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PlERRON, J:
Jackie P. Minnis, Jr., has filed an original action seeking a writ of habeas corpus. He seeks to prevent a second trial, following a mistrial on one count of possession of cocaine. He alleges a second trial would violate his statutory and constitutional protections against double jeopardy. By order of this court, the second jury trial has been stayed pending determination of the petition.
A writ of habeas corpus is appropriate for relief from double jeopardy. See In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 781 P.2d 731 (1989); In re Habeas Corpus Petition of Mason, 245 Kan. 111, 775 P.2d 179 (1989); In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979). The parties have filed supplemental pleadings and a copy of the trial transcript and pretrial motion transcript pursuant to Supreme Court Rule 9.01(b) (2000 Kan. Ct. R. Annot. 61). Pursuant to Supreme Court Rule 9.01(e) (2000 Kan. Ct. R. Annot. 62), this court finds the petition, responses, and record clearly indicate what the appropriate disposition should be and that no further hearings or briefing are necessary.
On February 5, 2001, Minnis went to trial on one count of possession of cocaine. During voir dire, counsel for Minnis made the following statement to the prospective jurors:
“The State is talking about Perry Mason, and somebody crying saying, I did it, I’m going to confess to it. Mr. Minnis, you may hear in this case, has a very low IQ and he may cry during the trial is the way he responds to things. Does any— referring to the box, anybody have a close relative or family member that has a lower IQ that you’ve had to deal with or work with in some way? No one. I see no response.”
Counsel then asked questions of individual jurors relating to their experience with people with lower IQ’s. For example, he asked a juror who is a teacher whether she would feel sorry for Minnis if she thought he had a veiy low IQ. When she said she might, he asked whether that would influence her determination of guilt, and she replied itwould not. Counsel asked another juror whether mental retardation was a factor that he might consider when evaluating the evidence in a case, and the juror answered he would consider such a factor. Counsel asked another juror whether the juror’s previous experience with a mentally deficient person would influence his interpretation of the evidence, and the juror said it would not. Counsel asked whether any members of the pool believed that mentally deficient people should be isolated from society. Counsel also asked whether jurors would assume that Minnis was “just faking it” if he started to cry during the trial. The State raised no objection to any of these statements and questions by defense counsel.
Following strikes, 12 jurors were sworn in The State subsequently objected to defense counsel’s questions relating to Minnis’ mental capacity. The State requested a mistrial, and Minnis objected. The trial court granted the motion for mistrial and excused the jury. On March 23, 2001, a hearing was conducted before a different judge on Minnis’ motion to dismiss due to double jeopardy. The motion was denied. Minnis thereupon filed his petition with this court. On April 6, 2001, a hearing was held on the State’s motion to bar any evidence relating to mental defect, which was granted.
The Fifth Amendment to the United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and K.S.A. 21-3108(1) prohibit placing a defendant in jeopardy twice for the same offense. When trial is by jury, jeopardy attaches when the jury has been impaneled and sworn. K.S.A. 21-3108(l)(c); Crist v. Bretz, 437 U.S. 28, 38, 57 L. Ed. 2d 24, 98 S. Ct. 2156 (1978). Whether a retrial is barred due to double jeopardy is a question of law subject to de novo review. Earnest v. Dorsey, 87 F.3d 1123, 1128 (10th Cir. 1996).
A retrial is constitutionally permissible if the judge exercised sound discretion in determining justice required a mistrial. State v. Johnson, 261 Kan. 496, 500, 932 P.2d 380 (1997). In assessing the judge’s exercise of discretion, an appellate court determines whether there was a “manifest necessity” for a mistrial or whether the ends of public justice would otherwise be defeated. 261 Kan. at 500. Deference to judicial discretion does not undermine the necessity of showing manifest necessity. Gilliam v. Foster, 63 F.3d 287, 290 (4th Cir. 1995). An appellate court must examine the record and determine whether a new trial was justified. U.S. v. Meza-Soria, 935 F.2d 166, 171 (9th Cir. 1991).
Although little case law exists examining manifest necessity for a mistrial in the context of voir dire, courts have considered the question in the context of opening statements. In State v. Gonzalez, 25 Kan. App. 2d 862, 973 P.2d 208 (1999), defense counsel made a comment about the prosecutor’s competence that provoked laughter from the juiy and led the trial court to grant a mistrial. Our court noted that curative instructions could have salvaged the trial and held the trial court had abused its discretion. 25 Kan. App. 2d at 868-69.
Opening statements by the State have often been held either harmless or curable through instruction. It has been held not unduly prejudicial for the prosecution to anticipate the defense’s testimony during opening statements. State v. Duncan, 25 Kan. App. 2d 41, 42-44, 956 P.2d 737 (1998). When the prosecution announces in opening statements that a certain witness will testify about highly incriminating evidence and this evidence is later excluded, no manifest injustice occurs requiring mistrial. State v. Ruebke, 240 Kan. 493, 503, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987); see also Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App. 1994) (preliminary statement of what State expects to prove is proper, even if State does not introduce any supporting evidence); Travieso v. State, 480 So. 2d 100, 103 (Fla. App. 1985) (preliminary statement by State indicating witness’ testimony proper even if witness later is not called).
In the present case, Minnis offered no evidence at all to the juiy. The State could assume at the beginning of voir dire that no mental capacity defense would be raised because Minnis had not filed notice of the defense as required by K.S.A. 22-3219. The State nevertheless raised no objection to the voir dire questions relating to Minnis’ mental capacity. In its responsive pleading, the State asserts it attempted to object to the questions during peremptory strikes. The record shows the State first raised the issue after the jury was sworn in, at which time jeopardy had already attached. The failure to object to the jury selection process until after the jury has been selected waives any claim regarding specific questions or statements to the jury. State v. Wood, 235 Kan. 915, 919, 686 P.2d 128 (1984).
In any event, it is not clear that Minnis’ questions were inappropriate. Two prospective jurors had informed the court they worked with mentally disabled individuals on a regular basis. The questions and statements about Minnis’ mental capacity did not suggest to the jury that Minnis was innocent by virtue of his IQ. The dialogue between counsel and prospective jurors instead focused on the jurors’ ability to judge Minnis fairly and not to be influenced by his possible courtroom behavior and lower intelligence. The State failed to test the intent of the questions by means of a contemporaneous objection.
Even if the voir dire was improper, our courts assume it is within a jury’s capacity to follow cautionary instructions and to assess a defendant’s guilt or innocence solely on the basis of the evidence. State v. Akins, 261 Kan. 346, 363, 932 P.2d 408 (1997). A curative instruction that opening statements are not evidence can remedy counsel’s comments when no evidence is presented to support those remarks. See State v. Davidson, 264 Kan. 44, 54-55, 954 P.2d 702 (1998); People v. Smith, 590 N.Y.S.2d 622, 187 App. Div. 2d 942 (1992). It is unlikely the jury would have confused counsel’s questions at voir dire with exculpatory evidence when no evidence was offered.
A mistrial is to be granted only in extraordinary and striking circumstances, and the prosecutor bears a heavy burden in justifying a mistrial to avoid the double jeopardy bar on retrial. Gonzalez, 25 Kan. App. 2d at 867; U.S. v. Sloan, 36 F.3d 386, 394 (4th Cir. 1994). The defendant need not demonstrate actual prejudice resulting from the mistrial other than the infringement on the right to have a tribunal decide the cause. 36 F.3d at 395. The fact that defense counsel may have been responsible for the error does not determine whether manifest necessity existed for granting a mistrial. Gilliam, 63 F.3d at 291.
No manifest necessity existed requiring a mistrial. The State failed to object during the course of tbe voir dire, and jury instructions could have cured any improper implications resulting from the questions. Minnis was opposed to declaring a mistrial and stated his willingness to limit the defense in conformity with K.S.A. 22-3219. Jeopardy had already attached, and requiring Minnis to undergo a second trial would violate statutory and constitutional mandates. The writ is granted. The case is remanded to the trial court with directions to dismiss the complaint pending against Minnis.
Reversed and remanded with directions to dismiss the complaint. | [
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Elliott, J.:
The State appeals the granting of Cynthia Mudloff s motion to suppress evidence.
We reverse and remand.
An off-duty Salina police officer was at Sharkeys Bar when a waitress told him she had been informed some females were snorting drugs in the bathroom. The officer called dispatch and asked for other officers to be sent to the bar. While waiting for backup, two of the females reentered the bathroom and a server followed; she returned and informed the officer the women were snorting drugs.
The officer and a female server entered the bathroom along with two more officers who had arrived. As Officer Shawn Daubert entered the bathroom, he heard a snorting sound and a voice saying, “That’s some good stuff.” He then heard another voice say, “I’ve been doing this . . . shit since I was 17.”
Officer Daubert knocked on the bathroom stall door and then pushed it open. Defendant and another woman were standing in the stall; defendant was holding a baggy containing white powder.
Defendant was charged with possession of methamphetamine. She filed a motion to suppress, claiming the evidence seized during Officer Daubert’s entry into the bathroom stall was an unconstitutional search.
The trial court sustained the motion to suppress, finding bathroom stalls are designed to provide users with privacy and the entry and seizure were improper. In effect, the trial court ruled defendant had a reasonable expectation of privacy in the bathroom stall.
In reviewing a suppression of evidence ruling, we give deference to the trial court’s factual findings, but the ultimate determination of the trial court’s .decision is a legal question subject to unlimited review. State v. Jorrick, 269 Kan. 72, 78, 4 P.3d 610 (2000).
Searches conducted without a warrant are per se unreasonable, subject to some exceptions. State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997). A search within the meaning of the Constitution occurs when the government searches an area in which an individual has a subjective expectation of privacy which society is prepared to recognize as reasonable. Kyollo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94, 121 S. Ct. 2038 (2001).
Our initial question is whether Mudloff had an expectation of privacy in the bathroom stall which society would recognize as reasonable. While Kansas has not addressed this particular issue, numerous other jurisdictions have.
Several courts hold an individual has an expectation of privacy which society would recognize as reasonable in a bathroom stall at least to the extent the stall was designed to provide privacy for private functions.. See, e.g., State v. Biggar, 68 Hawaii 404, 407, 716 P.2d 493 (1986); State v. Limberhand, 117 Idaho 456, 460, 788 P.2d 857 (1990); People v. Morgan, 200 Ill. App. 3d 956, 958-59, 558 N.E.2d 524 (1990); and City of Tukwila v. Nalder, 53 Wash. App. 746, 751, 770 P.2d 670 (1989).
Other states hold a privacy right does not exist if it would not be reasonable considering the physical layout of the stall. See, e.g., State v. Jupiter, 501 So. 2d 248, 250 (La. App. 1987).
We choose to adopt the reasoning of those courts holding an individual can assert a subjective expectation of privacy in a public bathroom stall, but society will not recognize that expectation as reasonable if the stall’s occupant is engaged in activity other than the stall’s intended use. See People v. Mercado, 112 Misc. 2d 368, 373-74, 446 N.Y.S.2d 980 (1982) (two individuals occupying same stall did not have reasonable expectation of privacy when engaged in audible conversation and officer’s investigation was commenced by tip from informant; public bathroom stall affords only limited privacy and right of privacy disappears when stall is used for purposes other than intended use); State v. Tanner, 42 Ohio App. 3d 196, 199, 537 N.E.2d 702 (1988) (individual’s subjective expectation of privacy limited when two people are in stall designed for use by one person; the people cannot reasonably expect to be free from intrusion when they use single stall for purposes other than that which was intended).
Kansas has addressed a similar issue recently. See State v. Cooper, 29 Kan. App.2d 177, Syl. ¶ 6, 23 P.3d 163 (2001) (holdirig defendant had no reasonable expectation of privacy inside video booth of adult entertainment establishment that society would recognize as reasonable; thus, inspection of booth by officer was not subject to Fourth Amendment protections).
Under the facts of this case, Mudloff did not have an expectation of privacy which society would recognize as reasonable. She entered the stall with another person and had an aiidible conversation, indicating to a passerby there was activity occurring not in accordance with the stall’s intended use. The trial court erred in granting the motion to suppress.
Reversed and remanded for further proceedings. | [
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Gernon, J.:
The State appeals on a question reserved under K.S.A. 2000 Supp. 22-3602(b)(3)—namely, whether a court may strike an otherwise valid conviction from a defendant’s criminal history pursuant to a plea agreement. This involves interpreting the pertinent sentencing statutes, and we exercise de novo review. State v. Favela, 259 Kan. 215, 218, 911 P.2d 792 (1996).
Joel Hernandez first pled guilty to criminal damage to property, a nonperson felony, in case No. 99CR655. Immediately after, Hernandez pled guilty to criminal threat, a person felony, in case No. 99CR648.
Although the record is unclear, based on the district court findings, the parties arranged for Hernandez to plead in 99CR655 first, apparently reasoning that the criminal threat conviction in 99CR648 would not be a factor in sentencing on the criminal damage to property conviction.
At sentencing on the criminal damage to property conviction, the defense moved to strike the criminal threat conviction from Hernandez’ criminal history. Over the State’s objection, the court struck the conviction from, the criminal history and noted: “Whether or not that is the anticipation of the legislature, that was certainly the anticipation of the parties entering the plea.” With the criminal threat conviction, Hernandez’ criminal history score would have been “D”; without the conviction, his score would have been “I.”
The State’s position is that it agreed not to request a departure at sentencing, not that any of Hernandez’ convictions be omitted from consideration at sentencing. No objection to the PSI report was filed by Hernandez.
Hernandez questions our subject matter jurisdiction, claiming review on a question reserved is limited to issues of a statewide interest important to the correct and uniform administration of the criminal law. See State v. Leonard, 248 Kan. 427, 432, 807 P.2d 81 (1991). Hernandez characterizes the issue simply as the State’s appeal of an erroneous criminal histoiy determination. See State v. Woodling, 264 Kan. 684, 688, 957 P.2d 398 (1998) (whether a plea agreement was ambiguous is dependent on unique facts, requires a review of the trial court’s factual findings, and is of limited precedential value).
The legislature has made it a primaiy concern to ensure the sentencing statutes are consistently applied. If we were to allow the result in this case to stand, the precedent would be damaging to the legislature’s objectives. This is a situation certain to arise in the future. In addition, this case involves a sentencing court’s decision to strike an otherwise valid conviction from the defendant’s criminal history in contravention of the statutes. The State made a specific objection and reserved its question for appeal upon the adverse ruling from the bench. We find that this court has jurisdiction to hear this issue.
It is the intent of the legislature that a defendant’s criminal history be determined by a preponderance of the evidence. K.S.A. 21-4715(a). For our purposes, all valid convictions are included in a defendant’s criminal history if they occurred prior to sentencing in the instant case. K.S.A. 21-4710(a).
K.S.A. 21-4713(f) provides that in the course of discussing plea agreements, the prosecutor
“shall not enter into any agreement to decline to use a prior drug conviction of the defendant to elevate or enhance the severity level of a drug crime as provided in K.S.A. 65-4127a, 65-4127b and 65-4159 or 65-4160 through 65-4164 and amendments thereto, or make any agreement to exclude any prior conviction from the criminal history of the defendant.” (Emphasis added.)
The issue is answered by a reading of K.S.A. 21-4710(a), which defines prior convictions as
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” (Emphasis added.)
Here, the district court found that the parties did not intend for Hernandez’ criminal history to include the criminal threat conviction.
An appellant has the burden of furnishing a record that affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes the action of the trial court was proper. State v. Valdez, 266 Kan. 774, 792, 977 P.2d 242 (1999). The State in this case failed to include the plea agreement as part of the record on appeal. Therefore, we will presume that the findings of the trial court relating to the intent of the parties in the plea agreement were proper.
Based on clear legislative intent, the criminal threat conviction should have been included in Hernandez’ criminal history pertaining to the criminal damage conviction. Where the prosecutor lacks authority to make a plea agreement, the resulting agreement is invalid and must be set aside. See Fehlhafer v. State, 23 Kan. App. 2d 193, 196, 930 P.2d 1087 (1996). The prosecutor did not have the authority to alter or ignore the plain language and intent of the legislature relating to criminal histoiy. Therefore, we find that the plea agreement is invalid and must be set aside.
Accordingly, we vacate Hernandez’ sentence in case No. 99CR655 and remand for resentencing. Ordinarily, we would stop there. However, given the district court’s specific finding that Hernandez entered his pleas in the two cases with the understanding that the State would deliver on a promise we now find inappropriate, the district court should permit Hernandez to pursue motions for withdrawal of his pleas, should he wish to file them.
Sentence vacated, and case remanded with directions. | [
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Gernon, J.:
The State of Kansas appeals the district court’s amendment of Amy H. Hodgden’s criminal history.
Hodgden was charged with one count of aggravated assault of a law enforcement officer; one count of attempting to flee or elude a police officer, one count of endangering a child, one count of reckless driving, and one count of failure to drive with tail lamps. Hodgden pled guilty to attempting to flee or elude a police officer, a felony, and endangering a child, a misdemeanor.
During the preparation of Hodgden’s presentence investigation (PSI) report, the investigating officer was made aware that Hodgden had a previous conviction in 1993 for custodial interference in Anchorage, Alaska. This was included in Hodgden’s criminal history section of the PSI report, filed April 28,2000. No other crimes were listed under Hodgden’s criminal history.
Hodgden filed an objection to her criminal history with the district court. Hodgden argued that the Alaska conviction had been set aside by an Alaska district court, which operated as a dismissal; thus, the conviction should not be included in her criminal history.
A second PSI report was filed with the district court. This report was amended to not include the Alaska conviction.
At the sentencing hearing, the matter of Hodgden’s criminal history was argued before the district court. The investigator who prepared the PSI reports stated that after she had originally called the State of Alaska to verify Hodgden’s criminal history, she later spoke with a supervisor who told her that she should have never been given the conviction because it had been dismissed. The investigator said that it was her understanding that the judgment against Hodgden was void or completely dismissed.
The district court sustained Hodgden’s objection and did not include the Alaska conviction in her criminal history. Hodgden was given a presumptive sentence of 12 months of probation, with an underlying prison term of 6 months for attempting to flee or elude a law enforcement officer, and 24 months of probation, with an underlying jail term of 12 months for endangering a child. Both sentences were ordered to be served concurrently. The State appeals. We reverse and remand.
TURISDICTÍON
Hodgden argues that this court does not have jurisdiction to hear the State’s appeal. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. See State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999).
The State’s right to appeal in a criminal case is strictly statutory. The jurisdiction of an appellate court to entertain a State’s appeal exists only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999).
K.S.A. 21-4721(c) states:
“On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:
(1) Any sentence that is within the presumptive sentence for the crime; or
(2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”
Hodgden’s sentence on the felony conviction for attempting to flee or elude a law enforcement officer was within the presumptive range.
The plain language of the statute clearly states that an appellate court shall not review a sentence if such is within the presumptive range for the crime charged or is the result of a plea agreement approved by the court on the record. State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994).
However, K.S.A. 21-4721(e)(2) provides that in any appeal, the appellate court may review a claim where the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for the purpose of criminal history scoring. See Starks, 20 Kan. App. 2d at 183; see also State v. Graham, 27 Kan. App. 2d 603, 609, 6 P.3d 928, rev. denied 269 Kan. 936 (2000) (court stated that when a presumptive sentence is imposed for a crime and there is no claim of error with regard to crime severity level or criminal history, the appellate courts lack jurisdiction to consider the sentence on appeal).
The State, in its notice of appeal, stated that it was appealing the district court’s sustaining of Hodgden’s objection to the reported criminal history and its amending of the criminal history to reflect no prior felony convictions. As this appeal falls within the purview of K.S.A. 21-4721(e)(2) as an exception to the general rule that an appellate court cannot review a presumptive sentence, this court has discretion to review this appeal.
EXCLUSION OF PRIOR ALASKA CONVICTION
This question requires this court to interpret the Kansas Sentencing Guidelines Act (KSGA), specifically, K.S.A. 21-4710. Interpretation of the KSGA is a question of law, and the appellate court’s scope of review is unlimited. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
Our reading of the Alaska statutes leads us to conclude that the allowed procedure in Alaska would be classified as an expungement in Kansas. It is called a “discharge order” in Alaska.
On June 4,1996, an Alaska district court issued a discharge order in Hodgden’s case regarding the custodial interference conviction. The discharge order stated that the court had previously entered a judgment of conviction in the case and placed Hodgden on probation, suspending imposition of sentence. Finding that the period of probation had expired, the court ordered the case closed, and Hodgden was discharged by the court without imposition of sentence. It was further ordered that the judgment of conviction should be set aside.
Both parties agree that setting aside a conviction under Alaska statute § 12.55.085 (2000) is not equal to expungement. See Journey v. State, 895 P.2d 955, 959 (Alaska 1995), holding that expungement of defendant’s criminal record is not a necessary component of a conviction that has been set aside.
Both parties also agree that despite what Alaska has held concerning setting-aside convictions, this issue must be resolved under Kansas law.
In State v. Pope, 23 Kan App. 2d 69, 81, 927 P.2d 503 (1996), rev. denied 261 Kan. 1088 (1997), this court found defendant’s argument that her prior Missouri juvenile adjudications should not be counted in her criminal history under the KSGA was flawed, as she was sentenced under Kansas law rather than Missouri law and Kansas allows juvenile adjudications to be used in calculating a defendant’s criminal history. See K.S.A. 21-4710(d). The court also noted that the Full Faith and Credit Clause did not prevent the inclusion of the defendant’s Missouri juvenile adjudications, as Kansas has a legitimate public policy interest in considering these offenses when sentencing a defendant for a criminal conviction.
The State argues that Kansas law mandates the inclusion of all convictions in the scoring of a criminal history. We agree.
Under the KSGA, criminal history is based on several types of prior convictions, including person felony adult convictions. K.S.A. 21-4710(a). K.S.A. 21-4710(d)(2) states: “All prior adult felony convictions, including expungements, will be considered and scored.” The law is clear that all prior convictions are to be included in a criminal history score unless they are an element of the present crime, enhance the severity level or applicable penalties, or elevate the present crime’s classification from misdemeanor to felony. K.S.A. 21-4710(d)(ll); State v. Vontress, 266 Kan. 248, 260, 970 P.2d 42 (1998).
The legislature clearly intended to include all prior convictions in a defendant’s criminal history, even expungements. Even though Hodgden’s conviction under Alaska law was set aside, it must still be considered and scored for purposes of criminal history.
Hodgden argues that the setting aside of her conviction in Alaska involved a procedure similar to a diversion in Kansas and, as a result, the conviction cannot be used in her criminal history. Diversions are not part of a defendant’s criminal history. State v. Presha, 27 Kan. App. 2d 645, 648, 8 P.3d 14, rev. denied 269 Kan. 939 (2000).
Such an argument ignores the fundamental differences between a diversion and an expungement.
In Kansas, a diversion agreement is a “specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed.” K.S.A. 22-2906(4). After charges have been filed, but before a conviction, if it appears to the county or district attorney that a diversion would be in the interests of justice and of benefit to the defendant and the community, the county or district attorney may propose a diversion agreement to the defendant. K.S.A. 22-2907(a).
If the county or district attorney finds at any time prior to or at the conclusion of the diversion period that the defendant has failed to fulfill the terms of the agreement, the county or district attorney must inform the district court. The court then holds a hearing, and if such a finding is made as to the defendant’s failure to fulfill the terms of the agreement, criminal proceedings will resume on the charges. K.S.A. 2000 Supp. 22-2911(a).
A setting aside of a conviction in Alaska and the entering into a diversion agreement in Kansas differ in one pivotal aspect. Under diversion law in Kansas, a diversion agreement is proposed to the defendant prior to conviction on the charges. K.S.A. 22-2907(1). If the defendant fulfills the terms of the agreement, no conviction is entered, and the charges are dismissed with prejudice. K.S.A. 2000 Supp. 22-2911(b).
Kansas, unlike Alaska, does not have a process whereby after a suspended sentence, successful probation, and discharge by the court, a defendant’s conviction can be set aside and not counted in a defendant’s criminal history. Clearly, the Kansas Legislature, by enacting the language of K.S.A. 21-4710, intended to include all prior adult felony convictions in criminal history scoring. The legislature even specifically noted that this includes expungements. K.S.A. 21-4710(d)(2). The district court erred in excluding a prior Alaska conviction in Hodgden’s criminal history.
Reversed and remanded for resentencing consistent with the ruling herein. | [
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Marquardt, J.:
Gerald Cope appeals his conviction for making a criminal threat. We reverse.
Cope and his wife divorced in 1998. Cope’s ex-wife received the couple’s home and sole custody of their children.
Cope was upset over the divorce. In April 1999, Cope was talking to a coworker, Jeremy Walker, and told Walker that he was “going to go to war with” Johnson County by placing explosives around the courthouse. Walker was concerned and mentioned Cope’s comments to Chuck Wiegand, another coworker. Wiegand asked Cope if he had “some problems with the Johnson County Courthouse” and Cope repeated the comments he had made to Walker. Later, Cope told Wiegand that “Johnson County had robbed him of any reason to live.” Cope stated that he was “stockpiling” money to buy weapons.
Wiegand called the sheriffs department and told Lieutenant Resman about Cope’s threats. Lieutenant Resman apprised courthouse security officers about Cope’s threats. Photographs of Cope and his vehicle were circulated to security personnel. Lieutenant Resman arranged for officers to follow Cope.
Cope was arrested on May 4, 1999, and consented to a search of his home. The only weapon found was a .22 caliber handgun, which he lawfully possessed.
Cope was charged with one count of making a criminal threat. The complaint filed against Cope stated:
“That on or about the 29th day of April 1999, in the County of Johnson, State of Kansas, Gerald L. Cope did then and there unlawfully, feloniously and willfully communicate a threat to commit violence with the intent to cause the evacuation of any building, place, assembly, or facility of transportation, to-wit: the Johnson County Courthouse, or in reckless disregard of the risk of causing evacuation of any building, place, assembly, or facility of transportation, to-wit: the Johnson County Courthouse, a severity level 9 person felony, in violation of K.S.A. 21-3419, K.S.A. 21-4704 and K.S.A. 21-4707.”
Cope filed a motion for change of judge and asked that the Johnson County District Attorney’s office be excused from the case. Cope believed that every person who worked in the courthouse was a potential victim of the crime and would have a conflict of interest. Cope alleged that the entire district attorney s office was “infected with the desire to get [him] for this crime regardless of whether the elements are made.” The State responded that there was no conflict of interest and the prosecuting attorney did not view Cope’s case any differently than other cases.
Cope’s motion to recuse the district attorney’s office was denied. However, Cope’s motion for a change of judge was granted. A district judge from a different judicial district heard the case.
Cope filed a motion to dismiss, claiming that the criminal threat statute was unconstitutionally vague and overbroad. The motion was denied. A jury convicted Cope of one count of criminal threat. He was sentenced to 24 months’ probation with an underlying prison term of 9 months. Cope timely appeals his conviction and sentence.
Constitutionality of K.S.A. 21-3419
Cope claims that K.S.A. 21-3419 impermissibly infringes upon his guarantee of free speech in violation of the First and Fifth Amendments to the United States Constitution.
Interpretation of a statute is a question of law over which this court has unlimited review. See State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998). The constitutionality of a statute is presumed. It is the court’s duty to uphold the constitutionality of a statute if there is any reasonable way to construe the statute as constitutional. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
K.S.A. 21-3419 states:
“(a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such terror or evacuation.”
A statute is overbroad when (1) the protected activity is a significant part of the law’s target, and (2) there exists no satisfactory method of severing the law’s constitutional from its unconstitutional applications. State v. Wilson, 267 Kan. 550, 556-57, 987 P.2d 1060 (1999).
Kansas appellate courts have not previously addressed whether the reckless speech portion of K.S.A. 21-3419 is overbroad. Nebraska’s criminal threat statute is almost identical to the Kansas statute. It proscribes speech made with the “intent of causing the evacuation of a building, place of assembly, or facility of public transportation” or speech made “[i]n reckless disregard of the risk of causing such terror or evacuation.” A defendant challenged the constitutionality of the Nebraska statute on grounds that it was overbroad. Their court held that the statute was constitutional. State v. Bourke, 237 Neb. 121, 123, 125, 464 N.W.2d 805 (1991).
The following examples of Kansas statutes were found to be overbroad: In DPR, Inc. v. City of Pittsburg, 24 Kan. App. 2d 703, 953 P.2d 231 (1998), an ordinance forbade the exhibition of a motion picture not given a rating by the Motion Picture Association of America of G, PG, PG-13 or R. In finding the statute overbroad, a panel of this court noted that while the obvious aim of the ordinance was to restrict the display of pornographic films, the effect of the ordinance was to ban perfectly innocent movies which were not given such ratings. 24 Kan. App. 2d at 719. In State v. Hughes, 246 Kan. 607, 619, 792 P.2d 1023 (1990), the statute in question was found to be overbroad because it criminalized the dissemination of obscene sexual devices without creating an exception for the purpose of medical and psychological therapy; and in City of Junction City v. Mevis, 226 Kan. 526, 535, 601 P.2d 1145 (1979), the ordinance in question was found to be overbroad because it had no provision for transporting a firearm from the place of purchase to the buyer’s home.
K.S.A. 21-3419 proscribes the use of words with a specific intended outcome: causing terror or evacuation of a building, or the risk of causing terror or evacuation of a particular building. When we compare K.S.A. 21-3419 with DPR, Inc., Hughes, and Mevis, we conclude that K.S.A. 21-3419 is not overbroad.
Cope also contends that K.S.A. 21-3419 is unconstitutionally vague so that persons of common intelligence must necessarily guess at its meaning and therefore, the statute violates the Fourteenth Amendment to the United States Constitution. Cope argues that K.S.A. 21-3419 criminalizes words uttered without the intent to cause an evacuation, meaning that the criminality of his words is dependent upon the subjective reactions of the listener, law enforcement, or the district attorney’s office.
The Kansas Supreme Court has determined that the Kansas criminal threat statute does not require the defendant to know his or her threat would be communicated to the person terrorized, since it is sufficient if there is an intent to terrorize or an act in reckless disregard of causing terror. See State v. Wright, 259 Kan. 117, 122, 911 P.2d 166 (1996).
In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. A statute is not void for vagueness and uncertainty where it employs words commonly used or previously judicially defined, or the words have a settled meaning in law. State v. Kirkland, 17 Kan. App. 2d 425, 428-29, 837 P.2d 846, rev. denied 251 Kan. 941 (1992).
In In re Steven S., 25 Cal. App. 4th 598, 606, 31 Cal. Rptr. 2d 644 (1994), the defendant was convicted of desecrating a religious symbol on the private property of another “in reckless disregard of the risk of terrorizing the owner or occupant of that private property.” The defendant argued that the words “desecrates” and “religious symbol” were highly subjective, since religious belief by its nature is subject to many different interpretations. In finding the statute constitutional, the court held that the statute required specific mental states, namely that the offender knew the desecrated object was a religious symbol and that he or she acted for the purpose of terrorizing or in reckless disregard of that risk. The court held that the requirement of purposeful or reckless terrorizing ensured against treatment of seemingly innocuous behavior as a desecration. 25 Cal. App. 4th at 614.
In determining whether K.S.A. 21-3419 is vague, we look to the analysis of In re Steven S., where the statute in question required a specific mental state, namely that the offender acted for the purpose of terrorizing or in reckless disregard of that risk.
In State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972), the defendant claimed that K.S.A. 21-3419 was vague, indefinite, and uncertain. Even though the statute under which Gunzelman was charged was entitled “terroristic threat,” and the words “wanton disregard” were used instead of “reckless disregard,” the intent to terrorize or cause evacuation of a building is the same. Such threats are proscribed regardless of what the communicator has in mind. In K.S.A. 21-3419, the word “threat” means the communicator intended to inflict physical or other harm on a person or property; “terrorize” means to reduce to terror by violence or threats; and “terror” means an extreme fear or fear that agitates the body and mind. Gunzelman, 210 Kan. at 486.
“Reckless” is defined in K.S.A. 21-3201 as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” State v. Huser, 265 Kan. 228, 232, 959 P.2d 908 (1998). The words used in K.S.A. 21-3419 are commonly used and our Supreme Court has previously defined them. The language used in K.S.A. 21-3419 is not vague and persons of common intelligence are not required to guess at its meaning. Accordingly, we find that K.S.A. 21-3419 is not overbroad or vague.
Sufficiency of the Evidence
Cope contends that he never intended his words to be communicated to anyone at the Johnson County courthouse, no one was terrorized by the statements, and the evidence does not support the inference that he made statements in order to cause an evacuation of the courthouse.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Cope admitted that he told Walker he would “probably end up having to take them to war, go to war with them.” Cope also testified that he stated he “could understand in retrospect to the things that happened in Columbine.” Cope testified that he told Wiegand he could obtain an SKS rifle with armor piercing ammunition. Cope also admitted that he told Wiegand he could “use all the money [he] could get.”
Cope concedes that he could legitimately be punished for communicating with the intent that his words cause panic. However, he argues that punishing reckless speech criminalizes the expression of an idea not meant to be expressed in a way that would cause terror or an evacuation.
Cope’s comments were made to Walker and Wiegand; however, his threats were directed at the courthouse, and by inference, those who would be in the courthouse. K.S.A. 21-3419 does not require, as an element of the offense, that the defendant know his or her threat would be communicated to those being terrorized. It is sufficient if there is an intent to terrorize or an act in reckless disregard of causing such terror. Wright, 259 Kan. at 122.
The question is whether diere was sufficient evidence that Cope intended to cause the evacuation of the Johnson County courthouse, or whether his statements were made in reckless disregard of the risk of causing evacuation of the courthouse.
There is no doubt that Cope was distraught and reckless in making the statements about Johnson County and the Johnson County courthouse. Communicated intent can be inferred from physical acts as well as verbal statements. See State v. Howell & Taylor, 226 Kan. 511, 515, 601 P.2d 1141 (1979); State v. Miller, 6 Kan. App. 2d 432, 435, 629 P.2d 748 (1981). The threat, however, must be a serious threat as distinguished from idle talk or jest. See State v. Phelps, 266 Kan. 185, 196, 967 P.2d 304 (1998).
After learning of Cope’s statements, law enforcement officers obtained a search warrant and searched Cope’s home. They found only one gun, which was legally possessed. Cope was followed by law enforcement officers. They observed nothing to indicate that Cope intended to carry out his threats. His statements did not cause an evacuation, and there is no evidence that the statements were made in reckless disregard of the risk of causing an evacuation of the courthouse. There is no evidence that he terrorized anyone. Cope’s statements do not satisfy the requirement of substantial competent evidence to support a violation of K.S.A. 21-3419. Cope’s conviction is overturned.
Because we are reversing on other grounds, we are not addressing Cope’s motion to disqualify the Johnson County District Attorney.
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Brazil, J.:
Plaintiffs Richard Wright, Timothy Wright, Randy Newkirk, Jon Pool, and Pool & Company, Chartered (Plaintiffs) appeal from summaiy judgment in favor of the defendants, Rosemaiy Bachmurski and George Fosdick, in a defamation and false hght/invasion of privacy case.
We reverse and remand.
The present litigation stems from a newspaper publication about the verdict from a malpractice suit between the parties.
In 1997, George Fosdick sued Wright for accounting malpractice in Fosdick v. Wright, No. 71,339, unpublished opinion filed August 18, 1995. Following a jury trial, the juiy returned a verdict and found Fosdick 95% at fault and Wright 5% at fault.
Shortly after the verdict, Fosdick and Bachmurski repeatedly contacted the Emporia Gazette, interviewed with a reporter for the Gazette, and submitted a press release. At the interview, either Fosdick or Bachmurski told Blake Spumey, a reporter for the Gazette, that Wright committed tax evasion. The press release read:
‘Written Statement of George W. Fosdick Fosdick, Plaintiff vs Richard Todd Wright an individual and Sinnard, Wright & Company, CPA’s and Pool and Company, Chartered
Case No. 90 C 186
“I am pleased that the defendants have been found guilty of malpractice. The verdict has restored my personal and business integrity in the Emporia community.
“Unfortunately, we think some of the instructions that the judge gave the juiy were inappropriate in this situation. An appeal is being considered.
“I am sorry that I was not able to recover any monetary damages for my previous creditors.
“I am grateful to the jury for their hard work and patience during this complex trial.”
Based on the information provided at the interview from either Fosdick or Bachmurski, Spumey wrote an article titled: “Accountant found liable for malpractice,” which appeared in the Emporia Gazette. The article stated the jury found accountant Todd Wright liable for malpractice and that Fosdick claimed Wright had committed tax evasion and fraud while misleading him about the financial condition of the business.
After Wright informed the newspaper about the article’s inaccuracies, the newspaper printed a retraction. In addition, the newspaper reached an out of court settlement with Plaintiffs. t
According to the agreement, the newspaper paid Plaintiffs $120,000 to satisfy all claims and damages against the newspaper and its employees that resulted from publication of the article.
Plaintiffs filed this lawsuit against Fosdick and Bachmurski, alleging defamation, false light/invasion of privacy, intentional infliction of emotional distress (outrage), and tortious interference with business activities.
Following discovery, Plaintiffs filed a motion to amend the petition and sought punitive damages. Fosdick and Bachmurski filed a motion for summary judgment premised on a joint tortfeasor relationship with the Emporia Gazette in publication of the article and claimed the release discharged them from liability. In the alternative, Fosdick and Bachmurski claimed they were entitled to a dollar-for-dollar credit for the settlement with the Emporia Gazette which satisfied all Plaintiffs’ damages.
The trial court granted summary judgment in favor of the defendants and concluded they were joint tortfeasors with the Emporia Gazette. The judge held the newspaper’s release also released Fosdick and Bachmurski because of their status as joint tortfeasors. By resolving the relationship between the newspaper and the defendants as joint tortfeasors, the judge also found that the newspaper’s settlement fully compensated Plaintiffs for their damages. The trial court did not address the merits of Plaintiffs’ other claims of liability because of its ruling on the tortfeasor relationship and the effect of the release.
A motion for reconsideration was later denied by the trial court.
Plaintiffs argue the district court erred in granting summary judgment because the release to the Emporia Gazette did not release Fosdick and Bachmurski from liability.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
“ Tt has been recognized that summary judgment should be employed with caution in defamation cases. However, summary judgment may properly be granted in a defamation case when the evidence shows no liability as a matter of law and where the essential facts are not in dispute.’ [Citation omitted.]” Clevenger v. Catholic Social Service of the Archdiocese of Kansas City, 21 Kan. App. 2d 521, 530, 901 P.2d 529 (1995).
Fosdick and Bachmurski’s defense rests largely on the premise that the Emporia Gazette release also released them because they claim a joint tortfeasor relationship with the Emporia Gazette. This relationship was the trial court’s foundation for determining the effect of the release and granting summary judgment in favor of the defendants. Had the trial court not reached this conclusion, the journal entry makes it clear the remaining issues were for a jury to determine.
The trial court and the defendants are incorrect on both the characterization of the tortfeasor relationship and the effect of the Emporia Gazette’s release.
“ ‘[Djefamation is an invasion of the interest in reputation and good name. This is a “relational” interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff.’ ” Gomez v. Hug, 7 Kan. App. 2d 603, 611, 645 P.2d 916, rev. denied 231 Kan. 800 (1982) (citing Prosser, Law of Torts, 4th ed. 1971 at 737). In Kansas, any plaintiff in a defamation action must allege and prove actual damages and may no longer rely on the theory of presumed damages. See Zoeller v. American Family Mut. Ins. Co., 17 Kan. App. 2d 223, 228, 834 P.2d 391, rev. denied 251 Kan. 942 (1992).
“The tort of defamation includes both libel and slander. The elements of the wrong include false and defamatory words [citation omitted] communicated to a third person [citation omitted] which result in harm to the reputation of the person defamed.” ’ [Citation omitted.]” Dominguez v. Davidson, 266 Kan. 926, 930, 974 P.2d 112 (1999). Intentional or negligent communication of the defamatory matter is called “publication,” and the person making the communication is called the “publisher.” See Restatement (Second) of Torts § 577(1) (1977).
Although well settled in other jurisdictions, the effect of republication or repetition of a defamatory statement is an issue of first impression in Kansas.
Each communication of a defamatory statement to a third person generally constitutes a new publication and gives rise to a sep arate cause of action against the publisher. 50 Am. Jur. 2d, Libel and Slander § 260, p. 521; Restatement (Second) of Torts § 577A, comment a (1977). When that third person then communicates the original defamatory statement to a fourth person it is called republication or repetition. Republication of a libel is a separate tort which creates a separate basis of liability against the republisher. 50 Am. Jur. 2d, Libel and Slander § 261, p. 522; Restatement (Second) of Torts § 578, comment b (1977). The original publisher may also be liable for republication if repetition by third persons was reasonably expected as the natural and probable consequence of the original publication. Restatement (Second) of Torts § 576, comment c (1977); see Bolduc v. Bailey, 586 F. Supp. 896, 901 (D. Colo. 1984) (applying Kansas law).
“While defamation is generally incapable of joint commission and does not give rise to solidary [joint and several] liability, whenever two or more persons cooperate in the publication of a libel, all are responsible for the resultant damages, and the victim can sue them either jointly or severally. . . . Even where the words are uttered simultaneously, two or more individuals uttering slanders against the same person cannot be held jointly hable unless the defamation was the result of a concert or conspiracy between them. . . .” 50 Am. Jur. 2d, Libel and Slander § 358, p. 685.
Applying the law of defamation to the facts of this case, there are two separate and distinct causes of action against Fosdick and Bachmurski because there were two publications of the defamatory statements. The first action arose from the communication between Fosdick and Bachmurski and the reporter for the newspaper (the original publication). The second cause of action resulted from the newspaper’s story based on the communication with Fosdick and Bachmurski (republication).
The Emporia Gazette effectively republished the defamation by writing a story in the newspaper based on Fosdick and Bachmurski’s defamatory statements to one of the newspaper’s reporters. The republication was a separate tort which created a separate basis for liability against the newspaper without their settlement with Plaintiffs. Fosdick and Bachmurski are also liable for the Emporia Gazette’s republication because they could have reasonably expected the newspaper to write a story as a natural and probable consequence of the defamatory communication between them and a reporter. The newspaper did not act in concert or conspire with Fosdick and Bachmurski but failed to sufficiently investigate the facts before republishing the libelous story. Absent a concert or conspiracy between them, the newspaper and Fosdick and Bachmurski are not joint tortfeasors.
Fosdick and Bachmurski erroneously claim their actions resulted in a single publication and that they merely “transmitted” or “delivered” the alleged defamatory material in their communication to the reporter. Their reliance on the “single publication rule” and “transmission of defamation” is without merit.
Under the “single publication rule,” a single issue or single edition of a periodical or book constitutes a “single publication.” Restatement (Second) of Torts § 577A (1977).
“Generally, under the single publication rule any single integrated publication, such as one edition of a newspaper, book, or magazine, or one broadcast, is treated as a unit, giving rise to only one cause of action, even though widely distributed, and regardless of the number of times it is exposed to different people. Under the rule, distinct causes of action do not arise by virtue of the sale of copies of an edition of a newspaper, or by reason of the sale of copies of a book from stock. . . .
“The ‘single publication rule’ is intended to protect the communication industry from undue harassment and unjust punishment by preventing the filing of a multitude of suits based on one tortious act, and by restricting the time in which such lawsuits may be commenced—that is, preventing the indefinite tolling of the statute of limitations.” 50 Am. Jur. 2d, Libel and Slander § 264, p. 526-28.
See Restatement (Second) of Torts § 577A, comment b (1977).
The “single publication rule” is inapplicable to Fosdick and Bachmurski because the cause of action against them did not arise from sale of copies of an edition of a newspaper, magazine, broadcast, or sale of copies of a single book.
The Restatement (Second) of Torts § 581(1) (1977) transmission rule is also of no avail to Fosdick and Bachmurski. The transmission rule makes an exception to the rule that a person who repeats or republishes defamatory matter is subject to liability as if he or she originally pubbshed it, if a person only debvers or transmits the defamatory matter pubbshed by a third person. “Except as stated in subsection (2), one who only debvers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its- defamatory character.” Restatement (Second) of Torts § 581(1) (1977).
Fosdick and Bachmurski did not merely transmit or deliver the alleged defamatory matter to the Emporia Gazette. They knew or had reason to know of its defamatory character.
In summary, the trial court erred in its characterization of the tortfeasor relationship between the Emporia Gazette and Fosdick and Bachmurski for republication of the defamatory matter. They are independent tortfeasors. Regardless of the relationship between the defendants and the Emporia Gazette, the settlement agreement does not discharge Fosdick and Bachmurski from liability.
The effect of a release or covenant not to sue is a legal question, and an appellate court has unlimited review over questions of law. See York v. InTrust Bank, N.A., 265 Kan. 271, 283, 962 P.2d 405 (1998).
The Restatement (Third) of Torts: Apportionment of Liability § 24 (2000) provides:
“(a) A settlement is a legally enforceable agreement in which a claimant agrees not to seek recovery outside the agreement for specified injuries or claims from some or all of the persons who might be liable for those injuries or claims.
“(b) Persons released from liability by the terms of a settlement are relieved of further liability to the claimant for the injuries or claims covered by the agreement, but the agreement does not discharge any other person from liability.” (Emphasis added.)
The Restatement’s position that a release does not release all tortfeasors is consistent with Kansas case law. Although our case law has not articulated this principle so broadly, it underlies decisions by our appellate courts.
In Luther v. Danner, 268 Kan. 343, 995 P.2d 865 (2000), Luther brought a wrongful death and personal injury action against a truck driver and the driver’s employer. Our Supreme Court considered whether a general release barred claims of the plaintiffs against tortfeasors not specifically named in the release. 268 Kan. at 344. Although the court discussed the effect of the release under com parative fault, K.S.A. 60-258a, for a personal injury action, the reasoning of Luther can be applied to the case at hand.
After reviewing cases from other jurisdictions and discussing the various approaches to construction of a general boilerplate release, the Luther court held that where a party was “not identified in the release by name or other specific identifying terminology, there is a rebuttable presumption that their release was not intended. They must bear the burden of rebutting the presumption.” (Emphasis added.) 268 Kan. at 352.
In York, 265 Kan. at 275, York brought suit against InTrust for fraud and conspiracy, among other claims arising from a real estate transaction. Although discussing agency and vicarious liability, the York court concluded that InTrust was not released from liability merely because other defendants obtained a covenant not to sue. 265 Kan. at 286-87.
In the present case, the release is between Richard Todd Wright and Pool & Company and the White Corporation, Inc., doing business as the Emporia Gazette. Fosdick and Bachmurski are not specifically mentioned. Applying Restatement (Third) Torts: Apportionment of Liability § 24, comments f and g (2000), the intent of the parties is given effect to the contract, and if there is a dispute over whether a particular individual is released, the burden of pleading and proving that the settlement releases the individual is on the party claiming release.
Fosdick and Bachmurski have not met their burden that they are released from liability through the Emporia Gazette release. The intent of the release was to shield the Emporia Gazette from liability through the settlement. The release has no effect on Fosdick’s and Bachmurski’s liability for damages. Fosdick and Bachmurski are still liable for all consequential damages flowing from the defamatory statements to the reporter and the newspaper’s republication.
Liability for damages and credit for a settlement are independent of each other. Tortfeasors are hable for all consequential damages resulting from their tortious conduct, including punitive damages where appropriate. When multiple tortfeasors are involved, and one of the potential defendants reaches an out of court settle ment with the victim, that settlement does not extinguish any remaining tortfeasors’ liability absent a provision in the settlement contract to the contrary. The tort victim may still seek redress for compensatory damages and punitive damages (if warranted) from the courts against the remaining tortfeasors. However, if a jury finds these remaining tortfeasors hable to the plaintiff, they may seek credit from the settlement for compensatory damages.
Fosdick and Bachmurski argue that if they are not released from liability they should receive a dollar-for-dollar credit for the $120,000 from tire Emporia Gazette’s settlement because defamation is an intentional tort and the amount paid fully compensated Plaintiffs’ damages. While the release may have compensated Plaintiffs for compensatory damages, the argument fails to consider possible punitive damages. In the journal entry for summary judgment, the trial court indicated but for its ruling, this case provided a set .of facts where “punitive damages would be warranted and likely to be awarded.”
The questions raised by the granting of a pro tanto credit in this case for the $120,000 settlement with the Emporia Gazette, involve damages, making this a question of law over which our review is unlimited. See York, 265 Kan. at 311.
This is not a case involving the comparative negligence/fault provision of K.S.A. 60-258a, and therefore the rules relating to K.S.A. 60-258a do not apply to our analysis. See York, 265 Kan. at 310. Credit for the Emporia Gazette setdement must be limited to compensatory damages.
Although Fosdick and Bachmursld are not joint tortfeasors with the Emporia Gazette, Kansas only permits one recovery for a wrong.
“Kansas has not varied from a rule that limits a plaintiff to only one recovery for a wrong. This rule has been applied throughout the years in situations where partial payments have been made by multiple tortfeasors. A pro tanto credit has been granted to prevent a plaintiff from receiving a double recovery. By definition, the word pro tanto means ‘[f]or so much; for as much as may be; as far as it goes. Partial payment made on a claim.’ Black’s Law Dictionary 1222 (6th ed. 1990).” York, 265 Kan. at 311.
‘When a right of action is once satisfied, it ceases to exist. If part satisfaction has already been obtained, further recovery can only be had of a sum sufficient to accomplish satisfaction. It is not necessary that the party making payment in partial satisfaction was in fact liable. Anything received on account of the injury inures to the benefit of all and operates as a payment pro tanto. The plaintiff is entitled to only one satisfaction from whatever source it may come.” York, 265 Kan. 271, Syl. ¶ 24.
Plaintiffs’ summary of damages list compensatory damages at $36,812.98, resulting from publication of the article. Based on the reasoning in York, unless Plaintiffs can establish a separate harm from publication of the article, they were fully compensated for their compensatory damages because the Emporia Gazette paid Plaintiffs $120,000. Under the one recovery rule, Fosdick and Bachmurski are entitled to a dollar-for-dollar credit of the Emporia Gazette setdement for the republication only to the extent it compensates them for compensatory damages. The credit may not be applied against any punitive damages. Additionally, because there are two separate causes of action against Fosdick and Bachmurski, should the jury assess compensatory damages for the initial publication of the defamatory statements to the reporter, no credit from the settlement is to be applied to those compensatory damages.
Upon remand if the jury finds Fosdick and Bachmurski hable and determines the amount of compensatory damages owed, the defendants may argue double recovery and receive credit with respect to compensatory damages stemming from republication by the newspaper.
Punitive damages are separate and distinct from compensatory damages. Compensatory damages are designed to compensate the tort victim for actual damage or loss incurred by the action of the tortfeasor, whereas punitive damages are not compensatory, and if warranted, are given in addition to compensatory damages. “ Tn Kansas, punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs.’ ” Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1007, 894 P.2d 260 (1995). However:
“The conduct giving rise to the punitive damages claim must be the same conduct for which actual or compensatory damages were allowed. Where two separate causes of action are tried, arising from different factual situations and different theories, recovery of actual damages in one cause of action is insufficient to permit recovery of punitive damages in the second cause of action.” Traylor v. Wachter, 227 Kan. 221, 224-25, 607 P.2d 1094 (1980).
If the jury awards actual or compensatory damages, that party may recover punitive damages, provided die plaintiff amended their pleadings to include a claim for punitive damages under K.S.A. 60-3703. See also Iola State Bank v. Bolan, 235 Kan. 175, 679 P.2d 720 (1984) (upholding $150,000 punitive damages award compared to $26,663.14 actual damages); Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983) (upholding punitive damage award of $600,000 compared to $20,000 actual damages); Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 (1982) (upholding punitive damage award of $100,000 compared to $9,326.06 actual damages); and Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979) (upholding punitive damage award of $215,000 compared to $48,000 actual damages).
York revisited the question as to whether a pro tanto credit should be granted against the amount of punitive damages awarded. 265 Kan. at 311. Our Supreme Court noted that the issue was resolved by their decision in Smith v. Printup, 254 Kan. 315, 356, 866 P.2d 985 (1993), where they said:
“ ‘The imposition of joint and several liability for punitive damages is contrary to the purpose for which punitive damages are awarded. Punitive damages are awarded to punish the wrongdoer. Each wrongdoer is liable to pay the punitive damages assessed against him or her. The amount of the award is to be calculated with the individual defendant’s financial status and conduct in mind. K.S.A. 1992 Supp. 60-3701(b), (e) and (f). Joint and several liability undermines these considerations and therefore is unavailable. In contrast, joint and several liability for compensatory damages, under appropriate circumstances, is consistent with their purpose, which is to compensate the tort victim.’ ” York, 265 Kan. at 313-14.
Therefore, it is inappropriate to the purposes for which punitive damages are awarded to allow any portion of the $120,000 settlement payment made by the Emporia Gazette to be credited towards punitive damages. “A defendant is not entitled to apply a pro tanto credit to any amount awarded as punitive damages or to apply a pro tanto credit of any amount previously recovered which was specifically allocated as punitive damages.” 265 Kan. at 314. To make an allocation of any punitive damages to the $120,000 settlement would be contrary to the agreement that “denies that it [Emporia Gazette] is in any way liable to the Claimants for any of their claimed injuries or damages whatsoever and has refused payment for said claims.”
Since the district court erred in concluding a joint tortfeasor relationship between Fosdick and Bachmurski and the effect of the release, summary judgment on Plaintiffs’ other claims was also inappropriate.
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JOHNSON, J.:
Donna Marie Ryan pleaded guilty to possession of cocaine. Prior to sentencing, Ryan moved for leave to withdraw her guilty plea. Ryan appeals the district court’s denial of her motion. We reverse and remand with instructions to allow Ryan to withdraw her guilty plea.
Ryan and her brother, Mark Jones, were in a parked van, preparing to use cocaine. Police officers opened the van door. Both Ryan and Jones were arrested. Ryan was charged with possession of cocaine and marijuana; Jones was similarly charged. Both defendants retained the same attorney, Adam North.
Ryan accepted a facially generous plea offer, negotiated while North also represented Jones. The agreement required Ryan to testify against Jones. Ryan denies knowing of the requirement to testify until immediately prior to commencement of the plea hearing. At that hearing, Ryan testified under oath, admitting guilt and implicating Jones. Jones first learned Ryan would be a State’s witness after the plea hearing, when Ryan told him. The day following Ryan’s plea, North withdrew as Jones’ counsel. Replacement counsel for Jones filed a motion to suppress. Subsequently, the State dismissed Jones’ case. Prior to sentencing, Ryan obtained new counsel, who filed the motion to withdraw plea. The motion alleged North’s conflict of interest in representing both Ryan and Jones during plea negotiations violated Ryan’s Sixth Amendment right to counsel.
The trial court denied the motion. No written memorandum or journal entry appears in the record.
A guilty plea, “for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A. 2000 Supp. 22-3210(d). The appropriate standard of review on appeal is whether the trial court abused its discretion in refusing to allow withdrawal of the guilty plea. State v. Dighera, 22 Kan. App. 2d 359, 361, 916 P.2d 68, rev. denied 260 Kan. 997 (1996). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
Statements contained in the motion hearing transcript indicate the district court relied on State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992). “To justify a motion to withdraw the plea prior to sentencing, the motion should allege that the defendant is not guilty of the offense charged; that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea.” Larry, 252 Kan. at 95. The district court noted Ryan’s repeated admissions of guilt and found that if any one was prejudiced by North’s actions, it was Jones.
In Larry, the defendant’s jury trial was in progress when the guilty plea was entered. After the trial court accepted the plea and discharged the jury, defendant attempted to withdraw the plea, alleging the trial judge had erred during the jury trial. There was no allegation the defense attorney had a conflict of interest or represented multiple defendants.
In determining whether a defendant should be allowed to withdraw a plea, the district court should, consider, inter alia, whether the defendant was represented throughout by competent counsel. State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990). The Sixth Amendment right to effective assistance of counsel is not violated by the mere fact of multiple representations; for a violation to occur, there must be a conflict of interest. State v. Lem’Mons, 238 Kan. 1, 5, 705 P.2d 552 (1985). For an attorney representing codefendants in a criminal case, the most serious conflict of interest that might arise is for one defendant to take a plea and become a State’s witness against the other defendant. See State v. Hilton, 217 Kan. 694, 698, 538 P.2d 977 (1975).
The district court acknowledged North had an actual conflict. Ryan’s failure to convince the trial judge that she was prejudiced by the conflict, especially in light of her repeated admissions of guilt, formed the basis for the district court’s decision. The district court assumed, because it perceived the conflict only harmed Jones, that Ryan’s representation was adequate. To the contrary, prejudice is presumed when a conflict of interest arises in a joint representation of codefendants in a criminal case. Strickland v. Washington, 466 U.S. 668, 692, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Holloway v. Arkansas, 435 U.S. 475, 489-91, 55 L. Ed. 2d
426, 98 S. Ct. 1173 (1978). “[T]o assess the impact of a conflict of interests on the attorneys options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.” Holloway, 435 U.S. at 491. The district court did not need to speculate as to whether Ryan’s result might have been different without the joint representation.
The State cites Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), for authority that Ryan needed to show she was prejudiced. In Cuyler, the trial court was not informed of the possible conflict of interest and the conflict possibility was first raised on appeal. In State v. Jenkins, 257 Kan. 1074, 1083-84, 898 P.2d 1121 (1995), our Supreme Court explained the application of the different conflict standards as follows:
“[W]hen a possible conflict exists, but the trial court is not advised of the possibility, the limited presumption set forth in Cuyler applies, and the defendant, in order to establish a violation of his Sixth Amendment right to the effective assistance of counsel, must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. See Cuyler, 446 U.S. at 348. On the other hand, we hold that where the trial court is advised of tire possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated. In this instance, a showing that there is an actual conflict of interest will result in automatic reversal. See Holloway, 435 U.S. at 489. Prejudice to the defendant is presumed, and reversal of the defendant’s conviction is automatic.”
Here, the district court was advised of the possibility of conflict, made an inquiiy, and found there was an actual conflict. However, the district court apparently applied the Cuyler standard instead of the Holloway standard. Under Jenkins, if Ryan had been convicted, we would be required to reverse. We find that a showing defendant’s attorney had an actual conflict of interest when negotiating a plea agreement requires the district court to grant defendant leave to withdraw the guilty plea prior to sentencing.
We reverse and remand with instructions to the district court to grant Ryan’s motion to withdraw her guilty plea.
Reversed and remanded with instructions. | [
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Pierron, J.:
Mary Jane Medina claimed underinsured motorist insurance coverage following a default judgment against the tortfeasor. American Family Mutual Insurance Company (American Family) appeals the district court’s judgment that it is liable to Medina for underinsured motorist coverage. We reverse.
On June 21, 1992, Medina’s vehicle was stopped at an intersection when it was struck from behind by another vehicle. That vehicle was driven by Jose M. Camacho (Jose M.). Medina alleged personal injury. She was insured by American Family with under-insured motorist coverage of $100,000. Jose M. was arguably covered under a policy issued to a relative on the accident vehicle by a related company, American Standard Insurance Company of Wisconsin (American Standard), with liability limits of $50,000 per person.
On June 20, 1994, Medina filed a petition in Finney County District Court, naming Jose M. as the sole defendant and alleging she had been injured by his negligence. She attempted service of a summons and petition on Jose Camacho at the address identified in the accident report. That Jose Camacho protested that he was Jose E. Camacho (Jose E.) and that the summons was intended for Jose M., his cousin, who had left the area and perhaps returned to Mexico. Jose E. explained that the car involved in the accident had been titled in his name but that he had since transferred title to Jose M.
Medina continued, with much frustration, to attempt to locate and serve Jose M. She received a 30-day extension of time to effect service and eventually attempted service by publication. American Standard, meanwhile, refused to admit or deny coverage for Jose M. under Jose E.’s policy. Jose E. was dismissed, and Medina moved for default judgment against Jose M. On November 1,1995, the Finney County court granted Medina judgment for her specified damages of $100,000.
In June 1999, Medina, armed with her underinsured motorist coverage of $100,000 and represented by a new attorney, filed suit in Sedgwick County against American Family for the difference between Jose E.’s liability limits and the amount of the judgment plus interest and costs. American Family challenged the service of process and the validity of the judgment in its answer. American Family then moved for judgment on the pleadings, contending that the underlying default judgment was void for lack of personal jurisdiction over the defendant. The district court denied the motion and also denied a motion in limine seeking, to exclude the journal entry from evidence.
During a bench trial, American Family stipulated that Jose M. was covered by the American Standard policy. Medina’s Finney County attorney testified that Jose M. had not been personally served. It was undisputed that Jose M. did not appear personally and no one entered an appearance on his behalf. In closing argument, Medina attempted to add a claim for uninsured motorist benefits. American Family continued to argue that the Finney County judgment was void and did not constitute a legal obligation of Jose M., which is required by the terms of the liability policy to create an obligation upon American Family. The district court ruled that American Family was bound by the judgment and Medina was entitled to her underinsured but not her uninsured motorist coverage. American Family appeals. Medina subsequently attempted to cross-appeal the amount of the judgment but failed to docket the appeal.
The issues briefed by the parties are all variations on a single question, which is whether the default judgment against Jose M. is valid and enforceable despite Medina’s failure to obtain personal service on Jose M. American Family argues the judgment is void and can be given no effect. We agree.
The central fact relevant to this issue, that Jose M. was never personally served, is undisputed. Consequently, the issue raises only a question of law, which an appellate court reviews de novo. See Bank IV Wichita v. Plein, 250 Kan. 701, 705, 830 P.2d 29 (1992).
Service by publication is controlled by K.S.A. 60-307. The statute provides for publication service in actions pertaining to status or to property located within the state. K.S.A. 60-307(a)(l) through K.S.A. 60-307(a)(3). It also provides for service by publication in actions in which the defendant has left the state or is hiding within the state with the intent to avoid service. K.S.A. 60-307(a)(4). In any case, the nature of a judgment warranted by service by publication is limited unless the defendant appears personally. “If the defendant served in accordance with this section does not appear, judgment may be rendered affecting the property, res or status within the jurisdiction of the court as to the defendant, but the service shall not warrant a personal judgment against the defendant.” K.S.A. 60-307(b). See Davila v. Vanderberg, 4 Kan. App. 2d 586, 608 P.2d 1388 (1980) (affirming dismissal of personal injury suit against driver who could not be found for personal service and was served within the limitations period only by publication).
Medina argues for the first time on appeal that publication notice, coupled with the presence of Jose M.’s vehicle and last paycheck in Kansas, supports in rem jurisdiction, which she argues is all the Finney County judgment requires. This position is incon sistent with her position below that the Finney County court had personal jurisdiction over Jose M. as a result of publication notice. We disagree with Medina’s argument.
In rem jurisdiction would only support a judgment as to the identified property, the res. See K.S.A. 60-307(b). Medina’s petition sought a money judgment against Jose M. personally. That judgment could be satisfied by execution on Jose M.’s vehicle or garnishment of his last paycheck, which would be in rem actions for which service by publication might be sufficient. A judgment for monetary damages, even where likely to be satisfied by the defendant’s contractual right to indemnification under a policy of insurance, is clearly personal and not within the limitations of K.S.A. 60-307 for service by publication on a judgment affecting “property, res or status.”
Service by publication was held sufficient for a tax lien foreclosure in Phillips Petroleum Co. v. Moore, 179 Kan. 482, 297 P.2d 183 (1956). Both Medina and the district court have relied on the case. This reliance is misplaced. The case is distinguishable for the clear in rem nature of the foreclosure action involved, 179 Kan. at 489, and the dubious relevance of a 45-year-old case on the details of serving a foreign corporation under an obsolete statutory scheme of taxation. More importantly, the Phillips holding regarding service by publication has been disapproved. Pierce v. Board of County Commissioners, 200 Kan. 74, 85, 434 P.2d 858 (1967).
A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993). Consequently, an injured party may not rely on a void judgment against the tortfeasor to enforce a contract for underinsured motorist benefits.
The parties also dispute whether the Finney County judgment may be collaterally attacked. American Family argues the judgment is a nullity. Medina contends, essentially, that American Family is bound by the judgment because it had notice but chose not to intervene in the lawsuit. The Sedgwick County court declined to disturb a judgment rendered in a coequal court.
Rather than collaterally attacking the original judgment, more accurately, American Family has raised the invalidity of the underlying judgment as a defense to Medina’s action on the insurance contract. See 5 Wright & Miller, Federal Practice and Procedure § 1307 (1990). Phrased this way, the issue is more clear. Semantics aside, however, a void judgment may be attacked at any time by any person affected by it. See Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 300, 720 P.2d 1121 (1986). In contrast, a voidable judgment is valid until set aside and cannot be challenged collaterally. Bank IV Wichita, 250 Kan. at 708. A judgment shown to be void for lack of personal service on the defendant is a nullity. See Sramek, 17 Kan. App. 2d at 576-77. Consequently, it is unenforceable in a subsequent action. The Sedgwick County court may lack the power to set aside the Finney County judgment, but the Sedgwick County court should refuse to enter a judgment that is dependent upon it.
Medina correctly argues that an insurance company who elects not to intervene in an action against the tortfeasor is bound by the resulting judgment. The flaw in this argument, and in the district court’s ruling, is that there is, in reality, no judgment here. Both K.S.A. 40-284(b) and American Family’s policy predicate the obligation to provide underinsured motorist coverage on the insured’s legal entitlement to recover for his or her injuries from the driver of another vehicle. Medina relied entirely on the Finney County judgment to establish both Camacho’s liability and the extent of her damages. The Finney County judgment is a nullity and cannot be enforced against Camacho, so Medina cannot rely on it to trigger American Family’s derivative obligation. See Pickens v. Allstate Ins. Co., 17 Kan. App. 2d 670, 673, 843 P.2d 273 (1992), rev. denied 252 Kan. 1093 (1993).
Medina provides an abundance of authority for the proposition that the insurance company is bound by a judgment against the tortfeasor. However, none of the cases she cites suggests an insurance company may be obligated as a result of a default judgment based on publication service. Each case has a defendant. See Haas v. Freeman, 236 Kan. 677, Syl. ¶1, 693 P.2d 1199 (1985) (under-insured motorist carrier may intervene in action against tortfeasor; whether it does or not, it is bound by the judgment); Guillan v. Watts, 249 Kan. 606, 616-17, 822 P.2d 582 (1991) (insurance company that intervenes and becomes a party to the action is not bound by defendant’s confession of judgment, but otherwise, a court-approved judgment entered based on a settlement agreement is a judgment on the merits sufficient to bind the insurance company); Ramsey v. Chism, 249 Kan. 299, Syl. ¶1, 817 P.2d 198 (1991) (although insurance company may elect to intervene, plaintiff may not join underinsured motorist carrier as party defendant in action against tortfeasor). In the only case involving a default judgment, the defendant was apparently served but did not respond to the petition. See Pickens, 17 Kan. App. 2d at 671.
No published Kansas case addresses precisely this procedural situation. 17 Couch on Insurance 3d § 247:56 (2000), cites only a Georgia case directly on point. A search of Kansas state and federal cases has proven to be unavailing.
In Veal v. General Accident Fire & Life Assurance Corp., 128 Ga. App. 610, 197 S.E. 2d 410 (1973), the Georgia Court of Appeals affirmed summaiy judgment for the insurer in an action to enforce a prior judgment against the insured. In that case, as in the case before this court, plaintiff was unable to serve the defendant driver, attempted service by publication, and obtained a judgment. In a subsequent action to enforce the judgment against the driver’s insurance company, the insurance company contended that the judgment was void because the court did not have in personam jurisdiction over the defendant. The Georgia court noted that, by statute, a void judgment may be attacked in any court by any person. The court held that, since there was no provision under state law for acquiring jurisdiction over a defendant by service by publication, the judgment was void and summary judgment was properly granted. 128 Ga. App. at 611. See also Barnes v. Continental Insurance Company, 231 Ga. 246, 201 S.E. 2d 150 (1973) (default judgment obtained against tort defendant without personal service is void and action against liability insurer predicated upon judgment was properly dismissed); Atlanta Rent-a-Car, Inc. v. Southern General Insurance Company, 203 Ga. App. 576, 576-77, 417 S.E. 2d 213 (1992) (citing Veal, reversing judgment for unin sured motorist insurance carrier in subrogation action against self-insured because judgment in underlying action was void because defendants were served only by publication).
Finally, as American Family notes, there was never an action in which it could intervene. A civil action is not commenced until the defendant is served or enters an appearance. See K.S.A. 60-203; Davila, 4 Kan. App. 2d at 588-89. American Family cannot be obligated by a meaningless journal entry simply because of its failure to take an impossible action.
We reverse and remand with directions to enter judgment for American Family on the pleadings. | [
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Lewis, J.:
Appellant, Irving E. Boldridge, appeals from an order of the trial court awarding his ex-wife, Sophia E. Boldridge, 50% of an asset Irving acquired more than 3 years after the parties were divorced.
We reverse the decision of the trial court.
Irving and Sophia were married in 1955 and divorced in 1995. The divorce divided the assets of the parties and dissolved their marriage.
In February 1999, Irving filed a claim in the Black Farmers’ Class Action lawsuit. This was a class action brought against the United States Department of Agriculture for discrimination against African-American farmers. Irving’s claim arose from loans denied by the United States Department of Agriculture on real estate owned by Irving and Sophia during their marriage. By joining the lawsuit, Irving received $50,000 plus the sum of $12,500 paid directly to the Internal Revenue Service. Although it is clear that the claim did not exist at the time of the parties’ divorce and Irving was not guilty of fraud or any misleading conduct about that claim in the divorce action, he did not tell her about the claim at the time he made it.
After a hearing on March 17,2000, the trial court, in the exercise of its equitable powers, awarded Sophia one-half of Irving’s settlement based upon her participation in the farming operation during the 40-year marriage. Irving appeals from that decision.
As we view it, the question to be answered by this court is whether the trial court had jurisdiction to reopen the parties’ property division, which was part of the divorce decree. That question is a question of law over which our review is unlimited. See Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
A court has no continuing jurisdiction to change or modify the division of property after entering an original divorce decree. Ostrander v. Ostrander, 214 Kan. 859, 522 P.2d 183 (1974).
In this case, Irving and Sophia were officially divorced on October 30,1995, and a final property division was made at that time. Over 3 years later, Irving was approached regarding the Black Farmers’ Class Action lawsuit, he joined that class and was later awarded $50,000. Sophia concedes that Irving did not hide any information from her concerning the class action suit and did not make the claim until after the divorce was final.
K.S.A. 2000 Supp. 60-1610(b)(3) provides that matters settled by a separation agreement incorporated into a divorce decree shall not be subject to subsequent modification by the court except as prescribed by the agreement or consented to by the parties. In this case, there is no evidence of a written settlement agreement between the parties, but the finality of a divorce decree is favored in this state by statute and by case law.
While we have some uncertainty as to exactly what statute Sophia’s motion was filed under, the fact is it was filed approximately 46 months after the divorce decree had become final.
In the absence of any specific evidence to the contrary, we can only assume that the motion was filed under K.S.A. 60-260(b). That statute permits a court to reconsider issues from a final judgment under certain circumstances:
“On motion and upon such terms as are just, the court may reheve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to reheve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K.S.A. 60-309 or to set aside a judgment for fraud upon the court.”
As we stated earlier, it appears there was no written settlement agreement between the parties as neither party has produced such an agreement. If no such agreement existed, then K.S.A. 60-260(b) requires that a motion for relief be filed within a reasonable amount of time or within 1 year after the judgment takes effect as to the grounds stated in subparagraphs (1), (2), and (3). It is perfectly obvious that the motion in this case was not filed within 1 year after the judgment took effect. This would eliminate all grounds other than grounds (1), (2), and (3) as possible grounds for reopening the divorce decree. However, in order for the court to have had jurisdiction under those grounds, the motion must have been filed within a reasonable time.
The record clearly shows that Irving did not conceal property during the time the decree of divorce was entered. The class action lawsuit in which he joined had not even been contemplated at the time his divorce was granted. We conclude the passage of 46 months from the time the divorce decree was filed to the time the motion was filed is an unreasonable period of time. Accordingly, the trial court would have had no authority under any of the provisions of 60-260(b) to reopen the divorce decree and to modify it.
We hold the trial court did not have jurisdiction to modify the divorce decree or to award one-half of Irving’s lawsuit settlement to Sophia. It is possible that Sophia could have filed a separate cause of action for her share in the proceeds, but we conclude that a modification of the divorce decree was not within the jurisdiction of the trial court.
Our decision that the trial court was without jurisdiction to modify the divorce decree renders the other issues raised moot, and we do not reach those issues.
We reverse the decision of the trial court attempting to reopen the divorce decree of the parties and awarding Sophia one-half of Irving’s settlement in the Black Farmers’ Class Action lawsuit.
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PADDOCK, J.:
Bany Albin, father of the defendant Benjamin J. Albin, was subpoenaed to appear at a deposition scheduled by the plaintiff, Dayla Bond. Albin failed to appear at the deposition and was found in indirect contempt for his inattendance.
Although Albin purged himself of contempt by attending a rescheduled deposition, he was ordered to pay Bond’s costs and expenses for the unattended deposition and the contempt proceedings. Albin appeals.
We affirm.
Albin claims multiple errors by the district court that require reversal. He opines that procedural errors deprived him of due process.
Statutory Procedure
Albin claims the district court lacked jurisdiction to find him in contempt because it failed to comply with the mandatory provisions of K.S.A. 1999 Supp. 20-1204a. Just as failure to comply with K.S.A.-20-1203 in a direct contempt action is jurisdictional, see State v. Jenkins, 263 Kan. 351, 357, 950 P.2d 1338 (1997), so too is the failure to comply with the procedural requirements of K.S.A. 1999 Supp. 20-1204a, concerning indirect contempt. In interpreting statutory requirements, an appellate court has unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
Albin argues that there was no underlying order that if violated would trigger the contempt proceeding. He is incorrect. Albin was served with a subpoena to appear at the deposition scheduled for August 25,1999. The subpoena, which he ignored, constituted the underlying order referred to in K.S.A. 1999 Supp. 20-1204a(a) as “an order in a civil action.” His failure to comply with the subpoena was the basis for the order that he appear and show cause why he should not be found in indirect contempt.
Furthermore, the fact that the subpoena was issued by a certified shorthand reporter who was to record the deposition did not detract from the subpoena being an order. K.S.A. 1999 Supp. 60-245(a)(2) authorizes a subpoena for taking depositions to be issued by the officer before whom the deposition is to be taken. K.S.A. 1999 Supp. 60-245(e) permits a finding of contempt of court for failure to obey a subpoena to appear for a deposition. Albin has failed to cite authority that would support an argument that K.S.A. 1999 Supp. 60-245(e) would be applicable only to a subpoena issued by a judge. When a statute is plain and unambiguous, the appellate courts will not speculate as to legislative intent behind it and will not read such statute as to add something not readily found therein. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
Albin claims that when he failed to appear at the March 3, 2000, contempt hearing the district court should have issued a warrant for his arrest pursuant to K.S.A. 1999 Supp. 20-1204a(c), rather than proceeding in his absence to hear the contempt charge. This claim lacks merit.
K.S.A. 1999 Supp. 20-1204a(c) provides, in pertinent part: “If, after proper service of the order to appear and show cause, the person served should not appear in court as ordered, . . . the court may issue a bench warrant commanding that the person be brought before the court to answer for contempt.”
Albin did appear in court on November 24, 1999, in response to the court’s order to appear and show cause; thus, there was no reason to issue a bench warrant.
At the November 24, 1999, hearing, the district court found it did not have time for a full show cause hearing and continued the hearing to March 3, 2000. The court also directed Albin to appear at the rescheduled deposition on November 29, 1999. At the November 29, 1999, deposition, Abin was served with a contempt citation along with a copy of the court’s order rescheduling the contempt hearing.
Abin failed to appear at the March 3, 2000, hearing. The court determined that Abin’s failure to appear at the August 25, 1999, deposition constituted an indirect contempt. It further found that Abin had purged himself of contempt by attending the rescheduled deposition. However, the court assessed the costs of the unattended deposition and the contempt proceedings to Abin. Abin was notified of the date and time of the hearing, and his decision to not appear did not require that he be conducted to the hearing by means of an arrest warrant in order for the hearing to take place.
Right to a fury Trial
Abin claims it was error for the district court to deny his request for a juiy trial to determine the contempt issue. Bond argues Albin did not raise this issue before the district court and, thus, it is not properly before this court on appeal. Bond is incorrect. Abin moved the court for a jury to hear the contempt charge. He claimed he had a constitutional right to have a punitive contempt charge heard by a jury. His request was denied. The issue is properly before us on appeal.
Due process requires fewer procedural safeguards for contempt sanctions which are remedial, rather than punitive in nature. See Mine Workers v. Bagwell, 512 U.S. 821, 831, 129 L. Ed. 2d 642, 114 S. Ct. 2552 (1994). A contempt sanction is remedial if it is designed to compensate the complainant for an injury produced by the contemnor’s conduct. 512 U.S. at 827, 829. Remedial sanctions have never been considered criminal and do not require the full panoply of protection afforded a criminal proceeding. 512 U.S. at 833. A jury trial is not required in these circumstances. 512 U.S. at 831-33 (specifying that a jury trial is necessary where the court intends to impose a serious criminal penalty).
In the instant case, the sanctions were not a criminal penalty but were designed to compensate Bond for the costs she incurred because of Albin’s delinquency. The sanctions were remedial, not punitive. Albin was not entitled to a jury trial.
Failure to Recuse
On appeal, Albin claims the district judge was biased by showing partiality to Bond and because the judge was a potential witness in the case. Albin contends the judge should have recused from the March 3, 2000, hearing. Albin did not provide an affidavit attesting to the judge’s bias or impropriety. See K.S.A. 1999 Supp. 20-311d. He has failed to establish his burden of designating a record demonstrating trial error. See In re B.M.B., 264 Kan. 417, 435, 955 P.2d 1302 (1998). Moreover, the issue was not presented to the district court, and it will not be considered on appeal. See Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999).
Refusal to Grant Protective Order
Next, Albin raises several issues dealing with the district court’s refusal to grant a protective order against his being deposed.
Existence of Privilege
First, Albin claims a family relationship privilege to not testify as to the whereabouts of his son for purposes of service of process in the underlying case.
K.S.A. 60-407 abolishes the privilege from testifying, except as otherwise provided by statute. Kansas law does not provide a privilege for a father-son relationship. See generally K.S.A. 60-423 et seq. Albin has failed to cite any authority supporting his argument for a constitutional or statutory privilege not to testify.
Right to Evade Service of Process
Albin claims the district court erred in commenting on his effort to evade the service of the subpoena to appear for the deposition. He argues he had no duty to make himself available for service of process. He argues that the district court, in effect, penalized him for exercising his constitutional right to refrain from socializing with certain persons.
The record supports a conclusion that Albin fully exercised his claimed right not to associate with the process server. However, until the service of the subpoena was made, the district court did not attempt to exercise jurisdiction over him. Thus, it is difficult to see how he was penalized.
Moreover, Albin unfortunately failed to recognize his duty as an attorney to avoid dilatory practices designed to protract litigation. See Kansas Rules of Professional Conduct (KRPC) 3.2 (1999 Kan. Ct. R. Annot. 362). Also, a lawyer is obligated to refrain from “unlawfully obstructing] another party’s access to evidence . . . .” KRPC 3.4 (1999 Kan. Ct. R. Annot. 369).
Albin’s evasion of service of the subpoena delayed discovery and impeded Bond’s access to potentially material evidence. Such conduct is unacceptable behavior for a member of the legal profession. A lawyer is required to refrain from the exercise of certain rights allowed most citizens. See, e.g., Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978) (permitting the State bar to impose limited restrictions on an attorney’s ability to advertise).
Timing of the Deposition
Albin claims the service of the subpoena on him on the day before the scheduled deposition deprived him of sufficient time to respond. This claim is not only without merit but borders on being frivolous. If Albin s evasion of service prevented his receiving the subpoena until the day before the scheduled deposition, he cannot claim error in having insufficient time to respond. This is a logical extension of the well-established invited error rule. See Catholic Housing Services, Inc. v. State Dept. of SRS, 256 Kan. 470, 476, 886 P.2d 835 (1994) (extending the invited error rule to encompass procedural problems caused by movant in administrative proceedings).
Sanctions
Finally, Albin claims the district court erred in assessing the costs and expenses of the deposition and the contempt proceeding to him. Review of the sanctions imposed for contempt is limited to whether the district court abused its discretion. See Jenkins, 263 Kan. at 356.
Here, the costs and expenses assessed to Albin were designed to compensate Bond for a financial loss occasioned by the inappropriate behavior of Albin. The sanctions imposed are reasonable and authorized by law. See K.S.A. 1999 Supp. 20-1204a(b). The district court did .not abuse its discretion in assessing the costs and expenses of the unattended deposition and the contempt proceedings to Albin.
Bond has filed a motion for attorney fees pursuant to Supreme Court Rule 7.07(b) (1999 Kan. Ct. R. Annot. 50), which provides that appellate courts may award attorney fees on appeal in any case in which the district court had authority to award attorney fees. K.S.A. 1999 Supp. 20-1204a(b) grants the district court such authority. Bond’s motion for attorney fees is granted.
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Beier, J.:
Douglas Jones appeals the district judge’s denial of his motions for Christy Walker to pay one-half of a child custody evaluator’s fee and for enforcement of a child custody order. We affirm.
This case originated on September 22, 1998, when Jones filed a petition to establish his paternity and obtain joint and residential custody of Walker’s 4-day-old child. Numerous motions followed, the bulk of which are not directly at issue here, both before and after the parties reached an agreement on custody, support, and visitation. Walker had temporary residential custody of the couple’s son. And, at the time of the parties’ agreement on that point, a custody evaluation was ordered.
A hearing on various motions filed by the parties was held July 11, 2000. Among other things, Jones’ sought an order forcing Walker to pay a proportional share of the $2,282.55 Jones had paid to the custody evaluator. On appeal, Jones seizes upon several comments made by the district judge at that hearing:
“I think both parties have exhibited due—or both counsel have exhibited due diligence throughout this case raising every single legal issue and factual issue in support of their clients that they can think of and I will just comment in that way both of you presented your case about as well as you can.”
“[Bjoth of you are very genuine and sincere in your presentation of your client’s cases.”
“These parties have both raised legal issues that they believe very sincerely in . . . .”
The judge’s letter order followed 3 days later. It read in pertinent part:
“Dr. Jones advanced Dr. Maxfield’s custody evaluator fee and requests that the Court assign some or all of those fees to Christy Walker. The applicable statute is K.S.A. 38-1122. The Court will assign Dr. Maxfield’s fees to Dr. Jones and will not order any reimbursement from Ms. Walker. Ordinarily, this Court apportions fees of an appointed custody evaluator between the parents. However, Dr. Jones’ leave-no-stone-untumed trial strategy caused the expenditure of more resources by both parties than was necessary. For this reason, Dr. Jones shall be solely responsible for Dr. Maxfield’s fees.”
On August 21, 2000, Jones filed a motion seeking additional findings of fact and conclusions of law regarding his motion to enforce. The district court denied the motion, finding he had already made the relevant findings.
On appeal, Jones argues the district court abused its discretion by denying his motion regarding the evaluator’s fee because insufficient evidence supported the district judge’s statement that Jones’ “leave-no-stone-untumed trial strategy caused the expenditure of more resources by both parties than was necessaiy.” He also argues that the mling constituted a violation of his equal protection and due process rights.
K.S.A. 38-1122 provides:
“The court may order reasonable fees of counsel and the child’s guardian ad litem, and other expenses of the action, including blood tests, to be paid by the parties in proportions and at times determined by the court. . . . Afterpayment, the court may tax all, part or none of the expenses as costs in the action.”
In other words, the district judge had discretion to determine who would be responsible for the cost of the custody evaluation. Judicial discretion is abused only when no reasonable person would adopt the view of the district court. State v. Bey, 270 Kan. 544, 546, 17 P.3d 322 (2001).
Jones’ argument emphasizes the differences in the judge’s oral statements at the July 11 hearing and his comment in the July 14 letter order. The two do appear, at first glance, to contradict one another. However, we perceive a distinction between the judge’s comments at the hearing in which he complimented the work of both parties’ counsel and made a record of the sincerity of the parties’ beliefs on the one hand and the judge’s order recognizing the expense of Jones’ persistence in litigating every aspect of his beliefs. The judge was, after all was said and done, unfavorably impressed by a litigant who filed a motion to change physical custody of an infant barely old enough to leave the hospital nursery and who sought, among other things, to obtain psychological records and testimony about the woman he had agreed should have temporary custody. It is understandable if the district judge concluded that Jones, no matter how sincere his beliefs, had demonstrated his determination to win regardless of the monetary and emotional costs involved.
Jones’ constitutional arguments also fail. In order for him to prevail on his equal protection claim, he must have demonstrated that he and Walker were similarly situated. They were not. At the time of the motion, the evidence showed that Jones earned more than $40,000 a year while Walker earned only $24,000 a year. According to counsel’s statements at oral argument, that disparity has grown since Jones completed his medical residency.
Jones also cannot show a denial of due process of law. The district judge was permitted to allocate tire cost of the child custody evaluation to Jones under K.S.A. 38-1122. The cost was not imposed on him as punishment because he pursued vindication of his rights in court. He was the one who sought the evaluation in the first place, and his ability to pay simply exceeded that of his adversary. Furthermore, the record reflects that Jones continued to argue against the evaluation’s recommendation that the child re side with his mother. Jones’ access to the court was hardly hampered or deterred.
Jones’ second appellate issue is that the district judge made insufficient findings of fact in denying Jones’ motion to enforce. He is correct that there were no written findings of fact and conclusions of law. Rather, the judge simply referred Jones to the judge’s comments on the record at the hearing.
Jones apparently wanted specific answers to the questions of whether Walker violated the custody order by not notifying him that she had sold her house, by making unilateral medical decisions concerning their son, by making unilateral decisions concerning who would transport their son to day care and what diet he would eat while there, and by refusing to give Jones a copy of their child’s social security card.
Regardless of whether the district judge could have or should have made written findings and conclusions, the record is entirely adequate to support the denial of the motion to enforce. Jones fundamentally misunderstands the nature of his joint legal custody of his son. It permits him to participate in the most important of the decisions affecting his child’s life. It does not give him moment-to-moment input, much less the veto power he evidently desires, over every large and small choice about child rearing made by his child’s mother, the residential custodian. The judge recognized that both parents could do a better job of communicating with one another. Jones was entitled to nothing more.
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Gernon, J.:
This appeal concerns a district court’s order which vacated an arbitration award of attorney fees and motion for sum mary judgment. Heartland Premier, Ltd. (Heartland), the appellant, also appeals the trial court’s denial of its application to confirm the arbitration award and its requests for costs and fees. Group B and B, L.L.C., (Group B) is the appellee.
Heartland entered into a redemption agreement with some of its shareholders to redeem their shares. The agreement contained an arbitration clause. Group B was formed after the execution of the redemption agreement, and there is no issue as to whether it is a proper party to the agreement and its arbitration clause.
The arbitration clause states:
“Arbitration. All disputes and controversies of every kind and nature between the parties to this agreement arising out of or in connection with this agreement as to the existence, construction, validity, interpretation or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination thereof shall be submitted to arbitration in accordance with the rules of the American Arbitration Association most closely applicable to the nature of the dispute considering the nature of the business of the parties. Any order rendered therein shall be final and binding on the parties and judgment may be entered thereon in any court of competent jurisdiction.”
Group B, pursuant to the arbitration clause, filed a Demand for Arbitration with the American Arbitration Association (AAA). In the arbitration pleadings and prehearing briefs, both parties requested attorney fees.
The arbitrator denied all claims made by the parties but awarded Heartland a total of $15,177.98 for fees and expenses, $13,102.98 of which was for attorney fees. Group B paid a portion of the award but refused to pay the attorney fees.
Heartland filed a petition with the district court for confirmation of the arbitration award and for a judgment on the award. Heartland also requested an award of all costs and attorney fees incurred as a result of filing the petition and obtaining the judgment. Group B filed an application to vacate the award of attorney fees and motion for summary judgment on the grounds that the arbitrator exceeded his powers in awarding such fees.
The district court treated Group B’s pleadings as a motion for summary judgment and adopted Group B’s reasoning and position. The district court granted Group B’s application to vacate the award and motion for summary judgment and denied Heartland’s application to confirm the award, finding that the arbitrator exceeded his powers in awarding the attorney fees. In addition, the court denied Heartland’s request for attorney fees in seeking to confirm the award. Heartland appeals.
Heartland argues that the district court lacked authority to vacate the award. We agree.
Generally, when parties have agreed to be bound to a submission to arbitration, errors of law and fact, or an erroneous decision of a matter submitted to the arbitrator, are insufficient to invalidate an award that has been fairly made. Even though incorrectly decided, nothing in the award that relates to the merits of the controversy is grounds for setting aside the award in the absence of fraud, misconduct, or other valid objection. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 689, 751 P.2d 122 (1988).
In requesting that the arbitrator’s award be confirmed, Heartland stated in its petition to the district court that it came pursuant to K.S.A. 5-401 et seq. K.S.A. 5-411 states: “Upon application of a party, the court shall confirm an [arbitration] award, unless within the time limits . . . grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in K.S.A. 5-412 and 5-413.” K.S.A. 5-412 states in pertinent part: “Upon application of a party, the court shall vacate an award where . . . [t]he arbitrators exceeded their powers.” K.S.A. 5-412(a)(3).
In its application to vacate the award and a motion for summary judgment, Group B maintained that the arbitrator exceeded the scope of his authority in awarding Heartland attorney fees. Heartland and Group B differed in their interpretation of the redemption agreement.
The task of the trial court was to interpret a written instrument. It is now our task also.
This dispute focuses on which version of the AAA Commercial Arbitration Rules applies. Heartland argues the 1999 version is applicable, while Group B contends the 1998 version applies.
In 1998, AAA Commercial Arbitration Rule 1 was entitled “Agreement of Parties” and stated:
“The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the American Arbitration Association (hereinafter AAA) or under its Commercial Arbitration Rules. These rules and any amendment of them shall apply in the form obtained at the time the demand for arbitration or submission agreement is received by the AAA. The parties, by written agreement, may vary the procedures set forth in the rules.” (Emphasis added.)
The redemption agreement was executed in 1998. Group B made its demand for arbitration in March 1999. Based on the clear language of the 1998 AAA Commercial Arbitration Rules, specifically Rule 1, any amendment of the 1998 rules that was in effect in March 1999 would apply to the arbitration.
“Generally, courts seek to uphold arbitration agreements even where the contract provisions are somewhat uncertain and indefinite. Arbitration agreements are construed ‘by the usual rules and canons of contract interpretation.’ ” [Citation omitted.] City of Lenexa v. C.L. Fairley Constr. Co., 245 Kan. 316, 319, 777 P.2d 851 (1989).
Parties are presumed to contract with reference to presently existing statutes, ordinances, and regulations. Steele v. Latimer, 214 Kan. 329, 336, 521 P.2d 304 (1974). Thus, it is often said that all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law at the time the contract was made become a part of the contract and must be read into it, unless a contrary intention is shown. 214 Kan. at 336. Applying this rule of contract interpretation, the 1998 AAA Commercial Arbitration Rules apply and must be read into the contract.
In 1998, Rule 43 of the AAA Commercial Arbitration Rules, entitled “Scope of Award,” stated:
“The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, including, but not limited to, specific performance of a contract. The arbitrator shall, in the award, assess arbitration fees, expenses, and compensation as provided in Sections 48, 49, and 50 in favor of any party and, in the event that any administrative fees or expenses are due the AAA, in favor of the AAA.”
Effective January 1,1999, AAA Commercial Arbitration Rule 45 became the rule entitled “Scope of Award.” Rule 45 included the language of the old Rule 43, but was amended to also state: “The award of the arbitrator(s) may include: ... an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.” 1999 AAA Commercial Arbitration Rule 45(d).
We conclude that the arbitration clause of the redemption agreement included the action on attorney fees taken here. The district court erred when it set aside the arbitrator’s award.
Heartland next argues that the district court erred in adopting Group B’s reasoning that K.S.A. 5-410 prohibited the arbitrator from awarding attorney fees.
K.S.A. 5-410 states: “Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration shall be paid as provided in the award.” (Emphasis added.) By incorporating the AAA rules into the agreement, the parties “otherwise provided” that attorney fees may be included in the arbitrator’s award. K.S.A. 5-410 does not preclude an award of attorney fees.
We reverse and remand with directions that the district court enter judgment on behalf of Heartland in the amount the arbitrator awarded for attorney fees, $13,102.98.
We affirm the denial of costs and fees associated with confirming the award in the district court. | [
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Beier, J.:
Jason Hoffman, Special Administrator for the Estate of Frank Teske, appeals the district court’s denial of his motion for summary judgment in Donna Yoh’s personal injury action. The district judge rejected the Teske estate’s statute of limitations defense. We affirm.
A brief review of the facts is necessary to an understanding of our decision.
Plaintiff Yoh was injured in a May 23,1996, car accident. Teske was the driver of the other car and was insured by Allied Mutual Insurance Company (Allied). Allied began corresponding with Yoh. Several months later, Teske died. Neither Teske’s widow nor Allied informed Yoh of this fact.
On April 22, 1998, plaintiff filed this personal injury action against Teske, contending his negligence caused the accident. The return of service indicated that Teske had been served by delivery of the petition and summons to his residence.
On May 18, 1998, attorney Craig Blumreich filed an answer on behalf of Teske, signing the pleading as “Attorneys for Defendant.” The answer asserted numerous affirmative defenses, including insufficient process and service of process, lack of personal jurisdiction, and lack of capacity, but it said nothing about Teske’s death almost a year earlier. No motion was filed to adjudicate any of the asserted defenses.
Yoh and her counsel remained in the dark about Teske’s death until March 15, 1999, when counsel was finally informed during a case management conference. Yoh filed a motion to amend the petition to name Hoffman on June 9, 1999, and the amended petition was filed July 1, 1999.
The estate filed a motion for summary judgment, contending the statute of limitations had expired before Yoh served the special administrator. The district judge found the suit was properly filed within the tort statute of hmitations under K.S.A. 60-203(b) and K.S.A. 2000 Supp. 60-215(c). She further found that defendant’s argument invoking K.S.A. 59-2239 to bar the claim in a probate action was moot. Plaintiff prevailed on the merits and was awarded damages of $30,000.
“Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal, the Court of Appeals applies the same standards as the trial court.” Dawson v. Givens Const. Co., 27 Kan. App. 2d 1042, 1046, 11 P.3d 81, rev. denied 270 Kan. 897 (2000). Likewise, “[t]he interpretation and application of a statute of hmitations is a question of law for which the court’s review is unlimited.” Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
K.S.A. 60-203 governs when a suit is commenced:
“(a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is Bled, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).
“(b) If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.”
The district judge quoted Grimmett v. Burke, 21 Kan. App. 2d 638, 647-48, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996), for its interpretation of the purported service provision of 60-203(b):
“We hold that before it can be said that service has purported to have been made,’ it must be shown that a defendant was given actual notice of having been sued. We also conclude that the following factors should exist: (1) The original service must have ‘appeared’ to be valid and the returns by the sheriffs office or other process servers must indicate that the service was valid. (2) The record should show that the plaintiff believed in good faith that his or her service was valid and relied on that validity to his or her detriment. (3) The plaintiff had no reason to believe the defendant was contesting service until after the statute of limitations had run, but had no opportunity to take steps to correct the defective service.”
The district judge correctly noted that the original residential service on Teske appeared to be valid and that the plaintiff believed in good faith she had good service until informed otherwise at the March 1999 case management conference. Reading 60-203 liberally, as encouraged by Hughes v. Martin, 240 Kan. 370, 373-76, 729 P.2d 1200 (1986), the district judge discounted the argument that the purported service had not actually informed the administrator of Teske’s estate because he had not yet been appointed. It was enough that the insurance company was notified, she said. The judge also said that plaintiff had no reason to know service was being contested because no motion to dismiss on insufficiency of process or service of process ever followed the original answer’s invocation of those defenses. She also regarded the ultimate service of the amended petition as within the 90-day time period set forth in 60-203(b) because no formal adjudication of the insufficiency of service had ever occurred.
We disagree with this application of60-203(b). Without a formal adjudication on the merits of a defense of insufficiency of process or service of process, we would not reach the Grimmett factors or apply K.S.A. 60-203(b).
We agree with the district judge, however, that K.S.A. 2000 Supp. 60-215(c) would save the plaintiffs cause of action from a statute of limitations bar. Under 60-215(c),
“[a]n amendment of a pleading relates back to the filing of the original pleading when:
“(1) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, occurrence set forth or attempted to be set forth in the original pleading; or
“(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by law for commencing the action against the party including the period for service of process under K.S.A. 60-203 and amendments thereto, the party to be brought in by amendment: (A) Has received such notice of the institution of the action that the party would not be prejudiced in maintaining a defense on the merits; and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.”
In this case, there is no question that subsection (1) is satisfied. As to notice and knowledge of plaintiff s mistake, both the insurance company that bears the ultimate liability and the attorney hired by it to defend Teske and the administrator of his estate were fully aware of plaintiff s ignorance of Teske’s death at the time of the filing of the original petition. Indeed, they ensured that an answer was filed to protect the “defendant’s” rights and their secret. Under the circumstances, no prejudice to the defense was possible. Both Allied and Blumreich knew that, but for plaintiff s mistake, an administrator would have been appointed and the estate sued. The artifice of the answer was designed to prevent plaintiff from taking exactly those steps to protect her rights. We hold that the amended petition related back to the filing of the original petition under K.S.A. 2000 Supp. 60-215(c).
There is at least one other reason that the district court’s decision to reject defendant’s motion for summary judgment should be upheld, and we will speak plainly: Knowingly filing a pleading on behalf of a dead person as though he or she is still alive is fraud.
It is apparent here that the estate, its counsel, and the insurance company paying counsel’s fees conspired in a long-term, deliberate deception of their opponent and the court. When Blumreich signed the answer as “Attorneys for Defendant,” he knew he had no client in existence. The appropriate course was to stand silent or to inform opposing counsel and the court of this fact. It was completely inappropriate to file an answer calculated to mislead by hiding the true state of affairs behind vague boilerplate defenses.
The answer was filed 5 days before the 2-year statute of limitations expired on May 23, 1998. But for the fraud engaged in by the defense, Yoh and her counsel would have known of Teske’s death and been able to pursue the opening of the estate, the appointment of a special administrator, and the amendment of their petition before the statute of limitations ran. They would not have had to rely on relation back of an amended petition filed after the fraud was revealed.
This situation is analogous to that covered by K.S.A. 60-517, which tolls the statute of limitations when a defendant has concealed himself or herself from the plaintiff. See Morris v. Morris, 27 Kan. App. 2d 1014, 10 P.3d 771, rev. denied 270 Kan. 899 (2000). We do not know the circumstances of Teske’s exit from this world and do not hold him responsible for keeping us or anyone informed of his whereabouts in any afterlife. But we certainly hold Blumreich and Allied responsible for representing to the court and to plaintiff that Teske never left this valley of tears before the statute of limitations ran. Their fraud tolled the statute of limitations and made summary judgment for the estate unavailable.
Finally, we also agree with the district court that any argument invoking K.S.A. 59-2239, the nonclaim statute, is now moot. Subsection (2) of 59-2239 specifically provides that a tort action may be commenced against the estate of a deceased tortfeasor as long as it is brought within the tort statute of limitations. We have found, for at least two reasons, that this lawsuit was timely under the 2-year tort statute. We also note that, in In re Estate of Reynolds, 266 Kan. 449, 456, 970 P.2d 537 (1998), the Supreme Court stated that fraud or unconscionable conduct excused any noncompliance with the nonclaim statute’s otherwise jurisdictional time limit.
If necessary, we believe it would have done so here.
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Green, J.:
Christina R. Powers appeals from the judgment of the trial court revoking her probation. On appeal, Powers contends that because her signed voluntary extension of probation order was not filed until after her probation period had expired, the trial court lost jurisdiction to later revoke her probation. We disagree and affirm.
Powers was convicted of obstruction of official duty, a class A misdemeanor, and was sentenced to 6 months in the county jail and granted 12 months’ probation after serving 60 days. Powers appealed her conviction, and this court affirmed in an unpublished opinion, State v. Powers, case No. 77,318, filed February 13,1998.
After serving 60 days in the county jail, Powers’ probation started on July 17, 1998. She signed a voluntary extension of probation order on July 15, 1999, 2 days before the end of her probationary period. The voluntary extension of probation order increased the length of Powers’ probation from July 17,1999, until July 17,2000. The voluntary extension of probation order, however, was not filed with the court until July 19, 1999.
The State moved to revoke Powers’ probation. At the revocation hearing, Powers argued that the trial court lost jurisdiction over her because the extension order was filed after her probation ended on July 17,1999. Therefore, the trial court could not revoke Powers’ probation.
Rejecting Powers’ argument, the trial court determined that it had jurisdiction to extend the probation because July 17,1999, fell on a Saturday. The trial court revoked Powers’ probation and ordered her to serve her remaining sentence.
Whether a trial court has jurisdiction to revoke probation is a question of law over which an appellate court has unlimited review. State v. Wonders, 27 Kan. App. 2d 588, 589, 8 P.3d 8, rev. denied 269 Kan. 940 (2000). Furthermore, whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
K.S.A. 2000 Supp. 21-4611(c)(8) provides:
“The court may modify or extend the offender’s period of supervision, pursuant to a modification hearing and a judicial finding of necessity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term.”
Accordingly, Powers’ probation, including the 12-month extension, did not exceed the statutory maximum period of probation.
K.S.A. 2000 Supp. 60-206(a) provides:
“In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. . . . When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method for computing such time is not otherwise specifically provided, the method prescribed herein shall apply.”
This computation-of-time statute was applied to the criminal procedure in State v. White, 234 Kan. 340, 673 P.2d 1106 (1983). In .White, the 180-day speedy trial period ended on Saturday, and the trial commenced on Monday. After acknowledging there was no other method for computing the days, our Supreme Court determined that the defendant was properly brought to trial within the 180-day speedy trial provision. 234 Kan. at 345. In State v. Wilson, 15 Kan. App. 2d 308, 311, 808 P.2d 434 (1991), this court applied 60-206(a) in calculating the time to file a notice of appeal from the magistrate’s judgment to the district court. Finally, in State v. Ji, 255 Kan. 101, 872 P.2d 748 (1994), our Supreme Court applied 60-206(a) in computing the time to appeal the denial of a motion for modification of sentence.
K.S.A. 2000 Supp. 60-206(a) provides that when the last day of the period to be computed falls on a Saturday, a Sunday, or a legal holiday the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The voluntary extension of probation order was filed on Monday, July 19,1999. The White reasoning can be applied to the present case. We conclude that by applying K.S.A. 2000 Supp. 60-206(a) to the present case, the voluntary extension of probation order was filed within the time of expiration of Powers’ probation. As a result, the trial court had jurisdiction to revoke her probation.
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Brazil, J.:
Defendant Jon L. Whitesell was convicted in October 1998, following a jury trial, of stalking in violation of K.S.A. 21-3438(a), a severity level 10 person felony. Though the presumptive sentence was 24 months’ probation, the sentencing court granted the State’s motion for an upward departure and sentenced Whitesell to 60 months’ probation.
Whitesell appealed his conviction and sentence to this court, and the appeal was transferred to the Kansas Supreme Court pursuant to K.S.A. 20-3018(c). See State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000) [Whitesell I). In August 2000, while the appeal in Whitesell I was pending before the Supreme Court, the State filed a motion with the sentencing court “For Continuation or Extension of Nonprison Sanction.” The sentencing court granted the motion and ordered Whitesell’s probation to be extended until December 23, 2003. Though this order did not change the length of the pro bation term, it did limit the appealability of the sentence as discussed below. It is from this order that Whitesell now appeals.
The Supreme Court filed its decision in Whitesell I on December 8, 2000. Of particular interest to this appeal, the Supreme Court vacated Whitesell’s original sentence of 60 months’ probation, holding the sentencing court had failed to comply with K.S.A. 1997 Supp. 21-4716(a), which specifically requires the sentencing court to state on the record the substantial and compelling reasons for departure at the time of sentencing. See Whitesell, 270 Kan. at 294. On remand, the sentencing court was allowed to cite on the record the substantial and compelling reasons for departure. 270 Kan. at 294 (citing State v. Peterson, 25 Kan. App. 2d 354, 358, 964 P.2d 695 [1998]).
The initial question to be resolved is whether the district court had jurisdiction to modify its sentence of 60 months’ probation while Whitesell’s appeal of that sentence was pending before the Kansas Supreme Court.
Whitesell argues State v. Gibbons, 256 Kan. 951, 966-67, 889 P.2d 772 (1995), controls. In Gibbons, based on the specific statutoiy provisions of K.S.A. 21-4603(d)(l) and (2), the Supreme Court held that once a criminal appeal is docketed, the trial court’s jurisdiction ends and any further modification of the sentence may only occur once the sentencing court receives the mandate from the appellate court. The problem with Whitesell’s argument is that K.S.A. 21-4603(d)(l) and (2) only apply to crimes committed before July 1,1993. The crime Whitesell was convicted of was alleged to have occurred in July 1997.
The proper rule under the Kansas Sentencing Guidelines Act was stated in State v. Smith, 26 Kan. App. 2d 272, 273, 981 P.2d 1182 (1999):
“When enacting the Kansas Sentencing Guidelines Act (KSGA), the legislature deliberately ehminated the district court’s authority to modify a sentence. [Citations omitted.] “When a lawful sentence has been imposed under [the] KSGA, the sentencing court has no jurisdiction to modify that sentence except to correct “arithmetic or clerical errors” pursuant to K.S.A. 21-4721(i).’ ”
However, certain changes made by the 2000 legislature conferred on the district court jurisdiction to modify Whitesell’s sen tence. Whitesell’s original sentence of 60 months’ probation was controlled by K.S.A. 1997 Supp. 21-4611(c)(l)(B), which provided that the recommended sentence for the crime of conviction was a probation term of 24 months. This recommended term of probation was subject to departure pursuant to 21-4716, which the sentencing court used to impose an upward departure of 60 months’ probation.
However, L. 2000, ch. 182, § 6 (codified at K.S.A. 2000 Supp. 21-4611 and referenced as such herein) altered the sentencing scheme in effect when Whitesell committed the crime of conviction. K.S.A. 2000 Supp. 21-4611(c)(3) now states the probation term for those who stand convicted of a severity level 10 crime shall be up to 12 months in length. However, the district court’s discretion in sentencing those convicted of severity level 10 crimes was not totally eliminated by the 2000 legislation. K.S.A. 2000 Supp. 21-4611(c)(5) allows the district court to impose a longer term of probation on those convicted of a severity level 10 felony when the court “finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized.”
The new legislation specifically made this new sentencing scheme retroactive and directed the sentencing court to review the sentences of all persons serving a nonprison sentence for a severity level 10 felony and bring them into conformity with K.S.A. 2000 Supp. 21-4611(c) on or before September 1, 2000. K.S.A. -2000 Supp. 21-4611(d). The district court relied on these legislative changes in holding it had jurisdiction to modify Whitesell’s sentence. The State continues this argument on appeal.
The legislature is presumed to act with knowledge of relevant judicial decisions. State v. Creamer, 26 Kan. App. 2d 914, 920, 996 P.2d 339 (2000). Therefore, we presume the legislature was aware of Smith, 26 Kan. App. 2d 272, when enacting K.S.A. 2000 Supp. 21-4611. Our holding in Smith directly conflicts with K.S.A. 2000 Supp. 21-4611(c)(5) and K.S.A. 2000 Supp. 21-4611(d).
Statutory interpretation is a question of law, and our review is unlimited. State v. Stuber, 27 Kan. App. 2d 160, 177, 1 P.3d 333, rev. denied 269 Kan. 940, cert. denied 531 U.S. 945 (2000).
The fundamental rule of statutoiy construction is that the intent of the legislature governs when it can be ascertained. State v. Bowie, 268 Kan. 794, 795, 999 P.2d 947 (2000).
When a conflict exists, the most recent enactment controls. See 26 Kan. App. 2d at 920. K.S.A. 2000 Supp. 21-4611(c)(5) and K.S.A. 2000 Supp. 21-4611(d) are the most recent enactments and expressions of legislative intent. Therefore, based on K.S.A. 2000 Supp. 21-4611(c)(5) and K.S.A. 2000 Supp. 21-4611(d), the district court had jurisdiction to modify Whitesell’s sentence as provided by that statute.
Whitesell next argues that the sentencing court’s order violated the Ex Post Facto Clause of tire United States Constitution. The State argues we have no jurisdiction to consider this appeal of a presumptive sentence. We agree.
The district court resentenced Whitesell pursuant to K.S.A. 2000 Supp. 21-4611. As noted above, K.S.A. 2000 Supp. 21-4611 mandates that the sentence for a person convicted of a severity level 10 felony be up to 12 months’ probation or assignment to a community correctional services program and that this sentence applies retroactively to those already serving a nonprison sentence. See K.S.A. 2000 Supp. 21-4611(c)(3) and (d). K.S.A. 2000 Supp. 21-4611(c)(5) allows the district court to increase the length of probation upon certain particularized findings. Such an increase in the length of probation “shall not be considered a departure and shall not be subject to appeal.” K.S.A. 2000 Supp. 21-4611(c)(5).
Whitesell argues that despite this language, this court may consider the merits of his appeal. Whitesell first directs us to State v. Schick, 25 Kan. App. 2d 702, 971 P.2d 346 (1998), rev. denied 266 Kan. 1114 (1999). That case offers no support for his position. In Schick, we assumed jurisdiction and reversed a presumptive sentence because the district court failed to consider placement in the Labette Correctional Conservation Camp as mandated by K.S.A. 1996 Supp. 21-4603d(a). In holding this court had jurisdiction to consider an appeal of a presumptive sentence, we found the legislature could not have intended to foreclose our review of a sentence not in compliance with the dictates of K.S.A. 1996 Supp. 21-4603d(a). 25 Kan. App. 2d at 703-04. However, the legislature did specifically intend, as evidenced by the language of K.S.A. 2000 Supp. 21-4611(c)(5), to foreclose our review of an increase of the probation term pursuant to that statute.
Whitesell next argues that because appellate courts have the power to review constitutional claims despite the lack of a contemporaneous objection when consideration of that issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights, this court may review his claim. See, e.g., State v. Puckett, 230 Kan. 596, 600-01, 640 P.2d 1198 (1982). Puckett and like cases solely dealt with lack of preservation of the issue before the district court. The issue before this court is whether we have jurisdiction. The rule stated in Puckett is inapposite and offers no support.
As noted in State v. Lewis, 27 Kan. App. 2d 134, 140-142, 998 P.2d 1141, rev. denied 269 Kan. 938 (2000), this is the exact type of case for which K.S.A. 60-1507 was designed. K.S.A. 60-1507 allows a prisoner in custody under sentence of a court of general jurisdiction who claims to be held in violation of the United States Constitution to move the court which imposed the sentence to vacate, set aside, or correct the sentence. Even though on probation, Whitesell is “in custody” for the purposes of a K.S.A. 60-1507 motion. See Miller v. State, 200 Kan. 700, Syl. ¶ 1, 438 P.2d 87 (1968). Further, the doctrine of res judicata stated in State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990), does not act as a bar to a 60-1507 motion claiming the sentence was imposed in violation of the Ex Post Facto Clause because, as held above, Whitesell cannot present his constitutional argument on direct appeal.
We note that in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), the Supreme Court found K.S.A. 21-4716 unconstitutional as applied to upward departures pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). “Apprendi . . . requires ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.’ ” 271 Kan. at 394.
The application of Gould to K.S.A. 2000 Supp. 21-4611(c)(5) has not been raised in this appeal, and we will not address it. Even if it had been raised, we would have no jurisdiction to consider the issue as it is a constitutional question that cannot be received on direct appeal of a presumptive sentence, as explained above.
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Brazil, J.:
Antwon Timms appeals from his misdemeanor conviction of criminal restraint following a trial to the court.
We affirm.
Timms’ attack on his conviction is essentially two-fold. First, he claims that as a matter of law, the State’s evidence failed to rise to the level to constitute criminal restraint as defined in K.S.A. 21-3424(a). Secondly, Timms contends that the victim’s testimony was so inconsistent that it was insufficient to prove his guilt beyond a reasonable doubt. Because these issues require consideration under different standards of review, they will be addressed separately.
The victim, P.B., testified that Timms was the father of her child, who was 5 months old at the time of the incident. The alleged crime occurred when Timms spent the night at P.B.’s house in order to spend time with his son. That evening, she and Timms were talking about P.B.’s income tax refund and Timms asked for some money; she refused.
The next morning, Timms asked P.B. for $1,000. P.B. refused and asked Timms to leave. Timms then asked whether he could “get some” before he left, referring to sex. P.B. refused. As they were sitting and talking, Timms tried to pull down P.B.’s pants. As she moved to get away from him, she fell to the floor and he fell on top of her. She was on her back and he was straddled over her. She told him she needed to get her son, and he told her she was stingy with her money. She screamed at him to get off of her and, at one point, he put his hand over her mouth. Eventually, Timms got off of P.B. after she talked about taking the trash out. She got up and took the trash outside; she then went around the corner and called police. She testified that she was on her back less than a minute.
Timms also testified on his own behalf. He testified that at the time of the incident, he was living with P.B. He stated they got into an argument that morning because she was “being disrespectful” to him by stressing he should get a job. Timms admitted asking P.B. for $1,000. Timms denied, however, that P.B. ever ended up on the floor or that he had touched her. He testified that when he talked about leaving her, P.B. swung a broom at him. She then picked up the trash and left. He left the house because he thought P.B. was calling her father or brothers, who had attacked him in the past.
Timms first contends, accepting all the State’s evidence as true, his alleged conduct failed to satisfy the statutory elements of criminal restraint as provided in K.S.A. 21-3424(a). Specifically, Timms argues his conduct was not sufficient to “interfere substantially” with P.B.’s liberty. Timms’ argument calls for interpretation of the applicable statute and is therefore subject to unlimited appellate review. See State v. Golston, 269 Kan. 345, 347, 7 P.3d 1132 (2000).
The criminal restraint statute provides, in relevant part: “Criminal restraint is knowingly and without legal authority restraining another person so as to interfere substantially with such persons liberty.” (Emphasis added.) K.S.A. 21-3424(a). Criminal restraint is a class A person misdemeanor. K.S.A. 21-3424(c).
Based on our research, we agree with both parties that there are no published appellate cases in Kansas defining the term “substantially” in the criminal restraint statute.
In State v. Robinson, 20 Wash. App. 882, 582 P.2d 580 (1978), aff'd 92 Wash. 2d 357, 597 P.2d 892 (1979), the defendant appealed his conviction of unlawful imprisonment. Under Washington law, unlawful imprisonment required knowingly restricting a person’s movements without their consent “in a manner which interferes substantially with his liberty.” 20 Wash. App. at 883-84. The evidence at trial alleged the defendant pulled up along a high school student walking home and asked if she wanted a ride. He apparently went around the block and pulled up to the student again. The defendant jumped out of his car, chased the girl, grabbed her arm, and attempted to pull her toward his car. He reportedly said, “[D]o what I say or else.” 20 Wash. App. at 883. The girl fought back, was quickly released, and ran away. The restraint lasted approximately 1 minute.
In deciding the defendant’s conduct amounted to “unlawful imprisonment,” the intermediate appellate court stated:
“ ‘Substantial’ is here used as an adjective to mean a Teal’ or ‘material’ interference with the liberty of another as contrasted with a petty annoyance, a slight inconvenience, or an imaginary conflict. ... It intended more serious conduct than stopping someone on the street in a mistaken belief as to the person’s identity or facetiously pushing an elevator button so as to take another occupant beyond the floor which he or she intended to go. Yet, unlawful imprisonment was to be a lesser offense than kidnapping as that crime is now defined.” 20 Wash. App. at 884-85.
While the court did not specifically reject the defendant’s contention that a specific quantum of time or distance must be attached to the term “substantial,” it concluded, based on the circumstances of the case, that the statute had been satisfied.
Several other courts have issued similar opinions. In State v. Abel, 939 S.W.2d 539 (Mo. App. 1997), the defendant’s conviction for felonious restraint was upheld where the defendant argued that the restraint was so brief there could not have been “substantial” interference with the victim’s liberty. In that case, the defendant entered the victim’s parked car holding a knife and grabbed the victim’s arm. The victim screamed and struggled out of the defendant’s grasp and escaped out of the car. In Sammons v. State, 397 N.E.2d 289, 293-94 (Ind. App. 1979), the court upheld the defendant’s conviction of unlawful confinement (requiring a substantial interference with the liberty of another without consent) where the defendant forced himself into the victim’s car and struggled with her briefly before leaving. In Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984), the court found that the defendant substantially interfered with the victim’s liberty despite the short duration of the events. The defendant forced the victim into her car and demanded a ride out of town. She refused, and he struck her several times and discharged a firearm. After 10-15 minutes, he got out of the car and left.
To determine the intent of the Kansas Legislature when enacting the criminal restraint statute, we have compared the misdemeanor offense of criminal restraint with the felony offense of kidnapping. Ordinarily, criminal restraint is a lesser included offense of kidnapping. State v. Little, 26 Kan. App. 2d 713, 717, 994 P.2d 645 (1999), rev. denied 269 Kan. 938 (2000); see State v. Lile, 237 Kan. 210, 213, 699 P.2d 456 (1985). When there is a factual question as to whether a defendant had the specific intent required to prove kidnapping, an instruction on criminal restraint is warranted. See State v. Carter, 232 Kan. 124, 126, 652 P.2d 694 (1982).
In interpreting tire kidnapping statute, the appellate courts have repeatedly held that the kidnapping statute required “ ‘no particular distance of removal, nor any particular time or place of confinement.’ ” State v. Higgenbotham, 264 Kan. 593, 607, 957 P.2d 416 (1998) (quoting State v. Buggs, 219 Kan. 203, Syl. ¶ 7, 547 P.2d 720 [1976]). See 1 Am. Jur. 2d, Abduction and Kidnapping § 22. The Kansas Supreme Court has upheld kidnapping convictions where the defendant allegedly forced the victims to walk from inside a building to the defendant’s vehicle, but the victims then escaped. See State v. Smith, 232 Kan. 284, 289-90, 654 P.2d 929 (1982) (defendant forced woman from her second floor bedroom to defendant’s automobile from which victim then escaped); State v. Mahlandt, 231 Kan. 665, 670-71, 647 P.2d 1307 (1982) (defendant forced clerk from store and into a car, at which time she escaped, held to constitute kidnapping not attempted kidnapping).
The key difference between kidnapping and criminal restraint is that kidnapping requires specific intent and criminal restraint does not. Accordingly, it is reasonable that the kidnapping standard that no particular distance of removal or any particular time of confinement is required should also apply to criminal restraint.
Considering the facts in this case in a light most favorable to the State, Timms straddled P.B. for less than a minute after she fell on the floor. Just before and/or during the restraint, Timms was demanding money and sex. P.B. demanded and eventually screamed for Timms to release her; he covered her mouth at least once when she screamed. He finally allowed her up after several requests.
The facts of this case rise to the same level as the facts in the cases cited above. Still, most of those cases involved felony charges rather than a misdemeanor offense. This case involved more than just grabbing someone’s arm and delaying them or blocking someone’s path to prevent them from leaving. Based on P.B.’s testimony, it was not simply horseplay or friendly wrestling. Here, the restraint involved demands for money and/or sex.
Under the circumstances, whether there was substantial interference should be determined by the factfinder based upon all the circumstances presented. Cf. State v. Whitaker, 260 Kan. 85, 94, 917 P.2d 859 (1996); Doolin v. State, 24 Kan. App. 2d 500, 947 P.2d 454 (1997) (both holding whether great bodily harm has occurred for purposes of aggravated battery is a question of fact). Based upon the record, we conclude there was sufficient evidence to present a question to the factfinder as to whether there was sufficient interference to constitute criminal restraint.
Timms also contends the State failed to prove him guilty beyond a reasonable doubt. He argues P.B.’s testimony was so inconsistent that no reasonable factfinder would believe her testimony.
When the sufficiency of the evidence is challenged in a criminal appeal, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Hedges, 269 Kan. 895, 904, 8 P.3d 1259 (2000). It is the function of the factfinder at trial to determine the weight and credibility of witnesses. On appeal, the appellate court will not pass upon the credibility of witnesses and will not reweigh conflicting evidence. State v. Whitesell, 270 Kan. 259, 275, 13 P.3d 887 (2000).
In challenging P.B.’s credibility, Timms focuses on the discrepancies between P.B.’s statements to police and at trial. The only significant difference was that P.B. told police Timms released her after she repeated she needed to take care of their infant. At trial, P.B. testified Timms released her after she told him she needed to take out the trash. In every other respect, P.B.’s testimony at trial was consistent with her statement to police.
In this respect, Timms is simply asking this court to reweigh the credibility of the victim. The trial court had the opportunity to observe P.B.’s and Timms’ demeanor during the trial and chose to believe P.B. From the transcript, P.B.’s testimony was not so incredible as to warrant this court overturning Timms’ conviction. Cf. State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945 (1983) (finding the uncorroborated testimony of the victim was so unbelievable that it was not sufficient to sustain the conviction of the defendant for rape).
In this case, defense counsel argued in closing argument that there was not substantial interference with P.B.’s liberty. Moreover, the trial judge, as the factfinder, considered all the elements of criminal restraint as provided in P.I.K. Crim. 3d 56.28. There was substantial competent evidence to support the trial court’s ruling.
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Lewis, J.:
The United States of America held a tax hen against Dale Latham, who owned an interest in certain real estate. That lien was later reduced to judgment. The Bankers Trust Company (Bankers Trust) took a mortgage hen on the real estate after the tax hen was reduced to judgment. The trial court held that Bankers Trust had the prior lien. The United States appeals, and Bankers Trust cross-appeals.
In May 1983, James and Rose Marie Lechtenberg executed a mortgage covering real estate in Johnson County. In December 1986, Dale and Marsha Latham entered into a contract for a deed with the Lechtenbergs to purchase the real estate. In 1992, the Lathams assigned their interest in the contract for deed to the Peoples National Bank and Trust. This assignment secured a loan for $50,000, recorded on September 17, 1992.
On December 1,1992, the Internal Revenue Service (IRS) filed a tax hen against Dale Latham in the amount of $46,161.48, plus interest, for a penalty under § 6672 of the Internal Revenue Code. See 26 U.S.C. § 6672 (1989). The United States obtained a judgment against Latham in this amount in May 1993. In June 1993, an abstract of the judgment against Latham was filed in Johnson County.
On January 23, 1997, Dale Latham filed a waiver of marital interest in which he purported to transfer his interest in the real property to Marsha Latham. Also on that day, the Lechtenbergs recorded a warranty deed which transferred the property to Marsha Latham. At the same time, Marsha Latham executed a promissory note and mortgage, covering the real estate in favor of Quality Mortgage U.S.A., Inc., in the amount of $217,750. The proceeds of this loan were disbursed and applied as follows: (1) $101,715.44 was applied to the balance and fully satisfied the Lechtenberg mortgage; (2) $51,659.16 was applied to the balance and fully satisfied the contract for deed; (3) $16,625 was applied against the balance and partially satisfied the Latham assignment; (4) $31,784.39 was apphed to and fully satisfied an IRS tax hen against Marsha Latham; and (5) $14,066.93 was apphed to closing costs. It is not clear from the record how the remaining proceeds of $1,899.08 were disbursed.
Either on or prior to the date of closing, Quality Mortgage obtained a title insurance policy which reflected the judgment hen of the United States.
On the same date on which the actions set forth above took place, Bankers Trust bought the Marsha Latham promissoiy note and mortgage from Quality Mortgage. We note that at the time the note and mortgage were purchased, the title insurance policy described above had been issued showing the judgment hen of the United States. Marsha Latham eventually defaulted on the mortgage, and Bankers Trust brought this action to foreclose the mortgage. The United States was named as a defendant to the action.
The United States claims a priority lien on the one-half interest in the property that was held by Dale Latham prior to the entry of judgment against him in 1992 which he subsequently transferred to Marsha Latham. The United States asserts that it had priority over the Bankers Trust mortgage hen because its judgment hen was filed in 1993 and the Bankers Trust mortgage was not filed until 1997.
Bankers Trust argued that under the doctrine of equitable subrogation, its 1997 mortgage hen should be given priority over the 1992 United States judgment hen. In asserting this doctrine, Bankers Trust argues that the proceeds from the loan obtained from Quality Mortgage were used to pay off existing encumbrances on the property that were senior to the United States hen. Bankers Trust further asserts that at the time it loaned this money, it was the intention of the parties that the mortgage be a first priority lien upon the property.
The United States disputes that the doctrine of equitable subrogation should be apphed in this case. It argues that Bankers Trust should not be equitably subrogated to the position of a senior lien-holder because it had constructive and actual notice that the United States had a prior hen on the property.
The trial court held that equitable subrogation should apply and ordered that upon sale of the property, Bankers Trust should be paid $215,850.92, and that one-half of any remaining proceeds should be paid to the United States to the extent of $147,996.38. Any amounts remaining were to be paid to Marsha Latham. The trial court refused to award any priority to accrued interest in favor of Bankers Trust.
The trial court’s decision leaves the United States without hope of collecting anything on its judgment against Dale Latham. The first mortgage ruled to be in favor of Bankers Trust exceeds the sale value of the property.
The United States appeals from the trial court’s decision on equitable subrogation, and Bankers Trust cross-appeals the trial court’s refusal to award priority for accrued interest.
The question which we must determine is whether the trial court erred in this case by applying equitable subrogation to award Bankers Trust a lien prior to that of the United States.
The relief sought by Bankers Trust is equitable in nature, and the application of an equitable doctrine rests within the sound discretion of the trial court. In re Marriage of Jones, 22 Kan. App. 2d 753, 759, 921 P.2d 839, rev. denied 260 Kan. 993 (1996).
Subrogation is “the substitution of another person in the place of the creditor so that the person in whose favor it is exercised succeeds to the rights of the creditor in relation to the debt.” Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, 206, 597 P.2d 622 (1979). Subrogation will only be applied if it will not materially prejudice the holders of intervening interests. Restatement (Third) of Property—Mortgages § 7.6, comment e (1997).
There are two types of subrogation. One type of subrogation is conventional subrogation, and it arises from an agreement between the parties. The other type of subrogation is legal or equitable subrogation, and it does not depend on the agreement of the parties and is a creature of equity. St. Paul Fire & Marine Ins. Co. v. Tyler, 26 Kan. App. 2d 9, 15, 974 P.2d 611 (1999) (citing Hartford, 226 Kan. 197, Syl. ¶ 3). As pointed out earlier, this is a case involving equitable subrogation, and no one suggests there was a contract providing for subrogation.
The United States asserts a number of reasons why it believes the doctrine of equitable subrogation should not have been applied in this case. However, the principal assertion by the United States and the one on which we now focus is whether Bankers Trust should be equitably subrogated to be a senior lienholder when it had both constructive and actual knowledge of the United States’ existing hen prior to the time it acquired the hen in question.
The United States relies primarily on the decision of Kuhn v. Bank, 74 Kan. 456, 87 Pac. 551 (1906). We believe that decision does constitute powerful authority in favor of the position advocated by the United States. In Kuhn, the plaintiff purchased real estate which was encumbered by three mortgages and two judgment liens, all of which were of record. The plaintiff agreed to pay off ah of those encumbrances, but at the time of the action, there were two mortgages and two judgment hens still outstanding. The defendant asked the Supreme Court to apply equity to give him a hen position superior to that held by those who had hens on the real estate at the time he purchased it. The Kansas Supreme Court refused to do so and stated:
“If, as it has uniformly been decided, a purchaser of either real or personal property is bound to take notice of the facts affecting the title to the property which the records of the county show, and which records the statutes provide shall be public notice, then it is quite immaterial whether or not Kuhn had actual knowledge of the existence of the judgments. In the absence of conduct on the part of the person who afterward asserts the facts shown by the records to the prejudice of the purchaser which prevents an examination of the records or induces the purchaser not to make such examination, it is negligencefor a purchaser of either real or personal property to make the purchase without ascertaining the facts shown by the records which may affect the title to be acquired. In the absence of such fraudulent conduct the purchaser will be presumed to have bought with knowledge of all the facts which the records at the time would have disclosed. Equity cannot be invoked to relieve one from the consequences of his own negligence. (Hargis v. Robinson, 63 Kan. 686, 66 Pac. 988.)” (Emphasis added.) 74 Kan. at 458.
The court refused to apply the doctrine of equitable subrogation and said:
“Or, having paid the first and second, could he not claim subrogation as to both, in a suit to foreclose the third? Sufficient answer it is to say that the equitable relief of subrogation was not designed to aid speculation nor to relieve litigants from the consequences of their own negligence, ignorance or mistakes of judgment. IHargis v. Robinson, supra.) This equitable relief originated in the evident justice of substituting a surety who has been compelled to pay the debt of his principle to the place of the creditor as against other creditors affected by the transaction. It has on principal been extended to the relief of junior lien-holders who, to protect their own interests, have been compelled to pay off prior liens, and to other cases where natural justice required its application and where no violence was done to the legal rights of others.” (Emphasis added.) 74 Kan. at 459.
At another point in the opinion, the court stated:
“The decisions of this court have been liberal in allowing subrogation where any equity required it and no legal right of others was encroached upon, but in no case does it appear the court has gone to the extent demanded in this case. Whether Kuhn would have purchased the land had the judgment liens been brought to his attention, assuming he had no knowledge of them, is a question of pure speculation, as they were for small amounts. Being charged with the knowledge of these liens, and having no interest to protect, he must be held to have simply stepped into his grantor’s shoes. When he paid off a mortgage that was prior to the judgment lien it had the same effect as if the payment had been made by die grantor before he parted with his tide.” 74 Kan. at 460-61.
We believe that Kuhn is applicable to the argument made by the United States in the instant matter. Bankers Trust argues that it does not apply and stands only for the proposition that one cannot hold a mortgage on one’s own fee estate. Bankers Trust also distinguishes Kuhn on the theory that Kuhn was a purchaser, whereas Bankers Trust is a lender. We see neither argument as being persuasive in distinguishing Kuhn. In this case, Bankers Trust, like Kuhn, expended money and acquired a lien on real estate which was subject to a prior judgment in favor of a third party. Bankers Trust had notice of that hen as is illustrated by reference to the title insurance purchased in the instant matter. As Kuhn did, Bankers Trust apparently ignored the prior interests of the United States and now, as Kuhn also did, asks equity to establish it as the senior lienholder. The courts have said, as in Kuhn, that “courts of equity will not relieve parties from the consequences of their own folly or assist them when their condition is attributable to a failure to exercising ordinary care for their own protection. Great Western Mfg. Co. v. Adams, 176 Fed. 325, 327 (8th Cir. 1910). It is also said that “[e]quity aids the vigilant and not those who slumber on their rights.” Rex v. Warner, 183 Kan. 763, 771-72, 332 P.2d 572 (1958). It appears to us that in this case Bankers Trust failed to exercise ordinary care for its own protection and failed to be vigilant when it took the hen with knowledge of a prior judgment hen in favor of the United States. We see no compelling reason to exercise equity on behalf of the party who has acted in this manner.
Our review of the cases in other states indicates that many jurisdictions focus on whether a party had actual notice of an intervening interest before it will apply the doctrine of equitable subrogation. We would concede, however, that this is not necessarily the majority rule, but we believe it to be the rule in Kansas. Restatement (Third) of Property—Mortgages § 7.6, comment e (1997). Under the Restatement, knowledge is not necessarily relevant. The question under the Restatement appears to be whether “the payor reasonably expected to get security with a priority equal to the mortgage being paid.” Bankers Trust argues that at the time of the financing, it was the parties’ intention that the loan be the first priority hen upon the property. We fail to see how the intention of Bankers Trust has anything to do with whether its hen is a priority hen upon the property. The holder of the first hen of record was neither consulted or notified of the transaction involving Bankers Trust. We fail to understand how Bankers Trust expects , to establish a prior lien on the property simply by stating that it intended to do so.
It is also important that in this case, Bankers Trust was a sophisticated institutional lender. We conclude it should be held to r. a high standard of knowledge and action. It is difficult to understand why any bank would take a hen on property knowing that it was encumbered by a prior judgment hen which had been of record for approximately 5 years. There are any number of things Bankers Trust could have done to protect itself. It could have approached the United States and attempted to work out a subordination agreement. It could have taken an assignment of the other mortgages and stepped into the shoes of the holders of those mortgages. Instead, it did nothing and paid out substantial sums of money on a property encumbered by a prior judgment lien.
We hold the doctrine of equitable subrogation may not be applied to relieve a party who negligently takes a lien on or an interest in property which is subject to prior liens of record of which that party had either actual or constructive notice. To apply equitable subrogation under those circumstances would be tantamount to relieving that party of a condition attributable to a failure to exercise ordinary care for his, her, or its own interests. Equitable subrogation will not apply in favor of such a party.
We note that in reaching our decision, we have not considered the fact that Bankers Trust may have had insurance to protect it against this type of loss and that the title insurance company is actually the real party in interest. We realize that other jurisdictions have been hesitant to apply equitable subrogation where a title insurance company was negligent in failing to discover ah intervening tax hen. See First Federal Sav. Bank of Wabash v. U.S., 118 F.3d 532, 534 (7th Cir. 1997). We do not believe that the presence or absence of insurance has any relevance to our decision as to whether equitable subrogation should apply.
We reverse the trial court’s decision in favor of Bankers Trust and remand with directions to enter judgment in favor of the United States as the first lienholder, superior to the hen of Bankers Trust. The proceeds from the sale of the property should be distributed in a manner consistent with this opinion.
The other issue in this case involves the cross-appeal of Bankers Trust seeking a priority hen with respect to accrued interest. In view of our decision on the question of equitable subrogation, this issue is rendered moot, and we do not reach it.
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Green, J.:
The estate of Candy Jo Beckner appeals the district court’s dismissal of its wrongful death claim. On appeal, the estate contends that the trial court wrongly granted Daniel and Vicky Jensen’s motion to dismiss. We disagree and affirm.
The Jensens had a son, Nathan, who attended Northwest High School’s prom. They allowed their son to host a post-prom overnight “sleep over” party in their basement for 8 to 12 high school students. None of die students consumed any alcohol at die party, and Daniel went downstairs at least twice to check on the students.
Andrew Schaffer attended this party and arrived around 1 a.m. Before the party, Schaffer did not know Nathan or the Jensens. He remained awake all night except for about an hour in die morning between 6 and 7 a.m.
While driving home in his van, Schaffer left the road and struck Candy Jo Beckner who was riding her bike on the shoulder of 21st Street near 295th Street West, outside Wichita. Beckner died as a result of her injuries.
Beckner’s estate sued die Jensens for the wrongful death of Beckner. The Jensens answered and moved to dismiss the case for failure to set forth a valid cause of action against them. After a hearing on the motion, the district court granted the Jensens’ motion to dismiss the case.
On a procedural issue, the estate asserts that the district court improperly granted the motion to dismiss when it considered material extraneous to its petition. As a result, the Jensens’ motion should have been viewed as one for summary judgment. At a hearing on the motion to dismiss, the district judge refused to consider the motion as a summary judgment motion.
The estate’s argument is flawed. “K.S.A. 60-212(b) says if‘matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss for failure to state a claim upon which relief can be granted] shall be treated as one for summary judgment.’ (Emphasis added.)” Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 885, 9 P.3d 1251 (2000). A review of the transcript and the district court’s decision reveals that the parties placed information from Andrew Schaffer’s deposition before the court, but the court did not consider these materials. The district court followed 60-212(b)(6) in resolving the motion.
The district judge’s knowledge of facts other than those contained in the pleadings are not grounds for a reversal. Ultimately, the judge did not consider documents outside the petition in making his decision. There was no error in the district court’s procedural ruling.
“When a motion to dismiss raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiffs complaint. K.S.A. 60-212(b)(6). Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. [Citation omitted.]” Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 250, 978 P.2d 922 (1999).
“In a negligence case, plaintiff must establish a duty, breach of the duty, damages, and a causal connection between the duty breached and the damages. The existence of a duty is a question of law, while whether a duty has been breached is a question of fact. [Citation omitted.]” McCleary v. Boss, 24 Kan. App. 2d 791, 792, 955 P.2d 127 (1997), rev. denied 264 Kan. 822 (1998).
SPECIAL RELATIONSHIP AND RESTATEMENT (SECOND) OF TORTS $ 315
The first question in this appeal is whether the Jensens had a duty to Beckner. “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. [Citations omitted.]” Washington v. State, 17 Kan. App. 2d 518, 521, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992).
The estate contends that as a matter of law a special relationship existed between Beckner and the Jensens and that a duty may be found in Restatement (Second) of Torts § 315 (1964).
The Restatement (Second) of Torts § 315 provides:
“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Comments to § 315 direct the reader to other sections for the “special relations” upon which the duty is based. These relationships include parent and child, master and servant, possessor of land or chattels and licensee, one in charge of a person having dangerous propensities, common carrier and passenger, innkeeper and guest, possessor of land and invitee, and one who takes custody of another so as to deprive the latter of normal protection. See Restatement (Second) of Torts §§ 314A, 316-20 (1964). None of the special relationships listed earlier are analogous to the relationship between Beckner and the Jensens or between Schaffer and the Jensens. The estate cites no cases where a Kansas appellate court determined a special relationship existed under similar facts to this case.
The estate cites Wood v. Groh, 269 Kan. 420, 7 P.3d 1163 (2000), in its reply brief to support its contention that a relevant special relationship existed. Nevertheless, the estate’s reliance on Groh is fatally flawed because Groh is distinguishable on its facts. In Groh, a minor who was shot and her parents brought a personal injury action against a gun owner and his wife, after the gun owner’s minor son accidentally shot the victim at a late-night party. Despite the fact that the Grohs locked their gun cabinet, our Supreme Court found that sufficient evidence existed to support the jury instruction on negligent parental supervision because their son was easily able to bréale into the cabinet with a screwdriver. Critical distinguishing facts in Groh were the existence of a parent-child relationship between the gun owner and the tortfeasor and the court’s finding that firearms are inherently dangerous instrumentalities requiring the highest degree of care.
In another effort to show a special relationship, the estate cites to the Restatement (Second) of Torts § 318 (1964) and claims a duty of a possessor of land to control the conduct of a licensee. The Restatement (Second) of Torts § 318 states:
“If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
“(a) knows or has reason to know that he has the ability to control the third person, and
“(b) knows or should know of the necessity and opportunity for exercising such control.”
Comment b of § 318 provides:
“The rule stated in this Section is applicable where the possessor of a chattel or of land is present when the chattel is being used or the activity is being carried on with his permission, and when, therefore, he has not only the ability to control the conduct of the third person as possessor, but also the opportunity to do so.”
In only two instances has Kansas case law addressed this section. In both instances, the licensee was still on the landowner’s property or using the possessor’s chattel when the injury occurred. See Gragg v. Wichita State Univ., 261 Kan. 1037, 1045-46, 934 P.2d 121 (1997) (§ 318 did not apply because defendants lacked sufficient knowledge to control assailant’s actions); Vetter v. Morgan, 22 Kan. App. 2d 1, 7, 913 P.2d 1200 (1995) (car being used belonged to defendant’s father, so the defendant had “a peculiar ability” to control the manner in which the car was driven).
Section 318 is inapplicable because the tort did not occur on the Jensens’ property nor did Schaffer use the Jensens’ car to drive home. We could find no Kansas case extending this duty to cover the licensee after leaving the landowner’s property.
PROTECTION OF A THIRD PERSON AND RESTATEMENT (SECOND) OF TORTS $ 324A (1964)
Next, the estate maintains that the trial court wrongly granted the motion to dismiss because under tire Restatement (Second) of Torts § 324A (1964), the Jensens gratuitously undertook to render services to Schaffer which the Jensens should have recognized as being necessary for the protection of Beckner. The Supreme Court adopted the Restatement (Second) of Torts § 324A in Schmeck v. City of Shawnee, 232 Kan. 11, Syl. ¶ 4, 651 P.2d 585 (1982).
The Restatement (Second) of Torts § 324A(a) 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.”
The initial requirement for the application of § 324A(a) is that the defendants undertook, gratuitously or for consideration, to render services to another. See Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 669, 792 P.2d 993 (1990). “Without an affirmative act or an agreement, there is no duty owed under § 324A.” P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 834, 877 P.2d 430 (1994).
In its brief, the estate glosses over the affirmative act requirement for liability under this section and makes a conclusion that the Jensens took affirmative action toward Schaffer and controlled him. The estate’s assertion greatly stretches the facts as alleged in the petition and cannot be squared with existing Kansas case law.
In Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 399, 931 P.2d 26 (1997), SRS undertook an investigation of Burney as an accused child abuser as required by law. Although SRS performed an investigation, this court found no evidence whatsoever that SRS performed any affirmative act to render services for Burney or entered into any agreement to do so to create a duty under § 324A.
In Meyers v. Grubaugh, 242 Kan. 716, 750 P.2d 1031 (1988), our Supreme Court concluded there was no affirmative action by the defendant and therefore 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. Since there was no evidence the employer had taken charge of or assumed control over the intoxicated employee, § 324A was not applicable since the State did not undertake to render services to the employee.
Even a limited undertaking by a defendant does not give rise to a duty under § 324A.
In McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980 (1991), a duty under § 324A was rejected even though there was a limited undertaking by the defendants. Chalfant had been drinking beer at several parties. Cooper and Lett, upon Chalfant’s request, took Chalfant from one of the parties to his car. Chalfant was clearly intoxicated at the time. Later, Chalfant injured McGee in an automobile collision. McGee sued Cooper and Lett, claiming liability under § 324A. Our Supreme Court reversed the district court’s denial of summary judgment, stating:
“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 hable for the negligent performance of a task they did not agree to assume.” 248 Kan. at 442.
In Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 209, 212, 662 P.2d 243 (1983), two ironworkers, injured when an improperly secured structural steel joist fell during construction of a shopping center, sued the architect. The ironworkers alleged the architect was contractually responsible for safety precautions on the job site and, alternatively, the architect was negligent as to job site safety. The architect appealed the adverse jury verdict. The evidence showed that the architect had no contractual responsibility for job site safety. In addition, the architect did not assume such responsibilities outside the duties imposed by the contract. Our Supreme Court reversed and remanded for judgment in favor of the architect because although the architect rendered services, they were not to the extent of undertaking responsibility for the safety of third parties. 233 Kan. at 218.
On the other hand,
“[i]n each of the Kansas cases imposing liability under § 324A, it was clear that [the threshold] requirement was met. In Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), KCPL agreed to and was hired to render traffic engineering services to the City. In Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 672 P.2d 1083 (1983), the Kansas Turnpike Authority hired Howard-Needles as its consulting engineers to make safety inspections of the turnpike and thus render services to the KTA. In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), there was evidence the county agreed with Kansas State Penitentiary officials and other law enforcement agencies to notify these agencies of escapes from the penitentiary. In Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), the police were obligated by a general police department order to take certain incapacitated persons into custody.” ’ ” P.W., 255 Kan. at 834.
The Jensens allowed Schaffer to stay at their home for a post-prom party. This in and of itself is not an affirmative act. If an affirmative act is implied or found, it is a limited act at best. Accordingly, without an affirmative act showing that the Jensens exercised custody or control over Schaffer, no duty and liability existed under § 324A.
PUBLIC POLICY
Finally, in a letter of additional authority, Beckner asserts Robinson v. Health Midwest Development Group d/b/a Lafayette Regional Health Center, Mo. App. No. WD 58290 filed March 6, 2001, as persuasive authority to establish public policy as an independent basis for liability in addition to a “special relationship.”
In Robinson, Felicia Robinson appealed summary judgment in favor of Health Midwest on her negligence claim for personal injuries she sustained from an automobile accident. Robinson alleged that Health Midwest’s staff was negligent in part by providing treatment to Verlea Schmidt. Schmidt was given a prescription drug known by the medical staff to cause drowsiness and dizziness but was not warned of these side effects. Ten minutes after leaving Health Midwest’s facility, Schmidt drove, crossed the center line of a roadway, and collided head-on with Robinson’s vehicle, causing her injury.
The Missouri Court of Appeals for the Western District of Missouri reversed and remanded the case not on the basis of a special relationship, but rather on public policy grounds. The Robinson court acknowledged there is no special relationship between a physician and the general public on which to base a duty. However, the court found a duty arose by applying the public policy factors that give rise to a duty cited by the Missouri Supreme Court in Hoover’s Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426, 431-32 (Mo. 1985).
Based upon an analysis of public policy, Missouri case law, and an analogy to its dramshop act, the Missouri Court of Appeals held that “under a given set of circumstances, a fact finder could find that a physician owed a duty of care to a member of the general public to warn a patient not to drive while under the influence of an intoxicating drug prescribed by the physician.”
Kansas case law and public policy, however, is contrary to the position taken by the Missouri Court of Appeals in Robinson.
In Calwell v. Hassan, 260 Kan. 769, 770, 925 P.2d 422 (1996), bicyclists were injured 'when they were struck by a car driven by a motorist who fell asleep. The bicyclists brought an action against a physician who treated the motorist for excessive sleep disorder. The plaintiffs alleged the physician was negligent in failing to warn the patient not to drive. After a lengthy discussion on “special relationships,” our Supreme Court held similar to Robinson in that no special relationship existed for the physician to warn the motorist not to drive.
In Calwell, the motorist admitted in a deposition that with her condition, she would pull over if she got drowsy while driving to work. The court reasoned the physician’s failure to warn not to drive would simply be telling her something she already knew and duty to warn does not arise when the patient already knows of the danger. 260 Kan. at 786-87 (citing Boulanger v. Pol, 258 Kan. 289, 307, 900 P.2d 823 [1995]).
Our Supreme Court declined to impose a § 324A duty on physicians to warn a patient of something the patient is already aware of because “such a rule would subject physicians to liability claims from unknown third parties for the acts of patients over which physicians would have no control.” 260 Kan. at 787.
Because our Supreme Court found no duty under very similar facts, Robinson is not persuasive to establish liability on account of public policy. Moreover, Robinson’s persuasiveness is diminished because it reached the result by relying on Hoover’s Dairy, Inc., a Missouri Supreme Court case, and by analogy to a dramshop statute for which there are no counterparts in Kansas. See Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985). As a result, the estate’s argument fails.
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Johnson, J.:
J.B. (hereafter referred to as “mother”) and R.C.. (hereafter referred to as “father”), the natural parents of C.C., C.B., and R.C., appeal the termination of their parental rights, claiming: (1) The evidence was insufficient to support the termination; and (2) the district court failed to properly consider and rule upon the parents’ motion for permanent guardianship. We affirm.
Father, mother, four children (including C.C., C.B., and R.C.), and J.C. (paternal grandmother) were all residing in a home owned by J.C. On August 3, 1999, police executed a search warrant at the home. The police encountered an overpowering odor of chemicals and discovered evidence of a methamphetamine manufactory. Both parents were arrested and jailed. The children were taken into protective custody, and child in need of care (CINC) proceedings were commenced with regards to C.C., C.B., and R.C. the following day.
Subsequently, mother pleaded guilty to possession of methamphetamine with intent to sell and one count of child endangerment. She received a controlling sentence of 36 months’ imprisonment. Her earliest possible release date is February 2002. Father was convicted by a jury of manufacturing methamphetamine and multiple counts of child endangerment. He is serving a controlling sentence of 162 months. The parents remained incarcerated throughout the CINC proceedings.
The children were adjudicated children in need of care pursuant to the parents’ stipulations. The district court ordered each parent to complete certain requirements as prerequisites to reintegration. On February 18, 2000, the State filed a motion to terminate the parental rights of both mother and father. At a review hearing on February 25, 2000, the district court set June 5, 2000, as the termination trial date. On May 24, 2000, the parents filed two motions. One was a motion for a continuance of the termination trial. The other was designated a motion for permanent guardianship and recited it was in the alternative to the continuance motion. The appearance docket notes the district court denied the continuance motion, albeit no journal entry appears in the record. There is no mention in the record on appeal regarding a disposition on the .motion for permanent guardianship.
Following the contested termination hearing, the district court took the matter under advisement. On September 6, 2000, the district court issued a memorandum opinion and journal entry of judgment, finding the parents unfit and unlikely to change in the foreseeable future. The court ordered the parents’ parental rights as to C.C., C.B., and R.C. terminated and placed those three children in the custody of the Secretary of the Kansas Department of Social and Rehabilitation Services with authority to consent to the children’s adoption.
Sufficiency Of The Evidence
The parents first assert that the State, as petitioner, did not meet its burden of proving unfitness by clear and convincing evidence, and the evidence was insufficient for the court to terminate their parental rights. The standard of review in a termination of parental rights case is whether substantial competent evidence in the record supports the trial court’s finding that the parent is unfit. In re A.N.P., 23 Kan. App. 2d 686, 692, 934 P.2d 995 (1997). Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. In re J.D.D., 21 Kan. App. 2d 871, 874, 908 P.2d 633 (1995). The appellate court reviews the evidence in the light most favorable to the party prevailing below and does not reweigh the evidence or substitute its judgment for that of the trial court. Although the State has the burden to prove parental unfitness by clear and convincing evidence before the district court, the clear and convincing standard does not affect this court’s scope of review. 23 Kan. App. 2d at 692.
The Kansas Code for Care of Children, K.S.A. 38-1501 et seq., (CINC code) provides that the district court may terminate parental rights when it finds by clear and convincing evidence that a parent is unfit by reason of conduct or condition which renders the parent unable to care properly for the child and the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 1999 Supp. 38-1583(a). The statute lists nonexclusive factors the court shall consider in determining if severing parental rights is in the best interests of the child. K.S.A. 1999 Supp. 38-1583(b); In re S.M.Q., 247 Kan. 231, 236, 796 P.2d 543 (1990). Any one of the factors may be, but is not necessarily, sufficient to establish grounds for terminating parental rights, and the court shall consider all applicable factors, giving primary consideration to the needs of the child. K.S.A. 1999 Supp. 38-1583(e); In re J.G., 12 Kan. App. 2d 44, 52, 734 P.2d 1195, rev. denied 241 Kan. 838 (1987).
Here, the court considered and found two statutory factors applicable to the parents’ case: (1) Both parents were convicted of a felony and sentenced to prison (K.S.A. 1999 Supp. 38-1583[b][5]); and (2) there was physical, mental, or emotional neglect of the children (K.S.A. 1999 Supp. 38-1583[b][4]). The evidence of the felony convictions and ensuing imprisonment of both parents is uncontroverted.
The parents admit the evidence established that their residence contained raw materials amenable for use in the manufacturing of methamphetamine, but argue the evidence did not establish that methamphetamine was actually being manufactured in the home. The potential dangers described bylaw enforcement, e.g., fire, explosion, chemical irritation, or formation of lethal gas, are created by the manufacturing process. Therefore, the parents assert, the evidence did not establish the children were actually exposed to any danger.
This is not a close case. One of the officers testified that upon entering the residence, he was met by an overpowering smell of chemicals and could barely breathe in a normal manner. The children were in the house at the time. The mother testified that father was processing Actifed pills to extract the ephedrine, albeit she did not know he was making methamphetamine. She admitted she knew it was dangerous for the children to be in the house during this processing, but she made no attempts to remove the children from the home because she “had nowhere to go.” She admitted to using methamphetamine. She pleaded to and was found guilty of child endangerment for her role in subjecting her own children to the dangerous situation. A jury convicted father of endangering his own children. The evidence was sufficient to support the district court’s finding that the children were physically neglected. The two factors were sufficient grounds for terminating parental rights.
Mother contends that even if the evidence supports the neglect finding, her condition is likely to change in the foreseeable future. At the hearing, mother described the drug and mental health counseling she received in prison. She was on a waiting list to take parenting classes. She suggests the children could be placed with J.C. until she emerges from prison with the ability to protect and parent her children.
The district court found that “[i]t is clearly not in the best interest of children who are 10, 5, [and] IVz years old to linger in foster care for at least two years before reintegration with the mother can possibly proceed.” The district court correctly intimates that the “foreseeable future” should be viewed from the children’s perspective, not the parents’. “[T]ime perception of a child differs from that of an adult.” K.S.A. 1999 Supp. 38-1584(a). The CINC code suggests a time frame. “Reintegration may not be a viable alternative when ... (6) the child has been in extended out of home placement as defined in subsection (z) of K.S.A. 38-1502 and amendments thereto.” K.S.A. 1999 Supp. 38-1565(a). “ ‘Extended out of home placement’ means a child has been in the custody of the secretary and placed with neither parent for 15 of the most recent 22 months beginning 60 days after the date at which a child in the custody of the secretary was removed from the home.” K.S.A. 1999 Supp. 38-1502(z). The children were removed from the home August 3, 1999. The mother testified her first eligibility to be released from prison is February 2002. By then, the children will have been in an out of home placement for 30 months. Mother’s argument fails.
Motion For Permanent Guardianship
The parents’ second complaint is that the district court failed to properly consider and rule on their motion for the appointment of J.C., paternal grandmother, as the children s permanent guardian. The motion was filed 12 days before the termination hearing, which had been scheduled some 3 months earlier. It was proffered as an alternative in the event the district court denied the parents’ motion for a continuance of the termination hearing. The record does not reflect any order setting the motion for hearing.
During the termination hearing, the parents’ attorney attempted to cross-examine the children’s case manager about die relationship between the children and J.C. The district court, sua sponte, interrupted the examination to inquire as to the relevance of “all this grandmother testimony.” The attorney responded, “We filed a motion in the alternative for permanent guardianship and we would like you to consider that.” The court opined that there was no statutory authority for such a motion, but he could consider a permanent guardianship as a dispositional alternative if he should find the State had proved unfitness.
The parents contend the district court erred by: (1) not considering evidence pertaining to their motion requesting that the grandmother be appointed permanent guardian of the children as an alternative to termination; and (2) not ruling on the motion. They claim this issue involves the exclusion of evidence and should be reviewed under an abuse of discretion standard. The State agrees with the standard of review but maintains the court did consider the motion by implication. In order to resolve this issue, we must interpret the CINC code. Interpretation of a statute is a question of law, subject to unlimited review. See State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied, 265 Kan. 888 (1998).
We glean the essence of the parents’ theory to be that: (1) K.S.A. 1999 Supp. 38-1581(a) permits any interested party to file a request for permanent guardianship; (2) as natural parents, appellants are interested parties; (3) therefore, the parents are entitled to request that J.C. be appointed permanent guardian, notwithstanding the pendency of the State’s motion to terminate parental rights; and (4) the district court should hear the parents’ permanent guardianship motion before ruling on the State’s termination motion because following termination the parents would have no standing in the case. Although creative, the parents’ theory is fundamentally flawed.
K.S.A. 1999 Supp. 38-1581(a) reads, in its entirety, as follows:
“(a) Either in the petition filed under this code or in a motion made in proceedings under this code, any interested party may request that either or both parents be found unfit and the parental rights of either or both parents be terminated or a permanent guardianship be appointed.”
It is difficult to read that statute without concluding the movant must first request a parental unfitness finding and then request one of two alternative dispositions: termination or permanent guardianship. K.S.A. 1999 Supp. 38-1583(g) supports this interpretation. The parents’ motion did not request that they be found unfit. To the contrary, the parents vigorously opposed the State’s assertions of unfitness, both at trial and on appeal It is incongruous for the parents to profess their fitness, yet complain they were denied their right to use the procedures set forth in 38-1581(a).
The CINC code does suggest that a permanent guardian may be appointed without a finding of unfitness “with the consent and agreement of the parents.” K.S.A. 1999 Supp. 38-1587(a). However, it is apparent that the “agreement of the parents” language in the CINC code is designed to provide an expeditious means to effect a permanent custody when all parties agree that permanent guardianship is in the best interests of the children. Such language does not provide a means by which parents may unilaterally avoid an unfitness finding or create a right for parents to dictate the children’s placement disposition following a finding of unfitness.
The district court was correct in disregarding the parents’ statutorily deficient motion and proceeding to hear evidence relevant to the State’s motion to terminate parental rights.
In making a post-termination placement, “the court shall give preference, to die extent that the court finds it is in the best interests of the child, first to granting . . . custody to a relative of the child.” K.S.A. 1999 Supp. 38-1584(3). We concede the evidence in the record is conflicting with regard to the efficacy of placing the children with J.C., paternal grandmother, and the district court did not make findings in that regard. However, as the parents concede, they have no standing to challenge the post-termination disposition. J.C. did not appeal the denial of her motion for interested party status, and she is not before us asserting she should have been granted permanent guardianship. The guardian ad litem, whose sole purpose is to protect the best interests of the children, has not appealed the court’s disposition. Therefore, the district court’s orders should stand.
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Rulon, C.J.:
This is an appeal by an attorney, Roger Riedmiller, who represented Cliford Leroy Crone, in a workers compensation case. Riedmiller appeals the district court’s finding that it did not have jurisdiction in this workers compensation case. The ultimate question Riedmiller wants addressed is whether a blanket recusal should be entered prohibiting a certain administrative law judge (ALJ) from hearing any case in which Riedmiller is an attorney of record.
The facts of this case are not in dispute.
Riedmiller filed a workers compensation claim on behalf of Cliford Leroy Crone. During the course of the workers compensation case, Riedmiller, for reasons not relevant here, filed a motion requesting the ALJ to recuse himself from this and all other cases in which Riedmiller was the attorney of record. That motion was denied. Riedmiller then filed a request for review with the Workers Compensation Board (Board). The Board responded that it only had jurisdiction to consider final orders, awards, modification of awards, or prehminary hearing awards and thus denied Riedmiller’s request for review of the motion to recuse. Curiously, however, the Board found that because the motion to recuse was addressed in the prehminary hearing order, it agreed to hear the appeal. (Whether the Board had jurisdiction to consider this question on appeal from a prehminary hearing is questionable. Because the Board never heard the issue on appeal we express no opinion on the issue.) Riedmiller simultaneously asked that his appeal be considered by the Director of the Division of Workers Compensation. The Director granted the request and heard the appeal.
However, before the Director could rule on the motion, the ALJ sent a letter to the Director asking that the case be reassigned to a different ALJ. Subsequently, the Director denied the request for a blanket recusal.
Riedmiller then filed a petition for judicial review in Shawnee County District Court pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. The district court, without request by either party, found that this was essentially a workers compensation case and therefore the court lacked jurisdiction. Riedmiller then perfected this appeal.
The only question before this court is whether the district court was correct in finding it did not have jurisdiction over this case. “[W]hether jurisdiction exists is a question of law over which [an appellate] court’s scope of review is unlimited.” Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
“[A]n appellate court has the duty to question jurisdiction on its own initiative.” State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). Parties cannot confer jurisdiction by consent or by failing to assert lack of jurisdiction. Copeland v. Robinson, 25 Kan. App. 2d 717, 720, 970 P.2d 69 (1998), rev. denied 266 Kan. 1107 (1999).” Hughs v. Valley State Bank, 26 Kan. App. 2d 631, 633-34, 994 P.2d 1079 (1999).
“The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases or in any manner, or it may be withdrawn completely. However, where the legislature has provided the right of an appeal, the minimum essential elements of due process of law in an appeal affecting a person’s life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Nguyen v. IBP, Inc., 266 Kan. 580, 588, 972 P.2d 747 (1999).
Whether the district court was correct that it did not have jurisdiction necessarily is dependent on whether the Director had jurisdiction. As a beginning we note:
“[T]he Workmen’s Compensation Act undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete and exclusive, and we must look to the procedure of the act for the methods of its administration. Rules and methods provided by the code of civil procedure not included in the act itself are not available in determining rights thereunder.” Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996) (quoting Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P.2d 869 [1960]).
The statutory basis for applying the provisions of the Kansas Code of Civil Procedure to workers compensation appeals was removed by the legislature in 1993. Jones, 260 Kan. 547, Syl. ¶ 2.
The first problem in this case, one neither party directly addresses, is how the Director had jurisdiction to review a part of the prehminary order entered by an ALJ in a workers compensation case. The Director correctly noted that there is no procedure in the Workers Compensation Act for requesting or appealing the recusal of an ALJ. The Director noted that in Boyd v. Presbyterian Manors of Mid-America, Inc., Docket No. 163,905, the Board held it did not have jurisdiction to consider such claims and only the Director of tire Division of Workers Compensation, who is in charge of the ALJs, has the authority to order an ALJ to recuse. Following this earlier decision by the Board, the Director concluded he had jurisdiction and that the procedures found in K.S.A. 20-311d were fire most appropriate and thus adopted them by “unwritten policy.”
The case law is clear that while the interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference, the final construction of a statute lies with tire appellate court. The agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999). Clearly, the doctrines of res judicata and stare decisis are not generally applicable to administrative determinations. Warburton v. Warkentin, 185 Kan. 468, 345 P.2d 992 (1959).
From a plain reading of the statutes, the Board’s earlier decision finding it lacked jurisdiction over a denial of a request for recusal was in error.
Under K.S.A. 44-551(b)(l), prehminary awards are to be appealed to the Workers Compensation Board. If an ALJ has entered a preliminary award under K.S.A. 44-534a, a review by the Board shall not be conducted under this section unless it is alleged that the ALJ exceeded his or her jurisdiction in granting or denying the relief requested at the prehminary hearing. Such appeal may be heard by a single board member. K.S.A. 44-551(b)(2)(A). Under K.S.A. 44-534a(a)(2) certain jurisdictional claims such as whether the employee suffered an accidental injury, whether the injury arose out of and in the course of the employee’s employment, whether notice is given, or a claim timely made, or whether certain defenses apply, may be reviewed by tire Board. Such review, however, is not subject to judicial review until after a decision on a full hearing.
Next, K.S.A. 44-551(b)(l) states: “All final orders, awards, modifications of awards, or prehminary awards under K.S.A. 44-534a and amendments thereto made by an administrative law judge shah be subject to review by the board . . Under K.S.A. 44-555c(a), “[t]he board shall have exclusive jurisdiction to review all decisions, findings, orders and awards of compensation of administrative law judges under the workers compensation act.” (Emphasis added.) We note the statute is worded in the conjunctive. The Board has jurisdiction to review all decisions, findings, and orders, as well as awards of compensation.
Under K.S.A. 44-556(a), any action by the Board pursuant to the Workers Compensation Act, other than the disposition of an appeal from a preliminary order or awards under K.S.A. 44-534a, is subject to direct appeal to the Court of Appeals in accordance with the act for judicial review and civil enforcement of agency actions. Thus, Riedmiller had an avenue to seek review of the denial of the request for recusal via the Workers Compensation Board, but under the plain wording of the statutes, such an order was not appealable until after a full hearing.
Because the Workers Compensation Act is complete unto itself and appears to provide an avenue for a person to have an appeal from the denial of a motion to recuse, the Director did not have jurisdiction to conduct a review of a preliminary order in a workers compensation case. Also, if the Board had jurisdiction to decide the matter, then any appeal must be to this court and not the district court. Therefore, the district court was correct in finding it did not have jurisdiction to consider the appeal.
The only counter argument is made by the appellee, Phillip Harness, Director of the Division of Workers Compensation. Appellee argues that because a procedure is not present to review decisions on recusal, the Secretary has broad powers to provide such procedures to assure due process. Appellee cites Kyburz v. Franklin, 23 Kan. App. 2d 423, 934 P.2d 141 (1997), and Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239 (1969). At oral argument appellee also argued that the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., applies to this proceeding and Riedmiller has failed to exhaust his administrative remedies.
We are convinced that neither Kyburz nor Rydd is controlling. Both cases dealt with situations where no right to review existed. Based on our analysis, such is not the case here as a ruling on a motion to recuse can be reviewed by tire Board and by this court on appeal. Further, the KAPA applies only to the extent that other statutes expressly provide that the provisions of KAPA govern proceedings under those statutes. K.S.A. 77-503. Reifschneider v. Kansas State Lottery, 270 Kan. 560, Syl. ¶ 4, 17 P.3d 907 (2001). Nothing in the worker compensation statutes provide that KAPA applies to the proceedings here. “In general, the changes to the workers compensation code were designed to shift the de novo review of the district court to the newly created Workers Compensation Board of Appeals. The appellate review of Board decisions was designed to be filed directly with the Court of Appeals.” Hall v. Roadway Express., Inc., 19 Kan. App. 935, 939, 878 P.2d 846, rev. denied 255 Kan. 1001 (1994).
While the Director or the Board is free to adopt the methodology of K.S.A. 20-311d to use in deciding whether an ALJ should recuse, they are not free to create new appellate jurisdiction. Obviously, it would be preferable for the legislature to specifically set out the procedures for seeking the recusal of an ALJ and for appeals from the granting or denying of such motions. However, in the absence of such procedures the Board has the authority under its broad legislative mandate to review decisions of an ALJ granting or denying such motions. Although at this stage in the process, sending the matter back to the Board may frustrate the parties, the remedy lies with the legislature, not the courts. See Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999).
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Rulon, C.J.:
Plaintiff Vanessa Simental Hernandez appeals the decision of the district court denying her personal injury protection survivor s benefits. We affirm.
On May 24, 1997, Theodora Hernandez died from injuries sustained in a vehicle collision in Colorado. At the time of the collision he was driving a Nissan Maxima owned by Sandra Simental. Theodora and Sandra were not married, but they lived together in Kansas and had a child, Vanessa Simental Hernandez, bom March 15, 1997. Sandra had insured the car with Guaranty National Insurance Company (Guaranty).
Plaintiff filed a petition against Guaranty seeking personal injury protection (PIP) benefits in the form of survivor’s benefits, essential services, and funeral expenses. After a bench trial, the district court awarded appellant $10,800 in survivor’s benefits. In doing so, the court said plaintiff was a survivor as defined in K.S.A. 40- 3103(x), entitling her to survivors benefits under K.S.A. 40-3107(f). Guaranty filed a motion to reconsider, arguing the court relied upon inapplicable provisions of the KAIRA and that Theodoro owned an automobile, for which the KAIRA required an insurance policy. The court agreed with Guaranty and voided its prior judgment that awarded plaintiff PIP benefits.
This issue requires statutory interpretation of the KAIRA, which is a question of law giving this court unlimited review. Morris v. American Standard Ins. Co., 26 Kan. App. 2d 933, 935, 996 P.2d 349, rev. denied 269 Kan. 933 (2000).
“ ‘The purpose of the Kansas automobile injury reparations act [KAIRA] is to make personal injury protection insurance mandatory by requiring every owner of a motor vehicle obtain first party coverage for personal injury protection benefits payable by his own insurance company.’ ” Dreiling v. State Farm Mut. Auto. Ins. Co., 227 Kan. 851, Syl. ¶ 1,610 P.2d 611 (1980). In this regard, a person injured while occupying a motor vehicle owned and insured by someone else is not entitled to recover any PIP benefits if he or she owns a motor vehicle, with respect to which a liability insurance policy is required by the KAIRA. K.S.A. 40-3109(a)(3). See also Dreiling, 227 Kan. at 855-56 (denying PIP benefits to plaintiff because he owned a vehicle for which he was required, but had failed, to maintain an insurance policy). In compliance with this provision, Guaranty’s insurance policy specifically excluded such persons from coverage.
Plaintiff concedes that Theodoro would not have been entitled to PIP benefits had he lived because, at the time of the accident, he owned a vehicle that was not insured. See 227 Kan. at 855-56. Furthermore, Theodoro would have been prevented under both the KAIRA and Guaranty’s policy from recovering PIP benefits because the accident occurred in Colorado, not in Kansas. See K.S.A. 40-3109(a)(3) (limiting an insurer’s duty to pay PIP benefits to persons other than the owner for injuries sustained only in this state).
Despite Theodora’s lack of an entitlement to PIP benefits, plaintiff claims she is entitled to recover survivor’s benefits. Plaintiff bases her argument on the fact that she did not own a motor vehicle at the time of the accident. According to plaintiff, because she is a relative of and resides with the owner of the car (Sandra), plaintiff should be covered under Sandra’s insurance. This argument has no legal merit.
Clearly, because Theodoro would not he entitled to any PIP benefits had he survived the accident, plaintiff is not entitled to survivor’s benefits as a result of Theodora’s death.
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Pierron, J.:
Scott M. Arculeo appeals his convictions in two Lyon County cases. In 97CR350, he was convicted by a jury of one count of rape, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child. In 97CR180, he was convicted on stipulated facts to the court of three counts of aggravated criminal sodomy, four counts of sexual exploitation of a child, and one count of criminal possession of a firearm. The cases were consolidated on appeal.
On May 20, 1997, Officer Mark Senn of the Emporia Police Department responded to a report of a domestic dispute at Arculeo’s apartment. When he arrived on the scene, Officer Senn found Darlene Murdock, Arculeo’s common-law wife, lying in the street and emotionally upset. Murdock told Officer Senn she had been thrown out of her house, had no money, and knew no one in town. Officer Senn stated Murdock had suicidal ideation and pursuant to department policy, he took her to the hospital for a mental evaluation. During the 2Vz hours the two sat in the hospital waiting room, Murdock made statements which formed the basis of the affidavit for the search of Arculeo’s apartment.
Murdock told Officer Senn that within the last 2 weeks Arculeo had allowed two females to live with them. She said Arculeo gave one of the females $250 to buy some illegal drugs. Murdock ad mitted to using some of the drugs after the female returned to the apartment. Murdock told Officer Senn the female had the drugs in a briefcase. She said they did not use all the drugs and the remainder was being stored in Arculeo’s personal safe in his bedroom or in the briefcase. Murdock also said Arculeo liked to use a video camera and that he may have videotaped some of the drug use incidents.
Officer Senn obtained a search warrant based on the information received from Murdock. During execution of the search warrant and a search of Arculeo’s personal safe, officers discovered several videotapes, photographs of nude or semi-nude young boys, and rolls of 35 mm film and instamatic film. The officers also found a briefcase with a zip lock bag inside containing a white powdery substance, several smoking pipes, rolling papers, a plastic bag containing vegetation, and a gun under Arculeo’s bed. Upon viewing the videotapes, officers discovered pornographic material of young boys involved in sexual activity, including sexual activity with Arculeo and with both Arculeo and Murdock.
On May 27,1997, Arculeo was arrested and charged in Case No. 97CR180 with multiple counts of aggravated criminal sodomy, aggravated indecent liberties with a child, sexual exploitation, sexual exploitation of a child, and criminal possession of a firearm. The children involved in 97CR180 were P.G., D.R., D.G., and M.M. As information of the case became public, other victims came forward. On August 27, 1997, Arculeo was charged in Case No. 97CR350 with rape of a child under 14 years, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties. The children involved in 97CR350 were A.G., M.M., M.W., and K.G.
Although 97CR180 was scheduled for trial before 97CR350, due to repeated continuances of 97CR180, a jury trial in 97CR350 occurred first. Each of the four victims, A.G., M.M., M.W., and K.G., testified to the sordid details of Arculeo’s sexual abuse when they would spend the night at his house. The jury found Arculeo guilty on all counts. The trial court granted the State’s request for an upward departure based on the following factors:
“(1) Defendant’s acts were part of a comprehensive scheme to sexually abuse and record the abuse of minor children perpetrated over a significant period of time as opposed to isolated acts; (2) Defendant’s acts involved the intentional cultivation of intense personal relationships designed to promote defendant’s access to minor children; (3) Defendant manipulated parents of children in order to gain access to children to satisfy his deviant sexual appetite.”
On August 25, 1998, the trial court sentenced Arculeo to consecutive sentences of 231 months’ incarceration for rape, 115 months’ incarceration for each of the aggravated criminal sodomy convictions, and 76 months’ incarceration for each of the aggravated indecent liberties convictions. However, the trial court reduced the entire sentence to a total period of incarceration of 462 months in order to conform to the limits set by the Kansas Sentencing Guidelines Act. See K.S.A. 2000 Supp. 21-4720(c)(3).
The same day he was convicted in 97CR350 (August, 25,1998), Arculeo filed a request for a bench trial on stipulated facts in 97CR180. The trial court granted the request and ultimately found Arculeo guilty on 8 of the 13 charges. Arculeo requested a downward durational departure, arguing that since the proceedings in 97CR180 and 97CR350 were tried separately, his criminal histoiy score was now the highest possible category (“A”), when it would have been substantially less had the cases been joined. The court denied Arculeo’s departure motion and sentenced him to the presumptive sentences for the crimes in 97CR180. The court sentenced Arculeo to consecutive sentences as follows: aggravated criminal sodomy, 308 months; 34 months on each of the four convictions for sexual exploitation; 77 months on each of the remaining two convictions for aggravated criminal sodomy; and 9 months for criminal possession of a firearm. The trial court sentenced Arculeo to a total period of incarceration of 505 months. The sentence was ordered to run consecutive to the 462 months imposed in 97CR350 and to the sentences in a long list of other cases where he was on probation for burglaries and thefts. The total sentence appears to be something in the area of 100 years.
Arculeo appeals his convictions in both 97CR180 and 97CR350. The cases were consolidated on appeal.
Omissions from, the Search Warrant Affidavit
Arculeo first argues evidence seized from his house was illegally obtained because the affidavit supporting the original search warrant deliberately omitted material facts concerning the reliability of the informant. He points out the affidavit for the search warrant omitted evidence that Officer Senn: (1) found Murdock lying in the middle of the street when he responded to the domestic call and that she had suicidal ideation; (2) was aware of Murdock’s mental and intellectual handicap and Murdock gave the incriminating statements while she was waiting for a mental health center evaluation at a hospital emergency room; (3) noticed Murdock had subpar intelligence and she appeared easily persuaded; and (4) was aware the Women’s Resource Center assisted Murdock with her finances. Arculeo argues if this additional information had been included in the affidavit, a judge could not have found sufficient probable cause for the issuance of the search warrant due to the serious questions as to Murdock’s reliability.
At the hearing on Arculeo’s motion to suppress, Officer Senn admitted he knew the omitted information when he requested the affidavit, but he did not put it in his application because he felt the information did not have any bearing on the search warrant. The State argued the omission of those facts would not have prevented the magistrate from finding probable cause to issue the search warrant.
In denying Arculeo’s suppression motion, the trial court found there was no evidence any of the information in the application was incorrect. The court also found the informant was die common-law wife of the defendant and her statements of personal drug use with the defendant provided corroboration for her statements and added veracity to their reliability. The court concluded the totality of the circumstances provided probable cause for issuance of the search warrant and the evidence would cause a reasonable person to believe criminal activity was occurring in the defendant’s apartment. We agree.
K.S.A. 22-2502 provides that a search warrant shall be issued upon oral or written application “which states facts sufficient to show probable cause that a crime has been or is being committed.” Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984).
While generally a defendant may not dispute allegations supporting a search warrant, a hearing under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), is required if a defendant makes a showing supported by sworn allegations that the application for the search warrant contained material statements of deliberate falsehood or of reckless disregard for the truth which were necessary to the finding of probable cause. State v. Jensen, 259 Kan. 781, 787, 789, 915 P.2d 109, cert. denied 519 U.S. 948 (1996). The same rule applies to a deliberate omission of material information. State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982). While Arculeo never specifically requested a Franks hearing, the motion to suppress was, in effect, a Franks hearing. A Franks hearing is simply an evidentiary hearing on a motion to suppress evidence based on a challenge to the facts included or omitted from a search warrant. See State v. Jacques, 225 Kan. 38, 44, 587 P.2d 861 (1978).
Where, as here, information is omitted from an application for a search warrant, it should be determined whether the omission was material and whether it rendered the affidavit unreliable. State v. Cowdin, 25 Kan. App. 2d 176, 181, 959 P.2d 929, rev. denied 265 Kan. 887 (1998). In other words, would the judge in the instant case who issued the search warrant have had probable cause to do so had he been informed of the omissions claimed by Arculeo.
Arculeo does not challenge the probable cause supporting the original search warrant. The affidavit clearly sets forth evidence that Murdock saw drugs in the house, used drugs with the defendant, and saw drugs that had been purchased within the last 2 days; that Arculeo may have videotaped the incidents of drug use; and that the tapes and remaining drugs were in Arculeo’s personal safe. Instead, Arculeo argues the information omitted by Officer Senn would have affected the magistrate’s probable cause determination and we should reverse the denial of his suppression motion. We disagree.
First, the information obtained by Officer Senn came from Arculeo’s common-law wife. Arculeo does not dispute his common-law marital status. ‘When the information in an affidavit for a search warrant is stated to have been obtained from the defendant’s spouse, who resides with the defendant in the residence to be searched, no further showing of the witness’ reliability is required.” 25 Kan. App. 2d 176, Syl. ¶ 2. We also agree with the trial court that Murdock’s admitted involvement in the drug activity increased the veracity of her statements.
Second, there is no evidence the omitted information affected the reliability of Murdock’s statements. Officer Senn testified there was nothing about Murdock’s mental capacity that made him feel her statements were unbelievable. Officer Senn stated that while she seemed “a little slow,” he meant that “she seemed like a person that could be persuaded to do things that a normal person would probably stand up for,” Further, Murdock told Officer Senn she had graduated from high school and that she knew the difference between right and wrong. Additionally, there is no evidence Murdock’s possible retardation or the situation as observed by Officer Senn affected the reliability of Murdock’s statements.
We find the search warrant would have reasonably been issued even with the inclusion of the other information and that the officer certainly had a right to rely on it. See United States v. Leon, 468 U.S. 897, 918-922, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984) (exclusionary rule should not be applied to bar evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant is ultimately found to be invalid).
Compulsory Joinder
Next, Arculeo argues the trial court erred in denying his motion to dismiss based on his claims of compulsory joinder and that prosecution of 97CR180 was barred by evidence presented at sentencing in 97CR350.
K.S.A. 21-3108 provides:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began.”
K.S.A. 21-3108 is a codification of the double jeopardy rule and contains two parts, the “compulsory joinder” rule and the “identity of elements” rule. In re Berkowitz, 3 Kan. App. 2d 726, 741, 602 P.2d 99 (1979). Under the compulsory joinder rule, if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution. 3 Kan. App. 2d at 742.
The object of the compulsory joinder rule is simply to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged, and then prosecuting the defendant in a subsequent trial using evidence presented in the earlier trial. 3 Kan. App. 2d at 743. The compulsory joinder rule furthers the constitutional guarantee against multiple trials and is not concerned with multiple convictions or multiple punishments for separate offenses. 3 Kan. App. 2d at 734.
Kansas courts utilize a three-prong test when determining whether the compulsory joinder rule applies. As Chief Judge Foth stated in Berkowitz:
“For the Kansas statute [K.S.A. 21-3108] to bar a prosecution under the circumstances present in this case three elements must coalesce: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.” 3 Kan. App. 2d at 743.
In the present case, there is really no argument concerning satisfaction of the first and third prongs of the Berkowitz test. Under the first prong, Arculeo was convicted on all five counts in 97CR350. Under the third prong, there was nothing stopping the State from amending the complaint in 97CR180 to include the charges in 97CR350, or vice versa. The events involved similar sexual conduct and the State could easily have brought the cases together. See State v. Anthony, 257 Kan. 1003, 1016, 898 P.2d 1109 (1995) (joinder may be proper under K.S.A. 22-3203[l] if the charges are based on two or more transactions connected together or constituting parts of a common scheme or plan). All the cases in 97CR350 and 97CR180 were felonies occurring in Lyon County and could have been charged in the same complaint under K.S.A. 22-3202.
At the hearing on the motion to dismiss, the State argued Arculeo could have requested a joinder of the claims under K.S.A. 22-3203(1) and it was his tactical decision to “roll the dice” by keeping the charges separate in order to potentially benefit from an acquittal in the first trial.
There is not a burden on either the defense or the prosecution to bring a motion for joinder under K.S.A. 22-3203. While the decision to keep cases separate is a roll of the dice for either party, it is the prosecution that is restricted under K.S.A. 21-3108 with regard to the effect of a former prosecution upon remaining crimes. Under K.S.A. 21-3108, the prosecution must be careful that no significant evidence of the subsequent case is presented in the prosecution of the first case.
The issue in this case is whether the evidence of 97CR180 presented at sentencing in 97CR350 was sufficient to trigger application of the second prong of the Berkowitz test. The factual aspect of the second prong is clearly met. There can be no doubt the evidence of sexual exploitation of the children.in 97CR180 came into evidence during die departure hearing in 97CR350. The State called Detective John Cronk of the Emporia Police Department to testify on the State’s motion for an upward durational departure. Detective Cronk stated he was called to specifically testify concerning the evidence to be used at trial in 97CR180. Detective Cronk testified about all the videotapes and photographs discovered in the search of Arculeo’s apartment. He then gave a detailed and explicit rendition of the evidence of sexual activity found on each of the 6 videotapes to be used in 97CR180. Detective Cronk also described in detail the 14 photographs of nude young boys found in Arculeo’s apartment. It is undisputed that with one exception, none of the victims in the videotapes were the same victims in 97CR350. The exception is that M.M., who was a victim in both cases, was on one of the videotapes, but Detective Cronk testified there was no sexual contact shown.
During argument on the departure motion, the prosecutor stated the reason for presentation of the evidence of the crimes in the yet-to-be tried case of 97CR180 was to show that Arculeo had molested 5 other children, bringing the number of child victims to a total of 9.
As stated above, K.S.A. 21-3108 is a codification of the double jeopardy rule, which prevents multiple punishments for the same offense, found in the Fifth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See State v. Thompkins, 271 Kan. 324, Syl. ¶ 4, 21 P.3d 997 (2001). The present case offends the double jeopardy rule. Not only was evidence of the crimes in 97CR180 presented to the trial court at sentencing in 97CR350, but the yet-to-be-tried crimes were utilized by the trial court to enhance Arculeo’s sentence as an upward departure factor. The first departure factor adopted was: “(1) Defendant’s acts were part of a comprehensive scheme to sexually abuse and record the abuse of minor children perpetrated over a significant period of time as opposed to isolated acts.” None of the crimes in 97CR350 were recorded on videotape or depicted in the pictures found in Arculeo’s apartment.
The majority of cases dealing with the compulsory joinder rule brought on by a prior prosecution in K.S.A. 21-3108 involve situations where evidence is presented during trial or during a plea hearing. See, e.g., State v. Wilkins, 269 Kan. 256, 261, 7 P.3d 252 (2000); State v. Barnhart, 266 Kan. 541, 542, 972 P.2d 1106 (1999); State v. Todd, 262 Kan. 916, 941 P.2d 1374 (1997). The legal question presented by the second prong of the Berkowitz test is whether evidence of crimes admitted at a sentencing hearing, which is presented to enhance the defendant’s sentence, constitutes introduction of evidence in a “prior prosecution” if those other crimes are prosecuted at a later time. We believe it does.
Black’s Law Dictionary 1221 (6th ed. 1990) defines “prosecute” as follows: “To follow up; to carry on an action or other judicial proceeding; to proceed against a person criminally. To prosecute’ an action is not merely to commence it, but includes following it to an ultimate conclusion.” Arculeo cites State v. Bowles, 70 Kan. 821, 827, 79 Pac. 726 (1905), where the court held:
“In the American and English Encyclopedia of Law (2d ed.), volume 23, page 268, there is a fair statement of what is included in the term ‘prosecute.’
‘To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or information.’ ”
The sentencing phase of a criminal proceeding clearly constitutes a proceeding in the “prosecution” of a criminal case. The sentencing of a defendant is the culmination of a criminal prosecution. Further, the sentencing hearing is a critical phase of a criminal proceeding, requiring the presence of the defendant. K.S.A. 2000 Supp. 22-3405; State v. Braun, 253 Kan. 141, 145-47, 853 P.2d 686 (1993). Also, we agree with Arculeo that sentencing hearings have become trials within trials because of the Kansas Sentencing Guidelines Act, and the resolution of departure motions now usually filed by either one or both parties.
We find the State’s presentation of the evidence in 97CR180 at the sentencing hearing in 97CR350 was covered by the compulsory joinder rule in K.S.A. 21-3108. The State was prohibited from prosecuting Arculeo in 97CR180 after those unproven crimes had been used to enhance his punishment in 97CR350. The trial court erred in denying Arculeo’s motion to dismiss 97CR180. We reverse the conviction in 97CR180 and order the trial court to grant a dismissal of those charges as a violation of Arculeo’s double jeopardy right.
Multiple Acts Unanimity Instruction
Next, Arculeo argues the trial court erred in failing to instruct the jury on a unanimous verdict. Our standard of review for determining whether a defendant is entitled to a new trial in a mul tiple acts case because the jury was not given a unanimous verdict instruction has been unsettled until recently.
Panels of the Court of Appeals have fallen into two camps. In the structural error approach, our court has held that a trial court’s failure to give a unanimous verdict instruction in the appropriate circumstances was structural error and required automatic reversal. See State v. Wellborn, 27 Kan. App. 2d 393, Syl. ¶ 2, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000); State v. Barber, 26 Kan. App. 2d 330, 331, 988 P.2d 250 (1999).
In the other camp, our court has applied a harmless error analysis. See State v. Hill, 28 Kan. App. 2d 28, 11 P.3d 506 (2000), aff'd 271 Kan. 929, 26 P.3d 1267 (2001).
In its review of Hill, the Supreme Court noted the diversity of precedent in the area and then adopted a two-step harmless error analysis:
“In applying a harmless error analysis, the first step is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents .... When jury confusion is not shown under the first step, the second step is to determine if the error in fading to give an -unanimity instruction was harmless beyond a reasonable doubt with respect to all acts.” 271 Kan. at 939.
In Hill, the problem arose when the victim testified at trial, unexpectedly, that two digital rapes occurred during the incident instead of just one. The jury instructions did not specifically separate the two acts. As Justice Six noted:
“[Mjore than one act was presented as evidence of a single criminal offense. Here, materially identical evidence was presented with respect to both acts of rape. Hill did not present a separate defense or offer materially distinct evidence of impeachment regarding any particular act. The defense presented a general denial of participation in any wrongful conduct.
“[J]uiy confusion was not shown here. In applying a harmless error review, since there was no extrinsic evidence to support the charges, the sole issue was the credibility of the victim’s account of the two alleged penetrations. The evidence offered no possibility of jury disagreement regarding Hill’s commission of either of these acts. By the jury’s rejection of Hill’s general denial, we can unequivocally say there was no rational basis by which the jury could have found that Hill committed one rape but did not commit the other.” 271 Kan. at 940.
As Justice Six noted earlier in Hill:
“ ‘In those cases in which the defense to charges based on multiple acts is a general denial, differentiation among a number of events is not required of the jury and therefore is not an issue in controversy. The jury either accepts the victim’s testimony as to all and convicts, or it accepts the defendant’s denial and acquits on all charges. The failure to give a unanimity instruction in those instances is harmless error; it does- not relate to an issue in controversy.’ Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonzaga Law Review 277, p. 302 (1996).” 271 Kan. at 938-39.
In the instant case the facts in Counts II and III of 97CR350 charge factually separate incidents. The Court of Appeals stated in Hill: “Incidents are factually separate when independent criminal acts have occurred at different times or when a subsequent criminal act is motivated by ‘a fresh impulse.’ ” 28 Kan. App. 2d 28, Syl. ¶ 4. We are dealing with a multiple acts case.
The case at bar demonstrates the difficulty of requiring a specific election or jury agreement where the evidence shows repeated sexual abuse of a young child over a long period of time. M.M.’s description of the alleged abuse offered no distinguishing characteristics identifying any separate and distinct incidents of abuse. Rather, the abuse “result[ed] in an amalgamation of the crimes in the child’s mind”; thus, “the child’s testimony [was] reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.” People v. Luna, 204 Cal. App. 3d 726, 748, 250 Cal. Rptr. 878 (1988).
Arculeo’s due process right to a reasonable opportunity to defend against the charges was not violated. The .sole issue was credibility. The generic nature of the evidence did not raise a question as to the sufficiency of that evidence. While the jury was not provided any evidence as to the frequency of the alleged crimes, e.g., once a month for 4 months, none was necessary because the appellant was charged with only one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child. Moreover, M.M. gave sufficiently specific evidence of the sexual acts. The jury could have reasonably concluded from M.M.’s testimony that his account could have come only from personal experience.
Furthermore, Arculeo’s right to jury unanimity was not endangered. Although the evidence indicated that the incidents of sexual acts occurred more than the one time charged, the evidence in its entirety offered no possibility of jury disagreement regarding Arculeo’s commission of any of these acts. The only issue before the jury was the credibility of M.M.’s account of the repetitive sexual offenses alleged. By the jury’s rejection of Arculeo’s general denial, the appellant has his unanimous jury verdict.
The above analysis and facts as presented make this case an appropriate subject for the harmless error rule. “[Ejrrors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done. [Citation omitted.]” State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997). Any error in not having the prosecution elect a crime or instructing the jury on unanimous verdict was harmless error. In State v. Jones, 51 Cal. 3d 294, 307, 270 Cal. Rptr. 611, 792 P.2d 643 (1990), the court observed that “[s]ome cases found harmless any error in fading either to select specific offenses or [to] give a unanimity instruction, if the record indicated the jury resolved the basic credibility dispute against the defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.”
As in the case of R.L.G., Jr. v. State, 712 So. 2d 348 (Aa. Crim. App.1997), the present case was decided on the issue of credibility. The defense was that the incidents did not occur. There was no logical way the jury could have found Arculeo committed one of the incidents but not the others. Any juror believing that one incident took place would have believed that all the incidents took place. No rational juror could have had a reasonable doubt as to any of the incidents involved. By returning guilty verdicts, the jurors necessarily rejected Arculeo’s defense. By believing the victim, the jury unanimously found that all the incidents occurred.
Under these circumstances, the jury agreed on the acts forming the basis for the verdicts. Aculeo’s rights to notice of the charges against him and to be convicted only upon sufficient proof of those acts were preserved. The trial court’s failure to give a specific una nimity instruction due to the prosecution’s failure to specifically elect particular acts was harmless error.
Definition of Sodomy
Next, Arculeo argues the trial court erred in giving the jury a non-PIK instruction on the definition of sodomy. There was no objection to the instruction now complained of on appeal.
Arculeo’s complaints involve juiy instruction No. 18. Both the State and defense counsel submitted proposed jury instructions. The trial court used a slightly modified version of the State’s instruction on the definition of “Sodomy.” Instruction No. 18 provided: “As used in these instructions ‘sodomy means having oral or anal sexual relations between persons, including oral-genital stimulation between the tongue of a male and the genital area of a male or female.”
Arculeo argues the court’s definition of sodomy is confusing and misleading and allows noncriminal conduct to constitute sodomy. He also contends the second half of the instruction improperly highlighted the testimony of one of the child victims, M.W., and validated it in the eyes of the jury.
Our standard of review under these facts is clear:
“[N]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
We find no significant error and surely no reversible error.
Sodomy is defined in K.S.A. 21-3501(2) as “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.” PIK Crim. 3d 57.18(B)(d)(l) and (4) follow the statutory definition of sodomy by instructing that sodomy is: “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; . . . anal penetration, however slight, of a male or female by any body part or object.”
It is obvious the trial court in this case relied on the definition of sodomy found in PIK Crim. 2d 57.18(B)(d)(l) (1992 Supp.), which provided: “ ‘Sodomy means: (1) having oral or anal sexual relations between persons, including oral-genital stimulation between the tongue of a male and the genital area of a female.” Further, the State’s proposed instruction on sodomy follows PIK Crim. 2d 57.18(B)(d)(l) (1992 Supp.) almost identically. The PIK Crim. 2d 57.18 instruction for sodomy clearly addressed the statutory definition as found in the 1990 formulation. K.S.A. 1990 Supp. 21-3501(b)(2) stated: “ ‘Sodomy’ means oral or anal copulation, including oral-genital stimulation between the tongue of a male and the genital area of a female.” The legislature amended the definition of sodomy in 1991 to its current form. It seems the PIK Crim. 2d instruction for sodomy as “oral or anal sexual relations between persons” was intentionally not a recitation of the 1990 statute, but was an attempt to explain the statutory language in K.S.A. 1990 Supp. 21-3501(b)(2)—“oral or anal copulation.”
We find no error in the trial court’s use of the earlier language in PIK Crim. 2d 57.18(B)(d)(l) (1992 Supp.). “ ‘The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.” State v. Dias, 263 Kan. 331, 335, 949 P.2d 1093 (1997)(quoting State v. Moncla, 262 Kan. 58, Syl. ¶ 5, 936 P.2d 927 [1997]). We do not find the difference in defining sodomy in PIK Crim. 2d rather than in PIK Crim. 3d to be reversible error. The jury instructions were not clearly erroneous. See Henry, 263 Kan. at 131. We do not believe the jury would have rendered a different verdict had the alleged error in jury instructions not occurred.
We also do not find that the sodomy instruction gave undue emphasis to M.W.’s testimony that Arculeo “licked [her] private.” The trial court did not pull the language “including oral-genital stimulation between the tongue of a male and the genital area of a male or female” out of a hat. As previously stated, this language came from K.S.A. 1990 Supp. 21-3501(b)(2) and PIK Crim. 2d 57.18(B)(d)(l) (1992 Supp.). The jury instruction simply expressed the State’s theory on how Arculeo committed the crime of aggra vated criminal sodomy. It was up to the jury to decide if it hap-
Arculeo relies on State v. Jones, 3 Kan. App. 2d 553, 598 P.2d 192 (1979), to support his argument that an instruction may not provide undue emphasis to a specific piece of evidence. We do not find Arculeo’s reliance on Jones to be persuasive. In fact, the Jones court specifically stated that had the only error been the alleged erroneous jury instruction, the court would have considered it harmless since “the instruction as given is no grave departure from the accepted form of the instruction [approved in previous cases and in review of the jury instructions as a whole].” 3 Kan. App. 2d at 555.
The jury instructions properly instructed the jury and were a fair statement of the law. The jury could not have been reasonably misled by the instructions even though they may be in some way erroneous. See State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998).
Prosecutorial Misconduct
Next, Arculeo argues the State’s attorney committed prosecutorial misconduct in closing argument when he vouched for the credibility of the child victims. There was no objection at trial to the State’s comment.
Kansas does not ordinarily apply the plain error rule. Reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument if a contemporaneous objection is not made. If the prosecutor’s statements, however, rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. State v. Lumley, 266 Kan. 939, 964-65, 976 P.2d 486 (1999).
Arculeo objects to the following comments by the prosecutor during closing argument:
“Can they say, well, do children he? Well, do adults he? People lie. You have to weigh that. Are these children, each individual child, lying about this incident? Ladies and gentleman, I would submit to you they are not. We have to prove beyond a reasonable doubt as to the claims proven—or required by law. The evidence shows that, unrefuted evidence. Thank you.”
Arculeo contends he was denied a fair trial because of the prosecutor’s statements in conjunction with the evidence that one of the child victims, A.G., had previously falsely accused her stepfather of masturbating in front of her in order to get him out of the house.
Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994); State v. Mosley, 25 Kan. App. 2d 519, Syl. ¶ 3, 965 P.2d 848, rev. denied 266 Kan. 113 (1998).
In this case, the prosecutor’s comments were not so gross and flagrant as to prejudice the jury against Arculeo and deny him a fair trial. This case does not present a situation where the prosecutor improperly vouched for the credibility of a witness. The court in State v. Martens, 521 N.W.2d 768, 772 (Iowa App. 1994), stated:' “An argument amounts to impermissible vouching if the jury could reasonably believe the prosecutor was expressing a personal belief in the credibility of a witness, either through explicit personal assurances or implicit indications that information not presented to the jury supports the witness.”
The comments here were well within the considerable latitude given to a prosecutor in arguing a case to a juiy. See State v. Spresser, 257 Kan. 664, 669-70, 896 P.2d 1005 (1995) (in summing up a case to the jury, the prosecutor may make reasonable inferences drawn from the evidence). We find no reversible error, if error at ah.
Change of Venue
For his last argument, Arculeo contends the trial court abused its discretion in denying the motion for change of venue. He argues the jury pool was irreparably tainted as a result of unfair media coverage of his case.
Change of venue is governed by K.S.A. 22-2616. Subsection (1) provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
The principles underlying a motion for a change of venue were reviewed in State v. Ruebke, 240 Kan. 493, Syl. ¶¶ 1-3, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), where the court said:
“Media publicity alone has never established prejudice per se.”
“The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985).”
“The defendant must show that such prejudice exists in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of die defendant. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977).”
Initially, we recognize Arculeo waived any right he had to appeal tire court’s decision denying his motion for change of venue. Arculeo filed his motion for change of venue in Case No. 97CR180. He did not file a motion for change of venue in Case No. 97CR350. Due to repeated continuances in 97CR180, the trial in 97CR350 occurred first. After his conviction in 97CR350, Arculeo’s request for a bench trial on stipulated facts in 97CR180 was granted. The lack of a jury trial in 97CR180 eliminated all concerns inherent in a motion for change of venue. K.S.A. 22-2616(1) (court shall order change of venue when satisfied prejudice so great against the defendant that he or she cannot obtain a fair and impartial trial). Arculeo simply cannot show prejudice in the community when he does not have a jury trial.
Even though Arculeo waived his motion for change of venue, we acknowledge the connected nature of 97CR180 and 97CR350 and find that even if the motion for change of venue is considered applicable to both cases, the trial court did not abuse its discretion in denying the motion.
Straightforward reporting of a crime, even if the coverage is extensive, is usually not grounds for a change of venue. See Patton v. Yount, 467 U.S. 1025, 1030, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984); Dobbert v. Florida, 432 U.S. 282, 303, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977); State v. Grissom, 251 Kan. 851, 928-29, 840 P.2d 1142 (1992); State v. Dunn, 243 Kan. 414, 425-26, 758 P.2d 718 (1988).
In State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977), the defendant was charged with aggravated robbery, aggravated sodomy, and the rape of an elderly woman who stopped at a highway rest stop west of Parsons. The trial was held in “a rather sparsely populated community,” as noted by the court. 223 Kan. at 223. In upholding the trial court’s denial of the motion for a change of venue, the court stated:
“In this case defendant presented only newspaper articles in support of his motion for change of venue. No evidence or affidavits were introduced to establish the effect publicity might have on prospective jurors. It does not appear that jury selection was inordinately difficult due to pretrial publicity, or that jurors were even aware of the publicity. The trial court properly denied a motion for change of venue under those circumstances.” 223 Kan. at 223.
The case of State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987), is similar to the small community situation in the present case. In Hunter, the defendant and two accomplices were charged with an execution-type slaying of two local men and the wounding of a deputy sheriff and another man. There was extensive pretrial publicity and emotions ran high in the small community. The evidence presented at the hearing on the motion for change of venue consisted of: (1) extensive pretrial media coverage of the crime; (2) phone calls to the sheriff s department threatening the defendants; (3) 14 affidavits from community members stating defendant could not get a fair trial; (4) a petition signed by more than 1,000 people in the county urging the Governor to sign death penalty legislation; and (5) out of 95 potential jurors, 89 knew at least one of the victims, and of the final jury panel, 5 knew one or more victims. 241 Kan. at 635-36.
The Hunter court decided the trial court did not abuse its discretion in denying the defendant’s motion for change of venue. The court stated: “[E]ach [juror] stated under oath that he or she would be able to remain fair and impartial. In order to find that defendant has established prejudice, we would have to assume that these jurors violated their oaths; this we cannot do.” 241 Kan. at 636.
Arculeo’s basic complaint is that the newspaper articles portrayed him as a “drug using kiddie porn kingpin.” The court in the early case of State v. Furbeck, 29 Kan. 532, 533-34 (1883), with reference to certain newspaper articles being the basis for a change of venue, stated:
“We have examined these articles, and find in them nothing more than ordinary newspaper accounts of an alleged crime, the arrest of the party charged, and the prehminary examination. They are simply records of matters of public interest, alleged to have taken place; they contain no denunciations, invectives, appeals to passion, or efforts to create a prejudice against the defendant. If they did create a prejudice, it is simply because the matters stated therein to have been done by the defendant are not popular with a community which believes in respecting the rights of property.”
The facts in this case are similar to those in Gilder as far as the evidence presented in conjunction with the motion for change of venue. Arculeo presented evidence in the form of newspaper articles and transcripts from news reports on local radio stations. We have reviewed all the evidence and find it is a fairly factual rendition of the criminal proceedings involving Arculeo and Murdock. As the trial court held below, this evidence simply did not satisfy Arculeo’s burden for obtaining a change of venue. Arculeo has presented nothing more than mere speculation. He failed in his burden to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. State v. Haislip, 237 Kan. 461 486, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985). We do not find the trial court abused its discretion in denying the motion for change of venue.
We affirm Arculeo’s convictions in 97CR350. We reverse the trial court’s denial of Arculeo’s motion to dismiss in 97CR180 and order the court to reverse the convictions and dismiss the charges in 97CR180. Under the recent decision of Gould, we must also remand Arculeo’s convictions in 97CR350 for resentencing.
Affirmed in part, reversed in part, and remanded with directions. | [
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Marquardt, J.:
The potential adoptive parents appeal the trial court’s denial of their motion to terminate the parental rights of M.B., the biological father of Baby Girl S. We reverse in part, dismiss in part, and remand with instructions consistent with this opinion.
When S.S. was 18 years of age, she met 38-year-old M.B. S.S. testified that they began dating in February or March 1997. M.B. frequently stayed in S.S.’s college dorm room. In June 1998, S.S. moved to an apartment. She was the only signatory on the lease and paid the rent.
In May 1999, M.B. caught S.S. kissing another man, B.R. In June 1999, S.S. decided that she wanted to occasionally date M.B. while being free to see other people. S.S. asked M.B. to remove his belongings from the apartment. He only removed about half of his belongings and continued to go over to S.S.’s house and “demand sex.” S.S. testified that she allowed M.B. to visit because she was afraid of him.
5.5. believed that M.B. was using the knowledge of her having a sexual relationship with B.R. as “some strange sort of extortion for sex.” S.S. accused M.B. of entering her apartment without knocking, eavesdropping on her telephone conversations, ancLmaking threats. M.B. kept a journal of his thoughts, and many of them related to his desire to injure B.R. M.B.’s comments included, “He’s easy to kill!” and “[Njote: break two of his body parts (arm & 1 finger), knock out right side of mandible and a few upper teeth, crack both orbits (stopping point at this time). Don’t kill him.”
In August 1999, S.S. began to suspect that she was pregnant.
S.S.took a home pregnancy test which was positive. S.S. and M.B. went to a doctor to have a pregnancy test performed. This test was positive, as well. S.S. underwent a quantitative hormone test because M.B. wanted to make sure the baby was his. The results showed that M.B. was the father.
5.5. testified that she wanted to be “adult for the baby,” which included having a civil relationship with M.B. However, in October, S.S. discovered that M.B. had broken his promise to her and had called B.R.’s girlfriend to inform her about S.S. and B.R.’s relationship. S.S. and M.B. argued and S.S. claimed that M.B. threatened to kill her.
5.5. immediately scheduled an appointment for joint counseling. At the last counseling session on November 2,1999, S.S. and M.B. concluded that they could not continue their romantic relationship. S.S. testified that M.B. told her if things could not be the way they were before, he did not want anything to do with her. The therapist’s testimony verified M.B.’s statement.
S.S. had no contact with M.B. from November 2, 1999, until March 2000. During this time period, S.S. considered putting her baby up for adoption. S.S. contacted M.B. in March 2000 and asked for his consent to put the baby up for adoption. M.B. refused and stated that he wanted one of the biological parents to raise the child with financial assistance from the other parent.
After S.S.’s phone call, M.B. made several attempts to contact her. S.S. refused to see him. S.S. delivered the baby on May 2, 2000.
On May 4, 2000, the adoptive parents filed a petition for adoption. S.S. signed a written consent for adoption. The adoptive parents contended that they did not need M.B.’s consent because he had failed to provide support for S.S. during the last 6 months of her pregnancy. M.B. responded by filing a motion to be named a party to the case.
At the hearing on the adoption petition, the trial court concluded that M.B. and S.S. were in contact with each other between March 17, 2000, and the date of the baby’s birth. The trial court believed that S.S. “blocked [M.B.] out of any opportunity to provide support.” Accordingly, the trial court denied the petition for adoption. The adoptive parents timely appeal.
On appeal, the adoptive parents claim that the trial court erred when it denied the adoption and the efforts made by M.B. were not intended to provide support for S.S.
At common law, the unwed father had virtually no rights to the child of an unwed mother. By statute, the unwed father has some rights; however, the unwed father must act affirmatively during the mother’s pregnancy to protect his rights to the child. All facts and circumstances must be considered in determining the rights of the unwed father to the child.
A trial court’s decision whether to terminate a natural father’s parental rights under K.S.A. 59-2136(h) will be upheld if supported by substantial competent evidence. An appellate court does not weigh the evidence or pass upon the credibility of witnesses and must review the evidence in the light most favorable to the party prevailing below. In re 24 Kan. App. 2d 783, 786, 955 P.2d 618 (1997). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999).
K.S.A. 59-2136 provides in pertinent part:
“(h) . . . [T]he court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
“(4) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth.”
“Support,” as that term is set forth in K.S.A. 59-2136(h)(4), does not require that the father provide total support for the mother; however, support that is incidental or inconsequential in nature is not sufficient. Support from the father during the last 6 months of an unwed mother’s pregnancy must be of some consequence and reasonable under all of the circumstances. In re Adoption of Baby Boy B., 254 Kan. 454, 464, 866 P.2d 1029 (1994).
Those instances specified in K.S.A. 59-2136(h)(l)-(7) in which consent may be declared unnecessary are examples of situations in which the relationship of a natural father is little more than biological. 24 Kan. App. 2d at 787.
It is not unreasonable to require substantial efforts by an unwed father to maintain contact with the mother and participate in the pregnancy and birth. 24 Kan. App. 2d at 787. In determining whether a father has failed without reasonable cause to provide support for the mother during the last 6 months of her pregnancy, all the relevant circumstances must be considered. The mother’s refusal of assistance offered by the natural father is a factor in determining if the father provided support to the mother. In re Adoption of Baby Boy W., 20 Kan. App. 2d 295, 299, 891 P.2d 457 (1994).
In In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 822 P.2d 76 (1991), this court affirmed the termination of a natural father’s rights pursuant to K.S.A. 59-2136(h)(4). In that case, the natural father did not provide the mother with money, groceries, or a place to five. Similarly, he did not give her his paycheck or babysit her other children. In the case of Baby Boy W., the natural father made general offers of support, which included a statement to the mother that “if she needed anything to tell me I would do it.” 20 Kan. App. 2d at 297. The father did not offer to give the mother specific sums of money, take her to doctor’s appointments, pay for her prescription vitamins, buy food or clothing, or pay for any of her other living expenses. Termination of the natural father’s parental rights is appropriate where the father merely makes general offers of support.
In contrast, the natural father in Baby Boy B. gave the mother $75 or $80 to spend on entertainment and restaurant meals, $100 for maternity clothing, and $130 for undisclosed expenses. The natural father in that case also attempted to marry the mother, gave her money, and took her out to eat approximately once a week for a 2-month period. He also offered the mother $1,000 from his anticipated tax refund. Given these circumstances, the Kansas Supreme Court affirmed the trial court’s decision to deny the petition for adoption. 254 Kan. at 464-65; see In re K.D.O., 20 Kan. App. 2d 559, 889 P.2d 1158 (1995).
The trial court agreed with S.S. that M.B. had failed to provide support for the period of time from November 2, 1999, to March 17, 2000. This finding has not been appealed by M.B. Accordingly, we need only consider the period from March 17, 2000, until May 2, 2000, the date of the baby’s birth.
S.S. takes the position that M.B. provided no tangible or consequential support for the duration of her pregnancy. Accordingly, we must focus onthetestimonyprovidedbyM.B. and his witnesses in the light most favorable to M.B. as the party prevailing below.
Dennis Wilson testified that he offered M.B. some baby items in December. M.B. retrieved the items from Wilson in June, after the baby was bom. This falls outside the 6-month period contemplated by K.S.A. 59-2136(h)(4). M.B. admitted that he did not deliver the items to S.S., and the crib was still in Wilson’s garage. There is nothing in the record on appeal to show that any of the items ever reached S.S. during any stage of her pregnancy.
Robert Roman testified that M.B. always paid the bill when he and S.S. went to restaurants, and they always drove M.B.’s car, but Roman did not see M.B. buy dinner for S.S. after October 1999. Paige Jackson also saw M.B. pay for S.S.’s meals, but she had no contact with S.S. after October 1999. Paige’s husband, Ernie Jackson, testified that he saw M.B. do the laundry and dishes a couple of times after S.S. became pregnant.
Jessica Whiting lived at the same house as M.B. for a time. Whiting testified that she heard M.B. try to call S.S. on five or six different occasions. Whiting also saw M.B. do extensive baby research on the internet. M.B. asked Whiting if she would be able to provide day care for the child. As S.S.’s due date approached, Whiting called the hospital at M.B.’s request to see if S.S. had delivered the baby.
Tricia Gowan, a personnel officer for Junction City, testified that in September 1999, M.B. asked her if he would be able to insure S.S. and the baby under his health plan. In May 2000, M.B. placed the baby on his health insurance 21 days after her birth. The record on appeal does not disclose whether S.S. was informed of this event.
M.B.’s brother, D.B., testified that he called S.S. to tell her “[M.B.] has financial support for her as well as actual physical support, such as getting her things that she needs, as well as monies, or a host of all of the other things that an expectant mother needs.” D.B. testified that she told him she did not want to have anything to do with M.B. D.B. made a second phone call to S.S. on M.B.’s behalf with an offer of $300 per month. S.S. told D.B. that she was busy and could not discuss it at that time. Neither M.B. nor D.B. ever called S.S. again to renew M.B.’s offer.
M.B. testified that S.S. told him she wanted to be financially independent. M.B. testified that he did not personally contact S.S. because he wanted to give her a chance to “cool down.” M.B. believed that this was accomplished by not extending specific offers of help and instead telling S.S. that he would “do whatever it takes to ensure the baby has a lifestyle at least better than I had as a child.” M.B. did not offer money to S.S. when they spoke in March.
M.B. claims that he did everything possible to help S.S., given the circumstances. M.B. never sent S.S. any money, bought groceries for her, made a doctor s appointment, or provided any vitamins or maternity clothes after November 2,1999. After the baby was bom, M.B. sent S.S. a check for $150.
The adoptive parents contend that the case law addressing stepparent adoptions is relevant to a discussion of K.S.A. 59-2136(h)(4). This is a valid comparison. We note that in Baby Boy S., the court held that a termination brought under K.S.A. 59-2136(h)(4) is analogous to cases where a termination is sought via K.S.A. 59-2136(h)(7). 16 Kan. App, 2d at 313. That portion of the statute allows termination of parental rights where a father has failed to assume the duties of a parent for 2 consecutive years prior to a proposed adoption. The language is similar to the provision addressing stepparent adoptions. See K.S.A. 59-2136(d).
There is no doubt that M.B. made some attempts to help S.S.; however, few if any of these attempts were concrete offers of support. Instead, M.B. proposed to “pay for all of the costs—I would pay for anything that she—that she couldn’t pay for, I would pay for, anything that she needed concerning the baby I would pay for.” However, M.B. never sent any money or provided any other assistance to S.S. These vague offers of support are similar to the ones made by the natural father in Baby Boy W.
S.S. received no benefit from the used baby clothing and furniture M.B. solicited because they were not delivered to her. This cannot be considered support, since S.S. did not reap the benefits. Similarly, we see no support value in M.B.’s internet research and phone calls. They did not help S.S. financially or emotionally during her pregnancy.
The record on appeal discloses that M.B. did not provide any concrete support for S.S. during the last 6 months of her pregnancy. The offers of support relied upon by the trial court are not sufficient to bar the application of K.S.A. 59-2136(h)(4). Moreover, we respectfully disagree with the trial court’s contention that S.S. refused M.B.’s offers of support. M.B. thought that it was better to avoid contact with S.S. to allow her to “cool off.”
We hold that the trial court’s decision is not supported by substantial competent evidence. There is nothing in the record on appeal which would support the trial court’s conclusion that either M.B. provided support, or that S.S. refused such support. Accordingly, the decision of the trial court is reversed, with instructions to terminate M.B.’s parental rights and grant the petition for adoption.
Next, the adoptive parents claim that the trial court failed to make specific findings of fact and conclusions of law with respect to the issue of whether M.B. abandoned S.S.
There is no evidence in the record on appeal to show that the adoptive parents objected to the trial court’s findings of fact and conclusions of law. In the absence of an objection at the trial court level to the failure to make findings, the trial court is presumed to have made all necessary findings, and this precludes appellate review of this issue. In re Care & Treatment of Hay, 263 Kan. 822, 836, 953 P.2d 666 (1998).
We do not have jurisdiction to consider this issue and it is dismissed.
Reversed in part and dismissed in part. The case is remanded with instructions to terminate M.B.’s parental rights and grant the petition for adoption. | [
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Paddock, J.:
This is a products liability case concerning an alleged product defect in Type S masonry cement powder purchased by Northwest Arkansas Masonry, Inc., (Northwest) from Summit Specialty Products, Inc. (Summit), a supplier, manufactured by Ash Grove Cement Company (Ash Grove), and packaged by Materials Packaging Corporation (Materials Packaging).
Northwest sued the supplier, manufacturer, and packager under product liability and contract theories. The trial court granted summary judgment in favor of Summit and entered judgment as a matter of law for Ash Grove and Materials Packaging following a jury verdict in favor of Northwest. Northwest appeals both judgments. Ash Grove and Materials Packaging jointly filed a cross-appeal. Northwest has moved for our order to dismiss the cross-appeal as untimely.
The facts
Northwest subcontracted to perform the masonry work in the Home Depot store being built in Olathe, Kansas. The work consisted of building the outer walls of the store for which Northwest was to receive $666,700. Northwest’s contract required it to purchase all the necessary materials to construct the masonry walls of the building. The materials included concrete block, rebar, spacers and connectors, masonry cement, insulation, and various other products.
Northwest purchased Type S masonry cement powder from Summit. Type S masonry cement powder is a premixed product containing Portland cement and lime. Northwest made Type S mortar at the construction site by mixing the Type S masonry cement powder with sand and water. The significance of Type S mortar is that it will, if properly mixed, achieve a minimum bonding strength of 1,800 pounds per square inch and meet the plans and specifications of the contract.
In constructing the masonry wall, Northwest used the mortar it made at the construction site to bind the layers of concrete block in the wall. The wall was made by laying concrete blocks, inserting rebar in the blocks’ cells at various intervals, and then filling the cells with mortar.
Several days into the project, Northwest discovered the mortar was. not hardening properly. Testing confirmed the mortar was not meeting specified strengths. The general contractor ordered Northwest to tear down the walls after 20,000 concrete blocks had been laid and bonded together with the mortar made with Ash Grove’s Type S cement product.
Prior to trial, the district court granted Summit’s motion for summary judgment on all pending claims. Northwest proceeded to jury trial against Ash Grove and Materials Packaging. Ultimately, Northwest presented only its strict liability claim to the jury.
As part of its claim, Northwest presented itemized damages to the jury by exhibits and testimony. The juiy returned a verdict finding Northwest 15% at fault, Ash Grove 42.5% at fault, and Materials Packaging 42.5% at fault. The damages awarded totaled $124,540.64 after deducting Northwest’s fault percentage.
Upon motion by Ash Grove and Materials Packaging, die district court entered judgment as a matter of law in favor of Ash Grove and Materials Packaging. The court set aside the jury verdict on the basis that the damages awarded were entirely barred as a matter of law by the economic loss doctrine set forth in East River Steamship Corp. v. Transamerica Delavel, Inc., 476 U.S. 858, 90 L. Ed. 865, 106 S. Ct. 2295 (1986); Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 960 P.2d 255, rev. denied 265 Kan. 885 (1998); and Elite Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d 625, 827 P.2d 1195 (1992).
The summary judgment
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is enüded to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
“An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The 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 material fact. [Citation omitted.]” (Emphasis added.) Bergstrom v. Noah, 266 Kan. 847, 872, 974 P.2d 531 (1999).
Of all the claims filed by Northwest against Summit, the only issue raised on appeal concerns the breach of contract claim. In its second amended petition, Northwest alleged Summit breached the purchase contract between Northwest and Summit “by providing Type S Masomy Cement that did not comply with the industry standard, and was therefore defective.” Prior to trial, Summit filed for summary judgment and set forth 18 uncontroverted facts, of which Northwest admitted 17.
Northwest challenged the following factual statement asserted by Summit: “16. Plaintiffs were never told what the problem was with the mortar.” (Emphasis added.) Northwest disputed that fact by stating: “Plaintiff was told that mortar made using Type S masonry cement sold by defendant Summit failed to meet the required strengths, but was not told of the specific cause of said failure.” (Emphasis added.) Northwest further alleged in its response that because the masomy cement provided by Summit did not result in mortar meeting the minimum required bonding strength, a “question of ‘material fact’ [exists] for the jury to determine whether defendant Summit did, in fact, provide Type S masonry cement which it agreed, or contracted, to provide.”
The district court granted summary judgment on two bases: First, it determined the factual statement challenged by Northwest was not material to granting summary judgment on the breach of contract claim. A breach of contract occurs when there is a failure of performance of a duty arising or imposed by agreement. Hunt v. KMG Main Hurdman, 17 Kan. App. 2d 418, Syl. ¶ 2, 839 P.2d 45 (1992). The district court correctly determined that what Northwest was told about either the cement or the mortar was immaterial to the issue of whether Summit fulfilled its duty to deliver Type S cement.
Second, the court determined the additional facts and allegations in Northwest’s response were not sufficient to establish an issue of material fact as to its claim in the petition that Summit failed to deliver Type S cement as ordered. The additional facts Northwest set forth in its response are as follows:
“Type S masonry cement is used to make Type S masonry mortar for use in concrete masonry construction. The designation ‘Type S’ with respect to masonry mortar indicates the mortar will have a bonding strength of at least 1,800 pounds per square inch (TST) after a particular curing period. The designation ‘Type S’ as applied to a masonry cement means that the masonry cement, when mixed with appropriate proportions of sand and water will result in a Type S mortar meeting the 1,800 PSI minimum bonding strength.”
Northwest contends these additional facts “at a minimum establish a question of fact as to whether Summit did or did not provide [Northwest] with Type S masonry cement.” To support its position, Northwest relies on National Gypsum, Co. v. Dalemark Industries, Inc., 773 F. Supp. 1476 (D. Kan. 1991). The district court considered this case and found Northwest’s case distinguishable. We agree.
In National Gypsum, plaintiff NGC contracted with defendant Dalemark for a specific type of ink known as 607. Dalemark contracted with another entity, AIJ, to have 607 ink made and shipped. AIJ made a drum of ink, placed 607 labels on it, and shipped it to NGC. The record established the drum actually contained 115 ink, a different product, and was mislabeled. Five days later, AIJ made a drum of 607 ink, correctly labeled it as 607 ink, and shipped it to NGC. National Gypsum, 773 F. Supp. at 1479.
NGC claimed the ink it used to label its wallboard product was defective as it bled through tape, paint, and joint compound. It moved for summary judgment on its claims, including breach of contract, claiming, in essence, it was uncontroverted that what it ordered was not what was delivered. The court disagreed and denied the motion. To challenge summary judgment, Dalemark came forward with shipping documents to support an inference that the mislabeled drum was diverted to Dalemark and never reached NGC. It also produced test results indicating the “bleeding ink” contained ingredients not used by AIJ in formulating and manufacturing the ink for Dalemark. Although AIJ admitted there was a change in its 607 formulation, it denied this change caused the ink to bleed. Furthermore, AIJ maintained a later-produced drum of ink made with the same formula and shipped to Dalemark did not bleed.
In contrast, Northwest merely points to the alleged failure of the mortar “to harden as it should” and claims that is adequate proof to create an issue of fact that what was in the bag labeled “Type S cement” was not Type S cement but something other than what was ordered. Because it did not get what it ordered, Northwest claims, Summit breached its duty under the contract.
Unlike National Gypsum, no evidence of mislabeling, nonconformity, or alteration of the powdered cement substance was presented at the summary judgment stage which would cause reasonable minds to conclude that anything other than Type S cement was delivered. In fact, Northwest agreed that 640 of the 920 bags were not even delivered by Summit; the remaining bags were only in Summit’s custody and control during transportation; and as a distributor, “Summit . . . would never change or alter the material in any way, or open or change the wording on the bag of masonry cement.” Furthermore, Northwest accepted as fact that as a distributor, Summit “would not perform any services to check that the actual material in the bags marked Type-S was actually Type-S masonry cement . . . .”
The additional facts set forth by Northwest do not create an issue of fact as to the substance or nature of the contents in the bags delivered to the site. The district court did not err in granting Summit summary judgment.
It should be noted that references by Northwest to facts in the trial transcript are not properly to be considered in deciding if the trial court erred in granting summary judgment for Summit. Only those facts, pleadings, and exhibits presented to the trial court at the summary judgment stage are to be considered in analyzing the summary judgment issue.
The judgment notwithstanding the verdict
At trial, Northwest relied on strict liability to base its claim against Ash Grove and Materials Packaging. Its evidence to establish harm related to costs incurred as a consequence of having to tear down the wall and rebuild it when the mortar did not harden. Essentially, Northwest claimed the costs were the result of Ash Grove’s cement product failing to meet Northwest’s expectations when Northwest made and used the mortar to construct the masonry wall. The costs claimed consisted of (1) the initial cement used to make mortar; (2) additional materials to rebuild the wall; (3) housing and furniture rental for its employees; (4) additional equipment rental; (5) debris hauling; (6) additional subcontractor labor; (7) additional payroll; (8) additional fuel and miscellaneous costs for equipment; and (9) lost profits. The claims totaled $236,690.32. The jury declined to award for lost profits but awarded Northwest $146,518.40 in damages.
In setting aside the verdict and entering judgment as a matter of law for Ash Grove and Materials Packaging, the trial court found the “damages as alleged and proved by Plaintiff and which make up the jury’s determination of damages are . . . economic losses as defined in the relevant case law.” The trial court also determined “[ejconomic loss damages are not recoverable under a strict liability cause of action because no tort duty exists obligating a defendant to protect a plaintiffs economic interests. [Citations omitted.]”
Northwest timely appealed. However, on appeal, Northwest in its brief seeks recovery for only $54,834.54 as costs of “additional materials,” including “concrete blocks, rebar, grout, insulation and other hardware to which [Ash Grove’s] product had been applied.” In its brief, Northwest made no attempt to classify or brief the nature of the other categories of damages it claimed at trial. Issues not briefed are deemed abandoned. Bergstrom, 266 Kan. at 873.
Whether the trial court erred in concluding the economic loss doctrine barred recovery for damages under a strict liability cause of action is a question of law subject to unlimited review. Koss, 25 Kan. App. 2d at 201. In Koss, the court adopted the economic loss doctrine set forth in East River and held a commercial buyer of defective goods could not sue in negligence or strict liability when the only injuiy consisted of damage to the goods themselves. 25 Kan. App. 2d at 207. On the other hand, recovery for physical damage a product caused to “other property” is not precluded by the economic loss doctrine. Saratoga Fishing Co. v. J. M. Martinac & Co., 520 U.S. 875, 879, 138 L. Ed. 2d 76, 117 S. Ct. 1783 (1997). The economic loss doctrine applies to both consumer and commercial buyers of defective products. See Jordan v. Case Corp., 26 Kan. App. 2d 742, 744, 993 P.2d 650 (1999), rev. denied 269 Kan. 933 (2000) (expanding the economic loss doctrine to both consumer and commercial purchasers of defective products and holding that a defective engine was a component part of a combine and, thus, plaintiff was seeking unrecoverable damages for harm caused by damages to the product itself).
On appeal, Northwest classifies its damages as harm to “other property.” We are not persuaded with Northwest’s classification of its damages for several reasons:
First, although the parties have not considered the effect of the Kansas Product Liability Act on the issue, the Act offers guidance in this case. See K.S.A. 60-3301 et seq. The Act applies to all product liability claims regardless of the substantive theory of recovery. Savina v. Sterling Drug, Inc., 247 Kan. 105, 126, 795 P.2d 915 (1990). Under the Act, a product liability claim, including one based on strict liability, can be “brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product.” K.S.A. 60-3302(c). “ ‘Harm’ includes: (1) Damage to property; (2) personal physical injuries . . .; (3) mental anguish .... The term ‘harm’ does not include direct or consequential economic loss.” K.S.A. 60-3302(d).
The Act does not define direct or consequential economic loss. However, case law considering the term (though not within the context of the Act) indicates economic loss includes damages for inadequate value, costs of repair, replacement costs, and loss of use of the defective product. Koss, 25 Kan. App. 2d at 206 (citing Elite Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d 625, 633, 827 P.2d 1195 [1992]). Generally, economic loss is a result of the failure of the product to perform to the level expected by the buyer, which is the core concern of traditional contract law. See, e.g., East River, 476 U.S. at 870. We conclude that the Koss holding of what constitutes economic loss would also apply to the term “economic loss” as used in K.S.A. 60-3302(d).
At trial, Northwest characterized its damages as follows: First, all 15 exhibits produced at trial to establish “harm” related to costs incurred as a consequence of having to tear down the wall and rebuild it when the mortar did not harden. Northwest ultimately made the decisions to (1) tear down and rebuild the wall and (2) replace, rather than reuse the cement block. Second, the project manager testified the defective condition of Ash Grove’s cement that was used to prepare the mortar posed a risk of property damage for Northwest “[b]ecause they had to tear [the wall] down and rebuild it in order to get paid.”
Actually, what Northwest is seeking is repair and/or replacement costs rather than damage to “other property.” Thus, the damages constitute economic losses which are not included as a type of harm recoverable under a products liability claim. K.S.A. 60-3302(c) and (d). Essentially, the costs are a result of Ash Grove’s cement product fading to meet Northwest’s expectations when Northwest made and used the mortar to construct the masonry wall.
Next, the dissenting opinion in Saratoga made a specific point of discussing the law related to “other property” on construction projects and noted the growing trend in many jurisdictions to interpret ‘economic loss’ broadly to include damage that formerly was considered “other property.” 520 U.S. at 891.
Recognizing the difficulty in deciding what constitutes harm to the product itself versus harm to other property when a component part of a machine or a system destroys the rest of the machine or system, the Restatement (Third) of Torts acknowledges the “integrated system” approach. “When the product or system is deemed to be an integrated whole, courts treat such damage as harm to the product itself. When so characterized, the damage is excluded from the coverage of this Restatement.” Restatement (Third) of Torts: Products Liability § 21, comment e (1997).
Several jurisdictions apply the integrated system approach in construction and building defect cases. These cases are persuasive and consistent with the approach taken in Koss and Jordan. For example, recovery under a products liability action was barred when defective roofing products and design resulted in substantial repair and replacement costs. See Jones & Laughlin Steel v. Johns Manville Sales, 626 F.2d 280 (3d Cir. 1980). Removal and replacement of untreated plywood, shingles, and other components of a builder’s roof system were not recoverable damages to other property when the builder had to replace chemically treated plywood that was failing to maintain strength and structural integrity. See Pulte Home Corp. v. Osmose Wood Preserving, Inc., 60 F.3d 734, 742 (11th Cir. 1995). Paving blocks were determined integrated systems and the cost to repair and replace incurred because of defective cement ingredients could not be recoverable under a products liability claim. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 251-53, 593 N.W.2d 445 (1999). Where faulty cement caused reinforcing steel inserted in concrete to rust causing concrete to crack and break off, a homeowner’s tort claim was barred because the damage was economic loss as no property other than the structures built with defendant’s cement sustained damage. Casa Clara v. Charley Toppino and Sons, 620 So. 2d 1244, 1247 (Fla. 1993).
These cases stand for the proposition that when component materials become indistinguishable parts of a final product, and there is harm resulting from a defective component of the product, the product itself has caused the harm.
We conclude, as did the Wisconsin court in Wausau, that “[d]amage by a defective component of an integrated system to either the system as a whole or other system components is not damage to ‘other property’ which precludes the application of the economic loss doctrine.” 593 N.W.2d at 452.
Here, the masonry wall was an integrated system composed of several component materials that were indistinguishable parts of the final product; thus, harm caused by the defective cement was harm to the final product, the wall itself.
Finally, from a policy perspective, the Jordan court adopted the general policies of the economic loss rule from East River to support applying the rule to consumer purchasers. 26 Kan. App. 2d at 744. Applying those policies here, Northwest was best situated to assess the risk of economic loss and insure against it. A product costing less than 1% of the total contract sum could jeopardize the entire project. Northwest could have utilized various risk management principles, such as testing, alternate suppliers, or alternate methods of making mortar, to assess and spread its risk. Also, it could have allocated its risk either by contract with Summit or the general contractor.
Northwest’s last argument is that the economic loss rule does not apply when the plaintiff has no contractual remedy. It contends that under East River, the rule “presumes the existence of a contractual remedy against the product manufacturer.” This argument is flawed for three reasons: First, notwithstanding East River, under the Kansas Product Liability Act, both direct and consequential economic loss are not included as recoverable “harm.” K.S.A. 60-3302(c). Second, “some forms of economic loss have traditionally been excluded from the realm of tort law even when the plaintiff has no contractual remedy for a claim.” Restatement (Third) of Torts: Products Liability § 21, comment a (1998). Finally, consumers are not iypically in privity of contract with the manufacturer when they purchase products from retailers or wholesalers. Nevertheless, the economic loss rule applies equally to consumer purchasers. Jordan, 26 Kan. App. 2d at 744.
The damages claimed by Northwest are economic losses resulting from failed economic expectations and not damage to other property. Northwest purchased the cement and made it into mortar. Northwest integrated the mortar and other components into a final product—the masonry wall. The damages claimed by the cost of additional materials were repair and replacement costs and occurred as a result of tearing down the wall because the mortar made with the cement that the jury found defective, failed to meet required bonding strengths.
Therefore, under both the Kansas Product Liability Act and relevant case law addressing the economic loss rule as applied to construction or building product defects, the trial court did not err in barring Northwest’s strict liability claim by granting Ash Grove/ Materials Packaging’s motion for judgment as a matter of law.
We need not consider the cross-appeal of Ash Grove/Materials Packaging as that issue is moot.
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Pierron, J.:
In this personal injury/automobile accident case, Sandra Mast appeals the district court’s ruling that her negligence action is barred by the statute of limitations. We reverse.
The facts are not in dispute. On March 16, 1998, Bradley Kinnard, an employee and driver of a City of Wichita (City) dump truck, changed lanes and collided with Mast’s van. Mast suffered personal injuries and property damage. A little over a month after the accident, on April 24, 1998, the City paid $1,865 directly to Mast for damages to her van. In return for the payment, Mast executed a release form, releasing the City and its employees and officials from any further liability for property damage resulting from the accident.
On March 14, 2000, Mast mailed a claim for damages to the city clerk as required by K.S.A. 2000 Supp. 12-105b(d). On March 16, 2000, the same day the City received the claim, the City faxed a denial to Mast’s attorney. Mast’s attorney denied receiving the fax but stated he received a denial in the mail on March 20, 2000.
On March 23, 2000, Mast filed a petition in district court claiming over $75,000 in personal injuries due to the negligence of Kinnard and the City in causing the accident. The City filed a motion to dismiss and/or for judgment on the pleadings, contending Mast’s lawsuit was filed after the expiration of the statute of limitations. At the hearing on the motion to dismiss, the parties focused their arguments on the notice aspects of the Kansas Tort Claims Act and whether Mast timely filed her action after receiving the denial of the claim by the City. The parties did not argue over the commencement date of the statute of limitations. The district court granted the motion to dismiss, finding Mast had failed to timely file her cause of action after receiving notice of the denial of her claim.
Mast filed a motion to reconsider the district court’s decision to dismiss her lawsuit. At the hearing on the motion, Mast argued her lawsuit was timely because the date of the accident, March 16, 1998, was not the proper date to commence the running of the 2-year statute of hmitations. Mast argued the City’s payment of her personal property damages was a payment under K.S.A. 40-275 and therefore tolled the running of the statute of hmitations until April 24, 1998, the date of the payment. The district court held the City’s payment did not fall within K.S.A. 40-275 and that Mast had filed her lawsuit outside the statute of hmitations.
Mast argues the City’s $1,865 payment to her on April 24,1998, was a payment contemplated by K.S.A. 40-275 and, as a result, tolled the statute of hmitations until that date. Therefore, she contends her negligence lawsuit filed on March 23, 2000, was timely.
The interpretation and application of a statute of hmitations is a question of law. This court’s review of conclusions of law is unlimited. Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
The statute of hmitations for a cause of action based on negligence is 2 years. K.S.A. 2000 Supp. 60-513(a)(4). Normally, in a cause of action arising out of an automobile accident, the statute of hmitations commences on the date of the accident. See, e.g., K.S.A. 2000 Supp. 60-513(b); Roe v. Diefendorf, 236 Kan. 218, 689 P.2d 855 (1984). However, when payments are made pursuant to K.S.A. 40-275, the running of the statute of hmitations is tolled until the date of the last payment or partial payment. K.S.A. 40-275 provides:
“No advance payment or partial payment of damages, predicated on possible tort liability, as an accommodation to an injured person, or on his behalf to others, or to the heirs at law or dependents of a deceased person of medical expenses, loss of earnings and other actual out of pocket expenses, because of an injury, death claim, property loss or potential claim against any person, firm, trust or corporation, shall be admissible into evidence as an admission against interest or admission of liability by such party or self insurer, or if paid by an insurer of such party, as the insurer’s recognition of such liability with respect to such injured or deceased person, or with respect to any other claim arising from the same accident or event. Any such payments shall, however, constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person. In the event of a trial involving such a claim, the fact that such payments have been made shall not be brought to the attention of the juiy: Provided, If after an advance payment or partial payment is made as herein provided for, and thereafter it shall be determined by final judgment of a court of competent jurisdiction that the person, firm, trust or corporation is not liable for an amount sufficient to satisfy the advance payment or partial payment, such person, firm, trust or corporation shall have no right of action for the recovery of any such a payment: Provided further, That the period fixed for the limitation for the commencement of actions shall commence on the date of the last payment or partial payment made hereunder.” (Emphasis added.)
Mast contends the City’s payment satisfies all the necessary elements under K.S.A. 40-275: (1) It was a partial payment of Mast’s damages; (2) it was predicated on the possible tort liability of the City; (3) it was an accommodation to Mast; and (4) it was for actual expenses of property loss incurred by Mast.
Kansas courts have repeatedly stated the purpose and intent of K.S.A. 40-275. The court in Howard v. Edwards, 9 Kan. App. 2d 763, 765, 689 P.2d 911 (1984), explained that K.S.A. 40-275
“permits a tort defendant to make advance payment of damages to an injured party without the payment constituting an admission of liability. The payments are credited against any settlement or judgment, but may not be recovered in the event of a defendant’s verdict. The statute obviously encourages prompt payment of injured persons’ losses without waiting for the ultimate resolution of the tort claim.”
With regard to the language in final clause of K.S.A. 40-275 concerning the extension of the statute of limitations, the court in Lytle v. Pepsi Cola General Bottlers, Inc., 8 Kan. App. 2d 332, 337, 656 P.2d 786, rev. denied 233 Kan. 1092 (1983), stated:
“The last proviso in the statute was obviously intended to protect an injured party who receives advance or partial payments. It prevents a party from negotiating with the injured person and making partial payments until the statute of limitations has run and then refusing further negotiation or payment, leaving the injured person without complete recovery.”
The court in Lytle considered a factual situation virtually identical to the case at bar. On May 4, 1977, an automobile accident occurred between a car driven by Lytle and a vehicle driven by an employee of Pepsi. Lyde suffered personal injuries and property-damage to his car. Within 1 month of the accident, an adjuster for Pepsi’s insurance carrier contacted Lyde and settled the claim for property damage to the car. On June 20, 1977, Lytie executed a release of all claims for property damages. With regard to Lytle’s personal injuries, on April 17, 1978, Pepsi’s insurance carrier reimbursed Lytle’s insurance carrier $2000 for the personal injury protection benefits (PIP) paid to Lytle. On March 27, 1979, Lytle sent a claim letter to Pepsi’s insurance carrier for damages of approximately $17,000 and, after the claim was denied, he filed suit on August 31, 1979.
The ultimate holding of Lytle is that the reimbursement payment of PIP benefits on April 17,1978, was not an accommodation payment under K.S.A. 40-275 and therefore the 2-year statute of limitations had expired when Lytle filed his lawsuit on August 31, 1979. For the purpose of the case at bar, the Lytle court also addressed the application of K.S.A. 40-275 to the personal property damages payment made to Lyde on June 20,1977. The City argues the Lytle court’s comments on K.S.A. 40-275 are dicta and should be given no precedent. The Lytle court stated:
“The payment made by defendant’s insurer to the plaintiff on June 20,1977, in settlement of his claim for damages to his car, obviously falls within the category of a payment which tolls the statute of limitations. It was not an admission of liability, but it provided monetary assistance to the plaintiff during the pendency of his claim. It was also an accommodation to him, whether paid to him directly or paid to the car repairer on his behalf. In this respect, it fulfilled the purpose of the statute.” 8 Kan. App. 2d at 335.
We find no merit in the City’s argument that its payment of all Mast’s car/property damage claims was not a partial payment under K.S.A. 40-275. Mast’s damage suffered in the automobile accident included both property damage and personal injuries. Satisfying all of her property damage claims did not make the payment a full payment of all the damages alleged by Mast. The City’s imphcation that Mast’s personal injuries and her property damage constituted two separate causes of action is incorrect. If the City had not paid Mast’s personal property damages, she would have been required to bring all her claims related to the automobile accident in the same lawsuit; otherwise, res judicata would bar further lawsuits. See Pretz v. Lamont, 6 Kan. App. 2d 31, 34-35, 626 P.2d 806, rev. denied 229 Kan. 671 (1981) (An injured party is limited to one lawsuit for property and/or personal injury damages resulting from a single tort alleged against the wrongdoer. This is in accord with the general rule that if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.)
We agree with Mast and the court’s dicta in Lytle and find that the City’s payment of Mast’s property damages was a payment contemplated by K.S.A. 40-275. The payment was a partial payment of Mast’s damages alleged from the automobile accident. It was predicated on the possible tort liability of the City. The possibility of tort liability is clearly evident in the release signed by Mast on April 24, 1998, where the terms “personal injury” are expressly crossed out and not made a part of the release.
The City’s payment was also an accommodation to Mast for payment to repair her automobile—expenses which were undisputedly incurred from the accident. In Lytle, the court stated: “The generally accepted meaning of the term ‘accommodate’ as used in the context of the statute, is ‘to help’ or ‘to do a service or favor for’ someone (Webster’s New World Dictionary 9 [2nd Coll. ed. 1974]).” 8 Kan. App. 2d at 335. The court in Bryan v. Davis, 11 Kan. App. 2d 691, Syl. ¶ 2, 732 P.2d 805 (1987), explained: “Typically, a payment as an accommodation by an insurer involves the insurer providing monetary assistance to the injured party during the pendency of his claim. [Citing Lytle.]”
The City argues its payment in this case does not fall within K.S.A. 40-275 because it must be a voluntaiy payment. The City cites Church Mut. Ins. Co. v. Rison, 16 Kan. App. 2d 315, 320, 823 P.2d 209 (1991), where the court held that restitution payments made in a criminal action are not considered advance payments under K.S.A. 40-275 and do not toll the applicable statute of limitations for purpose of a civil action arising from the same act or occurrence. The court stated Rison’s payments were not the result of negotiations, were court-ordered, and were a condition of his probation. 16 Kan. App. 2d at 320.
The City argues that its payment, similar to the restitution payments in Church Mut, was not an accommodation. The City contends its payment was not voluntary due to the potential assessment of attorney fees under K.S.A. 2000 Supp. 60-2006. In an action brought for recoveiy of property damages only of less than $7,500 sustained and caused by negligent operation of a motor vehicle, K.S.A. 2000 Supp. K.S.A. 60-2006 permits the prevailing party to recover attorney fees unless the prevailing party recovers no damages or the adverse party tendered an amount equal to or in excess of the judgment recovered. The City argues K.S.A. 2000 Supp. 60-2006 compelled the April 24, 1998, payment in order to avoid the adverse consequence of being required to pay Mast’s attorney fees. The City maintains the $1,865.80 was not a voluntary payment intending to help Mast but was a payment made to avoid the attorney fee provision of K.S.A. 2000 Supp. 60-2006.
The City contends the language in Lytle relied upon by Mast is not only dicta, but also that when the Supreme Court decided Lytle in 1977, 60-2006 permitted the receipt of attorney fees only if all damages sought were less than $500. In contrast, today 60-2006 allows attorney fees in automobile negligence lawsuits only for property damages less than $7,500.
The City also states that K.S.A. 40-275 requires that any payment made under the statute shall be a credit against a judgment received by the plaintiff. The City argues its payment of property damages is not one contemplated by K.S.A. 40-275 because the payment could not have been deducted from any judgment Mast received in her lawsuit for personal injury damages.
Our interpretation of K.S.A. 40-275 will not hinder or chill an insurance company/defendant’s prompt payment of personal property damages. As Mast points out, the computation of property damages in an automobile accident is relatively simple. The prompt payment of property damages facilitates an expedient final settle ment of all claims arising from an automobile collision by disposing of the property damage issue and allows the parties to focus on the factual and legal issues surrounding a plaintiffs personal injuries. The prompt payment of these claims is in the best interest of the insurance companies since the 2-year statute of hmitations would run from the date of the last partial payment pursuant to K.S.A. 2000 Supp. 60-2006.
The City complains that it is unfair to give a plaintiff an entirely new 2-year statute of limitations for a personal injury claim commencing from the date of the payment of the property damages. The City suggests a situation where a property damage claim resulting from an automobile accident is paid a month before the 2-year statute of limitations has run. The City contends the legislature could not have intended to give a plaintiff an entirely new 2-year statute of hmitations and in essence allow for a 4-year period of limitation following an accident. The City maintains the encouragement to setde claims and the prosecution of actions while witnesses and evidence are still fresh goes against extending the statute of hmitations in its example.
We recognize the City’s complaint but realize we are dealing with a factual scenario in the present case where the statute of hmitations is extended for approximately 1 month beyond the normal 2-year statute of hmitations. We also find K.S.A. 40-275 expressly provides for extending the statute of hmitations for payments under the statute as a clear indication the legislature intended to extend the statute of limitations if applicable. The City’s complaint of unfairness is better addressed by the legislature.
The district court erred in granting the City’s motion to dismiss. The 2-year statute of hmitations commenced on April 24, 1998. Consequently, Mast’s lawsuit filed on March 23, 2000, was timely.
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Beier, J.:
This appeal from a child in need of care (CINC) adjudication requires us to review the propriety of a newborn’s removal from the care of his parents before they took him home from the hospital. His parents challenge the district court’s explicit reliance on the previous death of the newborn’s older brother at the age of 5 months.
R.B.S. was bom on January 31,2001, at Cushing Memorial Hospital in Leavenworth. His parents, P.S. and L.S., had not made prior arrangements to deliver R.B.S. at Cushing, and L.S. had received no prenatal care. The couple lives in Atchison, but they chose to take a cab from there to Leavenworth after L.S.’s water broke.
Cushing follows a policy of keeping newborns in the hospital for at least 24 hours after their birth to be assured the babies are healthy. P.S. and L.S. attempted to remove R.B.S. from the hospital nurseiy before 24 hours had elapsed, and P.S. threatened a security officer when the officer and other hospital personnel intervened: “[Ajnybody that tries to stop me,” the security officer quoted P.S. as saying, “I will knock their teeth down their throát and bash their head in.” L.S. told the security officer that P.S. abused her. After this incident, the hospital initiated a 72-hour protective hold on R.B.S.
Before the hold expired, a CINC petition had been filed. The petition was based on L.S.’s lack of prenatal care, the death of R.B.S.’s older brother, the parents’ limited intellectual capacity, and P.S.’s threat at the hospital. The State obtained an ex parte protective custody order and placed R.B.S. in the care of the Department of Social and Rehabilitation Services (SRS) the same day.
At the ensuing CINC hearing, counsel for P.S. and L.S. objected to the introduction of evidence regarding their neglect and the ultimate death of their older son. The older son had never been the subject of a CINC or termination proceeding. The district judge rejected counsel’s K.S.A. 60-455 and due process arguments and permitted the State to introduce the evidence to show the parenting skills of P.S. and L.S. He also noted that the statute setting forth permissible reasons for termination of parental rights included the unexplained injury or death of another child. See K.S.A. 38-1583a(b)(6).
Family practice physician Ryan Thomas, M.D., testified about sepsis caused by streptococcus pneumonia, the reported cause of the older baby’s death. He said it was unusual for a 5-month-old to die from that condition, but he did not blame the care or lack of care of P.S. and L.S. for that outcome. Thomas testified the baby probably would not have had difficulty in breathing or other symptoms that were ignored or unappreciated by his parents. More likely, the baby would have had a mild cough.
Ruth Tull also testified at the CINC hearing. She provided child care for the older baby for about 3 months of his life. She testified that several times in cold weather, L.S. brought in the baby clad only in a wet diaper, sitting in a wet car seat, with only one or two thin blankets over him. She also testified tire baby was often cold and dirty; occasionally L.S. had no milk for him. Although Tull gave L.S. warm clothes for the baby, Tull never saw the baby wear them.
Officer Tim Robinson testified that he had contact with L.S. approximately a year before R.B.S.’s birth, when L.S. attempted to obtain milk for her older baby from the American Legion. At that time, L.S. said P.S. had left her without any food or money. The baby was wrapped in a T-shirt with his legs exposed to the cold.
Samantha Black, a social worker employed by the hospital, testified that L.S. reported a history of violence between her and P.S. and that the hospital was concerned about sending R.B.S. into a volatile situation.
The district judge found R.B.S. was a child in need of care, explicitly relying at least in part on the death of the parents’ older baby:
“In the absence of the death of the sibling, the Court would candidly say there is not evidence sufficient to find that this is a child in need of care.
“But given the death of a sibling that soon to the birth of this child, the combination of no prenatal care, choosing to, after the water has broke, take a cab from Atchison to Leavenworth where no prior arrangements have been made to give birth to the child, then to try to remove the child from the hospital before the standard 24 hours had lapsed, given the death of a sibling at a relatively young age, is not reasonable to the Court.
“That, coupled with the Court’s past dealings with both parents, which raise serious issues as to their emotional stability and mental stability to be parents, give the Court no choice but to find this is a child in need of care.”
P.S. and L.S. first argue on appeal that the district judge erred by admitting evidence regarding their older baby.
Kansas defines a “child in need of care” as one younger than 18 who, among other things, is “without adequate parental care, control or subsistence and the condition is not due solely to the lack of financial means of the child’s parents or other custodian” or “without the care or control necessary for the child’s physical, mental or emotional health.” K.S.A. 38-1502(a)(l) and (2).
The parents’ evidentiary argument involves statutory interpretation, which raises a question of law over which our review is unlimited. In re M.E.B., 29 Kan. App. 2d 687, 688, 29 P.3d 471 (2001).
P.S. and L.S. insist K.S.A. 60-455 is controlling. That provision of the civil procedure code limits the admissibility of evidence of a party’s prior bad act or crime to specific situations. Because none of those situations was present in this case, P.S. and L.S. argue, the admission of evidence regarding their treatment of their older child or his death was reversible error.
This argument ignores the more specific and thus superseding effect of K.S.A. 38-1583a(b). In re N.D.G., 20 Kan. App. 2d 17, 26, 883 P.2d 89, rev. denied 256 Kan. 995 (1994) (specific statute controls over general provision). We agree with the district court that this statute permits, among other things, consideration of a parent’s treatment of another child when termination is the issue. K.S.A. 38-1583a(b)(2) and (6) specifically list the following among the reasons parental rights can be severed: “conduct toward a child of a physically, emotionally or sexually cruel or abusive nature” and/ or “unexplained injury or death of another child or stepchild of the parent.” (Emphasis added.)
We also agree with the district court that this statute provides guidance even though this case has not reached—and may never reach—a termination hearing. The CINC adjudication to which R.B.S. was subject and any later proceedings for termination of his parents’ rights for which the CINC adjudication was a first step would necessarily be interrelated. As our court stated in In re D.V., 17 Kan. App. 2d 788, 790-91, 844 P.2d 752, rev. denied 252 Kan. 1092 (1993): “The termination statutes are part of the same statutory scheme as the statutes authorizing proceedings to adjudicate a child in need of care. . . . The overall concern of the [Kansas] Code for Care of Children is to protect children from . . . mistreatment.”
In D.V., we ruled that evidence admissible in a CINC hearing was likewise admissible in a termination hearing: “It would defy logic to allow such evidence to.be used in proceedings to determine if a child is a child in need of care and disallow such evidence to establish the more serious misconduct and potentially greater danger to the child that supports termination of parental rights.” 17 Kan. App. 2d at 791.
We hold it would also defy logic to permit evidence of a parent’s shortcomings or his or her mistreatment of another child or the injury or death of a sibling to support termination and not to permit it to support a CINC adjudication. To do so would violate the fundamental rule of statutory construction that the purpose and intent of the legislature governs. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000) (“The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs where that intent can be ascertained.”). The Kansas Code for Care of Children is to be construed liberally to best serve the welfare of the child under consideration. K.S.A. 38-1501.
The parents’ second argument is that insufficient evidence supported the district court’s adjudication of R.B.S. as a child in need of care; thus their fundamental right to custody and control of R.B.S. was violated.
“[A] natural parent’s right to the custody of his or her children is a fundamental right protected by the Fourteenth Amendment to the United States Constitution which may not be disturbed by the State or by third persons absent a showing the natural parent is unfit.” In re Adoption of A.P., 26 Kan. App. 2d 210, 215-16, 982 P.2d 985, rev. denied 268 Kan. 846 (1999). This court reviews a child in need of care adjudication for substantial competent evidence to support the district judge’s finding. In re R.C., 21 Kan. App. 2d 702, 713, 907 P.2d 901 (1995), rev. denied 259 Kan. 928 (1996).
We agree with P.S. and L.S. that no substantial competent evidence supported the district judge’s reliance, even in part, on the death of their older son. The medical testimony could not have been more clear. Thomas did not blame P.S. or L.S. in any way for the older child’s death. In fact, he was careful not to do so. Although the death may be called “unexplained” because no one is certain why the bacteria that caused the child’s pneumonia migrated into his bloodstream, it was not “unexplained” in a manner that implicated P.S. or L.S. There was absolutely no evidence that any behavior by P.S. or L.S. caused the sepsis, that they could have done anything to prevent it, or that they could have taken steps to save the baby once it occurred. The evidence showed only that the baby may have had a mild cough. A mild cough, even in a 5-month-old, is not usually a sign of an immediately life-threatening condition.
We do not agree with P.S. and L.S. that the evidence other than that having to do with their first child’s death was inadequate. Even without consideration of the contents of the “social file” contained in the record on appeal but not admitted into evidence in the district court, the evidence of the parents’ violent relationship and the parents’ neglect of their older son prior to his death was sufficient to support a CINC adjudication of R.B.S. K.S.A. 38-1583a(b)(2) allows consideration of “conduct toward a child of a physically, emotionally or sexually cruel or abusive nature.” (Emphasis added.) The older son qualified as such “a child.”
L.S. told both the hospital security guard and other hospital personnel that P.S. abused her. She told Robinson that P.S. left her and the couple’s first baby in the cold without money or food. In addition, the babysitter for R.B.S.’s older brother said L.S. persisted in bringing the older baby in without appropriate clothing, even after the sitter gave L.S. clothing he could have worn. L.S. also delivered the baby to the sitter wet and dirty.
The State was correct that this testimony was directly relevant to and persuasive of P.S.’s and L.S.’s lack of parenting ability. Their conduct toward their older son, including exposing him to the violence between them and their failure to feed or clothe the child properly, is physically and emotionally abusive behavior justifying a CINC adjudication for a younger child. The district judge reached the right result—finding R.B.S. a child in need of care— although he relied in part on a wrong reason. See Calver v. Hinson, 267 Kan. 369, 374, 982 P.2d 970 (1999).
Because R.B.S. has not spent any of his first 8 months of life in the care of P.S. and L.S., one further point bears emphasis at the close of this opinion. The parental rights of P.S. and L.S. will be subject to severance if evidence is mustered to support their unfitness in a termination hearing, even if R.B.S. has still never spent time in their custody and control. In In re Price, 7 Kan. App. 2d 477, 644 P.2d 467 (1982), we examined the question of whether a child could be characterized as “deprived,” i.e., the equivalent of “a child in need of care” under a predecessor statute, if he had never been in the custody of his parent. In the words of an Ohio case quoted in that opinion: “ ‘The law does not require the court to experiment with the child’s welfare to see if he will suffer great detriment or harm.’ ” Price, 7 Kan. App. 2d at 480 (quoting In re East, 32 Ohio Misc. 65, 69, 288 N.E.2d 343 [1972]).
In other words, a child may be adjudicated in need of care because he or she is without proper parental care necessary for the child’s physical, mental, or emotional health, even if the parent has never been given a chance to prove himself or herself as to that particular child. Once there is evidence of a parent’s unfitness— even if it relates to a child other than the one at issue—we need not gamble with the health or life of the child before us. See Price, 7 Kan. App. 2d at 480 (quoting In Interest of Kester, 228 N.W.2d 107, 110-11 [Iowa 1975]).
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Rulon, C.J.:
S.A.J. appeals from his adjudication as a juvenile offender for the crimes of aggravated indecent liberties. We affirm.
A detailed recitation of the underlying facts is not necessary in our resolution of the issue presented.
S.A.J. argues the time period of 198 days he was in custody awaiting adjudication violated his right to have his case heard without unnecessary delay. K.S.A. 38-1651 states that “[a]ll cases filed under this code shall be heard without unnecessary delay. Continuances may be granted to either party for good cause shown.” Interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
Prior to trial, at the hearing on a motion to dismiss, the district court found there had been no unnecessary delays. The delays that had been taken were all because of the congested docket of the court. S.A.J. contends the delay involved was unnecessary and, as such, the charges against him should be dismissed.
A juvenile does not have a constitutional right to a speedy trial in matters conducted under the Kansas Juvenile Justice Code (formerly Juvenile Offenders Code). See In re T.K., 11 Kan. App. 2d 632, 634-36, 731 P.2d 887 (1987). Consequently, the 90-day and 180-day rules enumerated in K.S.A. 22-3402 are not applicable. Absent the speedy trial requirements of K.S.A. 22-3402, and with no other statutory time requirements specified in the juvenile code, the issue to be determined is solely whether appellant’s case was heard without unnecessary delay. See K.S.A. 38-1651
According to S.A.J., “[I]t would only make sense that a time period exceeding six months ... is in excess of the period contemplated in K.S.A. 38-1651.” S.A.J. cites no relevant case law or statutory provisions in favor of his position, but instead relies upon the fact that other parts of the juvenile code contain time restrictions. See K.S.A. 38-1625 (initial appearance); K.S.A. 38-1632 (detention hearing); K.S.A. 38-1623 (notice of alibi); K.S.A. 38-1681 (expedited appeals). The argument is not persuasive. Further, an appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper. State v. Conley, 270 Kan. 18, 27, 11 P.3d 1147, cert. denied 532 U.S. 932 (2000).
Here, S.A.J. offers nothing to refute tire district court’s ruling. The district court found the delays were attributable to the crowded docket and those findings are supported by the record. Further, S.A.J. has failed to show prejudice. As part of its ruling on the motion, the court found S.A.J. was already in the custody of the State on a previous case. Regardless of the delay in bringing the instant matter to an adjudicatory hearing, S.A J. would have still been in State custody.
S.A.J. has failed to establish that his case was not heard without unnecessary delay or that he was prejudiced in any way by the timing of the proceedings against him. S.A.J. has no statutory right to a speedy trial, and under the facts of this case, the delays in S.A.J.’s adjudication were necessary due to the court’s overcrowded dockets.
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Pierron, J.:
Dante O. Adams appeals his conviction by a jury of aggravated escape from custody.
Adams first contends the substitution of judges in this case was improper under K.S.A. 60-263; therefore, his sentence is illegal because Judge Owens lacked jurisdiction to sentence him on the aggravated escape from custody conviction.
Adams was assigned to community corrections after he plead guilty to two counts of burglary and two counts of theft. Judge Owens was the presiding and sentencing judge for disposition of those crimes. However, Judge Ballinger presided over the trial concerning the charge of aggravated escape from custody. Then, Adams appeared before Judge Owens for sentencing in the aggravated escape conviction and for proceedings revoking his assignment to community corrections, which occurred at the same hearing.
Under Kansas statutes, it is not required that the trial judge be the sentencing judge. K.S.A. 22-3424. Any judge of the judicial district is authorized to pronounce sentence on a person convicted of a crime in that district. See State v. Ruff, 252 Kan. 625, 628-29, 847 P.2d 1258 (1993); State v. McDonald, 250 Kan. 73, 81, 824 P.2d 941 (1992); State v. Blackmore, 249 Kan. 668, 672, 822 P.2d 49 (1991); State v. Sweetin, 134 Kan. 663, 670, 8 P.2d 397 (1932). No error is found in Judge Owens sentencing Adams for the aggravated escape from custody conviction.
Further, Adams was sentenced within the presumptive sentencing range for the crime he committed. Pursuant to K.S.A. 21-4721(c)(1), there can be no appeal from a presumptive sentence. See State v. Lewis, 27 Kan. App. 2d 134, 140, 998 P.2d 1141, rev. denied 269 Kan. 938 (2000).
Even if we were to apply the disability requirements for substitution of a trial judge found in K.S.A. 43-168, K.S.A. 60-263, or Federal Rule of Criminal Procedure 25(a), we find no reversible error. First, the transcripts of the trial and sentencing hearings reveal that neither Adams nor his counsel objected to a judge other than Judge Ballinger sentencing Adams for aggravated escape from custody. Any party objecting to the substitution of a judge must raise that objection at the first opportunity to do so. The substitution of judges after the verdict has been rendered is not a question of jurisdiction but rather of procedure. Therefore, Adams’ failure to object and preserve error on the record resulted in the waiver of his objection. See State v. Smith, 268 Kan. 222, 242-43, 993 P.2d 1213 (1999).
Second, the statutes cited by Adams concerning the substitution of judges are based upon the replacement judge’s lack of familiarity with the record or the proceedings. K.S.A. 43-168; K.S.A. 60-263; Fed. R. of Crim. Proc. 25(a). Judge Owens was not a stranger to Adams or the crimes providing the underlying felonies for the aggravated escape from custody conviction. Judge Owens was sufficiently familiar with the situation in order to satisfy any of the state or federal statutes cited by Adams for replacement of a judge.
Next, Adams argues the sentencing court failed to consider Labette Correctional Conservation Camp (Labette) after revoking his probation and imposing an incarceration sentence. Adams raises an issue of first impression.
K.S.A. 2000 Supp. 21-4603d(a) provides that prior to imposing a dispositional departure ... or prior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block or the border box grid blocks of either sentencing guideline grid, the court “shall consider placement of the defendant in the Labette correctional conservation camp.” The court in State v. Billington, 24 Kan. App. 2d 759, Syl. ¶ 5, 953 P.2d 1059 (1998), stated: “The failure of a trial court to consider placing a defendant in the Labette Correctional Conservation Camp as required by K.S.A. 1996 Supp. 21-4603d requires that the sentences imposed be vacated and die matter remanded for resentencing.”
Labette is a minimum security “boot camp,” which is authorized under K.S.A. 75-52,132 for young, nonviolent felony offenders. It provides inmates with a highly structured residential work program. See State v. Benoit, 21 Kan. App. 2d 184, Syl. ¶ 1, 898 P.2d 653 (1995). For sentencing purposes, under K.S.A. 2000 Supp. 21-4603d(a) a sentencing court must consider sending a defendant to Labette before imposing a prison sentence when the defendant has a presumptive probation or border box classification on either grid. The legislature’s theory appears to be that if the sentencing court is going to order an upward dispositional departure, then the court must consider Labette before incarcerating the defendant.
The issue presented is whether the sentencing court is required to consider Labette when revocation of a nonprison sanction is instituted due to the commission of a new felony. K.S.A. 2000 Supp. 21-4603d(a), the same statutory authority requiring consideration of Labette, also provides:
“When a new felony is committed while the offender is incarcerated and serving á sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.”
The only case addressing the situation of the revocation of the nonprison sanction and failure to then consider Labette is State v. Williams, 24 Kan. App. 2d 447, 946 P.2d 98 (1997). In Williams, the defendant’s criminal history and crime severity level placed her in a presumptive nonprison block on the sentencing grid. She was granted probation, but it was revoked after the evidence showed she had failed to report 27 times, failed to comply with the recommendations of an evaluation, and failed to maintain full-time employment. In revoking the defendant’s probation, the sentencing court failed to consider placing her in Labette. The Williams court held the sentencing court was required by K.S.A. 1996 Supp. 21-4603d(a) to consider placing the defendant in Labette prior to the revocation of her nonprison sanction of probation. The Williams court reversed the revocation and remanded for a new hearing. 24 Kan. App. 2d at 448-49.
Adams’ burglary and theft convictions resulted in a sentencing guidelines classification of 7-E on the nondrug grid. His conviction for aggravated escape from custody resulted in a sentencing guidelines classification of 8-E on the nondrug grid. The classifications of 7-E and 8-E are both in the presumptive probation section of the nondrug grid. However, since Adams committed his offense of aggravated escape from custody while on assignment to a community correctional service program, the sentencing court had authority to sentence him to imprisonment despite the nonprison classification of grid box 8-E. See K.S.A. 2000 Supp. 21-4603d(a). Adams’ imprisonment sentence for aggravated escape from custody was not a departure and was the imposition of a presumptive sentence. See State v. Burrows, 23 Kan. App. 2d 342, Syl. ¶ 1, 929 P.2d 1391, rev. denied 261 Kan. 1087 (1997).
The present case is clearly distinguishable from Williams. Here, the defendant committed a new felony while on community corrections, while in Williams, the defendant failed to follow the procedural terms of her community corrections. We see the difference as paramount. The language in K.S.A. 2000 Supp. 21-4603d(a) concerning commission of a new felony while on community corrections was not applicable in Williams. Here, K.S.A. 2000 Supp. 21-4603d(a) ehminates any presumptive probation classification for sentencing of Adams’ new felony. To require the trial court to consider sending a defendant to Labette when revoking community corrections for commission of a felony where an imprisonment sentence is a presumptive sentence is not consistent.
We interpret statutes and determine legislative intent in order to make the language of a statute consistent, harmonious and sensible. When construing a statute, all provisions of the statute must be construed together with a view of reconciling and bringing the several provisions into workable harmony if possible. See State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998). We construe the various provisions of K.S.A. 2000 Supp. 21-4603d(a) to hold that when a defendant’s assignment to a community corrections program is revoked because of the commission of a new felony and the defendant is ordered to serve the incarceration portion of his or her sentence, the sentencing court is not required to consider placement in Labette
Last, Adams argues there was insufficient evidence to support his conviction. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
The evidence presented to the jury clearly supported Adams’ conviction. Adams signed out from community corrections for a job search on October 6, 1999, at about 12:50 p.m., and he was scheduled to return at 5 p.m. the same day. Adams called at approximately 5 p.m. to request an hour extension because he had missed the bus. Adams did not return to the community corrections facility. Adams was arrested on October 13, 1999, for aggravated escape from custody. Adams stipulated that he was being held in community corrections on a felony conviction.
Aggravated escape from custody in this case required the State to prove the defendant escaped while being held in lawful custody upon a charge or conviction of a felony. K.S.A. 2000 Supp. 21-3810(a)(1). Adams argues that since he had permission to leave and since legitimate reasons existed for “not arriving at the intended destination ... it was incumbent upon the state to prove more than the bare fact that Mr. Adams left and failed to return in order to prove he had criminal intent to escape.” We disagree. Viewing the evidence in the light most favorable to the prosecution, we find die State presented sufficient evidence for a rational fact-finder to find Adams guilty of aggravated escape from custody. See State v. Garrett, 235 Kan. 768, 684 P.2d 413 (1984).
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Per Curiam,-.
Defendant Fred L. Marrs appeals the district court’s judgment in favor of plaintiffs Wichita State University Intercollegiate Athletic Association, Inc., and Wichita State University (WSU), upon the plaintiffs’ motion for summary judgment in a declaratory judgment action. We affirm.
The primary issue for our consideration is whether the district court properly interpreted a contract dealing with the sale of season tickets to men’s basketball games at WSU.
Although the defendant has raised a multiplicity of issues on this appeal, the determinative question rather narrowly relates to the interpretation of the season ticket contract. Interpretation of rights under a contract is a question of law. See City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998). Therefore, assuming there is no material issue of disputed fact, the district court may properly grant summary judgment after reviewing the pleadings by construing the contract to either permit or prohibit the plaintiffs’ proposed course of action. See Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
However, upon review, this court is not bound by the district court’s interpretation of the contract and may independently construe its meaning and determine the legal effect of the parties’ agreement. See Watertower Place Dev. Group, 265 Kan. at 152-53.
Here, the district court held the plaintiffs could reasonably require the defendant to contribute to the scholarship fund in consideration for renewing his season tickets. As we understand, the basis for the district court’s finding is that the plaintiffs have the right to withdraw the annual right of renewal of season tickets by providing the defendant with proper notice of disclaimer.
Soderholm v. Chicago Nat. League Ball Club, Inc., 225 Ill. App. 3d 119, 587 N.E.2d 517 (1992), represents the prevailing view among those jurisdictions to consider this issue, holding that a reorder form for season tickets with an option to renew is a license for the use of specified property under specified terms. See Soderholm, 225 Ill. App. 3d at 124-25. In Soderholm, the court discussed the characteristics of a lease and of a license, determining the reorder form for season tickets to Cubs games with annual renewal did not vest the ticketholder with any rights of possession in the property, as in a lease contract, but merely with rights to use in the property, as in a license. See Soderholm, 225 Ill. App. 3d at 124-25.
In contrast, the Louisiana Court of Appeals held a contract for the purchase of season tickets containing an option to purchase tickets for the following season to be a lease containing certain indicia of ownership. See State Block, Inc. v. Poche, 444 So. 2d 680 (La. App. 1984). Because the Louisiana court relied almost entirely upon die Louisiana Civil Code in determining whether the tickets retained the nature of a sales contract or a lease contract, without considering the possibility of a contract for license, it is unclear whether Louisiana law is analogous to Kansas law. See Poche, 444 So. 2d at 684.
In Gage v. City of Topeka, 205 Kan. 143, 146-47, 468 P.2d 232 (1970), our Supreme Court discussed the difference between a license and a lease agreement. Quoting an earlier decision, the court stated:
“ ‘The test to determine whether an agreement for the use of real estate is a lease or a license is whether tire contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license, and this is a question of law arising out of the construction of the instrument.’ ” Gage, 205 Kan. at 147.
Although the record of the proceedings before the district court does not contain the terms of the original agreement for season tickets created in 1962, the defendant admitted during the hearing on the plaintiffs’ motion for summary judgment that the plaintiffs were allowed to impose conditions upon the use of the tickets, even to the extent of changing the price of regular season tickets. Clearly, neither party viewed the season tickets as an exclusive possession of the seats in question. Rather, the season ticket agreement obviously only provided the defendant with the use of those seats, subject to the conditions imposed by the plaintiffs who possessed legal ownership of the property, for the specified purpose of watching WSU men’s basketball games. Nothing in the season ticket agreement prevented WSU from selling the use of those tickets to another person for some other purpose, such as watching a volleyball game or even a women’s basketball game, should the arena be used for such purposes.
Although a license is generally revocable at the will of the licensor, an executed license—a license supported by valuable consideration—may not be revoked. See McKim v. Carre, 72 Kan. 461, 462, 83 Pac. 1105 (1905). Without question, the defendant offered consideration in the form of monetary compensation for the season tickets. However, the contract for season tickets unambiguously provides a limited duration for the license of one season. Thereafter, new tickets must be purchased or the license is revoked.
The defendant argues the provision of the contract allowing for an annual right of renewal creates an enforceable option contract. Assuming the defendant’s interpretation of the renewal clause to be correct, the right to renew does not necessarily establish a new contract under identical provisions contained in the season ticket contract the previous year.
Because the consideration paid involves an irrevocable license to watch men’s basketball for a single season, the license again becomes revocable at the end of that term. The option clause permits the ticketholder to effectively reserve his or her seats, but the option to renew merely permits the defendant to reserve the use of those seats for another season of basketball games. Nothing in the option to renew prevents the owner of the facility, in this case the plaintiffs, from imposing different conditions upon the license, or even revoking the option to renew for future seasons.
The defendant attempts to draw a meaningless distinction between conditions prohibiting the licensees from engaging in certain conduct, such as smoking or consumption of alcoholic beverages, and conditions imposing a contribution to a scholarship fund. The defendant admits the plaintiffs may legally alter the cost of the season tickets from season to season. In addition, there is no reason that the plaintiffs cannot also vary the price of the tickets based upon the location of the seating within the arena.
We conclude there is no legal prohibition against requiring a ticketholder to pay a higher price for his or her season tickets and demanding that, instead of making a lump payment as consideration for the license, for example $1,000, the ticketholders make two payments into separate funds as consideration for the license, such as $300 into general ticket receipts and $700 into a scholarship fund. The defendant’s attempt to distinguish the type of payment the plaintiffs may impose upon the license is merely an exercise in semantics without any legal basis. See Ryco Packaging Corp. v. Chapelle Int'l, Ltd., 23 Kan. App. 2d 30, 37, 926 P.2d 669 (1996), rev. denied 261 Kan. 1086 (1997).
Here, the intent of the contract is apparent. The plaintiffs desired to grant licenses to persons similarly situated to the defendant for the specific and limited purpose of watching men’s basketball games. There was no intent to transfer possessory interests in the subject property to the defendant. As the defendant obtained the license to the property through adequate consideration, a revocable license was created for one season, but as each season passes further consideration is necessary to prevent revocation. As new irrevocable licenses are extended, the plaintiffs, as property owners, are entitled to create new conditions and demand greater consideration for the licenses.
Consequently, the district court did not err in granting summary judgment in favor of the plaintiffs on this declaratory judgment action, even though the district court relied upon slightly erroneous reasoning in reaching its conclusion. See Bergstrom, 266 Kan. at 875-76.
We have carefully considered the other issues raised by the defendant and firmly conclude such issues have no legal merit.
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Hill, J.:
Anthony C. Blackshire appeals his convictions for two counts of rape and five counts of aggravated indecent liberties with a child. Blackshire is currently serving a 325-month sentence in the custody of the Secretary of Corrections. He argues that the trial court should not have held the hearing to determine the voluntariness of his confessions simultaneously with his trial, that the sentencing court adopted a procedure that prevented it from considering his mitigating evidence, that his sentence is unconstitutionally excessive, and that the trial court erroneously instructed the jury to “work out justice for the parties.” We affirm.
On February 9,2000, Blackshire, who was charged with multiple counts of rape and aggravated indecent liberties, was convicted on seven counts and acquitted on one. All five victims, A.W., A.C., C.A., H.C., and D.T., were too young to consent to sexual intercourse or lewd fondling and touching. A brief review of Blackshire’s charges, evidence, and sentences is helpful in deciding the issues raised in this appeal.
Blackshire was charged in counts I and II with raping A.W. in February 1997. She was 13 and Blackshire was 17 years old at the time of the intercourse. A.W. did not testify at trial; however, Blackshire had admitted to the police that he had consensual sexual intercourse with A.W. on two occasions.
The jury convicted Blackshire on both counts. At sentencing, the court designated count I as the primaiy offense. Blackshire’s sentencing guidelines category and criminal history level were 1-E, and he was sentenced to a guidelines term of imprisonment of 276 months. For count II, he was sentenced to a concurrent 206-month term. The sentencing court used criminal history category I to classify all of his nonbase sentences.
In count III, Blackshire was charged with aggravated indecent liberties with a minor based on an incident of lewd fondling in July 1997 involving A.C. She was 15 and Blackshire was 17 at the time. A.C. testified at trial about the incident, and Blackshire had confessed to the police that the incident occurred but was consensual. Blackshire was convicted. He was sentenced to a guidelines term of 49 months for this crime, concurrent with the sentence for count I.
Blackshire was charged in count IV with raping C.A. C.A., who was 13 at the time, testified that their sexual intercourse was con sensual. Blackshire denied having sex with her. On this count he had not confessed to the police and was acquitted.
Counts V, VI, and VII charged Blackshire with three counts of aggravated indecent liberties involving H.C. These incidents occurred May 20 through May 27, 1999, when H.C. was 15 and Blackshire was 19. H.C. testified about the incidents, and Black-shire confessed and indicated their conduct was consensual. The jury convicted him. For these crimes, Blackshire received three 49-month terms, concurrent with each other and concurrent with ■count I.
Finally, in count VIII, Blackshire was charged and convicted of aggravated indecent liberties with D.T. This charge was based upon allegations of lewd fondling or touching on May 27,1999. At the time of the alleged touching, D.T. was 11 and Blackshire was 19. Blackshire confessed to a certain amount of this conduct. The jury found him guilty. For this offense, he was sentenced to 49 months, but the sentencing court ordered this sentence to be served consecutive to count I, thus creating an aggregate sentence of 325 months.
During the course of their investigation, the police interviewed Blackshire. After being advised of his Miranda rights, he made several inculpatory statements. Because Blackshire raised the issue about the voluntariness of his statements, the court held a Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), hearing. For the sake of expediency, the court decided to hold the hearing during the course of the trial itself.
On July 1, 1999, K.S.A. 21-3522 went into effect. That statute is popularly known as the “Romeo and Juliet law” and it defines the crime of unlawful, voluntary sexual relations. All of the crimes committed by Blackshire occurred prior to the effective date of the Romeo and Juliet enactment.
The trial court gave the following instruction without objection from the State or the defendant:
“A juror is an officer of the Court, and it is the duty of the jury to work out justice for the parties within the law and the evidence. You must do this without being influenced by likes, dislikes, sympathy or prejudice.
“In your deliberations, you should lay aside mere pride of opinion, and should bear in mind that the jury room is no place for adopting or maintaining support for either side of the case. The aim to be kept in view by the jury is, the truth as you find it to be from the evidence, considered with the instructions of the Court.
“It is the duty of the jury to consider the evidence and the instructions together, and to listen to the arguments of each other with an open mindedness and a disposition to be convinced by them. If at any time such consideration of the evidence and the instructions, a juror is convinced that his or her vote is wrong, it then becomes the duty of such juror to change his or her vote.”
Jackson v. Denno Hearing
Blackshire filed a motion in limine precluding the State from introducing his confessions unless “the statements are produced prior to trial and the Court, pursuant to [the statutes] and Jackson v. Denno, 378 U.S. 368 (1964), finds them to be voluntary, with a . knowing and intelligent waiver of his constitutional rights.” At the hearing on the pretrial motions, the trial court heard argument on the motion in limine and ruled that it would hold a Jackson v. Denno hearing during the trial. The State agreed and the defense counsel did not object. The trial court, elaborating on the procedure, ruled that instead of having a separate hearing on Monday and not having a jury, it would conduct the hearing simultaneously with the trial. Again, the State agreed and the defense counsel did not object. All remaining matters in the motion in limine were ultimately granted by the court.
During its case, the State called Detective Jackson to testify about his investigation. The officer indicated that he interviewed Blackshire, and the prosecutor asked several questions about the voluntariness of Blackshire’s statements and his waiver of constitutional rights. Defense counsel did not object to any of those questions.
While the police officer was giving the details of the confessions, the defense counsel objected twice on hearsay grounds. The next day of trial, outside the jury’s presence, the trial court ruled: “Yesterday afternoon, during Detective Jackson’s testimony, we were also having a Jackson v. Denno hearing, and I find that Mr. Black-shire’s statements were made freely, voluntarily and understandably.” Defense counsel did not object. The court then asked if any thing else needed to go on the record, and defense counsel was silent.
Two other officers testified at trial about their interviews with Blackshire. Questions concerning the voluntariness of his statements and his demeanor during the interviews were answered without objection. Defense counsel cross-examined both witnesses. At the close of the State’s case, again outside the presence of the jury, the prosecutor asked the court to make a Jackson v. Denno finding on the record. Defense counsel did not object to either the request or the trial court’s findings that the statements to both officers were “freely and voluntarily made.” Defense counsel did take the opportunity to place another unrelated issue on the record.
On appeal, Blackshire does not challenge the findings of the trial court concerning the voluntariness of his confessions. Rather, he claims that the trial court’s method of conducting the Jackson v. Denno proceeding simultaneously with his juiy trial violated his right to procedural due process.
Despite the obvious fact that the better procedure would be to hold a separate hearing to determine the voluntariness of the confessions (had the trial court found the statements involuntary, a mistrial would have resulted since the jury would have already heard the statements), we do not think that this issue is properly before this court. Since there was no contemporaneous objection to the procedure adopted by the trial court of holding the Jackson v. Denno hearing simultaneously with the trial, this issue has not been properly preserved for appellate review. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Previously, in a case similar to Blackshire’s, our Supreme Court reaffirmed the rule that the record must show a timely and specific objection in order to preserve or raise the admissibility of evidence as an issue on appeal. The court in State v. Bornholdt, 261 Kan. 644, 651, 932 P.2d 964 (1997), was asked to review whether the trial court committed reversible error when it admitted the defendant’s statements to officers without holding a voluntariness hearing. As in Blackshire’s case, there was no objection at trial. The Bomholdt court stated: “If this were not a case where a hard 40 sentence had been imposed, this issue would fail because of our rule that in order to raise the admissibility of evidence as an issue on appeal, the record must show a timely and specific objection. [Citations omitted.]” 261 Kan. at 651.
The only reason the Bomholdt court reviewed the matter was due to the legislative mandate in K.S.A. 21-4627 requiring review of all hard 40 sentence cases. Blackshire’s case does not fit within that legislative mandate. The issue is not properly before us.
Romeo and Juliet Enactment as Mitigation
Turning to the next issue raised by Blackshire, his counsel contends that Blackshire was not given a proper hearing on his motion for a downward departure when the sentencing court “refused to consider relevant evidence” in support of his request. We believe that this argument is nothing more than a careful attempt to avoid K.S.A. 21-4721, which bars review of a presumptive guidelines sentence. The sentences imposed on Blackshire are within the presumptive ranges provided by law, and we lack jurisdiction to review them.
Even so, our Supreme Court has held that “the legislature would appear to have implicitly allowed a defendant to appeal from the procedurally inadequate denial of a motion for departure.” State v. Koehn, 266 Kan. 10, 14, 966 P.2d 63 (1998). The “procedural defect” Blackshire complains about is the fact that the sentencing court ruled as a matter of law that the Romeo and Juliet statute was not a basis for departure. Potentially, K.S.A. 2000 Supp. 21-3522 would have covered Blackshire’s crimes involving H.C. and A.C. had he committed his offenses after July 1, 1999. The statute lowered the severity level of consensual sexual relations between opposite sex teens as young as 14 meeting certain criteria. Black-shire claims the court’s ruling equates to a failure to consider relevant evidence.
During the hearing on the downward departure motion, the sentencing court asked Blackshire if he had any evidence to present in mitigation. Blackshire responded, “No.” The court concluded as a matter of law that the issue raised in the departure motion was not a basis for departing. By ruling that a subsequent enactment of the legislature reducing the penalties for some conduct is an insufficient reason to depart from a guidelines sentence, the trial court did not adopt a “procedure” that prevented the defendant from presenting his mitigation argument. It appears to us that the court considered Blackshire’s mitigation argument, was unmoved, and denied it. We see no procedural defect that creates a need for a new sentencing hearing.
Cruel and Unusual Punishment
Blackshire challenges his sentences for counts I and II. He argues that his presumptive sentences of276 months and 206 months for consensual sex with a 13-year-old girl is cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Bill of Rights of the Kansas Constitution. At sentencing, neither the State nor the defendant disputed the severity levels of any of the convictions, nor did they dispute Black-shire’s criminal history. Blackshire received guidelines sentences.
We believe that this court lacks jurisdiction to review this matter because of K.S.A. 21-4721. Another panel of this court in State v. Lewis, 27 Kan. App. 2d 134, Syl. ¶ 6, 998 P.2d 1141, rev. denied 269 Kan. 938 (2000), held that the challenge that a presumptive guidelines sentence is cruel and unusual is statutorily barred from review on direct appeal but can be raised in a collateral attack under K.S.A. 60-1507. Pursuant to K.S.A. 21-4721, “there can be no appeal from a presumptive sentence.” 27 Kan. App. 2d at 140. We find that reasoning persuasive. We cannot review whether Blackshire’s sentence is cruel and unusual punishment, for to do so would nullify the statute barring appeals of presumptive guidelines sentences.
Allen Instruction
Finally, Blackshire contends that the trial court erred when it gave a non-PIK, Allen type instruction. See Allen v. United States, 164 U.S. 492, 501-02, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Black-shire admits that defense counsel failed to object to the instruction. He cannot seek appellate review now unless the instruction was clearly wrong.
Our rule is clear:
“[N]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
See State v. Humphery, 267 Kan. 45, 62, 978 P.2d 264 (1999).
Besides, similar instructions have been upheld in State v. Dias, 263 Kan. 331, 334-35, 949 P.2d 1093 (1997); State v. Whitaker, 255 Kan. 118, 872 P.2d 278 (1994); and State v. Giles, 27 Kan. App. 2d 340, 4 P.3d 630, rev. denied 269 Kan. 936 (2000). We find no real possibility that the juiy in this case would have rendered a different verdict if the instruction had not been given.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover $250 which the defendant exacted from the plaintiff as a commission in a transaction pertaining to a real-estate loan. The case was here before, and was reversed because of the admission of incompetent evidence (Schroth v. Bardrick, 106 Kan. 154, 186 Pac. 749), .and remanded for a new trial on “the single issue relating to payment of a commission for procuring the loan.”
The plaintiff owned a farm which was encumbered with a mortgage for $4,500. He applied to the defendant for a larger loan to pay off the original mortgage and to procure funds to improve his farm residence. This was the subject of some negotiations with defendant, and eventually defendant ar ranged for the plaintiff a loan of $5,000 on the farm, and an independent loan of $500 or $750 on plaintiff’s promissory note. The note was for $750, and the question at issue was whether it should have been for that amount or only for $500. Plaintiff had poor eyesight and could not read the papers the defendant required him to sign. He signed the papers — as he contends— in reliance upon the representations of defendant that he was getting the mortgage loan of $5,000 at five and one-half per cent, and the balance on his note for $500, at seven per cent. The defendant contends that the note was properly drawn for $750 to include his commission on the $5,000 loan. The defendant discounted the $750 note at a local bank. The defendant handled the funds procured by these loans. He paid off the old mortgage, and paid certain bills for the improvement of plaintiff’s house, etc. When the $750 note became due, plaintiff was notified by the bank and went to inquire about it. The bank showed him the note and he acknowledged his signature. He then called upon defendant for an explanation.
“Q. And what was the conversation then, Mr. Schroth? A. Well, Mr. Bardrick told me that he knowed we would need a little more money and that is why he done it, he made it seven hundred and fifty dollars. I said that would be all right if I got the money and I went down and paid my interest.”
The matter dragged along for some time awaiting an accounting of defendant’s expenditures in plaintiff’s behalf with the moneys procured by these loans. Then it developed that defendant had exacted a commission of $250 and this lawsuit followed.
Judgment was given for plaintiff, and defendant appeals.
Error is assigned in the admission in evidence of ten blank commission notes which had been partially prepared by the loan company for plaintiff’s signature, but which were not used because the commission was added to the $500 note or because it was not to be charged at all. This evidence was of slight relevancy, but it was admissible for whatever it was worth.
It is next urged that plaintiff was erroneously permitted to testify that he had never received any money from defendant when in his petition he had admitted that defendant had paid out $4,881.57 for his benefit. The objection is not good. Plain tiff seems to have been an unlearned farmer who was telling his story as best he could. The jury did not misunderstand him; he merely meant that no cash had come into his hands from these loans.
The next error is based on the overruling of defendant’s demurrer to plaintiff’s evidence. The plaintiff’s evidence, if true, clearly disclosed that no commission of $250 or any other sum was to be exacted for this loan. The evidence showed that plaintiff signed an application for a loan which included a commission of $275. There was some delay about getting this loan, and plaintiff called upon another loan agent, and when a loan for the latter was about to be procured, defendant met plaintiff on the street, and they had the following conversation. The record reads :
“When he asked me where I was going I told him down to Mr. Tice’s. ‘Why,’ he says, ‘What are you going to do there?’ ‘Why,’ I says, ‘I have got my loan down there.’ He says, ‘My papers are- over there now.’ I said, T can’t help that now. I have got the loan through Mr. Tice.’ ‘Why,’ he says, ‘What do you have to pay?’ ‘Why,’ I says, T have got to pay six and a half.’ ‘Why,’ he says, ‘Why will you pay six and a half when I have offered it to you at five and a half, and my papers are here,’ and so he says, ‘Why not come back up.’ ‘Well,’ I says, T don’t know,’ and ‘Well,’ he says, ‘You see your wife about it.’ And I went and seen my wife, so me and her we went up there. . . .
“Witness went to Tice’s office, came back to Bardrick’s office and he and his wife signed the notes and mortgages.”
The allegations of fraud were sufficient to admit the evidence touching the details of the transaction, and regardless of some possible discrepancies and inconsistencies in plaintiff’s evidence, and however persuasive the evidence and argument for the defendant may have been before the trial court and jury, that cannot avail here, and the demurrer was properly overruled.
The other assignments of error have been carefully noted, but they do not require discussion. The verdict was not contrary to the evidence which the jury in the exercise of their duty and discretion saw fit to believe; the motion for a new trial disclosed nothing indicating that justice had miscarried or that another trial would be likely to bring about a different result; nor did the court err in rendering judgment for plaintiff. The single issue of fact for the determination of which this cause was remanded to the district court is now settled, and it is without any error such as invalidated the former judgment; consequently this judgment must now be affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to recover for lumber and coal alleged to have been sold and delivered to Deering J. Marshall and the Iroquois Oil and Gas Company. Judgment was rendered in favor of Deering J. Marshall, and the plaintiff appeals.
The Iroquois Oil and Gas Company owned an oil and gas lease in Greenwood county, and desired to drill a test well on its property. Other parties, who owned other oil and gas leases in the vicinity, contributed a portion of the expense of drilling the well for a part interest in the lease of the Iroquois Oil and Gas Company. Deering J. Marshall, who likewise owned oil and gas leases in the vicinity, contracted with the Iroquois Company to pay one-half of the expense of drilling the well, after deducting the amounts contributed by other persons, and to receive from that company one-half of the interest it then retained in its lease. The well was drilled, and Marshall paid all that he had contracted to pay. The Iroquois Oil and Gas Company bought from the plaintiff lumber and coal, which were used in drilling the well, but were not paid for.
The contention of the plaintiff is that the enterprise was a joint adventure of Deering J. Marshall and the others. The court found “for the defendant and against plaintiff, making therein the findings of fact and basing his decision thereon— that the parties did not have an intention to establish the relationship of joint adventure, but were tenants in common.” There was no evidence to show that a partnership existed between the several parties interested in or contributing to the drilling of the well; that the drilling of the well was a joint adventure; that any of the parties interested had held out or represented that they wére partners or joint adventurers; that there was any contract between Marshall and any of the others interested in drilling the well; nor that the contract between Marshall and the Iroquois Oil and Gas Company was in any way added to or modified. Deering J. Marshall’s liability was fixed by his contract with the Iroquois Oil and Gas Company, and that liability was for one-half of the expense of drilling the well after the other contributions thereto had been deducted.
To have created a partnership, it was necessary that each of the parties should have contracted with all the others. A partnership contract could have been express or implied, but there must have been a contract. A joint adventure could not have been created except in the same way. In 23 Cyc., page 453, it is said:
“The subject of joint adventures is of comparatively modern origin. It was unknown at common law, being.regarded as within the principles governing partnerships. While some courts hold that a joint adventure is not identical with a partnership, it is regarded as of a similar nature, and governed by the same rules of law.”
The court found that the parties interested in the well were tenants in common, but that does not render Deering J. Marshall liable to the plaintiff for the lumber and coal sold by it to the Iroquois Company. In 38 Cyc., page 101, this language is used:
“Under ordinary circumstances neither tenant in common can bind the estate or person of the other by any act in relation to the common property, not previously authorized or subsequently ratified, for cotenants do not sustain the relation of principal and agent to each other nor are they partners.” (See, also, Freeman on Cotenancy and Partition, 2d ed., § 182; 1 Tiffany on Real Property, § 170; 17 A. & E. Encycl. of L., 706.)
This rule is supported by Greer v. Higgins, 8 Kan. 519, and Johnson v. Gas Co., 90 Kan. 565, 581, 135 Pac. 589.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for false representations which induced the plaintiff to purchase from the defendants book accounts arising from conduct of á mercantile business, the stock and fixtures of which plaintiff also purchased. The plaintiff was defeated, and appeals.
The assignments of error relate to instructions given and refused. No transcript of the evidence has been prepared, no evidence has been abstracted, and this court has no means of determining the importance of any assignment of error. Besides that, the jury returned special findings which negatived existence of the facts which were necessary to recovery by the plaintiff. None of the. instructions complained of could have influenced the jury in making its findings, unless it be the instruction relating to burden of proof. If the evidence were here, the court might be able to say the burden of proof was not of much consequence.
The plaintiff asserts the instructions eliminated the subject of implied warranty. Implied warranty was not pleaded, and no instructions appropriate to that subject were requested. The plaintiff pleaded false representations. Treating the representations as amounting to a warranty, the warranty was express, and the jury found none was given.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment granting the plaintiff a divorce. The contention here is that the court abused its discretion in denying to the defendant permission to file an answer and make a defense to the action. Plaintiff’s petition was filed on March 22, 1920, and on April 1, 1920, a return was filed showing service of summons on the defendant in Chicago on March 25,1920. A motion for temporary alimony and suit money .was filed by defendant on May 13, 1920, together with an affidavit in which she denied the averments of plaintiff to the effect that she had been guilty of extreme cruelty and gross neglect of duty. On May 29, 1920, this motion was heard and overruled, and shortly afterwards negotiations looking towards a reconciliation between plaintiff and defendant and the dismissal of the action, were begun. They proceeded so far that on June 17, 1920, the plaintiff agreed with counsel for defendant that he would dismiss the action and resume marital relations with his wife in Chicago if she would wire him the sum of $50. A telegram to this effect was sent to her in Chicago but was not delivered because she happened to be out of the city on that day. On her return the following day she wired the money to be delivered to him. When plaintiff learned of the delay in the sending of the money he stated that he would not carry out the agreement but would insist on a trial of the action. The case was called on the morning of June 19, when counsel for defendant informed the plaintiff that the money arranged for had been forwarded, but he declined to accept it and demanded a trial. No answer had been filed by the defendant and counsel stated that he desired an opportunity to file an answer and therefore asked for a continuance for a few days to procure testimony in behalf of the defendant, but this was refused and a divorce was summarily granted upon evidence which as printed in the record is meager and unsatisfactory. The only evidence relating to the grounds of divorce was given by the plaintiff.
On a motion for a new trial counsel stated that if the continuance was allowed and opportunity for a defense given,, the defendant would be ready to present her evidence and try the case within one week, but the motion was denied.
There is reason to complain of these rulings. Of course the defendant was in default of an answer, but in view of the fact that the parties had been in court contending on the application for the allowance of alimony and suit money, which was only decided twenty days before the day of judgment and also in -view of the negotiations and steps taken towards a reconciliation, and the discontinuance of the action, there was some excuse for the delay in filing an answer. Under the circumstances the court should have given the defendant an opportunity to file an answer and make her defense and we conclude that the refusal amounted to an abuse of discretion.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover possession of a strip of land in dispute between himself, as the owner of a forty-acre tract, and the owner of the adjoining forty on the north. The defendant denied this claim and cross-petitioned for a decree quieting his title. Jurors were impaneled and testimony taken, after which the court sustained a demurrer to the evidence of the plaintiff and quieted title to the disputed strip in the defendant. The plaintiff appeals.
George Cosner was the patentee of the quarter section. In 1882, he sold this forty to Massey. In 1898, Massey sold to Myers, who in 1918 sold to the plaintiff, the deeds describing the land as the southeast quarter of the southeast quarter. Plaintiff testified that after he bought of Myers he took a measuring tape and found his land several rods short, north and south, and asked Myers what he thought of having a surveyor locate the line; and that the latter objected to doing anything about it. The plaintiff then had the tract surveyed, proper notice having been given, and it was found that the old fence running east and west was 99feet south of the true line at the east end and 13 V2 feet-at the west end, thus marking the strip for which possession was sued for in this case.
The patentee, Mr. Cosner, testified that when he sold to Massey the two measured the forty off with a rope and established the line through there.
“Q. Did you know at the time you established this whether you. were getting it on the correct line or just guessing at it? A. Well, we just measured it off eighty rods square — aimed to, we didn’t know whether we got it or not, we measured it with a rope:”
He and other witnesses testified that he farmed up to the fence, which he says, he put two feet over on the line thus established and which was treated as the line, and that his adjoining neighbor farmed down to the same fence and no con troversy arose about the line. The plaintiff lived on adjoining land more than twenty years before he purchased the forty and knew of this fence.
It seems that the trial court from all the testimony thought it showed that Cosner and Massey had agreed on this fence as the boundary line. The trouble about this is that Mr. Cosner further testified:
“Q. You established that as a line fence? A. Well, we calculated to get it surveyed when the surveyor came up.
“Q. You knew where the line was at that time? A. No, I didn’t know.”
If this does not affirmatively show that these two adjoining landowners simply by rope measurement put the fence between them temporarily until the true line could be established, it certainly tended to show such an arrangement, and there was testimony from which the jury might well have found it to exist.
It is well settled that the use of a dividing fence without specific agreement that it shall be deemed a boundary between adjoining landowners is neither an establishment of a true line nor a thing which will start the statute of limitation running by way of adverse possession. In Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, it was held that when a fence is believed to be the true boundary and the claim of ownership is up to the fence .as located, if the intent to claim title exists only on the condition that the fence is on the true line the intention is not absolute, but conditional, and the possession is not adverse. (See, also, Peterson v. Hollis, 90 Kan. 655, 136 Pac. 259; Shanks v. Williams, 93 Kan. 573, 144 Pac. 1007, Winters v. Bloom, 96 Kan. 443, 151 Pac. 1109.)
In the last case it was said:
“The court also found that it did not appear whether the wall was built over on the eight-foot parcel by mistake or not. If it was done. by mistake and possession was held under a misapprehension as to the true boundary it would not be adverse although it continued beyond the fifteen-year period.” (p. 445, citing numerous authorities.)
To a similar effect is Peyton v. Waters, 104 Kan. 81, 177 Pac. 525.
As the defendant’s right to have his title quieted is dependent on the same question as the plaintiff’s right to possession, it was not only error to sustain the demurrer to the plaintiff’s testimony, but also error to decree the title quieted in the defendant.
The rulings are therefore reversed and the cause remanded with directions to proceed in accordance herewith. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for specific performance of a contract to convey real estate. A demurrer to the petition was overruled; and the defendants appeal.
The contract was signed by Benjamin Knapp as vendor, and by J. G. Hughes as vendee. The material portions follow:
“This contract, made and entered into this 4th day of March, 1920, by and between Benjamin Knapp and Elizabeth Knapp, of Moreland, Kansas, parties of the first part, and J. G. Hughes, of Clay Center, Kansas, party of the second part, witnesseth: The said first parties have this day sold to second party the following described real estate: [Description], for thfe consideration of $21,720.
“The second party has this day deposited in the Moreland State Bank, Moreland, Kansas, the sum of $2,000, to be held in escrow until the said first parties deliver a warranty deed to said land, together with an abstract brought up to date, showing a good merchantable title to said land. (Contract to be consummated by April 1, 1920.) On delivery of said deed and abstract, second party agrees to pay the sum of $6,720 in cash, and deliver to said first parties a first mortgage on above described land for $13,000, evidenced by two certain notes, one for $3,000 payable in three years and one for $10,000 payable in seven years, with interest thereon at six per cent per annum, payable on the 1st day of January in each year.”
The bank deposit was made, and abstracts of title were delivered. For their convenience, the vendor and the vendee made an oral agreement modifying some of the details of performance. Instead of a first mortgage on the entire tract for $13,000 securing two notes, one for $3,000 payable in three years and one for $10,000 payable in seven years, there were to be two mortgages on separate portions of the land, each securing a note for $1,500 due in three years and a note for $5,000 due in seven years. B. E. Hughes was to be named as one of the grantees in the deed. The vendor mailed to the vendee notes and mortgages for signing. The vendor changed the date when interest was to be payable from January 1 to April 1, made place of payment the bank of Lenora, Kan., and inserted stipulations covering subjects common to real-estate mortgages. The vendee regarded change of date, place of payment, and some of the stipulations, as departing from the contract as modified, and prepared other notes and mortgages. On April 1 the vendee made tender of the cash payment including the deposit, and made tender of the notes and mortgages he had prepared. The vendor refused to accept the tenders, and demanded payment of an additional sum of $320, as a condition to performance on his part.
The petition stated in detail the facts which have been summarized, made tender of the cash payments, and contained an offer on .the part of the vendee to execute notes and mortgages corresponding to the contract and containing whatever provisions were properly within its reasonable interpretation. A conveyance from both the vendor and his wife was prayed for. In the event judgment should not go against the wife, a conveyance by the vendor with abatement of price was prayed for. A supplemental petition stated that, with the consent of the vendor and his wife, the vendee had entered on the premises and had erected a lasting and valuable improvement, in the form of a windmill, costing $150. Other facts were stated entitling the vendee to relief against Elizabeth Knapp as well as her husband.
The vendor says the contract did no more than secure to him an option to take the consideration if he chose to deliver deed and abstract by April 1. He says further he was under no obligation to deliver deed and abstract, but if he chose to do so, the vendee was bound to perform. The contract witnesses on the part of the vendor that he has “this day sold” described land to the vendee for a stated price. The words in this part of the contract are the vendor’s words. Their ordinary meaning is that he has made the land the property of the vendee. He may not urge ambiguity, and then resolve the ambiguity in his own favor, and he may not deny the intention which the words express. It is true the legal effect of the words used must be determined by the law of conveyancing; a deed was still necessary to accomplish a completed transfer of legal title. The words quoted, however, were words of conclusion, and forbid reservation by the vendor of privilege to make another decision, at will, at a later date, which would keep the land from the vendee. Reading further in the contract, we discover that consummation by warranty deed was contemplated. On delivery of deed the vendee engaged to pay, and the parties were mutually bound, one to complete a sale, and the other to complete a purchase.
The vendor insists that enforceable modification of the contract could not be accomplished without writing, because of the statute of frauds. The oral agreement did not relate to any of those fundamental things which the statute requires shall be reduced to writing. The agreement related merely to details of performance. These may be arranged orally for accommodation of the parties without impairing obligation, and enforcement may properly regard any arrangement which does not go to the substance of the contract. (Painter v. Fletcher, 81 Kan. 195, 105 Pac. 500; Hull v. Allen, 84 Kan. 207, 113 Pac. 1050; Welch v. McIntosh, 89 Kan. 47, 130 Pac. 641.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burcit, J.:
The action was one to contest an order of the probate court refusing to probate a will. The plaintiff prevailed, and the defendants appeal.
The petition alleged that the will was duly executed, and that the testator was of full age, of sound mind, and not under any restraint. The answer pleaded that the testator lacked testamentary capacity, and that he was unduly influenced to make the will, the facts being stated in detail. The issues thus raised were fully canvassed. The court took the advice of a jury, which returned the following findings of fact:
“Q. No. 1. Did the deceased have sufficient mental capacity to make a will at the time the instrument purporting to be his will was executed? A. Yes.
“Q. No. 2. Was the instrument purporting to be the will of the deceased signed by reason of undue influence as defined by the instructions herein given? A. No.
“Q. No. 3. Did W. E. Evans, at the time he signed the last will and testament, have the intelligence to know and understand that he desired one-half of all of his property to go to his wife and one-half thereof to his mother? A. Yes.
“Q. No. 4. Did W. E. Evans sign the will after it was read to him in the presence of the two attesting witnesses without duress or coercion? A. Yes.
“Q. No. 5. Do you 'find that there was any undue influence exercised upon the deceased? A. No.”
The findings were approved, and the court rendered the following judgment:
“It is therefore ordered, considered and adjudged by the court that the plaintiff have judgment herein: That the instrument set out in plaintiff’s petition as the last will and testament of W. E. Evans, deceased, be and hereby is adjudged and found to be the last will and testament of said W. E. Evans, deceased, and said instrument is entitled to probate as said last will and testament. . . .”
The defendants say the district court erroneously regarded the proceeding as one to establish the will itself, and not merely as one to reverse the order of the probate court.
Formerly the proponent of a will had but on'e remedy, in case the probate court refused to probate the will, and that was by appeal to the district court. In 1907, the proponent was given a remedy by way of civil action commenced in the district court. (Laws 1907, ch. 429, §§ 1, 2.) In the case of Durant v. Durant, 89 Kan. 347, 131 Pac. 613, it was held the statute did not, by implication, abolish appeal, and the remedy of independent civil action was cumulative. In 1917, the act of 1907 was amended in some minor particulars, and the statute under which the plaintiff proceeded now reads as follows:
“If no person interested, or claiming to be interested shall appear within two years from the time of the making of any order by a probate court, probating or refusing to probate the will and contest the same, such order shall be forever binding, saving, however, to persons under legal disability, the period of two years after such disability is removed. The provisions of this act shall apply to any order of the court probating or refusing to probate the will, made at any time within two years prior to the taking effect of this act: Provided, however, That no proceedings to contest or set aside such order of the probate court shall affect the rights of innocent parties who have acquired title to property under the laws as they existed prior to the passage of this act.
“The mode of contesting a will after probate, or an order of the court refusing to probate the will shall be by civil action in the district court of the county in which the will was admitted to probate or the order of the court refusing to probate was made, which action may be brought at any time within two years after the probate, or the order of the court refusing to probate the will, and not afterwards: Provided, That this act shall not apply to any action or proceeding now pending.” (Laws 1917, ch. 336, §§ 1, 2.)
In the case of Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537, the nature of the proceeding to procure probate of a will, whether in the probate court or on appeal to the district court by the defeated proponent, was discussed. In the opinion it was. said:
“In both courts the procedure is of the most informal and perfunctory character, and when a prima facie case is made upon the several points as to validity of execution, testamentary capacity, and freedom from illegal restraint, the order of admission should be made, leaving for the more formal and regular proceedings provided by section 20 of the wills act (Gen. Stat. 1901, § 7957) the contest of the nicer and more difficult questions, a contest in which issues are duly formed, evidence- properly produced, the machinery found for obtaining a jury should one be ordered. Upon the application to admit to probate, a party interested in having the application denied may not, as a matter of right, demand the examination of his witnesses in opposition. Just to what extent this preliminary examination ought to go it is difficult in any one case to say; it can be said, however, that it is hot a contest; that is left for another proceeding in another forum. In the rough, it is probably sufficient to say that it should go only to the extent that a prima facie case is made in favor of the validity of the will.” (p. 619.)
Soon after the publication of this decision the legislature made somewhat more definite the extent of the inquiry (Laws 1905, ch. 526, § 1), but did not enlarge the issues, or provide for a probate court contest, or abrogate the rule that probate should be allowed on a prima facie showing, whether made in the probate court or in the district court. (Wright v. Young, 75 Kan. 287, 89 Pac. 694.) The situation was thus left in much the same unsatisfactory condition as before. The probate court could not determine a will contest, and the district court on appeal had only the jurisdiction of the probate court. The proponent had no means of establishing the will against a contestant, while a contestant, although twice defeated, still'had the remedy of an action in the district court, commenced at any time within two years after probate. Such being the state of the law, what did the legislature undertake to do by the second section of the statute of 1917 ?
The defendants argue that the sole effect of the statute was to give the proponent, if defeated in the probate court, another way to reach the district court. Formerly he could appeal. Now he can appeal, or commence an independent action; but in either case the object is the same as before, that is, to obtain probate of the will, and the authority of the district court is limited to the same extent as before. The court is unable to accept this interpretation.
The statute provides for two kinds of contest, one by the contestant after probate of the will, and one by the proponent after probate has been refused. The contestant contests the will. The proponent contests the order of the probate court. The contestant contests the will because the probate court has found it was duly executed and the testator was of sound mind and under no restraint. The proponent contests because the probate court has found the will was not duly executed, or the testator was not of sound mind, or the testator was under undue restraint. The district court is not restricted to the exercise of virtually probate jurisdiction invoked by appeal from the probate court. The action is a civil action, and the court possesses all the power of a district court in a civil action. Issues may be duly framed, evidence may be properly produced, the machinery for obtaining a jury, if desired, is available, and all the “nicer and more difficult questions” may be determined in a formal and regular way. There is no reason for two trials, should the proponent bring the action, and but one trial if the contestant should bring the action, and this court concludes the district court correctly interpreted the statute.
The court instructed the jury as follows:
“The jury are instructed that a person is presumed to be of sound mind until the contrary is proven by the evidence, and in this case the burden 'is on the defendant to prove, by a preponderance or greater weight of the evidence, that the deceased, Will Evans, did not, at the time he executed the will in question, understand the nature of what he was doing; and the burden is on the defendant to prove, by a preponderance of the evidence, that said deceased was induced to sign said will by reason of undue influence of others.”
It is said the instruction was erroneous, in that the proponent of the will was not required to make out a prima facie case, and the jury may have been influenced by the instruction. Al though a jury was called, its office was merely advisory. The. ultimate determination of the issues of fact rested with the court. Until a prima facie case was presented, there was no occasion to interrogate the jury, and whether or not a prima facie case had been presented, was a subject for decision by the court. The plaintiff introduced his evidence first. At the close of the evidence, the court evidently was satisfied the plaintiff has sustained the burden resting on him, and submitted the issue of the validity of the will to the jury under the instruction quoted, which was appropriate to that issue.
It is said the findings of fact were not sustained by sufficient. evidence. The evidence was conflicting, the credibility of testimony was involved, and this court is precluded, by well-understood rules, from disturbing the findings.
The judgment of the district court is conclusive with respect to the validity of the will and its admissibility to probate, and it is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment on a policy of life insurance, and the defendant appeals. On March 17, 1919, the defendant, a life insurance company, issued its life insurance policy to J. A. G. Lane, in which his wife, the plaintiff, Rella Lane, was named as beneficiary. The insured died on July 31, 1919; the defendant refused payment on the policy, and this action was commenced.
One of the defendant’s contentions, fatal to the plaintiff’s right to recover, is that “the policy sued on does not provide for any death benefit where the death occurs prior to the end of the first year.” This contention is based on the following language contained in the policy:
“The said company does hereby agree, in the event of the death of the insured, subject to all of the terms, conditions, exceptions, agreements and limitations contained herein, and in the application herefor, to pay to Rella Lane, wife . . . the sum hereinafter stated, designated, and set forth as payable at the end of the various years from the date of this policy for a period of twenty years, as death benefit under Schedule ‘B’ herein, if this policy shall have been kept in full force and effect.”
The policy also provided that:
“At the expiration of any year after the first year, for a period of twenty years from the date of this policy, . . . this company will, . . . on the proper, legal and satisfactory assignment as collateral security for a loan, and delivery by the insured of this policy to the said company, loan the insured, on the last day of any one year after the first year, the sum hereinafter designated as the amount that will be loaned on this policy under the terms and conditions hereof at the end of the various years from the date of this policy, the sum set forth and stated in and under Schedule ‘A’ herein.”
On the back of the policy appeared schedules “A” and “B” which for the first four and the twentieth years were as follows:
, „ Schedule ‘A’ Schedule ‘B’ “At the end of . Cash Loan Death Benefit
1 year................ None $250.00
2 years ............... $126.25 250.00
3 years ............... 193.87 250.00
4 years ............... - 264.50 290.00
20 years............... 1,802.50 1,828.00”
It has been said that “contracts of insurance are to be construed where construction is permissible, most strongly against the insurer and in favor of the insured.” (Insurance Co. v. Milling Co., 69 Kan. 114, syl. ¶ 1, 76 Pac. 423; Fire Association v. Taylor, 76 Kan. 392, 91 Pac. 1070; Bank v. Insurance Co., 91 Kan. 18,137 Pac. 78; Graff v. Insurance Co., 107 Kan. 648, 193 Pac. 356; 25 Cyc. 739.) But if the policy is not ambiguous there is no room for the application of this principle of interpretation. The courts cannot change insurance contracts any more than they can change other contracts. There is no ambiguity in this policy; it specifically and definitely provides that the $250 shall be paid at the end of the first year. There is no language in the policy, providing for the payment of any sum during that year. There is no liability if death should occur within the first year after the policy was issued. This conclusion is supported by the fact that under the policy there was no cash loan value for the first year, and-is further supported by the fact that the investment feature of the policy is very prominent — at the end of the second year, and of each year thereafter more money could be borrowed under the policy than would have been paid in as premiums.
The judgment is reversed, and the trial court is directed to enter judgment for the defendant. | [
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The opinion of the court was delivered by
PORTER, J.:
The appellant was charged on four different counts with forgery in the third degree. He was found guilty on the first count, and appeals.
The appellant was president of the Linn County Bank' and owned more than 150 shares of the stock, his brothers and a sister owning the rest except a few shares held by outside parties. The appellant was born and raised in Linn county and from the age of seventeen had been connected with the bank, filling all the positions from bookkeeper and janitor to president. Besides his interest in the bank, he owned several farms and considerable personal property in Linn county, and a large tract of land in Texas. In the community where he lived he was regarded as a law-abiding citizen.
It is not seriously argued and cannot be contended that the defendant was not guilty as charged in the information. His complaint is that by reason of certain errors he was prevented from having a fair trial. The main contention is that the court erroneously admitted in evidence a written confession of his guilt which he had signed; that the statement was obtained by promises of immunity and other inducements held out to him by E. V. Wood, a deputy bank commissioner who discovered the forgeries.
The first count of the information charged the appellant with forging the name of W. W. Calvin to a note for $5,000 which he carried as one of the assets of the bank. Wood testified that among other notes listed in the individual ledger and which he found in the notebook handed to him by the appellant were three notes purporting to be signed by Calvin, and on being questioned, appellant told him that Calvin had signed them. Wood accepted his word at the time but went further into the examination and found the same situation in respect to other notes. The next morning he told Pollman to call the directors for a meeting at the bank. Pollman said, “Come in the back room a minute, Wood* I want to speak to you.” They went into the bookkeeper’s room and after the door had been closed their conversation in substance was:
“ ‘There is no use going any farther, Wood, you have got it on me on those notes,’ and I said, ‘Do you mean then that you signed all these then yourself,’ and he said, ‘Yes.’ I said, ‘Where did the money go?’ and he swore, and said it went into those farms, and told me he had a lot of property, enumerating a .good share of it, and he wanted a chance to clean it up without his family or the directors finding it out. He asked to he given permission not to call the directors. I said I had no arrangements or any authority to say that he could take up these notes, but I would do this, we could agree between us that he would sign this statement covering the situation and that we would not call the directors that day or until we had time to go to Topeka, and I would go with him and we would lay the whole matter before the bank commissioner, and he said he would like to do that. I asked him, ‘Is this all of the notes,’ and he said, ‘I will go through the case and pick them all out for you, for there are others.’ After he had picked out these notes and said they were the ones he had signed the names to I placed them with the others, and took the typewriter and made the statement which he signed.”
After completing the examination of another bank in that vicinity, the witness met Pollman by previous arrangement at the depot, and they went together to Topeka.
The paper marked, “Voluntary Statement,” signed by the appellant, read as follows:
“I, F. W. Pollman, president of the Linn County Bank, of La Cygne, in the interest of perfect candor, do hereby make the following statement:
“That I have placed in the assetg of the Linn County Bank, and carried the same as genuine notes, the following which I have falsely signed in the names of other individuals, and purporting to be the notes and obligations of these others, as follows: ”
Then followed a list of thirteen notes aggregating over $30,000.
The appellant was a witness and his testimony shows that there is no merit in the contention that any advantage was taken of him in procuring the written confession. He testified in substance:
“I told Mr. Wood that the W. W. Calvin note was his. The next morning I saw him comparing the signatures of those notes with the signatures on the canceled checks. I don’t know what notes and canceled cheeks they were, and afterwards he asked me to call the board in for a meeting, at about 11 o’clock. .1 suppose I was satisfied then that that was the reason he was asking me to call the directors, and when I reached that conclusion I took him in the back room. I said in substance to him: ‘There is no use going any further Mr. Wood, I signed the notes.’ He hadn’t then made me any promises of any kind, and in carrying out this statement -I made and set it out fully on the sheet. I told him that I didn’t know whether all the notes that he had in his hand were all the notes that I had signed. I told him I would look through the note file and see. I looked through the note file and found some additional notes, on which I had written the names. I think they were included with the ones he had already picked out and listed in the statement. I told him what I had done with the money, and I think’I told him I spent it on farming operations and putting out a 600-acre wheat crop and harvesting two crops that I hadn’t been able to harvest. In a way I had taken the money out of the bank for my own private use, and put these notes on which I had signed the name of W. W. Calvin and E. L. Calvin in the bank in the place of the money I had taken out.”
The appellant’s testimony to the effect that before inducements of any character were made to him he took the bank examiner aside and confessed to substantially the same things that are contained in the statement makes it plain that there could have been no prejudice in the admission of the written confession. There was nothing improper in the bank examiner’s agreement to do as he subsequently did, go to Topeka with the appellant and lay the matter before the bank commissioner. He had no authority to promise any immunity and there is no claim that he made such promises.
It is next contended that appellant was entitled to a new trial because of misconduct of the county attorney. The record shows the following: When the state was about to close its testimony the county attorney said: “I would like to have him [meaning appellant! sworn to answer one question.” Appellant’s counsel objected on the ground that it was prejudicial and contrary to law. Thereupon the county attorney withdrew the request. The state then rested and the first witness called for the defense was the appellant, who testified at considerable length. The matter was not of sufficient importance to furnish the basis for a serious claim of error; besides, it was not urged as a ground for the motion asking a new trial, For that reason it cannot be considered. (The State v. Brower, 75 Kan. 823, 88 Pac. 884.)
. The appellant had attempted to show by the makers of some of the forged notes that they were on intimate and friendly terms with him; that he had represented them in business; that he had indorsed checks for them in order to give them credit at the bank for money paid there. The evidence of this character was somewhat prolonged, and the court took occasion to say that the question was whether or not they had given the appellant authority to sign their names to the notes, and that if he had such authority it was a proper matter of inquiry. Counsel for appellant insisted that this authority might be shown indirectly, and the court remarked:
“I am awfully friendly with several bankers but I would be considerably otherwise if they signed my name to a note.”
This is urged as another reason why the state should be put to the expense of another trial. There was no objection to the statement of the court at the time it occurred, and besides, we discover nothing prejudicial in what was said.
Complaint is made of instructions, one of which charged that it was not necessary for the state to establish that the primary purpose of the appellant was to injure or defraud, and that his real object may have been to benefit himself. One of the elements of forgery in the third degree is that the act be performed “with intent to defraud.” The instruction correctly stated the law and was particularly appropriate to the facts in this case because the appellant had introduced evidence to show that his family restored to the bank the money represented by the forged notes. To constitute forgery in the third degree it is sufficient if an obligation, claim, right or interest shall be or purport to be created or in any manner affected.
The appellant was not prejudiced by the failure to produce the original forged instruments. The state had accounted for the failure to produce these by showing that they were turned over by the bank examiner to the appellant, who gave them to his brother, and that his brother took them outside of the state. The contents of the instruments were fully established by evidence ; the fact that they were forgeries was not -only admitted by the appellant but shown by the evidence of the alleged makers.
We discover no ground for the claim that appellant was deprived of any of his rights, or that he did not have a fair trial. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the wife of a captain of the United States army stationed at Fort Riley, to procure a divorce. The court held the plaintiff was not an actual resident of the state, or a resident of the county in which the action was brought (Gen. Stat. 1915, §7572), and refused a decree, although statutory grounds for divorce were proved. The plaintiff appeals.
The material findings of fact follow:
“4. Plaintiff actually dwelt for more than one year prior to the filing of her petition and at the time thereof, at Fort Riley, on the Fort Riley, Kansas, military reservation.
“5. Prior to her marriage, plaintiff was a resident of and domiciled in the state of Texas, and was married to defendant in the sta.te of New York, in 1918. Her husband served in France from that time until March, 1919, during which time plaintiff resided,at her former home. On Ms return, defendant visited plaintiff’s family in Texas until July, when he and plaintiff moved to Fort Riley, on military orders. He never resided in the state of Kansas except the time he was located on said military reservation at Fort Riley; that is, he never resided at any other place in the state of Kansas.
“6. Defendant was born upon a military reservation at Fort Sam Houston,. Texas, at a time when Ms father was an officer in the United States army, and claimed no other residence. Defendant’s-entire life has been spent upon military reservations, except for short visits to relatives not living on such, and he now holds the rank of a captain in the United States army, and claims no other residence or domicile than at Fort Riley, Kansas, at which place he has for more than a year prior to the filing of the petition herein, maintained a home for himself and plaintiff in quarters furnished by the government. It was the' intention of the parties to make Fort Riley their home so long as defendant’s duties gave him employment at Fort Riley.
“7. Fort Riley is on that part of the reservation which, prior to the cession by the legislature of the state of Kansas of the jurisdiction of said reservation to the Federal government, was situated in Geary county, Kansas.”
For many legal purposes there is a clear distinction between residence and domicile. A person may hold an office, or may have business or employment or other affair which requires him to reside at a particular place. His intention is to remain there while the office or business or employment or other concern continues; but he has no purpose to remain beyond the time the interest exists which determines his place of abode. Domicile is characterized by the animus manendi. The legislature has defined residence as the place adopted as one’s habitation, and to which, whenever absent, he intends to return. (Gen. Stat. 1915, § 10973, subdiv. 23.) Because the marital relation is one of profound interest to the state, and because the marital status virtually constitutes a res for purposes of jurisdiction over divorce, the legislature intensified the character of residence necessary to maintain an action for divorce by use of the term “actual.” The purpose evidently was to indicate that permanency which the word “domicile” denotes, and the court has already held that the divorce statute contemplates domicile of the plaintiff in the state for a year preceding the filing of the petition, and domicile in the county in which the petition is filed. (Carpenter v. Carpenter, 30 Kan. 712, 717, 2 Pac. 122.)
The findings of fact were stated with care and 'discrimination, and the element essential to domicile was not included. The plaintiff’s husband went to Fort Riley, not of his own choice, but in obedience to military orders. The plaintiff accompanied her husband, and makes no claim of domicile apart from that of her husband. So far as the findings disclose, neither one has any intention of abiding at Fort Riley beyond the- assignment of the defendant to that post. There is nothing whatever to indicate permanence of the assignment. Whenever military need for the defendant to be at Fort Riley terminates, he will obey the order assigning him to another station, and it is not possible to affirm that Fort Riley is the true, fixed, permanent home of the plaintiff.
In view of the foregoing, it is not necessary to discuss the subject of the jurisdiction of the state of Kansas over the Fort Riley military reservation, and the question whether or not an officer of the army of the United States may establish a domicle on such a reservation, is not decided. It is sufficient that in this case the residence of the plaintiff on the Fort Riley military reservation is temporary, and not domiciliary.
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The opinion of the court was delivered by
West, J.:
This suit was brought by Charles N. Cole to set aside the will of his father, John N. Cole, on the ground of mental incapacity. The testator died August 24, 1918, at the age of seventy-six years. He had lived on his farm near Fort Scott for many years and was well known in the neighborhood and had many acquaintances in town. His wife died in July, 1916, and in February of the following year he had a stroke of paralysis, rendering useless his left leg and arm, and affecting one side of his face. Thereafter he was for a time at his son’s home, and then for a while in the Soldier’s Home at Leavenworth, and upon returning to his farm was cared for by a Mr. Bollinger and wife who were employed for that purpose. The son had remained at home until thirty-three years old, when he married and moved to his farm of 160 acres about two miles from the 680-acre farm of his father. His wife and his father did not get along well, and the latter believed she did not like him and might influence his son against him.
The will was made June 21, 1918, and was duly probated. This suit was begun November 16, 1918. A jury were called in and to them was submitted the question of the testator’s mental capacity. Twenty-seven witnesses testified for the plaintiff and thirty-five for' the defense. The case was skillfully tried. The jury answered that the testator did not have testamentary capacity. The court set this aside and made thirty findings of fact, and as matters of law concluded that when the will was made John N. Cole possessed the requisite testamentary capacity, and that the will is valid. The plaintiff’ moved to set aside all these findings, and for a new trial, both of which motions were overruled. The plaintiff appeals and. complains that the court erred in admitting and excluding evidence, in not submitting the case generally to the jury, and in denying a new trial.
A witness for the defendant was asked on cross-examination if he was not arrested on a certain day in an action in a justice court, for assaulting his wife, and pleaded guilty, and he answered “No,” and thereupon the plaintiff offered in evidence a certified copy of the journal entry of such conviction, to which an objection was sustained. To the complaint that this was erroneously excluded, counsel reply that had the certified copy been properly authenticated it should have been offered, if at all, as a part of the plaintiff’s case and not as part of the cross-examination, and that it was not presented upon a motion for a new trial as required by section 307 of the civil code. Following Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268, and Bank v. Seaunier, 104 Kan. 7, 178 Pac. 239, it is held that the certified copy was not necessary to be reproduced on the motion for new trial as the court had already had an opportunity to examine it. That the copy could not be introduced as a part of the cross-examination is indicated by Williams v. Miller, 6 Kan. App. 626, 49 Pac. 703.
“The proper foundation for impeachment of a witness by a written instrument having been laid, the proper time to offer the paper as impeaching evidence is when the time of the party seeking to impeach the witness to introduce his evidence arrives, and the paper cannot ordinarily be introduced in evidence as part of the cross-examination.” (40 Cyc. 2746.)
The court might within its discretion have permitted its introduction at this time. (Chicago City R. Co. v. Matthieson, 113 Ill. App. 246.) Still it was not error to sustain the objection, for the plaintiff still had a right to offer the paper in evidence, if otherwise proper, as a part of his case in rebuttal.
Another witness was asked whether at a certain time the testator could talk connectedly. This was objected to as incompetent, irrelevant, immaterial, leading and suggestive, and the objection was sustained. On motion for new trial the affidavit of this witness was introduced to the effect that if he had been permitted to testify he would have said the testator could not talk connectedly. A similar question covered by similar affidavit by another witness was objected to and the objection sustained. Still another witness, a doctor, was asked whether a request to be given- ah overdose of morphine and the fact that he tried to take or talked of taking his life, would indicate anything concerning the mental condition of the testator. Objections to these questions were sustained, and the doctor’s affidavit on motion for rehearing was to the effect that he-would have testified that such talk indicated insanity and was one of the leading indications thereof.
One of the other witnesses referred to had already testified that he did not think the testator talked connectedly, and immediately thereafter he was asked whether or not he did talk connectedly-and whether he jumped from one subject to another, or whether he showed he could talk connectedly or not. These questions were objected to as leading and calling for the opinion of the witness, and were ruled out, He was then asked if from various talks and from his appearance and what he said he considered him of sound mind, and his answer was: “My opinion is that Mr. Cole was insane.” Having, therefore, accomplished the purpose sought by showing the conclusion of the witness, the exclusion of certain things leading up to such conclusion was not material error.- The same thing is true of the other witness referred to, and as to the doctor, it may be observed that he was permitted to testify he thought the testator was of unsound mind, and that he came to this conclusion from an examination he made of him, his observations and conversations had with him. It seems hardly necessary to suggest that, in view of this testimony, the mere fact that he was not permitted to state his view of the testator’s tendency to suicide cannot have worked any substantial prejudice.
' It is next contended that error was committed in permitting the attorney who drew the will to state whether or not, in his opinion, the testator had sufficient capacity at the time to make a valid will. Gordon v. Gordon, 92 Kan. 730, 142 Pac. 242, is cited in support of this complaint. This witness testified that he had been probate judge and had had experience in the trial of cases of insanity, was an old soldier and well acquainted with the testator and knew him forty-four years and was sent for to make his will, and he told what had occurred at that time. What was said in Gordon v. Gordon, may well be repeated :
“The questions were objected to because they embrace the ultimate fact in issue. It must be remembered that these witnesses testified to the incidents, circumstances, conduct and appearances, upon which their opinions were based, and that there was ample competent evidence to support the finding without this testimony of these particular witnesses.” (p. 731.)
Following the words just quoted, the court further said:
“Conceding that the questions were objectionable, the error was harmless ... It will be presumed that the finding was made upon competent evidence and that the court was not influenced by the opinions of witnesses in fixing the standard of testamentary capacity.” (p. 731.)
Counsel were correct in their suggestion that the ultimate fact of mental capacity is for the jury and not for the witnesses. (Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30; Brown v. Brown, 96 Kan. 510, 152 Pac. 646, and Hessen v. Sapp, 98 Kan. 737, 160 Pac. 220.) In the last case it was said:
“The statements of the nonexpert witnesses that they regarded Culbertson as incapable of transacting important business seems unlikely to have influenced the jury’s conception of what impairment of his faculties was necessary to render the deed inoperative. Moreover the jury were acting only in an advisory capacity. The decision finally reached was that of the judge, and there is no likelihood that he was in any way misled by the form in which any of the evidence referred to was presented.” (p. 739.)
Here, also, the jury had acted in an advisory capacity, but their advice had been rejected by the court, and the findings of fact and conclusions of law were arrived at from its own consideration of the voluminous evidence. It is a familiar and well-settled rule that in a case tried by the court it is to be presumed that only competent and proper testimony influenced the decision.
The argument is made that the plaintiff was entitled to a jury as a matter of right, and counsel cite the statute prescribing the mode of contesting a will to be a civil action in the district court. (Laws 1917, ch. 336, § 2.) Section 5 of the bill of rights has been held to cover only matters triable by jury at common law. (Kimball and others v. Connor, Starks and others, 3 Kan. 414.) The legislature has provided that issues of fact in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived. (Gen. Stat. 1915, § 7179.) Various other issues h^ive been held triable without a jury. (McCardell v. McNay, 17 Kan. 433; Houston v. Comm’rs of Cloud Co., 19 Kan. 396; Sword v. Allen, 25 Kan. 67; Morgan v. Field, 35 Kan. 162, 10 Pac. 448; Culp v. Mulvane, 66 Kan. 143, 71 Pac. 273; Hockett, v. Earl, 89 Kan. 733, 133 Pac. 852; Akins v. Holmes, 89 Kan. 812, 133 Pac. 849; Houston v. Goemann, 99 Kan. 438, 162 Pac. 985, 176 Pac. 147; Postlethwaite v. Edson, 106 Kan. 354, 187 Pac. 688; Lockmann v. Caruthers, 108 Kan. 81, 193 Pac. 890.)
In Rich v. Bowker, 25 Kan. 7, it was held that in an action to contest a will the parties are not as a matter of right entitled to a jury. Horton, C. J., said the action did not come within any of the terms of the statute; that it was a statutory proceeding and in such actions the legislature is fully competent to dispense with the jury. In Lewis v. Snyder, 72 Kan. 671, 83 Pac. 621, the jury found the testator of sound mind, but the court considered the testimony and later found “without regard to the verdict and answer of the jury” that he was of sound mind, and it was held in this situation the instructions given the jury became immaterial.
Counsel refer to a statement in the opinion in Wright v. Young, 75 Kan. 287, 291, 89 Pac. 694, that in an action to contest a will either party may demand a jury. The subject there under discussion was the probate of a will, the matter having been appealed to the district court. It was said that the single question presented Was whether the district court erred in holding that the statute (Laws 1905, ch. 526) did not enlarge the issues upon an application for the probate of a will. The question on appeal was simply whether or not the will should be admitted to probate. It was in regard to the contest of a will, and not its probate, that the words referred to were used, and later in the opinipn the court adverted to the probability that “either party will desire submitted'to a jury” the matters involved. (p. 294.) The'sentence relied on, therefore, should be considered a mere inadvertence. Within the decisions from the 3d Kansas to the 98th Kansas neither party had any right, constitutional or otherwise, to a jury in this case,
The testimony, as usual in such cases, was conflicting. Two large groups of witnesses told of the life, looks, actions and talk of John N. Cole, and gave their opinions as to his soundness of mind. The court heard them all and was satisfied that the testator knew what he was doing and why, when he made the will. The record abundantly bears out the conclusions reached. It is not necessary to recite the stories told by various neighbors and acquaintances further than as they appear in the findings of the court hereinafter set forth.
The will was in the following words and figures:
“last will and testament.
“I, John N. Cole, of Bourbon County, Kansas, being of sound mind and memory, do make, publish and declare this to be my last will and testament.
“1. I do make, constitute and appoint my good friend, Henry Drum, of Bourbon County, Kansas, executor of this my last will and testament.
“2. I direct that immediately after my death the Konantz Undertaking Company, of Fort Scott, Kansas, be placed in charge of my remains with full power and instruction to provide a proper funeral for my body, and I direct said undertaking company to bury me in a casket similar to the one used for the burial of my beloved wife, now deceased, and I direct my executor to provide a tombstone for my grave similar to the one which marks the resting place of my wife.
“3. I give and bequeath to my beloved sister, Sarah Reed, the sum of five hundred dollars to be paid to her by my executor in annual installments of fifty dollars each, commencing three months after my death; and should my said sister depart this life at any time within said ten years’ period, the balance of said five hundred dollars then unpaid, but not in excess of one hundred dollars, shall be used by my executor in payment on the funeral expenses of my said sister; and should the balance of said five hundred dollars bequeathed unpaid at the time of her death exceed one hundred dollars then the excess over the one hundred dollars to be used for her funeral expenses shall go back and become a part of my general estate.
“4. I give, and bequeath unto the Maple Grove Cemetery Association of Bourbon County, Kansas, the sum of five hundred dollars to be paid to it by my executor upon condition that the members of the association shall subscribe and contribute a like amount of five hundred dollars to be used by the board of trustees in maintenance and beautifying the cerne tery grounds and in case the members of the association fail to subscribe and contribute the sum of five hundred dollars to equal my bequest, then the bequest shall become inoperative and shall go back and become a part of my general estate.
“5. I give and devise unto my beloved son, Charles N. Cole, all of my real estate wherever situated, of which I may be seized or possessed, to have and to hold during his natural life; and at the death of his wife, Bertha Cole, leaving the said Charles N. Cole, surviving her, to be his in fee simple absolute; but, with remainder over at the death of the Charles N. Cole, leaving Bertha Cole, his wife, surviving him, unto the Della G. Strong Home and Hospital of Port Scott, Kansas, The Holiness Industrial Children’s Home of Fort Scott, Kansas, and the Goodlander Home, of Fort Scott, Kansas, in equal parts, or to such of said institutions as may at the time of the death of the said Charles N. Cole be in existence and capable of receiving this devise; and should all of said institutions be out of existence at the time of vesting, or incapable of receiving this devise, then remaining over in fee simple at the time of the death of my son, Charles' N. Cole, leaving Bertha Cole surviving him, unto Henry Drum and George Alford as trustees for the use and benefit of such charitable institutions or institutions of the city of Fort Scott, Kansas, as may seem to the trustees deserving; with full power in said trustees to sell said land after the death of the said Charles N. Cole, leaving Bertha Cole surviving- him, and to use the proceeds of said sale in the assistance of such charitable institutions as above described at such times and in such ways as may seem most practicable with full power in said trustees to invest the proceeds of the sale of said lands until such time as they may deem-the principal necessary for the use of the institutions which they may select as the object of my bounty.
“In case there is no charitable institutions in existence .in Fort Scott competent in law to receive the benefit of this will at such time as the property may vest at the death of Charles N. Cole under the contingency mentioned then I direct the trustees under this will to use this fund's for the benefit of needy and helpless children and aged persons in Bourbon county and that said trustees report proceedings to the district court of said county annually and as often as ordered by said court.
.“6. I give and bequeath to Bertha Cole, wife of my beloved son Charles N. Cole, the sum of one dollar.
“7. I give and bequeath to my beloved son, Charles N. Cole all my personal property of every kind to be his absolutely, after the payment of the specific bequests hereinbefore enumerated.
“In witness whereof, I have hereunto set my hand this 21st day of June,-1918. John N. Cole.”
The principal findings of fact made by the court were the following:
“1. That John N. Cole was born in West Virginia in 1842, was a soldier in the Civil War, and came to Bourbon County, Kansas soon after the close of the war; that he married in Bourbon County, Kansas, and spent the remainder of his life in that county, and died on August 24th, 1918.
“2. That John N. Cole was a farmer and stockman and in this occupation had acquired, and owned, at the time of his death, 680 acres of land, less railroad right of way, and in addition thereto, had acquired and given to his son, Charles N. Cole, who is the plaintiff in this action, 160 acres of land and some personal property.
“3. That the plaintiff, Charles N. Cole, at the time of the trial, was 44 years old and he lived with his father, John N. Cole, for 33 years, at which time he married the defendant, Bertha Cole, and had been married to said Bertha Cole for about eleven years at the time of the making of the will in controversy, and that no children have ever been born to Charles N. Cole and Bertha Cole.
“4. That the wife of John N. Cole died on about July 6, 1916, and that John N. Cole, a short time after the death and burial of his wife, stated to at least two persons, that Bertha Cole had sneered at Charles N. Cole when he displayed some grief at the death of his mother.
“5. That on about February 22, 1917, John N. Cole suffered a stroke of paralysis while in West Virginia on a visit, resulting in paralysis of the left arm and left leg and affecting the right eye and right half of the face.
“6. That from on about February 22, 1917, until the death of John N. Cole, he continued to suffer the effects of the stroke of paralysis.
“13. That during the period from the 9th of November, 1915, until about February 28, 1916, Rachel Cole, the wife of John N. Cole, was so ill that a nurse was in attendance upon her and during that period, Bertha Cole, came only upon one occasion to see her mother-in-law, Rachel Cole, although Bertha Cole was at the time living only about a half a mile from the house of the said John N. Cole.
“14. That on account of the conduct of Bertha Cole exhibited toward his wife and himself, John N. Cole, had formed, before the stroke of paralysis, a dislike for Bertha Cole and before and after the stroke of paralysis, frequently had expressed his intention to bar her by will from any expectancy in his property.
“15. That the stroke of paralysis which John N. Cole suffered on or about February 22, 1917, affected his motor centers and affected the nerve which controlled the movements of his left arm and left leg and affected the appearance of his eyes and affected his speech, so that he did not talk as plainly as he did before he was paralyzed, and that after said stroke of paralysis, John N. Cole was unable' to move about without assistance and would cry frequently, while conversing with friends and acquaintances.
“16. That after the return of John N. Cole from the Soldiers Home at Leavenworth, Kansas, the said John N. Cole dictated numerous letters to Bertha N. Bollinger, which she wrote at his dictation, to friends and kinfolks, and some of which were introduced in evidence at the trial of the case; and that thereafter and up to within ten days or two weeks of the time of his death, the said John N. Cole, himself, wrote in his own hand, numerous letters and communications to various friends and kinfolks, many of which were introduced in evidence, and all of which are rational and connected in thought and expression.
“17. That on June 18, 1918, three days prior to the making of the will in controversy, the said John N. Cole wrote a letter to the daughter of the man who raised him back in West Virginia, which letter was produced in evidence, and which is a letter entirely rational and connected in its expression.
“18. That in the evenings from about May 15, 1917, until within ten days or two weeks of the time of the death of John N. Cole on or about August 24, 1918, Bertha N. Bollinger spent the evenings in the company of John N. Cole and read to him books, upon the contents of which, the said John N. Cole commented as the reading continued; and that the said John N. Cole listened to the playing of a graphaphone and particularly expressed satisfaction with one selection, ‘Beautiful Isle of Somewhere,’ which he requested be sung at his funeral.
“19. The court finds that on the 14th day of May, 1917, said John N. Cole signed a will prepared by Mr. A. M. Keene, an attorney of Fort Scott, Kansas, leaving all of his property to his son, Charles N. Cole, with the exception of a bequest of $250.00 to his sister, Sarah Heed of Reedsville, West Virginia, but that in September,.1917, said John N. Cole destroyed said will by cutting his name off of said will.
“20. That at the August primary election in 1918, prior to the death of John N. Cole, he went to the polls, chose a Republican ballot, which had been his politics, and had the judges mark his ballot for him; and that he told the judges the names of the various candidates for whom he wished to vote without any suggestion from them in reference thereto.
“21. That up to within ten days or two weeks prior to the death of John N. Cole he read the newspapers, the Fort Scott Tribune, the Kansas City Journal, and sometimes the Kansas City Post; and that he followed the market reports and the progress of the world war, and discussed intelligently with those around him, the matters which he had read in the papers and other matters which arose.
“22. That on June 13, 1918, John N. Cole wrote in his own handwriting a letter and addressed the envelope to Ben Hudson, the familiar name by which B. Hudson, a practicing lawyer of Fort Scott, Kansas, is known, a copy of which is here set out:
‘Mr. B. Hudson, ’ ‘Fort Scott, Kans., June 13.
‘Dear Sir : I am about wind up & I want some one to help me give the last turn, that is I want to write a will, that is where I want the help. Can you come out & help me, if you can come send me a card & say what day you can come. Yours truly, J. N. Cole.’
“23. That on or about June 17 or 18, 1918, B. Hudson with his son, Douglas Hudson, in response to said letter, went to the farm of John N. Cole, and B. Hudson, who had been a friend and acquaintance of the testator for many years, having been thrown together in the G. A. R. Post at Fort Scott in the years gone by, at said time received instruc-tions from John N. Cole as to how he wished his will to be drawn; that the will as finally signed by John N. Cole on June 21, 1918, was in ac- cor dance with the wishes and desires expressed by John N. Cole on or about June 17th or 18th, 1918; and that the said B. Hudson made practically no suggestion to the said John N. Cole with reference to the manner in which said will should be drawn.
“24. That the will in controversy was drawn at the office of Hudson & Hudson, attorneys in Fort Scott, Kansas, on or about June 18th or 19th, 1918, by Douglas Hudson and B. Hudson, with the exception of the names of Sarah Reed, a sister of John N. Cole, who was remembered in the will, Bertha Cole, the daughter-in-law, and Henry Drum and George H. Alford, trustees, the names of which four persons were inserted in the will by Douglas Hudson prior to its signing by John N. Cole on June 21, 1918, at the instruction of John N. Cole and in the presence of the four witnesses to the will.
“25. That on the afternoon of June 21, 1918, George H. Alford, Fred Roy Alford, B. Hudson and Douglas Hudson went to the home of John N. Cole and after the names had been inserted as called and expressed by John N. Cole, the will was read over to John N. Cole by B. Hudson in the presence of the five persons whose signatures appear upon the will, and he assented and expressed himself that such instrument was his will, and signed his name thereto upon the margin of the first page thereof and subscribed his name to the will upon the second and final page thereof; and all of said four persons above named, then signed as witnesses to the execution and signing of said will; and that each of said witnesses and said testator signed the same in the presence of each other.
“26. That it had been suggested by John N. Cole upon the .previous visit of B. Hudson that the daughter-in-law, Bertha Cole, would try to break the will and prove that he was crazy, and that the said John N. Cole on that day and on the 21st day of June, 1918, the day the said will was signed, named seven witnesses, including two doctors, Drs. Payne and Thomas, by whom his sanity could be proved in case of contest.
“27. That the said B. Hudson, Douglas Hudson, George H. Alford and Fred Roy Alford remained with the testator for about forty-five minutes at the time of the signing of said will, and that his conversation at said time was rational and connected, and part of the same was preserved in shorthand by Douglas Hudson and read at the trial of this case.
“28. The court finds that on the 29th day of August, 1918, said alleged will was presented to the Probate Court of Bourbon County, Kansas, for probate, and that on about the 31st day of August, 1918, it was admitted to probate by the Probate Court of Bourbon County, Kansas.
“29. That the jury called in this action to act in an advisory way, found that John N. Cole was not of sound mind and memory on the 21st day of June, 1918, the date of the execution of said will, but the answer returned by the jury to the question propounded to it, is unsatisfactory to the court and does not meet with its approval. It is the court’s opinion that the finding of the jury is against the weight of the evidence and’ should be set aside. Therefore, the court does not adopt the advice given by the jury but makes its own findings from the evidence.
“30. That on June 17th or 18th, 1918, when the terms of the will in question were dictated by John N. Cole to B. Hudson, attorney, and on the 21st day of June, 1918, at the time of the execution of the said will, John N. Cole, although suffering physically from paralysis or hemiplegia, had full knowledge of the' act that he was engaged in and of the property that he possessed and an intelligent understanding of the disposition he desired to make of it and the persons he desired should receive his property and the capacity to recollect and apprehend the nature of the claims of those who were excluded from participating in his bounty and that at the time said will was dictated, made and signed, the said John N. Cole was of ‘sound mind and memory’ and possessed testamentary capacity and was capable of making a valid disposition by will, of his property.”
The rule is well established in this state that one who is able to understand what property he has, and how he wants it to go at his death, is competent to make a will even though he may be feeble in mind and decrepit in body. -The value of property consists largely in the right to dispose of it as the owner desires, and this power of disposal, either by deed or by will, is not to be interfered with so long as the mental capacity indicated remains. This rule is found clearly set forth in numerous decisions of ours, three of which may be referred to as recent expressions: Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30; Wisner v. Chandler, 95 Kan. 36, 66, 147 Pac. 849, and Nordman v. Nordmark, 100 Kan. 522, 164 Pac. 1062.
The record brings this case fully within this rule and the decree is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is another chapter of the litigation in Barton county over the proposed construction of good roads. When this case was here before (Hines v. Barton County, 106 Kan. 682, 68.7, 189 Pac. 369), it was held that where a benefit road district is sought to be created by a petition of the requisite number of qualified landowners, praying the board of county commissioners to construct an improved, hard-surfaced road if such can be done at a cost not exceeding $30,000 per mile, the county board cannot disregard this limitation touching the maximum cost of the proposed road incorporated" in the petition, and that such petition conferred no authority upon the board to construct a road costing more than $30,000 per mile.
The proposed road was to be constructed from the east line of Barton county to the city of Great Bend, a distance of some fourteen miles. The city of Ellinwood is situated on this proposed road, about nine miles east of Great Bend. While the petition prayed for the construction of the fourteen miles of improved road, and contemplated but one benefit road district pertaining thereto, the county board, after making the proper findings, resolved that the road should be constructed in two parts, section D, which was the five miles east of Ellinwood, and section C,. the nine miles between Ellinwood and Great Bend, characterizing both sections as Federal Project No. 3.
When this cause was remanded with instructions to overrule defendant’s demurrer to the plaintiffs’ petition for an injunction, permission was given for the defendant board to answer. Such answer was filed, but this pleading contained so many admissions that the issue between the parties continued to be largely one of law rather than of disputed facts. In the meantime, however, the status of this road-building project had been changed by the action of some of the qualified taxpayers residing east of Ellinwood who were determined to have an improved road regardless of its cost. These people accordingly presented to the county board a new petition praying for the construction of an improved highway from the east line of Barton county to Ellinwood, and after the requisite formalities were complied with, the construction of this road was begun, and may ere now be completed. This road, of course, is founded on this latter petition, and the benefit road district pertaining thereto is carved out of the proposed benefit road district which has been the subject of this lawsuit.
These facts were set up by plaintiffs in a supplementary petition, and by certain admissions and eliminations the cause was submitted to the trial court on the pleadings and agreed facts. So much of the proposed road as was defined by the county board as section D of Federal Project No. 3, being the five miles of road east of Ellinwood, and the territory tributary thereto which has now been erected into a new and separate benefit road district, is eliminated from this lawsuit; and now the principal question is whether the remainder of the original proposed road, section C, being the nine miles between Ellinwood and Great Bend, can still be constructed under the original petition, if and when the time shall come that it can be constructed for a sum not exceeding $30,000 per mile.
The trial court held otherwise and granted a perpetual injunction against its construction under the original petition and proceedings of the county board pursuant thereto.
The original petition was designed to create a benefit road district covering lands and property lying between the east line of Barton county and the city of Great Bend. The fact that for convenience in letting of contracts, or otherwise to facilitate the work of construction, the county board determined to construct the road in two sections, C and D, did not have the effect of creating two separate benefit road districts. It still remained one district. Nor does the fact that the later erection of a new benefit road district out of the original proposed district will not result' in increasing or lessening the burden on the taxpayers owning lands west of Ellinwood, in section C, relieve the still threatened construction of the latter section from illegality. The erection of the new benefit district which was carved out of the original proposed district, and on which the road east of Ellinwood is now being con structed, necessarily rendered nugatory the creation of the original benefit road district which was to extend from the county line to Great Bend. The effect' of these later proceedings was tantamount to an abandonment of the earlier proceedings, and any further attempt on the part of the county board to build the proposed road between Ellinwood and Great Bend, without a new initiative on the part of the qualified taxpayers concerned cannot be undertaken.
It is.contended, however, that the injunctive relief sought by plaintiffs was invoked too late. Chapter 246 of the Session Laws of 1919, sections 1 and 4, among other matters provides that no action can be commenced after thirty days to restrain the construction of an improved road, or the payment therefor, or the levy of taxes or assessments or the issuance of bonds, on the ground of any illegality in the petition or any proceedings ordered pursuant thereto whether the proposed road is to be constructed by contract or by day labor. The point in this case, however, lies deeper than this. Here there is no legal foundation for the action of the county board. There must be some semblance or color of regularity in the proceedings to confer jurisdiction on the county board to act in the first place. The board cannot simply let a contract on its own initiative to build an improved road or hire men and teams and set them to work on the road and thereby incur a binding liability on the taxpayers unless the latter are constantly on the qui vive to challenge such unauthorized conduct within thirty days. Since the original petition to build the fourteen miles of road was abandoned, and the proposed benefit road district was demolished by the carving of a new benefit road district out of part of its territory, the county board has no petition of any sort before it upon which to act. It therefore had no jurisdiction to consider and determine the utility, the feasibility, or any other matter pertaining to the construction of an improved highway between Ellinwood and Great Bend, and the thirty days’ limitation in which to commence an action to question the legality of any proceedings for road improvement under the good-roads acts of 1917 and 1919 has no application.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is the second time that this case has been in this court. (Larimore v. Parker, 101 Kan. 729, 168 Pac. 859.) When the action was here before, the trial court was directed to permit an amendment of a sheriff’s return on an order of attachment, to show the value and description of the property attached. After the cause was returned to the district court, that amendment was made by the sheriff who executed the writ, but whose term of office had. expired at the time the amendment was made. The defendant then filed a motion to suppress and to strike from the record and files the order of attachment and the return thereon for a number of reasons, the basis for all which was that there had been no levy or return of the order. In the former opinion it was stated that “the sheriff was about to seize some personal property, but refrained from doing so on account of the giving «of a bond signed by Ernest Pettit and C. H. Richardson.” (p. 729.) That bond was set out in 101 Kan. 731, and provided that the “property, or its appraised value in money shall be forthcoming to- answer the judgment of said court in said action.”
Nellie Parker by leave of court filed an interplea in which she claimed to be the owner of the property and to have been in the possession thereof at the time the attachment was levied and the bond given. Judgment was rendered in favor of the plaintiff, and against the defendant and the interpleader who appeal.
The first question argued by the appellants is that “the-court erred in permitting or ordering the ex-sheriff to attach an amendment to his return.” Amendments of officers’ returns on writs have been frequently permitted.- In Kirkwood v. Reedy, 10 Kan. 453, the court said:
“Where a defendant has been regularly served by summons, and there is a defect in the return of the officer respecting the service, the defect may, at any time, even long after judgment, in furtherance of justice, be cured by amendment, so as to make the return conform to the facts.” (Syl. See, also, Bank v. Sewing Society, 28 Kan. 423; Wilkins v. Tourtellott, 28 Kan. 825, 834; Manufacturing Co. v. Boyle, 46 Kan. 202, 205, 26 Pac. 408; Lipscomb v. Bank, 66 Kan. 243, 245, 71 Pac. 583.)
These cases do not show that the term of the officer who made the amendments had expired at the time they were made. In Alford v. Hoag, 8 Kan. App. 141, 54 Pac. 1105, it was held that a sheriff could amend his return to a summons after his term of office had expired; and in Rapp v. Kyle, 26 Kan. 89, this court said:
“Where amendment of a sheriff’s return is proper, it is not error to permit the amendment to be made by the officer who actually served the process, and this notwithstanding he was only a deputy, and no longer in office.” (Syl. ¶ 1. Sge, also, 6 C. J. 258.)
What appears to be the principal complaint of the appellants is that the property belonged to the interpleader, not to the defendant, and therefore was not subject to attachment or sale for the payment of the debts of the defendant. On this question of ownership affidavits and oral evidence were introduced. Different conclusions might reasonably have been drawn from the affidavits submitted. The oral evidence has not been abstracted and is not before the court. The reason given for not abstracting that evidence is that the stenographer’s notes have been lost, and the evidence has not been transcribed. The statute provides that under such circum stances the trial court may “by order, provide foj a statement of the evidence and proceedings in the case to be made and filed in such manner as such court or judge may direct; and such statement when made, approved and signed by such judge, shall become a part of the record of the case.” (Civ. Code, § 582.) That was not done. For two reasons, first, that the evidence submitted by affidavit was conflicting, and second, that the oral evidence has not been preserved nor abstracted, this court cannot say that the trial court reached an erroneous conclusion as to the ownership of the property.
The judgment ordered that—
“The defendant and his bondsmen on the redelivery bond in attachment heretofore given to the sheriff and filed in this court providing for a redelivery of the property attached or its value, to the sheriff, within ten days from the rendition of this judgment deliver to the sheriff of this county for sale the attached property for which the undertaking was given, or pay such sum of money as may be due upon the undertaking not in excess of four hundred thirty-seven [dollars] and fifty cents ($437.50) or as much thereof as may be necessary to answer the judgment of the plaintiff heretofore rendered with interest and the costs of this action.”
The appellants say that it was error to render judgment against the bondsmen for the reason that they did not have any notice of the rendition of any judgment against them. If the judgment is void as to them, they can have it set aside on motion; if it is not void but erroneous, it must stand unless they appeal from it. That they have- not done. The appellants cannot appeal for the bondsmen nor complain of error in rendering judgment against them. (Craft v. Bent, 8 Kan. 328; DaLee v. Blackburn, 11 Kan. 190; Payne v. National Bank, 16 Kan. 147, 148.)
Another matter is presented but not urged, and that is that the court should have stricken certain property out of the amended return. The appellants say that the court practically eliminated all the items of which complaint is made and that perhaps “not so much injury was done.” The court eliminated all exempt property and included all other property named in the sheriff’s amended return, all of which was held by the defendant and sold by him on the day the attachment was levied.
No error has been made to .appear for which the judgment shnnld be reversed, and it is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
E. D. Russell was the contractor for the construction of a high-school building in the city of Neodesha. The Chicago Bonding & Insurance Company was surety on a bond given by him to the state of Kansas which contained the following condition:
“Now, therefore, if the said E. D. Russell shall promptly pay all indebtedness for labor or material furnished in the prosecution of said work; and shall pay all claims which might be the basis of liens, then the above obligation to be void, otherwise to be of full force and effect.”
The Neodesha National Bank brought this action against the surety on the bond to recover $3,279.19, the face of three notes given by Russell to the bank and eight per cent interest thereon, making the aggregate amount of the bank’s claim $3,440. The bank appeals from an order sustaining a demurrer to its petition.
The petition set out copies of three notes, one for $1,500, one for $1,200, one for $579.19, given to the bank by the contractor between June and September, 1919, each note bearing the following endorsement:
“This note was given to the Neodesha Natl. Bank for money advanced to pay for labor and material for the Neodesha high school now under construction. E. D. Russell.”
The petition alleged that the bank furnished Russell these sums “to be used in the payment of persons who furnished labor and material,” that the money “was so used and paid for labor and material in the construction of said building,” and that the bank by reason of these facts is entitled to be subrogated to all the rights and benefits of any persons whose claims have been the basis for liens which were satisfied or paid by the money so advanced.
Except for the memorandum that the money was to be used for the purpose of satisfying claims for labor and material used in the construction of the school building, the notes were on the ordinary form usually taken by banks in making loans to cus tomers. The bank was a mere volunteer. It was under no obligation to become-involved in the matter of the erection of the school building, except the usual desire of a bank to make profit by loaning its money on interest. In the opinion in the case of Deposit Co. v. City of Stafford, 93 Kan. 539, 144 Pac. 852, the authorities on this question were reviewed at length, and the court approved the doctrine of the case of Prairie State Bank v. United States, 164 U. S. 227, where it was held that the rights of the surety related back to the date of the original contract, and that the contractors could not transfer to a bank any greater right in the funds than they themselves possessed, which rights were subordinate to those of the owner and the sureties. The supreme court of the United States said in that case:
“The bank on the contrary, was a mere volunteer, who lent money to Sundberg on the faith of a presumed agreement and of supposed rights acquired thereunder.” (p. 232.)
Another case cited with approval in the Stafford case is First Nat. Bank v. City Trust, Safe Deposit & Surety Co., 114 Fed. 529, 52 C. C. A. 313, where it was held that a surety who completes the work after its abandonment by the principal is subrogated, so far as necessary to protect him from loss, to all rights which.the owner of the building might have enforced against the contractor had he completed the work himself. In the case last cited the bank, prior to the abandonment of the contract by the contractor, loaned him money, taking an assignment from him of all sums to become due from the city during certain months, of which assignment the city had notice. It was held, however, that the rights of the surety were superior in law and equity to those of the bank, which took no rights superior to those of the contractor as against the owner of the building or the surety.
In Deposit Co. v. City of Stafford, supra, the facts were that before the abandonment of the contract by the contractor the latter arranged .with the bank to loan certain money by paying the amount of labor and material claims as they accrued, giving the bank an order upon the city for that sum. The bank made no payments except for receipted claims attached to the checks. The bond contained a provision that upon completion of the work by the surety company it should be entitled to all sums which would have been due or become due the contractor had he performed the contract. The city, over the protest of the surety, paid the bank in full. It was held that equity required the bank and the city to account to the surety for the difference between such sum and the pro rata portion thereof which the original laborers and materialmen would have been entitled to look to the city for, had they retained their claims. It was distinctly held that the case should be determined by rules applicable to the particular state of facts.
In the present case the bank took no assignment of the claims of either laborers or materialmen. It simply loaned money to the contractor with an understanding that he should use the money to satisfy claims for labor and material, and which sums the petition alleges were so used. Russell merely paid these debts with money borrowed from the bank, and so far as the petition shows, without the knowledge or consent of the surety.
The plaintiff invokes the rule that a surety company is not a favorite of the law and must be held strictly to its contract. But the rule does not authorize the court to extend the contract beyond its terms or to make a new contract. By loaning money to the contractor the bank acquired no interest in the claims of the individual laborers or materialmen, although the money was applied in the payment of their claims. The bank is not in the position of having furnished labor or material that went into the building. The provision requiring public officials to take the bond was to protect persons furnishing labor or material used in the construction of public buildings, not to protect money lenders advancing money to contractors in financing the work of construction.
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The opinion of the court was delivered by
Burch, J.:
The action was one for compensation. The court rendered judgment against the plaintiff, on his own evidence, and he appeals.
The defendant leased a tract of land on which it operated a stone quarry. It employed Mexican labor, and nine or ten employees lived in tents and houses in the vicinity of the quarry, for which they paid no rent. The plaintiff and his family lived in a tent which was 150 yards from the quarry. The tent was located on a hillside, beneath a cliff in which there was an outcropping rock weighing many tons. The rock was so threatening, the plaintiff asked permission several times to move his tent to a safer place, the last time being about a month before he was injured. In the afternoon of August 12, 1919, it commenced to rain, and the foreman of the quarry allowed the workmen to quit work so they could get out of the rain. They were told to return to work as soon as it stopped raining. The rain was followed by a tornado. The plaintiff’s brother, who was the interpreter through whom the foreman of the quarry communicated with the workmen, testified that “a lot.of trees came blowing through the air.” The rock fell through the top of the plaintiff’s tent, and split into two pieces. One of the pieces, some five or six feet long and about as high, fell on the plaintiff’s leg. It required the efforts of all the men, working with crowbars for an hour, to release the plaintiff. He was taken to a hospital, where his leg was subsequently amputated between the knee and the hip. It was the custom whenever it rained for workmen to be relieved from work until the rain ceased, and the testimony was clear that, in this instance, the workmen were not ordered to go to any particular place, but were simply given permission to seek shelter. Blasting powder was used in the quarry every day, but there was no evidence its explosive force ever extended beyond the quarry walls, or menaced the locality of the workmen’s habitations. The plaintiff complained of proximity of the rock to his tent, not of proximity of the quarry. When the rock fell, no work was being done in the quarry or in its neighborhood, and those workmen who lived in tents were busy keeping their tents from being blown down.
The question for decision is a very simple one. The workmen’s compensation act is limited to employments “on, in or about a railway, factory, mine or quarry,” and other localities not now material. (Laws 1917, ch. 226, § 1.) In the case of Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, the court interpreted the statute. In that case the injured workman was a coál shoveler in a mine, and the injury occurred within thirty yards of a mine to which he had been sent on an errand connected with his employment. The case was one of first impression, and the court undertook to state and to justify an interpretation which would be a guide to the bench and bar in the future. The conclusion follows:
“The court concludes that the word ‘about,’ as applied to a mine, fixes the locality of the accident for which compensation may be recovered, and that the accident must occur in such close proximity to the mine that it is within the danger zone necessarily created by those peculiar hazards to workmen which inhere in the business of operating the mine. If the accident occur outside this zone, the distance from the mine, whether very near or very far, is immaterial.” (p. 214.)
In the record now under review, there is no evidence which indicates the colony of quarrymen was established within the zone of danger from operation of the quarry.
Arguments are advanced which seek to relate the place where the plaintiff took refuge from the storm, to the quarry. Those arguments are met by the decision in the case of Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905. In that case a factory workman drove a factory truck, to deliver boxes of factory product. While making a delivery several miles from the factory, a box fell on him and injured him. In the opinion it was said:
“Therefore, no recovery can be had by the plaintiff in this proceeding unless he was injured ‘on, in or about’ the factory or packing house of the defendant. That the word ‘about’ is one of locality and not of mere association or connection has been determined in a recent case [citing Bevard v. Coal Co.], . . .
“While in charge of the truck, after leaving the premises where the meat had been prepared, the plaintiff was not ‘within the danger zone necessarily created by those peculiar hazards to workmen which inhere in the business of operating’ the packing house.” (pp. 762, 763.)
In the case of Gadberry v. Egg Case Filler Co., 104 Kan. 72, 177 Pac. 834, a factory workman was injured within a few feet of the factory building, on a runway connecting the building with another factory building. It was held the location and use of the runway made it, for all practical purposes, a part of the dock of the factory. In this instance there was no such relation between the tent in which the plaintiff and his family made their home, and the quarry. •
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The opinion of the court was delivered by
West, J.:
The defendant appeals from an order denying its motion for judgment on the findings of the jury and from an order granting a new trial. The plaintiff also appeals from the latter order.
The petition alleged that the defendant, in removing the bricks, blocks, and stone, rock, cinder and sand filler supporting its track, left a hole between the rails and piled up the removed material so as to form a dangerous obstruction in the street, which was left unguarded and without signal or warning; that the plaintiff while driving his automobile along the north side of the street was forced to pass a horse-drawn vehicle and drove his car on the space between the rails and over the space just outside and along the right rail into the hole thus left, whereby he received certain injuries.
The court instructed the jury that the plaintiff had a right to drive along any part of the street,—
“That in so doing he was not required to exercise a high degree of care for the purpose of observing his surroundings, but he is under the duty and obligation to exercise ordinary care to observe the general conditions of the street and the traffic that might be thereon, and if you find and believe from all of the evidence in the case that the plaintiff was not in the exercise of ordinary care while driving towards and approaching the place where he alleges he was injured, and that had he been exercising ordinary care, as herein defined to you, he could or should have seen said obstruction in time to have avoided it, he is guilty of such contributory negligence as will bar °a recovery in this action, and your verdict in such event will be for the defendant and against the plaintiff.”
The jury returned a verdict for the plaintiff and found that he was not driving without headlights or exceeding a speed of twelve miles an hour, and that the dirt was piled a foot and a half or two feet high on each side of the track.
“Q. 7. Was plaintiff, -at the time and just before he alleges he was injured, looking in the direction in which he was traveling? A. Yes.
“Q. 8. If you answer the last question ‘Yes,’ what prevented him from seeing the obstruction? A. Nothing.
“Q. 9. If you find for the plaintiff, in what respect do you find the defendant, its agents, servants and employees negligent? A. No danger signals.”
The defendant filed a motion for a new trial and a motion for judgment on the findings, and upon the argument the court overruled the latter, whereupon the defendant withdrew the former, and the court of its own motion granted a new trial, giving this as its reason:
“The court is not satisfied with the trial of the case. Did it very hurriedly. And I don’t believe that they grasped the meaning of the court’s instructions, and that the case was properly presented so that the jury might understand what the law and the facts were, by reason of the haste. I don’t think they could make the findings one way and the verdict the other if they had no misconstruction of them. I don’t think they properly considered the instructions.”
The defendant insists that the findings exonerated it for the reason that they showed the plaintiff to be looking in the direction in which he was driving but not seeing the obstruction; also, that being entitled to a judgment on the findings, it was error to grant a new trial. It is argued that the creation, of the obstruction was not the proximate cause of the injury, but merely the condition thereof. But the petition alleged and the facts showed that the obstruction was left without lights or guards. The fact that the plaintiff, coming up behind a horse-drawn vehicle and being compelled to go around it, was looking in the direction of the obstruction, does not preclude his recovery, for he had a right to ássume that the street was reasonably safe for travel, and the fact that he drove into and was injured by the obstruction is indicative that he did not in any realizing sense see the obstruction as he approached it. In Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877, the plaintiff’s horse was frightened by a spurting water hydrant in the street which was not noticed by her until within one hundred feet of it, when the horse took fright. The claim of contributory negligence was there made, as here, but the court said it was not favorably impressed with this contention.
“It is true that the open hydrant was within range of their vision, if their attention had been called to it, and it was discernible before it was discovered by them. They were not, however, required to keep their eyes upon the pavement continuously, looking for obstructions and pitfalls. It was a street which was in constant use, and over which they had passed almost daily without encountering such danger. While they must still act with reasonable care, they had a right to presume, and to act on the presumption, that the street was reasonably safe for ordinary travel.” (p. 644.)
Twenty-one years later this court in Weaver v. City of Cherryvale, 102 Kan. 476, 170 Pac. 997, in an action against the city for injuries sustained by a pedestrian striking her foot against the end of a plank extending from the pavement to the curb at the edge of the sidewalk, said:
“The general verdict amounts to a finding that the plaintiff did use due care for her own protection, except so far as the special findings affirmatively show the contrary. We think that although she was familiar with the conditions existing, knew of the use being made of the plank, and could have seen it if she had looked for it, she could not on that account be held guilty of contributory negligence as a. matter of law. The question whether she failed to exercise due diligence under all the circumstances shown by the findings and evidence, as well as the question whether the city had been negligent, was one of fact to be determined by the jury.” (p. 477.)
It is a mere truism to say that those passing along the streets of a city are not required to have their attention fixed on the purpose of discerning obstructions and pitfalls; and the fact that their gaze happens to be in the direction in which they are going when they run into one, does not absolve the wrongdoer from liability. We see nothing inconsistent or contradictory in the findings.
But, by a wilderness of decisions covering half a century, the rule is settled in this state that ordinarily the trial court, when dissatisfied with a verdict, is in duty bound to set it aside. (Williams v. Townsend, 15 Kan. 563; K. P. Rly. Co. v. Kunkel, 17 Kan. 145; City of Sedan v. Church, 29 Kan. 190; Rowell v. Gas Co., 81 Kan. 392, 105 Pac. 691; White v. Railway Co., 91 Kan. 526, 138 Pac. 589; Ingalls v. Smith, 93 Kan. 814, 145 Pac. 846; Butler v. Milner, 101 Kan. 264, 166 Pac. 478, and cases cited; Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863; Goehenour v. Construction Co., 104 Kan. 808, 180 Pac. 776; Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486; Briggs v. Bank, 107 Kan. 339, 191 Pac. 487; Bordeno v. Guber, 108 Kan. 587, 196 Pac. 232. See, also, Ratliff v. Railroad Co., 86 Kan. 938, 122 Pac. 1023, ordering a new trial without motion.)
When the record shows that the new trial was granted on a pure question of law on which the trial court was wrong, such ruling cannot stand. (Lindh v. Crowley, 29 Kan. 756; A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6, 32 Pac. 630; Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348; Railroad Co. v. Werner, 70 Kan. 190, 78 Pac. 410; Sutter v. Harvester Co., 81 Kan. 425, 106 Pac. 29; Thompson v. Seek, 84 Kan. 674, 115 Pac. 397; Ahlstrom v. Kansas Milling Co., 85 Kan. 548, 118 Pac. 57.) But here, the court expressly stated its dissatisfaction with the trial, its feeling that it had been hurried and that the jury had not grasped the meaning of the instructions. Under those circumstances it is held that it was not error to grant a new trial on the court’s own motion.
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The opinion of the court was delivered by
DAWSON, J.:
This is an appeal from a judgment of the district court dismissing an action by plaintiff for the sum of $500 which came into the hands of the defendant, Nettie LaShell, some years ago as guardian of the plaintiff during the latter’s minority.
Plaintiff’s petition narrated the essential facts, that in 1911 LaShell was appointed guardian of the plaintiff, that by virtue thereof defendant was given custody of plaintiff and of plaintiff’s money, which is the $500 ih controversy, that plaintiff is now eighteen years of age and married, that defendant never expended any of this money for plaintiff and has never settled with plaintiff and that this- sum is now due to her from defendant.
The other defendants are sureties on the guardian’s bond. One of these, W. A. Eppler, by special appearance, filed a motion to dismiss on the ground that the district court had no jurisdiction for the reason that prior to the commencement of this case the probate court had acquired jurisdiction of the parties and of the subject matter and that such court has and retains jurisdiction thereof.
On the presentation of this motion some showing was made—
“That the defendant Nettie LaShell had filed a statement for final settlement in the probate court claiming that she had no funds remaining belonging to the plaintiff and claiming to have spent the same for the plaintiff’s support, and to this the plaintiff had filed a motion to set up when and where she had expended this money. No action had been taken by the probate court in the matter and the matter had been pending therein for some considerable time prior to the bringing of this action.”
The trial court sustained the motion to dismiss, and plaintiff appeals.
The appeal seems to be well taken. When a minor attains her majority she is no longer under the power of any guardian or of any court, and she may assert her legal rights at once without reference to the status of her former guardian’s accounts or dealings in or through the probate court. If the guardian had made a final and satisfactory settlement with her ward in the probate court or otherwise this controversy would not have arisen; but plaintiff did not have to acquiesce in any settlement approved by the probate court, and it has been held that when a minor attains his majority, he does not need to wait until the probate court approves or determines any such settlement. (Mitchell v. Kelly, 82 Kan. 1, 107 Pac. 782.) The statutes govern the final settlements of administrators, and govern the final settlements of guardians of lunatics, but no statute attempts to regulate the matter of final settlements between ordinary persons who come of age and their former guardians. (Martin v. Duckworth, 96 Kan. 717, 719, 153 Pac. 505.) They may settle as they please, with the approval of the probate court or otherwise, but if no satisfactory settlement is effected either party may resort to a court of general jurisdiction for adequate redress.
When plaintiff became eighteen years of age and married, she attained her majority (Laws of 1919, ch. 229), and her right to the possession and control of her own property then and there became absolute, not several weeks, months, or years afterward when her dilatory or delinquent ex-guardian may manage to square her accounts to the satisfaction of the probate court.
In Mitchell v. Kelly, supra, it was held that a previous settlement of a guardian’s accounts in the probate court is not a prerequisite to the institution of an action in the district court on the bond of a guardian for minor children. This court, in part, said:
“The district court possesses both law and equity powers, which may be exercised in the same proceeding. It has general jurisdiction to investigate accounts and to ascertain and declare balances due, and it possesses the common-law powers always exercised by chancery courts to settle guardians’ accounts. . . . There is no statute forbidding the district court to act, and why should it refuse to do so? . . . The guardian is a managing agent for his ward, nobody is interested in his conduct except the ward; and his duty is primarily to account to the ward rather than to the court. . . . The ward, on reaching his majority, may settle with the guardian as he pleases. . . . The authorities are divided upon this question (21 Cyc. 240), and the court adopts the view which seems to accord best with the statutes and legal policy of this state.” (pp. 3, 4.)
To the same general effect are Klemp v. Winter, 23 Kan. 699, 703, 704; Hawk v. Sayler, 83 Kan. 775, 112 Pac. 602; Sparr v. Surety Co., 99 Kan. 481, 162 Pac. 305.
The judgment of the district court is reversed, and this cause is remanded with instructions to set aside the order of dismissal and to proceed with the cause. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to cancel an oil and gas lease and to recover possession of the leased premises. The plaintiffs recovered, and the defendants appeal.
Two questions are presented, which the defendants state as follows:
“First: Did the lease by its own terms expire on the 20th day of October, 1920, unless oil or gas in paying quantities had been found upon said land?
“Second: If the lease did expire, were appellees estopped to secure a declaration of its termination and to evict appellants . . .?”
The first, question is answered by the lease itself, which was executed on October 20, 1917:
“It is agreed that this lease shall remain in force for a term of three years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by lessee.”
The instrument further provided that if no well were commenced on or before October 20, 1918, the lease terminated unless a stipulated sum of money were paid. Commencement of a well might be deferred for additional periods by making similar payments. If the first drilling resulted in a dry hole, the lease terminated, unless, within twelve months from the last rental period, payments were resumed. To secure development within a year, the lessors offered a bonus. No provision of the lease extended the term beyond three years, in the absence of production by the lessees within that period, and the first drilling was done on the last day of the term.
The second question is answered by evidence favorable to the plaintiffs, in two ways: first, the lessors said and did nothing to estop them from insisting on the terms of the lease; second, the defendants commenced their belated development work, relying, not on any inducement of the plaintiffs, but on successful maintenance of their contention that it would be sufficient to have the drill in the ground on October 20, 1920. The evidence was conflicting, and was open to some interpretation as to meaning. The conclusion of the trial court was well sustained.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from an order granting a peremptory writ of mandamus directing appellant to transfer on its stock books and deliver to the appellee one share of its capital stock purchased by the appellee at a sale under an execution against B. M. McCue.
The contention is that the statutory provisions for the sale under execution of a stockholder’s interest in a corporation were not complied with, and that the court from which the ■execution issued exceeded its authority in permitting an amendment to the sheriff’s return on the execution. The manner in which a shareholder’s interest in a corporation may be levied upon and sold under execution is prescribed'by section 7850, General Statutes of 1915, part of which reads:
“An attested1 copy of the execution and of the return thereon shall within fourteen days from the day of sale be left with the officer of the corporation whose duty it is to record transfers of shares, and the purchaser shall thereupon be entitled to a certificate for the shares bought by him and to a transfer thereof to such purchaser on the books of the company.” (Civ. Code, §446.)
The execution involved in the present action was issued on June 11, 1920, in the case of A. L. Sedbrook against B. M. McCue. On the same day a duly attested copy of the execution was delivered by the sheriff to the secretary of the appellant company, who gave the sheriff a statement that McCue owned one share of the capital stock of the company. On the 5th day of August, 1920, the sheriff delivered to the secretary of the company a purported copy of ’the execution with a return which was not an attested copy, and which failed to show the name of the purchaser. On August 25, 1920, in the action of Sedbrook v. McCue, the sheriff, by leave of court, amended his return by setting forth the name of the purchaser with the statement that'the appellee was the highest bidder at the sale, and thereupon he delivered to appellant’s secretary a duly attested copy of the execution and return as amended.
The appellant argues that the sale of the intangible interest of a stockholder in a corporation being unknown to the common law and being purely a creature of the statute, can only be accomplished by a strict compliance with the statutory provisions, and that the failure of the sheriff to leave with the secretary of the company an attested copy of the execution and return within fourteen days from the date of the sale renders the proceedings void.
There is no force in the contention that the statute under consideration must be more strictly construed than other provisions of the code merely because, under the common law, the intangible interest of a stockholder in a corporation was not subject to sale under execution. The first commandment of the code of civil procedure reads:
“The rule of the common law, that statutes in derogation thereof 'are to be strictly construed, has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object,*and assist the parties in obtaining justice.” (Civ. Code, § 2.)
And section 140 of the code, authorizes the court or judge before or after judgment, in furtherance of justice and on such terms as may be proper, to amend any pleading, process or proceeding so as to conform to the facts, with the further provision that “when any proceeding fails to conform in any respect to the provisions of this code, the court or judge may permit the same to be made conformable thereto by amendment.”
While it is true that the sheriff was not only permitted to amend his return to show the name of the purchaser, and that such purchaser was the highest bidder at the sale, but was also permitted to complete the proceedings by delivering to the secretary of the company an attested copy of the return as amended, and that the amendment and service of the copy on the appellant company took place more than sixty days after the execution was issued, the court undoubtedly had authority to permit these amendments not only after the time for returning the execution had expired, but also, notwithstanding the fourteen days fixed by the statute for completing the return had also expired. This is true, at least, as between the purchaser at the sale and the appellant company.
So far as appears from the abstract no third party’s rights are in any respect affected by the judgment. There is a statement in appellant’s brief that after the fourteen days had expired from the date of the sale the share of stock in question was transferred by the appellant to a bank at Garden City, and that the bank now holds it. The appellee has filed no brief.
As between the appellant company and the purchaser at the sheriff’s sale it was the duty of the court, in the furtherance of justice, to permit the proceedings to be amended. The bank is not a party to the action and the appellant cannot avail itself of any rights the bank might have. The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This is an appeal by the plaintiff from an order striking from its petition all reference to a certain letter of confirmation following an exchange of communications between the parties touching a purchase of grain.
On October 28, 1919, the defendant wrote the plaintiff in response to an inquiry—
“On reflection I have decided to load you one or two cars of wheat at your offer of 8c above Government price, no Com. if we can get the cars’15 or 20 days shipment. Let us know where to order the cars to.”
The plaintiff in reply wired: “Book two cars order cars for Fairbault Minnesota Thanks.” The same day the wire was sent and received, the plaintiff mailed the defendant a letter of confirmation, stating among other things:
“We confirm purchase from you by letter and wire of two cars capacity bushels of red wheat. Basis of Grade No. 1 at $2.26 per bushel basis of F. O. B. Kansas City, Mo., our option of diversion and routing, provided point at which weights and grades are to be obtained is not herein specified. Shipment via any road within fifteen to 20 days Minneapolis grades, Minneapolis weights, to be billed Fairbault, Minn. Lower grades to apply Government scale. Lower Grades do not apply on This Contract without our consent. . . . When shipments are not made according to contract, we reserve the right, without further notice, to extend time of shipment, cancel, or buy in the grain for the' seller’s account, unless at seller’s request previous to expiration of time limit of shipment, other arrangements are made covering seller’s failure to make shipment within specified time. . . . Receipt of this contract by the seller, without immediate notice to us of error, is an acknowledgment of the acceptance of all the conditions thereof.”
It will be Seen that, if this letter be considered binding on the defendant, it has the effect- of clearing, in the contract evidenced by the previous correspondence, these items: It calls for two cars, not one or two; if shipments are not made in the specified time the plaintiff can extend or buy in on the defendant's account. ’ Aside from any other possible features working changes in addition thereto, these, are manifest.
The petition alleged that this confirmation was pursuant to the general trade custom of the grain business, known .and understood by the defendant, who received it without' objection. The offer was to ship one or two cars and the order was to ship two. There is no diversity as to the time in which they were to be shipped, but as to the effects of the delay the contract as evidenced by the letter and reply was silent. It is a matter of business caution to confirm any contract made orally or by wire, by written communication supplying the details which are left out of the brief communications which have theretofore passed between the parties. Here, as was said in Strong v. Ringle, 96 Kan. 573, 152 Pac. 631, “there was a contract, and the question is, What were its terms?” (p. 575.) The allegation that this confirmation was sent to and received by the defendant pursuant to a known and understood custom of the grain business must be taken as true on demurrer, and if this allegation were expressly admitted we would then have a contract evidenced by the offer, the tele gram and the letter of confirmation, and not merely one evidenced by the offer and acceptance alone.
One of the proper offices of usage and custom is “to supply necessary matters upon which the contract itself is silent.” (McSherry v. Blanchfield, 68 Kan. 310, syl. ¶ 3, 75 Pac. 121.) In Bossemeyer Bros. v. Grain Co., 108 Kan. 534, 196 Pac. 431, it was held that the rules of the grain association under which the parties were operating entered into and formed part of the contract. Under the allegations of the petition now before us the known and understood custom of the grain trade gave to the letter of confirmation the office of supplying the necessary matters of detail upon which the contract was silent. In Cardwell v. Uhl, 105 Kan. 249, 182 Pac. 415, it was held that where there is evidence of a practice among grain dealers, followed in prior transactions, of mailing letters of confirmation of oral contracts, such confirmations are admissible in corroboration of testimony that such oral contracts were made. In Wallingford v. Grain Co., 100 Kan. 207, 213, 164 Pac. 275, of the written confirmation of a phone contract it was said that stating the terms, the price, the destination and weight, it reserved “also the right to buy in the grain for the seller’s account if shipments were not made according to contract.” Strong v. Thurston, 107 Kan. 368, 191 Pac. 575, held that the failure of the defendant to make objection to the letter of confirmation amounted to an acceptance thereof.
As the matter stricken from the petition took that part of the cause of action out of the case, the order to strike was appealable. (Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830.)
It is held that the offer meant that the seller would furnish one or two cars as desired by the buyer, and this together with the acceptance was a contract for two cars; that these together with the letter of confirmation gave the plaintiff .the right to buy in in case the defendant refused to ship, and further, that it was error to strike from the petition such letter of confirmation.
The judgment is therefore reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover damages for injury to a dwelling house occasioned by blasting done by the defendant. The verdict and judgment were for the plaintiff, and the defendant appeals.
The blasting was done to procure material for fills for the defendant’s ■ railroad. The bank of earth which was reduced by blasting was located in a populated portion of - the city of Kansas City, was composed of sand and clay, with a top stratum of clay, and was fifty or sixty feet high. It was not practicable to use a steam shovel exclusively. The shovel could reach upward but twenty or twenty-five feet, and its continued use would cause the bank to cave, with danger to-'men and machinery. Blasts at the top of the bank would produce a bench lower down, in which other charges would be exploded, and the operation would be repeated until the earth was loosened to the bottom of the. bank. The defendant commenced blasting about January 10, 1917. At first, from two to four cans of blasting powder were placed in each’hole, generally two cans. Each can weighed twenty-five pounds. Being unable to obtain sufficient earth to make satisfactory headway, the engineer in charge of the work made application to the city engineer for permission to use heavier charges. After experiments, the city engineer authorized use of not to exceed four cans, or. one hundred pounds of powder to a hole. The city engineer would supervise the placing of a charge, and then go to a residence in the vicinity and note the effect of the explosion. -Complaints of the blasting had already reached his office, and he went into three or four houses in the neighborhood of the 'bank, and remained there while shots were fired, in order to satisfy himself in regard to what would be a reasonable amount of powder to use. As an engineering proposition, he thought that, under the conditions, the defendant should use one-hundred-pound charges. He did not think continued vibration from uninterrupted use of such charges would affect the structure of a house, but he would not say injury to some extent would not result. He testified the work could have been done with two-can charges, by taking more time and putting in more blasts.
There was abundant evidence the blasting did serious injury to near-by houses, including that of the plaintiff. One witness said it seemed as if a blast lifted his house and then rocked it from north to south. Foundations were cracked and broken. Coping was cracked and thrown out of line. Walls were cracked. Stucco and plastering were cracked. Casings, jambs and joints were loosened. Pillars and windows were pulled away from walls. Mantels and floors were drawn away so that cracks were opened. Windows were broken. Wall paper was ruined. Picture frames were shaken from walls, and things were shaken from mantels. A laundry sink was jarred loose, and cisterns were cracked. The plaintiff’s house was injured to the extent of $850. The defendant endeavored to show that it was not responsible for the condition of the house, but merely succeeded in preventing recovery of the full amount claimed. None of the consequences referred to were occasioned by casting debris on the premises sustaining injury. There was evidence that some explosions produced greater shock than others, and there was no dispute that top-bench blasts were more violent in effect than blasts in lower benches. There was no evidence that the defendant owned the land on which the blasting was done, and so far as the record discloses, the defendant might easily have procured material for its fills from some place far enough from human habitations not to endanger them. However, for purposes of the decision it will be assumed the defendant was making the best possible use of its own land in order to procure material to put its roadbed in condition to perform its functions as a public-service corporation.
The defendant asserts the evidence discloses it used due care fin conducting its operations, and unless guilty of negligence, the consequence to plaintiff’s property' was damnum absque injuria.
The New York court of appeals presents one side of the ultimate problem in this way: By blasting, a man establishes his house or other building on a portion of a stony tract of land. Other portions of the tract are desirable for residence or business purposes, but owners are not able to build there without doing injurious blasting. The first occupant ought not to be allowed to monopolize the entire tract. (Booth v. R., W. (6 O. T. R. R. Co., 140 N. Y. 267, 278.) The other side of the problem may be suggested in this way: The blasting which each subsequent builder must do will wreck all the improvements of his immediate predecessor. While the proposed case is an extreme one, it tests the principle involved. Decisions on the subject are collated in 12 L. R. A., n. s., 389; 27 L. R. A., n. s., 425; 34 L. R. A., n. s., 211: L. R. A. 1915 E, 356; L. R. A. 1917 A, 1016.
The defendant’s argument is that it is lawful to enjoy propérty, and that the law favors beneficial use of property. The results of beneficial use, being lawful, cannot be injurious in a legal sense. Concussion and vibration resulting from blasting carefully done cannot be confined, and so long as no physical invasion of the plaintiff’s property occurred by casting debris upon it, the limits of lawful beneficial enjoyment were not transgressed. The golden rule of the law, sic utere tuo ut alienum non laedas, finds no place in the defendant’s brief.
The writer is of the opinion the distinction between injury by shock and injury by casting debris, affords no ground for distinction in liability. One constitutes actual, forcible, physical invasion just as much as the other. The same blast may break a window of a house with a fragment of rock, and ruin the foundation and walls by concussion and vibration, or may break a window of one house with a fragment, and demolish another by shock. It is not material, that one form of invasion may be ticketed “trespass” in the categories of the law, while the other may not, and in the absence of technical negligence there still remains the question of reasonable use, viewed broadly enough to include all interests and cir-' cumstances. The city engineer fairly indicated the elements of the problem — efficient prosecution of the work of getting out needed material, and security, not absolute, but reasonable security for property in the neighborhood. The city engineer was called in April. From January to April the general practice was to use two cans of powder to a hole. The defendant’s engineer in charge said “two to four cans . . . mostly used two cans.” Doubtless four-can charges placed in the top bench caused the complaints which reached the city authorities. .The work could have been continued with two-can charges. That method required more time and more blasts. Heavier charges were desired, not to obtain beneficial use of property, but to obtain more material faster. Use of four-can charges demon'strated they were destructive of occupied houses in the vicinity. Assuming that none of the charges were misplaced or otherwise improperly handled, and assuming that the defendant acted on the advice of capable and prudent men who tried to balance conflicting interests carefully, and so was not negligent, the writer would say a jury would be justified in finding the limits of reasonable privilege were overstepped. However, in two blasting cases this court accepted the rule that negligence must be the ground of liability when injury occurs without trespass in the technical sense (Cherryvale v. Studyvin, 76 Kan. 285, 91 Pac. 60; Rost v. Railroad Co., 95 Kan. 713, 149 Pac. 679.) Following those decisions, the case under consideration was submitted to the jury on the negligence theory, which, as indicated, is acceptable to counsel for the defendant, and the theory will again be made the basis of decision.
White was the defendant’s employee in charge of blasting when the city engineer made his tests. White testified as follows:
“Mr. Bates, the engineer, and Mr. Barclay [city engineer] came there to make tests of charges. They stood over me while I put in the charge, and then went away to some house. After the tests I was instructed not to use more than four cans.
I have had experience blasting earth. Put my holes 9 to 12 feet deep. . . . More vibration the deeper the hole. I shot my holes back about six feet. . . . You would get more with deeper hole and further back.”
Neither the city engineer nor the defendant’s engineer testified regarding the distance from the face of the bank the test holes were drilled. The city engineer testified that charges placed 15 feet from the face of the bank would cause greater vibration than they would if only 8 feet back — holes farther back would cause more vibration. He was corroborated by other expert witnesses. Herrin owned a house badly injured by the blasting. He testified as follows:
“Was present when tests were made by Mr. Barclay, city engineer. No blasts occurred that were damaging at that time. They were down there and they came to my house and were in my house when blasts were touched off, and, while there was quite a tremor, nothing to compare with some they had had.”
The result is, hundred-pound charges, placed in holes six feet from face, were found not to be dangerous, and consequently were authorized by the city engineer.
Hall, who preceded White, testified that the farther back the holes were placed the greater the vibration, and that' he put holes from 8 to 10 feet back. For the plaintiff, Milam said holes were placed 10 feet back, and sometimes farther. Herrin said they were placed from 15 to 20 feet back. Miller said they were placed from 5 to 12 feet back. Greer said they were sometimes placed 8 or 9 feet back, and sometimes 18 to 20 feet. The necessary inference is, the defendant abused its permission, and used hundred-pound charges to throw down two or three times the quantity of earth displaced by the test shots, notwithstanding the fact that shock increased with distance of the hole from face of the bank. Before April, the defendant evidently employed the same tactics, occasionally, to speed its work.
There is nothing else of importance in the case. Evidence of contemporaneous injury to other buildings in the same locality, from the same cause, was properly received. Since at the close of -the testimony there was evidence of negligence, the ruling on the demurrer to the plaintiff’s evidence is not now material. Criticisms of the instructions given are without substantial merit, and the proper rule of damages was stated to the jury.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant was Convicted upon two separate counts of an information, charging him with violations of the provisions of the prohibitory liquor law. He was sentenced to pay fines accounting in all to $500, and to terms of imprisonment aggregating four months in the county jail of Linn county. From the judgment he appeals. It is urged that the information is insufficient, and that the proceedings against the defendant were not by due course of law. In support thereof, it is said that the information did not give to the defendant the nature and cause of the accusation against him, and that the proceeding against him was not by the ordinary course established at the common law. Neither of these points is well taken.
In prosecutions of this character, it is not necessary to state the kind of liquor sold, or the name of the person to whom sold, for the statute expressly and specifically provides that these things need not be stated. (Laws of 1885, ch. 149, § 14; The State v. Schweiter, 27 Kas. 499; The State v. Sterns, 28 id. 154; The State v. Olferman, 29 id. 502; The State v. Shackle, 29 id. 341; The State v. Brooks, 33 id. 708.) In this case, however, the defendant had no reason to complain of being ignorant as to the offenses he was called upon to defend. The testimony of the principal witnesses as to sales of intoxicating liquors made by him was reduced to writing and filed with the information. Therefore, before the trial began, he was notified that John Beckman, whose name was indorsed upon the information as a witnéss, had testified that he had frequently drank whisky and beer in his saloon at different times since March 10, 1885; and that about the first of May, 1885, John Gaines treated him in the saloon to a glass of whisky. He was also notified by the written testimony that John Gaines, whose name was upon the information, had testified that during the spring and summer of 1885 the defendant was keeping a billiard saloon in La Cygne, and that about May 1, 1885, he bought of him, in his saloon, two glasses of whisky, which he poured out; and that about June 15, 1885, he bought of him, in the same saloon, a drink of whisky and cider mixed together, and at the same time saw other parties get and drink the same kind of mixture. Other witnesses, whose names were upon the information, had also testified to specific sales of intoxicating' liquoi’S made by the defendant in his saloon in 1885, and before the filing of the information, and also the kind of intoxicating liquors sold by him at said times. Of course the defendant had the right to suppose that these witnesses would testify upon the trial to the same facts set forth in the testimony filed with the information. Therefore he was given fair notice of the offenses charged against him; of the kind of intoxicating liquors sold by him; and when he sold the same and to whom he sold the same. In this case, the letter and spirit of § 10 of the bill of rights were complied with, as the defendant was informed of the nature and the cause of the accusation against him with great particularity.
An attempt is made to question the constitutionality of § 8 of said chapter 149, giving county attorneys power to subpena and examine witnesses concerning violations of that act. From the record, however, this question' is not before us for decision. None of the witnesses who were subpenaed and examined before the county attorney of Linn county on July 13, 1885, concerning the violations of the provisions of the prohibitory liquor law by the defendant, are here complaining, and the defendant has no right to complain for them. He stands before the court in reference to such matter as if all the parties to the statements filed with the information had voluntarily appeared before the county attorney, and had made before him, at their own instance, the statements. The county attorney clearly had the right, for the benefit of the defendant, to file with his in-' formation a bill of particulars, or any sworn statements, showing what specific offenses he intended to charge, when he verified the information. All of this enabled the defendant to prepare his defense, and after such statements or evidence had been filed with the information, the defendant .could not be convicted of any offense not therein referred to or set forth. (The State v. Brooks, supra; The State v. Clark, 34 Kas. 289.) It has already been decided by the supreme court of the United States, in Foster v. Kansas, 112 U. S. 201, that the prohibitory liquor law is not repugnant to the constitution of the United States; neither is it in conflict with any of the provisions of the constitution of this state. (Prohibitory Amendment, 24 Kas. 700; Intoxicating-Liquor Cases, 25 id. 751; The State, v. Schweiter, supra; The State, ex rel., v. Foster, 32 Kas. 14.) And we oan perceive no fundamental rights in that system of jurisprudence, of which ours is derivative, which have in any way been disregarded. The words “ due process of law” do not mean and have not the effect of limiting the powers of the state to prosecutions for crime by indict ment, “but these words do mean law in its regular; course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights.” (Hurtado v. The People, 110 U. S. 516; Walker v. Sauvinet, 92 id. 90-93.) The law authorizing the filing of in-formations in such a case as this, is not in conflict with our constitution, or the constitution of the United States. (The State v. Barnett, 3 Kas. 250; Cooley on Constitutional Limitations, 5th ed., 376 ; Kalloch v. Superior Court, 56 Cal. 229; Ex parte Wilson, 114 U. S. 417.)
A sufficient information was filed against the defendant; with the information was filed the sworn statements of the important witnesses whose names were indorsed thereon. Thereby the defendant was fully ap- ‡ J , ^ , prised of the nature of the charges against him, so that he might know what he was to answer. The proceeding against him was upon inquiry; he was heard before he was condemned, and no judgment was rendered until after trial. Therefore, there is no force whatever in the assertion “that the proceeding was not by due process of law.”
Section 9 of said chapter 149 provides that when a county attorney files a complaint or information with a statement of any witness that intoxicating liquors are being unlawfully sold, the information may be verified by the county attorney upon information and belief. Sec. 67a of the criminal code, Comp. Laws of ,1879, reads:
“When an information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief.”
It is insisted that as the verification by the county attorney to the information says the same “ is true according to the best of his information and belief,” it does not comply with the requirement of the statute, and therefore the information is not verified. We think the verification a sufficieut compliance with the statute. A person who 1 nil* makes such a verification imports that he has m-formation and is entitled to entertain the belief he expresses, and when he swears “to the-best of his information and belief,” he swears'that he has information- and belief. (Roe v. Bradshaw, Ct. of Exchequer, vol. 1, p. 106.)
Upon the trial, the defendant interposed a challenge to the array of the regular panel of the jurors, on the ground that the jury had not been selected from the list of tax-payers for each township for the previous year, 1884, according to law. The challenge was overruled, and we think rightly. Qf ^he twenty-six persons summoned to appear, two, Eaber and Coffin, seemed to have been clearly ineligible. These were discharged by the court. Another juror, GL W. Platt, was a resident of Paris township w7hen the list of jurors was returned, and was not on the assessment roll of that township. At the time of the trial he had lived in Paris township only one year, but had lived in Lincoln township, in Linn county, over sixteen years, and was on the assessment roll of Lincoln township in 1884. The neglect or refusal of officers to comply with the. statute in the listing and selection of jurors, must be affirmatively shown; and as in this case only three persons were upon the panel drawn as jurors who were not eligible to be returned on the jury list-, we do not think there was such a palpable disregard of the statute as to require the challenge to the array to have been sustained. (A. T. & S. F. Rld. Co. v. Davis, 34 Kas. 199.) In the case of The State v. Jenkins, 32 Kas. 477, the-jury list for 1883 was drawn directly from the assessment rolls of 1883, not from the preceding year, 1882, at all.
Finally, it is claimed that said chapter 149 is not a law of the state: this upon the alleged ground that it has never received the approval of the governor, that his objections thereto were never considered, and that the bill was never passed by a vote of two-thirds of each house, notwithstanding such objections. The facts are these: The act in question, known as house bill No. 367, entitled “An act to ,prohibit the manufacture and sale of intoxicating liquors,” etc., having in the regular and constitutional mode passed both houses of the legislature, and having been properly signed by the officers of both houses, was, on March 7/1885, regularly presented to the governor for his approval; on that day he approved and signed the same, and deposited it at ten o’clock of said March 7th, with the secretary of state. Subsequently, the governor sent a message to the legislature stating that he had approved house bill No. 367, but in his message he made objections to several sections of the bill, and attempted to give his own construction of some of the provisions thereof. It is very doubtful whether his interpretation of the act can be sustained.. (House Journal of 1885, pp. 1221-1222.)
Upon this state of facts, we are clearly of the opinion that the act was properly approved and signed by the governor, and is a law. The constitutional provision bearing on the subject is § 14 of article 2, and is in these words:
“Every bill and joint resolution passed by the house of representatives and senate, shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he¡ approve, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal, and proceed to reconsider the same. If, after such reconsideration, two-thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a law. ■ But in all such cases the vote shall be taken by yeas and nays, and entered upon the journals of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law.”
■ This requires the governor, if he does not approve a bill, to return it to the house of representatives, which shall enter the objections at large upon its journal, and proceed to reconsider the same. By the provisions of article 4, ch. 102, statutes of 1879, the secretary of state is charged with the safe-keeping of all enrolled bills and resolutions, and also of the laws of the state; and §5 of article 1 of said chapter 102 spe cifically directs that the governor “shall cause all acts and joint resolutions which have become laws or taken effect by his approval or otherwise, to be deposited in the office of the secretary of state without delay.” There is no constitutional or statutory law which requires the governor to return to either house of the legislature any bill after it has received his approval and signature, nQr -g pract;oe> As a matter of courtesy, the governor reports, through his private secretary, to the house of representatives his approval of the bill. This, and nothing more. The bill in this case was never returned by the governor to the house of representatives, and the message which he transmitted to the house, subsequently to his approval, was never attached thereto or made a part thereof. It is not claimed that the governor signed the bill through mistake, inadvertence, or fraud. On the other hand, the facts clearly show that he approved and signed the bill voluntarily, and that he deposited it with the secretary of state as a law of the state. Therefore after the bill had been approved and signed by him, and he had deposited the same with the secretary, it' passed beyond his control. J 3 r J Its status then had become fixed and unalterable, so far as he is concerned. His subsequent message was no part of his approval or signature, and whether his objections to the bill and his construction thereof after he had approved and deposited the same with the secretary of state were good or bad, is wholly immaterial. The act in controversy was regularly passed by the legislature, was approved and signed by the governor, was deposited with the secretary of state, and therefore has received all the constitutional sanctions required to giveit effect. (Comp. Laws of 1879, ch. 102, articles 1 and 4; Cooley’s Const. Limitations, 5th ed., 184-188; People v. Hatch, 19 Ill. 283; State Constitution, árticle 2.)
The judgment of the district court must be affirmed.
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The opinion of the court was delivered by
Joi-inston, J.:
Two principal reasons are urged against the sufficiency of the petition, the first of which is that the cause of action attempted to be set forth is based on an agreement to arbitrate a dispute concerning real estate; and it is argued that such a dispute is not. the subject of arbitration. This position cannot be maintained. It seems that in an early day there was some doubt whether controversies concerning land could .be submitted to arbitration, but this doubt can hardly be said to exist now. In discussing what may be the subject-matter for submission, Mr. Morse, in his work on Arbitration and Award, says:
“ In England, in old times, the right to submit to arbitration disputes concerning real estate, especially where the actual title was'in dispute, was regarded with great-jealousy, but any doubt concerning the validity of such submissions has been long since entirely dissipated.' In the United States few traces of the ancient doctrine are to be found, and there is no- question that any dispute whatsoever relating to realty may be submitted to arbitration.”
And he cites numerous authorities to sustain the conclusion which he has reached. (Morse on Arb. and Award, 54.) Mr. Caldwell, in his treatise on Arbitration, page 3, after speaking of the doubt which formerly existed upon the question, concludes as follows:
“Indeed, at the present day it is quite clear that any disputes concerning land may be referred to arbitration, and that one party may be directed to execute all the necessary conveyances to the other, and to perform all such acts as may be requisite to confer the right and the possession.”
The only case cited to sustain the objection is that of Stigers v. Stigers, which is noted in the appendix of 5 Has. at page 652. No opinion was written in the case, and the grounds upon which the decision was based cannot now be definitely ascertained. It appears to have been an action to recover real estate, and the plaintiff offered in evidence an arbitration bond executed by the parties, and an award of the arbitrator, which were excluded by the court for reasons not stated. It is true the syllabus of the case as it is reported, sustains the view contended for by the defendant; but whether the syllabus was prepared by the justice who pronounced the decision in the case, or by the reporter, is not known. At the time the decision was made, there was no statute, as there is now, providing that the justice delivering the opinion shall prepare and file a syllabus of the points decided in the case. The syllabus of the case, by whomsoever prepared, states a doctrine which is in conflict with well-settled law that we cannot approve or follow. If there was ever any doubt in this state of the right to submit such controversies to arbitration, it has been settled by recent legislation. In 1876 it was enacted, “That all persons who shall have any controversy or eon- . . , , troversies may submit such controversy or controversies to the arbitration of any person or. persons to be mutually agreed upon by the parties.” (Laws 1876, ch. 102, §1.) The language of this provision is broad and inclusive, and covers disputes concerning real estate equally with disputes relating to personal property.
The other objection to the petition is, that it fails to show that the plaintiff ever had any interest in the strip of land for which he demands payment, or that he relinquished any right thereto to the defendant, or that the defendant received anything at his hands that he was. not already entitled to, and therefore that there was no consideration for defendant’s agreement to pay for the disputed strip of land. From the petition it appears that the plaintiff and the defendant were the owners of adjoining tracts of land, the plaintiff owning the southeast quarter of section 26, and the defendant the southwest quarter of the same section. For many years a dispute existed between them relating to the true location of the boundary line dividing these tracts. Finley claimed that the true line of division was one lying equidistant from the east and west lines of the section, while Funk claimed that his land extended to a line three rods east of the middle boundary as claimed by Finley, which would make Funk’s quarter-section six rods longer on its south line than Finley’s quarter-section. On the 12th of June, 1884, they undertook to have the boundary line established by the county surveyor, as provided by statute, but a dispute arising as to the procedure, they agreed to dispense with the services of the county surveyor in establishing the corner, and they fixed upon a boundary line by an agreement between themselves. The agreement was in writing, and by it the boundary was established on the line contended for by Funk, and upon which a hedge was standing. As a part of the agreement, it was stipulated that—
“Said Funk shall pay to said Finley the value of the strip of land lying west of the hedge between the land of Funk and Finley, and east of the line extended northerly from the point this day ascertained to be equidistant from the southeast and southwest corners of said section 26, toward the quarter-section corner on the north line of said section.”
It was stipulated that the county surveyor should compute the quantity of land in the strip described, and its value was to be determined by three arbitrators, one to be chosen by Finley and the other by Funk, and the two so chosen to select a third, and the parties agreed to abide by the decision of these arbitrators, and that Funk should pay the'amount of the award within ten days from the time it was made; and that unless the award was paid in the time stated, Finley was at liberty to declare_the contract void so far as it affected him, or he might enforce it by any proéeeding necessary to collect the same. It is alleged that the county surveyor computed -the quantity of land in the strip, and found that it amounts to two and one-half acres; that the plaintiff has complied in every respect with the provisions of the agreement, but that the defendant has refused to select an arbitrator, and has notified the plaintiff that he will not pay for said land nor submit the question as to the value thereof to arbitration as agreed; and that the value of the land included in the strip was $300. This agreement is somewhat ambiguous in its terms, but the majority of the court are of the opinion that it is valid, and that the petition states a cause of action. The view taken by the court is that all the provisions of the agreement must be taken together, and if by any reasonable construction it can be upheld, it should be done. By this agreement the parties sought to settle a perplexing question of boundaries, and avoid what might be a protracted and expensive litigation. The agreement is one they had a right to make, and its purpose is looked upon by the courts with favor. It has been said in a case where disputed boundary lines were involved, that—
“ It is the policy of the law to allow parties to settle and adjust doubtful and disputed fects between themselves, and when such a matter which before was uncertain, has been established by agreement between the parties upon good consideration passing between them, they are not permitted afterward to deny it.” (Vossburgh v. Teator, 32 N. Y. 567.)
The fact that the parties entered into 'an agreement is evidence that.they desired as far as possible to waive and dispense with formalities; and even if the agreement is formally defective, the court should seek to uphold it and carry out the obvious intent of the parties. The defendant claimed that his land extended to the hedge, while the plaintiff insisted that the hedge stood three rods over on his land. They employed a surveyor, and testimony was taken in an ineffectual effort to ascertain the true line. The line was fixed, and the defendant, as a settlement of the question, agreed to pay the value of the disputed strip. The consideration for the agreement, as the plaintiff contends,'is the mutual concessions of the parties in fixing the dividing-line, and the aban(jonmeu¿ the plaintiff of any claim to the disputed strip, which is deemed by the court to be sufficient to sustain the defendant’s promise. The other view, and the one entertained by the writer of this opinion, is that the agreement was without consideration, and is invalid. The subject of the controversy between the parties was, where was the true line of division between their farms? It was expressly agreed by them that the boundary is forever established on a line with the hedge, which by another provision of the agreement is said to divide the land of Funk and Finley. ■ It seems to me that the parties did not seek to make a new boundary line, nor to change the old line, but only undertook to find and fix the preexisting line—the true line of division between the two quarter-sections. The land lying west of this line, including the strip in question, was owned by Funk, and in which Finley had no interest. He owned no more than the southeast quarter-section, which extended westwardly to a hedge, and no farther, and he therefore had no interest in the strip west of the hedge, nor in any part of the southwest quarter, to convey. It is true that Funk agreed to pay Finley the value of two and one-half acres of land, and we should, if possible, uphold the agreement, and give effect to the apparent purpose of the parties; but no agreement can be upheld that is not founded upon a valid and sufficient consideration. The stated and only consideration for the promise of Funk is the two and one-half acres of land which, as we have seen, he already owned, and in which the plaintiff had no interest to convey. If the agreement is interpreted as showing that the parties regarded the line three rods east of the hedge -to be the true one, and that the land included in the strip belonged to Fin ley, which from the language employed would seem to be a strained interpretation, it would still fail of its purpose. In the opinion of the writer, the agreement is not effective as a conveyance, and would not operate to transfer the title of the disputed strip of land to the defendant. It is not alleged in the petition that any deed or instrument which would operate as a conveyance of any part of plaintiff’s quarter-section had been tendered to the defendant.
Another point presented against the petition by the defendant is, that it contains an allegation that the surveyor proceeded with the survey alleged to have been begun by him, and filed his plat and notes with the register of deeds, showing that the corner was established on-the evidence produced before him instead of upon the agreement of the parties, and it is claimed that that survey is conclusive upon the parties. .This point is answered by the allegation that the services of the surveyor in establishing the corner were dispensed with, and that the line was established by the agreement, which is here held to be valid. The action of the surveyor was taken subsequently to this agreement, and is not binding upon the plaintiff.
From the conclusion reached, it follows that the ruling of the district court, holding the petition to be insufficient, must be held erroneous, and its judgment will therefore be reversed, and the cause remanded for another trial.
All the Justices concurring, except as to the second paragraph of the syllabus, in which Justice Johnston does not concur. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Harvey county, by John W. Weaver against the St. Louis & San Francisco Railway Company, to recover for personal injuries alleged, to have been caused by the negligence of the defendant and its employés. A trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, and assessed the damages at ten thousand dollars, and also made sixty-seven special findings of fact; and upon this general verdict and these special findings of fact, the court below rendered judgment in favor of the plaintiff and against the defendant and for the amount of the verdict, with costs. To réverse this judgment the defendant brings the case to this court.
The alleged injuries occurred on May 19,1883, at about 3 o’clock in the morning, at a point on the defendant’s railway where the same crosses Vernon valley, about four miles north of Fayetteville, Washington county, Arkansas. The a£ the time was a locomotive engineer in the employment of the defendant, and had charge of an engine drawing one of defendant’s freight trains from Van Burén, Arkansas, northeasterly, to Rogers, in the same state. J. Workman was the fireman on the same train. James Dun was the defendant’s chief civil engineer, and had the general charge of the construction and repairs of the defendant’s railway. J. F. Hinckley was an assistant civil engineer under Dun. Samuel Lyman was the defendant’s general roadmaster, John R. Ward was the division roadmaster for that division, and Charles Downing was the section foreman for that section, which includes the place where the accident and the alleged injuries occurred. The injuries were caused by the engine’s running into a “wash-out” at the southeast side of Vernon valley, about 900 feet south of where the railway crosses the main channel of Vernon creek or Vernon branch. At the main channel of Vernon branch, a pile trestle, sixty feet wide and six feet high,-was constructed for the water to pass through. At the place where the accident occurred, a wooden box culvert, six feet wide and four or five feet high, was constructed for the purpose of draining some low ground, and possibly also of carrying off a portion of the water that might ■flow down Vernon valley during times of high water. The water at this place flowed from the east to the west, though the general course of the stream was from northeasterly to _southwesterly, and except during times of wet weather no water passed through this culvert, but all passed through the pile trestle. At the time of the accident, a large volume of water was flowing down Vernon valley, and the high water of that night had washed out the culvert. The plaintiff’s engine ran into the place where the culvert had been washed out, turned to the left, and turned over on its side; and while it was turning the plaintiff jumped from the cab window, on the upper side, and into a swift current of water. This current carried him back to the engine, which was still in motion, and his left arm was caught between the driving-rods of the engine, and was so crushed as to require amputation above his elbow and near the shoulder; and this injury and the incidental and consequent injuries, are the injuries of which the plaintiff now complains.
The first question involved in this case is, whether the court below had jurisdiction to try the case, or not. The plaintiff in error1, defendant below, claims that the case was removed from the state district court to the United States circuit court. It appears that the defendant was at the time of the accident, and still is, a corporation organized under the laws of the state of Missouri, but besides doing business in the state of Missouri, it then did and still does business in both the states of Arkansas and Kansas. The plaintiff at the time of the accident was a resident of Arkansas. Afterward, and before commencing this action, he removed to and became a resident of the state of Missouri, and while a resident of the last-mentioned state he commenced this action in Kansas. He is still a resident of the state of Missouri. He commenced this action on December 17,1883. On January 4,1884, the defendant filed a general demurrer to the plaintiff’s petition, upon ■ the alleged ground that the petition did not “state facts sufficient to entitle the plaintiff to maintain his said action against the said defendant.” On February 4, 1884, the demurrer was overruled. Afterward the defendant filed an answer, and also an amended answer, and the plaintiff replied thereto. Afterward, and on May 20, 1884, the defendant filed its petition and bond for a removal of the case to the circuit court of the United States; and afterward, and on October 13, 1884, filed its plea in abatement, claiming that the case had already been removed to the circuit court of the United States. Both the application for the removal and the plea in abatement were overruled.
Now, passing over all other questions with regard to removal, we think the defendant made its application for removal too late. It has been' decided by the supreme ^ L court of the United States, in at least three cases, that a case cannot be removed from a state court to the federal courts under the act of congress of March 3, 1875, after a hearing has been had in the state court on a demurrer to the complaint because it did not state facts sufficient to constitute a cause of action. (Alley v. Noth, 111 U. S. 472; Scharff v. Levy, 112 id. 711; Gregory v. Hartley, 113 id. 742.)
The next question is really/one of fact: was the plaintiff guilty of contributory negligence? The distance from Van Burén tó the place where the accident occurred is 61 miles, and to Rogers, 77 miles. When the plaintiff’s train left Van Burén, which was on May 18, 1883, at 7:30 o’clock in the evening, it was raining slightly. When the train reached West Fork, a distance of about 45 miles from Van Burén and 16 miles south of where the accident occurred, evidences were observed which indicated that a great storm had crossed the track. At Fayetteville, four miles south of where the accident occurred, there were still evidences of rain, but no evidence of any great storm. When the train crossjd Clear creek, something over half a mile from where the accident occurred, it was noticed that the stream was unusually high; but from Clear creek to the place where the accident occurred the grade is ascending, and there was very little if anything to indicate danger until the train had approached very near to Vernon valley, where the accident occurred, and nothing to conclu sively show danger until the engine commenced to turn to the left and to turn over, as aforesaid. This was all in the night-time, about 3 o'clock in the morning. In Vernon valley, where the railway crosses Vernon branch, or Vernon creek, there is a pile trestle about sixty feet wide and six feet high, for the water of Vernon branch to run through; and this trestle is about 900 feet north from the culvert, or sluice-way, as it was sometimes called, where the accident occurred. The bed of Vernon creek is also a few feet higher than the bottom of this culvert or the ground where it was placed. It was not intended that Vernon branch or any portion of the stream itself should pass through this culvert, but the culvert was really intended to carry off only the water from some low ground adjacent thereto. But in constructing the railway, in putting in the pile trestle where the water of Vernon branch was to run through, and digging a ditch from that point on the east side of the railway to the point where the accident occurred, and throwing up an embankment of solid earth on which to place the railway track, the course of Vernon branch was so changed that during times of high water a large proportion of the water from the branch passed along the east side of the railway to the culvert and ran through the culvert and down a ravine to the main branch. Upon these facts, we cannot say, as a matter of law, that the plaintiff was guilty of culpable contributory negligence. We have not stated the facts'in the great detail in which they were proved, but, taking all of them just as they were proved, we canuot say, as a matter of law, that the plaintiff was guilty of any culpable contributory negligence; and therefore the findings of the jury, general and special, that the plaintiff was not guilty of such negligence, must be sustained.
It is claimed, however, that the burden of proof rests upon the plaintiff to show that he was not guilty of contributory negligence, and not upon the defendant to s'how that he was. The rule, however, in this state, is otherwise. (K. P. Rly. Co. v. Pointer, 14 Kas. 38, 50; K. C. L. & S. Rld. Co. v. Phillibert, 25 id. 583; see also Beach on Contributory Neg., 430, § 157.) The law presumes that every person performs his duty; and this presumption continues until it is shown affirmatively that he does not or has not-Hence, wherever there is no evidence upon the subject, or where the evidence is equally balanced, this presumption in favor of the person in question requires that the" findings of the court and jury should be that such person has performed his duty and is not guilty of any culpable negligence, contributory or otherwise. Hence, while it may be said in a general sense that the burden of proving his case devolves upon the plaintiff, yet if he has shown that the defendant was guilty of the negligence causing the injury complained of, and the evidence tending to show that he has performed his duty is at least equal to that which tends to show otherwise, he has made out his- case. This is virtually throwing the burden of proof to show that the plaintiff has been guilty of culpable contributory negligence upon the defendant; and this has been the uniform holding of this court.
The next general question is, whether it has been shown that the defendant was guilty of negligence. This question is principally one of fact. The principal negligence charged against the defendant in the present case is the failure of the defendant and its employés to put in a sufficient culvert at the place where the accident occurred, to carry off all the water which naturally flowed to it in times of high water, or which was caused to flow to it by reason of the manner in which the railway was constructed at Vernon valley; and also the failure of the defendant and its servants or agents to exercise reasonable diligence to discover the “wash-out” and to give the plaintiff and the other train-men proper warning of the danger before the accident occurred; and the principal agebts of the defendant who are charged -with negligence are the defendant’s chief civil engineer and his assistants, and the section foreman of the section where the accident occurred, and his assistants. We have already stated how the railway track, trestle, embankments, ditches, culverts, etc., were constructed at Vernon valley, so as to cause the principal portion of the water flowing clown this valley during times of high water to flow down to this culvert, instead of passing through the pile trestle, through which it was intended that it should pass; aud also the dimensions and. capacity of the culvert.' We would further state that the section foreman resided about three miles south of the place where the accident occurred, and had at the place of his residence assistants, hand-cars, lights, tools, torpedoes, signals, etc., and that he could have gone with a hand-car to the place where the accident occurred in about twenty minutes, and it was his duty to do so, but he did not. Taking all the facts and circumstances of this case together, we cannot say, as a matter of law, that the jury erred in finding as a matter of fact that the defendant was guilty of negligence in the respect aforesaid.
It is claimed, however, by the plaintiff in error, defendant below, that the section foreman was not a representative of the defendant as between the plaintiff and the defendant, but that the plaintiff and the section foreman were coemployés, mere fellow-servants of. the same master, in a common line of employment; and therefore that under the common law, which is admitted to be in force in Arkansas, where the accident occurred, the defendant is not liable to the plaintiff for the negligence of the section foreman. There is nothing in this case, however, to show what the courts or others in Arkansas consider to be the rule of the common law in cases of this kind, and there is a great difference of opinion prevailing in this country upon this subject; hence we must decide this case upon our own views as to what the rule of the common law in such cases is. It may be that our view of what the common law is, differs from that of the supreme court of Arkansas; but as it has not been proved in this case, as a matter of fact, what view the supreme court of Arkansas or the courts of that state take upon this question, it will be necessary, as before stated, for us to follow our own views as to what the common law upon this subject is. If it had been proved in the ease what view the supreme court of Arkansas has taken with respect to the common law in cases of this kind, we would follow its view; and this we would do even if its views should differ from ours. If within its views the plaintiff has no cause of action, we would also hold that he has no cause of action. We have no disposition to encourage persons who have no cause of action in their own state to come to Kansas and sue in this state with the possible intention of evading the laws of their own state, and because they may possibly believe that under the rules of law as administered in this state they might be allowed to recover, when they could not recover in their own state. Such would not be a proper administration of justice. If it be claimed, however, that we should take judicial notice of the common law of Arkansas, we would answer that we cannot do so. The courts of this state may take judicial notice of the common law of Kansas, and what it would be except for our own statutes or our- own written law; and for this purpose our courts may take judicial notice of all the judicial decisions of this country and of all other countries which have adopted the common law of England. (Hunter v. Ferguson, 13 Kas. 463, 475, 476; Division of Howard Co., 15 id. 194, 213; City of Topeka v. Gillett, 32 id. 431, 437.) But for the purpose that the courts of this state shall know as a fact in a particular case what the common law of some other state is, such law must be proved like any other fact. (Porter v. Wells, 6 Kas. 455; Hunter v. Ferguson, ante.) In Arkansas it is probable that a section foreman would be considered as a mere coemployé, and in the same line of employment with a person assisting in operating a railroad train for the same employer; but such is not the view taken by this court. In the case of the A. T. & S. F. Rld. Co. v. Moore, 29 Kas. 633, 644; same case, 11 Am. & Eng. Rld. Cases, 243, 251, the section foreman, or section boss, as he is there called, is mentioned as a representative of the railroad company as between the railroad company and the train-men; and in that case as there reported, and in a subsequent decision of the same case, re ported in 31 Kas. 197; 15 Am. & Eng. Rld. Cases, 312, it was held that the roadmaster, as between a railroad company and the train-men, is the representative of the company, and that the company is liable to such train-men for the negligence of the roadmaster. (See also note to.last-mentioned case, 15 Am. & Eng. Rld. Cases, 315. See also the following cases, following in the same line: H. & St. J. Rld. Co. v. Fox, 31 Kas. 586; same case, 15 Am. & Eng. Rld. Cases, 325; A. T. & S. F. Rld. Co. v. Holt, 29 Kas. 149; same case, 11 Am. & Eng. Rld. Cases, 206. Also, in the same line, see the following cases: Lewis v. St. L. & I. M. Rld. Co., 59 Mo. 495; Dale v. St. L. K. C. & N. Rld. Co., 63 id. 455; Hall v. M. P. Rly. Co., 74 id. 293; Vautrain v. St. L. I. M. & S. Rly. Co., 8 Mo. App. 538; L. & N. Rld. Co. v. Bowler, 9 Heisk. 866; Hardy v. N. C. C. Rld. Co., 74 N. C. 734; Hardy v. C. C. Rld. Co., 76 id. 5; Davis v. Rld. Co., 55 Vt. 84; same case, 11 Am. & Eng. Rld. Cases, 173; C. & N. W. Rld. Co. v. Swett, 45 Ill. 197; O’Donnell v. A. V. Rld. Co., 59 Pa. St. 239; Cook v. St. Paul, M. & M. Rly. Co., 24 N. W. Rep. 311; Kelly v. E. T. & T. Co., 25 id. 706; Copper v. Louisville &c. Rly. Co., 2 N. E. Rep. 749; Paulmier v. Erie Rld. Co., 34 N. J. L. 151; H. & T. C. Rly. Co. v. Dunham, 49 Tex. 181; Snow v. Housatonic Rly. Co., 90 Mass. 441; Brickman v. S. C. Rld. Co., 8 S. C. 173; Col. C. Rld. Co. v. Ogden, 3 Col. 499; Thayer v. St. L. A. & T. H. Rld. Co., 22 Ind. 26; Ind. Car Co. v. Parker, 100 id. 181; Atlas Engine Works v. Randall, 100 id. 293; Central Rld. Co. v. Mitchell, 63 Ga. 173; same case, 1 Am. & Eng. Rld. Cases, 145; Hough v. Rly. Co., 100 U. S. 213.)
There are two classés of cases in which the employés of the same master are not such coémployés that one of such employés may not recover for injuries caused by the negligence ot another employe while ail are engaged in transacting some portion or portions of the common master’s business. The first class is where the negligent employé is one who has the general management of or control over some portion or line of the master’s busi ness, and has control over the injured employé and the other employés engaged in that portion or line of business. A good illustration of this class is found in the case of C. M. & St. P. Rld. Co. v. Ross, 112 U. S. 377; same case, 17 Am. & Eng. Rld. Cases, 501. This is an extreme case, however, and is in conflict with the weight of authority in this country. See, also, and as another illustration of this class of cases, the case of the L. & N. Rld. Co. v. Bowler, 9 Heisk. 866, where it was held that the section boss and his subordinates were not fellow-servants with each other. This is another extreme case. These cases are not controlling in this case, however, even if they properly state the law; for although the section foreman in this case hired, controlled and dischai’ged his subordinates, yet the plaintiff was not one of his subordinates and did not work with him or under him. The other class of cases where the employés of the same master' are not considered such coemployés that the master will be liable to one employé for the negligence of another employé, is where two or more sets of employés are engaged in different lines of employment; as, for instance, where one set of employés has charge of a railroad train and its operation, while the other set is to keep the road in proper condition and repair. Numerous cases illustrating this class of cases have already been given. See last preceding page. It was said in the case of the A. T. & S. F. Rld. Co. v. Moore, 29 Kas. 644, as follows:
“It [the railroad company] was simply bound, through certain of its employés—the roadmaster and section boss, for instance—to use reasonable and ordinary care and diligence to keep its road in proper condition; and such employés, with respect to those who operate the road, represent the company, and indeed are the same as the company. In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable-care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow-servants to work with him; and when the master has properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow-servants and'coemployós. And at common law, whenever the master delegates to any officer, servant, agent, or employé, high or low, the performance of any of the duties above mentioned, which really devolves upon the master himself, then such officer, servant, agent, or employé stands in the place of the master and becomes a substitute for the master, a vice-principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence.”
In the present case the roadmaster, the division roadmaster and the section foreman and his assistants were in one line of duty, while the train-men were iu another and a different line of duty, and each set within its own line of employment represented the master as to the other set; and the members of one set wrere not the mere. fellow-servants with the members of the other set. The principal ground upon which the doctrine has been established that the master is not liable for any negligence that might take place as between mere fellow-servants is, that such fellow-servants work together in thé same line of employment, are intimately acquainted with each other, and knowing each other better than the master could possibly know any one of them, they take all risks of negligence on the part of their fellow-servants; that if any servant chooses to work with a known incompetent or negligent fellow-servant, without informing the master, he himself should take all the risks and consequences of his fellow-servant’s negligence and incapacity, the master being required only to use reasonable and ordinary care and diligence in the original employment and the subsequent retention of only such servants as are competent aiid habitually careful. (Dow v. K. P. Rly. Co., 8 Kas. 642, 646.) -But where employés work in different lines of employment, one having no means of knowing anything about the business or qualifications of the other, and being wholly unacquainted with the other, they cannot be said to be fellow-servants within .the meaning of the foregoing rule; and this state of things fairly represents the condition of a railroad section foreman and an engineer on a freight train, and the relation existing between them. Therefore, where a railroad company delegates, directly or indirectly, to a section boss or section foreman the duty of keeping a certain section of the railroad in proper condition and repair, and to warn train-men in case of danger, and the section boss fails to perform his duty in these respects, and a train-man is injured by reason of such negligence, the railroad company is responsible.
It is claimed that the court committed error in the conduct of the trial of this case in many particulars. One of the first errors of this kind complained of is, that the court admitted the testimony of J. R. Ward, the division roadmaster, with respect to statements made by James Dun, the defendant’s chief civil engineer. These statements were made prior to the time of the occurrence of the accident, and were made while Ward was the division roadmaster for that division of the defendant’s railway, and while Dun was the defendant’s chief civil engineer. The statements of Dun were brought about in the following manner: Dun asked Ward if the heavy rains at any time had given Ward any trouble at the place where the accident occurred, and Ward told him that they had never had any trouble there; and Ward then made the statements complained of. The testimony of T^ard showing this, reads as follows: “He [Dun] asked me the question if the heavy rains at any time had given me any trouble there.” “I told him we had never had any trouble there with high water. He said that he had been uneasy about that place; that he had been detained there by high water when locating the road.” At the time when this conversation occurred between Dun and Ward, it was the duty of Dun to see that the railway was properly constructed, and it was the duty of Ward to see that that division of the railway was in proper condition and repair; and this conversation was really a consultation, a conference concerning matters within the line of their duty, the conversation itself was within the line of their duty, and the declaration of Dun formed a part of the consultation, a part of the res gestee. The purpose of introducing this evidence was to show that the railway company had notice of the character and condition of its railway and of the danger at the place where the accident subsequently occurred; and as it was the duty of the chief engineer and the division roadmaster to see that the road was safe and in proper condition, notice to them was notice to the defendant. Authorities showing that the declarations of agents, not made while in the performance of the agent’s duty nor forming any part of the res gestee, have no application to this case. The following cases we think have application to this case: Brehm v. C. W. Rly. Co., 34 Barb. 257, 275; B. & O. Rld. Co. v. State of Maryland, 19 Am. & Eng. Rld. Cases, 83; L. N. A. & C. Rly. Co. v. Henley, 88 Ind. 535, 539; same case, 12 Am. & Eng. Rld. Cases, 301-304; Baldwin v. St. L. K. & M. Rly. Co., 25 N. W. Rep. 918; Locke v. S. C. & P. Rld. Co., 46 Iowa, 109; M. D. T. Co. v. Leysor, 89 Ill. 44; Col. Gen. Rld. Co. v. Ogden, 3 Col. 499; McGenness v. Adriatic Mills, 116 Mass. 177; National Bank v. Stewart, 5 S. C. Rep. 845; C. B. U. P. Rld. Co. v. Butman, 22 Kas. 640, 642; K. P. Rly. Co. v. Little, 19 id. 267, 272. We cannot say that the court below erred in permitting the statements of Dun to be given to the jury.
It is further claimed by the defendant below, plaintiff in error, that the court below erred in permitting the plaintiff below to impeach one of his own witnesses. It is possible that the court below committed a slight error- in this respect, but still a matter of this kind is so largely within the sound judicial discretion oi the trial court. that we cannot say that any reversible error was committed in the present case. There was no attempt to impeach the witness generally, or to impeach his evidence generally, but the only attempt -was to show that he had made a statement out of court, and by a letter to the plaintiff, which was different from his testimony upon a particular subject in court. The supposed error arose as follows: D. Workman was the fireman on the plaintiff’s engine at the time the accident occurred. The plaintiff introduced him as a witness for the purpose of proving that the train was not moving at the time the accident occurred at a speed greater than from twelve to fourteen miles an hour, but he testified that the train was moving at that time at the rate of from fifteen to eighteen miles an hour. The plaintiff then, for the' purpose of impeaching this testimony, introduced a letter from Workman to the plaintiff, in answer to a letter from the plaintiff to Workman, in which first-mentioned letter Workman stated that the train was moving at the time only at the rate of from twelve to fourteen miles au hour. The plaintiff had also taken the deposition of Workman, in which he testified that the train was moving only at the rate of from ten to fourteen miles au hour; but as Workman was present at the trial the plaintiff could uot introduce the deposition as original evidence. If the court erred at all, it was in not requiring the plaintiff to show by stronger evidence than he did that the plaintiff was surprised at Workman’s testimony. But taking all the testimony together, and the fact that this testimony is of but little importance in the case, we cannot say that the court below so abused its discretion or committed such material error in permitting the plaintiff" to impeach his own witness, that the judgment of the court below must be reversed therefor.
The plaintiff in error, defendant below, also claims that the court below committed error in permitting the plaintiff to introduce evidence showing that the defendant, after the culvert was washed out, put in another culvert or bridge of greater dimensions, go as to permit a greater amount of water to pass through. The defendant can hardly claim that this was a material error, for the defendant also proved the same fact. And if error at all, it was a very slight and trifling one under all the facts of the case. But was it error? The making of the passage-way larger than it had formerly been was an admission, slight it may be, and of but little- value, but still an admission, on the part of the defendant that the passage-way - had previously been too small. And why might not the jury consider such evidence for what it was worth? Many authorities sustain the introduction of this kind of evidence. (St. J. & D. C. Rld. Co. v. Chase, 11 Kas. 47; A. T. & S. F. Rld. Co. v. Retford, 18 id. 249; City of Emporia v. Schmidling, 33 id. 485; W. C. & P. Rld. Co. v. McElwee, 67 Pa. St. 311, 314; K. P. Rly. Co. v. Miller, 2 Col. 443, 468, 469; O’Leary v. City of Mankato, 21 Minn. 65; Phelps v. City of Mankato, 23 id. 279; Kelley v. S. M. Rly. Co., 28 id. 98; Brehm v. C. W. Rly. Co., 34 Barb. 256; Westfall v. Erie Rly. Co., 5 Hun, 75; Sewell v. City of Cohoes, 11 id. 626; Harvey v. N. Y. C. & H. R. Rld. Co., 19 id. 556; Readman v. Conway, 126 Mass. 374.) It is evidence in the nature of an admission from conduct; and many illustrations of such kind of evidence might be given. It is frequently resorted to in criminal cases. The evidence of this change in the dimensions of the water-way does not oi itseii prove negligence; it does not prove that the railway company had notice of the insufficiency of the culvert prior to the accident, nor that it might have had such notice by the exercise of reasonable diligence, nor that it did not exercise such diligence. It at most only tended to prove by way of admission and as a fact that the culvert was too small, and that the company obtained knowledge of the same, not before, but after the accident. Of course the change of any structure or appliance, to be of any value as evidence, must be made soon after the accident, and seemingly have some connection therewith. This is so held by some of the following authorities, while others of the following authorities hold that the evidence is wholly incompetent under all circumstances: Salters v. D. & H. Canal Co., 3 Hun, 338; Payne v. T. & B. Rld. Co., 9 id. 526; Baird v. Daly, 68 N. Y. 547; Dale v. D. L. & W. Rld. Co., 73 id. 468; Morse v. M. & St. L. Rly. Co., 30 Minn. 465; same case, 11 Am. & Eng. Rld. Cases, 168; Cramer v. City of Burlington, 45 Iowa, 627; Hudson v. C. & N. W. Rld. Co., 59 id. 581. We do not think that the court below committed error in admitting the foregoing evidence.
„„ „ , tiXandeep We do not think that the court below committed materia^ error, or any error, in refusing to permit evidence to be introduced with regard to the speed-register. It was not sufficiently identified, nor was any sufficient preliminary evidence introduced to authorize its introduction. Neither do we think that any of the instructions to the jury were materially erroneous. If we should put the same construction upon some of the instructions given to the jury as the plaintiff in error, defendant below, does, we should have to hold them erroneous. The plaintiff in error claims that by some of the instructions a railway company is required to guarantee the sufficiency, good order and good condition of its track and road merely requires that railway companies shall exercise reasonable and ordinary care and diligence to keep their tracks and roadways in a reasonably safe condition. (A. T. & S. F. Rld. Co. v. Wagner, 33 Kas. 660; same case, 2.1 Am. & Eng. Rid. Cases, 637; A. T. & S. F. Rld. Co. v. Ledbetter, 34 Kas. 326; same case, 21 Am. & Eng. Rld. Cases, 555.) But taking the entire charge of the court, it is evident that the court did not intend to instruct the jury as the plaintiff in error claims. On the contrary, we think the court intended to instruct the jury that the law is just as we have stated it to be. But even if the court had instructed the jury as the plaintiff in error claims, still, under the findings of the jury, the error would be immaterial; for the jury found that the injuries resulted not only from the negligence of the defendant below in the improper construction of the water-ways, but also in the negligent failure of the section foreman to pass over his section of the railway before the accident occurred, and to warn the train-men of the danger; and as before stated, it ÍS’ the opinion of this court that the railway company is responsible to the train-men for the negligence of the section foreman. . Neither do we think that it makes any difference that the defendant did not originally construct its railway. It is true of a great many railroad companies, that they do not construct their own roads; but nevertheless, a railroad comPauy must exercise reasonable and ordinary diligerice maice jts road safe^ whether it originally constructed the road, or purchased it, or leased the same. Neither did the court commit any material error in refusing to give instructions. Some of the instructions asked for by the defendant and refused, are not good law, or proper in the case. Some of them were substantially given in' the-general charge of the court, and some of them were rendered wholly immaterial by the special findings of the jury. All the material findings of the jury were sustained by sufficient evidence; and while we might agree with the plaintiff in error, defendant below, that the verdict of the jury is excessive, yet it is not sufficiently excessive to authorize a reversal of the judgment of the court below, when the trial seems otherwise to have been fair.
The judgment of the court below will be affirmed.
Johnston, J., concurring.
Horton, C. J.
:• I place my affirmance of the judgment of the district court, in this case, upon the following grounds: The petition of Weaver alleges, among other things, that his injury was caused by the carelessness and negligence of the section foreman of the railway company in failing and neglecting to go over the railroad track after a heavy and severe storm which occurred along the road on the night of the 18th of May, 1883, to ascertain whether any damage had been done thereby to the road-bed, and for failing and neglecting to notify Weaver and other employés of the railway company upon the train with Weaver of the wash-out, as it was his duty to do, and which, in the reasonable discharge of his duties, he should have done, and which, if so done, would have prevented the injury inflicted. The evidence shows that Charles Downing was the section foreman in charge of the road-bed where Weaver was injured. He had been in charge of his section from six to nine months. There was a severe rain-storm on the night that Weaver’s engine was derailed, some of the witnesses stating that the rainfall was unprecedented. It commenced raining at Downing’s section-house about five o’clock in the evening, and rained up to eleven or twelve o’clock—perhaps later. The storm ceased before two o’clock. The injury occurred abopt- three o’clock in the morning. The road-bed where Weaver’s engine was derailed was washed out for a great distance. The section-house where Downing, the section foreman stopped, was three or four miles from the wash-out. In the section-house the foreman and two section-men slept, and at this house there was a hand-car, lanterns, torpedoes, signals and tools for inspecting and impairing the track, and implements for giving signals to trains, etc. C. W. Rogers, the general .superintendent of the. railway company, testified that the general orders of his company in relation to section foremen going over the road were that “they were to precede every passenger train, and in case of heavy or extraordinary storms, to go over the road carefully before any train.” Among other rules upon the time-card of the railway company, were the following:
“During the continuance, and after storms of rain, wind, or snow, section foremen will always be required to see that the track is not obstructed by fallen trees, driftwood, brush, stones, etc., and to precede each passenger train run in the night by sending two or three men over their section with their handcars and lights to see that the track is clear, and if necessary, notify trains of any obstruction or defect. This rule will be strictly enforced against section foremen.”
“All persons employed upon the road must give timely notice of any obstruction to the passage of trains, by exhibiting a flag, etc., and must notify all passing trains.”
The jury found, upon the evidence before them, that Downing had charge of keeping the track in repair where Weaver was injured; that he could have gone from his section-house to the place of the wreck in twenty minutes and discovered the wash-out; that it was his duty, in time of heavy rains, to inspect the road and report to the train-men and officers of the road any defects therein; that he neglected and failed to go over the road during and after the severe storm which prevailed before the. engine was derailed, and neglected and failed to give the men on the train notice of • the wash-out. If Downing had performed his duty and gone over the road before the arrival of the train drawn by Weaver’s engine, he would have had knowledge of the wash-out and could have put out danger signals so. as to have stopped the train, and thereby prevented the wreck. The derailment of the engine, the wreck of the train, and the injury to Weaver, were caused by Downing’s negligence. He, as the section foreman, did not bear the relation of fellow-servant or mere coemployé in the same line of employment with Weaver, the engineer. He represented the railway company, and the company is responsible to Weaver for the injuries which, through his negligence, were inflicted upon him. If a section foreman, under the decisions of Arkansas, where Weaver was injured, is regarded as a servant or coemployé in the same employment with' the engineer operating an engine, such decisions should have been introduced in evidence, as stated in the above opinion. In the absence of any evidence of such a construction of the common law by the Arkansas courts, this case must be disposed of upon the interpretation given in' this -state to the rule of the common law. The burden of proof that Weaver was guilty of contributory negligence'was upon the railway company. Upon this question, the findings and judgment were against the company. There is evidence to support these findings, and therefore it cannot be said that Weaver was guilty of negligence. | [
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The opinion of the court was delivered by
Johnston, J.:
On January 2, 1885, S. Karsch filed a bill of particulars before a justice of the peace of the city of Wichita, demanding judgment against A. L. Petrie for $87.35, upon which summons was issued, returnable upon the 6th day of January, 1885. On the return-day the case was continued at the instance of the defendant, but whether it was adjourned until the 16th of January, or only until the 15th of the same month, was a matter of dispute. The justice made an entry upon the docket that the case was continued until the 15th day of- January, 1885, and on that day, the plaintiff failing to appear, judgment was rendered against him dismissing the cause. On the following day the plaintiff appeared, and finding that a judgment of dismissal had been entered, moved the court to set it aside, and in support of the motion filed an affidavit stating that “on or about the 6th day of January, 1885, he, as plaintiff' went to Justice Hobb’s court to try his case against A. L. Petrie, defendant; that at the request and upon the testimony of said defendant, the said justice continued the case until Friday, the 16th day of January, 1885; that agreeably to the said order of the said justice, this plaintiff attended the court of said justice on the said 16th day of January, 1885, for the purpose of trying his said case; that thereupon he ascertained that said suit had been dismissed at his cost, on the 15th day of January, 1885, which date was at least one day before the time to which said suit was continued by said justice.” Upon this application, which was made with notice to the defendant, the order and judgment of the justice dismissing the cause was set aside. The defendant not being present on January 16th, the cause was continued until the 20th day of January, and notice was given to the defendant of the action of the court in setting aside the judgment of dismissal, and of the time when the cause would be tried. On January 20th, 1885, the defendant failed to appear, and the cause was tried and judgment rendered in favor of the plaintiff. The case was then taken on petition in error to the district court, where the judgment of the justice was affirmed, and Petrie now brings the case here.
The plaintiff in error contends that the justice of the peace erred in setting aside the judgment of dismissal and reinstating the cause upon his docket for trial on the application of the plaintiff, claiming that there is no provision of the statute authorizing him to set aside the judgment and grant a newr trial upon auy of the grounds stated in the application. The motion to set aside the judgment of dismissal entered on the 15th day of January is not to be treated as an application for a new trial under the provisions of the justices code. Those provisions proceed upon the theory that the verdict or judgment has been given at the time when the cause could be tried, but in this instance it appears that the cause was taken up and disposed of when it was not triable. Although the justice made an entry that the cause had been continued until the 15th day of January, we are bound to assume from the record that the entry was a clerical error, and that the cause was actually continued until the 16th of January. The "affidavit filed in support of the plaintiff’s application, in terms stated that the justice continued the cause until' Friday, the 16th day of January, 1885, and that the cause was- taken up and dismissed one day before the time to which -it had been continued by the justice. The ruling of the justice in allowing the application, supported by the affidavit, is in effect a finding that the facts therein stated were true. It follows, then, that the justice had no authority whatever to try the case without the consent of the parties before the 16th day of January, 1885. He had no more authority to take up and dispose of the case before the day to which it was adjourned, than he would have had to try the case before the day named in the summons for the appearance of the-defendant. As the case was actually continued until the 16th day of January, it was proper for the justice, either upon his own motion or upon the application of either party, to correct the record and make it speak the truth with respect to the adjournment, and to set aside and strike from the record the order made upon January 15th, when the cause was not before the justice for disposition. The'cause having been adjourned until the 16th day of January, it was the duty of the justice to proceed with the trial upon that day, regardless of the erroneous entry and of the' attempted order of dismissal. Upon that day the cause was continued until the 20th of January, and the plaintiff in error was notified of the correction which had been made, and of the time of trial, and he therefore has no cause for complaint.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
An information charging Orson Buno with the offense of grand larceny was filed in the district court of Ellis county, and he was required to enter into a recognizance in the sum of $1,000 for his appearance at the following term of that court. He executed a recognizance, with Edward F. Madden as surety, which was accepted, and he was released from custody. Failing to appear at the next term, the court adjudged the recognizance to be forfeited, and thereupon the county attorney brought this action against the surety, Edward F. Madden. The cause was tried with a jury, and verdict and judgment were given in favor of the state for the amount named in the recognizance.
Objections are made that the verdict and findings of the jury are not sustained by sufficient evidence, and also to the rulings of the court on the admission of testimony. It is first contended that certain allegations in Madden’s answer should have been taken as admitted, because the reply of the state to such answer was not properly verified. The petition contained the requisite allegations for a recovery upon a forfeited recognizance. In his answer Madden admitted signing the recognizance, but alleged that it was then incomplete, and what is commonly known as a blank recognizance; that the blank spaces left therein for the name of the county, the offense charged, the amount in which he was held, and the court before which he was required to appear, were at that time unfilled; and that he signed it upon the condition that John Duncan or his wife should join him in the execution of the recognizance, and when so executed, that Duncan should fill up the blanks in the recognizance, and that he was not to become liable thereon unless it was so signed and executed. He alleges that the recognizance was not signed by Duncan or his wife, nor were the blanks filled up by Duncan, and therefore that he never executed or delivered the bond upon which he was sued. In reply, the county attorney filed a general denial signed by himself and verified by Charles Miller, who swears that he has read the reply, and that the allegations thereof are true. It is claimed that this is not in conformity with the requirement of the code, as it is not stated therein that the affiant Miller had knowledge of the facts sworn to by him, nor does it state that he is the agent or attorney of the plaintiff, nor any other fact conferring authority upon him to verify the reply. It is unnecessary to consider or determine whether the verification as made was sufficient, for the reason that a verified x’eply was wholly unnecessary. The new matter alleged in the defendant’s answer did 4 0 , not fall within the provisions of § 108 of the code. It is in substance and effect a denial that the bond sued on had been executed by him, and the plaintiff was not seeking a recovery upon any other. The defendant did not ask for any affirmative relief upon the instrument which he claims ■ to have signed, and his averments respecting it only put in issue the execution of the recognizance upon which the action was brought.
Upon the sufficiency of the testimony there can be little question. It is true that Madden testified that he was not to become liable on the recognizance unless the blanks therein were filled out by John Duncan, and the recognizance signed by either Duncan or his wife. But on the other side, there is the evidence given by the sheriff, strongly corroborated by the testimony of other witnesses, that no such conditions were imposed or mentioned. They state that the recognizance was signed but not completed at the court house in the presence of the sheriff and prisoner, from which place they soon afterward went to the store of a Mr. Gates, who transferred to Madden a considerable sum of money belonging to the prisoner, to indemnify him on the liability which' he assumed in signing the recognizance, and that after he had been so indemnified he directed the sheriff to fill up the blanks and complete the execution of the recognizance. The justification was then written thereon and signed by Madden, and when the recognizance was thus completed, the sheriff accepted it and released the prisoner. This testimony was sufficient to. warrant jury gncpng the recognizance was executed by the surety prior to its delivery to the sheriff and the release of the prisoner, and sufficient to authorize a recovery thereon.
Objection is next made to the testimony that indemnity was given by the prisoner to the defendant for becoming his surety. Ordinarily, testimony that indemnity was given to the surety is immaterial in an action against him upon a forfeited recognizance. In this case, however, it was not improper. In his testimony Madden stated that he, signed the recognizance only upon the condition that Duncan or his wife should join him as a co-surety. The testimony objected to tended to contradict this statement, and to show that no such conditions were mentioned; but rather that the inducement which led to the signing of the recognizance was the transfer and delivery by the prisoner to him of forty-one head of cattle, county scrip to the value of $175, and $500 in cash. Eor this purpose we think the testimony was competent.
It is finally urged that the court erred in not allowing an answer to the following question: “Now what, if you know, kept Buuo away from here?” It is said that the answer might have disclosed the fact that he had a sufficient legal excuse for his absence; but as the issues were made up, the testimony was not competent. If the performance of the condition of the recognizance was rendered impossible by the act of God, such as sickness or death, or by the act of the state, it would have afforded a complete defense. Before this defense can be availed of, however, it must ^ pigg^g^p Tile answer alleged no such defense, nor was there any application to set it up by an amendment. In the absence of any allegation that would excuse the default, the evidence offered was not admissible.
We see no error in the record, and will therefore affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The state, on the relation of the attorney general, brings this action against “The National Association of Farmers' and Mechanics' Mutual Aid Association," charging that it is engaged in transacting a life-insurance business upon the assessment plan within this state, without having-authority or without having complied with the laws of the state respecting the business of life insurance, and praying that the defendant be ousted from the exercise of the franchise of transacting a mutual life insurance on the assessment plan in the state of Kansas, and from the right to enter into and issue contracts, certificates, and policies, substantially amounting to mutual life insurance on the assessment plan in the state of Kansas. The case was tried upon an agreed statement of facts, from whiph it appears that the defendant is a corporation organized under the laws of Missouri, which operates through state and local societies, and is composed of its charter members, officers, presidents of the state associations, and the representatives or delegates from the local societies. The local societies are composed of persons over eighteen years of age, classified as social members and beneficiary members. One of the declared objects of the corporation is—
“To promote benevolence and charity by establishing a charity fund for the temporary- relief of indigent and suffering members and their families, and to provide for the relief and aid of the families of its members, and other dependents of their deceased members, and for assisting such of its members who may be sick or disabled, from the proceeds of the assessments upon its members."
By its charter it is given power—
“To issue certificates of membership to their members, defining their rights, privileges, duties and liabilities; to create, receive, hold and disburse the funds necessary to accomplish the object of the association, and for its own sustenance and support, including the receipt of membership fees, assessments, and voluntary contributions from the members; the provision for benefits, as named in the certificate of membership, to the sick or disabled members, or to widows, orphans, or dependents of deceased members.”
Any person living within the jurisdiction of a local aid society, who is of temperate habits and good moral character, and who may be socially acceptable to its members, may be admitted as a social member; but social members are not required to pay assessments, or to contribute to the charity or beneficiary fund, and are not entitled to any benefit therefrom. Any person between eighteen and fifty-five years of age, who has been admitted as a social member, and whose physical condition comes within the rules of the association, is eligible to a beneficiary membership. In the application for such membership he is required to answer the usual questions propounded by life insurance companies regarding his physical history and health. Following the questions the application contains a proposition from the applicant to the association in these words:
“To the National Association of the Farmers’ and Mechanics’ Mutual Aid Association: I,-, a member of - local aid society from-, do hereby make application for a beneficial • certificate of membership in the F. & M. M. A. Ass’n, and agree to accept and obey the rules and regulations of the association, as the express condition upon which I shall be entitled to the benefits and advantages of the membership, and to a mortuary benefit in case of my death while a member, limited to-dollars. I certify that the answers made by me to the questions which are attached 'to this application and form a part thereof, are true to the best of my knowledge and belief, and if any material statement made in this application, and upon the faith of which my beneficial certificate will be issued, shall be found in any respect untrue, then it is herein agreed, upon my part, that my certificate shall be null and void; and it is further agreed that my membership in, and liability to, the association, and its liability to me, under the terms of my beneficial certificate, shall begin upon the approval of this application by the medical director. My beneficial certificate shall bear that date, aud continue in force as long as I conform to the rules and requirements of the association; but upon my failure to pay an assessment, as required by the rules of the association, my membership shall be forfeited, and all liability of the association to me, and my liability to it, shall cease.” [ Signed, etc.]
The applicant is required to submit to a medical examination by a physician designated by the local society, and such ■ examination must be approved by the medical director of the national association before the applicant will be admitted as a beneficiary member. He is also required to pay a membership fee of ten dollars, which must accompany the application. If the application is accepted by the association, it issues a certificate reciting that in consideration of the representations and agreements made in the application, as well as the payment of the membership fee, and also the agreement of the applicant to accept and obey the rules and regulations of the association, and to pay the assessment of one dollar when required for the purpose of paying the benefit, as provided in the certificate issued to beneficiary members, he is constituted and declared to be a beneficiary member of the association,, and as such, entitled to all the privileges, benefits and advantages prescribed by the rules and regulations for beneficiary members, and to a mortuary benefit in case of death while a member in such sum as will equal seventy-five cents for each dollar received from the assessment made for that purpose, and not to exceed two thousand dollars. The association further agrees to levy an assessment of one dollar each upon all of the beneficiary members of the association in good standing in the section to which the applicant is assigned, and when collected, to pay the benefit to' the beneficiary named in the certificate, upon due notice and proof of the death or permanent disability of the member named therein.
The avowed objects of the defendant corporation, its relations with its beneficiary members, and its methods of transacting business, as ^disclosed by the foregoing statement of facts, clearly show that it has all the characteristics of a mutual insurance company doing business on the assessment plan. It is true that it has a social department, and that in organizing and maintaining local societies composed alone of social members, it is not open to the charge 'made by the state. It is not the purpose of the state to interfere with the social features of the association, but if it does business in the state substantially amounting to insurance, the mere connection of a social department will not exempt it from the operation of the insurance law, or free it from the supervision of the superintendent of insurance. The social membership, however, appears to be little else than a preliminary step to admission into the class of beneficiary membership, and it is against the business done between the association and the latter class, of which the plaintiff complains. That the contract between the association and its beneficiary members is one of insurance, cannot be doubted. Upon the part of the member is an agreement to pay a membership fee of ten dollars when admitted, and an assessment of one dollar upon the death or permanent disability of any other member of the section to which he is assigned. In consideration of these agreements, the association, in turn, agrees that upon his death or permanent disability, it will levy an assessment upon the other and surviving members and create a mortuary fund, and seventy-five per cent, of the amount so collected shall be paid to the beneficiary named in the certificate of such member, providing it does not exceed the amount of ' x ° . the benefit- mentioned m the contract. Thus it will be seen that they stand toward each other in the relation of insured and insurer, and that the business transacted between them is that of codperative or mutual insurance, and falls clearly within the decision of this court in the case of The State, ex rel., v. Insurance Co., 30 Kas. 585.
It is admitted by the defendant corporation that it has not complied with the requirements of chapter 131 of the Laws of 1885—the statute regulating the organization and control of mutual life insurance associations. It is claimed, however, that the association comes within the exceptions named in § 30 of that act. It reads as follows:
“This act shall apply to all associations or corporations now or hereafter organized in this state, or.admitted into this state, to transact any life or accident business on the assessment plan: Provided, This act shall not apply to any association of religious or secret societies now existing or under the supervision of a grand or supreme lodge, nor to any class of mechanics, express, telegraph or railroad employés formed for the mutual benefit of the members thereof and their families, exclusively.”
It is not contended that the association falls within any of the classes last mentioned in the proviso, but it is claimed that it comes within the exceptions first mentioned therein. The claim cannot be sustained. It is not an association of, or made up from, religious or secret societies that were in existence when the law was enacted. There is no pretense that it is a religious society, and although it is claimed to be a secret society, nothing brought up in the record indicates that there is any secresy in the purposes of the association, or in the manner of accomplishing the same. No part of the business done, or of the exercises engaged in, is concealed from the public, and it does not appear that there are any ceremonies, grips, signs, or passwords, such as are peculiar to secret societies. It is further contended that the defendant falls within the other branch of the proviso, viz.: That it is an association under the supervision of a grand or supreme lodge. Counsel says that because the national association holds annual meetings at which the local societies have the right to be represented, and that in these conventions the national association legislates and transacts business for the entire membership, and prescribes rules for the government of the local societies, it comes within the exception of the statute, and must be regarded as a grand or supreme lodge. This interpretation is inadmissible. The legislature must be held to have used the words “ grand, or supreme lodge” in their ordinary and popular sense, and so used, they apply only to secret organi zations or supreme bodies constituted from and having jurisdiction over secret societies. The word “lodge,” used in the connection that it is here, is defined by Webster to be “a secret association, as of the Freemasons, Odd Fellows, and the like.” There is nothing in the act showing that any different or broader signification of these words was intended by the legislature; and as the defendant is not a secret organization, or composed of secret societies, it is therefore not an association “under the supervision of a grand or supreme lodge.”
Some argument is made that the act is invalid, so far as it attempts to interfere with the right of the defendant corporation to organize its local societies in this state, but we find no reason in it, or in the cases cited by counsel, to create a doubt respecting the validity of the statute. The defendant is a corporation organized under the laws of Missouri, and has no inherent right to recognition or to transact business within the limits of this state. It can only come and transact business here upon such conditions as the legislature may prescribe, (Phoenix Ins. Co. v. Welch, Supt., 29 Kas. 672,) and it needs no argument to show the right of the state to regulate the business of insurance within its limits, which is done by companies organized either within or without the state. w
Judgmeut will be rendered in favor of the state, and in accordance with the prayer of the petition.
All the Justices concurring. | [
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Per Curiam:
This action was brought by the plaintiff tó enjoin the issuance of a tax deed to the defendant, Mrs. A. H. Sawyer. In the year 1871, the land claimed by the plaintiff was subject to taxation, and she paid the taxes thereon. In May, 1872, the land was wrongfully sold by the county treasurer of Shawnee county, for the taxes of 1871, to Walter B. Beebe, and a certificate of sale issued to him. Beebe paid the taxes on the land for the years 1872, 1873, and 1874, and had the same indorsed on his certificate. In May, 1875, a deed was issued by the county clerk to Beebe on his certificate of sale issued in May, 1872. Afterward, in May, 1878, the board of county commissioners discovered that the sale of the land in May,. 1872, was invalid, and therefore by order set aside the deed and caused the money paid therefor, together with the subsequent taxes, charges and interest, to be refunded to Beebe. In 1878, the county clerk again assessed the land for taxes for the years 1872, 1873, and 1874, and placed the same on the tax-roll. The regular tax for 1878 was paid. In September, 1879, the county treasurer sold the land for the taxes of 1872, 1873, and 1874, and issued tax certificates to the purchaser of the same. These certificates are held by Mrs. A. H. Sawyer.
The payment by Beebe of the taxes of 1872, 1873 and 1874 was upon a mistake of fact, and upon an invalid sale, and therefore they were properly refunded to him, under the statute. (Sec. 146, Comp. Laws, p. 968.) Plaintiff admits that she is the owner of the land; that it was subject to taxation for the years 1872, 1873, and 1874; that it was ■ properly assessed for those years; that she has not paid any part of the taxes, and does not offer to pay the same or any part thereof. The action of injunction is equitable, and the principles of equity will control it. Under the admitted facts, it cannot be said that plaintiff has presented any equitable cause for the interference of the court in her behalf. (City of Lawrence v. Killam, 11 Kas. 499; Challiss v. Comm’rs of Atchison Co., 15 id. 49; Saxton v. Harris, 19 id. 511; Knox v. Dunn, 22 id. 683; Harris v. Drought, 24 id. 524; Belz v. Bird, 31 id. 139.)
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
The motion of'Ahe defendants in error to dismiss this petition in error must.be overruled, and the judgment of the court below must be affirmed. We shall not discuss the motion, however, but will pass at once to the merits of the case.
It appears that M. A. Myers owed $165 either to A. B. Noble or to Sarah A. Noble, and to which he owed this sum is the main question involved in this case. The question arises as follows: O. J. M. Borden commenced an action against A. B. Noble before a justice of the peace of Harvey county, and garnished Myers as the debtor of A. B. Noble; and Myers answered, and was ordered by the justice of the peace to pay the aforesaid $165 into the justice’s court as a debt due from Myers to A. B. Noble. Mrs. Noble, however, claims this money; and Myers, not knowing to whom it belonged, or to whom he should pay it, or to whom he was bound, and wishing to leave the state, entered into an agreement with the Nobles and the defendants in this action that he should pay it to C. S. Bowman, and that Bowman should retain it until the question should be finally decided by a judicial determination whether the money belonged to Mrs. Noble, or to A. B. Noble, or to O. J. M. Borden, the plaintiff in the garnishment proceedings. The money was in fact paid to Bowman, and he, as principal, and James H. Anderson, William H. Bean and B. C. Arnold as sureties, executed to Myers and the Nobles the obligation sued on in this action, to insure the faithful fulfillment of the foregoing agreement. Borden was not a party to this agreement or to; the obligation aforesaid, nor did he agree to release Myers as garnishee, or to look to the fund in Bowman’s 'hands as security for his claim against A. B. Noble; and of course unless Borden’s claim against A. B. Noble has been satisfied, or Myers in some way released by Borden, Myers is still liable to Borden as garnishee, if he ever was so liable; and nothing has been shown in this case that would in any manner have the slightest tendency to release Myers. It is true, the defendants offered to prove that Bowman paid the money into the justice’s court for Borden, but the®plaintiff objected, and the evidence was excluded by the court. It is also true that the plaintiff commenced an action in the district court of Harvey county against Borden and others, to have the question determined as to whom the fund in Bowman’s hand belonged or should be paid, and the district court decided that it belonged to Mrs. Noble; but it is also admitted that that case was brought to the supreme court, and that the judgment of the district court was reversed. (Borden v. Noble, 26 Kas. 599.) And what has become of that case since it was decided in the supreme court, we are not informed, and no party now makes any claim under it. And there is no claim how that any final adjudication with regard to the money in Bowman’s hands or with regard to the liability of Myers to Borden, or to A. B. Noble, or to Mrs. Noble, for .that amount, has ever been had. Therefore, so far as' anything is shown in this case, Bowman still has the possession of the aforesaid money; Myers is still liable to Borden as garnishee for that amount, if he ever was so liable; and the status of the parties and their relations toward each other still remain precisely the same as they were on the 27th day of October, 1877, when the obligation sued on in this action was first executed, and on the day when the fund now in litigation was first paid by Myers to Bowman. We therefore think it follows that the rights and interersts of the parties still remain the same as they were on the first day the obligation sued on in this action was executed by the present defendants, as obligors, to Myers and A. B. Noble and Mrs. Noble, as obligees, to secure the payment of the fund deposited by Myers with Bowman, to the person to whom it might finally be decided to belong; and Myers certainly has as much right to claim that the fund shall be applied in such a manner as best to protect his rights and interests as either A. B. Noble or Mrs. Noble has to claim that the money shall be paid to him or her. And so long as Myers is liable to Borden as garnishee, and presumably he is still liable, this fund which he placed in Bowman’s hands should not be paid to either A. B. Noble or Mrs. Noble until it shall be finally settled or determined in some manner that Myers is no longer bound to pay the same to Borden or to pay the same into the justice’s court for the benefit of Borden. Such a settlement or determination has never yet been had. Indeed, as before stated,’ nothing has transpired since the execution of the obligation and since the payment of the money by Myers to Bowman that would render the present defendants, the obligors mentioned in the bond sued on in this action, liable; and if they are now liable for any reason, then they were liable for the same reason at the very first instant when they executed the bond. Now. it cannot be true that they intended to execute a bond which would render them liable to be sued just as soon as it was executed. It can scarcely be supposed that they intended by signing the bond to give Mrs. Noble an immediate cause of, action against them upon the bond for the $165; but if they are now liable upon the facts of this case, then they must have been liable as soon as they executed the bond, which cannot be the case. Before the defendants can be j^ld 0I1 the bond, it must be determined in some manner conclusively as against Borden and in favor of Myers, that Myers has never been liable in the garnishment proceedings of Borden, or that he has been released therefrom. Such a determination or release, judicial or otherwise, has never been had. And the decision in this present action could not amount to such a determination or release, in whose-soever favor it might be rendered, for in order that the decision in this present action should be such a determination or release, all the obligees of the bond, as well as Borden, should be parties to the action. None of them can be bound by the decision or the judgment rendered in this action unless they have been made parties thereto, which has not been done. Neither Myers, nor A. B. Noble, nor Borden, has been made a party to this action. So far as is shown in this case, if Bowman should be required to pay the amount in controversy to Mrs. Noble, or to her assignee, Louis Noble, the present plaintiff in this action, the defendants might again be required to pay the amount to one of the other obligees of the bond. They might, indeed, have to pay it to Myers, if Myers should finally' be held to be liable in the garnishment proceedings. We shall assume that Borden, could not maintain an action on the bond for the recovery of the fund in Bowman’s hands, for he was not a party to the bond, and had nothing to do with it; but still Borden may maintain an action against Myers as garnishee for the amount, and then Myers, as one of the obligees of the bond, might maintain an action against the defendants for the same. In .our opinion, so long as Myers is liable as garnishee to Borden, no cause of action can accrue in favor of either A. B. Noble or Mrs. Noble, or her assignee, Louis Noble, for the fund mentioned in the bond.
We think the judgment of the court below is correct, and it will be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
This proceeding is brought to reverse a judgment obtained against the Union Pacific Railway Company by Dr. G. F. Beatty for his services as a physician and surgeon, and for medicines alleged to have been rendered and furnished upon the employment of the railway company. It appears that on June 11, 1883, a passenger train of the railway company was derailed at a point on the Kansas Central division of the road, between Miltonvale and Clay Center, and that a number of the employés and passengers on the train were injured. At the instance of the station agent and also of the locomotive engineer of the wrecked train, the plaintiff went to the point where the accident occurred, and there found eight persons suffering from injuries received in consequence of the accident, two of whom were the employés of the company. He states that six of the cases proved to be of but minor importance, while the injuries received by three of the passengers were of a more serious nature. The three last named were taken to Miltonvale, where the doctor continued to give them medical and surgical care and attention for ten days thereafter. It further appears that while the plaintiff and the station agent were on their way to the scene of the accident, the station agent was injured by the bursting of a torpedo which had been placed on the track, and the treatment of this injury was also included by the plaintiff in his charge against the company. The plaintiff offered proof tending to show that the division superintendent of the railway company was notified of the accident and of the fact that the doctor was in attendance upon the persons who had been injured, and that he directed the station agent to take the injured persons to Miltonvale, and to continue the plaintiff as physician and surgeon in charge of them. He also attempted to prove that his employment by the station agent and engineer was subsequently ratified by the division superintendent. That the plaintiff was requested by the station agent and engineer to attend and take charge of the injured persons seems not to be questioned, but the division superintendent denied that he ever authorized them to employ the plaintiff, or in any way ratified his employment. The plaiutiff presented a bill for his services for $250, which was referred to the general superintendent of the company, who rejected the claim, and in a letter to the plaintiff gave his reasons as follows:
“Referring to your claim of $250 for services to passengers injured by train blowing off track on Kansas Central division on night of June 11, we do not consider that the company was responsible or in any fault for the accident, and as you were not employed by the railway company to attend the injured passengers, your claim is respectfully declined.”
The plaintiff recovered for his services to the passengers and employés the full amount of his claim.
At the trial in the district court, as well as here, the plaintiff below relied upon an employment by the division superintendent, and contended that that officer had authority by virtue of his office to bind the company for the medical and surgical service which he had rendered. The principal question in the case is in regard to the authority of the division superintendent in this respect. The court below, in the trial of the cause, proceeded upon the theory that.it was within the general scope of the employment of the division superintendent to contract in behalf of the company for such services as were rendered by the plaintiff.
Accordingly, the jury were instructed that the division superintendent would be presumed to have authority to employ the doctor and to bind the company for the medical care and protection which he gave to the injured passengers and employés,. until the contrary was made to appear. This was error. To support this position, the case of Pacific Rld. Co. v. Thomas, 19 Kas. 256, is relied on. The position would be correct, and the authority applicable, if the alleged employment had been made for the treatment of injured employés only, but the greater part of the claim was for the treatment of passengers. In the case cited, it was held that the division superintendent will be presumed, in the ab sence of anything to the contrary, to have authority to employ a physician and surgeon to attend an em/ploy é who has’been injured while in the service of the company, and the case of A. & P. Rld. Co. v. Reisner, 18 Kas. 458, which is also cited, goes no farther. In none of the cases to which we are referred is it held that there is any implied authority in the division or general superintendent to furnish entertainment for or to employ physicians to attend upon passengers who have become sick or have been injured without the fault of the company. There is no legal obligation resting upon the company to provide medical or surgical care for those who have been injured in its service, but the grounds upon which the authority of the superintendent to make such contracts is inferred is that it is a reasonable thing for the company to provide for the care and cure of persons who are engaged in the hazardous employment of railroading. This risk is incurred by them while they are devoting their energies and labor to promote the interest of the company, and they are generally dependent upon the daily labor thus given for the support of themselves and families. Again, they are skilled in the particular branch of the service in which they are engaged, and their injury, to some extent, interferes with the business of the company, and retards the operation of the road. The company is therefore interested in the speedy cure of employés who have been disabled, and in their early resumption of the duties for which they have been specially trained. (T. W. & W. Rld. Co. v. Roderiques, 47 Ill. 188; T. W. & W. Rld. Co. v. Prince, 50 id. 26.)
These considerations are wanting in the case of passengers who have been injured by unavoidable accident. So far as this case is concerned, we must treat and dispose of it upon the theory that the derailment of the train was purely accidental. During the trial the defendant company offered to prove that the train was thrown off the track and wrecked, and the injuries to the passengers and employés were inflicted by a tornado of wind, which was so violent and sudden that it was absolutely impossible for the company, in the exercise of the greatest possible care, to resist or withstand it, and there fore that it was not the fault of the defendant that the train was derailed. This testimony was erroneously excluded by the court, and there was no other given concerning the cause of the accident. We must therefore assume that the injury of the passengers resulted from unavoidable accident, and not from any negligence or fault of the company. Probably there are but few instances of injury to passengers riding upon railroad trains where negligence or fault cannot be traced to the railroad company, but in cases where there is no such negligence no responsibility can attach to the company, and no recovery can be had for the injuries sustained. It does not insure the lives or health of those who take passage upon its trains. The most that can be required is that it shall use the highest care in the conveyance of the passenger to his destination. There is no more obligation resting upon the company to provide medical care and treatment for passengers unavoidably injured, than for passengers who become sick during the journey over the road. In either case the full measure of the duty of the company is to carry the passenger in the condition in which he may be found to his destination. Beyond this the company has no interest in the passenger, and therefore has no such concern for his health and soundness that it has in its employés who may be injured while in its service. To furnish medical care and treatment for passengers in such cases would be a mere gratuity, and the funds of the corporation cannot be thus dispensed by the division superintendent without authority from the board of directors.
In Cox v. Midland Counties Railway Co., 3 Welsb. H. & G. 268, the station-master of the railway company at Birmingha'm, who acted there as chief officer of the passenger and other departments, employed a surgeon to perform a surgical operation upon a passenger injured by a train of the railway company, and the company contested its liability for the service on the ground that its servants had no authority to bind them by contracts of that description, and the court held that there was no liability against the company therefor, because the power to enter into the contracts was not incident either to the employment of the station-master or of the superintendent of the road. Perhaps it is true that in certain emergencies the superintendents of railroads are authorized to provide medical and surgical care for injured passengers, and to bind the railroad companies for the payment of such services, and it is probably well that such provision should be made; but in those cases it will not be difficult to show the authorization, or a recognized custom or usage of the company to furnish medical attendance to passengers injured by inevitable accident. In the absence of testimony of express authority from the company, or of a custom or usage from which authority might be implied, the company cannot be bound by such contracts made by the superintendent or his subordinates. If the injury to the passengers resulted from the negligence of the carrier, other considerations would enter into the case, which might warrant the implication of authority in the superintendent or some general agent of the company to provide medical attendance and entertainment for them; but whatever might be the rule in that case, we are of the opinion that there is no such presumption of authority in the division superintendent where the passengers are injured through no fault of the company.
It necessarily follows that there was error in the charge of the court for which a new trial must be given; and as the other questions presented by the plaintiff in error may not again arise, it becomes unnecessary to notice them here. The judgment of the district court will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Johnston, J.:
The question raised by the demurrer to the second defense is, upon what contingency does the liability of the railroad company for the debts of the contractor who constructed its road depend? It is alleged that the company took from the contractor a good and sufficient bond—such as is provided for in chapter 136 of the Laws of 1872,"but it is not averred that the bond was filed by the railroad company in the office of the register of deeds of the county where the work was done. The omission of this averment is the ground of demurrer relied upon by defendant. On the part of the plaintiff, it is urged that before the railroad company will be exempt from liability for the debts of the contractor it must not only have taken a bond, but it must also have filed the same in the office of the register of deeds; while the claim of the company is, that to escape such liability, it was only required to take a good and sufficient bond; and this it alleges it had done. We agree with the defendant. The statute is so written. Its terms are plain and unmistakable. The language fixing the liability of the railroad company is, “and if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.” (Laws of 1872, ch. 136, § 1.) Thus it will be seen that the filing of the bond is not a condition precedent to be performed by ra¡lroa(J company before it can claim immunity from the payment of the debts mentioned in the statute. It is true that in a preceding part of thé statute it is made the duty of the company to file the bond in a public office, and we might agree with the plaintiff that it would add much to the convenience of persons whp desire to avail themselves of the benefit of the bond, to have required it to be filed before the company would be freed from liability; but when the legislature came to fix the condition upon which the liability of the company should arise, it provided that it should be liable if it failed to take a bond, and not if it failed to take and file the same; and the inconvenience occasioned, or the impolicy of the statute, are not considerations for the court. We are reminded that the statute should be construed so as to advance rather than defeat the remedy intended by the legislature; but we must also remember that it is a statute imposing an additional liability under which it is sought to make the company responsible for a debt which it never contracted, and we have before decided that “such a statute should never be extended beyond the fair import of its terms.” (M. K. & T. Rly. Co. v. Baker, 14 Kas. 563.) The failure to require the bond to be filed, it is true, is an inconvenience, but it does not thwart. the purpose or defeat the remedy intended by the legislature. The debtors are secured either by the bond or by the company. If a good and sufficient bond has been taken,' the responsibility of the company ceases, and that it will conceal the bond, or the fact that it had been taken, from the persons interested, is an unlikely supposition, as it would be against its own interest, and would probably tend to subject it to embarrassment and litigation. If for any reason the company should fail to file the bond, or upon request to produce or make known what it was, the parties interested could, by taking the proper legal steps, obtain copies thereof, or compel its production. However, the legislature has expressly stated in language not open for interpretation, the conditions upon which the liability of the company depends, and the courts cannot add to them. We think the demurrer was rightly overruled.
In the third cause of defense it is alleged that the persons for whose services the action was brought were employed in the capacity of foreman, clerks, time-keepers, and teamsters, in connection with their teams. It is settled by a decision of this court, that persons in the employ of a contractor as foreman, clerks, and time-keepers, are not laborers in the sense in which that term is used in the statute, and therefore not within its protection. (M. K. & T. Rly. Co. v. Baker, supra.) None of the terms employed in the statute are broad, enough to include persons who merely furnish one or more teams to work for the contractor. The persons who fall within its protection are enumerated, and are “laborers, mechanics, and material-men, and persons who supply such contractor with provisions or goods of any kind.” The railroad company, therefore, cannot be charged with such labor, even though it be given in connection with the personal services of the owner of such teams. (Balch v. Railroad Co., 46 N. Y. 521; Groves v. Railroad Co., 57 Mo. 304.) It is different, however, regarding the personal services of the teamster. The work performed by him in driviug team> handling a plow, and loading and unloading scrapers and wagons, is such as to constitute him a laborer, within the meaning of that term as used in the statute. The principal part of the work performed by him is ordinary manual labor, and if the compensation for his work is distinguishable from that performed by the team which he drives, he may, where no bond has been taken, charge the railroad company for the same. In this case, however, it is alleged that the services performed by the teamster and his team were for an agreed price per day for the . . •, , n , , -, , TT iomt labor oi such teamster and team. He was not employed separately. The part which was performed by him was mingled and confused with that performed by the team, and the indebtedness for the same constituted a single demand. There is therefore no mode of ascertaining the amount due from the contractor for the personal services of the teamster. In a case somewhat siniilar to this it is said:
“Another difficulty in the judgment as it stands is, that it makes a new agreement between the plaintiff and the railroad contractor. The foundation of the liability of the corporation is the debt due to the laborer from the contractor. In this case the contract was entire for the labor of the plaintiff, his man, and two teams; the debt is also entire, and arises out of the performance of that contract. Now it appears to me the • defendants caunot be made liable for a part of the services when confessedly they are not for another part, the whole being performed under one entire agreement. The true obligation of the contractor was to pay for the whole as a unit, and I do not see how this can be split into two parts for the purpose of enforcing one of them against the. company. The recovery against the corporation must be according to the agreement of the contractor, and his obligation arising under it to the laborer. If the laborer has so dealt with the contractor that any portion of an entire demand is not within the statute, then his remedy is against his employer alone upon his contract.”
(Atcherson v. Troy & Boston Rld. Co., 6 Abb. Pr. Rep. 329. See also Balch v. Railroad Co., supra.)
If) upon the further trial of this cause, it is found that the agreement between the teamsters and the contractor was not an entirety, and did not constitute a single demand, but that the personal services of the teamsters are distinguishable from the labor performed by the teams, the plaintiff may recover ^01’ su0^ Perso:DaI services, provided the railroad company is liable at all. The allegations of the answerj however, make the debt due from the contractor for the teamster and his team a single demand, and therefore the ruling of the court upon the demurrer was -correct..
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The evidence produced .upon the motion for a rehearing is painfully conflicting as to what actually occurred upon the trial in the court below with respect to the conduct of the counsel for appellee; but it is not necessary to determine what is proved or disproved as to those matters. The only question before us is, whether the bill of exceptions embraced in the record has been changed since it was allowed and signed by the district court. The evidence does not establish that any change therein has been made. Under these circumstances, the motion for a rehearing must be overruled. | [
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The opinion of the court was delivered by
Valentine, J.:
This case has once before been in this court. (The State v. Horn, 34 Kas. 556.) After its return to the district court, it was again tried before the court and a jury, and the defendant was again convicted, and was adjudged to pay a fine of fifty dollars and the costs of the suit. He again appeals to this court.
On the second trial, the state introduced evidence which tended to prove that A. Stephens resided at Lenape; that he had a son William, a young man, who generally signed his name “W. Stephens;” that this young man was very well known at that place; that the two owned a drug store at Osawatomie; that the son kept the drug store, though he was frequently at home at Lenape; that A. Stephens acted as one of the commissioners in locating the road, and that W. Stephens took no part therein. It will be remembered that it was W. Stephens, and not A. Stephens, who was appointed one of the commissioners. Only one of the commissioners out of the three appointed, acted in viewing and locating the road. The state then offered in evidence the records of all the proceedings had in, or having any connection with, the location or establishment of the road, and just such records as were introduced on the former trial, but the court excluded the evidence. The state then attempted to prove that the road had become a public highway by prescription, limitation, or dedication; but about the only evidence introduced which tended tp show this is as follows: In April or May, 1868, William G. Harris, with a half-breed Indian, traveled along this road as an Indian trail. From this time on up to the present time the road has been more or less traveled. The land, however, over which this road ran, and the land in that vicinity; was at that time and for several years afterward open and unfenced, permitting people to travel where they pleased. On September 20,1869, proceedings were commenced to lay out and establish a public county road in that vicinity, and on December 6, 1869, the proceedings culminated in the attempted' establishment of this road as a county road, as stated in the case of The State v. Horn, supra. This road is the old Indian trail, and the road now in dispute. Some time after the supposed establishment of this road, but just when is not shown, the road was opened and improved by the road overseer, and has since been traveled, up to the present time. The land claimed to have been taken and appropriated as a public highway by the attempted establishment of this road, was not at that time fenced or occupied in any manner, nor was it or any of- the land in that vicinity so fenced or occupied for several years afterward, except that the railway company operated its railway over a portion of such land, ánd it does not appear that the railway company has ever acknowledged or admitted that any public highway has ever been located or established oyer the ground over which the present road runs. The land over which the present road runs was granted to the railway company’s predecessor by the act of Congress of July 1, 1862, for a right-of-way, (12 U. S. Stat. at Large, 489, et seq.;) and the road runs near ‘to and parallel with the company’s railway track. This action was commenced on August 18, 1884.
Now the question as to what the rights of the railway company are as between it and the United States, is a question which it is wholly unnecessary to decide in this case; for the case may be decided and finally disposed of as between the present parties without deciding such question. The railway company claims that under the facts of this case no public highway has been created where the present road is located, either by the foregoing proceedings, or by prescription or limitation, or by dedication; and it further claims that under the acts of congress and the Indian treaties giving to the railway company its right-of-way, no public highway could be so created. We shall assume, however, for the purposes of this case, and as the prosecution claims, that the railway company owns the land over which the road runs to such an extent and in such a manner that the road could be created and established as a public highway by legal proceedings under the statutes of Kansas, or by prescription or limitation, or dedication, notwithstanding the acts of congress and the Indian treaties, and notwithstanding the fact that the road is located on the railway company’s right-of-way and near to and parallel with its tracks. But the question then arises: Has the present road been created a public highway in any such manner, or in any manner whatever? That the road has not been created a public highway by any kind of proceedings under the statutes of Kansas, is clear beyond all question. Nor has it been created a public highway by any express dedication; for no owner of the land — neither the Indians, nor the United States, nor the railway company, nor any one of its predecessors—has ever expressly dedicated the same as a public highway; and there has never been any implied dedication, unless it is such a dedication as arises from prescription or limitation. Therefore, if such road has ever become a public highway at all, it must have become such by prescription or limitation, or a dedication in the nature of prescription or limitation; and if it has become such in this way, then it must have become such only by the authoritative use of the same by the public as a highway for at least fifteen years, with the knowledge of the owner of the land; for fifteen years in this state is the limitation prescribed by statute for the commencement of civil actions for the recovery of real property held adversely to the owner. The mere fact that individuals— many or few — may have traveled along this road or over the same for more than fifteen yeai’S, is not enough to constitute it a public highway, where the land itself is vacant and unoc •cupied, as this has been, and where no action has been taken by the public authorities to constitute the road a public highAvay, or to keep it in repair, or to maintain it as such. (Smith v. Smith, 34 Kas. 293, 301, and authorities there cited.) Individuals travel over the ground merely because it is convenient for them to do so, and generally without any expectation or design or authority to constitute the place where they travel a public highway; and by such traveling they cannot set in operation any prescriptive right,.or any right by limitation. In order to start in operation any prescriptive right, or any right by limitation, to use a piece of ground as a public highway, the public by its constituted authorities must take the actual possession of the ground and use it as a public highway. (Angelí on Highways, 3d ed., § 151.) Now if we are correct in this, then the present road was not a public highway when this action was commenced. The. public by its constituted authorities did not take possession of this property as a public highway prior to the attempted establishment of the same as a public highway, which was December 6, 1869; and probably the public by its constituted authorities did not take the possession of this property as a highway ior many months, possibly years, after that time. When it was first opened or worked by the road overseer is not shown, but it was more than fifteen years before this action was commenced. It was not fifteen years from December 6, 1869, when the attempt was made to establish this road as a public highway, to August 18, 1884, when this action was commenced. Indeed, it was not fifteen years from the time when the first legal proceedings were instituted to make this road a public highway, to the time when this action was commenced. Hence there is no room in this case for any right by prescription or limitation to operate, and under no aspect of this case can this road be considered as a public highway.
The judgment of the court below is erroneous. Errors were committed by the court below in the instructions given to the jury, and in the refusal to give instructions, and in not granting a new trial; and for these errors the judgment of the court below must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a proceeding to review an order of the Judge of the 12th District, refusing to grant a preliminary injunction. The facts as they appear in the petition are, that Robert H. Watson and wife, on the 22d of September 1872, executed a mortgage upon a certain tract of land to secure a certain note of even date given for the purchase of a wagon. The land mortgaged was acquired by Watson under the Homestead Act. The application therefor was made September 18th 1866, and the final receipt given September 19th 1872, three days before the execution of the note and mortgage. The patent however was not dated or issued until the 20th of March 1873, some months thereafter. The note was not paid at maturity. Suit was commenced, personal service had, default made, decree entered, and order of sale issued to the sheriff, who was proceeding to sell the land. Was there error in refusing to restrain the sale ? Sec. 4 of the Homestead Act, (12 U. S. Stat. at Large, p. 393,) provides, “that no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.” And it is argued that this debt was contracted before the issue of the patent, and that therefore the land could not be subjected to its payment. On the other hand, it is insisted that congress has not the power to attach any such condition to the title; that when the title passes from the general government it becomes wholly, subjected to the laws of the state which control, not only the manner and conditions of voluntary transfer, and the casting of descent, but also the conditions of judicial sale and forced alienation. Comm’rs of Miami Co. v. Brackenridge, 12 Kas., 117; Miller v. Litle, 47 Cal. In this last case the power of congress was affirmed, though by a divided court. We deem it unnecessary to examine this question, for conceding the power, it does not seem to us that congress intended by this act to place any restriction on the owner’s control of the land. The limitation was on the creditor, and not upon the debtor. While the land might not be taken from him against his will, for the satisfaction of past indebtedness, yet he was not prohibited from appropriating it, if he desired, therefor. He might convey it as freely as any other land, and for such consideration as satisfied him. His deed passed a good title, and he could not thereafter avoid that deed by showing that the only consideration therefor was past indebtedness. And if he could convey absolutely, so he could conditionally. He could use the land as security. He was in nowise limited or restricted in his power of disposing of the property. Now in this case the land is not taken in execution because of the debt simply, but because the owners voluntarily.appropriated it to the payment of such debt. Having once appropriated it for that purpose, they may not thereafter deny such appropriation. The supreme court of Iowa has had this question before them, and reached the same result. Nycum v. McAllister, 33 Iowa, 374. The California case above cited was a case of simple debt, and without any mortgage or voluntary appropriation of the land.
Probably another and entirely sufficient reason might also be given for affirming the ruling of the district judge. The plaintiffs have had their day in court. They knew then of this defense as fully as they do now, yet they failed to set it up. No excuse is given, no reason shown, why they did not make their defense in the foreclosure suit. They probably had no defense to the note, but if their present claim in reference to the land, and its freedom from liability for this debt, is a good one, they could have set it up in that suit, and thereby prevented a decree of foreclosure. There is no reason why they should have two opportunities of interposing the same defense, especially when it is one so utterly void of equity. Elder v. Bank of Lawrence, 12 Kas., 242.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Charles F. Kramer brought an action in the district court of Leavenworth county, on. a note, and to foreclose a mortgage given to secure the payment of the same. He made Richard W. Budd, Nancy E. Budd, David W. Eaves, Elisha Diefendorf, and James B. Wilson,'defendants. The caption and style or name of the court were set forth thus: “State of Kansas, County of Leavenworth, District Court lsi Judicial District, ss.” The following is a copy of said petition:
(Caption, amd Title.) “The plaintiff says on the 28th of February 1873, defendants Richard W. Budd and Nancy E. Budd executed and delivered to him their promissory note, a copy of which, and the indorsements thereon, is hereto attached, marked ‘A,’ and made part hereof. All the interest due thereon to the 28th of August, 1873, has been paid. There is now due on said promissory note $440, and interest thereon from the said 28th of August to the present time, at the rate of twelve per cent, per annum, which the defendants refuse to pay, though often requested. At the time said defendants Richard W. Budd and Nancy E. Budd executed and delivered the aforesaid promissory note, and to secure the payment of the sum of money therein mentioned, according to the tenor of said note, they executed to plaintiff their mortgage-deed, which was by him delivered to and received for record on the 28th of February 1873, at 2 o’clock p. m., . by M. C. Mast, register of deeds of the county of Leavenworth aforesaid, and by said register of deeds duly recorded in Liber 37 of Mortgages, at pages 489, 490 and 491, a copy of which mortgage-deed, with the indorsements of said register of deeds made thereon, is hereto attached, marked B/ and made part hereof. The mortgáge-deed has become absolute. The defendants Eaves, Diefendorf and Wilson each claim to own an interest in the real property described in said mortgage-deed, the exact nature of which is unknown to the plaintiff, further than that the same is inferior to the rights of the plaintiff. Wherefore the plaintiff asks judgment against defendants Eichard W. Budd and Nancy E. Budd for $440, and interest thereon at the rate of twelve per cent, from the 28th of August 1873 until paid, and for the sum of $50 attorney-fees, as stipulated in said deed, and that the mortgage be foreclosed, and the land therein described sold, as provided by law, and that defendants Eaves, Diefendorf and Wilson be required to set up and make known their interest in the real property aforesaid, and the same be adjudged inferior to the claim of the plaintiff, and for such other and further relief as the plaintiff may be entitled to.
“Howsley & Singleton, Attfys for Plaintiff.”
Then follow copies of the note and mortgage as stated above. To this petition the plaintiffs in error, Budd and Budd, demurred, on the ground that the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the court rendered judgment and •decree of foreclosure and sale, to all of which plaintiffs in error excepted. We see no error in this ruling, at least none that under § 140 of the code will avail the plaintiffs in error. That section declares that “the court, in every stage of action, must disregard any error or defect in the pleadings and proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.” Section 118 of the code requires- in an action on a note that a copy be “attached to and filed with the pleading,” while § 123 authorizes a party in such an action “to give a copy of the instrument, with all credits and the indorsements thereon, and to state that there is due to him on such instrument a specified sum which he claims, with interest.” Upon this counsel contends, first, “that § 123 is not complied with by merely attaching a copy of the instrument to the pleading, as required by §118, and that the copy required by §123 must be incorporated in, and thus made a part of the pleading, which is not done;” and second, “that the petition, after referring to the copy of the note attached to and filed with'it, wholly fails to state, in accordance with § 123, that there is due to the plaintiff on the note, from the adverse party, a specified sum, which he claims, with interest.” We do not understand the petition as do counsel. We think §123 was complied with. The note was not simply attached to the pleading, as an exhibit; it was made part of, and incorporated into it. It was as much a part of the petition as though it had been copied into the body of the instrument. The place in which it is put is nothing. The pleader in very words makes it a part of his petition. It may be technically correct to hold' that if it be a part of the petition it is not “attached to and filed with” it, and that therefore §118 has not been complied with; but certainly no “substantial rights” of the plaintiff in error are affected thereby. The petition does not, in the language of the statute, allege that there is so much due the plaintiff from the defendants. But it does allege that there is due on the note so much, and the note shows that the defendants are the makers, and owe whatever is due thereon, and that the plaintiff is the payee, and entitled to receive whatever is due. This is abundant. The mortgage also is, as the note, made a part of the petition; and when it is alleged that the defendants executed a certain instrument, which is set out in full, it is equivalent to alleging that they made all the covenants and promises contained in such instrument, and assumed all the liabilities created thereby. The mortgage being to secure the note, when the latter became due the former could be foreclosed. The name of the court, it is claimed, is not properly given. We think it amply sufficient.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Davis commenced an action against McLaughlin, and caused an attachment to be issued and levied on his goods. On motion this attachment was dissolved, and thereupon McLaughlin commenced this action to recover damages for its wrongful issue and levy. A demurrer to this petition was overruled, and of this plaintiff in error complains. The petition is not on the attachment undertaking, but alleges the issue and levy of the attachment, its dissolution, that the statements in the affidavit were absolutely false, and that McLaughlin “wrongfully, willfully, maliciously, and with intent to injure,” sued out the attachment. It is insisted, that “the petition should have averred want of probable cause for the suing out of the order, and the determination of the attachment suit.” Neither of these is necessary. A party is entitled to an attachment only when certain facts exist, not when there is probable cause to believe that they exist. Civil code, §190. If they do not exist, the attachment is wrongfully issued, and the party causing it to issue is liable for all the damages actually sustained. Nor is it necessary in such case to set out or sue on the undertaking. If the surety in the undertaking is liable, a fortiori the principal is, and that, not by reason of the undertaking, but of the act for which it was given. Nor need the determination of .the attachment suit be averred. The attachment is but ancillary to the action in which it was issued. It stands or falls without affecting the progress or termination of that suit. A party may have a just cause of action, but no right to an attachment; nor can he justify a wrongful attachment by a valid action. Hence the claim for damages for a wrongful attachment does not depend upon and need not wait for the termination of the action. In this petition, it is true, there are allegations appropriate to an action for malicious attachment, and unnecessary in one for a mere wrongful attachment. But all these may be ignored, as surplusage. There is not enough to make out the former action, but ample for the latter. Of course, being simply an action for a wrongful attachment only 'actual damages can be recovered, and the court will on the trial exclude from the jury all those other considerations which may properly be submitted in cases of malicious and willful wrong. The order will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Statement ofcase. On the 7th of July, 1868, Peter Clippinger and wife executed a deed to Aaron W. Manchester of a tract of land. The material portion of the deed is as follows: Said grantors “have bargained, sold and quitclaimed, and by these presents do bargain, sell and quitclaim, unto the said Aaron ~W. Manchester, his heirs and assigns forever, all our right, title, interest, estate, claim and demand, both in law and in equity, as well in possession as in expectation, * * * with all and singular the hereditaments and appurtenances thereunto belonging, and we also do promise to defend the property against all claims, if any should come up against said property.” On the 24th of May 1870 Manchester and wife executed a warranty deed of said premises to plaintiff. Plaintiff, in January 1874, filed his petition, setting out the execution of these deeds, and averring that at the time of defendant’s conveyance he was not seized in fee simple of said lands, and had not defended the same against .the lawful claims of all persons, but that one Eli Finley was the owner, and that- said Finley, in August 1872, commenced an action against said plaintiff to recover the possession, and did in said action recover the possession, and that under said judgment plaintiff was, in September 1873, evicted from said premises. A demurrer to said petition was sustained, and of this ruling plaintiff in error complains.
The deed from defendant is plainly a quitclaim. It does not purport to grant a fee-simple title: It uses the technical term “quitclaim,” and to make assurance doubly sure, it limits the grant to the “right, title, interest, estate, claim and demand” of the grantors. Such a deed conveys nothing but the interest of the grantors, and an after-acquired title does not inure to the benefit of the grantees. Simpson v. Greeley, 8 Kas., 586. Nor in this case do we think the covenant enlarges the grant. The reciprocal effects of covenants upon the grant,'and of the grant upon {¡]le covenants, has been much discussed, and the conclusions are not all harmonious. It is said in 2 Smith’s Léading Cases, p. 636, that “ the true rule would seem to be, that the instrument should be taken as a whole, and effect given to its meaning as derived from each and every part of it.” Under this rule it is more reasonable to hold that the general terms of the covenant are limited to the restricted estate granted, than the reverse. The estate conveyed is specifically, doubly limited. It is restricted to the interest and estate of the grantors, for the phrase, “or in expectation,” refers to interests existing but not vested, and does not include interests and titles wholly disconnected from the grantors. It can hardly be supposed that the grantors used such words of limitation without intending to restrict the extent of the grant, while the general terms of the covenant may properly be held as applicable only to the estate granted. In other words, the grantors convey a limited estate, and covenant to defend that estate. The authorities support this view. In Blanchard v. Brooks, 12 Pick., 47, Shaw, C. J., says: “The grant in the deed is of all his right, title and interest in the land, and not of the land itself, or any particular estate in the land. The warranty is of the premises, that is, of the estate granted, which was all his right, title and interest. It was equivalent to a warranty of the estate he then held or was seized of, and must be confined to estate vested.” In Comstock v. Smith, 13 Pick., 116, Wilde, J., uses this language: “The tenant in covenanting to warrant and defend the granted or released premises must be understood to refer to the estate or title sold or released, and not to the land, because he certainly did not intend to warrant any estate or title not intended to be conveyed.” In Sweet v. Brown, 12 Metc., 175, it was decided .that, where “A. conveyed to B. by deed all his right, title and interest in and to certain real estate, described by metes and bounds, corners and distances, with the usual covenants of seisin and warranty, the covenants were limited to the estate and interest of A. in the granted premises, and were not general covenants extending to the whole parcel described in the deed.” See also Allen v. Holton, 20 Pick., 458; Wight v. Shaw, 5 Cush., 56; Miller v. Ewing, 6 Cush., 34; Gee v. Moore, 14 Cal., 472; Kimball v. Semple, 25 Cal., 452; Rawle on Covenants for Title, 525-6-7, and notes. It follows from these considerations that the court did not err in sustaining the demurrer, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error recovered a judgment in ejectment against plaintiffs in error. It was admitted on the trial below that the title to the property in dispute had been, prior to the conveyances offered in evidence, in one Erastus Renfro. Mrs. Kent' offered in evidence a deed from said Erastus Renfro, dated June 1,8th 1872, and this was her title. Plaintiffs in error offered certain judicial proceedings against Erastus Renfro and wife, commencing with an attachment levied on said premises on June 26th 1872, and ending in a sheriff’s deed; and this was their title. There was a general finding for plaintiff, Mrs. Kent. It is claimed that the deed to Mrs. Kent was void, because it was an attempted conveyance of a homestead in which the wife did not join. Was it a homestead at the time of the conveyance? Renfro’s family consisted of himself and wife, and together they had occupied the premises as their homestead until sometime in May 1872, when the wife left, and, as appears from a long letter of hers to her mother, with the intention of not returning. The' furniture remained in the house, though sold some three weeks prior thereto to Mrs. Kent, and Renfro continued to occupy it until the day or the day before the execution of the deed. -On the 17th of June he was in Johnson county, at the home of Mrs. Kent, and together they returned to Paola, reaching the house on the morning of the 18th. On that day, in the morning, he executed the deed, and left town on the evening train. On this same morning he was asked by one of the defendants to give them a mortgage on the place to secure their debt, but he declined, saying it was his homestead, and that he thought they ought not to ask him to mortgage his homestead. It is entirely clear that when Mrs. Ren fro left in May she abandoned all interest in the homestead. She not only declares in her letter 'her separation from her husband, but also adds: “ I have not taken anything with me, not even all my clothes. If I can make a living for myself he can certainly get along with the property,” etc. And it may also be reasonably inferred from the circumstances, that the abandonment by him of the homestead and the execution of the deed were contemporaneous. We do not mean to decide that he had or had not a homestead interest after the abandonment by his wife; but if he had, it ceased with the execution of the deed and his surrender of the property. It does not appear whether the key and the possession were surrendered before or after the execution of the deed. Probably under the circumstances of this case it is immaterial which. There was clearly enough testimony to support a finding of the abandonment of the homestead before 'the execution of the deed. Neither Renfro nor his wife are contesting the validity of this conveyance; and if they are satisfied with it, a subsequent judgment-creditor must make a clear case before he can ask a court to set it aside.
A second alleged error is in the admission of the letter from Mrs. Renfro to her mother, Mrs. Kent. The objections made to it were, that it was “incompetent and irrelevant.” The letter is quite lengthy, was written after she left her husband, and before the execution of the deed, and gives the reasons of her separation from her husband, and her in- ^ ' tentions as to the future. It is, so far as this case is concerned, a declaration by one said to have a homestead-interest in disparagement of that interest, which, by well-settled rules, is always competent. If there were objections to any particular statements in the letter they should have been pointed out, and are not covered by a general objection to the whole of the letter, some portions of which were unquestionably competent and relevant.
It is said that the court erred in not giving a second trial. No demand was made for a second trial under section 599 of the code, only a motion fora newtrial undersection c\/\r* _ ¿06. 1 his disposes ox the matter, it may also be noticed that this was really the second trial. The record shows that at a prior term a trial was had, a jury impanneled, the plaintiff’s testimony offered, a demurrer to the evidence sustained, and the jury discharged from the further consideration of the case. It fails to show the entry of a formal judgment, but it does show that plaintiff appeared and moved for another and a new trial, which motion was sustained, and the case continued to the next term.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This action was originally brought by defendant in error before a justice of the peace, to secure a money judgment against the plaintiff in error on an accepted draft and a promissory note. The plaintiff in error answered by admitting that he accepted the draft, and made the note, but claimed that they were both without consideration, being for intoxicating liquors sold on credit; that the contracts under which the liquors were sold were made in the city of Topeka, and that the defendant in error (Gillett) had no license at that time from the city of Topeka to sell intoxicating liquors. Upon this issue the case went to trial, and the justice rendered judgment against Haug for the full amount of the note and draft. Haug then appealed to the district court of Shawnee county, and the case came on for trial at its June Term 1873, and was submitted to the court on the evidence, and admissions of the parties made in open court — a jury having been waived by the respective parties — on consideration whereof the court found for the plaintiff (Gillett,) and rendered judgment for him against the defendant (Haug,) for the sum of $292, to which Haug excepted and was given thirty days to make a case for the supreme court, which time was afterward extended by the court to October 11th, 1873.
It appeared from the testimony that the defendant Gillett was a wholesale liquor-dealer in the city of Leavenworth, and had a license from the mayor and council of that city to sell liquor in any quantity except by the dram, but had none from the city of Topeka; that the orders for the liquors were given by Haug in his saloon, in the city of Topeka, to Gillett, or some agent of his; that the orders were taken to Gillett’s store in Leavenworth, the goods therefor selected from his stock, and shipped by rail to Haug, at Topeka, the latter paying the freight. Was there error in the ruling of the district court, and were the note and draft void, as given in consummation of a contract prohibited by statute ?
The statute claimed to have been violated is § 3 of the dramshop act, which forbids the sale of liquors by “ any person without taking out and having a license as grocer,-dram-shop-keeper, or tavern-keeper,” etc.; and it is insisted that this sale was made in Topeka, where, it is conceded, Gillett had no license, and “that under the laws of Kansas, any one having a license to sell intoxicating liquors, can only sell them within the limits of the city or township granting him the license.” The proposition involved in this case is substantially that a wholesale liquor-dealer having a stock of goods and conducting business in a city from whose authorities he has received a license cannot send out agents and take orders for those goods elsewhere than in such city without first obtaining a license from the authorities of each city or county in which those orders are taken. The proposition is a broad one, and the language of the statute should be clear before such an intention is imputed to the legislature. The legislature may suppress the liquor traffic altogether, or it may impose such restrictions as it deems wise. It may restrict the sale to the county, the city, or even the building, and forbid the making of any contract therefor outside thereof; and it is the duty of this court simply to determine what restrictions it has imposed. Its enactments are, however, to be construed in- the light of the general usages of society and business. The business of a wholesale dealer is carried on extensively, generally by agents — traveling-men, as they are called — who visit the different towns, and solicit orders. To recognize and license such a business, and at the same time to cut off one of the ordinary methods of carrying it on, while it is within the power of the legislature, should also be within the clear meaning of the enactments. Again, the statute is penal, and as such is to be strictly construed. Only those things are forbidden which are plainly within its terms. Counsel claim that a party licensed may sell only within the limits of the county or city granting the license. But where was the sale completed? The contract therefor was made in Topeka, but did any title pass before the goods were selected and separated from the whole stock? Clearly not — and therefore the sale was not completed till then. The goods were selected and separated at Leavenworth, and there delivered to the carrier, to be by him forwarded to the purchaser. At Leavenworth, then, the sale was completed, and there Gillett had a license. Bauchor v. Warren, 33 N. H., 183; Boothby v. Plaisted, 51 N. H., 436. Nor can this be deemed a “ shift or device to evade the provisions of the act.” Gillett had one license, and that at the place where his store was kept. By the first section of the act, before a license can be granted, a petition must be presented by the citizens of the township or city “in which such dramshop, tavern or grocery is to be Tcept” This locates the place where the license must be had. Gillett kept no store in Topeka, had no stock of goods there, made no delivery of goods, and passed no title there. Clearly therefore there was no violation of the dramshop act in this transaction, and the judgment of the district court must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is, whether the plaintiff Wilcox is liable to pay taxes on certain supposed personal property which he is supposed to own and possess in this state. The facts of the case are substantially as follows: “In the year 1868 the plaintiff agreed in writing to sell certain real estate he then possessed in the state of Illinois, to one Daniel Lovatt, for a price agreed upon between them, and Lovatt gave his notes for the amount, it being agreed that the notes were to be left at the bank of Charles F. Gill & Co. in the town of La Harpe, Hancock county, Illinois, and as fast as said Lovatt should make payment on said notes from time to time the plaintiff should convey to him a proportionate amount of said real estate. The plaintiff made no deed to Lovatt for said real estate at the time of the sale, nor did Lovatt give any mortgage to secure the payment of the notes, or execute any other instrument of writing than the notes, and said agreement to sell, which he also signed. Before the plaintiff could be required to convey any part of the real estate to Lovatt, he (Lovatt) must have paid an amount equal to the value of eighty acres; and whenever an amount was paid equal in amount to the value of another eighty acres, then a conveyance was to be executed by plaintiff to Lovatt for sucli eighty acres; and so on, till all the land should be paid for. The payments were to be made one year apart; and should Lovatt fail' in any payment he was to forfeit any payment made after the last preceding conveyance. Six thou- . ° . - sand dollars remained unpaid on the first of March 1872, and is the same $6,000 placed on the tax-roll by the clerk of Butler county 'in said year as the personal-property assessment of said Wilcox. The land was to remain the property of plaintiff till the payments were made as before ’stated. The notes never had been in the state of Kansas, and never out of the state of Illinois, nor in any other place than the bank before stated. The contract or agreement to sell the lands between plaintiff and said Lovatt was in writing, executed by both parties, and contained substantially the conditions above set forth.” The tax complained of was levied for the year 1872 on said $6,000, The plaintiff was on the first day of March of that year and has since been a resident of said Butler county. “ The land still unconveyed on March 1st 1872 was of the value of $6,000.” Now we suppose that it will be admitted that it is not the intention of the laws of Kansas to attempt to collect taxes for general revenue except upon property, and except upon property within the jurisdiction of the state of Kansas. Hence, if the contingent debt coming from Lovatt to the plaintiff is not property in and of itself, and aside from the real estate for which it was incurred, or if it is not property within the jurisdiction of the state of Kansas, then it cannot be taxed in Kansas. Then what is there in Kansas to be taxed ? Certainly no tangible property; and not even any intangible property that needs any protection from our laws. Everything is and has been in Illinois — the consideration for the notes, the notes themselves, the place of payment, the persons to whom the notes are to be paid, and presumptively the payors, and the funds which must be used in paying the notes, all are in Illinois and have never been in Kansas. Nothing pertaining to the notes, or to the debt which they evidence, has ever been in Kansas except that the owner of the notes resides in Kansas. Every act which brought the notes or the debt into existence was performed in Illinois, and every act that may be performed in the future for their collection, payment, or extinguishment, must also be performed there. The claim that said debt is taxable in this state is founded entirely upon the maxim, Mo~ bilia sequuntur personam. Under this maxim it is claimed that movable property follows the residence or domicile of the owner, (not his person,) and therefore that personal property may be taxed at the residence of the owner wherever he may be, and wherever the property may in fact be. This maxim would seem from its terms to apply to all movable property, tangible as well as intangible, and it is generally so applied wherever it is applied at all. But the defendant desires to make a distinction. While he seems to admit that by the weight of judicial determination the maxim does not fully apply for the purposes of taxation to tangible movable property, yet he nevertheless claims that it does apply with all its force to intangible personal property. We think however he is mistaken. The weight of judicial authority seems to be that for the purposes of taxation the maxim does not fully apply even where the property is intangible. People v. Gardner, 51 Barbour, 352; Catlin v. Hull, 21 Vt., 152; People v. Trustees, &c., 48 N. Y., 397; and other authorities cited in plaintiff’s brief. This maxim is at most only a legal fiction; and Blackstone, speaking of legal fictions, says, “This maxim is invariably observed, that no fiction shall extend to worlc an injury, its proper operation being to prevent a mischief, or remedy an inconvenience that might result from the general rule of law.” (3 Blackstone Com., 43.) Now as the state of Illinois and not Kansas must furnish the plaintiff with all the remedies that he may have for the enforcement of all his rights connected with said notes, debt, etc., it would seem more just, if said debt is to be taxed at all, that the state of Illinois and not Kansas should tax it, and that we should not resort to legal fictions to give the state of Kansas the right *° tax & Where land is sold and conveyed, and notes given for the purchase-money, we suppose the vendee may be taxed for the land and the vendor for the notes received for the purchase-money. But where the vendor still owns the land, and also owns it conditionally, as in this case, whether he can be taxed on both the land and the notes may be questionable. But that he should be taxed on both in Illinois, and on the notes in this state, would be highly unjust. In the case of People v. Trustees, &c., 48 N. Y., 397, the following language is used by Earl, C. J., and concurred in by the full bench: “I am unable to see why the money due upon the land contracts must not be assessed in the same way. The debts due upon these con tracts are personal estate, the same as if they were due upon notes or bonds; and such personal estate may be said to exist where the obligations for payment are held. Notes, bonds, and other contracts for the payment of money, have always been regarded and treated in the law as personal property. They represent the debts secured by them. They are the subject of larceny, and a transfer of them transfers the debt. If this kind of property does not exist at the place where the obligation is held, where does it exist ? It certainly does not exist where the debtor may be, and follow his person. And while for some purposes in the law, by legal fiction, it follows the person of the creditor, and exists where he may be, yet it has been settled that for the purposes of taxation this legal fiction does not, to the full extent, apply, and that such property belonging to a nonresident creditor may be taxed in the place where the obligations are held by his agent.” This decision would make the notes given in this case taxable at the banking house of said Charles F. Gill & Co. This decision does not affect the taxability of notes where both the owners of the notes and the notes are in the same state, although in different counties. Nor would it give the power to an owner of notes to fraudulently send them out of the state for the purpose of avoiding taxation on them where they rightfully belong. This case has been very ably presented to this court by counsel on both sides, and for a full discussion of the questions involved we would refer to their briefs.
The judgment of the court below is reversed, and cause remanded with the order that judgment be rendered for the plaintiff on the agreed statement of facts, perpetually enjoining the said county treasurer from collecting said tax.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case arises on the confirmation of a sale. The property sold was an updividedthird interest in certain lots in the town of Beloit, which from the numbers were apparently separate, but which were sold in gross. A motion to set the sale aside on this account was overruled, and the sale confirmed. Such a sale has been decided by this court to be irregular and voidable, and on that account may be set aside on motion of the judgment-debtor. Johnson v. Hovey, 9 Kas., 61. Counsel for defendant in error claims that this is not an arbitrary rule; that hence the. reason of the rule, and therefore the rule itself, fails. The reason is, that when sold separately the property will probably realize more than when sold in mass. This it is claimed may be true when the debtor owns the entire interest in the lots, but is not true when he only owns a small undivided interest therein. In such a case it is said no man would care to buy, unless he bought an interest in enough lots to give him, on partition with the owners of the other interests therein, an entire lot. Hence he would not care to purchase an interest in a single lot, for fear he would be compelled to pay unduly for an interest in the succeeding lot or lots. This reasoning we think is unsound. 'It assumes a state of facts which is likely not to exist, as to exist, and of whose existence or non-existence in this case we are not advised, that is, that the remaining interests in all the lots are owned by the same parties; for if the other interests in each lot is owned by a different party, each lot would have to be partitioned separately. So also in such case, the most interested bidders would be little encouraged to bid. A man who owned two-thirds of one lot might be very anxious to buy the other third if he could buy that separately, and at the same time very unwilling to buy the undivided-third of a dozen other lots in order to secure the third of that one. We do not mean to hold that the rule is arbitrary, and to be enforced in every case. Circumstances may often exist to make it for the interest of the debtor, and to justify and uphold a sale in bulk of separate lots. But nothing appears here outside of the record, and prima facie every such sale is irregular, and may be set aside by the debtor on motion, if such motion be made before the confirmation.
The order of the court will be reversed, and the case remanded with instructions to set aside the sale.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by Pointer in the district court of Leavenworth county, for personal injury by being knocked down and run over by the cars of plaintiff in error, near the railroad depot in the city of Leavenworth, on the 4th of February, 1870. The venue was changed to Atchison county, and the cause was tried before a court and a jury, in June, 1873, and the jury returned the following special verdict:
“We the jury find for a special verdict in the above entitled action, the following:
“First, That on or before the 4th of February, 1870, the plaintiff was passing across and along the railroad track of the defendant, in that part of the city of Leavenworth traversed by the road of the defendant, and while so passing at or near the junction of Water street with Chestnut street, which streets are nearly at right angles with each other, the plaintiff was knocked down and run over by the cars of the defendant. That two passenger cars, one baggage car, and a locomotive tender passed over the body of the plaintiff, and he was pulled out from between the wheels of the engine and tender in a bruised, wounded and otherwise injured condition of body, and in an unconscious state of mind.
• “Second, That by said cars knocking him down and running over him, the plaintiff had his shoulder dislocated, and had two of his ribs broken. That in consequence of the injuries then received by the plaintiff, he .suffered great pain and agony for a long time, and was confined to his bed for a period of about three months, and remained feeble and weak for a period of about six months, and during all of'said last-mentioned time was under the care and direction of a physician. That the plaintiff is a man between fifty and sixty years of age, and in consequence ■ of said injuries his health and strength are permanently impaired.
“Third, That it was necessary for him to procure said medical attendance, and the cost of the same was five hundred dollars.
“Fourth, That the road of the defendant at the place the plaintiff was struck and injured, was at that time commonly used by persons for passing over and across the same from the city of Leavenworth to the ferry-landing, the same being a public ferry across the Missouri river at that point, and the only means of travel at that point between the west and east banks of the Missouri river; and the same had been so used before the location of the defendant’s road at that place, and continued to be so used, with the knowledge of and without objection by the defendant, up to and including said date, and that there was no way of reaching the ferry except by cross ing the road of the defendant at that or some point near that place.
“Fifth, That the streets of the city had never been graded or improved at that or any other place leading to the ferry-landing, so as to show on the surface of the ground where they wer.e.
“Sixth, That the injuries occurred to the plaintiff at a place at which persons were in the habit of passing and repassing continually, with the knowledge and without objection on the part of the defendant.
“Seventh, That the place where the plaintiff was injured was on' ground which had been used by the public as a thoroughfare from the city of Leavenworth to the landing of the public ferry across the Missouri river ever since the year 1855 up to and.inclusive of the day of the injury, and which ground formed part of a tract of territory which, by ordinance of the city of Leavenworth, approved the 21st of October, 1863, was created into a street of said city, designated as Water street.
“FJighth, That the train so moved was being backed southward with an engine, upon which the brake was out of repair, so that such brake could not be worked, and was wholly useless to aid in stopping the train; that there were no brakemen at any of the other brakes on the train to use them in controlling the train, and no flagman or other person or thing on the train to warn persons of danger or to warn the engineer; nor was there any flagman at any point on the track between the depot from which the train moved to the place where the plaintiff was injured, nor was there any whistle blown on that train, but a bell was rung by them.
“Ninth, That the plaintiff at the time of the injury was with his back to the approaching train, at a point where there was much noise other than that made by the train, and was unconscious of the approach of the train. That when approaching the road near the same, plaintiff looked up the track toward the depot, and no train was then moving.
“Tenth, That if there had been a brakeman or flagman on the rear end of the train, or at any point on or near the track and near the moving train, he could easily have seen the danger the plaintiff was in in time to have warned the engineer and caused the train to stop before the injury, or could have apprised the plaintiff of the impending danger in time for him to escape.
“Eleventh, That the train was moving backward, and there was no person on the rear end of the train to warn, persons of danger, or to notify the engineer to check the train.
“Twelfth, That the injury to the plaintiff was caused immediately by the defendant’s failing to use ordinary care, and by its gross negligence in the manner of the running of the train at that time and place, and by the failure of the defendant to keep a lookout of any kind for persons who might be on the track.
“Thirteenth, That the plaintiff was guilty of negligence contributing to the injury.
“Fourteenth, That the injury to the plaintiff was caused by a failure on the part of the defendant through its agents and servants to use ordinary care in moving the locomotive and train at that time and place. That the place where the plaintiff was injured was within the-corporate limits of the city of Leavenworth, which was a city of over twenty thousand inhabitants at that time, and at a place where persons, men, women and children, had been and were in the. habit of passing and crossing with the full knowledge of the defendant, and without any protest or objection on its part.
“Fifteenth, That the only employes of the defendant on the train at the time the plaintiff was injured were three men — an engineer, a baggage-master and a yard-master — and these three employes were on the engine, the most remote point on the train from the rear end thereof, and from which place they could not see the track for forty or fifty feet from the rear end of the train.
“Sixteenth, That on or before the 4th of February, 1870, the Kansas Pacific Railway Company was the owner of and was operating its railroad from the city of Leavenworth to Lawrence.
“Seventeenth, That the ground occupied by the aforesaid Railway Company, running south from the depot in Leavenworth, was formerly uneven, and only passable for foot passengers. That the Railroad Company graded said ground, making it level for the purpose of laying their track, and that in so doing, in conjunction with the Missouri Pacific or Missouri River Railroad, so graded said ground about the width of two hundred feet from and running parallel with the Missouri river at the point whereat or about the said injury occurred, and that there was a space of level ground between the Pacific tracks and the Kansas Pacific Railway tracks of fifty feet, upon which foot passengers could walk at the said point, and that on the west side of the Kansas Pacific track, apd running parallel thereto, was a road that was passable for wagons and teams; said road was about thirty or forty feet wide, and bounded on the west by a precipitous bluff about fifty feet-high. Said road ran south about one thousand feet from the depot, and was used at and previous to the time of the plaintiff’s injury, as h thoroughfare by which the public passed to the ferry across the Missouri river, a point nearly opposite the landing of the public ferry crossing the Missouri river between Kansas and Missouri, at which point the travel crossed the track of the Kansas Pacific and Missouri Pacific railways to reach the aforesaid ferry.
“Eighteenth, That the pláintiff could have reached the ferry by keeping west of defendant’s ‘tracks’ to a point directly opposite the ferry landing, and thence east across said railway, not more than ten feet wide, to said ferry.
“Nineteenth, That the plaintiff was passing upon the track Avith his head down, and persons near by, apprehending that he Avas in danger, called to him with a loud/voice warning him of his danger — these persons standing, one upon the cars of the Missouri Pacific Raihvay Company, about fifty feet away, and the other in the space between the tracks of the Missouri Pacific and the Kansas Pacific railways. That the whistle of the locomotive of the Missouri Pacific Railway was blown, AA^hich was about one hundred feet from the plaintiff. That his attention was not attracted by the signals of warning, nor did he look up, but kept in the same position Avith head bent forward until he Avas struck in the back by the ‘bumper’ or ‘draAvhead’ of the rear car upon the end next to him, when, from the force of the blow he fell forward, when the train — tAvo passenger cars, one baggage car, and the engine and tender — passed over him.
“Twentieth, That the defendant’s train was handled oh the day of the injury in the usual manner in which said train was handled Avhile backing up to be switched and left on the side track. The train was in charge of the yard-master, and neither he or any of the persons on the train kneAv the plaintiff was upon the track, and in the AA^ay of the train, until after his injury.
“Twenty-first, That on the 21st of October, 1863, the council of the city of Leavemvorth passed an ordinance laying out a street called ‘Water street,’ and there is no evidence that anything more was done in the premises by the authority aforesaid.
“We the jury find for the plaintiff, and assess his damages at five thousand dollars.”
Before the jury was discharged, the defendant requested in writing that the court direct the jury to make further findings of fact, which was refused. The motion for a new trial was duly made by the defendant, and overruled, and defendant’s motion for judgment was also overruled. The court rendered a judgment in favor of Pointer upon such special verdict, for the sum of five thousand dollars, and costs of suit, and defendant brings its petition in error in this court.
Upon this case two principal questions arise: First, is such negligence shown on the part of the company as, independent of the conduct of Pointer, will render it liable for the damages sustained ? and second, does there appear such contributory negligence on the part of Pointer as will defeat his recovery ? With the first question we ^|e trouble. The jury found specifically (12th finding) that the injury was caused by the gross negligence of the company. And if we turn to the other findings in which the circumstances of the injury are narrated, or to the testimony in the case, the whole of which is before us, we find ample warrant for this finding. A train .consisting of two passenger and one baggage car, a tender and locomotive, is started backward over a public crossing in a populous city, with the brake on the engine out of repair, and useless, with no brakemen at any of the other brakes on the train, with but three persons on the train, and all of them in the locomotive, with no flagman on the rear end of the train, or at the crossing, to give warning to persons on the track, -or to the engineer, without the blowing of a whistle, (though with a ringing of a bell,) and along a track which from the locomotive could not be seen for a distance of forty or fifty feet from the rear of the train. Add to this, that there was at the time much noise other than that made by the train, and we think a jury might properly say there was gross negligence.
The other question is embarrassing and difficult. By the 13th finding the jury say “that the plaintiff was guilty of negligence contributing to the injury.” Did they mean thereby such negligence as will defeat a recovery? Do the facts, as shown by the other findings, or the evidence, disclose such negligence? As a general rule, whenever the word “negligence” is used without any qualifying term, we understand that ordinary negligence is meant; and w^ere the triple distinctions of slight, ordinary, an(j grogg negligence are recognized, as in this state, ordinary negligence on the part of the plaintiff will, except perhaps in the case of wanton and willful injury, defeat a recovery. It is settled in this state that where the negligence of the plaintiff is but slight, or only remotely contributing to the injury, it will not defeat a recovery. K. P. Rly. Co. v. Rollins, 5 Kas., 167; Sawyer v. Sauer, 10 Kas., 466. It seems to us also correct to hold, that the onus probandi, as •to the negligence of the plaintiff, is on the defendant; that if the record shows negligence on the part of the defendant, and is silent as to the conduct of the plaintiff, it makes out a case for recovery. We are aware of contrary decisions, and 'that in some states it is held that the burden is on the plaintiff to show affirmatively that he exercised due care, and was without fault. But if it is shown that a party has done wrong, and caused injury thereby, is not a prima facie case for compensation made? Logically, the wrongdoer should always compensate, and the wrong and the injury always entitle to relief. When the wrong of both parties contributes to the injury, the law declines to apportion the damages, and so leaves the injured party without any compensation. This is not strictly justice. The wrongdoer causing injury ought not to be released from making any compensation, simply because the injured party is also a wrongdoer, and helped to produce the injury. But many considerations, especially the difficulty of correctly apportioning the damages, and determining to what extent the wrong of the respective parties was instrumental in causing the injury, uphold the rule so universally recognized, that where the wrong, the negligence of both parties, contributes to the injury, the law will not afford any relief. But if the wrongdoer ought always to compensate for the injury he has wrought, and is relieved from the obligation to compensate only by the fact that the wrong of the injured party helped to cause the injury, it is incumbent on him to‘show such wrong. It is matter of defense, to avoid the consequences of his own wrong. In the case of the U. P. Rly. Co. v. Hand, 7 Kas., 388, the question was incidentally noticed, and the intimation was in favor of the views herein expressed. See also Shearman & Redfield on Negligence, §§ 43 and 44, and cases cited in notes, and the late ease of Railroad Company v. Gladmon, 15 Wallace, 401, where the supreme court of the United States lay down the rules as given above. It seems to us to follow from this, that where the special verdict shows an iniury caused by gross negligence of the defendant, a recovery must be sustained, unless it is also apparent that there was such contributory negligence- as to relieve the defendant of responsibility; and that where it is uncertain whether such negligence is apparent, the doubt must be resolved against the defendant. In this case negligence and contributory negligence were not matters collateral and subordinate to the main issue, but were the vital and principal questions. To them the attention of counsel was mainly directed. The degree of negligence essential to defeat a recovery had been already settled by this court, and was doubtless known to counsel. The instructions are full of references to the different degrees of negligence. The jury specified in their verdict the degree of negligence of which they found the defendant guilty, and declare that it was the immediate cause of the injury. If any of the findings were not sufficiently definite and certain, either party could have called the attention of the court to it before the discharge of the jury, and had it made so. Arthur v. Wallace, 8 Kas., 267. And if the party whose interest it is to have it made definite and certain fails to do so, the omission will be taken against him in the construction of the finding. At the time this verdict was returned, the company objected that it was partial, incomplete, and inconsistent, and specified a number of points in which it desired correction, but said nothing as to this 13th finding. It appeared to be content with it. Turning now to the verdict, and we find that after the separate findings of fact, and as a part of the verdict, the jury return as follows: “We the jury find for the plaintiff, and assess his damages at $5,000.” It appears from this, that the jury did not mean by the 13th finding to attribute to the plaintiff such a degree of negligence as would defeat his recovery. They intended only such slight negligence, or negligence so remotely contributory to the injury, as was consistent with his right to compensation. It may be said that this was in effect a general verdict, and that this the jury were not at liberty to return where a special verdict had been ordered. This may all be true; but it does not affect the question we are now considering, viz., the intent of the jury. They failed to specify the degree of negligence of the plaintiff — what degree did they intend — and upon this question of intent this quasi general verdict strongly bears. Nor can it be argued that this general finding was returned in ignorance of the law, and that the jury must have supPosec^ that Diere negligence of the defendant gave a right of recovery independent of the con-0f p]a}n£ig? £pe first instruction given, at the instance of the plaintiff, they were told substantially that the plaintiff could not recover if the injury resulted from his own negligence, but that slight negligence on his part would not defeat a recovery. To a similar effect is the third instruction given at the like instance. These instructions, and the general finding, point clearly to the intention of the jury in the 13th finding, and show that they contemplated only that slight negligence which is consistent with the right to compensation. Again, it seems that the last instruction given at the instance of the defendant throws some light upon this question. That instruction is as follows:
“ The fact that persons were upon the track or yard of the defendant before, was no license to the plaintiff to be there, and was no justification, for the plaintiff being there; and he was guilty of negligence for being on the track, if the jury find that he was on the track.”
As without dispute the plaintiff was on the track, when struck by the train, of course the jury could not find otherwise than that he was guilty of negligence. It is unnecessary to inquire whether this be good law or not, for surely it is a proposition of which the railroad company has no cause of complaint. It is enough now that it serves to indicate upon what the 13th finding was based. As it was an open question whether the place of the accident was a public crossing, it can hardly be that the court intended' to say to the jury, that, though this were a public crossing, the presence of the plaintiff on the track was such ordinary contributory negligence as, notwithstanding the gross negligence of the railroad company, would defeat a recovery. It seems to us therefore that the jury-intended by this 13th finding only such slight negligence as does not bar the right to compensation.
But the solution of this question by no means removes the difficulties in deciding the case. It is earnestly insisted by counsel, that the facts in reference to the conduct of the plain- ^ (defendant in error,) as they appear from the other findings, as well as from the testimony, show that culpable negligence on his part which will relieve the company from responsibility. It seems to us matter of great doubt, as we read the conduct of the plaintiff, as narrated either in the findings or the testimony, whether this claim of counsel is not correct, and whether plaintiff was not so negligent as not to be entitled to compensation. And perhaps this doubt is our best justification for upholding the verdict. This question of negligence is said to be a mixed question of law and fact. When the facts are disputed, it makes a question for the jury. When the facts are undisputed, and but one deduction is to be drawn from them, there is simply a question of law for the court. But where the facts, though undisputed, are such that when taken singly or in combination different minds will come to different conclusions as to the' reasonableness and care of the party’s conduct, the question is one which may properly be left to the determination of the jury. Rld. Co. v. Stout, 17 Wallace, 657; Detroit & W. Rld. Co. v. VanSteinberg, 17 Mich., 99. In this case three separate juries have found for the plaintiff, and ^at, notwithstanding any imputations that could be made on his conduct, he was entitled to compensation. While we are not disposed, even if it were possible, to avoid any responsibility that properly belongs to us, or leave with a jury the burden of determining questions which we ought to decide, and while we should never permit the perpetratiQn of a glaring wrong upon a party, no matter how many successive juries should attempt it, yet the unanimous judgment of thirty-six intelligent, candid men, as to the reasonableness and care of a party’s conduct at the time of an injury, ought to have no little weight with us.
We have outlined, in considering the first question, the conduct of the company. A similar outline is proper as to that of the plaintiff. It appears that there is a space south of the old depot in Leavenworth about 1,000 feet in length, and 200 feet in width, shut in between the Missouri river on the east, and a steep bluff on the west. At the lower end of this space was, at the time of this injury, and had been for years, a grist-mill built against the bluff, and also at times the landing place of the ferry-boat. The boat changed the landing-place from time to time to accommodate itself to the different changes of the water, so that only part of the time did it land at or near this space. Over this space the Missouri Pacific Railroad and this defendant had constructed four or five tracks, which were used in- the making-up of the trains, the tracks of the Missouri Pacific Road being next the river, and those of the defendant near the bluff. At the northwest corner of this space two streets came together, and prior to any occupation by the railroad companies the city had passed an ordinance for the opening of a street from the junction of these streets southward over this ground. But nothing more had been done toward securing the appropriation of the ground for street purposes. Both before and sub sequent to the occupation by the railroad companies, and at the time of this injury, there was a traveled way from the junction of the streets across this space, and over the tracks of the companies, at the ferry landing, and the traveled way the plaintiff was going to the ferry at the time he was run over. Between the tracks there was ample space and level ground for one to walk in safety, and west of this defendant’s track, and close to the bluff, was a carriage-way which ran along the whole length of the space, and crossed the track at right angles at the mill. The plaintiff could have walked along this carriage-way, or between the tracks, and- been out of danger, except at the very moment of crossing. Instead of doing this, he got on to the track at about the junction of the two streets, and walked southward on it toward the ferry. At the time he got on to the track he looked, and no train was in motion. As he passed down the track the defendant’s train started out from the depot, and the engineer on the Missouri Pacific train seeing plaintiff’s danger whistled to alarm him, and the yard-master of the Missouri Pacific Company shouted and tried to attract his attention, but in vain. Erom this outline it can but be seen that the plaintiff was guilty of some negligence, that he did not act with the highest prudence. Indeed, as before remarked, honest minds might well differ as to whether his negligence was not so great as to disentitle him to relief. In comparing however the conduct of the two parties, it will be generally conceded that the negligence of the company was of a higher degree, and a grosser character, than that of the plaintiff. This case must be distinguished from those where a party approaches and crosses a track without looking to see whether any train is coming; for here the plaintiff looked, and not only did he see no train coming, but in fact there was none. The train started after he got on. Nor must it be confounded with those cases in which the injury occurs on ground in the exclusive occupation of the railroad company. It was on ground of which the public and the company were in joint occupation — on ground which, without objection by the com pany, the public was occupying and using as a street, over which the plaintiff was then passing on his usual way to his home, on the east side of the river. For a case which, while its facts are not altogether similar, has many elements in it to make it a most appropriate citation in this, see Butler, Adm’x, v. The M. & St. Paul Rly. Co., 28 Wis., 489. See also, Railway Co. v. Whitton, 13 Wall., 270. It seems to us, after a full and careful examination of this case, that the judgment must be affirmed.
Other objections are made by the learned counsel for plaintiff in error, but they are of minor importance. The record is voluminous, and many exceptions were taken. But this case has been once before to this court, and a judgment in favor of the plaintiff reversed; (K. P. Rly. Co. v. Pointer, 9 Kas., 620;) and only such errors as are clearly prejudicial to the substantial rights of the plaintiff in error should be regarded.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The questions involved in this case were raised in the court below, by petition and demurrer. The grounds of the demurrer were — first, a defect of parties defendant; 2d, several causes of action improperly joined; 3d, the petition did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer, and the plaintiffs now bring the case to this court. The defendants do not now claim that the demurrer should have been sustained upon either the first or the second ground of the demurrer, but claim that it was and should have been sustained upon the third ground thereof. Hence the only question for us to consider.is, whether the petition stated facts sufficient to constitute a cause of action. The whole cause of action is founded upon the alleged breach by the defendants of a certain agreement in writing alleged to have been made and entered into between the plaintiffs and defendants. The substance of this contract is set forth in the petition, and a copy thereof is attached to the petition and referred to in the petiti°n as “Exhibit B,” although it is not in terms ma¿e a par¿ 0f petition. It is claimed by the defendants that this contract is void, first, for want of consideration, and second, because it is in restraint of trade, and therefore against public policy. These are the only questions in the case. Now, whatever may be the real facts in the case, we must take the facts as stated in the petition as true. And taking such facts to be true, there would not only seem to be a sufficient consideration for the contract, but the contract would seem in all other respects to be valid. "Whether we examine the petition with or without “ Exhibit B,” it so obviously states a sufficient consideration for the contract that we do not think it is necessary to discuss the same. The closing up of the copartnership existing between the plaintiffs and defendants, the final settlement thereof, and dissolution of the same, was a sufficient consideration for the contract. The release by the plaintiffs of $589.62 in their partnership settlement, was a sufficient consideration. But the contract is shown to have been in writing, and therefore, unless the contract or the petition affirmatively shows that there was no consideration, the contract itself will import a consideration. (Fuller v. Scott, 8 Kas., 25; Waynick v. Richmond, 11 Kas., 488, and statutes cited in these two cases.) Mere silence on the part of the petition or contract will not show that there was no consideration. But on the contrary, where the petition does not affirmatively show that there was no consideration it will be presumed prima facie that there was a sufficient consideration.
We do not think that the contract is void because in the restraint of trade. It merely binds the individuals, C. M. Ott and A. Gottschalk, not to sell any furniture , _ m Ottawa to any person except ~W. W. Roller & Co. The provision of the contract relating to this matter reads as follows:
“In consideration of deduction of $589.62 made by W. W. Roller & Go., as above, said C. M. Ott and A. Gottschalk on their part bind themselves not to sell any furniture in Ottawa to any other parties other than said W. W. Roller & Co., and at the lowest market-prices.”
This contract does not prevent the “ Ottawa Furniture and Wood-Work Company” from selling to others than Roller & Co. in Ottawa. And it does not prevent Ott and Gottschalk from selling furniture to others than Roller & Co. just outside of the city limits of Ottawa. It was probably designed to prevent Ott and Gottschalk from establishing a furniture store in the city of Ottawa. To this extent, and to the extent of binding them not to sell furniture in Ottawa to any one except W. W. Roller & Co., we think the contract is valid.
The last clause of said contract reading, “and at the lowest market-prices,” is probably void for uncertainty. The defendants are not bound to sell furniture to Roller & Co. anywhere, or at any price, and they are certainly not prohibited from selling furniture to any one, or at any price, outside of the city limits of Ottawa. Other'portions of said contract not quoted in this opinion are about as defective as said clause. All contracts of this kind are to some extent against public policy, and hence their provisions should not be extended by construction or implication so as to favor parties desiring to enforce them beyond what their terms would most clearly require. They are not any where, to be looked upon with favor. And where a party desires to enforce one of them, he must simply take what he has in the clearest terms got. That such contracts are valid, we would refer to the following authorities: Dean v. Emerson, 102 Mass., 480; McClurg’s Appeal, 58 Penn. St., 51; Dunlop v. Gregory, 10 N. Y., 241; Beard v. Dennis, 6 Ind., 200; Thomas v. Miles, 3 Ohio St., 274.
The judgment of the court below is reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case resembles in many respects the one of the same plaintiff in error against M. Gr. Brown, just decided; (ante, p. 557.) The contractor, and the work contracted for, were the same. There is however one material difference between the two cases, a difference which is fatal to the claim of the defendant in error. The debts for which Brown’s action was brought were debts to laborers. Baker sues for services rendered the contractor as “time-keeper,” and “superintendent.” Is such a debt one within the scope of the act? We think not. The act provides that the railroad company shall take from the contractor a “bond, conditioned that such person shall pay all laborers, mechanics, and material-men, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons,” etc., and in case of a failure to take such bond that the company “shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.” (Laws of 1872, p. 286, §1.) This act does not provide that the company shall be responsible for all debts contracted by the contractor, but, only those to certain classes of persons. Now the only class in which Baker can by any sort of construction be placed, is described by the term “ laborers.” Doubtless this term is often used in an enlarged sense, as embracing all persons who perform any kind of labor, physical or mental. In that sense any professional or literary man is a laborer; and in that sense Baker, as “time- • keeper” and “superintendent,” was a laborer. But it is very apparent that it is not used in any such sense here. If it were, the succeeding term of description, “mechanics,” would be superfluous, for a mechanic is in that sense unquestionably a laborer. Indeed, the terms of description associated with this clearly indicate its meaning. Nosoitur a sociis. These show that it is here used in its more common acceptation, and in accordance with the definition given by Webster, as follows: “Laborer. One who labors in a toilsome occupation; a man who does work that requires little skill, as distinguished from an artisan; sometimes called a laboring man.” We find the terms “laborer” and “mechanic” used elsewhere in the statute in conjunction, and with the same meaning. See the exemption act, Gen. Stat., p. 474, § 6, where it is provided that no personal property “ shall be exempt from attachment or execution for the wages of any clerk, mechanic, laborer or servant.” Counsel contends that this is a remedial statute, and should be liberally construed. But it is also a statute imposing an additional liability, and under which it is sought to make the company responsible for a debt it never contracted. Such a statute should never be extended beyond the fair import of its terms. If the legislature had intended to give all employes of a railroad contractor the benefit of its provisions, it could have expressed that intention in fewer words, and leaving no room for doubt. Designating classes, it intended that only those classes should be thus protected j and it could hardly have used terms more apt to exclude clerks, time-keepers, superintendents, and that kind of employes, than those actually used. Ericcson v. Brown, 38 Barb., 390; Aikin v. Wasson, 24 N. Y., 482. See upon this general question, Coffin v. Reynolds, 37 N. Y., 640.
We think therefore the railroad company was not liable for the demand sued on in this action, and the judgment must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action commenced in the district court of Cloud county, by D. R. Anthony as plaintiff, on a certain bond of which the following is a copy:
“Know all men by these presents, that I, Mark J. Kelley, of Osborne county, Kansas, in consideration of R. F. Herman, B. V. Honey, F. K. Teter, David Keller, and E. Kennedy assuming the payment of a certain chattel mortgage given by the said Mark J. Kelley to D'. R. Anthony, dated August 20th 1871, and filed August 30th 1871, in Cloud county, Kansas, and holding the said Mark J. Kelley harmless and indemnified therefrom, which by the said R. F. Herman, B. V. Honey, F. K. Teter, David Keller and E. Kennedy is agreed, as is shown by their becoming parties hereto and signing these presents, and in consideration of one dollar in hand paid, do hereby sell, assign, transfer and set over unto the said R. F. Herman, B. Y. Honey, T. K. Teter, David Keller and E. Kennedy, the following described property, viz., one Washington hand-press, and all the type, being about four hundred pounds of type, and one lot of office fixtures, being the same which were formerly in and about the office- of the “Republican Yalley Watchman,” heretofore published at Clyde, Cloud county, Kansas. Witness our
hands and seals at Concorc ia, June 24th, 1872.
R. F. Herman. [Seal.] Mark J. Kelley. [Seal.]
B. V. Honey. [Seal] F. K. Teter. [Seal.]
David Keller’ [Seal.] E. Kennedy. [Seal.]
A demurrer was sustained to the petition, and of this ruling plaintiff in error complains. No brief has been filed by counsel for defendants in error, so we are not advised as to the point upon which' the district court placed its ruling. Counsel for plaintiff in error states in his brief that the only question in the case was whether the promise of the defendants, as set forth in the bond, was sufficient to sustain an action by the plaintiff; and it seems probable that the ruling was based upon this question. In it we think the court erred. That the defendants received ample consideration, is evident. Indeed, if none were expressed, the promise in writing imports a consideration, under our statutes. For this consideration they agreed to assume the payment of the chattel mortgage to plaintiff. True, the consideration of this promise did not proceed from the plaintiff; but notwithstanding some conflict in the authorities, we think the rule is settled, that an action will lie on a promise made by a defendant upon valid consideration to a third party for the benefit of the plaintiff, although the plaintiff was not, privy to the consideration. 1 Smith’s Leading Cases, 385, 388; Schermerhorn v. Vanderheyden, 1 Johns., 140; Cleaveland v. Farley, 9 Cowen, 639; Barker v. Bucklin, 2 Denio, 45; Delaware & Hudson C. Co. v. Westchester Bank, 4 Denio, 97; Lawrence v. Fox, 20 N. Y., 268; Arnold v. Lyman, 17 Mass., 400; Hall v. Marston, 17 Mass., 575; Carnegie v. Morrison, 2 Metc., 381; Brewer v. Dyer, 7 Cush., 337. But see on the other hand, Mellen, Adm’x, v. Whipple, 1 Gray, 317. It may be proper to state that Kelley, one of the parties to this agreement, is not party to the controversy in this court, he not having joined in the demurrer below.
The judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer. .
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action originally commenced by Brown before a justice of the peace, seeking to hold the railway company, for debts created by one W. B. McLeod, under and by virtue of ch. 136 of the laws of 1872. That act is entitled, “An act to protect laborers, mechanics and others in the construction of railroads,” and provides that a railroad company shall take a bond with certain conditions from any person to whom it lets a contract for the construction of its road, or any part of it, or become itself liable to the laborers employed by him. Four principal questions are presented by counsel for the company — first, was the bill of particulars sufficient? second, was there any contact between the company and McLeod for the doing of any work ? third, if there was a contract, was the work contracted for such as is embraced within the terms of the act ? and fourth, were the debts also within its terms ? Of these in their order:
I. Was the bill of particulars sufficient? It must be remembered that pleadings in a justice’s court are not to be subjected to the same strictness of construction as those in the upper courts. Lobenstein v. McGraw, 11 Kas., 645; Kaub v. Mitchell, 12 Kas., 57. So that if the essential facts are stated in such a way that the defendant cannot be misled as to the real claim against him, the bill must be taken as sufficient. Tried by this rule, the bill is plainly sufficient. Indeed, we think it would stand a stricter test. It alleges a contract between the company and McLeod, that the company failed to take any bond; that for work done under that contract McLeod drew certain orders in favor of the laborers upon plaintiff, which he filled, and also gave to one of such laborers a note which plaintiff bought, and gives copies of the orders and note, and alleges that neither the orders nor the note have ever been paid. It is true, the paragraph which alleges the drawing of the orders is a little bungling and confused, (though perhaps that may be due to an error of the copyist,) but the criticism to which it is properly subject is grammatical rather than legal.
II. The evidence of a contract was clear and abundant. E. B. Stevens, who testified that he was in the employ of defendant, and styled “Superintendent of Buildings and Bridges,” was directed by the general manager of the defendant to have certain work done, and made a contract with McLeod to do it. The written memorandum of this contract was in evidence, and is as follows:
“W. B. McLeod agrees to do grading between tracks south of passenger depot, in Parsons, under the direction of the engineer of the M. K. & T. Railway Company, for 21 cents per cubic yard, (one cent per yard overhaul;) the work to be done to the acceptance of engineer, within 30 days.
“W. B. McLeod.
“E. B. Stevens.”
Now while the defendant does not appear upon the face of this agreement as party thereto, yet the testimony of Stevens above given shows that he was simply the agent of the company, and as such agent made the contract with McLeod. Upon such testimony McLeod would have had no difficulty in recovering from the company for the work he did under said contract. It was plainly its contract.
III. The work contracted for was “grading between tracks south of passenger depot, in Parsons.” The extent of the work does not appear, but it was stated by the witness Stevens that side-tracks had been laid on this grade, and that a portion of the main track ran over it. His testimony as to the instructions given him, and in pursuance of which he made the contract with McLeod, was as follows :
“He (the general manager) and I were walking over the ground between the tracks just south of the passenger depot. He said to me, ‘I want you to go and have this ground graded to that cut on the hill, about 100 yards from where the freight depot now stands, and have the cut widened, and haul the dirt up and fill it between the tracks; fill up the hollow places, and round off the ground, so as to give drainage/ ” [And upon cross-examination Stevens further testified as follows:] “The object of the work was, to fill up hollow places between the tracks, to finish and round off the grade in the yard, so as to give better drainage, and to give room for additional side tracks when wanted.”
This was all the testimony tending to show the character of the work. The language of the statute is, “ Whenever any railroad company shall contract with any person for the construction of its road, or any part thereof, such railroad company shall take,” etc. (Laws of 1872, p. 286.) And the contention of counsel is, that the act only applies to the original construction of .the yoad, and not to work done in repairs and improvements — “not in repairing one already built, nor throwing úp an embankment to protect one already built, nor in filling between tracks so as to give drainage to the road-bed, and protect it from being washed by heavy rains.” Now, whatever may be the exact limitations of this act, we think there was sufficient testimony to sustain a finding that the work done was in the construction of a part of defendant’s road. The act does not cease to be applicable when a single track has been completed, but applies whenever the company enlarges its road by the extension of its single track, or the addition of side-tracks. Here was something more than repairs, something more than embankment to protect track, or filling for purposes of drainage. Evidently, additions- to the road were contemplated; side-tracks were to be graded for; a part of the road was to be built; and the act was applicable.
IY. The debts were all originally to laborers, and for work done on this grade. But the present plaintiff was not the original creditor. The note he purchased, and the orders were drawn on him by the contractor. In this way the original creditors, the laborers, have received their pay, and transferred their claims to the plaintiff. But the debts have not been paid by the debtor, the contractor. The language of the act is, “and if such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.” This responsibility of the company stands in lieu of the bond, and is security for the debt; and when the debt is assigned, it carries the security. We do not understand the expression, “liable to the persons herein mentioned,” as making the security purely personal, and non-assignable, but simply as imposing a direct and original liability, and independent of the amount remaining due by the company to the contractor.
Upon the whole case we think the judgment of the district court must be sustained.
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The opinion of the court was delivered by
Johnston, C. J.:
Jessie Dunn recovered a judgment against John Madden and C. E. Cooper, as commission for finding a purchaser for a royalty interest in oil and gas production from a certain tract of land, and defendants appeal.
It appears that C. E. Cooper had procured a ten-day option on the royalty from the owner at a price of $25,000 and desired to sell it an an advanced price, and $40,000 was named as his selling price. It was alleged that he proposed to the plaintiff who was acting as stenographer in the office of the defendants, that if she could find a purchaser for the royalty he would pay her $1,000. She suggested that A. J. Bellport, with whom she was acquainted, was a dealer in oil properties and that she might be able to induce him to buy it. Cooper dictated a letter to Bellport describing the property, present production and the prospects for still larger production, and stated that his asking price was $40,000, which letter the plaintiff signed and sent to Bellport. She wrote another letter to Bellport urging him to buy the royalty and stated that she had been promised a commission if she found a purchaser for it. In response to these letters Bellport came to Wichita and after negotiations he purchased the royalty for $30,500. Afterwards a controversy arose between the parties as to the liability of the defendants for the commission and hence this action was brought.
The main contention of defendants is that the evidence is insufficient to uphold the findings and verdict of the jury. That there were negotiations between the plaintiff and Cooper as to the part she was to take in inducing Bellport to purchase the royalty is not disputed, but they disagree as to the terms of the arrangement made and the compensation to be paid.- Plaintiff’s testimony was in effect that Cooper promised her $1,000 if she would induce Bellport to buy the royalty. Cooper’s testimony was to the effect that if she procured Bellport to buy the property at a price of $40,000, he would make her a present of $1,000, and in this he was supported by the testimony of John Madden, jr., who stated that he was present and heard the conversation between the parties. There were some circumstances in the case confirmatory of the testimony of the plaintiff. Whether she was to have the stipulated commission for procuring Bellport to buy the property or to be paid upon the condition of a sale at the asking price of $40,000 was an important fact but only a question of fact, upon which the testimony was in direct conflict. It was a question for the triers of the facts. Some inconsistencies and improbabilities in the testimony of the witnesses for plaintiff are pointed out, but after all the result depended upon whether the jury and trial court gave credit to the witnesses of the plaintiff or .to those of the defendants. The rule consistently followed in this court for more than a half century is that this court on appeal cannot weigh conflicting evidence nor pass upon the credibility of witnesses. That is the function of the jury who are in a better attitude than this court t'o determine these questions. We cannot set aside the finding of a jury based on conflicting testimony because of the greater number of witnesses who gave adverse testimony nor because the evidence in record form may seem to us to preponderate against the finding. If the jury are unable to reconcile the evidence they must then accept that which they deem to be worthy of belief and reject the balance. It cannot be said that there was no evidence to sustain the theory of the plaintiff nor that it was not sustained by substantial evidence, and hence the finding of the.jury is conclusive upon this court.
Another point of contention is that there was no evidence to uphold the finding that the defendant, Madden, was liable as a partner in the oil transaction. He insists that he had no other interest or part in the transaction than to advise Cooper, in whose name the option was held, as to the form of the contract and the legal questions involved in the transaction. Testimony to this effect was given. On the other hand, there was testimony tending to show that he was jointly interested with Cooper, and also of admissions made by both Madden and Cooper that the former had a partnership interest in the deal. There was evidence too that he took a part in the negotiations beyond that of giving legal advice as to the sale of the royalty, and further, that he shared in the profits of the sale. It may be said that testimony was given to the effect that the $2,400 paid to him from the proceeds of the sale was payment of a debt of gratitude owed to him by Cooper and was not paid as a share of the profits of the transaction. As the defendants contend, the fact that defendants were partners in the practice of law does not, of course, tend to show that they were partners in the oil transaction, but the court was careful to instruct the jury that before they could find that Madden was liable to the plaintiff it must be shown by a preponderance of the evidence that they were partners in this particular oil deal. On the evidence in the record it must be held that it is sufficient to warrant a finding of a partnership liability of Madden.
We find nothing substantial in the objections to rulings on ■the admission of evidence. Nor do we find anything substan tial in the errors assigned on the giving and refusal of instructions. The instructions of the court fairly submitted the issues in the case to the jury.
Complaint is made of an answer of the jury .to the following special question: “What service, if any, did the plaintiff perform to bring about or induce the sale of the oil royalty outside of the mere writing of said letter ?” The answer first returned was: “Sale made through her efforts.” The court required the jury to make a more complete answer as to the services rendered and their answer as finally returned was: “Sale made through her efforts. None.” The meaning of the finding is reasonably clear and is that the only service performed or effort made by plaintiff to induce the sale was the writing of the letter. This letter it appears was sufficient to bring a purchaser to the defendants, and under the theory Upheld by the jury as to the employment of the plaintiff, was sufficient to earn the promised commission.
It is contended that the findings relating to the partnership liability of Madden are insufficient. The following questions were asked and answers given:
“Q. 2. Was the sale of the oil royalty by Mr. Cooper on his own account and not a partnership transaction? A. No. .
“Q. 3. Did Mr. Madden ever employ the plaintiff to sell said oil royalty to Mr. Bellport? A. Yes.
“Q. 4. Did Mr. Madden ever know of the claim of plaintiff for compensation until long after royalty was sold? A. Yes.
“Q. 6. Did plaintiff ever tell Mr. Madden that he owed her any sum whatever for services rendered in the sale of royalty? A. Yes.
“Q. 7. Did Madden directly or indirectly have anything to do with the sale of said royalty to Mr. Bellport? A. Yes.
“Q. 8. If you answer the foregoing in the affirmative state wherein he had anything to do with said sale. A. In partnership business, yes, directly interested by approving of the contract.”
One of the contentions is that these findings are without support in the evidence, but as already indicated this contention cannot be sustained.
Particular complaint is made of the last of the findings and it is argued that as made it supported the theory of Madden that he only acted as an attorney for Cooper in approving the form of the contract. The answer is not as definite as it should have been made, but it is manifest that the jury did not intend to find that the only connection Madden had with the sale was the giving of legal advice to Cooper or the examination and approval of the form of the contract. The jury in effect found that his action was taken as a partner, and that he approved and agreed to the terms and conditions of the sale. It has been often decided that if special findings will fairly admit of an interpretation which will harmonize them with and sustain the general verdict, that interpretation should be given. The findings are to be interpreted in the light of the evidence, and there being testimony to support the finding as interpreted, it is held that no error was committed in refusing to set it aside.
Finding no prejudicial error in the proceedings, the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Since 1909 the defendants, under a written contract with the Lawrence Railway and Light Company (since acquired by the plaintiff), have been furnishing electrical power to the plaintiff, and the sole question in this case is one involving defendants’ right to terminate the contract. ' The plaintiff, and its predecessor in interest, will be referred to as the plaintiff. Sometime in 1915 defendants notified plaintiff that they had reached their capacity in furnishing electric energy. On various occasions thereafter the parties discussed the matter until 1918, when the defendants gave plaintiff formal notice that they would' be compelled to terminate the contract because of the insufficiency of water power. Notice of termination was again given in 1919, when plaintiff brought this action to enjoin defendants from terminating the' contract.
On the trial the court made findings of fact and conclusions of law, finding the issues in favor of the plaintiff, and granted the injunction. The defendants appeal.
The defendants are the owners of the Bowersoek mills at Lawrence and the Bowersoek power dam in the Kaw river at Lawrence. At the time the contract was made, April 24, 1909, both parties believed the water power sufficient to cover the demands of both under ordinary conditions and to allow for normal growth of the business of both. Doubtless for that reason there was no express limit placed in the contract as to the amount of energy which was to be used by the plaintiff or furnished by the defendants. It was stated in the contract that defendants proposed to furnish, and plaintiff proposed to take, the energy required by the plaintiff.' There was, however, a conditional limit mentioned in the contract which was, the extent of the water power supplemented, in case of extraordinary occasions, accidents and emergencies, with steam power. In 1909 the amount of power demanded by plaintiff was 643,000 kilowatts per year. By 1914 plaintiff’s demand had increased to 1,686,000 kilowatts; in 10 years it had increased to 2,164,000. The increase was occasioned largely by the demand for electric light which usually comes during the hours from 6:00lo 12:00 p. m. This demand is spoken of in the evidence as the “peak load,” and from 1909 to 1919 the peak load had increased more than three times. During these years the demand of the defendants likewise increased. They constructed a second flour mill, doubling their demand for that purpose, and took on a contract with the city of Lawrence for pumping water, which required additional power. The second mill, however, was shut down during the peak load, and the contract with the city contained a provision that it should receive only such amount of power as might be absolutely necessary between 6 o’clock pi m. and midnight. In 1915 defendants put flushboards two feet high on top of the dam, increasing the head of water by an equal amount. The boards were washed away séveral times a year but were replaced and maintained, and they added about one-third to the capacity of the water-power plant. In 1916, plaintiff required 260,000 kilowatts more than in 1915, and it was found necessary to operate the auxiliary steam plant on more than five-sixths of the days of that year. After the defendants, in the fall of 1918, notified plaintiff that they would be obliged to terminate the contract in accordance with its terms and urged plaintiff to make other arrangements to obtain power, defendants renewed their storage batteries and made a number of changes in an attempt to increase the water power. Use of the auxiliary steam plant was required on more than four-fifths of the days during 1918, and in 1919 on more than two-thirds of the days.
There is no claim by either party of deceit or fraud in the wording of the contract, and no claim that either party misunderstood its terms. There is no question concerning its validity, and both parties insist upon its enforcement.
The first paragraph of the contract provides that defendants shall sell and deliver to plaintiff electric energy, and that plaintiff shall purchase and pay for the same for a term of twenty-one years unless sooner terminated as provided in the contract.
The next paragraph provides that when there is not ample or sufficient water power to operate the railway and electric lighting system of plaintiff, the defendants shall supply sufficient power from the auxiliary steam plant, and provides for certain installations of water power, steam and electrical equipment. The''plaintiff also agreed to install certain electrical storage batteries, “to be charged and paid for to the- extent of $45,000 in cash,” and also to install an auxiliary steam turbine or gas engine plant.
The third paragraph provides:
“The party of the first part proposes to furnish all the power that may be necessary and required by the party of the second part. It is not the understanding nor agreement that The Bowersock Mills and Power Company will operate the steam or gas plant continuously, or the water power plant and steam plants together continuously. It is the understanding that the water power under ordinary conditions will supply the power to be required, and the steam or gas plant is for extraordinary occasions, accidents or emergencies. In case the party of the first part has not sufficient water power at any time to supply sufficient current for the party of the second part, it shall immediately and so that there will be no unreasonable interruption in the operation of its railway or lighting system, put in operation the auxiliary steam of gas engine plants as the case may be, in order to supply sufficient power for the party of the second part, and to exercise due diligence in operating its plants to provide the party of the second part with a continuous supply of energy or power to meet the requirements of the party of the second part.”
The same clause provides in substance that if all the power generated from the auxiliary plants shall be temporarily necessary for the interest of the plaintiff, it shall have the exclusive use of the same.
In the fifth paragraph it is agreed that the defendants do not guarantee to maintain the dam and power, and will only be entitled to pay when they furnish a merchantable electric current and that—
“In case of the failure, however, of the party of the first part to maintain its dam and water power, or in case this contract for any reason is abrogated or annulled, then the party of the second part shall have the right to acquire the auxiliary steam turbine or gas engine plant to be erected by the party of the first part in the manner as hereinafter provided.”
The main controversy between the parties arises over the terms of paragraph six, which reads as follows:
“If, after the installations are made as herein provided for by the party of the first part, it should be ascertained after careful trial and demonstration, that the water power is unsatisfactory and insufficient to operate the mills of the party of the first part and the plants of the party of the second part, then this contract shall be abrogated and declared null and void, and in such event, the contract made- on January 2, 1906, by and between the Bowersock Mills and Power Company and The Lawrence Electric Light Company, a copy of which is hereto attached, shall be in full force and effect, otherwise said contract made between The Bowersock Mills and Power Company and The Lawrence Electric Light Company, on account of the considerations herein mentioned shall be fully annulled and of no force and effect.
“In the event that the operation of such plants can be successfully carried on by any alterations, modifications or installations of any additional devices, machinery or appliances at a total cost of not exceeding five thousand dollars, then the same shall be remedied without unnecessary delay by the party of the first part.
“In the event that it should be found that water power is unsatisfactory for the successful operation of the purposes of either or both the parties hereto, the party of the second part shall have the right to purchase the auxiliary steam or gas plant at its then value and in case the parties can not agree upon such value, the same shall be submitted to arbitration in the following manner. . . .”
There follow provisions for the appointment of arbitrators for fixing the value of the plant in the event plaintiff should exercise its right to purchase the auxiliary steam or gas plant at its then value,, and in case the parties should be unable to agree upon the valuation.
It is plaintiff’s contention that the provision referred to a single specific test of the character and sufficiency of the water power, and that in case such test demonstrated that the power was of a satisfactory character and was sufficient, that ended the matter, and that from that time until the termination of the twenty-one-year period, defendants.were bound to furnish all the energy required by the plaintiff. On the other hand the defendants make the contention that these provisions refer to a continuous possibility — the possible unsatisfactoriness or insufficiency of the water power from any cause at any time, and that these provisions continued in force during the life of the contract for the purpose of meeting such conditions. They further contend that the water power has now become entirely insufficient, and that the contract by its express terms is subject to termination. The trial court took the view that the contract was ambiguous in this respect and heard considerable evidence for the purpose of determining its meaning.
We are unable to discover anything ambiguous in this paragraph — standing alone, and when other paragraphs, notably paragraph three, are read in connection with it, and the contract is considered in its entirety, there can be no doubt as to the understanding of the parties. The defendants, in connection with operating flour mills, maintained power plants and had surplus energy to sell. Plaintiff required for its purpose electric energy and both parties understood and anticipated that the normal growth of the business of each would increase the demands for electric power. The plaintiff did not contract for an unlimited supply of energy; nor did it understand that defendants in entering into the contract contemplated sacrificing their own demands or checking the normal growth of their plants in order to supply an increased demand of plaintiff. Neither party knew in 1909 the capacity of the water power. Both believed that on ordinary occasions it would prove sufficient to meet the demands of both and probably allow for the normal expansion of the business of both. Hence the provision limiting the extent to which defendants obligated themselves to make use of steam power, which was to supplement the water power .with steam power in case of extraordinary occasions, accidents and emergencies. It is hardly conceivable that either party anticipated the remarkable increase in the demands of plaintiff for electric energy — an increase from 643,-000 kilowatts per year to 2,164,000 kilowatts, in ten years; or that either anticipated that the capacity of the plaintiff’s mills and the defendants’ own demand for power would be more than double.
Paragraph six specifically mentions a former contract between the parties, made on January 2, 1906, and declares that if after all installations are made it should be ascertained, after careful trial and demonstration, that the water power is unsatisfactory and insufficient to operate the defendants’ mills and the plaintiff’s plants, the contract shall be abrogated and the contract of 1906, a copy of which is attached, shall thereupon come into full force and effect, with an additional proviso that if the operation of the plants of both parties can be successfully carried on by any alterations or installation of additional appliances to cost not to exceed $5,000, then the same shall be furnished by the defendants without unnecessary delay, and a further provision is that in the event it should be found that the water power is unsatisfactory for the successful operation of the purposes of either or both of the parties, plaintiff shall have the right to purchase the auxiliary steam plant at its then value.
The plaintiff alleged in the reply that “the new installations provided for in said contract of April 24, 1909, were all made and completed prior to the 1st day of March, 1910, and that thereafter a careful trial and demonstration was made, and as a result thereof the power developed by defendants’ plants proved satisfactory and sufficient to furnish the electric energy required for plaintiff’s use and to operate the mills of said defendants, as they then existed.” But the purpose of the demonstration provided for in the sixth clause of the contract was to ascertain whether the water power alone was satisfactory and sufficient to operate the plants of both parties, except in cases of emergency — not whether the power developed from defendants’ steam and water-power plants was sufficient.
The contention of plaintiff that the provision for trial and demonstration was understood to refer to the making of a single specific test to ascertain whether the water power was of a satisfactory character and sufficient, and that both parties understood that if such a test — made, though it might be as early as 1910 — proved favorable, it would result in the final exhaustion of the force of the provision for the abrogation of the contract is, in our opinion, not a reasonable construction of the language of the paragraph. The language is not that “after a careful trial” or after “a demonstration.” The use of general terms indicates that it was not intended to limit the test to a single trial or to a specific demonstration. Moreover, this is manifest from other specific provisions of the contract and is in harmony with the evident intention of the parties when the contract is considered in its entirety.
The provision for abrogating the contract was not for the benefit of the defendants alone; it was for the mutual benefit of both parties and gave to either the right under certain conditions to declare the contract annulled and the old contract in force. One of the most certain things about the contract is that the parties contemplated the possibility of the power becoming wholly unsatisfactory and insufficient from any cause, at any time, because of changing conditions in the water supply and enlarged demands for power to take care of the normal growth of the business of both parties. It is inconceivable that the contract contemplated that, notwithstanding these possibilities, defendants were binding themselves to furnish plaintiff whatever amount of power plaintiff might require for the balance of the twenty-one years, and at the sacrifice of their own business, provided the result of a test made within twelve months after the execution of the contract should demonstrate that the water power was satisfactory and sufficient for the requirements of both parties as conditions then existed. And yet, plaintiff’s position in this lawsuit is, in effect, that because in 1909 or 1910 it was demonstrated that defendants were able to furnish plaintiff 643,000 kilowatts, which was sufficient for its demands at that time, they must in 1919 furnish plaintiff 2,164,000 kilowatts.
In fact there is- no specific limitation of the time in which the ascertainment is to be made except that it is after careful trial and demonstration, which, of course, must be construed as referring to the means and not the time of ascertainment. The trial and demonstration are merely incidental to the direct requirement that ascertainment be made. The plaintiff’s contention would in effect eliminate the word “sufficient,” because the water power was something subject to constant change and its sufficiency for the next twenty years could not in the nature of things be ascertained in 1910. As we construe the contract the question was not to be determined once for all by the conditions existing at the time the installations were made, but was subject to be determined from time to time as conditions might be changed by the flow of water in the river, or by an increase or decrease of the energy required to operate these plants. In other words, paragraph six contemplates a continuous possibility that while the water power might prove sufficient at first, it might by changed conditions at any time during the life of the contract become wholly insufficient, in which event the contract would then, at the instance of either party, become subject to termination. For instance, the first paragraph provides that the contract shall be in force for the term of twenty-one years “unless sooner terminated as provided herein.” The language “unless sooner terminated as provided herein” has reference to a continuing right or possibility of termination. The fifth paragraph declares that the defendants do not guarantee to maintain the dam and water power, and will only be entitled to pay when they furnish a merchantable electric current, with a further provision protecting the plaintiff by giving it the right to acquire the auxiliary plant in the event of defendant’s failure to maintain, or in case the contract for any reason is abrogated or annulled. This provision undoubtedly continues in force during the entire twenty-one years and gives plaintiff the right to purchase the auxiliary plant at any time the water power fails. The provision that if the water power proved insufficient to supply power to both parties, the former contract between the parties shall immediately spring into force, and that the plaintiff may acquire the steam plant and may take immediate possession pending negotiations, protects the plaintiff and avoids the slightest possibility of its being deprived of power by unnecessary delays.
We are aided in our construction, too, by the provision in paragraph six, undoubtedly a continuing one, to the effect that if the expenditure of $5,000 would remedy defects discovered by trial or demonstration, then the defendant should make that expenditure and remedy the defect. And in paragraph' five it is declared that the defendants do “not guarantee to maintain said dam and power and will only be entitled to pay when” they furnish a merchantable electric current; and the same clause further provides that in case the contract for any reason is abrogated, plaintiff is given the right to acquire the auxiliary steam plant. It is clear that if the water power failed to furnish sufficient energy for plaintiff’s use, there was no provision that defendants should operate the steam plant. Under paragraph five, the plaintiff’s only remedy in that event was to purchase the steam plant. We have already referred to paragraph three, which declares that it is not the understanding that the steam plant shall be operated continuously or the water and steam plants together continuously, and that it is the understanding of the parties that the water power is sufficient under ordinary conditions, and that the steam plant is to be used for extraordinary occasions, accidents and emergencies.
The provision in paragraph six, tested by itself and by reference to other provisions, and by the contract considered as an entirety, discloses no ambiguity. The provision for trial and demonstration is construed to be a continuous one which ..contemplated a possibility that the water power might prove unsatisfactory or insufficient at any time. It is hardly necessary to refer to authorities that the contract must be construed as a whole (Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 46), or that where it is not ambiguous the terms of the ■contract control, and extraneous evidence cannot be resorted to to explain the contract. (Walsh v. Fuel Co., 102 Kan. 29, 169 Pac. 219.)
In its reply plaintiff alleged that defendants were estopped and also guilty of laches because they voluntarily used steam to supply the deficiency in the amount of energy, and as one of its conclusions of law the trial court held that “the voluntary and continuous use of steam to supplement the water power to carry the peak load since the inception of the contract constitutes a practical interpretation given to the contract by the parties, which interpretation the courts will adopt.”
In voluntarily using steam when absolutely not required to do so by the contract the defendants lost none of their rights under the contract which, by express terms, was to continue for twenty-one years “unless sooner terminated as provided herein.” The right to terminate was a continuing one, to be exercised at the election of either party. Continued performance, even after giving formal notice of an intention to abrogate, manifested a desire on defendants’ part, not only to benefit themselves but the plaintiff as long as practicable. To deny defendants at any time during the twenty-one-year period the right to rely upon the abrogation clause upon any such grounds would be most inequitable. The delay in moving to rescind benefited, rather than prejudiced, plaintiff. Delay alone never constitutes laches. It has been said that—
“Laches in legal significance, is not mere delay, hut delay that works a disadvantage to another.” (10 R. C. L. 396.)
“One who goes beyond the requirement of his contract in circumstances of doubt ought not from that fact alone to have his act given the effect of a concession.” (McLean & McLean v. Windham Lt. & Power Co., 85 Vt. 167, 176.)
Moreover, there was no room in this case for the application of the rule of practical interpretation, which is resorted to by the courts only when there is ambiguity or doubt as to the meaning of the contract.
“Where the contract is clear, there is no necessity for resorting to the conduct and dealings of the parties for a -construction. In such a case the contract speaks for itself.” (Glynn v. Moran, 174 Mass. 233, 237. See, also, Plano Manf’g Co. v. Ellis, 68 Mich. 101.)
Another of the court’s conclusions .of law was that if it should be determined that the provisions of article six of the contract contemplated a trial and demonstrat'on at any time during the life of the contract and that the contract can be abrogated at any time for insufficiency of water power from whatever cause, “then and in that event such provision must be disregarded because it is repugnant to prior provisions of the contract,” citing 6 R. C. L. 847.
The paragraph cited by the court states a rule as follows:
“It has been laid down as elementary law that if two clauses of a contract are so totally repugnant to each other that they cannot stand together, the first shall fce received and the latter rejected.”
The contract in this case contains no repugnant clauses. The theory of the lower court loses sight of the language of clause one which declares an intention to deliver and continuously maintain electric, energy “so far as is reasonable and practicable,” and “subject to the provisions of this contract for the term of twenty-one years, unless sooner terminated as provided herein.” The first clause gave notice to all parties concerned that it was to be modified by subsequent provisions of the contract — not only defining what was meant by the expression “so far as is reasonable and practicable,” but that the agreement to sell and deliver for the term of twenty-one years was expressly subject to subsequent provisions providing for the abrogation of the contract.
In the same paragraph of Ruling Case Law quoted by the trial court it is said:
“Moreover, it is' only when the language of a clause, with reference to the actual facts, involves such fatal errors and mistakes as leave the court without reasonable means of ascertaining the real intention that the clause will be rejected.” (6 R. C. L. 847.)
A slavish adherence to a like rule long- followed by the courts in cases involving the construction of different clauses or separate provisions of a will resulted in a wilderness of useless precedents, and often in the defeat of the testator’s intention. Modern courts have shown a constant tendency to break away from these artificial rules and to look to the entire instrument in order to discover if possible the testator’s real intention.
In Markham v. Waterman, 105 Kan. 93, 95, 181 Pac. 621, it was said :
“The old rule that a seemingly unqualified devise in an independent and prior clause of a will cannot be diminished by separate, subsequent clauses of the will (McNutt v, McComb, 61 Kan. 25, 58 Pac. 965; 4 Kent. Comm. 270), has been largely superseded by the modern Kansas rule, that the testator’s intention is to be gleaned ‘from the four corners of the instrument’ — from the entire text of the document. Some of our earlier cases foreshadow the coming of this doctrine (Williams v. McKinney, 34 Kan. 514, 519, 9 Pac. 265; Ernst v. Foster, 58 Kan. 438, 47 Pac. 527), and this court was fully committed to it in Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950, and has followed it consistently in all the later cases.”
In another very recent case, Pearson v. Orcutt, 106 Kan. 610, 189 Pac. 160, the court again refused to follow as a precedent, McNutt v. McComb, supra, and said of that decision:
“It was influenced largely by the application of the ancient and artificial rule that where the language of a will on its face imports the vesting of an absolute fee that effect shall not be denied by reason of a subsequent clause attempting a limitation thereon. This rule is one of a number of somewhat similar character made use of in solving problems arising from conflicting provisions by giving preference to one or the other according to some hard and fast formula, instead of attempting to reconcile them- — to ascertain and carry out the actual wishes of the testator as derivable from his language and the attending circumstances. The primary rule of construction now followed by this court, in that situation as in all others, is to give effect to the testator’s real intention as gathered from the entire document, without regard to the place in which it occurs, except so far as that circumstance may logically throw light on his meaning.” (p. 612.)
The same considerations of reason and justice apply to ordinary commercial contracts like the one involved in the present case. The extent to which the modern rule of construction should control in cases involving deeds is, perhaps, another question.
Inasmuch as the contract fully protects plaintiff’s rights in • case defendants elect to take advantage of the abrogation clause, no reason is apparent why judgment should not be directed.
The judgment is reversed and the cause remanded with directions to discharge the injunction and render judgment in defendants’ favor for costs. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for the purpose of having a deed decreed to be a mortgage and for the determination of financial matters pertaining thereto.
The defendant, Melissa J. Johnson, held the title to 80 acres of land in Linn county by a deed of general warranty from the prior owner, one Edgar Goss of Arizona. The defendant, who is the aunt of plaintiff’s wife, is a woman of some financial means. About 25 years ago she loaned' the plaintiff, W. J. Dyer, the entire purchase price of a farm, permitting him to take the title thereto, and she took a mortgage on the property as her security. At various times thereafter she furnished the plaintiff with financial backing. On the strength of this long and amicable relationship, some time in the fall of 1913,' plaintiff began negotiations for the purchase of the 80 acres involved in this lawsuit. He ascertained from the father of Goss, the owner, that the land in dispute could be bought for $2,500. About that time the plaintiff told a neighbor, W. E. Robbins, of his prospective purchase, and that he intended to ask his wife’s aunt, Mrs. Johnson-, for the money to buy the property. Robbins expressed a desire to buy the land, and Dyér told Robbins that as the latter had no land of his own, he would let him have it; and Dyer made a journey to the residence of the defendant at Fort Scott to see if she would advance the entire sum to purchase the land so that Robbins might get it under the same sort of arrangement which she had sanctioned when Dyer got his first farm through her financial assistance many years before. Dyer explained to Mrs. Johnson that he wanted to assist Robbins to get the land, that the land was worth the price, and that if she would advance the money to pay for it, he would stand good for it and take the land if Robbins did not. Mrs. Johnson declined to do as she had done for Dyer himself, pointing out that Robbins was a stranger to her, and if a foreclosure were necessary'that would take considerable time, and there was the possibility of double taxation; but she offered to furnish the $2,500 and take the title in her own-name if Dyer would stand good for her investment and interest thereon at 6 per cent, and that Robbins could go on the land as a tenant under a lease with an option to purchase it at cost, and that Robbins should pay 6% per cent interest, and that she would allow Dyer % per cent for his services in looking after the matter for her.
This arrangement proposed by defendant was agreed to and consummated in February, 1914; and in March, Dyer, Robbins and Mrs. Johnson met James Goss, father of the Arizona Owner, and Mrs. Johnson paid him the $2,500, and the deed was delivered to her. She also executed a five-year lease on the farm to Robbins, at $200 per annum, which lease included an option -that he might purchase the property for $2,500. The option also provided that any excess in the annual pay ment of $200 which might arise after the interest at 6% per cent on $2,500 was deducted therefrom, together with the annual taxes, should be considered as a payment on the purchase price, and that when $500 had been paid on the purchase price, she would give Robbins a deed to the property and take back a mortgage for the balance.
Pursuant to this arrangement, Robbins took possession of the farm and occupied it for nearly three years. He paid the $200 due at the end of the first year but defaulted on the remainder. The plaintiff caused Robbins to give defendant promissory notes for the defaulted payments, and indorsed them as surety. To indemnify himself plaintiff first took an assignment of Robbins’ lease-option, but afterwards Robbins vacated the premises, and the plaintiff himself went into possession. The defendant never concerned herself about the property, never saw it until about the time Robbins vacated it in 1916, and she continued to look to Dyer for the payment 'of the interest on her investment, and to pay the taxes. In March, 1918, he had a settlement with the defendant, paying her the interest on the Robbins’ notes and also the interest on the $2,500 for the year between March, 1917 and March, 1918. During these years Dyer also paid the taxes, but in 1919 defendant paid them herself, as plaintiff discovered when he went to discharge that duty at the usual time.
Meantime, since the plaintiff and defendant first concerned themselves with this land, it had doubled in value. In 1919 Dyer had some negotiations under way with one J. A. Willis looking to its sale at $65 per acre including the crop, and Dyer and Willis went to see Mrs. Johnson and inquired of her whether she would carry a loan of $3,000 on the property. In this conversation Mrs. Johnson for the first time learned the surprising figure at which the land was being negotiated for sale; and shortly thereafter she offered to sell the land herself to a third party, which speedily brought about this lawsuit.
Evidence of the matters above narrated and other less significant details were developed at the trial. The court made extended findings of fact, found that Dyer owned the property and that Mrs. Johnson’s deed was an equitable mortgage, ascertained and determined Dyer’s debt to Mrs. Johnson, and decreed the same to be a first lien on the land, and ordered judgment in her favor for the amount due her with interest and for the taxes she had paid in 1919, aggregating $3,268.42, and ordered foreclosure unless plaintiff paid the same within ten days.
The defendant,- Mrs. Johnson, appeals, specifying errors:
“1. In overruling the demurrer to the petition.
“2. In admitting improper evidence.
“3. In making findings of fact which are not supported by the evidence.
“4. In making conclusion's of law not warranted by the facts.
“5. In rendering decree in favor of plaintiff.
“6. In overruling motion for new trial.”
Noting these in order, we find no discussion in appellant’s brief touching the court’s ruling on the demurrer. The demurrer to the petition was overruled on February 2, 1920, and this appeal was not taken until October 2, 1920, more than six months after the ruling on the demurrer, and we assume that this point has been abandoned. Furthermore, we have now no jurisdiction to consider it. (Slimmer v. Rice, 99 Kan. 99, 160 Pac. 984.)
Touching the admission of improper evidence, no particular matters are pointed out for our scrutiny and determination. If this has reference to the admission of parol testimony to show that the warranty deed from Goss to Johnson was only an equitable mortgage to secure to her the purchase money for the eighty acres which was to belong to Robbins if and when he repaid her, or to Dyer if Robbins failed and Dyer stood back of him and paid in his stead, then we come to a question of law which is thoroughly settled in this jurisdiction. Such evidence is competent, and the rule is the same whether the matter involved concerns either realty or chattel property. (McNamara v. Culver, 22 Kan. 661, syl. ¶ 2; Butts v. Privett, Sheriff, 36 Kan. 711, 14 Pac. 247; Pope v. Nichols, 61 Kan. 230, 59 Pac. 257; Martin v. Allen, 67 Kan. 758, 761, 74 Pac. 249; Hubbard v. Cheney, 76 Kan. 222, 226, 91 Pac. 792; Winsor v. Winsor, 78 Kan. 885, 95 Pac. 1136; Saylor v. Crooker, 89 Kan. 51, syl. ¶ 1, 130 Pac. 689; Boam v. Cohen, 94 Kan. 42, 145 Pac. 559; Root v. Wear, 98 Kan. 234,. 237, 157 Pac. 1181.)
See, also, an extended treatise on this subject in L. R. A., 1916 B, 18-610.
Passing then to the third assignment of error, and this is the text of most of defendant’s argument, we cannot discern any want of substantial evidence to support the findings of the trial court. These findings are sixteen in number and are too long for reproduction here, but defendant does not specify any single finding as being unsupported by the evidence. Indeed, we do not find much sharp dispute between the testimony given in plaintiff’s behalf and that given for .defendant in the most significant and controlling aspects of this controversy. The defendant herself advanced no convincing theory of any different interpretation which might be placed on her business relations with plaintiff than that of equitable mortgagee, especially after Robbins vacated the premises and Dyer took possession, or which would explain why she continued to look to him for the interest on her investment of $2,'500, and to settle with him on that basis in 1917, and to accept his check, as she did on March 29, 1918, for'the interest on the $2,500 as well as for the interest on the notes for $300 given by Robbins and endorsed by Dyer.
Answering an inquiry by the court, defendant testified:
“Q. At the time Mr. Willis was at your house and talking about the land, did you make the statement that Mr. Dyer would have to take the mortgage? A. In words like this, ‘If there was a $3,000.00 mortgage, he would have tp take the' mortgage.’
“Q. At that time, would you have been willing to take your investment and six per cent interest and sell the land, was that your idea? A. Why, he would have had to have bought the land and paid me out on the'land and then he could have dealt with Mr. Willis.
“Q. He was to pay you $2,500.00 and $300.00 [Robbin’s notes] and six per cent interest? A. He never said he would.
“Q. Is that what you understood? A. Yes, sir.”
The inconsistencies which defendant urges against the testimony for plaintiff are more plausible than real. Of course when plaintiff talked with strangers he spoke of the defendant as the owner of the property; and of course when he desired to lease the land for gas and oil he sent the lease to her for signature. He would hardly be expected to explain to third parties the informal and trusted relationship which existed between them. All these circumstances were in evidence for what they were worth. At the trial defendant’s counsel was at liberty to make the most of them in his argument; but they serve little purpose here. It would not avail even if he succeeded in raising doubt in our minds touching the correctness of the trial court’s findings of fact. The making of those findings was the function of the trial court, not ours; nor can we discern that the parol testimony together with all the evidential circumstances lacked any element of clarity or sufficiency to justify the finding that Mrs. Johnson’s deed, absolute on its face though it was, was in fact an equitable mortgage,- and this we are bound to hold, although we fully recognize the potent rule of evidence laid down in Winston v. Burnell, 44 Kan. 367, 24 Pac. 477, and the other cases cited by defendant. The evidence had the requisite sufficiency to satisfy that rule.
The trial court’s conclusions of law necessarily followed its findings of fact. Once the fact that defendant’s deed was from its inception an equitable mortgage was established, its status as such was crystallized and could be changed only by a new contract, or terminated by foreclosure (LeComte v. Pennock, 61 Kan. 330, 59 Pac. 641; Stratton v. Rotrock, 84 Kan. 198, 114 Pac. 234) ; and this was never done until the judgment was entered in this lawsuit.
• The judgment of the trial court was correct, and the motion for a new trial advanced nothing which tended to show that another trial would or should bring about a different result, and it was properly overruled.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of replevin for an automobile. The defendant, Wilma M. Carter, recovered, and Warner appeals.
In the petition Warner claimed a special interest in the automobile, by virtue of a chattel mortgage dated January 16, 1919, and recorded on January 17. The mortgage was given by J. S. Johnson, to the Motor Bank of Denver, Colo., to secure a note for $550 due March 15. On June 18 Warner bought the note for the balance due, $310, and took an assignment of the mortgage.
The car was a new one, for which Johnson gave another car as part consideration. In the forenoon of January 16 an automobile salesman demonstrated the car to the'defendant. Johnson then “closed the deal for the car,” and at noon prepared and signed a bill of sale of the car, in the office in-Denver in which the defendant worked. The bill of sale was witnessed by two witnesses, and was delivered to the defendant as soon as executed. It recited a valuable consideration, permitted Johnson to use the car on condition he would keep it in repair, and provided he should relinquish his privilege on demand. The instrument was filed for record on June 10. When the bill of sale was delivered to the defendant, she went for a ride in the car with her sister and Johnson. When they returned the defendant went to dinner, and then went riding again during the evening. She kept the car in a garage, for which she paid rent, and she used it without restriction whenever she desired. When she took the bill of sale she had no knowledge of the existence of any chattel mortgage affecting it.
Johnson worked for Warner, at a salary of $150 per month. Warner made loans on chattel security, and Johnson appraised the securities. When Johnson was investigating securities, the defendant made inventories of them for him, and used the car for that purpose. Warner testified he purchased the note and mortgage on a telephone call from the Motor Bank, so Johnson could use the car in doing Warner’s business, but he allowed Johnson -nothing for providing the car. Warner said he investigated the records before he took up Johnson’s note, and found no bill of sale. Warner said Johnson had been using the car in Warner’s business, and Warner purchased the car to obtain its use in his business. He said he was buying the note, and did not care who owned the car, and he said he allowed Johnson to use the car with the understanding Warner owned the car and Johnson was to pay interest. Johnson paid nothing, but no deduction was made from his salary, because, Warner said, he was overdrawn. Johnson was under bond to answer some criminal charge when Warner bought the note.
There came a time when Johnson took the car to a garage other than the defendant’s, and refused to allow the defendant to use it. Her home was in Lebanon, Kan. One day she telephoned Johnson to drive the car to the place where she was employed. They then drove to a restaurant and, when Johnson went into the restaurant, she drove the car to Kansas. She was arrested at Lebanon, in Smith county, without a warrant, was taken to Mankato, in Jewell county, and was then released. A few days later she was again arrested at Lebanon, and was again released on telegraphic instructions to the sheriff from Denver. A few days later she was arrested, and was taken to the jail in Mankato, where she spent the night. Johnson was there when she arrived. After a preliminary examination, she was discharged,: but when she went to the garage where she had left the car, she was served with Warner’s summons in replevin. By direction of Warner, the car was delivered to Johnson. Johnson promptly drove it to Denver, and has ever since had possession of it. Johnson was named as a defendant in the action, but he filed no pleading, and did not appear at the trial, either as party or witness.
In'presenting the issues of fact to the jury the court said the defendant, Carter, claimed the automobile as owner by virtue of the bill of sale, asserted the chattel mortgage was neither given nor recorded until she had purchased the automobile and had taken possession of it, asserted that Warner and Johnson had fraudulently colluded and conspired to deprive her of her property, and asserted that Warner was not in fact owner and holder of the chattel mortgage, but purchased it on behalf of Johnson. The usual necessary instructions on the subject of collusion and fraud were given. Warner says the record discloses no contention' of collusion and fraud made by the defendant, Carter. The instruction referred to is record evidence of the contention. The court’s information may have been derived from the opening statement of counsel to the jury, or from statements of counsel made during progress of the trial, or at the close of the evidence, or by informal request for instructions. There is nothing in the record to contradict the court’s statement, and the statement, being a portion of the record, is presumed to be true.
It is said the issue of fraud could not be raised without pleading it. The action was replevin, the answer was a general denial, and the court has said time and again that under a general denial in replevin a defendant may prove any fact which will defeat the plaintiff’s cause of action. In the case of Holmberg v. Dean, 21 Kan. 73, the rule was applied to proof that the plaintiff’s title was fraudulent. In the case of Kerwood v. Ayres, 59 Kan. 343, 53 Pac. 134, general denial in an action for conversion was placed on the same footing with general denial in replevin, and it was said the plaintiff’s title might be impeached for fraud.
It is said there was no evidence of collusion and fraud. It is not likely that Warner purchased a dishonored note merely on telephone call by a bank and without consultation with Johnson. It is not likely that Warner searched the record for adverse claims upon the automobile and failed to find Carter’s bill of sale, which had been on record since June 10. Warner testified he purchased the car. Then he testified he purchased the note, and was not interested in who owned the car. He testified he purchased the note and mortgage so Johnson might use the car in Warner’s business, and then he testified he owned the car, but Johnson was to pay interest on the sum Warner paid for the car. When the car was taken by the sheriff from Carter, it was turned over to Johnson, by direction of Warner, and Johnson has had it ever since. This shuffiing, considered in connection with the relations between Warner and Johnson, the sandbagging of the woman with repeated arrests, and Johnson’s keeping away from the trial, indicated some collusion between Warner and Johnson.
Defendant Carter’s right to recovery was submitted to the jury in the following instruction:
“3. If you should find from the evidence that the property in controversy was sold and transferred by the defendant, J. S. Johnson, to defendant Carter, and that said automobile was delivered to her prior to the execution of the mortgage upon which plaintiff bases his claim, and prior to the recording of said mortgage, and that the defendant, Wilma M. Carter, had no knowledge or notice of the existence of such mortgage at the time she took said car, then the claim of the plaintiff under said mortgage would be void’ as against the defendant, Wilma M. Carter, and in such event your verdict should be for the defendant, Wilma M. Carter.”
The instruction is criticised because the court did not use the words “sale in good faith for a valuable consideration.” The bill of sale recited a valuable consideration, and by statute imported a consideration (Gen. Stat. 1915, § 2040), which Warner did not offer to contest. The sale and delivery referred to clearly meant actual and not colorable sale and delivery, and the jury must have so understood the instruction. Actual purchase and possession for a valuable consideration before execution of the mortgage, and without knowledge or notice of the mortgage, gave good title as against the mortgage. A subsequent instruction related to procuring title before record of the mortgage. It is said the court did not define procurement of title, and the subject of actual and continued change of possession was not mentioned. The instruction is to be read with instruction No. 3, and when this is done the meaning is clear. Indeed, the instruction was in effect instruction No. 3, with purchase before execution of the mortgage omitted, and consequently reference to continued possession was not necessary.
Complaint is made, that the replevin affidavit filed on behalf of Warner was introduced to prove value of the automobile. The complaint is made on the authority of Edwards v. Bricker, 66 Kan. 241, 71 Pac. 587. In that case the action was against a surety on the replevin bond and, as the opinion points out, the plaintiff in the replevin action was not a party. Here we have the plaintiff’s own valuation of the automobile, stated under oath, and so stated to enable him to obtain possession of the property. Clearly, as against him, the affidavit constituted an admission of value. Other complaints are made respecting proof of value, but there is no contention the verdict of the jury is too large, and the court would not be authorized to award a new trial to revalue the car.
There are ten divisions of the plaintiff’s brief, some of which embrace several subdivisions. The court has considered them all. The foregoing covers the subjects of chief importance, and assignments of error not discussed are not deemed to be of sufficient merit to require a reversal.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appeal presents the question whether the district court erred in dismissing an appeal by C. P. Bolmar from an order of the board of county commissioners of Shawnee county vacating certain streets in-Belvoir addition.
The petition filed with the board of county commissioners was signed by the appellant and two other property owners. It recited that the streets “are not thoroughfares and are of no value to the public, and that no private rights will be injured or endangered by said vacation and that the public will suffer no loss or inconvenience thereby.” The Chicago, Rock Island & Pacific Railway Company filed an intervening petition, stating that it had purchased from Fred J. Ross, one of the petitioners, eight blocks in' the subdivision and desired to join in and be made a party to the proceedings. Subsequently Mr. Bolmar filed a protest objecting to the vacation, and attempted to withdraw his name from the petition, alleging that “the vacation of such road would materially damage me as the owner of land abutting upon such road, and for the further reason that conditions which existed at the time I signed such petition have not been performed, and I have no assurance that the same will be completed.” The board proceeded with the hearing of testimony for and against the petition, and having inspected the premises, found that legal notice had been given by publication and “that no private rights will be injured or endangered by the vacation . . . and that the public will suffer no loss or inconvenience, but will be greatly benefited,” granted the petition.
The district court sustáined defendants’ motion to dismiss the appeal on the ground that it had no jurisdiction, because the matter appealed from involved no judicial question. It is stated in the brief of the appellant that the matters referred to in his protest against the petition were that the railway company had tentatively agreed to buy his land, but had purchased land of other owners and had left him out. The statute gives to any person who shall be aggrieved by any decision of the board of county commissioners the right to appeal from the decision to the district court. (Gen. Stat. 1915, § 2568.) One of the questions presented and passed upon by the board of county commissioners was whether any private rights would be injured or endangered by the vacation. This involved a judicial question.
In Callen v. Junction City, 43 Kan. 627, 23 Pac. 652, it was held that findings of fact made by a judge of the district court under the provisions of section 1, chapter 69, Laws of 1886, as to the advisability of extending the corporate limits of a city and to the effect that such extension would result in no manifest injury to the owners of land included within the extension was the exercise of judicial power. To the same effect is Huling v. The City of Topeka, 44 Kan. 577, 579, 24 Pac. 1110. Whether the conditions which the legislature had in mind existed was. a judicial question to be determined in the first instance by the board of county commissioners, as it was said in Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598, “the judicial determination merely establishing that the legislative enactment applied to his property.” (p. 45. See, also, The State v. Railway Co., 76 Kan. 467, 484, 485, 92 Pac. 606, and cases cited in the opinion.)
In Nash v. Glen Elder, 74 Kan. 756, 88 Pac. 62, followed in Nash v. Glen Elder, 81 Kan. 446, 106 Pac. 292, it was held that an act which provided for an appeal from the order of the board of county commissioners enlarging corporate boundaries was to be construed as authorizing the review of only so much of the action of the board as was judicial in its nature — that is, to the extent of enabling persons aggrieved to carry to- the district court the question whether manifest injury would be done to their property by the proposed. change and “if an affirmative answer is given to have the order set aside as having been made without authority.” (Syl. ¶ 3.) In the opinion it was said:
“The county board in the exercise of its original jurisdiction has at least two questions to determine when a proper petition is presented: (1) Whether the proposed change can be made without manifest injury to the persons owning real estate in the territory sought to be added; (2) if so, whether the annexation shall be ordered. The first determination is judicial; the second legislative. The first may be made reviewable by a court, although the second cannot.” (p. 761.)
The judgment will be reversed and the cause remanded with directions to overrule the motion to dismiss the appeal. | [
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The opinion of the court was delivered by
Mason, J.:
In April, 1919, James Madison O’Brien insured his life in favor of his mother, Elizabeth O’Brien-, the policy providing that there should be no liability thereon if within a year the insured should die by his own act. He was killed by a bullet from a pistol on August 8, 1919. His mother brought this action against the insurance company. -A defense was made upon the ground that the insured had committed suicide. A jury trial resulted in a verdict and judgment for the plaintiff and the defendant appeals.
The principal question involved is whether there was any substantial evidence to support the finding that the death resulted otherwise than from the voluntary act of the insured. Witnesses testified to these facts:
O’Brien was living on a farm with his wife and their three-year-old daughter. A Mrs. McCain worked for them. The house had four rooms, two upstairs and two down, the stairway being in a hall between the two downstairs rooms. On the night of August 7 one of the upper rooms was occupied by O’Brien and his wife and the other by a neighbor, Ben Beck. One Ray Smith also stayed at the house over night. Early the next morning O’Brien was called to the telephone by a friend who asked for his help in threshing. O’Brien answered that he would come. O’Brien also called another neighbor and asked him if he could send a man to help thresh. The neighbor told him he could and also asked if O’Brien could help him hay the next week, receiving an affirmative answer. Twenty minutes later — a little before six o’clock — while Beck and Smith were -standing just outside the front door and O’Brien’s wife and Mrs. McCain were in the kitchen, they heard a shot. Mrs. O’Brien ran upstairs and screamed. The others followed her. O’Brien was lying on his back on the bed in which he and his wife had slept, the mattress resting directly on the floor. He struggled somewhat but said nothing and died almost immediately. A 32-caliber revolver, empty except that one chamber contained the shell of a discharged cartridge, lay on the floor about a foot from his right hand. He was in his stocking feet, and over light underwear wore a suit of unionalls which were unbuttoned at the top for a distance of something less than ten inches. A bullet had entered his breast near the heart and ranged straight back, passing through the body and lodging just under the skin. It had passed through the undershirt but not through the unionalls. There were powder marks upon the undershirt but the body was free from them, or nearly so. The wound was clear cut, not torn, the flesh not being burned or bruised. O’Brien had filed a suit for divorce on the ground of unfaithfulness a few months before his death but a reconciliation had been effected, and he and his wife had been living together for over a month. Their relations the night before the tragedy were pleasant and affectionate — he seemed to be very happy. O’Brien’s disposition was cheerful — he was always jolly and lively. He owed $1,250 for an automobile, secured by a lien on the car and a chattel mortgage on 500 bushels of wheat. He had been sued on a claim for $110, but had said the suit wasn’t bothering him..
Three witnesses who were sufficiently qualified as experts to render their opinions admissible testified that in their judgment the appearance of the wound and clothing indicated that the revolver was not close to the body when it was discharged, but at a distance estimated severally at two to four feet, two to two-and-a-half feet, and fifteen inches to two-and-a-half feet.
We think the evidence justified submitting to the jury the question whether or not O’Brien committed suicide. They were warranted in finding, and must be deemed to have found, that his domestic trouble had been completely remedied; that his owing. $1,250 on his automobile and having been sued for $110 indicated no serious financial difficulties; that he was of a cheerful disposition and that there was nothing in his character, condition or surroundings to suggest a desire to end his life. One witness testified that in the course of a quarrel with his wife about a week before his death he had threatened to kill himself, but as the jury may not have given credence to the testimony it does not affect the solution of the problem to be now determined. In view of these considerations the conclusion as a matter of law that O’Brien committed suicide can only be reached by the process of elimination — by deciding that the established physical facts concerning his death necessarily exclude any other reasonable hypothesis.
The weight to be given to the opinion evidence as to how far the revolver was from the body when the shot was fired was a question for the jury. They may have been satisfied that the distance was not less than two feet. It is manifestly unlikely that if O’Brien intended to kill himself he would hold the revolver so far away. On the other hand the fact that the bullet passed straight through the body indicates a position of the revolver that does not readily lend itself to the .theory of its accidental discharge by being carelessly'handled or dropped, or by its hanging fire. The weighing of these conflicting probabilities however was a function of the jury. In order to reach a verdict for the plaintiff it whs not necessary for them to find that the death occurred in any particular manner, but merely that they should fail to be persuaded by a preponderance of the evidence, that it was the result of a suicidal intent. The case has something in common with earlier ones in which juries have found against the theory of suicide where the circumstances were capable of interpretation tending forcibly to the contrary. (Heath v. Life Association, 89 Kan. 634, 132 Pac. 147; McCoy v. Insurance Co., 104 Kan. 571, 179 Pac. 969.) The circumstances presented are quite similar to those of Stephenson v. Bankers Life Assn., 108 la. 637. There a verdict implying that a death was accidental was upheld against the contention that the evidence did not support it. In the opinion it was said:
“There were very slight powder marks, if any, about the wound, and there was no laceration. It was a clear cut. . . . It is evident that the revolver was not held against the head, as is usual in cases of suicide.
. . . While some of the circumstances point towards self-destruction, yet we cannot say that the evidence is sufficient to overcome the presumption of accident. The most that can be said is that they point as strongly in one direction as the other; but this, as we have seen, is not sufficient, for the reason that plaintiff’s case is aided by a presumption based upon the love of life found in every individual, which is ordinarily sufficient to induce its preservation.” (pp. 640, 641.)
At the trial the defendant called as a witness the lawyer who had represented O’Brien’s wife in connection with the divorce action and offered to prove by him statements made in the course of a conference between himself and the parties relating to a settlement of their difficulties. The offer was rejected on the ground of privilege and this ruling is complained of. If the witness is to be regarded as having acted as attorney for both parties their communications although admissible in a controversy between each other, would be privileged from disclosure at the instance of a third person in an action to which neither of them was a party. (4 Wigmore on Evidence, § 2312; 4 Jones Commentaries on Evidence, § 751b.) Regarding the witness as the attorney for the wife alone the presence of her husband at the conference might prevent her statements from being privileged in‘litigation wherein the husband and wife were opposing parties, but, upon the same principle applied in the cases covered by the citations just made, it would not enable a stranger to require the attorney to reveal what his client had said. It has often been said broadly that statements made to an attorney, by his client in the presence of the adverse- party are not privileged. (40 Cyc. 2377.) However, in the cases cited in support of such expressions, either the testimony of the attorney was called for in litigation between his client and the opponent who had been present when the communication was made (or their representatives), or else the distinction was not noted between that situation and one where a stranger sought to elicit the testimony. The rule has more accurately been thus stated (the italics being ours except as to the first italicised phrase), the language being in part adopted from that of the opinion in Britton v. Lorenz, 45 N. Y. 51, 57:
“A communication between client and attorney is not confidential when made in the presence of the other party. Where it is made in the presence of all the parties to the controversy, evidence of the communication is competent between such parties, and the attorney may be required, in an action between them, to testify thereto.” (4 Jones Commentaries on Evidence, §-751b, p. 507.)
There is no room for presuming that statements made to his attorney by one party to a divorce action in the presence of the other in the course of a conference looking to an adjustment of the controversy are not intended to be confidential. That situation is peculiarly one in which public policy favors encourag ing the fullest freedom of utterance. Upon these grounds we regard what O’Brien’s wife said to her attorney as privileged. Whether or not the privilege would extend to statements made by O’Brien is not important because they were so interwoven with those of his wife as not to be capable of a separation that would have enabled material light to be thrown upon the present case without violating the wife’s rights. Indeed the facts sought to be brought out by the attorney’s testimony were substantially supplied by the divorce petition and other evidence.
The defendant suggests that the testimony of the attorney should have been admitted because the privilege involved was that of O’Brien’s wife, who made no objection to it. It is sometimes said that only the client can invoke the privilege, but the obvious meaning is that if the client has an opportunity to object to the testimony and does not do so this may be regarded as a waiver and no one else can raise the issue. “Where the client or patient, being in a position to assert his privilege, declines to do so, the attorney or physician cannot refuse to testify; but where an attorney is interrogated as to confidential matters between himself and his client and the latter is not' in a position to either assert or object to the testimony, it is the duty of the attorney to assert the privilege and decline to answer unless directed or permitted by the court to do so.” (40 Cyc. 2395. See, also, Rex v. Withers, 2 Campbell’s Reports, 578; Hodges v. Millikin, 1 Bland’s Ch., 503, 509.)
No coroner’s inquest was held, but the coroner, after looking at the body and hearing the unsworn statements of witnesses, filed with the county clerk a report to the effect that he found that O’Brien had committed suicide and that a formal inquest was unnecessary. The defendant offered this report in evidence and complains of its rejection. There is a difference of judicial opinion as to when and for what purposes the result of a coroner’s inquest may be admitted in evidence. (3 Wigmore on Evidence, § 1671, p. 2078; Allen v. Knight's and Ladies of Security, 108 Kan. 419, 195 Pac. 616.) Whether or not the verdict of a coroner’s jury would be admissible in such a case as the present upon the issue of the cause of death, and whether or not a report of the kind here offered might in any circumstances be competent upon that issue, the ruling of the trial court was clearly correct. The report amounted to no more than a statement of the opinion that had been formed by the coroner at the time of the death. The jury could have gained from it no new information as to the facts in the case. They had the benefit of the sworn testimony of witnesses, including the coroner, as to what first-hand knowledge of the subject each had and the situation was not one where opinion evidence was necessary or admissible.
The competence of the witnesses as to the distance of the revolver from the body when the shot was fired, as indicated by the appearance of the wound, is challenged on the ground that their evidence did not show them to be qualified as experts on the subject. According to the testimony one of them had had much experience with firearms; had been in national pistol 'competitions; had had three years’ experience with the regular army and national guard in the service and about ten years’ “where tests were made with firearms and effects.” Another was a physician who had been an officer in the late war in the medical department; he had been called upon to examine gunshot wounds, to determine whether or not they were self-inflicted, and had had some slight instructions with reference to that matter. The third was a captain of infantry in the late war and was overseas; he was familiar with wounds caused by the use of revolvers. We think the evidence of qualification was sufficient to make the testimony admissible. The subject was one concerning which the opinions of persons who had had considerable experience might be of more value than those based merely upon general knowledge. The jury must be presumed to have considered the extent of the experience of the witnesses in determining what weight should be given their evidence.
The court included in its charge a quotation from the syllabus in Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996, reading: “Where the evidence as to the death being accidental or suicidal is so nearly balanced as to leave the question in doubt the presumption is in favor of the theory of accidental death.” (¶ 2.) The existence of a presumption against suicide on the part of a sane person is generally recognized. (22 C. J. 95; 1 Ene. L. & P. 419.) The defendant however regards the language quoted as likely to have misled the jury by causing them to believe that the presumption against suicide should control unless the evidence proved the contrary beyond all doubt. We do not think that it is fairly open to that construction, or that there is any reasonable likelihood that it was so interpreted by the jury. The word presumption is sometimes used as a procedural term, allied to the burden of proof. The so-called presumption against suicide in such a case as the present, where the issue must be determined from circumstantial evidence — by the balancing of probabilities arising from-the established facts — is perhaps better described as an inference to be drawn from the universally recognized fact that the instinctive love of life is strong in the normal person. It is a matter to be considered with others in arriving at the most probable solution of a question which cannot be determined with absolute certainty. The jury were also told in substance that they should take into consideration the condition of O’Brien in life — his domestic and social relations, his financial circumstances, and his state of mind — and if they believed from a preponderance of the evidence that he committed suicide they should return a verdict for the defendant. We find no ground for reversal in the instruction complained of.
A new trial was asked on the ground of newly discovered evidence and complaint is made of its denial. The new evidence relied upon is that of O’Brien’s wife with reference to his domestic relations, financial and physical condition, and to the occurrences on the morning of his death. The explanation offered by the defendant for not having called this witness at the trial is that its attorneys had been told by Mrs. McCain that O’Brien’s wife had come to her residence and told her in case any of the people from the insurance company came to her with reference to her husband’s death to be sure and say it was accidental and not suicide, which led them to believe that her evidence would be produced by the plaintiff. We do not regard this as a sufficient excuse on the part of the defendant for not investigating further and calling the witness if her testimony proved desirable. It follows that no error was committed in denying the motion, irrespective of whether her evidence was such as in any event to justify granting a new trial. One passage from her affidavit as to what her testimony would be reads: “For about a month before Jimmy killed himself, he got so that every time he would get mad or out of sorts about something he would go upstairs and get his revolver and shoot. He would sometimes shoot out the window and at other times would shoot at pictures on the wall.” This had no important bearing upon the motion for a new trial, but may serve to explain the fact brought out at the trial that when the fatal shot was heard Ray Smith said: “There goes Jimmie shooting that damned old 32 again,” implying that such an occurrence was not regarded as unusual.
The judgment is affirmed.
Burch, J., and Porter, J., dissent from the first paragraph of the syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a vendor to enforce payment of the consideration stated in a contract to convey real estate. The vendee asserted right to perform by payment of the sum of $7,000 in cash. The judgment was that he execute a mortgage for $8,000, and he appeals.
The original contract was dated June 9, 1917, and was to be performed by September 1. The price was $16,000. The terms were one-half cash to be paid by September 1, and one-half secured by mortgage. Pendleton was not able to perform, and on August 17, 1917, secured new terms by a contract known as the first supplemental contract. The contract thus supplemented was to be consummated by October 25, 1917. The cash payments were made before October 25, but the mortgage was not given. On July 3, 1918, a second supplemental contract was entered into, whereby Pendleton was granted sixty days’ time in which to pay $7,000 in cash, instead of giving the mortgage for $8,000. Pendleton undertook to obtain the necessary funds from the Federal Land Bank at Wichita. Lasley himself was purchasing the land. His contract with Pendleton was to convey, or cause to be conveyed, and the abstracts were to show good title in the record owners. On July 30, 1917, the abstracts were delivered to Lasley, together with a certificate of his attorney that the title was good in the record owners. The contract was to be performed in the office of the First National Bank of Scott City. The original and supplemental contracts were deposited there, and Lasley delivered the abstracts to the bank. When Pendleton made application to the Federal Land Bank for a loan he obtained the abstracts from the Scott City Bank and took them to the Federal Land Bank. The Federal Land Bank required that some deeds be obtained, which were not procured until the sixty-day privilege granted by the second supplemental contract had expired. Lasley then refused to close the transaction according to that contract. Findings of fact and conclusions of law which were returned by the district court follow:
“FINDINGS OF FACT.
“1. The original contract between the plaintiff and the defendant was executed on the 9th day of June, 1917, and the first supplemental contract was executed on the 17th day of August, 1917, and the second supplemental contract was executed on the 3d day of July, 1918. By the terms of the first contract, plaintiff, A. R. Lasley, agreed to sell and convey to the defendant, Iris Pendleton, twelve hundred and eighty acres of land in Scott county, Kansas, for the consideration of $16,000, $8,000 to be- paid at different times and in different amounts, the final payment of $6,000 to be made on the first day of September, .1917, at which time defendant was to execute a mortgage on said land in favor of the plaintiff for $8,000 due in five years, with interest at six per cent per annum from date.
“2. Plaintiff agreed to furnish abstracts to said land showing good title in the record owners of said real estate, excepting nothing, and to complete the abstracts and deliver them to the defendant within thirty days, but the right to have the abstracts within thirty days was waived by the defendant.
“3. It was agreed in said contract that in case of default by second party, all prior payments should be forfeited and remain the property of the plaintiff.
“4. The first supplemental contract, dated August 17, 1917, provided that in. consideration of the payment of $600 the plaintiff would extend the time in which the balance of the cash payments were to be made, the last cash payment to be made on or before the 25th day of November, 1917.
“5. The second supplemental contract dated July 3, 1918, provided that plaintiff was to deliver to' defendants plaintiff’s deed conveying the land in question to the defendant. Defendant agreed to make deed to plaintiff and place said deed in the bank until defendant had completed the payments of the purchase price of said real estate, but provided that if the payments were not made within sixty days said deed was to be delivered to the plaintiff.
“6. Defendant further agreed-to pay all interest due on deferred payments and $7,000 in cash in sixty days from date of contract. It was further provided that in case payments were not made within the sixty days, then the parties were to be in the same position they were prior to the making of the said contract of July 3, 1918.
“7. At or before the time of the signing of the first supplemental contract there was some talk in the office of R. D. Armstrong, who drew said contract and who had examined the abstracts for plaintiff at the time plaintiff purchased the land in question, as to the titles and as to defendant accepting the opinion of R. D. Armstrong. At that time defendant expressed no intention of employing any other attorney to examine the abstracts, but he did not waive his right to do so. But on June 30, 1917, defendant wrote to R. D. Armstrong asking that the abstracts be sent to him, and on July 6, 1917, R. D. Armstrong, in answer to said letter of June 30, 1917, wrote defendant that he, R. D. Armstrong, would finish the abstracts in a few days and have plaintiff forward the abstracts to the defendant. The defendant never fully understood what he was to get as abstracts, nor what Mr. Armstrong’s connection with the abstracts was. He had these matters confused with those of ‘Title and Trust Companies.’
“8. Mr. Armstrong finished the examination of the abstracts for plaintiff and gave his written opinion thereon on the 30th day of July,- 1917. The abstracts were never delivered to the defendant by either the plaintiff or his attorney. The abstracts were first delivered to the defendant by Mr. Rector, at the bank in Scott City, Kan., just after the second supplemental contract was executed by the parties.
“9. The abstracts of title in the deal between plaintiff and Hawkins were prepared by Mr. Gibbons and were certified by him on the 22d day of May, 1917, and the 27th of July, 1917.
“10. Neither plaintiff nor defendant ever complied with the terms of the contract of Jüly 3, 1918. Plaintiff failed to deliver deed to defendant as provided in said contract, and defendant failed to pay the cash within the sixty days, as provided in said contract.
. “11. At no time within the sixty days provided for in said second supplemental contract did the abstracts show a compliance with the requirements of the Federal Land Bank.
“12. Neither party ever tendered performance of the terms of the second supplemental contract.
“13. The defendant in this action was in the service of the army of the United States from the 5th day of August, 1918, to the 4th day of September (December?), 1918.
“14. The plaintiff informed Mr. Rector, at the First National Bank at Scott City, Kansas, at some time prior to November 14, 1918, that he would not comply with the contract of July 3d, 1918, and on the 14th day of November, 1918, R. D. Armstrong notified defendant that Mr. Lasley had refused to comply with the terms of said contiact.
“15. On May 3, 1919, defendant by letter signified his willingness to close the deal on the terms of supplemental contract on July 3, 1918, and on the 6th day of May, 1919, the plaintiff, in answer to the letter of the defendant of May 3, 1919, signified his willingness to close the deal on the same terms, and asked defendant to comply with the terms of the contract.
“16. In all matters done by R. D. Armstrong on the abstracts, which were necessary to be done to show title in the then record owners of the land, he was acting for the plaintiff either as his agent or attorney.
“17. The defendant made all of the cash payments according to the terms of the original and supplemental contracts excepting the last payment of $7,000 as provided in the supplemental contract of July 3, 1918. By the terms of said contract of July 3, 1918, plaintiff agreed to accept $7,000 in cash with the accrued interest, in lieu of the mortgage of $8,000 provided for in the original contracts.
“18. The $600 paid by defendant on the supplemental contract of August 17, 1917, was paid for the privilege of having the terms of the payments to be made by the defendant extended to later dates.
“19. The defendant failed to execute the mortgage on $8,000 as provided in the original and supplemental contracts, but this failure was excused by the plaintiff. Plaintiff desired to have the mortgage made to some person other than himself so that he might receive the proceeds of the mortgage and pay a commission due O. D. Card for furnishing a purchaser to the land and for the purpose of paying off the mortgages then on the land.
“20. Defendant took possession of the land in question, and put his brother, Charles E. Pendleton, in charge and possession of the same, and still holds such possession.
“21. Plaintiff made a mortgage on the real estate in the sum of $4,800, which has not been satisfied, but said mortgage was to be satisfied when the contract was finally carried out, out of the proceeds of the last payment.
■ “22. The release of the mortgage was sent to the bank at Scott City, Kansas, and held there by said bank for several months.
“23. The defendant at some time prior to the expiration of the sixty days provided for in the second supplemental contract asked Mr. Armstrong if it would make any difference with plaintiff if the requirements of the Federal Land Bank could not be complied with within the sixty days, and Mr. Armstrong said he thought it would make no difference with the plaintiff.
“24. The defendant asked E. D. Armstrong to abstract the release of the mortgage and have it all ready to complete the abstracts when the release was filed for record, so the deal might be closed as speedily as possible, and Mr. Armstrong complied with this request of the defendant.
“25. On the 5th day of September, 1917, plaintiff executed a warranty deed to the land in question to the defendant, and on or about the same date deposited the deed in the First National Bank at Scott City, Kansas.
“26. The deeds from the Hawkins heirs were made to the defendant, the last of the deeds were secured on the 12th day of November, 1918, and recorded on the 14th day of November, 1918, and on said last date the abstracts were extended and certified to by E. D. Armstrong.
“27.' The three contracts referred to in these findings were all placed in escrow in the First National Bank of Scott City, Kansas.
“CONCLUSIONS OP LAW.
“First. The court concludes as a matter of law that-the first supplemental contract was not usurious, and that the six hundred dollars paid thereunder was for the purpose of securing an extension of the contract, and not as interest thereon.
“Second. Defendant is not entitled to the benefit of the reduction of the one thousand dollars provided for in the second supplemental contract, for the reason that he failed to comply with the terms thereof.
“Third. The defendant is entitled to the performance of the first supplemental contract, and the court orders that, upon the deposit by the plaintiff with the First National Bank of Scott City, Kansas, of abstracts of title showing merchantable title in said land in the grantors, with good and sufficient warranty deeds conveying title to said land to the defendant, the defendant shall, within thirty days after receiving notice of the deposit of said abstracts and deeds in said bank, make note and mortgage in favor of the plaintiff in the sum of $8,-000, said mortgage to be a first lien upon the land in question upon the terms and conditions provided in the original and first supplemental contract.”
A clerical error appears in finding No. 13. The word “September” should be “December.” The 18th finding was based on Pendleton’s testimony, and states the fact. The payment of $600 not being made, directly or indirectly, as interest for the use of money, the first conclusion of law is correct. Pendleton asserts that the 15th finding is incorrect, in stating that on May 6, 1919, Lasley, in response to an offer by Pendleton, signified a willingness to close the sale according to the terms of the second supplemental contract. The letter on which the finding is based is ambiguous. Whatever the proper interpretation of the letter may be, the finding is unimportant, because, if it be incorrect, the contract of July 3, 1918, was not reinstated, and if the finding be correct, the judgment does not depend upon it. Other findings are not criticized. It is said the court should have found as a fact that Lasley waived performance of the contract of July 3, 1918. No request for such a finding appears in the abstract, and the findings of the court, with the qualifications, noted present the facts in the case. (Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264.)
It is said that on the sixtieth day after July 3, 1918, certain obligations still existed on the part of Lasley, unfulfilled, which were concurrent conditions to Pendleton’s obligation to pay $7,000. The only obligation which the second supplemental contract imposed on Lasley was to deliver his deed. His deed had been in the bank where the sale was to be consummated ever since September or October, 1917. While it was not in fact delivered by the bank or by Lasley to Pendleton, it was in the bank for Pendleton, whenever Pendleton should deposit his deed and pay his money. The condition of the second supplemental contract was that unless the $7,000 were paid within sixty days, the contract terminated. Lasley is claiming nothing under the second supplemental contract. Pendleton seeks to take advantage of it. If the obligations of vendor and vendee were concurrent, Pendleton has no standing to claim the benefit of a contract, no obligation of which he offered to fulfill, and when the sixty days elapsed without deposit of Pendleton’s deed and without tender of Pendleton’s^ money, the second supplemental contract was at an end.
It is said Lasley was in default respecting abstracts and respecting title. While the abstracts of title were not technically delivered to Pendleton according to the original contract, he entered into two supplemental contracts without investigating them. If Lasley were in default, the second supplemental contract was entered into with full knowledge of the fact. That contract made no reference to abstracts or to title. It bound Pendleton to pay within sixty days, or lose his privilége to pay in cash, and he necessarily acted at his own risk so far as abstracts were concerned. The abstracts of title are not in the record. The fact that some one who examined them for the Federal Land Bank required deeds from some heirs, doés not indicate the title was not merchantable without the deeds, and there is no finding or evidence on which to rest a finding, that the title of the record owners was not good. Besides this, Pendleton entered.into possession of the land, and still keeps possession — facts which prevent him from asserting invalidity of title against the vendor. (Dunn v. Mills, 70 Kan. 656, 79 Pac. 146; Brown v. McCrie, 77 Kan. 230, 94 Pac. 144; Harrell v. Neef, 80 Kan. 348, 102 Pac. 838; Lane v. George, 84 Kan. 823, 115 Pac. 589.)
It is said Lasley waived performance of the second supplemental contract within sixty days. Waiver must be predicated, if at all, on findings No.-16 and No. 23. Finding No. 16 is limited to work done on abstracts. It does not extend to voluntary efforts of Armstrong to comply with requirements of the Federal Land Bank respecting title, the matter which led Pendleton to delay consummation of the sale. There was no evidence on which to base a finding that Armstrong acted for Lasley in procuring the deeds called for by the Federal Land Bank, and there was no evidence that Armstrong had any authority from Lasley to waive payment within the sixty-day period. The 23d finding discloses nothing but an expression of Armstrong’s personal opinion.
' It is said Pendleton will suffer a forfeiture, abhorred in equity, unless he may settle on the basis of the second supplemental contract. All the second supplemental contract gave to Pendleton was opportunity- to get a deed, by depositing a deed and by paying money within a strictly limited period. What he lost was opportunity, not the thousand dollars he might have made by depositing his deed and tendering his money. A contention that the judgment violates the soldiers and sailors’ civil relief act, is without merit.
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The opinion of the court was delivered by
West, J.:
This was an action to cancel a lease on various grounds, including one that its terms had been violated by a-subletting on the part of the tenant, which turned out to be the pivotal point in the case. The‘original lessee was to pay rent of $175 a month for a certain time and then $200 a month: He afterwards sublet the entire term for $300 a month. The defendant claims that the lease had attached thereto a written consent to sublet, and such consent, duly signed by the lessors, attached to the original instrument has been submitted for our examination. Following this is another typewritten agreement to advance the dates named in the lease to conform to the completion of the building, which agreement is not signed. The plaintiffs claim that this permission to sublet was never delivered.
The court made findings of fact. The 12th was to the effect that “some short time after the execution of the lease” the lessors signed the permission to sublet on condition that the lessee sign the typewritten slip following such permission to advance the dates to conform to the completion of the building—
“Which he did not do, and the writing signed by Roberts and Maple to sublet the building on the premises in question was to be delivered only on condition that Le Kron was to sign the foregoing writing, which was never done, and the written provision for subletting the building on the leased premises was never delivered and never became a part of the lease from Roberts . . . to Le Kron.”
The court’s second conclusion of law was:
“The lease should be cancelled because it contained a covenant against subletting, or assigning the lease and George E. Le Kron sublet or assigned the leased premises in contravention of the covenant.”
The original lessee, George E. Le Kron, appeals and assigns as the principal errors: refusal to permit certain cross-examination of plaintiff, Roberts; excluding a certain lease; making the 12th finding of fact; and the denial of a new trial.
Mr. Roberts testified touching the addition to the lease of the written consent to sublet and stated that it was to be on condition that the lessee should sign the written consent for an extension of time to complete the building. On cross-examination, exhibit F, a former lease of the same property, was shown the witness and he was asked if that instrument was ever delivered to Mr. Le Kron, and if after that he did not decide to construct the building a little differently, to which objections were made and sustained. We are unable to see how this ruling was material error. The theory seems •to be that because the former lease, drawn but not used, for this property contained a certain provision, it was therefore competent and material evidence to show when the subletting addendum to the other lease was delivered. Certainly, this former lease had not been delivered at all, and we do not see how its mere form and contents could indicate when the latter was delivered. Counsel say that its introduction would, have indicated that “permission to sublease had always been a part of any and all agreements for the lease of the premises.” But we are not troubled with any question or doubt as to the permission being attached to the lease now in controversy — only with the time of its delivery, and we repeat that on this point the excluded paper could have shed no light. The document was in evidence on the hearing of the motion for a new trial and duly considered by the court, but counsel say in their brief that “the trial court persisted in his original view that the September lease was entirely immaterial as evidence” in the case. So the defendant did finally get this lease before the court and procure its opinion thereon before the motion for a new trial was denied.
It seems to be contended that finding No. 12 was not supported by the evidence, or as said in the brief, was contrary to the weight of the evidence. But the trial court had the testimony of Mr. Roberts squarely contradicted by that of Mr. Le Kron, both of whom were deemed credible. Then there was the added evidence of Mr. Maple on the motion for new trial, to the effect that his affidavit was not correct, but that the subletting clause was signed by him “a few weeks . . . after the building had been started” and that some three or four weeks elapsed after the lease was signed before the order was signed. This conflict and this corroboration of oral testi mony make it impossible under the rule for us to follow counsel’s exhortation to “take the documentary evidence and admitted facts, and determine the issue of fact,” for that is precisely what the trial court had to do, and is not an appellate duty.
As to the motion for a new trial, the testimony of Mr. Maple has already been shown to have furnished no ground. It is urged that Mr. Lyon’s affidavit was not given proper weight. This was to the effect that before Christmas, 1919, he had a conversation with Mr. Roberts in which the latter told him he had heard that Mr. Le Kron had sold the garage and had subleased the building; that Mr. Lyon then told Mr. Roberts that Le Kron had sold out, and to whom, and the amount of subrental he was to get a month. He then detailed an extended conversation in which he stated what Roberts said touching the lease and the sublease, and in which the matter of buying off Mr. Le Kron was discussed. This is urged as specially significant in view of Mr. Roberts’ testimony that he knew of no violation of the terms of the lease by Le Kron until'about January 20, 1920. But even if diligence had been shown in an attempt to procure this evidence, and none was shown, it was all covered by Mr. Roberts in his testimony on the motion, so that the trial court had the full benefit of the version put upon the matter by Mr. Lyon and Mr. Roberts also, and the Lyon affidavit was in fact mainly cumulative at most, and for all these reasons it was not sufficient to warrant or require the granting of a new trial. (Sheahan v. Kansas City, 102 Kan. 252, 169 Pac. 957; Dunham v. Bokel, 105 Kan. 369, 184 Pac. 636; Robertson v. Wangler, 107 Kan. 45, 54, 190 Pac. 788.)
The trial was by the court, and while the presumption is that no improper evidence was considered, it appears that all that which was excluded was, before the end of the matter, fully considered. Notice was given of tentative findings, counsel were heard and numerous findings finally made, and the motion for a new trial was supported by affidavit and oral testimony, all of which was patiently considered, and at the end of it all, the trial court was still of the opinion that the plaintiffs had shown a right to recover. We have examined all the complaints, and find no showing of any material error.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the balance due on a contract for installation of a heating plant in the defendant’s house. The defendant counterclaimed damages, and judgment was rendered in her favor. The plaintiff appeals. The defendant also appeals from disallowance of certain items of her counterclaim.
The contract contained a guaranty that the heating plant would meet certain requirements. In an unsuccessful effort to demonstrate efficiency of the plant, the plaintiff caused the furnace to be heated intensely. In an unsuccessful effort to make the plant warm the house the defendant also caused the furnace to be heated intensely. It was then discovered • that a player piano, standing in a room above the furnace room and at a place directly over the furnace, had been injured by the overheating. The defendant was allowed damages for injury to the instrument, and it is said the damages were too remote. The court is of the opinion the damages resulted proximately from breach of the contract. It is said further the defendant might have prevented injury to the piano by removing it to another place. The defendant was not obliged to anticipate that the furnace could not be made to fulfill the purpose for which it was installed without injury to the instrument. As soon as the injury suffered was discovered, further damage was prevented by employing a man to. overhaul the plant.
The contract provided that the plaintiff would do certain excavating in the furnace room, and would furnish the labor and material necessary to install the plant. „ In order to install the plant, it was necessary to remove several feet of basement wall which furnished support for the building to be heated. The plaintiff removed the wall, but did not restore it. After-wards the building settled, and the defendant claimed damages for injury to the building. The contract did not require the plaintiff to. restore the wall. It is not claimed the plaintiff was guilty of any negligence, and if the defendant desired the wall replaced, she should have rebuilt it at her own expense.
The court properly disallowed an item of the counterclaim relating to extra coal used in trying to make the plant heat the house, because definite evidence was not produced from which the quantity of, extra coal could be computed.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiffs appeal from an order of the district court of June 10,1920, refusing to enjoin the county board of Atchison county from proceeding further with the erection of a memorial building under the provisions of chapter 279, Laws of 1919, which authorized counties and cities to erect' military memorials and to issue bonds and incur indebtedness therefor. There was no stay granted of the proceedings, ‘doubtless for the reason that when the appeal reached here substantially the entire proceeds of the sale of the bonds had been expended in attempting to complete the construction of the building.
While the case was pending here the act of 1919, under which the county was proceeding, was held invalid. (The State, ex rel., v. City of Salina, 108 Kan. 271, 194 Pac. 931.) It is conceded that the amount of bonds voted and issued was not sufficient to complete the building according to the original plans and that some part of the construction still remains to be finished.
In view of these facts the court regards the questions presented by the appeal (many of which involved the interpretation and construction of language used in the act of 1919) as of no practical importance to any of the parties, leaving nothing here but a moot case.
The appeal is therefore dismissed. | [
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The opinion of the court was delivered by
West, J.:
Philip Erhardt sued to recover for services as attorney, alleging in substance that the city of Rosedale needed certain land for the purpose of diverting Turkey creek from its course in order to prevent floods; that the city of Rosedale contracted with Kansas City, Mo., touching the matter, and also contracted with its codefendants touching the expense of such divergence, and in pursuance thereof passed a certain ordinance providing therein among other things that L. R. Gates, then city attorney of Rosedale, and James S. Gibson be given general charge of the improvements specified in the ordinance ; that pursuant to such authority James S. Gibson proposed to the plaintiff that he obtain an option on a certain tract of land desired, and that he would be paid for his services and reimbursed for any money he might expend in obtaining it; that Gibson was at the time agent of Rosedale, and duly authorized to negotiate with the plaintiff for obtaining such option, and the plaintiff was with the acquiescence and consent of the defendants authorized to do the things necessary to obtain it; that the plaintiff entered upon such employment and did obtain an option for $25,000, paying down thereon $1,000' himself which was acknowledged by one of the coünsel for Rosedale, and a deed executed and recorded.
The answer denied the authority of Gibson to employ the plaintiff, and denied that the city had in any way ratified the contract for the alleged option, and averred that the plaintiff settled with Rosedale on the theory and understanding that controversies growing- out of such land were being settled, adjudged and compromised, and that he made no assertion of the claim sued upon.
The jury found for the defendants and answered special questions to the effect that the plaintiff was not employed as agent for Rosedale; that he reported to the city his alleged purchase of the land, and that the purchase price was $50,000, and appeared before the condemnation commission as representing the parties from whom such purchase was made, and appeared as attorney therefor in the appeal from the condemnation.
It is contended that he gave no notice of his claim against the city, and that he received for his services for the land company $4,000 ; that he was not authorized by the city to procure such right of way, and that he endeavored to induce the agent of Rosedale to pay $50,000 therefor.
Plaintiff contends that attorneys Gates, Park and Gibson had authority under the ordinance of Rosedale to appoint agents and attorneys to assist in carrying out the enterprise. As we have not been favored with a copy of the ordinance we are unable to say whether or not it contains such authority. It is argued that the admitted facts indicate the appointment of the plaintiff. We find in the record, however, the usual conflict in testimony, and arei unable therefrom to say that the findings of the jury in this respect were not properly sustained.
Counsel insist that it was incompetent to admit evidence that the plaintiff had settled with the land company. That was a part of the defense set up in the answer and was competent as one of the circumstances showing the relation of the plaintiff to the defendant city.
Counsel assign as error' the refusal of the court to admit testimony offered by the plaintiff, but do not in their brief call attention to what such evidence was.
Fault is found with counsel for the defendants touching statements and remarks in the presence of the jurors alleged to be prejudicial, but those set forth in the abstract are not, in our view, serious enough to amount to prejudicial error. A lawsuit is frequently marked by observations less courteous and considerate than might be desired, but those complained of are not vicious enough to undo the work of the court and the jury and the conclusions reached by them.
Plaintiff requested an instruction to the effect that if after his services for the city had terminated, he sought and obtained employment from the land company, he had a right so to do, and in the settlement of any controversy between the city and such company it would be no defense in this action. Counsel do not enlighten us in their brief as to why they think this instruction was improperly refused, and we will therefore assume the refusal was not error.
The only other alleged, error argued in the brief was the admission of prejudicial testimony and the rejection of competent testimony. Plaintiff was required to state on cross-examination over his objection that he and his cocounsel drew between eight and ten thousand dollars under their contract with the land company, and that they divided this fee between them, and the plaintiff was now seeking to recover for the very same land against the city. It is contended that this was entirely outside the issue, but it seems to be fairly well within the allegations of the answer and, hence, its reception was not error.
Notwithstanding the few specifications of error relied on in the statement of errors complained of in the brief (p. 7) counsel go further and complain of the 7th, 8th and; 9th instructions. The 7th was merely to the effect that if the plaintiff obtained the contract for his own profit, and not as agent for the city, he could not recover. We see nothing wrong with this instruction. Number 8 was that if the plaintiff permitted the city and land company to settle their controversy without any knowledge of his claim, and gave the city no notice thereof, and permitted such settlement to be made, he must be held estopped. This is a correct statement of the principle of law, but counsel argue that because the plaintiff testified he was not present at such settlement the instruction was erroneously given; there was, however, other testimony given indicating that the settlement was made with his knowledge, and hence no error appears in this respect.
In the 9th instruction the jury were told that if after the execution of the contract by the plaintiff and the land company he attempted to sell the right of way to the defendants, and asked therefor $50,000, he could not recover. This was merely saying that if when in fact agent and attorney for the city of Rosedale he was trying to make $25,000 from the other side, instead of the fee he now claims, he could not recover, and this seems axiomatically correct. The plaintiff requested the court to instruct, that if after his services for Rosedale were terminated he sought and obtained employment from the land company, he had a right to do so, and any settlement of any controversy between Rosedale and the land company “would be no defense to this cause, and your verdict should be for the plaintiff, as to that defense.” The quoted part seems to make the instruction one of such doubtful propriety that it must be held to have been properly refused.
The reply brief of the plaintiff reargues the proposition that the evidence was insufficient to sustain the verdict and findings. But the record contains an abundance of evidence, conflicting though it be, to substantiate all the conclusions reached by the jury.
Finding no material error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of grand larceny, and appeals.
The sole ground of the appeal is that the defendant gave a clear account of his handling of the property stolen, was corroborated by a credible witness, and consequently the jury must have dealt with the testimony in an arbitrary manner. This court has the judgment of the district court to the contrary, in the order overruling the motion for a new trial. It may be the defendant and his witness, whom the court and the jury saw while on the witness stand, were discredited by their manner of testifying, or other circumstances. Besides that, the state’s chief witness was corroborated in respect to important details. Under these circumstances this court is not authorized to interfere.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
After, prolonged litigation the defendant, Lucy A. James, to enforce her trust deed, procured an order of sale in accordance with the decree of the court, asking in the praecipe that the property be sold with appraisement. The decree did not require appraisement and the clerk refused to issue the order prepared by counsel requiring it, and issued one with no mention of an appraisement. One of the mortgages foreclosed in the same-suit contained a waiver of appraisement, and the other a waiver, or not, at the option of the mortgagee. These mortgages were prior to the trust deed of Mrs. James.
The only question presented now is whether or not the sale should be set aside because made without appraisement.
Counsel for the defendant contends that under the civil code as adopted in 1909, appraisal is required, while plaintiff’s counsel insist that under our decisions none is necessary.
Sections 4550 and 4551 of the General Statutes of 1889, provided for .and required appraisement unless the instrument foreclosed contained the words “appraisement waived” or words of similar intent. These two sections were expressly repealed by section 28, chapter 109 of the Laws of 1893. Section 4553 of the General Statutes of 1889 providing that “no such property shall be sold for less than two-thirds of the value returned in the inquest” was left untouched in the General Statutes of 1909, section 6046. In Armstead v. James, 71 Kan. 142, 80 Pac. 56, this prohibition was said to have become obsolete (p. 145), and it was held that real estate sold on execution need not be appraised. This was followed in Insurance Co. v. Carra, 101 Kan. 352, 166 Pac. 233 — an action to foreclose a mortgage — and in Catlin v. Deering & Co., 102 Kan. 256, 170 Pac. 396, also a foreclosure case.
Counsel point out that the code of 1909 retains old section 4903 of the General Statutes of 1901, in the reenacted section (Gen. Stat. 1915, § 7355), forbidding land to be sold for less than two-thirds of the value returned in the inquest;.also, that the act of 1909, contains old section 4902 of the General Statutes of 1901, reenacted as section 6045, General Statutes of 1909, with the added clause that two disinterested appraisers must be called in to view and appraise the property to be sold and make their return thereon. (Gen. Stat. 1915, § 7354.) *
But it must be borne in mind that these sections of the code of 1909, sections 450 and 451, refer only to “writs directing the sale of property previously taken in execution.” Here no property was taken on execution. An order of sale under foreclosure was issued — two mortgages and a trust deed being involved. In Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, the distinction between execution and judicial sales was clearly drawn. There the sale was of the latter kind, and we find no statute requiring appraisement except in execution sales. In Lisle v. Cheney, 36 Kan. 578, 13 Pac. 816, it was held that a judgment in a mortgage foreclosure is a lien on all the land of the debtor the same as any other judgment. It was said that a mortgage lien is created by act of the parties, while a judgment lien is the creature of positive law. This was followed in Wildin v. Duckworth, 83 Kan. 698, 112 Pac. 606, where it was held that the judgment creditor in foreclosure is entitled to a general execution, and also to an order of sale, or special execution, for the sale of the mortgaged property. It was said that the court has no power to direct what property shall be levied on under a general execution.
“The sale is made under the law. On the other hand, the foreclosure of the mortgage and the sale therein provided for is a judicial sale — a sale made by the court — and in the absence of a statute directing an execution to be issued therefor, as our statute provides, the court may order any person to make the sale and prescribe the manner of the sale.” (p. 702.)
In Carter v. Hyatt, 76 Kan. 304, 91 Pac. 61, the distinction between an execution sale and a judicial sale is thus expressed, quoting Freeman on Void Judicial Sales:
“‘The former are based on a general judgment for so'much money, the latter on an order to sell specific property; the former are conducted by an officer of the law in pursuance of the direction of a statute, the latter are made by the agent óf a court . . .’ ” (p. 307.)
The statement in Catlin v. Deering & Co., 102 Kan. 256, 170 Pac. 396, that the statute no longer requires an appraisement where the land is sold on execution seems to have been made Without the attention of the court being called to the sections of the code of 1909 already referred to. It was also said that the sale was based on a decree in foreclosure and also on an execution, and the execution' is spoken -of as void. Hence, the decision rested on the sale under the decree of foreclosure. The court in Brewer v. Warner, 105 Kan. 168, 182 Pac. 411, noted the same distinction, where it. was said that in the case of sale under general execution the sheriff does not act as the agent of the court; the court has not specified the property or adjudicated the lien and has not otherwise been concerned with the course which the sheriff shall pursue. That a foreclosure sale is a judicial sale was decided in Moore v. McPherson, 106 Kan. 268, 187 Pac. 884.
“In most states the distinction has been consistently maintained between judicial sales and execution sales.” (8 Words & Phrases, 2567.)
“A judicial sale has its very foundation in a decree or order of Sale passed by a court of competent jurisdiction. It is the decree that supplies the authority upon which the officer to make the sale must act.” (16 R. C. L. 25.)
“If, however, a sale is ordered by the court, is conducted by an officer appointed by, or subject to the control of the court, and requires the approval of the court before it can be treated as final, then it is clearly a judicial sale. . . . Execution sales are not judicial. They must, it is true, be supported by a judgment, decree or order. But the judgment is not for the sale of any specific property. It is only for the recovery of a designated'sum of money.” (Freeman on Void Judicial Sales, 4th ed., § 1.)
The sale under Mrs. James’ trust deed being a judicial and not an execution sale, no appraisement was required. Her counsel say in their brief that the question presented by the record is whether or not the sale should be set aside for the reason that there was no appraisement of the property.' This question must be answered in the negative, and the decree confirming the sale is affirmed. | [
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'The opinion of the court was delivered by
Porter, J.:
The Kelly Milling Company purchased from Fred Gibson two wagonloads of wheat, paying him the market price. Gibson had wrongfully taken the wheat from the plaintiff’s granary. The milling company appeals from a judgment in plaintiff’s favor for the value of the wheat, and the appeal presents the sole question whether a purchaser in good faith and for value is protected in the purchase of wheat and similar grain in the ordinary course of business from one who has the possession but not the title.
It is said that the question is of great practical importance to the mills and elevators in this state, and that millers and others engaged in buying grain cannot in the hurry of business make extended inquiry and trace back to its source every bushel of wheat offered to them in the-usual course of their business.
Markets overt were a Saxon institution engrafted on the common law of England. From that time a sale in market overt conferred a good title upon a bona fide buyer though the seller had no title whatsoever, and even though he had acquired the property by theft.
“All contracts for anything vendible, made in market overt shall be binding; and sales pass the property, though stolen, if it be an open and proper place for the kind of goods, there be an actual sale for valuable consideration, no notice of -wrongful possession, no collusion, parties able to contract, a contract originally and wholly in the market .overt, toll be paid, if requisite, by statute, and the contract be made between sun and sun.” (2 Bouv. L. Diet. [Rawle’s 3d-Rev.] 2096.)
By the English Sales of Goods Act of 1893, the common-law *rule is still in force.
In this country the exception in favor of sales in market overt has never been recognized because there are no such markets here. (Dame v. Baldwin, 8 Mass. 517.) The institution of markets overt has never been recognized in any of the United States nor received here any judicial sanction. (Ventress et al. v. Smith, 35 U. S. [10 Pet.] 161.)
The plaintiff concedes this, but contends that an exception to the general rule that no one can by sale transfer to another the right of ownership in a thing when he has no right of property, having been adopted in this country for the sake of commerce, in the cases of money, bank bills and negotiable paper payable to bearer or transferable by delivery in the due course of business (Murray v. Lardner, 69 U. S. [2 Wall.] 110; 24 R. C. L. 377), a similar exception should be recognized in the case of sales of wheat and other grains of such character that they can not be identified by even the most careful inspection. While it is doubtless true, as suggested, that in the hurry of business, millers and elevator companies may find it difficult to trace back to its source every load of small grain offered to them in the usual course of business, yet similar risks are assumed every day in the purchase of all kinds of property in many other kinds of business. We see no reason for making an exception in favor of grain merchants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In December, 1869, The St. Mary’s College, in Pottawatomie county, Kansas, was organized as an educational corporation under the general statute then in force. Its charter has never been extended or renewed, and a question has arisen as to its continued corporate existence. This action in quo warranto is brought against the persons now acting as members of its board of trustees to determine whether without a further grant they can lawfully exercise the functions of such office. The facts are agreed to and the case is submitted for final determination as to the effect of the statutes upon the existence of the corporation.
The corporation was organized under the general statute containing this provision: “Every corporation, as such, has power: First, To have succession by its corporate name, for the period limited in its charter, and when no period is limited, for twenty years.” (Gen. Stat. 1868, ch. 23, § 11.) This language was included in the articles of association, or charter: “The St. Mary’s College hereby incorporated shall exist and have succession forever.”
Clearly the purpose of the statutory provision quoted was not to restrict to twenty years the period of existence of all corporations created under it. In the absence of any express limitation or statutory regulation the life of a corporation is indefinite — it continues until legally dissolved. (14 C. J. 178.) The statute quoted may be regarded as dealing with the duration of a corporation only where the charter is silent on the subject. It does not prevent a corporation being chartered for fifty years, a hundred years or a thousand years. But if there is nothing in the articles of incorporation to indicate the period for which a corporation is to exist the statute supplies the omission and fixes it at twenty years. The word “limited” may fairly be interpreted as though it read “defined,” and a corporation whose charter declares that it shall last forever is not silent or indefinite on the subject of the period of its continuance. No prejudice to the rights of the public can result from such an interpretation of a law of this state, for a corporation created thereúnder cannot in any event exist longer than the people through their representatives in the legislature may determine, inasmuch as the constitution expressly reserves the right to amend or repeal all laws conferring corporate powers. (Const, art. 12, § 1.) The construction indicated has been placed upon the language of the statute by the court of last resort of the state from which it was borrowed, by a decision, however, which has no controlling force because rendered after its adoption here. (State, ex rel., v. Lesueur, 141 Mo. 29.) In the case just cited the court declined to pass upon the question whether corporations organized for educational purposes under the general act containing the language above quoted would in any circumstances be subject to the twenty-year limit there imposed; but it has since held that educational corporations chartered under special statutes were not to be regarded as within the scope of such limitation because of their character, saying:
“Educational institutions of this kind are not established with a view of being continued for a brief period only or indeed for any limited time; in their very nature they are designed to be perpetual. It would be preposterous to assume that men would enter into the work of founding a college, erecting buildings and gathering the necessary appliances for the conduct of such an -institution to be dissolved at the end of twenty years.” (State ex rel. v. Board of Trustees, 175 Mo. 52, 59.)
The same court has also held that the limitation referred to is not to be construed as applying even to life insurance companies chartered under special -acts because the legislature cannot be thought to have intended that the duration of corporations whose contracts would necessarily extend over much longer periods should be limited to twenty years. (State ex rel. v. Insurance Co., 224 Mo. 84.)
In 1886 it was provided in an amendment to the law referred to that the duration of a corporation might be extended for successive periods of twenty years, “or for such length of time as may be stated in its certificate therefor.” (Laws 1886, ch. 62, § 2.) This seems to contemplate an extension without any limitation as to time and that effect has been attributed to it. (The State, ex rel., v. Lawrence Bridge Co., 22 Kan. 438.) Under this construction the new provision may be regarded as a legislative interpretation of the original act as authorizing the organization of corporations without a limit as to their duration, inasmuch as the legislature would hardly intend to allow an extension fqr an unlimited time while putting a limit on the original period for which a corporation could be organized.
It remains to consider the effect of subsequent enactments. In 1907 the corporation statute was revised. The provision already quoted was reenacted with the substitution of “fifty years” for “twenty years.” (Gen. Stat. 1915, § 2144.) A new section was at the same time added containing this provision: “The existence of a private corporation shall begin on the day the charter is filed in the office of the secretary of state, and shall continue for a period of fifty years.” (Gen. Stat. 1915, § 2110.) We need not determine the construction of these provisions further than to decide that both of them are prospective. There is no doubt, of course, of the authority of the legislature, under its reserved power already referred to, to shorten the period of existence of a corporation already created. But it is obvious that the mere change from twenty years to fifty years in the statute fixing the duration in the absence of any other designation would not affect corporations already created. And the mere declaration that a corporation shall exist for fifty years from the filing of its charter cannot be regarded as intended to diminish the effect of a grant already made — to shorten the life of a corporation in existence when the act was passed.
We are concerned now only with a corporation of the character here involved — one for the maintenance of an educational institution. Without determining what might be the interpretation of the statute as applied to a corporation for financial profit, we hold that the corporate existence of the college of which the defendants are acting as the trustees continues without extension or renewal until such time as the legislature by future action shall place a limit upon it.
Judgment is therefore rendered for the defendants. | [
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The opinion of the court was delivered by
Mason, J. :•
C. E. Berquist was arrested upon a charge of violating the statute defining criminal syndicalism and penalizing certain acts in connection therewith. ' (Laws 1920, ch. 37.) A motion to quash the information was sustained and the state appeals.
The sections of the statute under which the information was drawn read:
“Criminal syndicalism is hereby defined to be the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, or as a means of effecting industrial or political revolution, or for profit.” (Laws 1920, ch. 37, § 1.)
“Any person who, by word of mouth, or writing, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of crime, criminal syndicalism, or sabotage, or who shall advocate, affirmatively suggest or' teach the duty, necessity, propriety or expediency of doing any act of violence, the destruction of or damage to any property, the bodily injury to any person or persons, or the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends, change or revolution, or for profit; or who prints, publishes, edits, issues, or knowingly circulates, sells, distributes, or publicly displays any books, pamphlets, paper, handbill, poster, document, or written or printed matter in any form whatsoever, containing matter advocating, advising, affirmatively suggesting or teaching crime, criminal syndicalism, sabotage, the doing of any act of physical violence, the destruction of or damage to any property, the injury to any person, or the commission of any crime or unlawful act as a means of accomplishing, effecting or bringing about any industrial or political ends or change, or as a means of accomplishing, effecting or bringing about any industrial or political revolution, or for profit, or who shall openly, or at all attempt to justify by word of mouth or writing, the commission or the attempt to commit sabotage, or any act of physical violence, or the destruction of or damage to any property, or the injury of any person or the commission of any crime, or unlawful act, with the intent to exemplify, spread, or'teach, or affirmatively suggest criminal syndicalism, or organizes, or helps to organize or become a member of, or voluntarily assembles with any society or assemblage of persons which teaches, advocates or affirmatively suggests the doctrine of criminal syndicalism, sabotage, or the necessity, propriety or expediency of doing any act of physical violence or the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends, change or revolution or for profit, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years, or by a fine of not more than $1,000, or by both such imprisonment and fine.” (Laws 1920, ch. 37, § 3.)
The material portion of the information reads:
“That heretofore and to wit on or about the 11th day of May, a. d. 1920, at and within the county of Montgomery and state of Kansas, the above-named defendant, C. E. Berquist, then and there being, was then and there willfully, wrongfully, unlawfully and feloniously a member of a society or assemblage of persons, to wit, The Industrial Workers of the World, which teaches or advocates or affirmatively suggests the doctrine of criminal syndicalism or sabotage, or the necessity or propriety or expediency of doing acts of physical violence and the commission of crime or unlawful acts as a means of accomplishing or effecting industrial or political ends, change or revolution.”
The reason assigned by the court for quashing the information was that “it fails to state that the defendant was a member of such organization which teaches or advocates said unlawful doctrines as mentioned in the information, within the state of Kansas, or within the jurisdiction of the court.” This objection to the sufficiency of the information is more or‘less interwoven with another urged by the defendant — that it was defective because of its omission to state that he became a member of the organization referred to in Kansas:
The information rests wholly upon the allegation of the defendant’s membership in the society known as the Industrial Workers of the World, which is described as one teaching criminal syndicalism. No charge is made of any other act on his part and no allegation is made that he became a member of the organization in Kansas or that the organization had in this state taught the doctrines referred to. The general allegation that the defendant “at and within the county of Montgomery and state of Kansas” did the things complained of is undoubtedly sufficient without repetition to fix the place of all conduct of which the defendant is charged to have been guilty, but it can hardly be interpreted as fixing the place of the society’s activities. In view of the character of the charge, however, the information if otherwise sufficient would not be vitiated by the omission to allege' that the society operated in Kansas. The statute makes it a felony for a person to become a member of a society which teaches what is defined as criminal syndicalism. The essence of the offense is the uniting with such an organization — joining it and thereby assuming an obligation to cooperate with its members in accomplishing its purposes. In order for this act to be punishable in Kansas it must take place here. But where a person joins in this state a society of that character he could not escape liability by showing that it had never made Kansas a field of its propaganda. His misconduct in this respect would bear a strong analogy to the entering into an unlawful conspiracy, the venue of which offense may be laid in the county where the agreement was entered into although all overt acts were to be committed outside the state. (12 C. J. 640.)
The information, however, does not allege that the defendant in Kansas became a member of the Industrial Workers of the World — but merely that being in Kansas he was a member of it. Under its allegations it may be that he joined the society in some other state and that neither he nor any other member has ever within the borders of Kansas attempted to teach its doctrines or taken any step in prosecution of its designs, and that he has not within this jurisdiction conspired or conferred with others concerning them. The mere coming into this state of one who had theretofore become a member of such an organization as the statute condemns does not, according to its terms, render him subject to prosecution here. The correctness of this conclusion is the more evident from the fact that the language of our statute is different with respect to the matter now under consideration from that of the Washington act which obviously was to some extent consulted by the draftsman in framing it. There the penalty is imposed upon whoever shall “organize or help to organize, give aid to, be a member of or voluntarily assemble with any group of persons formed to advocate, advise or teach crime, sedition, violence, intimidation or injury as a means or way of effecting or resisting any industrial, economic, social or political change.” (Laws of Washington, 1919, ch. 174, § 1.) Because of the use of the expression “be a member of” as distinguished from “become a member of” the Washington court has held that a prosecution under this clause may be maintained in a county other than that in which the defendant joined the organization. (State v. Hennessy [Wash.], 195 Pac. 211, 217-218.) A distinction has been recognized between a statutory provision that relatives of the appointing officer shall not “be appointed to” certain offices, and one forbidding such a relative to hold the office (Reilly v. Knapp, 105 Kan. 565, 567, 185 Pac. 47; Bailey v. Turner, 108 Kan. 856, 197 Pac. 214) ; and a statute creating a felony is of course to be construed more strictly than where merely civil matters are involved.
We hold the information to be subject to a motion to quash because it does not allege that the defendant became a member of the Industrial Workers of the World in this state. No objection to the validity of the statute has been presented except in connection with a claim of the defendant that if the act should be construed as penalizing him for merely being a member of the organization referred to, irrespective of the time or place of his joining, it would be ex post facto. In view of the construction adopted that question does not arise. No attack has been made upon the information on the ground that some of the clauses describing the character of the society referred to are connected by “or” instead of “and” and of course no question that might arise in that. connection is passed upon.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant, claiming that he bought from the appellee 5,000 barrels of flour delivered in Chicago and that only 4,000 barrels were shipped, bought in 1,000 barrels at an advanced price and sued to recover the difference. There was a judgment against him for costs, from which he appeals.
The trial court made findings of fact in substance as follows:
Clark, the appellant, is a flour merchant in Chicago,. 111. E. E. Pierson, a commission merchant and broker in flour at Kansas City, had had many transactions with the Topeka Flour Mills Company, in most of which he had acted as broker, receiving a commission for his services in selling flour. In some instances he had bought outright and had been allowed a certain percentage on a commission basis. August 8, 1916, the appellee sold Pierson 5,000 barrels of Gold Bell flour at $5.60, bulk, f. o. b. Kansas City. On August 14 Pierson wrote Clark confirming a sale made by telegram to him of the same flour to be shipped by the Topeka Flour Mills Company at $6 per barrel, bulk, delivered at Chicago. By letter to Pierson, Clark confirmed the sale. Pierson wrote the appellee:
“In filling the contract I have with you for 5,000 bbls. of Gold Bell . . . please load this flour into twenty cars, 250 bbls. to each car, and invoice the flour to Mr. Frank G. Clark, . . . Chicago, Illinois. Make your arrival draft against the shipments for $5.98 per bbl. delivered to Chicago, stopping the cars at Kansas City for inspection, attaching . . . certificate to your draft with bill of lading.”
On August 23 the appellee sent to Clark original and duplicate confirmation sheets of the purchase, saying: “We beg to confirm sale per E. E. Pierson of 8-8-16 upon terms and conditions named below.” Under the term “basis” the confirmation contained this statement: “Cars to be stopped at Kansas City for inspection, buyer to pay inspection charges.” On the bottom of the sheet marked original there was this statement: “Sign attached duplicate and return .promptly.” The duplicate was marked: “Sign here . . . and return promptly.” Clark did not sign or return or acknowledge in any way the original or duplicate.confirmations; nor did he reply to a letter of August 25 written by the appellee which stated:
“Regarding the booking for 5,000 barrels Gold Bell flour with you, made through Mr. E. E. Pierson of Kansas City, we beg to advise that we have made application for the empty cars.”
On September 18 the appellee wrote him: “On August 23d we sent you a confirmation, our No. 275. Please sign the duplicate attached and return in order to complete our files”; to which Clark replied on September 21 by letter: “I have been unable to locate the confirmation which you say you sent August 23d. Will you kindly forward another and will sign and return to you.” No other confirmation was sent to him and he had no direct communication with the appellee from that time until October 26, when he wired: “Hurry shipment last thousand Gold Bell.” The appellee began to ship the flour to Clark August 25 and continued until 4,000 barrels had been forwarded, the last car on September 22. The flour was billed direct to Clark, the billing giving as the date the flour was sold “8-8-16, directions received 8-23-16, sold by E. E. P. to Frank G. Clark, $5.98 per barrel, basis Chicago, freight to be deducted, stop at Kansas City for inspection.” The appellant paid the drafts which accompanied the invoices and accepted the flour, but made claims against Pierson for one-half the inspection charges at Chicago and also for short weights. The bills for these claims Pierson sent to the appellee. On September 21, the appellee wrote Clark:
“We have been handed a bill from you by Mr. E. E. Pierson for half inspection on 5 cars and a memo, of short weights on the same cars. This flour was sold to Mr. Pierson, f. o. b. Kansas City; Kansas City weights and inspection. Therefore we can -not allow your bill for inspection. ... We will allow 1 lb. [per sack] short weight on these shipments.”
Clark, without answering these letters, sent them to Pierson and again offered to credit Pierson with whatever the appellee sent him, but stated that he expected Pierson to stand the difference for the. reason that the flour was bought f. o. b. Chicago and subject to Chicago inspection and weights.
The finding with reference to The thousand barrels that were never shipped direct to the appellant is that on Septeiñber 7, 1916, Pierson had sold a Boston firm a thousand barrels of Gold Bell flour and on the same day wrote Clark as follows: “May I borrow 1;000 bbls. of the Gold Bell to apply on another contract and then ship you the thousand barrels in October?” Clark on the following day replied: “I have your favor of the 7th and note same. It will be all right with me for you to transfer 1,000 barrels of my Topeka Gold Bell contract to October shipment.” Pierson requested appellee to hold back a thousand barrels dn Clark’s order. The appellee wrote him stating that they would like to comply with his request but would be obliged to get out the Clark order at that time, but would’hold it back “all we can but cannot promise very much.” Accordingly the appellee shipped the thousand barrels on the order of Pierson to Boston. On October 24 Clark wired Pierson: “Why don’t Topeka ship thousand Gold Bell transferred to October?” Pierson replied: “I have shipped out all the flour they owe me and cannot get any more from them until next month on account of being over-sold. I will try and get another thousand bbls. from one of my other mills to take the place of this.”
To this Clark replied by letter:
“If you will remember some time ago you wrote you had 1,000 barrels Gold Bell for October shipment, and would I take this October shipment contract and let you have 1,000 barrels of my Gold Bell for prompt shipment. This I agreed to do at that time and am sorry you did not ship. I saw buyer and he will take 1,000 barrels of Gold Bell for November shipment, but must have it in November as he has the flour sold. If you cannot get Gold Bell be sure to get a 95 per cent patent' of equal quality so there will be no trouble later on. Don’t delay shipment after November.”
About the same date Clark wired appellee direct: “Hurry shipment last thousand barrels Gold Bell.” The appellee wrote that they had taken the matter up by telephone with Mr. Pierson “to whom we originally sold the flour. We beg to refer you to him for an adjustment of this matter, as we have filled our contract under instructions.” To this appellant replied:
“I was very much surprised to receive your letter of the 26th in which you state you have filled all your contracts with Mr. Pierson. I still have 1,000 barrels of Gold Bell which you confirmed to me. In my correspondence with Mr. Pierson I consented only to an extension of time on delivery of thirty days, which in no sense cancels any part of this contract.”
On November 11 Clark again wired the appellee: “Hurry shipment last thousand barrels Gold Bell, Pierson contract.” Again he was referred to Mr. Pierson, and at once wired the latter: “Must have shipment thousand Gold Bell, your contract. Rush. Cannot wait any longer.” On December 6 he wired the appellee: “Unable to do anything with Pierson, must look to you fulfillment of contract.” On the same day the appellee replied, saying: “We have written you several different times that our contract with you is completed, so we have nothing more to ship.”
On November 22 the appellant purchased flour of similar quality to protect himself against loss on the thousand barrels, for which he paid the then market price of $8.45 a barrel.
Notwithstanding the somewhat complicated facts, the case is quite simple. Appellant’s principal theory is that the appellee, with full knowledge of the facts, sent a confirmation to him on August 23 and two days later began shipping the flour marked “sold to Frank G. Clark”; that this indicated an intention to abide by the transaction as negotiated by Pierson, and that the appellee is bound by the terms of the contract Pierson made with appellant and by all that Piérson subsequently did. In support of this theory stress is laid upon ex pressions in a letter from the appellee to the appellant where reference is made to “our contract with you,” the statement in the invoices, “sold to Frank G. Clark,” the expression in letters to Pierson referring to the flour as “sold to Clark,” and “confirming a sale through Pierson,” reference in other letters to Pierson, referring to the transaction as “the Frank G. Clark order,” and statements in letters to Pierson in which the appellee asked him to supply it with a release signed by Clark in order “that we may be relieved of all liability.”
An exhibit, not referred to in the findings, is a letter from Clark to Pierson in August admitting receipt of a confirmation from the appellee and directing Pierson’s attention to a previous letter in reference to Chicago inspection, and stating that Chicago buyers would not accept Kansas City inspection and that it was only a needless expense. And yet as late as September 21, in response to appellee’s request that he sign and return the duplicate confirmation sent him in August, he writes that he is unable to locate the confirmation. Late in November, when he was having trouble with Pierson over the last thousand barrels, he apparently had succeeded in locating it — for he writes appellee that there was still a thousand barrels of flour due him on a sale “which you confirmed to me.”
The fact is he was invited by the appellee to enter into a contract directly with it on certain terms stated in the confirmation sent him, among which terms were “cars to be stopped at Kansas City for inspection, buyer to pay inspection charges.” The fact that he not only refused to reply to this and other letters, but had no communication with the appellee whatever until after the trouble arose between him and Pierson (save the one letter of September 21 stating that he was unable to locate the confirmation), indicates a studious attempt to avoid entering into a contract with the appellee which would bind himself. Doubtless the trial court was not impressed with the claims of a business man who refused to answer a business letter as important as the one with reference to the confirmation. Of course, the appellee was in a position where it could elect if it saw fit to regard a contract with appellant as in force on the terms stated in the unanswered confirmation. The legal effect of the acceptance and retention of a written confirmation in contracts of this character when originally made by oral communication, by telephone, or by telegrams has been passed upon by this court in a number of recent cases. (Strong v. Ringle, 96 Kan. 573,152 Pac. 631.; Wallingford v. Grain Co., 100 Kan. 207, 213, 164 Pac. 275; Cardwell v. Uhl, 105 Kan. 249, 182 Pac. 415. See, also, 13 C. J. -279.) The same principle applies to the present case because the appellant had no contract whatever with the appellee, unless one arose by the sending of the written confirmation of August 23; and unless the appellant, upon receipt of it, communicated to the appellee any objections he might .have to its terms, the contract was embodied in the letter of confirmation itself.
The trial court reached the conclusion that the transaction between Pierson and the appellee was a valid contract of sale of the 5,000 barrels of flour to Pierson upon the terms stated in their correspondence, and that neither party had any intention of making a sale of the same flour to Clark, but afterwards and before any of the flour was shipped, Pierson sold the flour to Clark upon somewhat different terms, including delivery at Chicago, which required payment by the seller of inspection weights there and an advance in price of twelve cents per barrel, terms which were not known or agreed to by the appellee, and that the shipment of the flour direct to Clark, billed as. sold to him, upon drafts paid by him, were all in the execution of the contract between Pierson and Clark; that the appellee on Pierson’s order offered to confirm the sale direct to Clark, but that Clark never accepted the proposed .terms offered, and never agreed to Kansas City inspection nor to pay for Chicago inspection; and further, that he never advised the appellee of his contract with Pierson.
If we accept appellant’s theory that Pierson was a broker and never had any interest in the flour, then he was a mere go-between, a middleman. Both appellant and appellee were aware of the fact that Pierson was to receive twelve cents per barrel from appellant, and the latter knew that if he entered into a contract with appellee, the contract was one made “per Pierson” or “through Pierson,” and the'presumption is that he also knew that Pierson was not acting without expecting to receive some sort of a commission or profit from the appellee. Therefore, the general rule as to representing adverse interests has no application because the broker’s employment was such that his duties were not discretionary in character, and he was employed merely as a middleman “for the sole purpose of bringing certain persons together.” (4 R. C. L. 275. And see note, McLure v. Luke, 24 L. R. A., n. s., 661.) In that view of the case the appellant simply loaned his fellow broker a thousand barrels of the flour and authorized him to notify the appellee to divert it to another shipment for Pierson’s accommodation. If, in the meantime, flour had gone down in price $2 or $3 per barrel, appellant would doubtless have objected strenuously to any attempt by appellee to compel him to accept and pay for another thousand barrels at the original price. The contention that Pierson was appellee’s' agent with authority to bind the latter is not sustained by the findings nor, in our opinion, by a fair construction of the writings.
The trial court was right in considering the question of little importance whether there was a contract between the appellant and the appellee by which the latter agreed to deliver the full 5,000 barrels of flour, for the reason that appellant saw fit to loan to Pierson the last thousand barrels under a personal arrangement between them, and appellant had no right to assume that Pierson had authority from the appellee to extend the time of delivery of the balance of the flour, and as the court held, “in fact Pierson had no such authority, especially in view of the fact that the market price of flour appears to have been going up, and that the defendant expressly stated to Pierson, September 9, that it would have to get out the Clark order at that time.”
To the appellant’s insistence that the appellee is estopped to deny that a contract existed between them for the sale and purchase of the full amount of the flour, the answer is that the appellant is the one who is estopped, first, by his refusal to deal with the appellee until he found himself unable to come to a satisfactory adjustment of his differences with Pierson; second, by authorizing the thousand barrels to be delivered on Pierson’s order.
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The opinion of the court was delivered by
West, J.:
The city of Great Bend has an ordinance, section two of which makes it a misdemeanor to keep for use any house or other building or any room in any house or other building for any lewd or immoral purpose; section three makes it a misdemeanor to keep any house or building or any room in any house which shall with the consent of the keeper be resorted to by others for lewd purposes; and section four makes it a misdemeanor for any person to keep any house or other building for the purpose of prostitution, or for any lewd pur pose. The defendant was arrested under a complaint which charged that he kept for use a certain building known as the Shepler Hotel for lewd and immoral purposes; that he kept such building and rooms therein which with his consent were resorted to by others for lewd, purposes; and that he kept such building for the purposes, of prostitution and lewdness. This complaint was filed before the police judge on-Jüly 15, 1919, and in the district court August 30, 1919. On November .26, 1919, the defendant moved to quash on account of duplicity and other grounds, which motion was overruled. The abstract states that the transcript does not show the defendant was arraigned or entered a plea, and that in fact he was not arraigned- and did not plead to the complaint. At the conclusion of the city’s evidence the defendant demurred thereto and moved for discharge on the ground that it did not show any public offense. Both were overruled. On November 26 the defendant filed a motion for a new trial and a motion in arrest of judgment, which motions on December 16, 1919, were overruled.
The court charged that if the jury believed from the evidence beyond a reasonable doubt that the defendant was the owner or in charge of the building described and the rooms therein and—
“That he kept the same for lewd and immoral purposes, and permitted other persons to resort thereto for lewd and immoral purposes, and for prostitution and lewdness, then, and in such case, it would be your duty to find the defendant guilty of the offense charged in the complaint.”
The jury were also instructed, that under the ordinance to justify a conviction they must find—
“That the defendant was in charge of the Shepler Hotel as the keeper thereof, and that the same was kept for immoral purposes; that he did then and there keep the said building and ro.oms therein which with his consent were resorted to by others for lewd purposes, and for prostitution and lewdness; or that such conduct was permitted upon his part to be carried on at such place for such purposes in connection with the operation of said premises as a hotel; and- that he knew, at the time named in the complaint, to wit, July 12, 1919, acts of immorality, prostitution and lewdness were being therein conducted.”
The jury found the defendant guilty as charged under section 2 of the ordinance only, the section which makes it a misdemeanor to keep any house or building for any lewd or immoral purpose.
The defendant assigns as error the overruling of his motion for continuance, his motion to quash, his demurrer to the evidence, the motions to discharge, and for a new trial, and to set aside the verdict. He also complains of the admission and rejection of certain testimony, and the giving and refusing of certain instructions, also failure to arraign the defendant, and to require his plea to the complaint.
The motion for continuance was based on the ground that owing to local prejudice outside counsel were required, but were not present. We have examined the record touching this matter and do not feel convinced that any error was committed in overruling the motion.
Failure to arraign even in a misdemeanor case where the state is plaintiff is not a ground for reversal. (The State v. Forner, 75 Kan. 423, 89 Pac. 674. See, also, The State v. Sexton, 91 Kan. 171, 179, 136 Pac. 901.)
Complaint is made about sustaining objections to certain testimony of witnesses Kelley and Everleigh touching the reputation of the hotel, but the abstract fails to show any such ruling. Witness Luce was asked: “From your observations and what you have seen there, are you able to tell the reputation of this place as being conducted in a proper manner as to morality and chastity?” To this an objection was raised on the grounds of incompetency, irrelevancy, immateriality, and because leading, and was sustained. We are unable to see how the reputation of the place could arise from what one observes or sees there. But as the question was only whether the witness from such means was able to tell its reputation no harm could have come from an answer “yes” or “no” to such question. What the answer would have been, however, we cannot tell, and hence we cannot see any harm in the ruling as no light was given on this matter on the hearing of the motion for a new trial.
Complaint is made of an instruction to the effect that in determining the reputation of the hotel the jury might take into consideration its character and reputation as well as the character and reputation of the defendant. Counsel points out no authority for his criticism of this instruction, and assuming without deciding that the character and reputation of the defendant were not proper subjects for inquiry touching the character and reputation of his hotel, it may be observed that under the evidence and findings in the abstract no material prejudice resulted from this instruction.
Fault is found because the court refused to give a requested instruction to the effect that the defendant was not an insurer of the conduct of his guests and employees, and that he could be convicted only for knowingly permitting or allowing misconduct on their part in his building. In instruction No. 9 the court told the jury that if the defendant operated the building as a hotel or lodging house and “in connection therewith knowingly permitted acts of lewdness and prostitution upon the part of his employees and guests of the said hotel, or permitted others to resort thereto for purposes of prostitution and lewdness, such conduct, upon his part, would be sufficient to constitute a violation” of the ordinance. In instruction No. 13 they were expressly told that if the defendant had no knowledge of such conduct and was innocent of any participation therein, then, and in such case, he could not lawfully be convicted of the charge contained in the complaint. Hence, there was no error in refusing the instruction referred to.
It is argued in the brief that the evidence was insufficient to establish the guilt of the defendant. We cannot agree with this contention. The testimony found in the abstract paints about as complete a picture of the sort of place charged in the complaint as could be furnished by photographs and .moving pictures.
We have left until the last the ruling of the court in refusing to quash the complaint as it is the only serious point presented. Even in misdemeanor cases the defendant has a right, to know the nature and cause of the accusation against him so that he may properly prepare his defense, and if in one count of the complaint he is charged with several distinct offenses, it is quite possible, if not probable, that some of the jurors might deem him guilty of one and not of the others, and other members of the panel might take a different view of the matter, and so he would find himself convicted by the ballot of fewer than the requisite number of jurors. Former mechanical strictness touching indictments and informations has happily been superseded by practical and sensible rules of criminal pleading, but there are still rules, and a citizen cannot be haled into court and subjected to trial without being advised of some specific offense which the prosecution claims he has committed, and on that charge he is entitled to a verdict by all the members of the jury. The state or the city cannot, when twelve jurors are impanelled, convict a defendant of an offense unless the twelve unite in finding him guilty; and if he is charged with three separate offenses in one count and four of the jurors believe him guilty of one, four of another and four of the third, they cannot by combining their ballots return a legal verdict of “guilty” against him. It is no trivial matter for a citizen to be subjected to trial upon the accusation of having committed an offense against the laws of his state or municipality, and however guilty he may in fact be the presumption, until such guilt is found in accordance with the law, is in favor of his innocence and the same rules must apply on the trial of one in fact not guilty as in the trial of a criminal of the deepest dye. This matter was thoroughly discussed and decided in The State v. Green, 104 Kan. 16, 177 Pac. 519, a case involving a charge of misdemeanor. In that case one count in the information charged that the defendant at divers times. and places delivered large consignments of liquor. It is perfectly plain that each one of these deliveries must have been a separate and distinct offense from the others. In this case we are confronted with a very peculiar ordinance. In The State v. Goodwin, 33 Kan. 538, 6 Pac. 899, an- information charging a defendant with taking away a female under the age of eighteen years for the purpose of prostitution and concubinage was held bad for duplicity. The difference between the two purposes charged was plainly pointed out by Horton, C. J., who said:
“Now two or more offenses may, under proper circumstances, be joined in one information, but it must be in separate counts. Each count, as a general thing, should embrace one complete statement of a cause of action, and one count should not include distinct offenses — at least, distinct felonies.” (p. 541.)
It was said that this rule did not apply in cases merely of misdemeanor, citing The State v. Schweiter, 27 Kan. 499. In that case It was held that when a statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by the same person and at the same time, they may be coupled in one count as constituting all together one offense only. In such cases, the offender may be informed against as for one combined act. The charge there was that the defendant did unlawfully sell and barter spirituous, malt and other intoxicating liquors and there was a motion to elect whether the prosecution should proceed for selling or for bartering. It was said that the several phases were construed as so many steps and stages in the same affair. In The State v. Thom, 92 Kan. 436, 140 Pac. 866, in considering an information under the “white slave” act, it was held that the act (section 1, chapter 179 of the Laws of 1913) defines three felonies; first, enticing away females for the purpose of prostitution, etc., second, detaining one for such purposes, and third, persuading, inducing or enticing, or assisting in persuading or enticing such persons for such purposes.
It might be possible to resolve this ordinance into one defining three separate offenses, but it would be diffipült. It is true that the court in instruction No. 6 charged in the conjunctive instead of the alternative, but no complaint seems to have been made of that. While the ordinance is quite remarkable for its construction, and while the complaint dangerously neared the point of duplicity, that point can hardly be said to have been reached. In The State v. Pryor, 53 Kan. 657, 37 Pac. 169, it was held that when a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing- a phase in the same offense, and no motion to quash before arraignment is presented, such information is not fatally defective because they are coupled in the same count. It was there said to be the general rule that duplicity in criminal cases does not warrant an arrest of judgment, and “it is cured generally by a verdict of guilty as to one of the offenses charged.” (p. 659.)
In this case the jury found the defendant guilty under section 2 of the ordinance which must be deemed to have the effect of clearing him of any offense covered by the other two sections.
Finding no materially prejudicial error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
De Witt C. Wheeler, as administrator of the estate of Frank Wheeler, deceased, brought this action under § 422 of the civil code, to recover damages for the benefit of the next of kin of Frank Wheeler, whose death, it is alleged, was caused by the gross carelessness and negligence of the St. Joseph & Western Railroad Company. There was but little dispute concerning the facts of the casé. On June 17, 1881, the defendant below was operating a railroad which runs from Elwood westward through Doniphan and other counties of Kansas to Grand Island, Nebraska. On that day a work or construction train with a caboose car attached, was sent from Elwood to a point near Troy, for the purpose of being loaded with dirt to be brought back for the repair of the road-bed between Wathena and Elwood, with instructions to work until ten o’clock in the morning without regard to train No. 7, a freight train going west. While the train was being loaded, Frank Wheeler, in company with another boy, came up to the construction train, and learning that it was soon going eastward, asked the conductor if he might ride back. The conductor consented, and Frank Wheeler rode in the caboose car with other persons that belonged to the train. He paid no fare, and was not asked or expected to pay any. Soon after he was taken on, the construction train backed eastwardly toward Wathena, and before reaching that place, and at 9:45 A. M. of that day, it collided with the engine of train No. 7 going westward, in which collision Frank Wheeler was killed. The conductor of the construction train had instructions from the railroad company not to allow persons as passengers to ride upon his train except those who belonged to it, but this instruction was not communicated to Frank Wheeler. Upon these and some other facts which were shown upon the trial, a verdict for $1,500 was given in favor of the plaintiff.
One of the questions raised is, that there-was no correspondence between the pleadings and the evidence. The point is made that the plaintiff alleged that Frank Wheeler was a passenger, a term which it is claimed implied that Frank Wheeler was traveling in a public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare, or that which is accepted as an • equivalent therefor, while the evidence offered showed that he was carried on a train not designed for passengers, that no fare was collected or expected to be paid, and therefore that he did not stand toward the company in the relation of a passenger. This is one sense in which the term is used, but not the only one. It is commonly applied to anyone who travels in a conveyance, or who is carried upon a journey, irrespective of the character of the conveyance or of compensation to the carrier. While the plaintiff alleged that Wheeler was carried as a passenger, he nowhere averred that he was carried for hire, nor can it be said that the petition was framed upon the theory that there was a contract relation between deceased and the company. It was rather upon the theory that he was not a trespasser upon the defendant’s train, and it is specially alleged that he was upon the train with the knowledge and consent of the conductor. From this averment it is manifest that the pleader did not rely upon any agreement between the company and Wheeler, and did not intend to hold the company to extraordinary care, as it would be held in carrying persons who were passengers in a strictly legal sense; but rather, that as-Wheeler was upon the train with the consent of the conductor, he was not wrongfully there, and the company owed him the duty of ordinary care. The action was founded upon the neglect of the company and not upon the breach of a contract; and allegations of the relation which he occupied toward the company are only material for the purpose of determining and fixing the grade of care owing to him by the company. As we interpret the petition, it did not allege that the relation of carrier and passenger existed by reason of an agreement between the deceased and the company, and therefore that there was no substantial variance between the pleadings and the evidence.
A series of instructions were prepared by the railroad company and disallowed by the court, and their refusal is assigned as error. Most of them in effect instructed a verdict in favor of the defendant, and asserted that the company cannot be held liable for iniury to one who rides upon a construetion train with the consent of the conductor, and who is not a passenger m the ordinary sense. They were properly refused. We concur with the view of the law taken by the trial judge where he states that:
“Under the admitted facts and the evidence in the case, the said Frank Wheeler was not a trespasser upon defendant’s train, although he was not in legal contemplation a passenger. A common carrier of passengers is bound to exercise extraordinary care towards its passengers, and is liable for slight negligence, but it does not owe the same degree of care to a person on one of its vehicles or trains, who does not stand in the relation of a passenger. To such persons a carrier owes only the duty of ordinary care, which is that degree of care which persons of ordinary prudence would usually exercise under like circumstances.”
It is contended that Frank Wheeler was an intruder upon the train, for whose injury no liability could arise against the company, for two reasons: First, that the conductor had instructions not to carry passengers on the construction train; and second, that from the nature of the business which was being done with the train, and also its equipment, it was apparent that the company did not permit passengers to be car ried thereon. Neither of these circumstances will defeat a recovery in this case. It is true the conductor had been instructed riot to allow persons to ride upon his train as passengers, but Frank Wheeler had no knowledge of such instruction. He had asked and obtained permission to ride upon the train. It was within the range of the employment of the conductor to grant such permission. He had entire charge of the train, and was the general agent of the company in the operation of the train. As he was the representative of the company, his act, and the permission given by him, may properly be regarded as the act of the company. If Wheeler had furtively entered upon the train, or had ridden after being informed that the rules of the company forbade it, or had obtained permission only from the engineer, brakeman, or some other subordinate employé, the argument made by counsel might apply. .
In Dunn v. Grand Trunk Rly., 58 Me. 187, the plaintiff went on board a freight train with the knowledge of. the conductor. One of the regulations of the company prohibited conductors from allowing passengers to travel upon its freight trains. He was not directed or requested to leave, but paid the usual fare to the conductor, and during the journey the car upon which Jie rode was thrown from the track and he was thereby injured. The court held that under the circumstances he had a right to suppose himself rightfully on board, and that if the act of the passenger did not conduce to the injury received, the company was responsible for the consequences of its negligence or want of care. C. & A. Rld. Co. v. Michie, Adm’x, 83 Ill. 427, was an action by the administratrix to recover damages for the death of her husband, which occurred while he was riding upon an engine. The' rules of the company provided that no persons except the road master and conductor of the train were allowed to ride on the engine without the permission of the superintendent or master mechanic. He applied to the engine driver and was given permission to ride. It was ruled that the driver of the engine occupied only a subordinate position, and that his permission was not the permis sion of the company, as he had no power to give it; but it was added that—
“Had the conductor of the train given the permission, or knowing the deceased was upon the engine suffered him there to remain, it might be considered the act of the company, as the conductor has control of the entire train, and his act is rightfully regarded as the act of the company.”
In the case of Wilton v. Middlesex Rld. Co., 107 Mass. 108, several young girls were invited by the driver to ride upon one of the defendant’s cars. They got upon the front platform, and the driver immediately struck his horses, when by reason of their suddenly starting, the plaintiff lost her balance and fell so that one of the wheels passed over her arm. It was admitted that the plaintiff was not a passenger for hire, and that the driver had no authority to take the girls upon the car unless such authority was implied from the fact of his employment as driver. In deciding the case the court said :
“The driver of a horse car is the agent of the.corporation having charge in part of the car. If, in violation of his instructions, he permits persons to ride without pay, he is guilty of a breach of his duty as a servant. Such act is not one outside of his duty, but is one within the general scope of his agency, for which he is responsible to his master. In the case at bar, the invitation to the plaintiff to ride was an act within the general scope of the driver’s employment, and if she accepted it innocently, she was not a trespasser. It is immaterial that the driver was acting contrary to his instructions.”
In Lucas v. Milwaukee & St. P. Rly. Co., 33 Wis. 53, it was held that if a person rode upon a freight train without authority from some person competent to give it, he would have been unlawfully there, and could not have successfully enforced the rights of a passenger against the company, but the company had authorized the carriage of passengers upon some of its freight trains, and therefore a different ruling was applied. It was stated that—
“By making a portion of its freight trains lawful passenger trains, the defendant has, so far as the public is concerned, apparently given the conductors of all its freight trains authority to carry passengers, and if any such conductor has orders not to carry passengers upon his train, they are or may be in the nature of secret instructions limiting and restricting his apparent authority, and third persons are not bound by such instructions until informed thereof.”
In support of the same view, we cite Jacobus v. St. Paul & Chicago Rly. Co., 20 Minn. 125; O. & M. Rld. Co. v. Muhling, 30 Ill. 9; Gradin v. St. Paul & Duluth Rly. Co., 30 Minn. 217; 11 Am. and Eng. Rld. Cases, 644; Lawson v. C. St. P. M. & O. Rld. Co., 21 Am. and Eng. Rld. Cases, 249.
Eaton v. D. & L. W. Rld. Co.) 57 N. Y. 383, is relied upon as an authority for the position assumed by the company. The circumstances of that case are not like the one before us, and the decision is based on the special circumstances of the case. It differs materially in its facts from the one at bar. There, the party injured was invited by the conductor to ride upon a freight train with the promise to get him employment as a brakeman; and besides, it did not appear that passengers were either habitually or occasionally permitted to ride upon the freight trains of that company. Here, although disputed, it was satisfactorily shown that passengers were not only occasionally but commonly carried upon the freight and construction trains of the defendant. A. J. Shuster, who was employed upon the construction train at-the time that Frank Wheeler was killed, testified that passengers were carried upon that train under certain circumstances. Albert Hinchman, ■who had been on the train three or four months, stated that the company had always carried passengers on all its freight trains while he was upon the road, and that passengers had frequently ridden on the construction train, and had frequently been taken on at points other than stations where the train was at work. Henry Wheeler states that prior to the accident he rode upon the construction train to Wathena, and paid fare -to the conductor for such ride. A. J. Mowry, who traveled a great deal upon defendant’s road, testified that it- was usual to carry passengers on all caboose cars; that he rode on every kind of train that was ever on the road, and had ridden on defendant’s construction trains before June 17,1881, and paid fare to the conductor. It will thus be seen that it was customary for passengers to ride, with the permission of the conductor, upon all freight and construction trains upon the defendant’s road; and the New York case, while similar in some of its features, is not an authority here. Persons not informed of the instructions given to the conductor, had a right, under this prevailing practice, to assume that the conductor had authority to carry passengers on the construction train, and that the granting of permission by him in such cases fell within his general authority as manager of the train. Nor was there anything in the exterior appearance of the car in which the deceased rode to notify him that passengers were not carried therein. The testimony is that it was a caboose car similar in construction and appearance to those which were attached to all of defendant’s freight trains, and upon which, as has been seen, passengers were carried.
The railroad company asked an instruction that if the father of Prank Wheeler had prior to the accident relinquished unto him the right to his time and services during his minority, and that this relinquishment was unrevoked at his death, the plaintiff can recover only nominal damages. It was properly rejected. In such an action the plaintiff does not sue for his own benefit, but only as the personal represeutafive of the deceased. The damages recovered jnure to the exclusive benefit of the widow and children if there are any, and if not, to the next of kin. In this case the damages were for the benefit of the next of kin, who were the father and the mother. The sum to be recovered was therefore not for the benefit of the father alone, who may have made the relinquishment, but for the mother also. Besides, parents may recover for the death of a child who has attained his majority if they can prove any pecuniary damages resulting therefrom, such as the loss of support. In estimating the pecuniary benefit which would accrue to his parents by the continuance of his life, the fact that the parents relin quished to Frank Wheeler his time and services during his minority, was an element which might properly be taken into consideration; and this much was stated to the jury..
None of fhe other objections raised are at all tenable, and .as the charge given fairly presented the law of the case to the jury, the errors assigned will be overruled, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an application for a writ of habeas corpus, in which John W. Griffith represents that he is restrained of his liberty by S. L. Jones, sheriff of Sumner county, without authority of law. It appears that the petitioner is held in custody on a warrant charging him with forgery, which was issued by L. A. Sumner, a justice of the peace of the city of Wellington, on the 10th day of March, 1886. The warrant was not issued upon a complaint made to that magistrate, but was founded on a complaint made and filed on September 4, 1883, before D. N. Coldwell, who was at that time a justice of the peace of the city of Wellington. This complaint was made and filed in his office, and was turned over by him with the other papers in his office as justice of the peace, to the said L. A. Sumner, who was his successor in office, and the complaint has been retained in the office and custody of Sumner ever since that time. No warrant was ever issued upon this complaint by Coldwell nor by Sumner before the issuance of the one under which the defendant is now held in custody. It further appears that on the 12th day of September, 1883, the petitioner was arrested, tried and convicted upon a charge of forgery, and sentenced to the penitentiary for a term of three years. On March 23; 1886, he was pardoned by the governor and restored to his liberty, but was immediately arrested and taken into custody by the respondent upon the process under which he is now held.
Under these facts- the petitioner contends that the prosecution for the offense with which he is charged, is barred by the statute of limitations. Looking only at the recitation in the warrant with regard to the time when the offense was committed, there would seem to be no doubt that the statute bars the prosecution, because more than two years had elapsed after the offense was committed before the issuance of the warrant and the arrest of the petitioner; but it is insisted on the part of the state that the making and filing of the complaint on September 4, 1883, is a commencement of the prosecution within the meaning of the statute of limitations, and prevents the bar under the statute. The question presented then is, does the making and filing of-a complaint charging the defendant with a felony, and upon which no warrant is issued nor arrest made, constitute the commencement oi the prosecution within the meaning of the statute of limitations? We think not. While the legislature has defined what shall be deefned the commencement of a civil action, it has nowhere provided what shall constitute the commencement of a criminal prosecution. “The first pleading on the part of the state is an indictment or information.” (Crim. Code, §102.) It was conceded in argument that the presentation or filing of an indictment or information was.the commencement of a prosecution, but the filing of a mere complaint before a magistrate charging the commission of a felony cannot be so regarded.' Neither the preliminary examination nor the prosecution is founded upon the complaint. As has been decided: “ The original complaint has spent its force when the order of arrest is issued, and the order of arrest is the foundation for the preliminary examination.” (Redmond v. The State, 12 Kas. 172.) The complaint is the initiative step to determine whether a prosecution shall be commenced, and the warrant does not necessarily follow the making and filing of the complaint, as is the case where an indictment or information is filed. Section 36 of the criminal code provides that the magistrate to whom a complaint is made “ shall examine on oath the complainant and any witness produced by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed, the court or justice shall issue a warrant.” After this investigation is made by the magistrate and the Complaint is reduced to writing and sworn to, no warrant is issued unless it shall then appear to him that an offense has been committed. If the war rant is issued, it is not made returnable before the magistrate issuing it, but it recites that the officer shall arrest the accused and take him before some magistrate of the county, to be dealt with according to law. The officer making the arrest may take the accused before any magistrate of the county, and is not limited to the one with whom the complaint is lodged, and the preliminary examination will be conducted without regard to the complaint upon the warrant returned before such magistrate. (Redmond v. The State, supra; Evans v. Thomas, 32 Kas. 469.)
It would be unreasonable to hold that the mere filing of a paper or complaint, which is not regarded as a pleading,' is not the foundation of either the preliminary examination or the prosecution, and upon which a warrant may never be issued, is a commencement of the prosecution sufficient to take it out of the statute of limitations. Statutory limitations upon the prosecution of crimes are to be reasonably and liberally interpreted with a view to accomplish the purpose they are intended to promote. The policy of the law is, that the accused shall have a prompt and speedy public trial before the pi’oofs of his guilt or innocence have been obliterated. This purpose would not be accomplished by holding that the filing of a complaint alone operated as a bar to the statute, because complaints might be lodged before magistrates upon which no warrants would issue or arrests be made, and of which the public, as well as the accused, would have no knowledge until such time as interested persons might cause warrants to be issued and arrests to be made. If this were permitted, prosecutions for supposed offenses could thus be kept alive and delayed indefinitely, and the accused who at first was prepared with the proofs of his innocence, might, after the period of limitation fixed by the law, be lulled into a sense of security, and fail to preserve such proofs; and when a warrant is issued long after the statutory limitation, as was done' in this case, he might, by reason of the delay,- be entirely unprepared to meet the charge.
The cases cited by the state do not bear out its contention. In State v. May, 1 Brev. 124, the question of whether an information tp a magistrate is a legal commencement of a prosecution was in the case, but the decisión of the reviewing court was placed upon other grounds. And even the inferior court ruled that a prosecution commenced by au information to a magistrate might be deemed a legal commencement where it was pursued with due attention afterward. The other citation made is State v. Miller, 11 Humph. 505, and it does not support the claim of the state that the filing of a complaint is the commencement of a prosecution, but it is there held that the warrant, apprehension and requiring of bail for the appearance of the party at the circuit court constituted a prosecution of the offender, and of this prosecution the warrant is the commencement. We are clear that the filing of a complaint only will not prevent the bar of the statute, and we are inclined to the view that “the issuing of the warrant in good faith and delivery to an officer to execute, is a sufficient commencement, if it appears that the defendant was afterward arrested upon that warrant and bound over for trial.” (People v. Clark, 33 Mich. 120.)
It is further claimed in behalf of the state, that the time when Griffith was incarcerated in the state penitentiary should be excluded from the period of limitation. There is no ground whatever'for this claim. The only exceptions to the statute are those mentioned in § 33 of-the criminal code, and imprisonment in the penitentiary does not fall within any of them. He was of course not absent from the state, nor did he conceal tire fact of the crime; neither can it be said that he concealed himself so that process could not be served upon him. He was convicted and imprisoned by the state, and of necessity the state and its officers were acquainted with his whereabouts.
The prosecution of the offense charged against the prisoner not having been begun within two years after the commission of the offense, and not falling within any of tire exceptions of the statute of limitations, is barred by that statute, and the petitioner must therefore be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston,' J.:
D. P. Alexander brought this action against the plaintiffs in error to recover damages for the seizure and conversion of a stock of merchandise of which he claimed to be the owner. The seizure was made by B. F. Simpson, as United States marshal, and John H. Smith, as deputy marshal, under and by virtue of a writ of attachment issued out of the United States circuit court, in an action by Charles R. Lewis against the Alexander Brothers, a firm composed of the three sons of D. P. Alexander, and the stock was levied on as the property of the firm. The controversy in this case was in regard to the ownership of the goods. The jury found in favor of D. P. Alexander, and awarded him damages in the sum of $2,650. A new trial was asked and denied, and the principal ground relied upon was that the findings and verdict of the jury were not sustained by the evidence. The testimony is voluminous and somewhat conflicting. A review of it here could be of no profit, but we have read it with care,' an(l have u0 hesitation in saying that it sufficiently supp0rts the verdict rendered. It is true that the testimony of two of the witnesses tended to show that the Alexander Bros, may have had an interest in the stock of merchandise; but against one of these there was considerable impeaching testimony offered, and both were contradicted by four or ffve other witnesses, who appear to be at least equally credible. But it is not our province to judge of the weight of the testimony, nor to settle upon which side the preponderance was. There was testimony which fully justified the verdict, and the district court and jury having passed upon the question of ownership, and determined it in favor of the plaintiff below, it has passed beyond our province to interfere, or to disturb the result which they have reached.
What has been said respecting the general verdict applies to the complaint made that the. answers to certain special questions are not supported by the testimony. In response to the question of what was the value of the goods taken from the store of the Alexander Bros., in Wichita, to the store of the defendant in error, at Wellington, the answer was, $1,100. The testimony placed the value at from $1,100' to $1,460, and although it seems to us that the preponderance of testimony showed that the goods thus transferred were worth more than $1,100, yet there was some testimony upon which to found the answer. But, if it is granted that the jury were mistaken, it would not warrant us in disturbing the verdict. The in quiry with respect to this transaction was concerning the good faith and honesty of the parties, and the value of the goods transferred was not of great importance. In effect the jury have found that the transfer was honestly made, and therefore an error of the jury in fixing the value of the goods transferred, if such there was, does not affect the general verdict.
Error is also assigned upon the ruling of the court that interest might be allowed as an element of damages. The instruction of the court was:
“ If you find for the plaintiff, the measure of his damages will be the value of the goods at the time they were taken by the defendants at the place they were so taken, with seven per cent, interest on such amount from the time of conversion.”
We see no objection to this ruling. The theory of the law is that the party whose property has been taken and converted shall receive full indemnity for the loss. He has been wrongfully deprived of the use of his property, and certainly the one who takes and appropriates it ought not to reap any benefit by reason of his wrong-doing. In this case, the business of the plaintiff below was interrupted, and for years he has been kept out of the possession of a large stock of merchandise and from the use of the money arising from its sale, and the mere value of the property when it was taken and converted would be wholly inadequate to repair his loss. So it has been said in cases of this kind, that the owner is entitled to recover the value of the property at the # ... x L J time of conversion, with interest thereon to the date of the verdict. (Shepard v. Pratt, 16 Has. 209; Andrews v. Durant, 18 N. Y. 496; Chapman v. C. & N. W. Rly. Co., 26 Wis. 295; McCormick v. Pennsylvania Central Rld. Co., 49 N. Y. 303; Hamer v. Hathaway, 33 Cal. 117; 1 Sutherland on Damages, 174.)
In. our opinion the judgment of the district court should be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
On June 1, 1885, an information was filed in tbe district court of Osborne county, charging John R. Miller with the murder of Delbert J. Tunison, and also charging that John Cranshaw and Albert Whitaker aided and abetted Miller in the commission of the crime. At the trial, had the following September, a verdict was returned finding that John R. Miller was guilty of manslaughter in the fourth-degree. Upon his motion a new trial was granted, and immediately entered upon. This trial resulted in a conviction of murder in the second degree, from which he appeals to this court. He alleges numerous grounds of error, which we will consider and dispose of in the order of presentation here.
The first point made is, that the evidence is not sufficient to sustain the verdict. The defendant acknowledged that on May 19, 1885, he shot and killed Delbert J. Tunison with a gun loaded with bird-shot, but he claims that the killing was justifiable, because the deceased was in the act of stealing certain horses, and also that there were reasonable grounds to believe that he was about to be killed by the deceased, or was in danger of great bodily harm. A statement of some of the leading facts together with what the testimony offered by the state tended to show, will be enough to make it appear that the verdict was not without support.
It appears that on Saturday, May 16,1885, a difficulty occurred between Tunison and his wife, the exact nature of which is not shown. Her father, Jeremiah Miller, who lived eight miles away, learned of the trouble on Sunday evening, went at once to the residence of Albert Whitaker, who was jointly charged with the defendant, and who was a near neighbor of the Tunisons, and remained there until Monday forenoon. Before noon of that day, and while Tunison was absent from home, Jeremiah Miller, accompanied by Albert Whitaker, went to Tunison’s house and hitched a pair of horses found there to a wagon and took Mrs. Tunison and the children to his home, carrying with them some goods and a cow found upon the premises, which property, together with the horses, was claimed by Mrs. Tunison as her individual property. The horses were also claimed by Tunison to be his property. The defendant is a son of Jeremiah Miller, and has made his home with him when not employed elsewhere, as also did his co-defendant, John Cranshaw, who is a son-in-law of Jeremiah Miller. At this time the defendant- was at work in Osborne City, which was distant eleven miles from his home, and Cranshaw was engaged in Glen Elder, still farther away. On Monday night the defendant and John Cranshaw hired a team at Osborne City, and drove home, where they found Jeremiah Miller and wife, Charles Miller, Albert Whitaker, Mrs. Tunison, and Mrs. Cranshaw.
The testimony of the state tended to show that all of the parties anticipated that Tunison would come there during the night to retake the horses claimed by him. It was also testified that on the day previous the defendant visited his home and heard of the difficulty between Tunison and his wife, and. then threatened that he would kill Tunison within a week. There was also testimony that Cranshaw stated to parties in Osborne, from whom he hired the team on Monday night, that they wanted the team to go out home; that Tunison and his wife had separated, and she had gone home; and that Tunison was expected to go there that night, and if he did there would be trouble, and they were going out to take a hand in it. The parties all remained in the house until about ten o’clock at night, when a noise was heard at the barn, and defendant and Charles Miller went out there but found no one. They did not return to the house, but took a position in the barn where the horses stood, and where it was so dark that one object could not be distinguished from another. The defendant was armed with a shot-gun, which he says he accidentally found in the barn, and he and Charles Miller remained upon watch in the barn undisturbed until about midnight, when Tunison came into the barn, and without interference unloosed and took out a horse which proved not to be one of those claimed by him, but belonged to Cranshaw. He tied this horse to a post near by, and returned to the barn. While he was out, the defendant'changed his position in the barn, holding the gun in such manner that it could be readily used, and when Tunison was stepping into the barn the second time, the defendant shot him in the neck, when he fell backward and expired in a few hours afterward. This testimony, together with many circumstances which are not stated, tends strongly, to show that the killing was wholly without justification.
We do not overlook the fact that there was testimony contradictory to some extent of that which has been stated, nor that testimony was given of threats made by Tunison that he was going' after the horses and would kill anyone who interfered with him, and burn and destroy Miller’s property, and that these threats were communicated to the defendant and other members of the family. There was *also testimony in behalf of the defendant that when Tunison entered the stable door at the time he was shot, the defendant ordered him to ■ halt, and that Tunison made a motion with his right hand as if to shoot, at the same time stating, “I have the drop on you, and I will kill you for luck.” Under the testimony and, theory of the defendant, that Tunison came there to steal horses, and that while attempting to prevent him from committing a felony the deceased drew a revolver and pointed the same at the defendant in such a way that he had reasonable grounds to believe that his life was in imminent danger, he wras justified in shooting the deceased. But the jury were at liberty to disbelieve the testimony of the defendant, and to accept the theory of the state, as they manifestly did do, that Tunison went there not to steal horses, nor to injure the Millers in person or property, but for the sole purpose of recovering the horses, which he claimed as his own, and that the defendant had no reaso'nable cause to apprehend a design on the part of the deceased to kill or injure him.
There is-considerable in the testimony of the defendant which tends to weaken his claim, and which correspondingly strengthens the theory of the state. It is claimed by the state that the deceased did not bring a revolver with him, and that the one said to have been found upon his person after he was killed was placed there by some member of the Miller family. One improbability in the testimony of the defendant to which our attention has been called, is the statement claimed to have been made by Tunison, just before he was shot, that he had the drop on the defendant and would kill him, when it appears that it was so dark in the barn where the defendant stood that it was impossible for the deceased to have seen him. The revolver claimed to have been found on his person was not discharged by the deceased, and yet every barrel was empty when it was examined. That the deceased would carry •an empty revolver in such a case, or would draw and point it into the darkness, seems somewhat unlikely. Besides, the location of the wound, as well as the course taken .by the shot which penetrated his body, would indicate that the deceased was not in such a position as he naturally would have assumed if he had been aiming at or attempting to shoot the defendant. Then again, it is admitted that they anticipated that he was coming there during the night after the horses, but instead of warning him to desist, or taking any steps to prevent his trespassing upon the premises, they lay in wait and killed him with but little if any warning. So far as the protection of the property was concerned, it would seem that the killing of the deceased was unnecessary. In addition to the defendant and his brother, who were in the barn, there was Jeremiah Miller, Albert Whitaker and John Cranshaw, who were at the house within easy call, and who knew of his coming, and could have assisted in driving him away. If the trespass could have been'prevented, or if the threatened danger to the person of the defendant, or to the property which he claimed to be guarding, could have been avoided or prevented by any other reasonable means within his power, the killing of the deceased was unnecessary and inexcusable. (Weaver v. The State, 19 Tex. Ct. of App. 547; same ease, 33 Alb. L. J. 408.) But we do not assume, nor is it our province, to weigh the testimony that was given. It was conflicting, and the conclusion of the jury depended very largely upon the credibility of the witnesses produced upon the respective sides. The province of weighing the testimony in such cases belongs exclusively to the jury, and if upon inspection of ap ^e evictence offered in the case we find enough to sustain the conclusion of the jury, the verdict will not be disturbed. A careful reading of the record leaves no doubt in our minds that the verdict is warranted by the testimony.
During the trial the state introduced and read in evidence the testimony given by the defendant at the preliminary ex- animation, over his objection. The testimony was signed by the defendant, and constituted his written declaration concerning the offense for which he was being tried, and if properly identified, was admissible in evidence. It is now claimed that it was not identified, but this objection was not made in the court below, where it seems to have been conceded by both parties to have been the evidence which he gave, and cannot be now made.
It is next claimed that the court erred in permitting W. B. Bowen and Samuel Bowen to testify to statements made by John Cranshaw in the absence of the defendant, regarding the purpose for which the defendant and Cranshaw desired a team to go to Miller’s on Monday night, and what they proposed to do when they got there in case Tunison should come after the horses. It will be remembered that Cranshaw was charged with having aided aud assisted the defendant in the murder of Tunison. Cranshaw’s statements were admitted upon the theory that he was a co-conspirator with the'defendant. It is conceded that “ordinarily when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator, the conspiracy itself should first be established prima faoie, aud to the satisfaction of the judge of the court trying the cause. But this cannot always be required. It cannot well be required where the proof of the conspiracy depends upon a vast amount of circumstantial evidence, and a vast number of isolated and independent facts.” (The State v. Winner, 17 Kas. 298.) However, in this case we are of the opinion that when the testimony objected to was offered, enough had already been shown, and Cranshaw was so far 4 ^ ' implicated with the defendant, as to warrant the court in admitting the testimony. The court fully protected the interests of the defendant in this regard when it instructed the jury that they should disregard the evidence of all statements made by Cranshaw in the absence of the defendant, unless they found from the evidence that before the statements were made.Cranshaw had entered into a conspiracy or understanding with the defendant to do some unlawful act to the person of the deceased, and that such statements or preparations were made for the purposemf furthering the object of such conspiracy or understanding.
Several objections, most of which are immaterial, are urged to the rulings of the court upon the testimony given by a witness for the state named Zoe Eaton. This witness was keeping company with the defendant, and had accompanied him to Jeremiah Miller’s on the Sunday preceding the killing of Tunison. The county attorney hearing that the witness had stated that the defendant while in her company on that day spoke of the difficulty of Tunison with his wife, and at the same time threatened to take his life, called her as a witness for the state. At that time she denied having made such statements, and denied that the defendant had spoken of Tunison or made any threats against him in her presence. Before the examination was concluded, however, she returned to the witness stand .and changed her testimony, giving a detailed account of her conversation with the defendant, in which he spoke harshly of the deceased, and threatened to take his life. Considerable testimony, some of . which was objected to, was given by her concerning the causes which led her to correct the evidence first given. Each party claimed that she had been tampered with by the other, and under the- circumstances it was competent to examine closely into the influences which led to the contradictory statements, in order to determine how much credit should be placed upon the testimony given upon the final trial. On cross-examination she was asked what she was crying about in the probate judge’s room. This question was refused. It was in this room where, at the- instance of her father and others,1 she consented to go back upon the witness stand and relate what she now insists is the truth. Having stated that she was crying while there, the question was a proper one. It was probably excluded by the court because the witness had already quite fully stated what was said and done in that room to influence her to correct her testimony. This being so, we think the defendant- was not prejudiced by the refusal of the question asked the witness.
The eighth, ninth, tenth, and eleventh objections are without merit, and the twelfth is that the court would not permit the defendant to prove that the property taken by Mrs. Tunison and her father from her husband's premises was her separate and individual property. This objection is not tenable. It would have been improper to have entered upon the trial of the right to or ownership of the property in this proceeding. It did appear that the property was claimed in good faith by each of the parties as his or her individual property, and this was the extent to which it was proper to go.
The thirteenth and fourteenth objections are without force, and the fifteenth is a criticism of the instructions given to the jury. We have examined them, and find that the defendant has no cause for complaint except where the court, in speaking of the law of self-defense, states that “before a person can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the jury that that defense was necessary,” etc. Separating this passage from the general charge, and considering it alone, it might appear to shift the burden of proof respecting one phase of the case upon the defendant, while it is well established that the presumption of innocence is with the defendant, and that the burden of proof rests on the' state throughout the trial. But the instructions are to be considered as an entirety, and in another portion of the instructions the court specifically charges the jury that “the burden of establishing the guilt of the defendant rests upon the state,'and in no stage of the case does the burden shift upon the defendant to prove his innocence,'or to prove that the killing of Tunison was justifiable.” The erroneous. use of the word “satisfy,” of which complaint is made, might possibly have resulted to the prejudice of the defendant if the court had not, in treating upon the same subject, clearly stated the burden to -be upon the state, and we therefore think that the jury could not have been misled.
Another instruction complained of is where the court instructéd the jury that they might, if the evidence warranted it, find the defendant guilty of murder either in the first or second degree. Upon the first trial the defendant was found guilty of manslaughter in the fourth degree. He was awarded a new trial upon his application, and the claim is that he could not afterward be convicted of a higher degree of crime than manslaughter in the fourth degree. This fiues^01Q has already been determined against the contention of the defendant, where it was decided that the granting of a new trial oh' the motion of the defendant places him in the same position as if no trial had been had. [The State v. McCord, 8 Kas. 232.)
It is finally urged that the motion for a new trial should have been granted upon the grounds of improper conduct of the jury, and improper remarks of the counsel for the state in the argument to the jury. It appears that during the last trial the county attorney made use of the stenographer’s transcript of the testimony taken on the first trial, and affidavits were offered that several members of the jury, during a recess of the trial, took this transcript from the table in the court house where it wás lying, and were apparently reading it; and that the transcript contained testimony not produced before the jury in the final trial. A sufficient answer to this objection is, that it was not shown that the members of the jury who handled the transcript read any portion of the evidence. The court finds specially from all the testimony offered on the motion for a new trial, that it did not appear that the jury read any part of what was written in the transcript.
We find nothing in the argument of counsel, nor in any of thé errors assigned, that wopld warrant a reversal of thé judgment, and it will be affirmed.
Horton, C. J.:
An examination of the record satisfies me that the district court committed some errors upon the trial, but I do not think that these errors affected the result in vio lation of substantial justice; and §293 of the criminal code provides that on an appeal (in criminal cases) the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. Therefore I concur in the affirmance of the judgment of the district court. | [
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The opinion of the court was delivered by
Johnston, J.:
The evidence giveu on the trial, construed favorably to the plaintiff belowyis sufficient to sustain the findings of the court, and we must therefore take the facts as they have been found. There is no dispute but that the services sued for were rendered by the plaintiff, and were worth the sums which he charged therefor. It is insisted by the railroad company that there has been an accord and satisfaction of his claim. Since the services were rendered by the plaintiff he has signed a receipt acknowledging the payment of $200, and it recites that it is in full for all services rendered to the company, including those for which this action was brought. Davis claims that the $200 was due and paid for other services rendered at an earlier time, in what is termed the “right-of-way eases,” and also that at the time of receiving the payment and signing the receipt, he protested both verbally and in writing, that it was not a complete satisfaction, and that he still claimed compensation for the services in the “’Whittaker cases,” which are those involved in this action. On the other hand, it is claimed by the railroad company that Davis had, before that time, acknowledged payment in full for the services which he had rendered for the company in the right-of-way cases, and therefore that the $200 was a payment on and in full satisfaction of his claim for services in the “Whittaker cases.”
It seems that prior to his employment in the “Whittaker eases,” he was employed by J. D. Hill, superintendent of the railroad company, to attend to the “right-of-way cases,” at an agreed compensation of $1,200. The plaintiff was first paid the sum of $100 under that contract, and at another time $500 was paid thereon. Some time after the payment of the $500, and when the plaintiff was in great need of money, he applied to Superintendent Hill for the balance of $600 which was due him under that contract. The superintendent told the plaintiff that the company had no money, but if the plaintiff would give a clear receipt for the $600, that he would give his individual check for $400. The plaintiff stated that he did not think it right to take advantage of his necessities, and that he did not want to be swindled out of the other $200 which was still due him; when the superintendent told him, “You just sign that receipt, and the $200 will be all right.” The plaintiff then signed the receipt, with the understanding that the $200 was still due and would be paid.
It is claimed by the railroad company that this payment by Hill was a perfect accord and satisfaction. To this we cannot agree. It is a well-settled principle of law that the payment of a part of an ascertained, overeme, and undisputed debt, although accepted as full satisfaction, and a receipt in full is given, does not estop the creditor from recovering the balance. In such a case, the agreement to accept a smaller sum in payment of a greater is regarded to be without consideration. (Bridge Co. v. Murphy, 13 Kas. 35.) It has been stated by some of the courts that the rule is rigid, rather unreasonable, and to some extent against good faith, and one not to be extended beyond its precise import, and therefore that any new consideration or any collateral benefit received by the creditor, which would raise a technical legal consideration, however small, is sufficient to support the agreement. Before the payment of the $400 to the plaintiff can operate as a satisfaction of his claim for $600, it must not only appear that there was' some new consideration for the agreement to accept a smaller sum in extinguishment of the debt, but it must "also appear that the parties mutually agreed that the sum paid should be accepted in discharge of the entire debt. It may be conceded that the payment of a smaller sum before it is due, or at a place different from that where the money was agreed to be paid, or where the note or obligation of a third person is given in payment, might be treated as of some benefit to the creditor, and if it was so agreed, it would operate as a satisfaction of the whole debt. The railroad company insists that the giving and acceptance of the individual check of the superintendent of the defendant company is sufficient to afford a technical legal consideration, and make the rule mentioned inapplicable. It appears, however, that the plaintiff was employed by Hill, the superintendent and representative of the company, and that the receipt which was prepared by Hill for the signature of the plaintiff recited that the $400 was received from the St. Louis, Fort Scott & "Wichita Eailroad Company. The company can only act through its officers and agents, and although the superintendent gave his individual check, there’ were grounds for the conclusion that the payments were made solely for and in behalf of the company. But whether Hill acted for the company or is to be regarded as a third person in the transaction, it is clear that an essential element of accord and satisfaction is wanting. There was no agreement that the sum paid should operate as a total extinguishment of the entire indebtedness. This was the claim of the railroad company, and there was considerable evidence offered in support of it; but the finding of the court is substantially that notwithstanding the signing of the receipt for the entire sum, there was an understanding and agreement that the balance was still due and would be paid. There was then $200 of a balance due to the plaintiff on the “ right-of-way cases,” and it will be observed that this is the amount of the last payment, and the amount mentioned in the final receipt, which payment and receipt the railroad company insists is a valid discharge of the plaintiff’s claim for services in the “Whittaker cases.” Treating this as a payment of what was due under the former contract for the “right-of-way cases,” as the court below seems to have done, nothing whatever has been paid to the plaintiff upon the claim on which he - sues. The railroad company contends that the final payment and receipt should be regarded as a discharge of the entire debt; first, because the auditor of the railroad, in making the payment, gave his individual check; and second, because the payment was the result of a compromise upon a doubtful and disputed claim. Neither of these claims can be maintained, for the reason that the payment of the $200 was not accepted by the plaintiff as a full satisfaction of his claim against the company. As we have seen, the payment of a less sum does not have ttie effecfc of satisfying a greater one unless it has been expressly accepted as such by the creditor. It is true the plaintiff signed the receipt acknowledging payment in full, but there was no contract embodied in the receipt. It is well settled in this state, that a receipt furnishes only prima fade evidence of the declarations and admissions which it contains,
and that a party giving a receipt admitting payment in full has a right to show that it is untrue. (Clark v. Marbourg, 33 Kas. 471; Bridge Co. v. Murphy, 13 id. 35; Stout v. Hyatt, 13 id. 232.) This receipt, then, was open to explanation or contradiction, and the court finds that at the time of receiving the check and signing the receipt, the plaintiff insisted that he still claimed compensation for all his services in the “Whittaker cases.” It seems that in connection with the delivery of the check, and in the presence of the auditor, the plaintiff made and filed with the auditor a written protest claiming that the services for which this action was brought still remained due and unpaid. It also appeal's that the check, receipt and protest were executed in the evening, after banking hours, so that the check could not be and was not paid until the next day, and there was therefore ample time after the filing of the protest for the company or its auditor to stop the payment of the check; but this was not done.
Under these circumstances we must conclude that the plain tiff did not agree to relinquish his claim for services in the Whittaker cases; and as the $200 payment was not accepted as a satisfaction of that claim, it cannot have that effect.
The judgment of the district' court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Action by Ray Sanborn, by his next friend, for a personal injury. The petition alleged that Ray Sanborn was ordered by H. S. Benton, the foreman of the boiler shop of the railroad company, at Topeka, to oil and lubricate parts of certain cogs belonging to or running an iron punch in the shop of the company; that whilst in the act of supplying the cup of the cogs with oil, his right hand and arm were caught by and between the cogs and so mutilated that amputation of the arm below the elbow was necessary;' that the accident was caused by the negligence and'mismanagement of the company in not having the cogs boxed up and protected as the same should and could-have been, and in not having the machine otherwise properly constructed and adjusted as the company was required to do. There is no evidence in the record tending to show that the company was guilty of any negligence in failing to cover or further protect the cogs of the wheels where Sanborn was injured, and no evidence whatever tending to show that the iron punch and all the machinery connected therewith was not properly constructed and adjusted.
John M. Stebbins, a witness called by the plaintiff; among other things testified that—
“He was a boiler-maker by trade, and had worked in that business for forty years; that at the time of the injury complained of he was working as a mechanic in the boiler shop of the railroad company at Topeka, and had been working in' the shop for that company about fifteen months; that he knew of' the accident very soon afterwards, but did not see it; that there were two punches somewhat similar in the shop — a heavier punch and a lighter punch; that anybody in the shop who desired could use the small punch; that it was used for general purposes, like punching ¿-inch, ¿-inch and holes; that the pinion wheel was between five and six feet from the floor; that a shaft driving the punch runs across near the top of the machine; that right in the rear of the pinion wheel is a journal, with a cup on it; that in the top there is a recess where oil is put and holes to let the oil down to the journal; that to put the oil in you have to put it into the oil-holes; that Sanborn could have oiled the machine from the ground, but by getting on a box that was there, he was able to reach more easily where the oil box was; that if he had used his left hand there would have been no danger; that he had operated other machines propelled with wheels and cogs like the iron punch; that he had had experience with such machines — as much as any ordinary man that works in the business; that there was no way in which a person could be caught and injured in the wheel when standing in front of the punch; that a person could oil it just as easy that way; that if a person would get something to stand on in front he would be perfectly safe; that where the belt runs a double wheel comes up; that there is a tight and loose pulley with the machine; that when the belt is on the loose pulley it does not run the machine; that by using the ‘shifter’ a person can put the belt onto the tight or loose pulley; that a person standing in front could stop the machine; that a person standing up on a box for the purpose of oiling on top could reach up and shove the ‘shifter’ and stop the machine; that a person could stop the machine to oil it, but this was not the usual method; that before the accident there was no ordinary mode of protecting the machinery.”
Joseph Heslett, called by the plaintiff as a witness, testified:
“ That he is a machinist, and had been among machines all his life; that he was acquainted with the iron punch where the accident happened, and was acquainted with the construction of machines similar to that one; that he was in the machine shop when Sanborn was hurt, but about 400 yards away; that there was no necessity for protecting such machinery; that when such machinery is down on -the floor, or' working on the floor, it is usual to protect it, but when it is five- or six feet from the ground,- it is not protected; that it is not usual or customary to fence1 or box1 machinery that is six or seven feet from the ground; that he put the machine up, and that there is a ‘shifter’ and a tight and loose, pulley; that if a person was.going to oil the machine, he would simply throw the belt onto the loose pulley and.the machine would immediately stop; that if anyone wanted to repair the machine, that is the proper method to stop it, and that is what the loose pulley is put there for; that it was the orders before the accident occurred to stop the machine to oil it; that he had seen the machine oiled-without being stopped, and he had seen the machine stopped for the purpose of being oiled; that the orders were positive to stop the machine when cleaning and oiling.”
John Mangan, called as a witness for the plaintiff, testified:
“That he was a boiler-maker, and had worked for twenty-eight years in that business, and in nearly half of the machine shops of the United States; that he was acquainted with the iron punch and the machinery where the accident occurred; that he was -at work for the railroad company in its boiler shop in Topeka at the time; that prior to the' accident there was no ordinary way of protecting such machinery by boxing or fencing to prevent accidents; that he never saw a machine of the kind that injured Sanborn boxed before the accident.”
Sanborn himself testified:
“That he had been at work as a helper in the boiler shop for a year and ten months; that in the room in which he worked were five machines—two punches, one planer, and two drills; that two of them, the large punch and drill, had been there during all of his service; that the smaller punch, on which he was injured, had been there for about five months; that he knew how the punch was started and stopped; that there were two pulleys, and the belt was shifted from the main pulley onto the loose pulley by a shifter'; that he saw others do it; that he had seen'other' men oil the machine as he was doing; that they never got hurt, and that he oiled-it in .the usual and customary way in which he had seen others oil it.”
At the time of the accident, Sanborn was in possession of all his faculties and all his senses. The two cog-wheels were about six feet from the ground or floor, and there-was nothing to prevent him from seeing that the cogs were not boxed or fenced, and every act that directly contributed to bring about the injury was his own. - Of course • he'did- not intend to get injured. He did not intend to have his hand caught between the.cogs where it was crushed, but accidentally his hand-got low enough down to be-caught; and thus his injury occurred. Eor this accidental injury he is not entitled to compensation from the company.. (A. T. & S. F. Rld. Co. v. Plunkett, 25 Kas. 188; Railroad Co. v. Smithson, 45 Mich. 212; Sullivan v. Manufacturing Co., 113 Mass. 396.)
It is said, however, that Benton, the foreman of the defendant’s shop, ordered Sanborn to run the punch and to oil the machinery; that he was an infant of tender years, ignorant and uninformed, and therefore this was such negligence that he is entitled to recover damages. As there is no direct allegation in the petition that this caused the injury complained of, it is doubtful whether the question sought to be presented is in the case. If it were a matter for our determination, * we do not think any culpable negligence is shown on ^e part of the company or its foreman. At the time of the accident plaintiff was seventeen years and seven months of age. He was not, therefore, in law, an infant of tender years. In this state, if a minor be over fourteen years of age and of sound intellect, he may select his own guai’dian. In this state, a person over sixteen years of age convidted of any felony or other offense must suffer the punishment prescribed by the statute to the same extent as if he had reached majority. We therefore think it may be presumed that a person of the age of Sanborn at the time he was iniured, has sufficient capacity to be sensible of danger and to have the power to avoid it, and that this presumption will stand until overthrown by evidence of the absence of such discretion as is usual with persons of that age. (Nagle v. Railroad Co., 88 Pa. St. 35.) There was no evidence offered tending to show that Sanborn was limited in his mental capacity, or was in any way feeble-minded. We fully recognize the doctrine that it.may be negligence to set an infant of tender years to work upon a dangerous machine without pointing out its dangers, but considering the age of the injured party and the length of time he had worked in the shop of the rail road company before being hurt, the case presented does not come within that rule.
It is unnecessary in this case to decide whether the plaintiff had the right to prove that the company, subsequent to the accident, boxed- up or inclosed the machinery, inflicting the. injury. Even if the ruling was erroneous, it was immaterial upon the facts disclosed, and therefore not prejudicial. The most that can be said in that matter is, that the company, as a measure of extreme caution, adopted additional safeguards as' to such machinery after the unexpected accident had occurred to Sanborn. The declarations of Benton, the foreman, subsequent to the accident, were not parts of the res gestee, and ought not to have been received in evidence. (K. P. Rly. Co. v. Pointer, 9 Kas. 620; Luby v. Railroad Co., 17 N. Y. 131; Sweatland v. Telegraph Co., 27 Iowa, 433.)
Upon ■ the facts testified to, the trial court committed no error in sustaining the demurrer to the evidence. Therefore the judgment of the district court must be affirmed.
All the Justices concurring. | [
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