a tender. We do not think it necessarily had that effect. It certainly came very near doing so, but fell just short of accomplishment. The gap was not wide, but it was sufficient to defeat that result. “A tender is an offer by a debtor, or other person who is under an obligation, to pay such debt or perform such obligation, the actual payment or performance being prevented by the refusal of the creditor or person entitled to performance to accept the same.” (28 A. & E. Encycl. of L. 4.) Here there was no definite offer to pay on the one hand and refusal to accept on the other. The obligor indicated his readiness to pay if the obligee desired it — not otherwise. The obligee did not really refuse to accept payment. He merely indicated that he was indifferent. For some reason sufficient to himself he even appeared to prefer the note to the money, but he did not say that he preferred the note without Crane’s guaranty back of it to the money, and he did not actually refuse to accept payment then qnd there. At this stage of the proceedings the only controversy between the parties appears to have been which could show the other the greater courtesy in the matter, each seeming to defer to the other’s wishes. The offer made by Crane did not purport to be for his own protection, although that feature of the matter was incidentally alluded to. It professed to be for the accommodation of the bank, and its acceptance was in express terms left to the bank’s optiqn. There was no such explicit demand that the bank should either accept the money or definitely release Crane from further obligation as the banker had a right to expect if that was what was in the mind of the guarantor. The case is in some respects similar to Clark v. Sickler, 64 N. Y. 231, 21 Am. Rep. 606. The first paragraph of the syllabus in that case reads:
“An offer upon the part of a principal debtor to pay, and an omission so to do because of a request of the creditor that he retain the money, and the subsequent insolvency of the principal, do not discharge a surety.”
In the opinion it was said:
“It is quite evident that the creditor had no idea of discharging the surety. ■ He did not prevent the payment of the note. He did not refuse to receive the money. He only expressed a desire that it should not be paid.” (Page 235.)
Where a principal offers to pay a debt and payment is not made by reason of the conduct of the creditor there is good ground for holding that the surety should be deemed discharged, upon the theory that the nonpayment results from a failure of the creditor to use due diligence to make collection from the principal and thereby protect the surety. But where, as in the pres ent case, the offer to pay is made by the surety, there is no room for the application of'this doctrine. It is true that a surety may be released by the refusal to accept payment from him when he makes a good tender, but this is for an entirely different reason, namely, because such refusal interposes an insurmountable obstacle in the way of his pursuit of his remedy against his principal. (Hayes v. Josephi, 26 Cal. 535; O’Conor v. Braly, 112 Cal. 31, 44 Pac. 305, 53 Am. St. Rep. 155.) In the one case the release of the surety may be accomplished by the creditor’s mere neglect to take advantage of a chance to take the money when he can get it, but in the other it can result only from his positive refusal to accept it when the surety makes tender and demands such' acceptance as a right. Here the bank missed no opportunity for getting the money from Ourada, and it placed no insurmountable obstacle in the way of Crane’s attempting to force the collection himself.
The court was warranted in holding Crane liable for the expenses of the proceedings against Ourada, as well as for the amount of the debt, by the consideration that they were taken by his direction. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff’s cause of action was based on a promissory note, signed by eleven persons, which contained a statement that “this note is subject to a contract.” The contract referred to was a guaranty of a stallion, for the purchase-price of which the note was given. The guaranty was pleaded, and full performance alleged. Wallace W. Wicks, one of the signers of the note, pleaded a written agreement between himself and the payee of the note, dated two days after the note, by which the payee agreed that if Wicks desired at any time to be released from the note, and should so notify the payee within eleven months therefrom, that the latter would release the former; that he had expressed such desire within the time, and was entitled to a discharge. This agreement was admitted by the plaintiff, and the action dismissed as to Wicks.
The answer of the other defendants was construed to contain two defenses: First, that the note had been altered after its delivery; and second, that the sale of the horse and the signatures of the defendants to the note had been obtained by the owner of the horse and payee of the note by falsely and fraudulently stating to them that Wallace W. Wicks would become a joint purchaser of the stallion, and would be one of eleven persons to sign a note for the purchase-price thereof, that all of .such representations and statements were false, and that they had relied upon them, by' reason whereof' they were induced to sign the note. Plaintiff’s reply denied these statements.
In plaintiff’s opening statement he admitted having made the written agreement with Wicks, but denied that it was made prior to its date, which was two days after the date of the note. The cause was submitted to the court upon plaintiff’s petition and his oral opening statement. Upon these the -court rendered judgment for the defendants.
All facts pleaded as defenses were denied, and there was no evidence offered to sustain any of them. The only fact admitted by the plaintiff was that he had entered into the written agreement to release Wicks, and it must have been concluded by the court that the voluntary release of one maker of a promissory note by the payee will, in law, operate as a release of all makers. The written agreement of release. states that it was for a consideration, and if it did not the law would imply a consideration therefor. The plaintiff was only asking judgment against the defendants for the amount due on the note, after deducting the proportion Wicks would have been required to pay. Section 1194 of the General Statutes of 1901 reads:
“Any person jointly or severally liable with others for the payment of any debt or demand may be released from such liability by the creditor, and such release shall not discharge the other debtors or obligors beyond the proper proportion of the debt or demand for which the person released was liable.”
Under this statute one joint maker of a promissory note may purchase his release, at any time, for any consideration that the payee is willing to accept, or the payee may voluntarily acquit him of liability without consideration. In either event the remaining makers would not thereby be also released. They could not be held for the proportion owing by the maker thus released. The court could not have found the facts in favor of the defendants without evidence, and they were not entitled to a judgment because the payee of the note had released one of the makers.
The judgment is reversed, and the cause remanded.
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The opinion of the court was delivered by
Smith, J.:
The first error complained of is the overruling of the demurrer filed by the insurance company to the amended petition. As the principal ground therefor the company claims that the representations alleged to have been falsely made by the insurance company’s agent were so palpably unreasonable that they were not likely to deceive, and hence the allegation that the plaintiff did rely upon the same is not admitted by the demurrer. The general rule is that a demurrer to a pleading admits, for the purposes of the hearing thereof, the truth of the facts alleged in the pleading; and while there may possibly be exceptions to this rule courts will not carefully weigh the degree of credence which a particular person may have given to what appears to be an unreasonable story told to him for the purpose of defrauding him. It comes with poor grace for one defending against an alleged fraudulent representation to say that the representations were so palpably false and unreasonable as to be absolutely incredible. At most, it is rather a question of fact for the jury than a question of law for the court.
The other objections to the petition, except the fifth, are somewhat in the same line. The fifth objection is .that the plaintiff did not allege that the policy he received was worth less than he actually paid for it, and consequently that he was not damaged and is not entitled to relief. This is not an action to recover damages, but a suit to avoid a contract for fraud, and to recover the money procured through the fraud. We think the petition stated a cause of action, and that the demurrer thereto was properly overruled.
We have examined the specifications of error assigned on the introduction of evidence. As to the witness Johnson, the only evidence to which our attention is called that we think worthy of comment is the an swer, “No, sir,” to the question: “State whether you ever received from defendant company the kind of a policy that was represented would be sent to you by this man Marks.” This was a conclusion of fact which should not have been drawn by the witness, but the conclusion to be drawn should have been left to the jury. The representations said to have been made by Marks, however, were detailed to the jury, and a copy of the policy was produced in evidence, and we cannot say that the defendant was prejudiced by the answer. In fact, the jury were practically left to draw their own conclusions, as the witness does not seem to have detailed in what respect he considered the policy was of a different kind than that promised.
The plaintiff in error further complains of the testimony of Barnes, Huddleston, Henderson, and Younkin. We have been unable to discover anything in the evidence of Barnes that was really material to the case, or that could have aided the plaintiff or injured the defendant, except a letter from the insurance department to Johnson, which was identified by Barnes and ad-' mitted in evidence over the objection of the defendant; but the court struck this out, and instructed the jury to disregard it. Otherwise it would have been material error.
We digress here to remark that the practice permitted in this trial of allowing an attorney, after the court had sustained objections to certain questions, to make oral offers, in the presence of the jury, of what he expected to prove by the witness, and to assert that he had plenty of evidence to sustain the offer, is not a good one. The court, however, remedied the evil, so far as possible, by telling the jury to disregard the offer. The better practice is to require offers of proof to be made in writing. Many jurymen are not able, at the end of a long trial, to discriminate between the matters heard on the trial which are submitted to them as evidence and those matters which are not so sub mitted. The production of evidence should therefore be made as simple as possible, and counsel should not be allowed, during the introduction of evidence, to make assertions with reference to the strength of their evidence or the weakness of their opponent’s. We cannot say, however, that after the corrections made by the court the defendant was materially prejudiced in this respect.
As to the evidence of the witnesses Huddleston, Younkin, and Henderson, we think it was admissible for the purpose of showing the design and plan of the agent, Marks, in procuring the insurance application from Johnson, under the rule of evidence laid down in section 304 of volume 1 of Wigmore on Evidence; but of course such evidence should not have been considered in determining what representations the agent made to Johnson. If, however, the evidence was admissible for any purpose it should not have been excluded, and if the insurance company desired to have its application limited it should have requested an instruction defining the purposes for which the evidence could be considered and for which it should not be considered.
We think there was sufficient competent' evidence not only to justify but to require the overruling of the demurrer to the plaintiff’s evidence. It must be borne in mind that this was not an attempt on the part of the plaintiff to vary or contradict the terms of the written contract, but was a suit to annul and set aside a written contract and to recover the money paid théreon, on the ground that the contract was procured through fraud. The real issue in this case is whether or not the agent, for the purpose of inducing Johnson to take the insurance, made material misrepresentations as to the cost or conditions of the policy, or as to the payments therefor, or the benefits to be derived therefrom, and whether Johnson did rely thereon and was deceived and induced thereby to take such insur anee and make the payment thereon. If this question is answered in the affirmative, and it appears that the company accepted the benefits of the fraud practiced by its agent, the contract should be set aside and the plaintiff should recover.
We have examined the instructions complained of, and think the questions in issue were fairly presented to the jury and that the jury were not misled. The issues were practically all issues of fact. There seems to have been a fair trial, and the verdict of the jury is supported by sufficient evidence. ■ The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Graves, J.:
The plaintiffs were real-estate agents at Grenola, Kan. , The defendant was the owner of land in that vicinity which he desired to sell. He employed plaintiffs to procure a purchaser, and agreed to pay them the sum of $300 therefor. The agents claim that they found a purchaser, but the owner refused to pay the commission. An action was brought by them in the district court of Elk county to recover the amount due for their services. A general demurrer was sustained to the first cause of action stated in the petition. Thereafter an amended petition was filed. A general demurrer was filed to the first cause of action in the amended petition, and sustained. Plaintiffs declining to plead further, judgment was entered against them for costs as to the first cause of action, and they bring the case here, assigning that ruling as error. Judgment was rendered in favor of plaintiffs on the remaining cause of action, upon confession of defendant.
The cause of action demurred to, aside from the preliminary averments, was stated in the-amended petition as follows:
“Second: That, on or about the-day of July, A. D. 1902, said defendant employed plaintiffs to procure a purchaser for certain tracts of land owned by him and situate in the counties of Elk and Cowley, in the state of Kansas, for the sum of seven thousand three hundred dollars, and said defendant then and there promised and agreed to pay to the said plaintiffs the sum of three hundred dollars for procuring a purchaser at the sum aforesaid, said sum to be paid upon such terms and in such manner as could be mutually agreed upon between the purchaser so procured by plaintiffs and the said defendant.
“Third: That in pursuance of said agreement, verbally had between plaintiffs and defendant, said plaintiffs procured a purchaser for defendant’s land and took such purchaser to said defendant, and such purchaser, so as aforesaid procured by plaintiffs for de fendant’s said land, and the said defendant then and there agreed upon the sale of said land for the aforesaid sum of seventy-three hundred dollars, and agreed upon the times and terms of payment thereof, and that said purchaser was ready, able and willing to pay said price for said land; said agreement of sale between the purchaser, so as aforesaid procured; and said defendant, as to the price of said land and the terms of payment for same, being verbal.”
These allegations stand alone; they are not in the least affected by any statements in either the original petition or the second cause of action in the amended petition. There was no motion to make the allegations of the pleading more definite and certain; therefore, they must be construed liberally in favor of the pleader. The petition shows that these real-estate agents were employed to procure a purchaser for the land at a price stated by the owner and upon terms to be thereafter mutually agreed upon; that such purchaser and the owner fully agreed to the price and all the terms of a sale; and that the purchaser was ready, able and willing to carry out his agreement. The contract alleged required nothing further. The averments of this cause of action, when liberally construed, are equivalent to a full and specific statement of a contract of employment, the complete performance thereof, and a refusal to pay therefor. We think they state a cause of action.
This case, as pleaded, does not fall within the category of cases wherein agents are employed to effectuate a sale, and therefore decisions in such cases are not necessarily important here. For this reason some of the cases cited by counsel are inapplicable. The case of Stewart v. Fowler, 37 Kan. 677, 15 Pac. 918, cited by the defendant in error, has been distinguished, limited and modified by several subsequent decisions of this court. (Betz v. Land Co., 46 Kan. 45, 26 Pac. 456; Neiderlander v. Starr, 50 Kan. 770, 33 Pac. 592; Stewart v. Fowler, 53 Kan. 537, 36 Pac. 1002.) Later cases fully recognize the difference here drawn- between an employment to sell and one merely to find a purchaser. (Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444; Sullivant v. Jahren, 71 Kan. 127, 79 Pac. 1071; Helling v. Darby, 71 Kan. 107, 79 Pac. 1074; see, also, Knapp v. Wallace, 41 N. Y. 477; Kalley et al. v. Baker, 132 N. Y. 1, 29 N. E. 1091, 28 Am. St. Rep. 542.)
In view of this conclusion the question whether an oral contract for the sale of real estate can be enforced or not need not be considered. Such a contract is sufficient for the employment of a real-estate agent, and that is the only contract involved in this controversy.
The judgment of the district court is reversed, with directions to overrule the demurrer and proceed in accordance with the views herein expressed.
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